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“Confronting the Challenge of Secularism” Madeleine to Speak at the Notre Dame Center for Ethics and Culture

August 11th, 2011 by Matt

The Notre Dame Center for Ethics and CultureNot too long ago I wrote a post entitled We’re Going to San Francisco! In it I announced that in November 2011 Madeleine and I will jointly be giving a paper to the Society of Biblical Literature Annual Meeting, and that I will be giving a paper to the Evangelical Philosophical Association Annual Meeting and also to the Evangelical Philosophical Association’s Annual Apologetics Conference. Well, now we are also going to South Bend, Indiana.

The Notre Dame Center for Ethics and Culture recently advertised a call for papers for its 2011 Flagship Fall Conference, “Radical Emancipation:  Confronting the Challenge of Secularism.” The stated aim of the conference is:

“… to bring together a large number of respected scholars representing all the main academic fields, from Catholic, Christian, and secular institutions, to engage in a spirited discussion of this theme from the perspectives of philosophy, theology and religious studies, law, history, the social sciences, literature and the arts, as well as other fields of intellectual inquiry and endeavor.”

Given that the conference will be held only a few days before the San Francisco cluster of conferences, given that both Madeleine and I work in religion in public life from within our separate disciplines of philosophy of law and analytic theology and both of us draw from the writings of Notre Dame scholars, we decided to both put in papers. It seems that a lot of other people had the same idea as an announcement appeared on the website “Record number of conference abstracts submitted!” This is not surprising given the reputation and calibre of the Notre Dame Center for Ethics and Culture so when we saw this we thought neither of us stood a chance.

So, you can imagine our delight, and how proud I was of my wife, when she received the following email notification yesterday,

“I am pleased to accept your paper proposal for presentation at the conference to be held at the University of Notre Dame from November 10-12, 2011. Congratulations! … This year, we turned down an unprecedented number of worthy paper proposals: well over 200 individuals submitted abstracts for consideration.”

My paper was not successful but I have been invited to chair a session 🙂

Madeleine wrote a very good abstract:

“No Privileges, No Penalties” and the De-Privileging of Secularism

Madeleine Flannagan – University of Auckland, New Zealand

The dominant Establishment Clause jurisprudence reflects a separationist reading of the First Amendment that advances and protects the hegemony of secular perspectives in public life. Each test, Lemon, Endorsement and Coercion, requires the State to place a restraint on the exercise of religion in public life that effectively privatizes religion and contributes to the radical emancipation of man from God.[1]

I will argue that the requirement of public conformity to secular perspectives exceeds the traditional understanding of separation of church and state by privileging secular perspectives over religious ones. A clear asymmetry in the way religious beliefs are treated by the State is visible in the requirement that religious believers bracket beliefs they hold as true, important and relevant when they participate in public life while secular citizens are free to utilize the beliefs central to their perspective.

Vincent Phillip Muñoz has argued for a move away from Separationist jurisprudence and towards a test found in the writings of Founding Father James Madison, a “no privileges, no penalties” test.[2] I will argue that a “no privileges, no penalties” test could uphold freedom of religion and separation of church and state by permitting religion to have a place in public life as long as those who engage in public religious conduct do not gain a privilege for doing so and those who do not wish to participate are both free to opt out and are not penalized for doing so. The adoption of a “no privileges, no penalties” test would ensure that those seeking to bring balance to our secularized culture would not be restrained by the State from doing so.


[1] The Lemon Test insists that public policy have a valid secular purpose; that a non-religious rationale be offered for all state actions. The Endorsement Test prohibits the state from “endorsing” religion over irreligion. The Coercion Test provides that the state must not coerce religious practice; not only must it not be required, but in Lee v Weisman the application was shifted to what Justice Scalia, in his dissent, termed a “test of psychological coercion”. The Supreme Court held that being one of few (or the only one) to opt out of a religious practice in a public setting is a form of state coercion by peer pressure. (Notably it did not hold that the same is true in reverse.)

