Pagans and Christians in the City

by Steven D. Smith

  In this vein, we might say that the cultural combatants have intuitively understood the main claim of an admired academic study—we noted it already in considering the struggle in ancient Rome over symbols35—which persuasively contends that political communities are “imagined.”36 What transforms a collection of people into a “community,” in other words, rather than merely an assortment of disparate individuals and groups buzzing around and bouncing off each other, is not simply the empirical fact of geographic proximity. Communities are not physical objects; they are conjured up and consolidated, rather, in people’s imaginations—in their minds and souls. People constitute a community because, often for complex and elusive reasons, they think of themselves, or imagine themselves, as a community. And the imaginings that create a community arise around and in response to—and express and maintain themselves in—symbols and discourse; public symbols express the character of the community, but even more importantly, they help to constitute that character. And so, not surprisingly, the culture wars have been in large measure a struggle to control public symbols.

  A third crucial insight in Hunter’s study was that the contemporary culture wars revolve around religion. “The struggle for power . . . is in large part a struggle between competing truth claims, claims which by their very nature are ‘religious’ in character if not in content.”37 But the important religious differences today are not those that mattered in early modern and even relatively recent history. In centuries past, “wars of religion” had pitted Catholics against Protestants, and sometimes Protestants against other Protestants. By contrast, current cultural alignments and coalitions cut across denominational fault lines.38 In place of the older, denominational disagreements, Hunter now saw the opposing coalitions as manifestations of competing “moral visions” or competing views of “moral authority”39—competing visions with their respective and competing religious groundings.

  Thus, the “orthodox” coalition was united by a commitment to “an external, definable, and transcendent source of authority.” In this view, “moral and spiritual truths have a supernatural origin beyond . . . human experience.”40 By contrast, the “progressive” camp was composed of “secularists” and also of persons who, though counting themselves religious, looked more to “inner-worldly sources of moral authority.”41

  In short, the conflicting orientations—toward “transcendent” or conversely toward “inner-worldly” sources of moral authority—reflected, and reflect, the competing transcendent and immanent religiosities we have been discussing in this book. Each kind of religiosity is struggling to “define America.” In that sense, the condition of contemporary America is comparable to that of fourth-century Rome, when Christianity and paganism, each with its powerful representatives (Theodosius and Julian, Ambrose and Symmachus), struggled for mastery within the city. In the remainder of this chapter we will look at three partly overlapping theaters of that struggle: symbols or expressions of public religiosity, public recognition and ratification of the norms of sexuality, and the Constitution itself.

  In the first two of these arenas, the effort has been to remove elements that have borne a Christian or biblical character, leaving symbols or messages or sexual norms that are “secular” in the positivistic or immanently religious sense. With respect to the Constitution, by contrast, the dynamic has been somewhat different. From the outset, the framers of the Constitution consciously declined to use the document to endorse Christianity or biblical religion.42 Rather, the document was designed to be a sort of metalegal instrument, or a framework for governance, under which (subject to a few entrenched and more substantive commitments—to freedom of speech, for example) the states and the nation could pursue and express whatever policies or principles “we the people” might embrace. To be sure, particular restrictions, such as those of the First Amendment’s religion clauses, might reflect Christian or biblical assumptions; we will say more on that subject in the following chapter. But the document itself—and the overall framework it created—were agnostic in matters of religion; they were compatible with a Christian nation, a pagan nation, a pluralistic nation, or a nation mostly devoid of religious convictions and commitments.

  In recent decades, however, activists and lawyers in the “progressive” camp have worked—with considerable success—to reconceive and reconstruct the Constitution as an instrument that can be used to resist and invalidate the earlier civil religion and its manifestations. In this context, therefore, the struggle has not been to transform a Christian element into a pagan one, but rather to capture what had previously been a more neutral framework or arrangement for governance and turn it to the cause of secularism or immanent religion. This development is especially portentous because, insofar as it has succeeded, it has transformed a revered and previously inclusive authoritative artifact—the Constitution—into a partisan weapon, and has thereby undermined the ability of that authority to hold together a community increasingly divided between “orthodox” and “progressive” constituencies.

  The Struggle over Public Religious Symbols

  Symbols, once again, are expressive but also constitutive of community. Thus, in fourth-century Rome, as we saw in chapter 7, the struggle for control between paganism and Christianity was in large part a struggle over symbols. The Altar of Victory intermittently placed outside the Senate House in Rome was symptomatic of but also to a degree constitutive of the community; hence the back-and-forth conflict over the shrine. The altar had been preserved under the pagan emperors, and had manifested the community’s dedication to pagan religion. With the ascendancy of Christianity under Constantius, the altar had been removed, but it was returned to its place during the short-lived pagan revival of the emperor Julian. Then, under Gratian, it was again removed, and the eloquent pleas of the pagan senator Symmachus were rejected by the Christian emperors. In a similar way, the erection of impressive Christian churches and their domination of city skylines, accompanied by the closure and sometimes the destruction of the pagan temples, helped to signal and solidify the political supremacy of Christianity.43

