CHAPTER 10

Counterrevolution, Part I: Symbols, Sex, and the Constitution

Rome, we saw in chapter 3, was the city of the gods—a city whose might, opulence, and splendor were sustained and consecrated by the worship of the pagan gods. That religion could embrace numerous and sundry cults and deities—by in effect absorbing or annexing them. But it could not embrace the Jerusalem-based faiths, Judaism and Christianity, which (as we saw in chapter 5) represented a radically new, different, and unassimilable form of religiosity—one devoted to a single transcendent deity rather than to a sprawling pantheon of immanent deities. Thus, as Christianity began to grow in the empire, Roman authorities correctly perceived the new faith as subversive (despite sincere protestations of loyalty by Christians like Tertullian) and as threatening. The authorities responded to that threat by episodically persecuting Christianity and, in the “Great Persecution” at the beginning of the fourth century, attempting to eradicate it.

The attempt failed, and so the fourth century witnessed an epic, back-and-forth cultural and political and sometimes military struggle between Christianity and paganism for mastery within the city. (We can see this in hindsight, although contemporaries often could not perceive the nature of that struggle.) By century’s end, Christianity had prevailed—in the political struggle, that is. Christianity’s political dominance persisted in the ensuing centuries; observers like T. S. Eliot could accordingly describe the nations that arose after the decline of Rome as “Christian societies,” even though the practical substance of those societies sometimes, or rather always, fell dismally short of Christian ideals.

And yet paganism was hardly eliminated; rather, it continued to exist just beneath the surface, and often hidden in plain sight, in the variety of ways we considered in chapter 8. One mode of continued existence was in the Western historical imagination. A persistent and recurring regret for the loss of the “merry dance of paganism,” together with resentment of the oppressive force that had ostensibly turned out the lights on that “merry dance”—namely, Christianity—inspired countless theories, books, tracts, poems, works of art, secular sermons, and fulminations of all sorts. And in recent times, immanent religiosity or “modern paganism” in a variety of forms—we have taken Ronald Dworkin’s “religion without god” as a cogent manifestation—has begun to reassert itself openly and unashamedly.

In these circumstances, it should hardly be surprising—it might well be inevitable—that paganism would at some point challenge the increasingly tattered and threadbare canopy of Christianity. It would be unsurprising, in other words, if paganism might attempt to reclaim the city that Christianity wrested away from it centuries ago.

And in fact, that is what has happened. The latter part of the twentieth century and the beginning of the twenty-first have witnessed a renewal of the fourth-century struggle between Christianity and paganism—a struggle seeking to reverse the “revolution” that Christianity achieved in late antiquity. As with the ancient struggle, the modern one may become clearer as the years pass and give us a more detached perspective. But even now the struggle is discernible, if we are willing to see it.

This at least is one way—and, I will suggest in this chapter, a perspicuous way—of understanding the salient cultural, legal, and political conflicts of our times. This interpretation, like all interpretations, is to some extent an artificial imposition upon a complex and messy reality. Modern pagans, like ancient ones, typically do not label themselves or conceive of themselves as “pagans.” (Although sometimes they do—Anthony Kronman, for example.)1 More generally, as we saw in the last chapter, self-identification—whether by pagans or by putative Christians, putative atheists, putative “nones,” or people who deem themselves “spiritual but not religious”—is in this context profoundly unilluminating and unreliable. And people often slide unawares between one category and another, and back again, and again. Ours is a situation in which, as Matthew Arnold put it, “ignorant armies clash by night”²—on a whole variety of levels and issues. The interpretation of our period as one in which the fourth-century struggle between Christianity and paganism is being reenacted will nonetheless be useful just to the extent that it provides illumination into our profoundly confused and confusing times.

One caveat: although a parallel struggle is arguably occurring through much of the Western world (and perhaps beyond), the precise political and legal developments will be different from place to place. For reasons both of scope and limited competence, the following discussion will focus on developments in the United States. Readers with more intimate knowledge of other regions and countries will judge to what extent similar developments are discernible in other places.

How We Got Here: From Civic Religion to Culture Wars

In 1892, in a case aptly or perhaps portentously entitled Holy Trinity Church v. United States, the Supreme Court declared that “this is a Christian nation.”3 A century later, the Court’s declaration would be seen by many as an embarrassment,⁴ comparable in its offensiveness to the Court’s approval four years later of the “separate but equal” doctrine that effectively put an official imprimatur on the segregationist “Jim Crow” position.⁵ At the time it was uttered, however, the Court’s statement in Holy Trinity Church would likely have seemed to most Americans little more than an obvious truism. The nation was not officially Christian, of course, in the way that, say, England was officially Anglican, but it was pervasively if sometimes amorphously Christian in its culture and substance.⁶

Thus, the Court supported its “Christian nation” interpretation with a lengthy recitation of an array of laws and “organic utterances” going all the way back to Columbus.⁷ And indeed, more recent studies by scholar after scholar have vindicated the Court’s interpretation, showing how pervasive Christian or biblical assumptions were in public and political discourse during the colonizing and founding periods and continuing through the nineteenth century.8 Sometimes the scholars report this situation critically, even bitterly;⁹ nonetheless, the basic fact is well attested.

In this vein, the sociologist Robert Bellah’s influential scholarship described a prevalent public philosophy or national self-understanding that he called “civil religion.” “By civil religion,” he explained, “I refer to that religious dimension, found I think in the life of every people, through which it interprets its historical experience in the light of transcendent reality.”¹⁰ Citing the appeals to deity in the Declaration of Independence, Bellah argued that “it is significant that the reference to a suprapolitical sovereignty, to a God who stands above the nation and whose ends are standards by which to judge the nation and indeed only in terms of which the nation’s existence is justified, becomes a permanent feature of American political life ever after.”¹¹

American civil religion, Bellah showed, was a species of Christianity, or at least a biblically based form of public religion.¹² “[Americans] saw themselves as being a ‘people’ in the classical and biblical sense of the word.”¹³ Like other faiths, American civil religion had its sacred texts (the Declaration of Independence, the Constitution), its prophets (Washington, Jefferson, Lincoln), its martyrs (Lincoln, later Martin Luther King Jr.), its theologians (Lincoln again),¹⁴ its holy days (Independence Day, Memorial Day, Veterans Day), its rituals (presidential inaugurations, State of the Union addresses, Fourth of July parades and fireworks). This situation continued into the 1960s, when Bellah began writing on the subject. “Biblical imagery provided the basic framework for imaginative thought in America up until quite recent times and unconsciously, its control is still formidable.”15

To be sure, in the first half of the twentieth century, the religious landscape had become more complicated. The hegemony of the “nonsectarian” ecumenical Protestantism of the nineteenth century was broken.¹⁶ Even so, by the 1950s, public religiosity remained strong, and conspicuous. This was the era of “piety on the Potomac,” joined in by all branches of government. President Eisenhower repeatedly endorsed the importance of religion to the American way of life.¹⁷ Borrowing from Lincoln’s Gettysburg Address, Congress added the words “under God” to the Pledge of Allegiance and ratified the national motto (already announced many decades earlier in the national anthem): In God We Trust.¹⁸ And the Supreme Court declared, not that we are a “Christian nation,” as it had said in 1892, but rather and more ecumenically that “we are a religious people whose institutions presuppose a Supreme Being.”¹⁹

Moreover, the public religiosity was still discernibly biblical in nature. Will Herberg wrote his classic Protestant-Catholic-Jew, elaborating on “the conception of the three ‘communions’—Protestantism, Catholicism, Judaism—as three diverse, but equally legitimate, equally American, expressions of an over-all American religion.”20 Significantly, all three supporting “communions” were grounded in the Bible. Or, in other words, in a transcendent religiosity.

From the beginning, the ongoing existence of a general rough consensus about an increasingly inclusive civil religion emphatically did not mean that American culture and politics were happily harmonious; any such suggestion would of course be preposterous. To name just the most obvious and horrific counterexample, there was the enormity of slavery, leading to the unfathomable agonies of the Civil War. And yet, paradoxical or shameful as the fact may be, even that catastrophic conflict was fought out, explained, and rationalized, on both sides, largely under the encompassing canopy of the biblical civil religion.²¹ As Lincoln recalled in his Second Inaugural Address, surely the most profound public reflection ever offered by an American political leader, Americans had fought over slavery, but they had “read the same Bible and prayed to the same God.” Their common commitment to the same Bible and the same God was the premise on which Lincoln could interpret the war for the nation as a working out of divine justice, and on which he could issue his celebrated call for reconciliation: “With malice toward none, with charity for all . . .”

Bellah believed that although the American civil religion had endured and developed through most of the nation’s history, it was in the process of disintegrating by the late 1960s and early 1970s. The civil religion had become “an empty and broken shell.”²² “We have lost our sense of direction.”²³

So then, what would follow the dissolution of this guiding narrative? The answer was in effect announced by another prominent sociologist, James Davison Hunter, in a 1991 book called Culture Wars. Hunter found that across a surprising variety of issues ranging from education to family to media to law and politics, Americans were increasingly coalescing into two broad and contending camps, which he labeled “orthodox” and “progressive.”²⁴ The former maintained continuity with the old, biblically oriented civil religion, while the latter challenged it.25

Consequently, the earlier situation in which Americans might disagree fiercely and even violently over issues like slavery but still be united under a common commitment to “the same Bible” and “the same God” emphatically no longer obtained; on the contrary, the authority of the Bible and the relevance of God were major points of disagreement. Though living side by side as Americans, orthodox and progressive citizens held to moral conceptions so different that each effectively inhabited “a separate and competing moral galaxy.”²⁶

Critics objected that Hunter had exaggerated the cultural divisions and that the polar positions he described were occupied mostly by activists, not ordinary Americans. To be fair, Hunter himself had explained that the major disagreements were mostly among “elites.”²⁷ Even so, the critics may have had a point. The early 1990s seem at least in retrospect and by comparison to the present a relatively placid time in which Congress and president could join in near unanimity in passing a law giving strong protection to religious freedom—more on that in the next chapter—and in which the inflammatory issue of same-sex marriage was barely visible on the political horizon. But if Hunter overstated his case then, it seems that his assessment is cogent now: in the two and a half decades since his book was published,²⁸ political and cultural polarization has increased dramatically.²⁹ Thus, Hunter’s diagnosis seems even more apt today than when it was first offered.

