The classical German sociologist Max Weber (who has been an icon in my professional ideology) distinguished various types of authority in his theory of politics. The modern world, he proposed, is dominated by what he called “legal-rational authority”. Its typical institutional expression is bureaucracy. Those who exercise power must be able to justify why their commands are legitimate. In a legal-rational order the justification is given in terms of this or that specific law or regulation. Lawyers are in the business of deciding, in cases of conflict, which law or regulation is to be followed in the particular case. Lawyers are trained to think in highly abstract categories, which often make little sense to ordinary people.
The newsletter Law and Religion Headlines carried a story on March 24, 2013, about a public hearing by the U.S. Commission on Civil Rights about a matter that has for several years caused First Amendment litigation and attracted special attention in Christian media (the Headlines story first appeared in the Christian Post, an Evangelical publication). The matter at issue is the tension between the free exercise of religion and the principle of nondiscrimination. The most explosive case in point was the original intention (or so it seems) of the Obama administration to force nuns to distribute condoms to employees of Catholic schools or hospitals. The question that led to the hearing by the Commission is a little different: Do campus religious groups violate nondiscrimination laws or regulations if they insist that their members subscribe to certain religious beliefs or codes of behavior? To the non-legal mind the answer is clearly no. By the time the legal mind has started chewing over the question, the matter becomes less clear.
The issue is not whether any religious group on campus must “accept all comers” (to use the legalese phrase). Thus, as far as I know, the First Amendment allows a group to hold meetings on campus to promote the view that the Pope is the Antichrist (a doctrine held by the Lutheran Wisconsin Synod)—a group which, logically enough, will exclude Roman Catholics from membership. If this anti-Pope group were forced to accept Catholics as members, the latter could take over by a majority vote and send a letter of allegiance to Rome. The issue is not what any group may do, but what group is officially recognized by the university—a recognition which not only has symbolic value (letterheads with the university logo), but very often bestows hard material benefits (notably access to funds from student fees).
In 2010 the Supreme Court did decide one such case, in Christian Legal Society v. Martinez. The University of California Hastings College of Law (Martinez was the unlucky dean) had required the Society to admit individuals of any of the (by now) officially recognized sexual orientations—“Gay, Lesbian, Bisexual, Transsexual”, or “GLBT”. (Those of us with a cross-cultural orientation are reminded of the term “scheduled castes”, which the British coined in India to refer to groups at the bottom of or outside the Hindu caste system). The Society, an Evangelical organization, had previously barred such individuals from membership, on the grounds that its faith condemned homosexuality. The Christian Legal Society sued the College on First Amendment grounds. The Supreme Court, by a 5-to-4 ruling, upheld the College’s position. The majority opinion was written by Justice Ginsburg, who rejected the distinction between “status” and “conduct” made by the plaintiff (homosexuals may not be able to change their nature, but they can choose how to behave), and charged that the Society had “cloaked prohibited exclusion in belief-based garb”. The dissenting conservative judges protested the “forced inclusion of unwanted members”. If one grants that homosexuality is an inextricable combination of nature and behavior, Ginsburg’s ruling makes sense—in this, she reflects what has become liberal orthodoxy, a paradoxical application of Sigmund Freud’s view that “biology is destiny” (the old Viennese conservative would have been shocked by this twist). Be this as it may, the 2010 decision was made with the assumption that homosexuality is a “status” similar to that of being African-American. This leaves wide open the possibility of devoted Catholics joining that Lutheran group and taking it off on a pilgrimage to Rome. Not to mention a take-over by an orgy association of one of these “chastity clubs” flourishing among young women on Evangelical campuses. I cannot claim to have researched the great variety of cases in this area. A particularly intriguing case is that of Vanderbilt University, whose nondiscrimination policy insists that recognized student groups must “accept all comers”—specifying that Republicans must be eligible to join College Democrats and even to run for leadership positions in that group. The possible scenarios are delicious to imagine. Of course religious freedom does not directly enter here.
I have previously written about a militant secularism having become a noisy presence in America. I have called it (only half tongue-in-cheek) Kemalist—after Kemal Ataturk’s view of religion as a backward superstition to keep out of public space. It is the ideology of a quite small group that would not get anywhere through the democratic process and can only work through the courts, the least democratic branch of government. I can’t see Justice Ginsburg as a secularist ideologue. More likely, she reflects the views of church/state relations that have come to be taken for granted in the liberal subculture.
The legal mind, and the bureaucratic mind which is its lowbrow offspring, likes to squeeze the immense vitality of human life into abstract categories. Once these categories have been established, they must be imposed on everyone. I recall an episode I came across during my stint in the US Army. I knew a company clerk in Fort Benning, Georgia, where I spent most of my time in the military. He was enormously bored on his job. This was just before the two revolutions which transformed the American South: desegregation and air-conditioning (making the region more humane, more tolerable in the summer, and because of these two developments more dynamic economically). My acquaintance spent his days sitting at his desk, with little to do, sweating and swatting away the flies. He acquired a flypaper, which did indeed attract and kill a good many flies. He counted the number of flies caught on the flypaper and began to send weekly reports with this information to base headquarters. After three weeks of this exercise every unit in Fort Benning received a memorandum from headquarters, demanding to know why no flypaper reports had been submitted.
[Flies courtesy Shutterstock]