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Published online by Cambridge University Press: 14 June 2013
That a ‘secular’ government should not sponsor religious expressions may seem almost like an analytic truth. And yet, in practice, liberal democratic governments often support religious symbols and expressions. So, are governments that purport to be secular and yet support religious symbols or expressions just being hypocritical, or incoherent? This article, written for a conference on ‘Freedom from Religion’ held in Tel Aviv in December 2011, considers three different versions of secularity – what I call the ‘classical’, ‘comprehensive’ and ‘agnostic’ versions – and concludes that none of these versions forbids religious expressions by ‘secular’ governments.
1 cf Maclure, Jocelyn and Taylor, Charles, Secularism and Freedom of Conscience (Todd, Jane Marie tr, Harvard University Press 2011)CrossRefGoogle Scholar 2 (describing a ‘broad consensus that “secularism” is an essential component of any liberal democracy composed of citizens who adhere to a plurality of conceptions of the world and of the good’). For discussion of the prevalence and difficulties of this assumption, see Smith, Steven D, ‘The Plight of the Secular Paradigm’ (2013) 88 Notre Dame Law Review (forthcoming)Google Scholar.
2 Lautsi v Italy App No 30814/06 (ECtHR, 18 March 2011).
3 Salazar v Buono 559 US (2010); Van Orden v Perry 545 US 677 (2005); Elk Grove Unified School District v Newdow 542 US 1 (2004).
4 See, eg, Calhoun, Craig, Juergensmeyer, Mark and VanAntwerpen, Jonathan (eds), Rethinking Secularism (Oxford University Press 2011)Google Scholar; Warner, Michael, VanAntwerpen, Jonathan and Calhoun, Craig (eds), Varieties of Secularism in a Secular Age (Harvard University Press 2010)Google Scholar.
5 For an illuminating discussion, see Stolzenberg, Nomi, ‘The Profanity of Law’ in Sarat, Austin, Douglas, Lawrence and Umphrey, Martha Merrill (eds), Law and the Sacred (Stanford University Press 2007) 29, 35Google Scholar. See also Smith, Steven D, The Disenchantment of Secular Discourse (Harvard University Press 2010)Google Scholar.
6 See Stolzenberg ibid 30–31:
‘The secular’ was, in fact, originally a religious concept, a product of traditional religious epistemological frameworks. The concept of the secular always served the function of distinguishing religious from nonreligious domains. But nonreligious domains did not, in the premodern view, exist outside the religious epistemological framework. On the contrary, that framework of meaning was all-encompassing, overarching, comprehending within it every domain of human (and nonhuman) action and cognition, both the spiritual and the temporal, the holy and the unholy, the ecclesiastical and the secular, the sacred and the profane.
7 cf Ayto, John, Dictionary of Word Origins: Histories of More Than 8,000 English Language Words (Arcade 1990) 465Google Scholar:
secular Latin saeculum, a word of uncertain origin, meant ‘generation, age’. It was used in early Christian texts for the ‘temporal world’ (as opposed to the ‘spiritual world’) … The more familiar modern English meaning ‘non-religious’ emerged in the 16th century.
8 Hilary Putnam describes the common practice by which
philosophers … announce in one or another conspicuous place in their essays and books that they are ‘naturalists’ or that the view or account being defended is a ‘naturalist’ one; this announcement, in its placing and emphasis, resembles the placing of the announcement in articles written in Stalin's Soviet Union that a view was in agreement with Comrade Stalin's; as in the case of the latter announcement, it is supposed to be clear that any view that is not ‘naturalist’ (not in agreement with Comrade Stalin's) is anathema, and could not possibly be correct.
Putnam, Hilary, ‘The Content and Appeal of “Naturalism”’ in de Caro, Mario and MacArthur, David (eds), Naturalism in Question (Harvard University Press 2004) 59Google Scholar, 59.
9 For an instance of this approach, see Rawls, John, Political Liberalism (paperback edn, Columbia University Press 1996) xxiv–xxviiiGoogle Scholar.
10 Horwitz, Paul, The Agnostic Age: Law, Religion, and the Constitution (Oxford University Press 2011) 75Google Scholar.
11 Horwitz's book is an effort to articulate what that approach would entail: ibid.
12 José Casanova explains:
In one form or another, with the possible exception of Alexis de Tocqueville, Vilfredo Pareto, and William James, the thesis of secularization was shared by all the founding fathers: from Karl Marx to John Stuart Mill, from Auguste Comte to Herbert Spencer, from E.B. Tylor to James Frazer, from Ferdinand Toennies to Georg Simmel, from Emile Durkheim to Max Weber, from Wilhelm Wundt to Sigmund Freud, from Lester Ward to William G. Sumner, from Robert Park to George H. Mead. Indeed, the consensus was such that not only did the theory remain uncontested but apparently it was not even necessary to test it, since everybody took it for granted.
Casanova, José, Public Religions in the Modern World (The University of Chicago Press 1994) 17Google Scholar.
13 Peter Berger, ‘A Bleak Outlook is Seen for Religion’, The New York Times, 25 February 1968, 3.
14 Berger, Peter L, ‘The Desecularization of the World: A Global Overview’ in Berger, Peter L (ed), The Desecularization of the World: Resurgent Religion and World Politics (Ethics and Public Policy Center 1999) 1, 2, 9–10Google Scholar.
15 See Conkle, Daniel O, ‘Religious Truth, Pluralism, and Secularization: The Shaking Foundations of American Religious Liberty’ (2010–11) 32 Cardozo Law Review 1755, 1771–73Google Scholar.
16 See, eg, Taylor, Charles, A Secular Age (Belknap Press of Harvard University Press 2007) 539Google Scholar (suggesting that ‘it [is] so hard to believe in God in (many milieux of) the modern West, while in 1500 it was virtually impossible not to’).
