Hobby Lobby without God

Ronald Dworkin’s posthumously published Religion without God could instead have been called Law without Religion.

The book is founded in a great hope: that religious believers can be persuaded that they have more in common with atheists than they may think, and vice versa. Dworkin believes that “the zealots have great political power in America now” and that “militant atheism” is “politically inert” (though it is, he adds, “a great commercial success”!).

“Theists share a commitment with some atheists that is more fundamental than what divides them,” he writes, and likewise, atheists can “accept theists as full partners in their deepest religious ambitions.” From there he concludes that there is no special right to religious freedom enshrined in, for example, the Religious Freedom Restoration Act of 1993.

“Religion is deeper than God,” says Dworkin, because the belief that God underwrites value “presupposes a prior commitment to the independent reality of that value.” So-called “religious atheists” and theists share two central judgments about value: “The first holds that human life has objective meaning or importance.” And “the second holds that what we call ‘nature’—the universe as a whole and in all its parts—is not just a matter of fact but is itself sublime: something of intrinsic value and wonder.” In this way, Tillich and Spinoza are coreligionists even though Tillich is a theist and Spinoza is, by Dworkin’s lights, a religious atheist.

He is not simply pursuing these questions in the philosophy of religion for their own sake. He wants to use this conclusion—that we can have religion without God—as a premise in a new legal argument. That’s why I think the volume could have had a different title altogether. It makes a serious and controversial claim—at one point, Dworkin even writes, “Do you find that shocking?”—namely that if atheists can be religious, then theistic religions should not receive a right to special protection exclusive of atheistic religions.

Qualifying the scope of a right to special protection, however, creates a legal muddle: Given that there can be religion without God, “protection cannot sensibly be limited to godly religions.” However, “neither can we sensibly define it as embracing all the convictions that fall under a more generous account of religion.” The result is that “we should consider abandoning … the idea of a special right to religious freedom … and consider … applying … only the more general right to ethical independence.”

The concrete example he offers is that, when the U.S. Supreme Court ruled against the Native American Church in Employment Division v. Smith, the U.S. Congress passed the Religious Freedom Restoration Act, “a declaration that religion needs more protection than general ethical independence offers.” He finds that “the Court was right as a matter of political morality and Congress wrong”—that is, religion does not need more protection than what general ethical independence offers. On prohibiting peyote use even in religious ceremonies, Dworkin writes: “That priority of nondiscriminatory collective government over private religious exercise seems inevitable and right.” Given a fairly small set of premises, then, Dworkin can conclude that “religions may be forced to restrict their practices so as to obey rational, nondiscriminatory laws that do not display less than equal concern for them.”

Where we end up is that the “liberal positions” become mandatory on homosexuality and abortion, as does “gender equality in marriage.” Presumably, Dworkin would not be pleased with the recent U.S. Supreme Court ruling in Hobby Lobby’s favor.

Are these arguments persuasive? I don’t think so. For Dworkin, a deeper commitment to value exhaustively defines a religious outlook, but I am not persuaded that this is right. C. John Sommerville’s Religion in the National Agenda: What We Mean by Religious, Spiritual, Secular, for example, explores the way various words in our national discourse are used, and I think the commitment that Dworkin describes is best characterized by the word spiritual rather than religious. Certainly, there are atheists who “find the Grand Canyon not just arresting but breathtakingly and eerily wonderful.” But is feeling “eerily wonderful” in the presence of the Grand Canyon properly described as religious? I’m not so sure. But perhaps I’m wrong.

If I am, though, Dworkin’s still not off the hook. If the responses really and truly are properly described as religious, then the book should offer a detailed account of how these religious responses do not serve as premises in arguments for God’s existence. The book should wrestle much more than it does with the possible theological implications of its views. Indeed, it’s curious to read an atheist who endorses so many of the premises of an argument for God’s existence, but not the conclusion. For example, I wish he had read and responded to C. Stephen Evans’s Natural Signs and the Knowledge of God. Evans uses just these kinds of responses to nature and to life to argue for God’s existence. If Dworkin’s responses really are religious, then he needs to do more to show how he avoids belief in God in the midst of them.

