God and Law: To What Extent can Religious Morality be imposed via Democracy
By Joseph W.H. Lough
Phi Alpha Delta Forum
Life Valley Sciences
2010 October 14
First, I would like to thank Mr Ka Shing Chan and Phi Alpha Delta for this opportunity to reflect publicly on a topic that occupies so central a place in contemporary public discourse as God and Law currently do. In his invitation to me, Mr Ka Shing Chan wrote that the theme of this forum would be “God and Law: To What Extent Can Religious Morality Be Imposed via Democracy?”
I would like to beg Mr Ka Shing Chan and Phi Alpha Delta the indulgence of allowing me to revise the theme of my talk ever so slightly. Because I think that the question is not whether religious morality can be imposed via democracy; but whether we should want to impose religious morality not in a democracy, but in a republic.
Because the question whether we can impose religious morality by way of democracy is, I think you will admit, something of a moot point. Did we live in a society where social hierarchy was believed to be natural—a society were privy-lege or private law held general validity and enjoyed widespread legitimacy—then we would not be discussing whether external force could generate moral affection or conduct. For not only would it then be clear to all how “bad company corrupts good morals,” but it would also be clear to all that the surest way to provoke good moral conduct, as Proverbs 22 tell us, is to “train up a child in the way he should go.” In such a society, morality is composed in its entirety of habituation in doing good.
However, beginning in the 14th century religious practitioners came increasingly to question, first, whether mere external performance of the good was sufficient to embody a truly moral life, and, second, therefore, whether morality could be induced by external coercion; or, whether, to the contrary, even a moral act, if compelled by external force, was thereby rendered immoral. Eventually these doubts issued forth in one of the most radical turns in religious history—the replacement of outward performance of the good and external signs of divine grace with purely internal dispositions of the heart and internal effects of immaterial divine grace: the Protestant Reformation.
On some level, of course, this shift in religious affection had little or no effect on whether individuals could be or should be coerced by external authorities to perform the good. Indeed, in many instances Protestant authorities could be even more coercive than their Roman Catholic or Orthodox counterparts. After all, Protestants knew—as Roman Catholics and Orthodox did not—that when they coerced outward conformity to the law, the inner state of the soul was left untouched.
And, yet, this separation of outward performance and inner disposition—a separation completely foreign to religious practitioners in other societies; this separation already pointed in the direction of a separation of civil law and religious or spiritual affection. Civil law was a matter appropriately referred to the Christian Magistrate; religious or spiritual affection was referred to the father confessor, the pastor, or the priest.
The matter, however, was not settled here. Far from it. As we know, much blood needed to be spilt before Protestants and Catholics, Presbyterians and Anglicans, Lutherans and Reformed would resolve to place themselves under the shared civil authority of one or another Sovereign and place themselves under the religious authority of duly elected or appointed confessional leaders. Leviathan will rule over the body and God will rule over the soul.
Yet, even this compromise has not proven entirely satisfactory. Gone, after all, are the days of scarlet letters, stake-burnings, stockades, public ridicule, stoning, pillorying and the like. Slowly, even imperceptibly, community after community, parish after parish, county after county, and state after state determined that punishing the body in any form was strictly a matter of civil magistrates. Perhaps equally important, these civil magistrates, one after another, in one region after another, determined that they were not qualified to judge much less punish individuals for crimes of the heart or spirit.
And so, by the 1950s and certainly by the 1960s, civil enforcement of virtuous conduct had become a thing of the past.
But, it will be objected, what I have presented here is no more than an historical review, not a moral or ethical or legal argument of what should be the case; only a historical description of what has been the case.
Moreover, it could be objected furthermore that this gradual shift away from outward, public enforcement of religious morality, first by public authorities, then by religious authorities themselves, shadowed a gradual shift away from public religion and toward private religion generally; so that we would not be entirely mistaken to conclude that this shift followed a general demographic—not to say democratic—shift away from corporeal religion and punishment and toward private, non-corporeal, or spiritual religion and private, non-corporeal punishment.
This shift—call it disenchantment or secularization or humanism or whatever—could therefore, on some level, be characterized as democratic.
