“One might be tempted to dismiss this argument as ridiculous and the plaintiffs as fringe figures,” Charles McCrary writes at Religion & Politics. You might think that refers to something directly related to the “Kraken” variant of Q-Anon that has been losing court battles coast-to-coast ever since Joe Biden’s massive victory in the 2020 presidential election. But the “Kraken” kraziness of the coup klutz plan has the endorsement of the sitting president and a majority of Republican representatives in the House, so while it’s ridiculous, it’s hardly “fringe.”
And the case McCrary is discussing — “Black Lives Matter and the Color of the Public Square” — is only indirectly related to that. He’s talking about the motley team — a street preacher, a disbarred-lawyer/DJ, and a bull-rider-turned-lobbyist — that tried this summer to sue the city of Washington, DC, claiming that its Black Lives Matter plaza violated the First Amendment’s prohibition against the establishment of state-sponsored religion. As McCrary writes:
They seem like a wacky bunch, and their lawsuit is certainly “colorful.” But their claim that Black Lives Matter (BLM) is part of “the religion of Secular Humanism” — and their tactic, to combat “secular humanism” by alleging an Establishment Clause violation — is not novel. In fact, they are participating in a tradition that is decades old. And in some cases, similar legal arguments have had some success.
The tactic isn’t so much a legal “argument” as an antinomy. Like, “The barber shaves all those and only those who do not shave themselves. So who shaves the barber?” That’s fun wordplay — creating paradoxical categories by using words like “all” and “only” — but it takes a particular form of sophomoric stuntedness to mistake Shaving the Intolerant Barber for having said anything meaningful about the world. Those arguing that by refusing to establish their preferred religious sect the state is thereby establishing an official religion of secularism are making the same annoying non-argument as someone who says, “Oh yeah? Well if God is all-powerful, can God make a rock so heavy that he can’t lift it? No? Then in your face, believer — there is no God!”
Such people seem to be as incapable of learning as they are of thinking. Answer not such fools according to their folly, lest you also wind up swallowing your own tail and calling it dinner. Just send them all off to their own space somewhere else where they can congratulate one another over the fact that their intolerance has, indeed, rendered them intolerable.
There is one variant of this self-inflicted word-game posing as an Establishment Clause argument that I am still waiting to see. Someday, some addled sectarian will argue that the Establishment Clause itself violates the Establishment Clause because it is pervasively Baptist — that the insistence on non-sectarian legal pluralism itself constitutes an establishment not of “secular humanism” but of Baptist doctrine. (I don’t want to see such a rock-too-heavy-for-God-to-lift argument succeed, of course, but I’d love to see someone make it just to watch Al Mohler’s head explode.)
McCrary does yeoman’s work summarizing the various theological strains that fed into the tortured claim that any non-sectarian government lacking an established state church is therefore a sectarian government establishing the religion of “secularism.” Some of those strains are smart and interesting — if ultimately, still, unworkable — such as the Reformed/Kuyperian school that feeds this stuff. Some of those strains are just bonkers and dumb — such as the white nationalist, Southern Gothic ravings of R.J. Rushdoony and the “Reconstructionist” nonsense he spawned. (McCrary also mentions Francis Schaeffer, whom he correctly positions closer to the bonkers Rushdoony end of that spectrum.)
The problem that all of these ideologies run into when trying to make their Establishment Clause argument is that it isn’t an Establishment Clause argument at all. It’s a Free Exercise argument. What they’re all saying is that their particular sectarian beliefs require the full acquiescence and support of government — that it is impossible for them to freely exercise their own religion unless that religion is officially established. This produces the illogical logic of what I’ve called the “persecuted hegemon”:
Once you believe that your faith requires cultural dominance, and that it deserves it, then any threat to that dominance — even just the unwelcome reminder of the existence of alternative points of view — is perceived as a threat, as a kind of persecution. Thus, for example, Hannukah is perceived as a threat to, and an attack on, Christmas.
The persecuted hegemon is thus an oxymoronic creature driven by an oxymoronic principle: non-reciprocal justice. For these folks, turnabout is never fair play, turnabout is merely backwards. Thus when others respond to them in kind, or even simply remind them of the Golden Rule, they take offense, as though this constitutes an injustice toward them.
… This points to the key confusion of the persecuted hegemons. They are unable to distinguish between challenges to their hegemony — to their privilege — and threats to their faith itself. … Your freedom threatens my freedom to live in a world in which people like you are not free to do the sorts of things you might do with your freedom.
What’s particularly interesting about the case McCrary discusses is the plaintiffs’ unexamined presumption that their religious faith is directly attacked by the assertion that “Black Lives Matter.” They see that staggeringly modest assertion as a direct refutation of their religion. They are white Christians and here is an official government agency directly attacking the essential crux of their faith.
For their religion, their sect, any legal recognition of the humanity of Black folks is anathema and so they — accurately — perceive the post-Reconstruction Constitution as a threat to their religious mandate to establish white hegemony. Allowing Black Lives to matter, like allowing Black Americans to vote — or even accepting “Black Americans” as a legitimate category and not an oxymoron — is perceived by these white Christians as an intolerable restriction on the free exercise of their religion, which forbids them to live in any society permitting such things.
McCrary nods in the direction of something he comes just shy of saying outright: The white religious right’s obsession with its bogeyman of “secular humanism” is a white-supremacist backlash against Brown v. Board of Ed and all that followed it. While the free-exercise religious demand of white supremacy is not usually as explicit and all-consuming in most arguments against “secular humanism” as it is in this case, that demand and motivation is never absent.
And so, as I said, this oddball fringe case that got smacked down in court is not wholly unrelated to the Kraken conspiracism now dominating the Republican Party. Street preachers railing against “secular humanism” are saying the same thing that Donald Trump is saying when he rails against “election fraud.” They’re both saying that Black people are not “real” Americans and that their votes, voices, and lives should not matter.
It turns out the question is never really “Who shaves the barber?” It’s “Who is my neighbor?” And if there’s one thing Jesus taught, it’s that you never want to be the guy asking that question.