Boiled down, the basic argument goes something like this: A special commitment to religious freedom arose in a religious context and is most defensible on religious premises. Today, though, it is widely assumed that political and legal decisions must not be made on religious premises. Consequently, it is difficult today to give a persuasive (admissible) justification for a special commitment to religious freedom.
In one version or another, the argument has become familiar, and it also seems to be becoming increasingly persuasive. More and more scholars gravitate to the basic conclusion: there is no justification for religious freedom as a special right or constitutional commitment. And the Obama Administration’s recent positions on the “ministerial exception” and the “contraception mandate” suggest that the Administration has embraced this conclusion as well.
This last observation is for me reenforced by the strained hypotheses and rationalizations I have heard from intelligent thinkers who were trying hard to be friends both of the Administration and of religious freedom. For ordinary political purposes, I expect that it would be imprudent for a politician to come right out and declare, “First Amendment be damned; I’m opposed to special legal protection for religious freedom.” But viewed from a vantage point within the academy, this position seems utterly unsurprising. Obama was once an academic of sorts, and he reportedly has a few academicians working in his Administration. Why should anyone be surprised if he evolves toward a position– a position that might fairly be labeled “progressive”– that seems increasingly ascendant within the academy?
One question that emerges from these developments, though, is this one: How should people (such as myself) who do still favor a special constitutional commitment to religious freedom go about justifying that commitment? Or should we just concede that no solid justification is available? I expect and hope that these questions will receive increasing attention.
For myself, I’m not confident about the answers to the questions, if there are good answers. To be honest, I never really conceived it as my task to devise justifications for a commitment that, until fairly recently, seemed to enjoy the support of an overwhelming consensus both of scholars and citizens generally. Over the next few days, I may (or may not) try out a few very tentative ideas. Mostly, I hope to hear (in this or other contexts) what other people think.
— Steve Smith
Steve, I agree that one is seeing this move with increasing regularity in some of the up and coming scholarship. But I’ll confess that I’m somewhat confused by it. The reasons that we protect certain rights and not others are not really exclusively the product of ex ante reasoned philosophical justification. They are largely some mixture of historical experience, prudential considerations, political accommodations, traditional concerns and expectations, and then, also, philosophical explanations of various sorts. Suppose it’s true that we can’t come up any longer with a philosophically satisfying explanation for why we grant religion, and religion alone, special constitutional protection. So what? The moves being made on this front strike me as somewhat analogous to the moves that some religious studies scholars make with respect to the issue of the definition of religion — that if we can’t define it in a rigorous or systematic way, we ought to destroy or dissolve the category entirely.
But why should that be so, for purposes of the very practical and historically contingent enterprise of a particular country’s law?
One other thought. If philosophical justification is all-important for free exercise purposes, then it should also be so for establishment purposes. If there is no reason to give special protection to religion, then there should also be no reason to impose special disabilities on what the government can do to or with it either. On the establishment front, religion would become, as I think Winni Sullivan has put it, “naturalized,” and government could treat it like it treated every other phenomenon on which it takes various positions. I suppose some people might argue that the Equal Protection Clause would pick up the slack in that event.
The problem is that while “religious liberty” as a robust concept does indeed import certain norms from the Christian context, DENYING “religious liberty” must needs rest on similarly religious grounds. It takes a theology to defeat a theology. So to say that the law “must” rest on secular grounds is simply to reimport a competitor religion.
The post-post-modern solution is easy. Of COURSE “religious liberty” is a loaded concept. But so are all our concepts. And you Secularist high-priest need to give me a neutral, non-Secularist reason to reject “religious liberty.”
The reason this solution won’t gain traction is obvious: part of the secular dogma is that secularism isn’t a religion. It self-identifies as a “subtraction” story, as Charles Taylor says. This is a myth they cannot give up, because it is so much a part of their self-identity.