Could we not then also characterize the shift back toward increased external enforcement of religious morality as democratic? As the religious and spiritual affections of the population shift over time, so do the laws governing public performance of or conformity to the religious or spiritual affections of the democratic majority: prayer in public schools, teaching respecting special creation or evolution, laws respecting marriage or the confessional orientation of public school instructors or the sexual orientation of members of the armed services, or tax exempt status of religious institutions.
Whether we would describe these shifts in affection, conduct, and law as shifts in inner “religious morality” or merely shifts in outward conformity to public law; or whether we would ascribe them to genuine democratic pressures and processes or merely to shifts in funding sources; such questions are nearly impossible to resolve since they invite us to look into men’s and women’s hearts—and we are not, or in any case I am not a competent judge of what takes place in the hearts of other individuals.
They do, however, undoubtedly point to a shift in affection, democratic or otherwise.
Which is one of the reasons why I think it might be more helpful if we reframe this question, not as a question about religious morality and democracy, but as a question of religious morality and republican ideals. The very essence of res publica—of public things—after all concerns those things that we hold in common, those things that we can have any hope of sharing in this life.
Here I can answer unequivocally: Should we want to impose religious morality in a republic? No, we should not.
In this respect I share with the framers of the US Constitution the republican conviction that religion was strictly a matter between an individual and his or her God; be that the God of Congregationalism, Anglicanism, Presbyterianism, or, , as was the case for many of the framers, even Unitarianism or Deism, often the handmaid of Unitarianism. But, of course, no officer of the United States ever felt compelled to make more than a passing reference to religion in his official statements, since, to do so could have appeared to violate not only Article VI of the Constitution, but also the establishment clause of the Bill of Rights.
Indeed, the closest we come to an official statement respecting religion is buried in an obscure treaty executed in 1797 between the United States and Tripoli, under the signature of John Adams, in the 11th article of that treaty. It reads simply that: “As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries.”
Nor is the reason for Adams’ insistence that his nation was not founded on the Christian religion difficult to divine. Republican ideals were, on the whole, deemed entirely inimical to revealed religion. As every school boy would have known, since it was recorded on their scarred knuckles, Republicanism was grounded in ancient pagan Greek philosophy, translated and expanded upon by godless Renaissance humanists, and disseminated by radical opponents of both Crown and Cross in the English Revolution. It was the doctrine of godless Scotsmen and French Enlighteners, not devout practitioners of true religion.
Not that the framers were irreligious. Far from it. But, since their doctrine of government was by every one’s admission a child not of revealed, but of natural religion, not of Christian dogma, but of reason and reason’s God, the very thought of bringing the two into conformity with one another could not help but create mental dissonance of the worst sort. Revealed religion, which by everyone’s admission yields to no democratic give and take, since God and God’s law are not subject to the laws of men—revealed religion could not help but destroy republican ideals; similarly, republican ideals, which were themselves no servants to the will and whim of a largely ignorant democratic majority; republican ideals could not help but contaminate revealed religion—as though God would submit to a public that was not itself first subservient to Divine will.
As we see vividly displayed here, the framers of the US Constitution had adopted and internalized that peculiar schizophrenia which the truly religious person finds it so repugnant, and so difficult, even impossible for him to understand, much less tolerate; how can we permit our children to attend public schools that hire openly gay or lesbian teachers? How can I support a Governor or Legislature or a system of so-called justice that condones the marriage of men to men or women to women—in clear violation of God’s revealed law? How can I send my children to schools that deny that God created the earth in six days? How can I live in a nation that will not permit crosses to be displayed on public buildings or crèches deployed at city halls or prayers raised to Jesus at public functions? God commands that murderers be put to death—by stoning. How can I remain a citizen of a state that lets murderers go free, but condones the murder of the innocents? How can I?
If these questions strike a cord with you, you are not alone. There are many, almost certainly a majority, of Americans who since 1783 have felt that our legal tradition in general and the US legal tradition in particular is too secular, too humanist, too beholden to post-Christian, post-religious institutional and economic law to serve the interests of true believers.
Roman Catholics have long objected to the justice system’s domination by a narrow, culturally Protestant ethos, to the detriment of Thomistic natural legal and hence Roman legal theory. For this very reason, even the most conservative of evangelical Christians held firm against Roman Catholic objections to US law in general, but to reproductive and family law in particular.
