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On Reading Stephen Carter's The Culture of Disbelief—A Dissenting Opinion

Published online by Cambridge University Press:  24 April 2015

David R. Dow
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Extract

[A]uthority is a subject of art.... It is not just “the church” or “the law” that I ask you to obey, or disobey, it is the church or the law as made in my text.

James Boyd White

The first thing I thought when I finished reading Stephen Carter's recent book, The Culture of Disbelief, was: This guy needs to get out of New Haven more often. Anybody who believes that America does not take religion seriously cannot possibly be looking at all of America.

When I look at America, I apparently see a very different culture from the one Carter identifies. The divergence in our perceptions is not merely an empirical disagreement; rather, this divergence in fact masks a basic doctrinal difference. I am suggesting, in other words, that it is because we have such different views of legal doctrine that we perceive the place of religion in our society so differently.

This is a legal essay, however. Its subject is thus primarily the doctrinal issues; these issues occupy Parts 3 through 6 below (and, to a lesser extent, Part 2). I argue that American culture is like a religion, with its own texts, its own authorities, and its own values. One of these values is that other religions must remain in their own sphere. While my focus here is legal doctrine, insofar as it is accurate to maintain that doctrinal differences in the realm of religion and the law can significantly drive divergent perceptions of religious reality, then it may be useful to underscore Carter's own view of reality as well as my rather different perception; such an underscoring is the objective of Parts 1 and 2.

Type
Book Review
Information
Journal of Law and Religion , Volume 11 , Issue 1 , February 1994 , pp. 417 - 447
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1994

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References

1. White, James Boyd, Acts of Hope 276 (U Chicago Press, 1994)CrossRefGoogle Scholar.

2. Carter, Stephen L., The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Basic Books, 1993)Google Scholar (hereinafter cited as Disbelief).

3. From Sail Away (Reprise Records 1972).

4. Conservative reviews include Davis, Winston, Book Review, Translating God-Talk, in The Christian Century All (04 20, 1994)Google Scholar; Rocca, Francis X., Book Review, The Culture of Disbelief in The American Spectator 90 (02 1994)Google Scholar; Freundel, Barry, Book Review, Let's Make a Deal in The National Review 62 (11 1, 1993)Google Scholar. More liberal reviews include Carroll, James, Book Review, God's Patriots in The Atlantic 139 (12 1993)Google Scholar; Kinsley, Michael, Martyr Complex in The New Republic 4 (09 13, 1993)Google Scholar.

5. See note 4 (citing liberal reviewers).

6. Disbelief at 13 (cited in note 2).

7. Id at 3.

8. Carter's particular vision of how religion ought properly to function in society is not new, and Carter is explicit in drawing from de Tocqueville's observations. Disbelief at 36-37 (cited in note 2). I leave for another essay the provocative question of whether there is such a thing as an “academic jeremiad.” See generally Bercovitch, Sacvan, The American Jeremiad (U of Wisconsin Press, 1978)Google Scholar.

9. Carter views religion as an independent good because it provides potential resistance against amoral policies of a secular state. See Disbelief at 9, 37, 80-82 (cited in note 2).

10. Indeed, while advocating a relatively conservative position in Disbelief Carter takes pains to distance himself from identiflably conservative thinkers and promotes the idea that liberals can be religious too. See, for example, id at 78 (discussing the ordination of women); 231-34 (discussing abortion). Carter's tendency to hold the religious conservatives at arm's length has not gone unnoticed by the conservatives. See, for example, Buckley, William F. Jr., “Right to Sin Cramping Right to Religion,” Houston Chronicle, 09 20, 1993, at A14 (book review)Google Scholar.

11. Disbelief at 107 (cited in note 2).

12. Disbelief at 233-35, 250-58 (cited in note 2). “Like the majority of Americans,” Carter says, “I am moderately pro-choice.” Id at 234 (cited in note 2).

13. See Kakutani, Michiko, Rewriting Religion's Role for the Political Arena, The New York Times C18 (09 28, 1993)Google Scholar; Berger, Peter, Who's Afraid of Religious Values?, The New York Times 15, sec 7 col 1 (09 19, 1993)Google Scholar Book Review Desk, “Who's Afraid of Religious Values?” The Washington Post liked it too. See Morawetz, Thomas, The Soul of the Matter, The Washington Post, Book World 8 (10 3, 1993)Google Scholar; Romano, Louis, A Scholar, A President and the Politics of Prayer, The Washington Post D3 (10 15, 1993)Google Scholar.

