Thinking In Public

September 30, 2020

Christians and Pagans in the City: A Conversation with Legal Scholar Steven D. Smith

Transcript

Albert Mohler:

This is Thinking in Public, a program dedicated to intelligent conversation about frontline theological and cultural issues with the people who are shaping them. I'm Albert Mohler, your host, and president of The Southern Baptist Theological Seminary in Louisville, Kentucky. Steven D. Smith is the Warren Distinguished Professor of Law at the University of San Diego. Since earning his law degree from Yale University, Professor Smith has taught at numerous institutions, including the law schools of Notre Dame University and the University of Virginia. Prior to that, he served as a law clerk for three years on the prestigious United States Court of Appeals for the Ninth Circuit. He's a sought-after legal authority, especially on issues of religious freedom. His most recent book, Pagans and Christians in the City: Culture Wars from the Tiber to the Potomac, makes an important argument about the clash of world views playing out now in the public square. That book is the topic of our conversation today. Professor Steven Smith, welcome to Thinking in Public.

Steven D. Smith:

Thank you. It's really a pleasure to be here with you.

Albert Mohler:

I have looked at your work over the course of the last several years and I've read your books as they have come out. It's a remarkable production by any measure. Your books are generally published by major university publishers. I want to turn to the content of the books, but let me just ask you as a kind of a background question, how do you approach writing your books, such as your newest book, which is going to be the main topic of our conversation, Pagans and Christians in the City? What is your process of writing?

Steven D. Smith:

Well, I'll answer that maybe on... I'll try to answer that on a couple of levels. One is I actually never planned to be a law professor... or a lawyer for that matter... and I ended up, through some interesting circumstances, in this field, which has worked out pretty well for me. But I've always been more interested, to tell you the truth, in religious and philosophical type questions than in strictly legal questions. I just don't work up the interest to write a book or even a major law review article on a purely legal question. So, from the beginning of my career, I've always looked for places in which the law interacts with religion or philosophy or sometimes, to be honest, some way in which I can explore some religious or philosophical question that I'm interested in, in a way that I could put it in a legal guise so it might be publishable in a legal source. I usually get interested in some subject and I try to find some legal application for it. More mechanically, I... and I think people do this differently, I tend to research and write at the same time. I'm not someone who does all the research first and then writes up the results. I've done some reading, some research, I start writing something, I do more reading as I go along. The reading shapes the writing and the writing shapes the reading.

Albert Mohler:

Actually, in Pagans and Christians in the City, you engage with a book that came out... a major book... while you were writing the book. You engage with it, but point out that you weren't able to do as much with it as if it had been written before you began the book.

 

Steven D. Smith:

You might be referring to Tony Kronman's book, Confessions of a Born-Again Pagan.

Albert Mohler:

Yes.

Steven D. Smith:

Yeah, that's right. I had seen little notices indicating he was working on something on that subject, but... and I even, at one point, emailed him and said, "I understand you're working on a book on paganism," and he... who is a really nice, cooperative guy, by the way, I think, but he didn't... maybe because I didn't realize this, but his book is like 1,200 pages long or something.

Albert Mohler:

It's massive.

Steven D. Smith:

He didn't send it to me. He just said, "It'll be out..." And I think it came out maybe in 2017, when I had pretty much finished this one. It takes a while, with an academic book, between when you finish it and when it actually sees the light. So, all I could do was add a couple of references to Kronman's book.

Albert Mohler:

Speaking of your first meta-picture of how you write, you're on good ground there. Because even the formation of the medieval university, there were basically three professions—medicine, law, and theology—because they were the three most pressing issues of public consequence in the medieval world. And, of course, built around the universitas—the idea of the unity of truth, actually, in Christ, with theology, the queen of the sciences. But if you just take the two most famous of the magisterial reformers, Martin Luther and John Calvin, both of them were intended for the law, but ended up in theology. There's a sense in which you're on very good ground.

Steven D. Smith:

With me, in a sense, it went the other way from Martin Luther. I would've preferred to go to grad school in philosophy or something of that sort, and ended up in law, but still found a way to bring them together, I think.

Albert Mohler:

Interestingly, both Calvin and Luther, of course, had fathers who wanted them to go into the law because they wanted the money that would come with the legal profession, but you've been in the teaching of law, now, for a long time. In your latest book, Pagans and Christians in the City, the subtitle, Culture Wars from the Tiber to the Potomac, you really expand on the arguments you've been making for years. I have a small library of your books, The Disenchantment of Secular Discourse and The Rise and Decline of American Religious Freedom, and, actually, you have about four books on religious freedom issues prior to these that I brought. But, in this latest one, you really update your argument and you place it in the context of a different cultural moment. You were hinting at all of this in your previous books, but something has happened in the culture that occasioned Pagans and Christians in the City.

