February 28, 2013
An interesting conversation about (the new) natural law
In the latest issue of First Things, David Bentley Hart (an amazing writer, in my view) has a piece called "is, ought, and nature's laws" in which he rejects "the attempt in recent years by certain self-described Thomists, particularly in America, to import this [natural-law] tradition into public policy debates, but in a way amenable to modern political culture. What I have in mind is a style of thought whose proponents (names are not important) believe that compelling moral truths can be deduced from a scrupulous contemplation of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world. This, it seems to me, is a hopeless cause."
To put the matter very simply, belief in natural law is inseparable from the idea of nature as a realm shaped by final causes, oriented in their totality toward a single transcendent moral Good: one whose dictates cannot simply be deduced from our experience of the natural order, but must be received as an apocalyptic interruption of our ordinary explanations that nevertheless, miraculously, makes the natural order intelligible to us as a reality that opens up to what is more than natural.
There is no logically coherent way to translate that form of cosmic moral vision into the language of modern “practical reason” or of public policy debate in a secular society. Our concept of nature, in any age, is entirely dependent upon supernatural (or at least metaphysical) convictions.
R.J. Snell responds, here and here, contending -- among other things -- that Hart is attacking a "straw man", because John Finnis's account of natural law is not as Hart describes it. I'm painfully aware that I'm not close to being competent to referee this debate. If I have it right, Snell's claim is that the Finnis (et al.) account of natural law does not involve deriving, or "reading off", moral truths from "nature"; it has to do, instead, with (underived) principles of practical reason. With respect to these princples, Snell writes, "[n]either are they innate, although they are self-evident; grasping them entails 'no process of inference' but rather an 'act of non-inferential understanding.'” He adds:
Rather than Hart’s “clear commands” for “any rightly attentive intellect,” contemporary natural law requires sophisticated casuistry, which perhaps explains why moral theologians most persuaded by physicalism sometimes accuse contemporary natural law theorists of permissiveness, since natural law theory readily admits the complexities and vagaries of the agent’s intentions.
Read it all. (And, maybe also Russell Hittinger.)
"Disaster Coming": An interview with Jonathan Last about demography, etc.
An interesting (and sobering) interview with Jonathan Last, over at National Review, about demography and his book, What To Expect When No One is Expecting, here. A bit:
[C]hildren are — as high-minded economist types will note — both public and private goods. And society can’t function very well, or for very long, without a certain number of them being born. So whatever people decide to do at the individual level, there are macro effects to consider. I would just note that it’s a little weird that certain types of people are happy to consider the macro effects of individual behavior when it comes to smoking, or drinking soda — but say that we’re not allowed to notice these things when it comes to kids. I mean, it’s only the entire future of Western civilization we’re talking about.
"Could the Next Pope Learn from Benedict?"
[That's the subtitle. The title: "Shock Therapy". Written by Peter Steinfels, former editor of Commonweal and former religion editor of the New York Times.]
By resigning, Pope Benedict served the church well. He has spared it another prolonged period of mounting disarray. He has "humanized" the papacy, as Joseph Komonchak and others have pointed out. He has jolted the church into allowing that something generally considered unthinkable for centuries is really not beyond doing after all. And he has set the stage for his successor to do likewise.
That is important. The Catholic Church needs shock therapy. True, among the world's 1.2 billion Catholics, millions of saints are leading lives of prayer and charity so ardent, brave, sacrificial, creative, and enduring that they bring tears to normal eyes. They are the best of us—and then there are the rest of us. Except in parts of Africa, the much-heralded growth of Catholicism is simply in line with the growth in population—or not even that. Latin American Catholics are increasingly turning to Pentecostalism or drifting away from religious practice and affiliation altogether, although not yet to the extent occurring in Europe and North America. It would be comforting to think that what might be lost in numbers is being gained in depth, but as Catholic identity, floundering in a sea of alternative visions, weakens from generation to generation, that seems unlikely.
