Courts as Modern Civic Churches?

India is in the middle of an anachronistic power tussle. Watching The Tudors right when the Indian Supreme Court is hearing submissions in the Sabrimala case placed before me an interesting hypothesis – the King v Church tug of war is replicating itself, albeit democratically, in the controversy surrounding the Essential Practices Test.

First introduced in the Shirur Mutt case (1954 AIR 282), the doctrine provides for a test that would make state interference justified under a Constitution that gives to her citizens (Article 25), the freedom to practice and profess their religion, and to religious denominations (Article 26), the right to manage affairs and administer properties, both being subject to restrictions on public order, morality, and health. Essentially, the test gives the Court the power to determine what constitutes “essential to the practice of the religion” and holds that everything non-essential is subject to legislative action by the State.

A number of scholars (Gautam Bhatia, Shreya Atrey) have commented on the un/desirability of the consequences of such a test. The clearest of them all comes from Jacobsohn who characterizes the test as an attempt to internally reform the religion by allowing the judges to “re-characterize the religion in a more progressive light”.

What has given these objections much weight is the support Justice Chandrachud has lent to the skepticism of judicial discretion bestowed by the doctrine. He questions the ecclesiastical function of the court and proposes to use constitutional morality as the one stop test for determining the constitutionality of a religious practice, instead of going the long way of finding the non-essential elements that may be subjected to progressive restraints. This adherence to the constitutional word is consistent with the treatment of the constitution as the new-age charter of a civic religion, a notion oft repeated and celebrated in India.

King Henry VIII’s ostensible zeal for reform came out of his hatred for papal supremacy. Divine rights of the Kings placed the King directly under God, and God alone. He would then become the supreme mortal in terms of matters relating to governance and spirituality. The Indian courts do not wish to claim any such supremacy over spiritual matters (yet). What they seek to do is social reform – a venerable objective behind the framing of the Indian constitution. In that, they seek to be not just interpreters and guardians of the constitution, but active participants of change in realizing the aims of the constitution.

But one must question this insistence that in religion, like with the legislation, there is an umbra and a penumbra and that the latter is so hierarchy placed that it may be interfered upon, whereas the umbra is so essential that it may not be touched. What is religion but not faith? And what is faith but not a collection of beliefs organically coalesced to create charters that may look different for each generation? Is it not possible that a religion undergo change so as to value a tenet A over B within a span of decades? Is it also not possible that A and B exist simultaneously without harming the essentiality of each other, howsoever inconsistent they might seem to an educated rational mind? Since when has religion been the epitome of moral consistency?

Much can be said on the justifiability of this aspiration. Much more can be said of the legitimacy of the court’s position on such matters. Democratically speaking, ridding a society of its ills is more likely to give positive results if it comes from a joined political action rather than from a bench of judges who, in all their wisdom, are not privy to a large section of the society. Of course, the Indian supreme court has “grounded itself” (a phrased used by Dr. Rajeev Dhavan) and has acquired the kind of legitimacy that demands respectful obedience from its supporters. And this has been primarily because of the non-traditional use of judicial description for activism against a falling parliament often mired in political games to care much about the legal and policy lacunae deserving attention.

Sabrimala is an especially thorny issue, not just because the judges must conclusively decide the path the judiciary wishes to take with respect to social reform but also because they can either be the ecclesiastical court and inform the citizens of the immorality (grounded in the constitution, no doubt but then looking at the vastness of the Indian constitution, it can probably accommodate all moral philosophers barring Peter Singer) of their actions or they can let arguably unethical practices live, giving individual liberty the space that separation of church and state demands.

Freedom of Religion Secures Other Rights As Well

Ethan’s post on “The Why of Religious Freedom” inspired me to add one more to his list of reasons why freedom of religion deserves special treatment and protection. The freedom of religion preserves other freedoms we hold dear. Even those who do not wish to belong to an organized religion or to hold strong religious opinions have their freedoms secured because of the protection granted to religious freedom.

Freedom of religion, the first freedom protected by the US Constitution’s First Amendment, is part of having freedom of speech. Imagine a country where you could say anything you wanted, except those ideas and principles you hold most dear to your heart. How free would you feel your speech actually is? If you have freedom of the press and can print any opinion or argument you care to, unless it is about your conscience, how free is your press? To say that you may express your political opinion and vote unless you have religious reasons for that opinion similarly denies the equal protection clause of the 14th amendment.

