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ENVIRONMENTAL RELIGION AND CHURCH AND STATE
Robert H. Nelson*
Environmentalism took shape in the United States in the 1960s following Rachel
Carson’s Silent Spring in 1962; the Congressional enactment in 1964 of the Wilderness Act; the
Santa Barbara oil spill in 1969; and other environmentally influential events of the decade. The
first Earth Day was celebrated on April 22, 1970. It was only a year later in 1971 that the
theologian Richard Neuhaus was already explaining that this new American environmentalism
was really a religion.1 Linda Graber in 1976 wrote that environmentalism today provides “the
most completely articulated version of the ‘correct’ relationship of man and nature,” a subject of
ancient religious concern, and that wilderness areas served as a “contemporary form of a sacred
space, valued as a symbol of geopiety and as a focus for religious feeling.”2 In 1986, Alston
Chase published Playing God in Yellowstone in which he described the wildlife management
policies being followed by the National Park Service in Yellowstone National Park as controlled
by a set of environmental religious convictions.3
In the 1980s I was working in the Office of the Secretary of the Department of the
Interior where I could observe environmental policy debates at first hand. The clashes between
environmentalists and their opponents (many of them economists), as I increasingly concluded,
amounted to a new form of religious warfare – a perspective that I eventually developed in
writings from the early 1990s onwards.4 By the 1990s, environmentalists themselves as well
were increasingly characterizing environmentalism in religious terms. In 1992, Steven C.
Rockefeller and John C. Elder edited a book collection, Spirit and Nature: Why the Environment
is a Religious Issue. Then Senator Al Gore in 1992 declared in Earth in the Balance that “the
* Paper prepared for presentation to the annual meeting of the Association for the Study of Religion, Economics and Culture, Arlington, Virginia, April 7-10, 2011.
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froth and frenzy of industrial civilization mask our deep loneliness for the communion with the
world that can lift our spirits and fill our senses with the richness and immediacy of life itself.”
Answers to such matters lie in the domain of religion; or, as Gore put it, “the more deeply I
search for the roots of the global environmental crisis, the more I am convinced that it is an outer
manifestation of an inner crisis that is, for lack of a better word, spiritual.”5 Many other
environmental writings since then have similarly explained that only a religious reformation in
America could offer lasting improvements in the human relationship with nature.6
To characterize environmentalism as a religion therefore is not at all new. What is new is
that this recognition is now reaching further and further into mainstream American culture. The
late best selling novelist Michael Crichton, for example, described environmentalism in a 2003
speech as the “religion of urban atheists,” shortly thereafter authoring a novel, State of Fear,
built around related themes.7 Newspaper columnists, op ed writers and others in the mainstream
media today increasingly characterize environmentalism in religious terms -- although it is
admittedly still a slow trickle, to my knowledge, The Washington Post or The New York Times
have never described environmentalism as a form of religion in a straight news story.
A recent illustration is a 2010 article on “Environmentalism as Religion” by Joel
Garreau.8 The article is significant on several grounds. First, Garreau is a leading
journalist/commentator of our times, a highly regarded staff writer for many years at The
Washington Post who has written three important books.9 Garreau has not been an active
participant in past environmental debates; his recent article is thus offered in the spirit of
journalistic accuracy. Finally, Garreau is explicit that he is not using the term “religion” in a
metaphorical sense alone, as many people might suspect. Rather, he means it literally, writing
that:
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William James, the pioneering psychologist and philosopher, defined religion as a belief that the world has an unseen order, coupled with the desire to live in harmony with that order. In his 1902 book The Varieties of Religious Experience, James pointed to the value of a community of shared beliefs and values. He also appreciated the individual quest for spirituality – a search for meaning through encounters with the world. More recently, the late analytical philosopher William P. Alston outlined in The Encyclopedia of Philosophy what he considered the essential characteristics of religions. They included a distinction between sacred and profane objects; a moral code; feelings of awe, mystery and guilt; adoration in the presence of sacred objects and during rituals; a worldview that includes a notion of where the individual fits; and a cohesive social group of the likeminded. Environmentalism lines up pretty readily with both of these accounts of religion. As climate change literally transforms the heavens above us, faith-based environmentalism increasingly sports saints, sins, prophets, predictions, heretics, sacraments and rituals.10
Garreau interprets the rise of environmental religion as a response to a wide “rejection of
traditional religion [in our time that] … has created a vacuum unlikely to go unfilled; human
nature seems to demand a search for order and meaning.”11 For much of the twentieth century,
those who left traditional religion behind often turned instead to the worship of economic
progress as the path of a secular salvation.12 But Marxist, socialist and other forms of faith in
economic progress faded as well in the last few decades of the twentieth century. As Garreau
wrote, environmentalism has arisen as a more recent religious contender, offering “a faith” that
attracts many devout followers “whose worldview and lifestyle have been utterly shaped by it.”
The processes of secularization are most advanced in former Protestant countries and in such
“parts of northern Europe, this new [environmental] faith is now the mainstream” religion of
countries such as Denmark and Sweden. Garreau quotes approvingly the recent conclusion of a
leading physicist of the twentieth century, Freeman Dyson, that environmentalism has become “a
worldwide secular religion” that has “replaced socialism as the leading secular religion” of our
time. The tenets of this new environmental religion, Dyson added, “are being taught to children
in kindergartens, schools, and colleges all over the world.”13
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An earlier important contributor to the growing understanding that environmentalism is
indeed a religion is the environmental historian William Cronon. Cronon authored the Foreword
to the 2004 book, Faith in Nature; Environmentalism as a Religious Quest in which fellow
historian Thomas Dunlap comprehensively documents the religious character of the American
environmental movement. Cronon – the president elect in 2011 of the American Historical
Association -- was recently described by Paul Krugman of the New York Times as having “a
secure reputation as a towering figure in his field. His magnificent Nature’s Metropolis: Chicago
and the Great West is the best work of economic and business history I’ve ever read – and I read
a lot of that kind of thing.”14 As Cronon wrote in 2004, environmentalism shares “certain
common characteristics with the human belief systems and institutions that we typically label
with the word religion.” Indeed, the parallels were so striking, extending to so many features
traditionally associated with religion, that Cronon in the end found literally the presence of a new
gospel, following in the Jewish and Christian religious heritage of western civilization:
[Environmentalism] offers a complex series of moral imperatives for ethical action, and judges human conduct accordingly. The source of these imperatives may not appear quite so metaphysical as in other religious traditions, but it in fact derives from the whole of creation as the font not just of ethical direction but of spiritual insight. The revelation of seeing human life and the universe whole, in their full interconnected complexity, can evoke powerful passions and convictions ranging from the mystical to the missionary. Certain landscapes – usually the wildest and most natural ones – are celebrated as sacred, and the emotions they inspire are akin to those we associate with the godhead in other faith traditions. Much environmental writing is openly prophetic, offering predictions of future disaster as a platform for critiquing the moral failings of our lives in the present. Leave out the element of divine inspiration, and the rhetorical parallels to biblical prophecy in the Hebrew and Christian traditions are often quite striking. Maybe most important, environmentalism is unusual among political movements in offering practical moral guidance about virtually every aspect of daily life, so that followers are often drawn into a realm of mindfulness and meditative attentiveness that at least potentially touches every personal choice and action. Environmentalism, in short, grapples with ultimate questions at every scale of human existence, from the cosmic to the quotidian,
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from the apocalyptic to the mundane. More than most other human endeavors, this is precisely what religions aspire to do.15
In environmental religion, “natural” and “unnatural” are the new secular substitutes for
the “good” and “evil” of Biblical religion (or more recently for “efficient” and “inefficient” in
economic religion). Mothers and fathers want to teach their children to do what is right, to do
what is good in the world. For many of those families who do not attend Christian churches or
Jewish synagogues regularly, the teaching of environmental principles in the public schools, the
daily routines of recycling in the home, visits to wilderness areas, and living in many other ways
according to the tenets of environmental religion serves this purpose.
The Problem of Church and State
Garreau’s, Cronon’s and many other similar assessment of the religious character of
America environmentalism raise a difficult question: how is it that environmental religion can
be actively proselytized in public schools, while any similar proselytizing of Christian (or
Jewish, Buddhist, Hindu or other historic religions) would be strictly prohibited.16 What about
other possible official forms of state support for environmental religion? One response would be
that environmentalism is not really a “religion” in the constitutional meaning of the term and
thus the usual constitutional demands for separation of church and state do not apply. But the
constitution does not distinguish between different types of religion, finding some religions that
are more objectionable, while other religions are less so, as objects of state advancement of
religion.
A problem of church and state admittedly must go well beyond a large role for
environmental religion in shaping public policies. For many people, their Christian or other
religion shapes their worldview and thus their judgments in many basic policy matters such as
the appropriate circumstances to go to war or the appropriate levels of government support for
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the poor. There is no issue of church and state raised when religion informs such public
decisions. A problem arises only when government compels a person to support a particular
religion, either by a direct legal requirement or, more frequently, through compulsory taxes that
are then used to fund the institutional forms of a particular religion. Deciding the boundaries can
get into some gray areas. Does the public provision of funding for school buses for private
religious schools amount to an establishment of religion? What about public vouchers used at
private religious schools?
