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Religious Belief, Religious Liberty, and the Art of Taking Rites Seriously

Some years ago at the law school at Texas Tech University, I delivered a lecture on the question of whether the teaching of Intelligent Design (ID) in public schools would violate the U.S. Constitution’s Establishment Clause. During the question and answer session afterward, a professor from one of the university’s science departments exclaimed: “Your talk consists of cleverly disguised religious arguments.” To which I immediately replied, “I’m relieved. I was afraid you were going to accuse me of making bad arguments.”

The professor had noted, correctly, that the case made by ID advocates seems to lend support to an understanding of nature that is congenial to certain types of theism. This, by itself, apparently was enough for him to label my legal and philosophical arguments religious, which, in his mind, was equivalent to saying that they were outside the purview of rational assessment. The adjective “religious” served the purpose of alerting the audience that the speaker—yours truly—was not really who he claimed to be—a rational actor offering arguments for one side of a contested public question—but rather, a malevolent poser who was purposely misinforming his audience.  For the professor, I was confusing the question of how two different subjects—science, which deals with reason, and religion, which concerns faith—may approach reality, with the question of how two contrary approaches to the same subject—biological evolution—may be legally accommodated in public school science curricula.

Although, as I argue in chapter six of my new book Taking Rites Seriously, I agree with the professor’s rejection of ID, I am convinced that it is a mistake to portray such public disputes as merely conflicts between faith and reason (or “religion” and “science,” or something to that effect). They are more accurately described as clashes between differing understandings of reason, or contrary accounts of the nature of nature.

This is why my chief criticism of ID (which is shared by many theists, by the way) does not get into the thickets of the science, since that is not where the action really is. What I argue is that the leading arguments for ID presuppose a mechanistic philosophy of nature identical to the one embraced by its naturalist critics, and there are many good reasons to reject naturalism without having to also reject the deliverances of modern science, including evolutionary theory. Thus, whether or not a purported scientific theory is “religious,” or any of its rivals “anti-religious,” is simply beside the point in critically assessing it as a theory. One will miss that essential lodestar if one does not first determine what question that theory, or any of its rivals, is trying to answer, and whether that answer is relevant to the metaphysical questions on which the plausibility of rival worldviews (for example, theism versus naturalism) ultimately depends.

A similar kind of clarifying analysis may be applied to other public conflicts over which disagreement falls mostly along religious lines. Consider, for example, how religious liberty claims are often flattened or diminished in cases involving owners of private businesses who refuse to materially cooperate with the performance of a same-sex wedding in jurisdictions that prohibit discrimination based on sexual orientation.

The most well-known cases have concerned a baker in Colorado, a photographer in New Mexico, and a florist in Washington state. In each case, the proprietor declined to do business with a gay or lesbian couple who tried to procure their services for a ceremony or event that celebrated the couple’s wedding. The courts, in every case, ruled in favor of the complainant couple, maintaining that the proprietor, by declining service, discriminated against the customer based on his or her sexual orientation in violation of the jurisdiction’s antidiscrimination law.

Although the owners offered overlapping accounts of what grounds their religious liberty claim—the Constitution’s First Amendment, a state constitutional provision, a state’s version of the federal Religious Freedom Restoration Act—that is not important for the point I am trying to make here. What is important is to see how the courts in these cases missed the actual question over which the owners and their legal adversaries disagree. In all three cases, the defendants—the baker, the photographer, and the florist—argued that they had not in fact violated the antidiscrimination law, since their decision to decline service was based on the nature of the event with which they were being asked to materially cooperate, and not on the sexual orientation of their prospective customers.

Yet, the courts rejected that argument. As the New Mexico Supreme Court asserted in the case brought against the photographer: “When a law prohibits discrimination on the basis of sexual orientation, that law similarly protects conduct that is inextricably tied to sexual orientation.” (The opinions in Colorado (link no longer available) and Washington (link no longer available) employ this same wording, with the latter citing the New Mexico case.)

