One might think that these tax credits, which result in payments to “private” or religious schools, amounts to state support for such schools. One might also think that such support is prohibited by a long line of Establishment Clause jurisprudence holding that government cannot fund religious organizations and activities.

In the view of five Catholic justices, one would be wrong. Why? They allege there is a difference between tax credit funding and tax funding. In both law and economics, this is a classic distinction without a difference. Justice Kagan, writing for the four justice minority, noted that giving “tax credit funds” to religious schools is no different from giving “tax funds” to religious schools. Both result in tax dollars going to religious schools.

As Garrett Epps (my former law school classmate) uncontroversially observes over at The Atlantic: “The credit funds decrease the amount of money in the state treasury just as surely as a regular expenditure would; the benefit to religion — and the potential insult to Establishment values — is precisely the same.”

Anyone who believes that these five justices — Roberts, Scalia, Alito, Thomas, and Kennedy — decided the case “on the merits,” in accordance with legal precedent and without being biased by their Catholic faith, is simply naive.

One of the great fictions of American civil religion, and a pillar of American legal education, is the idea that justice is blind and judges decide cases by applying the law to the facts. No one has greater interest in maintaining this fiction than Supreme Court justices — the high priests of this religion.

The Catholic justices knew what result they wanted. They then searched for law and logic that would support their position, no matter how contorted or ridiculous. In ancient Greece, this was called sophistry. In modern America, it is called law.

At least we can give the Catholic blogosphere credit for calling a spade a spade. The happy headline over at The Catholic Knight declares: “Supreme Court Hands Victory to Catholic Schools.” A more accurate headline would be: “Five Catholic Justices Hand Victory to Catholic Schools.”

Postscript: In an unrelated story, Dahlia Lithwick nicely captured the spirit of this post:  “Because we are a romantic people who want to believe in the Tooth Fairy and the Easter Bunny, we also believe that something magical happens to justices and judges when they don the black robes.” Of course nothing magical happens, even if the justices want us to believe otherwise.

This national-security state derived its raison d’être from — and vigorously promoted a belief in — the existence of looming national peril. On one point, most politicians, uniformed military leaders, and so-called defense intellectuals agreed: the dangers facing the United States were omnipresent and unprecedented. In his 1956 book, The Power Elite, C. Wright Mills, a professor of sociology at Columbia, dubbed this perspective “military metaphysics.”

This metaphysic insidiously piggybacks on neurological structures that are evolutionarily ancient.  The amygdala or its equivalent is found in all vertebrate lineages and is over 500 million years old.  With proper sensory inputs, the amygdala generates avoidance behaviors and in humans, fear responses.

In a world filled with predators, fear is unequivocally adaptive.  Too much fear, however, quickly becomes maladaptive and debilitating.  In humans, too much fear — a state of constant alarm or irrational assessment of risk — is known as phobia.

The trick, for anyone interested in sustaining a certain kind of political or religious order, is to generate just enough fear — on a constant basis — to keep everyone in line.  If the fear can be internalized then all the better.  As a process, it brings to mind the twinned notions of habit and hegemony from Of Revelation and Revolution, the 1991 classic by Jean and John Comaroff:

This kind of nonagentive power proliferates outside the realm of institutional politics. What is more, it may not be experienced as power at all, since its effects are rarely wrought by overt compulsion. They are internalized, in their negative guise, as constraints; in their neutral guise, as conventions; and, in their positive guise, as values.

[T]he making of hegemony involves the assertion of control over various modes of symbolic production. That control, however, must be sustained over time and in such a way that it becomes, to all intents and purposes, invisible.

For it is only by repetition that signs and practices cease to be perceived or remarked; that they are so habituated, so deeply inscribed in everyday routine, that they may no longer be seen as forms of control — or seen at all.

Therein lies not only the genius but also the longevity of such metaphysics.  Fear becomes so internalized and habitual it is scarcely noticed, yet is so deeply insinuated in society and mind it generates a kind of discipline that masquerades as virtue.  It is deliciously dialectical that the love of something, whether it be gods or countries, must be rooted in and regulated by fear.

[I]t is pleasing to report that two social scientists, Robert Putnam of Harvard University and David Campbell of the University of Notre Dame, have just written a book that examines a powerful source of American unity. Perhaps unexpectedly, the unifying force they focus on is religion.

America’s religiosity has been extensively documented and should surprise no one. More than eight out of ten Americans say they belong to a religion.

What is a surprise—or should be, when you think about it in the way Messrs Putnam and Campbell have—is that religion in America is not more divisive. They argue in “American Grace” (Simon & Schuster) that religion gives Americans a sort of “civic glue, uniting rather than dividing”.

The unifying impact of religion would not be so puzzling in a country where people were pious but where there was only one dominant religion—Catholic Poland, say. Americans, by contrast, hold intense religious beliefs but belong to many different faiths and denominations. That should in theory produce an explosive combination. So why doesn’t it?