Could some of the policies and practices promoted by the environmental movement
amount to the state establishment of a religion? Few writers have previously taken up the
question. But in a 2009 article in the well respected law journal Environmental Law, Andrew
Morriss (the Paul Jones Jr. and Charlene Angelich Jones Chairholder of Law at the University of
Alabama law school) and Benjamin Cramer (a fellow in the Center for Law and Business at Case
Western Reserve University) explore the issue. They note that “debate over environmental
policy” in the United States “is increasingly conducted in language with strong religious
overtones.” Hence, they suggest the time has come to “engage in a thought experiment, arguing
that there are valuable lessons to be learned from treating Environmentalism as if it were a
religion, and therefore subject to the First Amendment’s prohibition on laws ‘respecting an
establishment of religion.’”17
A first question they address is whether environmentalism actually qualifies as a genuine
religion. One way of identifying a religion is that it involves some elements that transcend the
ordinary workings of the natural world – that are supernatural in some sense. Here, Morriss and
Cramer find, environmental beliefs typically do qualify. As they report, one devout
environmentalist states that “deep ecology concerns those personal moods, values, aesthetic, and
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philosophical convictions which serve no necessarily utilitarian, nor rational end. … Their sole
justification rests upon the goodness, balance, truth and beauty of the natural world.” While
“Deep Ecology” may fall outside the center of environmental thought in its explicit depiction of
a the moral and spiritual corruption of our current civilization, the same ideas are widespread
within the environmental mainstream, if typically expressed in less explicit and apocalyptic
terms. Theologian Robert Royal, who has also surveyed environment writings exhaustively,
writes that “Deep Ecology as an idea has come to dominate much religious thought on the
environment, whether the thinkers are aware of the influence and whether they describe
themselves as Deep Ecologists or not.”18
As Morriss and Cramer discover from an exhaustive survey of environmental writings,
“environmental thinking today depends on a conception of Nature as a power outside man,
which must be appeased by sacrifices of human material welfare (use less energy, emit less
carbon, recycle).” In this respect it has a distinctly Calvinist flavor. Indeed, one commentator
they cite notes that “it is fascinating how closely the jeremiadic structure of [Rachel Carson’s
Silent Spring] … resembles the structure of Jonathan Edward’s late sermon, ‘Sinners in the
Hands of an Angry God.’”19 Indeed, across a large body of environmental writings, Morriss and
Cramer find that environmentalists “are making claims about the relationship between humans
and a nonhuman power that are no different in type than the claims made by some forms of
Christianity, Islam or other beliefs more conventionally understood as religions.” Hence,
although the word “nature” as used in the environmental message “may not be exactly analogous
to the personal god of the three great monotheistic faiths, it is recognized as a power apart from
man to which human needs must be subordinated.”20 It is true that any explicit mention of a
“God,” a “Supreme Being,” or other use of traditional religious language is typically left out of
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environmental messages. But many millions of American children are being taught in their local
public schools to accept the implicit authority of a new environmental “power apart from man”
and to obey its dictates.
It is not just in the schools. Morriss and Cramer not that former Secretary of the Interior
Stewart Udall wrote of the need for Americans to recover “a sense of reverence for the land” and
to apply this in its management. Wilderness areas may be the new cathedrals of environmental
religion. Linda Graber comments that “the traditional concept of Eden and the contemporary
purists concept of wilderness are identical in one important respect: the original Creation is
thought to survive on a select portion of the earth’s surface” that must therefore be protected and
preserved as a reflection of the mind of God.21
Morriss and Cramer characterize environmentalism in terms of six key characteristics
that they identify – for example, the belief that “human history on Earth is part of an apocalyptic
narrative that links disaster to the sin or hubris of an ‘overarching desire to control nature’ and
contrasts with ‘the idea of progress with its ascendant narratives of human victory over nature.’”
Overall, they conclude that: “These are not an exhaustive list, but we contend that they are a fair
summary of much of modern Environmental thought and writing. [Moreover], these views are
different from the views of people who simply ‘desire to experience outdoor recreation,’ … or
who desire improved air or water quality because they seek to maximize human welfare.” As the
Morriss and Cramer paper documents in great detail, at a minimum “environmentalism looks like
a religion.” Indeed, any belief system with “these six characteristics meet[s] our definition of a
religion.”
They conclude, then, that issues of the establishment of religion need to be taken
seriously. As noted above, this will have to be done case by case. It is not enough to say that
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environmental religion had an important influence on policy. Where official support for the
tenets of environmental religion is the main justification for government actions, however, a
potential constitutional infringement may be raised. It may not be enough to suggest that there
are other non-religious purposes, even if they are lesser purposes. (By analogy, one would not
justify a government funding the construction of a church even if the church significantly
enhanced the – in a nonreligious way – visual quality of the neighborhood in which it is located.)
Morriss and Cramer add a novel twist. They suggest that disestablishing environmental
religion from the American state would be good for environmentalism itself. State established
religions in Europe have often atrophied, due in part to a religious environment that is missing
the full competition of other faiths. By contrast, lacking state support, and facing greater
competitive pressures to attract followers, religion in the United States has thrived (as one might
say, religious monopolies are prone to complacency, much as economic monopolies may provide
higher priced and lower quality goods).
Can “Secular Religion” Be a Real Religion
Morriss and Cramer thus argue that the time has come to take the establishment issue
relating to environmental religion seriously. This will require a definition of religion as can then
be applied to U.S. Constitutional interpretation. Despite all the obvious resemblances to religion,
must environmental religion be regarded as a “real religion” in the constitutional sense of the
term?
When the U.S. Constitution was written, the term “religion” had a clear meaning. It
meant Protestant Christianity. There were about 30,000 Catholics in the United States, barely 1
percent of the population. Both Catholics and Jews (equally scarce) had been actively
discriminated against in voting rights and other matters in the colonial era. The Constitutional
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guarantees of freedom of religion originally applied only to the federal government and some
individual states continued policies of official religious establishment well past the founding era.
Even at the federal level, well into the twentieth century, the constitutional principle of no
establishment of religion mostly meant that no Protestant denomination should be advantaged
relative to another Protestant denomination. It was constitutionally acceptable to read from the
Bible in public schools into the 1960s but it was the Protestant King James version of the Bible
that was used. It was also acceptable until then to say Christian prayers in school but they were
compromises acceptable to the leading Protestant churches and that did not differentially
advance the specific beliefs of any one Protestant denomination.
As for the place of Catholic religion, no establishment of religion had a clear meaning –
no government support for Catholic schools. In 2001, John Jeffries (then dean of the University
of Virginia law school) and James Ryan (a colleague there) published a long history of the
Constitution’s establishment of religion clause in the University of Michigan law review. They
note that, again until the 1960s, private religious schools in the United States meant
overwhelmingly Catholic schools. Anti-Catholic sentiment was strong in Protestant America
throughout the nineteenth century and well into the twentieth century. Many Protestants deeply
resented Catholic efforts to separate themselves from Protestant religion and culture – which for
Protestants was not just a religious issue but a matter of the commitment to the essence of
America itself. If these Catholic immigrants had chosen to come to America, they should be
willing to accept the core American beliefs, derived from Protestant religion.
Jeffries and Ryan thus comment that “hostility to Roman Catholics and the challenge
they posed to the Protestant [American] hegemony” lay behind Protestant thinking about church
and state and in practice the “ban against aid to religious schools aimed not only to prevent an
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establishment of [Catholic] religion but also to maintain [a Protestant] one.” Protestant
fundamentalists and evangelicals, for example, were “uncompromising opponents of aid to
parochial schools.” Opposing government aid for religious schools in 1947 – even aid
distributed neutrally among religions – the editor of the leading magazine in mainstream
Protestantism, The Christian Century, “argued that preventing Catholics from getting public
funds would help preserve America as a Protestant nation.” 22
The United States by this time, however, was becoming an increasingly pluralist nation,
religiously as in other ways. Chinese immigrants had arrived even in the nineteenth century and
there were increasing numbers – if still small -- of Buddhist, Hindu, Muslim and other devout.
More important, many people were leaving the established Christian churches. They did not
necessarily become atheists; rather, many fashioned their own brands of religion that were now
separated from the historic institutional forms and language of Christianity. Environmentalism,
as noted above, is a recent prominent example. But there were many other “secular religions” –
or “civic religions,” as they are sometimes called. These secular religions often had many of the
features of traditional Christian religions but made little or no explicit mention of God, Christ,
the Bible, Mary, Paul, and other familiar messages and names of Christian history.
