« Tough Bargaining by States: Why Not Just Federalize Spending for the Poor? | Main | Scholarship for the Courts: A Different Kind of Cert Pool »

Monday, July 30, 2012

Douthat on Religious Freedom: Too Much and Not Enough

It is, of course, generally a mistake to expect much from the columnists of the New York Times, whatever their individual politics. Neither the format nor the office seem especially conducive to great work. I can understand why some of my friends like the work of Ross Douthat, or Charles Blow on the other end of the political spectrum, though both strike me as too callow for their own good. I could understand why some of those friends admired Douthat's latest column, whose title, "Defining Religious Liberty Down," borrows a standard conservative trope. But I have problems with it. 

To begin with, Douthat argues at the outset that the reference to "the free exercise" of religion "suggests a recognition that religious faith cannot be reduced to a purely private or individual affair." I agree with the sentiment, but not with the idea that it's immanent in the text. Certainly the founding era believed religion was a public virtue. But the privatization-of-religion bargain was hardly a post-constitutional innovation; it was already firmly present in public thought, if not fully developed, at the time of the Enlightenment, if not the Reformation itself, and certainly by the time the Bill of Rights was ratified.

Nor do I think Douthat's examples of recent actions affecting freedom of religion are all that a propos, especially of his argument that "there seems to be a great deal of confusion about this point in the Western leadership class today." As he notes, there will always be conflicts about the limits of permissible religious practice in a society, and by no means will all the arguments for restriction of religious freedom come from non-religious individuals. Of his particular examples, one--the government's contraception mandate and the particular form of compromise it strikes--is a policy I disagree with. But as he notes, that compromise does extend considerable leeway to religious organizations. Douthat argues that it doesn't go far enough, and I think he's right; but neither does he tell us where he thinks the limits should lie, and why an exemption shouldn't apply, for instance, to any and every employer with religious objections. Another example, the recent German court decision on circumcision, was roundly opposed by many German legislators, who are themselves members of the "Western leadership class." Finally, naturlich, he raises the Chik-Fil-A controversy. I was bothered by the fact that a couple of Facebook friends reprinted the threat letter from Mayor Menino of Boston with seeming approval last week. But that controversy is better viewed as a speech issue than a religious issue tout court, and in any event the pandering of those politicians was widely opposed, and not just by conservatives.

Douthat makes two more points. First, he writes: "It may seem strange that anyone could look around the pornography-saturated, fertility-challenged, family-breakdown-plagued West and see a society menaced by a repressive puritanism. But it’s clear that this perspective is widely and sincerely held." I sympathize with this, to some degree. I don't think our society is genuinly "menaced by a repressive puritanism." But one might read Douthat as suggesting that there is no repressive puritanism out there, and/or that all the pathologies he mentions come from the irreligious sector of society. Neither is true. Of course there is a puritan streak in Western society. The fact that it's also matched by a licentious and individualist streak presents a seeming tension (only seeming, because the puritan and individualistic streaks often come from the same groups), but that doesn't mean both aren't true. Yes, it's selectively applied: In my own town of Tuscaloosa, the recent showing of a fairly innocuous art film that involved a teenaged girl in Norway who experiments with masturbation prompted protests and an effort to prevent the publicly funded local art theater from showing the film (the showing of which was itself privately funded), although much of the decidedly religious local population also can't buy enough copies of Fifty Shades of Grey or get enough of the sexualization of young girls in beauty pageants and game-day outfits. And many of the pathologies Douthat mentions are fully present among religious regions of the United States as well. 

Finally, he writes: "It would be refreshing, though, if it were expressed honestly, without the 'of course we respect religious freedom' facade. If you want to fine Catholic hospitals for following Catholic teaching, or prevent Jewish parents from circumcising their sons, or ban Chick-fil-A in Boston, then don’t tell religious people that you respect our freedoms. Say what you really think: that the exercise of our religion threatens all that’s good and decent, and that you’re going to use the levers of power to bend us to your will." That's too strong a statement in a society in which, as he has already acknowledged, there are genuine contests over the scope of religious freedom and some limits are inevitable. There are, of course, people out there who fit the bill of indictment that Douthat is presenting. But that doesn't make the extreme position Douthat is describing one that is held by all those who would disagree with him over the limits of religious freedom.

I agree with his call for candor, and part of that candor involves acknowledging that there are real contests over power here, and that some are happy to call the state in to assist in that power play. But once we see things in terms of power, then Douthat might exercise a corresponding candor about those who fall on the extremes on the other side, some of whom believe that private choices that contradict their own view of what is religiously and personally virtuous in society are threats to all that is good and decent and are happy to enlist the state in using the levers of power to enforce their views. Or he might decline to rush so readily to characterize just one side of the debate according to its extremes while painting the most forgiving possible picture of the other side. He is still right that in the end, battles over the scope of religious freedom and permissible personal conduct ultimately involve battles over the use of power. The people in the middle can't avoid that contest either. But he might have done a better job of recognizing that there are many such people just the same. To hope for an absence of caricatures in a New York Times column is unrealistic. It would be nice if the caricatures weren't so one-sided, though. 

Posted by Paul Horwitz on July 30, 2012 at 06:56 AM in Paul Horwitz | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef017743c6019c970d

Listed below are links to weblogs that reference Douthat on Religious Freedom: Too Much and Not Enough:

Comments

Post a comment