This reasoning is specious, not because it may not be a reasonable construal of the jurisdiction’s antidiscrimination law, but because it does not take rites seriously. It assumes that a wedding is simply a type of conduct “inextricably tied to sexual orientation.” That may be how some people understand weddings, just as some people think of marriage as “just a piece of paper” or “a good investment.” But for many or most citizens, weddings, like baptisms, bar mitzvahs, burials, and ordinations, are inextricably tied to a transcendent reality to which these events point and by which they are imbued with meaning and significance. For those citizens, an authentic wedding, whether civil or sacramental, marks the beginning of a natural marriage that participates in the eternal law through the natural law. Thus, for the civil law to require that such citizens either materially cooperate with what they believe is a mockery of natural marriage or suffer massive financial penalties seems almost a paradigmatic case of what Thomas Jefferson had in mind when he wrote, “No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”

To see why this is so, consider the fictional case of Russell Less, a professional photographer who happens to be a devout Southern Baptist. One of his clients, Aristotle Jones, who is Greek Orthodox, tells Russell that he would like to hire him to photograph the baptism of his newborn son, Socrates. As a Southern Baptist, Russell holds to the doctrine of “believer’s baptism,” and thus does not believe that the baptism of Socrates would be an authentic baptism. In fact, if Socrates were to become a Southern Baptist in his teenage years, Russell would tell him that his infant baptism did not count and that he would have to be baptized again.

Russell tells Aristotle that he would be more than happy to photograph the entire Jones family—either individually or collectively—in or near any body of water, including pools, rivers, streams, oceans, seas, and gushing fire hoses. However, Russell explains, he cannot materially cooperate with the performance of a ceremony (in and near water) that he is convinced is not what Aristotle and his family think it is, an authentic baptism. For Russell, as with Aristotle, baptism is a practice required by his faith because it was commanded by Christ. However, as Russell understands that command, only believers can be baptized, and babies aren’t believers. He admits to Aristotle that other Baptist photographers may have a different opinion on whether they would participate in the ceremony, but he cannot in good conscience do so. Aristotle thanks Russell for his candor and friendship, and a week later finds a Catholic photographer who is more than happy to take pictures at Socrates’ baptism.

Except for its neighborly ending, this story is almost perfectly parallel to the same-sex wedding cases. This is because for most citizens, a baptism, like a wedding, has transcendent significance even if some of the participants, attendees, or observers cannot see it that way (as in the case of a baptism where some of the attendees view it as no more than a perfunctory tradition). A judge who takes rites seriously would easily be able to distinguish Aristotle’s religious beliefs from his liturgical practices, just as the judges in the same-sex wedding cases should have been able to easily distinguish the plaintiffs’ sexual orientation from the ceremonies they believe solemnize their unions.

With those conceptual distinctions in hand, the judges could have reasoned thusly:

“The purpose of this law is to prohibit invidious discrimination. The defendants, in this case, appealing to our state’s religious liberty provisions, claim that they cannot materially cooperate with a same-sex ceremony. Because weddings, like baptisms, confirmations, ordinations, and burials, are central to their theological tradition, it is clear that their choice to decline service is borne of reasonable convictions and not invidious motives. This case is not about a business declining to serve gays and lesbians because of their sexual identity; it is about whether the state may punish and fine citizens who are unwilling to materially cooperate with liturgical events beyond the outer limits of what their faith teaches is permissible.”

To be sure, our public questions become more complicated, and our adversaries more difficult to demonize and caricature, when we take rites seriously. But justice demands nothing less.

Reader Discussion

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on May 27, 2016 at 09:59:36 am

Science and Christianity are both logic driven, see e.g., Aquinas, et al, but science empirically investigates it's hypotheses whereas Christianity has a harder time with this. This confusion causes a great deal of mischief. For example, climate change advocates claim it to be scientific because they have a rational hypothesis, when they are actually doing philosophy because their hypothesis is not structured so as to be empirically falsifiable. Given this distinction, intelligent design could be doing either philosophy or religion depending on how it is presented and how one defines "religion."