[2] Vincent Phillip Muñoz documents in God and the Founders: Madison, Washington and Jefferson (Cambridge University Press, Ney York, 2009) 33  that when Madison was editing the religious freedom amendment to Virginia’s Declaration of Rights, Madison proposed the following revision: “That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not violence or compulsion, all men are equally entitled to the full and free exercise of it accord[in]g to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities …” [Emphasis mine]

If you would like to make a donation to assist Madeleine and I in getting to the US for all of the above conferences this November please visit our “Support page” or see our “Donate” button in the side-bar.

If you would like to book either of us to speak whilst we are in the US please let us know asap as we will be purchasing flight tickets very shortly.

Tags:   · · · · · 13 Comments

13 responses so far ↓

  • I was thinking of going as well. Should we catch up?

  • I’m a little unclear on what the effects might be if we replaced our current jurisprudence with the “no privileges, no penalties” policy.

    To help me understand better, are there any specific real world cases where you see this policy making a significant difference (e.g. public schools teaching creationism or intelligent design, prayers led by government officials during events, etc)?

    In other words, what’s a specific example where you feel stifled, but would otherwise be free under the proposed policy?

  • Consider this example:

    The board of a state school, in conjunction with discussions with parents, decides they want to have a line in the school song that refers to God: “we trust in God”. This song is to be sung at school assemblies. They decide that they will make it optional for students to sing along, students can decide for themselves whether they just drop that line, substitute the line to “we trust in ourselves” or just not sing any of the song. A school newsletter goes out informing parents of the lyrics of the song and explaining the opt out provision. There is no ripple from parents, not a single complaint.

    Then a member of the local secular humanist society stops by for a visit with his friend who has a child in the school. He sees the newsletter on the coffee table. He tries to stir up his friend who just says “why make waves, it is just a song, my daughter does not have to sing it.” He then takes the newsletter away with him and goes back to his organisation who hire a lawyer. A court case occurs and the school is held to be in violation of the Lemon Test because it did not have a valid secular purpose for adding the line to the song; the Endorsement Test because it has endorsed religion over irreligion and the Coercion Test because when everyone else is singing at assembly the student who wants to opt out might feel that she cannot. The court observes in its judgment that the school should change the lyrics to “we trust in ourselves.”

    Under “no privileges, no penalties” the school would have won the court case. No student was penalised for not singing the line, no student gained a benefit for singing it. Had the school arranged the lyrics so that the more humanist lyric was the official one and the religious option was the optional lyric that too would be fine. It gives schools and the families within them the freedom to set things up how they want them provided no one gains an unfair advantage or penalty.

  • I can’t really find fault with most of that, other than a few potential slippery slope scenarios, though I’m not sure how likely any of them would be.

    Do you think this would have any implications for creationism/intelligent design in public school science curriculum?

  • […] Flannigan, a kiwi lawyer, suggests that the current valuation of separation is an example of state over reach: I will argue that the requirement of public conformity to secular perspectives exceeds the […]

  • […] they shouldn’t. Despite some attempts to equate the words with atheism and oppose them to religion they really don’t mean either of these. Unfortunately, though, some people insist on using […]

  • […] they shouldn’t. Despite some attempts to equate the words with atheism and oppose them to religion they really don’t mean either of these. Unfortunately, though, some people insist on using […]

  • […] they shouldn’t. Despite some attempts to equate the words with atheism and oppose them to religion they really don’t mean either of these. Unfortunately, though, some people insist on using […]

  • Hi Madeleine,
    Was your choice of the title ‘“No Privileges, No Penalties” and the De-Privileging of Secularism’ deliberately ambiguous? I think it’s a great choice of words to arouse the interest of the secular watchdogs. I mean if they thought they were being “de-privileged” they might be more inclined to pay it the attention it deserves. This debate sorely needs addressing in New Zealand as well. Anyway so sorry that it didn’t happen this time.