Steven D. Smith:

Yes. Well, if you're interested to know what immediately caused that, I can actually tell you in this case. I had not really studied much Roman history as an undergraduate or before. I started reading a little... I'd been interested in Christian history for some time and I'd started reading a little Roman history several years earlier because, like many people, I start wondering about parallels between some of the things that happened in the Roman Republic and, later, the Roman Empire and things that are happening today. But I hadn't done much with that. Then, in 2015, you'll probably recall Indiana passed a Religious Freedom Restoration Act and basically all hell broke loose. And I was asked by a sort of a religious freedom blog to write a little essay on that. As it happened, it had been the T.S. Eliot book that I start this book with, and so I just... You're always looking for a little different angle rather than just say the same thing that everybody says, so I worked the T.S. Eliot book in for a paragraph. And, as it happened, Stanley Fish likes to visit at the University of San Diego and he was out at San Diego and he's always a fun person to talk with. He read my little blog entry and he said, "Well, it was pretty interesting and the thing that made it interesting was the T.S. Eliot material." And it just occurred to me, it would be interesting to expand that, and it would give me an opportunity to read a lot of things that I'd like to read anyway and so forth. So I didn't know... Of the different things I start, some of them go someplace and a lot of them don't, but I started that one and I just started reading a lot of Roman and early Christian history for a while. And so that part of the book, of course, is probably half of the book, the now and Roman history, which isn't my specialty, but I found it to be quite, I hope, illuminating. It was for me, at least.

Albert Mohler:

Well, I think it will be for any reader and I think, particularly, for those who think they have some idea. In the Western tradition, we have kind of an inheritance of interpretation on Rome and, unfortunately, at the head of the most influential stream, is someone like Edward Gibbon, his Decline and Fall of the Roman Empire, and he basically, by my view, gets almost everything wrong. But that has become nonetheless...

Steven D. Smith:

But he writes very well.

Albert Mohler:

Right. I think of Winston Churchill, by the way, writing his mother during the First World War, asking her to send him Gibbon, by the way, to make your point, and his leather in guild, of course, edition of Gibbon came and, later in life... Churchill having won, by the way, the Nobel Prize on Literature... he actually credited Gibbon's prose with helping him to find his voice in writing. So, there's no doubt. His argument would have been probably submerged but for the eloquence of his prose.

Steven D. Smith:

And it does, obviously, have a kind of majestic sweep to it. But it does, as I say and kind of as you said... I mean, it reflects the Enlightenment take on things that was standard among Enlightenment thinkers in the 18th century, the kind of anti-Christianity, that sort of thing, which I think, in many quarters today, especially in the academy where I work, is just axiomatical. People who haven't necessarily looked into it much, but they just take that as established truth.

 

Albert Mohler:

So, before we turn to issues of law, let's talk about what interested you, because, frankly, both of these fascinate me. I have several editions of Gibbon, including one that came out the year of its publication. It's interesting. I have an ongoing conversation with Gibbon. And then you mentioned T.S. Eliot. Most people know him by his poetry. I actually find much of his poetry incredibly theologically revealing, but it's his prose that I think draws me even more. You draw attention to his essay as does Robbie P. George, Robert P. George, at Princeton in his very eloquent foreword to your book. It's his essay on a Christian society that really has... with its distinction between paganism and Christianity, and Eliot's prescient observation that paganism is back and big. Then, with Gibbon, the two things I think he got wrong, which are his two main points, were that paganism was this productive, tolerant, life-affirming worldview that gave Rome strength whereas the second issue is he held that Christianity eventually became intolerant, inflexible, took the joie de vivre out of Roman life and led to the Roman Empire's collapse. I think, on both counts, he's just absolutely wrong.

Steven D. Smith:

Right. I mean, Gibbon famously said that the Roman Empire fell because of the forces of barbarism in Christianity. He does, obviously, give a really negative depiction of Christianity, and Judaism even more so. He doesn't say that much about Judaism, but very negative depiction of Judaism, I think. But I suggest in one of the chapters that both Roman pagans and Christians thought that there should be some mutually acceptable way of living together, fully respectful of each other. Christians like Tertullian certainly say that. “We support the Senate. We pray for the emperor. Why do you persecute us?” And Romans, I think that many, let's say, sophisticated Romans would have thought that we have a polytheistic, an embracing kind of religion. We can embrace the deities of all kinds and so forth and we can embrace your deities, they thought, I think, about Christianity. As long as you were willing to have them just be your god be one god among the various gods among the Pantheon. What's so unacceptable about that? I think, on both sides, they failed to understand how the terms that they thought should have been mutually acceptable really weren't. The pagan terms were... Christians like Canisius would say, they want us to have our God acknowledged as one among many, but to do that would be to renounce our God. That is not the God that we worship. But on the other side of things, it was true also that Christians and the Christian Gospel was subversive of the religious foundations of the Roman Empire, which were pagan. So, to that extent, although Gibbon’s pejorative characterization of Christianity, something I don't share at all, I think he was right, that Christianity was one thing that, in a certain sense, was subversive of the ancient Roman Empire. It's complicated because, of course, it also held the empire together after Constantine for a while. You could argue that it helped to revive and hold it together for a period of time.

