Law Without Gospel: Social Identity Pietism and the First Amendment Balance
This is the final remnant of the Christianity of their ancestors, the last enduring bit of their inheritance: a social gospel, without the gospel.
– Joseph Bottum, An Anxious Age (2014)
The law commands and requires us to do certain things. The law is thus directed to our behavior and consists in making requirements. For God speaks through the law, saying, “Do this, avoid that, this is what I expect of you.” The gospel, however, does not preach what we are to do or avoid. It sets up no requirements but reverses the approach of the law, does the very opposite, and says, “This is what God has done for you; he has let his Son be made flesh for you, has let him be put to death for your sake.”
– Martin Luther, How Christians Should Regard Moses (1525)
Please give the undivided attention of your heart to the gospel (tota intentio cordis ad evangelium feratur).
– Augustine, Homilies on the Gospel of John (407)1 Thank you to Roger Berkowitz and Ana Knudsen for helpful comments on an earlier version of this essay.
The owl of Minerva flies at night, as Hegel famously said. We are best capable of recognizing social and political gestalts in retrospect, as they are being challenged in ways that seem to indicate their demise. To some of us, the gestalt of liberal compromise, which, until very recently reigned, albeit tenuously, on academic campuses and in the broader U.S. political discourse, seems mortally wounded. We should consider the possibility that it cannot, and will not, survive.
What might an ending to the liberal gestalt – the ending of this institutionalized “form” of social and political life – mean for the future of law, legal education, and legal practice? What does it mean for the broader law-related disciplines, such as “law and society,” which are taught at the undergraduate level? And what does it mean for the relationships between law and religion?
In this essay, I explore the possibility, proposed by others, that the collapse of our liberal gestalt on academic campuses has been precipitated by dramatic enhancement in the social power of critical social justice movements connected with social identity categories, particularly race and gender, movements that I will join Joseph Bottum and John McWhorter in recognizing as a new (or revamped) “social gospel.” However, since I want to highlight similarities to pre-Christian forms of religiosity, together with a marked absence of anything remotely resembling the Christian Gospel, I will use the term piety instead, referring to Social Identity Piety. The colloquially critical way of talking about these movements (“wokeness”) evokes an analogy to Protestant Christian revivalism, and many commentators have pointed to ways in which the Social Identity Piety movements appear religious.
I agree that Social Identity Piety has religious dimensions, but I also think there are good reasons to be cautious about applying the label of religion. I will instead make a case for piety, briefly exploring the ways in which the complex First Amendment balance between non-establishment and free exercise might help us to navigate these treacherous waters.
The Gestalt of Liberal Compromise
A gestalt is a recognizable pattern, a conceptual form in perception and understanding (in quasi-Aristotelian language) through which we intellectually apprehend, as a unity, a complex configuration existing in social, moral, and/or natural reality. Just as we perceive a song from multiple sounds and notes, we perceive a moral and political whole in multiple social patterns, institutions, and relationships, and we may then form judgments, moving to a course of action in accordance with the perception, understanding, and judgment.2 Oxford English Dictionary Online Edition, available at www.oed.com (accessed June 16, 2021), Gestalt; cf. Aristotle, De Anima, translated by C.D.C. Reeve (Indianapolis/Cambridge: Hackett, 2017), II.12 (424a17); Hegel, Philosophy of Right, 23; Olli-Pekka Vainio, Justification and Participation in Christ: The Development of the Lutheran Doctrine of Justification from Luther to the Formula of Concord (1580) (Leiden: Koninklijke Brill, 2008), 27-33 (describing Luther’s adaptation of Aristotelian epistemology in developing his distinctive conception of justification by faith); also Phillip Cary, The Meaning of Protestant Theology: Luther, Augustine, and the Gospel That Gives us Christ (Grand Rapids, MI: Baker Academic, 2019), 186-92.
The gestalt of liberal compromise, according to this conception, has been a complex social and moral configuration comprising multiple patterns, practices, relationships, and institutions that constitute the lives of faculty, administrators, and students who inhabit the campuses (and video conferencing spaces) of U.S. higher education. The specifically liberal dimension of the gestalt involved, I think, a tacit acceptance of ideological pluralism, including religious pluralism and atheism, but extending to opposing ideologies of “right” and “left,” and embracing an ever-widening range of “critical” theories, which often carry an ambivalent lineage from Marxist social and political philosophy.