The church needs shock treatment, and until the mini-shock of his resignation, Benedict, to the relief of many, did not seem like the man to administer it. Ratzinger, yes; Benedict, no. What shocks have come during his papacy were usually by blunder rather than intention. Evaluations of his tenure have balanced the pros and cons of his deeds according to the lights of the balancer. What is still untallied, except for his failure to unmistakably demand accountability in regard to clerical sexual abuse, is what has remained undone. Underlying conditions like the limitations, in numbers, quality, and age, of the clergy or the massively eroding credibility of church teachings on sexuality are no better than when he took office in 2005. Much of the hierarchy deludes itself with slogans in search of substance like “The New Evangelization,” or rationalizes inaction with the familiar alibi, “The church works in centuries.” In fact, history teaches that the church often suffers for centuries from its failure to act during critical passages.
Will Benedict's successor do any better? Back in 2005, observing the long painful and paralyzing decline of John Paul II, some of us felt that the next pope should immediately establish a procedure for a pope to conclude his service while still alive. Establishing such a rule for the surrender of papal power at the very outset of a papacy would forestall suspicions of behind-the-scenes manipulation in the case of an ad hoc resignation like Benedict's. (It is remarkable that so few such speculations have arisen, at least to date, in Benedict's case.)
This time the white smoke will presumably greet us almost on the brink of Holy Week, so first things first. The new pope should focus his own and the world's attention on the Paschal Mystery. From entry into Jerusalem through Last Supper, passion, death, and Resurrection, from palms to holy oils, consecrated bread and wine, shrouded statues, venerated cross, new fire, and baptismal water, let the new pontiff simply be vested in the sacred rites.
Between Easter and Pentecost he can deliver the necessary shock therapy. To begin, Pope Novus, as we might call him, should declare that his predecessor's wisdom in resigning reveals a permanent insight into the realities of a modern papacy. Henceforth, popes will either serve a term of twelve years or resign at the age of eighty-two, the choice depending on each pope's reading of the church's needs at the moment. Papal interventions to determine the church's choice of a successor, something Benedict has adjured but another pope might not, will be formally prohibited.
Because the beginning of a papacy is the opportune time to deal with the delicate question of such transitions, Pope Novus should move to make future conclaves more representative. He might create a new position of “cardinal electors”; their only function would be to vote in a conclave. Cardinal electors would constitute one third of those voting. They would include the heads of the ten largest religious orders. The rest would be chosen biannually—and their names kept in petto—by the presidents of the bishops conferences of each continent. The number of cardinal electors would be proportionate to each continent's Catholic population. At least half of them would be women. Heads of Vatican offices, although eminently eligible for election to the papacy, would not participate in the conclave unless they had become cardinals while serving as ordinaries.
The specifics are arguable, but the general idea is clear: continuity but not cloning.
Reforming the tenure and election of popes would signal that the church is open to change, even though it only affects the future. That needs to be complemented with a dramatic gesture of immediate consequence. One idea would be a papal establishment of a massive Catholic Pietà Fund to be devoted to the health, education, and safety of women around the world. The goal would be to raise $1.2 billion, or a dollar for each of the world’s Catholics. While pledging to maintain the church's role as a steward of artistic heritage, Pope Novus might initiate this fund by offering to sell one or several of the Vatican's signature artworks (the Pietà itself?). Perhaps Catholics or others could outbid buyers to keep these objects in Rome. In any case, contributions to the Pietà Fund would become a feature of papal journeys and international events like World Youth Day. Would this diminish Peter’s Pence? On the contrary, it would probably swell it. And by placing administration of the fund in the hands of Catholic women, Pope Novus would also signal openness to reexamining the role of women in the church. Had John Paul II taken a dramatic initiative like this early in his papacy, the church's voice on several major issues would have won a much greater hearing.
Two other initiatives could be reserved for Pentecost, May 19. On that day, the pope would invite bishops, theologians, and knowledgeable laity to submit their thoughts on two topics. One would be very practical: how to make the world synods of bishops an effective institution. The other would be very fundamental: aggiornamento and ressourcement on the church’s understanding of sexuality.
Pope Novus would pledge to act within several years to reform the synods. He would be wise to warn that the discussion of sexuality would take time and no one should expect hasty conclusions about specific norms.
Is all this fantasizing? Obviously. Is it fantastic? These initiatives are moderately disruptive insofar as they admit of change in the church, hardly a heretical notion. They are only slightly more controversial in encouraging broader participation in the shaping of that change. They are otherwise open-ended—and about as unthinkable as a pope resigning.