  In the American republic, likewise, from the founders to the present, statesmen and citizens have appreciated the significance of public symbols. Through much of the nation’s history, central symbols have been biblical in character. Thus, in the first committee to craft a seal for the new nation, Benjamin Franklin favored an image of Moses standing on the shore of the Red Sea, while Thomas Jefferson proposed a depiction of the children of Israel in the wilderness being led by a cloud by day and a pillar of fire by night. (John Adams favored a more pagan symbol—a picture of Hercules.) The Continental Congress deliberated with some care, and ended up approving a symbol containing the “Eye of Providence” that stares at us from above on every dollar bill.44 And of course the national motto (In God We Trust), though not formally approved by Congress until the 1950s, traces back to the proclamation in “The Star-Spangled Banner”: “And this be our motto, in God is our trust.”

  It should hardly be surprising, therefore, that as immanent religion has risen to challenge the dominance of Christian or transcendent religiosity, the dominance of transcendent public religious symbols would be increasingly resented and resisted. And that is what has happened.

  The Shift to Symbolism. A principal instrument through which this resistance has worked has been the nonestablishment clause of the First Amendment (“Congress shall make no law respecting an establishment of religion . . .”). For almost four decades after the United States Supreme Court began in the 1940s to interpret and impose that clause in a serious way, most of the major controversies involved disputes over money and material resources. The big majority of cases decided by the Court involved public assistance in various forms to religious schools.45 Tax exemptions for religious institutions were another subject of controversy.46 While not disappearing, these subjects, since the mid-1980s, seem to have receded in prominence, and a different set of controversies has taken center stage—namely
, conflicts over public religious symbols.

  Litigants and other advocates accordingly do never-ending battle, it seems, over publicly sponsored Christmas displays, public slogans (the national motto, In God We Trust; the words “under God” in the Pledge of Allegiance), Ten Commandments monuments, legislative prayer, crosses officially erected as war memorials on public property, the inclusion of the words “so help me God” in the presidential oath of inauguration, and the like.47 Perhaps as cause or perhaps as effect of this newly intensified concern with symbols, the constitutional doctrine announced by the Supreme Court has also shifted its focus. Thus, beginning in the mid-1980s, the Court explicitly began to articulate doctrine in terms of a constitutional prohibition on public messages of “endorsement” of religion.48

  To be sure, this interest in symbols and messages was not a wholly novel development. Cases and commentators had raised issues about, say, public nativity scenes before the 1980s, even though constitutional doctrine was not yet explicitly formulated to address such issues.49 And the Supreme Court’s immensely controversial school prayer decisions in the early 1960s50 were provocative in part or mostly because of what the rejection of school prayer symbolized. After all, a brief, theologically thin prayer recited in class or over the loudspeaker at the beginning of the school day probably did little, as critics pointed out, to instill genuine piety in students. Conversely, one might think that in a school setting in which students are routinely compelled to listen to a great deal that many of them may find disagreeable or boring, sitting or fidgeting in silence during a brief rote prayer should have inflicted no great damage on dissenting students.51 Or at least such exercises just in themselves wrought no great good, or great harm. And yet these exercises, conducted daily in the public institutions understood to be entrusted with the formation of citizens, arguably had a powerful even if partly unspoken effect in signaling the community’s official commitment to biblical “higher authority” premises. Indeed, whatever psychological damage the prayers did inflict was no doubt caused by and inseparable from this signaling.

  The Importance of Symbols. Although symbolism had not been absent from establishment clause jurisprudence, beginning in the 1980s the shift to an emphasis on symbols became manifest, as noted, both in the number and notoriety of the cases and in the Court’s explicit reformulation of the doctrine to address the issue of symbolism or “endorsement.” From a pragmatic or “interest”-oriented perspective, this reorientation could seem surprising, and regrettable. With reference to controversies over crosses, crèches, and monuments, Adam Samaha asks sarcastically: “The question is whether anyone, especially courts, should care about the way government is decorated.”52 Wouldn’t the Court’s and the litigants’ scarce resources—and the public’s scanty attention—be better spent on matters that actually affect people in coercive or material ways?

  Suppose, for example, that as part of its annual Christmas display, your city of residence puts up in a prominent downtown space a nativity scene, complete with Mary, Joseph, shepherds, angels, wise men, and, of course, the baby Jesus. Possibly among other objectives, some perhaps more spiritual in nature, the display presumably seeks to promote a celebratory or festive spirit; it may also serve as a stimulus to local commerce. Cheerfulness, commerce: these are good things. So even if you do not happen to be a Christian, why should you object? What is the harm? No one says you have to believe in the angels, the Virgin, or Christianity, or even to pretend to believe in them. No one says you have to look at the display at all. Why not save your indignation and your litigating zeal for measures (like school voucher programs or tax exemptions for churches) that actually take dollars out of people’s pockets?53

  Of course, the question can be—and often is—turned around. Suppose you are a pious Christian, and a court orders your town to take down its nativity scene. You can still put up a devout display in your own front yard or on the grounds of your local church. So, why should it matter that the display is no longer located on public property?