Like the Bible for Christians and Jews, western secular religions typically provide an
account of the true meaning of history. There is a beginning, a middle shaped by a god or other
causal force that determines the course of history, and in many cases a final glorious ending. In
the secular religions of western civilization, also reflecting the influence of Judaism and
Christianity, the final ending typically resolves a fierce conflict between good and evil that has
been waged throughout history. Marxism and National Socialism in Germany were secular
religions of this kind. Recognition of the underlying religious character of both of these
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movements grew steadily over the course of the twentieth century. Today, it is almost a truism;
no account of the history of Marxism or National Socialism would now be complete without
some mention of the religious elements. In a recent review of a book about French resistance
and collaboration with the Germans during World War II, for example, Ian Buruma writes of a
subsequent French collaborator that “he was invited in 1937 to attend the Nazi rally in
Nuremberg, and came back so impressed with all the drum beating, flag-waving, goose-stepping
Hitler worship that he compared the event to the Eucharist. Perhaps you had to be a French
reactionary to see the body of Christ in the Fuhrer” -- but all too many Germans seemingly did
(or something like it).23
Marxism in retrospect drew heavily on Christian religion, involving an original happy
harmony with nature (a new Garden of Eden), a moment of the fall (the beginning of economic
surplus and the class struggle), a resulting corrupted condition of human alienation (a fallen state
of humanity), an all-controlling set of economic laws (an omnipotent god), a cataclysmic clash
between the capitalist and working classes (an apocalypse), and the arrival at a communist
paradise (a new heaven on earth). Marxism was only one of many “economic religions” of the
twentieth century, including the beliefs of the economic mainstream of the second half of the
century.24 While they often had much different economic prescriptions, all economic religions
shared the conviction that economic progress – however it might best be achieved – will save the
world. The foundational premise was that external factors in the environment shape the
individual, these factors are predominantly economic, and thus by perfecting economic outcomes
it will be possible to perfect the individual and society as well. Economic religions such as the
progressive-era “gospel of efficiency” provided the justification -- and thus the religious
legitimacy -- for the rise of the modern welfare and regulatory state.
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Thus, after long having the field for themselves, the traditional Christian (and Jewish)
religions have had to face new religious competitors. How should they view these competitors?
Believing Christians – perhaps more than the secular religious believers themselves, owning to
their greater knowledge of Christian history – have often recognized the large borrowings of
secular religion from their own faiths. A common reaction has been to label Marxism, socialism,
environmentalism and other secular religions as new “Christian heresies.” But a heresy is still a
religion, if a false religion. Given American constitutional principles of separation of church and
state, it would be difficult to enlist government support in defense of “true” Christianity and
against “false” Christian “remappings” (as Michael Crichton described them in the case of
environmentalism). Tactically, it would therefore be desirable to take a position that secular
religion is not real religion. It should not have available any of the government protections – or
limitations on government support – traditionally afforded Protestant Christianity (and much
more recently Catholic Christianity). Secular religion simply belongs, many people have
asserted, in a whole different category than the legally recognized religions for constitutional
purposes.
There is large problem, however; no one seriously studying secular religions today can
conclude that they are not real forms of religion (unless “religion” is simply defined to be a
longstanding and familiar form of worship, including a long historical record of being explicitly
called a “religion”). Indeed, the leading theologians of the twentieth century, free from concern
for the political and legal consequences of their definitions of religion (especially those
theologians in Europe where church and state is a much less important issue), typically
acknowledged secular religions as genuine (if perhaps heretical) forms of religion.
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Paul Tillich was among the leading theologians of the twentieth century. He already had
an international reputation before fleeing Germany in 1933 at the age of 47, then continuing to
write voluminously and eventually becoming probably the greatest “American” theologian of the
twentieth-century until his death in 1965. A main theme of Tillich’s writings throughout his long
career was that a religion should be defined broadly, as a comprehensive belief system that seeks
to answer the “ultimate concerns” of human existence.25 Writing in Germany in 1926, he
explained that in studying the twentieth century history of religion “it is highly characteristic of
our period” that the most important elements of religion are found “without touching upon the
specifically religious sphere,” as it was found, for example, in the institutional churches of
Christianity. For Tillich, it was now characteristic that “the most important religious movements
are developing outside of religion” – such as environmentalism today.26 He could not of course
have anticipated in 1926 the full horrors of “Nazi religion” but they were without doubt more
important to the history of the twentieth century than anything that happened in the official
Christian churches of Germany (or elsewhere) of his time. Tillich at one point declared that, as a
matter of objective historical influence, if not of theological coherence, Karl Marx was “the most
successful of all theologians since the [Protestant] Reformation” of Martin Luther.27
The scholarly concept of religion thus extends far beyond the conventional popular
American idea, based as it is, on essentially a view that a valid religion must be a form of
Christianity. The cutting edge of twentieth century religion for Tillich lies in the workings of the
broader culture where new secular religions – “quasi-religions” as he sometimes calls them – are
evolving rapidly. As with Marxism, these religions, while sometimes portraying themselves as
wholesale rejections of the Judeo-Christian tradition, are more accurately seen as continuations
of it in new words and with some modifications to suit the circumstances of the modern age.
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This is not as difficult a step as one might think because modernity itself – to a greater extent
than many modern intellectuals have recognized – is a direct outgrowth of the Judeo-Christian
heritage. A contemporary student of Tillich’s thought thus can write that in the current age
“what is most significant for Tillich is not the encounter of Christianity with other world
religions but the encounter of world religions with secular quasi-religions.”
Quasi-religions, moreover, are not separate from the full category of all religion but, as
Francis Yip explains, “religion in the full sense” extends to include “quasi-religion as a subset.”28
According to Yip, a graduate of the Harvard Divinity School, as one specific form of religion, a
quasi-religion according to Tillich can encompass:
ideologies, “systems of life,” or “systems of secular thought and life.” Tillich mentions several major quasi-religions of his time, nationalism, socialism, and liberal humanism, as well as their radicalization, fascism, communism and scientism. In his view, quasi-religions have developed from the soil of secularism, which destroys old religions and cultural traditions. … However, there are religious elements in the depth of the secular mind, such as [according to Tillich] “the desire for liberation from authoritarian bondage, passion for justice, scientific honesty, striving for a more fully developed humanity, and hope in a progressive transformation of society in a positive direction.” Quasi-religions arose out of these religious elements [in Christianity] and provide new answers to the meaning of life.”29
Max Stackhouse -- for many years a prominent American professor of Christian social
ethics at Andover Theological Seminary, followed by a professorship in theology and public life
at Princeton Theological Seminary (he is now emeritus there) – is a prominent contemporary
theologian whose thinking was significantly shaped by Tillich. Illustrating Tillich’s approach to
the close interaction of religion and culture, Stackhouse is concerned to understand the religious
dimensions of the current ongoing world processes of globalization. As he writes, “the question
now is not only whether religions have shaped the formation of civilizations, in concert with
other forces, but which ones, if any, can and should guide our thinking in regard to
globalization” in the future. As a student of religious history, Stackhouse is more aware than
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most social scientists of the critical ways that Christian religion (as originally derived from and
then further blended with Jewish sources) shaped the foundational assumptions of western
political and economic systems. As he recalls, “a major part of the impetus for the globalizing
developments derive from the ways in which Christian thought has shaped cultural and social
institutions and given rise to transforming patterns of life” in western civilization. In at least this
respect, as he finds, the longstanding Christian mission to convert the whole world is today
advancing through the processes of developing a common global civilization – i.e., globalization.
The underlying Christian message is often hidden, however, in a rhetorical camouflage of
secular religion such as European socialism, the American progressive “gospel of efficiency,”
environmentalism, social Darwinism, Marxism (until recently), and still others. As Stackhouse
reminds us, Christianity is a main historic source of “the ideas of human rights, based in the idea
that each person is made in the image of God, and that each is endowed by our Creator with
certain inalienable rights,” these rights possessed fully and equally by each human being. There
is also spreading world acceptance today of democratic principles that were “worked out first in
church life” among Christian faithful – particularly those of the Calvinist branch of
Protestantism.
Besides theologians, social scientists have also contributed to the twentieth century
rethinking of the definition of religion to incorporate a much wider modern pluralism of faiths.
The Harvard professor Gordon Allport in 1950 undertook to provide a definition of religion from
the perspective of the field of psychology. Belief in a religion did not necessarily correlate well
with official public affirmations of belief. For some people, as Allport wrote, “such an
individual … lives his religion though he rarely affirms it explicitly.” For other people, “the
carrying out of frequent, devotional, ‘actual’ intentions may be the distinguishing mark.” Where
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a Christian would have professed a concern for his or her salvation, Allport formulated the same
idea in more general terms applicable to many other forms of religion as well, that the religious
believer “is always oriented toward the future.” It reflects a “longing for a better world, for
one’s own perfection, for a completely satisfying relation to the universe.” It also involves
“religious acts [that] try in some way to close the gap that exist between one’s values and the
possibility of their fuller realization.” Religion also typically reflects “a longing for unity –
complete unity of thought, feeling and deed.”30 For those many people in the twentieth century
who worshipped progress, for example, this faith qualifies as their actual religion -- literally.
