Friday, January 7, 2005

One University Under God?

By Stanley Fish

In an episode of the long-running TV drama, Law and Order, the character Jack McCoy, an assistant district attorney (played to a self-righteous fare-thee-well by Sam Waterston), addresses a jury made up largely of Jews. The jury's composition has been engineered by the defendant's lawyer, who knew in advance that he would try to justify his client's act of homicide by saying that it had been done in the name of Israel and the Jewish people.

McCoy challenges the jury: "Are you going to render your verdict as a citizen or as a Jew? Do you choose citizenship or culture?"

There are several things worthy of comment here, including the welcome spectacle of a popular medium taking on complex, even intellectual, issues. But of course no network program would tackle an issue that did not resonate with the general public. That is especially true of Law and Order, which from its beginning (it seems to have been around since the dawn of time) has had its plots follow the headlines. Only if the tension between commitment to the rule of law and commitment to one's ethnic or religious affiliation was, so to speak, in the news would a television writer put it at the heart of a story.

Nowadays, in the wake of September 11, there often seems to be nothing else in the news, as we continue to debate the questions that were being asked within hours of the attacks on the World Trade Center: Is this a religious war? If so, what exactly is our religion? If not, what kind of war is it? Do the terrorists represent Islam or only some perverted version of that faith? Who is to say? By what evidence would the determination be made? Is evidence the right measure to employ when answering such questions? Is religiously justified violence different from violence exercised during the commission of a crime? (Important moments in the first Die Hard movie turn on that question.) Is killing fueled by religious zeal any different from killing fueled by a desire for money and power? Is it better or worse? Will the puzzles of such queries be solved by rational analysis? Is rationality the right standard to invoke in the context of matters of faith? Can faith and reason be reconciled? Should they be?

But even before the events of September 2001, there was a growing recognition in many sectors that religion as a force motivating action could no longer be sequestered in the private sphere, where the First Amendment, as read in the light of John Locke and Thomas Jefferson, had seemed to place it.

It was Locke who had proclaimed (in A Letter Concerning Toleration) that it was above all necessary to "distinguish exactly the business of civil government from that of religion, and to settle the just bounds between the one and the other." Jefferson coined the phrase "wall of separation" and glossed it: "It does me no injury for my neighbor to say that there are twenty gods or no God; it neither picks my pocket nor breaks my leg." That is, if we desire civil peace and a prosperous commonwealth, we must remove from the public table issues that carry within them the seeds of contention and civil war.

To be sure, there are many instances in our history when Locke's "just bounds" were not observed; but even so, for a long time it was still the presumption that the doctrine of religious freedom went in both directions: Individuals could freely practice their religion no matter what it might be, and the state could enter into its deliberations free of any concern that what it did might fall under the interdiction of religion.

In practice, the only way the independence of one sphere from the other could be maintained was to limit free-exercise rights to those activities that were not in violation of any generally applicable laws. That limitation, first stated authoritatively in 1878 in Reynolds v. United States (the practice of polygamy can not be justified simply because a religion commands it) was reaffirmed as recently as 1990 in Employment Division v. Smith (the fact that a religious ceremony mandates the use of a controlled substance does not protect believers from prosecution).

As we entered the last decade of the century, it could still be said that the wall of separation was pretty much in place. But in the last 15 years a lot has changed, and by 2000, observers were alert to the change and commenting on it. Peter Beinert, in the midst of the Bush-Gore election campaign, predicted that "religion will increasingly replace electoral politics as the realm where battles for the national soul are fought."

We now know that he was not quite right: What we saw in the election of 2004 was the inter-penetration of religion and electoral politics, with professions of personal faith becoming as important or more important than the announcement of policy positions.

Some Roman Catholic bishops inveighed against John Kerry from the pulpit. A Gallup poll tells us that two out of three Americans believe that the problems of the nation can be solved by religion. The Left Behind books are a publishing phenomenon. One of the most popular movies of the year (or of any year) has its characters speaking Hebrew and Aramaic. Almost every athlete interviewed on television attributes his or her success to Jesus Christ. Every speech given by every politician ends with "God Bless America." What's going on here?

A full answer would require hundreds of columns and many books, but that answer would certainly take note of a number of developments (they are not presented in the order of their importance): a growing lack of confidence in the capacity of the political process to do (or even recognize) the right thing; a feeling, sometimes vague and sometimes sharply articulated, that there is something missing at the heart of American life; the increasing political activism of fundamentalist faiths; the rise of "New Age" spirituality and the proliferation of "spiritual paths"; the emergence of "identity politics," politics that eschews universal standards of judgment in favor of judgments tied to group interests; the related emergence of multiculturalism, which honors the values of particular cultures and calls into question the availability or even the existence of an independent set of values recognized by all rational persons; the appearance in the law of the "cultural defense," the defense that says "because it's not a crime in the country I came from, I shouldn't be charged with a crime if I do it here."

There have also been specific signs: In 1995, the Supreme Court surprised many (including Justice Souter) by ruling (in Rosenberger v. Rectors) that the University of Virginia must grant financial support to an evangelical magazine, on the reasoning that to deny it money would be to commit the First-Amendment sin of viewpoint discrimination.

