walter russell mead peter berger lilia shevtsova adam garfinkle andrew a. michta
Published on: August 1, 2012
A Federal Court Disclaims Its Ability to Decide What is True and Not

A while ago on this blog I commented on a judgment by a Texas court which ruled that so-called “imprecatory prayer” (that is, prayer that asks God to inflict harm) is protected speech under the first amendment of the US constitution.  The court asserted that there was no evidence that the prayer had actually harmed the individual cursed by it. My own reflection on this episode made two points: That the court rejected any supernatural causation as legally relevant, thus assuming only a naturalist understanding of reality as capable of producing “evidence”. And that such an assumption is a necessary “formula of peace” in a highly pluralistic society.

This judicial wisdom has now been replicated on the level of federal law. Howard Friedman, an emeritus professor of law at the University of Toledo, publishes a blog, “Religion Clause”, which reports on developments in church-state relations. On July 14, 2012, the blog reported on a decision by a federal district court in Louisiana. The decision affirmed the judgment by a state court that a municipal ordinance banning “palmistry, card reading, astrology, fortune-telling and phrenology” violates the first amendment to the US constitution. In other words, fortune-telling in Louisiana is protected speech like cursing in Texas (and presumably anywhere else within American jurisdiction—potential litigants in Massachusetts beware!). It is worth quoting from the decision by the magistrate who first overruled the Louisiana ordinance (incidentally betraying a penchant for irony and a misspelling of the name of a book in the New Testament—both rather surprising, coming from a magistrate in the Deep South):

Based on its own clairvoyance, the City has decreed in brief that it is impossible to predict the future, and contends the business of fortune-telling is a fraud and inherently deceptive…. The City suggests that “fortune-tellers have no demonstrable facts upon which to base their predictions”…. The danger of the government deciding what is true and not true, real and unreal, should be obvious. For example, some might say that a belief in God or in a particular religion…. or in the “Book of Revelations” (sic) is not supported by demonstrable facts. Books that repeat the predictions of Nostradamus and the daily newspaper horoscope could be banned under the City’s reasoning” (my italics).

But the italicized sentence is contradicted by the very judgment of which it is the supposed justification: A federal judge represents a branch of government—and in this decision did decide “what is true and not true”, at least for legal purposes. In other words, the law accepts as “evidence” only what fits into a naturalist view of reality. Only within such a worldview can it be asserted that curses can cause no harm and that fortune-tellers cannot predict the future.

It was not always so. English common law and its early application in the American colonies contained a long catalogue of crimes involving supernatural powers. The prohibition of witchcraft and the prosecution of witches are a very clear example of this. A magisterial account of the change from this early period to our contemporary judicial culture can be found in Keith Thomas, Religion and the Decline of Magic (1971). This is how Thomas, in a foreword, explains what he was about:

This book began as an attempt to make sense of some of the systems of belief which were current in sixteenth- and seventeenth-century England, but which no longer enjoy much recognition today. Astrology, witchcraft, magical healing, divination, ancient prophecies, ghosts and fairies, are now all rightly disdained by intelligent persons. But they were taken seriously by equally intelligent persons in the past, and it is the historian’s business to explain why this was so.

And so he does—over 800 pages, with enough footnotes to silence the most critical reviewer. The medieval world was steeped in the supernatural, both as officially recognized and administered by the Catholic church, and in the uncontrolled world of folk religion and heretical movements. Thomas argues that the Protestant Reformation was the pivotal event that changed the situation. Protestantism first delegitimated the official magic of the church, by radically challenging its supernatural repertoire—the miracle of the mass, the entire apparatus of the seven sacraments, the cult of the Virgin and all the saints. This did not initially do away with magic altogether. It did so eventually, most radically in Calvinism and the churches descended from it. Protestantism did away with with what it considered to be the magical elements in the Catholic church, but then (mostly unintentionally) helped bring about what Max Weber called the “disenchantment of the world” (Entzauberung, literally “de-magicalization”).