Students in university classrooms (and I speak from personal experience) could clearly see that there were deep and passionate disagreements between their teachers over the nature of the Good, but the tacit agreement was to accept that one passed between visions of the Good as one passed between classrooms and professors. A graduate would enter the world of work with a cornucopia of possible worldviews, and perhaps with a strong dose of relativist cynicism, but there was also a humbling awareness of the wide range of possibilities for deep value commitments, which had the tendency to soften temptations toward dogmatism.
This gestalt was already tenuous at the turn of the 21st century, and learned critiques of American university culture have become an established genre. But my impression is that the liberal gestalt has recently collapsed completely, a development that coincided with the Trump presidency, and has radiated well beyond university campuses.
I do think that former president Donald Trump (together with his devotees) bears a share in the responsibility for its demise. If we are, as Joseph Califano, Jr. has argued, a “presidential nation,” then it cannot be surprising that our national culture receives a powerfully shaping influence from the personality inhabiting the presidential office, even if only for a single term. But I also think that Trump is, at most, a proximate and mediating cause.
In any case, the liberal gestalt is now gone, leaving us with an awareness of how much we depended upon it in doing our daily work of scholarship, teaching, and service. We may need to relearn the skills of “virtuous disagreement” over foundations and fundamentals, in a time when the basic categories of logic and the value of rationality (not to mention the value of foundations and fundamentals) are not only contested, but fatally undermined.
One place from which to begin, I think, is in reviving an appreciation of the First Amendment balance, as it relates to religion, and, by analogy, to ideological social movements seeking to deploy state power for purposes their adherents perceive as being righteous, holy, and just. The First Amendment prohibits the establishment of religion, while it also protects the free exercise of religion. The million dollar question, of course, is: What counts as religion? How should we define religion, in law and in perceptual understanding?
Social Identity Piety as Religion? Literal and Functional Approaches
The case for viewing Social Identity Piety as religion has been cogently made by several recent commentators, but I will focus on arguments from John McWhorter and James Lindsay. McWhorter’s book-length argument has appeared in an online serial – The Elect: Neoracists Posing as Antiracists and their Threat to a Progressive America – and it will be published as a book in the fall. As evidenced by the title, McWhorter’s arguments focus on the race-related dimensions of Social Identity Piety. James Lindsay’s lengthy essay, on the other hand, extends beyond race to gender and intellectual colonialism. Lindsay’s essay also focuses on the First Amendment implications of Social Identity Piety.
While Lindsay, drawing on classical sociological theory of religion from Emile Durkheim, points to Social Identity Piety as being functionally like a religion, McWhorter is more literal. What he calls Third Wave Anti-Racism is not like a religion. It is a religion.
Something must be understood: I do not mean that these people’s ideology is “like” a religion. I seek no rhetorical snap in the comparison. I mean that it actually is a religion. A naïve anthropologist would see no difference in type between Mormonism and this new form of antiracism. Language is always imprecise, and thus we have traditionally restricted the word religion to certain ideologies founded in creation myths, guided by ancient texts, and requiring that one subscribe to certain beliefs beyond the reach of empirical experience. This, however, is an accident, just as it is that we call tomatoes vegetables rather than fruits. If we rolled the tape again, the word religion could easily apply as well to more secular and recently emerged ways of thinking. One of them is this extremist version of antiracism today.
The characteristics marking out Social Identity Piety as a religion for McWhorter include: (1) beliefs that are held “beyond the reach of empirical experience,” (2) an origin myth (1619), and (3) scriptural authorities (a “triple-testament tome,” consisting of Ta-Nehesi Coates’s Between the World and Me (2015), Robin DiAngelo’s White Fragility (2018), and Ibram X. Kendi’s How to Be an Antiracist (2019)). The religious dimensions are spelled out with specificity in McWhorter’s Serial Excerpt 3 (first published on February 23, 2021), where the comparisons with Abrahamic religion, in particular, are emphasized, including conceptions of original sin, intellectual submission, evangelical mission, and apocalypticism.
