What’s Wrong with the World

Excellent article, but also very sobering. My question is: how do we reverse the trend to where religious beliefs and propositions can be recognized legally as rational forms of knowing? Must we simply keep banging the proverbial drum, and hope society finally comes around?

I critically discuss how some federal court opinions imply or affirm that religious claims are by their nature irrational, and thus cannot ever in principle be the grounds of any public policy...

Doesn't this undermine the free exercise of religion? Where exactly is one supposed to exercise this right; in a windowless cell?

Part I of this article would have been strengthened considerably had the discussion of the establishment clause been placed into the context of the Lemon test, which is, after all, the mechanism that courts in this country use to determine whether a particular governmental action violates the establishment clause of the First Amendment.

As I'm sure Mr. Beckwith knows, the Lemon test has three prongs; if any are violated, the government act is considered unconstitutional. The very first prong is whether the act has a "secular legislative purpose." In other words, if the purpose of the act itself is "religious," then the act is unconstitutional, whatever its other merits. Now, in part because it is very difficult to objectively figure out what the 'purpose' of a governmental act is, that prong has morphed over time into a more objective inquiry called the "endorsement" test. Here's how the 9th Circuit articulated the endorsement test in the Newdow decision (which is discussed extensively in Beckwith's article):

The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.

This is the linchpin of the entire Newdow decision, and it makes sense of the supposed quagmire Beckwith discusses on page 437 of his article:

For example, in the 2002 Ninth Circuit case concerning the constitutionality of the recitation of the Pledge of Allegiance in public schools, Newdow v. Elk Grove Unified School District, the court assumed that if the subject under scrutiny could be shown to be “religious,” the policy in question violates the Establishment Clause. But it seemed to never occur to the court that if the so-called “religious” claim were rationally defensible as an item of knowledge, then the court would be in the odd position of forbidding the public schools to teach what seems reasonable to believe is an item of knowledge.

Under the Lemon test, this is not an "odd position" in the Constitutional sense at all. Whether or not an act violates the establishment clause has nothing to do with whether it is "reasonable to believe" -- but merely whether it conveys a governmental endorsement of religion. In other words: the Constitution does not prohibit "false" endorsements of religion while permitting "true" ones; it prohibits all such endorsements, be they true or false. (This, by the way, also explains the quote from Judge Jones's opinion in Kitzmiller discussed later in the article.)

It seems to me that it would be perfectly reasonable in a law review article for one to either (1) critique the Lemon test itself as a basis for establishment clause jurisprudence; or (2) argue that the rationality of a claim ought to be some sort of "exception" to the first prong of the Lemon test, or perhaps address the prevailing jurisprudence in some other way I haven't yet thought of. Failing to address the primary legal landscape at all, however, strikes me as an odd decision, particularly in light of Mr. Beckwith's obvious intelligence and scholarship on this issue.

I should add as a caveat that I am no fan of the Lemon decision, as I have said elsewhere at some length. Indeed, from the perspective of an atheist, the Lemon test leads to patent absurdities. For example, if a governmental body engages in blatantly unconstitutional religious speech by erecting a creche display on public property, the Lemon test suggests that the constitutional cure is for that governmental body to then engage in more religious speech by sticking a menorah and other religious symbols on the display; that's insane. So the Lemon test gives us much to criticize, and I would have been interested in the mechanism that Beckwith might propose to replace it. But I have to express sincere surprise that one could write a significant chunk of an article about the establishment clause, including a somewhat lengthy discussion of the Newdow and Kitzmiller cases, and not even mention the controlling caselaw on the subject.

Andrew T.: I've already critiqued the purpose prong of the Lemon Test in another law review article that was published two years ago in the Hastings Constitutional Law Quarterly, "The Court of Disbelief: The Constitution's Article VI Religious Test Prohibition and the Judiciary's Religious Motive Analysis." 33.2&3 (Winter and Spring 2006): 337-360. You can find it online here: http://homepage.mac.com/francis.beckwith/HCLQ.pdf

The purpose of the Santa Clara Law Review article is not to assess the question of whether religious beliefs are true or not, but whether or not a court may legitimately exclude such beliefs from the scope of rational discourse, which is, what I believe is doing virtually all the work in contemporary church-state jurisprudence on the "culture war" questions. The Lemon Test, as you know, is a recent invention that was originally offered in state funding cases and then subsequently extended to "culture war" issues that have absolutely nothing to do with the original application of the Lemon Test.

