Posted on by Mark Movsesian

Movsesian on Defining Religion

In First Things this month, I have an essay arguing that religion, for legal purposes, presumptively means a collective rather than a purely personal pursuit. It’s a question that already has perplexed courts in the context of COVID-19, and is likely to become more pressing with the rise of the Nones.

Here’s an excerpt:

It’s time for the Court to establish that religion, at its core, denotes communal beliefs and practices rather than idiosyncratic personal commitments. A communal definition makes sense for several reasons. First, the existence of a community captures something important about the social reality of religion. In lived experience, religion suggests a group of people linked with one another, through time, in worship. As sociologist Christian Smith writes, “religions are almost invariably social activities—communities of memory engaged in carrying on particular traditions.” Without a communal structure to give them meaning, religious practices such as prayer, fasting, and so on are incoherent, “simply the strange doings of odd people.”

Second, a focus on community accords with an important goal of religious freedom: the promotion of private associations that encourage cooperative projects and check state power. As Tocqueville explained, the despotic state desires nothing more than for individual citizens to feel isolated from and indifferent to others, so that it can divide and dominate them all. By encouraging people to identify with and look out for one another, private associations militate against self-centeredness and social isolation and help keep the state in check. Religious groups perform this function especially well. No associations have been better, historically, at promoting cooperative social projects and defying state oppression—as dictators down the centuries have learned.

Third, the existence of a religious community reduces the possibility of fraud. Everyone agrees that courts need not honor a religious claim that a litigant does not genuinely hold or raises merely as a pretext. But sincerity, which depends on a claimant’s subjective state of mind, is notoriously difficult for courts to evaluate. The existence of a religious community to which the claimant belongs can provide objective evidence of the claimant’s good faith. A continuous tradition of teaching and worship, and an organized body that enforces discipline, can go a long way toward demonstrating the claimant’s genuineness about his religious convictions.

Fourth, the existence of a community helps ensure that religious commitments are not frivolous and fleeting, but serious and lasting. It is one thing for the state to accommodate a citizen’s profoundly held beliefs. To do so honors the citizen’s dignity and accords him respect. It is another thing to defer to commitments that may be temporary and superficial. Not all idiosyncratic commitments fit that description, of course, and beliefs can be religious even if novel. But the existence of an established religious community can screen out passing whims that the state need not honor.

Finally, making the definition of religion turn at least in part on the existence of a religious community reduces the potential for administrative disorder. Long ago, the Supreme Court warned that if personal spiritual convictions were sufficient to override legal obligations, “every citizen [would] become a law unto himself.” One should not overstate this concern, but the rise of the Nones makes it important today. Requiring a claimant to show that his or her objections are not merely personal but derive from the teachings of an organized body of believers can reduce the potential for conflict with state laws—especially in a society in which very large numbers claim to follow their own spiritual paths.

You can find the rest of the First Things essay here. A much longer version of the essay will appear in a forthcoming symposium issue of the Loyola University Chicago Law Journal.

Posted on by Mark Movsesian

Baddeley, “Copycats and Contrarians”

eee38ec1b7567339c2ae5c2dcf1e4aa7Under the influence of the Enlightenment, or Protestantism, or both, our legal system typically treats religion as individualist and intellectual: a personal assent to certain abstract propositions of faith. But this is not how most people experience religion in daily life. For most of us, religion is about joining a community with which we identify for various reasons, of which intellectual reasons may be the least important. A new book from Yale University Press, Copycats and Contrarians: Why We Follow Others… and When We Don’t, touches on the group dynamics of religion and other phenomena. (Here’s one group phenomenon the author apparently doesn’t address: academic life, which strikes me as quite dominated by the “herd instinct,” actually). The author is scholar Michelle Baddeley (University of South Australia). Here’s the description from the publisher’s website:

A multidisciplinary exploration of our human inclination to herd and why our instinct to copy others can be dangerous in today’s interlinked world

Rioting teenagers, tumbling stock markets, and the spread of religious terrorism appear to have little in common, but all are driven by the same basic instincts: the tendency to herd, follow, and imitate others. In today’s interconnected world, group choices all too often seem maladaptive. With unprecedented speed, information flashes across the globe and drives rapid shifts in group opinion. Adverse results can include speculative economic bubbles, irrational denigration of scientists and other experts, seismic political reversals, and more.

