Book Review: David Sehat's This Earthly Frame
The Unintended Consequences of Supreme Court "Religious Freedom" Jurisprudence
In This Earthly Frame—a titular allusion to The Book of Common Prayer’s rendition of Psalm 8:9—David Sehat makes the case that “the story of American secularism—and this cannot be stressed enough—is not merely a story of unbelief. Religious people had a central role to play in the history, and not just as antagonists…. A person might easily miss the religious component of American secularism…. [Yet] in contrast to the secular arrangements in Egypt, Cuba, and even France, the secularism of the United States emerged out of a history of conflict and bargaining between religious and nonreligious groups” [pp. 2, 3, 4]. In making this case, the intellectual historian Sehat chronicles how successive Supreme Courts came first to
[1] build on the work of Jefferson and Madison, who had cooperated with Methodists and Baptist to recognize a separation between church and state, albeit a state imbricated with implicitly Protestant practices (19th century); then to
[2] deploy concepts of “privacy” and “liberty” to shift an implicitly Protestant understanding of the state toward a secular, individualistic one (20th century), before finally the notion of privacy collapsed under the weight of insistence from (ironically) groups traditionally associated with Left that “the personal is political,” leading to a reversal that would
[3] allow a (21st-century) religious resurgence whereby the era’s privileging of “freedom” for an “identity” ultimately led to (from a partisan perspective) paradoxical Court decisions: victories for gay rights activists or other identity groups as a community were handed down alongside victories for religious conservatives on conceptually parallel corporatist grounds.
Key to Sehat’s narrative is that while various justices certainly had their own judicial philosophies with corresponding stances toward religion, the actual wording of the various rulings handed down usually occurred in reaction to events that had overtaken the court. The complex negotiation of various claims within rulings issued in response to a narrow set of circumstances often produced texts that proved to have unanticipated consequences, to which courts would react in subsequent decisions, giving the impression of a muddled confusion of contradictory statements. Sehat’s subtitle—The Making of American Secularism—perhaps indicates too neat a process; a more apt subtitle would be Unintended Side Effects of Jurisprudence.
So, throughout the very end of the 19th century and until the 1970s, a paradoxical picture emerges in which activism undertaken by religious groups on sectarian grounds inadvertently fostered secularism, while activism undertaken by secularists to create, via the notion of “privacy,” a space for a freedom from public religion accidentally created space for public religion’s re-invention within that very space. Typical of such unintended consequences was Griswold v. Connecticut (1965), read at the time a blow against the public imposition Catholic morality on the nation, but subsequently shown to have relied on a lever that would be able to be pulled by the religious right, to: a a right to “privacy.” Sehat ultimately traces the potent concept of privacy to an oddly contingent origin in the 1880s: future Supreme Court justices Louis Brandeis’s and Oliver Wendell Holmes, Jr.’s friend Robert Warren’s worries about proto-paparazzi interest in his high-society bride, Mabel Bayard Warren [p. 38]. By the 1970s, privacy would become not merely a defense against prying eyes or inquisitions but an offensive weapon as “freedom to, rather than freedom from, became a controlling understanding of the [Supreme] court” [p. 199]. This came to a head in Roe v. Wade; thereafter,
“the public-private idea was going in two directions. Those on the left sought to break down the distinction in an attempt to create more liberatory and authentic politics that used the state as an agent of transformation in private life. At the same time, conservatives began to withdraw from public spaces and sought refuge in private ordering and private institutional life that was governed by their own sense of values” [p. 203].
Here issues of public secularism versus religiosity could hardly be disentangled from emerging public (federal) support for civil rights—reflected in a reactionary privatism that married racism with religiosity as a matter of political alliance, even among religious conservatism not otherwise committed to racism, or among racists not otherwise committed to religiosity.
In a similar vein, practically identical language (“the collective conscience” or “common community conscience”) could be used within only a few years against groups generally thought diametrically opposed: against Bob Jones University’s practice of racial discrimination, yes, but also against the emerging gay rights movement [p. 219] or against Native American religious practices involving the use peyote that got caught up in the “war on drugs” [p. 225].
The confusion did not only exist in the collective mind of the Supreme Court, but in the double mindsets of Christians who brought religious freedom complaints to the courts. Throughout these struggles, Sehat observes that
“there was an ambivalence in conservative Christian efforts that the rhetoric of religious freedom tended to obscure. The [Christian] groups did not want just exemption from otherwise applicable laws. They sought a way to live out their faith without the disruption of alternative perspectives” [p. 141].
