Faith, Reason, and the Law

A plausible concern animates Francis J. Beckwith’s Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith. If you don’t get religious rites, you can’t uphold, defend, or even understand religious rights.

As Beckwith notes, many with “real legal and political power” as well as “highly respected and influential academics, writers, and media figures” mischaracterize and seem to misunderstand religious beliefs and the people who hold them. One side of the culture wars “sees itself and its advocates as the guardians of rationality” and its opponents as people who adopt “nonrational delusions that deserve no greater constitutional protections or civil respect than other fanciful beliefs and private self-regarding hobbies.” He means to show why this view, largely unchallenged “in some insular circles,” is mistaken.

And Taking Rites Seriously meets this obligation. I’m pleased to say it’s not hard work to take in its arguments. Indeed, even in its most technical moments, it’s a pleasure to read. The analysis is so clear and sensible it seems effortless. Not only the clarity of its arguments but its excellent examples, both historical and hypothetical, make it deserving of a wide audience. And it isn’t just reflective, telling us why things are the way they are, but prospective, looking forward to the future and setting new terms for the debates we will be having for decades to come.

Those in power often think of religious beliefs as nothing more than sincere, but irrational, babble. Beckwith cites a characteristic opinion by Justice William Brennan, from the decision in Serbian Orthodox Diocese v. Milivojevich (1976), in which Brennan says “it is the essence of religious faith that ecclesiastical decisions are to be reached and to be accepted as matters of faith, whether or not rational or measurable by objective criteria.” Beckwith maintains that “claims in literature, morality, law, and philosophy are rarely within the purview of the natural sciences, but that hardly makes them irrational.” What’s true of law and philosophy is true of religion, too.

The third chapter of the book—its best, in my view—shows how religious believers are illegitimately deprived of their constitutional right to participate in democratic deliberation when courts use religious motives as reasons to discount believers’ involvement in the political process. Crucial to Beckwith’s argument is the following pair of observations: Motives are beliefs, and motives are distinguishable from purposes.

He invites us to imagine it is 1802. The Danbury Baptists have received their famous reply from President Jefferson. The Baptists’ stated purpose—in Beckwith’s words—is “to increase religious liberty for all.” But their motive is altogether different. They want to make the world Baptist, and they don’t like the idea of an established church. Interestingly, a secularist in Virginia may share the Baptists’ purpose but have a very different motive. The Baptists think it’s good to go forth and make Baptists; the Virginian thinks it’s better for everyone to be nonbelievers. But both can support the same exact law.

Why is this distinction between motive and purpose important? Well, missing it creates a host of problems. A motive is neither the act nor the policy; it isn’t the justification for that act or policy, either. But if we collapse these distinctions, then saying that someone has a religious motive for the passage of a bill becomes equivalent to saying that he is proposing a religious bill or the bill has a religious purpose—which, of course, gets it marked unconstitutional relatively easily.

This kind of outcome rests not on careful legal analysis but on a fundamental misunderstanding of what motives are. Though courts can and should examine motives in limited cases, they do so not to evaluate the motives per se but to use the motives “as a hermeneutical key to help explain the contours of the legislation,” when legislators claim, for example, that a bill is racially or religiously neutral but it is not.

Chapters 4 and 5 tackle specific issues. Chapter 4 considers Steven Pinker’s dismissal of human dignity. Beckwith does not reject the Harvard psychologist’s position; he simply shows that a rival account of human dignity is plausible. The broader point here is that there are (at least) two rival, rationally compelling visions of who we are and what our nature requires. Pinker and his rivals have metaphysical and political positions that are open to objections. Pinker may be right for all that, but no one can easily dismiss as religious nonsense a believer’s appeal to dignity. In chapter 5, the author pursues a similar strategy with abortion. Again, the point is not to argue for a specific position. (He has done that before). Instead, he wants to show, again, that the abortion debate cannot be reduced to a religious position versus a nonreligious one. These are enormously helpful and clear distinctions, and they strike me as eminently sensible.

It always piques my interest when someone approves of a court decision but voices reluctance over the reason the court itself gives. When discussing Burwell v. Hobby Lobby (2014), Beckwith says there’s “much to commend” in Justice Samuel Alito’s opinion, especially “for any advocate of taking rites seriously.” But, he adds, the majority opinion frames the question of religious knowledge in a way “consistent with (although not necessarily supportive of) the court cases and legal scholarship . . . which treat religious beliefs as if they could never in-principle be deliverances of reason.”

Beckwith quotes from the opinion—which talks about the business owners’ “sincere religious belief that life begins at conception”—and says, “This is true enough, but it diminishes the intellectual credentials of the position held by the business owners.” As he writes later on in the book, “We have come to correctly believe that certain disciplines and areas of study—such as history and mathematics—are knowledge traditions,” but “religious beliefs and their attendant notions are for the most part characterized differently,” which is, for Beckwith, a terrible mistake.

Chapters 6 and 7 explore two contentious topics that usually pit unbelievers against believers.  Chapter 6 looks at the teaching of Intelligent Design—as an alternative, supplement, or rival to evolution—in the public schools. Chapter 7 explores debates over same-sex marriage.