James Lindsay’s argument for Social Identity Piety as a functional counterpart to religion is more directly tied to legal debates over the definition of religion, as these have been elaborated in the U.S. Supreme Court’s First Amendment jurisprudence. Like McWhorter, Lindsay is making his argument for a political reason, but, for Lindsay, the argument is also legal. Just as the First Amendment protects against the establishment of Christianity in our national life, Lindsay essentially argues, so it should protect against the establishment of Social Identity Piety in our national life. Lindsay’s case is thorough and systematic, drawing on classical sociological theory (in defining religion) and legal scholarship (in making the anti-establishment case). Lindsay relies especially heavily on a 1989 Cornell Law Review Note – “Defining Religion in the First Amendment: A Functional Approach” – by Ben Clements.
Clements makes a strong argument for defining religion functionally: religion is what religion does. For Clements, the functions of religion are epistemic, existential, and ethical. Religion is “a comprehensive belief system that addresses the fundamental questions of human existence…and that gives rise to duties of conscience” (553). The fundamental questions of human existence that religion addresses include questions of “ultimate meaning” (in the language of Viktor Frankl): “the meaning of life and death, man’s role in the universe, and the nature of good and evil” (553).
This conception of religion is close to Max Weber’s classical conception, which was directed to a historical understanding of “world religions” in their cultural, ethical, and economic effects for the modern world. In his Introduction to the Economic Ethics of the World Religions – an essay written in 1915 and republished in 1920 as the introduction to a series of lengthy essays on the world’s major religious traditions – Weber loosely defined religions as “systems for the regulation of life.”3 This is not a full-fledged definition of religion, and some scholars have argued that Weber avoided giving such a definition. See Peter L. Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion (Garden City, NY: Doubleday, 1967), Appendix I, 215-16; Fenggang Yang, Religion in China: Survival and Revival under Communist Rule (Oxford: Oxford University Press, 2012), 25. As is clear from his prefatory essay for the same collection, written in 1920, and indeed from the entirety of his writings on religion – beginning with his most famous essays on The Protestant Ethic and the Spirit of Capitalism (1904/5 & 1920) – Weber was primarily interested in the impacts of religious traditions on “the ability and disposition of men to adopt certain types of practical rational conduct (Lebensführung).”
As he concentrated on the historical and cultural impacts of religious traditions in the final decade of his life, moreover, Weber came to see “religiously-determined systems for the regulation of life” as central elements in a broader set of orienting values and ends, which are not all strictly religious, but which do define ethical callings (vocations) for practical rational conduct. For Weber himself, it seems that those vocations were politics and science. But, in the realm of politics, Weber recognized a place for “convictions,” as well as ethical responsibility for likely consequences. Weber understood, in other words, that political engagement can sometimes take on the qualities of religious commitment.
James Lindsay follows Emile Durkheim, Weber’s French (and Jewish) counterpart in classical sociology, who saw the social world as being essentially religious, and who identified the defining functions of religion with the establishment of sacred boundaries and the offering of normative cement to social obligations. Religion, for Durkheim, is a binding and bonding force in social life, drawing from the “collective effervescence” generated in social rituals to lend a sacred quality to normative prohibitions that establish boundaries. Such boundaries might be definitional, as around concepts, or they might be social, as in boundaries dividing groups of people. Durkheim’s explication of this basic conceptual framework in his final extended work in sociological theory, The Elementary Forms of Religious Life (1912), has been helpfully summarized and critiqued by Robert Alun Jones (1986).
While Durkheim did emphasize the role of belief in religion, alongside ritual and practice, his explanation for the existence of religious (and scientific!) beliefs is ultimately social, and he focuses much more than Clements on the sacred objects of religious belief. In ritualistically-generated experiences of social power, the sacred is recognized, defined, and proscribed. The epistemic and ethical functions of religion, in other words, are ultimately derived from the experience of social power, which marks out sacred objects for belief and practice. Durkheim’s definition of religion flowed from this fundamentally social conception:
A religion is a unified system of beliefs and practices relative to sacred things, that is to say, things set apart and forbidden — beliefs and practices which unite into one single moral community…all those who adhere to them.