Three features emphasized by Hunter are especially pertinent to our inquiry. First, Hunter explained that the different cultural orientations represented more than differences of opinion on private matters. Rather, the competing sides in the culture wars pressed conflicting visions of “how we are to live our life together.”³⁰ Each side was struggling to “define America,” as Hunter’s subtitle put it. So the culture war was and is a struggle for “domination”31—for control of the cultural and political community and the self-conception by which the community constitutes and governs itself.³²

A second feature of the conflict follows directly from the first. Thus, Hunter explained that in the struggle to define America, symbols and discourse are crucial.³³ Consequently, each side “struggles to monopolize the symbols of legitimacy.”³⁴

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 democratic 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

But why were “religious” reasons inadmissible? The short and (for many) sufficient answer, so obvious that the judges did not bother even to articulate or defend it, was that the Constitution requires that government be “secular,” thereby forbidding reliance on “religious” reasons. And this answer is no doubt correct if it is taken as a shorthand abbreviation for the fact that powerful constituencies in our country, including legal elites, have come to conceive of the political community as “secular” (in a conveniently ambiguous and mostly unarticulated sense) and have projected that conception back onto the Constitution. That is the sort of “imagined community” in which these Americans want to live, and suppose that they do (or at least have a right to) live.

It is also true, however,⁶⁸ that the First Amendment does not actually say (either explicitly or by persuasive implication) that government must be “secular,” and that the Americans who drafted and enacted that amendment almost certainly did not understand it to have any such implication. Moreover, the modern secularist conception of the community goes strongly against the grain of a great deal in our political tradition, including perhaps the two most eloquent and powerful statements of the central meaning of that tradition—namely, the Declaration of Independence69 and Lincoln’s Second Inaugural Address. (Or, if you prefer, his Gettysburg Address, which is the source of the phrase “one nation, under God.”) Efforts by modern luminaries like the vastly influential Harvard political philosopher John Rawls to square the contemporary secularist conception of American political community with Lincoln’s majestic declamation are almost comical in their implausibility;⁷⁰ nothing but an adamantine determination to adhere to the secularist conception could render such arguments respectable. And even conceding that political decisions should be made on “secular” grounds, the concerns relevant to marriage that many churchgoing Americans found pertinent would likely have qualified as “secular” upon any sort of attentive analysis.⁷¹

The judges did not pause to notice any of these complications, of course. Rather, they dismissed “religious”-looking reasons peremptorily and automatically, evidently under a secularist conception of community that, without either specifying or defending it, they treated as axiomatic. That conception in turn was surely shaped and informed by, among other things, recent constitutional doctrine forbidding public religious symbols or messages.

The (Deceptive) Lines of Division. In sum, Americans on both sides of the cultural divide are not being merely petty or irrational when they care about, and fight over, public symbols. But how exactly are the battle lines in that fight drawn up?

On its face, the conflict has pitted supporters of “religious” symbols and expressions against proponents of a “secular” public square. So here, on first inspection anyway, a “religious versus secular” characterization of the culture wars may seem apt. And at least on a straightforward or conventional reading, the current constitutional doctrine prohibiting endorsements of “religion” may seem to support this description: public expressions that are “religious” are forbidden, it seems, while public expressions that are “secular” are permissible.72

But we need to recall, from the previous chapter, the ambiguous or equivocal character of the term “secular,” and also the distinction between the (familiar) transcendent conception and the (less familiar) immanent conception of “religion.” Viewed in light of these distinctions, the current struggle over public symbols turns out to be more complicated than it initially appears. In prohibiting endorsements of “religion,” the “no endorsement” doctrine might mean that government is forbidden to endorse traditional or transcendent religion. Conversely, “secular” expressions of more immanent religiosity might be permissible.

The Supreme Court has not explicitly articulated the doctrine in those terms, to be sure; but then, the modern Court has not offered any precise or even imprecise definitions of what either “secular” or “religion” means for constitutional purposes anyway. To many Westerners, “religion” connotes traditional, transcendent religion—the sort of thing conveyed in the Bible and the Qur’an and practiced by Christians, devout Jews, and Muslims.⁷³ It may well be that this is what the justices have implicitly had in mind when they have declared endorsements of “religion” to be impermissible.⁷⁴ Conversely, if religious expressions are at least susceptible of being interpreted in more immanent or this-worldly terms, perhaps the prohibition does not apply.

So, how would we go about determining whether the conventional “religion versus (undifferentiated) secular” interpretation of the Court’s doctrine is correct, or whether instead the revised interpretation is more apt—the interpretation in which transcendent messages are excluded but messages of immanent sanctity are permitted? Well, we might begin by imagining that, as some scholars and litigants have urged,⁷⁵ all conventionally “religious” public symbols and expressions—the words “under God” in the Pledge of Allegiance, the words “In God We Trust” in the national motto (and also the national anthem), legislative prayer, and so forth—were systematically eliminated or relegated to the private domain. That, after all, is what a straightforward application of the conventional “religion versus secular” interpretation would seem to dictate, at least in principle. The result of this drastic purge would not be to remove all symbols and patriotic expressions from public life. After all, no one argues that the national community cannot express itself—and define itself, and celebrate itself—in words and symbols. The national motto would be gone, for sure. But there would surely still be the (expurgated) Pledge of Allegiance, for example. And the (expurgated) national anthem. And of course, the flag.

So, should these remaining symbols and expressions be described as merely “secular”? Perhaps. And yet they would still seek to elicit the citizens’ allegiance—to stir citizens’ feelings of reverence and devotion. They would still have an important function—a sacralizing or consecrating function, in a more than metaphorical sense. And the Court has never suggested that there is anything impermissible or even suspect about that kind of this-worldly sacralization.

Consider two major cases decided by the Supreme Court just two weeks apart in 1989. In Allegheny County v. American Civil Liberties Union,76 a majority of justices interpreted the First Amendment to prohibit a local government from sponsoring symbols that send a message endorsing religion. On that premise, the Court invalidated a county’s sponsorship of a traditional Christmas crèche in a Pittsburgh courthouse.⁷⁷ By contrast, in Texas v. Johnson,⁷⁸ a decision invalidating a state prohibition on flag desecration, both the majority opinion by Justice William Brennan and a dissenting opinion by Chief Justice William Rehnquist acknowledged the sacralizing function performed by the American flag. Thus, Brennan acknowledged for the Court that the flag was “virtually sacred to our nation as a whole,”⁷⁹ but he contended that the way to “consecrate” the flag is not to prohibit its “desecration.”⁸⁰ To “consecrate,” of course, means to associate with the sacred: “desecration,” conversely, is synonymous with “desacralization.” And yet, neither the justices nor the commentators perceived any constitutional problem with the nation’s sponsorship and promotion of what one scholar described as the “sacred flag.”81

So then, why was the flag itself not subject to the ostensible constitutional prohibition on official public religiosity, insisted on contemporaneously in the Allegheny County case? Why did the issue not even occur to any of the justices in the case? The answer, it seems, is that that sort of sacralizing or religious message—a message, arguably, of immanent, not transcendent, sacralization—is not what the prohibition on endorsement contemplates.

So it seems that when the Court declares that public symbols must be “secular,” it does not mean “secular” in the positivistic sense. Under the cover of the amorphous and ambiguous term “secular,” the justices have implicitly embraced, wittingly or unwittingly, a conception of the political community formed in immanently religious terms.

In reality, of course, the Court has not eliminated even all conventionally religiously public symbols and messages. Thus, the Supreme Court and lower federal courts have invalidated a number of public religious expressions—including the Pittsburgh nativity scene, a cross, and some Ten Commandments monuments.⁸² But judges have also approved a number of other apparently religious expressions, including the national motto (In God We Trust),⁸³ a Ten Commandments monument on the Texas state capitol grounds,⁸⁴ and the commencement of legislative or city council sessions with prayer.⁸⁵ The jurisprudence in this respect is notoriously confused; everyone admits this. Nonetheless, the revised interpretation may help make some sense—though probably not complete sense, alas—of that jurisprudence.

Thus, the closest thing to an official explanation for why some conventionally religious expressions remain permissible despite the ostensible constitutional prohibition on endorsements of religion asserts that the acceptable expressions have lost their religious significance (at least in the eyes of a “reasonable observer”) and instead serve now to “solemniz[e] public occasions, [express] confidence in the future, and encourag[e] the appreciation of what is worthy in our society.”86 Justice O’Connor elaborated on this justification at some length in explaining why the words “under God” in the Pledge of Allegiance are not an impermissible endorsement of religion.⁸⁷ For their part, critics find this kind of explanation doubly infirm. In the first place, words like “under God” in the Pledge of Allegiance have not lost their religious meaning, even (or especially) to reasonable observers.⁸⁸ And even if we accept that such expressions serve mostly to “solemnize public occasions,” for example, how is it that these particular words and expressions serve this solemnizing function? It is only because of their religious content, critics argue, that such expressions perform the laudable functions that the Court ascribes to them.⁸⁹

These are powerful objections—at least under the conventional interpretation that understands the doctrine to prohibit all religious expressions and to permit only expressions that are secular in the positivistic sense. But on the alternative interpretation, the criticisms may be less cogent. If the doctrine prohibits transcendent public religiosity, in other words, but allows for immanent religiosity, then religious expressions that are at least susceptible of being interpreted in more immanent or this-worldly terms may not fall under the prohibition. Consistent with this understanding, the courts have seemed most opposed to more obviously sectarian religious expressions—expressions clearly distinctive to Christianity, for example.90 Conversely, more generic expressions that might be amenable to incorporation into an immanent religiosity seem to fare better in the courts.⁹¹

The term “God” presents a delicate case. Conventionally, the term “God” is associated with Christianity, Judaism, and biblical religion generally; the term would thus seem to have a transcendent referent. As we saw in the preceding chapter, therefore, Ronald Dworkin took care to insist that his own more immanent religiosity was a “religion without God.” And yet Dworkin also claimed for his fold of atheistic religiosity luminaries including Spinoza, Einstein, and the Protestant theologian Paul Tillich, even though all these figures talked approvingly of “God.” They used the word, but in Dworkin’s interpretation they did not mean the transcendent God, and instead were using the term in a more immanent sense.⁹² And of course, the pagan deities of antiquity were immanent to this world and yet are routinely referred to as “gods.” It seems, therefore, that the term “God” is capable of being taken in either a transcendent or an immanent sense. And, as in the Pledge of Allegiance case, the justices seem most comfortable with the expression when it is at least susceptible—to the hypothetical “reasonable observer”—of an immanent interpretation.⁹³

