Marc places a passage from political philosopher Ryszard Legutko in "conversation" with my assertion (in this post) that "[i]n an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make." That sentence introduces the post, which in turn links to my article exploring how exactly the societal contributions that religious organizations make are relevant to the case for religious freedom. In that article I assert that the societal contributions are part of the case for religious freedom: "an important strain in America’s religious freedom tradition" is that "we protect voluntary religious organizations is that they are important means by which individuals develop and exercise 'civic virtue.'” I then acknowledge some objections to this argument and briefly develop some corresponding answers.
The Legutko passage describes, critically, two of the strategies Christians might adopt toward liberal democracy: "conciliation" and "capitulation." (I should make clear that can react only to this passage, because I don't know the book's broader arguments.)
The aim of the conciliatory Christians has been to avoid conflicts with the liberal democrats and to adapt themselves to the existing system, which they thought sufficiently spacious and friendly to include Christianity together with other religions; the aim of the Christians who have capitulated is to be admitted to the liberal-democratic club, and in order to do it they are willing to accept any terms and concessions, convinced that remaining outside this club or being refused entrance would bring infamy on them.
I'm not sure whether Marc's suggestion is that arguing for religious freedom based on religion's societal contributions reflects "conciliation" or that it reflects "capitulation." (From the quoted description, capitulation sounds worse, but "conciliation" sounds naive). I don't think it reflects either, really. I'm talking about arguments in the legal and political arena that religious organizations should be legally free to follow their tenets and identity, even in the face of conflicting laws, when they serve and employ others in society. (The provision of service and employment to others outside the immediate religious community is what's triggering the most serious threats to religious freedom; the legal position of churches as such still remains pretty strong, although not impregnable.)
If an organization advocates for the ability to follow its tenets in the face of the law, it certainly is not capitulating: it's not showing a "willing[ness] to accept any [and all] terms and concessions." It's not like, for example, Catholic colleges dropping major religious elements in order to be eligible for government funding. Here the organization advocates to preserve its differences, not to shed them. (Elsewhere I've argued that these organizations are "partly unacculturated" in that they adhere to certain counter-cultural norms, and that they may be effective because they are willing to be counter-cultural.)
The "societal contributions" argument is "conciliatory," but only in the sense that making any argument in the legal or political system seeks to work within that system and holds out some hope for doing so. Perhaps the hope is misplaced and no arguments will succeed--but we don't know that, and the project still seems worth pursuing, among other things because I don't see that it involves any compromise of principle, i.e. "capitulation." This kind of "conciliation" does not seem to fit Legutko's analysis, later in the paragraph, that conciliation rests on the premise
that an enormous part of the activities of churches and an enormous area of religion have nothing to do with politics, socialism, liberal democracy, or anything related. Religion and churches are about God, souls, and salvation. Therefore, because we live in a civil society governed by the rule of law, waging big political battles against it is not only meaningless from the perspective of religion but pulls the churches away from their primary mission, which is that of evangelization.
To the contrary, the "societal contributions" argument asserts that religious organizations are not simply "about God, souls, and salvation": they have service work in society at their religious core, as a matter of loving their neighbors. (Service to others is in fact part of "evangelization," but the Legutko passage seems to use that term in the narrow sense of saving souls--which sounds more fundamentalist-Protestant than Catholic.) So while the "societal contributions" argument may defend religious freedom in secular terms, it does not adopt secularism in the sense of privatizing religion and conceding its irrelevance to society. To contrary, it argues for religious freedom precisely because religion is relevant to society.
I would describe arguing for religious freedom based on religion's societal contributions not as conciliation or capitulation, but as a kind of political/civil "apologetics." All apologetics assumes some receptivity in the hearer; in that (limited) sense it's conciliatory, but it seems to me in that limited sense, the Catholic tradition itself is conciliatory.
I also think that the "societal contributions" argument fits with a Catholic (and more broadly Christian) understanding of civil society, where moral and "political" claims are is not limited to claims about what moral projects government itself should pursue. The argument is that religious organizations also serve moral/political/social goods: they are mediating institutions that make distinctive contributions to a flourishing society.
This is one among several arguments for religious freedom--aimed at people in the ideological/political/jurisprudential middle. Those are the arguments that I generally choose to pursue and refine, in my current work, because I think they have a chance of succeeding.
Saturday, October 8, 2016
Rick Garnett has noted (here) that I am one of the MOJers who signed the "Brief of Amici Curiae Legal Scholars in Support of Equality and Religious and Expressive Freedom". Unless I am mistaken, I am the only MOJer who signed the brief who also believes that Obergefell v. Hodges was rightly decided--although I do not believe that Obergefell was rightly reasoned. For my alter ego Justice Nemo's concurring opinion in the case, see Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment. Another MOJer, Tom Berg, and acclaimed religious liberty scholar/advocate Doug Laycock are also supporters both of SCOTUS's decision in Obergefell and of the understanding of religious freedom that animates our friend Steve Smith's argument in "Brief of Amici Curiae Legal Scholars".
