Smith remains good law. Yet Fulton appears to have rewritten its meaning.
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.