Is Religious Liberty Vulnerable, or is Religious Liberty Talk Too Insulated?

There have been some interesting freedom of religion discussions in the past day or two. Steve Smith, guesting at the CLR Forum, has a post inspired by Doug Laycock's recent article “Sex, Atheism, and the Free Exercise of Religion,” 88 Detroit-Mercy L. Rev. 407 (2011). Laycock writes in that article that “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.” One of the key sources of that view, according to Steve's precis of the article, is the relationship of some in the gay rights movement toward religion. Steve closes by suggesting that "[Laycock's] essay should serve as a warning to those who think expressions of concern about religious freedom are trumped up or 'much ado about nothing,'" and by arguing that "[o]ne lesson I would draw (and that Doug in fact draws) is that the problem of articulating persuasive justifications for religious freedom is not just an academic exercise." 

In response, Marc DeGirolami wonders whether it is "true that what is needed are new justifications for religious liberty -- new philosophical defenses, updated for the problems and opinions of today," or whether "the fundamental disagreements that we have [are] at bottom matters of intuition, identity, group loyalty, and emotion, and therefore often largely impervious to and unconcerned with the type of high-conceptual discourse that is so central to the academic enterprise." He adds: "Again, if the issue is persuasion, what is the most effective method of achieving it?" I offer my own take below.

For outsiders to the conversation, it is true that there have been some very valuable recent works by Brian Leiter, Micah Schwartzman, and others that question whether religion can really be said to be special or distinct as a principled matter. (And there have been responses too, including a forthcoming book by Andrew Koppelman.) They pose hard questions to supporters of the theory of religious freedom, especially regarding the breadth of freedom of conscience. But I am closer to Marc in my views on how much these arguments really have to do with "expressions of concern about religious freedom" or the state of religious freedom on the ground, for two reasons. First, those arguments about whether religion is unique or not operate at a high level of principle. They generally abstract away from both doctrine and, especially, history and text. They raise hard questions about whether religious freedom, as a matter of pure principle, can be justified as a unique matter, but even on their own terms they do not require us to jettison religious freedom as a practical and doctrinal matter. (And, in my view, they are only very dimly related to the on-the-ground discussions these days, sparked by things such as the contraception mandate, about whether religious freedom in the United States is under threat these days.)

Second, those discussions have taken place within the field of law and religion scholarship, not outside it. They are very much a part of the discussion, not apart from it. Whatever philosophical challenge they pose to religious freedom as a unique thing, they remain constructive and involved, not indifferent or oppositional. By contrast, some of the most fervent academic attacks on religious freedom have taken place outside the conversation altogether. The assignment of labor in the legal academy often creates cloisters and false pictures. In this case, the result of that division is that some of the most stringent conversations about, say, religion versus gay rights have taken place with few or no academics who take religious freedom seriously in the room--sometimes deliberately so. (And sometimes there have been similar responses on the other side.) Some of those conversations operate from such different premises that it is hard to say they have been influenced by work like Leiter's or Schwartzman's; indeed, I doubt that some of the hardline opponents of religious freedom in the gay rights scholarship have even read those pieces, and they certainly haven't engaged with them.

In short, I doubt that Steve is right that the kinds of discussions law and religion scholars have been having lately about whether religious freedom exists as a distinct principle say anything about the broader question of the status of religious freedom today. The real problem is that there have been two very distinct discussions taking place in two different places, in virtually sealed rooms, having little to do with each other. If that's right, Marc's question--"if the issue is persuasion, what is the most effective method of achieving it?"--is all the more pressing. On both sides, there are those who think persuasion is a non-issue because any conversation is pointless. 

On this point, I would add two final things. First, not everyone thinks discussions between these two somewhat distinct groups are impossible or fruitless; prominent among them is Doug Laycock himself, who has been involved in efforts to bring both sides together in conversation.

Second, though, as I wrote in one of my earlier posts cited above, those constructive discussions have been between moderates, not between the real polar opposites--those who think it isn't worth discussing religious freedom at all, and those who think that any "'grand bargain'" between the contending sides "is an illusion we should dismiss from our minds." There are genuinely illiberal supporters of gay rights and genuinely illiberal supporters of religious freedom, both in the academy and certainly outside it. For these groups, it may be that "persuasion" is a lost cause; they may have little interest in carrying out conversations in the same room at all. But I think that instead of having only slightly disquieting conversations with folks like Leiter and Schwartzman, who think there are real philosophical problems with religious freedom but are still very much a part of the religious freedom discussion, we religious freedom scholars need to open up the room, even to those who disdain "the liberal apologetics that passes for academic engagement of religion these days." It is possible that mutual engagement will fail utterly. But failing to try, it seems to me, will both make the religious freedom discussion deceptively easy, because it won't reflect some very basic views and facts in the world, and make it all too much of an "academic exercise."