"After" Religious Freedom?: On the Relationship Between the Academic Study of Religion and Law

I am greatly looking forward to participating in a conference next month called, "The Politics of Religious Freedom," and hosted by four scholars who have been at the forefront of drawing connections between the academic study of religion (or religious studies) and law--Peter Danchin, Elizabeth Shakman Hurd, Saba Mahmood, and Winnifred Fallers Sullivan.

The title of my panel is "Religion and Politics After Religious Freedom." With the organizers' permission, I am posting some comments that I wrote up in response to that subject. My sense is that while there may be some issues specific to the particular interdisciplinary relationship of law and the academic study of religion, at least some of the points I make may apply more broadly to the question of law's distinctiveness as both a practical and an academic discipline. I welcome your thoughts.

My work considers the religion clauses of the First Amendment to the United States Constitution and the body of federal and state laws protecting religious freedom in the United States. One theme in my work involves doubt about the law’s capacity to protect everything worth protecting about religion and religious practice. Here the law is limited and imperfect—both because of the limits of human reason and because of the inevitable conflicts of human interests and aspirations. The law’s limits come sharply into focus for what I have called “comic” theories of religious freedom—theories that reduce religious freedom under the Constitution to one or a small set of values (most commonly equality, neutrality, and the separation of church and state). None of these comic theories includes a sufficient accounting of the costs (including the costs to religious freedom) of such a reduction. These are some of the ideas explored in my book, The Tragedy of Religious Freedom.

The topic of our panel is “Religion and Politics after Religious Freedom,” and there are several ways in which my views are sympathetic, and might even converge, with the project of exploring what might come “after” certain conceptions of religious freedom. By reducing the reasons to protect religious freedom under the Constitution to single values such as equality or neutrality, some comic conceptions of it flatten legal disputes in ways that fundamentally misconstrue the true nature of the conflicts within them. Since what goes under the label of religion is culturally contingent, multifarious, and multifunctional—ideological, personal, political, institutional, communal, a phenomenon of cultural identity and at the same time a source of trans-temporal truth—one ought to expect the same variety, conflict, and incommensurability among and within the conceptions of religious liberty cherished by particular communities and enlisted to protect religion under the Constitution.

It may be that legal conceptions of religious liberty not only are insufficiently capacious to accommodate the welter of reasons to protect religious freedom (this would not be a failing unique to this area of law) but are also so grossly inadequate as to demand some radical alternative. We would, in that case, be well-advised to begin thinking about what should come “after” laws and theories that are irredeemably maladapted to the purpose. But before reaching this conclusion, we ought at least to move away from comic accounts of religious liberty and begin to hear the music of religious freedom in a more tragic key—in a way that embraces a plurality of values and that necessarily involves sacrificing ends about which we care deeply.

In other ways, however, my views are in at least some tension with the project’s ambitions to get past, or over, or somehow beyond religious freedom. I suspect that this skepticism about getting beyond religious freedom may relate to broader differences of interest, focus, and purpose between the disciplines of law and the academic study of religion (ASR).[1] To indulge in an overgeneralization (though one that, I hope, captures something true): ASR scholars are interested in dissolving religion; legal scholars are interested in managing it. There are several reasons that the pungent and interesting critique of religion and religious freedom that has developed in ASR scholarship has been relatively slow to affect law and legal scholarship.[2] 

First, lawyers and law professors—even those many who believe that the interpretation of a text can and should change over time—almost always pay close attention to text. From the lawyer’s perspective, to accept the claim that we should get over or past religious freedom might suggest that we ought to take the extraordinary act of reading the religion clauses out of the Constitution. There are some clauses of the Bill of Rights that lie largely dormant; but there are few, if any, that have suffered this end.

Second, dispensing with religious freedom would present the problem of what to do with precedent. A battalion of cases interpreting the religion clauses now exists as part of our legal heritage and tradition. Discarding the concept of religious freedom leaves hundreds of cases purportedly about religious freedom in a kind of no-man’s-land. It would be as if a theorist one day declared that there were no such things as buses or subways, and as a result the government could no longer provide public transportation. One of the core functions of law is to provide stability across time. People rely on the subway to conduct their daily affairs. They plan their lives and activities around the subway’s regular operations. True, some theorists have argued that whatever is covered by the religion clauses could simply be absorbed by other constitutional provisions—the Equal Protection Clause, for example. Both as a doctrinal matter (the Equal Protection Clause, after all, has its own precedential traditions and wrinkles) and as a conceptual strategy (is this not simply a reversion to comic theory?), I remain skeptical.

Last, the ambition to get beyond religious freedom may illustrate the distance between the disciplines of law and ASR. The legal enterprise is primarily concerned with managing existing social projects, interactions, and arrangements. It is therefore dependent on the particular history of the country in which it operates—its culture, traditions, customs, and common patterns of behavior—taking what exists in society and controlling, administering, and regularizing it according to legal forms. For better or worse, most American lawyers, judges, and legal scholars believe that religion is a special cultural phenomenon. Legal scholars likewise give sustained attention to the historically contingent function of law. For example, when legal scholars and courts are faced with the difficulty of defining religion for legal purposes, they are not generally guided by the categories and frameworks that have informed ASR scholars,[3] but by historical and culturally contingent settlements that can be analogized to present legal problems.[4] Their perspective is internal.

To my knowledge, ASR is, by contrast, largely unconcerned with maintaining and managing an existing formal mechanism of organization. Of course this is not to say that ASR scholars are not interested in the history of these mechanisms. They are, but their historical interests are directed elsewhere—in the construction of critical genealogies of religion, for example, with the aim of putting into question and possibly dismantling and dissolving customary structures. They imagine what might come after such conventions, and the fact of there being an existing structure that has functioned tolerably well is of little scholarly importance. Their perspective is external.

Lest I be misunderstood: both sets of scholarly purposes have great value within the respective practices and traditions of academic inquiry in law and ASR. And dialogue between the disciplinary communities has been too long in coming; it is a welcome development, and I am grateful to be included in it. The disciplines have much to learn from one another. There are convergences between my own criticisms of legal theory in this area and some of the critiques brought to bear by ASR scholars that I hope to explore. But the distance between the aims of the disciplines should not be ignored and should not be collapsed. That disciplinary separation will bear directly on the perspective from which we are assessing what, if anything, should come “after” religious freedom.

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[1] It may be that “after religious freedom” refers more to an interrogation of the conceptual unity of “religious freedom” than to a disagreement about how the term is used in law. If the former, then there may be some limited overlap between particular segments of the legal and ASR scholarly communities. Several legal scholars do ask whether religion is (or ought to be) “special” as a (legal) category. See, in this respect, the recent work of Brian Leiter, Micah Schwartzman, and Andrew Koppelman (who offers a distinctive answer summarized in his contribution to this conference).

[2] Especially law. In legal scholarship, there are exceptions, such as the work of Winnifred Fallers Sullivan.

[3] See in this respect the discussion in Nelson Tebbe, Nonbelievers, 97 Va. L. Rev. 1111, 1131 (2011).

[4] See, for example, Kent Greenawalt, Religion as a Concept in Constitutional Law, 72 Cal. L. Rev. 753 (1984).