Of Pharisees and Lawyers or And it is easier for heaven and earth to pass, than one tittle of the law to fail. (Luke 16.17)

Table of Contents

I. Introduction

I. Carter’s Definition of Religion, Separatism and Accommodationism

II. Methods of Argumentation and Their Contradictions
a. Dichotomization
b. The Victimization of Religion
c. Oppressors
d. Trivialization and Privatization

III. Carter and the Supreme Court
a. Special Cases

IV. Carter’s manipulation techniques

V. Religion Prior to the State

VI. Conclusion

I. Introduction

Throughout history the relationship between religion, law and politics has played an important role in the cultural discourse of the United States of America. This relationship is still important today. One of its protagonists is the Professor of American Law, Stephen L. Carter.^[i] He has written several books on the relationship of church and state and on the role of religion. In several of his books – among them The Culture of Disbelief, The Dissent of the Governed and God’s Name in Vain – he constantly claims to be in favour of separation of church and state. Yet, it seems to me that his predominantly contradictory and biased argumentation clearly indicates his accomodationist position. One of his methods of argumentation is to dichotomize not only church and state, but also believers and disbelievers. Furthermore, he claims that American society, Supreme Court and politics victimize, trivialize and privatize religion. His biased perspective is most visible in his suggestive writing style, as well as his choice of Supreme Court cases. In order to justify religion and deeds of religious people, Professor Carter often refers to God’s will and God’s word, which makes his argumentation nearly untouchable. In most of his arguments and solutions Carter remains vague and unclear. In conclusion, all of these aspects contribute to the impression that Carter holds God before the state and therefore, is anything but a separatist.

II. Carter’s Definition of Religion, Separatism and Accommodationism

Before we can look at Carter’s arguments for and against the accommodation of religion, we need to know how he defines it. Religion, according to him, is

“[…] a tradition of group worship … that presupposes the existence of a sentience beyond the human and capable of acting outside of the observed principles and limits of natural science, and, further, a tradition that makes demands of some kind on its adherents.”^[ii]

With his definition of religion, Carter starts out by putting the religious right out of the realm of rationality and thus, creates a basis of belief which makes it hard to criticize religious people at all. Carter knows that by giving this definition, he “[…] excludes any number of competing traditions ….”^[iii] Yet, although he knows the difficulties of defining such a thing as religion, he keeps on criticizing the Supreme Court for having failed to define it properly. In contrast to his first definition of religion, Carter’s accommodationist position becomes more obvious in his latest book entitled God’s Name in Vain, where he states that “[…] religion in its subversive mode provides the believer with a transcendent reason to question the power of the state and the message of the culture.”^[iv]

On the one hand Carter says, “I am a great supporter of the separation of church and state …”^[v] whereas on the other he claims “[…] that every serious religionist understands that complete separation is impossible.”^[vi] These statements are not necessarily contradictory, but still vague. This can also be seen in his statements on different Supreme Court cases.^[vii] His suggested solution for this dilemma is as indefinite as the rulings of the Supreme Court. According to him, legislation shall not “[…] infringe on religious freedom unless the burden is absolutely essential…”^[viii] What he means by “absolutely essential” remains absolutely unclear.

His separatist position becomes clearer when Carter refers first to Jefferson’s image of the wall between church and state and second to Roger Williams, who added the image of a garden within the walls and the wilderness outside of it.^[ix] He frequently uses both metaphors to support his argument that this wall was intended “[…] to protect religion from the state, not the state from religion.”^[x] Carter turns the argument around so that his accomodationist interpretation of the Constitution is strengthened – a technique most accommodationists apply. He even claims that this wall of separation was built up by Christianity.^[xi] The climax of this discourse is that Carter sees in this separation “[…] an establishment of religion, for it allows paid state functionaries – we happen to call them judges – to define what religion is ….”^[xii] This contributes to his perception of religion as a victim of U.S. legislation. For him, the wall represents a prison “[…] that leaves the church without any tools of self-protection….”^[xiii]

