In his very interesting book, The Disenchantment of Secular Discourse, Steven D. Smith explains the enormous task facing those of us worried about governmental over-reach in the HHS contraception mandate.1This was never Smith’s intention, I think, as the book was written well before the mandate, and has as its main concern to articulate why contemporary political and legal discourse is shallow, incoherent, and irrational, not only in the stump speeches but also in the land’s highest courts.
Rather than an anomaly, or even the result of debased mores and cultural life, shallowness is actually prescribed by political liberalism as currently understood. Once committed to the possibilities of Reason, liberalism has long abandoned any hope that Reason could explain ultimate realities, provide an overarching account of meaning, ground first principles, legitimize the law, or gradually weave together the many competing threads in a pluralistic society. Instead, Reason has ceded its claims to reasonableness, Smith claims, or the position that pluralism is inevitable and irresolvable, largely because questions of ultimate meaning are beyond the scope of argument. The various traditions and religions subscribe to their first principles, each of these accounts are largely arbitrary, and thus reasonability requires us to get along without real grounds, without appeals to ultimate justifications, and absent any hopes of overcoming pluralism with argument.
Reason has given way to reasonableness, with John Rawl’s the prophet of reasonableness, although reasonableness is, in the end, only possible if we consciously truncate our questions, knowingly choose arbitrary grounds, and do not attempt ultimate explanations. That is, political liberalism works if and only if we are knowingly and consciously trite.
Still, argues Smith, we know something is amiss, for our legal and political arguments do not work—we know they ring hollow, arbitrary—and so we all “smuggle” in first principles and highest values as implicit premises, albeit in deeply obscured and hidden ways. We cannot do otherwise, for to make the premises explicit would violate reasonableness, and to do without the premises dooms our arguments to obvious illegitimacy. Of course, we pretend we are not smugglers, for admitting to our premises would render our activity illicit and illegitimate.
Smith traces our smuggling in a variety of political and legal issues—end of life, the harm principle, human dignity, and so on—but I am here interested in his account of the incoherence involved in our current discourse on the separation of church and state.
According to Smith, we can distinguish the meaning of secular into a classical and a contemporary phase. Classical secularism depends on a religious framework, starting with a theological postulate that God reigns over a single, coherent reality, although God has seen fit to separate jurisdictional authority into two Cities or two Kingdoms, the City of God and the City of Man. Church and state are separated from each other as each have their own legitimate authority over two legitimate purposes. The Church controls the power of the keys, and is master of matters eternal, spiritual, heavenly; the state maintains the power of the sword, and is master of matters temporal, physical, earthly. While the border between the two Kingdoms is sometimes unclear, and even disputed, with popes excommunicating kings and kings claiming power to determine bishops, the history of secularism is one granting a real and legitimate domain to the religious realm; in fact, classical secularism begins with a religious assumption, namely, the ultimate authority of God over all things.
The Reformation alters classical secularism significantly, but maintains the overall picture. Rather than the jurisdiction of the church, the Reformers argue for freedom of individual conscience (sometimes against the church) over which the state has no ultimate control. Despite the change of location from the church to individual conscience, separate jurisdictions remain, as ordained and ruled by God, the Governor of all reality.
Contemporary secularism, however, fundamentally rejects the classical tradition, regarding the secular realm as the sole and only reality, and thus negating the very existence of the non-secular, let alone a lawful jurisdiction of the religious. Consequently, whereas the classical tradition of the secular embraced the primacy of the theological—God was reigning over all—the contemporary version rejects or reduces any notion of the non-secular entirely.
One of the Cities has arrogated the domain of the other to itself.
As a result, while our history and cultural intuitions may still support a notion of the separation between church and state, contemporary secularism has broken down the wall. Note: it is not the religious, not even the religious right who have breached the wall in this story, but rather the secularist. And they’ve not just breached the wall, they’ve extinguished its existence.
Now, clearly churches and religious groups and believers still exist, and obviously they retain some relation to the state, but in the contemporary context they no longer exist as a distinct City with its own proper rule. Still, the state is not a complete tyrant, and the religions continue to bear certain rights and privileges, but as Smith articulates, religion is handled by the state in terms determined by the liberal state, and thus in terms of justice, equality, or non-discrimination. The logic of equality and non-discrimination demands, thus, that the church be treated as any other organization in a liberal society would be treated—no fewer rights, but certainly no more, and certainly no unique jurisdiction. As Smith puts it,
… there would be very little reason to embrace any notion of separation of church and state as a distinctive and constitutive commitment. Instead, religious citizens and religious groups or organizations would simply be one class among many that the government would need to deal with. And governments would presumably deal with them in basically the same ways it deals with other citizens and other comparable (by secular criteria groups—not better and no worse.2
We immediately think of some problems—what about a group who will not allow women to serve particular religious functions, or who will not ordain homosexuals, wouldn’t contemporary secularism, refusing to grant religion any unique status, view any claims of religious exemptions from non-discrimination statutes related to these or other instances as special pleading and thus illicit? That would seem to be the logic, yes. Smith argues that the law is basically incoherent on these points (think Martinez and Hosanna-Tabor), with cases determined largely without compelling cause.
Whatever the status of the courts, Smith’s articulation is a helpful companion when thinking through the HHS contraception mandate debate. What to many of us seems a clear and obvious violation of religious freedom isn’t quite so obvious from the standpoint of contemporary secularism. In fact, from that standpoint, it would be increasingly difficult to see religious freedom as being all that relevant to anything, merely hanging on as a vestigial relic from a previous age, but no longer meaningful.
From the standpoint of current secularism, why would freedom of religion even be warranted? What does it add that would not be contained by other basic liberties? And wouldn’t granting freedom of religion as a separate freedom risk an on face violation of equality by granting rights to the religious distinct and beyond the basic liberties granted to the non-religious. Far better to jettison the whole concept.
Of course, then the game is over, for any jurisdiction of the City of God would be defunct, and any unpalatable teaching of a religious group going against the zeitgeist would have a presumption against it. Further, since contemporary discourse, as Smith has argued, operates on the condition of ignoring questions of ultimate concern, the sorts of questions and arguments needed to respond to secularism’s overreach are precisely the questions and arguments forbidden and ignored by its account of reasonableness—a stacking of the deck.
If any of this is true, it would imply, I suggest, that all the arguments for religious exemption cannot but fall on deaf ears, for the arguments would depend on (a) questions of ultimate concern or (b) defunct conceptions of the separation of church and state, and thus as nothing more than special pleading in an attempt to attain inequitable privilege. If that’s right, then it is not perfectly clear to me how the secularist position can ever be refuted if one begins from within the position—all good arguments would be disqualified from the get-go, and ideology would reign supreme.
1. Steven D. Smith, The Disenchantment of Secular Discourse (Cambridge: Harvard University Press, 2010).
2. Ibid., 133.