As late as the 1950s, one could not find a conservative Protestant ready to embrace the Roman Catholic belief—itself grounded in pre-Christian natural science—that, since the male contribution to reproduction was the active agent, the egg the passive and dead receptacle, the spilling of seed, much less the termination of a pregnancy at any stage, was tantamount to murder. All Protestants—no matter how conservative—instead embraced the traditional Protestant belief that human life began at the quickening, that is to say, when the mother felt the fetus kick, no earlier than the third month.
So it was not reproductive rights that drove conservative Protestants into the arms of their arch-enemy, the Popish church. Rather what drove conservative Evangelicals to make common cause with conservative Roman Catholics was their growing shared recognition that Republican ideals were hostile to their common aim of realizing the gospel in every dimension of their life—including politics. Their about face on reproductive law, therefore, did not so much signal a victory for Roman Catholicism over the Protestant Reformation as much as a victory of the anti-Republican, pre-revolutionary and anti-revolutionary natural law tradition over the Republican ideal itself.
(As an aside, we might note that, however much we may laugh and fret over the Tea Party, like its 18th century precursor it too is no friend of Republican ideals, preferring instead to embrace the anti-federalists and anti-republicans, which is to say the democrats, who deeply distrusted the elitism and exclusivity of 18th century Republicans.)
(As an additional aside, we should also note not simply that the majority of justices on the US Supreme Court are now Roman Catholic—inconceivable only a half-century ago—but even more surprisingly that the Court enjoys not one Protestant—not one.)
So, in answer to the original question, not only can religious morality be imposed via democracy. It already has been, is being, imposed. Indeed, the very notion of a res publica, a public space where we are united by the public things we share, has become nothing short of anathema to the political party that continues to sport this ideal in its very name.
Let me close, however, on a more personal note. As many of you know—although it may still surprise some of you to learn—I am an active member of Saint Mark’s Episcopal Church, a very high Anglo-Catholic parish here in Berkeley. Since I am a trained historian, here is a refresher. You may recall that our tradition—the Anglican tradition–underwent no fewer than three major upheavals; the first when we severed our ties with the Roman Catholic Church in the 16th century; the second when we made peace with Roman Catholic practice in the 17th century; and the third when, in order to remain Americans, we severed our ties with the British Crown and with the British Crown’s Church in the 18th century.
These three upheavals have defined who we are. We are a Protestant Church, which means that while we are respectful of and attentive to the traditions and canons of the Holy Catholic Church, they do not hold ultimate authority for us, since they must share the stage with Holy Scripture, on the one hand, and the current working of God’s Spirit among us today, on the other. The second of these upheavals came when we rejected the Protestant radicals who wished to subject the British Crown and Nation to the rule of the clergy and when we therefore made our peace with Roman Catholic liturgical practice. It spelled an end to the bloodshed, venom, and hatred that had characterized Protestant and Catholic relations in Great Britain throughout much of the 17th and 18th centuries. But, finally, and perhaps most critically, first in 1776 and again in 1783, American Anglicans were forced to sever their relationship to the British Crown and to pledge their allegiance to the new Republic. Of the three upheavals, this decision was perhaps the most gut-wrenching since it entailed not only turning our back on our Sovereign—and, indeed, the very notion of earthly Sovereignty—but also entailed embracing an ideal, the Republican ideal, that most Christians in the 18th century still viewed as hostile to the very gospel itself.
Yet, in these three upheavals we have I believe been trained up in the fine art of balancing our earthly citizenship with our heavenly calling, not sacrificing one for the other, but fully embracing both.
This, of course, is no more popular today than it was in the 18th century. How can one embrace Republican ideals and still remain a true Christian? What hath Jerusalem to do with Athens, the City of God with the City of Man?
Democracy can serve virtually any ends, even and often the most evil. Religious morality, while a light unto my own path, too often becomes in the hands of the state a foundation for the worst kind of godless violence, oppression, and evil. The framers of our Constitution settled upon Republican ideals because they knew that only by strengthening what we share in common could we hope to survive as a nation. You will therefore have to forgive me if I display my doubts too openly, but I fear that these ideals are no longer those of the majority of my countrymen; that we no longer want to share things public in common; that we have turned instead to things that we cannot possibly share together; and therefore if this state persists that we shall not long last as an embodiment of Republican ideals. I pray that I am wrong—I really do. But I fear that I am not. God help us.