As reported in Catholic Education Daily on December 7, 2015, there is a dispute between the School of Law at St. Mary’s University in San Antonio and the Texas State Bar, which is in charge of accrediting institutions of legal education in the state. The School of Law has a program of Continuing Legal Education (CLE) which serves attorneys at any stage of their lifelong career. The State Bar has a committee which oversees all CLE programs; it had preciously accredited the one at St. Mary’s. The committee has decided that in future the St. Mary’s program would be denied accreditation (as put by the Catholic source) “for being too religious”.
At issue is a CLE program on “Christian Ethical Perspectives: Faith and Law Today”. Both sides stipulate that “legal ethics” is regularly part of CLE. Presumably the committee assumes that this program would involve some sort religious indoctrination. Professor Bill Piatt of the Law School, which he represents, proposes that the decision violates First Amendment rights of the attorneys enrolled in the CLE program by prohibiting them from discussing any moral issues beyond the narrowly defined scope of legal ethics. [I have not delved into the full exchanges in this case, so I don’t know whether Piatt also mentioned the First Amendment rights of St. Mary’s University which should be free to give its programs a Catholic orientation.] In any case, Nancy Smith, speaking for the State Bar committee, asserted that its decision “had nothing to do with the program having a Catholic orientation.” Piatt also made the wider point that the committee assumed a sharp distinction between law and morality. [That may be true, but there is the view making just this distinction in the widely accepted school of “legal positivism” founded by Hans Kelsen. I am told that law school professors like to shock their students by advising them to give up the notion that the law has anything to do with justice.] Since this case has wide implications for legal education in this country, one may safely predict that the courts will sooner or later get involved.
Using the legal language that fits the present topic, let me stipulate that I lack the competence to understand all the nuances. It may well be that Nancy Smith is right that the Texas regulations on how “legal ethics” is to be taught, either to idealistic incoming students or to possibly cynical veterans of many court battles, define this field in very narrow terms—what does “full disclosure” mean for either prosecutors or defense attorneys, when may a judge “recuse” himself from a case, and the like. But it seems to me that Smith’s allegation that her committee’s decision to discredit (literally) St.Mary’s program had “nothing to do” with its Catholic orientation is thunderously implausible; on the face of it, it had everything to do with its Catholic orientation. In that case, she and the group she speaks for provide a useful occasion to counter a very common confusion—that between secularity and secularism.
[In my youth, when I was a newcomer to America and was amazed by so many things, I occasionally saw this sign in barbershops: “If you are good for nothing else, you can always serve as a bad example.” Was this the time when barbers like bartenders were presumed to be sources of folk wisdom? Could this be related to the now, as far as I know waning, popularity of barbershop quartets? But let me not digress. Rather, let me make another stipulation: that Ms. Nancy Smith is an intelligent and well-meaning representative of Texan jurisprudence at its best. If so, in the unlikely case that she gets to read my blog, she will forgive me for using her argument as a bad example.]
Secularity describes the discourse which necessarily dominates large areas of modern life. It is a discourse which brackets any religious definitions of reality in its proper space. Secularity thus defined became indispensable for the achievements of science and technology in modern times, and contemporary societies would be intolerable without these achievements. However, one must not therefore conclude that the secular discourse has completely pushed out all religious discourses. In the lives of individuals and in entire societies modern secularity and religion co-exist side by side. Law is a very important area of such co-existence. Of course there have been projects of restoring the hegemony of this or that religion (today the most blatant project is that of fundamentalist Islam) and projects of eliminating religion altogether (as in the heyday of Communist societies). I tend to think that the opening up of a secular legal space occurred first in the area of modern international law. One of its founders was the Dutch jurist Hugo Grotius (1583-1645), who insisted that the new discipline should proceed etsi Deus non daretur/ “as if God did not exist”. In other words, it should be religiously neutral. He had little choice if international law should apply to the Europe of his time, which had states defined as Protestant or Catholic, as Lutheran, Reformed, Anglican, as well as Eastern Orthodox Russia and the Muslim Ottoman Empire. (It is important to remember that Grotius was anything but an atheist; he was a pious Protestant.) Religiously neutral law spread to domestic law as well. The newly independent Netherlands had two urgent dangers to fight—Spain reconquering it, and the sea flooding its low-lying areas (hence its name). Protestant and Catholic segments of the citizenry had to cooperate on both problems in a religiously neutral way.
The separation of religion and the state in Western democracies (whether formally in the U.S. and in France, or de facto in Britain) is a very practical way of managing the co-existence of secularity and religion. On the whole, the U.S. version, with the First Amendment at its core, has worked remarkably well in managing what I have called the two pluralisms: that of different religions co-existing, and of these different religious discourses co-existing with the secular discourse. Of course there are always border negotiations between religious and secular spaces, as in the case discussed here. And Americans being the most litigation-prone people in the world, the courts are frequently asked to intervene. They are not very well equipped to deal with religious issues—as lawyers are trained to do, they tend to fall back on abstract principles that are typically far removed from the empirical realities, Note: Secularity is not an ideology but a fact, like it or not. Much of the time there is no choice: You cannot operate in a modern economy by following the teachings of the Sermon on the Mount, and you fly an airplane on instructions from the Talmud.
By contrast, secularism is an ideology (as the suffix indicates). It celebrates secularity and seeks to enlarge its space at the expense of religion. It comes in different versions. Its extreme version, from the Jacobin cult of reason to the “scientific atheism” of the Soviet Union, has become quite rare. Certainly in the U.S. it usually takes the form of a program to confine religion in private spaces—churches or other overtly religious institutions—and keep it out of public spaces, especially when these are supported by tax funds. Probably there have always been tensions between the “no establishment” and “free exercise” phrases of the First Amendment. Secularists rank the first over the second. As in this case: the Texas State Bar committee is offended by the intrusion, however academic, of a “Catholic orientation” into a program of necessarily secular legal education. The spokesman of a Catholic institution regards its religious orientation as the right to free exercise. If (as I do) one regards religious freedom as a fundamental (perhaps even the fundamental) human right, one will favor “free exercise” over “no establishment”—indeed will regard the latter as having the main purpose of protecting the former. But even if I were a committed secularist, as a sociologist I would observe that a broad understanding of religious freedom is conducive to civic peace (especially in a democracy).
I would not suggest any kind of moral equivalence between our American secularists and the anti-religious fanaticisms of 18th-century Jacobins and Soviet commissars. But I think it is plausible to say that the approach of our American (relatively mild) secularists is essentially one of disease control. They cannot (and I daresay would not want to) eradicate religion; but they regard its public manifestation as dangerous; therefore, religion must be contained, put in quarantine.
As I get older, outlandish but illuminating analogies occur to me. Our twenty-first secularists are late descendants of the Enlightenment. The Emperor Joseph II of was an Enlightened despot. I give him a lot of credit for abolishing the death penalty and easing the restrictions on Jews. He also issued a decree on tolerance to benefit Protestants—within limits, but in sharp discontinuity with the traditionally ferocious anti-Protestantism of the Habsburgs. He authorized the construction of two Protestant churches in Vienna, within spitting distance of the imperial palace. One was Lutheran (in Austrian diction, “A.B.”, of the Augsburg Confession), the other Reformed (“H.B.”, of the Helvetian Confession). There they still are, next to each other, actually touching: A perfect embodiment of quarantine, where the Emperor and his police could keep an eye on them.