Albert Mohler:

Well, I certainly agree with you on those observations. If nothing else, the statement that Jesus Christ is Lord relativized instantly all of the emperor worship and that, of course is not a matter of Christian shame, but of Christian pride. And, by the way, you have a very pithy way of saying things in your writing. I think the reviewer Book List said it's the easiest to read academic book that the reviewer had ever read. But you say things like, "The Romans didn't so much believe in their gods as they had gods." That's just instantly clarifying and, I think, very true.

 

Steven D. Smith:

Yeah, I might've been quoting Robert Wilken or some other scholars who tried to make that point. In some ways, I... and so that seems to be right. I take that from scholars of Roman history and I'm not one of those. But I do also try to say that I think belief can't be excluded all together. You can't exactly have gods unless you, in some sense, believe in them and so forth. So, it's an interesting question...

Albert Mohler:

But it's not really theological. By the way, I appreciate you mentioning two people about as different as one could imagine—Robert Wilken and Stanley Fish. I'm glad to say both of them have been my guest for Thinking in Public.

Steven D. Smith:

Really?

Albert Mohler:

Again, from two completely different worldviews, and here we are, mentioning them.

Steven D. Smith:

They're probably both very interesting to talk to, then.

Albert Mohler:

Oh, they are. And both of them incredibly provocative and open in conversation. We're dependent upon Professor Wilken for a lot of our understanding of recent scholarship in the early church.

Steven D. Smith:

Oh, for sure.

Albert Mohler:

And then, also, of religious liberty. He's written this monograph, which we discussed last…

Steven D. Smith:

Recent book on that. Yeah.

Albert Mohler:

... on religious liberty, which is really fascinating. But the issue of Lewis, before we leave, even when you begin the book. When he talks about this re-paganization of society, which is, I think, exactly what we are witnessing now, a re-paganization of society, he makes a statement that the historical process does not allow for a real reversal when you're looking at the trajectory of civilization. He said, quote, "It's not what happens." That's a fairly ominous word, isn't it?

Steven D. Smith:

And when he said that, he said that also in a Cambridge lecture, which I haven't really researched this closely, but in reading it, I wondered whether he might have been specifically responding to T.S. Eliot's lectures there a few years earlier. He might've been, in a sense, disagreeing with Eliot. I tend to think that, depending on how you define it and how you look at it, there can be truth in both views. One might well say, well, the kind of paganism that most people have in mind, and also the kind that C.S. Lewis might've been thinking about, probably can't be revived. So even if you look at that, to some degree, it's possible to do and say, there were a lot of virtues. There was a kind of joy in life in a certain way. The paganism that would be revived would probably not be that appealing kind of paganism. It might be something much less attractive. Lewis was probably right to that extent.

Albert Mohler:

By the way, I often get asked by reporters or respond to people in the public when they talk about their fear of the religious right and I always tell them, what you should really fear is the irreligious right. There are different kinds of paganism. There are different kinds of Christian attitude, frankly. But when it comes to the paganism that's being celebrated in our society right now, it's this idea of paganism as sexual liberation and what you will talk about later in your book as the immanent sacred. I want to wait for just a moment because I think that's actually the very best observation you make in the entire book, a crucial category for intelligent Christians trying to understand the world today. One of the things you're quite candid about in your book, and necessarily so, is the sexual practice of ancient Roman paganism, because it kind of represented a form of institutionalized... well, a sexual hierarchy. So many things that you would think that the modern progressive left would say they don't actually believe in. It wasn't just some kind of Foucault vision of polymorphous perversity. It was something quite different.

Steven D. Smith:

Well, it was hierarchical, certainly, in the sense that it was... The norms applicable to men were utterly different than the norms applicable to respectable women. In that sense, it was.

Albert Mohler:

And the free and the unfree.

Steven D. Smith:

Yeah. For sure. That section, I relied quite a lot on a book... not very old. Time flies. I'm not sure how long. I was going to say a couple years old. It might be a little more than that. By Kyle Harper, who explains how the Roman's sexual economy relied so heavily on slaves and prostitutes as, basically, the material that would be used to satisfy the sexual desires of Roman males, essentially.

Albert Mohler:

Yeah. Well, what we're looking at as your book unfolds is the fact that you really trace how so many in the intellectual class, in the English speaking world, were really attracted to a vision of paganism that they thought might be a replacement for a declining Christianity from, say, the late 18th century onward. You include a quote from William Wordsworth, in which he speaks very much of this. "Great god," he said. "I'd rather be a pagan suckled in a creed outworn." Using his poetic language. There really was this revivification of paganism.

 

 

Steven D. Smith:

Yeah. Someone like Wordsworth and Romantics are probably in part reacting to a world that as they perceive has become commercialized and industrialized and disenchanted, to quote Weber, and look back fondly and think, that older world was more enchanted. It was full of poetry and romance and so forth. There are depictions of Christianity that are often unfair but sometimes probably are realizations of some forms that do depict it as joyless. I actually think that's one thing that Christians, in general, probably need most to respond to and show that’s not the nature of the faith. It's joyful. It's full of meaning. At some point, I had the sense that our world, whether different aspects that you look at, is becoming so plainly empty of meaning. There's some desperate search for some sort of meaning and most of the available sources of it are so shallow that, at some point, you hope maybe people generally will wake up and say, actually, the only... maybe or at least one of the only viable sources of what we're looking for is over there. Something we've been taught by most of our upbringing to think was the thing that squashed it all, but no, that's where it is.

