More on Hosanna-Tabor

January 13, 2012

The U. S. Supreme Court's curious decision in Hosanna-Tabor endorsing an amorphous ministerial exemption against Federal employment law leaves me conflicted. As a secularist, I regret any court finding or legislation that broadens religion's power vis-a-vis a secular polity. Still, as I understand the First Amendment and its unique religion clauses, the Supremes probably did the right thing -- though I wish the Justices had found a way to do it that seems less certain to catalyze a tsunami of new employment litigation.

I'll pause while you pick yourself up off the floor. Then I'll urge you to review Ron Lindsay's acute and fair-minded analysis of the decision at . Finally, I'll direct you to Ron's final paragraph, where he captures what I think is the heart of the matter:

"Perhaps as a pragmatic matter, we have to give religious institutions a pass. One of the purposes of the religion clauses of the First Amendment was to prevent the violence and civil unrest that had plagued Europe for centuries as a result of religious conflict. It’s possible that any attempt to enforce discrimination laws in the context of religious institutions would be met with such resistance that the disadvantage of doing so would outweigh the benefits."

I think that's exactly the issue in play here. Understanding it requires us to consider the historical circumstances surrounding the birth of the Bill of Rights generally, and the First Amendments's religion clauses in particular. The Founders were a mixed lot, conventional religious believers working alongside (for the time) a surprising number of deists. But they were all men of the Enlightenment. (See Susan Jacoby's Freethinkers for an astute analysis of how the post-Revolutionary period marked a high point in the influence of Enlightenment thought, to a degree not equaled before or since.  We secularists are profoundly lucky that our Constitution just happened to receive its most significant refinements during that epic decade.) As Ron mentioned, the Founders looked back on Europe's sorry history of religious warfare and, I think, drew a conclusion that's astonishing in the depth of its radicalism. Not many of them might have articulated it in these terms -- though Jefferson and Madison came close, and Paine (though he did not contribute any writing to the Constitution) spelled it out pretty clearly. Here's the radical conclusion: Profound religious passion is foundationally incompatible with democracy.

Think about it. Democracy depends on compromise, on free men (in those days) clashing as their various views of an issue drive them, and ultimately using reason and pragmatism to reach a conclusion that satisifies -- and dissatisfies -- them all in a way that is fair and, ultimately, socially workable. It's a method for hammering out compromises that all partisans can live with so that the people's business can go forward. What's missing from this formula? Absolute right and wrong, of course. Divine warrant. The whole process depends on a background assumption that no participant can claim absolute virtue for his position -- and of course, the usual method of claiming absolute virtue is to claim God's endorsement. Just as the Declaration of Independence denied that monarchs held any divine privilege that could trump the rights of their subjects, the Constitution, and especially the Bill of Rights, denied the possibility of divine interest in any socio-political issue. It envisioned a democratic process that is profoundly a-theistic, in the sense that no participant in democratic debate has the right to drag in God on his side. Basically, the shared commitment to the democratic enterprise is a shared commitment to debate and resolve public issues, in effect, as though God does not exist.

Knowing their European history, the Founders knew well what the alternative was: pitched conflicts between religious camps in which no one could admit the possibility of compromise because everyone believed his side alone represented the will of God. That leads to war that ravages on until one side is too devastated to fight on. Or until both sides are.

With this background in mind, it is easier to understand why the Founders chose to limit government more severely in matters of religion than in any other arena of human interest. From freedom of the press to the freedom against being forced to billet soldiers, each of the other rights established by the Bill of Rights is set forth in a single sentence, sometimes a single phrase. Only when it comes to religion did the Founders see a need to limit government using two clauses. The Establishment Clause and the Free Exercise clause provide two non-parallel streams of restriction on government power that can interact in complex and sometimes unexpected ways. There has to be a reason why the Founders never took this extraordinary step as regards issues like self-incrimination, commerce, protection against unreasonable search and seizure, and so on. And I think that reason is that they intended to restrict government more intensely in regard to religion than in regard to anything else -- because they appreciated the special dangers religious passion could pose to their democratic experiment.

Today we usually think of the religion clauses as protecting people of faith against government interference, which they do. But that's just the half of it. The religion clauses were also designed to protect the orderly workings of government against the strife of sects. It reflects a sober Enlightenment recognition that democracy cannot long survive the influx of religious passion into the conduct of the people's business. That's right, even while they protect religious people against the state, the religion clauses are also there to protect the state against religious people.

As Ron said, "If so, that’s a sad comment on the human condition." Sad as it may be, I think it's true. Men and women swept away by religious fervor essentially disqualify themselves from participating in any process based on compromise. Admit too many such fervid partisans to the halls of government, and government will collapse. A democratic system that hopes to continue for centuries has to protect itself from that sort of corrosion -- and sometimes this must be done by declaring otherwise reasonable kinds of government action simply off limits. This is why the IRS formally avoids defining what religion is (much as it somehow matters to decide that some nonprofits are eligible for religious exemptions and others aren't, but that's a matter for another post). That's why government treads lightly in applying zoning laws to houses of worship, much as secularists may object to the way this is sometimes realized in practice. And, I think, it's why a unanimous Supreme Court decided that the state must not impose the requirements of Federal employment law on anyone who even might be a minister of religion.

There is much for secularists to criticize in Hosanna-Tabor. Still, I can't help breaking a smile at the image of the most conservative Supreme Court in many years implicitly acknowledging that in a democracy, people swept away by religious fervor simply can't be trusted and so the state had better steer clear of them!