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Friday, September 16, 2011

Responding to Rob Vischer's Review of The Agnostic Age

Rob Vischer has a review in this week's Commonweal Magazine (a great magazine, by the way, and always looking for more subscribers) of my book The Agnostic Age: Law, Religion, and the Constitution, which is an excellent gift suggestion for the High Holidays/Autumn Equinox/Respect for the Aged Day (in Japan).  If you're going to engage in public discussion and want to be taken seriously, you have to be prepared to accept criticism; and Rob has definitely come through!  (I envision a new euphemism for tough reviews.  "How's the book doing, Paul?" "Great!  It's being taken very seriously.")  I would have been happier, perhaps, if Rob had ended his review with the first line of the second paragraph, which calls the book "insightful and bracing."  But I would have learned less.  Let me give what I hope is a fair account of Rob's criticism of the book and give a little response.

The review is subscriber-only, but Rob describes some of his key points at this MoJ post.  A brief summary of my own argument first.  I argue in the book that modern religious freedom law and theory tries, for reasons related to the general liberal compromise, to avoid confronting questions of religious truth.  There are excellent reasons for doing so, but the approach is ultimately unsustainable; we cannot truly avoid confronting this question.  I argue that the best way for courts and others to do so is by taking religion seriously but not reaching a final answer on questions of religious truth.  Rather, courts and others should, in a particular kind of open and empathetic fashion that I sometimes call "agnostic" or "empathetic agnosticism."  They should, in short, ask what it might mean for a religious belief to be true.  On the Free Exercise side, that means accepting the powerful claim of religious beliefs and practices on religious believers and trying as best as one can to enter the imaginative space of that believer before rendering a decision.  Taking those claims seriously would, in my view, give us strong reasons to at least attempt to accommodate those religious believers, both constitutionally and as a matter of legislative and citizen discretion.  I agree that there are points past which we inevitably will not go--we will prevent Abraham from sacrificing Isaac--but I think we will both create a greater scope for accommodation under this system, and find new and better ways of speaking to the affected parties, even when they lose--treating their claims seriously and not just, in effect, casting them out of the discussion.  I also argue that because we are obliged not to decide questions of religious truth, on the Establishment Clause side there will be certain things that government is simply prohibited from doing--in particular, making decisions that clearly place the stamp of approval on particular religious truths.  Equal access and opportunities for religious and non-religious groups in funding, yes; but no Ten Commandments.  

Rob quite reasonably and sharply argues that that's not enough.  If we took religious claims seriously as potentially, provisionally true claims, they would overwhelm any competing state interests.  Since we don't do that, even under my approach, what I am saying either can't be entirely true or can't get us far enough to an explanation of why we sometimes put our foot down.  "Thumb on the scale or not, we are still faced with the vexed question of how to balance the claimant’s interests against the state’s. Horwitz insists that taking the stakes of these cases seriously 'does not demand that we go past our breaking point.' But his constitutional agnosticism does not help us identify the breaking point any better than any other theory of religious liberty."  He concludes: "More work to identify the bedrock values that define our 'breaking point' would provide a more helpful--though still frustratingly messy--path through the maze of religious-liberty disputes than any effort to assume the truth of claims that lie beyond our collective grasp."

That's a partial version of his criticism.  Let me answer it first with a confession, and then with some broader considerations by way of a partial defense.  I think Rob is right that the constitutional agnosticism approach still leaves a lot unanswered or imperfectly answered.  I think that simply denying the truth of a religious claimant's assertions does too much damage to religious believers, and without adequate foundation.  And I believe that seeking instead to translate the conflict away from questions of religious truth and into a balancing of state interests against something like the "conscience" of the believer, whether his underlying claims are true or not--and I think this is the approach Rob recommends, although he's welcome to clarify--has its merits but is still insufficient.  I believe that when we disaggregate conscience claims from the underlying truth or potential truth of the beliefs that underlie them, we end up watering them down, and so we get the result we do under present law, in my view: those claims are often easily outweighed by what seem like more tangible and pressing state interests.  Conversely, when we do treat those conscience claims robustly, we end up coming closer, if not to the same place, that I do: we end up taking those claims seriously as truth-claims.  Even if we could take conscience claims seriously without treating them as provisionally true, we'd still face the same problem under that approach that we do under mine: that we are faced with incommensurable claims on either side.

