Thoughts on the Law and Religion Roundtable

As Rick noted, last week was the 5th Annual Law and Religion Roundtable, hosted this year at Washington University in St. Louis. (I join the chorus of gratitude to John Inazu and his colleagues for their gracious hospitality.)

One of the worthy purposes of the gathering is to foster a community among law and religion scholars, including (especially) among those who disagree about fraught and divisive subjects (abortion, same-sex marriage, legislative prayer, RFRA, the role of the state, and the reasonableness of religious belief, to name a few offhand). Still, I do think--as Rick already indicated--that some fault lines are developing and coming into sharper focus among those working in the area, even if such gatherings still hold the promise of civil discourse and disagreement.

The meeting last week was amid the quiet before the storm of the decision in Hobby Lobby on Monday. As Paul Horwitz notes in his NY Times essay today, the consensus in favor of religious accommodations is collapsing. I don't think we should sidestep making the obvious point that this is on account of arguments about sex (Paul highlights the debate over same-sex marriage in particular). Consider the underlying issues in much of the prior history of religious exemptions and accommodations: military service (Seeger and Welsh), mandatory school attendance (Yoder), drug use (Smith and O Centro), and sabbath observance (Sherbert). With the possible exception of the first, none rose to the level of public debate that now surround abortion, the contraceptive mandate (even if there is little public debate about the morality of contraception as such), and same-sex marriage. It was easy to talk about religious freedom and pluralism when that meant Quaker exemptions from the draft or small religious communities using hallucinogenic substances. Now that the argument over religious exemptions has moved to much more contested issues, can a consensus that values pluralism hold? Does the Rawlsian liberal embrace of pluralism, freedom of conscience, and an overlapping consensus of reasonable views depend (philosophically or historically, as a contingent matter) on a range of acceptable views that those who, say, oppose abortion, the HHS mandate, or same-sex marriage are now outside?

Another pervasive argument in "law and religion" is what one makes of the "religion" part. The "religion is not special" view has been gathering force for several years, with arguments from Schwartzman, Leiter, and Eisgruber/Sager (among others). Another way to approach the religion is not special argument is to frame it as an internal/external distinction. For some of us, we think (I dare to say “reason”) about religion from an internal view, within a specific religious tradition and set of commitments (which does not entail, I hope, an inability to engage those from outside that tradition). And some are sympathetic to religious claims even if not adherents themselves, just as one can be sympathetic to claims for free speech by those with whom one disagrees. The alternative “external” view proceeds, by definition, outside of (unsympathetically toward) a tradition and regards religion as another commitment people happen to have (for the kind of people into that sort of thing), albeit one that is irrational, socially disruptive, and historically a source of bloodshed and oppression. As John Finnis puts it in this passage:

If religion is...just one among the deep passions and commitments that move people, it does not deserve constitutional mention on account of any special dignity or value, and if its mention in constitutions is defensible at all, the defense must be back-handed: religious people have been so beastly to each other that historical constitution-makers have not necessarily been unreasonable in treating the religious as specially vulnerable to discrimination.  But the hypothesis – that religion is just one deep and passionate commitment amongst others – is, of course, lethal to religion.  It is an absolutely external view, which treats religious propositions as if they were inherently incapable of conveying any understanding of or rational response to any feature of reality. They treat religion in the way that Ronald Dworkin regularly treats views of legislators or “majorities” with which he is unsympathetic, that is, not as propositions about rights, or common good, or as any other proposition or premise justifying a normative conclusion, but instead as mere expressions of distaste or disapproval, accompanied by an appeal to the power of those who hold these views – their power as a majority to give effect to their attitude, their passionate commitment. John Finnis, "Why Religious Liberty is a Special, Important and Limited Right" (2008).

Exploring “mere expressions of distaste or disapproval accompanied by an appeal to the power of those [such as justices on the Supreme Court] who hold these views” would be a jejune research agenda for any academic field to embrace. I hope future gatherings of law and religion scholars can continue to think anew about ways of contributing to the field (and shaping the legal culture and civil society) without avoiding difficult conversations about our differences.