Stanley Fish on education, law and society.

Ronald Dworkin, a professor of law and philosophy at New York University, was arguably the most influential legal philosopher of the past 50 years. Dworkin, who died in February, was (and will continue to be) known for his critique of positivism, a view of law that locates its authority in what is “on the books” — what has been enacted by those who are in a position to back up their pronouncements with sanctions and penalties, including the loss of property and life. Dworkin argued that here must be more than that; there must be an underlying or overarching set of values in relation to which legal particulars are intelligible and have meaning.

Rather than reading statutes and clauses in the Constitution as discrete entities “related to one another through pedigree” — through the politically authoritative source they happen to share — Dworkin asks us to read statutes and clauses in the Constitution as parts of a continuing effort by the judiciary “to construct, reinspect, and revise, generation by generation, the skeleton of liberal equal concern,” the virtue whose elaboration is, in his view, at the heart of the constitutional project. (“Freedom’s Law,” 1996.) So when the question arises as to whether a form of activity is protected by the Constitution, one should answer it, according to Dworkin, not by parsing words or deferring to majority rule or deferring to the executive, but by determining whether the protection of that activity is demanded by the spirit — the commitment to basic values like the value of equal concern — the Constitution breathes.

In what turned out to be his final book, “Religion Without God,” Dworkin brings this argument to bear on one of the more vexing questions of modern jurisprudence: to what extent and on what basis should constitutional protection be afforded to religious activities, especially when those activities are in conflict with settled law? Any answer to that question must first define what religion is (something the courts have never been able to do), and Dworkin begins boldly in his very first sentence: “The theme of this book is that religion is deeper than God.” Dworkin doesn’t mean that being religious and believing in God are incompatible; he means that the latter is a possible version of, but not the essence of, the former.



The essence of the religious attitude, he tells us, is the conviction that “inherent, objective value permeates everything, that the universe and its creatures are awe-inspiring, that human life has purpose and the universe order.” In the grip of that Emersonian conviction, one may or may not subscribe to the existence of a personal God, but it should not be the case that constitutional protection depends on a commitment to theism, for that would be to make the hallmark of religion something that is alien to the lives of many people. It is important for Dworkin’s argument that we not view religion as a special activity that exists to the side of the everyday experience of interacting with and appreciating nature. It is when we identify religion as an anomaly whose precise configuration must be described that we get ourselves into trouble and fall to debating, as religion clause jurisprudence endlessly does, whether this particular ceremony or piece of behavior is “properly religious.” We should, says Dworkin, abandon “the idea of a special right with … its compelling need for strict limits and careful definition.” We should “consider instead applying, to the traditional subject matter of that supposed right, the more general right to ethical independence.”

By “ethical independence” Dworkin means the individual’s independence to decide for himself or herself how to acknowledge the “felt conviction that the universe really does embody a sublime beauty.” One form of acknowledgment might be the practice of theism — traditional religion with its rituals, sacred texts, formal prayers, proscribed and prescribed activities; but the conviction of the universe’s beauty does not, says Dworkin, “suppose any god” as its ground. Once we see this, we are on the way to “decoupling religion from a god” and admitting into the ranks of the religious those who are possessed by that conviction but do not trace it back to any deity. They will be, Dworkin declares, “religious atheists.”

Dworkin anticipates that some “sophisticated theologians” will be taken aback by his project, for they will identify the god they celebrate as both the source and definition of all that is good and true; God is truth, they will say, and following his dictates is the content of moral obligation. (“I am the truth, the way, and the life” [John 14.6].) No, Dworkin insists. A god, if there were one, might be able to do many things (like part the waters of the Red Sea), “but he cannot of his own will create right answers to moral questions.” A “background assumption of value” must be in place within which all actions, including the actions of a god, are assessed. The good, in short, exists independently of God and can be invoked as a check on his actions, as Abraham does when he protests God’s plans to slaughter everyone in Sodom and Gomorrah, the righteous and the unrighteous alike: “Shall not the Judge of all the earth do right?” (Genesis 18:25), a question that presupposes the independence of right from the pronouncements of deity. Just as Dworkin argues in his earlier work that law is not law because of its pedigree but because of its fit with an objective moral order, so he argues here that God’s actions are to be celebrated not because they are God’s but because they accord with what is morally correct.