That said, although this may give some sense of why I have gone the way I have, I think Rob is right that there is a deep incommensurability problem here.  I cannot finally tell you why Isaac should live instead of die.  (For that matter, I'm not sure someone else operating under a different system that ignores the truth of religious claims, or the depth of conscience claims, can tell us why Isaac should live instead of die either, at least not without smuggling in some truth-claims of her own.)  I do believe that under my approach, we would be less casual about rejecting religious claims and more likely to accept a greater range of religious claims to accommodation, in part because we would be less ready to treat government claims of administrative convenience as easily outweighing potentially true religious obligations.  But there would still come a no-go point, and most of us would rather that were the case.  "Constitutional agnosticism" itself does not tell us much about where that point lies.  Rob is right that I need--and perhaps we all need--to devote more thought to thinking about the breaking point.

Here, Rob both obscures and gets at a tension in my book--a tension between a general tragic sense that runs throughout the book and is especially apparent in the last chapter, and between the usual effort to at least come up with something: some better test, approach, rule, etc. that will serve us as far as it goes.  So one partial defense of my book is that although I offer an approach to these conflicts, I am not utopian about it.  I don't think any approach can satisfactorily answer the conflicts between church and state, between religious truth and state needs.  There is always a tragic residue in church-state conflicts.  I have not solved the difficulty that Rob presents, but I have not been blind to it or naive about it either.  It's there in the book.

So what's the value of constitutional agnosticism given this fundamental problem?  I think there are a few.  The first is that, in my view, many other approaches to law and religion either ignore or purport to resolve the tragic remainder problem, and don't; my approach is more candid about it.  Second, I argue that something different is needed in our approach to church-state conflict because approaches based on the liberal consensus and the values it champions are no longer likely to be sufficiently satisfactory to a sufficient number of people in the long run.  My answers to many church-state questions are not radically different from those offered by current doctrine; the book doesn't seek to rebuild church-state law from scratch, although I disagree with current law here and there.  But my point is that a different approach to those answers is necessary because the old one, based on values like neutrality or equality, is no longer going to be as convincing, both for philosophical reasons and because of the evident and increasing nature of pluralism and religious belief in our own age.  One value of constitutional agnosticism, I argue, is that it is closer descriptively to the kinds of beliefs we hold in our own age, and the way in which we hold them: with a sense of deep respect for and interest in questions of religious truth, an awareness of the potentially changeable nature of our own beliefs, and an awareness of the existence of others--neighbors, friends, family--who hold deep beliefs on questions of religious truth that differ from our own.  I argue that constitutional agnosticism, because it better reflects the spirit of our own age, can better sustain the church-state project in the long run, so that even if the results don't change too much they'll be more acceptable to more people for longer.  Third, I argue that putting everything into language that avoids questions of religious truth will have a greater tendency to create or reinforce a sense of insiders and outsiders, acceptable and unacceptable reasons, that will simply freeze out some people and groups by speaking to them in what is increasingly a foreign language, and not properly acknowledging the dilemmas those believers face.  I know it is a fair question how much and how well we can speak to the "losers" in these cases, but I tend to believe, and I argue in the book, that an empathetic approach is more likely to embrace the "other" rather than exclude him or her, even when he or she loses.  

Finally, I think it is important to emphasize that constitutional or empathetic agnosticism is not only a rule for judges, the general focus of Rob's review.  It's also about how others--officials, lawmakers, citizens--deal with their own role in church-state conflicts.  If those people took more seriously the importance of religious beliefs and the powerful nature of religious truth, they might be more willing to take a different view of what Marci Hamilton calls the "public good."  They might treat that as a less secular enterprise, and acknowledge more readily the value of and need for legislative and other accommodations.  The more seriously we all take religious truth, and the more empathetically we treat our fellow citizens, the more likely we are to treat their needs as being a part of the "public good," to try to accommodate them as much as possible, and to speak to them with respect and make them a part of the conversation rather than outsiders.  (Cf. the recent mosque debates.)  And the more that lawmakers, citizens, and others do so, the less pressure we place on the courts to either deny all such claims altogether or engage in too much balancing and weighing of their own.  