This understanding of the prohibition might also help to make sense of scholarly pronouncements that otherwise seem quite baffling. At the time of the Pledge of Allegiance controversy, for example, distinguished commentators, including Columbia professor Kent Greenawalt and University of Chicago professor Martha Nussbaum, argued that the words “under God” in the Pledge of Allegiance clearly sent an unconstitutional message of endorsement; at the same time, these same scholars contended that the national motto, In God We Trust, should not be construed as sending any such forbidden message.⁹⁴ This juxtaposition of judgments seems curious: Why is “under God” more religious, especially when it appears as one short blip in a larger patriotic statement, than the blunt, unqualified declaration, staring at us from every dollar bill we handle, that “In God We Trust”? Such perceptions are difficult to explain, no doubt, but perhaps the answer lies in the word “under.” Maybe it is a matter of vertical versus horizontal. A God whom we are “under” is necessarily above us, and hence by metaphorical implication transcendent, in other words, while a God we “trust” in might be either transcendent or immanent (like a trustworthy brother or sister or friend). Might that be the explanation for Greenawalt’s and Nussbaum’s puzzling judgments?

In any case, through the haze of arguably incoherent decisions and judgments, two propositions seem tolerably secure. First, not all religious expressions by government are forbidden. Second, explicitly Christian expressions are disfavored (unless mixed in with an eclectic congregation of more generic religious language).95 So it is all right to begin Supreme Court sessions with the invocation “God save the United States and this honorable Court”⁹⁶—the phrase in that context is apparently solemnizing the Court and its proceedings—but it would be unthinkable for the modern Supreme Court to assert that “this is a Christian nation” in the way the nineteenth-century Court did.⁹⁷ More generally, legislatures are evidently not permitted to pursue goals or advance values distinctively associated with the biblical tradition—traditional marriage, for example⁹⁸—but government is free to pursue and advance values perceived by their supporters as having a more immanently “sacred” quality, such as the protection of human life, or human rights, or endangered species.

The effect of these decisions and tacit assumptions, one might argue, is to remove the transcendent or Christian stratum of American civil religion, thereby leaving the immanent or pagan substratum. As we saw in chapter 8, despite its official but arguably superficial triumph over paganism in late antiquity, Christianity did not so much eliminate or replace pagan religiosity as contain and to some degree reorient it by enveloping it within a sort of overarching transcendent canopy. Once the canopy was removed, pagan religiosity was alive and well, ready and waiting to reassert itself. In their campaign to eliminate the transcendent dimension of American public religiosity, consequently, the courts have in effect pushed our official conceptions of our political community in an immanent or pagan direction.

And yet the decisions have been erratic and controversial, often sharply dividing the justices themselves. Indeed, the “no endorsement” doctrine itself seems unstable, especially since its leading proponent, Justice O’Connor, retired from the Court. More generally, the public debate itself continues as fiercely as ever, as annual battles over “Merry Christmas” and public school holiday programs reflect. Hence the ongoing and intense public struggle over “mere symbols,” which seems unlikely to be resolved either by agreement or outright victory by one or the other party anytime soon.

The Struggle over Sexuality

Although conflicts over religious symbols have been frequent and sometimes intense, they pale in their ferocity in comparison to the struggle over a variety of issues connected in various ways with sexuality: contraception, pornography, abortion, homosexuality, same-sex marriage. In these diverse but related conflicts, similar lines of division are discernible. In ancient Rome, Kyle Harper argues, sexuality “came to mark the great divide between Christians and the world.”99 A similar divide seems to have opened up today. Geoffrey Stone observes that “we are in the midst of a constitutional revolution. . . . It has bitterly divided citizens, politicians, and judges. It is a battle that has dominated politics, inflamed religious passions, and challenged Americans to rethink and reexamine their positions on issues they once thought settled. . . . And, best of all, it is about sex.”¹⁰⁰

On one side of the divide, proponents favor a conception of sexual morality that is discernibly aligned with Christian or, more generally, biblical understandings. On the other side, proponents embrace views of sexual morality that in important respects parallel those of pagan Rome; and like the Romans, proponents of this position find the traditional or biblical conception not only unnaturally and intolerably restrictive, but indeed almost unfathomable. Both sides seek to enshrine their conceptions of sexuality in law; often the legal provisions seem important more for what they symbolize than for their practical or concrete effects.

The Ancient Divide. As we saw in chapter 3, the term “sexual morality” seems almost a misnomer for pagan attitudes toward sexuality: that is because, in the views of pagan Rome, sexuality was not intrinsically a matter generating or requiring moral restrictions.101 It was assumed, rather, that an active sexual agenda was, for men, a necessity; abstinence, or even the confinement of sexual relations to marriage, was unnatural and unhealthy. And pagan religion blessed this permissive understanding. Sexual passion was a manifestation of “the mysterious indwelling presence of the gods”¹⁰²—of Venus, her son Eros (or Cupid), Priapus of the prodigious phallus, Bacchus, and a variety of more peripheral deities. The pagan gods not only inspired sexual drives; they set a divine example through their own frequent carnal consorting, with each other and with the occasional winsome mortal.

In sum, sexual gratification was something to be celebrated and assiduously pursued—by men, that is—in either its heterosexual or homosexual variety. Stimulation to sexual intercourse (in the form of ubiquitous erotic depictions on household walls and lamps, and in public spaces) and opportunities for intercourse (in the form of multitudinous brothels and slaves, in addition, of course, to wives) were pervasive.

Though natural, necessary, desirable, and divinely ordained, however, sexual gratification was subject to extrinsic limitations emanating from two other sources or concerns. One was the ethic of manliness. Under this ethic, although homosexual intercourse was permissible and sometimes preferable, to be the passive or receiving partner in such a union was deemed disgraceful and effeminate. In addition, a man should always be the master not only of his household and his slaves but also of himself. So it was shameful to indulge sexual passions beyond the point of self-control.

The other source of limitations on sexual expression, given pervasive fears of population decline, was the demographic demand for reproduction within the patriarchal family. Together with the ethic of manliness, this concern meant that women—respectable women anyway—enjoyed none of the sexual license extended to men. Women were expected to remain chaste before marriage, to marry at a young age, and to have relations only with their husbands after marriage.

These sexual norms were reflected in and supported by law. Adultery was legally forbidden (although the prohibition was sometimes violated—and flagrantly violated by emperors). More importantly, law recognized and maintained the institutions—the ubiquitous brothels, the teeming multitudes of slaves—that solved what would otherwise have been an untenable problem of sexual supply.

Christianity, by contrast, firmly rejected these sexual norms in favor of celibacy and marriage, as we saw in chapter 5.103 Sexual relations were not deemed a human necessity—indeed, the celibate life was admired—and were permissible only between spouses. This conception expressed a Christian ideal of purity—of the body as a temple of the Holy Spirit—that pagans found almost incomprehensible. “Christian ideals of sexual exclusivity, including male fidelity were radically discordant with the patterns of life and the expectations of public culture,” Harper explains.¹⁰⁴ Conversely, “for Paul the sexual disorder of Roman society was the single most powerful symbol of the world’s alienation from God” (94).

As Christianity became the dominant religion of the empire, Christian sexual norms also gradually came to be reflected in law. Prostitution, enthusiastically supported under the earlier emperors, was now legally regulated and discouraged (186–88). Pederasty and homosexual conduct were forbidden (155–56). The shift from pagan to Christian morality amounted to “a revolution” (18). That revolution was hardly limited to sexual morality, to be sure. But in its cultural manifestations, Harper observes, “sex was at the center of it all” (1).

In Rome, in short, the law reflected and reinforced the shift from pagan sexual norms to Christian sexual morality, which in turn was a manifestation of the shift from the immanently religious, pagan world to the Christian world oriented to a transcendent deity.

The Modern Divide. In modern America, a similar process is discernible—except in reverse. Thus, for much of American history, Christian sexual norms prevailed (at least officially, although, as always, actual practice often deviated), and the law reflected these norms. The legal scholar Robert Rodes explains that as late as the 1950s, the law embodied Christian or biblical sexual morality. Fornication was still a criminal offense in all but ten states, adultery in all but five, sodomy in all the states.105 Seduction was both a tort and a crime.¹⁰⁶ The distribution of contraceptives was forbidden by federal law, as well as under the law of most states.¹⁰⁷ Obscenity was prohibited, subject only to faint constitutional protections, and in many states, movies were subject to licensing to screen out objectionable content.¹⁰⁸

Most of these laws were, to be sure, imperfectly or even rarely enforced. When opponents brought a lawsuit challenging Connecticut’s ban on contraception in Poe v. Ullman,¹⁰⁹ the case was dismissed because the Court found that in the decades since the statute was enacted in 1879, the state had tried to enforce it only once, and that prosecution had been dismissed on the state’s own motion. Moreover, actual behavior often departed significantly, as it long had done, from the official norms. Historians John D’Emilio and Estelle Freedman report that by the 1920s Americans were already moving toward a more liberal view of the functions and limits of sex.¹¹⁰ Rodes acknowledges these facts but argues that the legal provisions nonetheless expressed and helped to maintain a sort of official or public normative framework: “When Dwight Eisenhower was President, . . . it was well understood that chastity was the prevailing social norm. Whatever their practices, everyone knew what the standard was: married people were to have sex only with their spouses; the unmarried were to abstain.”¹¹¹

Survey data support Rodes’s observation: in the 1950s fewer than a quarter of Americans approved of premarital sex.¹¹² Then came the so-called sexual revolution (though it was not exactly the first such revolution, or the last).¹¹³ Cultural, political, and commercial developments converged, D’Emilio and Freedman explain, to produce a “reorganization of sexuality” in America.114 “The reshaping of sexuality in the 1960s and 1970s was of major proportions. The marketing of sex, new demographic patterns, and the movements of women and homosexuals for equality all fostered a substantial revision in attitudes and behavior. . . . By the end of the 1970s, it was obvious that the [earlier] consensus had dissolved. As Americans married later, postponed childbearing, and divorced more often, and as feminists and gay liberationists questioned heterosexual orthodoxy, nonmarital sexuality became commonplace and open. And all of this took place in a social environment in which erotic imagery was ubiquitous.”¹¹⁵

