The Danger of “Theocratic Majoritarianism”

Judge Richard Posner and Professor Eric Segall took to the pages of the December 2 New York Times to warn against the threat of “majoritarian theocracy.” Although summoning readers to beware of U.S. Supreme Court justice Antonin Scalia’s religious predilections, one might suggest the authors look in a mirror to ponder, instead, their own. For both Posner and Segall are at least as guilty—in my view, far more so—than Scalia in imposing their own “theocracy” on the American people, albeit with less solicitude for the majoritarian dimension. They just switch the terms to conceal their sleight of hand.

In his brief but challenging 2013 book, The Clash of Civilization or Civil War,[1] Professor Witold Stawrowski contends that the fundamental fault line in the contemporary West lies not between it and Islam, but, rather, within itself. There are two ultimately irreconcilable visions of Western civilization vying with each other to be heirs of Western heritage. Each uses the same terms, e.g., “person,” “rights,” “justice,” “love,” and “dignity,” while investing them with completely antithetical meanings.

“Religion” is a central flashpoint in that confrontation.[2] One side would like to frame the debate as one of “religion” versus “secularity.” Prof. Stawrowski maintains such terms are wrong and misleading: the issue is not “religion” versus “secularism” but “religion” versus “religion.”

In the end, the decision to embrace secularism is as much a faith choice as is embracing a particular religion. Secularism, after all, makes certain assumptions about the person (including what the person can know), society, and the world, out of which flows a certain axiology—a certain set of value judgments.

Furthermore, there is a certain idea or value to which everything else is ordered, and around which all else revolves. That idea or value is our “Absolute,” whether we call it “God,” “Allah,” “Vishnu,” or “personal equality.” That Absolute is embraced by decision—by an act of faith—and subjects all else to it.

In the end, the basis upon which the secularist makes his assumptions about people and the world is as much informed by faith as an adherent to a specific religious faith. So why is the former privileged in defining the lay of the public square, while the latter is practically driven off it?

It is worth recalling that the U.S. Supreme Court itself admitted over fifty years ago that “secular humanism” along with “ethical culture” and “others” are “religions”: see Torcaso v. Watkins, 367 US 488, at 495, note 11.

Posner and Segall excoriate Scalia for suggesting that the First Amendment’s prohibition against an “establishment of religion” does not entail “’the Court’s claim that laws and practices must be neutral not only between different religions, but also between religion and non-religion.’” They especially take vehement exception to the suggestion that religious grounds might affect the homosexual “marriage” debate, asserting that such a Constitutional treatment of religion would stand the First Amendment on its head and make “religious majorities … special wards of the Constitution,” in violation of the Constitutional bar against religious tests for public office.

So many errors in so little space full of such overheated hyperbole!

Stawrowski’s vision suggests one answer: the paradigm of “religion” and “non-religion” is false. There is no such thing as “non-religion,” because everybody who has an Absolute has religion, whether he admits it or not.

Even Judge Posner and Professor Segall. Indeed, I would maintain that both are “majoritarian theocrats,” albeit of a different denomination than Antonin Scalia.

Both Posner and Segall are committed practitioners of a certain form of secular humanism, one that regards their assumptions about man, what he can know, what his Absolute is, and how he should order his life as the only legitimate visions on the public square. To profess their vision is to be in Constitutional bonne foi, to challenge it—as did not just Justice Scalia but all four dissenting judges in Obergefell—is to be in Constitutonal mauvaise foi.

The secular humanism Posner and Segall (and Linda Greenhouse et al.) would impose depends upon a certain priesthood. In contrast to Scalia’s hierarchical Catholicism, the Posner-Segall clerisy consists of majoritarian conciliarism: any five Supreme Court justices can define what must be believed de fide definita in this faith. Once promulgated as an article of faith, it now brooks no heresy. It is infallible and to be applied always and everywhere. Not just subordinate courts but even subsequent Supreme Courts are believed to be bound to apply that majoritarian decision in all future cases, under the rubric of “respect for precedent.” But, you object, what if the article of faith is in error? Indeed, this majoritarian theocracy makes claims for a far greater infallibility than ever did any Roman Pontiff, because under the doctrine of judicial supremacy, the majority practically cannot be in error. Once declared to be precedent, adherence to that article of faith is deemed an essential sine qua non to the Court’s legitimacy[3] and even the “rule of law.”[4] So profound is the transformative effect of decree by the Court’s majoritarian theocracy that the ensuing decisions become practically infallible: only when manifestly unworkable and in error might such decisions be self-overruled (think Plessy v. Ferguson, because it took Congress to fix the travesty of Dred Scott). Indeed, even a conservative jurist like Robert Bork was so committed to the faith of majority decisions that he conceded some wrong decisions might be made right (a secular sanatio in radice?) by their simple persistence.