Pope Novus, whoever he turns out to be, will preach many words between his election and Pentecost. They will evoke familiar images and stir familiar sentiments. But unless they are accompanied by a few vivid, imaginative, and substantial initiatives, they will wash over the listening world and the listening church, with at most an arresting phrase or two lodged in our hearts. We will stumble on. The church does not live by popes alone. The opportunity to build on Pope Benedict's startling gift will have been squandered.
February 27, 2013
The Family of Nations
I follow several of my friends here at the Mirror of Justice today by commenting on Pope Benedict’s final General Audience exhortation. He spoke of the nature of the Church, and he spoke of the family of nations. I think the two topics he addressed are connected.
During the pontificate of the “war pope” Benedict XV, Papa della Chiesa would often speak of the family of nations. In one of his allocutions concerning the need for a “league of nations” which he supported, he mentioned that the better term would be the family of nations. I think Benedict XV had in mind a place where the peoples of the worlds could come together as a sort of family and address their concerns about peace, natural justice, and right order in the world. States are instruments of but not the peoples themselves; they are the ones who are the true members of the family of nations. I was reminded of this all the more when I recalled that my college advisor from 1968 to 1970, Dr. Jeane Kirkpatrick, told me and my classmates about a sign she often saw in her beloved France which said something like, “republics come and republics go, but Duron Paints stay on forever!” In essence, the point was that governments and political parties are transient things, but there are some things which endure. Surely peoples, the nations, the gens fall into the latter category. It is the peoples not the states who are the true elements of the family of nations. In this context, one is reminded of another expression that used to be recited at papal installations: “Sic transit gloria mundi!”
I think it no coincidence that Benedict XVI spoke of the family of nations today. Their states may come and go, but the peoples who constitute the family of nations will go on in spite of what happens to the temporal authorities of the world. The people go on while governments come and go. This is where his many references to the Church and her nature come into play and it intersects with but is not precisely the same as the family of nations. In one of his remarks, he stated that “the Church is—not an organization, not an association for religious or humanitarian purposes, but a living body, a community of brothers and sisters in the Body of Jesus Christ, who unites us all. To experience the Church in this way and almost be able to touch with one’s hands the power of His truth and His love, is a source of joy, in a time in which many speak of its decline.”
Here the Holy Father was referring to the union of Christ and His people—the vine and His branches. We branches grafted onto the vine of Christ receive our life, our wisdom, and our energy from Him. The will we exercise should also be formed not by our selfish desires but by our discipleship as followers of Christ. The Holy Father suggested this when he said today, “Loving the Church also means having the courage to make difficult, trying choices, having ever before oneself the good of the Church and not one’s own.” It is this manner of understanding the Church that can positively affect the family of nations. Political parties and government institutions come and go, but the Church and the family of nations continue notwithstanding the obstacles that both meet.
In his final general exhortation to the Church and to the family of nations, Benedict XVI has helped us chart a course for tomorrow and for thereafter. While he will no longer be with us as Peter, he will remain with us in prayer. It was suggested by Thomas More that prayer is a good way to govern, and I will add to govern the Church and the family of nations.
Pope Benedict XVI's last General Audience
From this morning:
Dear Brothers and Sisters, I offer a warm and affectionate greeting to the English-speaking pilgrims and visitors who have joined me for this, my last General Audience. Like Saint Paul, whose words we heard earlier, my heart is filled with thanksgiving to God who ever watches over his Church and her growth in faith and love, and I embrace all of you with joy and gratitude.
During this Year of Faith, we have been called to renew our joyful trust in the Lord’s presence in our lives and in the life of the Church. I am personally grateful for his unfailing love and guidance in the eight years since I accepted his call to serve as the Successor of Peter. I am also deeply grateful for the understanding, support and prayers of so many of you, not only here in Rome, but also throughout the world.
The decision I have made, after much prayer, is the fruit of a serene trust in God’s will and a deep love of Christ’s Church. I will continue to accompany the Church with my prayers, and I ask each of you to pray for me and for the new Pope. In union with Mary and all the saints, let us entrust ourselves in faith and hope to God, who continues to watch over our lives and to guide the journey of the Church and our world along the paths of history.