A common question is whether a “philosophy” can also be a “religion.” Allport answers
that a philosopher seeks to “achieve what for him is a satisfying conception of truth without
finding therein a way of life.” For a philosopher, “his knowledge may not lead to action, nor
affect the remainder of his life. It is only when philosophy becomes practical as well as
theoretical, when it acquires the power of integrating the individual’s life without remainder –
intellectual, emotional, or aspirational – that it turns into religion.” By this standard of a leading
social scientist of the twentieth century, environmentalism again clearly qualifies as a religion –
as would many, probably most, of the most deeply held secular belief systems of the twentieth
century.
The Catholic Church has been among the most resistant branches of Christianity to the
modern incursions of secular religions. But it sees these religions explicitly as religious
competitors that endanger the true faith. It also recognizes full well that secular belief systems
can be so threatening because they substitute eschatological visions of their own that often
borrow heavily from original Christian sources. In 1986, Cardinal Joseph Ratzinger (now Pope
Benedict XVI) stated that Christianity must be vigilantly “opposed to the false worship of
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progress, the worship of changes that crush humankind, and the calumny against the human
species that destroys the earth and creation.” As the future Pope wrote , in place of Notre Dame,
Chartres and other historically inspirational places of Catholic worship, the economic heresies of
the modern age proposed that the new “cathedral of the future will be the [scientific] laboratory,
and the Basilicas of San Marco of the new age will be electrical plants.”31 In the heyday of
progressive religion in the United States, many pilgrims did in fact make long trips to Hoover,
Grand Coulee, and other dams to feel a strong spiritual inspiration, seeing the dams as especially
powerful symbols of the newfound human power to transform the natural world for human
benefit, and in this way to help to save the world through economic progress.
Judicial Conundrums
The judiciary in the United States is a powerful priesthood – the Constitution serving as
the American “Bible.”32 The courts ideally serve as a bulwark against the strong passions of the
moment that are rife in American life and to which ordinary politicians so often succumb. The
judicial pace is more deliberate, the judges themselves – particularly the federal judiciary – are
often among the better educated and most broadly knowledgeable of Americans. Their lifetime
tenure enables them to engage in a dispassionate analysis that would be difficult for any political
leader, facing the requirement to win reelection. American democracy has its obvious flaws and
the Courts ideally represent a barrier to the worst excesses. Because this is widely recognized by
the American public, the courts continue to command the highest prestige among the executive,
legislative, and judicial branches of American government.
For the courts, the scholarly rethinking of religion in the twentieth century presented
some particularly difficult issues. It might be necessary either to abandon the whole idea of
separation of church and state or else to radically rethink it, perhaps having to overturn past
19
Supreme Court precedents in wholesale fashion. Or, as another alternative, the Supreme Court
might simply stumble through with an intellectually incoherent body of opinions relating to
religion that sometimes ended up in contradiction to one another.
Serious theologians, social scientists, and other scholars were sending the message that
religion in the United States must be understood to extend well beyond Protestant religion,
contrary to the legal practice for most of American history and popular ways of thinking still
today for the continuing (if now much smaller) Protestant majority. If the writings of these
scholars were to be taken seriously, it would be necessary at a minimum to admit the Catholic
Church and Judaism (particularly after the traumas of the Holocaust) into the ranks of full
fledged and fully legitimate American religions (a development symbolized for Catholics by
John Kennedy’s election to the presidency in 1960). But these same scholars were also saying
that religion extended well beyond Christianity and Judaism (and some other historic religions
such as Islam). As close observers of the American scene, some members of the American
judiciary were aware of these developments. For the Courts, an intellectually honest and
coherent treatment of religion might therefore have to recognize that religion now encompassed
any overarching belief system that for each person framed their whole manner of understanding
their existence, that gave meaning to their lives, and that prescribed the ethical rules for daily
living, among other traditional features of religion. By this standard, many nominally “secular”
belief systems were in fact valid religions, perhaps then appropriately placed in the same
category legally as Christianity and Judaism.
What to do? One important early Court of Appeals decision in 1943 broadened the
definition of religion; authored in 1943 by Judge Learned Hand, it declared that a valid form of
religion “accepts the aid of logic but refuses to be limited by it. It is a belief finding expression
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in a conscience which categorically requires the believer to disregard elementary self-interest and
to accept martyrdom in preference to transgressing its tenets.”33 Another way of putting this is
that a religion is a belief system that transcends the ordinary concerns of daily life and offers a
set of universal ideals held so strongly that a believer is willing to persist even at the large cost of
a major personal sacrifice (Hand presumably did not mean that all religious believers must
literally be willing to martyr themselves). Many secular religions would qualify, although
Judge Hand did not address the potentially radical legal implications of this line of thought.
Indeed, the U.S. Supreme Court traveled much further down this road with its 1961
decision, Torasco v. Watkins. The Court overturned a Maryland requirement that an aspiring
notary public must sign an oath declaring belief in God in order to receive a commission from
the State. The Court unanimously overthrew this rule, Justice Hugo Black writing for all the
justices that neither the federal nor a state government “can pass laws which aid one religion, aid
all religions, or prefer one religion over another. … No tax in any amount, large or small, can be
levied to support any religious activities or institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion.” Accepting a new pluralism in the legal
definition of religion, the Court elaborated that no government could preferentially “aid those
religions based on a belief in the existence of God as against those religions founded on different
beliefs” (or vice-versa, although the Court presumably regarded this as a remote possibility).34
That is to say, as Justice Black was writing for the Court, no belief in a God (or a
“Supreme Being,” a common public euphemism for God ) outside this world is required to
qualify as a religion for the purposes of interpreting the establishment clause of the Constitution.
In footnote 11 of Torasco, Black put all this in newly explicit terms, famously explaining that
“among religions in this country which do not teach what would generally be considered a belief
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in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and
others.”35 Hence, at least based on the language of this 1961 Supreme Court decision, a
government action that specifically advantaged environmental religion, for example, would
properly be subject to an establishment clause legal challenge.
Perhaps the most extreme coercive action a government can take with respect to an
individual is to draft this person into military service, exposing them to the possibility of being
killed or the other radical possibility of having to kill another person. Given the importance of
personal conscience in such matters, men have been allowed to make a claim of conscientious
objection on the basis of religion since colonial times. With the Vietnam War raging, the
Supreme Court in 1965 issued one of two important conscientious objector decisions, United
States v. Seeger.36 It involved the application of the legal requirement set by Congress that “by
reason of their religious training and belief,” a conscientious objector was opposed to
participation in the military. In defining religion, Congress specified that it involved “an
individual’s belief in relation to a Supreme Being involving duties superior to those arising from
any human relation, but [not including] essentially political, sociological, or personal views or a
merely personal moral code.”37
Seger had declared that he was conscientiously opposed to participation in war but was
unsure about the existence of any Supreme Being per se. Rather, as he stated, he had a “belief in
and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical
creed.” He cited Plato, Aristotle and Spinoza, rather than the Bible, as the leading sources for his
own religious creed. In upholding his claim, the Court adopted a broad definition of religion
more compatible with twentieth century religious scholarship. In an opinion written by Justice
Tom Clark, the Court observed that in matters of religion “some believe in a purely personal
22
God, some in a supernatural deity; others think of religion as a way of life envisioning, as its
ultimate goal, the day when all men can live together in perfect understanding and peace. There
are those who think of God as the depth of our being; others, such as the Buddhists, strive for a
state of lasting rest through self-denial and inner purification; in Hindu philosophy, the Supreme
Being is the transcendental reality which is truth, knowledge and bliss.”38 The Court
summarized this new line of thinking with the following practical test to be followed by the
lower courts in deciding whether a belief system qualifies or not as a “religion” for the purposes
of the legal meaning of the conscientious objector law; the Court specified that a valid religion
for this purpose must be “a sincere and meaningful belief which occupies in the life of its
possessor a place parallel to that filled by the God of those admittedly qualifying for the [draft]
exemption” on more traditional Christian grounds. No person-like God in the hereafter (no
Supreme Being), in short, was necessary in the 1965 view of the Court.
