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John Inazu On Life In Post-Christian America

At The Gathering, I attended a discussion between the Washington Post columnist Michael Gerson and Evangelical law professor John Inazu [1], who writes a lot about religious liberty. Prof. Inazu has offered in the past some criticism [2] of The Benedict Option [3]. We had breakfast this morning and talked over our differing visions, and it surprised and pleased me that we have more in common than I thought. My sense from reading his writing is that Inazu shares my concerns about religious liberty and the future of the church, but is generally more optimistic in tone than I am. He generously agreed to do a dialogue on this blog about religious liberty, pluralism, and Christianity in the near future.

Anyway, I went to his presentation this morning, and found lots to think about. Unfortunately (I guess), I don’t get the sense that he’s all that more optimistic than I am about where we are and where we are likely to be headed in this culture. I say that based solely on his public remarks. I look forward to being able to talk to him in depth later.

The first thing he said today that struck me was his discussion about the effect of a loss of transcendence in American culture. He said that the number of people who believe there is a realm that transcends the material plane makes it much more difficult to advance arguments for religious liberty and pluralism. If the default position is a kind of materialism, then it’s hard to get materialists to understand why religion matters to others, and why it’s important to protect the right to practice it.

Inazu said the important 1990 Supreme Court decision in Employment Division vs. Smith [4], authored by Justice Antonin Scalia, has a “significant and disastrous” effect on the free exercise of religion. Because of that ruling, said the law professor, the position of the Christian cake baker in the case now before the Supreme Court is pretty weak.

 

At the heart of the conflict — both legal and cultural — over religious liberty and gay right is this question: Is homosexuality the same thing as race when it comes to civil rights? If the answer is no, said Inazu, then there is room for discussion and legislative compromise. But if the answer is yes?

“Then it’s game over,” he said.

(The federal judge’s decision this week in the Minnesota case, in which he likened the unwillingness of Christian videographers to film a same-sex wedding to racism [5] is a stark indication of where this is likely to go, I think.)

 

Inazu said that the argument that homosexuality is not like race in terms of civil rights “is not an argument that is going to be won in the cultural space by white Christians and white Christian institutions, for historical reasons.” He said conservative white Christians need to do lots of coalition work with blacks and Hispanics, and not just for instrumental reasons. White Christians need to get to know Christians of other races, and work with them on advocating for their interests too.

 

In the future, there will be “far more clashes around transgender rights,” he said — adding that a lot of people haven’t been thinking hard about this. Complicating matters is that there will be many non-religious groups (such as fraternities and sororities) who have a stake in the outcome of those cases. This is going to make the legal politics of transgender different from homosexuality.

Michael Gerson, also an Evangelical, hopped in at this point, saying that transgenderism is also theologically challenging.

“There’s very little Biblical guidance” on sexual dysphoria, he said. “I think that complicates things immensely.”

(I hadn’t thought about this until Gerson’s comment, but it seems to me, coming out of the Orthodox and Catholic tradition, that the Bible does offer fairly clear guidance on these matters. But then, the same Cardinal Raymond Burke who called gender theory “madness” [6]once, as a Wisconsin bishop, approved of a man becoming a nun [7] after undergoing a sex change, so I dunno. It’s certainly the case that priests and pastors had better start thinking and teaching about it, right now.)

Talking about the future, Gerson said that conservative Christians are going to be dealing with boycotts of their businesses by pro-LGBT groups and individuals. Inazu added that Christian colleges are particularly vulnerable because the Constitution says nothing about how non-governmental accrediting agencies behave.

“They have the power to delegitimize and in some cases shut down institutions,” he said.

Inazu talked about how the California state judicial code in Calif says judges cannot be members of “invidiously discriminatory organizations.” That included the Boy Scouts because of Scouting’s stance on homosexuality — until the Scouts changed their policy [8]. There’s a religious exemption in the code, said Inazu.

“But ask yourself: how long will that religious exemption stay in there?” he said. Inazu added that in his law school classes, he has notices a shift among his students toward no support for religious exemptions to non-discrimination laws and policies.

On the matter of college accreditation, he said, “those questions are coming back, and coming back stronger than they were before. It’s not just the academic creditors, but the athletic ones. … Think of the reputational and marketing consequences for a particular school if they were kicked out of the NCAA.”

There will be no legal arguments against the NCAA if it pulls this trigger, warned Inazu. (This tells me that Christian colleges and universities had better decide right now if they are prepared to give up their NCAA programs for the sake of holding to their convictions on LGBT issues. I am not confident that most would make that sacrifice.)