Albert Mohler:

I'm actually working on an essay right now, by the way, demonstrating the decline even of the use of the word joy in a secular context. Instead, you have words like happiness or satisfaction. The Christian category of joy has kind of disappeared. It's just not used that much. I think we have a real opportunity as Christians to…

Steven D. Smith:

Yeah. There's more than just the satisfaction of consumer preferences and so forth.

Albert Mohler:

Yes, and Christian joy is rooted in the joy in this real life, in this real world, but without full satisfaction except in the age that is to come. That provides a completely different worldview. When I was in college, Professor Smith, I was assigned to read Peter Gay's two volumes on the Enlightenment. As a young person in the late 1970s trying to understand the world, Peter Gay helped me a lot, actually, by looking at the Enlightenment and casting it in a different light than I had been taught previously. I actually went to a high school that taught philosophy. I don't know if there are any more, but my philosophy teacher, the Enlightenment was the great unshackling of humanity. Peter Gay, who, by the way, I think enthusiastically would have said the same thing if you gave him one sentence, but nonetheless, one of the subtitles of his book was, or one of the volumes was, The Rise of Modern Paganism. It helped me theologically to see, as a young Christian trying to understand the world, that It reminds me of a statement made back in the 19th century that there are no new heresies. The heresies are all perennial. They just keep showing up in different costume.

Steven D. Smith:

Yeah. But I think you're also right that when Peter Gay used that subtitle, he meant it to be an endorsement.

Albert Mohler:

Oh, yes.

Steven D. Smith:

He's enthusiastic about it.

Albert Mohler:

But he did see the dark side. I mean, he clearly... For one thing, talking about joy, he helped me to see how unhappy many of these Enlightenment thinkers were. For people who were supposedly newly liberated, they didn't seem very happy about it. But you deal with, actually, the subject of my ongoing concern, which is secularization. It's a contested category, but only among an elite who want to argue over definitions. The most influential figure, in my view, was Peter Berger, the late sociologist, who lived long enough to revise his understanding of secularization. But he basically said that we thought the world was going to secularize along the lines of Durkheim and the idea that modernity would just push religion out and you'd have this new secular age. He bought into it until it didn't go that way. As he said, it did go that way in Western Europe and the American university campus, but it didn't go that way anywhere else.

Steven D. Smith:

It didn't go that way in the world generally.

Albert Mohler:

But then he said, it still... He said, what actually happened was pluralization, in which Christianity just becomes one option among others. But by the very end of his life, he said, basically, that's just secularization in a different tune than we predicted.  And I think he's largely right. It was a different tune, but the average person today is inhabiting a different intellectual world in the West than was possible even a half century ago.

Steven D. Smith:

Yeah. So, secularization didn't happen, as you're saying, in the way that was expected. People would just quit going to church altogether. I think Peter Berger in about 1968 has something where he says, by the 21st century, religious people will inhabit small cells and so forth. It didn't happen that way, but as you say... It's really complicated. I have a son, actually, who's in grad school in sociology at Penn State right now and studying secularization. He was home two or three weeks ago and was talking about different people he's reading. There's still a whole lot of different takes on this. Some of them seem plausible to me. A common view is differentiation view. It's not that people aren't religious anymore, but religion has been relegated in many contexts to the private sphere, excluded from a lot of government, excluded from the universities, and so forth. So, it's pretty complicated, and so many of that has happened.

Albert Mohler:

My argument is the Western world, in particular, and by its influence, much of the rest of the world, is being secularized. It's just an uneven process with different secular variants. But, as a theologian, I'm going to define secularization in the declining binding authority of theism. That someone over here's got a crystal collection or someone over here's got a ritual consultant for his Fortune 500 Corporation. That, to me, is evidence of the persistence of the religious impulse by the imago dei, but there's no binding authority of theism there.

Steven D. Smith:

You're right. No, I think you're right about that. The one other dimension of this that I try to stress in the book, though, is that I think there's a religious dimension to a lot of what goes... Let's say, progressivism. It's not secularism of the positivistic kind—just fact value and we just deal with facts. It's religiously infused. It's just not theistic or transcendently infused.

Albert Mohler:

I can remember when in high school, studying physics, I came to understand the idea of a steady state. Ever since then, as a theologian, I say I have a steady state theory of morality and religion. There's never actually more or less. It's just differentially directed. I'm trying to think of who it was years ago. It may have been someone like Martin Marty who said, we've gone from a society that has infinite rules about sex that now has infinite rules about diet, but moral judgment is present in both. In your book, Pagans and Christians in the City... By the way, when you say in the city, you really mean in the society. It's a great way of even using the term that Augustine made, I think, permanently meaningful for us.

Steven D. Smith:

I was pretty much trying to use it in that way, with a reference to that.