By the standards of rigorous religious scholarship, the Court was showing a brand new
degree of theological sophistication. Even going far back in history, at its highest levels
Christian theology had never actually advocated a concept of God as a distinct person. Benjamin
Ward, a leading contemporary theologian and professor of religion at Oxford University, writes
that “the ultimate character of the universe is mind, and that matter is the appearance or
manifestation or creation of cosmic mind” – that is to say, as Ward believes, of a divine
intelligence that fills the universe and in which we here on earth as “individual persons”
participate.39 As many ordinary people think of God, He is admittedly an all-powerful but
nevertheless human-like figure in the sky. But this is definitely not the way that leading Jewish
and Christian theologians historically have conceived of God. Ward writes that “it is vitally
important that we do not think of God as some sort of human-like being with lots of fairly
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arbitrary characteristics. That idea has never been supported by a leading theologian of any
major monotheistic tradition.”40
Meir Soloveichik, associate rabbi at Congregation Kehilath Jeshurun in New York,
comments similarly that “Jews reject the notion that God might take bodily form and instead
seek to commune with what they believe to be his infinite mind.” It is through the intense study
of ‘the infinitude of the Torah [that] we are given a glorious glimpse of the infinitude of the
Almighty” and of His supreme – non-corporal (i.e. non-Being) – intelligence.41
In Seeger, the Supreme Court demonstrated its new theological awareness by even
referring explicitly to Tillich’s theology in the opinion. Justice Clark, writing for eight justices
(Justice William Douglas filed his own concurring opinion), observed that the Court’s decision
reflected “the ever-broadening understanding of the modern religious community. The eminent
Protestant theologian, Dr. Paul Tillich, whose views the government concedes would come
within the statute, identified God not as a projection ‘out there’ or beyond the skies, but as the
ground of our very being.” Clark then quoted directly from Tillich’s writings to the effect that a
proper understanding of “God” transcended traditional Christian definitions such as the idea of
an all-powerful and all-knowing Person (a Supreme Being). As Clark quoted directly from
Tillich in the Court’s opinion: “I have written of the God above the God of [conventional
Christian] theism.” God for Tillich -- which Justice Clark saw as the proper way of thinking
about religion -- represented an “idea in which meaning within [otherwise potential]
meaninglessness is affirmed. The source of this affirmation of meaning within meaninglessness,
of certitude within doubt, is not the God of traditional theism, but the ‘God above God,’ the
power of being, which works through those who have no name for it, not even the name God,” as
Seeger instructed in Tillich’s own language. As Clark wrote in this spirit, “it may be that Seeger
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did not clearly demonstrate what his beliefs were with regard to the usual understanding of the
term ‘Supreme Being.’ But, as we have said, Congress did not intend that to be the test” of a
valid religious belief for the purposes of the conscientious objector law.
Five years later, the Supreme Court affirmed these views in another conscientious
objector case, Welsh v. The United States. The issues were now posed still more sharply because
the defendant (Welsh) in this case had explicitly denied that his claim for a draft exemption was
based on religion. The Court, however, declared that a more sophisticated understanding of
valid religion – as the Court had relied on in 1965 in citing Tillich’s writings – did not require an
explicit commitment to religion. Indeed, many who were loudest in their proclamations of deep
religious belief in fact fell well short in the depth of their actual conviction, as compared with
many others who outwardly disclaimed any explicit “religious” commitment. Writing for the
Court, Justice Hugo Black observed that “very few [draft] registrants are fully aware of the broad
scope of the word ‘religious’ as used” in the conscientious objector provisions of the law. It was
enough to qualify as a conscientious objector that, although Welsh “originally characterized his
beliefs as nonreligious, he later, upon reflection, wrote a long and thoughtful letter to his Appeal
Board in which he declared that his beliefs ‘were certainly religious in the ethical sense of the
word.’”
Justice Black observed that “most of the great religions of today and of the past have
embodied the idea of a Supreme Being or a Supreme Reality – a God – who communicates to
man in some way a consciousness of what is right and should be done, of what is wrong and
should be shunned.” But the 1970 Court now reaffirmed the 1965 conclusion in Seeger that
strong ethical beliefs arrived at by other routes also qualified: “Because his [Welsh’s] beliefs
[apart from any explicit concept of God] function as a religion in his life, such an individual is as
25
much entitled to a ‘religious’ conscientious objector exemption … as is someone who derives his
conscientious opposition to war from traditional religious convictions.”
In a separate concurring opinion, Justice John Harlan found that Justice Black’s opinion
had abandoned “any distinction between religiously acquired beliefs and those deriving from
‘essentially political, sociological, or philosophical views, or a merely personal moral code’” –
or, as this might otherwise be stated, any distinction between traditional religion and secular
religion. Harlan’s filed a separate concurring opinion because, while he regarded this view as
accurate from a theological standpoint, it was implausible to him as a matter of interpreting the
actual intent of Congress as expressed in the language of the conscientious objector law. Indeed,
the whole conscientious objector law as written might well be unconstitutional, Harlan thought,
because Congress had actively discriminated in favor of Christianity and other more familiar
religions and had actively discriminated against against nontraditional religions. Rather than
taking the radical step of proposing to judicially overthrow the whole law on these grounds,
however, he simply opted to sustain Welsh’s exemption.
By 1972, much had changed. Justice Clark, the author of Seeger, had left the Court in
1967 and Justices Black and Harlan left in 1971. Altogether, five new Justices had joined the
Court since Seeger, including the new Chief Justice Warren Burger. In Wisconsin v. Yoder, this
new Court alignment confronted the question of Amish families who were seeking relief from
the Wisconsin requirement that their children attend public schools until the age of 16, desiring
instead to withdraw the children after the eighth grade. The families contended that further
education was not necessary for an Amish lifestyle and that public school education in the most
formative teenage years tended to undermine Amish religious beliefs. The Court upheld the
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Amish families but also adopted language that narrowed sharply the definition of religion,
effectively repudiating the previous ten years of increasing Court theological sophistication.
The Court’s 1972 opinion was authored by Chief Justice Burger. Burger effectively
reverted to the old formulation that a religion in the thinking of the Court really meant
Christianity or Judaism, or some equally old and familiar faith (a test the Amish could easily
meet). As he declared, “a way of life, however virtuous and admirable, may not be interposed as
a barrier to reasonable state regulation of education if it is based on purely secular
considerations; to have the protection of the Religion Clauses, the claims must be rooted in
religious belief” of a clearly identifiable historic kind. To illustrate his point, Burger gave the
example of Henry David Thoreau, finding that his outlook on life was “philosophical and
personal rather than religious, and such belief does not rise to the demands of the Religion
Clauses” of the Constitution. Yet, Thoreau would almost certainly have qualified for a
conscientious objector exemption according to the Court opinions given in Seeger and Welsh, the
latter issued by the Court just two years earlier.
Remarkably enough, Burger – never known during his years as Chief Justice as an
intellectual heavyweight -- made no effort to justify, or even acknowledge, the Court’s abrupt
major shift of course in its religious jurisprudence. This role fell to Justice Douglas who filed a
partial dissent, still sustaining the Amish families, while objecting strongly to much of the
language of Burger’s opinion. As Douglas reminded his fellow Justices, the Yoder opinion was
“contrary to what we held in United States v. Seeger.” In greatly narrowing the definition of
religion, the Court had abandoned its former policy of “equal treatment for those whose
opposition to service is grounded in their [valid] religious tenets.” Douglas instead reaffirmed
his commitment to the Court’s previous broad “view of ‘religion’ and [I] see no acceptable
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alternative … now that we have become a Nation of many religions and sects, representing all of
the diversities of the human race,” including its wide religious diversity.
Since Yoder, there have been many more Supreme Court cases involving religion. Not
much has been clarified, however. Law professor Rebecca French writes in the Arizona Law
Review in 1999 that the U.S. “Supreme Court and its commentators have been struggling for
over a century to find an adequate definition or characterization of the term ‘religion’ in the First
Amendment. It has turned out to be a particularly tricky endeavor, one that has stumped both the
Court and its commentators.”42 Another legal commentator writes in the Duquesne Law Review
in 2002 that “if anything, the bulk of scholarship and case law leads to the conclusion that the
task of defining religion is impossible” for constitutional purposes.43 Is Scientology, for
example, a valid religion that must be constitutionally seen and protected in the same way as say
Methodism? After surveying the literature, Morriss and Cramer conclude that “there is no
definitive answer in either the historical record or the Court’s jurisprudence as to exactly what
constitutes a religion for constitutional purposes.”44
Indeed, writing in 2005, law professor Richard Mangrum finds that all of four different
legal ways of interpreting the Establishment clause can be found among the current members of
the Supreme Court. They are the “neutrality or nondiscriminatory principle”; the “endorsement
test”; the “coercion” test; and the”strict” or the “Lemon Separationism” variant test (based on a
1971 Court decision, Lemon v. Kurtzman). It is not only legal commentators who are altogher
confused. As Mangrum observes, “even the Supreme Court Justices, in deciding church and
state cases, have admitted that their “Establishment Clause jurisprudence is in hopeless
disarray.’”45
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The state of total judicial confusion partly reflects its unwillingness to recognize the full
range of religious diversity in the United States, including many genuine forms of religion that
do not have – or at least do not mention explicitly – a God or other “Supreme Being” in their set
of core beliefs. But secular religion, as most theologians, social scientists and other close
students of religion today agree, is real religion. It also usually meets the definition of the
Supreme Court given in 1965 in Seeger -- and strongly affirmed in 1970 in Welsh -- that a
religion is “a sincere and meaningful belief which occupies in the life of its possessor a place
parallel to that filled by God” in more familiar religions with much longer histories. When
judges instead attempt to draw a line, admitting some religions as appropriate for constitutional
purposes, and excluding many others, it should be no surprise that they end up in a state of legal
incoherence. The Constitution speaks of freedom of “religion,” not freedom of those religions
that particular justices at some time and place happen to find more congenial to their own
thinking.