I commend all of you, with great affection, to his loving care, asking him to strengthen you in the hope which opens our hearts to the fullness of life that he alone can give. To you and your families, I impart my blessing. Thank you!
Collateral Effects of Papal Transition
With all the discussion regarding Pope Benedict's resignation and who his successor should be, some interesting pieces can be missed. I would like to draw attention to just two of them that address some of the collateral issues related to the change in Church leadership and governance. First is this Washington Post article discussing, among a wide array of somewhat tangentially related issues, how the Vatican has seemed to change its policy regarding the role of Cardinals who have been accused of wrongdoing. The second, an analysis piece in the National Catholic Reporter, discusses the effect of a change in Church leadership on the ongoing dispute between the Vatican and the Leadership Conference of Women Religious. Whether one agrees with the analysis or not, both are worth a read to help underscore the dimension of potential change.
Against Calling on Government to Shape Souls
My colleague, Professor Charles J. Reid, Jr., a master wordsmith and prominent scholar of medieval history, has been reborn of late as a vigorous advocate for what he calls “a robust American government.” In a blog post previously appearing on Huffington Post and now re-published in the winter edition of the St. Thomas Lawyer, Professor Reid calls for a much enlarged federal government with an even larger agenda.
More pointedly, Professor Reid accuses those of us who resist government encroachment of singing a “sickening refrain.” He labels the Reaganesqe question about the wisdom of reliance on the State as the answer to societal ills as producing “toxic words” that “inject poisons into the American body politic.”
And because Professor Reid advocates an über-activist vision of national government that he would task for “the betterment of men’s hearts,” I issue a warning about the perils of over-zealous faith in the State.Professor Reid begins with a greatest hits of America’s national government in the modern era — the Marshall Plan, the interstate highway system, the space race, all of which originated in substantial part as national defense initiatives in the wake of America’s military victories in World War II. This litany is well-stated — as far as it goes. Under the right circumstances and for compelling reasons, government can accomplish good works. And remember that the federal government of that period was exponentially smaller and the reach of law far shorter, leaving more room for non-governmental initiatives, intermediary groups, economic growth, and individual freedom.
Then Professor Reid takes his faith in the State to another level by advancing the use of government — not to invest in good works or even to promote good behavior — but to bring about right thinking in its citizens. And the government would accomplish this shaping of hearts and minds, not by the warm persuasion of human relationships, but through the cold coercive force of the law.
To support this vision of paternalistic government, Professor Reid adduces the example of the civil rights acts of the 1960s. To achieve “the betterment of men’s hearts,” he claims that the civil rights acts “required something that no prior legislative enactment had dared to seek — the banishment of hatred from the precincts of the human mind.”
As a matter of both law and history, Professor Reid greatly overstates the precedent. Title II and Title VII of the Civil Rights Act of 1964 do not enjoin enlightened racial thinking on the boss or the inn keeper. These statutes by their direct terms prohibit specific acts of discrimination in the particular categories of employment and accommodation. As one of the leading drafters of Title VII emphasized, “The man must do or fail to do something in regard to employment. There must be some specific external act, more than a mental act. Only if he does the act because of the grounds stated in the bill would there be any legal consequences.”
And leaders of the civil rights movement, while appreciating government as one important tool in ending oppression and opening opportunity, harbored no grand illusion about the salvific power of law and politics. The central goal of the civil rights movement was to remove the burden of segregationist laws and to obtain the targeted intervention of government to generate economic and educational opportunities.
To be sure, a civil rights act, like law in general can have a positive (or negative) educational effect. And the law certainly can improve the common good by directing actions and controlling behavior to better promote human thriving. Most importantly, law can ensure the framework that creates the civil space for people of good will to seek a better life and learn to live together in harmony.
But civil rights leaders made clear that they never trusted law to bring people to think right, as contrasted from using law strategically to prevent people from doing wrong. As Martin Luther King wisely observed, “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that’s pretty important.”
More importantly, I fear that Professor Reid’s endorsement of government “as a force for good — and greatness — in the world” and as an instrument to reconstruct “the precincts of the human mind” poses grave dangers, both secular and spiritual.
First, by overreaching and asking government to act beyond its capability, we set the stage for disappointment and cynicism. When we aspire for government to bring brotherhood and goodness and love — what Professor Reid calls “the betterment of men’s hearts” — we set up government for inevitable failure.