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Ron Johnson
on May 27, 2016 at 10:01:58 am

Professor Beckwith,
You seem to address two topics: civics v privacy and partners v couples. At issue is discovered physics as the facts of reality.
Recalling Michael Polanyi’s book, Personal Knowledge, 1958, I appreciate your quest for personal liberty. I also appreciate that most of the book is dedicated to disparaging what I trust and committed to: the objective truth of which most is undiscovered and some is understood. It seems Polanyi argues that science and Polanyi’s Christianity are equal in their trajectories toward personal liberty. He quite appropriately leaves it to other theists to make the case for their theisms.
Albert Einstein, in a 1941 speech for a conference on science v religion (see Einstein’s essay at www.samharris.org/blog/item/my-friend-einstein), argues that science and ethics have the same source. Einstein’s only example is that a civic speaker does not lie, so that the listener’s response will not address a lie.
Both of these great writers are making the same point, but their views are constrained by the word “science,” which is the study of physics and its derivatives: plasma chemistry, inorganic chemistry, Earth, life on earth, homo species, imagination, culture, language, and so on. Physics is mass, energy and space-time from which everything on earth emerges, including opinion and its progeny, religion. Thus, the god hypothesis comes from physics and so far has been neither proven nor disproven.
However, most theories about gods have flaws and therefore do not lead to evidence for the associated god hypothesis. In fact, it seems, no known god hypothesis stands up to the test for evidence, so the hypothesis itself remains an entity without known justification. If this reasoning seems cogent, it could be held as another evidence that discovery and understanding of the physics of a civic question leads to the facts of reality. Just as physics requires that a civic debate excludes lies, a civic debate excludes god hypotheses and other matters of opinion.

Your post addresses defense of marriage. Understandably, heretofore, civic marriage legislation has not been informed by physics. At issue is appreciative bonding vs procreation. Appreciative bonding is obviously the right of consenting adults, and such bonding can be platonic. State marriage licensing makes automatic the association of progeny with the spouse that conceived the child, and usually, cases with no marriage license are treated as common-law marriage. Quite foolishly, Congress based the defense of marriage act on Judeo-Christian tradition, an obvious risk that its unconstitutional status would decide its fate.
An incredulously unconstitutional US supreme Court (IMO), led by an unconstitutional administration (IMO), took advantage of the Congress’s unconstitutional folly to 1) bring the uncontested settlement with Windsor to a hearing and 2) draw the obvious conclusion: DOMA was unconstitutional. The Congress could have come back with a physics-based act, but the idea of physics, in other words, the facts of reality, as the basis of settling civic debate had not emerged in the public sphere. At stake is not the opportunity for persons to rebuke physics but rather a civic people’s duty to not encourage defiance of physics. But it has to start with physics-based morality rather than religious morals as the basis for legislation.
Thereby, a baker who offers wedding cakes can separate the issues for the bakery. They can offer partners’ wedding cakes as well as couples’ wedding cakes. Also, they can advertise exclusive products, making it plain that people seeking other products not apply there. Similarly, someone does not demand kosher food at a Greek-Lebanese grocery.
Our goal is to persuade 65% of Americans from every real-no-harm (RNH) factional culture to collaborate for private liberty with civic morality (PLwCM) and its corollary private morality with civic liberty (PMwCL). The theory of a civic people is posted on our website. Key features are personal privacy and civic collaboration using physics-base morality to mediate the facts of reality, such as citizens don’t lie so their agreements don’t involve lies.
We appreciate your post and the possible collaboration for a better future that it opens.

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Phil Beaver
on May 27, 2016 at 10:17:49 am

New in the debate is that "science" is a study and its object is physics, from which the facts of reality on Earth emerge. The hypothesis that a god caused physics or one of the derivatives, such as life, has not been disproved. However, none of the god theories has affirmative evidence.