Freedom of religion is also a guarantor of freedom of assembly. This last weekend while in Atlanta for the Teaching Professor Conference in Atlanta, my colleagues and I toured Rev. Dr. Martin Luther King Jr.’s church and neighborhood. The civil rights movement for many years worked through the churches because it was the only place African Americans were freely allowed to assemble together in many areas. As they assembled, they had the freedom to speak out against the injustices and oppressions they faced and work together to overcome them.​

As Rev. King put it, “Freedom is like life. It cannot be had in installments. Freedom is indivisible – we have it all, or we are not free” (The Case Against “Tokenism”). To extend that argument, when we say ‘freedom of religion’ it is the people who are free, free to believe how they will, to speak and gather and act according to their beliefs freely. In “The Ethical Demands For Integration,” Rev. King argued:

“A denial of freedom to an individual is a denial of life itself. The very character of the life of man demands freedom. In speaking of freedom … I am not talking of the freedom of a thing called the will [or in our case, religion]. The very phrase, freedom of the will [religion], abstracts freedom from the person to make it an object; and an object almost by definition is not free. But freedom cannot thus be abstracted from the person … . So I am speaking of the freedom of man, the whole man.”

If we cannot be free in our religious thoughts and exercise – whether connected with an organized religion or not – we cannot be a free people.

The Why of Religious Freedom

The blogosphere has exploded over wedding cake. The Supreme Court has splattered the internet with fondant and rage. Baker Jack Phillips, who refused to bake a cake for a same-sex wedding, has achieved a modest win: human rights commissions cannot exhibit a hostility toward religion when enforcing anti-discrimination laws.

When a major religious-rights case hits the news, I’ve noticed a pattern. The outrage extends not to just the individual case but to the concept of religious freedom generally. Angry bloggers and tweeters love to insert scare quotes around the phrase “religious freedom,” as if donning latex gloves to handle toxic sludge. And the Colorado judge below certainly showed deep disdain for Mr. Phillips’ religious beliefs, which is perhaps the major reason that Phillips won. This pattern of skepticism toward religious freedom writ large signals that we should perhaps retreat to first principles. Why do religious practices and beliefs receive special treatment? Continue reading

Christianism and Liberalism

In 1929 John Gresham Machen dropped his professorship at Princeton Theological Seminary to establish Westminster Theological Seminary. Machen fought the Theological Liberalism in the seminary and in his denomination (PCUSA) for many years, until he gave up and decided to form a new seminary and eventually a new denomination as well (the Orthodox Presbyterian Church).

Machen’s attitude of abandoning his seminary and his denomination might seem harsh. After all, can’t we all just get along? Theologically he was considered a fundamentalist. His followers are called to this day “Machen’s Warrior Children,” people who are theologically unwilling to compromise.

People have all the right to disagree, but for Machen, some things were not negotiable. That is why he wrote Christianity and Liberalism (1923), a book in which he unapologetically calls Theological Liberalism “another religion,” separated from historical Christianism.

Interestingly, the same Machen who so fiercely opposed theological liberalism was not a conservative regarding politics, because he was suspicious of mixing religion and politics. He found attempts to establish a Christian culture by political means insensitive to minorities. In practical terms, he opposed school prayer and Bible reading in public school. He also opposed Prohibition, something very costly considering that at that time abstinence was common ground among Protestants. In sum, Machen was, politically, a libertarian.

In Road to Serfdom, Hayek observes that Liberal Christians, who don’t believe in the supernatural aspects of the Bible, tend to embrace Social Gospel and tear down the wall of separation between church and state. Machen, on the other hand, was a living proof that a fundamentalist Christian can want nothing but a distance from the government.

Does the Bible teach Sola Scriptura?

This may not be the most anticipated topic for a blog like Notes on Liberty, but in the past I wrote about the Protestant Reformation and its influence in the modern world and received a comment that the Protestant Reformation was based largely on the principle of sola scriptura (scripture alone), but this principle is not in scripture. Well, I think it is worth talking about, even because I hold my view that the Protestant Reformation was a key event (if not the key event) for the development of the little freedom we still have in the modern world. What I am going to write here is quite summarized. Anyone interested in learning more can look up to numerous texts. One suggestion is Sinclair B. Ferguson’s excellent text “How Does the Bible Look at Itself.”

In the first place, yes, sola scriptura is one of the most important principles of the Protestant Reformation. Within a widely used nomenclature, sola scriptura is the formal principle of the Reformation. But what does sola scriptura mean?