Strengthening the point, Gerson said that we need to pay attention to how these issues are evolving at the grassroots level. Whatever happens in the courts and in the legislatures, the situation in the culture is something else. He said, “Gordon (College) in Massachusetts is sort of viewed the way Islam is in Alabama: as fundamentally illiberal institutions incompatible with democracy.”

In the Q&A period, I asked Prof. Inazu what advice he would give to churches and Christian institutions on preparing for the future.

“The challenges with formation that local churches are facing are massive,” he said. “I’m not trying to downplay the legal and cultural challenges, but there are much bigger fish to fry than that.”

For example, the way Christians and their families use technology could well have more to do with whether or not the kids hold on to the faith in adulthood than other things. This resonates deeply with me. Christians who think the future of the faith is going to be decided more in the courts than in churches, communities, and families, and their practices, are fooling themselves.

Inazu said that we are going to have to develop in our churches “thick practices that are going to cost us a lot.” Legal and political questions are important, he said, but if we don’t have the formation question solved, it’s not going to matter.

 

Finally, Inazu said it’s important for Christians to be establishing relationships with people we don’t necessarily agree with on what constitutes the common good. But it’s not clear that this can be done — this, because we have lost a shared sense of transcendence, which we still had in the recent past, with the idea of civic religion.

“I’m looking for the common vocabulary and framework that holds the ‘us’ together,” he said.

“We are left with a fairly urgent question of what fills that void [left by the loss of civic religion],” he said. “What makes us the people united? Can we name the common good in this country with any particularity beyond the need to build roads?”

To that end, I encourage readers to check out Michael Hanby’s great First Things essay on the end of “the civic project of American Christianity.”  [9]It’s going to be a very tough pilgrim road ahead.

If you don’t read Hanby’s essay, at least take these fragments:

This creates a great temptation for protagonists on all sides of the civic project—right, left, and in between—to conflate their Christian obligation to pursue the common good with the task of upholding liberal order, effectively eliminating any daylight between the civic and Christian projects. For example, virtually absent from our lament over the threats to religious freedom in the juridical sense is any mention of that deeper freedom opened up by the transcendent horizon of Christ’s resurrection, though this was a frequent theme of Pope Benedict’s papacy. If we cannot see beyond the juridical meaning of religious freedom to the freedom that the truth itself gives, how then can we expect to exercise this more fundamental freedom when our juridical freedom is denied? Too often we are content to accept the absolutism of liberal order, which consists in its capacity to establish itself as the ultimate horizon, to remake everything within that horizon in its own image, and to establish itself as the highest good and the condition of possibility for the pursuit of all other goods—including religious freedom.

More:

Yet something greater than liberal freedom is at stake. There seems to be a prevailing sense that this moment is something of a kairos for American Christianity, a moment of deep change in the public significance of Christianity and a moment of decision in the life of the Church. When George Weigel concedes his naivete over the possibility of a “Catholic moment” in America and concludes that the West no longer understands freedom, or when Robert George solemnly declares to the National Catholic Prayer Breakfast the end of “comfortable” Christianity, then you know that the times they are a-changin’. Perhaps this kairos is a chance for some sort of synthesis rather than a showdown, for an opportunity to rediscover those dimensions of Christian existence that comfortable Christianity has caused us to neglect, and an opportunity not simply to confront but also to serve our country in a new and deeper way.

This synthesis cannot be a political one, as if the civic project of American Christianity could be revived by rejiggered coalitions or a new united front. We must rather conceive of it principally as a form of witness. Here some elements of the Benedict Option become essential: educating our children, rebuilding our parishes, and patiently building little bulwarks of truly humanist culture within our decaying civilization. This decay is internal as well as external, for while the civic project has been a spectacular failure at Christianizing liberalism, it has been wildly successful at liberalizing Christianity.

A witness is, first, one who sees. And none of these efforts are likely to come to much unless we are able to see outside the ontology of liberalism to the truth of things, to enter more deeply into the meaning of our creaturehood. Only then can we rediscover, as a matter of reason,the truth of the human being, the truth of freedom, and the truth of truth itself. It is no accident that Benedict XVI placed the spirit of monasticism at the foundation of any authentically human culture. For nothing less than an all-consuming quest for God, one that lays claim to heart, soul, and mind, will suffice to save Christianity from this decaying civilization—or this civilization from itself.

This is no time to go wobbly. The times are radical, and demand a radical response. I wonder if the difference between Prof. Inazu and myself is that he has more hope than I do that Christians can still work faithfully within the liberal order. I hope to explore that point with him in our dialogue.

