Today’s New York Times has a story about the Oklahoma constitutional amendment, currently stalled in the courts, that would prevent state courts from applying international law or Muslim Sharia law in resolving legal disputes. One unsurprising takeaway from the piece is that the measure was basically a political wedge, designed to get out the votes and increase Republican electoral victories in the state. Supporters of the amendment were able to point to no cases in Okhlahoma that raised the Sharia issue and only one (overturned) decision elsewhere. Nevertheless, they painted the issue as involving “a war for the survival of America,” a “cultural war.”
What is “good” about the law? The use of the words “cultural war” is a giveaway. It suggests that in our culture wars, the invocation of Christianity or the condemnation of other religions through law is becoming an increasingly important front in the battle. Take the words of one of the bill’s authors: “America was founded on Judeo-Christian principles — that’s the basis of our laws, and people try to deny it . . . . I believe there is an awakening of people concerned about Christian values in our nation, and they are starting to express themselves.” They are a reminder that not only the condemnation of Sharia, but the invocation of Christianity, serve the same purpose: not really to “acknowledge” our history, but to assert, in the most combative terms, our present status as a Christian nation. They serve as a reminder that, in interesting ways, ours is increasingly a culture of religious contestability. It is difficult to seriously contend that Christianity is under genuine attack in this country. But those who fight these battles are reacting, I think, not so much to that perceived threat but to a wider sense of religion’s fragility in our culture, of the complex negotiations forced upon religion in a culture of increasing religious and ideological pluralism, in which religion either does not matter much to many people or many people are happy to accept the presence and non-privileged status of many faiths and non-beliefs. It is inevitable that many people will react to those conditions by fighting wars of symbols, wars that invoke or condemn one religion or another not out of some mere bland recognition of a Christian past, but out of a desire to claim and define our current religious status in uncertain times.
Why is that “good?” Because it is at least more candid, and its candor says much about areas of this symbolic war in which we have been less than candid. The Oklahoma law’s advocates are refreshingly clear that the primary legislative purpose behind the law is religious, not secular. They make more perspicuous what both courts and other legislators have tried to obscure, in a raft of cases addressing these kinds of religious invocations, such as the use of “under God” in the Pledge of Allegiance: that these laws do have a religious purpose and are not a secular “acknowledgment” of history, that they are wedges in a war over religious symbols in an age of religious contestability. Some have argued that those kinds of cases are not worth fighting: that they involve “civic religion” or “ceremonial deism,” that they are de minimis harms at best, or that the cure would be worse than the disease. Others argue that upholding such laws by calling them ceremonial deism ultimately does more harm to religion than good, by denying or watering down what everyone recognizes to be genuinely religious messages.
I take no position on those questions here. But it may be that both our public debate and religion itself would be better off, more honestly and respectfully treated, if we could acknowledge these symbolic debates for what they are rather than pretend they are about something else: recognizing our history, treating such measures as ceremonial rather than real religion, and so on. It certainly lays bare how much and how little is at stake. It raises serious questions about how long we can continue down the “ceremonial deism” road, and whether it’s time to address squarely the genuinely religious aspects of both the extreme and the “moderate” instances of these laws. At a doctrinal level, the more honest legislators are about the purposes behind these laws, the more cover they give to courts to strike down these laws in the absence of the fig leaf of a secular purpose. And at a broader level, they illuminate an interesting and unrecognized phenomenon: the extent to which our culture wars are fought through symbols, and the extent to which the general social status of religion in what Charles Taylor calls a “secular age” has become so “fragilized” that it awakens insecurity among a variety of religious and non-religious groups. Advocates of laws like the anti-Sharia law may say that they are fighting a Muslim threat, or that they are fighting on behalf of an embattled Christianity. But they are doing something deeper: they are fighting the conditions of our age itself, struggling to find a foothold in an unsettling and complex age of religious pluralism.
Self-promotion note: I address some of these issues in my forthcoming book, The Agnostic Age: Law, Religion, and the Constitution.
Posted by Paul Horwitz on November 15, 2010 at 08:05 AM
Comments
Your argument is interesting, but I cannot share your opinion that exposing religious anxieties underlying our culture wars will improve the tone of our public discussion or clarify the choices we face in our politics. You seem to imply that you would like to see a more visible and impermeable wall of separation between church and state. This would only heighten the anxieties of believers and encourage a triumphalist rebuke of believers from secularists and atheists. None of that would be edifying. What I had hoped to see in your post was some clear explanation, for those of us not trained in law, of the ways in which moral concepts imported from or upheld by religion factor into legal decisions. I’d like to know whether it is at all plausible that practices considered just or proper under Sharia but improper and unjust in American legal culture could ever affect a judge’s ruling. The one New Jersey case cited by the “Save Our State” supporters is not at all clear-cut, since I expect it would be hard to legally establish a charge of rape in any case in which the parties are married, whether the mariage is Christian, Jewish or Islamic. At any rate, the details of that ruling have not been explained by any news source I’ve looked at.
Posted by: Ellen Tucker | Nov 18, 2010 2:09:05 AM
Congratulations on the book. I very much look forward to reading it (the old fashioned way).
Posted by: Patrick S. O’Donnell | Nov 15, 2010 7:59:11 PM