Albert Mohler:

Just for those who may not know, Augustine, the most influential of the church fathers, actually, would argue... whose great work written as Bishop of Hippo, as the Roman Empire was understood to be falling, was the City of God, in which he described the city of man and the City of God, two different loves, but made very clear that God loves both cities. And, thus, we as Christians have a responsibility to the city of man and even a proper love for the city of man, in particular, for the inhabitants thereof. That takes me to the last half of your book because you clearly care about these issues a very great deal. It's not just a dispassionate academic impulse here. I think the most helpful part of your book is where you make a very clear distinction between the transcendent sacred and the immanent sacred. Honestly, Professor Smith, I have to tell you, if that's all you wrote about in this book, it would've been, I think, an incredibly worthy book. As a theologian, I want to say I think that distinction applied to our world is just incredibly clarifying. So, talk about it for a bit.

Steven D. Smith:

The initial challenge, I think, in trying to defend... I mentioned already that I thought, well, could I write a book-like project that would try to defend T.S. Eliot's thesis? And defend it against... his suggestion. Defend it against, for example, criticisms like the one from C.S. Lewis that you referred to earlier, that say we just can't go back to paganism. The question is, is there some sense of paganism that we could say is ongoing and that still is viable? This wasn't something I came up with on my own, but reading people like Egyptologist John Ausman and, for that matter, Abraham Heschel, the Jewish thinker and rabbi. It did seem that this immanent-transcendent distinction might be clarifying here. And so that is kind of the fundamental distinction that runs through the whole book. That there's transcendent religiosity and there's immanent religiosity. That, of course, is a distinction that theologians have used for a long time, but it is a really elusive one, to tell you the truth. Because, in practice, it's not always easy to separate things clearly into the immanent and into the transcendent. I try to suggest... and I suggest Augustine and others actually made this point quite emphatically... even if our individual lives, we have tendencies both ways. We're pulled back and forth, I think. So, in one way, it's an essential distinction, and in another, it's really difficult to apply. And some of the criticism of the book has really emphasized that as well. It’s tried to say this distinction doesn’t work; you can't really explain anything with it. Or, in fact, that I got it backwards. There was a review by a theology professor at USC, I think, David Albertson, who basically said it's just backwards. The pagan religion was transcendent in this orientation and Christianity was immanent. I didn't know this, really, at the time, that I was writing the book. I've done some reading since then. But I think... Well, with movements that are described as modernism... beginning, let's say, in the 19th century and moving into the 20th century... I think within Christian circles themselves, there's been... in some circles... a strong tendency to try to make Christianity an immanent religion rather than a transcendent religion.

Albert Mohler:

Well, let me speak as a theologian here and so let me tell you, I think you get it basically quite right. When we're talking about the terms transcendent and immanent, we're talking properly about theology proper, which is the doctrine of God. As we speak theologically of the attributes of God, try to describe him as He describes himself, reveals himself in Scripture, He is, first of all, transcendent. He's separate from His creation and Lord over, sovereign over, His creation—the entire cosmos. He is also immanent in that He is present in the world, but He's not present in the world bodily, as in paganism, or materially, but rather through the exercise of His sovereignty and the presence of the Logos, we've come to know as the second person of the Trinity, the Lord Jesus Christ, and then the Holy Spirit. But the movement of 19th century Protestant liberalism, and well into the 20th century, it stressed the imminence of God at the expense of His transcendence. We're not going to talk about the ontological Trinity and issues of formal theism. Instead, we're going to talk about what it means that God loves us. It gets to the creed of the Boston Unitarians, which is the brotherhood of man, the fatherhood of God, and the neighborhood of Boston. By the time you get to the early 20th century, with liberal forms of postmillennialism, the charge coming from the orthodox is that what the liberals are trying to do is to immanentize the eschaton. They're trying to redefine all of theology, all of Christian orthodoxy, into, basically, secular, terrestrial terms. And so, an over-stress on the immanence of God is the opposite, actually, of the biblical framework, just to read the Psalms. So there's a very good theological basis for what you're saying here, but what I think is crucial to your argument... I'd like to have you spell out a bit more... is the fact that the distinction between transcendent sacred and immanent sacred is that our modern powers that be, the shapers of society, they're quite willing to embrace an immanent sacred, but they don't want anything to do with a transcendent sacred because that transcendent sacred comes with sentences that take the structure of, for instance, thou shalt not.

Steven D. Smith:

Yea. And I think this was true in Rome and late antiquity and its true today. The thing about the transcendent sacred, which will be attractive to people in some ways, but really quite repelling in other ways, is that there's a standard against which things that happen in history and in this Earth can be judged. So, in a certain sense, that's good because there's a standard, for example, of justice that we can apply and say, even if this type of thing has been common... slavery, let's say. Even if it's been common throughout history, it's unjust. But on the other hand, what human beings often don't like is the idea that everything I do is, in some sense, subject to some standard of judgment. That can seem oppressive to some people and I think there's been a lot of resistance, anciently and today. There just is, I think, resistance to that.