In his extended essay, Lindsay expends considerable effort to show that Social Identity Piety, as an “ideological worldview,” meets functionally-elaborated criteria for religion, synthesized partly from Durkheim and Clements. Social Identity Piety, he concludes, like religion, forms a moral community:
It provides a mythology, metaphysics, and moral law that binds the community and enables “divinity”-based psychosocial valuation of adherents and others, and this gives rise to clear “critical” duties of conscience in everyone the system can touch…. Since it proceeds from a mythology with its own creation myth, metaphysics, and moral law, this view is totalizing to those who adhere to it, as is typical of religious belief. This system of belief is, in fact, constructed along the same lines as how Augustine organized Christianity and Aquinas “proved” the existence of God. Finally, it gives way to fundamentalism…and manifests in puritanical form, which is something that, while it is not limited to religion, is very common within sects or cults that arise within religious movements and worldviews. (emphasis added)
As the italicized language indicates, this conception of religion essentially generalizes from Christianity. Religion is what Christianity does. And, while it is doubtless true that Social Identity Piety borrows heavily from Christianity, that fact alone cannot help us decide whether it is a religion.
A general problem with modern, “social-scientific” definitions of religion, indeed, comes from the fact that they tend, consciously or unconsciously, to treat Christianity (often, western Protestant Christianity) as a central, paradigmatic “case” of religion. With some effort, a definition of religion constructed this way can be extended to Judaism and Islam, but the applicability to other traditions identified as “world religions” (Hinduism, Buddhism, and Confucianism) becomes more questionable. This point has important implications for the ways that we think about “secularism,” as well.
For First Amendment purposes, it makes sense to treat (Protestant) Christianity as one paradigm case of religion, but, in a post-Christian society, it may no longer be appropriate to define religion with Christianity primarily in mind. (On this point, see further Pew Research Center’s New Religious Typology for Americans (2018)). Moreover, our definitions of religion should account for the ways that religion has been recognized and considered historically.
We particularly need, I think, to recall the older features of Roman and Greek religion, which gave rise to philosophical reflection about the nature of religio, and which can remind us just how threatening and strange Christianity at first seemed to people who were working with quite different conceptions of religion than our own.
Ancient Religion as Public Piety
What is piety (i.e. holiness in action), and how do we recognize it? This was a central question, perhaps even a defining question, for the tradition of critical philosophical inquiry that begins with Socrates and Plato. Plato tackled this question directly in the Euthyphro, the dialog that comes first in Thrasyllus’ canonical collection of Plato’s works, but the question echoes throughout Plato’s dialogues, with a culminating focus in The Laws. The Euthyphro is an aporetic dialog, and it leaves us without a clear answer to the question, but, at the very least, with a greater awareness about how hard it is to define piety (and holiness) adequately.4 Euthyphro opens with two separate lines of inquiry about piety/impiety (on the part of Socrates) and holiness/unholiness (on the part of Euthyphro), but at 5d Socrates equates the two inquiries, an equation with which Euthyphro agrees. We do learn, however, that questions of piety are intimately related to questions of justice/righteousness (dikaiosyne) (11e-12e). In Plato’s finalizing work, The Laws, proper piety is fundamental to a critical theology of normative ordering (nomos), together with an educational philosophy for the polis. Educational philosophy, indeed, is central in the Socratic philosophical tradition — which, we should remind ourselves, is also a religious tradition.
Cicero translated the Socratic/Hellenistic philosophical quest into a Latin register, such that inquiries into the nature of piety, education, and normative ordering became inquiries about the nature of religion (religio), proper service to the gods (cultus), goodness, morality, law, justice, and the state. Embracing the “skeptical” Academic approach – an approach that echoes Plato’s evident commitment to dialogical presentation, and that recommends suspended judgment for debatable questions, eschewing dogmatic fidelity to all-encompassing conceptual systems – Cicero sought to draw his fellow Romans into the richness of Greek philosophical debate, hoping (in futility) that this would help to heal the violent conflicts tearing his beloved res publica asunder.