14. See Church and State, The Wall Street Journal A12 (04 4, 1994)Google Scholar; Marsden, George M., Religious Protestors are the Last Taboo, The Wall Street Journal A10 (12 22, 1993)Google Scholar.

15. See The Washington Post, (cited in note 14); see also Lewis, Kathy, Booked Up: Clinton's Reading Habits Have Become a Hot Topic, Dallas Morning News Home Final Edition, Today; 1C (09 4, 1993)Google Scholar Washington Bureau Dallas Morning News, Washington, DC; Woodward, Kenneth L., Making Room for Religion, Newsweek 56 (09 20, 1993)Google Scholar, (noting that President Clinton recommended Carter's book to an audience of clergy).

16. Nevertheless, Carter's profession is not irrelevant, for it is fair to say that the modern university is not hospitable to religious fundamentalism. See Gedicks, Frederick Mark, Public Life and Hostility to Religion, 78 Va L Rev 671 (1992)CrossRefGoogle Scholar (noting that various commentators have observed hostility toward religion from the legal academy).

17. In addition, law schools affiliated with organized religious groups, including Notre Dame, De Paul, Southern Methodist University, Brigham Young University, Georgetown University, and many others, publish their own law reviews.

18. See, for example, Perry, Michael J., Love and Power: The Role of Religion and Morality in American Politics (Oxford U Press, 1991)Google Scholar; Levinson, Sanford, Constitutional Faith (Princeton U Press, 1989)Google Scholar.

19. Tuomala, Jeffrey C., Christ's Atonement as the Model for Civil Justice, 38 Am J Juris 221 (1993)CrossRefGoogle Scholar.

20. Rosenberg, Irene Merker and Rosenberg, Yale L., In the Beginning: The Talmudic Rule Against Self-incrimination, 63 NYU L Rev 955 (1988)Google Scholar.

21. Stone, Suzanne Last, In Pursuit of the Counter-Text, 106 Harv L Rev 813 (1993)CrossRefGoogle Scholar.

22. See, for example, Cover, Robert M., Violence and the Word, 95 Yale L J 1601 (1986)CrossRefGoogle Scholar; Cover, Robert M., Nomos and Narrative, 97 Harv L Rev 4 (1983)Google Scholar.

23. See, for example, Walker, Graham, Moral Foundations of Constitutional Thought (Princeton U Press, 1990)CrossRefGoogle Scholar.

24. See, for example, Finnis, John, Natural Law and Natural Rights (Oxford U Press, 1980)Google Scholar; Weinreb, Lloyd, Natural Law and Justice (Harvard U Press, 1987)Google Scholar; Moore, Michael S., A Natural Law Theory of Interpretation, 58 S Cal L Rev 277 (1985)Google Scholar; Haines, Charles Grove, The Revival of Natural Law Concepts (Harvard U Press, 1930)Google Scholar.

25. See, for example, Dane, Perry, The Maps of Sovereignty: A Meditation, 12 Cardozo L Rev 959 (1991)Google Scholar; Dane, , Vested Rights, “Vestedness,” and Choice of Law, 96 Yale L J 1191 (1987)CrossRefGoogle Scholar; Dane, , Note, Religious Exemptions Under the Free Exercise Clause: A Model of Competing Authorities, 90 Yale L J 350 (1980)Google Scholar; Berman, Harold J., Faith and Order: The Reconciliation of Law and Religion (Scholars Press, 1993)Google Scholar; Wagner, William J., The Just and the Holy Are One, 42 Emory L J 1045 (1993)Google Scholar (reviewing with great favor Berman's Faith and Order); Greenawalt, Kent, Religious Convictions and Political Choices (Oxford U Press, 1988)Google Scholar. I do not by any means intend to disparage this enterprise, for I myself have engaged in it. See, for example, Dow, David R., Hillel's Dilemma and Wisdom, 4 Nat Jewish L Rev 59 (1989)Google Scholar; Dow, David R., Constitutional Midrash, 29 Houston L Rev 543 (1992)Google Scholar.

26. See, for example, Levinson, Sanford, The Multicultures of Belief and Disbelief, 92 Mich L Rev 1873 (1994)CrossRefGoogle Scholar.