Modern sexual norms run parallel in important respects to ancient pagan attitudes and practices—except that these attitudes and practices have been extended to include women as well as men. Now, as then, in the popular morality growing out of the sexual revolution, the term “sexual morality” is something of a misnomer. That is because, according to a common assumption, sex is a normal, healthy human activity that does not intrinsically call for moral restrictions. Indeed, sexual intimacy continues to enjoy a kind of priority or even sanctity: it is not merely a particular kind of activity or pleasure that some people happen to enjoy (like gardening, or golf, or playing a musical instrument), but rather is something that is central to a complete human life. In Martha Nussbaum’s list of human capabilities that must be recognized and accommodated if people are to live a life that is “truly human” or “fully human,” one of the capabilities (“bodily integrity”) is explained as including “having opportunities for sexual satisfaction.”¹¹⁶ In Supreme Court decisions, opportunity for sexual fulfillment is explicitly if vaguely tied to “human dignity.”¹¹⁷

Commenting on “the sacrosanct, nonnegotiable status assigned to contraception and abortion,” Mary Eberstadt argues that the new sexual morality is “a new, quasi-religious orthodoxy.”118 As in Rome, it may seem, contemporary society “find[s] in erotic fulfillment nothing short of salvation,” as Kyle Harper observes.¹¹⁹

Also as in Rome (though to a somewhat lesser extent), both stimulations to and opportunities for sexual expression are pervasive. D’Emilio and Freedman observe that “mid-twentieth-century America witnessed the collapse of most prohibitions on the public portrayal of sexuality.”¹²⁰ Today, consequently, commercial advertisements routinely display comely, seductively clad women and men who both appeal to and stimulate libidinous inclinations while seeking to entice consumers to buy automobiles, beer, hamburgers, or remedies for erectile dysfunction. Pornography is readily available, now not only in films and magazines but also online; legal attempts to restrict it have fared badly in the courts.¹²¹ The Internet and mobile phone apps are widely used to arrange sexual partners.¹²² Historians D’Emilio and Freedman describe “the permeation of sex throughout the culture.”¹²³

The prevalence of these radically altered norms of sexual morality is reflected in, among other places or media, popular television series. Examples are numerous; as one salient instance, consider the critically acclaimed sitcom Frasier, which ran for eleven seasons, from 1993 to 2004. The series featured two culturally refined and obsessively fastidious psychiatrist brothers, Frasier and Niles; their retired police officer father, Martin; Frasier’s talk show producer, Roz; and Martin’s physical therapist, Daphne.¹²⁴ The central character, Frasier, multiply divorced, has over the course of the series numerous short- and longer-term sexual relationships with a variety of women; Niles and Martin have the occasional tryst. The characters often talk and even agonize over the moral dimensions of these relationships, but the moral reflections have to do with concerns like whether Frasier is being honest with a partner or too shallow in his choice of partners. No one (not even Martin, who is depicted as thoroughly and comically traditional in his attitudes) ever expresses the slightest reservation about the propriety of extramarital sex as a concern in itself. On the contrary, as in ancient Rome, the characters often worry about the deleterious consequences of the absence of such intimacy; thus, Niles and Martin become alarmed when Frasier goes for a protracted period without “being with a woman.” Roz, by contrast, is depicted as having sex routinely with almost any man who is willing and minimally attractive; this propensity is a frequent subject of mirthful banter, but not of any sustained moral appraisal or censure.

The fact that traditional sexual morality is so wholly absent from a show in which the characters are portrayed as highly reflective and in some ways morally ultrafastidious is revealing of a dramatic change in prevailing sexual ethics. (In this respect, Frasier presents a contrast to a celebrated series like, say, Seinfeld, which is similarly oblivious to traditional sexual morality but in which the characters are emphatically not portrayed as morally serious.)125

Ferdinand Mount summarizes the prevailing mind-set: “Except for a minority of religious fundamentalists, we are reluctant to condemn any specific sexual practice as wrong in itself. . . . Between consenting adults in private, there are almost no limits.”¹²⁶ This understanding is similar, Mount contends, to the attitudes that prevailed in ancient Greece and Rome. Like the pagan view and unlike the Christian view, in the prevailing modern attitude “sex is not thought of as sinful in any of its manifestations.”127 Rather, the modern attitude reflects a “Neo-Pagan yearning for a return to the easy, down-to-earth sexual life of the ancient world.”¹²⁸

Again as in Rome, however, sexual intimacy, although not intrinsically generative of moral restrictions, is subjected to extrinsic limitations arising from independent practical or ethical considerations. Unlike in Rome, these extrinsic sources of restrictions are not the ethic of manliness or the need for population replenishment, but more nearly the opposite of those ancient constraints. Thus, instead of an ethic of masculinity, contemporary culture reflects two more contemporary ethical commitments—to gender equality, and to personal autonomy and hence individual consent. These commitments have combined, in some contexts, to generate severe restrictions on sexual activity—restrictions designed to assure that sexual partners, both male and female, have fully agreed to each act or phase of sexual intimacy.¹²⁹ And in place of the ancient social pressure to produce children, modern norms have been structured to promote the avoidance of unwanted pregnancies. This concern to limit pregnancy and population growth, together with concerns about the risk of sexually transmitted disease, has sponsored a series of programs and campaigns to facilitate the availability of contraceptives—on which, more in a moment.

Constitutionalizing the Sexual Revolution. Positive law—constitutional law in particular—has played a central role both in expressing and in facilitating this shift from a Christian to a more pagan sexual ethics.¹³⁰ As noted, as late as the 1950s, American law expressed traditional Christian or biblical understandings of what was permissible in sexual relations. Beginning in the 1960s, however, the law moved decisively in the opposite direction.

Thus, in 1965, in the case of Griswold v. Connecticut, the Supreme Court found in the “emanations” and “penumbras” of various constitutional provisions a right of “privacy” that could extend constitutional protection to the use of contraceptives. Initially, in invalidating Connecticut’s anticontraceptive law, the Court stressed the sanctity of the marital bedroom.131 That limiting rationale quickly disappeared, however. In a later decision, spurning the logic and the majestic “sanctity of marriage” rhetoric of the Connecticut case, the justices reasoned that rights belong to individuals; so if a married person had a right to contraceptives, a single person must have the same right.¹³²

A year later, in the legendary case of Roe v. Wade,¹³³ the Court construed the Fourteenth Amendment to support a (slightly qualified) right to abortion. Roe was heavily criticized, to be sure, including by some “progressive” constitutionalists who in fact liked the substantive outcome but found the legal rationalization untenable,¹³⁴ and also by a number of justices. But just over two decades later, some of these robed critics flipped positions and joined to reaffirm the decision, or at least its “essential holding.”¹³⁵

Sexual relations between same-sex partners took longer to achieve constitutional recognition. In 1986, the Court declined to strike down a Georgia law prohibiting “sodomy,” finding that the centuries-old legal condemnation of such conduct made it impossible to read an implicit prohibition into the Constitution.¹³⁶ In 1996, however, the Court creatively construed a Colorado measure denying “special rights” to gays and lesbians so as to render the law vulnerable to invalidation.¹³⁷ Then, in Lawrence v. Texas,¹³⁸ the Court overruled its earlier decision and struck down a Texas sodomy law. Just over a decade later, the Court ruled that states not only could not prohibit homosexual relationships; states could also not deny same-sex couples who desired it the dignifying status of “marriage.”¹³⁹

Ratification of the sexual revolution was not limited to constitutional law, however. At about the same time that courts were decreeing that traditional marriage laws limiting marriage to opposite-sex partnerships were unconstitutional, the Department of Health and Human Services, acting on language in the Affordable Care Act (so-called Obamacare), issued regulations requiring most employers to offer their employees insurance coverage that included contraceptives free of any co-pay. This so-called contraception mandate contained limited exemptions for religious institutions, but it provoked objections from a number of employers who did not qualify for the exemptions and who maintained religious objections either to contraception or to particular contraceptives that they regarded as abortifacients. These objections gave rise to a fierce conflict between supporters of the contraception mandate and proponents of a traditional conception of religious liberty.140 We will consider that conflict more closely in the next chapter.

The Symbolism of Sexuality. Laws regulating sexual matters can be important for their practical consequences, obviously—prohibitions of abortion may be the clearest case—but they are also important, or perhaps even more important, for what they symbolize. Thus, as noted, laws in the 1950s that appeared calculated to limit sex to marriage went pervasively unenforced. Their direct, formally legal impact on sexual behavior was often de minimis. Even so, the laws reflected a community commitment to a Christian or biblical standard or ideal. Insofar as symbols are constitutive of community, as discussed earlier, that symbolic commitment was understandably supported by some and resented by others, even if the laws’ practical or coercive impact was negligible.

By the same token, the embrace of the morality of the sexual revolution by modern laws is cherished, or resented, not only (and perhaps not even primarily) for the laws’ practical consequences, but rather for their impact in symbolizing the rejection of the older Christian conception of the community in favor of a revised conception—a conception, I have suggested, that might aptly be described as “pagan.” This dimension of the laws is perhaps most apparent in the changing legal treatment of contraception.