    The idea of the separation of Church and state was a decidedly Christian idea. James Madison (1751-1836), raised in a culture steeped in Christian principles being “one of the most important modern proponents of the separation of church and state”, politician, political philosopher, fourth president of the United States and considered one of the Founding Fathers of the same- is recognized as the “Father of the Constitution” being its principal author. He alluded to “The genius and courage of Luther” (16th century Christian reformer) in his efforts to separate Church and state, in turn Luther reiterated the ideas of Augustine a 3rd century Christian who was mindful of Christ’s (c5 BC/BCE – c. 30 AD/CE) edict “Render to Caesar the things that are Caesar’s, and to God the things that are God’s.” These recognized that questions of conscience such as what beliefs a person subscribes to cannot be enforced by legislation but must be left to individual conscience.

    Wouldn’t it be true to say that Christian belief of one form or another was so woven into early America that it was hardly envisioned by these framers of the Constitution that there would come a great body of non-believers whose aim was actually to de-privilege religion? People like Madison were more concerned with keeping a balance of power so that people of all manner of Christian beliefs were not either unduly privileged neither unduly penalized. If we see ”secular naturalism” as a belief system then there would be a lot of traction to the idea that its influence was all out of proportion to it’s influence in American society. It was by these checks and balances that the Founding Fathers sought to protect the freedoms which are so unlike most of the rest of the world.

    What willful ignorance of history when Richard Rorty said, “we shall not be able to keep a democratic political community going unless the religious believers remain willing to trade privatization for a guarantee of religious liberty.” As if democratic society was purely the result of secular thinking! The often used phrase “life liberty and the pursuit of happiness” is commonly accorded to John Locke who at the very least had a thoroughly Christian upbringing. I get so sick of these revisionists who want to deny the influence of Christianity in the world.

  • Hi Kerry,

    I wonder at the relevance of pointing out the possible religious leanings in the mind of the man who so benevolently gave us separation of church and state. Are you trying to hint that Christianity gave us this gift and that you think you’ll take it back again if we don’t play by your rules?

    It’s not revisionist to deny the effect of Christianity on the modern world, it’s just being aware of the present reality. You can re-live the golden past of your faith as much as you want but please do not confuse it with where we are now and where we are going. Yes, religion played a major role in the formation of modern day society but it really lost relevance to society some time ago and these days faith is an eccentricity akin to being into the Grateful Dead.

    Don’t get me wrong, I have no problem with you doing whatever you do in your place of worship or bedroom or whatever [a tip though: it gets ugly when you get them confused, k?] but I do have a problem with you trying to influence people, society and law. As a religious person there is a lot you can take credit for, most of it you probably wouldn’t want to, but a functioning, inclusive and free society is not one of them. The arbitrary social tenets of Christianity are divisive, inflammatory and frankly no way to run a country.

    I know how hypocritical it is for me to accuse someone of being inflammatory right now when I am posting this on a Christian site but I do so out of disappointment. You see I’ve been enjoying a satirical spin on the “Dawkins Delusion” concept, in which a fictional expert explains his theory that Richard Dawkins does not exist and denounces the widely held belief that he does exist as delusion. This sketch concept has apparently been rehashed by various people over the last few years and I still find it humorous but I was surprised when I found it on this, a Christian site. I mean, surely you must see that it is not so much a parody of Dawkins as it is a parody of the attempts of religious people to discredit Dawkins? But upon further reflection I kicked myself, I mean seriously – how can I expect people who believe in a magical zombie jew or other supernatural being to think something through?

    So I continued to browse this, the site in question, and came across your comments and implicit assertions that today’s society is a gift from God and that if we do not continue to make our weekly sacrifices at his altar he may take his ball and go home and we’ll be left standing in the street with a cricket bat, some wickets and worried expressions all round. Hey, for a such a besieged belief system I can understand why you’d be a little defensive, although why you would want us lowly heathens to join in your insanity boggles my mind, I guess you really are that gracious. But meanwhile, back in reality, the world has woken up to the absurdity and the complete lack of necessity for religion and is moving on. I suggest you consider this viewpoint, ideally before one of your children admits to being homosexual or some other crisis of conscience – it’s slightly more genuine if you bother to put some thought into the matter before life forces your hand, and frankly it’s a good habit to get into.