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Phil Beaver
on May 27, 2016 at 10:54:43 am

“The purpose of this law is to prohibit invidious discrimination. The defendants, in this case, appealing to our state’s religious liberty provisions, claim that they cannot materially cooperate with a same-sex ceremony. Because weddings, like baptisms, confirmations, ordinations, and burials, are central to their theological tradition, it is clear that their choice to decline service is borne of reasonable convictions and not invidious motives. This case is not about a business declining to serve gays and lesbians because of their sexual identity; it is about whether the state may punish and fine citizens who are unwilling to materially cooperate with liturgical events beyond the outer limits of what their faith teaches is permissible.”

1. Invidious: What does that mean? As far as I can tell, the word reflects a conclusion (“illegal”), not a description.

2. Theological tradition, pt. 1: The KKK is part of the Christian Identity Movement, has the tradition of gathering around a flaming cross, and espouses beliefs about limiting interactions between races. Should non-black members of the KKK be entitled to refuse to extend services to black people based on their “theological tradition”? Should judges be called upon to evaluate questions “what [a defendant’s] faith teaches is permissible”?

3. Theological tradition, pt. 2: Jesus brings suit against Orthodox Jews who refuse to sell him goods and services. The Jews explain that they’ve observed Jesus using their goods and services to heal people on the Sabbath, a practice the Orthodox Jews oppose. The Jews countersue Jesus for withholding his carpentry skills to help them erect a sign saying, “We STILL await the Messiah!,” a message that conflicts with Jesus’s message. The judge observes that Orthodox Judaism has a long religious tradition, whereas Jesus seems to be engaged in some novel practices and thus cannot make the same claim to tradition. Under US law, should we say that the Jews are entitled to greater deference than Jesus based on the age of their respective practices?

(Analogously: If two people articulate identical reasons to object to being drafted, but one of them is a Quaker – a faith with a long tradition of pacifism -- while the other subscribes to a nondenominational faith which has no specific tradition to call its own, should draft boards look upon their claims differently?)

4. “Materially cooperate with liturgical events”: Should courts permit merchants to withhold goods and services that might be used for a wedding conducted in a manner that differs from the merchant’s religious practices? Might a number of religious minorities (Jews) find themselves in difficult circumstances if merchants all had

5. “Cooperate”: How far does “cooperation” extend? Would a gas station be entitled to withhold fuel that might be used for a car to drive a married couple to and from a wedding that would differ from the gas station owner’s religious practices? Could a car repair shop be entitled to withhold repair services? Could a car vender be entitled with refuse to sell? Could the electric utility be entitled to withhold electric service to a house of worship?

I appreciate the desire to reform our antidiscrimination laws to accord some greater leeway for conscience. I’ve previously offered my Antitrust Affirmative Defense as a means to reform antidiscrimination laws. They would let the baker, photographer, and florist off the hook, provided these merchants could offer appropriate referrals.

That said, I fear Beckwith’s proposal would lead to a hopeless morass.

I can’t help but wonder if asking courts to scrutinize faith is the wrong way to go. Rather, let’s ask courts to scrutinize government policy: Scrutinizing bona fide governmental purpose, nexus between purpose and policy, etc. But once a policy passes that test, we’re done. The fact that racial discrimination, or whatever, is supported by a long tradition really should not be relevant to the court’s analysis.

Sure, people should be able to practice their faith as they deem appropriate -- but they should not be free to shift the burdens of their practice onto others. Let them practice civil disobedience, and bear the consequences of it. That’s a proud religious tradition, too.

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nobody.really
on May 27, 2016 at 16:09:16 pm

I share Beckwith’s rejection of the “religious” vs. “secular”/”scientific”/”rational” dichotomy for purposes of Establishment Clause analysis.