Albert Mohler:

You get to a very relevant, abrasive tension point on this in our society, but before we leave that basic distinction, I think it's just really helpful to understand that that kind of goes back to what we were talking about with a more sophisticated understanding of secularization. The sacred is there. It's just that, for many people, it's basically a very worldly sacred, not a transcendent sacred that with…

Steven D. Smith:

And I argue that that kind of secularism is probably, actually, much more common than the official, positivistic version that just denies that there's any sort of sacred.

Albert Mohler:

You really press that in, I think, a brilliant way when you say that the immanent sacred is very much in the driver's seat in this society, but that really does mean that the transcendent sacred appears to be the enemy of human joy and goodness and liberation. So, it's not just that you have both immanent and transcendent claims. It's that those who are committed to an entirely immanent sacred and sacralizing, they see someone like either a Muslim or an orthodox Jewish person or orthodox Christianity as a threat to human liberation and flourishing.

Steven D. Smith:

Oh, definitely. That's a common perception, I think. Common mistake, I think, but a common perception.

Albert Mohler:

But it explains the world you live in every day, which is a world of the law, which is having to adjudicate so many of these matters.

Steven D. Smith:

If I can, in no doubt oversimplified terms, explain what it seems to me has happened...

Albert Mohler:

Yeah.

Steven D. Smith:

And I should say, this may sound like I'm treating this as some sort of conspiracy or something, and I don't mean it that way. I think a lot of times that's happened through well-intended people who just were doing what seemed like the right thing to do. But it would go something like this. In a religiously pluralistic world, it seemed that public norms and the Constitution couldn't depend upon religion because there's no common understanding of that, and so it needed to be secular and neutral. Those things needed to secular and neutral instead. Those are the common themes in constitutional law in lots of areas. But what actually happens when we say that is that... Again, I'm not intending any nefarious, conscious design on the part of anybody, but essentially, is smuggled in an immanent sacred instead. The transcendent sacred gets excluded. The immanent sacred gets imported under the heading of secularism and religious neutrality. In a nutshell, I think that's basically what modern constitutional law has done in the area of freedom of religion, but in lots of areas. The different areas that deal with sexual norms and so forth. It's been a kind of an importation of an overall immanent worldview and declared that that's basically our orthodoxy now.

Albert Mohler:

Well, it is our orthodoxy now. As a matter of fact, at more than one point, you make a statement like every time the immanent and the transcendent sacred come into conflict in the law, basically the immanent sacred wins or tends to win.

Steven D. Smith:

In the law, that tends to true. It tends to be true. The reason, once again, though is because the immanent sacred is clothed in the garb of secular neutrality and so forth, which is supposed to be hospitable to everyone, but that's just a false description, I think.

Albert Mohler:

You deal, in your book, with the Harvard Law professor, Mark Tushnet in his rather infamous essay of several years ago on abandoning defensive crouch liberalism. He really was saying to orthodox believers and those who would hold to the transcendent sacred, look, we won, you lost, don't expect any compromise. I'm paraphrasing him here, but it's we won, you lost, deal with it.

Steven D. Smith:

Yeah. I kind of wonder whether he regrets having published that little essay or put it online, a little blog post that he wrote, called something like Abandoning Defensive Crouch. It got a lot of attention and a lot of pushback and so forth. Even from his own side of things. It might have been bad strategy for him to be quite that blunt about things because people, including me, have quoted him against his own interest. I should say, I'm not wholly unsympathetic to Tushnet. For one thing, I kind of like him as... I think he's an honest guy who's trying to understand things and a smart guy and so forth. And the issue that he was talking about... and that is a very real issue for a lot of us, I think. It's kind of a question like this. If you... again, somewhat oversimplified, but... think of there being two main sides in the culture wars. Kind of in the way James Davison Hunter described it. Something like that. I'd guess an ongoing question for, I think, many people and many Christians is, is there some possibility? Should the hope be to come up with some modus vivendi in which we can all live together or is it going to be, kind of as Eliot said, no, one side or the other is ultimately going to prevail? Tushnet is clearly on the progressive side of things and he thought, at that point, not implausibly... in fact, I think you've sort of been agreeing with him to some extent... that it looks like the progressive side has prevailed. He was declaring that in maybe overly blunt terms and so forth, but it's not clear that he was wrong. So I'm somewhat sympathetic to what he has to say. He, of course, rejoices in that and I don't, but still. I think he was making an honest statement. We can appreciate him for doing that, I think.

Albert Mohler:

Well, I think we appreciate honesty wherever it's found, but it's a brazen statement and it helps us to understand why... For instance, one of the things I face continually in public conversation is... and private conversation. I'm glad to say I feel responsible to have private conversations, not just public conversations with people who are in many ways intellectual adversaries and on these cultural war issues on the other side. And so, like you, I think it's important that we understand they think what they're doing is going to serve human flourishing and the human good. They think what we're doing is the opposite. So at least we have an honest disagreement here. But many of them simply can't understand... What they have to tell themselves and their side, so to speak, is why 40+ years... 47 years after Roe v. Wade, abortion is still an issue and still a contested question. Why, after Obergefell in 2015, same-sex marriage... In other words, if people won't just get with it and go along, they don't deserve to have a voice in the larger society and the negotiation of its matters.

