Early in John Updike's exquisite historical novel In the Beauty of the Lilies, a Presbyterian pastor named Clarence Wilmot, whose faith has deserted him, calls upon a certain Elias Orr, a member of his flock who lies on his deathbed. Orr asks his pastor whether he—Orr—is among the elect or headed to eternal damnation in the flames of Hell. Clarence, searching for words of comfort, tells him, “I should estimate your chances to be excellent.” The dying man is unpersuaded. If the order of salvation was laid down by God at the moment of creation, he demands, “[w]hat can we poor bodies down here do?”
1 Updike, John, In the Beauty of the Lilies (New York: Alfred A. Knopf, 1996), 44–45.
2 Ibid., 45.
3 Ibid., 48.
4 A bibliography of Ronald Dworkin's work on law and religion, including the works cited herein, is included following the review essays in this issue.
5 I have discussed certain other aspects of Dworkin's book—in particular, what I consider a fundamental misunderstanding of what a religious belief actually is—in another essay, and therefore will not repeat those arguments here. See Carter, Stephen L., “The Challenge of Belief,” Boston University Law Review 94, no. 4 (2014): 1213–23.
6 “Spiritual Gifts and Spiritual Delusions,” English Review 14 (1850): 299. The unsigned article was evidently a reprint of an essay or pamphlet by the Mormon leader Orson Pratt, Sr. See Webb, Robert C., The Real Mormonism: A Candid Analysis of an Interesting but Much Misunderstood Subject in History Life and Thought (New York: Sturgis & Walton, 1916), 178–79.
7 William Lloyd Garrison to George Shepard, September 13, 1830, in Merrill, Walter M., ed., The Letters of William Lloyd Garrison, vol. 1, I Will Be Heard, 1822–1835 (Cambridge, MA: Harvard University Press, 1971), 108.
8 Here, too, Dworkin is by no means the historical progenitor of this usage. See, for example, Howerth, Ira W., “What Is Religion?,” International Journal of Ethics 13, no. 2 (1903): 205 (“It sounds paradoxical to speak of a religious agnostic, or a religious atheist. And yet, a man who recognizes, and desires to be in right relations to, ‘an Infinite and Eternal Energy from which all things proceed,’ without claiming to know the ultimate nature of that energy, is religious; and as atheism, as usually understood, is merely the denial of a particular interpretation of this energy, it is not inconsistent with religion.”).
9 Here, as throughout his book, Dworkin echoes Thomas Nagel, who insists that philosophy itself, in its search for moral order, involves a “yearning for cosmic reconciliation.” Nagel, “Secular Philosophy and the Religious Temperament,” in Nagel, Thomas, Secular Philosophy and the Religious Temperament: Essays 2002–2008 (Oxford: Oxford University Press, 2010), 3.
10 The assertion that God's existence is not falsifiable is often associated with the philosopher Antony Flew. Although Flew certainly believed this (a belief complicated by his later conversion to theism), a more precise statement of his position is that theists cannot describe God in a way that lends itself to falsification. See, for example, Flew, Antony, God and Philosophy (London: Hutchinson, 1966), 171–72 (“The dilemma for the theist is to find something positive to say about his proposed God, that shall have sufficient determinate content to be both falsifiable in principle and interesting, while not at the same time actually being false.”). This statement of the problem is consistent with Flew's assertion that no statement about God remains cognitively meaningful, because, as anti-theistic arguments are presented, theistic claims die “the death by a thousand qualifications.” Flew first introduced this resonant if much-misquoted phrase in the 1950s. See Flew, Antony, “Theology and Falsification,” in Flew, Antony and MacIntyre, Alasdair, eds., New Essays in Philosophical Theology (New York: MacMillan, 1955), 97.
Nowadays, the non-falsifiability of the claim that God exists has become a commonplace of anti-theistic argument. See, for example, Lett, James, Science, Reason, and Anthropology: The Principles of Rational Inquiry (Lanham, MD: Rowman & Littlefield, 1997), 53 (“For the faithful, the belief that God exists is not falsifiable.”); Barker, Dan, Godless: How an Evangelical Preacher Became One of America's Leading Atheists (Berkeley, CA: Ulysses Press, 2008), 74 (“I brought up the fact that theistic claims are not falsifiable.”). It is important to bear in mind, however, that Popper himself did not argue that non-falsifiable statements were false; he merely insisted that they were not scientific. Popper readily conceded the existence of non-scientific truths. That Flew seems to miss this point has been noted even by those who are sympathetic to his (earlier) argument. See, for example, Pidgen, Charles, “Analytic Philosophy,” in Bullivant, Stephen and Ruse, Michael, eds., The Oxford Handbook of Atheism (Oxford: Oxford University Press, 2013), 314–16.