I argue that government should evaluate what it does relative to the standard of a bona fide governmental purpose. If a policy meets that standard, then it may well pass Establishment Clause muster regardless of whether a person can also characterize it as religious.

- After all, imagine an accused murderer arguing that prohibitions on murder reflect an unconstitutional imposition of Judeo-Christian norms in violation of the Establishment Clause. As a historical matter, the defendant might have a point about the origins of the prohibitions on murder – but who would care? In short, why should government discriminate against an otherwise sound policy merely on the basis of religion?

- Similarly, imagine government put out a request for proposal (RFP) for paperclips, and the low-cost bidder meeting all relevant qualifications was a branch of the Church of Scientology. Should it matter? Now imagine government put out an RFP for running a charter school, and again the low-cost bidder is a branch of the Church of Scientology. Should it matter? After all, every teacher conveys incidental lessons to kids. Black teachers convey a message about blacks; female teachers convey a message about women; male kindergartener teachers convey a message about men in nurturing roles; etc. Why should government put itself in the role of discriminating against certain messages just because they have a religious component? Why should government discriminate on the basis of religion?

Alas, government does not always share my view.

The Supreme Court’s Lemon Test prohibits government policies that, even if otherwise justified by bona fide governmental purposes, might result in “excessive government entanglement” with religious affairs. In short, the Court has articulated a test that discriminates on the basis of religion – in this case, against religion. Weird, weird, weird….

In the meantime, Congress has passed, and the Supreme Court has largely upheld, the federal Religious Freedom Restoration Act, which again involves government in discriminating on the basis of religion – in this case, for religion. Weird, weird, weird….

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nobody.really
on May 27, 2016 at 16:15:25 pm

Again, I favor judging policies based on their bona fide governmental purposes, regardless of their “religious” content, and caution against an undue reliance on the secular/religious dichotomy. That said, if government identifies a bona fide purpose in teaching science as a distinct subject, it may behooves government to teach science distinct from other subjects.

Thus, I can’t evaluate Beckwith’s account of her lecture at Texas Tech. A “cleverly disguised religious argument” may have a variety of merits – yet still be inappropriate for a science classroom. We might be equally suspicious if we learned that the new superintendent, who also teaches voice lessons, wanted to have all science classes playing operas so that students could better appreciate the concepts of sound and vibration. The point is not that this would be “bad,” but merely that it might tend to distract from the class’s focus on topics more central to the curriculum.

(Compare: What to say about history teachers who give classroom time to emphasizing the role of tertiary historical actors who happen to be female or black or Muslim, thereby leaving less time for addressing the more central actions taken by the white male guys? Maybe this also reflects a kind of inappropriate religious bias.)

I’ll concede that I share a popular (secular?) defensiveness against “religious” speech. I often feel as if overtly “religious” speakers are trying to sell me something without being entirely candid about it. I feel as if they’re more interested in getting me to “join their team” than in helping me to finding insights that *I* would find meaningful.

-- Yet I can’t recall the last time I spoke to a religious person who had much of a financial interest in influencing my religious perspectives – and certainly not a speaker at a college forum. So what, exactly, do I feel the need to guard myself against?

-- I now know that my grade school math teachers told me all kinds of things (e.g., you can’t subtract a big number from a smaller number) that I now disagree with. I could conclude that these teachers lied to me. Alternatively, I could conclude that they spoke in partial truths tailored to my rudimentary understanding of the subject, designed to ease my learning path, even if they were not always entirely candid that they were doing so. At the end of the day, I feel no animosity toward these teachers because I trust they acted with my best interests at heart. So why should I not extend a similar trust to religious speakers?

-- Sure, religious speakers could be wrong, and might mislead me – but that’s true of every speaker. Why do I harbor greater suspicions about religious speakers?

I really can’t explain it. Any theories?

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nobody.really
on May 27, 2016 at 16:28:31 pm

Your question is worthy of a substantial, learned, respectful response.

Since the question is posted at this site, I think you have every reason to expect replies of this sort.