Questions of religious practice, appropriately moderated theological beliefs, and justice in relating to the gods (religion, sanctity, and piety) are central in three of the seven philosophical treatises that Cicero composed near the end of his life: On the Nature of the Gods, On Divination, and On Fate. In fact, as J.P.F. Wynne has recently shown, the philosophy of religion played a pivotal role in Cicero’s broader philosophical project. While the broader philosophical project was undertaken partly for the solace it could intrinsically provide, Cicero seems to have hoped it would help rescue the republic. Given the vital role that public religious performances played in the Roman republican “state,” it makes perfect sense that Cicero would focus so much attention here. In emphasizing the place of appropriately religious piety in law and public life, however, Cicero was also continuing a central line of philosophical evaluation extending back through Stoicism, to the “Old” Platonic Academy, and even beyond, perhaps, to the legendary lawgivers (e.g. Solon) themselves.
A return to the ancient world of public civic religion and related philosophical debates can broaden the range of our ideas about what constitutes religion. Once we widen the semantic range of “religion” to encompass the public virtues of piety, justice, and holiness – basically the set of connotations evoked by our contemporary sense of the word “righteousness” – we start to recognize how ultra-modern social movements like “wokeness” and “critical social justice” might very well be religious.
In the Greco-Roman world of religion, as represented in Socratic philosophy and in other ancient sources, what mattered most was the public performance of piety, i.e. public righteousness. In applying philosophical scrutiny to public religious performances, and public righteousness, philosophers like Plato and Cicero sought to help their fellow citizens be more knowledgeable (“scientific” in the older sense of the word) about why they were doing that which they should do: participating in public festivals and sacrificial worship, for example, or adhering faithfully to vows and oaths. The religion itself – the normative public performance – was never actually questioned, but the reasons for adhering to the religious forms were scrutinized, in ways that could be troubling to convention, and that infamously earned for Socrates a conviction for impiety and corruption of the young. However, as the examples of Socrates and Antigone also reveal, the forms of public righteousness involved in legal processes could raise acute questions about how to interpret the demands of piety, and how to weigh competing demands.
What we see today in Social Identity Piety may be regarded as a modern, “socialized” antitype of ancient religion. While the public performance of piety today does not reference divine beings, and indeed is often avowedly atheist, it does relate to categorical social qualities, which are endowed with metaphysical and existential powers (race and gender, most especially, but also “systemic” power itself, more abstractly). Focusing on the three authors identified by John McWhorter – Robin DiAngelo, Ibram Kendi, and Ta-Nehesi Coates – a common thread is public righteousness, conceived as anti-racism, together with its “binary” opposite, a racism rooted in the “systemic power” of White Supremacy. Extending beyond antiracism to the broader family of Social Identity Piety, the common theme is again public righteousness, recognized in the political activism that struggles against all the “principalities and powers” of White Supremacy, Patriarchy, and Heteronormativity, together with the institutional frameworks that have endowed them with their power and authority.5 In Coates there is no redemptive anti-racism, only resistance and “beautiful struggle.” Interestingly, though, despite the strength of his atheist avowal, Coates uses religious language quite freely, especially in his discussions of Malcolm X. See, e.g., Ta-Nehesi Coates, We Were Eight Years in Power: An American Tragedy (New York: One World Publishing, 2017), 85-104.
Social Identity Piety seeks to chastise, and to call to repentance, in the service of a turn to public righteousness (and to social power through public righteousness), or, at the very least, a compensating payment for past sins. This is the whole point, apparently, of the stream of books we are collectively urged to read. The authors call upon us to recognize our sinfulness, through elaborate rituals of rigorous self-scrutiny, a kind of self-hating asceticism that bears striking resemblances to Martin Luther’s early piety. This is an important part of the “work” involved in public righteousness. But, in our post-modern societies, performances of Social Identity Piety are often carried out in semi-privatized social spaces, rather than a genuinely public sphere. At the same time, the counter-reaction to Social Identity Piety has drawn it into the very public realm of lawmaking, which means that we are now squarely faced with difficult First Amendment questions about how to respond.