The easy and right answer is this: there is not much religious diversity in the United States.  The vast majority of religious Americans profess a form of Christian faith.  Different denominational preferences within a single faith tradition do not amount to different “religions,” however one defines the term.

Christianity and its closely related cousin, nationalism, are indeed powerful unifying forces in America.  There is no need to posit an “Aunt Susan effect” as an explanation for something (i.e., “American religious diversity”) that does not exist.

Although I find the history and etymology of “kumbaya” (and the song from which it comes) interesting and worthy, it is more than a bit churlish to suggest, as Freedman and others do, that current usage is offensive or racist.  Words have something like a natural history or phylogeny all their own, and the unfolding of this history might be analogized to natural selection: nothing is predetermined and the process is not conscious.

I find it even more churlish to suggest, as does UNC-Chapel Hill professor of anthropology Glenn Hinson, that:

“The song in white hands was never grounded in faith.  Its words were simplistic; its tune was breezy. And it was simplistically dismissed.”

I am all for recognizing excellence, soul, and passion when it comes to music, but this brazen and overly general assertion is a bit much — even if it might be true for some.  “White hands” is not a valid category and indeed is pernicious in its own way.

A roll of the dice takes [players] around the 130 countries where the pope traveled — among them the Italian Alps, which he visited for clandestine skiing trips. As they land at the places John Paul visited, players collect cards with information on them and the messages he took there.

If the manufacturer makes an English version, I’ll have to get one and invite my Catholic friends over for a pontifical board game party, no betting allowed.

On the other hand, Poles are voting for politicians we can believe in.  As The Economist reports, this pop starlet candidate for office touts herself as “beautiful, independent and competent.”  She probably likes board games that come with messages:

“God’s words, the concept of godly government, are woven into the warp and woof of the fabric of our nation and this Constitution. It’s rightly called the Miracle in Philadelphia.”

Mr. Manship’s own words, in turn, get at the essence of the Tea Party movement, and in particular its chosen role as protector of the Constitution. Rather than viewing the Tea Party as a political phenomenon — rather than wondering if it is populist or Republican or reactionary — one might better understand it through the prism of religion.

Seen through such a frame, the Constitution is the Tea Party’s bible, and that holy book is embraced as an inerrant text.

Those inclined toward biblical literalism are also inclined toward constitutional literalism, which is never a good mixture when combined with the usual ignorance of drafting history and interpretive skills.  Where is Stanley Fish when we need him?

The parties hereto shall not be responsible for failure to perform hereunder due to force majeure, which shall include, but not be limited to, fires, floods, pestilence, earthquakes, riots, strikes, labor disputes, freight embargoes, or transportation delays, shortage of labor, inability to secure fuel, materials, supplies, equipment, or power on account of shortages thereof, or any other cause, all of which shall be beyond the reasonable control of such part.

As Graeme Wood reports for the Atlantic, this concept is completely foreign to many Africans, where nothing happens by chance or act of God:

The classic study of witchcraft in Africa occurred among the Azande, who inhabit the eastern edge of the Central African Republic. The anthropologist Edward E. Evans-Pritchard found that the Azande attributed a staggering range of misfortunes—infected toes, collapsed granary roofs, even bad weather—to meddling by witches.

Nothing happened by chance, only as an effect of spell-casting by a wicked interloper. That sentiment remains widespread among Central Africans, who demand that the law reflect the influence of witchcraft as they understand it.

Although Wood’s piece on the law of witchcraft in the Central African Republic is short, it is packed full of observations simply begging for further investigation.  There is so much going on beneath the surface that it is difficult to know where to begin.

Why is there such enormous pressure to confess in witchcraft cases?  Why are there so many cases to begin with?  Why are most defendants from the lower classes?  How does the law of witchcraft ease social tensions?

These questions aside, there is the vexing matter of proof:

“The problem is that in a witchcraft case, there is usually no evidence,” said Bartolomé Goroth, a lawyer in Bangui, who recently defended (unsuccessfully) a coven of Pygmies who had been accused of murder-by-witchcraft in Mbaiki. Goroth said the trials generally ended with an admission of guilt by an accused witch in exchange for a modest sentence.

I asked how one determined guilt in cases where the alleged witches denied the charges. “The judge will look at them and see if they act like witches,” Goroth said, specifying that “acting like a witch” entailed behaving “strangely” or “nervously” in court. His principal advice to clients, he said, was to act normally and refrain from casting any spells in the courtroom.

This procedure has its own strange parallels in American law, and attorneys provide similar kinds of assistance, though it is usually couched in different terms.  More on that some other day.

They are gathered to learn about America and the Constitution from Arizona judge Lester Pearce, but the “secret” history being taught is incredibly odd:

[W]e have to learn the basic truth about the Constitution: God wrote it. It comes directly from the government instituted by Moses when he led the Children of Israel out of Egypt. That system was re-instituted in England around 450 A.D. by the Anglo-Saxon rulers Hengist and Horsa. The Founding Fathers, led by Thomas Jefferson, copied the Constitution directly from the “ancient constitution” of the Anglo-Saxons.