27. Bd. of Educ. of Kiryas Joel Village School v Grumet, 114 S Ct 2481 (1994).

28. See, for example, The Washington Times Part C at C4, Metropolitan Times, District News, Kristan Metzler, “Judge Lets School Prayer Issue Go to Voters; But Signatures Are Still Needed, Thurs final edition (June 30, 1994); Nolan, Bruce, School Prayer Bills Take Wing, The Times-Picayune (New Orleans) A1 (06 17, 1994)Google Scholar; St. Petersburg Times Anderson, David E., “Pomp and Circumstance; Prayer, Debates, Law Suits, City Edition, Largo-Seminole Times at 10 (06 11, 1994)Google ScholarPubMed; The Dallas Morning News ELESKA Aubespin, “Commissioners Back School Prayer,” Home Final Edition at 2Z (May 10, 1994); The Commercial Appeal (Memphis) Baker, Peter, “Schools Seek Use of Banished Bible, but Only as Literature,” Final Edition at 5A (04 2, 1994)Google Scholar; Wisniewski, Laura and Smith, Ben III, Silence Bill Just an ‘amen’ for Many Schools' Traditions, The Atlanta Journal and Constitution B4 (03 19, 1994)Google Scholar

29. See, for example, The Houston Chronicle Kevin Moran, “Praying for Support; Galveston Officials Join School Prayer Wave,” 2 Star Edition at A11 (01 11, 1994)Google Scholar (describing efforts in Galveston to enact school prayer law); The Dallas Morning News Dan Shrine, “Coppell Calls for Prayer in Schools; Council Resolution Resembles Other Cities,” Home Final Edition, News at 27A (04 30, 1993)Google Scholar. In Georgia, a teacher was suspended for refusing to enforce a moment of silence. See The Houston Chronicle 9A (Aug 24, 1994).

30. See Applebome, Peter, Prayer in Public Schools?, The New York Times (nat'l ed) A1 (22 11 1994)Google Scholar.

31. See, for example The Houston Chronicle Damien Garden Hire, “500,000 Join March for Abortion Rights,” 2 Star Edition at A1 (04 6, 1992)Google Scholar (describing Pennsylvania statute); Kleiman, Carol, Old Abortion Law in Question, The Chicago Tribune 1 (12 12, 1991)Google Scholar (describing Illinois and Pennsylvania laws); Suit Filed Challenging Utah Abortion Law, The National Law Journal 6 (04 22, 1991)Google Scholar (describing Utah law); Ciolli, Newsday Rita, “La. Governor Hints Abortion Veto” at 15 (07 10, 1990)Google Scholar (describing Louisiana law); Loth, Renee, High Courts's Abortion Ruling Puts Issue in State Spotlight, The Boston Globe metro sec at 50 (06 26, 1990)Google Scholar (describing Massachusetts law); St. Petersburg Times Tim Rickens, “Governor will call Special Session on Abortion Rules,” City Edition at 1A. (07 6, 1989)Google Scholar (describing Florida right-to-life movement).

32. See, for example, Rocky Mountain News Bill Scanlon, “State Officials Reject Federal Abortion Order; Colorado Joins Other States in Refusing to Pay for Abortions in Cases of Rape, Incest,” Local Edition at 20A (04 2, 1994)Google Scholar; Voelker, Bill, Judge: State Must Choose, The Times-Picayune (New Orleans) A1 (07 29, 1994)Google Scholar; The Commercial Appeal (Memphis) (AP) “Ark. Stands Pat on no use of Medicaid Funds for Abortion” at 51A (05 7, 1994)Google Scholar; States Rebel on Abortion, St. Louis Post-Dispatch 6B (04 11, 1994)Google Scholar. Louisiana decided to fund such abortions when faced with a cut-off of federal Medicaid funds. See Louisiana Acts on Abortions, The New York Times A12 (08 24, 1994)Google Scholar (noting as well that Arkansas, Colorado, Montana, and Michigan are also under court orders with respect to funding indigent abortions).

33. See, for example, Cincinnati's Anti-Gay Vote is Overturned, The New York Times (nat'l, ed) A8 (08 11, 1994)Google Scholar (noting that Cincinnati's anti-gay measure was struck down as unconstitutional); The Politics of Gay-Bashing, The Atlanta Journal and Constitution A14 (07 20, 1994)Google Scholar (describing Colorado referendum); Freeman, Gregory, Amendment Coalition's Petition Aims Beyond Homosexuals 4B (07 24, 1994)Google Scholar (describing failed effort in Missouri to gamer sufficient signatures to place initiative on ballot); The Arizona Republic A19 (Jul 17, 1994) at A19 (noting that efforts to place anti-gay initiatives failed in 8 of 10 states).

34. I have in mind the Houston Chronicle, where a bible passage daily appears on the editorial page. The Houston Post includes each day a so-called inspirational thought.