Drawing on insights from across the social, behavioral, and natural sciences, Michelle Baddeley explores contexts in which behavior is driven by the herd. She analyzes the rational vs. nonrational and cognitive vs. emotional forces involved, and she investigates why herding only sometimes works out well. With new perspectives on followers, leaders, and the pros and cons of herd behavior, Baddeley shines vivid light on human behavior in the context of our ever-more-connected world.

Posted on by Mark Movsesian

Schewel, “Seven Ways of Looking at Religion”

c6280932b49dc826a8e2e7ce5a059c97Religious freedom is, to put it as neutrally as one can, a contested concept nowadays. One reason for the controversy is that our culture, and therefore our law, no longer agrees exactly what religion is. So it’s important to grapple with the question, what is religion and why do we protect its exercise? A new book from Yale University Press, Seven Ways of Looking at Religion, by Benjamin Schewel (University of Groningen) may be helpful, if only to categorize our confusion. Here’s a description from the Yale website:

Western intellectuals have long theorized that religion would undergo a process of marginalization and decline as the forces of modernity advanced. Yet recent events have disrupted this seductively straightforward story. As a result, while it is clear that religion has somehow evolved from its tribal beginnings up through modernity and into the current global age, there is no consensus about what kind of narrative of religious change we should alternatively tell. Seeking clarity, Benjamin Schewel organizes and evaluates the prevalent narratives of religious history that scholars have deployed over the past century and are advancing today. He argues that contemporary scholarly discourse on religion can be categorized according to seven central narratives: subtraction, renewal, transsecular, postnaturalist, construct, perennial, and developmental. Examining the basic logic, insights, and limitations of each of these narratives, Schewel ranges from Martin Heidegger to Muhammad Iqbal, from Daniel Dennett to Charles Taylor, to offer an incisive, broad, and original perspective on religion in the modern world.

Posted on by Mark Movsesian

Crane, “The Meaning of Belief”

9780674088832-lgAmerican progressives increasingly argue that religion is simply a type of ideology, and that, as a result, it should receive no more respect in our law than other sorts of ideological commitments. But religion, as the West traditionally has understood it, is something more than ideology, especially in its corporate, identitarian aspects. The law traditionally has given special protection to religion exactly because it is not an ideology like any other. A new book from Harvard University Press, The Meaning of Belief: Religion from an Atheist’s Point of View, by Tim Crane (Central European University) attempts to explain the unique aspects of religion to atheists, who otherwise might fail to understand the force of the worldview they reject. Here’s the description from the Harvard website:

Contemporary debate about religion seems to be going nowhere. Atheists persist with their arguments, many plausible and some unanswerable, but these make no impact on religious believers. Defenders of religion find atheists equally unwilling to cede ground. The Meaning of Belief offers a way out of this stalemate.

An atheist himself, Tim Crane writes that there is a fundamental flaw with most atheists’ basic approach: religion is not what they think it is. Atheists tend to treat religion as a kind of primitive cosmology, as the sort of explanation of the universe that science offers. They conclude that religious believers are irrational, superstitious, and bigoted. But this view of religion is almost entirely inaccurate. Crane offers an alternative account based on two ideas. The first is the idea of a religious impulse: the sense people have of something transcending the world of ordinary experience, even if it cannot be explicitly articulated. The second is the idea of identification: the fact that religion involves belonging to a specific social group and participating in practices that reinforce the bonds of belonging. Once these ideas are properly understood, the inadequacy of atheists’ conventional conception of religion emerges.

The Meaning of Belief does not assess the truth or falsehood of religion. Rather, it looks at the meaning of religious belief and offers a way of understanding it that both makes sense of current debate and also suggests what more intellectually responsible and practically effective attitudes atheists might take to the phenomenon of religion.