11 The notion that religious epistemology does not rest on rational deduction from available evidence serves as an important basis for Brian Leiter's forcefully argued but oddly polemical 2013 book, Why Tolerate Religion? (Princeton, NJ: Princeton University Press, 2013). Let me here confess (not only as a religionist but also as a small-d democrat) that I find terrifying the notion that a polis should adopt a privileged epistemology and refuse to tolerate or make space to nurture that which deviates seriously from it. I am a great believer in the importance of epistemic diversity to democratic dialogue. See Carter, Stephen L., The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty (Cambridge, MA: Harvard University Press, 1998). I have written elsewhere about the tendency toward repressive authoritarianism at the heart of liberalism. See, for example, Carter, Stephen L., “Must Liberalism Be Violent? A Reflection on the Work of Stanley Hauerwas,” Law and Contemporary Problems 75, no. 4 (2012): 201–19. Leiter's book, although he does score a number of fine points about constitutional theory, ultimately provides evidence for my rational deduction that I ought to be fearful.
12 For an example of what I assume Dworkin would agree is a discriminatory law, even though the statute seems neutral on its face, see Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993). My own brief treatment of the case—and one place where I defend a broader religious freedom than Dworkin would countenance—is Carter, “The Resurrection of Religious Freedom?,” Harvard Law Review 107, no. 1 (1993): 118–42.
13 For analogous reasons, no serious religionist would accept the dialogic strictures set forth by Rawls, John in his Political Liberalism (New York: Columbia University Press, 1993). A useful effort at finding a middle ground is Wolterstorff, Nicholas, “The Role of Religion in Decision and Discussion of Political Issues,” in Audi, Robert and Wolterstorff, Nicholas, eds., Religion in the Public Square: The Place of Religious Convictions in Political Debate (Lanham, MD: Rowman & Littlefield, 1997), 67–120. Or it may be that no middle ground is possible. See Raz, Joseph, “Facing Diversity: The Case of Epistemic Abstinence,” Philosophy & Public Affairs 19, no. 1 (1990): 3–46.
14 A provocative but insightful discussion of this phenomenon is Smith, Steven D., “The Plight of the Secular Paradigm,” Notre Dame Law Review 88, no. 3 (2013): 1409–56. As the philosopher Jon Mahoney has noted, it is easy to forget that liberalism itself is a moral doctrine, and must be argued for. Mahoney, Jon, “Public Reason and the Moral Foundation of Liberalism,” in Brooks, Thom and Freyenhagen, Fabian, eds., The Legacy of John Rawls (London: Continuum, 2005), 85–106.
15 Even Christianity's earliest opponents, the Romans, understood that they faced not a growing movement of individuals but a growing movement of organized groups of worshippers. See Wilken, Robert Louis, The Christians as the Romans Saw Them (New Haven, CT: Yale University Press, 1984). As Wilken notes, the Romans did not use the term ecclesia to refer to these religious societies. The Romans instead coined the word Christiani, which might at first have been meant derisively. Ibid., 32–35.
16 An interesting attempt to write this principle into constitutional law is Horwitz, Paul, “Churches as First Amendment Institutions: Of Sovereignty and Spheres,” Harvard Civil Rights-Civil Liberties Law Review 44, no. 1 (2009): 79–131. See also Stolzenberg, Nomi Maya, “Theses on Secularism,” San Diego Law Review 47, no. 4 (2010): 1041–73.
17 See Meeks, Wayne A., The Origins of Christian Morality: The First Two Centuries (New Haven, CT: Yale University Press, 1993).
18 There has been a move in recent political philosophy to contend that religious believers should doubt convictions based on revelation when they cannot find adequate secular corroboration. The idea is that God would not establish a deep moral truth and then hide from us the evidence of its truth. Thus if, for example, God establishes that murder is wrong, He would fill the world with evidence, available even to the secular mind, of the wrongness of murder. This argument strikes me as a variant on theodicy, and for that reason alone is theologically shaky. But it can also be criticized on philosophical grounds, for the relative assumptions it contains about the cognitive capacities of theists and non-theists. A quite pertinent and detailed analysis can be found in chapters 7 and 9 of Eberle, Christopher J., Religious Conviction in Liberal Politics (Cambridge: Cambridge University Press, 2002).