The world "religious" neither adds nor detracts from the quality of a person's case for a particular policy proposal.

This is what l am suggesting: establishment clause jurisprudence, as currently construed and applied in culture war issues, is a pretext for establishing the religion of secularism under the guise of "neutrality." Because so many citizens are under the spell that if you declare something "religious" the debate is over, I think it's high time to point out that the emperor has no clothes.

What is at stake is the religious liberty of citizens who believe that they are rationally warranted in holding their views. The post-prop 8 witch hunts should give us all pause as to how many of her fellow citizens are willing to usher in an atheocracy that will punish, imprison, and fine any religious citizens who have the temerity to voice their dissent against the Secular Libertine Absolute juggernaut whose manifest destiny is not to be doubted.

I'd humbly suggest (okay, maybe not humbly) that my recent Christendom Review piece may be complementary to Frank's argument. The article is "The Irrational Faith of the Naked Public Square," and in it I discuss the proposition that religious beliefs per se ought not to inform policy decisions and policy advocacy on the part of individuals.

http://www.christendomreview.com/Volume001Issue001/modernerror_002.html

We should not forget that there is a philosophical literature out there (some works by Robert Audi are the ones I discuss in the article) that goes beyond the case law of establishment jurisprudence to much more ambitious principles according to which religious believers should _voluntarily_ limit the role they allow their religious beliefs to play in their political activities.

Francis:

I look forward to your article on the Lemon test. I think, however, that I'm not being clear in my critique of your current article. For example, at the beginning of the article, you summarize your position in Part I as follows (on p. 430):

In Part I (“Faith, Reason, and the Courts”), I critically discuss how some federal court opinions imply or affirm that religious claims are by their nature irrational, and thus cannot ever in principle be the grounds of any public policy, which would apparently include natural rights and their theistic paternity that the Founders embraced and many citizens believe is the ground on which all policy must rest.

My argument is that your discussion of the Newdow and Kitzmiller cases does not warrant the conclusion you assert in the bolded text, because those decisions emphatically did not turn on the question of whether "religious claims are by their nature irrational." The rationality of the religious claims had absolutely nothing to do with their propriety as public policy. Indeed, the passage you quote from the Kitzmiller decision underscores this.

The "post-prop-8 witch hunts," whatever they are, have nothing to do with establishment clause jurisprudence, so I fail to see their relevance here.

It seems to me that you are making an argument that may be defensible -- that some secularists view religious justifications as irrational per se -- and then trying to shoehorn that claim into a larger context where it simply doesn't apply (how courts evaluate the establishment clause). It is abundantly clear that what the 9th Circuit did in Newdow and what Judge Jones did in Kitzmiller was to set out the operative standard (the Lemon test) and then apply the facts in those cases to that standard. One may disagree with the test. One may disagree with those courts' respective application of their facts to that test. But to suggest that those courts were "really" advancing an argument about the irrationality of religion is to depart entirely from the texts of those opinions.

Lydia: I will read your piece as well. However, on rough glance, it does not appear relevant to my criticism, which specifically concerns establishment clause jurisprudence.

I realize that. I was bringing it up to give a larger context to Frank's concerns.

Because so many citizens are under the spell that if you declare something "religious" the debate is over

I cannot help but agree with Dr. Beckwith here --

Members of a firm to remain nameless, although Christian, would bring up the argument on the separation of Church/State as some sort of unassailable 'trump card'.

One particular conversation I recall a month ago regarded how much they loathed individuals who vote against abortion, declaring that in a democratic society, those who should vote in this manner for apparently religious reasons are tyrannically imposing their religious beliefs on the majority.

It seems that this democratic society they envision would have practicing Christians prevented from ever exercising their right to vote in such manner or perhaps they would prefer that anything even remotely seeming as if it were advancing some Christian morality upon society entirely eliminated as a voting option altogether.

But wouldn't that defeat the very purpose of a democratic society and itself be tyranny?

Thank you for this informative post.

it does not appear relevant to my criticism

You should read it anyway. It's a great article.