In writing this, I get to revisit my experiences and thoughts in writing The Agnostic Age, and--happily for me--the more confident I feel that there is some important value in changing the terms of our discussion, and that empathetic agnosticism, without being a silver bullet, has some potential to do so in a productive way.  I would urge Rob, or similarly minded readers, to keep these questions in mind as well.  That said, let me end where I began my defense, with a crucial admission (albeit one that's already in the book, in the last chapter especially but also elsewhere): constitutional agnosticism is not a perfect, or perfectly compelling, solution to the broader problem of incommensurability and tragedy that afflicts church-state relations.  I believe there is no perfect solution to those problems.  To paraphrase what I say in the book, I think these tragic problems are built into the DNA of the relationship between religion and liberal democracy.  I only offer what I hope is a somewhat new way to think about these conflicts, one that may better reflect the spirit of our own age, take religious truth more seriously, and buy us a little additional breathing room to continue struggling with these issues.  But the struggle cannot end.  If viewed as attempting to do what many such books do--offer the answer to how to deal with church-state conflicts--then my book does not succeed.  But I do not think that's really the book's aim.  It's to help make our conversation more productive and offer a way of thinking about these issues that avoids the impossible dream that we can simply put religious truth to one side, even while admitting and even trumpeting the fact that church-state conflicts always involve a tragic remainder.  I think Rob is right, though, that even within that tragic framework, a lot more work could be done, especially by me, to say something more concrete about the "breaking points" at which the state must refuse a religious claim, whether it is true or not.  I don't think simply talking about secular needs or the "public good" will do it; I'm not sure any simple value or definition will succeed here, at least unless it is willing to avoid "smuggling" in substantive values and address them openly.  But I am not immune from this criticism either, and I agree with him that there is a gap in constitutional agnosticism--one that I argue, however, is present in almost all law and religion theory--when we come down to the question of who wins and who loses.  At least I hope this approach gives us greater resources to discuss that gap.  But I have a lot of work left to do.  Thanks, Rob.  

Posted by Paul Horwitz on September 16, 2011 at 09:11 AM in Paul Horwitz | Permalink


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Jimbino, what exactly is "religious" and why can't it lead to truth in various cases?

If religious faith (and I don't think faith is necessarily required for religion), for instance, leads one to believe everyone should be equal before God and therefore equality should be protected, that this is a good thing, do they not believe in the "truth" here because of the means of obtaining it?

Posted by: Joe | Sep 17, 2011 8:05:31 AM

Religious Truth is one of those classic oxymorons.

Posted by: Jimbino | Sep 16, 2011 3:01:46 PM

I appreciate the further explanation, Paul. And your book is, without a doubt, well worth reading. (If readers haven't encountered Paul's scholarship work before, they are really missing out -- he writes beautifully.) You are right that I tend to approach these disputes through the lens of conscience, which I think sees (or should see) every claim as being subjectively true for the claimant -- i.e., forcing this person to do X will, in their view, subject them to the fires of hell, jeopardize the coherence of their worldview, violate what they believe is a divine command, etc. Asking a court to remain open to the possibility of the claim being objectively true -- i.e., the person will really go to hell, God really did say this -- is difficult for me to get my mind around, and I think that it tends to slide back into the first, subjective understanding. The courts would have to pick and choose the claims that they could treat as objectively true because they surely couldn't treat them all as such (or else risk licensing Abraham to kill Isaac), as you recognize. That raises separate concerns of outsider-versus-insider. To the extent that we want the legal system to reflect greater empathy for claimants, I wholeheartedly agree, but I think the best way to do that is to be more deliberate and cautious about defining the state interests that are sufficient to trump the claims that are motivated by a person's very real conception of truth, whether or not we're open to the possibility that it is, in the end, actually true.

Posted by: rob vischer | Sep 16, 2011 10:24:58 AM

very cool post! thanks alot!

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