Posted on by Mark Movsesian

Versluis, “American Gurus”

Today, Oxford University Press releases American Gurus: From Transcendentalism to New Age Religion, by Arthur Versluis (Michigan State University). The publisher’s description follows:

By the early twenty-first century, a phenomenon that once was inconceivable had become nearly commonplace in American society: the public spiritual teacher who neither belongs to, nor is authorized by a major religious tradition. From the Oprah Winfrey-endorsed Eckhart Tolle to figures like Gangaji and Adhyashanti, there are now countless spiritual teachers who claim and teach variants of instant or immediate enlightenment.

American Gurus tells the story of how this phenomenon emerged. Through an examination of the broader literary and religious context of the subject, Arthur Versluis shows that a characteristic feature of the Western esoteric tradition is the claim that every person can achieve “spontaneous, direct, unmediated spiritual insight.” This claim was articulated with special clarity by the New England Transcendentalists Bronson Alcott and Ralph Waldo Emerson. Versluis explores Transcendentalism, Walt Whitman, the Beat movement, Timothy Leary, and the New Age movement to shed light on the emergence of the contemporary American guru. 

This insightful study is the first to show how Asian religions and Western mysticism converged to produce the phenomenon of “spontaneously enlightened” American gurus.

Posted on by Mark Movsesian

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

Posted on by Mark Movsesian

UK Supreme Court: Religion Does Not Require God

Last week, the Supreme Court of the United Kingdom–since 2009, the highest court in the UK–handed down what looks to be a significant decision on the meaning of “religion” in English law. The decision suggests that, for legal purposes, religion does not require a belief in God.

The case involved a couple who wished to marry in a Scientologist church in London. Under English law, marriages performed in a “place of religious worship” are considered valid. Nonetheless, the couple faced a problem. In 1970, an English court concluded that Scientology is not a religion, because Scientology does not hold a belief in God. So, when the couple sought to have their church certified as a place where marriages might take place, the relevant government official refused: if Scientology is not a religion, a Scientologist church cannot be a “place of religious worship.” The couple then sued.

Last week, the Supreme Court sided with the couple. The 1970 opinion was wrong, the court held. Scientology is indeed a religion. For one thing, Lord Toulson’s opinion explained, Scientology does hold a belief in a supreme deity, albeit an impersonal and abstract deity. Anyway, belief in a deity is not necessary. Religion, Lord Toulson wrote, means:

a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system…. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the sense or from science.

On this definition–and Lord Toulson made clear he was not announcing a categorical test for all circumstances–Scientology qualifies as a religion. The court ordered the government to certify the couple’s church as a place where valid marriages could take place.

There’s a lot going on in Lord Toulson’s opinion, and I can’t do it justice in a short post. Three observations, though. First, it seems entirely correct to say that “religion” does not necessarily mean a belief in God. Some versions of Buddhism do not hold a belief in a deity, for example, and it would be very odd to have a definition of religion that excluded Buddhism. I don’t know enough about Scientology to know whether it should be considered a religion, but the fact that it is not conventionally theistic shouldn’t be dispositive.

Second, it seems correct that religion must have some supernatural component. Otherwise, religion collapses into philosophy. Of course, we might protect strong secular convictions in addition to religion. In fact, the European Convention on Human Rights protects both religious and secular convictions. But the relevant English law in this case speaks of “religious worship,” not “secular convictions,” and pretty much everybody knows the difference between the two. It doesn’t do any good to pretend a law is vaguer than it is.

Finally, note Lord Toulson’s insistence that religion involves a group of adherents. This is very significant. Religion is inherently communal, and some of the most important benefits the state derives from religion–for example, greater civic participation–depend on religion’s being a group activity. In America, some people have begun to argue for a very individualistic definition of religion, one in which a sole practitioner, following her own inner voice, can qualify as a religion for legal purposes. Earlier this year, a federal appeals court rejected this view, and there are good reasons to do so. I’ll have more to say about all this is a forthcoming paper, to be published next month by the European University Institute. I’ll post more on this subject then. 