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63 Comments To "John Inazu On Life In Post-Christian America"

#1 Comment By MichaelGC On September 26, 2017 @ 12:43 am

Siarlys Jenkins says on September 24, 2017 at 7:10 pm:

Anyway, “religious liberty” — a false emanation from the penumbra if there ever was one — is not the most effective argument for Baronelle Stutzman or Elane Photography. The constitutional restrain on compelled speech or expression is.

Um, I thought free exercise was one of those plain text rights, not one of the elusive emanations that obligingly get discovered after decades of lawfare towards that end (i.e. SSM). An article [10] discusses an amicus that was submitted on behalf of Masterpiece Cakeshop by Agudath Israel of America. It gives examples of how Jewish customs such as circumcision are under attack by secular groups in Europe, and notes that the difference between the US and Europe is our Free Exercise clause.

#2 Comment By Rob G On September 26, 2017 @ 7:34 am

~~The current arguments against gay marriage and transgenderism are especially puzzling. Supposedly they’re based on “Christian anthropology,” which is inferrable from the Creation account in Genesis. But that account also says — quite explicitly, you don’t even need to infer — that the universe is a fairly recent creation, that it was made principally to be a theater for human activities, that the earth was already hosting life before the sun even existed, and that human beings were a special creation separate from other creatures.~~

Wow, really? I guess I need to go straight home and toss all my theology books and commentaries! I mean it’s not like Christians have been writing and debating about this sort of thing for hundreds of years, right?

Gotta love it when skeptics display their vast ignorance about what Christians actually believe.

Funny, but believe it or not, there are any number of decent histories of Scriptural interpretation or hermeneutics floating around out there. Tolle lege (but I won’t hold my breath).

~~As to the analogy with racism, there too you have an interesting case study in shifting exegesis. Christians who defended slavery and Jim Crow said that Africans were heirs of the “curse of Ham,” also recorded in Genesis. This reading of Genesis 9, though, has since (rightly) been abandoned. But on what basis do we now know that this inference about race was wrong, while our inferences about gender from the earlier chapters of Genesis aren’t?!~~

To quote the great Spanky McFarland, “What do ya mean, ‘we'”? For about the 1000th time on this blog, I will urge people who continually bring up this canard to read Mark Noll’s The Civil War as a Theological Crisis to see what the hermeneutic debate over race was actually about. The question as posed presupposes a Protestant understanding of Scripture and its interpretation that Catholic and Orthodox reject, and thus can’t be answered without some serious preliminary unpacking.

#3 Comment By shoeboogie On September 26, 2017 @ 9:40 am

The problem with the we-refuse-to-bake-cakes-because-it’s-forced-expression is that the same argument can be made by anyone tangentially associated with the reception. Setting up the flowers. Playing at the reception. Serving the food. Taxi-cab driver: my driving is an expressive activity! (We’ve already got Muslim taxi-cab drivers refusing to pick up women/people with seeing-eye-dogs/anyone with wine in their luggage. Do you really want to give them more ammunition?) Janitor who sweeps up the hall: my pushing a broom is an expressive activity!

Exactly. I’m an ER Doc and my religion looks down on blood transfusions. Can I refuse to give one to a patient. My vegan-pagan-pacifist beliefs look down on hunting. I work at a government office, can I refuse to give hunting licenses? I’m a Muslim, can I get a job as a bartender and then declare that I’m not required to serve alcohol. Get a different job you say? Why, where’s MY religious liberty?

#4 Comment By shoeboogie On September 26, 2017 @ 10:56 am

Gotta love it when skeptics display their vast ignorance about what Christians actually believe.

To quote the great Spanky McFarland, “What do ya mean, ‘we’”?

You sort of dismissed the problem and then brought it up again. What “Christians actually believe” can’t really be nailed down. It runs the gamut from Young Earth Creationism to Apparent Age to Guided Evolution to who knows what. What exactly do all Christians agree on exactly, other than Jesus is important in some way? Trinitarianism? Nope. The path to salvation? Nope. How to interpret the Bible? Nope.

#5 Comment By Siarlys Jenkins On September 26, 2017 @ 11:31 am

Um, I thought free exercise was one of those plain text rights, not one of the elusive emanations that obligingly get discovered after decades of lawfare towards that end (i.e. SSM).

Unfortunately for your argument, yes, free exercise is in the plain language of the constitution. The claims made under the extra-constitutional phrase “religious liberty” far exceed what “free exercise” encompasses. The distinction is important.

