“Ghosts of Law and Religion: The Paranormal Fascination and the Bounds of Knowledge and Experience” by M. Christian Green

Photo titled “Ghosts, Spooky” from Pixabay (License).

As anyone with cable or streaming television in the United States knows, it’s a scary world out there! Talking to dead people, hunting the forests for bigfoots, searching the skies for UFOs—it’s a big paranormal world that’s become big programming and entertainment. Maybe it’s because I recently stayed for the fourth time in one of Louisiana’s allegedly most haunted hotels on a racial justice and election monitoring trip, but the sheer proliferation of programming on the paranormal in recent years has made me wonder what it all means. It also made me pick up a book that I had been meaning to read for some time. The book is Paranormal America, now in its 2017 second edition and edited by sociologists of religion Christopher D. Bader, Joseph O. Baker, and F. Carlson Mencken. Who better than religion scholars to take on the world of the paranormal?

I opened this book shortly after arriving back from an Episcopal church trip that was part of a documentary film in the making, that was examining the legacy of the Colfax Massacre. Talk about a ghastly and ghostly past. We were told that the bones of those killed in the massacre continued to be found in fields decades after the incident, and some of them were paved over by a railroad and the city, becoming part of the town itself. (Some have observed that Southern ghost tours tend to whitewash the history of slavery.) Just a week earlier, I had attended a redistricting hearing at the Fifth Circuit Court of Appeals in New Orleans. On the way back, I drove through St. Mary Parish, recently the subject of a multi-episode paranormal investigation. My destination was a cemetery to visit the grave of a family member, previously written about on this page, who was instrumental in disenfranchising black voters in the state.

And having visited my ancestors there was still another connection in my mind. In a forthcoming volume for the African Consortium of Law and Religion Studies, titled African Perspectives on Human Dignity, there are ample reminders of the importance of ancestors in shaping human persons and human communities. Many African cultures consider the community that surrounds and shapes the individual person to include the “unborn and the undead.” As a Louisianian, I have often wondered if African traditions have influenced the robust celebration of the dead on All Saints’ Day, which is robustly celebrated on the day after Halloween on November 1, particularly in Catholic communities in South Louisiana. The celebration even continues into All Souls’ Day on November 2, where worshipers at my Episcopal church are even invited to bring pictures of their deceased loved ones to place in a ceremonial casket known as a catafalque in a service of remembrance. In Louisiana, as in Africa, there are religious and cultural traditions that connect us to our ancestors and the ghosts of our pasts.

These various recent experiences in religion and law provided an interesting experience to think about what haunts the law, where we speak of precedents and their overturning, of “dead letter” laws and some forms of constitutionalism as “dead hand of the past” still lurking in our law today. There is an “omnipresent specter” rule in corporate law that definitely sounds spooky. There are “ghost stocks” in the law of secured transactions and “ghost surgeries” in medical malpractice. There is the “dead man’s part” in the English law of succession and “deadweight losses” in tax law. There can be “fatal variances” in trial preparation and the “damnum fatale” that may be produced by an act of God. There is a predilection for terms that are deadly, spectral, and ghostly in our law—more than enough to inspire wonder about not only the spirit of the law  but spirits in our law. There are reportedly even haunted courtrooms—and we’re not even just talking about originalist and textualist forms of constitutional interpretation. My recent experience, along with all of these spooky references in the law made me want to know more about who believes in the paranormal and why. Paranormal America was my entry into this world.

Probing the Paranormal: The Margins of Normative

So, what can we learn from Bader, Baker, and Mencken’s inquiry into Paranormal America and those who believe in paranormal phenomena? Their examination is a broad one, including beliefs in fortune-telling, astrology, prophetic dreams, haunted places, Bigfoot, UFOs, and Atlantis. They distinguish enlightenment and discovery rationales for interest in the paranormal. They probe the relationships between religion and the paranormal and between the paranormal and science and the boundaries between these fields, some of which are highly normative. Of the relationship between religion and the paranormal, they observe, “In American society, conventional religious beliefs are a sign of conformity, paranormal beliefs a potential sign of deviance.” The authors uncover a number of themes that have special salience for law and religion–particularly issues of marginalization, power, and belonging and questions of knowledge amidst uncertainty. 