The case is R (on the application of Hodkin and another) v. Registrar General of Births, Deaths and Marriages (Dec. 11, 2013).

Posted on by Marc O. DeGirolami

Arsheim on the Meanings and Uses of Religious Freedom

Helge Årsheim has an interesting piece on the Immanent Frame blog which recapitulates some of the debates that he has been sponsoring at his PluRel blog (to which I gladly contributed) and offers some thoughts of his own, particularly as respects the meaning and scope of religious freedom in the international sphere. Below is an extended chunk from Helge’s post. The only little addendum to it that I’d make here is that the extent to which US domestic law is “splendidly isolated” from international law is, of course, famously a matter of both descriptive and normative contestation within the US legal community! Here’s Helge:

The international law on religious freedom is not limited to religion, but denotes a set of legal measures set in motion to protect beliefs and their ”manifestations” from undue limitations and interference. Explicitly covering beliefs well beyond the confines of any traditional definition of religion, the right as it is codified in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and surrounding legal texts – collectively known as the International Bill of Rights – does not require legal systems, whether international or domestic, to decide on the merits of one religion over another. The expansive nature of the freedom of religion or belief in international law thus provides an unequivocal answer in the negative to the overarching question in all dealings with religion in political or legal contexts: whether religion is a special, set apart, sui generis concept that requires particular attention and protection over other concerns. Religion, as it is construed in international legal texts, is just one subset of an expansive range of protected beliefs that can be subjectively held without any form of state interference. While the inclusion of terms like “manifestation,” “observance,” “belief,” and “conscience” are drawn from, and therefore clearly favor, certain religious traditions to the exclusion of others, their interpretation in the practice of the UN Human Rights Committee are explicitly detached from a religious framework.

Once the serene, inclusive, and clear-cut concept of religious freedom in international law is confronted with the myriad cultural, historical, political and academic iterations of religious freedom that dominate domestic legal practice, however, the content of “religion and belief” moves from being non-theist and inclusive to a more ambivalent status: in these competing visions of what religious freedom may or may not be, the contents of both “religion” and its relation to “freedom” is hotly contested. These contestations take place across a wide array of societal spheres, and concern the origin and metaphysical status of religion in society and the political sphere; what groups, doctrines and practices can be construed as “religious” and competencies and duties arising from this identification; and the relationship between majority and minority religious traditions in history and culture. Contrary to the dictates of international law, the vast majority of competing visions of religious freedom in the domestic sphere are united by their emphasis on the determination of religion as religion….

While the disconnect between international and local conceptions of religious freedom is well known and has been decisive to the development of the “margin of appreciation” doctrine of the European Court of Human Rights, the exchange at the PluRel blog displays a number of different positions on how this disconnect can and should be interpreted. Winnifred Sullivan observes in her inaugural post that US law is “…constantly bumping up against the unstable collection of social facts that have come to be assembled under the word “religion,”” and that for this reason, we should “find some other words.”. At the other end of the spectrum, Marc O. DeGirolami observes that US legal actors believe that religion is a “special cultural phenomenon,” the definition of which should be based on analogies to “historical and culturally contingent settlements,” rather than findings from the “academic study of religion.”

Sullivan and DeGirolami prescribe solutions that display very different views of the power of law, but share a basic conviction that social practices that can fall under the rubric of religion are worthy of legal protection or non-interference. Where Sullivan suggests that law is unable to grant this form of protection due to its preference for certain majority traditions over lived religious practice, DeGirolami seems to consider this preference part of the culturally contingent settlements on which law relies, a preference that cannot be unsettled by the findings of academics. Although one would expect a cultural affinity between US and international law on religious freedom in their shared preference for Protestant conceptions of religion, neither Sullivan nor DeGirolami address the international legal framework, demonstrating the splendid isolation of US legislation and jurisprudence on this issue. This isolation is a common feature of US law, which has a longstanding tradition of ignoring international law. Additionally, the turning point of the non-establishment clause of the US constitutional law on religious freedom is the neutrality of the state, an issue entirely outside the purview of international law.