35. Professor Idleman has observed that the empirical critique has been the most common criticism of Carter's book. See Idleman, Scott C., The Sacred, the Profane, and the Instrumental, 142 U Pa L Rev 1313, 1321 (1994)CrossRefGoogle Scholar. Professor Carter anticipated this criticism, and his response strikes me as a bit perverse: He claims that the ubiquitous presence of religion, far from signalling a contradiction of his thesis, in fact proves how superficial—and hence trivial—religion in America has become. See Disbelief at 45 (cited in note 2). I think that if I were more religious, I would find Carter's response rather patronizing.

36. Disbelief at 24 (cited in note 2).

37. Not wholly unprecedented, perhaps, but gone since the days of Roger Smith and the Puritans. See generally Miller, Perry, Errand Into the Wilderness (Belknap Press of Harv U Press, 1956)Google Scholar; see also Morgan, Edmund S., The Puritan Family (Harper & Row, 1944)Google Scholar; Hall, Thomas C., The Religious Background of American Culture (Little, Brown & Company, 1930)Google Scholar. The “wall of separation” language appears to have been coined, not incidentally, by Williams, Roger. 1 The Complete Writings of Roger Williams at 392 (Russell & Russell, 1963)Google Scholar (letter from Williams to John Cotton, written in 1643). For a discussion of the “wall of separation” metaphor among Free Church groups and its transmutation to and by Jefferson and his expositors, see Howe, Mark D., The Garden and the Wilderness: Religion and Government in American Constitutional History (U of Chicago Press, 1965)Google Scholar. The tradition of religious liberty, including maintenance of the wall of separation, were continued in Puritan New England. See Breen, T.H., The Character of the Good Ruler: A Study of Puritan Political Ideas in New England, 1630-1730 (Yale U Press, 1970)Google Scholar; Delbanco, Andrew, The Puritan Ordeal (Harvard U Press, 1989)Google Scholar; Witte, John Jr., How to Govern a City on a Hill The Early Puritan Contribution to American Constitutionalism, 39 Emory L J 41 (1990)Google Scholar. The best overall survey of religion in America remains Sydney Ahl-strom's magisterial A Religious History of the American People (Yale U Press, 1972)Google Scholar.

38. Disbelief at 263-68 (cited in note 2).

39. Niebuhr, H. Richard, Radical Monotheism and Western Culture (Harper, 1960), quoted in Ahlstrom at 966 (cited in note 37)Google Scholar.

40. The notion of truth's cash-value is James'. See James, William, Pragmatism and The Meaning of Truth (1 vol) 32, 169, 278 (Harvard U Press, 1975)Google Scholar; see also Ayer, A. J., Philosophy in the Twentieth Century 86 (Random House, 1982)Google Scholar.

41. Disbelief at 274 (cited in note 2).

42. Conversations with Howard Vogel have persuaded me that the “wall of separation” metaphor might not be the best one to evoke my central thesis, for what I argue in this essay is that religious and political discourse in fact occupy disjoint rhetorical spheres.

43. As they have been. See McDaniel v Paty, 435 US 618 (1978) (declaring unconstitutional a provision of the Tennessee constitution which barred ministers from serving as either legislators or delegates to the state's constitutional convention). But see Lee v Weisman, 504 US -, 112 S Ct 2649 (1992); Marsh v Chambers, 463 US 783 (1983) (upholding state's practice of opening legislative sessions with a prayer by a state-employed chaplain).

44. Compare Unites States v Seeger, 380 US 163, 166 (1965) (holding that Seeger qualified for the statutory conscientious objector draft exemption where he averred that he “preferred to leave the question as to his belief in a Supreme Being open” and that he possessed “a religious faith in a purely ethical creed [without] belief in God, except in the remotest sense”), with Gillette v United States, 401 US 437 (1971) (holding that exemption is not available to those whose religious objections relate “to a particular conflict” as distinguished from war in general).

45. See, for example, Widmar v Vincent, 454 US 263 (1981) (invalidating a regulation which prohibited the use of public university buildings for “purposes of religious worship or religious teaching” while making them available for other secular extracurricular uses).

46. See Everson v Board of Education, 330 US 1 (1947), where Justice Black observed: “A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and persecutions, generated in large part by established sects determined to maintain their absolute political and religious supremacy.” Id at 8-9.

47. See Barkun, Michael, Religion and the Racist Right: The Origins of the Christian Identity Movement (U of North Carolina Press, 1994)Google Scholar; compare Spong, John Shelby, Rescuing the Bible from Fundamentalism 2 (Harper, 1991)Google Scholar (noting evangelical opposition to racial desegregation in the 1960s). See generally Balmer, Randall, Mine Eyes Have Seen the Glory (Oxford U Press, 1989)Google Scholar (examining evangelical, fundamentalist, charismatic, and pentecostal attitudes).