Modern Social Piety
In The Human Condition, Hannah Arendt emphasized the extent to which the ancient division between public and private spheres was elided in the rise of a “social realm” that renders previously private aspects of human life open to public gaze, without an attendant sense that glory could be won for a person who acts virtuously (e.g. courageously) in the light of that public gaze. Our conception of the state, she implies, is essentially the ancient conception of the household (oikos), vastly expanded to the limits of national borders (and perhaps not even limited by national borders). It is hardly surprising, then, that our conception of the public good (often conceived through the lenses of “welfare economics”) would be so closely tied to economic management. The outcome of this historical development, Arendt suggests, is a modern world that has elevated technological achievement to the status of an ultimate end, albeit an end that is ironically without limits.
Arendt saw a deep and even fateful significance in the translation of Greek philosophy into Latin, and particularly in the shift to seeing humanity as essentially social, rather than essentially political. The ideal human community came to be conceived as a “society,” rather than a “polis,” and equality gradually became the defining criterion for justice. The quest for social justice, we might say, begins here, and it grows with the growth of Christendom, which replaced the Greco-Roman ideals of glory in the public sphere with Christian social ideals.
With the rise of institutionalized Christianity, and in the “post-Christian” traditions of Marxist political thought and positivist social science, Arendt saw a tragic misconception of human fellowship in the world as a “social realm,” in which we seek to mold and shape one another in conformity with a “structural” vision of equality (or “equity,” perhaps, as it has been transformed by Ibram Kendi). While we might wish to quibble with the details of Arendt’s largely implicit genealogy, we can readily accept her basic point that modern political and social sciences tend to conceive human beings as objects to be causally explained and “structurally changed.”6 In the anti-racist vision of Ibram X. Kendi, “equity” is the ultimate criterion of all “policy,” which is expansively defined as “written and unwritten laws, rules, procedures, processes, regulations, and guidelines that govern people.” How to be an Antiracist (New York: One World, 2019), 18. Equitable policies are anti-racist, and inequitable policies are racist. There is no middle ground. “There is no such thing as a nonracist or race-neutral policy. Every policy in every institution in every community in every nation is producing or sustaining either racial inequity or equity between racial groups.” Ibid. Equity, as Kendi describes it, boils down to numerically proportional representation of racial groups in relation to social advantages and institutional positions. But, because anti-racism, as Kendi envisions it, takes a broadly-conceived “intersectionality” into consideration, equitable policy also requires that gender-related identities and class positions be taken into consideration, in addition to race. There is, in other words, a straightforward avowal of identity politics in Social Identity Piety.
It is important to be reminded periodically, moreover, that modern social science has very religious dimensions. Auguste Comte, the visionary of modern positivism, saw sociology as replacing theology, which had been the “queen of the sciences” in medieval articulations of the university. Sociologists were to serve as the modern counterparts to medieval priests; they would serve the modern state as priests had served the church, molding and shaping young people through a scientifically developed pedagogy.
It is no accident that Emile Durkheim, founder of modern sociology, was a professor of pedagogy. And, even today, the acquisition of a “sociological eye,” which is taught as the goal for would-be sociological thinkers, is pervasively described in the language of visionary conversion.
Social Identity Piety is often described as a legacy of academic postmodernism, and that is surely right. But it also borrows heavily from positivism and Durkheimian sociology, in its prescriptions for structural equity.
The vision of Social Identity Piety for public, social righteousness, we might say, is essentially a “managerial technique,” which is to be applied by anyone in a position to affect “policy,” which is to say anyone in a position of normative authority. It is fundamentally about what we do, rather than what we believe, but it does involve a kind of performative piety, which is connected to an intensely critical self-inquiry.7 I owe the language of “managerial technique” to a Zoom discussion with Malloy Owen, whose essay on Robin DiAngelo’s Peculiar Gospel is well worth reading.
In ancient political festivals and public sacrifices, piety (reverence) was directed to the gods. In Social Identity Piety, piety/reverence is directed to marginalized and victimized categories of people: black people, people of color, transgender people, poor people, disabled people, and immigrants. When this piety is theorized in a sophisticated way, it draws on postmodern social theory, particularly postcolonial theory, standpoint theory, and intersectional theories. An important foundational source for this reverence can be found in W.E.B. Du Bois’s Souls of Black Folk, which draws on highly spiritual language (including Biblical language) to theorize the unique insights possessed by persons who stand “behind the veil” of race. The piety is enacted, often, in practices and rituals of social deference. One everyday example can be seen in pronoun usage and recitation, which offers social deference to transgender people.
