Piercing the Veil
October 06, 2004
Some militant secularists, especially militant feminists, have recently argued that the law’s tolerance of religious practices is too broad. Madhavi Sunder sets out the theory quite clearly in her recent Yale Law Journal article “Piercing the Veil.” Several blogs (Cacciaguida, Turnabout, and Legal Fiction) have noted the radical nature of Sunder’s claims and the threat or non-threat they pose to religious liberty, but this approach misses the really interesting parts of Sunder’s argument. She argues, bluntly, that “law has a problem with religion.” And the problem, according to Sunder, is not “religion qua religion,” but rather it is law itself, which is “premised on a centuries-old Enlightenment compromise that justified reason in the public sphere by allowing deference to religious despotism in the private,” thus allowing religion to remain “a sovereign, extralegal jurisdiction in which inequality is not only accepted, but expected.” This compromise creates what Sunder calls “the New Sovereignty,” against which she sets her hope on “the New Enlightenment:” individuals who “seek reason, equality, and liberty not just in the public sphere, but also in the private spheres of religion, culture, and family” and thus seek to “pierce the veil of religious sovereignty.” Sunder’s greatest complaint is that the “fundamentalists and traditionalists” are using an old compromise intended to modernize the world as a bludgeon against the new modernizers: “contemporary fundamentalists are using law to buttress authoritarian and patriarchal claims against the challenges of the New Enlightenment.”
Sunder’s New Enlightenment consists of those who have rejected both the public/private dichotomy of the Old Enlightenment and the private relativism such a split engenders. Instead, they insist on “reason, choice, liberty, and equality within their religious and cultural communities.” They demand not only the “right to religion” but the “right to choice within those confines.” Sunder’s New Enlightenment is, in fact, the ideology of choice pushed to its furthest extreme. Her primary objection is that in the status quo there is no “right to contest cultural or religious norms from within”–no “right to religion or culture on one’s own terms”–no “choice within culture” or religion. “In short,” Sunder concludes, law requires us “to choose between religion and rights.” In response, the New Enlightenment is “demanding an individual right to construct one’s identity, not just without religious and cultural community, but also within it.” (Remember young Haley Waldman’s mother?) Thus, the New Enlightenment is refusing “to choose between religion and rights.”
And so the ideology of choice is brought full circle. When choice and the right to construct one’s own identity is made the very ground of our existence, without reference at all to any external authority, it fills the whole universe, consuming all choices, and finally, consuming choice itself so that even the freedom to choose what we have chosen against must be ours. Sunder’s New Enlightenment is the latest and perhaps most poignant version of the Ouroboros, the Gnostic symbol of self-realization, a serpent devouring its own tail.
But even leaving aside all of the prejudice and pathology inherent in Sunder’s approach to religion, her article is significant in that it suggests a realignment of forces in our cultural civil war, a war that has gone beyond what Pantagruelist Scott Moore has called “the convenient stereotypes” of Left and Right, liberal and conservative. Sunder’s article suggests that groups such as homosexual activists, abortionists, the mass media, mass commercial enterprises, established churches, and political action groups on both the left and right all have a substantially similar vested interest in the status quo of “public” debate and “private” sovereignty. All these groups remain essentially satisfied with Liberalism’s traditional compromises with religion, and they see no reason to halt the parade of affluence over what really just amounts to differences of opinion. On the other side of this suggested realignment are those such as Sunder who are militant ideologists of choice, materialism, and positivism, along with various religionists and particularists who love their “little cultures” more than the traditions of Western Liberalism and who are convinced that the Enlightenment compromise is a devil’s deal which will grant their freedom and deny their particularity all in one stroke. (That is why many of the Christians in this category still dream theocratic or at least “Holy Empire” dreams.) These are those who are willing to fight and die, if necessary, for their particular vision of political and social order.
It remains to be seen which side Christ’s Church will align itself with in this new order, and which side will prevail, but at the present “Christian opinion” is all over the map, with a strong preference for the old compromise being articulated in the usual journals of opinion.
This is Piercing the Veil in The Japery, a part of The New Pantagruel. Previously: The Bull Moose Swings Loose | Next: Liberals Talk Turkey | TrackBack (0) | Comments (0)
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