48. Everson v Board of Education, 330 US 1 (1947).

49. 330 US at 15-16 (citation omitted). Of course, the wall of separation metaphor was first deployed by the Court in Reynolds v United States, 98 US 145, 164 (1878).

50. Zorach v Clauson, 343 US 306, 313 (1952).

51. See, for example, Walz v Tax Commission, 397 US 664, 668-69 (1970); see generally Tribe, Laurence, American Constitutional Law § 14-2, at 1157; § 14-4, at 1166-79 (2d ed 1988)Google Scholar. The view that the clauses are in some tension with one another can fairly be said to be the dominant scholarly as well as judicial view. See generally Laycock, Douglas, The Remnants of Free Exercise, 1990 Sup Ct Rev 1Google Scholar. I have elsewhere argued that a strict attention to the language of the clauses coupled with an embrace of the neutrality principle developed primarily by Justice O'Connor (see Lynch v Donnelly, 465 US 668, 687-94 (1984) (O'Connor concurring)) causes this ostensible tension to vanish. See Dow, David R., Toward a Theory of the Establishment Clause, 56 UMKC L Rev 491, 493 n 4, 506–10 (1988)Google Scholar.

52. See, for example, Employment Division, Human Resources v Smith, 494 US 872 (1990) (upholding state denial of unemployment compensation to a Native American who was terminated for criminal use of peyote); Jimmy Swaggart Ministries v Board of Equalization, 493 US 378 (1990) (upholding state imposition of sale and use taxes on religious televangelist and publisher); O'Lone v Estate of Shabazz, 482 US 342 (1987) (upholding prison's denial of Muslim prisoner's request for special accommodation of Friday worship). The Court in Smith noted that it was using in the free exercise context the approach originally articulated in the speech arena in United States v O'Brien, 391 US 367 (1968), whereby facially neutral statutes which serve important governmental interests unrelated to the suppression of speech are constitutional if their incidental impact on speech is no greater than necessary. The commentators have not been particularly sympathetic to this approach. See, for example, McConnell, Michael W., Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1109 (1990)CrossRefGoogle Scholar; Williams, David C. and Williams, Susan H., Volitionalism and Religious Liberty, 76 Cornell L Rev 769 (1991)Google Scholar. But see Marshall, William P., In Defense of Smith and Free Exercise Revisionism, 58 U Chi L Rev 308 (1991)CrossRefGoogle Scholar. I have elsewhere expressed my view that the burden on those challenging government action under the free exercise clause ought to be exceedingly high insofar as the text of the Constitution forbids only those laws which actually “prohibit” the free exercise of religion; state legislation which has an impact on religious observance cannot ordinarily be viewed as rising to a prohibition of free exercise. See Dow, 56 UMKC L Rev at 494 n 6 (cited in note 51).

53. Lemon v Kurtzman, 403 US 602, 612-13 (1971).

54. The Court in Lemon described at least two types of entanglement. Administrative entanglement occurs when public officials are required the scrutinize the use of public funds by sectarian institutions to ensure that they are not used for sectarian purposes. Excessive entanglement also occurs when government officials must inquire into religious truth. 403 US at 619. Professor Tribe has outlined five different types of entanglement. Tribe, , American Constitutional Law, § 14-11, at 1226–42 (cited in note 51)Google Scholar.

55. Id § 14.14, at 1276 (cited in note 51).

56. Disbelief at 109-15 (cited in note 2).

57. From “Honky Tonk Angel” (MCA Records 1988).

58. I mean that he believes it is good intrinsically. See Disbelief at 232 (cited in note 2). Carter has been criticized, however, for stressing too univocally religion's instrumental value. See Idleman, , 142 U Pa L Rev at 1333, 1348–48 (cited in note 35)Google Scholar.

59. Disbelief at 36-37 (cited in note 2). I must confess that Carter's view that organized religion will be content to play a Tocquevillian role strikes me as hopelessly naive.

60. Id at 41 (emphasis added).

61. Marshall, William P., The Other Side of Religion, 44 Hastings L J 843, 859 (1993)Google Scholar. Marshall also argues in favor of the epistemological parity of faith and reason and contends that, in any event, the preference for rational mores over mores grounded in faith is both arbitrary and inconsistent with the first amendment. Id at 846-47.