Some judges favor Christianity and other older forms of religion; other judges favor
newer forms of secular religion such as environmentalism. In the latter cases, the favoritism
typically takes a special form. The judges deny the religious character of environmentalism,
despite the obvious strong evidence to the contrary. By denying that environmentalism is a
religious, this enables the judges to uphold the actual state establishment of environmental
religion.
Environmental Religion and the State
Let us assume then for the purposes of analysis that, in order to escape its current deep
legal confusions relation to religion, and to treat the full range of religion neutrally, the Supreme
Court takes a radical step and accepts secular environmentalism as a legitimate religion for the
29
purposes of interpreting the First Amendment. Clearly, as discussed earlier, environmentalism
plays a decisive role in shaping the whole way of life of true believers, closely analogous to the
role of Christianity for its true believers. Environmentalism thus meets the Seeger test for a
religion. While there is no one Bible, environmentalism has a set of ethical principles for human
behavior, a view of the appropriate relationship of human beings to nature, a vision of a much
better – as one can hope for – future of the world, and many other recognized features of
religion.
As a religion, environmentalism would then receive all the protections of the free
exercise language of the First Amendment. More controversially, governments would also be
prohibited from taking actions that offered official state support for environmental religion. As
noted above, the establishment clause would not prohibit environmentalism from taking policy
positions and otherwise advocating a point of view in public debates in ways that reflect the
tenets of environmental faith. There would be nothing to limit governments in adopting policies
consistent with environmental religion.
An official establishment of environmental religion would have to favor environmental
beliefs – and government actions reflecting these beliefs -- on the specific basis of their
environmental religious content. In some cases, this might be explicit but in others it might
involve actions taken by governments in which the decisive role assigned to environmental
religion remained implicit. In that case, a factual determination would be required as to the
actual basis for a government action or policy decision. If it rested exclusively – or
predominantly -- on the tenets of environmental religion, to the exclusion of other ways of
thinking, it might very well constitute a violation of the establishment clause.
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As an illustration of the possible character of such a court factual investigation, the
following policy areas will be examined briefly below: organic food, recycling, wilderness areas,
the Arctic National Wildlife Refuge, ecosystem management of the National Forests, and –
perhaps most consequential of all -- teaching environmental religion the in public schools.
Organic food
For many who are dedicated to buying it, organic food is a symbol of their commitment
to environmental religion. It may even taste better to them because of this very element.
Obviously, people would be entirely free to consume organic food as a matter of their personal
choices and farmers to grow it. But what about official government actions to favor organic
food. The question for establishment jurisprudence would then be whether there are any
nonreligious social benefits to wider consuming (or growing) of organic food – such as improved
individual health, less pesticide contamination of the environment, promotion of local farming
and thus with reduced transportation needs, etc. This is a matter of at present of some
controversy but real doubts remain that net social benefits exist beyond the greater sense of
environmental spiritual satisfaction inspired in the purchasers and consumers of organic food.
Where constitutional questions arose, the scientific evidence would have to be marshaled for
court review and a legal determination made, looking to neutral authorities to the greatest extent
possible for advice.
If it is determined that consumption of organic food mainly serves environmental
religious purposes, an establishment question would arise whenever and wherever government
actively intervened to promote organic food consumption and production, as against other
agricultural methods and other policies. Again, it might depend on the specifics. Let us say that
a public university or other public institution established an organic food line in one or more of
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its cafeterias. A key question here would be whether other religiously based food lines – say a
kosher line, or a Hindu line (no beef) – would also be permissible in the same setting. If yes
there would be no problem with the organic line. If no, then the organic line would also have to
be barred on the same religious establishment grounds. Going well beyond this circumstance,
any proposed specific government mandates for the consumption of organic foods would have to
be found unconstitutional.
Government-Supported Recycling
Recycling is another activity that has a powerful symbolic meaning for environmental
religion. Consider a 2010 article in the New York Times describing a Colorado couple who
recently moved to a home where “the renovated stairway is made from reclaimed barn wood.
Their furniture is also made from recycled wood and steel; in fact, the coffee table is wood that
was reclaimed twice, having been salvaged from reclaimed wood that was being made into
flooring.” The couple – both in their thirties -- also “use natural cleaning products, and are
‘constantly’ drinking out of their Brita pitcher, so there is no need for disposable water bottles.
All their personal-care products are organic, and Mr. Dorfman’s clothes are made from organic
cotton and recycled materials — including his Nau blazer, which, he said, is made from recycled
soda bottles.” In all this moral correctness, however, “they have one great greenie flaw: they are
addicted to disposable diapers,” which they believe are “really environmentally sinful. It’s plastic
derived from petroleum. You use them once and then they get tossed in a landfill. It’s a terribly
inefficient use of natural resources. As one member of the Colorado couple lamented, “Not only
do I feel guilt, I feel hypocritical.”46 Who could doubt that an environmental religion is present
here? Recycling symbolizes the goal to reduce the human impact on the natural world, an action
that is desirable in and of itself, according to the tenets of environmental faith.
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Yet, recycling can obviously have many other nonreligious purposes. As noted above,
recycling that yields an economic return has long been practiced – it is just a normal business
activity or individual method of economizing (using worn out clothes to make floor rugs has
been done for centuries). Many local governments and other public institutions, however, have
acted in recent years to support recycling with public funds and other public resources. For
establishment constitutional purposes, it would be is necessary to ask: What is the objective of
these many recent government programs to officially support recycling? If the recycling was
challenged legally as an establishment violation, the Courts would again have to look to a factual
determination.
Perhaps owing to rising prices for natural resources, local governments may have found
that it is possible to economize on their total waste handling budgets by recycling. They might
now be able to sell newspapers and other recycled materials for more than the added costs of
collecting these materials. But this is not necessarily the case. Indeed, the added costs of
recycling have often been greater in practice for local governments than the additional revenues
generated. In some documented cases – the full number is unknown -- the recycled items have
no market value (or enough to cover the transportation and other transaction costs) and are
simply dumped in the same landfills as unrecycled items. Government spending for recycling in
such cases has a clearly symbolic and environmental religious purpose.
At one time, recycling was advocated as a necessary public policy measure to prevent too
much American land from being used for landfills. It did not take higher level mathematics,
however, to show that the space used by landfills represents a tiny part of the American
landscape. There might have once been short run transitional problems in increasing landfill
capacity but there is now no overall long run shortage of space for landfills. Moreover, many
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poor rural communities, facing economic hard times, competed actively to host landfills and
some have already benefited handsomely in this way. Short of a new factual demonstration to
the contrary, it is safe to conclude that reducing the space occupied by landfills is a religious
cause – symbolizing the reduction of human impacts on nature for its own sake.
Thus, on a close factual examination, the Courts might well find that much of the current
recycling occurring in the United States has an environmental religious purpose. Where the
recycling costs are born privately, there is of course no church and state problem. Where
government resources are being used to support religious acts of recycling, however, it would be
a violation of the establishment clause.
Wilderness areas
A wilderness area is defined, according to the Wilderness Act of 1964, as a place “where
the earth and its community of life are untrammeled by man, where man himself is a visitor who
does not remain.” The purpose of wilderness management is to minimize to the extent possible
any further human impacts. This is an environmental religious purpose; as Morriss and Cramer
write in “Disestablishing Environmentalism,” a main tenet of environmental faith is that “nature
was once undisturbed (Eden) but was ruined by human action (the Fall). Remaining ‘pure’ areas
of Nature have a sacred status and altering them is sacrilegious.”47 To be sure, wilderness areas
have other purposes such as public recreation and preserving an historical record of the
geological and other features of the American landscape. But in this case the religious motive
was explicitly stated by Congress in 1964. Moreover, as a factual investigation reveals, this
predominant motive has continued to the present day. John Copeland Nagle, the Associate
Dean for Faculty Research and John N. Matthews Professor of Law at the University of Notre
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Dame, undertook just such an investigation in 2005, offering a concrete example of the types of
supporting materials needed for resolving religious establishment issues. As Nagle writes,
These are questions about the meaning of wilderness. The answers to such questions have proved difficult to ascertain. In recent years, the explanations have emphasized biodiversity, recreation, or any of a number of general themes that were sounded by the Congress that enacted the Wilderness Act and the proponents of wilderness preservation before or since. But writing two years after the Wilderness Act became law, Michael McCloskey (who later became president of the Sierra Club) argued that “current valuations of wilderness are a product of a long evolution in American thinking. The evolution has blended many political, religious, and cultural meanings into deeply held personal convictions. Those who felt those convictions meant to translate them into law in the Wilderness Act. Those who administer the law must look to those convictions to understand why the law exists. The convictions cannot be easily manipulated or refashioned to suit the administrators.”