It is interesting to note in the above passage the phrase “rightly disdained” to describe the rejection of astrology, etc. by “intelligent persons” today. When his book was published, Thomas was a professor in Oxford. He might have agreed with this “disdain” at Harvard, less so at a university in Texas, even less so as an academic in Nigeria. Then as now, England is a highly secularized country, while the United States is the least secularized among Western democracies. But it would be a big mistake to interpret the aforementioned two court decisions as expressions of secularization. The two cases come from the least secularized regions of the United States. For all I know, both judges may be fervent Christians. The first amendment, which underlies their decisions, has as its core the defense of religious freedom. What the decisions do express is a secular discourse, which has proven itself as a very useful instrument to maintain peace and civility among people with different worldviews—and which co-exists with a plurality of strongly supernaturalist ones. Naturalism—a way of looking at the world without reference to anything supernatural—now becomes a widely diffused default discourse, to which people can turn by bracketing any religious definitions of reality (on which, in the pluralistic situation of a modern society, they of course disagree). The law in western democracies necessarily operates within such a naturalistic frame.

In my early work I used the term “methodological atheism” to describe such an approach in the sociology of religion. I am not sure where I got this term from. I have the recollection that I first heard it used by my Dutch colleague Anton Zijderveld. This refers, precisely, to a method within which the ultimate truth or falsity of religion is bracketed. Thus the sociologist of religion cannot do empirical research about God, only about what human beings believe about God and what consequences follow from these beliefs. A religious believer can employ such a method within the limited sphere of his scientific work, but without giving up his faith within his much broader view of the world. The same applies to the “methodological atheism” of decisions made by contemporary American judges, who as persons may be anything but atheists. The term may be new. The concept is not. As far as I know, it was first applied to the law by Hugo Grotius (1583-1645), one of the fathers of modern international law. He proposed that such law should be formulated etsi Deus non daretur—“as if God is not assumed”—supposedly on the basis of “natural law”. (Grotius, by the way, was another Dutchman—probably not a coincidence—the Netherlands, after their independence from Spain, became an early laboratory of modern pluralism.) It is important to know that Grotius was a deeply religious Protestant, theologically committed to the Arminian offshoot of the Dutch Reformation which rejected the harsh doctrines of early Calvinism. The theologian (unlike the jurist) operates etsi Deus sic daretur—that is, “as if God is assumed). An individual may be both a jurist and a theologian, with the capacity to operate in two discrete discourses.

[Image courtesy of Shutterstock.]

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  • Wayne Lusvardi

    As usual Dr. Berger’s column provides rich material for comment. It would seem to me that the Lutheran theology of the “two kingdoms” would provide a basis for such a split-level house of law. This doctrine teaches that God rules the earthly world through the secular government by means of law and in the heavenly kingdom by gospel or grace.

    It is often apparent in law that judges and juries sometimes can’t get above social class or political partisanship in their decisions. In criminal cases I’ve experienced the defense counsel’s job was to “excuse” as many prospective jurors who were dissimilar to the defendant’s social class as possible and the prosecutor the opposite. It was assumed that no one could transcend their social class values.

    A proposition would be to test how many of those who were religious could be fair compared to those who were not. My guess is that those who were devoutly religious (who didn’t check the box labeled “none” when asked on a questionnaire about religious affiliation) would tend to be fairer. They would have a transcendent basis by which to get above their value system, albeit not above the law. But courts don’t ask about religious affiliation or participation even though those who do opinion polling say religion is the strongest variable of how people vote.

    The recent decision by Supreme Court Chief Justice John Roberts, whether one agrees with it or not, would seem to be a case where a certain degree of transcendence was required. Probably not coincidentally, Roberts is a product of the Roman Catholic school system and his wife is also Catholic and serves as a Trustee on the board of the College of the Holy Cross in Worcester, Massachusetts.

  • Wayne Lusvardi

    Dr. Berger’s column reminds me of sociologist Max Weber’s distinguishing between empirical, Kadi, charismatic, and rational forms of jurisprudence.

    Kadi, or Qadi, is a judge ruling in accordance with Islamic religious law that makes no distinction between secular and religious domains (

    Following Weber, sociologist David Matza in his book “Delinquency and Drift” defines:

    Empirical justice as guided by the interpretation of concrete legal procedures;

    Kadi justice as based on concrete legal and ethical and practical valuations;

    Charismatic justice as based on concrete revelation.

    Matza viewed the juvenile court system as a Kadi form of justice practiced in a bureaucratic setting. This could also be said for child abuse courts and foster care.

    The zoning case Berger cites could be viewed as a way to segregate the rational and the charismatic forms of justice.

    Weber wrote: “All non-bureaucratic forms of domination display a particular co-existence; on the one hand, there is a sphere of strict traditionalism, and on the other, a sphere of free arbitrariness and lordly grace…” (from The Development of Bureaucracy).