62. Disbelief at 25 (cited in note 2).

63. William James attempted to define religion in terms of the presence of some notion of divine. James, William, The Varieties of the Religious Experience 42 (The Modern Library, 1902)Google Scholar. I have argued that James' definition of religion has utility in the context of evaluating establishment clause challenges to particular legislation which assert that the legislation under attack was animated by religious impulses. See Dow, David R., The Establishment Clause Argument for Choice, 20 Golden Gate U L Rev 479, 496–500 (1990)Google ScholarPubMed.

64. What I have in mind when I use the phrase American culture is generally reflected in Lerner's, MaxAmerica as a Civilization (Henry Hold & Co., rev'd ed, 1987)Google Scholar. Another example, which shows as well the way in which secular principles can supplant religious principles in support of the same (or similar) moral and legal injunctions is Gabriel's, Ralph HenryThe Course of American Democratic Thought (The Ronald Press Co, 3d ed, 1986)Google Scholar. For a more general discussion of the relationship between the nature of religion and the nature of modern society, see Wuthnow, Robert, The Restructuring of American Religion (Princeton U Press, 1988)Google Scholar (noting effect of rationality and modern science on religious beliefs and practices). My view of what it means to talk about the beliefs of a given culture is contained in Dow, David R., When Words Mean What We Believe They Say: The Case of Article V, 76 Iowa L Rev 1, 7-8, 29–31Google Scholar

65. In Church of the Lukumi Babalu Aye, Inc. v City of Hialeah, 113 S Ct 2217 (1993), the Court held unconstitutional a city ordinance which prohibited animal sacrifice in contravention of the practices of a small religious group. Underlying the Court's analysis, however, was the virtual indistinguishability between animal sacrifice for religious purposes and animal slaughter for culinary appetites. This case, in other words, appears in the end to be one involving the discrimination against religion vis-a-vis secular practices.

66. Disbelief at 275-77 (cited in note 2).

67. See, for example, Wattenberg, Daniel, Gunning for Koresh, The American Spectator 31 (08 1993)Google Scholar; Children of the Cult Newsweek 48 (05 17, 1993)Google Scholar; Children of a Lesser God, Time 54 (05 17, 1993)Google Scholar

68. See Dow, 76 Iowa L Rev at 8-23 (cited in note 64). My thinking in this area has been influenced by many scholars, who are mentioned in id, but I am especially indebted to the work of Hilary Putnam, whose work I discuss a bit more momentarily.

69. Cultures may well disagree on what facts constitute murder, and cultures certainly disagree about the exceptions to this moral injunction.

70. See Dow, 76 Iowa L Rev at 8-23 (cited in note 64).

71. Quoted in Putnam, , Reasonableness as a Fact and as a Value, in The Many Faces of Realism 85 (Open Court, 1987)Google Scholar. See Wittgenstein, L., Philosophical Investigations217 (G.E.M. Anscombe, 3d ed 1958)Google Scholar.

72. The process of working back rationally to the normative bedrock is epitomized in the work of Jurgen Habermas. See Moral Consciousness and Communicative Action (Lenhardt, Christian and Nicholsen, Shierry Weber trans, MIT Press, 1990)Google Scholar.

73. See Disbelief at 219-30 (cited in note 2).

74. Putnam, Hilary, Reason, Truth and History 212 (Cambridge U Press, 1981)CrossRefGoogle Scholar (emphasis in original). See also id at 125-49, 211-14; Putnam, Hilary, The Many Faces of Realism (Open Court, 1987)Google Scholar; Putnam, Hilary, Realism with a Human Face at 135–213 (Harvard U Press, 1990)Google Scholar; Goodman, Nelson, Ways of Worldmaking (Hackett Publishing Co., 1978)Google Scholar. See generally Quine, W.V. & Jullian, J.S., The Web of Belief (Random House, 1970)Google Scholar.

75. Weissman, David, Truth's Debt to Value at 50 (Yale U Press, 1993)Google Scholar (summarizing a Pierceian view).

76. Putnam denies that the notion of truth utilized in quantum mechanics, moral discourse, and even common sense discourse “totally outruns the possibility of justification.” Putnam, , Realism with a Human Face at ix (cited in note 74)Google Scholar. Religion, too, falls into this category. However, once the faithful reach the bedrock of religious truth—the point where God speaks—justification in the ordinary sense ceases to be germane.

77. This point is acknowledged by those on both the left and right. See, for example, Hutchinson, Allan C. and Monahan, Patrick J., Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 Stan L Rev 199, 208–13 (1984)CrossRefGoogle Scholar; Posner, Richard, Jurisprudence 1, 138–53 (Harvard U Press, 1990)Google Scholar.

