A couple of weeks ago, First Things published an article in which the author, Roberto Rivera, self-critically reflects on his support of the Religious Land Use and Institutionalized Persons Act.
Over the years, the RLUIPA has been used to ensure us Americans that our religious freedoms will be protected. But as with pretty much every other law in history, there have been complications and dangers that go along with it. One major danger that constantly haunts the RLUIPA is that it, in the words of Justice Scalia, “in effect permit[s] every citizen to become a law unto himself.” In essence: if a person claims the law infringes on their “religious beliefs,” then the law must respect that, in effect permitting citizens to become a law unto themselves. I needn’t explain why this is a major problem.
But maybe this problem is created by the fact that we are simply framing the question the wrong way. See, there is a hidden assumption both within the RLUIPA and Justice Scalia’s opinion: it is that they both take on board the assessment of religion which Kant laid out in his little known Religion Within the Bounds of Bare Reason. Primarily, the assumption that revealed religions are inherently irrational, while all along secular reasoning stands apart, untouched, as “rational.”
Supporters of the RLUIPA, like Roberto Rivera, tend to implicitly assume Kant’s dictum, yet they still hold dear to this deep down feeling that religion should in fact continue have a say. Therefore, they will continue to push for laws that protect, say, a person right to refuse their business services on “religious grounds.” But the thing is – if all religions are equally irrational under this system, then why on Earth should, say, a sect of Christianity receive respect when the Church of the Flying Spaghetti Monster doesn’t? For when it comes down to it, this is the precisely the logical endpoint for the supporters of the RLUIPA; and this is exactly why Rivera harbors doubt about his own support for it, saying, “[one] may conclude that the prisoner’s Pastafarianism is a ‘parody’ of a real religion, like the Nebraska D.O.C. did. But it’s a “parody” that, under RLUIPA, will be litigated.”
Providing another example to further his point, Rivera makes the observation that: “why wouldn’t a free exercise expansive enough to protect Elane Photography not also protect, say, a Muslim cab driver from having to pick up immodestly-dressed female passengers or passengers whom have obviously been drinking?” It is clear that Rivera doesn’t want any of this to happen, but, as said before, can see no way of stopping the slide down this all too slippery slope – at least without giving up his original position.
This is where people like Justice Scalia step in and declare that since “[it] is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretation of those creeds,” we must resort to an interpretation of the Free Exercise clause where the government can only issue and enforce laws insofar as they conform to the “neutral law of general applicability”: namely, laws that fit inside the neat little Kantian box of pure reason. With this, the secular order legitimatizes itself by asserting its laws to be devoid of any particular metaphysical commitments and biases. Proceeding from this assertion, anything that falls outside its dogma will not be given priority. Sounds familiar, doesn’t it?
“Once upon a time,” writes John Milbank, “there was no ‘secular.’” Well, as it happens, this was not because the peoples of the past vocabularies were lacking, but instead owes to the fact that the idea of the “secular,” as opposed to “religious,” would have – rightly – made no sense to, say, the ancient Romans.
It was simply that beginning the Enlightenment, secular liberal democracies, in order to hide the vulnerability of its position, covered their laws in the guise of the “secular” – code word for a position of which any rational person would, of course, accept – and thus setting themselves apart from the religions, which were in turn, deemed irrational. This set the stage for religion to be intentionally driven from the State. And with this fact in mind, it is a fair assessment to say that “liberalism must resort to illiberal methods in order to maintain itself.”
Another point: liberalism, insofar as it is grounded in Kant’s dictum, necessarily views revealed religions as inherently irrational – for they fall within the Kantian category of the “noumenal”, which the “phenomenal” realm – or in this case, secular reasoning – is unable to touch. This, in turn, makes religions – qua irrational – thus dangerous. This connection is lucidly clear in todays society, where one must look no further than the New Atheists and their meme propagating disciples who are more than happy in attributing every single violent action taken throughout the course of human history solely to – some form – of “religion”.
As such, any mention of religion in the public square is now sure to be followed by a string of vague, yet peculiarly enflamed accusations of “fundamentalism.” But as Slajov Žižek puts it in his Did Somebody Say Totalitarianism?: the accusation of “fundamentalism, far from being an effective theoretical concept is” – instead – “a kind of stopgap,” which “instead of forcing us to acquire a new insight into the historical reality it describes, it relieves us the duty to think, or even actively prevents us thinking.” As such, liberalisms perversely ironic way of stabilizing its own – ultimately fragile – hegemony from the dangerous and irrational religions can be summed up in the one simple, accusatory word:- “fundamentalism.”
With respect to the secular virtues, Marcus Pound writes in his book Zizek: A (Very) Critical Introduction that the “concepts such as political sovereignty, autonomy, property, power, and the like” are not derivatives of a logical “ahistorical realm” known as the “secular” but rather genealogically constructions from a “nontrinitarian theism that celebrated the absolute will of the divine” which, in turn, gave birth to a “liberal anthropology that celebrates atomistic individuals and defines individuality in terms of the Will.” This being said, what we need is for the secular to be stripped of its disguise, and unmask it for what it really is: simply another, among of the many, ideologies of the world.
Furthering Pound’s basic point from a slightly different – more philosophical – angle, Michael Hanby writes that:
A purely juridical order devoid of metaphysical and theological judgment is as logically and theologically impossible as a pure, metaphysically innocent science. One cannot set a limit to one’s own religious competence without an implicit judgment about what falls on the other side of that limit; one cannot draw a clear and distinct boundary between the political and the religious, or between science, metaphysics, and theology, without tacitly determining what sort of God transcends these realms. The very act by which liberalism declares its religious incompetence is thus a theological act. Its supposed indifference to metaphysics conceals a metaphysics of original indifference.
This is not to say that the ideology known as modern secular liberal democracy is any worse, or for that matter, any better than the other ideologies – it is just to say that the radical ontological difference that is implicitly assumed between the secular and the religious must be dissolved before we move any further forward with political discourse – regardless of whether this is good for liberalism or not. As such, we must take the secular ideology of its pedestal and judge alongside the others, in a truly – may I say – egalitarian manner. This will in turn dissolve the tension that splits apart the RFRA supporters with, say, a person like Justice Scalia, paving the way for a fresh manner of discourse.
But – I am sorry to say – this will not make the problem any easier. In fact, it will make it even worse – much, much worse. Instead of being between two options as it stands at present, infinity many factions will split off. It will rather like how before the Reformation there was “The Church” and then everybody else. And then how – after the Reformation (and with regards to the analogy, the dethroning of secular reasoning) – thousands of “Christian” (or again, with regards to the analogy, ideological) fractions split off. This being said, it will no longer simply be between the secular and a general concept of “religion,” but between infinitely many competing ideologies.
So – tell me again how we are going to handle this?
Joseph Catalfamo is a student at Clemson University.