Before we speak what sola scriptura means, let’s see what it does not mean. Sola Scriptura does not mean that the Bible is the only source of revelation about God. It does not mean that the Bible reveals all things. It does not mean that the Bible is equally clear in all its passages. It does not mean that we have a license to subjectivism or that the Bible has multiple meanings. It does not mean that the testimony of the church is irrelevant to the study of the Bible. I will not go into detail on each of these points, but I hope they are enough to avoid straw men on this subject.

So, what does sola scriptura mean then? It fundamentally means that the Bible has an authority that is its own. The Bible is sufficient, necessary, authoritative, and clear. The Westminster Confession of Faith sums up as follows:

The whole counsel of God concerning all things necessary for His own glory, man’s salvation, faith and life, is either expressedly set down in Scripture, or by good and necessary consequence may be deduced from Scripture: unto which nothing at any time is to be added, whether by new revelations of the Spirit, or traditions of men.

An important point I want to highlight is that Sola Scriptura does not invalidate the authority of ecclesiastical tradition. It only subjects it to the authority of the Bible. Again, I quote the same confession of faith:

We may be moved and induced by the testimony of the Church to a high and reverent esteem of the Holy Scripture.

However:

The authority of the Holy Scripture, for which it ought to be believed, and obeyed, depends upon the testimony of any man, or Church; but wholly upon God (who is truth itself), and therefore it is to be received, because it is the Word of God.

And:

All synods or councils, since the apostles’ times, whether general or particular, may err; and many have erred. Therefore they are not to be made the rule of faith, or practice; but to be used as a help in both.

So, to be clear, Sola Scriptura does not invalidate tradition. It does not mean that any interpretation of the Bible is valid. And it certainly is not an invention of the Protestant Reformation. Sola Scriptura means that the Bible has an authority that is its own, that can not be compared to human authority, because the Bible is the Word of God. The Bible authors were well aware that they were writing something that went beyond their authority as human beings. And also, the human authors of the Bible did not leave this authority to their successors, even because this authority was not theirs so they could do it. That is why we see the Apostle Paul saying something like this:

But even if we or an angel from heaven should preach a gospel other than the one we preached to you, let them be under God’s curse!

Is there any contribution to this for liberty? I think so. It was from this civilizational source that classical liberalism emerged. We all need principles. We all need a place to start. The principle of the Protestant Reformation (and deriving from it, of classical liberalism) was the Bible.

Is Fundamentalism a problem?

Today when a terrorist attack happens, the press too often avoids naming the perpetrators and instead seeks to be uncompromised by phrases like “car hits people.” But not long ago, the press usually blamed fundamentalists for terrorist attacks.

The name fundamentalist originated, interestingly enough, in Protestant circles in the US. Only much later was it used to describe other religions, and then mostly to Muslims. Among Protestants, the name fundamentalist was used to designate people against theological liberalism. I explain. With the Enlightenment, an understanding grew in theological circles that modern man could not believe in supernatural aspects of the Bible anymore. The answer was theological liberalism, a theology that tried to maintain the “historical Jesus,” but striping him from anything science couldn’t explain. Fundamentalism was an answer to this. Fundamentalists believed that some things are, well… fundamental! You can’t have Jesus without the virgin birth, the many miracles, the resurrection, and the ascension. That would be not Jesus at all! In other words, it is a matter of Principia: either science comes first and faith must submit, or faith comes before science.

The great observation made by fundamentalist theologian Cornelius Van Til is that fundamentalist Protestants are not the only fundamentalists! Everybody has fundamentals. Everybody has basic principles that are themselves not negotiable. If you start asking people “why” eventually they will answer “because it is so.”

If everybody has starting points that are themselves not open to further explanation, that means that our problem (and the problem with terrorism) is not fundamentalism per se. Everybody has fundamentals. The question is what kind of fundamentals do you have. Fundamentals that tell you about the holiness of human life, or fundamentals that tell you that somehow assassinating people is ok or even commendable?

From Petty Crime to Terrorism

I grew up in France. I know the French language inside out. I follow the French media. In that country, France, people with a Muslim first name are 5% or maybe, 7% of the population. No one estimates that they are close to 10%. I use this name designation because French government agencies are forbidden to cooperate in the collection of religious (or ethic, or racial) data. Moreover, I don’t want to be in the theological business of deciding who is a “real Muslim.” Yet, common sense leads me to suspect that French people who are born Muslims are mostly religiously indifferent or lukewarm, like their nominally Christian neighbors. I am not so sure though about recent immigrants from rural areas bathed in a jihadist atmosphere, as occur in Algeria, and in Morocco, for example. Continue reading