Carter’s positive position on accommodationism – although it is almost as contradictory as his critique of separationism – indicates which side of the wall he is standing on. He calls on the Supreme Court to “[…] accommodate the needs of religionists ….^[xiv] Yet, at the same time, he questions the sovereignty of the state because he sees a danger “[…] in the fact that it is the state that is doing the accommodation.”^[xv] Carter wants accommodation in order to put pressure on society. For me this includes politics, because politics are influenced by society.^[xvi] Although Carter proudly confesses that “^[a]ccommodationism remains […] the best constitutional rule,”^[xvii] he denies that he is advocating for accommodationism.^[xviii] In addition to this denial, he regularly tries to tiptoe on the wall of separation, saying “[…] that religion and politics mix poorly,^[xix]” and vice versa. The result is that Carter’s arguments seem to slip through the fingers of his critics. Finally, his profession as a lawyer helps him in his hair-splitting arguments that the Establishment Clause was designed to prohibit “[…] only a national established religion,”^[xx] or even that “[…] the church, not the people of the church, […] was banned from holding power over governance.”^[xxi] Both interpretations are popular among accommodationists for circumnavigating constitutional law. Hence, for him “[t] he embarrassing truth is the Establishment Clause has no theory.”^[xxii]

III. Methods of Argumentation and Their Contradictions

a. Dichotomization

One way that Carter calls for accommodation is through his dichotomization of church and state. This is a legitimate approach, however, when he describes the state as the devil, one must question whether this kind of argument has power in its content, or if it just seems to be convincing because the author degrades his opponents. This is obviously the case when Carter says “[…] that the nation is actively at war against them [religious people]”^[xxiii]. He creates several other dichotomies contrasting science and rationality vs. religion^[xxiv]; non-believer vs. prophet^[xxv]; people of the garden vs. people of the wilderness^[xxvi]. Carter boils down these dichotomies to the opposition of “good guys” and “bad guys”, referring to present politicians.^[xxvii] In all these aspects, he depicts the religious side not only as good, righteous and truth seeking, but also as the loser of this conflict. He does this in order to justify the battle for a religious sphere in politics – in other words, accommodationism – or as he quotes Roger Williams, that “[…] the religionist must leave the garden and go out into the wilderness prepared once more to do battle.”^[xxviii]

[...]

^[i] Stephen L. Carter is an American Law Professor, and writer, columnist and novelist. For more information see http://en.wikipedia.org/wiki/Stephen_L._Carter

^[ii] Carter, Steven L. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York: Basic Books, 1993. 17.

^[iii] Ibid. 18.

^[iv] Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 30.

^[v] Carter, Steven L. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York: Basic Books, 1993. 6. also in Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 74.

^[vi] Ibid. 72.

^[vii] Carter, Steven L. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York: Basic Books, 1993. 178.

^[viii] Ibid. 16.

^[ix] Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 75.

^[x] Carter, Steven L. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York: Basic Books, 1993. 105-107, 146.

Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 72.

^[xi] Ibid. 79, 80.

^[xii] Ibid. 78.

^[xiii] Ibid. 81.

^[xiv] Carter, Steven L. The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty. Cambridge, Massachusetts: Harvard UP, 1998. 104.

^[xv] Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 166.

^[xvi] Ibid. 170.

^[xvii] Ibid. 162.

^[xviii] Carter, Steven L. The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty. Cambridge, Massachusetts: Harvard UP, 1998. 130,140.

^[xix] Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 6. for an additional comment see Ibid. 158 footnote.

^[xx] Carter, Steven L. The Dissent of the Governed: A Meditation on Law, Religion, and Loyalty. Cambridge, Massachusetts: Harvard UP, 1998. 138.

^[xxi] Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 95.

^[xxii] Carter, Steven L. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York: Basic Books, 1993. 109.

^[xxiii] Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 2.

^[xxiv] Carter, Steven L. The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion. New York: Basic Books, 1993. 13, 182, 219.

^[xxv] Carter, Steven L. God’s Name in Vain: The Wrongs and Rights of Religion in Politics. New York: Basic Books, 2000. 58.

^[xxvi] Ibid. 75, 78, 80.

^[xxvii] Ibid. 185.

^[xxviii] Ibid. 117.