19 In adopting the term “constitutive good,” I follow the coinage of Charles Taylor. See Taylor, , Sources of the Self (Cambridge, MA: Harvard University Press, 1989), 92–93.
20 Consider Calvin's response to critics who argued that the doctrine of election, by preordaining the fate of every person, made God's rule tyrannical: “God's will is so much the highest rule of righteousness that whatever he wills, by the very fact that he wills it, must be considered righteous.” As to wondering why God wills what He wills, “it is very wicked merely to investigate the causes of God's will.” Quoted in Steinmetz, David C., Calvin in Context (Oxford: Oxford University Press, 1995), 48.
21 C. S. Lewis puts the point thus: “Perhaps we feel inclined to disagree with Him. But there is a difficulty about disagreeing with God. He is the source from which all of your reasoning power comes: you could not be right and He wrong any more than a stream can rise higher than its own source.” Lewis, C. S., Mere Christianity, rev. ed. (1952; repr., New York: HarperCollins, 2001), 48.
22 See Hare, John E., God's Call: Moral Realism, God's Commands, and Human Autonomy (Grand Rapids: William B. Eerdmans Publishing Co., 2001).
23 Polkinghorne, John, Belief in God in an Age of Science (New Haven, CT: Yale University Press, 1998), 37.
24 Tillich, Quoting, Theology of Culture (New York: Oxford University Press, 1959): 130–31.
25 Tillich, Theology of Culture, 131.
26 As Max Jammer points out, Tillich was particularly bothered by Einstein's notion that the idea of God was an invention of primitive human beings, and his adoption of the very old and not very persuasive argument that the existence of evil necessarily contradicted God's omnipotence. See Jammer, , Einstein and Religion: Physics and Theology (Princeton, NJ: Princeton University Press, 2002), 108–09, discussing Tillich, Theology of Culture, 127–29. Another very useful discussion of the disagreement between the two great thinkers is Haught, John F., “Tillich in Dialogue with Natural Science,” in Manning, Russell Re, ed., The Cambridge Companion to Paul Tillich (Cambridge: Cambridge University Press, 2009), 223–37.
27 Tillich, Theology of Culture, 132.
28 Tillich, Paul, The Courage to Be (New Haven, CT: Yale University Press, 1952), 185.
29 John of Salisbury, Policraticus, trans. Nedermanm, Cary J., bk. III, chap. 15 (Cambridge: Cambridge University Press, 1990), 25.
30 Tillich, The Courage to Be, 185.
32 Ibid., 187.
33 O'Neill, Andrew, Tillich: A Guide for the Perplexed (London: T & T Clark, 2008), 66.
34 John Thatamanil, “Tillich and the Postmodern,” in Manning, ed., The Cambridge Companion to Paul Tillich, 296.
35 Tillich, The Courage to Be, 188.
36 See, for example, the discussion in Woessner, Martin, Heidegger in America (Cambridge: Cambridge University Press, 2011), 105–08.
37 See the discussion in Tavard, George, “The Protestant Principle and the Theological System of Paul Tillich,” in O'Meara, Thomas A. and Weisser, Celestin D., eds., Paul Tillich in Catholic Thought (Dubuque, IA: Priory Press, 1964), 85–96.
38 Britton, Joseph Harp, Abraham Heschel and the Phenomenon of Piety (London: Bloomsbury, 2013), 188.
39 On this point, one might usefully study the highly critical view of Tillich's work advanced in Clayton, John Powell, The Concept of Correlation: Paul Tillich and the Possibility of a Mediating Theology (Berlin: Walter de Gruyter & Co, 1980), particularly chapters 3 and 4.
40 380 U.S. 163 (1965).
41 The classic exposition of this point is McBride, James, “Paul Tillich and the Supreme Court: Tillich's ‘Ultimate’ Concern as a Standard in Judicial Interpretation,” Journal of Church and State 30, no. 2 (1988): 245–72.
