Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Friday, May 25, 2018

The End of "Religion as a Good": Thoughts on Movsesian and Garnett

My colleague, Mark Movsesian, has a thoughtful piece over at First Things, in which he argues that the association of religion in America with particular political parties is becoming more pronounced. Mark makes the point that, increasingly, "a new sort of divide appears to be opening up in American politics: Republicans are the religious party, and Democrats are the non-religious party." He cites Tocqueville for the view that while in Europe, everyone understood that religion and republicanism were enemies, that was not the case in America where, notwithstanding religious differences, Americans have never had religious and non-religious parties in the same way. But that is now changing, Mark claims, citing a Pew Center survey indicating that there is increasingly a correlation between belief in God and party affiliation (Rs believe much more than Ds).

The piece may be read profitably alongside this article about the introduction of the new "Do No Harm Act" by various Senate Democrats, whose object is to narrow the protections of the Religious Freedom Restoration Act, especially as a defense against the operation of "others' civil rights." It appears that the civil right of religious liberty would take second place to any other civil right under the proposed statute. Rick Garnett offers the view in the piece that the Act "reflects a mistaken view that religious freedom should only be granted when it is costless." The story goes on to say that "since the bill is highly unlikely to pass, without Republican support, its purpose is in large part simply to announce Democrats’ priorities to voters before the midterm elections in the fall." (this opinion is attributed to Charles Haynes of the Newseum)

The story seems to support Mark's view that religion is becoming politicized along party lines. RFRA, after all, passed with very strong bipartisan support in 1993. Its aim was to protect religious freedom for all. But, so the argument might go, today the breakdown of support for RFRA, and the efforts to shrink it (and, eventually, perhaps to repeal it), demonstrate the fragmentation of support for religious freedom along party lines. Rs support religious civil liberties. Ds support other civil liberties.

I'm not sure this account is accurate. At the very least, it does not account for the way in which many progressives have thrown their support against, for example, the Trump Immigration order and in favor of Muslim immigrants. It does not account for at least some progressive support for the expansion of religious freedom to include non-traditional "religious" groups such as the Nones and other conscientious believers. It does not account for progressive support for at least some of the Court's recent religious liberty cases, such as Holt v. Hobbs.

My own view is that we are witnessing the end of the period in which "religion" is seen to be a general good, and therefore in which "religious" freedom ought to be protected for that reason. I have written before about the vacuity and ultimate unsustainability of the category of "religion" in contemporary American law, and so I do not think it is particularly surprising to see this development. But that does not mean that one party is the party of "religion" while the other is the party against "religion." It means that "religion" as a conceptual category thought, in general, to be worthwhile, and "religious freedom" as a right generally worth supporting, is moribund (there are reasons it is dying off, which I discuss in the piece).

Instead, what is emerging in the partisan fragmentation is that the Rs and Ds are becoming the parties of particular religions and religious traditions. Rs are in general more sympathetic to traditional Christian religious beliefs (in general, of course...there are prominent exceptions at the highest levels of government), while Ds are in general hostile to them--believing that Christians in particular "impose" their views (particularly their views about sexuality) on others in the name of Christianity. Ds are in general more sympathetic to religious views that are not traditionally Christian (indeed, one might even say that the Nones represent a distinctively modern Christian heresy, but that's a subject for a different post) or that they associate with minority groups that they believe warrant special protection, while Rs are in general hostile to them. The reason that Senate Ds sponsor the No Harm Act is that they oppose the right of traditional Christians to use their views about sexuality to discriminate against LGBT people (I am putting it polemically, of course). The reason that Senate Rs oppose the Act is that they disagree. None of this has much at all to do with "religion" as an abstract category.

Perhaps if we had more parties in this country than the usual dreary duo (something to be fervently wished for, but that is also for another post), we would see even more fragmentation. But the growing divisions between our existing political parties along these lines reflect preferences for certain kinds of religion over others, not religion as such. They are both religious parties. The place of the specific religious tradition (or, in the case of the Nones, view) in American public life, its substantive positions (particularly as respects sexuality), its market strength, its "other-ness"--all of these and more are true markers of partisan support or opposition. What has changed politically is the notion that religion qua religion is worth protecting as an American good. And, in light of the incoherence of the category in American law and politics, small wonder that it has.

http://mirrorofjustice.blogs.com/mirrorofjustice/2018/05/the-end-of-religion-as-a-good-thoughts-on-movsesian-and-garnett.html

DeGirolami, Marc | Permalink