The basic reason for this paradox seems to have been an reluctance to respond to the loss of Christian demographic dominance by frankly owning up to the reason religious freedom now seemed a precious thing to Protestants (and not just to Jews, Jehovah’s Witnesses, etc.). For in Sehat’s telling, among Protestants, the main mental hurdle to be leaped on the way to a “secular frame” was a longstanding assumption that the United States of America had inherited a fundamentally Protestant democracy, and that indeed progressive democracy depended on Protestantism. To have been consistent on the religious freedom front would have been to have accepted their status as only one among contending factions in a pluralist democracy. According to Sehat, the pivot point came circa 1960, amid whiplash as the 1950s “in God we trust” era of Eisenhower and Billy Graham made a volte-face to the “God is dead” movement in theology of the 1960s. This was compounded by the fact that the “Venn diagram” of Southern evangelicals upset at the Supreme Court for decisions on prayer in schools or Bible reading in class overlapped with many of the same people who were angry at the federal government for upholding civil rights for Black Americans and demolishing segregation. At the same time, as mainline or liberal Protestantism shed members, the “demographic” balance among politically active Protestantism shifted conservative and culturally conservative Protestants struck up a defensive alliance—unimaginable prior to Vatican II—with conservative Catholicism against liberal members of their own respective traditions. On the other side of this divide, Protestantism moved from the “custodian” of American democracy—and potential persecutor of Catholic, Jewish, or secularist diversity—to one of a (persecuted?) faction within a pluralist democracy.
“In the leftist conception, politics became a mechanism for unifying the fractured self in an attempt to find personal and psychic wholeness. The liberal concept of privacy stood in the way” [p. 197].
Among the virtues of Sehat’s exposition is his careful disambiguation of “positive” versus “negative secularism”: the point that “to be secular” could be parsed negatively as a simple refusal to grant any one religious group control over the state (essentially, the First Amendment), or positively as state enforcement of irreligion as such (e.g., French laws against veil-wearing or Chinese regulations of Christianity). The United States, Sehat insists, can only be understood as a place of negative secularism, despite some appeals by religious conservatives to depict refusing them access to state power or as examples of the positive (i.e., punitive or persecutorial) variety. Sehat also wisely avoids the temptation to read the status quo c. 2023 (a broad alliance between conservative evangelicals and Catholics) back into the pre-Roe historical record. He thus provides a lively account of the very different (indeed, mutually hostile) routes by which Catholic and Protestant conservatives arrived at something like a shared cultural consensus in the 1970s. He also highlights situations in which shared political vocabulary—freedoms of “conscience” or “privacy,” for example—could cut both ways: the right to privacy that justified keeping abortion out of the state’s purview could later be used to justify keeping various reactionary religious practices from official notice. In any case, many civil rights advocates of various movements soon shifted from wanting to be left alone in their private identities or sexual activities to seeking recognition for the same.
To make matters even more complicated, Sehat repeatedly shows how from an early period of the Republic’s history “secular” stands were often taken on behalf on religious minorities (e.g., Jews during the various anti-Semitic episodes or Jehovah’s Witnesses during WWI) by committed religionists—1970, generally “liberal Protestants, post-Protestants, Jews, and post-Jews” acting against traditionally dominant conservative Protestants, who in their turn could not abide conservative Catholics (and vice-versa). Yet by the 1970s the participants in the situation had reversed, even as the debate still rotated around the same conceptual fulcrum using similar vocabulary. Deprived of the levers of government power, traditionally-minded Protestants joined forces with Catholic counterparts to take advantage of the very same rights of “conscience” and “privacy” that had previously been deployed against them in one Supreme Court case after another. These battle would play out across each arena where public policy met private belief. Yet this version of the public-private distinction, Sehat reminds us, was (over the longue durée of Christendom) novel, even anathema, both to Protestants prior to disestablishment (1776-1833) and to Catholics before Vatican II (1962-1965). Yet now, this distinction would provide vocabulary and set the terms for vicious political battles over education, desegregation, tax exemptions, public health, and more—the religious theatre of the “culture war” that resulted when, by the 1980s, both left and right had given up on the idea that the private-public distinction could ever uphold a studied neutrality and concluded that private acts (e.g., sex or personal attitudes toward race) were just as “political” as the res publica itself [p. 221]. The ideal candidate for a battlefield alliance of previously opposed Protestant sects with previously despite Catholics had to be a bit vague on the details of religion, which transformed otherwise odd candidates for a “Moral Majority” like the “religiously illiterate, divorced,…infrequent church-goer” Ronald Reagan [p. 208] (or later, Donald Trump) into just what the mishmash movement needed: a theologically vague, confessionally noncommital choice. Like earlier, liberal ecumenical efforts of the late-19th century or the anti-community “faith in faith” of the 1950s, post-1970s religious conservatives depended for their political force on their lack of theological substance or specificity. All they needed—and that Reagan (and later Trump) offered, was a “lamentation of decline” [p. 208] and the language of the “jeremiad” [p. 209]. For Sehat’s story, what is crucial about Reagan’s next step—his courting of this emergent bloc by visiting Bob Jones University (plaintiff in a Supreme Court case wherein crystalized both racist resentment of the IRS role in promoting civil rights and fundamentalist Protestant concerns about loss of religious influence over the state more generally) and by speaking in front of some 15,000 pastors in Dallas—is that Reagan’s language amounted to a frontal attack on “the last forty years of jurisprudence” [p. 210].
