Wednesday, August 03, 2022

Wrestling with Religious Opposition to Leviathan

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Mark S. Scarberry[1] 

This paper considers Professor Levinson’s (Sandy’s) treatment of Federalist No. 2 in his book on the Federalist,[2] and also his inaugural lecture at Touro Law School’s Jewish Law Institute, “Divided Loyalties: The Problem Of ‘Dual Sovereignty’ and Constitutional Faith.”[3] The Federalist extolls American religious unity as a basis for maintaining and deepening the American union. Sandy’s Touro lecture explores the conflict inherent in a religiously diverse nation, where loyalty to God and loyalty to the State—loyalty pledged pursuant to every government official’s oath (or affirmation) to support the Constitution—may conflict. (In this regard, we could consider the addition of “under God” to the Pledge of Allegiance during the Cold War struggle against totalitarian adversaries that demanded total loyalty to the State, but that would be a different paper.) 

I would like to say something about the role of minority Christian faiths—key elements of our religious diversity—in the development of First Amendment principles. I will suggest that the contribution of those faiths in wrestling with “Leviathan” may have made it possible for us all to live in peace, with a degree of unity. 

Little of this will be original. On an irreligiously religious note, consider Mark Twain’s Notebook comment on Adam in the Garden of Eden: “How lucky Adam was. He knew when he said a good thing, nobody had said it before.” Whether this paper includes any “good thing[s]” will be for others to say. 

In Federalist No. 2, John Jay, writing of course as Publius, asserted that the Constitution had to be ratified, or else the unity of the United States, such as it was, would be lost. The result? Separated, vulnerable and potentially hostile states or confederations. Unity was possible because Americans were “one united people”—setting aside the native American population and the enormity of the evil of slavery—who, among other commonalities “profess[ed] the same religion.” Sandy points out that “it would be easy to demonstrate the utter fatuity” of Publius’s assertion of these commonalities.[4] Most free Americans indeed were Christians of various sorts, though one might doubt that persecuted Baptists and Quakers considered themselves to be united by faith with Anglicans and Congregationalists. Nor, of course, would Jews. And the English Civil War, with its religious struggle—not nearing in ferocity the religious wars on the Continent but ending in the same year as publication of Hobbes’s Leviathan—would not have been far from their minds.

And so, as Sandy asks, how much homogeneity was in fact needed for there to be a successful Union? Some ask that question today with regard to various forms of diversity, including religious diversity; in his Touro lecture Sandy suggests that the immigration of large numbers of Haredim into Israel may not turn out to be an unmixed blessing. 

We are of course nearing a religious homogeneity on the Supreme Court, one that would be shocking to the Founding generation and that is not representative of our current populace: six Roman Catholic Justices (including Justice Sotomayor, who describes herself as a “lapsed Catholic”[5]); and a seventh who was Roman Catholic, who now attends an Episcopal church, who has not said whether he still considers himself to be Catholic, and whose Oxford doctoral thesis was supervised by John Finnis, the very prominent Catholic natural law scholar. Two Justices are Jewish, down from three due to Justice Ginsburg’s passing; and soon to be down to one, with Justice Breyer to be replaced by Judge, soon to be Justice, Jackson,[6] a self-described non-denominational Protestant. This with a national population made up (according to Pew Research) of 25% evangelicals, 15% mainline Protestants (including Episcopalians), 21% Catholics, and 2% Jews, along with members of other faiths and a good chunk—23%—of self-described “nones.” 

With the leaking of Justice Alito’s draft opinion in Dobbs, we await the likely overruling of the Roe/Casey abortion-rights framework by a largely Roman Catholic Court. The issue may be returned to the political process, where a majority of the people support abortion rights but (it seems) with substantially greater restrictions than those permitted by Roe and Casey.[7] 

So what is a Catholic Justice to do? All the Justices, in their confirmation hearing testimony, proclaim that they will not decide cases based on their religious views (whether or not “the dogma lives loudly” within them). In his Touro lecture, Sandy contrasts the responses of Justices Brennan and Scalia when asked how their Catholic faith might affect their decisions. Could the adjective “Catholic” rightly be applied to them in their roles as “Justices”? Brennan answered that his oath to support the Constitution—and that oath alone—would guide his decisions; and he later resolved that he “had an obligation under the Constitution which could not be influenced by any of [his] religious principles.” Justice Scalia responded that he could not cease to be a Roman Catholic and that, in the context of cases involving the constitutionality of the death penalty, if he were to conclude that the Church demanded that Catholics oppose the death penalty, which he considered to be constitutional, he would resign. (One wonders why recusal would not have sufficed.) 

Justice Gorsuch’s doctoral thesis[8] offers some insight into his views, though the thesis disclaims any intent to deal with abortion. Not surprisingly for a student of John Finnis,[9] Gorsuch finds there to be a secular principle—a self-evident natural law principle—that no private person may take human life intentionally. That holds true even when a person permissibly acts in self-defense and takes the aggressor’s life, because the intent is not to take a life but to stop the aggression. He goes on to say that self-defense is permissible even against an innocent person; it is permissible to cut a climbing rope and send a fellow climber to his death, to avoid being pulled over the precipice by the fellow climber. Query how that principle would apply when abortion is necessary to protect the life of the pregnant woman. He argues that the question whether the State must protect unborn life depends on whether that unborn life is a human life, which he equates to the question in Roe of whether a fetus or unborn child is a person for purposes of the 14th Amendment. But of course, the question whether the State must protect unborn life is not the same as the question whether the State may protect unborn life. 