Finally, authority is missing completely from the book’s account of religion. That’s a big mistake. It’s not simply that religious people have deeply held commitments to value or that they have certain reactions to beautiful scenery. They think that a proper, nongovernmental authority—God or the Bible—commands unflinching obedience. Dworkin quotes the Casey decision’s “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” with unreserved approval. But he is insensitive to the fact that, for religious believers, the goal is not to define one’s own … anything; it is, instead, to live in accordance with, for example, what God commands. The Green family (the owners of Hobby Lobby) are not trying to express themselves or define the mystery of human life. They simply want to do what they think God is telling them to do. They understand religious authority; Dworkin does not. In fact, the word “authority” occurs only once in the book, when the author calls Stuart Hampshire “an eminent Spinoza authority,” meaning an expert. For the Green family, God is more than an expert. He’s God.

Dworkin says that he can get “religion without God” but, as I was reading this, his last book (he passed away in early 2013), I kept thinking of people who say they are “spiritual but not religious.” That’s really what Dworkin gives us here. But unfortunately for him, that won’t get him what he wants. It’s only when even atheists can be religious that Dworkin can suggest that a “general right to ethical independence” should take the place of “a special right to free exercise of religious practice.” But he’s wrong about what religion is, so he cannot get the conclusion that he desires.

To see why he’s wrong on religion, let’s take his own example, the Native American Church. He writes: “If the Native American Church is entitled to an exemption from the drug-control laws, then Huxley followers would also be entitled to an exemption, and skeptical hippies would be entitled to denounce the entire drug-control regime as a religious establishment.” The underlying rationale is that the followers of Aldous Huxley should be treated as a religion and, because it’s absurd to give hippies drugs, it should be just as absurd to let the Native American Church use peyote.

That’s what Dworkin thinks, but I think it’s far more obvious that this analysis demonstrates that he has an inadequate conception of what a religion is. Disagree? Imagine asking the members of the Native American Church whether or not it is a religion. The answer is obvious. Imagine asking hippies, “Hey, are you all religious?” The answer is equally obvious. “No,” they will reply, “we’re spiritual, but we’re not religious.” Exactly.

Reader Discussion

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on August 27, 2014 at 11:23:54 am

If we take his definition of religion seriously, it has interesting and important implications for our establishment jurisprudence.

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Richard S
on August 27, 2014 at 12:54:22 pm

What is the distinction between dictates of God and conscience? Socrates was charged with impiety and died for his beliefs, which is more than we can say for most overtly religious people. (Although it might be argued that Socrates was overtly religious, given his final words.) As Bruce might acknowledge, Socrates himself is particularly missed….

In the abstract, I find no distinctions between the dictates of God and conscience. If I violate either, I can anticipate discomfort both now and in the future. As Alfred Korzybski remarked, “God may forgive your sins, but your nervous system won’t.” Acting contrary to your beliefs has inescapable consequences, regardless of the source of those beliefs. And I expect most of us are accustomed to bearing those consequences, regardless of the sources of the beliefs we transgress; we all make compromises.

So, does it make sense to privilege some claims over others? And, in particular, is it administratively feasible to draw a distinction between claims based on factors that are not readily ascertainable to observers such as judges and juries?

Yet arguably the more relevant question is narrower: What significance should we attach to the Free Exercise clause of the First Amendment?

If you want to find a high-minded interpretation that conforms to much of our caselaw, you can focus on individual integrity. Thus, even atheists can have a legally cognizable basis for contentious objection. This, I surmise, is what Dawkins is driving at.

Yet I’m tempted by a less high-minded interpretation. Alternatively we can understand the Free Exercise clause as an exercise in crowd control: It says, in effect, “Where it will be impractical to impose uniform laws on some segment of society, don’t; let’s make a virtue of necessity and declare a freedom to do that which we lack the administrative capacity to keep them from doing.” Thus, the definition of “religion” is any behavior that is engaged in by people who are either sufficiently numerous, sufficiently adamant, sufficiently sympathetic, or some combination thereof, as to make the social cost of behavior modification greater than the benefit.