Beckwith notes how many advocates of same-sex marriage embrace what he calls, following Gerald Gaus, “justificatory liberalism,” a position that holds that state coercion is only justified if the coerced citizen would be irrational in rejecting the reason for that coercion. Same-sex marriage advocates assume that objections to it arise exclusively from reasons (like religious ones) that citizens may reasonably reject. The result: “Because the right to marry is a fundamental liberty (and thus a Constitutional essential), the state may not justly restrict marriage to one man and one woman.” As he says, exactly this kind of reasoning seemed to prevail in Obergefell v. Hodges, last year’s Supreme Court case mandating the legalization of same-sex marriage.

But he adds an elegant wrinkle to this straightforward conclusion: In the future, opponents of same-sex marriage will be coerced even though they are not irrational in rejecting the reason for coercion. The very argument that establishes this new definition of marriage undermines any case for its implementation. That’s an ironic result, and it’s nicely played.

Readers are given many examples of actual or possible coercion. Here’s one: Beckwith reminds us about the New Mexico photographer who faced a stiff fine for declining to photograph a same-sex ceremony. (He chooses his words carefully; it was before same-sex marriage was legally recognized.) Elaine Huguenin and her husband, the co-owner of the business, eventually lost their case in the New Mexico Supreme Court.

Now Beckwith turns to some fanciful but instructive examples:

It is difficult to imagine the Huguenins being fined if they had declined to photograph the honeymoon rather than the commitment ceremony. Or suppose a brothel in Nye County, Nevada, where prostitution is legal, tried to hire the Huguenins to take a group photograph to be used for the business’s Christmas card . . . . Should the Huguenins have a right to refuse?

If they have that right, then they should be able to refuse to photograph a same-sex marriage ceremony. If they do not have that right, then justificatory liberalism is false, because we can and should be coerced even when it is reasonable to reject the reason for coercion. But remember, justificatory liberalism is one part of the supporting argument for same-sex marriage, so advocates presumably have to accept it. But if they do, then the Huguenins should be able to photograph what they want and not photograph what they don’t want.

One obvious objection: What about racists? “The problem with this analogy,” Beckwith writes, “is that it begs the question.” There’s also good reason to reject it. Dissenting from same-sex marriage is not about people as people but about what constitutes the good life. Beckwith cleverly quotes Ronald Dworkin for support on this point and then adds that justificatory liberalism arose in the context of, and was designed to support, meaningful, free, and strong disagreement about what constitutes the good life. Those wanting to squash opposition to same-sex marriage actually want to prohibit the open and honest inquiry about the good life that justificatory liberalism is supposed to promote.

In closing, I offer two comments.

First, I wish Beckwith had made more explicit how chapters 6 and 7 fit with the book as a whole. After all, the Intelligent Design chapter isn’t arguing for the reasonableness of a religious position. It is instead a criticism of Intelligent Design, along with a vigorous defense of a rival account of nature. Chapter 7 is closer to the book’s stated task, but the author could have emphasized how problems arise in debates over same-sex marriage when elites don’t take religious beliefs seriously.

Second, it would have been interesting for Beckwith to coordinate elite opinion on religious beliefs not simply with legal theorists but also with religious believers themselves—as well as the religious traditions of the judges issuing opinions in these cases.

Here’s one example: Justice Brennan’s opinion in the above-referenced case from 1976 alludes to the decision in Watson v. Jones (1871). In this earlier case, which concerned a dispute among Presbyterians fighting for control of a local church, the majority affirmed what Beckwith does about religion, but Brennan denies. It’s not quoted by Brennan in his opinion, but it’s worth quoting in full:

Each of these large and influential bodies (to mention no others, let reference be had to the Protestant Episcopal, the Methodist Episcopal, and the Presbyterian churches), has a body of constitutional and ecclesiastical law of its own, to be found in their written organic laws, their books of discipline, in their collections of precedents, in their usage and customs, which as to each constitute a system of ecclesiastical law and religious faith that tasks the ablest minds to become familiar with. It is not to be supposed that the judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest men in each are in reference to their own. It would therefore be an appeal from the more learned tribunal in the law which should decide the case to one which is less so.

What a difference a century makes. An 1871 decision says a denomination is a more learned tribunal about religious affairs than the Supreme Court. But today even those on the Court who take rites seriously can marginalize religion’s intellectual pedigree, as Beckwith shows.

How do we explain such a dramatic shift? We can look at the trajectory of legal theory, of course. Beckwith does this very well. But we can also look at changes in American religion, in the pews and also in our courts. Do today’s nondenominational churches have a body of religious knowledge “that tasks the ablest minds to become familiar with”? Many American Christians may agree with Brennan, not Beckwith, about the nature of faith.

Or consider the Supreme Court, composed entirely of Roman Catholics and Jews. Does Justice Alito’s 21st century Roman Catholicism inform him about what faith is? It’s not just legal theory, surely. That’s all to say that religious believers themselves may share some of the blame for the legal handling of these matters today. Or maybe it’s to say that Beckwith has another book to write in order to teach Christians to take rites seriously, too.

I’ve not read everything Beckwith has written, but this is the best thing by him that I’ve read. Those outside the academy will find this a particularly good introduction, not simply to the relationship between religious beliefs and law generally, but also to the broader cultural debates we are having about human dignity, personhood, origins, and sexuality. And Taking Rites Seriously will do well in a class on the philosophy of law, at either the undergraduate or graduate level. Chapters 2 and 3 are, by themselves, worth the price of the book.