Vol. 13 No. 5 (May 2003)
FAITH ON TRIAL: COMMUNITIES OF FAITH, THE FIRST AMENDMENT, AND THE THEORY OF DEEP DIVERSITY by David E. Guinn. Lanham, MD: Lexington Books, 2002. 227 pp. Cloth. $65.00. ISBN: 0‑7391‑0434‑9.
Reviewed by Hans J. Hacker. Stephen F. Austin State University, Department of Political Science and Geography. Email: HackHJ2@cs.com
Communitarian critics of American civil society have argued that American courts endorse a narrow, distinctly Western and secular perspective of religion in public life (Carter 1993, Taylor 1992, Neuhaus 1984, Geertz 1973). American jurisprudence typically comprehends religion as an entirely personal choice and is best summed up by Thomas Jefferson's understanding of religion as a facet of personal life worked out solely between “Man and his God.” Communitarians argue that the U.S. Supreme Court has taken its cue from this atomistic conception of religion. While claiming neutrality as to religious creed, and asserting support for the needs of minority religious adherents, the Court has in fact discriminated against a large minority of citizens for whom religion only has meaning in the context of community with other believers. It has done so by relegating religion to the status of an "idiosyncratic expression of individual conscience" (p.138). Thus, the state of First Amendment religion clause jurisprudence has led to a sense of alienation among a large minority of religious adherents.
In his recent volume, entitled FAITH ON TRIAL, David E. Guinn proffers a solution in law to this current state of alienation. It is this broader social concern that makes considering his revision of First Amendment religion clauses jurisprudence so worthwhile. Drawing heavily on the work of Charles Taylor in the area of multi‑cultural theory and the politics of recognition, Guinn outlines the theory of deep diversity – an integrated jurisprudence that "reconceptualize[s] liberalism in a way that support[s] the values of traditional liberalism and the needs of culture and community" (p.20) which underlie much of religious practice. Thus, his work is not a rejection of traditional liberal secularism and individual rights doctrine, but an effort to require our law to take into account the full range of human interactions including cultural and individual influences.
While the Court's current jurisprudence has the virtue of adhering to the principle of procedural justice, or "the standard of strict equality in relationship to all individuals" (p.200), the problem for the Court is that the First Amendment's religion clauses were designed to protect the views of religious minorities, not the majority’s understanding of what is religion. If the Court's jurisprudence does not offer a definition of religion adequate to the understanding of those minority believers—especially where their understanding does not cause harm to others—then the Court's decisions are flawed, and indeed may violate the intention of the amendment. The Court, in fact, does much to weaken religion when it comes into conflict with the goals of the state, and its decisions become "an impediment around which religion must work" (p.69).
The alternative definition understands religion as a fundamentally shared experience among a community of adherents—a sharing without which religion itself would not fully exist, and which may sometimes require the state to treat religions differently if necessary for their survival. A look back on recent religious expression cases offers some support for this view. On only two occasions has the U.S. Supreme Court come close to identifying commonly‑held religious beliefs as necessary for the survival of a particular cultural perspective—in its treatment of conscientious objectors, and in WISCONSIN v. YODER (1972). Furthermore, the Court has on various occasions limited those individual religious expressions that tie the believer to a community of believers (e.g., GOLDMAN v. WEINBERGER (1986). Even where religious sects have made headway within the political and legal systems, they have done so only when they “play by the rules” – generally by casting their claims in terms of individual freedoms endorsed under the secular understanding of religion. For example, the Religious Right's legal victories over the last few decades have come not as a result of the Court’s endorsement of a vision of religion as a shared community, but as a right identified solely with the individual toward whom government must act neutrally (e.g. ROSENBERGER v. UNIVERSITY OF VIRGINIA (1995); WESTSIDE COMMUNITY SCHOOLS v. MERGENS (1990)).
As a result, communities of faith express consistent discontent with the place assigned to religion in civic life. Their cries for the state to recognize the merit of religious cultural attachments are met with a lack of comprehension because these claims are not cast under the assumptions of secular individualism. It is small wonder that many—particularly Protestant—religions have become heavily involved in politics based on a sense of alienation, or why politicians can direct populist boiler plate rhetoric so effectively at religious audiences. As Guinn notes, "while . . . believers may be mistaken about the issues they have chosen to fight over, their concerns are legitimate and their anger is real" (p.3). "Nothing creates political energy so well as insults” and the ignorance of religious critics, says Stephen Carter (2000, p. 57) Perhaps religion has grown up during the 20th century, as Alexis De Tocqueville noted concerning democracy in pre‑revolutionary France, like an orphan in the streets. Regardless, Guinn knows where to lay the blame for the place of religion on the perimeter of public life, and he holds the Supreme Court’s Establishment Clause and Free Expression jurisprudence accountable.