Once theism and religion have been “decoupled” and morality has been detached from the commands of any god, there is a clear path to a policy for determining how the state should respond to religiously based claims of exemption from generally applicable laws. Given that religion is not to be identified with ceremonies or “divine” precepts but with a veneration for the sublimity of nature, neither ceremonial performance (ingesting peyote as part of a ritual) nor doctrinal commands (refraining from work on the Sabbath) is essential to the true religious life. Accordingly, claims for exemptions in the name of ceremonies and doctrine can be granted as a matter of reciprocal good will, but the state is not compelled to grant them if the burden placed on the claimants falls short of displaying a lack of “equal concern for them.”

Here then is the test as Dworkin formulates it: If a group protests that a generally applicable law interferes with a “sacred duty,” then “the legislature must consider whether equal concern for that group requires an exemption.” But even if the legislature answers the question in the affirmative, there is still another hurdle to be negotiated. The exemption should only be granted if it involves “no significant damage” to the policy considerations that gave rise to the law in the first place. So, for example, with respect to the ingestion of peyote in the course of a religious ceremony, “an exemption would put people at a serious risk that it is the purpose of the law to avoid.” Therefore, Dworkin concludes, “refusing an exemption [as the Supreme Court did in Employment Division v. Smith] does not deny equal concern.” The obligation on the part of the state to display equal concern ends when the state’s legitimate purposes (like the purpose of protecting its citizens from controlled substances) are imperiled.

Now, this might look like the outright subordination of religious interests to the state’s interests in violation of the free exercise clause, and that is certainly how those who lobbied for the passage of the Religious Freedom Restoration Act saw it. But if you begin by distinguishing between the core religious stance of awe before the wonders of the world and the innumerable ways of striking that stance, the state can be seen as honoring the religious impulse — defined broadly and not tied narrowly to specific observances — even when it declines to honor one of its nonessential instantiations. You can then say, as Dworkin does, that the “priority of non-discriminatory collective government over private religious exercises seems inevitable and right.” The key word is “private,” which is for Dworkin a synonym for subjective and idiosyncratic. Denying a private claim in that sense of “private” does not involve denying “the more general right to ethical independence” which continues to be enjoyed by those who are prevented from ingesting peyote or entering into plural marriages. (What you thought of as a “sacred duty” was not so sacred after all.)

Of course, none of this will be persuasive to those for whom a belief in a personal God and the duty to fulfill his dictates constitute the heart of their religion and confer on them an obligation higher than any that can be conferred by the state. They are not likely to agree when they are told (by Dworkin) that they have been mistaken about the nature of the religious life and should recognize their attachment to specific rituals and doctrinal commands as something dispensable rather than as something to live or die for. But Dworkin is not, I think, speaking to them. He is speaking to the converted, to the choir, to his fellow religious atheists who are committed to a world infused with value, a world that is neither the merely physical world of materialist reductionists, nor the God-informed world of traditional theists, but the world whose numinous wonders (how did they get there?) invite the exploration and admiration of independent, morally committed, human agents.

He is speaking, in short, to liberals, who begin by dismantling or bracketing the scaffolding of a religious edifice with God as its foundation and apex and set themselves the task of building from scratch a new edifice that will be furnished with meanings and values as powerful and justified as those they relinquished when they relinquished theism. That edifice is to be built on the foundation of rights — of ethical independence and equal concern — and one of the rights it proclaims is the right to religious worship. But as Dworkin’s carefully reasoned argument shows, liberalism can make good on that proclamation only by (re)making the object of its protection into a mirror reflection of its own limitations. Religion so reduced to a general (nondoctrinal, nonceremonial) conviction of the meaning of life without any account of its origin is perfectly acceptable to liberalism because it is liberalism.

As of October 2013, Stanley Fish’s column can be found in a new location in the Opinion section »