In fact, most Americans today are not morally opposed to contraception, and hardly any favor legal restrictions. There is no movement to reinstate such restrictions.¹⁴¹ Even so, contraception is at the expressive or symbolic core of the transformation in sexual morality. Thus, what D’Emilio and Freedman call “the contraceptive revolution” is what made possible the separation of sexual intimacy from its traditional connections to procreation and marriage.142 The new and widespread availability of “the pill” in the 1960s was also closely tied to the new commitment to gender equality: “the pill” made it possible for women to engage in the same sorts of sexual activities previously more available to men without incurring the distinctive risk of pregnancy.¹⁴³

So it is not surprising that the law pertinent to contraception starkly expresses the transformation in public norms. In the 1950s, as noted, the distribution of contraceptives was at least formally prohibited in most states and under federal law. Then, contraception went comparatively swiftly from being (a) legally forbidden to being (b) constitutionally permitted for married couples,¹⁴⁴ then (c) constitutionally protected for adults and presumptively responsible adolescents whether single or married,¹⁴⁵ and now (d) viewed as something that women—or at least employed women—have a legal right to have supplied free of charge. Indeed, that legal right is increasingly described (including by a majority of Supreme Court justices) not merely as a benefit that government may choose to confer, but as one in which government has a “compelling interest”—an interest that, unless it can be satisfied in some less burdensome way, overrides other long-standing and previously central commitments to things such as freedom of religion.¹⁴⁶

It would also appear that the law of contraception matters to people—and provokes fierce legal disputes and heated political rhetoric—less because of the practical consequences of the law than because of what it symbolizes. As noted, the old prohibitions on contraception were mostly symbolic; they were rarely if ever enforced. Conversely, most women today could likely obtain contraceptives without legal requirements mandating that employers supply them—by private purchase or from subsidized entities like Planned Parenthood.¹⁴⁷ Indeed, except for the few employers with religious objections, it seems likely that most employers would provide such coverage anyway (especially if, as the government has claimed, contraception actually reduces medical costs).148 In some cases, to be sure, obtaining contraceptives might be a financial burden (although government has long subsidized contraception for poor women,¹⁴⁹ and although most women for whom the burden is significant—for example, unemployed women—would not benefit from the contraception mandate anyway); but then most goods, even essential ones (housing, food, automobiles, . . . cellphones, laptops), are costly and are typically not provided or mandated by government. The recent insistence on public support for contraception is thus understandable in part as a kind of demand that government place its imprimatur on the new sexual morality. And the conspicuous insistence that contraception be provided by employers, rather than through a range of other methods that are sometimes proposed, can be seen as an effort to elicit or extract those employers’ support for that policy with its underlying morality.

Sex as the Point of Cultural Separation. Neither the morality of the sexual revolution nor the laws and constitutional doctrines that reflect and ratify that morality are embraced by all Americans. D’Emilio and Freedman describe how the new sexual agenda has frequently provoked resistance, as with the so-called Moral Majority and the New Right.¹⁵⁰ Christian scholars and activists among others continue to advocate the position that holds that sex is intrinsically connected to marriage and procreation.¹⁵¹ Both the “contraception mandate” and the judicial decisions imposing same-sex marriage on all states continue to provoke active opposition.¹⁵²

Sex and the issues associated with it—abortion, contraception, same-sex marriage—thus mark the visible boundary separating warring factions in the current culture wars. D’Emilio and Freedman remark on how as the sexual revolution unfolded under the influence of a variety of forces—cultural, political, religious, and economic—differences over sexual morality became the focal point for a whole array of disagreements. “A broad range of social, cultural, and economic concerns all could be channeled into campaigns against sexual expression or for sexual liberation.”153 As a result, as the twentieth century merged into the twenty-first, “Americans witnessed a politics of sexuality more contentious than ever before.”¹⁵⁴

The contentiousness has likely been enhanced by the fact that the changes, both cultural and legal, have occurred with stunning suddenness. D’Emilio and Freedman explain that “the two decades that followed [the ‘don’t ask, don’t tell’ policy of the mid-1990s] saw a degree of change unimaginable a mere generation earlier.”¹⁵⁵ In a book chronicling the role of the American Civil Liberties Union in securing the constitutionalization of sexual expression and liberty, Leigh Ann Wheeler observes that “as late as 1973, few Americans could conceive of the possibility that the U.S. Constitution might protect sexual rights and provide for sexual citizenship.”¹⁵⁶ Geoffrey Stone, former dean of the University of Chicago Law School, agrees; though an enthusiastic proponent of the new jurisprudence of sexuality (and a strident critic of the older, Christian viewpoint), Stone acknowledges that “Supreme Court justices from almost any prior era in American history would be stunned to learn of the role the Supreme Court and our Constitution have come to play in our contemporary disputes . . . over such issues as obscenity, contraception, abortion, sodomy, and same-sex marriage.”¹⁵⁷

Despite occasional wishful proclamations that “the culture wars are over,”¹⁵⁸ there can be no realistic expectation that these fundamental conflicts will disappear anytime soon. D’Emilio and Freedman thus conclude their history of sexuality in America with the confident prediction that “sex will remain a source of both deep personal meaning and heated political controversy.”¹⁵⁹

Capturing the Constitution

With respect to public religious symbols and sexuality, we have observed a shift in American law from a legal regime consonant with the long-standing civil religion described by Bellah—a civil religion that was Christian or at least biblical in character—toward a regime more resonant with an immanent religiosity or, as Eliot put it, “modern paganism.” A primary instrument in effecting that shift, as we have seen, was the American Constitution, as interpreted and used by the modern Supreme Court. But, naturally enough, causal influences in this transformation have run both ways. If the Constitution has been employed to make public symbols and sexual norms less Christian and more pagan, the deployment of the Constitution for those ends has had the effect of making the Constitution itself a more pagan instrument.

In this instance, however, the change has not been from Christian to pagan, but rather from neutrally agnostic to pagan. That is because, from the outset, the Constitution was not an overtly Christian document. When the instrument was initially being drafted and ratified, there was a faction that wanted to acknowledge Christianity in the nation’s fundamental law. But the framers consciously resisted this demand. Thus, unlike its predecessor, the Articles of Confederation, and unlike state constitutions of the time (and since), the Constitution deliberately avoided any meaningful acknowledgment of “Providence,” or “the Almighty,” or “the Supreme Governor of the Universe.”160

Some modern scholars infer from the omission of religious or Christian language in the Constitution that the framers intended a constitutional requirement that governments in America be “secular.”¹⁶¹ The inference is a stark non sequitur.¹⁶² The Constitution could have declared that government must be secular, as some other nations’ constitutions do; it did no such thing. Later, after the Civil War, a movement developed to insert such a “secular government” requirement into the Constitution; the proposal went nowhere. At about the same time, a “Christian nation” amendment was likewise proposed—and rejected. Both at the founding and a century later, Americans opted for a Constitution that took no position on the matter of a Christian or secular government.163

Instead, the Constitution provided a legal framework for governance. To be sure, broad constraints on what government could do in matters of religion were imposed.¹⁶⁴ The original Constitution contained a provision forbidding religious tests for federal office. Shortly thereafter, with the adoption of the First Amendment, the national government and later by extension the state governments were forbidden to establish any church or to interfere with the free exercise of religion. The first two of these provisions precluded a return to official Christendom; I will argue in the next chapter that the last of the provisions had a derivatively Christian character. Within those broad parameters, city or state governments or the federal government might develop measures that were consonant with Christianity, with paganism, or with a more positivistic secularism. The Constitution permitted any of these alternatives; it commanded none of them.

This agnosticism served a valuable function. As constituents of what Will Herberg aptly described as “pre-eminently a land of minorities,”¹⁶⁵ almost all Americans would in different times and circumstances likely find themselves out of harmony with positions taken by national, state, or local governments (just as they would find their political party on the losing side of some national or local elections). That condition of alienation could be distressing, even painful. And yet Americans could remind themselves that the positions and political parties that might currently prevail were not ultimately constitutive of the political community. Above them in the hierarchy of legal and political authority stood the Constitution—the agnostic Constitution that declined to put its imprimatur on either Christian or secular (or pagan) conceptions of the community.166

The value of this more neutral Constitution came to be appreciated in the mid-twentieth century—during what lawyers often call the “Lochner era”¹⁶⁷—as the courts deviated from constitutional neutrality and turned the Constitution into an instrument for supporting laissez-faire public policies against the emerging regulatory state. A principal tool of this commandeering of the Constitution was the idea of “substantive due process”—the idea of importing substantive principles or values into a constitutional provision that on its face appeared to be merely a guarantee that government would follow proper legal procedures—to employ the Constitution in favor of economic laissez-faire and against the emerging regulatory state. Through this and other interpretive devices (such as construing Article I’s commerce power narrowly), the Constitution was sporadically invoked by the Supreme Court to strike down a number of state laws and also of New Deal responses to the Great Depression. As the depression persisted, however, and as Franklin Roosevelt was repeatedly reelected, this resistance effort—and the idea of “substantive due process”—came to be generally discredited.¹⁶⁸

For a few decades, anyway. But then the campaign against lingering Christian elements in American law—in the public religious symbols and in the laws of sexuality we have been discussing—ran into an obstacle: continuing popular support or at least inertia made it difficult or impossible to eliminate these features merely by using the democratic process. And so proponents of the transformation turned to the Constitution to override the obstinacy or complacency of the electorate.¹⁶⁹

In the area of religious symbolism, the main device for undoing the older civil religion has been the First Amendment’s establishment clause, interpreted in a way that would have surprised earlier generations (and in a way, ironically, that would actually render earlier landmark religious freedom laws, such as Jefferson’s famous Virginia Statute for Religious Liberty, unconstitutional—as violations of religious freedom).170 But often, in the absence of any substantive provision or language suited to the task, the due process clause once again seemed the most eligible tool. In the area of sexual morality, therefore, the previously discredited idea of “substantive due process” has been rehabilitated and used to invalidate regulations reflecting traditional or Christian sexual norms. Thus, most of the major decisions concerning sexuality described above—the decisions striking down abortion laws, sodomy laws, and traditional marriage laws—have been justified by reading substantive content into the Constitution’s seemingly procedural prohibition on depriving people of life, liberty, or property “without due process of law.”¹⁷¹ The due process clause has been supplemented in some instances by a previously almost moribund¹⁷² but newly and aggressively interpreted equal protection clause.¹⁷³

The story of the revival of “substantive due process” and the infusion of new content into other constitutional provisions is perfectly familiar to lawyers; it is a standard part of most first-year constitutional law courses,¹⁷⁴ and is taken for granted by most lawyers and judges. Given that most of this newly imported content was surely not contemplated by previous generations,¹⁷⁵ however, including by the generations that originally drafted and ratified the provisions now being invoked to overthrow traditional and Christian norms, the decisions have been also fiercely criticized, occasionally by critics and scholars who strongly approve the substance of the results reached by the Courts.¹⁷⁶ But the decisions, and the use of the Constitution to undo entrenched traditional measures and norms, have also been energetically defended: indeed, over the past half-century or so, a major enterprise of constitutional theorizing has developed with a central purpose of justifying interpretations of the due process clause and the Constitution generally to support results that admittedly were not intended or contemplated by the Americans who drafted and supported the various provisions.177

Whether one finds the theorizing persuasive or merely sophistical, a consequence of this effort is that whatever confidence citizens might once have had that they could govern themselves by deliberating and then carefully formulating and entrenching specific provisions or rights in the Constitution is now largely lost. Enactment of a constitutional provision amounts to approving a text that may be used in the future to accomplish all manner of results, salutary or mischievous, that those who adopted the provision never imagined.