    What Berger describes is perhaps a form of “coexistence” of religion and law in a Western bureaucratic context.

    More humorously, I found the definition of Kadi justice in Femi Ajayi’s book “The Effect of Religion on the Political Process: The Case of the Federal Sharia Court of Appeal” (2009) to be most amusing:

    “Kadi suggested a half literate, tattered, corrupt fatman in a fez acting with complete arbitrariness and amid the ruins of a failing Oriental despotism.”

    In the court case in Louisiana cited by Berger I wonder how the original bureaucratic zoning planner and local judge would be described any differently than the Kadi judge described above?

  • Anthony

    “What the discussions do express is a secular discourse, which has proven itself as a very useful instrument to maintain peace and civility among people with different world views.”

    The balancing tension inherent in democracy especially the American brand (with its canonized seperation of church and state as well as religious freedom – or freedom to not believe) educes judicial rulings in this area bracked by etsi Deus non daretur to better serve our pluralist social arrangements.

    An individual may (in the United States) be both a believer in Democracy and a believer in God yet operate pluralistically with discretion.

  • Anthony

    @3: bracketed and separation.

  • Jimbino

    I hope it is not true that one’s religion is the principal indicator of how one votes. We are presently cursed by a SCOTUS with 6 Roman Catholics and 3 Jews. If we didn’t have 3 Jews we might as well look to the Vatican for verdicts.

    Even worse is that nobody in SCOTUS or POTUS and only one in COTUS is a declared atheist.

    Equally damning is that nobody on SCOTUS is degreed in math or any science, there are only 8 such in all 535 of COTUS and none in POTUS since Hoover and Carter, who were engineers, not scientists.

    We are a country governed by sectarian religious ignoramuses. England had Thatcher and Germany has Merkel, both scientists (and probably atheist as well).

  • PaulRamsey

    “The recent decision by Supreme Court Chief Justice John Roberts, whether one agrees with it or not, would seem to be a case where a certain degree of transcendence was required. Probably not coincidentally, Roberts is a product of the Roman Catholic school system and his wife is also Catholic and serves as a Trustee on the board of the College of the Holy Cross in Worcester, Massachusetts.”

    Whoa Wayne, what started as a very nice comment kinda ‘transcended” off the rails. While I think we can both agree that Justice Robert’s opinion on Obamacare transcended a reasonable interpretation of Constitution, – in other worlds it was complete unadulterated bull sheet. But to attribute that loony decision to his Catholic beliefs is more than a little far fetched.

    While I get that some non-Catholics apparently have this view that the Catholic belief in an all powerful God with powers far beyond our feeble intellects is somehow irrational and “magical”, to use that line of reasoning as the underlying basis for Robert’s lack of integrity on Obamacare just doesn’t hold any water. Talk about magical thinking.

    The Catholic belief in the wonders of God does not mean that Catholic’s are more apt to indulge in magical thinking than anyone else.

  • Wayne Lusvardi

    The PEW Research Center states that “white protestants overwhelmingly voted Republican and the religiously unaffiliated voted Democrat.” I believe most empirical studies indicate religion as a strong predictor of voting. But perhaps we should leave that up to Dr. Berger to explain.

    Here is a link:

  • Wayne Lusvardi

    I stated that is was a hypothesis to research if religiously devout persons were more apt to be fair in jury trials — it is my bias that they probably are fairer because it is part of their value system.

    If a person has a Marxist view of the world my guess is that person will just believe that one’s consciousness cannot be raised beyond one’s social class interests.

    I am not sure I am right on this issue – I am only throwing out a hypothetical based on my recent experience on a jury.

    Justice Robert’s ruling will be judged by history and the law of unintended consequences.

  • Cunctator

    If a US Court does not accept the “supernatural”, what happens to the oath “so help me God”?

  • Gary Novak

    In Berger’s sacramental view of the universe (expressed in A Far Glory, p. 160), the empirical world in its entirety is a gigantic symbol of the face of God. What a beautiful characteriztion of the relation between naturalism and supernaturalism! Naturalism is not a threat to religion but, seen through the eyes of faith, it is God’s poetry.

  • Inga Leonova

    Are you following the Pussy Riot trial in Moscow? Here is a poster case not only for a flagrant violation of due process but also of the legal challenges presented by trying to apply theological veneer to civil law.

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