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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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).