I participated in a terrific conference yesterday organized by the Berkley Center for Religion, Peace, and World Affairs at Georgetown. The master of ceremonies, Tom Farr, did a wonderful job of putting interesting panels together. And our own moderator, Tom Banschoff, put a series of provocative questions to our panel. I learned a lot from my good co-panelists, Cathy Kaveny and Mark Rienzi, and was happy to see and listen to many old friends and meet new ones (I am now on the train home with some spotty internet access, and so will forbear from linking to the various places where you can learn about the conference — at some point, a video will be available for those who need a sleep aid).
Our panel’s overarching subject was conflict between religious liberty and other rights. My initial comments had to do with the importance of conflict — not only its inevitability, but indeed (and more controversially), its positive desirability as a reflection of the reality of our respective and very different backgrounds, traditions, and memories, but also as a reflection of our internal struggles to manage the clash of sundry values as to which we each hold strong allegiances.
But I realized — both throughout the day and during the panel itself — that my approach and that of others may be slightly different, and in a way that maybe it would be helpful to spell out. During the conference, there was sometimes mention, by some of the speakers, about the need to “build bridges” or to reach mutual agreements or to “solve” conflicts with those with whom one disagrees. Provided that compromises are undertaken at the right level of particularity, I think these are all very worthy goals. They are important as a matter of practical getting along. They are important as a political and legal matter. And they are important inasmuch as an irenic state of affairs is generally welcome.
But I do not think that bridge-building is the only activity that needs pursuing. There are other projects too. Because of the depth and complexity of the conflicts at issue in many of the contemporary controversies addressed by the conference — indeed, because of the central importance of conflict — it seems to me that some study of the conflicts themselves is worthwhile — a study which would be undertaken without the self-conscious and more specifically practical aim of “solving” them. The project would be simply to understand them, and if that were accomplished, it’d be a good day’s work. It also might be the case that taking the measure of a conflict can be achieved more effectively and more deeply without an underlying impulse or motivation to reach a state of harmony, and without the conviction that harmony must somehow be possible.
Perhaps it might be useful to offer some concrete examples of the beginnings of an agenda for the study of conflict as applicable to some of the specific controversies swirling about today. The list surely is not and is not intended to be complete. The main point of this post is methodological. It is about what projects are worth pursuing.
1. What are the conflicting meanings and understandings of various values and concepts which one hears about so often — values like “health,” “autonomy,” “equality,” “religion,” “liberty,” and “rights” — within the particular contexts in which they are invoked? How do these values and concepts fragment (if they do) on closer inspection into rival values and concepts? For example, what do the contending sides in a given dispute mean by “health”? How does the value of “health” interact with other values, like “autonomy,” when these are invoked together? In what precise way are these and other values used when they are invoked in support of particular policy aims? Are they always invoked consistently? Sometimes? (I do not mean in the least to imply that consistency is a cardinal virtue.)
2. What is the ranking or ordering of values that different constituencies assign to these values when they conflict? What is the ranking or ordering that different constituencies assign to these values when (and if) the values break down into sub-values, or sub-sub-values. Is there consistency in the ranking of values, or does the ranking of values change depending on the controversy at issue. For example, does “health” always or only sometimes trump “liberty”? If not always, under what circumstances does “health” trump “liberty,” and why? What drives the ranking of values? Another larger or covering value? A more general vision of the good life? What happens if values are not systematically rankable in this way?
3. As to which social unit — the institution or the individual — does religious liberty attach? Always both, or only sometimes? When the religious liberty of the individual conflicts with the religious liberty of the state, which is more important? If context matters (as it usually does), which contexts matter? Can we understand and see patterns in the priorities set by different sides in a given conflict?
4. What is the appropriate role of law? When ought the law to step in to decide a conflict (resolve is hardly the right word here). How broadly or narrowly should “rights” be defined? Should new legal rights come into being over time, and if so, how should we decide when and what they should be? Is the law the best vehicle for the negotiation of conflict? What are the different views on this question?
5. What is the proper understanding of the right to religious liberty? Is a right to, say, sexual autonomy also properly characterized as a right to religious liberty? If so, what is the proper scope of the right to religious liberty (under the Constitution? under a statute like RFRA? under state constitutions or state statutes?) and what are its limits? Does the right to religious liberty continue to be a useful concept for us, and what makes it useful in light of the contestability of the category of religion?
As I say, these are only a few questions that occurred to me (as always, after the panel was over). But I think they speak to a somewhat different agenda than that of solving conflicts. The agenda is one of studying without solving. It is certainly possible that the projects of studying conflict and reaching viable practical compromises might be mutually beneficial. But the projects are, I think distinct, and perhaps best pursued distinctively.