At this point a faint alarm bell should be ringing….But the louder alarm should come from maps and displays in the materials that suggest, without quite saying, that the Anglo-Saxons were in fact the Ten Lost Tribes of Israel. On page 20 of our workbook, a map shows an arrow marked “Northern Tribes of Israel,” running from Palestine to the Caucasus region.

That arrow stops in 721 B.C.; another arrow begins at the same place at the same time: “Migration of Celts, Angli, Sacki, etc.” It stretches to Northern Europe and then to England. NCCS Founder W. Cleon Skousen’s big textbook, The Making of America, says that “many have thought the Yinglings, or Anglo-Saxons, included a branch of the ancient Israelites because they came from the territory of the Black Sea . . . and because they preserved the same unique institutes of government as those which were given to the Israelites at Mount Sinai. But whether related or not, there is certainly irrefutable evidence of a cross-fertilization of laws and cultural values between these two peoples.”

Lurking behind these words is the idea that the Constitution is not only a religious document, but a tribal one–written by one kind of people, white Anglo-Saxons, and enshrining their superiority. The Constitution is “ours”; immigrants, non-Christians, Jews, Presidents with funny names are here in “our” country by “our” sufferance, and the time has come to take “our” country back. None of this is quite said; but it hangs in the air. “The divisions are going to become greater and greater,” Lester Pearce warns the students at Our Savior’s Way.

This is the best argument I have yet seen for required anthropology courses at the high school and college level.  Garrett must have been squirming throughout the hours long lesson, with his own alarm bells ringing at full tilt.

The first, by Frank Hornig and Michael Sontheimer, discusses the first ever Hitler exhibition at the German History Museum in Berlin.  As one might imagine, the curators had to approach the subject delicately and spent six years working on the presentation.  Why such concern?  Hitler was more than a politician — he deftly combined cultural eschatology with salvation, deliberately employing religious techniques:

Typifying the entire exhibition is an essay by Ian Kershaw, the British biographer of Hitler, who describes Hitler supporters’ quasi-religious relationship to their messiah. “It’s a miracle of our times that you have found me,” the dictator declared to 140,000 excited supporters in Nuremberg in 1936, “that you have found me among so many millions! And that I have found you, that is Germany’s good fortune!”

Kershaw takes a sentence uttered by a Nazi state secretary — that every German should “work toward the Führer to fulfill his goals” — as a good explanation of the inner logic of the Nazi dictatorship and of the crimes committed by a population that sometimes acted on its own initiative.

The German History Museum exhibition includes evidence supporting this thesis. There is a tapestry, for example, embroidered by members of two women’s groups in the town of Rotenburg an der Fulda. It shows Hitler Youth, SA and League of German Girls formations arranged in the shape of a cross, marching toward a church. The embroiderers further embellished the work with the text of the Lord’s Prayer in half cross-stitch.

Here we have a splendid example of the ways in which nationalism amounts to what we might call civil religion.  In the case of National Socialism and much modern nationalism, it might be better to call it uncivil religion.

My German friends would be the first to say, and have often said, that is all in the past and the new generation has moved on.  Apparently not.  In the second article, by Ole Reissmann, a survey of 2,500 Germans reveals that far right attitudes are widespread and on the rise.  Jews, while still suspect, have taken second seat to Muslims:

For the first time, the pollsters asked whether the practice of Islam should be significantly restricted in Germany. A total of 58.4 percent of respondents said that it should be, even though such a restriction would violate Germany’s constitution, which guarantees freedom of religion.

What is particularly pertinent is that 55.5 percent of respondents who tended to otherwise reject right-wing extremist statements agreed with the statement on the practice of Islam. The study’s authors characterized this as a “modern racism,” which is based on cultural differences rather than on supposed genetic differences.

Some 17.2 percent of respondents agreed with the statement: “Even today, Jews have too much influence.”

The survey covered a number of other topics which are indicative of what the researchers call a “unified right-wing world view” (Weltanschauung), and the results are disturbing.  Before Americans and others begin clucking with schadenfreude, it might be best to look in the mirror deeply.

Indeed, there is something infantile in the belief of the constitution-worshippers that the complex political arguments of today can be settled by simple fidelity to a document written in the 18th century. Michael Klarman of the Harvard Law School has a label for this urge to seek revealed truth in the sacred texts. He calls it “constitutional idolatry”. The[se are] the words of men, not of gods.

When history is turned into scripture and men into deities, truth is the victim. The framers were giants, visionaries and polymaths. But they were also aristocrats, creatures of their time fearful of what they considered the excessive democracy taking hold in the states in the 1780s. They did not believe that poor men, or any women, let alone slaves, should have the vote.

This civil religion is taken for granted as a manifestation of natural law, always a sure sign that someone’s interests are being served and those interests have been mystified or hidden behind empty slogans such as “democracy, patriotism, and freedom.”