Law Without Gospel:
Social Identity Pietism and the First Amendment Balance
This is Part II of Laura Ford’s essay on Social Identity Pietism and the First Amendment Balance.
The First Amendment Balance & Social Peace
In a careful historical study of American cultural and jurisprudential developments relating to First Amendment religious freedom, Philip Hamburger has persuasively argued that the U.S. effort to separate religion from politics (“church” from “state”) has, ironically, contributed to a spillover effect, in which social forces originally contained within religious communities have become secularized and politicized. This helps us to see that Social Identity Piety is neither surprising nor new.
It might also help us to see why the Supreme Court’s First Amendment jurisprudence is so infamously fractured and complex, even incoherent, as some have argued. The First Amendment, perhaps more than any other single constitutional provision, touches upon our deep conflicts about who we are as Americans, and on our efforts to build a common social and political “nation,” despite fundamental disagreements about our ultimate political and religious (or anti-religious) commitments.
This fracturing, complexity, and division is manifest in the Supreme Court’s most recent forays into First Amendment religion jurisprudence. It can also be seen in lower court opinions, which grapple with the treatment of non-traditional religions (such as Scientology) under the First Amendment. But there is arguably a jurisprudential line of interpretation emanating from the Court’s Establishment Clause opinions, a line that focuses on the social peace-making functions of the First Amendment’s religion clauses, interpreted in relation to one another.
This Social Peace-Making line of interpretation might be said to begin with two cases from the early 1960s, both of which dealt with the propriety of religiously-informed moral teaching in schools: Engel v. Vitale, 370 U.S. 421 (1962) and School District of Abington Township v. Schempp, 374 U.S. 203 (1963). This Social Peace-Making line was elaborated in more recent efforts to delineate the joint purposes of the Establishment and Free Exercise clauses, as seen in Justice Breyer’s concurring opinion in Van Orden v. Perry, 545 U.S. 677, 698-706 (2005), which was cited with approval in the Court’s recent Establishment Clause case: American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019).
The Social Peace-Making goal of the Religion Clauses, working together, was positively formulated by Justice Alito in his opinion for the American Legion Court. The Religion Clauses, according to Justice Alito, share a purpose in seeking to “foster a society in which people of all beliefs can live together harmoniously” (2074). The Engel Court put the point more sharply and negatively, with respect to the Establishment Clause, in a case addressing religious worship in schools (431):
When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect, and even contempt of those who held contrary beliefs.
The “first and most immediate purpose” of the Establishment Clause, in other words, is to prevent a “union of government and religion,” and ultimately to protect the legitimacy of government, the vitality of religion, and the maintenance of social peace. While the intentions with established religions may be good, historical experience in western Christianity shows a strong tendency toward negative consequences nonetheless: inflaming of social conflict, undermining the legitimacy of government, and fostering a pervasive cynicism about religion. That Christianity can today be identified with “white supremacy” and “white nationalism” shows the extent to which religion may be irreparably harmed by excessive entanglement with government compulsion.
These same basic considerations hold with Social Identity Piety, which today fans the flames of social conflict. Where Social Identity Piety is drawn into governmental policy considerations, it is also undermining the legitimacy of government. And an understandable, but dangerous and ultimately self-defeating overreaction is also setting in, as state legislatures seek to eliminate the teaching of Social Identity Piety in public schools.
As Justice Alito indicated in American Legion, the Social Peace-Making goal is also served by the First Amendment’s Free Exercise clause, which carves out a constitutionally-protected space for religiously-principled beliefs and practices that go against the grain of majoritarian moral impulses. Adherents to minority religions are, in this way, offered a legal protection against difficult choices that might endanger or undermine the civil legal order: between obeying their religiously-informed conscience or conforming to a legally-defined morality.
The early 1960s was also the context in which the Supreme Court recognized a constitutional protection against this kind of compulsion, in a case (Sherbert v. Verner, 374 U.S. 398 (1963)) that received substantial attention in the Court’s most recent Free Exercise decision, Fulton v. City of Philadelphia, __ S. Ct. __ (2021). In Sherbert, the Court held that government regulations framed without reference to religion, which nonetheless compel religious persons to choose between accepting government benefits or adhering to their religious principles, must be amended in their application, so as to permit participation by religious persons in the government benefits, without compromising their religious convictions. Where facially neutral or “secular” legal frameworks have indirectly negative impacts on religious beliefs and actions, amounting to a coercion of conscience, the Free Exercise clause requires exception in the administration of the law.
