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