LAW JULY 11, 2011
by Paul Horwitz
Oxford University Press, 316 pp., $65
BOOKS ABOUT LAW AND RELIGION often follow a familiar pattern. There is first a rapid and perfunctory nod to the text of the First Amendment: yes, yes, we all know—no state interference with the free exercise of religion and no religious establishments. There is next an earnest expression of dissatisfaction with what is universally deemed a legal wasteland. Usually this portion of the book is developed in a bleak doctrinal tour d’horizon punctuated by moans about the law’s messiness, its chaos, its incoherence and misguidedness, and its failure either to live up to the founding generation’s ideals or to respond to contemporary urgencies, or both. This is followed by an admonition that things must be made right, and soon, lest something really awful happen. Finally, there is an offer to resolve these problems with the shopworn instruments of liberal political theory. An ideal philosophical vision of the proper relationship among citizens, religious institutions, and the state is proposed and defended. As a general matter, one or two, or perhaps a very few, values are assigned priority. Not long ago, strict church-state separation was the favored value; today, equality and neutrality are the most common contenders. The typical book then proceeds to describe in detail the nature of the perfect theoretical resolution and its salutary, improving effects on the law and our lives.
How refreshing, then, to see an entirely different kind of book in The Agnostic Age, by constitutional scholar Paul Horwitz. Horwitz writes convincingly that the prevailing academic approach to law and religion, in which abstractions like equality and neutrality are taken as foundational touchstones for resolving religious liberty conflicts, has led to a stale and unedifying impasse. There were impeccable historical reasons for theorists of religious liberty to assiduously keep their distance from the black dragon of religious truth. Centuries of war and blood-soaked religious persecution are evidence enough. But the “liberal consensus”—one of whose primary tenets is that the state ought to remain resolutely neutral on the nature of the good and the true, and certainly on the question of religious truth—shows signs of strain from without and within. From without, religious people have for some time complained that the naked public square short-circuits any place for religion in public life. From within, assorted nonbelievers charge that liberal neutrality displays a pusillanimous incapacity to destroy what Voltaire knew needed destroying—écrasez l’infâme!
The problem, says Horwitz, is that contemporary intellectual thought about the value of religion—and therefore of religious freedom—is chained to the delusion that it can continue to proceed entirely from value-neutral assumptions. The liberal consensus is fraying, perhaps even fragmenting, because religious freedom, if it continues to enjoy constitutional protection, must be valuable for some reason—a reason that cannot be discerned without poking the dragon, at least a little. Yet this book is no exercise in descrying, let alone (heaven save us) declaring, religious truth itself. It is an attempt to describe a more agreeable, curious orientation to questions of religious truth—a provisional commitment neither to religious truth nor to its falsity, but a genial receptivity to religion’s assertions of the true.
What form, then, would a theory of religious liberty take which took seriously—which truly invested itself in—religion’s claims to truth? The bulk of the book is devoted to arguing that it would assume an agnostic cast of mind. This move is surprising and controversial in two ways, one conceptual and the other constitutional.
The conceptual difficulty is that, at least historically, agnosticism is a theological and philosophical position studiously committed to avoiding the subject of religious truth. “Agnosticism” was a term coined by the biologist Thomas Huxley in the mid-nineteenth century, but its Greek etymology, ά γνώσις—“without (spiritual) knowledge”—leaves little doubt about its commitments. Agnosticism has much in common with an older skeptical and empiricist outlook, one which favors a self-conscious suspension of judgment (if not of inquiry) about religious truth, at the very least until we get our hands on much better evidence than what is currently on offer. Sometimes agnosticism is manifested in a yawning indifference to religion’s truth claims and in the reproach that we ought to be spending our efforts on other at least potentially more fruitful matters. It is somewhat puzzling and counterintuitive, therefore, for Horwitz to champion agnosticism if his aim is exactly to foreground that which agnostics traditionally have consigned to the distant background.