Under this understanding, Thoreau does not practice a religion -- not because he isn’t sincere, or because of his views on God, but because he doesn’t have enough followers, or his followers are not sufficiently organized, to pose a problem for the state. In contrast, followers of Falung Gong practice a religion, regardless of the content of their beliefs, because they’re numerous, dedicated, and very well organized. As a contrasting example, individual contentious objectors to military service might well qualify as having religious beliefs -- not because they are so numerous, but because the nature of military service today makes unwilling participants more of a hindrance than a help.

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on August 27, 2014 at 16:26:25 pm

“Religious atheists” and “gay marriage” are newspeak. When intellectuals change the meaning of words they are trying to win an argument by stealth that they cannot win honestly.

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Ron Johnson
on August 28, 2014 at 10:46:39 am

Hey Nobody!

Rather interesting post here and one in which I find myself in partial agreement.

First: one I would argue against:
"Thus, even atheists can have a legally cognizable basis for contentious objection. This, I surmise, is what Dawkins is driving at."
I suspect that Bruce is closer to Dawkins motives than are you. There is more to this argument that a simple conscience protection. Underlying it is the chance to provide legal cover for all sorts of currently socially, shall we say, unsanctioned behavior. An example from today's headlines - A Federal Judge has just decided that Utah's polygamy laws may not stand as it affects both an individuals conscience and religious rights. Add other behaviors as you may see fit - but that is, and has been the goal of folks such as Dawkins.

With respect to your comments on the definition of, and the status of religion, both now and with the Framers, while I would choose to word it differently, there is merit in what you say.

Religion is both a construct and an enabler of civil society. That is to say, that you do not have a religion if there is only one adherent. No, a religion requires some form of civil society, however primitive it may be. It unites that society behind a common perception of the universe. Attendant upon this is a wealth of beliefs, mores, morals, etc. that define who that people are, their place in the world and their obligations to each other, both individually and as a whole society.
Should such a belief / moral structure be afforded recognition by that society?
The answer is quite obvious. It always has. Indeed, it may be said that the society itself is a simple reflection of those religious beliefs (as true for paganism, Greek mythology, etc. as it is for the Abrahamic religions).
And while it is true that the Framers were practical men, and recognized that it was pointless to try to prohibit that which they would be unable to prohibit, there was certainly something more involved in their decision to provided Constitutional protection to religious belief AND expression.
If it is true, as i have argued, that religion is not only conducive to moral and civil behavior (generally speaking) but is the genesis of such behavior, then there is a clear need to encourage the continuation of such behavior if that society is to succeed. Consider all the comments made by the Framers regarding virtue. They knew that virtue did not spring full born out of Medusa's head. Rather, it had to be nurtured. Considering that the modern system of inculcating virtue would appear to be the public school system (such as it is and modern morals being that which they are), we must ask was such a system available at the time of the Founding. Quite simply - No! Education was sparsely available, if at all. What then was the best available means for inculcating the morals, ethics and, yes, virtue of which the Framers spoke. Religion could, and did, provide, as it had always done a means for infusing the young with the virtues, morals and practices of that society.
Yes, there were competing visions, and the Framers were aware of the "recent troubles" arising from those differences; and. as you say, recognized the folly of trying to stop that which they could not stop - sectarian fighting - they wisely chose to afford protection to all sorts of religion. More than likely this was based on the recognition, that all of the contending religions were Abrahamic / Christian, and that those creeds were in substantial "moral" accord, each would, separately and / or collectively, conduce to good citizenship.

This, of course, leads us to the question, which I suspect Dawkins is really raising: In today's America do we really still require religion to inculcate societal values and consequently, are religious protections still purposeful and deserving of special recognition?
Without such protections, Dawkins is, perhaps, opening the way for the sanctioning of all sorts of previously unsanctioned behaviors. good or bad? A matter of indifference to some. Yet, it gets at the core of what a society is; from where does it receive its motivating principles; to where or to whom does it seek ultimate justification.

Do we reduce a society to a mere exercise in Public Choice Theory? or on unrestricted individual autonomy? or any other theory or practice?

Anyway, good post.

take care

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on August 29, 2014 at 00:30:07 am

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on September 11, 2014 at 00:06:26 am

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Hobby Lobby Without God

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