Read more

Posted on by Marc O. DeGirolami

Hurd on Religious Difference and Religious Freedom

Elizabeth Shakman Hurd has an interesting post over at Helge Årsheim’s blog rounding out the discussion of religious freedom that began with Winni Sullivan’s reflections and to which I contributed as well (see here and here). I have long thought that there is an important intellectual root in the criticisms of religious freedom that both Beth and Winni advance in the work of Talal Asad (probably I am not the first to make this observation), and so I am glad to see Beth refer back to him here. Here’s a bit from Beth’s smart post:

As someone who studies the politics of secularism and religion comparatively and internationally, I became interested in religious freedom promotion because, quite simply, everyone is for it. Both liberal internationalists and those affirming a divine origin of the right to religious freedom, and almost everyone else, seem to have accepted the notion of religious freedom as a fundamental human right, legal standard, and social fact that can be objectively measured and achieved by all political collectivities. It is a matter of persuading people and governments to understand and comply with a universal standard. Peace, inter-communal harmony and prosperity will follow. States and societies are positioned along a spectrum of progress, inclined either toward the achievement of religious freedom as a social fact, or slipping back into religious persecution and violence caused by religious hatred….

This dominant storyline elicits a number of concerns. One is the extent to which it presupposes a direct convergence between the rule of law and social justice. As Talal Asad has observed of the [Universal Declaration of Human Rights], but which also applies to efforts to globalize and legalize religious freedom, “the rule called law in effect usurps the entire universe of moral discourse.” Asad concludes that this equation privileges the state’s (or associations thereof) norm-defining function, “thereby encouraging the thought that the authority of norms corresponds to the political force that supports them as law.” There is no space for non-state norms. Religious freedom, one could say, effaces the distinction between law and justice. It has, as Paul Kennedy has observed of human rights, “captured the field of emancipatory possibility.”

In my experience these concerns about religious freedom only multiply and intensify the more one considers the diverse histories and politics that attend religious freedom advocacy. Over the past three years I have co-directed the Politics of Religious Freedom project, a collaborative effort to study the discourses of religious freedom in South Asia, North Africa, Europe, the United States, sub-Saharan Africa, and Brazil. In re-describing the historical and cultural assumptions underlying national and international projects to promote religious freedom, we have sought to unsettle the agreement in policy circles that religious freedom is a singular achievement, and that the problem lies in its incomplete realization. Is it possible that a norm intended to secure human flourishing and peaceful co-existence could in some circumstances enact the opposite?

Posted on by Mark Movsesian · 3 Comments

Religion without God

Religion without God is the late Ronald Dworkin’s last work, published posthumously in September. It’s a short book; a publisher’s note explains that Dworkin planned to expand the work greatly before he fell ill. Still, the book is important. Not that it says anything especially new. As far as I can tell, in fact, the book repeats familiar, even ancient, objections to the idea of a personal God and proposes a legal definition of religion that is decades old. Religion without God is important, rather, because it reflects the worldview of  a celebrated liberal philosopher sympathetic to religion but unable to believe in God, and because it reflects an increasingly important strategy in the Left’s battle to minimize protection for traditional religion.

Religion without God has two main points, one about the nature of religion and the other about religious freedom. In the first part of the book, Dworkin argues that religion, properly understood, does not require a belief in God. Religion requires only a belief in objective meaning and a sense of wonder at the sublime quality of the universe. Many atheists believe in objective meaning and view the universe with a sense of wonder, Dworkin writes, and are thus, in their way, “religious.” Dworkin hopes this insight will dampen the conflict between atheists and believers in contemporary Western culture. Both sides agree on the essential things, he argues; disagreement on the existence of God is only a minor detail.

