Today I (re)read Doug Laycock’s recent essay called “Sex, Atheism, and the Free Exercise of Religion,” 88 Detroit-Mercy L. Rev. 407 (2011).  It’s an important essay, and everyone who reads a blog like this one ought to read it and think seriously about it.

The essay, written before the current controversy about the “contraception mandate,” begins with the sobering observation that  “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.”  And he “worr[ies] that the success story [of American religious liberty] may now be at risk.”

Doug describes the challenge to free exercise as coming from two main sources.  First, the gay rights movement has come to perceive traditional religion as its principal enemy.   And “[i]f traditional religion is the enemy, then it might follow that religious liberty is a bad thing, because it empowers that enemy.  No one says this straight out, at least in public.  But it is a reasonable inference from things that are said, both in public and in private.”  Doug makes it clear, by the way, that he is strongly in favor of gay rights, and he lays approximately equal responsibility on gay rights activists and religious conservatives for their unwillingness to compromise.

Second, there has been an increase in the number and visibility within American society of non-believers– atheists, agnostics, and even people who may have a religious affiliation but little actual belief or religious commitment.  Doug explains how the more active presence of non-believers alters perceptions of religious freedom.  When everyone or nearly everyone was a religious believer of one type or another, religious freedom could be seen as “a sort of mutual non-aggression pact” that was beneficial to everyone.  Today, by contrast, “[m]uch of the nonbelieving minority sees religious liberty as a protection only for believers.  On that view, a universal natural right morphs into a special interest demand . . . .”1

The essay should serve as a warning to those who think expressions of concern about religious freedom are trumped up or “much ado about nothing.”  Doug’s expression of concern is especially credible for several reasons.  First, he is not only a leading scholar of religious liberty, but he has also been active in litigating and lobbying for religious liberty.  He knows what he’s talking about, first-hand.  Second, Doug’s support for gay rights and his publicly expressed religious agnosticism should make it more difficult to dismiss his expression of concern as just pretextual or paranoid, as critics may say when Catholic bishops or LDS authorities raise similar concerns.  In addition, I don’t think Doug is temperamentally pessimistic or apocalyptic (as his essay suggests that I may be– heaven forbid!).

One lesson I would draw (and that Doug in fact draws) is that the problem of articulating persuasive justifications for religious freedom is not just an academic exercise (as, for example, Marc’s comment on a post from last week might be taken as suggesting).

— Steve Smith

5 thoughts on “Laycock on the Vulnerability of Religious Liberty

  1. Steve, your comments are spot-on. A recurrent theme I’ve encountered among my atheist / “anti-bullying” / “pro-tolerance” friends is that tolerance SHOULD NOT be extended to groups that are themselves intolerant. Such groups are invariably defined to include traditional religious faiths.

  2. Thanks for the post Steve. It might well be that coming up with new justifications for religious liberty is important in order to impact the issues that Doug is talking about in his article.

    Sometimes, though, I wonder about this. Is there a tight connection between theoretical justifications and the sorts of large social shifts that Doug is talking about? The skeptic in me doubts it. That is, I wonder whether the thinking up of some new justification for religious liberty would do very much at all to make the conflicts that Doug describes less difficult. The conflicts may run deeper than the question whether a new principle of religious liberty can be devised. Most people don’t rely on moral reasoning, or reasoning from political philosophy, for their commitments. Ties of identity, loyalty, emotional intuition, and others are very powerful.

    I guess that the activity of justification *might* have a direct effect or impact on the controversies over gay marriage, or the issue of religious belief. Or maybe the impact will be indirect. Or maybe there is generally little effect.

  3. I have a lot of these doubts and questions myself. Imagine the lonely theorist, brooding in his office, suddenly (“Eureka!) coming up with some new justification for religious liberty (or whatever), and the course of Western history is transformed. This could happen, it seems, only in an academic’s fantasy.

    There are a couple of questions here, it seems to me. There’s the old question about the causal significance of ideas in history. Do ideas drive history, or do other factors (like economics, or the means of production) shape history, with ideas being pretty much epiphenomenal? Some mushy middle ground has always seemed sensible to me on that one. Then there’s the further question: insofar as ideas do have some force, at what point do they exert it? In this case, would it be beliefs about religious freedom that would matter or rather, as Marc implies, more primary beliefs about religion itself, or sexual ethics or whatever?

    In the end, I think it would be ridiculous for us academics to suppose that our theorizing is going to have any large historical impact. (Ridiculous and scary.) At the same time, it does seem that the absence of persuasive justifications for cause or movement will be an impediment. So I figure that larger movements of religion and politics are likely to be vastly more important in determining what happens to religious freedom than anybody’s scholarly contribution. And those larger movements are prety much impossible to predict or control. (“The spirit moves where it listeth . . ..”). But we do what we can.

  4. Jonathan Haidt’s new book, which I’m reading this summer, makes this point: in moral reasoning, the intuitions come first, and the rational arguments second. That is, people feel that a certain result is right, and come up with moral arguments more or less strategically, to justify the result they have already reached. Maybe that’s true with respect to legal reasoning, too. We intuit the conclusion and come up with the rational justifications later. If this is true, legal arguments don’t determine anything, themselves.

  5. Mark’s point– about intutions coming first and rationalization or justification later– seems prima facie plausible to me, and it points back to debates inspired by legal realism a few decades ago. But I think the point calls for a couple of qualifications (which were also aired in the legal realism debates).

    First, not every intution (or “hunch,” as Joseph Hutcheson put it) can be justified with equal plausibility. So someone may have an intution but then reject it because it comes to seem implausible as justification and examination proceed. This happens to me quite regularly. Second, intuitions don’t just appear ex nihilo. They come from somewhere, presumably including ingrained personal and societal beliefs that are themselves in part a product of past successes and failures in justification.

    One derivative concern, I think, is with the efficacy of prevailing modes of justification. If the dominant modes of justification are almost wholly indeterminate and substantively empty, then the justification stage will impose little or no discipline on intutions (hunches, prejudices, trends, etc.) “Justification” (or “reason”) will just allow people to feel all the more certain and perhaps righteous about whatever views they happen to hold, or to have been given. Note here a possible reference to Peter Westen’s famous article on equality, cross-referenced to just about any prominent liberal thinker today. (I understand that other people would emphasize other possible references, including some that I would likely find less congenial.)

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