To the extent that interpretation of vague constitutional provisions requires resort to moral principles, the principles that may be derived from religious beliefs may appropriately be considered. All moral principles may be grounded in religion or its equivalent, natural law theory notwithstanding. But that definitely is a subject for a different paper. 

Let me turn to the role of minority faiths and particularly minority persecuted Christian faiths. Have they, in a strange twist, played a role in maintaining American unity? We might think first of the time of the Founding. Baptists (whose persecution had so affected the young Madison) may have been indispensable. Their support—perhaps in particular John Leland’s—probably was decisive in Madison’s election to the Virginia ratifying convention. The convention likely would have rejected the Constitution had Madison not been present to counter Patrick Henry’s vigorous opposition. If Virginia had not ratified, Washington could not have become president, and the constitutional project likely would have failed. Baptists also seem to have been key to Madison’s election to the First Congress in a district gerrymandered against Madison by Patrick Henry. Without Madison in the First Congress, would we have a Bill of Rights?[10] 

And then we move to what I consider to be the moral center of the Free Speech Clause, the compelled speech doctrine. Even now, it is at the center of what we might call the culture wars. Requirements that dissenters bow to ascendant new moral views—in particular with regard to same-sex marriage, which I support as a policy matter, flawed as the Obergefell decision may be—are resisted under the compelled speech doctrine. Consider web designers, videographers, and those who create beautiful art in the form of custom-designed wedding cakes or floral arrangements. 

Some degree of peace may be provided if dissenters are protected by the compelled speech doctrine (as in the 303 Creative case currently before the Court,[11] in which several of today’s presenters are amici). 

Interestingly, the current Court has been quite responsive to compelled speech claims (as I hope it will be in 303 Creative and other cases). Consider, among other decisions, National Institute of Family and Life Advocates v. Becerra (2018) (dealing with compelled speech regarding abortion), and Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) (holding unconstitutional on compelled speech grounds any requirement that public employees who are not union members pay union fees). 

As we all know, the sometimes-oppressed and often-derided Jehovah’s Witnesses forced the issue at substantial cost to themselves during World War II: whether the state could compel speech, in particular the recitation of the Pledge of Allegiance (which at that time, not that it matters ultimately, did not include the phrase “under God”). The Court held 8-1 in Minersville School District v. Gobitis (1940) that the state could require the children to recite it. As we all know, the Court in West Virginia State Board of Education v. Barnette (1943) held to the contrary—rejecting stare decisis, overruling Gobitis, and holding by a vote of 6-3 that Witness children could not be compelled to recite the Pledge. 

In particular, the Barnette Court rejected the plea that national unity required that the children recite it: “We apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.” In defiance of the spirit of Hobbes, the Court argued that 

freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. 

The majority opinion explicitly rejected the notion that the Witnesses’ religious motivation mattered. There was no need for the Court to consider whether the Free Exercise Clause required an exemption based on religious objection, because, under the Free Speech Clause, the state could not require anyone to recite the Pledge, whatever their motivation might be for refusing to do so. And indeed the compelled speech doctrine is based on the Free Speech Clause. 

We might then think that any non-religious objector could have obtained for us the strong protection against compelled speech provided by Barnette. But that likely would be a mistake. Of the six Justices in the majority in Barnette, three had joined the eight-member majority in Gobitis. It appears that all three had changed their minds because they came to understand the importance of protecting religious conscience, perhaps because of the bravery of the Witnesses. Justices Black and Douglas, in concurring, explained that “[w]e believe that the statute before us fails to accord full scope to the freedom of religion secured to the appellees by the First and Fourteenth Amendments.” Justice Murphy, in his concurrence, explained that 

there is before us the right of freedom to believe, freedom to worship one's Maker according to the dictates of one's conscience, a right which the Constitution specifically shelters. Reflection has convinced me that, as a judge, I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.           

Space and time prevent me from discussing further the ways in which the bravery of Jehovah’s Witnesses and members of other religious minorities have shaped First Amendment principles in ways that help to bind us all together. 

Mark S. Scarberry is Professor of Law at Pepperdine University Caruso School of Law. You can contact him at


[1] This paper was presented before the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, (June 24, 2022), overruling Roe and Casey, but after Justice Alito’s draft opinion was leaked. This paper’s text has not been updated to reflect the actual decision in Dobbs, or the historic swearing-in of Justice Ketanji Brown Jackson.

[2] An Argument Open to All: Reading ‘The Federalist’ in the 21st Century (2015).

[3] 29 Touro L. Rev. 241 (2013). One might also consider his essay in the Canopy Forum: Divine Sovereignty, Popular Sovereignty, and the Dilemma of American Constitutionalism (2020),

[4] An Argument Open to All at 15.

[5] See Ariane de Vogue, Justice Sonia Sotomayor Gets Personal, (Jan. 9, 2013).

[6] See note 1.

[9] Finnis explains his natural law approach most fully in Natural law and Natural Rights (1980, reprinted with corrections 1996). There is a 2011 second edition, which your author will purchase should funds become available. Finnis argues that there are basic forms of good for the human person which may simply be grasped by “anyone of the age of reason,” without the need for argumentation. Id. at 33-34. Not surprisingly, one of those self-evident forms or values is “life,” which “signifies every aspect of the vitality (vita, life) which puts a human being in good shape for self-determination.” Id. at 86.

[10] I explore these questions in my article: John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights, 113 Penn. St. L. Rev. 733 (2009).

[11] See

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