Steven D. Smith:

Yeah. These are really hard questions. I mean, even just strategically, from a Christian standpoint. You have, I think, people... I don't really know for sure what your view is on some of these things, but I think you have people from, let's say, Rusty Reno, who suggests the possibility of some kind... using Eliot, in fact, the possibility of some kind of restoration of a kind of Christian society, to Rod Dreher, who probably gets misrepresented in some ways, but at least the title of his book, The Benedict Option, implies to a lot of people, some sort of retreat to we've lost the war and we might as well try and find some enclave. I think those are really hard questions. It's really hard to know what the right course would be at this point.

Albert Mohler:

Given my own worldview and theological commitments... and, by the way, as a confessional historic Protestant and even more so as a Baptist of all things, a conversionist, I don't see any way that there's a return to a reestablished Christian consensus without there being an overwhelming return to Christ and to Christianity. In other words, I think what we've had is the residue of that Christian conscience, but I don't think the Christian conscience can be re-imported without Christianity. But I also think that Rod Dreher... both of them are people to whom I have very friendly relations and cross-fertilization in thinking. Rod Dreher is a friend, I would say, but I just want to point out that The Benedict Option isn't what it might appear at first if you're doing interviews worldwide about it and being published by a major publisher in that larger world. By the way, that's no hypocrisy on Rod's part because he's honest about what he's doing, but there's some people who look at that and think it just means absolute withdrawal. The reality is that Christians as a cognitive minority in this world, while we're in a representative democracy, a constitutional republic, are going to be in a continual struggle to figure out where we have to... what we have to do to be faithful in a society that's increasingly pressing us to the margins. And wants our children. Again, I don't mean that in a conspiratorial sense. Again, it's not a conspiracy if they tell what they're trying to do. I mean, they want to create a society that follows their vision of human flourishing, which we think is false.

Steven D. Smith:

Here, if you don't mind if I just…

Albert Mohler:

Please.

Steven D. Smith:

So, for me, one place where this choice or issue shows up is... Let me put it this way. I occasionally do a little bit of work with an organization I'm sure you're familiar with called ADF, Alliance Defending Freedom. I've written amicus briefs-

Albert Mohler:

I've worked with them as well.

Steven D. Smith:

... in cases and I'm also a member, actually... somewhat heterodox member... of the Church of Jesus Christ of Latter-Day Saints that has sort of orchestrated what is often called the fairness for all situation in Utah. So, ADF tends to be more hard line on certain... We don't want to compromise. If we compromise, we're just going to be losing out more and more. Whereas the other approach is, no, we need to find some terms in which we can all just... And I see the attraction of both of those positions. I just actually don't even know where to land on those positions.

Albert Mohler:

Without belaboring it, since you kind of raised the issue, I'm very unhappy about the fairness for all proposals and the so-called Utah compromise because it makes a distinction between institutional religion, which would be protected, and Christians or religious believers in the world who will  then be abandoned. I can't, in conscience, make that abandonment. Also, I think that... That's where Mark Tushnet's quote’s really helpful—it’s kind of a bracing reality point. The kind of people who will sign that kind of agreement from the, say, LGBTQ side are the kind of people who will sign that agreement. They're not necessarily the kind of people who will be actually making the decisions.

Steven D. Smith:

Yeah, absolutely. I mean, I have your reservation... Well, both of the kinds of reservations you've expressed, I think, here. Actually, one time a few years ago, I was giving a talk in Utah and people were asking me about this and I said, "Sometimes I have the impression that here in Utah, it's easy enough to say this because, on both sides of the issue, the people who are cooperating together are pretty much relatively moderate and in good faith and so forth and so you think it will work pretty well, and maybe it will here, but I'm not sure it's going to work that well when you get other people involved in other places and so forth." I'd wondered whether it's a little naïve to think that that could work... I mean, it’s introduced, as you probably know, in Congress now, but whether that could work out well on that level, I'm not sure.

Albert Mohler:

Just to make that point, politically, it doesn't stand a chance in the House under the current leadership.

Steven D. Smith:

No, it won't be passed. Although you may also have noticed commentary by Michael McConnell and others that suggest that you can interpret the Supreme Court's... some of the decisions over the last term as, essentially, the Supreme Court trying to bring about something like that compromise. If you put Bostock together with some decisions that seem to give pretty strong protection to religious freedom, you can read it as the court trying to bring about what Congress would never probably be able to pass. But, there again, whether that's a good thing or not, I don't know.

Albert Mohler:

And the other thing is…

Steven D. Smith:

The problem with something like this is... I have lots of doubts about whether that will work out well, but the other side is, so what should we be trying for? Is it just some kind of increasing polarization and some kind of civil war of some sort or other? That's why I think this is a really hard question.