First, the authors examine the hypothesis that paranormal beliefs are most prevalent among those who are poor, powerless, or marginalized in society. As they observe:

Those who have fewer socioeconomic resources or who are marginalized from society, are more apt to feel as if they have lost control over their very futures. They also seem to be at the mercy of unseen forces rather than in control of them because they are burdened by heavy hardships. Social scientists call the sense that one controls one’s own fate an internal locus of control. Women, the poor, those with low levels of education, and racial/ethnic minorities have been found to have less perceived control over their lives.

The authors find that religion attracts both the poor and the rich in the U.S., but that people of lower socioeconomic status attend religious services less and are more likely to believe in the paranormal. By contrast, the rich and powerful are likely to seek status, leadership, and networking opportunities in religious groups and are likely to find them, particularly since they are also likely to provide most of the resources to religious organizations. This is important given the way that religious association conveys norms of convention and acceptability but belief in the paranormal connotes deviance from social norms. As a plaque reads at an Episcopal church in Charleston, South Carolina: “The only ghost at St. Philip’s is the Holy Ghost.”

When the poor, powerful, and marginalized do not benefit as directly from religious association as their wealthier counterparts, they are likely to seek these benefits elsewhere. As the authors put it:

The failure to secure empirical rewards may lead to disappointment, alienation, and estrangement from conventional society. Such individuals may reject the beliefs of the mainstream without giving up on the desire for some sort of relationship with the supernatural realm. This can lead to experimentation with alternative beliefs or experiences.

Some of the disaffected are able to fulfill their desires within a religious framework. They become more open to intense and unconventional religious experiences not typically associated with upper- and middle-class experience . . . 

Those with a weaker connection to religious beliefs or who have grown disenchanted with conventional religion experiences may experiment with more esoteric beliefs . . . Finding an intense or unique supernatural experience that the upper classes do not share can be empowering to socially marginal people.

Data from the authors’ research contains some interesting demographic breakdowns. Women are attracted to the enlightenment-focused paranormal phenomena (psychics, fortune-tellers, and astrologers) for personal, internal, and spiritual growth, while men are attracted to discovery-focused phenomena (UFOs, Bigfoot) with an interest in proving that evidence of phenomena unrecognized by science. There is some evidence that college education correlates with less belief in the paranormal. Interestingly, being married is significantly correlated with a propensity toward all beliefs except UFOs. Do enlightenment-seeking wives tell discovery-oriented husbands that the future and fortune of their marriages are imperiled by discovery-seeking escapades after flying saucers? The authors conclude that there is some support for the marginalization thesis of paranormal belief, but also some complexity amidst other demographic factors.

Adjudicating Religion and Science Amidst Uncertainty: A Further COVID-19 Case Study

Bader, Baker, and Mencken also raise a possible inclination toward alternative sources of knowledge that I have been thinking of in connection with the COVID-19 pandemic, a topic that has been amply explored on Canopy Forum. Specifically, the authors examine beliefs in paranormal phenomena as reactions to or attempts to deal with uncertainty. As they observe: 

Humans generally do not like uncertainty and try to reduce it. This fundamental assumption about human action that underpins most social science research in sociology and economics. We humans collect information and attempt to make the best decisions about our futures from our own current perspective. We try to find ways to take control of our lives. Some religion scholars believe that those who lack the ability to change their circumstance may ultimately seek divine assistance in the task. In other words, perhaps we seek the supernatural’s help when we cannot help ourselves.

Lack of knowledge and control was certainly a feature of the COVID-19 pandemic. Religious leaders, government officials, and even scientists struggled in making policy when so much was unknown about the disease. A miasma of both disease and misinformation spread around the world. Could religious believers believe their faith would protect them? Was the state overreaching in issuing public mandates? Could we trust science to push the boundaries of our knowledge in time to save us? The inception of COVID-19 was a truly scary moment of uncertainty the world over. Indeed, it would be great to have a third edition of Paranormal America tell us if belief in the paranormal increased during COVID-19.