    So yes, I have come onto your turf to start this fight because I am so sick of fighting religion on mine – Christianity in particular has never asked permission before getting in my face. I wonder if this comment will be deleted, censorship is a very Christian thing after all. Prove me wrong, let this comment stay on this page, it’s a good first step towards your new life.

  • Excellent advice from Julian Florance. he is obviously well read, thoughtful and clear thinking. Possibly the commonest complaint of Christians from non Christians is their capacity to park their brains at the door of their church, and yet since I was a tot that seemed to be the only way a message would reach me. Can you be a complex, intellectual thinking Christian and not lose your simple love and faith in Jesus? Well I would back him, but perhaps Christians should look at the root of their current system of delivering the word, they will notice it is very US oriented, which of course began with black slaves and black Africans who barely spoke English. Perhaps we are now ready for mature messages, complex thoughts and more active intellectual discussion. I’m in a Bible Study Group which has that – it’s great. Oh and a word for Jules, when you pray, its much better than meditation, human discussion and thinking by yourself, there is a two way conversation going on, and that’s because there is a real God. Hard to understand till you experience it, and it just cannot be intellectualised. It just is.

  • Barbara,

    I cannot see how your comment pertains to mine, I suspect that you believe that merely announcing your faith is a valid statement in any conversation because it always seems to get a response, relevance be damned. I am talking about religion informing government policy, not about the two-way talky time you have with your invisible friend.

    Just in case anybody else is confused about my argument I will now clarify it:

    Separation of Church and State is not just a good idea, it is a necessary part of modern civilisation. Not only is religion often arbitrary in it’s value statements, often declaring insane punishments for ridiculous “sins” without even bothering the justify the pain caused, but many religions conflict with each other, often damning each other to eternal suffering for the sole crime of believing something else.

    This is not a value system I will abide by, and nor should anyone else be forced to. If you choose to then I’m sorry for the disregard you hold for yourself and frankly I think you’re worthy of better, but that is your choice. If you think that religion should have a stronger role in government then consider this: what if it was not your religion that was given that role? Shall we adopt Islamic Shariah Law? How would you feel about that?

    Maybe it’s not a bad idea: we’ll rotate the dominant state religion on a weekly basis. This weeks laws will be influenced by Buddhism. Next week is Paganism and in two weeks we’ll kick off the weekend with Satanic Saturday, launching the nation into a weeklong orgy of sex, sodomy and shameless self-gratification.

    No, you wouldn’t like that, would you? Nobody would, but I bet it would open your eyes to the subjective nature of your belief system pretty quickly.

    My point is that secular government is the only form of government that can rule in a fair manner without prejudice. It’s there to protect your interests as well as mine, no matter what you believe. Don’t forget it, and don’t shoot yourself in the foot by trying to subvert it.

  • Julian Florance says:I wonder at the relevance of pointing out the possible religious leanings in the mind of the man who so benevolently gave us separation of church and state.

    Are you saying that what a person believes has no bearing on their actions?

    Are you trying to hint that Christianity gave us this gift and that you think you’ll take it back again if we don’t play by your rules?

    No I’m not hinting- I am saying that history has proven the value of a Judeo-Christian worldview in and through the freedoms that U.S. citizens have enjoyed as a result of the founding fathers sense of values, their ethical system, their God centered worldview and the way they sought to enshrine those values in perpetuity. It is only through an appreciation of human dignity, our equality and the value of conscience that these God minded founding fathers realized that “forcing” religion on people is not the way of freedom. And I am equally sure they (if the occasion had arisen in their lifetimes) would have objected equally as strongly to anyone who wanted to foist secularism on the religious public through legislation.

    It’s not revisionist to deny the effect of Christianity on the modern world, it’s just being aware of the present reality.

    Being truly aware of the present reality is to acknowledge the forces in the past that shaped our present reality, in as much as you deny the Godly influence of the founding fathers you deny the present reality and are more prone to losing those freedoms that are almost daily being eroded. While loudly proclaiming your freedom from religion the forces of secularism are binding you to a life that will be ultimately less than what it means to be human. Atheistic assumptions always tend to demean humanity and freedom in the long run and lead to nihilism.