Albert Mohler:

Well, I think questions like this are always answered over time. You're the legal scholar, but my point to make in response to what you said about the Supreme Court's adjudication on these issues is, yes, that's true, but the Supreme Court is dealing with two things there. One of them is the Constitution of the United States. The other is statutory law. If something passes like the Equality Act that has already passed the House, that would re-shift the situation. The Court will then have to deal with the law. So Congress could basically adjudicate this in a way that eliminates a lot of the religious liberty protections that the Court has put in place.

Steven D. Smith:

For sure. No, I didn't mean to be endorsing the Supreme Court decisions. I think the Bostock decision was an atrocious decision, actually. I've written some things... one thing, at least, criticizing that already.

Albert Mohler:

You, early in the book, raise the question of Douglas Laycock, who, by the way, is in this season of Thinking in Public, in which he kind of asked the question, why is it that those who are pressing, I'll just say, from the left, have to go to such an extreme that they will find the one cake baker in town who won't bake the cake and make him or her a national case? I have to say, by the time we get to the end of your book, you really do kind of answer Laycock's question, but you don't take it as... It was not quite as satisfying a conclusion as I was looking for. So, now, I've got the author on the line and I can say... Let me ask you to answer Laycock's question. Why is it so that those who are pressing this moral revolution can't even let one cake baker alone?

Steven D. Smith:

In fairness... to say two things... One, Doug's a really reasonable guy, I think, and has done tremendously good work in this area. I think he is genuinely trying to find some middle ground that should be. The other thing is that there are other people who are trying to do that, too. It's not that everybody is equally aggressive, of course, but you're right that there are plenty of people who are aggressive in that way. I guess my thought, and I try to bring out a bit in the book, is that just as I said a moment ago, in ancient Rome, you did have two fundamentally incompatible and there wasn't really any way to really reconcile them harmoniously, so there was ultimately going to be some sort of a conflict. Eliot thought the same was true today. Some people, at least on both sides, also think that that's true today, and so, given that, they and people like... Mark Tushnet, his essay would've expressed this view... say one side's going to win and we've got to make that clear.

Albert Mohler:

You might as well get it over with.

Steven D. Smith:

We've got to drive out of the public square the people who are holding to the other philosophies. I think not everybody thinks that, but there are a lot of people who do, I think.

Albert Mohler:

Just in closing... we're about out of time here... but I just want to ask you. With that in mind, what's the future of the free exercise clause? Because you would think that their... We have, from the very ratification of the US Constitution, a guarantee that we can't be silenced, but what does that really mean these days?

Steven D. Smith:

Well, at least there are some indications, and this is maybe just a short-term forecast, that the Supreme Court right now is fairly strongly committed to the free exercise clause. And, in a case they're going hear this year, the Fulton against Philadelphia case…

Albert Mohler:

Foster care.

Steven D. Smith:

... they've actually put on the agenda, should employment division against Smith, the decision in 1990 that reduced free exercise protection... Should it be reconsidered? I think there does seem to be a majority of justices who seem to be quite committed to free exercise, and I regard that as a good thing. However, I don't think it's a stable thing without some sort of cultural and legal foundation for that, which I don't believe we have at the moment. So, in that sense, the future of the free exercise clause to me is much more up in the air and it'll depend on broader developments and not just what lawyers and judges say about free exercise.

Albert Mohler:

So what writing project are you working on now? What should we be looking for?

Steven D. Smith:

Well, I actually just finished a manuscript that's going to be published by Notre Dame Press of a book called... What's it called? Fiction’s Lies and the Authority of Law or something. It deals with a number of normal, let's say, ordinary legal questions like constitutional interpretation and statutory interpretation and so forth, but it also tries... It takes off from Hannah Arendt's provocative statement that authority has disappeared from the modern world. We no longer know what it is and this amounts to the loss of the groundwork of the world. So, I try to use these legal issues, again, to get into that. And it ends with a sort of Augustinian conclusion a little bit like a theme that runs through the Pagans and Christians book.

Albert Mohler:

Absolutely. Professor Steven D. Smith at the University of San Diego in California, you've been incredibly generous with your time. This is a down payment on a conversation I look forward to having about your next book as soon as it comes out.

Steven D. Smith:

I hope so. Thanks so much for having me on. It's been an honor.

Albert Mohler:

God bless you, sir.

Steven D. Smith:

You, too.

Albert Mohler:

I really do believe that Pagans and Christians in the City is one of the most important books written in recent decades having to do with our cultural situation and where religious believers stand, and I’m speaking here as an evangelical Christian at the beginning of the 21st century and now as we're working our way into it. The issues are only going to become more fervent. They're only going to become more urgent. The necessity of Christian thinking is only going to become more important and primary in our lives. So, with that as a responsibility, let me encourage you to read Pagans and Christians in the City. I enjoyed this conversation with Professor Steven D. Smith and I want to thank him again for joining with me and thinking with me today.

If you enjoyed today's episode of Thinking in Public, you'll find more than 100 of these conversations at AlbertMohler.com under the tab, Thinking in Public. For more information on The Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com. Thank you for joining me for Thinking in Public. Until next time, keep thinking. I'm Albert Mohler.

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