Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Thursday, January 24, 2013

The Politics of Religious Liberty: Three Perspectives

I thought to bring up again an issue that I've raised here before a few times.  It involves the alignment of support and opposition for religious liberty with political orientation, and whether that alignment is undergoing a fundamental shift or not.  Here are chunks of three writings to set the stage.

The first is from something I wrote a few years ago:

My horse sense is that the political history of law and religion scholarship might track (very) roughly the comparatively recent history of American politics.  It would evince, that is, a movement from a state of relative convergence on a set of agreed upon views to a state of increasing splintering and balkanization (or, to put it in more sanguine as well as ambiguous terms, to a state of increasing pluralism) of perspective.  Of course I don't mean that the earlier convergence among religion clause scholars tracked or mirrored an earlier political convergence, or that the current, more balkanized situation runs parallel to contemporary American politics.

What I mean is that if one were to survey the state of the field, say, roughly 30-40 years ago, one would probably see something approaching a rough similarity of perspective among many law and religion scholars -- folks who read both the Free Exercise and Establishment Clauses in a 'strong' way.  Many of the most important scholars of that generation held that general view, even as there may have been intramural differences among them.  Indeed, some of those very same folks were in attendance at our conference.  Of course there were dissenters from that general position 30-40 years ago too -- but the point is that there existed such a majority view, and that it was considered, for lack of a better term, mainstream, or eminently reasonable within the academic world -- a mid-20th century academic moderate liberal's view (which is not the same as a non-academic moderate liberal view).  Part of the power of the view was that a strong reading of the Establishment Clause gave these scholars a kind of bona fides -- certainly within academic circles -- when arguing for a strong reading of the Free Exercise Clause.  If you are against majoritarian religion, the chances might increase in the academy that people will listen to you when you argue in favor of anti-majoritarian religion. 

But today, I think it is much more difficult to identify any mainstream or consensus-like position.  There are those who like a strong EC and a weak FEC, those who prefer weak readings of both, those who go for a strong FEC and a weak EC, and those who hold to the strong reading of both.  But even those who prefer the dual strong reading aren't necessarily coming at the issue from the point de depart of mid-century academic moderate liberalism.  Some are coming from traditions of faith; some from radical political perspectives; some from rather specialized policy engagements; some from distinct philosophical traditions, and so on.  That variety of background has generated a broadening of normative preferences.  And so too, perhaps like the political culture itself, the political culture of law and religion scholarship exhibits a pattern of fragmentation -- it begins to look much more like a European parliamentary arrangement than the American situation at least as it once was.

The second is from a recent post by Nelson Tebbe:

Two questions come to mind about this familiar understanding of the interactions between methodology and politics among religious freedom theorists.  First, has this conceptualization [a division of the field methodologically into monists, skeptics, and pluralists] of the field ever been correct?  Has the role of politics been as complicated and unpredictable as it suggests?

If it has captured a measure of the truth, a second question is whether it still usefully describes the literature, or whether we are witnessing a realignment.  Certain debates have moved to the foreground — such as the conversation over whether religion deserves special constitutional protection as compared to deep secular commitments of conscience — and positions within those debates do not seem to be easily captured by the old typology.  Yet those positions do seem to track wider political affinities more readily than did the customary choice among monism, pluralism, and skepticism.  For example, liberals tend to think that religion is not special, conservatives usually argue that it is, and moderates believe that it only sometimes should be protected like secular conscience.  Does this shift, if it is happening at all, suggest a different kind or degree of politicization within the field of religious freedom theory?  Is any such shift clarifying or obfuscatory?

The third is an interesting comment by Eduardo Peñalver on a post about the recent Times story on Stanford Law School's new religious liberty clinic.  In response to my comment, Eduardo writes:

Marc — I’m not sure. I don’t know that I agree with Nelson that we are seeing a realignment in the academy. There are a few prominent people arguing that religion is not special (esp. Schragger and Schwartzman), but there were a few prominent people arguing the same thing a decade ago (Eisgruber and Sager). I’m not sure I see a consensus of liberal constitutional scholars coalescing around that position. On the political side, there are partisan disagreements now about some borderline free exercise claims (the contraception mandate and some issues related to recognition of gay marriage), but there seems to me to be a bipartisan commitment to broad free exercise rights. It seems to me that there have been efforts on the right to make religious freedom an ideological issue (accusing Obama of a war on religion, etc.), but i don’t think these have been successful in creating a realignment on the issue. The way I see it, there are lots of religious people and lots of people who care about religious liberty on both the left and the right.

Do any, or all, of these accounts ring true for readers?  Are some more persuasive than others?  Are all wrong, or only half right?  Comments are open.


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Hi Marc -- I hope that Eduardo is right. My own sense is that the move toward thinking that (a) religion should not be treated as "special" (except to treat it, possibly, as specially problematic) and (b) that the state's interest in bringing the "private" sphere into the domain of the liberal non-discrimination norm is stronger than the right of non-state associations and groups to be non-liberal is a significant one, and is more influential on the "left" than on the "right."

And, for me, the categorizing of folks as "strong" or "weak" on Free Exercise and Establishment is complicated by the fact that the *content* of the no-establishment rule is *so* contested. I am, I think, "strong" on the no-establishment rule, but I think that rule, even in its "strong"-but-correct form, does not (despite the Court's precedents) does not require a number of the doctrines that the Court's cases suggest it does.

Posted by: Rick Garnett | Jan 24, 2013 1:35:12 PM

Professor DeGirolami, If it were true that our Founding Fathers believed that all consciences are equal and we are thus in essence, mini-gods, I suppose our Founding Fathers would not have recognized an inherent Right to Religious Liberty, to begin with.

Posted by: N.D. | Jan 24, 2013 2:30:58 PM

Thanks, Rick. On the second point, it is good of you to note this. I am using 'strong' and 'weak' to describe the conventional interpretation of the Clauses (by the Court and many academic commenters), not to suggest that a strong reading -- understood in such conventional terms -- is the correct one or that it is to be preferred to a weak reading as conventionally understood.

Posted by: Marc DeGirolami | Jan 24, 2013 2:32:14 PM

On the first paragraph of Rick's comment, it seems to me that these two things--the "is religion special" question and the "importing non-discrimination norms into the private sphere"--are conceptually quite different. One can believe that there is a genuine question about religion's specialness without believing that this requires reducing religious freedom. To be sure, some folks out there who want to do just that may find the "what if religion isn't special" question especially attractive or strategically useful. But the question can be viewed as real and important on a conceptual level without having a lot of normative implications. Indeed, I read Brian's book, at least (the earlier draft, at least; I still haven't read the final version) as ultimately having very few normative implications. On the other question, I happen to be much closer to Rick's side of things, as he knows, but I would say in fairness that one of the current questions that's coming up is what counts as the "private" sphere and which non-state associations and groups we're talking about. Thus, I suspect many more people would agree that Notre Dame ought not be obliged to follow the contraceptive mandate than would agree that the same is true of the Hobby Lobby. I'm still undecided on that question, but I think it's fair to point out that even for those who agree with Rick's general framing, there are difficult questions left over, and these seem to be the ones that are the most legally controverted right now.

Posted by: Paul Horwitz | Jan 25, 2013 8:52:25 AM

Hobby Lobby, as an employer, has the right to choose an Insurance plan consistent with their mission.

Posted by: N.D. | Jan 26, 2013 3:26:35 PM