    To believe your own position is without elements of “faith” is to lose relevance with reality.
    It astounds me to find people who still think “faith is an eccentricity”. People, who are aware, acknowledge that “faith” plays a part in every worldview, secular naturalism included. They just don’t like to label it “faith” because of the many negative connotations it has thanks to a secular misrepresentation of it. Many people appeal to rationalism, the scientific worldview etc without the slightest clue that there are basic, fundamental assumptions or presuppositions that equate to faith as much in this view as any other. They get labeled “first principles” or such like when all the time they are no more than articles of faith. All this nonsense about the irrelevance of faith only shows the ignorance of the fundamentals of that persons own worldview.

    I do have a problem with you trying to influence people, society and law. As a religious person there is a lot you can take credit for, most of it you probably wouldn’t want to, but a functioning, inclusive and free society is not one of them. The arbitrary social tenets of Christianity are divisive, inflammatory and frankly no way to run a country.

    Is that because you feel religious people don’t have a handle on reality? Well you have already admitted the influence the theistic worldview has had on the founding of the U.S. Don’t you also acknowledge the almost unique quality and freedom that U.S. citizens have enjoyed for many generations as a result of that influence? Why suddenly (in your view) are religious people obscurantists and not fit to influence society anymore? Why should we practice our beliefs in private without letting them influence politics and public policy? Do you suddenly drop your atheistic influence when you enter public debate? I think not. Would you rather an atheist state? There have been plenty of them in the last 100 years, and it’s no accident that they have been the bloodiest in all history.

    Today there is more freedom to celebrate Christmas for instance, in Tiananmen Square in Beijing than in U.S.A- and you think that’s healthy for America???

    how can I expect people who believe in a magical zombie jew or other supernatural being to think something through?

    The interesting thing here is that more magical thinking is done by secular naturalists than most Christians I know. To say that Christians generally don’t think things through displays woeful ignorance.

    Hey, for a such a besieged belief system I can understand why you’d be a little defensive,

    Any worldview worth living is worth defending but most atheists I read don’t get very serious with argument but use a lot of name calling and mockery.

    back in reality, the world has woken up to the absurdity and the complete lack of necessity for religion and is moving on.

    That’s right moving on, on to bigger and better things eh! Like a 15 year old strangling a kid to see what it felt like, students killing dozens of fellow students because they felt ostracized, untold unborn children ripped out of the womb, a banking fraternity that learned relativism in their secular universities and found that the same ethics could be applied in their fiscal strategies causing untold misery for millions around the world and giving themselves bonuses on the success of the bailout schemes, oh yes moving on is right.

    I suggest you consider this viewpoint, ideally before one of your children admits to being homosexual or some other crisis of conscience I think this comment is the saddest piece of work, do you think Christians are immune, insensitive or just totally insulated from reality?

    Why would you associate being a homosexual with a crisis of conscience? The only taboos today are calling something taboo and religion in general and Christianity in particular. In 1960 Professor Hobart Mowrer, president of the American Psychological Association said:

    “For several decades we psychologists looked upon the whole matter of sin and moral accountability as a great incubus and acclaimed our liberation from it as epoch making. But at length we have discovered that to be free in this sense, that is, to have the excuse of being sick rather than sinful, is to court the danger of also becoming lost. This danger is, I believe, betokened by the widespread interest in existentialism, which we are presently witnessing, In becoming amoral, ethically neutral and free, we have cut the very roots of our being, lost our deepest sense of selfhood and identity and with neurotics, themselves, we find ourselves asking, “Who am I, what is my deepest destiny, what does living mean?”

    Mowrer then quotes Anna Russell in a psychiatric folk song:

    At three I had a feeling of
    Ambivalence towards my brothers,
    And so it follows naturally
    I poisoned all my lovers.
    But now I’m happy I have learned
    The lesson this has taught,
    That everything I do that’s wrong
    Is someone else’s fault.

    (Can Man Live Without God, Ravi Zacharias)

    One can only imagine what Mowrer would say today.

    I rather think you have shot yourself in the foot, I have no problem at all with a secular government so long as the “no privileges, no penalties” idea is applied equitably to people of any belief system.