The Impossibility of Neutrality

How neutral can secularism be? Not that much, as it turns out.

Earlier this month, a windstorm built around another Senate confirmation hearing. The Senate Judiciary Committee held a confirmation hearing for presidential nominees to the Circuit Courts of Appeals. The controversy, however, centered around the interrogation of Notre Dame Law professor Amy Coney Barrett. California Senator Dianne Feinstein focused her questioning on the influence Barrett’s faith would have on her decisions. The topics were largely confined to Supreme Court decisions on abortion and the definition of “super-precedent.” However, Feinstein seemed to write her own headlines when she said to Barrett,

Dogma and law are two different things. And I think whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.

As with my reference to the Senate hearings of Russell Vought, my intention is not to discuss religious tests or the role of federal judges. I would like to get down to what I believe is the issue behind the issue. What exactly is Sen. Feinstein arguing in her comments?

  • Premise 1: “Dogma and law are two different things.” It is an idea that seems too simple to be harmful, but thoroughly listening to Sen. Feinstein’s comments would lead one to assume that to her different means separate and should remain so.
  • Premise 2: All religions have their own dogma. Kudos to the senator for recognizing what so many fail to understand (See my previous post.)

So, what is her conclusion? Strongly implicit in Sen. Feinstein’s comments is the conclusion that dogma should be kept separate from law, so if you are influenced by dogma, you should not be allowed to influence law, at least not as a federal judge. What else could she mean?

I absolutely understand the concern for institutional separation between the U.S. government and the Roman Catholic Church. After all, we Baptists were the ones who petitioned Thomas Jefferson so long ago, prompting his now axiomatic “wall of separation” between church and state. However, it was not the Roman Catholic Church bothered Sen. Feinstein. It was Roman Catholic dogma, Barrett’s Roman Catholic beliefs, which were “of concern.”

The government teacher in me would love to rant about the Constitutional mishandlings of Sen. Feinstein. The theology teacher in me would love to highlight the Catholic peculiarities of Dr. Barrett. However, on to the issue behind the issue.

Giving the benefit of the doubt, I believe what Sen. Feinstein was trying to uphold, and for that matter what Dr. Barrett was trying to demonstrate, was something we all value in the legal system: neutrality. After all, that is why Lady Justice balances her scales with her blindfold tied tight, is it not? So, what’s the problem?

Sen. Feinstein is following a trend that has overwhelmed American society since the early days of her political career. That trend is what sociologists have aptly called secularization. Secularization is a process by which a society becomes less theistic in, well, everything. Since the 1960s, American culture has become exponentially more secular. That is, we have seen the explicit banishment of religious ideas, interpretations, and institutions throughout our culture.

(Warning: Massive oversimplifications ahead!)

This long march towards a secular society began when Western civilization was nothing if not religious, specifically Christian, specifically Roman Catholic. When the Protestant Reformation turned the Christian church into “churches,” few governments knew how to deal with the religious diversity (i.e., several smaller Protestant groups leaving England, even though England was technically Protestant). Americans, equipped with John Locke’s natural law, dealt with the pluralism relatively well. Despite all our differences, however, the dominant worldview was still clearly theistic. As the U.S. population grew, we went from mostly Puritan to mostly Protestant to mostly Christian to mostly religious. As the religious landscape grew more diverse, American worldviews grew more differentiated.

In the last half of the 20th century, a new strategy was implemented in full force: secularism. How could a government be so overtly influenced by Judeo-Christian worldviews properly represent such a diverse society? The solution that secularism offered was to remove all reasoning and argumentation based on any distinctly religious belief from the public square. Voila! Problem solved. Right?

Here’s the thing…

Religion is more meaningful than secularism wants it to be.

The primary problem of secularism is not that it scrutinizes religion, but that it privatizes it. A Christian can be as Christian as a Christian can be, just not in their school, their work, or their politics. However, asking a Christian confine their faith to home or church is asking them to leave behind the most meaningful part of their lives. If a Christian is to go to school, leaving behind their faith, they leave behind their reason for going to school. If a Christian is to go to work, leaving behind their faith, they leave behind their motivation for working. If a Christian is to be politically involved, leaving behind their faith, they leave behind that which informs their political views.

As Yale law professor, Steven Carter wrote,

Efforts to craft a public square from which religious conversation is absent, no matter how thoughtfully worked out will always, in the end, say to those of organized religion that they alone, unlike everyone else, must enter public dialogue only after leaving that part of themselves they consider the most vital.[1]

While the sexual revolution has blown into every sector of public life, from public schools to professional sports, from bakeries to adoption agencies, Christians have been berated for refusing to go with the flow. Taking a stand on conviction is reported in the news as discriminating under the guise of religion. But, religion is no guise. To the faithful, it is more meaningful than funding, popularity, or notoriety.

Religion is more effective than secularism wants it to be.

Interestingly, there are areas in which the public square cannot afford to be too secular.

A decade ago, when Massachusetts legalized same-sex marriage, it did so with no exceptions for religious organizations involved in any type of child care, including adoption agencies. The “biggest and most experienced” adoption agency in the state, Catholic Charities, was forced to choose between violating conscience or discontinuing adoption services. Of course, it was not the Massachusetts legislature that was vilified for passing the draconian law, but rather the charities for refusing to go against their convictions.

Currently, a similar battle is raging in Michigan.[3] The ACLU is challenging a law that allows faith-based agencies to turn down prospective parents if doing so violates the group’s moral convictions. The law requires the agencies to refer adopters to other agencies if they are turned down. The fact is, the law protecting faith-based agencies does not rule out the possibility of children being adopted. However, a law taking away such protection does, forcing the largest and most active agencies to shut down instead of simply redirecting.

Similarly, in countless other areas of charity and social work, some of the largest and most active groups involved are faith-based organizations. Their presence is no threat to non-faith based organizations. But, legislation, as mentioned above, drives these organizations from their work.

Religion is more neutral than secularism wants it to be.

In the United States, the battle for separation of church and state has largely revolved around a statement made by Thomas Jefferson stating that the Constitution, specifically quoting the First Amendment, would build “a wall of separation between Church and State.” However, Jefferson did not pen those words in response to secular lobbyists who feared the establishment of religious institutions. It was in response to a Baptist association in Danbury, Connecticut, who feared the dominance of government over religious institutions.

That’s right. The most important statement in the church-state debate was written by one of our most secular founding fathers in response to the concerns of some of the most religious people in his day.

Separation of church and state has only recently become a secular concern. Historically, the debate has been driven by the religious, specifically Christians, specifically Baptists. Over four hundred years ago, Baptist ministers in England were publishing their concerns about the government asserting authority over churches.

However, the church-state separation they for which they argued was not the secularism that we see being pushed today. What they called for was true neutrality: institutional separation of church and state. Their concern was not that Christians would be too religiously-minded to be any politically good. Their concern was that the government would “meddle with religion, or matters of conscience.”

What they feared is now quickly becoming reality in the United States. In the fight to separate the institutions of church and state, we are now seeing attempts to separate the influence of religion on politics.

Secularism has become a catalyst that sociologists and theologians alike have yet to completely diagnose. The debate is far from over. However, it has become infinitely more difficult.

As Albert Mohler states:

The fact that Christians enter every conversation as believers in the Lord Jesus Christ who are bound by biblical revelation means they cannot begin without breaking the new rules. And we must remember those who break the rules are not welcome by those who make the rules.

One thing is for sure. Religion will always be more than secularism wants it to be. Therefore, secularism will never be as neutral as it wants to be.

[1] Steven Carter, The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty, p. 90.


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