  And yet it is perfectly clear that people do care, sometimes intensely, not only about symbols but, more pertinently, about the sponsorship of such symbols. If we criticize this attitude as frivolous or irrational, moreover, we may logically be forced to condemn as frivolous or irrational our own founders (who, as we have seen, gave careful consideration to selecting the public symbols of the new nation), and the marines who fought heroically to raise the flag at Iwo Jima, and all the songwriters (from Francis Scott Key to Lee Greenwood) who have composed patriotic anthems, and the presidents from Washington on who have been carefully attentive to the symbols and messages associated with their inaugurations into the office of president.

  The fact is, as Justice Holmes asserted, “we live by symbols.”54 Max Lerner quoted Holmes, cited Freud, and elaborated: “Like children and neurotics man as a political animal lives in . . . a dream-world of symbols in which the shadows loom far larger than the realities they represent.”55 More specifically, as noted, our political communities are not physical facts; they are constructed, or “imagined.”56 And the imagination that constructs and maintains community arises from and around symbols—around symbols that are understood to be publicly sponsored, and thus to be expressive and constitutive not just of particular private speakers or groups, but of the community.

  So it is neither surprising nor irrational that citizens care, deeply at times, about what symbols are adopted to constitute and represent their community (just as ancient pagans and Christians cared not just about the sacrifices to the gods but about the public sponsorship of the sacrifices).57 In this sense, arguments over symbols may be more consequential than disputes over mere allocations of dollars. Disputes over money affect our interests. But disputes over symbols amount to battles over who we are, or what kind of community we live in.

  Justice Sandra Day O’Connor, the principal sponsor on the Supreme Court of the “no endorsement” doctrine, understood this point. The reason why government should not send messages endorsing or disapproving of religion, she explained, is that such messages cause some Americans to feel like “outsiders” or “lesser members of the political community.”58 Critics of the doctrine (like myself)59 have sometimes ridiculed this rationale. Dissenters from a publicly endorsed religion are not treated as lesser members of the political community, the critics have argued:60 unless we assume, in question-begging fashion, that there is a constitutional right not to be exposed to public messages inconsistent with one’s faith or one’s disbelief (which is, of course, precisely the question at issue), such dissenters are afforded exactly the same rights—freedom of speech, the right to vote, the right to counsel, and so forth—that other Americans enjoy.61 Religious minorities or dissenters are full members of the community who (like most other citizens) sometimes happen to disagree with some things governments say.

  Religious minorities may, to be sure, feel like political “outsiders” by virtue of their minority status, with the attendant political disadvantages and discomforts that minority status may sometimes entail. But in this sense, the reality is that the dissenters are outsiders, just as a host of other people are fully citizens but more or less permanent political “outsiders”—communists, monarchists, anarchists, theocrats, segregationists, Ayn Rand libertarians, . . . Republicans in the state of California. In this sense, “outsiders” (like the poor) will always be with us; no law, not even one as august as the Constitution, can provide a remedy for that sometimes painful reality.62

  Moreover, the reality will sometimes be reflected in public messages and symbols. Government and its multitude of officials will inevitably make all manner of statements on all manner of controversial issues. Some citizens will care deeply about those issues and will resent official statements that contradict or disapprove of their views and values. Such is democracy in a pluralistic world. How is a religious dissenter any different in this respect than someone who is distressed about being outnumbered and sometimes outvoted in the d
emocratic free-for-all?

  But while these criticisms may be cogent enough in the analytical abstract, they arguably fail to reckon with the fact that, as studies by scholars like Bellah have shown, in America religion has been more central to—more constitutive of—the conception of political community than many other factors have been.63 Hence, religious expressions by government do not merely take sides on potentially divisive political issues, as virtually anything government does or says may do. Within the American political tradition, rather, such expressions may serve not merely to endorse positions on controversial issues, but to define the kind of community this is.64 And in this sense, as Justice O’Connor perceived but her critics sometimes did not, religious expressions may have a more fundamental alienating effect than other sorts of controversial public statements typically have.

  Public religious symbols, in short, are not merely expressions of particular public policies; they help to constitute and define the community itself. A corollary is that the public discourse by which important political and legal decisions are made is shaped by the community’s image or interpretation of itself, which is in turn influenced by the symbols that are taken as expressive of the community.

  Take one important recent example. In the major cases adjudicating the issue of same-sex marriage, judges, including justices of the Supreme Court, assumed that “religious” views about marriage could not count in the public justification of marriage laws.65 Given the enormous religious divide on the issue—contemporary research by the Pew Foundation suggested that 85 percent of religiously unaffiliated Americans supported same-same marriage compared to only 35 percent of white evangelicals and 44 percent of black Protestants66—this threshold exclusion of reasons deemed “religious” was likely decisive. If the central views and values of one side are excluded from the start, the other side is likely to win the argument. And that is just what happened.67