For people who embrace this form of piety, it seems to constitute something like an existential quest for righteousness – often with an eye toward the ideological and political power associated with this righteousness – as Joseph Bottum has poignantly elaborated in his description of the “Elect.” The Elect are seeking a kind of redemption from the sullied world of morally compromised institutions. And, in this form of quasi-public righteousness,
[P]roof of redemption is the holding of a proper sense of social ills. The only available confidence about their salvation, as something superadded to experience, is the self-esteem that comes with feeling that they oppose the social evils of bigotry and power and the groupthink of the mob.8 Of course, it is important to acknowledge, with Max Weber, that actual motivations for people who are orienting themselves to this “order” of piety will vary. For some, it may very well come from a form of “value-rational” generosity. Thank you to Roger Berkowitz for encouraging me to consider this important qualification.
Today’s Social Identity Piety often manifests itself in quasi-private settings, such as social media or private colleges. And, even in more public settings like state universities, it can seem like a stretch to draw the analogy between animal sacrifice and pronoun recitation. Both involve piety, reverence, and public performances of righteousness, but reverence directed to divine beings seems quite far removed from reverence directed to personifications of social identity categories.
And yet, Social Identity Piety has lately been a significant factor in national and state governance, as seen for example in the controversy over Center for Disease Control COVID-19 vaccine priorities and in the Department of Education’s plan to prioritize Ibram X. Kendi’s anti-racist agenda in awarding history and civics-related project grants. Kendi himself exhorts us to embrace an anti-racist totalitarianism, by way of constitutional amendment, in our efforts to rid the world of systemic racism.
Do we see here an “establishment of religion,” under the First Amendment?
To definitively say yes to this question, in the abstract, I believe that we would need to do violence to our common-sense conceptions about what religion is, conceptions that have been shaped (for better and for worse) by long historical experience with Christianity in law, politics, and society. We might also do violence to our First Amendment jurisprudence, which is highly contextual, rooted in particular historical conflicts and narratives. And we would often be practicing a kind of symbolic violence against the proponents of Social Identity Piety, in claiming to know better than they do what their social movements and political agendas are all about.
From the other side, however, I think we need to recognize that the same kinds of problems arise with establishment of Social Identity Piety as would arise with establishment of Christianity, problems that we can boil down to the coercion of conscience, following a line of thinking about the purposes of the First Amendment’s religion clauses. In other words, there is enough of a family resemblance to religion in Social Identity Piety to implicate the First Amendment balance, and therefore to justify drawing on that balance in public discourse.
In our political debates about Social Identity Piety, I propose that we might draw constructively on First Amendment jurisprudence, by analogy, and that we might seek to achieve the goal that has so elusively, yet beneficially, been sought in relation to “traditional” (Abrahamic) religions, particularly Christianity, namely the balance between non-establishment and free exercise. ♦
Laura Ford is an Assistant Professor of Sociology at Bard College. With a background in both law and sociology, Laura’s research and teaching interests include: law & religion; economic sociology; social theory; the history and development of intellectual property; and historical sociology. Recent publications include articles in Qualitative Sociology; Max Weber Studies; Theory & Society; the Cardozo Public Law, Policy & Ethics Journal; and a chapter on “Law and Commercial Capitalism” for The Oxford Handbook of Max Weber. Forthcoming publications include: The Intellectual Property of Nations: Sociological and Historical Perspectives on a Modern Legal Institution (Cambridge, 2021); and a chapter on “Ancient Judaism and Western Legality” for the Routledge Handbook on Max Weber. Photo Credit to Prantik Mazumder.
Ford, Laura. “Law Without Gospel: Social Identity Pietism and the First Amendment Balance.” Canopy Forum, September 1, 2021. https://canopyforum.org/2021/09/01/law-without-gospel-social-identity-pietism-and-the-first-amendment-balance/