42 See Carter, “The Challenge of Belief.”
43 The forms of authority of which Tillich was skeptical arguably included the written word, which could further but also frustrate the human search for meaning. Thus his affection for the historical-critical method. See Sontag, Frederick, “Biblical Authority and Tillich's Search for the Ultimate,” Journal of Bible and Religion 30, no. 4 (1962): 278–83. It should come as no surprise that Tillich was at one point a colleague of Theodor Adorno's in Frankfurt.
44 Tillich, , Love, Power, and Justice: Ontological Analyses and Ethical Applications (New York: Oxford University Press, 1954), 50.
45 Ibid., 11–12.
46 Ibid., 16.
47 Ibid., 94. This restriction, which comes in the last part of the book, is likely Tillich's way of dealing with his own support, much earlier in his career, of the notion of a proletarian revolution. If the proletarians at the bottom are as guilty as the ruling clique at the top, there is no reason to prefer their authority. For a useful discussion of the political views of the younger Tillich, see Mary Ann Stenger and Stone, Ronald H., Dialogues of Paul Tillich (Macon, GA: Mercer University Press, 2002). See also Ronald H. Stone, “On the Boundary of Utopia and Politics,” in Manning, ed., The Cambridge Companion to Paul Tillich, 208–20.
48 See Stenger and Stone, Dialogues of Paul Tillich, 198–203.
49 See Stone, “On the Boundary of Utopia and Politics,” 213–17. For Tillich's own rejection of pacifism as un-Biblical, see Tillich, , Systematic Theology (Chicago: University of Chicago Press, 1963), 3:382–93, esp. 387–88.
50 Tillich, Love, Power, and Justice, 68.
51 Tillich, “Shadow and Substance: A Theory of Power,” in Tillich, , Political Expectation (New York: Harper & Row, 1971), 118.
52 See the discussion in Reisz, H. Frederick Jr., “The Demonic as a Principle in Tillich's Doctrine of God: Tillich and Beyond,” in Carey, John J., ed., Theonomy and Autonomy: Studies in Paul Tillich's Engagement with Modern Culture (Macon, GA: Mercer University Press, 1984), 135.
53 Tillich, Systematic Theology, 3:389.
54 Carey, John J., Paulus, Then and Now: A Study of Paul Tillich's Theological World and the Continuing Relevance of His Work (Macon, GA: Mercer University Press, 2002), 42.
55 I also discuss this example, albeit in less detail, in my earlier critique of Dworkin's book. See Carter, “The Challenge of Belief,” 1221–22.
56 Dworkin is responding to Nagel, Thomas, “Public Education and Intelligent Design,” Philosophy & Public Affairs 36, no. 2 (2008): 187–205.
57 A classic treatment of the epistemological dispute—although not precisely on the subject of intelligent design—is Stolzenberg, Nomi Maya, “‘He Drew a Circle That Shut Me Out’: Assimilation, Indoctrination, and the Paradox of a Liberal Education,” Harvard Law Review 106, no. 3 (1993): 581–667. I myself have also discussed this problem many times, most recently in Carter, “Must Liberalism Be Violent?”
58 Tillich, Paul, “Kairos I,” in Hauptwerke 4, Religions-philosophische Schriften, ed. Clayton, John (Berlin: Walter de Gruyter and Co., 1987), 337.
60 Ibid., 338. See the discussion of Tillich's views on this point in Clayton, The Concept of Correlation, esp. 219–22.
61 Admittedly, this view of liberalism is rather Millian. See Kelly, Paul J., “Liberalism and Epistemic Diversity: Mill's Sceptical Legacy,” Episteme: A Journal of Social Epistemology 3, no. 3 (2006): 248–65.
62 Paul Tillich, “By What Authority?” in Tillich, , The New Being (Nashville, TN: Abingdon-Cokesbury Press, 1950), 86.
63 Ibid., 86.
64 For an argument that the use of coercive authority is especially dangerous, even in liberal terms, when it alters a religious understanding of the world, see Cover, Robert M., “The Supreme Court 1982 Term—Foreword: Nomos and Narrative,” Harvard Law Review 97, no. 1 (1983): 4–68.
65 Updike, In the Beauty of the Lilies, 71.
66 This is of course no new argument. Perhaps the best known treatment, although carefully qualified in key places, is Stout, Jeffrey, Ethics after Babel: The Languages of Morals and Their Discontents (Princeton, NJ: Princeton University Press, 2001).
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