17 This thesis runs through Taylor's lengthy book: ibid.
18 For a recent study, see Putnam, Robert D and Campell, David E, American Grace: How Religion Divides and Unites Us (Simon and Schuster 2010) 7Google Scholar.
19 William Cavanaugh observes that in the Middle Ages ‘religio was not a separate sphere of concern and activity, but permeated all the institutions and activities of medieval Christendom’: Cavanaugh, William T, The Myth of Religious Violence (Oxford University Press 2009) 68CrossRefGoogle Scholar. Consequently, ‘religion’ did not designate some category of beliefs or practices in the way it is thought to do today. ‘There was a time when religion, as modern people use the term, was not’, Cavanaugh asserts, ‘and then it was invented’: ibid 81.
20 Graham Greene, The Power and the Glory (Heinemann 1940).
21 See Horwitz (n 10) 80 (‘The new agnosticism is not a negative or disinterested standpoint with respect to questions of religious truth, but one that is deeply engaged and involved in these questions’).
22 In this vein, the take-no-prisoners advocate of atheism, Sam Harris, describes a three-day conference in which various scientists, though atheists themselves (or at least Harris so supposes), suggested that religion might serve useful functions in supporting hope or undergirding values, or that religion and science might not be in conflict with each other. Outraged by this respectful treatment, Harris categorically condemns such irenic views as ‘some of the most dishonest religious apologies I have ever heard’: Harris, Sam, The Moral Landscape: How Science Can Determine Human Values (Free Press 2010) 23Google Scholar.
There were several moments during our panel discussions that brought to mind the final scene of Invasion of the Body Snatchers: people who looked like scientists, had published as scientists, and would soon be returning to their labs, nevertheless gave voice to the alien bliss of religious obscurantism at the slightest prodding.
(ibid 23–24).23 The argument was presented in ‘The Will to Believe’ in James, William, The Will to Believe and Other Essays in Popular Philosophy, and Human Immortality (Dover edn, Dover Publication 1956) 1, 3, 11, 26–27Google Scholar.
24 Novak, David, ‘Law: Religious or Secular?’ (2000) 86 Virginia Law Review 569, 574CrossRefGoogle Scholar.
25 Kenny, Anthony, What I Believe (Continuum International Publishing Group 2006) 64Google Scholar.
26 See Lewis, CS, Mere Christianity (revised and enlarged edn, Macmillan 1960)Google Scholar.
27 See generally Koppelman, Andrew, Defending American Religious Neutrality (Harvard University Press 2013)Google Scholar. See also Lautsi v Italy (n 2) para 60. For scepticism about such professions of neutrality, see Smith, Steven D, ‘The Paralyzing Paradox of Religious Neutrality’ in Schilbrack, Kevin (ed), The Blackwell Companion to Religious Diversity (forthcoming)Google Scholar.
28 See, eg, Joyner v Forsyth County 653 F 3d 341 (4th Cir 2011).
29 See, eg, Newdow v Lefevre 598 F 3d 638 (9th Cir 2010).
30 See, eg, Underkuffler, Laura S, ‘Odious Discrimination and the Religious Exemption Question’ (2011) 32 Cardozo Law Review 2069Google Scholar.
31 At least in the early years of the American Republic, this view was familiar and respectable. Consider Jefferson's Second Inaugural Address:
I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life, who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me.
Reprinted in Noonan, John T Jr and Gaffney, Edward McGlynn Jr, Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government (2nd edn, Foundation Press 2001) 206Google Scholar. I am confident that many devout Americans still hold this view.
32 See Harris (n 22).
33 For an insightful exposition, see Hall, Timothy L, Separating Church and State: Roger Williams and Religious Liberty (University of Illinois Press 1998) 81–86Google Scholar.
34 See generally Rawls (n 9).
35 See Hunter, James Davison, Culture Wars: The Struggle to Define America (Basic Books 1991)Google Scholar.
36 This argument is given at much greater length in Smith, Steven D, ‘Our Agnostic Constitution’ (2008) 83 New York University Law Review 120Google Scholar.
37 See, eg, Kramnick, Isaac and Moore, R Laurence, The Godless Constitution: A Moral Defense of the Secular State (2nd edn, W W Norton and Company 2005) 27–44Google Scholar.
38 Feldman, Noah, Divided by God: America's Church-State Problem – And What We Should Do About It (Farrar, Straus and Giroux 2005) 61–92Google Scholar.
39 See, eg, School District of Abington Township v Schempp 374 US 203 (1963); Engel v Vitale 370 US 421 (1962). For an examination of this development and its consequences, see Smith, Steven D, ‘Constitutional Divide: The Transformative Significance of the School Prayer Decisions’ (2010–11) 38 Pepperdine Law Review 945Google Scholar.
40 See Edwards v Aguillard 482 US 578 (1987).
41 See, eg, Mozert v Hawkins County Board of Education 827 F 2d 1058 (6th Cir 1987).
42 Lynch v Donnelly 465 US 668 (1984).
43 County of Allegheny v American Civil Liberties Union 492 US 573 (1989).
44 Van Orden v Perry (n 3).
45 Elk Grove Unified School District v Newdow (n 3).
46 Steven Shiffrin comments that ‘I am sure that a pledge identifying the United States as subject to divine authority is asserting the existence and authority of the divine’. He adds that ‘pretending [that this and similar expressions] are not religious is simply insulting’: Shiffrin, Steven H, ‘The Pluralistic Foundations of the Religion Clauses’ (2004–05) 90 Cornell Law Review 9, 70–71Google Scholar.
47 See, eg, School District of Abington Township v Schempp (n 39) 306 (Goldberg J concurring):
But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it.