Chief Justice Roberts’s opinion in the recent Fulton case traces the development of Free Exercise jurisprudence following Sherbert, focusing on the narrowly circumscribed reading of that case in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), a reading that constricted the possibilities for religiously-principled conscientious objection, in opposition to facially-neutral (“secular”) laws. While the Fulton decision did not overrule Smith, it does seem fair to say that the Smith framework is today sufficiently questioned as to be non-dispositive.
Although the Court is highly fractured over interpretation of the Free Exercise clause, there is a clear line of support, stretching back to the Sherbert decision, for religiously-principled conscientious objection to worldviews with majoritarian legal sanction, whether these be avowedly secular or themselves religious. As Justice Douglas put the point in his concurring opinion in Sherbert,
[M]any people hold beliefs alien to the majority of our society – beliefs that are protected by the First Amendment but which could easily be trod upon under the guise of ‘police’ or ‘health’ regulations reflecting the majority’s views. Some have thought that a majority of a community can, through state action, compel a minority to observe their particular religious scruples so long as the majority’s rule can be said to perform some valid secular function.
The First Amendment’s Free Exercise clause creates bounded protections against this majoritarian power, exerted through government, from seeking to compel minority conscience. This is protective of social peace because it offers a kind of a “safety valve,” allowing people with intensely felt moral convictions to live in accordance with those convictions, while remaining in a law-abiding position and continuing to contribute to the broader society.
As noted by the Court in Sherbert, there are limits to the protections afforded conscientious conviction under the Free Exercise clause. These limits are exceeded where the beliefs in question are connected to actions that pose a “substantial threat to public safety, peace, or order” (403).
In the name of social peace, our constitutional framework prohibits the establishment of religion, carving out exemptions to majoritarian moral norms for the free exercise of religion, and allowing people with strongly principled, and sometimes very unpopular, worldviews a protected space within which to act in accordance with their convictions. The limitations to this protected space are also set with a view to protecting social peace, as well as public safety and order. The open question, essentially, is about how much discretion is allowed to governments in establishing these limits. But the basic goal of ensuring social peace is clearly understood to be served by permitting, within generous limitations, persons with strong moral convictions to speak and act from their convictions.
This First Amendment balance offers principles by which we might seek protection for adherents to Social Identity Piety, as well as traditional religions, shoring up mutually-respectful, pluralistic social and public spaces within which to teach and live in accordance with our differing convictions, and thereby to serve as witnesses to intensely-motivated, and sharply differentiated, moral inclinations and ethical systems.
With the collapse of the liberal gestalt, what may be left is the delicate First Amendment balance, which seeks to promote social peace by prohibiting religious establishment, while protecting conscientious conviction and action. In this First Amendment balance, a pluralistic space remains open for religiously-principled action, which cannot compel others, but may invite them.
Conclusion: Law and Gospel in the First Amendment Balance
In an essay circulated privately among English politicians in December 1791, Edmund Burke reflected on the peculiar character of the French Revolution, then being witnessed across the Channel. Unlike purely political revolutions in government, which, “turning on matter of local grievance or of local accommodation,” did not extend beyond a defined territory, the French Revolution was something altogether different — something that had not been seen since the Protestant Reformation.
It is a Revolution of doctrine and theoretick dogma. It has a much greater resemblance to those changes which have been made upon religious grounds, in which a spirit of proselytism makes an essential part.
Revolutions like these, Burke proceeded to argue, have dramatic political and governmental effects, but they also fracture societies in ways that cannot easily be contained within state borders. These are cultural and social revolutions, as much as they are also political and legal revolutions.
In his earlier “Reflections on the Revolution in France,” Burke had also emphasized the religious qualities of the Revolution, revealed in a London “Revolution Society” and in the words of a dissenting preacher (Richard Price), who was extolling the natural rights doctrines of the Revolution in religiously-elevated language. To Burke, such English promoters of the French Revolution appeared as a naïve breed of “new evangelists” and propagators of a “political gospel,” a false gospel that was bound to disappoint its eager receivers and to implicate an embrace of violent social revolution in Britain.
