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Author: Paul Horwitz


The Downside of the State “Speaking” About Religion

As you may have gathered by now, Corey Brettschneider’s book When the State Speaks makes roughly the following argument: It is important for the state to uphold and defend the ideal of “free and equal citizenship,” which is “the most basic ideal of public equality that underlies liberal democracy.” In doing so, it should avoid coercive measures taken against groups or individuals that hold “hateful viewpoints,” but it should make full use of its “persuasive” powers, which include not only expression countering those views and publicizing “the justification for those rights protected by law,” but also the denial of tax-exempt status and state subsidies for “groups that oppose the core values of free and equal citizenship.” That’s a blunt (but fair, I hope) statement of Brettschneider’s views, although they are importantly nuanced and hedged with cautions and substantive limits.

In my previous post, I argued that Brettschneider’s views are likely to face more pressure and danger at the hands of those who support them than those who oppose them outright. Precisely because Brettschneider takes a middle-ground position between what he calls the dangers of the “Invasive Society,” which attempts to coerce citizens’ views, and the “Hateful Society,” which he claims is indifferent to hateful and discriminatory views, his argument is likely to be co-opted by those who would ignore his caveats and substantive limits and impose a much more coercive and/or unbounded version of his recommendations. In this post, I want to discuss his application of his general approach to religion, a subject he takes up in the fourth and fifth chapters of his book. Rather than offer a laundry list or go over the (several) objections I have to some of his characterizations of current law, I want to raise three or four basic points.

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When the State Speaks: A Laundry List of Questions

I’m grateful for the chance to discuss Corey Brettschneider’s fine book, When the State Speaks, What Should it Say?: How Democracies Can Protect Expression and Promote Equality. Because these kinds of law review-esque symposia are generally too full of throat-clearing and the lavishing of mutual praise, I’ll just dispense with that part, other than to note that the book is worth reading for anyone working in the area it treats—political theory, with an emphasis on government speech, equality, and freedom of speech, religion, and association. I will also assume that readers already know the book, which is capably summarized here. I also encourage readers to go to Brettschneider’s web page and read the excellent dialogue between him and Jeff Spinner-Halev.

My first post will be more a laundry list of questions and reactions than a single coherent critique. (A second post, God willing, will deal specifically with the book’s treatment of religious liberty.) Most of the fault for that lies with me, although part of the cause may lie in the book itself, for two reasons that seem common in books of liberal political theory of this sort. The first is that some of the key terms employed throughout the book seem either contestable or underdefined, although not for lack of care and effort. The second is that the book is quite reasonable and nuanced. This is hardly a flaw, but it does mean, as is often the case with efforts to combine liberal theory with practical recommendations, that the devil is in the details, both of the theory and its application.

Although, therefore, much of what follows is a set of questions and reactions rather than a continuous critique, I think my general reaction could be summed up in a single prediction: To the extent that Brettschneider faces a burden in defending his book, it is less likely to come from thorough-going opponents of his argument. Rather, his real burden will be defending the book from its supporters. Brettschneider’s argument, which attempts to protect the right to hold and engage in even “hateful and discriminatory” beliefs and expression while asserting a role for the state in using “persuasive expression” to counter those views, attempts to hold a middle ground between the extremes of a highly partial and coercive state and a state that is utterly indifferent to what citizens say, in public and in private. I sympathize with anyone who attempts to argue for a middle-ground approach. As I wrote (about myself!) in one book, however, the middle of the road is the place where you can be struck from traffic coming from both directions. In Brettschneider’s case, I think the greater danger actually comes from his fellow travelers, who will be tempted to give little heed to his many cautions and caveats, and extend his general recommendations to a dangerous point. (This is even more true for law professors, who suffer from an unkillable reformist bent and overvalue novelty, and thus are rarely content to leave well enough alone.) The old line holds that you should keep your friends close but your enemies closer. I am more worried about Brettschneider’s friends, and I think he should be too.

On to my questions.

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Book Review: Richards’s Fundamentalism in American Religion and Law

David A.J. Richards, Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, Cambridge University Press, 2010, $90.00.

When you read the words “This is a provocative book” in a review, you know you’re in the presence of a mixed compliment.  On the one hand, the critic will praise the book for saying something new, interesting, and potentially valuable about an important topic.  On the other, it signals that the critic thinks there is something deeply flawed, wrong, or misguided about the book, and has reached for polite language to damn it with faint praise.

With that said, let me be clear: In Fundamentalism in American Religion and Law: Obama’s Challenge to Patriarchy’s Threat to Democracy, David A.J. Richards has written a provocative book.

Its ungainly title gives a fair indication of its thesis, but Richards’ book is not so easily reducible.  This is not your average jeremiad.  Richards is not content simply to condemn an approach to both religion and constitutional interpretation that he finds dangerous.  Instead, he wants to diagnose it: to put it on the psychologist’s couch and toy with its innards.  Richards offers a vision of constitutional and religious critique as DSM-IV.

Fundamentalism, both in religion and in American constitutional law and particularly originalism, are “rooted in a patriarchal psychology,” Richards writes.  By patriarchy, he means “a hierarchy – a rule of priests,” in which “only the father has authority in religion, politics, or law.”  Its roots are both historical and personal.  It represents a tradition stretching back to ancient Rome, and taking in most especially the life and influence of St. Augustine, in which patriarchy “arises [from] traumatic breaks in personal relationships (including of sons from mothers).”  This leads to a fundamentally repressive approach to both law and religion.  Its opposite is “democracy, in which authority accords everyone a free and equal voice, a voice that both breaks out of the gender binary and contests hierarchy.”  More in anger than in sorrow, Richards argues that religious and constitutional patriarchs are, not to put too fine a point on it, sick, while those who favor “democracy” are healthy, integrated individuals.  His primary positive example is Barack Obama, who “has seen more deeply into and resisted originalism than any other American politician,” and whose “moral voice” has elicited a profound “resonance in the American people.” Read More