This is all well-trodden territory, but Sehat’s contribution is to tell the story of the personal struggles and interpersonal complications whereby successive generations of Supreme Court justices navigated the initial wave of disestablishment following the Revolution, through the public re-assertion of religion via the Great Awakening and spread of Protestant-tinged public schooling, to the Victorian sense that religion, though necessary to public morals and perhaps even to a progressive political orientation, had lost its intellectual underpinnings. Onto this story Sehat weaves the successive shifts in American religious demography, and how the Supreme Court had to recalibrate its stance on the relation between religion and secularism primarily in response to relations between the various re-alignments of religious groupings.
While activists left, liberal, or right have tended to remember Supreme Court decisions as a record of wins or losses for their respective side, Sehat is at pains to highlight the losses within the wins and the wins within the losses. Rather than seeing a given decision as for or against any particular theory of secularism, Sehat emphasizes the lack of any such theory.
Speaking of the Bob Jones case, but as a sort of summary for the first 200-odd pages of the book, Sehat notes that
“the problem [that the internal logic of the decision neither validated anti-racism as such nor clarified the vagueness of tax powers] was again traceable to the court’s ambiguous priorities. When faced with a case that that turned on the distinction between public and private and the freedom of religion, the court seemed unable to resolve its many contradictory imperatives” [p. 217].
For the most part, Sehat offers a culturally contextualized history of the “religious liberty” problems bedeviling the Supreme Court, but as the book winds toward its end Sehat introduces interventions into the problem by three philosophers active in the 1990s and 2000s, who turned to the problem of pluralism (including, implicitly, religious pluralism) in democracy: John Rawls, Richard Rorty, and Charles Taylor.
Against the late John Rawls of Political Liberalism (1993), Sehat poses the left-leaning “postmodernist” Richard Rorty’s notion that actors balance competing claims not so much in action as in language, by switching between different terminologies to get around semantic obstacles, and Catholic philosopher Charles Taylor’s A Secular Age (2007). Sehat notes that the conservative right had made more effective use of Rorty’s praxis than had Rorty’s fellow leftists insofar as conservatives switched freely between biblical and constitutional language in ways that made an end run around Rawl’s notion of a public political language. Taylor’s vision belonged to the strange time of the contradictory period of George W. Bush’s term—when religious conservatives were both in political ascendancy while also so deeply into demographic decline that Falwell’s term “moral majority” no longer made sense. Taylor’s vision of an “immanent frame” offered a counter-vocabulary that challenged the desirability of the vocabulary of the religious-secular division inherent in the notion of religious liberty. Sehat is worried by Taylor’s genealogy of the term “secular” as a series of shifts in implicitly held attitudes toward one’s place in historical time and the self’s relation to its environment. For Sehat, Taylor has implicitly called into question the secular as such. When combined with the heirs of Foucault and Rorty, who have shifted from their origins in the anti-imperialist Left to the anti-secular right, Sehat sees in the replacement of Rawlsian liberalism with Rortyan linguistic dexterity and Taylorian hermeneutic of suspicion vis-à-vis secularity a concatenation of intellectual forces to which the (secular) Left has not yet formulated an adequate response. Sehat concludes that Conservatives have exploited ambiguities around religion more successfully than liberals, even as some religious thinkers like Charles Taylor have questioned secular assumptions altogether. This intellectual challenge, urges Sehat, should force secular progressives to articulate coherent alternatives, perhaps from a replacement of the language of “pluralism” with that of “equality,” even though this would likely involved the abandonment of a concept currently precious on the left, “identity,” and might even involve a shift from the liberal “negative secularism” (in which freedom is shown by what the state does not do) to a French-style “positive secularism” or laïcité (in which equality is ensured by denying all religions equally, whether bids for power from old-style Catholics or demands for the right to wear certain clothing from some Muslims).
Sehat’s books is worth reading not only as a sublimated polemic in this debate, but much more importantly for how ably he shows how secularism and religion in America have co-evolved in mutually symbiotic ways, with philosophical vocabulary transposed into legal and political tools for activist agendas across the spectrum.