As Burke reminds us, the observation that leftist political movements have religious dimensions is nothing new. Among recent sociological thinkers, Raymond Aron also stands out as an acute observer of the religious dimensions to be found in secular socialism. Aron saw in Marxist communism and secular socialism harbingers of the future, with many more “secular religions” to come. As “classical” analysts of emerging national societies in Europe, both Max Weber and Emile Durkheim likewise recognized the extent to which politics and everyday social rituals exhibit religious dimensions, even while remaining unrecognized as “religion.”
In fact, “liberalism” itself, in both its European and North American guises, may be seen as a product of religiously inflected, political convictions. In the German-speaking polities of central Europe, for example, national-political projects co-opted “progressive” visions of Christianity, in order to draw on the cultural/ideological power of public righteousness, while also undermining the potential for “conservative” Christian (especially Catholic) resistance, through an intentionally-cultivated “culture-war” (Kulturkampf).
A version of this development can also be seen in the antebellum United States, where the cause of liberalism was closely identified with political and economic progressivism, with strong religious supports in a particular type of Protestant Christian eschatology (“postmillennialism”). In his Pulitzer-winning history of antebellum American, Daniel Walker Howe exemplifies this religiously political progressivism in the political writings of John Quincy Adams, and in Francis Wayland, a Baptist clergyman, economist, and soon-to-be president of Brown University. Among the Christian denominations shaped by this eschatological progressivism were those that would, in the Twentieth Century, develop as the “Protestant Mainline.” It was their precipitous decline in the late Twentieth Century that portended the rise of today’s post-Christian pieties, in the compelling narrative of Joseph Bottum.
Jonathan Herzog has moreover argued that Christian liberalism was essentially coopted (sometimes very cynically) in the early cold war period, in opposition to communism, as part of a state-centered, existential struggle for global power, lending pathos and urgency to an intensifying national culture. A particular version of Christian liberalism accordingly coalesced, in the wake of World War II, as something like a de facto religious establishment. In considering this, we might recover an awareness of the extent to which the post-war liberal gestalt was formed by a religious and spiritual struggle, giving shape and direction to political and economic struggles, an awareness that Herzog deftly captures in the title to his book: The Spiritual-Industrial Complex.
American nationalism, we might say, can also be a kind of Social Identity Piety, one that has come powerfully to the fore at several points in U.S. history, and that many see in dangerous forms today. The adoption of theistic slogans in our national currency (“in God we trust”) and our national pledge (“one nation under God”) stand as witnesses to one such moment in our national history, a moment that, in retrospect, seems like a high-water mark for liberal Christianity. In the First Amendment litigation of the early 1960s, discussed previously, we might see a legal response to this development, albeit a response that has so far left the theistic language of our currency and our national pledge in place.
While Christians may be troubled, therefore, by the collapse of a liberal gestalt that superficially honored our religious commitments, we might also recognize new opportunities and obligations unfolding in the wake of that collapse. New affirmations of the First Amendment balance may be required from Christians. And these might very well jeopardize the privatized security of our Christianity.
The Christianity coopted in the liberal gestalt was, perhaps, too thin and too private. Christians may therefore need to strengthen our capacities for speaking publicly about the Gospel, about its relationship to Law (both Biblical and secular), and about the lessons to be learned from Christian mistakes in relating to both Law and Gospel.
Social Identity Piety, while it may take Christian forms, should never be equated with the Christian Gospel. The Gospel is, quite simply, the good news about Jesus. For Christians, that means that it is also the good news about God’s kingdom, which has come into the world in a way that we persistently fail to grasp and understand. Indeed, the story of the Gospel, which is a story about how God has given himself to be part of our human story, is largely a tragedy, one involving persistent failures of human understanding, which are connected to an existential vacuum at the core of our being, to epic failures in legality, morality, and ethics. The Christian word for these failures and this existential emptiness is sin, and the Gospel story is the amazing and beautiful story about how God rescues us from that sin.