What Professor Reid calls the “sickening refrain” of those who are skeptical of government has been generated by decades of disappointed experiences from unimaginative reliance on government. As but one example, we are now near the end of the fifth decade of the War on Poverty — and poverty is still winning. Even after welfare reform during the Clinton years, spending on means-tested social welfare programs has risen by 50 percent over the past decade. One need not be “petty, crankish, and small-minded” to be discouraged by the powerful evidence of governmental failure.
And we will be disappointed yet again if we heel to a government-centric lead. Instead, we should be looking for more effective partnerships between government and private sector entities, moving government restrictions out of the way to allow charitable works to flourish, and working to allow greater freedom of choice in education that includes private and religious schools, while maintaining a government-funded safety net.
In sum, what we need is imagination, a rethinking of possibilities and creativity in methods. And imagination, although bountiful in people, is always in short supply in the impersonal bureaucracies of government.
Second, the genius of the American system lies not in the power of government but in its opposite — liberty. And yet the words “liberty” and “freedom” are not to be found in Professor Reid’s several posts about government and politics. Nearly every law enacted and every government act initiated constricts freedom. For a good cause, the cost to freedom may be justly borne. And people of good faith will disagree about the appropriate balance and justifiable tradeoffs — and those in both political parties do not deserve contempt for reaching different conclusions.
But government knows no bounds and freedom is in grave jeopardy when the power of the State is unleashed in a crusade for the “betterment of men’s hearts.”
Finally, promoting statecraft as soulcraft delivers us into the great temptation of idolatry. I earnestly urge great caution here. Whenever anyone proposes empowering government through the force of law to enjoin the right way to think or to shape the right way to feel, we should be nervous. This disquiet should remain even when — no, especially when — we are convinced that we know what the right way is.We must insist that the “precincts of the human mind” belong to God — not to government. And we must be ever so careful not to confuse the two.
More on Fr. Benedict Ashley, O.P.
I am posting, with permission, an introduction -- written by Mark Latkovic (who was close to Fr. Ashley and wrote his dissertation on him) -- to Fr. Ashley's biography:
A very long life – such as the remarkable one that our author has lived – does not guarantee that the individual has used those many years well. Benedict M. Ashley, O.P. has used his many years – almost a century now – to advance the Kingdom of God as a priest philosopher-theologian. But before turning his life to Jesus Christ (he was be baptized in 1938) and entering the Dominican Order in the 1940s (he was ordained in 1948), Ashley was a follower of Marx, not the Master. His autobiography, Barefoot Journeying, could very well be titled From Socialism to the Savior. In these pages you will find Ashley’s “conversion story” told in both prose and poetry. It is good that these many poetic writings are included, because they give us great insight into the mind and heart of a man who started off with the hope of being a novelist and poet while at the University of Chicago in the early 1930s. . . .
I first met Fr. Ashley in August of 1988, when I was assigned to be his graduate research assistant after enrolling at the Pontifical John Paul II Institute for Studies on Marriage and Family (Washington, DC), to study for an STL degree. As the cliché goes, “It seems just like yesterday.” I was privileged to take six courses with Ashley and, as a Father Michael J. McGivney Fellow, to work with him on various writing projects for two academic years. What impressed me most about him was his humility, despite the incredible breadth and depth of his learning. We students would often lament that when Fr. “Benny” passes, a great deal of knowledge and wisdom would pass with him. Thankfully, our esteemed teacher has lived two plus decades since those early days of the “JPII Institute” – with Ashley the original “pillar” on which it stood – and his nearly two dozen books and hundreds of articles will live on even longer.
To read Fr. Ashley’s intellectual autobiography is to immerse oneself in a virtual “Who’s Who” of Twentieth and early Twenty-First century Catholicism. From his birth in May 1915, during the First World War, to the second decade of the Third Millennium, we encounter the figures of his teachers Mortimer J. Adler and Robert Maynard Hutchins in the “Great Books” program at the University of Chicago. We meet other teachers such as Waldemar Gurian and Yves Simon at the University of Notre Dame (where Ashley received a doctorate in political philosophy in 1941). We come in contact with his Dominican conferees William H. Kane, William A. Wallace, and James A. Weisheipl in the 1950s (a decade when Ashley would study for a doctorate in philosophy at the Aquinas Institute, earning it in 1951). From there, we move on to the 1960s and the Second Vatican Council and the events and debates surrounding it, notably the encyclical on birth control, Humanae vitae (1968). Ashley then takes us all the way up to our present day, with its own debates, especially over the foundations of morality, biotechnology, and secularism.