Catholic theology has, of course, held that right and wrong are categories independent of the will, Divine or otherwise: it was nominalism (especially in its Protestant incarnation) that reduced right and wrong to labels applied by the Divine Will. In the First Constitutional Church of Secular Humanism, however, right and wrong are likewise labels attached by will—the will of a majority of a particular bench deciding a case. They might not call it “right,” but they will call it “a right,” guarded by “equal protection” or “substantive due process,” but the normative function is the same. This is the positive value category, its opposite the negative. We should “do good and avoid evil,” those particular positive and negative values being—to borrow Justine Hughes’ famous line—“whatever the judges say [they are].” So, in a curious blend of axiological Constitutional alchemy, a bare majority of the judicial clerisy can infallibly transform into something positive and even mandated what hitherto had been negative and even prohibited—an elite’s entitlement to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”[5] (and impose it on everyone).

Those of us disinclined to sign up to the Court’s religious litmus test as the price of civil participation are not, as Posner and Segall suggest, seeking a “majoritarian theocracy.” We, instead, intend to say “non possumus” to a majoritarian tyranny of five, who have perverted the supremacy of the Constitution and its division of co-equal branches of government into a judicial supremacy in which the courts arrogate a monopoly on defining a document purporting to be ordained by “we, the people.” We also intend to resist a religion that pretends to be a “non-religion,” which insists that the price of American citizenship as defined by the judicial priesthood is conversion to syncretism: holding to your own faith in the sacristy on Sunday, as long as it yields on Monday to the secular faith in the personnel office, the adoption agency, the bakery, photography studio, or on the health insurance policy. With all due respect, we should stand by Article VI of the Constitution: no one, including a majority of the Supreme Court, can impose a religious test on public civic policy and participation, regardless of how it might want to pretend its theocracy is anything but…

[1] Witold Stawrowski, The Clash of Civilization or Civil War (Kraków: Instytut Tischnera, 2013).

[2] Consider, for example, for the vitriolic pushback against public officials who, in the wake of the December 2 San Bernadino shootings, expressed condolences and prayers for the dead and wounded (see, e.g., this New York Times article and this National Review piece). Clearly, for some, Thomas Mann’s maxim applies: “everything is politics,” and their inclination towards a “politicized life” thereby leads to them making all of life political—and assuming that others do, too. Reducing prayer to the political, however, indicates the gross misunderstanding of critics’ view of both prayer as well as the motivation of those who pray.

[3] Justice Scalia appropriately demolished this point in his dissent in Casey v. Planned Parenthood, 505 US 833 (1992) at 998: “I cannot agree with, indeed I am appalled by, the Court’s suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced—against overruling, no less—by the substantial and continuing public opposition the decision has generated. The Court’s judgment that any other course would ‘subvert the Court’s legitimacy’ must be another consequence of reading the error-filled history book that described the deeply divided country brought together by Roe. In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, 19 How. 393 (1857), an erroneous (and widely opposed) opinion that it did not abandon, rather than by West Coast Hotel Co. v. Parrish, 300 US 379 (1937), which produced the famous “switch in time” from the Court’s erroneous (and widely opposed) constitutional opposition to the social measures of the New Deal.”

[4] Casey v. Planned Parenthood, 505 US 833 (1992) at 854. Undoubtedly, the same argument will be put forward for Obergefell—the subject of particular solicitude by Posner and Segall, who cite with approval Lawrence v. Texas, 539 US 538 (2003), which made Obergefell possible. One should not be so gauche as to point out, however, that deciding Lawrence meant overruling a 17 year old precedent, Bowers v. Hardwick, 478 U.S. 186 (1986).

[5] Casey v. Planned Parenthood, 505 US 833 (1992), at 851.

John M. Grondelski

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John M. Grondelski (Ph.D., Fordham) is former associate dean of the School of Theology, Seton Hall University, South Orange, NJ. All views expressed herein are exclusively his own.

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