Saturday, February 25, 2012
This morning at Pepperdine's fabulous religious legal theory conference, we are kicking off with what promises to be a productive exchange on law, religion, and the common good featuring James Davison Hunter, Patrick Brennan, and Zachary Calo. What a better time for some weekend live-blogging?
Prof. Hunter kicks things off. Here is a (very) rought outline of his comments:
The shared narrative of secularization drives both conservatives and liberals, leading them to approach the relationship of law and religion as zero-sum game. But now we are seeing the debunking of the secularization thesis, and this may change the terms of the debate about the relationship between law and religion.
Post-secularity brings us to recognition that secularity is not a value-neutral proposition. The distinctions between law and religion as separate spheres are overdrawn. The state cannot be neutral toward the public good, and the secular is not neutral; it is also a particular normativity. Tension, conflict, and violence are inherent to pluralism, and the state always takes sides. Difference tends to be absorbed into new working agreements about the common good.
Arguably the most important way pluralism expands today is in moral and metaphysical differences -- e.g., abortion. They are metaphysical because they are rooted in different worldviews. Can late modern American society aborb differences as deep as these? We don't know yet. The state no longer plays role of limiting or containing pluralism; now is a free agent whose patronage is intensely sought after by the parties. Conflict is between those who have competing understandings of the good society, and the battle envelops the First Amendment. Progressives want a broad definition of religion for Establishment purposes and a narrow definition for Free Exercise purposes; conservatives want the opposite for both. The First Amendment battle is geared toward what consensus over the good will look like.
Two possible directions that we can take: 1) We will see a hardening of the lines of conflict, with laws less a tool of justice and more a way of forcing compliance. 2) The alternative would be to recognize that power of state is unstable and unsustainable source of social order. Because state is clumsy instrument rooted in coercion, it will never address the human elements that make these problems poignant in the first place.
For law to be about more the power, current conflation of public and political must be disentangled. Law itself may not be able to offer this path, but law, policy, and politics must protect space where culture, in its generative capacity, is free to do its work. We would need broader understanding of religion for both Establishment and Free Exercise purposes.