This is a development, obviously, that some celebrate and some deplore. In the celebratory vein, Geoffrey Stone exults that “from 1957 to the present we have seen a profound transformation in American constitutional law,” and he enthuses over the “stunning and, indeed, historic shift in our culture and in our law.”¹⁷⁸ Conversely, others worry that the courts’ commandeering of the Constitution to advance a progressive agenda amounts to the effective demise of democratic government.¹⁷⁹

What seems clear, though, is that over the past half-century, the Court’s establishment clause jurisprudence has had the effect of invalidating public messages and symbols that earlier generations regarded—and that many in the current generation still regard—as entirely acceptable and indeed admirable.¹⁸⁰ And the Court’s substantive due process jurisprudence has systematically dismantled the Christian norms of sexual morality and marriage that previously were officially recognized in law, and has moved the law decisively in the direction of a view of sexuality that resonates with the immanent religiosity of both ancient and modern paganism.

In doing so, for better or worse, the Court has transformed the nation’s most fundamental law—one that once stood majestically above the fray of contesting religious and secular conceptions of the community, and hence could serve as an anchor for the allegiance even of citizens who found themselves in the situation of being a political or cultural or religious minority—into a partisan instrument in the struggle between transcendent and immanent conceptions of the city.

1. See Anthony T. Kronman, Confessions of a Born-Again Pagan (New Haven: Yale University Press, 2016).

2. Matthew Arnold, “Dover Beach,” Poetry Foundation, accessed July 13, 2017, https://www.poetryfoundation.org/poems/43588/dover-beach.

3. Holy Trinity Church v. United States, 143 U.S. 457, 470 (1892).

4. See, e.g., Adrian Vermuele, “Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church,” Stanford Law Review 50 (1998): 1844 (describing the case as “notorious in the distinct context of debates about religious liberty”).

5. Plessy v. Ferguson, 163 U.S. 537 (1896).

6. See John Fea, Was America Founded as a Christian Nation? A Historical Introduction (Louisville: Westminster John Knox, 2011), 21 (“Between 1789 and 1865 Americans—North and South, Union and Confederate—understood themselves to be citizens of a Christian nation. . . . Despite the religious skepticism of many of the founders, evangelical Protestantism . . . defined the culture”).

7. Holy Trinity Church, 143 U.S. at 471.

8. The sources and studies are so numerous that citation of any particular study is largely arbitrary. For examples, see Mark A. Noll, America’s God: From Jonathan Edwards to Abraham Lincoln (New York: Oxford University Press, 2002); Michael Novak, On Two Wings: Humble Faith and Common Sense at the American Founding (San Francisco: Encounter Books, 2003). Frank Lambert explains that “despite sectarian differences, the thirteen states were overwhelmingly Protestant, and Protestantism provided the moral foundation for society. In their ardent belief that they were God’s chosen people, Americans interpreted history through a moral lens: good times pointed to divine blessing; bad times indicated divine disapproval” (Frank Lambert, Religion in American Politics [Princeton: Princeton University Press, 2008], 19–20).

9. See, e.g., David Sehat, The Myth of American Religious Freedom (New York: Oxford University Press, 2011).

10. Robert N. Bellah, The Broken Covenant: American Civil Religion in Time of Trial (Chicago: University of Chicago Press, 1975), 3 (emphasis added).

11. Bellah, The Broken Covenant, 174.

12. Bellah, The Broken Covenant, 168 (suggesting that “the American republic, which has neither an established church nor a classic civil religion, is, after all, a Christian republic, or I should say a biblical republic, in which biblical religion is indeed the civil religion”).

13. Bellah, The Broken Covenant, 2.

14. See Bellah, The Broken Covenant, 179 (describing Lincoln as “our greatest, perhaps our only, civil theologian”).

15. Bellah, The Broken Covenant, 12.

16. For discussions of this change, see, e.g., Andrew Koppelman, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013), 28–42; Kevin M. Schultz, Tri-Faith America: How Catholics and Jews Held Postwar America to Its Protestant Promise (New York: Oxford University Press, 2011). On nineteenth-century “nonsectarianism,” see Noah Feldman, Divided by God: America’s Church-State Problem—and What We Should Do about It (New York: Farrar, Straus and Giroux, 2005), 61–62, 109.

17. For a somewhat disdainful contemporary account, see William Lee Miller, Piety along the Potomac: Notes on Politics and Morals in the ’50s (New York: Houghton Mifflin, 1964). See p. 41 (report dated August 17, 1954): “The manifestations of religion in Washington have become pretty thick. We have had opening prayers, Bible breakfasts, special church services, prayer groups, a ‘Back to God’ crusade, and campaign speeches on ‘spiritual values’; now we have added a postage stamp, a proposed Constitutional amendment, and a change in the Pledge of Allegiance. The Pledge, which has served well enough in times more pious than ours, has now had its rhythm upset but its anti-Communist spirituality improved by the insertion of the phrase ‘under God.’ The Postmaster General has held a dedications ceremony, at which the President and the Secretary of State explained about spiritual values and such, to launch a new red, white, and blue eight-cent stamp bearing the motto ‘In God We Trust.’ A bill has been introduced directing the post office to cancel mail with the slogan ‘Pray for Peace.’ ”

18. “History of ‘In God We Trust,’ ” U.S. Department of the Treasury, last updated March 8, 2011, https://www.treasury.gov/about/education/Pages/in-god-we-trust.aspx.

19. Zorach v. Clauson, 343 U.S. 306, 312 (1952).

20. Will Herberg, Protestant-Catholic-Jew: An Essay in American Religious Sociology (Chicago: University of Chicago Press, [1955] 1983), 87.

21. See Noll, America’s God, 367–438.

22. Bellah, The Broken Covenant, 142.

23. Bellah, The Broken Covenant, 153. See also 162 (“The present spiritual condition of America is not very cheering”).

24. James Davison Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991), 43–44.

25. See Hunter, Culture Wars, 120–25.

26. Hunter, Culture Wars, 128.

27. Hunter, Culture Wars, 59.

28. For an update and debate, see James Davison Hunter and Alan Wolfe, Is There a Culture War? A Dialogue on Values and American Public Life (Washington, DC: Brookings Institution Press, 2007).

29. See, e.g., “Political Polarization in the American Public,” Pew Research Center, June 12, 2014, http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public.

30. Hunter, Culture Wars, 50–51.

31. Hunter, Culture Wars, 52.

32. When the conflict is described as one for “domination,” of course, neither side may seem especially attractive. Americans, with their historic commitment to liberty, are unlikely to sympathize with a party that strives for “domination.” Advocates on both sides take advantage of this fact. In this vein, Martha Nussbaum accuses the Religious Right of wanting to “lord it over” their fellow citizens; Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2009), 8, 28, while Jonah Goldberg describes the progressive agenda as one of “liberal fascism”; Jonah Goldberg, Liberal Fascism (New York: Doubleday, 2009). It should be remembered, though, that in a culture war, as in other kinds of war, the likely alternative to dominating is being dominated. We may be more sympathetic if we recognize that both sides are struggling to avoid being dominated, culturally and politically.

33. Hunter, Culture Wars, 58.

34. Hunter, Culture Wars, 147.

35. See above, 172–76.

36. Benedict Anderson, Imagined Communities (London: Verso, 2006).

37. Hunter, Culture Wars, 58.

38. Hunter, Culture Wars, 47, 86–88.

39. Hunter, Culture Wars, 48, 42.

40. Hunter, Culture Wars, 120.

41. Hunter, Culture Wars, 124.

42. The point is developed in Isaac Kramnick and L. Laurence Moore, The Godless Constitution: A Moral Defense of the Secular State (New York: Norton, 2005), 150–206.

43. Peter Brown, Power and Persuasion in Late Antiquity: Towards a Christian Empire (Madison: University of Wisconsin Press, 1992), 120–21.

44. “Portraits & Designs,” U.S. Department of the Treasury, last updated December 1, 2015, https://www.treasury.gov/resource-center/faqs/Currency/Pages/edu_faq_currency_portraits.aspx; see also Derek H. Davis, Religion and the Continental Congress, 1774–1789 (New York: Oxford University Press, 2000), 138–40.

45. See, e.g., Everson v. Board of Education, 330 U.S. 1 (1947); Lemon v. Kurtzman, 403 U.S. 602 (1971); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); School District of City of Grand Rapids v. Ball, 473 U.S. 373, 373 (1985) overruled by Agostini v. Felton, 521 U.S. 203 (1997).

46. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); Walz v. Tax Commission, 397 U.S. 664 (1970).

47. See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984); Allegheny County v. ACLU, 492 U.S. 573 (1989); Van Orden v. Perry, 545 U.S. 677 (2005); McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005); Aronow v. United States, 432 F.2d 242 (9th Cir. 1970); Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996); Newdow v. Lefevre, 598 F.3d 638, 640 (9th Cir. 2010); Newdow v. Peterson, 753 F.3d 105, 106 (2d Cir. 2014); O’Hair v. Murray, 588 F.2d 1144 (5th Cir. 1979); Town of Greece v. Galloway, 572 U.S. ___ (2014); Elk Grove School Dist. v. Newdow, 542 U.S. 1, 35 (2004); Trunk v. City of San Diego, 629 F.3d 1099, 1118 (9th Cir. 2011); Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010).

48. See Allegheny County, 492 U.S. 573; Lynch, 465 U.S. 668.

49. See, e.g., Allen v. Morton, 495 F.2d 65 (D.C. Cir. 1973); Citizens Concerned for Separation of Church & State v. City & County of Denver, 481 F. Supp. 522, 532 (D. Colo. 1979); Conrad v. City & County of Denver, 656 P.2d 662 (Colo. 1982).