While the language of Gospel is by no means exclusively Protestant, it is closely associated today with conservative Protestant theology, which is often derisively labeled as “evangelical” (i.e. “gospel-y”). A theological dialectic between “Law” and “Gospel” is particularly pronounced in Lutheran teachings, moreover, which Phillip Cary has recently defended as important correctives to a Platonic epistemology of “inward vision” and an ethics of habituated virtue (habitus), which became especially pronounced in Augustinian (“western”) Christianity and, rather differently, in Calvinism.
Cary urges Christians to recognize Luther’s terrible mistakes, particularly his anti-Semitism and his emphasis on Biblical certainty. But Cary also urges Christians to learn from Luther’s sacramental understanding of the Gospel Word, which can help us to turn our attention away from ourselves and toward the person of Jesus. In turning toward the person of Jesus, we can hopefully recover a deeply Biblical way of relating to law, as moral instruction that teaches us how to live, partly through commands, but partly also through stories.
Biblical legality, from this perspective, is ultimately about instruction (Torah), which comes in propositional ordinances and commandments, but also in stories, which are so often stories about human beings who make mistakes. Abraham Joshua Heschel drew attention to this balance between story and commandment, in his majestic elaboration of the Heavenly Torah (2004).
The Gospel, as Cary explicates it, is both a story and a promise, and it is ultimately the gift of God himself, the divine love that invites our love in return and helps us want to live in a way that is worthy of that incomprehensible gift. In recovering Luther’s shift from an earlier effort to hate his own sin, as a way of earning God’s grace, we can see echoes of the emphasis on self-critical scrutiny that is so characteristic of Social Identity Piety. Luther’s movement away from this early, “masochistic” piety may offer vitally important lessons for our time.
In any case, as Martin Luther’s namesake, Martin Luther King, Jr., showed so powerfully in his sermons and speeches, and ultimately in his life, the Christian Gospel of divine love, for all the terrible mistakes Christians have made in trying to share it, still has valuable lessons to teach about the meaning of law and justice for American national society.
We are always failing to love our neighbors as we should, failing to seek the Good for those most vulnerable in our society, and we should always be trying to acknowledge our mistakes, to learn from them, and to do better. From a Gospel standpoint, however, the ultimate lesson to be repeatedly learned is that only by clinging to God’s love, through faith in Christ, will we be able to learn to love rightly, and in this way to live in justice, according to the law.
That kind of faith and love can never be compelled, and so there are excellent reasons for Christians to seek to preserve the First Amendment balance, and to strongly advocate for freedom of conscience. We can affirm those reasons directly, however, rather than relying on a vague and contradictory set of implications in “liberalism.”
The demise of the liberal gestalt may be frightening, but it simply means that we are called upon to articulate and defend principles of religious and ethical freedom directly. Because the second great commandment of Biblical legality is to love our neighbors as ourselves, Christians will want to extend to our neighbors the same freedoms we claim for ourselves.
But, for Christians whose faith has been formed in relation to Biblical legality, the first commandment will always mean that we say, with our Jewish and Muslim kindred in the Spirit, that “the Lord is One.” We are called to love this One Lord with our whole heart, mind, soul, life, and strength (cf. Mark 12:28-34; Deuteronomy 6:4-5; Leviticus 19:18). This is the ultimate orientation of our obligation, and it therefore comes well before the obligation to obey established authorities, which is also significant.
Social Identity Piety is not Christian piety, although it does borrow from Christian piety. To the extent that our national governments seek to establish either of these pieties, insofar as we are citizens of a democratic republic, we should speak out against it, in favor of the First Amendment balance, which prohibits national, state, and local establishments of religion, while also honoring the right of all religious adherents to freely practice their faith, within the generous bounds of a civil legal order.
And here, perhaps, is the deeper challenge: to recover and re-articulate, in ways that can be persuasive in the contemporary culture – without the habitual relativism of the late liberal gestalt – principles that can help to ground our civil legal order, which is constituted to be deeply respectful of human freedom, even if it has, manifestly and tragically, failed to adequately, and equally, afford that respect. ♦
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, Part Two.” Canopy Forum, September 3, 2021. https://canopyforum.org/2021/09/03/law-without-gospel-social-identity-pietism-and-the-first-amendment-balance-part-two/