What may impress the reader the most is the deep familiarity with and respect for modern science that is on display in the pages of Ashley’s memoir. Already, in the early 1950s, Ashley was collaborating with his fellow Dominicans in founding the Albertus Magnus Lyceum (1951-1969) – a think tank of sorts to bring modern science and theology into dialogue. For these “River Forest School” Thomists, modern science is largely continuous with Aristotelian natural philosophy/natural science. Further, they argued, St. Thomas’ metaphysics must be grounded in a sound philosophy of nature lest it lack a solid foundation. Ashley is still thinking about these questions, evidenced by some of his most recent books, The Way toward Wisdom (2006) and How Science Enriches Theology (co-authored with John Deely, 2012).
But Ashley has also taken the thought of St. Thomas and applied it fruitfully in the areas of the body-person, moral theology, bioethics, and psychology to cite just a few areas. His Theologies of the Body (1985/1995), is a massively learned work that ranges over, from the perspective of many different fields, the different understandings of the human person – in ancient philosophy, Christianity, secular humanism, and modern science among others. Ashley’s Living the Truth in Love (1996) is what he calls “a biblical introduction to moral theology,” that is organized by the four cardinal virtues and the three theological virtues, which themselves are coordinated with each other. Health Care Ethics, now in its fifth edition (2006), is Ashley’s (and his late co-author Kevin O’Rourke) major contribution to theological bioethics. And Healing for Freedom, to be released sometime in 2013, is Fr. Ashley’s effort to bring to bear “a Christian perspective on personhood and psychotherapy.”
Barefoot Journeying will also bring the reader into contact with Aristotle and St. Thomas Aquinas – Ashley’s two favorite philosophers. As well, Ashley’s family and many friends such as Herbert Schwartz and Leo Shields are spread out across this autobiography like the Great Plains of Kansas and Oklahoma, from where he was born and raised. As with all stories of friends and family, there is much joy as well as much heartbreak – the “trials,” as he calls them. You will read of this and more here. Many know Ashley only in his many public roles: for example, as priest, author, teacher, lecturer, educator, and administrator. In the following pages, you will come to know him in a more personal way as he reveals himself decade-by-decade.
In describing the events of his life, Fr. Ashley is brutally honest about his faults and sins. He does not hide any of the less-than-noble actions of his life – but not in the fashion of a contemporary “Tell All” book, where every salacious detail is recorded. As befits his priestly vocation, Ashley wants you to learn about the virtues of his life, to understand his theological thought and Dominican spirituality, to meet his friends and those who have influenced his life, and not get caught up in the peccata that blur the image of God in man. But more importantly, he wants you to meet our “wisest and best friend” (S.T., I-II, Q. 108, a. 4) that he has come to know these last six and a half decades – the one who has transformed him. That friend is Jesus Christ.
I hope my revered former teacher and friend takes this introduction as the tribute I intend it to be. I am honored and blessed to have been asked to write it. But even more blessed to have known him and studied with him.
Mark S. Latkovic,
Sacred Heart Major Seminary, Detroit, MI
February 26, 2013
The Tale of Psychic Sophie: Denouement
Back in December, I wrote a couple of posts about "Psychic Sophie," -- Part I and Part II -- the "spiritual counselor" who was classified as a "fortune-teller" by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement. Psychic Sophie's free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.
Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today. From Kevin's post about the opinion:
With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”
From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”
The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer "guidance," as the court says, but its guidance is not definitive -- and I don't mean that in the least as a criticism of Yoder). Judge Arlin Adams's Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit's approach is quite different (different times).
One final note. Writing for the panel here, Judge Duncan said this: "Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten 'the very concept of ordered liberty.' Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she 'pretty much goes with [her] inner flow, and that seems to work best.'" But, taking care not to "belittle" Psychic Sophie's beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.
Perhaps the "Eisenhower principle" has its limits.