One can also note  how this tension between religion and science as sources of knowledge made it to the courts in the pandemic. In his dissent to the Supreme Court’s denial of certiorari in the  New York case of Dr. A et al. v. Hochul about COVID-19 vaccination mandates in healthcare facilities, Justice Gorsuch distinguished medical excuses from religious excuses in a way that was highly deferential to religious belief as a source of knowledge. The doctors were applying for relief from the court “because their religion teaches them to oppose abortion in any form, and because each of the currently available vaccines has depended upon abortion-derived fetal cell lines in its production or testing.” New York Governor Kathleen Hochul had recently assumed the governorship upon the resignation of the previous governor, Andrew Cuomo. Cuomo had proposed a vaccine mandate with a religious exemption, but the Hochul administration had removed the religious exemption. Justice Gorsuch quoted Governor Hochul’s public remark: “How can you believe that God would give a vaccine that would cause you harm? That is not truth. Those are just lies out there on social media.” He also quoted Hochul’s further remark: “All of you, yes, I know you’re vaccinated, you’re the smart ones, but you know there’s people out there who aren’t listening to God and what God wants. You know who they are.” A district court below described the failure to include a religious exemption as a “religious gerrymander.”

In a manner that can be analogized to the way that religions police the boundaries of doctrine and practice to exclude the paranormal, Justice Gorsuch argued that the law was unjustly bracketing people’s legitimate religious beliefs. On this point, Justice Gorsuch wrote, “The Free Exercise Clause protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly.” He suggested that if the State had argued, which it did not, that allowing a medical exemption would have thwarted a scientific imperative, such as reaching the vaccination threshold, that this might have met the strict scrutiny of being narrowly tailored to achieve a compelling state interest. Justice Gorsuch’s dissent affirmed this idea against Governor Hochul’s challenge to religious perspectives in a way that seemed to treat religious perspectives on COVID as equally valid to scientific knowledge of the disease.

By contrast, Justice Elena Kagan has seemed to stand solidly for science—or at least the need for judicial humility in the face of it—in confronting the deadly spread of COVID. In her dissent in the California case of South Bay United Pentecostal Church v. Newsom where the majority supported the church’s freedom of worship claims against the state, Justice Kagan observed that the Court’s “inject[ed] uncertainty into an area where uncertainty has human costs. Indeed, Justice Kagan wrote:

Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic.…That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic….To state the obvious, judges do not know what scientists and public health experts do. So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.

In Kagan’s estimation, religious assembly, however great its value, had to cede to scientific knowledge, even imperfect and evolving scientific knowledge, however its uncertainty. 

Holy Ghosts and the Spirit of Law and Religion

In considering the appeal of the paranormal, particularly in post-pandemic times, when both religious and scientific authority has been hotly contested. I return to the purpose that Bader, Baker, and Mencken identify as underlying the inquiry in Paranormal Authority—namely, “to examine different views of the paranormal, as well as the social, moral, religious, political, and cultural differences that accompany those beliefs.” In troubled times, one can see why people might seek the consolation of their deceased ancestors or feel stalked by oppressive forces beyond their control. It is also easy to understand how people can be, on the one hand, gripped by the paralysis of uncertainty or, on the other hand, pushed to consult new forms of knowledge when traditional sources of law, religion, and science are seen to falter. Bader, Baker, and Mencken predict that with disassociation from traditional religion and other demographic shifts, Americans will become even more likely to turn to the paranormal, increasing from 52% to 57.9% of the population by 2050.It is also easy to understand how people can be, on the one hand, gripped by the paralysis of uncertainty or, on the other hand, pushed to consult new forms of knowledge when traditional sources of law, religion, and science are seen to falter.

Rather than merely insisting that there are only Holy Ghosts, it may be worth inquiring further into the fascination with the paranormal and the fields and forces that determine the boundaries and limits of knowledge and experience. It may be important to understand why paranormal beliefs are so widespread and what they mean for people’s ability to parse and evaluate various sources of knowledge and how receptive they are to forms of information and mis/disinformation. Because as Oliver Wendell Holmes observed, “The life of the law has not been logic; it has been experience.” And, some of our fellow Americans are having some very spooky experiences, indeed.♦

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Recommended Citation

Green, Christian M. “Ghosts of Law and Religion: The Paranormal Fascination and the Bounds of Knowledge and Experience.” Canopy Forum, November 10, 2023. canopyforum.org/2023/11/10/ghosts-of-law-and-religion/.