Take objective moral values, for instance. Many theists believe moral values depend on the existence of a personal God. If God had not told us, or implanted the knowledge in us, we would not know what is right and what is wrong. This is logically incorrect, Dworkin says. Objective values must exist independently of God’s will. Otherwise, God could make conduct ethical simply by commanding it, and that would be entirely arbitrary. What if God ordered you to murder your family members? Would that make the murders right? No, the murders would be wrong, whatever God told you. So God is superfluous to moral reasoning–no more than a possibly helpful guide. Once they recognize this, Dworkin argues, believers will see that their differences with atheists–at least with “religious atheists”–are insignificant.   

This argument tracks the famous Euthyphro dilemma, to which Dworkin alludes at the very end of his book. Christianity–I don’t know about other traditions–has an answer to this dilemma, though Dworkin dismisses it rather summarily. The Christian answer is this: the Euthyphro dilemma assumes that God is a being like any other in the universe, subject to the same logical disconnect between fact and value. But God, in Christian understanding, is not like that. Unlike human beings, God is not born into a preexisting universe. He is eternal. As Peter Leithart writes, no gap exists between God and objective reality, including objective moral reality. In the Christian conception, God is objective moral reality.

This is all pretty complicated. But one doesn’t have to follow the entire argument to recognize that theists are unlikely to be persuaded that a belief in God is optional–and that atheists are unlikely to be persuaded that their disagreement with theists is only minor. Dworkin himself recognizes that his irenic project is likely to fail, which gives Religion without God a melancholy tone. He apparently believed it important to try to narrow the conceptual gap between theism and atheism, however, in order to advance a legal project: expanding the legal definition of religion to include non-theistic, ethical convictions.

Here’s the argument. If religion is “deeper” than conventional theism, as Dworkin insists, protection for religious exercise must, in fairness, extend to non-theistic belief systems as well. In fact, protection should extend to any passionately held ethical conviction. This observation isn’t new. In the Draft Act cases decades ago, the Supreme Court indicated that religion could include deeply-held, non-theistic beliefs. But extending “religion” in this way creates a serious practical problem. In our legal system, religion enjoys a specially-protected status. In many instances, government accommodates citizens’ religious beliefs by granting exemptions from otherwise applicable legal requirements. If religion means all deeply-held ethical convictions, how can the state possibly accommodate it? Chaos would result.

Here Dworkin makes his final move. Because of the practical impossibility of accommodating religion, the state should not bother to try. We should abandon “the idea of a special right to religious freedom with its high hurdle of protection,” he writes, in favor of a more general right to “ethical independence.” The payoff? “If we deny a special right to free exercise of religious practice, and rely only on the general right to ethical independence, then religions may be forced to restrict their practices so as to obey rational, nondiscriminatory laws that do not display less than equal concern for them.” Religion, in other words, will take a back seat to progressive politics. A general right of ethical independence, he writes, would restrict public religious displays, unless the displays were genuinely drained of all religious meaning, and would mandate “the liberal position” on same-sex marriage, abortion, and gender equality in marriage.

Dworkin’s definition of religion thus seems tendentious, a way to dilute religion so as to minimize the potential for conflict with the progressive state. This is not surprising. Traditional religion opposes many of the Left’s priorities; for the Left to succeed, it must continue to marginalize traditional religion. And Dworkin’s argument that religion as such does not merit special protection is very much in the air today. Prominent law professors like Brian Leiter and Micah Schwartzman make versions of this argument, for example. In the Hosanna-Tabor case, the Obama Administration maintained that religious freedom, as such, had nothing to do with a church’s decision to fire its minister.

So far, courts appear to be rejecting the religion-isn’t-special argument (though, it must be said, the Court’s 1990 decision in Employment Division v. Smith, the peyote case, gives the argument rather more traction than it should possess). In Hosanna-Tabor, for example, the Supreme Court rejected the Obama Administration’s argument by a vote of 9-0. You never know how future courts will see things, though. Dworkin’s last book suggests that the fight over the special status of religion in American law is only beginning.