78. In the model I am sketching here, religions which reject the idea that there are certain injunctions which have divine sanction resemble moral reasoning rather than religious reasoning. Reform and Reconstructionist Judaism seem to me to fall into this class. Many Eastern religions amy also fall into this category. See James, William, The Varieties of Religious Experience (The Modern Library, 1902)Google Scholar.

79. Political speech occupies the highest rung of first amendment protection. See, for example, Connick v Myers, 461 US 138, 145 (1983); NAACP v Claiborne Hardware, 458 US 886, 913 (1982); Carey v Brown, 447 US 455, 467 (1980).

80. See generally, Emerson, Thomas, The System of Freedom of Expression (Random House, 1970)Google Scholar; Tribe, , American Constitutional Law §§ 12-1, 12-2, at 785–94 (cited in note 51)Google Scholar. Dissenting in Abrams v United States, 250 US 616 (1919), Justice Holmes captured the dialectic function of the first amendment's speech clause: “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which [the people's] wishes safely can be carried out.” Id at 630 (Holmes dissenting).

81. See Areopagitica (1644), reprinted in Rhys, Ernest, ed, Milton's Areopagitica and Other Prose Works 23–38 (E. P. Dutton, 1927)Google Scholar. See generally Rabban, David M., The Emergence of Modern First Amendment Doctrine, 50 U Chi L Rev 1205 (1983)CrossRefGoogle Scholar.

82. Of course, religious dogma does seem to change from time to time. Nevertheless, religious authorities do not ordinarily acknowledge that the idea of truth is changing; they invoke a variety of subterfuges. See, for example, Dow, , 29 Houston L Rev 543 (cited in note 25)Google Scholar.

83. See Dow, , 56 UMKC L Rev at 492 n 3 (cited in note 51)Google Scholar.

84. Kaufman, Gordon D., God the Problem 151 (Harvard U Press, 1972)Google Scholar.

85. Id at 151-52 (emphasis in original).

86. Compare Gordley, James, Law and Religion: An Imaginary Conversation with a Medieval Jurist, 75 Cal L Rev 169 (1987)CrossRefGoogle Scholar.

87. For a description of the Talmud, see Rosenberg, & Rosenberg, , 63 NYU L Rev 955 (cited in note 20)Google Scholar.

88. Aquinas, Thomas, Summa Theologiae (1265–73)Google Scholar.

89. Calvin, John, Institution of the Christian Religion (1536) (John Knox Press, Battles, Ford Lewis ed, 1975)Google Scholar.

90. I discuss talmudic reasoning in Dow, 29 Houston L Rev (cited in note 25). I refer to the analytical methods of Calvin and Aquinas in Dow, , 76 Iowa L Rev at 13 n 54, 16–17 n 69 (cited in note 64)Google Scholar.

91. In his Principia Ethica (Cambridge U Press, 1903)Google Scholar, G.E. Moore argued that a so-called “naturalistic fallacy” undermined all previous attempts to define the “good.” See Lewy, C., G.E. Moore on the Naturalistic Fallacy, in G.E. Moore: Essays in Retrospect 292–303 (Humanities Press, 1970)Google Scholar.

92. 5 US 137 (1803).

93. White, James Boyd, Acts of Hope 276 (U of Chicago Press, 1994)CrossRefGoogle Scholar.

94. For example, TB Mishnah Peah 1:1-2.

95. James Boyd White, Acts of Hope (cited in note 93).

96. 478 US 186 (1986).

97. But see Burt, Robert, The Constitution in Conflict (Belknap Press of Harvard U Press, 1992)Google Scholar.

98. Griswold v Connecticut, 381 US 479 (1965).

99. Putnam, Hilary, Reason, Truth and History 147 (Cambridge U Press, 1981) (cited in note 74)CrossRefGoogle Scholar.

100. Disbelief at 269 (cited in note 2).

101. See Levinson, Sanford, Constitutional Faith (Princeton U Press, 1988)Google Scholar; Grey, Thomas, The Constitution as Scripture, 37 Stan L Rev 1 (1984)CrossRefGoogle Scholar; Perry, Michael J., Noninterpretive Review in Human Rights Cases, 56 NYU L Rev 278, 288–93 (1981)Google Scholar. See generally Dow, , 76 Iowa L Rev at 1-11, 62–66 (cited in note 64)Google Scholar.

102. Commentators have often asserted that religion occupies a special place in America and the Constitution therefore permits, and perhaps even requires, that religious practices be accommodated by secular authorities. I have elsewhere argued against this widely held view. See Dow, , 56 UMKC L Rev at 502–10 (cited in note 51)Google Scholar. Whatever else can be said, there is no compelling historical support for the accommodation view whatsoever. Once the central value of the religion clause is seen to be neutrality, the accommodation argument ceases to be tenable.