50. Abington School District v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).

51. Cf. Frederick Mark Gedicks, “The Ironic State of Religious Liberty in America,” Mercer Law Review 46 (1995): 1158 (commenting on the “theologically vacuous nature of most organized public school prayers”).

52. Adam Samaha, “Endorsement Retires: From Religious Symbolism to Anti-Sorting Principles,” Supreme Court Review 2005, no. 1 (2005): 143. However, Samaha goes on to argue that the courts should care about public symbols.

53. Thus, while strongly urging a more committed embrace of public secularism, Jacques Berlinerblau criticizes “the obsession [of some secularists] with religious icons in public spaces,” and he reiterates Madison’s admonition not to waste time on “unessential points.” Jacques Berlinerblau, How to Be Secular: A Call to Arms for Religious Freedom (New York: Houghton Mifflin Harcourt, 2012), 51.

54. Oliver Wendell Holmes Jr., The Collected Legal Papers (New York: Dover, 2007), 270.

55. Max Lerner, “Constitution and Court as Symbols,” Yale Law Journal 46 (1937): 1290.

56. See above, 174.

57. See above, 174.

58. Lynch, 465 U.S. at 688 (O’Connor, J., concurring).

59. See, e.g., Jesse H. Choper, “The Endorsement Test: Its Status and Desirability,” Journal of Law and Politics 18 (2002): 499; Steven D. Smith, “Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the ‘No Endorsement’ Test,” Michigan Law Review 86 (1987): 266.

60. See Smith, “Symbols, Perceptions,” 305–9.

61. See Samaha, “Endorsement Retires,” 143 (“Nobody is losing the right to vote, or speak, or receive tangible government benefits; nobody is formally compelled to attend or not attend religious ceremonies; nobody is taxed to pay for substantial material benefits to religious causes”).

62. See Koppelman, Defending American Religious Neutrality, 47 (“It is not clear . . . how endorsement either threatens religious liberty or fails to respect diversity. Alienation is as inescapable a part of political life as division. In a democracy, somebody loses any vote and therefore feels like an outsider. Here, too, judicial intervention may simply make things worse”); Mark Tushnet, “The Constitution of Religion,” Connecticut Law Review 18 (1986): 712 (“Nonadherents who believe they are excluded from the political community are merely expressing the disappointment felt by everyone who has lost a fair fight in the arena of politics”).

63. See above, 261–63.

64. Cf. Samaha, “Endorsement Retires,” 137 (“Religious messages . . . can also signal the community’s character to non-members”).

65. Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015) (“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. . . . The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex”); Varnum v. Brien, 763 N.W.2d 862, 904 (Iowa 2009) (“The County’s silence reflects, we believe, its understanding [that religious sentiment] cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage”).

66. “Changing Attitudes on Gay Marriage,” Pew Research Center, June 26, 2017, http://www.pewforum.org/fact-sheet/changing-attitudes-on-gay-marriage.

67. The final decision, of course, was Obergefell, 576 U.S. __ , 135 S. Ct. 2584.

68. I have argued for the potentially contentious claims that follow at much greater length elsewhere. E.g., Steven D. Smith, The Rise and Decline of American Religious Freedom (Cambridge, MA: Harvard University Press, 2014). For a much condensed version, see Steven D. Smith, “Political Decisions Must Be ‘Secular’? Since When?” Law and Liberty, July 31, 2014, http://www.libertylawsite.org/2014/07/31/political-decisions-must-be-secular-since-when.

69. See George Fletcher, Our Secret Constitution (New York: Oxford University Press, 2001), 102.

70. See below, 356.

71. For further discussion, see Steven D. Smith, “Goods of Religion,” in Dimensions of Goodness, ed. Vittorio Hösle (Newcastle, UK: Cambridge Scholars, 2013). See also Francis Beckwith, Taking Rites Seriously: Law, Politics, and the Reasonableness of Faith (New York: Cambridge University Press, 2015).

72. See, e.g., Allegheny County, 492 U.S. 573.

73. See, e.g., Lambert, Religion in American Politics, 11 (“In this book religion is defined as a set of beliefs in a transcendent God, grounded in an authoritative sacred text, and expressed by a body of believers through the performance of certain rituals and adherence to a specific moral code”).

74. Cf. Abner Greene, “Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?” Harvard Law and Policy Review 9 (2015): 161, 174 (arguing that Ronald Dworkin’s conception of religion “is not a very good interpretation of religion in our constitutional culture” because “religion in America is primarily about theism, about faith in God and what follows from that”).

75. See, e.g., Stephen B. Epstein, “Rethinking the Constitutionality of Ceremonial Deism,” Columbia Law Review 96 (1996): 2083–2174.

76. Allegheny County, 492 U.S. 573.

77. However, the Court found that a Jewish menorah standing next to a Christmas tree beside an entrance to the building had been acceptably secularized.

78. Texas v. Johnson, 491 U.S. 397 (1989).

79. Johnson, 491 U.S. at 418.

80. Johnson, 491 U.S. at 420. For his part, with the assistance of extensive quotations of patriotic poetry, Rehnquist expounded on the “almost mystical reverence” that the flag elicits in many citizens (at 429 [Rehnquist, J., dissenting]). Justice John Paul Stevens arguably acknowledged the sacralizing function as well, albeit indirectly. Stephens argued that the American flag, unlike many other flags and many other symbols of nationhood, is much more than just a symbol, but he had difficulty explaining just how this was so. Destruction of the flag, he said, is offensive to patriotic Americans; this may be true, but the flag is hardly unique in this respect (at 436 [Stevens, J., dissenting]). Stephens’s intuition that the flag is much more than a symbol might plausibly be understood as an inarticulate gesture toward its sacralizing function.

81. Sheldon Nahmod, “The Sacred Flag and the First Amendment,” Indiana Law Journal 66 (1991): 511.

82. Allegheny County, 492 U.S. 573; Trunk, 629 F.3d at 1118; McCreary County, 545 U.S. 844.

83. See, e.g., Aronow, 432 F.2d 242; Gaylor, 74 F.3d 214; Newdow v. Lefevre, 598 F.3d at 640; Newdow v. Peterson, 753 F.3d at 106; O’Hair, 588 F.2d 1144.

84. Van Orden, 545 U.S. 677. Critics (and supporters) found this ruling especially puzzling insofar as on the same day the Court ruled invalid some displays containing the Ten Commandments in some Kentucky courthouses. McCreary County, 545 U.S. 844.

85. Town of Greece, 572 U.S. ___.

86. Elk Grove School Dist., 542 U.S. at 35 (O’Connor, J., concurring).

87. Elk Grove School Dist., 542 U.S. at 33–44 (O’Connor, J., concurring).

88. See, e.g., Douglas Laycock, “Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty,” Harvard Law Review 118 (2004): 235 (observing that “this rationale is unconvincing both to serious nonbelievers and to serious believers”); Steven H. Shiffrin, “The Pluralistic Foundations of the Religion Clauses,” Cornell Law Review 90 (2004): 70–71 (“I am sure that a pledge identifying the United States as subject to divine authority is asserting the existence and authority of the divine”).

89. Caroline Mala Corbin, “Ceremonial Deism and the Reasonable Outsider,” UCLA Law Review 57 (2010): 1589.

90. See, e.g., Allegheny County, 492 U.S. 573 (invalidating Christmas crèche display); Trunk, 629 F.3d at 1118 (finding that a publicly displayed cross, despite its historical context, conveys a message of government endorsement of religion that violates the establishment clause).

91. See, e.g., Elk Grove School Dist., 542 U.S. at 31–33, 40–42, especially the concurring opinions by Justice O’Connor and Chief Justice Rehnquist, defending use of the words “under God” in the Pledge of Allegiance.

92. See Ronald Dworkin, Religion without God (Cambridge, MA: Harvard University Press, 2013), 31–43.

93. See, e.g., Elk Grove School Dist., 542 U.S. 1.

94. Kent Greenawalt, Religion and the Constitution, vol. 2, Establishment and Fairness (Princeton: Princeton University Press, 2008), 95–102; Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2009), 308–16.

95. See, e.g., Allegheny County, 492 U.S. 573 (invalidating a Christmas crèche in a courthouse while upholding a Jewish menorah); but cf. Town of Greece, 572 U.S. ___ (approving city council prayers in which Christian language was mixed with more generic religious language).

96. “The Court and Its Procedures,” Supreme Court of the United States, accessed August 19, 2017, https://www.supremecourt.gov/about/procedures.aspx.

97. Holy Trinity Church, 143 U.S. at 470 (emphasis added).

98. See above, 274–75.

99. Kyle Harper, From Shame to Sin: The Christian Transformation of Sexual Morality in Late Antiquity (Cambridge, MA: Harvard University Press, 2013), 85.

100. Geoffrey R. Stone, Sex and the Constitution (London: Norton, 2017), xxvii.

101. The point is emphasized in Stone, Sex and the Constitution, 4–12.

102. Harper, From Shame to Sin, 67.

103. See above, 121–25.

104. Harper, From Shame to Sin, 139. Hereafter, page references from this work will be given in parentheses in the text.

105. Robert E. Rodes Jr., On Law and Chastity (Durham, NC: Carolina Academic Press, 2006), 9.

106. Rodes, On Law and Chastity, 14.

107. Rodes, On Law and Chastity, 22.

108. Rodes, On Law and Chastity, 20–21. See also Helen M. Alvare, “Religious Freedom versus Sexual Expression: A Guide,” Journal of Law and Religion 30 (2015): 477: “In the United States, before approximately the 1970s, the state took an interest in maintaining the links between sex, marriage, and children via laws restraining even consensual sexual expression; these included laws banning fornication, cohabitation, and adultery. These laws were enforced quite unevenly, if at all, while at the same time, judges did not hesitate to affirm the legitimacy of the state interests underlying them.”

109. Poe v. Ullman, 367 U.S. 497 (1961).

110. John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America, 3rd ed. (Chicago: University of Chicago Press, 2012), 239–42.