This article focuses upon a particular set of convictions that played a significant role in the drive for wilderness preservation: the spiritual values of wilderness lands. Representative Markey invoked those values in 2005 when he quoted Morris Udall, the namesake of Markey’s proposed new Alaskan wilderness area, who once proclaimed that “[t]here ought to be a few places left in the world left the way the Almighty made them.” John Muir used similar language over one hundred years before when he first visited Alaska. Muir wrote eloquently of “[t]he great wilderness of Alaska,” yet he insisted that words are not “capable of describing the peculiar awe one experiences in entering these virgin mansions of the icy north, notwithstanding they are only the perfectly natural effect of simple and appreciable manifestations of the presence of God.” Muir rhapsodized that “the solemn monotone of the stream sifting through the woods seemed like the very voice of God, humanized, terrestrialized, and entering one’s heart as to a home prepared for it;” he described a glacier whose “[e]very feature glowed with intention, reflecting the plans of God; and he “rejoic[ed] in the possession of so blessed a day, and feeling that in very foundation truth we had been in one of God’s own temples and had seen Him and heard Him working and preaching like a man. Indeed, Roderick Nash insists that “the major theme in [Muir’s] writings about Alaska was the way that wilderness symbolized divinity.” As Nash has explained in his classic exposition of Wilderness in the American Mind,
religious themes have played a prominent role in the evolving American attitude toward wilderness. “Wilderness appreciation was a faith,” writes Nash. Yet Nash concludes that “[i]n the last several decades the course of American thought on the subject of wilderness and religion has swung away from a direct linking of God and wilderness.” But the extensive congressional hearings preceding the enactment of the Wilderness Act contained abundant references to the spiritual values of wilderness, just as religion played a significant role in the more famous congressional enactment of 1964, the Civil Rights Act. Additionally, the religious voice for wilderness preservation has continued to develop during the forty years since the Wilderness Act became law, a voice whose implications have yet to be explored by Nash and most of the more recent
35
legal scholars to consider wilderness.48
Nagle includes abundant references, including many other scholarly writings about
wilderness, that sustain his conclusion. Wilderness areas are all established on lands owned and
managed by the federal government, thus committing public resources to an explicit religious
purpose. A wilderness area is a secular church or cathedral. Wilderness areas, therefore, and
just as would be the case for government funding of the construction or a Christian church, fail
an establishment legal challenge. At least two possible resolutions can be imagined. The federal
government could disestablish wilderness areas, opening them up to a wider range of uses and
management policies – perhaps emphasizing a public recreational purpose and providing a
considerably wider range of facilities and means of access to the lands more suited to full –
nonreligious -- use by ordinary Americans. Alternatively, the government might put the lands up
for public auction, allowing environmental organizations and other private groups to buy them
and to create by private action an environmental “cathedral.” (Many wilderness areas do not
have high economic value – one reason they were able to win Congressional designation -- and
organizations such as the Nature Conservancy or land trusts might easily be the high bidders.)
Arctic National Wildlife Refuge (ANWR)
ANWR covers 17 million acres in northeast Alaska adjacent to the Beaufort Sea in the
Arctic Ocean. Environmental organizations have long sought to have ANWR designated as a
wilderness area, reflecting their frequently stated view – as expressed in many funding
solicitations and other environmental documents – that it is a last place on earth still “untouched
by human hand.” A limited part of ANWR, about 2 million acres, contains what is believed to
be perhaps the largest oil deposit remaining in North America, estimated by the U.S. Geological
Survey to have about 10 billion barrels of recoverable oil (the mean estimate), worth about $1
36
trillion at current oil prices. Congressional approval would be required to develop the oil in
ANWR, which has been blocked for many years by vigorous environmental opposition.
Applying the same analysis as applied to wilderness areas above, the heroic
environmental efforts made to keep ANWR oil undeveloped reflect the tenets of environmental
religion. ANWR is the equivalent of a wilderness area, except for the extraordinary value of the
oil that underlies it. Indeed, protecting ANWR is doubly religious because, unlike an ordinary
wilderness area, the enormous value of the oil adds powerfully to its fulfillment of a religious
purpose. Religions historically have often made sacrifices to their gods to affirm the depth of
their faith commitment. As Morriss and Cramer thus observe, in ANWR “we are called to
sacrifice for the sake of making the sacrifice [of the trillion dollars of oil value], making the
sacrifice religious” in its motivation.
A factual investigation would still be necessary in the case of ANWR, however, before
concluding that its continuing current preservation is a religious act. Although the purpose of
environmental organizations clearly falls in the category of the religious, the government could
have other reasons. It might want to keep ANWR as insurance against future oil shortages, a
natural version of the existing strategic petroleum reserve. Or, the government might have
decided to speculate on the future value of the ANWR oil, expecting it to rise so rapidly that the
discounted present value of the oil is maximized by holding it at present for development in
some future year. Absent an official statement of economic rather than religious intent and an
accompanying plausible justification for such a policy of deferred oil development, however, the
government setting aside of ANWR for a religious purpose would have to be deemed an
unconstitutional establishment violation.
Ecosystem Management in the National Forests
37
The National Forests, managed by the U.S. Forest Service in the Department of
Agriculture, cover almost ten percent of the land area of the United States. In Idaho, 40 percent
of the land in the State is in the National Forests; in California, it is 20 percent. For many
decades, beginning with the creation of the Forest Service, the National Forests were managed
according to the philosophy of “multiple- use management.” The goal was to examine the
various potential human uses of National Forest lands, and then to choose a socially optimal
combination – necessarily requiring many exercises of managerial judgment. The explicit
purpose was to maximize the contribution of the National Forests to human welfare in the United
States – the greatest good of the greatest number over the long run, as the founder of the Forest
Service, Gifford Pinchot, famously put it.
In the 1990s, however, this traditional management goal was rejected by the Forest
Service. The new official government goal of “ecosystem management” was to achieve an
ecologically desirable condition of the Nation Forests for its own sake. Human welfare might be
incidentally advanced in the process but the fundamental purpose must be to achieve a “natural,”
“healthy,” “sustainable” -- or other such term -- ecologically appropriate outcome on the lands,
the new final goal of forest management. As Roger Sedjo, the longtime director of the forest
economics and policy program at Resources for the Future, writes, the new regulations adopted
by the Forest Service in the 1990s to implement the National Forest Management Act “give
biological and ecological considerations priority over other goals,” including the human uses of
the lands for ordinary social welfare purposes.49 For example, the new management rules
“require the Forest Service to ensure the widespread maintenance of viable plant and animal
populations” as an end in itself, even at the sacrifice of human uses of the lands. Under
ecosystem management, the major timber harvesting program on National Forest lands (once the
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source of 20 percent of U.S. softwood timber) has been virtually eliminated, except where timber
harvesting can be shown to serve a primary ecological purpose.
The ultimate ideal is to restore National Forest lands to some past historic state that can
be said to represent a “natural” condition of the lands, before pervasive human impacts altered
this state of affairs. As Sedjo comments further, “major environmental groups … oppose timber
harvesting of any type, including that necessary to meet other objectives (e.g., wildlife habitat).
Indeed, many favor an essentially hands-off approach to ‘management,’” no management at all
in complete contrast to the old philosophy of “multiple-use management.” The Congress never
endorsed this management shift but it was forced on the U.S. Forest Service through the pressure
of environmental groups – mainly through a successful strategy of litigation, and with the strong
support of sympathetic federal judges.
By the standards of contemporary religious scholarship, national forest management is
now environmental religious management. The explicit purpose is to disavow human needs –
except of a religious kind. Remarkably enough, the judiciary in this case (or at least some of its
federal members) not only failed to maintain a stance of maintaining religious neutrality in
American government actions but actually forced the U.S. Forest Service in effect to adopt an
environmental religious mission. Given the very large amounts of the American West involved,
this is perhaps the most extreme current example of judicial decision making gone wrong with
respect to the First Amendment. The Courts, at a minimum, should adopt a genuinely neutral
posture themselves in terms of the application of religion on the National Forests (and other
public lands).
Environmental Religion in the Public Schools
39
In their analysis of the history of the establishment cause, Jeffries and Ryan note that a
large part of the First Amendment jurisprudence of the Supreme Court has involved the place of
religion in the public schools. Until the 1990s, the Court generally acted to limit the role of
religion. As they write, from 1947 to 1996 “the Court disallowed religious classes in public
schools and prohibited officially sponsored student prayer, graduation prayer, Bible reading, and
silent meditation. The Court also barred display of the Ten Commandments and struck down
laws banning the teaching of evolution and mandating the teaching of creationism. In all these
decisions, the Court severed ties between the public schools and particular religious beliefs or
practices.”50
The Court has not, however, applied such establishment constitutional principles to all
religions. It has not, in particular, limited the active teaching of environmental religion in the
public schools. As many parents across the United States are well aware from the experiences
and reports of their own children, the public schools today actively proselytize the messages of
environmental spirituality. The ultimate result has been a government policy of officially
teaching one form of religion in public schools, while at the same time prohibiting the teaching
of another form of religion. By almost any understanding of the religious language of the First
Amendment, such clear religious discrimination would have to be considered unconstitutional.