If - after thought - I have anything at all to offer, I will post my response as well.

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Linda Smith
on May 27, 2016 at 16:46:19 pm

Incidentally --

[C]onsider the fictional case of Russell Less, a professional photographer who happens to be a devout Southern Baptist. One of his clients, Aristotle Jones, who is Greek Orthodox….

Ok, so I get the name Aristotle Jones – he’s a generic person of Greek extraction. Although there’s also a West Virginia musician by that name (and he doesn’t look especially Greek).

But photographer Russell Less? Googled it, but no luck. Is this perhaps a reference to Russell Moore, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention?

I hate feeling like I’m missing the joke….

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nobody.really
on May 27, 2016 at 23:15:54 pm

One theory: Religious speech is rational thought about a hypothesis, whereas the alternative is rational thought about verifiable evidence.

For example, the big bang is dated about 13.8 billion years ago based on residual radiation. That a god caused the big bang is a hypothesis without evidence for the source of energy, mass and space-time, which emerged at the big bang.

Again, life on earth emerged about 3.8 billion years ago. That a god caused life is a hypothesis for which there is no evidence.

When someone cites the god hypothesis, first principles that follow are intellectual constructs with no verifiable evidence.

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Phil Beaver
on May 28, 2016 at 14:51:47 pm

Nobody:

Good and interesting comments as always.

1) "I really can’t explain it. Any theories?"
AND
"I’ll concede that I share a popular (secular?) defensiveness against “religious” speech. I often feel as if overtly “religious” speakers are trying to sell me something without being entirely candid about it."

I don't know if that IS the answer or just a confirmation of your particular sense?

It could be that *only* "overly" religious speakers induce this feeling. I admit to the same *impatience.*
could it be that we, of a certain generation were raised to feel "hip", "with it" and / or more rational than the religious. I find this to be even more pronounced in my young relatives.

But how about religious speakers, let us say the non-evangelistic types. Do you, as I feel comfortable in hearing them. Indeed, I admit to a certain admiration for any who maintain the possibility of hope and, yes, Christian charity as a mode of civic association.

2) "Again, I favor judging policies based on their bona fide governmental purposes, regardless of their “religious” content, and caution against an undue reliance on the secular/religious dichotomy."

Again, I refer back to my dichotomy between a civic good and a public good. Let us assume science is a civic good and may be taught and practiced by the citizenry. There are then few "attachments' to this civic good, other than the clear one that we don't have any old busy Beaver conducting it. When, however, we transform it into a *public* good, a la The Education system, do we not introduce all manner of obligations, appendages, strictures, etc? In so doing, we inevitably raise the specter of unending conflict between various epistemologies and methodologies. Would we be better off, reconverting this good into a *civic* good. Placing our fates, both religious, social and cultural in the hands of jurists who must determine whether GOVERNMENT has a "rational" objective and / or proper means to intervene is somewhat risky. I would rather live with the occasional knucklehead Bill Nye, The Science Guy than to have a faceless governmental agency dictate what can and cannot be taught. Hey, I'll go all Mao on you here: "let a thousand flowers bloom"!

3) I suspect that the feeling to which you admit, "popular (secular?) defensiveness" is shared by far too many of our fellow citizens. A consequence of that is the diminishment of certain other approaches to evolution than Darwinism, or Neo-Darwinism - a theory by the way with a host of explanatory problems, not the least of which is it's inability to explain (away?) the Cambrian Explosion. Many of the ID writers are quite renowned in their fields; it is a shame that this "defensiveness" would cause their views and, yes, their science to be dismissed.

If you want a fun book on the topic - just something to get the old cranial cells working, try a book called Darwins Black Box: http://www.amazon.com/Darwins-Black-Box-Biochemical-Challenge/dp/0743290313

Hey, bro, I ain't trying to persuade - just thought your solid mind would appreciate it.

take care and now back to laying sod!

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gabe

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