111. Rodes, On Law and Chastity, 3.

112. D’Emilio and Freedman, Intimate Matters, 333.

113. D’Emilio and Freedman speak of “sexual revolutions,” in the plural, in describing changes in sexuality over the course of the twentieth century (Intimate Matters, 301). Geoffrey Stone enthusiastically chronicles attitudes of sexual libertinism in eighteenth-century America (Sex and the Constitution, 80–87).

114. D’Emilio and Freedman, Intimate Matters, 327.

115. D’Emilio and Freedman, Intimate Matters, 343.

116. Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), 78.

117. See, e.g., Obergefell, 135 S. Ct. at 2596; Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).

118. Mary Eberstadt, “The First Church of Secularism and Its Sexual Sacraments,” National Review, June 15, 2016, http://www.nationalreview.com/article/436602/sexual-revolution-secular-quasi-religion.

119. Harper, From Shame to Sin, 21.

120. D’Emilio and Freedman, Intimate Matters, 277.

121. See, e.g., Reno v. ACLU, 521 U.S. 844, 885 (1997); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 258 (2002).

122. See, e.g., Nancy Jo Sales, “Tinder and the Dawn of the ‘Dating Apocalypse,’ ” Vanity Fair, September 2015, http://www.vanityfair.com/culture/2015/08/tinder-hook-up-culture-end-of-dating.

123. D’Emilio and Freedman, Intimate Matters, 329. See also Leigh Ann Wheeler, How Sex Became a Civil Liberty (New York: Oxford University Press, 2013), 222 (remarking on the “increasingly sex-saturated public sphere that renders sex anything but private”).

124. These characters were played by, respectively, Kelsey Grammar, David Hyde Pierce, John Mahoney, Peri Gilpin, and Jane Leeves.

125. A more recent and in one sense even starker example is the popular and still running drama Blue Bloods, about a New York police commissioner, Frank Reagan (played by Tom Selleck), and his family. One son, Danny (played by Donnie Wahlberg), is portrayed as being faithful to his wife, but Frank, another unmarried son (Jamie, played by Will Estes), and divorced daughter Erin (played by Bridget Moynahan) have occasional brief sexual relationships. Although the show is fraught with moral challenges and dilemmas, these occasional sexual interactions are not treated as morally problematic (except insofar as, for example, sexual intimacy with one’s police squad partner might create issues in a working relationship). Although sexual relationships are far less common and less prominent as a theme than in Frasier, what makes the absence of moral reflection or concern on the subject striking is that the family in Blue Bloods is portrayed as deeply Catholic and highly traditional: they meet often for family dinners, always begin the meals with prayers, often explicitly addressing Jesus. And yet there is no evident concern about traditional Christian teachings on sexual morality.

126. Ferdinand Mount, Full Circle: How the Classical World Came Back to Us (New York: Simon and Schuster, 2010), 104.

127. Mount, Full Circle, 103. In sum, “the twenty-first century is the century of recreational sex, gourmet sex, sex as lifestyle, sex as fulfilling relationship, anything but sex as sacrament” (112).

128. Mount, Full Circle, 96.

129. See Kevin Cole, “Sex and the Single Malt Girl: How Voluntary Intoxication Affects Consent,” Montana Law Review 78, no. 1 (2017): 1–31.

130. For a lengthy and celebratory history of these developments, see Stone, Sex and the Constitution.

131. Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

132. Eisenstadt v. Baird, 405 U.S. 438 (1972).

133. Roe v. Wade, 410 U.S. 113 (1973).

134. See, e.g., John Hart Ely, “The Wages of Crying Wolf,” Yale Law Journal 82 (1973): 920. See also Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Lawrence: University Press of Kansas, 2015), 54 (“We might think of Justice Blackmun’s opinion in Roe as an innovation . . . —the totally unreasoned judicial opinion”).

135. Casey, 505 U.S. 833.

136. Bowers v. Hardwick, 478 U.S. 186 (1986).

137. Romer v. Evans, 517 U.S. 620 (1996).

138. Lawrence v. Texas, 539 U.S. 558 (2003).

139. Obergefell, 576 U.S. __. Obergefell was strongly foreshadowed in United States v. Windsor, 570 U.S. 744 (2013).

140. For a description of these developments and an insightful analysis of their cultural significance, see Paul Horwitz, “Comment: The Hobby Lobby Moment,” Harvard Law Review 128 (2014): 154.

141. See Horwitz, “The Hobby Lobby Moment,” 172 (asserting that “the acceptability [of contraceptives] is ‘as close to cultural consensus as we can get’ ”). Douglas Laycock observes that “it is unimaginable that any American state would now attempt to ban contraception” and that “the bishops gave up that battle long ago.” Douglas Laycock, “Religious Liberty and the Culture Wars,” University of Illinois Law Review 2014 (2014): 839, 867.

142. D’Emilio and Freedman, Intimate Matters, 242–55, 338.

143. D’Emilio and Freedman, Intimate Matters, 250–51.

144. Griswold, 381 U.S. 479.

145. Eisenstadt, 405 U.S. 438.

146. This position was embraced by the four dissenting justices in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ , 134 S. Ct. 2751 (2014), and also in Justice Anthony Kennedy’s concurring opinion.

147. See Helen Alvaré, “Meanwhile, Outside the Panic Room: Contraception, Hobby Lobby, and Women’s Rights,” Public Discourse, July 10, 2014, http://www.thepublicdiscourse.com/2014/07/13467.

148. Hobby Lobby, 134 S. Ct. at 2763.

149. See Alvaré, “Meanwhile, Outside the Panic Room.”

150. D’Emilio and Freedman, Intimate Matters, 344–61.

151. See, e.g., Sherif Girgis et al., What Is Marriage? A Man and a Woman; A Defense (New York: Encounter Books, 2012).

152. See, e.g., Ryan T. Anderson, Truth Overruled: The Future of Marriage and Religious Freedom (Washington, DC: Regnery, 2015).

153. D’Emilio and Freedman, Intimate Matters, 361.

154. D’Emilio and Freedman, Intimate Matters, 363. See also 387 (“The influence of sexuality on American life has continued to grow. Just as the erotic came to permeate commerce and media earlier in the century, it now has infiltrated national politics as well”).

155. D’Emilio and Freedman, Intimate Matters, 371. See also Erwin Chemerinsky, “Law Review Symposium Keynote Address,” U.C. Davis Law Review 48 (2014): 447–48 (explaining that legal recognition of same-sex marriage had come more quickly than he or others had expected).

156. Wheeler, How Sex Became a Civil Liberty, 3.

157. Stone, Sex and the Constitution, xxvii–xxviii.

158. See, e.g., Mark Tushnet, “Abandoning Defensive Crouch Liberal Constitutionalism,” Balkinization (blog), May 6, 2016, http://balkin.blogspot.com/2016/05/abandoning-defensive-crouch-liberal.html; Cathleen Kaveny, “Bookending a Culture War,” Commonweal, April 19, 2016, https://www.commonwealmagazine.org/bookending-culture-war.

159. D’Emilio and Freedman, Intimate Matters, 388.

160. See, e.g., Kramnick and Moore, The Godless Constitution, 27–45. See also Fea, America Founded as a Christian Nation?, 150 (asserting that “the Constitution was never meant to be a religious document, nor did its framers set out to use the document to establish a Christian nation”).

161. See Kramnick and Moore, The Godless Constitution, 27–45. See also Susan Jacoby, Freethinkers: A History of American Secularism (New York: Metropolitan Books, 2004), 28 (observing that “without downgrading the importance of either the establishment clause or the constitutional ban on religious tests for officeholders, one can make a strong case that the omission of one word—God—played an even more important role in the construction of a secularist foundation for the new government”).

162. See Steven D. Smith, “Our Agnostic Constitution,” NYU Law Review 83 (2008): 120. See also Fea, America Founded as a Christian Nation?, 162 (arguing that “the Constitution does not mention God . . . not because the framers were trying to create a secular nation, but because, as a point of federalism, they believed that religious matters should be left up to the states”).

163. See Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002), 287–334.

164. For an explication of the original meaning and purpose of the First Amendment’s religion clauses, see Smith, The Rise and Decline of American Religious Freedom.

165. Herberg, Protestant-Catholic-Jew, 247.

166. The point is developed in Smith, “Our Agnostic Constitution.”

167. So called after the Supreme Court’s controversial decision in Lochner v. New York, 198 U.S. 45 (1905).

168. The story of the Lochner era is a familiar part of the constitutional narrative learned by all students of law and American history. See, e.g., Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 190–202.

169. Cf. Stone, Sex and the Constitution, 383: “Faced with paralysis in the legislative arena, pro-choice advocates began to think seriously about challenging the constitutionality of anti-abortion statutes in the courts. Initially, this seemed a long shot because, in the words of the New York Times Supreme Court columnist Linda Greenhouse, the idea of a constitutional right of abortion seemed ‘illusory.’ But with legislative change effectively blocked, the courts increasingly seemed the best alternative.”

170. For development of the point, see Smith, Rise and Decline, 117–20.

171. For a succinct description of the relevant history before the recent same-sex marriage decisions, see Daniel O. Conkle, “Three Theories of Substantive Due Process,” North Carolina Law Review 85 (2006): 63, 69–76.

172. Justice Holmes famously described the equal protection clause as “the usual last resort of constitutional arguments.” Buck v. Bell, 274 U.S. 200, 208 (1927).

173. See, e.g., Lawrence, 539 U.S. 558 (O’Connor, J., concurring).

174. See, e.g., Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials, 4th ed. (New York: Aspen, 2000), 1131–1360.

175. See above, 294.

176. See, e.g., Ely, “The Wages of Crying Wolf”; Robert Bork, The Tempting of America: The Political Seduction of America (New York: Simon and Schuster, 1990).

177. This literature is vast. Among leading manifestations, however, are John Hart Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1981); Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press of Harvard University Press, 1986); Bruce Ackerman, We the People, vol. 1, Foundations (Cambridge, MA: Harvard University Press, 1991); Jack M. Balkin, Constitutional Redemption (Cambridge, MA: Harvard University Press, 2011).

178. Stone, Sex and the Constitution, 534, 535.

179. See, e.g., The End of Democracy? The Judicial Usurpation of Politics, ed. Mitchell S. Muncy and Richard John Neuhaus (Dallas: Spence, 1997).

180. See Smith, Rise and Decline, 117–20.