Remedial action could take a variety of forms. The courts could require that the schools
limit their environmental teaching to religiously neutral environmental science, requiring a
significant change in the way environmental subjects are now taught in most public schools.
The emphasis would be on biology and the scientific workings of ecologies, rather than the
moral virtues of protecting the earth from further human impacts and restoring natural systems to
some ideal original past “sustainable” condition. An alternative would be to recognize that
40
religion is a central element in American history that plays a key role in educating children to
moral behavior and other standards of good conduct. State support for the establishment of
religion thus might be constitutionally approved – by constitutional amendment if not by a
Supreme Court reconsideration of its past opinions. But the government support would have to
remain neutral among the many religions in American life.
The public schools thus might teach both Christian and environmental religion on an
equal basis. But this might simply lead to a watering down of all forms of religious messages to
the extent that the desired beneficial role of religion in American life would be undermined. A
better alternative might be to allow parents to send their children to religious schools of their
own choosing. Governments would offer support for such schools on a religiously neutral basis.
A system of vouchers, for example, would accomplish this purpose. Charter schools, however,
are at present much more numerous than voucher programs. Under current government policy, a
charter school cannot be a religious school (except if the religion is environmentalism or some
other such secular religious set of beliefs that the Courts do not regard legally as a religion). In
order to achieve genuine religious neutrality, the establishment clause would require that
Christian, Jewish, Muslim and other charter schools be given government support on an equal
basis with any other “secular” charter schools.
Conclusion
Religion is a much wider phenomenon in contemporary life than simply Christian,
Jewish, Muslim and other historically familiar forms of religion. In the twentieth century,
secular religion, often borrowing from historic Christian and Jewish sources, became the most
influential form of religion in the American public arena. Environmental religion followed in
this path in the later decades of the century.51 These secular religions, including
41
environmentalism, are real religions. It is time for the legal profession and the Supreme Court to
rethink fundamentally its religious First Amendment jurisprudence to reflect this new religious
reality.
42
Endnotes
1 Richard Neuhaus, In Defense of People: Ecology and the Seduction of Radicalism (New York: Macmillan, 1971). 2 Linda Graber, Wilderness as Sacred Space (Association of American Geographers, 1976), pp. 106, ,ix. 3 Alston Chase, Playing God in Yellowstone: The Destruction of America’s First National Park (Atlantic Monthly Books, 1986). 4 My first published writing on this subject was Robert H. Nelson, “Unoriginal Sin: The Judeo-Christian Roots of Ecotheology,” Policy Review (Summer 1990). In 1991 I published Reaching for Heaven on Earth: The Theological Meaning of Economics (Lanham, MD: Rowman & Littlefield, 1991). See most recently Robert H. Nelson, The New Holy Wars: Economic Religion versus Environmental Religion in Contemporary America (University Park, PA: Penn State University Press, 2010). 5 Al Gore, Earth in the Balance: Ecology and the Human Spirit ((Boston: Houghton Mifflin, 1992), pp. 220-221, 12. 6 See David M. Lodge and Christopher Hamlin, eds., Religion and the New Ecology: Environmental Responsibility in a World of Flux (Notre Dame, IN: University of Notre Dame Press, 2006). 7 Michael Crichton, State of Fear (Harper Collins, 2004). 8 Joel Garreau, “Environmentalism as Religion,” The New Atlantis (Summer 2010). 9 Joel Garreau, The Nine Nations of North America (Avon Books, 1989); Joel Garreau, Edge City: Life on the New Frontier (Anchor, 1992); Joel Garreau, Radical Evolution: The Promise and Peril of Enhancing Our Minds, Our Bodies – And What It Means to be Human (Broadway, 2006).. 10 Garreau, “Environmentalism as Religion,” p. 67. 11 Ibid., p. 61. 12 Robert H. Nelson, Economics as Religion: From Samuelson to Chicago and Beyond (Penn State Press, 2001). 13 Ibid, pp. 61, 74, 66. Garreau is quoting from Freeman Dyson, “The Question of Global Warming,” New York Review of Books, June 12, 2008. 14 Paul Krugman, “American Thought Police,” New York Times, March 28, 2011, p. A. 25. 15 William Cronon, “Foreword” to Thomas R Dunlap, Faith in Nature: Environmentalism as Religious Quest (Seattle, WA: University of Washington Press, 2004), pp. xi-xii. 16 I first raised this issue in print in Robert H. Nelson, “Religion as Taught in the Public Schools,” Forbes (July 7, 1997). 17 Andrew P. Morriss and Benjamin D. Cramer, “Disestablishing Environmentalism,” 39 Environmental Law (2009), pp. 310, 312. 18 Robert Royal, The Virgin and the Dynamo: Use and Abuse of Religion in Environmental Debates (Grand Rapids, MI: Eerdmans, 1999), p. 147. 19 Morriss and Cramer, pp. 337, 338. 20 Ibid., p. 342. 21 Ibid., pp. 329, 331, 332, 331, 332. 22 John Jeffries and James Ryan,“ A Political History of the Establishment Clause,” University of Michigan Law Review (2001), pp. 3, 14 (Lexis version). 23 Ian Buruma, “Who Did Not Collaborate?” New York Review of Books, February 24, 2011, p. 16. 24 Robert H. Nelson, Economics as Religion: From Samuelson to Chicago and Beyond (University Park, PA: Penn State University Press, 2001). 25 Paul Tillich, Dynamics of Faith (New York: HarperOne, 2001 – first ed. 1957), p. 5. 26 Paul Tillich, The Religious Situation, trans. H. Richard Neibuhr (New York: Meridian Books, 1956 -- first German ed. 1926). 27 Paul Tillich, A History of Christian Thought: From Its Judaic and Hellenistic Origins to Existentialism (New York: Simon and Schuster, 1967), p. 476.. 28 Francis Ching-Wah Yip, Capitalism as Religion: A Study of Paul Tillich’s Interpretation of Modernity (Cambridge, MA: Harvard Theological Studies, as distributed by Harvard University Press, 2010), pp. 54, 143. 29 Ibid., pp. 54-55. 30 Gordon W. Allport, The Individual and his Religion (New York: Macmillan, 1960 – first ed. 1950), 31 Cardinal Joseph Ratzinger, ‘In the Beginning…’: A Catholic Understanding of the Story of the Creation and the Fall (Huntington, IN: Our Sunday Visitor, Inc., 1990 – first German edition 1986), pp. 53, 51.
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32 See Sanford Levinson, Constitutional Faith (Princeton, NJ: Princeton University Press, 1988). 33 United States v. Kauten, 133 F. 2nd , at 708 (1943). 34 Torasco v. Watkins, 367 U.S. at 493, 495 (1961). 35 Ibid, at 495, note 11. 36 United States v. Seeger, 380 U.S. 163 (1965). 37 Ibid., at 5, 6. 38 Ibid., at 7, 8. 39 Keith Ward, Why There Almost Certainly Is a God: Doubting Dawkins (Oxford, UK: Lion, 2008), p. 20. 40 Ibid., p. 78, 41 Meir Y. Soloveichick, “Torah and Incarnation,” First Things No. 206 (October 2010), pp. 48, 46. 42 Rebecca Redwood French, “From Yoder to Yoda: Models of Traditional, Modern and Postmodern Religion in U.S. Constitutional Law,” 41 Arizona Law Review (1999), p. 49. 43 Lee J. Strang, “The Meaning of ‘Religion’ in the First Amendment,” 40 Duquesne Law Review (2002), p. 181. 44 Morriss and Cramer, “Disestablishing Environmentalism,” p. 316. 45 Richard Collin Mangrum, “Shall We Sing?: Shall We Sing Religious Music in Public Schools?” 38 Creighton Law Review (June 2005), p. 825. 46 Joyce Wadler, “Green, And Still Feeling Guilty,” New York Times, September 29, 2010. 47 Morris and Cramer, “Disestablishing Environmentalism,” p. 331. 48 John Copeland Nagle, “The Spiritual Values of Wilderness,” Notre Dame Law School, Legal Studies Research Paper No. 05-19 (2005), pp. 2-4 49 Roger Sedjo, “Does the Forest Service Have a Future?” Regulation, Vol. 23, No. 1 (2001), p. 50 Jeffries and Ryan, “A Political History of the Establishment Clause,” p. 290. 51 See Robert H. Nelson, The New Holy Wars: Economic Religion versus Environmental Religion in Contemporary America (Penn State University Press, 2010).
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