Lupu & Tuttle, “Secular Government, Religious People”

The long partnership of Ira “Chip” Lupu and Robert Tuttle (both of GW Law) has resulted in a Secular Government Religious Peopledistinctive view of and approach to religious freedom in the United States through the years, and so I will be very interested to read the product of their latest collaboration, Secular Government, Religious People, to be published by Eerdmans Publishing Company in August. The publisher’s description follows.

In this book Ira Lupu and Robert Tuttle break through the unproductive American debate over competing religious rights. They present an original theory that makes the secular character of the American government, rather than a set of individual rights, the centerpiece of religious liberty in the United States.

Through a comprehensive treatment of relevant constitutional themes and through their attention to both historical concerns and contemporary controversies — including issues often in the news — Lupu and Tuttle define and defend the secular character of U.S. government.

Politics and Religious Freedom Theory

In a forthcoming book, which has already transformed the field and is available for preorder now, Marc DeGirolami divides theoretical work on religious freedom into three schools or camps: monist, pluralist, and skeptical.  That typology is accepted by many scholars.  Monists are thought to believe that law in the area can be attractively explained by a single value or principle, pluralists are seen to argue that only multiple concerns can account for the full range of religious freedom outcomes, and skeptics reportedly contend that a coherent theory of religious freedom doctrine is impossible.  DeGirolami takes a new cut at this typology, noticing that some writers approach the task with a sense of tragedy, whereas others have a more sanguine disposition.

Here, I want to explore a different feature of this threefold scheme—its intersection with politics.  A notable feature of the typology is that it has been understood to cut across political affiliations.  (When I use the term politics here, I mean to refer to the recognized affinities that characterize wider policy conversations nationally.)  Each of the three schools has been thought to contain both political liberals and political conservatives.  Often, methodology and party politics have intersected in unusual and interesting ways, on this way of thinking.  Monism is perhaps the least politically diverse, but if Justice Scalia counts as a member of that school, then it too spans the aisle.

Two questions come to mind about this familiar understanding of the interactions between methodology and politics among religious freedom theorists.  First, has this conceptualization of the field ever been correct?  Has the role of politics been as complicated and unpredictable as it suggests?

If it has captured a measure of the truth, a second question is whether it still usefully describes the literature, or whether we are witnessing a realignment.  Certain debates have moved to the foreground — such as the conversation over whether religion deserves special constitutional protection as compared to deep secular commitments of conscience — and positions within those debates do not seem to be easily captured by the old typology.  Yet those positions do seem to track wider political affinities more readily than did the customary choice among monism, pluralism, and skepticism.  For example, liberals tend to think that religion is not special, conservatives usually argue that it is, and moderates believe that it only sometimes should be protected like secular conscience.  Does this shift, if it is happening at all, suggest a different kind or degree of politicization within the field of religious freedom theory?  Is any such shift clarifying or obfuscatory?

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