103. Although this position is not universally embraced, it represents the mainstream and dominant view. Chief Justice Rehnquist and Justice Scalia have criticized the inquiry into motive in the establishment clause context, but on historical and methodological, not epistemic, grounds. Moreover, in Edwards v Aguillard, which I discuss more fully below, Justice Scalia was willing for the sake of argument to assume that impermissible motive could alone be a sufficient basis for a law to violate the establishment clause. 482 US 578, 610-11 (1987) (Scalia joined by Rehnquist dissenting).

104. See Brest, Paul, Reflections on Motive Review, 15 San Diego L Rev 1141 (1978)Google Scholar; Brest, Palmer v Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 Sup Ct Rev 95; see generally Symposium: Legislative Motivation, 15 San Diego L Rev 925–1183 (1978)Google Scholar.

105. See Columbus Bd of Educ. v Penick, 443 US 449, 508 (1979).

106. Quoted in C & A Carbone, Inc. v Town of Clarkstown, — US —, 114 S Ct 1677, 1699 n 12 (1994) (Souter dissenting) (citing Smith, Michael E., State Discriminations Against Interstate Commerce, 74 Cal L Rev 1203, 1251 (1986)CrossRefGoogle Scholar).

107. See generally Eskridge, William N. Jr., Public Values in Statutory Interpretation, 137 U Pa L Rev 1007 (1989)CrossRefGoogle Scholar; Frankfurter, Felix, Some Reflections on the Reading of Statutes, 47 Colum L Rev 527 (1947)CrossRefGoogle Scholar. See also Chisom v Roemer, 111 S Ct 2354, 2369 (1991) (Scalia dissenting).

108. See Bratman, Michael E., Intentions, Plans & Practical Reason 35–47 (Harvard U Press, 1987)Google Scholar; Nozick, Robert, Philosophical Explanations 294–99 (Belknap Press of Harvard U Press, 1981)Google Scholar.

109. Greenawalt, Kent, Religious Convictions and Political Choice (Oxford U Press, 1988)Google Scholar.

110. Greenawalt, Kent, The Use of Religious Convictions by Legislators and Judges, 36 J Ch & State 541 (1994)CrossRefGoogle Scholar.

111. Id at 553. He notes that “[t]he 1992 Republican presidential campaign was something of an exception.” Id.

112. Id at 553 (emphasis omitted).

113. Id at 554.

114. See, for example, Dent, George W., Religious Children, Secular Schooh, 61 S Cal L Rev 863 (1988)Google Scholar; Gregory, David L. & Russo, Charles J., Let Us Pray (But Not “Them”!), 65 St John's L Rev 273 (1991)Google Scholar; see also Tribe, , American Constitutional Law § 12-6 at 821–25 (cited in note 51)Google Scholar.

115. In addition to Edwards v Aguillard, 482 US 578 (1987), discussed below, see Epperson v Arkansas, 393 US 97 (1968), a pre-Lemon case invalidating a state law which prohibited the teaching of evolution in public schools.

116. 482 US 578 (1987).

117. Id at 594.

118. See Wallace v Jaffree 472 US 38, 56 (1985).

119. See 482 US at 597-601 (Powell concurring).

120. Id at 621 (Scalia dissenting).

121. See, for example, the “whereas” clauses introducing the Missouri statute regulating abortion, which was challenged in Webster v Reproductive Health Services, 492 US 490 (1989).

122. Professor Tribe worries that a statute with purely secular effects can fail if its motivation is religious. Tribe, , American Constitutional Law at 1211 n 44 (cited in note 51)Google Scholar. This worry strikes me as unnecessary, for if there is adequate secular bedrock for the statute, then it will not fail the purpose inquiry. If the secular bedrock is inadequate, then the statute ought to fail.

123. See Washington v Davis, 426 US 229, 252-53 (1976) (Stevens concurring).

124. 366 US 420 (1961).

125. That is my view, at any rate.

126. My thinking here has been influenced by Rawls', JohnPolitical Liberalism 212–25 (Columbia U Press, 1993)Google Scholar, which is not to say that his argument supports mine in any sense.

127. Reprinted in Stevens, Wallace, The Collected Poems of Wallace Stevens, 66, 67 (Alfred A. Knopf, 1954)Google Scholar.

128. For my pluralization of the ordinarily singular “ontology,” see my Godel and Langdell, 44 Hastings L J 707, 716 (1993)Google Scholar.