what troubles me

[Michael deHaven Newsom]

I had not planned on weighing in on this matter, but I wish to make a point or
two.

As everybody on this list surely knows, I am sorely troubled by the inherent
coercive power of religious minorities vis a vis religious minorities.

It might be useful to refocus the discussion on the question of majority rights
and minority rights.  What emerges, I think, is an appreciation of what can be
called strategic separationism, a subject, inter alia,  which I address at great
length in a forthcoming article.  There is a tendency, I fear, for some to call
those of us who believe in such a thing "secularists," "atheists,"  "secular
humanists" and the like.  This overlooks the fact that many strategic
separationists are deeply religious people who would prefer no religion in
"public" settings to the wrong religion in such settings.

I do not know whether strategic separationists are "liberals" or not, and I do
not know whether they are "tolerant" or not, but I do know that they fully
appreciate the inherent coercive power of religious majorities and I do know
that they are concerned to protect religious minorities from status and
psychological harm.

I would be interested to hear from both Steve and Eric on the foregoing, namely
their opinion on strategic separationism, its meaning, and its value or worth
(if any).  I think that there replies would shed a great deal of light on the
intersection of law and religion, or, perhaps to put it differently, Church and
State.

Michael deHaven Newsom
Professor of Law
Howard University
School of Law


Eric Cernyar wrote:

> I appreciate Prof. Jamar's post.  Prof. Jamar asked me what troubles me.  It
> is not the "liberal tradition," as Prof. Jamar has just described it.  It is
> the advocacy by persons pretending to espouse the liberal tradition to,
> e.g., use compulsory public education to actively dissuade children from
> their faith, or (in France) pass laws prohibiting religious proselytizing
> because proselytizing is proclaimed to be inconsistent with the liberal,
> pluralistic values of a free society.  (I posted an article from the
> Washington Times about a year or two ago on this French proposition, but I
> no longer have the post, and have not heard anything about it since then).
>
> Prof. Jamar asked, "where are the voices condemning Falwell and hate
> mongering?"  I myself have wondered where the voices were decrying the
> attempts by the French left to prohibit the Great Commission.  I didn't hear
> any, probably because it is hard for a monolingual person like me in America
> to know very much about what the French are debating about, and perhaps also
> because those on this list may not consider what happens in France to be
> very relevant to the law of government and religion in America.  But
> assuming that the liberal tradition is as alive on east side of the northern
> Atlantic as it is on the west side, what is accepted with little protest
> there could, I suppose, be accepted here as well.
>
> Please forebear with me responding to Prof. Jamar's remark, "I think it is
> very hard to be certain that one has the truth and the only truth and not
> want to use every means to advance that truth."  I don't think that most
> evangelicals believe that they have a complete lock on the truth.  While we
> generally ascribe to Christianity's exclusive truth claims (e.g., John 14:6,
> Acts 4:12, I Cor. 3:11, I Tim. 2:5), we also believe that "we know [only] in
> part" (I Cor. 13:9, see also I Cor. 8:2) and that what they see is "but a
> poor reflection as in a mirror." (I Cor. 13:12).  The result is that I, like
> many evangelicals, have somewhat ambiguous conceptions about the
> consequences of disbelief, and often resign ourselves to saying only God can
> judge the heart.  At the same time, we tend to be motivated enough by those
> exclusive truth claims and the conviction that Christ's death on the
> cross -- and indeed Christianity itself -- cannot have much meaning apart
> from them (why then did He have to die if there was another way to be
> reconciled with God?) to support missionary activities throughout the world.
> I want Prof. Jamar to know that most orthodox Christians do not gloat over
> the doctrine of hell.  (2 Pet. 3:9).  We struggle with it.  We are
> uncomfortable with it, and for that reason, we rarely talk about it.  We
> strive hard to understand it, and like C.S. Lewis, are able to see a little
> logic in it.  But we are still left with, like Paul, "great sorrow and
> unceasing anguish in [our] heart[s]" (Rom. 9:2).  Ultimately, as with many
> other Christian mysteries, we accept it by faith.  "How unsearchable his
> judgments, and his paths beyond tracing out!  Who has known the mind of the
> Lord?  Or who has been counselor?"  (Rom. 11:34).
>
> In any event, as I said before, orthodox Christians are implored by
> Scripture to "make every effort to live in peace with all men" (Heb. 12:14).
> Besides, forced confessions of belief, whether employed through the sword or
> through threat of imprisonment, or directed through a theocracy or
> near-theocracy, is, I believe, a terribly ineffective way of advancing any
> ideology, and an impossible way of advancing "truth," with which such means
> I find "truth" to be inconsistent.
>
> Finally, on a different note, I suppose Marxists and Nazis can be perceived
> as viewing themselves to have a "lock" on the truth.  But I don't think that
> was their driving motivation.  I have always perceived both Marxism and
> Naziism to represent less two ideologies that proclaimed absolute truth than
> two ideologies that embraced a raw, Nietzschean, will to absolute power.
> The issue, it seems to me, wasn't for them who had the better grip on
> absolute truth, but who was most determined to sieze absolute power.  That,
> I think, is a much greater threat to liberty.
>
> --Eric
>
> -----Original Message-----
> From: Law & Religion issues for Law Academics
> [mailto:RELIGIONLAW at listserv.ucla.edu]On Behalf Of Steven D. Jamar
> Sent: Monday, October 29, 2001 12:29 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: heat and light
>
> Hmmm.  How to say this.  It has indeed been interesting to get a glimpse
> through
> Eric's lens of why some fundamentalists see liberal traditions as so
> threatening.
>
> It is also very interesting to see the kind of lumping and interpretation
> that happens
> here.  The liberal tradition gets lumped with unholy activist athiests some
> of whom
> are bent on eradicating what a few of them see as the poison of religion.
>
> And Eric viewed my comments as condemning his views in strident, personal
> terms, and
> saw me as lumping  fundamentalist Christians  and him together with them
> those I
> characterized as intolerant.  I have trouble reading my post as Eric did.
> He
> apparently has trouble reading it any other way.  That itself is
> instructive, I think.
>
> But does it tell us anything about law and religion?  I'm not sure it does.
> If Eric
> cannot see that I lump intolerant athiests with intolerant fundamentalists
> and place
> them as counterpoised to liberal values of tolerance, then I fear that not
> only have
> we not advanced our understanding of each other at all, but we have done
> nothing to
> come to grips with the role of government in religion.
>
> I can see only two fundamental approaches to law and religion - and rarely
> am I a
> dualist - that of the liberal, tolerant approach (which can be embraced by
> anyone of
> any faith and any degree of rigidity of beliefs, provided only that that
> person grant
> that government ought not control all such matters) and that of an
> autocratic
> theocracy.  I do see that in practice we have many other variants and
> mishmashes of
> accommodations of these impulses, but as far as fundamental approaches go, I
> just
> don't see any others.
>
> I don't consider a theocratic state to necessarily be non-liberal in this
> sense - the
> sense that freedom of belief and free exercise are allowed.  That may be a
> weakened
> manifestation of liberal values of tolerance, acceptance, equality, and
> accommodation,
> but it is not necessarily going to be or even likely to be an autocratic
> theocracy.
>
> As to ascribing Aslan's progeniture's beliefs to Eric, I apologize.  It
> seemed to me
> that Eric was not only presenting them as a response to my query, but was
> presenting
> them as adopted by him.
>
> And it was not my intent to lump Eric, who explicitly stated that he
> considers state
> support of "free exercise . . . a Biblical imperative,"  with those who want
> a
> theocracy, or something close to it.  Or so I interpret his statement - I
> have added
> the "state support" idea to his note.  I think that is a fair clarification.
>
> Of course, not only is free exercise deeply rooted in other beliefs, but so
> is
> establishment.  Some who want to establish Christianity in the form of
> prayers in
> schools and teaching of young earther creationism, and so on, do so from
> religious
> conviction and perhaps fail to see the effect such establishment has on free
> exercise
> and on treating others of differing values as being equals.
>
> I think it is very hard to be certain that one has the truth and the only
> truth and
> not want to use every means to advance that truth.
>
> The biggest bulwark yet devised, it seems to me, against exactly that
> impulse is the
> set of values collectively known as liberalism.
>
> But I can see how those who have the exclusive lock on the truth are
> threatened by
> official, governmental values, structures, and policies which support
> diversity and do
> not favor one religious tradition over all others.  Is this what so troubles
> you
> Eric?  That pluralism is an inherent challenge to beliefs founded on
> inerrancy?
>
> BTW, I have chosen not to respond to the distortions and improper equations
> made by
> Eric in characterizing my position.  I don't think that game would get us
> very far.
> But I must state that I did not equate those who believe in hell or even all
> evangelicals as intolerant within the sense I was using the term.  There is,
> to me at
> least, but apparently not to Eric, a distinction between saying that some
> belief (such
> as exclusive hold on the truth) carries with it a inherent aspect of
> individualized
> intolerance, and saying that all those who are evangelicals and who believe
> in hell
> believe in official, governmental intolerance.
>
> As to seeing strong senses of this or that and bitterness here and there -
> others on
> this list can judge these writings for themselves.
>
> Steve
>
> --
> Prof. Steven D. Jamar, Director LRRW Program               vox:
> 202-806-8017
> Howard University School of Law                           fax:  202-806-8428
> 2900 Van Ness Street NW                      mailto:sjamar at law.howard.edu
> Washington, DC  20008          http://www.law.howard.edu/faculty/pages/jamar
>
> "In education, it is my experience that those lessons which we learn from
> teachers who
> are not just good, but who also show affection for the student, go deep into
> our
> minds.  Lessons from other sorts of teachers may not.  Although you may be
> compelled
> to study and may fear the teacher, the lessons may not sink in.  Much
> depends on the
> affection from the teacher."
>
> The Dalai Lama's Book of Wisdom p. 87