Horwitz’s attempt to circumvent this seeming incongruity is elegant. He claims that his agnostic—the “new” agnostic (a counterpoint, perhaps, to the much-noticed “new atheist”)—is not a jaded and dismissive doubter, but an empathetic and interested, if contingently reserved, conversation partner. Citing the William James of The Will to Believe, Horwitz writes that the new agnostic is comfortable existing in a position of perpetual tension in the “open spaces” of doubt and belief, of uncertainty and commitment. At times Horwitz brings a keen artistic and literary sensibility to the project, relying on Keats’s luminous description of the poet’s “negative capabilities,” which enable him to take an “imaginative leap” inside what are otherwise unknown and unexplored ways of life. If there is a suspicion that new agnosticism is tantamount to a vapidly undifferentiated, least-common-denominator “spirituality,” Horwitz doesn’t exactly conclusively refute it. Still, he is clear that new agnosticism need not be skin-deep; it might probe the depths of complex and difficult belief systems, profiting greatly from the engagement. Indeed, there is a late Romantic aesthetic which permeates the book, a sense in which religion, like art, is a phenomenon to be both penetrated and experienced. “What shocks the virtuous philosopher,” said Keats, “delights the cameleon poet.” Behold the Romantic’s rebuke to the Enlightenment—and an oblique but powerful criticism of law and religion scholarship in our time.
But even if one were attracted by this sophisticated and urbane vision as an individual ethos, can it be translated into the hard and uncompromising language of the law? Can it be converted into a public and collective approach to the First Amendment? The constitutional problem for new agnosticism is that theories of religious liberty came into being precisely because the agents of the state routinely demonstrated that they were neither qualified nor competent to take empathetically imaginative leaps that would bind the rest of us. Not much has changed on this score. Horwitz is alive to the objection, and he takes pains to emphasize that the constitutional agnostic does not reach firm conclusions about religion’s truth claims, but remains empathetically open to the possibility that those claims may be true. What is more, Horwitz concedes that he does not necessarily disagree with the conclusions that various prominent liberal theorists have reached on the merits of free exercise and establishment disputes. One must then ask, however: what difference does empathetic openness to religion’s truth claims make to the law of religious liberty if in the final analysis, the legal outcomes don’t change?
Potentially, a great deal of difference. The conclusions of cases are important, to be sure, but the modes of reasoning, the dicta, the written style of the opinion, and the omissions no less than the inclusions—all of these have a vital effect on the shape of law and its future. The spirit of a decision, its mood and music, can be enormously influential. In America’s contemporary pluralistic welter, constitutional agnosticism permits judges, its chief audience, to mediate more effectively than its rivals between the truth assertions of religious claimants and the generally secular claims of the state.
Nevertheless, one is at times left to wonder what countenancing religious truth contributes that empathy does not. An empathetic approach might concern itself not only (or even primarily) with religious truth, but with the swirl and conflict of values that are the defining characteristic of First Amendment disputes. Horwitz is never quite plain about why it is that government officials should concern themselves especially and particularly with truth, as compared with any number of values—liberal and otherwise—which attend the conflicts of religious liberty. And there is also more than a nagging doubt about whether judges are any more competent today to undertake this difficult exercise than they have ever been. To the extent that church-state separation, properly understood, still holds out appeal, this book may make the reader think twice before abandoning it.
These reservations, however, should not detract overmuch from what is a stimulating, thoughtful, and innovative book whose signal contributions are its creativity, its resonant descriptions of disappointment with the reigning scholarly orthodoxies, and its bold effort at re-imagining these age-old and perennially insoluble controversies with grace, humility, and generosity. The humane, layered, and cultivated qualities of its author are on full display throughout. Indeed, one wishes that a Judge Horwitz could be cloned to take full charge of the First Amendment—to implement systemically the sort of nuanced and graduated approach that is the constitutional agnostic’s calling card. That we must muddle through with the judges we have, not those we might wish for, makes the ambition of Horwitz’s project daunting and even slightly frightening. But as an aspiration—for citizens and judges alike—it is no less rewarding for all that.
Marc O. DeGirolami is Assistant Professor at St. John's University School of Law.