A more recent decision (2002) opened the way to vouchers for church-supported schools so long as the money is funneled through parents and not given directly.

So-called faith-based initiatives have been embraced by both major parties (although with different inflections). In every sector of American life, religion is transgressing the boundary between private and public and demanding to be heard in precincts that only a short while ago would have politely shown it the door.

And the academy is finally catching up. Not that religion has been absent from the university as an object of study. Courses like "The Bible as Literature" and "The American Puritan Experience" have been staples in the curriculum for a long time, as have related courses on the civil wars in 17th-century England and the religious poetry (formerly called "metaphysical") of the same period.

The history of religion has always been a growth industry in academe and has brought along with it the anthropology of religion, the sociology of religion, the economics of religion, the politics of religion, religious art, religious music, religious mysticism, religion and capitalism, religion and law, religion and medicine, and so forth.

But it is one thing to take religion as an object of study and another to take religion seriously. To take religion seriously would be to regard it not as a phenomenon to be analyzed at arm's length, but as a candidate for the truth. In liberal theory, however, the category of truth has been reserved for hypotheses that take their chances in the "marketplace of ideas."

Religious establishments will typically resist the demand that basic tenets of doctrine be submitted to the test of deliberative reason. (The assertion that Christ is risen is not one for which evidence pro and con is adduced in a juridical setting.) That is why in 1915 the American Association of University Professors denied to church-affiliated institutions of higher learning the name of "university"; such institutions, it was stated, "do not, at least as regards one particular subject, accept the principles of freedom and inquiry." That is, in such institutions the truths of a particular religion are presupposed and are not subjected to the rigorous and skeptical operations of rational deliberation.

What that meant, in effect, was that in the name of the tolerant inclusion of all views in the academic mix, it was necessary to exclude views that did not honor tolerance as a first and guiding principle.

Walter Lippmann laid down the rule: "Reason and free inquiry can be neutral and tolerant only of those opinions which submit to the test of reason and inquiry." And what do you do with "opinions" (a word that tells its own story) that do not submit? Well, you treat them as data and not as candidates for the truth. You teach the Bible as literature -- that is, as a body of work whose value resides in its responsiveness to the techniques of (secular) literary analysis.

Or you teach American Puritanism as a fascinating instance of a way of thinking we have moved beyond: There used to be these zealots and they wanted to run things, but we've gotten over that and now we can study them without being drawn into the disputes about which they were so passionate.

Of course, there's still a lot of that, but alongside of it is a growing awareness of the difficulty, if not impossibility, of keeping the old boundaries in place and of quarantining the religious impulse in the safe houses of the church, the synagogue, and the mosque.

Again the causes of this shift are many and would require volumes to explain, but some things seem obvious. The enormous effort of John Rawls to maintain the boundaries by elevating for public purposes one's identity as a citizen above one's identity as a believer ("For the purposes of public life, Saul of Tarsus and Paul the Apostle are the same person") has produced a vast counter-literature of its own, much of it opening up questions that the liberal academic establishment had thought long settled.

The debate was joined from another perspective in l984 when Richard John Neuhaus published his enormously influential The Naked Public Square, a passionate argument against the exclusion from the political process of religious discourse. Not long afterward, Neuhaus established the journal First Things, a subsidiary of the Institute on Religion and Public Life "whose purpose is to advance a religiously informed public philosophy for the ordering of society."

Many of the contributors to First Things are high-profile academics situated in our most distinguished private and public universities, and it is clear from their commentaries that they see no bright line dividing their religious lives from the lives they pursue as teachers and scholars.

Following in the wake of Rawls and Neuhaus, any number of theologians, philosophers, historians, and political theorists -- led by major figures like Alasdair MacIntyre, Michael Sandel, Charles Taylor, and Stanley Hauerwas -- have re-examined, debated, challenged, and at times rejected the premises of liberalism, whether in the name of religion, or communitarianism, or multiculturalism.

To the extent that liberalism's structures have been undermined or at least shaken by these analyses, the perspicuousness and usefulness of distinctions long assumed -- reason as opposed to faith, evidence as opposed to revelation, inquiry as opposed to obedience, truth as opposed to belief -- have been called into question. And finally (and to return to where we began), the geopolitical events of the past decade and of the past three years especially have re-alerted us to the fact (we always knew it, but as academics we were able to cabin it) that hundreds of millions of people in the world do not observe the distinction between the private and the public or between belief and knowledge, and that it is no longer possible for us to regard such persons as quaintly pre-modern or as the needy recipients of our saving (an ironic word) wisdom.

Some of these are our sworn enemies. Some of them are our colleagues. Many of them are our students. (There are 27 religious organizations for students on my campus.) Announce a course with "religion" in the title, and you will have an overflow population. Announce a lecture or panel on "religion in our time" and you will have to hire a larger hall.

And those who come will not only be seeking knowledge; they will be seeking guidance and inspiration, and many of them will believe that religion -- one religion, many religions, religion in general -- will provide them.

Are we ready?

We had better be, because that is now where the action is. When Jacques Derrida died I was called by a reporter who wanted know what would succeed high theory and the triumvirate of race, gender, and class as the center of intellectual energy in the academy. I answered like a shot: religion.