Guinn’s theory of deep diversity acknowledges the special place of religion as a culture‑bearing, or “mediating” institution between the individual and the state. In this sense, his revision of liberal rights doctrine as expressed in our religion clause jurisprudence is far more encompassing than Rawls’, Dworkin’s or Perry’s purely secular justifications for church‑state relations. Thus, his book is part liberal treatise, part cultural anthropology, and part critical analysis of our current First Amendment jurisprudence. Guinn suggests that the role of the state has been attenuated within modern liberal theory. Currently, government functions to resolve disputes that arise between individuals, and between the state and identifiable rights articulated by individuals. However, if we accept that culture is a key component within society, then the state must also extend its role to mediating disputes among different cultures and between itself and those cultures. He outlines the parameters of a jurisprudence that requires the liberal state to endorse both the rights of the individual and the importance of cultural and community attachments—of which religion is a constituent part. A truly liberal state must a) respect the fundamental individual rights that are embedded in our society in the form of longstanding rights doctrine, and b) recognize that the formation of its citizens' identities occurs within the context of cultural attachments. The state would determine the criteria under which it might side with the view of religion as a cultural institution deserving protection (i.e., endorsing unequal treatment among religions for the sake of preserving cultural integrity), or when it must act to preserve those aspects of common life that any state can demand from its citizens (i.e., demanding adherence to the principle of procedural fairness).
Guinn concludes by articulating a rudimentary standard for the state to use in resolving disputes among the diversity of American cultures and between cultures and the state. Where conflicting cultural values may coexist without causing harm to others, they must be allowed to do so. However, where values may not coexist, or where they cause identifiable harm, the state must justify its selection of one value over another based on "the highest possible standard relating to its function as authority over the common life of the community" (p.115). Thus, the state must be willing to set aside the value of equal treatment of all citizens where cultural attachments require it. And Guinn takes special care to advocate application of these criteria even in the case where a law of general applicability, which is on its face neutral, has detrimental effects on religion (e.g., EMPLOYMENT DIVISION v. SMITH (1990)). However, where cultural attachments create conflict that damages or rips the fabric of common life, the state is justified in suppressing the goals of minority cultures when it can demonstrate such harm.
While Guinn's arguments are sure to raise eyebrows among both separationists and accommodationists, his general approach is to consider carefully the ramifications of what he is proposing, and to reflect upon the broad application of the theory to past Supreme Court cases. His assessment of the KIRYAS JOEL (1994) case is particularly insightful, given the difficulty he sees with the kind of direct government intervention at issue in that case. Overall, Guinn takes the long view of what he is proposing. He notes that "inviting religion into the public domain is not a panacea for all ills. Religion is neither simply a saint nor a demon. It is as complex and fallible as any other system of human values and beliefs," and he quotes Walzer (1999) as saying "Religion is a mixed bag, exactly like secular ideology" (p.14). In the end, the theory of deep diversity is not a proposal for answering all questions and conflicts arising out of the claims of religious adherents. It is however an effort to make those claims intelligible and to provide clarity to a body of jurisprudence that has a long and problematic history. It is a fine effort to extend the implications of Taylor's work into the area of public law.
The importance of this work for the practice of political science may be just as profound. Much of our study of politics is predicated on the modern liberal fascination with individually held attitudes. Yet, our society has developed from other forces as well—some of which reflect the character of its citizens' cultural ties. Insofar as we treat political decisions as mere collections of individually determined views, we are missing a great deal that is interesting about politics. In missing these things, we make our discipline less relevant to the conduct of the politics we study. One of the contributions of the New Institutionalism is to extend the appeal of the cultural‑anthropological disciplines within sociology to the study of public law. Guinn takes this contribution a step further to endorse the revision of foundational liberal rights doctrine based on the importance of culture as a social determinant.
REFERENCES:
Carter, Stephen L. 2000. GOD’S NAME IN VAIN. New York: Basic Books.
Carter, Stephen L. 1993. THE CULTURE OF DISBELIEF. New York: Basic Books.
Geertz, Clifford. 1973. “Religion as a Cultural System.” in THE INTERPRETATION OF CULTURES (Pp.87-126). New York: Basic Books.
Neuhaus, Richard John. 1984. THE NAKED PUBLIC SQUARE: RELIGION AND DEMOCRACY IN AMERICA. Grand Rapids, MI: William B. Eerdmans.
Taylor, Charles. 1992. MULTICULTURALISM AND THE POLITICS OF RECOGNITION. Princeton: Princeton University Press.
Walzer, Michael. 1999. “Drawing the Line: Religion and Politics.” UTAH LAW REVIEW 1999: 619.
CASE REFERENCES:
BOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL v. GRUMET, 512 US 687 (1994).
EMPLOYMENT DIVISION v. SMITH, 494 US 872 (1990).
GOLDMAN v. WEINBERGER, 475 US 503 (1986).
ROSENBERGER v. UNIVERSITY OF VIRGINIA, 515 US 819 (1995).
WESTSIDE COMMUNITY SCHOOLS v. MERGENS, 496 US
226 (1990).
WISCONSIN v. YODER, 406 US 205 (1972).
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Copyright 2003 by the author,
Hans J.
Hacker.