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Wednesday, December 23, 2015

"Religious Institutionalism--Why Now?"

Nelson Tebbe and I have a chapter with this title in a forthcoming (and terrific) book, The Rise of Corporate Religious Liberty, edited by Micah Schwartzman, Chad Flanders, and Zoë Robinson. Here's the abstract:

The recent rise of religious institutionalism in Supreme Court doctrine presents a puzzle. After all, the Court has been emphasizing groups at exactly the same moment when social scientists have been showing that Americans are disaffiliating from religious organizations at a rapid rate. What explains this apparent tension? We argue that multiple factors contribute in complex ways to the rise of group rights of religious freedom. But we also tentatively suggest an overarching theme. Once it is appreciated that religious disaffiliation is happening chiefly among those on the left of the political spectrum, it becomes possible to hypothesize that lawyers’ focus on groups and institutions reflects a countervailing impulse among religious traditionalists. If that is correct, then the rise of group rights of religion is happening alongside, not despite, religious disaffiliation. The two developments are aspects of a general phenomenon of polarization on questions of religious freedom.

I should say in the interests of fairness that Nelson was more than generous in keeping me on as co-author. We started the paper together but I was substantially sidelined by illness last year and my contribution to it dropped precipitously. I hope there's a little bit of me left in there, but I would feel bad about not acknowledging publicly that Nelson did the lion's share of the work, with his usual excellence. I was nevertheless pleased and grateful  to come along for the ride with him.

Let me offer some thoughts about the paper beyond the abstract, although I think most of them are explicit and/or implicit in the chapter. First, I think the general approach is useful and perhaps too often absent from legal scholarship of this kind. Doctrines emerge, develop, find a receptive audience or wither, and evolve in various ways and for various reasons, some internal and some external: path-dependence within doctrine, changes in the cultural surround or in the legal culture, strategic first moves and reactions to other moves, interest-group politics and funding, and so on. In thinking about these questions, and about where and how doctrine might move, it is valuable, in my view, to think at least somewhat from an internal perspective, but not only from that perspective. That's especially true if one is going to make pronouncements about what doctrinal developments say about our legal or political culture. All of this is more or less obvious, although I think people rarely tease out all the nuances of these relationships, and are especially likely to label strategic moves by those they disagree with as strategic while describing similar moves by their friends as sincere and inevitable. A fuller picture doesn't always emerge in the scholarship, however, both because of reasonable concerns about parsimony--it's difficult to make a single "point" given all these cross-currents--and because, general complaints about this notwithstanding, many legal scholars are still doctrinalists at heart, and/or hold a largely "internal" view of the law. In any event, it's worth noting that such moves can be both strategic and sincere. Arguments in favor of affirmative action in higher education on the grounds of diversity rather than remediation, for instance, increased significantly after the Supreme Court in Bakke channeled legal claims in that direction. But diversity was in the air before that, and even if there was an initial strategic motivation for focusing more on this, individuals and groups in time came to internalize it as a treasured value. Religious groups may have been driven by various developments, such as the Court's decision in Employment Division v. Smith, to push institutionalist arguments, but the idea was hardly foreign to them and, once such claims are made, others will end up internalizing their importance.    

Second, I think a key point in the paper is worth underscoring. Religious institutionalism can rise in importance at the same time as, and in part because of, a trend toward religious "disaffiliation and individuation" described in recent Pew polls about religious belief in the United States. One sometimes sees hints or suggestions in public and scholarly literature that the rise of the "nones" in American religious demography undercuts religious institutional claims. That's not quite right, although such a view may find a warm welcome in a legal and political culture that tends to "Protestantize" American religion and the structures that surround it. Reporting to her feckless colleagues on the latest purges in the Soviet Union, Greta Garbo in the movie Ninotchka says, "There are going to be fewer but better Russians." As, and in part because, many religious individuals become less strongly tied to particular church bodies or disciplinary orders, other individuals and groups will become more strongly tied to religious institutions and more convinced of their importance and the value of their maintaining some autonomy, particularly in the face of a legal and political culture that in their view disparages or denies the importance of such associations or sees them as wholly subordinate to the enacted will of the majority. Indeed, one view is that under such circumstances, it may be both more important and less dangerous (because those groups are smaller, and because the idea of exit will be highly visible in the surrounding culture and, as Charles Taylor suggests, more "available" to religious individuals) to allow those groups a space of their own, from which they can generate or preserve norms and ideas that critique the prevailing culture. 

At the same time, it is possible that the smaller and stronger ties of these groups, and their reaction to the surrounding culture, may make their beliefs or norms stricter, and their legal claims stronger and likelier to interfere with the general legal regime, including its beneficial aspects. The creation of "fewer but better," or smaller but stricter, religious groups may also, both by making it easier to monitor members and by creating stronger and more isolated enclaves, make exit more difficult for individuals, including vulnerable ones. How to balance these conflicting points is the stuff of the law and its response to pluralism. I would like to suggest, however--and this is not in the paper--that it points to a potential, oft-neglected, benefit of accommodationism: a willingness to accommodate such groups may reduce these groups' polarization and alienation from the general culture and desire to build a strong enclave around itself, and make it less likely that the end point will be one of strong illiberalism and/or insistent isolation from the culture.

Third, it's worth noting that however much particular ideas or strategies may be associated with one side of the debate at particular times, they often have a more complicated genealogy than that, and may well cross political lines at different points. Advocacy on behalf of society's "little platoons" is right now associated strongly with religious conservatives, for example, but in the 1970s, a concern with the importance of these groups could be found across both the left and right. (See chapter 6 of Daniel Rodgers's terrific book Age of Fracture.)

Finally, a couple of reading recommendations, both of them published after the initial drafts of this chapter. For a critical take on religious polling, see Robert Wuthnow's Inventing American Religion: Polls, Surveys, and the Tenuous Quest for a Nation's Faith. And for a wonderful argument that, "both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state," see Jacob T. Levy's Rationalism, Pluralism, and Freedom

Again, thanks to Nelson for letting me hang out with him on the page, and I hope y'all enjoy the chapter. I highly recommend the book as a whole; it has many great contributors who have turned out some very interesting chapters. 


Posted by Paul Horwitz on December 23, 2015 at 09:33 AM in Paul Horwitz | Permalink


Note that the term is 'religious liberty', not 'religious freedom'. It's a term used by the right, and used exclusively to mean that people, causes and institutions which the right favors should receive exemptions from laws.

When you view it in that light, the reasons are obvious.

Posted by: Barry | Dec 28, 2015 2:37:54 PM

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