Most of the “religious liberty” claims go far beyond ‘The state may not suppress or restrict my theological and doctrinal beliefs, retaliate against them, or forbid me to live my life accordingly.’ The “religious liberty” claims grasp for an exemption from neutral laws of general application, which is contrary to all First Amendment jurisprudence.

The problem with the we-refuse-to-bake-cakes-because-it’s-forced-expression is that the same argument can be made by anyone tangentially associated with the reception. Setting up the flowers. Playing at the reception. Serving the food. Taxi-cab driver: my driving is an expressive activity! (We’ve already got Muslim taxi-cab drivers refusing to pick up women/people with seeing-eye-dogs/anyone with wine in their luggage. Do you really want to give them more ammunition?) Janitor who sweeps up the hall: my pushing a broom is an expressive activity!

Yes, and John Gotti’s supporters can picket the federal court house proclaiming “He has a constitutional right to be not guilty.” But actually, there is an objective basis to find, this is an expressive activity, this really is not. I’m not ready to trash the presumption of innocence just because a Mafia don will try to mis-use it, nor the 4th and 5th amendment either.

Selling a cake off the shelf is NOT an expressive activity. Designing a special order cake specific to a celebration is, just like printing a bumper sticker or silk-screening a t-shirt. The photographer is being hired to extol, record, amplify, celebrate, to make “the happiest day of our lives” a permanent record and a treasure. The janitor is not celebrating anything, he or she is cleaning up the mess to make the hall ready for the next event, whatever it may be. Might even be cursing those who made the mess.

Muslim cab drivers… I have mixed thoughts on that. No, driving a cab is not “expressive activity” any more than selling a can of corn is. Indeed, if you don’t want female passengers, you should find yourself another line of work. Ditto for, there’s a box in the passenger’s hand with a bottle of alcohol inside it. I have more sympathy about dogs, because there is something up close and personal about a cab you have to drive in, that you have to clean, when you feel to the marrow of your bones this thing being admitted to your cab is unclean. But then, I don’t like dogs either — nothing religious about it. When driving a paratransit bus, I got used to seeing eye dogs and other service animals, because that IS part of the job.

Bartender, no, that is the essence of the job. A Vegan also cannot apply for work at Ponderosa Steak House and then complain about having to serve seared cow flesh to patrons. I do think a nurse with conscientious objections to abortion should be assigned to other work, but I’m not sure she has a constitutional claim.

It gives examples of how Jewish customs such as circumcision are under attack by secular groups in Europe, and notes that the difference between the US and Europe is our Free Exercise clause.

They are on shaky ground. IF male circumcision is deemed to be ipso facto child abuse, then no religious exemption would be required or permissible. After all, female genital mutilation is also practiced by people who claim a religious mandate, although neither Islam nor Christianity say anything about it. (Yes, some practitioners are Christian converts who have syncretized the ancient practice into their understanding of Christianity).

I support freedom to circumcise males, and criminal penalties for circumcising females. When I was growing up, every male was circumcised as a matter of hygiene. In retrospect, I appreciate that, because its hard enough to get a growing boy to wash behind his ears, let alone leave him another appendage to pull back and clean. What is cut off is a rather useless outer attachment, not a vital internal piece of soft flesh. And, while the First Amendment would not mandate an exemption from a neutral law of general application, it has a long and explicit place in at least two major religious traditions, and its good public policy not to monkey with it if we don’t have an overwhelmingly good reason to do so.

#6 Comment By JonF On September 26, 2017 @ 1:17 pm

Re: Um, I thought free exercise was one of those plain text rights, not one of the elusive emanations

“Free exercise” has never been extended to mean “You can do anything you want as long as you slap ‘Religion’ on it and the government cannot touch you.” The extreme example is that human sacrifice is not legal. But there are less extreme examples too. Every year on Pascha (Easter) my church has to obtain a temporary exemption to Baltimore’s public noise ordinance so we can peel our bells at midnight during our outdoor procession. If the exemption were not granted we would not be able to do so legally.

#7 Comment By DEC01 On September 26, 2017 @ 1:45 pm

I was speaking about the effect of the law in Colorado, not literally what the law says, and I believe I am still correct. Correct that wedding bakers cannot say no to creating a wedding cake for a “homosexual wedding” because it is a “homosexual wedding” but are free to say no to creating a wedding cake for an “open wedding” because it is an “open wedding” or a “multi partner wedding” because it is a “multi partner wedding”. This all seems to agnostic to whether the “no” is based on compelled speech or religious liberty to me.

