Is Religion Special? Archives - LAW AND RELIGION FORUM

Here’s an interesting paper by Professor Bruce Ledewitz (Duquesne) which engages with some of the recent ‘is-it-special?’ scholarship about religion and connects to the ‘hallowed secularism‘ themes that Bruce has been developing for several years in other work: The Vietnam Draft Cases and the Pro-Religion Equality Project. The abstract follows:

There is currently unfolding among secularists and liberal religious believers an equality project that argues that secular commitments of conscience are as worthy of protection as are the commitments of traditional religion. This movement is symbolized by Brian Leiter’s recent book, “Why Tolerate Religion?” but it has many other adherents today as well. This movement seeks either to substitute conscience provisions for existing religious exemptions from law or at least to add conscience exemptions to them. As religious believers have pointed out, the likely consequence, and perhaps even the goal, of this effort is the weakening of exemptions for religion rather than the strengthening of conscience exemptions for all. That is why I call this movement the Anti-Religion Equality Project. The State is the ultimate beneficiary of the Anti-Religion Equality Project.

This paper proposes an opposing equality project, the Pro-Religion Equality Project, which would expand the meaning of religion in existing religious exemptions to include many, and certainly the most passionately held, commitments of secular conscience. There is nothing new in this Pro-Religion Equality Project. The Supreme Court already expanded religious exemptions in the Vietnam draft cases, Seeger, Welsh, and Gillette, which held that conscience commitments occupying a place in the life of the nonbeliever parallel to the place of God for the traditional religious believer deserve exemption from law as religious. While Leiter aims to subsume religion under the mantle of conscience, the Pro-Religion Equality Project subsumes conscience under the rubric of religion.

Expansively interpreting religion exemptions is a better path than creating conscience provisions for a number of reasons. Because conscience is so easily invoked, conscience protection can only be weakly enforced, thus undercutting liberty for all. That result not only fails to protect religious liberty, it understates the significance of conscience claims that share the depth and breadth of traditional religious commitments and are of equal significance. Such secular conscience claims should be robustly protected and including them in existing religious exemptions helps ensure that result. In contrast, conscience claims that are idiosyncratic and lightly held should be excluded from exemptions from general law altogether and the expansion of religion exemptions tends to accomplish that.

As in the Vietnam era, nonreligious exemption claimants today will resist inclusion in religious exemptions because they do not consider themselves to be religious. But even this objection shows the advantage of the Pro-Religion Equality Project over its competitor. For conscience is understood to be an individual judgment and the promotion of conscience exemptions supports the view that deeply held moral commitments are personal and subjective. In contrast, religion sounds in truth and the expansion of religious exemptions will ignite a needed societal debate about religion, reason, relativism and nihilism.

The first speaker is Nathan Chapman (Stanford Constitutional Law Center), who is presenting a talk about the possibility of finding a religion-specific ground of protecting religious liberty, as opposed to a ground which applies to religious reasons and non-religious reasons alike. That is, Chapman is trying to discern a ground to protect religious conscience which would not apply to non-religious conscience. Setting aside the scope of the Religion Clauses of the American Constitution, the duty of those who believe in a “Higher Kingdom” — and around beliefs and practices ordered around a “Kingdom of God” — accounts historically at least for the idea of religious liberty, says Chapman. This has historically been the justification for the protection of religious liberty — for promoting the “Kingdom of God.” Chapman offers various explanations for the particular qualities of this justification, but makes clear that he is not advocating importing this justification directly into American law.

The second speaker is Bruce Ledewitz (Duquesne). Ledewitz proposes that religious legal theory ought to influence law and society. He approaches the issue from the perspective of a secularist himself. He argues that a humanistic but also religious sensibility, but one which is not necessarily theistic, offers a fruitful way forward. The thinness of secular discourse is incapable of dealing with the problems of concrete social practices. If religion is unique, if ought to offer unique insights to secular society. Religious traditions are “resources for society” and this might be what makes them special.

The third speaker is Micah Schwartzman. Schwartzman’s asks, “What if religion isn’t special?” One sub-question is whether religion ought to be excluded for purposes of legal decision-making. A second sub-question deals with religious accommodation. The aim of the paper is to show that along a number of lines, religion is actually not special, at least as a moral matter. He attacks the views of several prominent scholars who support the view that religion is special.

The fourth speaker is Nelson Tebbe. Tebbe’s argument deals with government endorsement of ideas. The claim is that there are certain secular positions that the government cannot endorse. An example is racialized speech. Suppose a government were to say that America is a white nation. That, says Tebbe, would be unconstitutional under the Equal Protection Clause. He also says it would be unconstitutional based on the Free Speech Clause, at least on a certain reading which is “democratic” in nature (see Owen Fiss). Another example he offers deals with government electioneering — suppose the government said, “Vote Democratic.” This, too, would be unconstitutional, even if government is able to advocate for particular policy views. The intuition is that the government cannot directly interfere in these ways with democratic processes. The textual hook is the Free Speech Clause, again read in a certain democracy-enhancing way. These are examples of “secular non-endorsement,” and Tebbe argues that they suggest that religion is not special per se insofar as it relates to disabilities on what the government can say. But even under Tebbe’s approach, the rule against religious endorsement is more powerful than non-religious endorsement.