Warner v Boca Raton

[Michael deHaven Newsom]

David Guinn raises several interesting questions.  I will try to answer as many of them as I can.

First, cultus refers to  what the community of faith does when it gathers as a community of faith.  Liturgy is the paradigmatic example of cultus.  However, even "Word" religions have some sort of ritual and ceremony, no matter how informal or spontaneous it might be.  The question is perhaps one of emphasis, degree, formality, significance or meaning,  and the like.  Cultus has a kind of "interior" dimension or quality to it.  Ethos refers to the moral or ethical codes designed to guide the behavior of the community of faith.  Obviously, the ethical dimension of a
religion can have both an interior and an exterior aspect or dimension.  I tend to think that the idea of cultus and ethos leads one to focus on the exterior dimension of ethos.

The belief-action distinction, see Reynolds, captures something of the difference between cultus and ethos.  An interesting problem of definition is how to characterize polygamy.  I do not know enough about the Mormon religion, but similar questions arise with regard to religious meals, as one finds in Judaism and in Islam.  Catholicism, of course, takes the religious meals idea and thoroughly "cultifies" it.  But this is another discussion.

I think that one can reasonably talk about the interior and the exterior aspects of a religion, for I think that most religions have some sense of these two things.  The Sermon on the Mount, of course, clearly speaks to ethos.  The Last Supper clearly speaks to ethos. The distinction is worth maintaining, even if one believes, as Catholicism does, that the cultus informs the meaning of the ethos.

But is "belief" interior and "action" exterior?  That is an interesting question indeed.  There is, I think, a tendency in American law to make this distinction.  Belief is often seen as a purely private matter, and indeed, there are those who maintain that belief should not be spoken in the public square.

Guinn raises a question regarding public religion.  I do not think that the distinction between cultus and ethos has much direct impact on the role or the legitimacy or the meaning of public religion.  The problem has been not that cultic practices have been favored, but rather the contrary.  See, e.g., Smith.  So the point of the distinction is not to disfavor public religion, but to protect religions in which the cultic dimension is important.  There is a bias in the law against cultic religions because the law tends to view normative religion as a religion in which
the cultic dimension is of little or no consequence.

As a firm believer in the doctrine that faith without works is a dead faith (so much for sola fide for me) I believe in the cultic justification for the ethical teachings of my own faith.  Action is a big deal, both in a private, interior, or cultic sense (herein of liturgy) and in a public, or exterior sense.

If there is a misunderstanding, I suspect it lies in the very definitiions themselves.  All that I am saying is that American law tends to disrespect the cultic dimension of religion.  Works, for me, as I have said, have a cultic predicate.  For me, cultus generates ethos in a powerful and direct way.  Works for others might have only an ethical predicate.  So the distinction does not discriminate against works, but it merely serves as a basis to understand the biases that in fact exist in American law as typified by Smith.

Michael deHaven Newsom

David Guinn wrote:

> >>> Michael deHaven Newsom <mnewsom at LAW.HOWARD.EDU> 10/04 2:13 PM >>>
> Steve, I both agree and disagree with you.  The question is not whether the judge is religious, but whether she understands the legitimacy of the cultic dimension of religion.....
> >>>>
>
> You have mentioned the distinction between cultus and ethos a couple of times on this list.  I am curious about it. Has any court ever accepted this distinction?
>
> While I think I understand what you are trying to get at with this distinction, I'm not sure that it might not prove to be a dangerous distinction.
>
> First, it may be accepted as a weakening of public religion by creating a limiting exemption for FE - that cultic activities (translated to read as simple rituals) are to be allowed while other dimensions of religion are not.  For a truly public religion it is the place that religion has in the discussion of public issues or participating in public activities (such as charitable choice) that raise the more important questions.  (This presents a variation on the theme of religion as something that occurs in private - "Between a man and his God" to quote Jefferson.)
>
> Second, this scheme places an emphasis upon cultus that some religions may not agree with.  For Muslims and for many Jews, religion finds its expression in action - not simply in cultus or ritual.  Unless I'm misunderstanding your description of these two functions, your effort favors a cultic religion over a religion of practice or works.
>
> David E. Guinn, JD, PhD
> The Park Ridge Center
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>
> deg at prchfe.org
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