Regardless, I agree more or less the religious liberty argument is weak in the courts, but I dont agree it is weak on the merits. I would liken it to the freedom to demean/disparage/ridicule Muhammad. Certainly religious liberty protects our freedom to do so even when involved in commerce in a place of public accommodation. Declining to create a wedding cake or help people celebrate “same sex marriage” in some other wedding vendor related aspect, in effect, demeans/disparages/ridicules “same sex marriage”. If religious liberty protects our freedom to ridicule Muhammed or Jesus it must also protect our liberty to ridicule “same sex marriage”.

#8 Comment By Jefferson Smith On September 26, 2017 @ 4:25 pm

@Potato:

Thanks.

@Rob G:

The question I was addressing is how you make the “Christian anthropology” case intelligible to the larger world — which is where decisions are going to be made about public policies, like how and to whom civil-rights laws apply. Waving theology books and insisting that Christians have been debating these things for centuries is not going to help you much with that. In fact it tends to support the view that in fact none of this is as clear and settled as the original post here suggested.

@MichaelCG:

I personally think that some of the claims for transgenderism we’re hearing nowadays are part of a current fad. Not all of them, though. Hermaphroditism is rare, but has been a recognized fact since ancient times. And anyway, the “Christian anthropology” and “gender complementarity” arguments allegedly founded on Genesis don’t apply just to transgenderism; they are also wielded as arguments against SSM. You have not addressed that point.

#9 Comment By catbird On September 26, 2017 @ 9:04 pm

Right on Shoeboogie! Allow the slightest religious liberty, and the next thing you know, Quakers, and Amish, and trash like that will start asking to be exempted from the draft! I say, next time one of them starts yammering about “conscientious objector” status, we follow our good old American traditions, kick ’em in the ass, shove a bayonet in their hands, and put ’em in the front line. That’ll show them that God-botherers and pacifists like them have no place in America–never had, and never will!

#10 Comment By MichaelGC On September 27, 2017 @ 8:55 am

shoeboogie says on September 26, 2017 at 9:40 am:

The problem with the we-refuse-to-bake-cakes-because-it’s-forced-expression is that the same argument can be made by anyone tangentially associated with the reception. Setting up the flowers. Playing at the reception. Serving the food. Taxi-cab driver: my driving is an expressive activity! (We’ve already got Muslim taxi-cab drivers refusing to pick up women/people with seeing-eye-dogs/anyone with wine in their luggage. Do you really want to give them more ammunition?) Janitor who sweeps up the hall: my pushing a broom is an expressive activity!

Your parade of horribles is as weak and unconvincing as was Ginsburg’s dissent in Hobby Lobby.

#11 Comment By Charles On September 27, 2017 @ 12:37 pm

I can appreciate the thought and meaning behind this article. But when discussing the decline of Christian values in America, why are only LGBT rights the only thing that are mentioned. What about the normalization of sex outside of marriage, or the significant decline in marriage rates, or the normalization of divorce? Jesus makes declarations about divorce several times in the new testament and yet we accept divorce as a fact of life. Because of this, I can not take arguments, such as the one that the author made, seriously. Either it all matters, or none of it matters. We were called to preach, not legislate. We were told that life would be hard not easy. Therefore I will continue to follow Luke 10:25-28 to love god and to love my neighbor. For through this may we both be saved.

#12 Comment By Rob G On September 30, 2017 @ 11:19 am

‘You sort of dismissed the problem and then brought it up again.’

Wrong. In order to solve the “problem” you have to understand it correctly. This begins with sorting out misconceptions, of which there are legion. One of the primary ones, however, continually made by secularists who’ve not done their homework, is that all the various “Christian” beliefs about things are equal, or carry the same weight. That particular error must be corrected before any other progress can be made.

~~The question I was addressing is how you make the “Christian anthropology” case intelligible to the larger world — which is where decisions are going to be made about public policies, like how and to whom civil-rights laws apply. Waving theology books and insisting that Christians have been debating these things for centuries is not going to help you much with that. In fact it tends to support the view that in fact none of this is as clear and settled as the original post here suggested.~~

That’s not what you asked. You asked how do we know that “Genesis” was right about sex when it was wrong about race. I pointed the way to the answer to your question. The question you raise now is a different one. And as I said above, “making the case intelligible” requires a fair amount of correction of misconceptions.

This should be clear by attending to the case of the so-called “New Atheists,” who know a lot about science, and in some cases even about philosophy, but very little about Christianity.

#13 Comment By Rob G On September 30, 2017 @ 11:23 am

~~~the “Christian anthropology” and “gender complementarity” arguments allegedly founded on Genesis don’t apply just to transgenderism~~~

It might be helpful if you explain what you mean, exactly, by “founded on Genesis.”