Friday, October 7, 2016
Time for a re-read:
| . . . Dim drums throbbing, in the hills half heard, |
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| Where only on a nameless throne a crownless prince has stirred, |
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| Where, risen from a doubtful seat and half attainted stall, |
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| The last knight of Europe takes weapons from the wall, |
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| The last and lingering troubadour to whom the bird has sung, |
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| That once went singing southward when all the world was young . . . |
Thursday, October 6, 2016
I was pleased to sign this (Download Smith brief) "Brief of Amici Curiae Legal Scholars in Support of Equality and Religious and Expressive Freedom," which was authored (and wonderfully written) by Prof. Steven Smith (San Diego) and signed by about two dozen scholars, including our own Kevin Walsh, Michael Moreland, Robby George, Michael Perry, and Marc DeGirolami. It's well worth a read.
Below, Tom writes: "In an increasingly secular-oriented public square, it seems to me, arguments for religious freedom will increasingly be unable to take the value of religion as an accepted premise: they will have to appeal explicitly to, and then demonstrate, the distinctive contributions that religious organizations make."
I've been reading Ryszard Legutko's book, The Demon in Democracy: Totalitarian Temptations in Free Societies. Here's something in conversation with Tom from Legutko in his final chapter, "Religion," at 164-66:
Hostility to Christianity in modern liberal democracies raises the question of how religion should manifest itself in public life.
The simplest answer--close to what some Protestant movements embodied--is that religious life and political life should be separated. Religion is essentially a private matter, a family matter, and sometimes a community matter, but definitely not a state matter. There are quite a lot of people today who are public figures, professionals, politicians, and it is rarely that we know what religion, if any, they profess, and even if we knew, this would be irrelevant in the assessment of their public performance. Such a strict separation of the religious and the public realms is very much in tune with today's ideology of modernity. And it is all the more convincing that it confirms the assumption--considered obvious but, in fact, doubtful--that the freedom of religion is guaranteed in Western democracies, and that Christians, being denied a public presence, should have no reason to complain.
This strategy--let us call it conciliatory--should be distinguished from another one--let us call it capitulatory. The difference between the first and the second is at the beginning one of degree, but ultimately one of essence. The aim of the conciliatory Christians has been to avoid conflicts with the liberal democrats and to adapt themselves to the existing system, which they thought sufficiently spacious and friendly to include Christianity together with other religions; the aim of the Christians who have capitulated is to be admitted to the liberal-democratic club, and in order to do it they are willing to accept any terms and concessions, convinced that remaining outside this club or being refused entrance would bring infamy on them.
One can, of course, defend both strategies, conciliation and capitulation, and the standard argument of defense is the following: an enormous part of the activities of churches and an enormous area of religion have nothing to do with politics, socialism, liberal democracy, or anything related. Religion and churches are about God, souls, and salvation. Therefore, because we live in a civil society governed by the rule of law, waging big political battles against it is not only meaningless from the perspective of religion but pulls the churches away from their primary mission, which is that of evangelization.
No doubt the basic objectives of Christianity remain outside politics, and it is these objectives that the churches and the faithful should pursue. But this otherwise obvious statement fails to address one crucial fact: the growing infiltration of liberal democracy into religion. Liberal democracy, like socialism, has an overwhelming tendency to politicize and ideologize social life in all its aspects, including those that were once considered private; hence, it is difficult for religion to find a place in a society where it would be free from the pressure from liberal-democratic orthodoxy and where it would not risk a conflict with its commissars. Even the issues thought to be remote from politics become censured by the punctilious scrutiny of those who watch over ideological purity....
Wednesday, October 5, 2016
It is striking, as some others have noted, that the first time "social issues" or "faith and politics" came up in this cycle's "debates" was at the tail-end of the (widely regarded as irrelevant) debate between the vice-presidential candidates. I expected there to be some discussion (that is, I expected Sen. Kaine to bring it up, even if the moderator didn't) of the RFRA controversies -- especially given the experience in Indiana -- and of the ongoing debates about the sharpening conflict between antidiscrimination law and religious freedom. It strikes me that the lack of attention to (or interest in) these matters says a lot of not-encouraging things about the fate of these issues after the election is over, Sec. Clinton is President, and the Republican Party rebuilds (or not) after Trump.
Sen. Kaine's answer on the "faith and politics" question was unsurprising, but still inadequate. If one has reasons for being "personally opposed" to abortion, then those reasons are also reasons why abortion should, at least presumptively, be discouraged and regulated. Kaine's position treats opposition to abortion like an aesthetic preference, regarding which de gustibus non est disputandum. What's more, even a candidate inclined to resign him or himself to legal abortion -- thinking that it's not practical or feasible to ban abortion, ours is a pluralistic society, we disagree on the morality of abortion, etc. -- need not earn a perfect rating from Planned Parenthood, oppose late-term bans, or support the repeal of the Hyde Amendment. Gov. Pence (appropriately) expressed respect for the sincerity of Kaine's faith, but was effective in pointing out (as so many have) the flaws in the Cuomo position.
Monday, October 3, 2016
Courtesy of Mr. Gregsbury, a wonderfully awful politician in Chapter 16 of Charles Dickens's Nicholas Nickleby. The scene is one where Gregsbury is answering to the complaints of his constituents, who accuse him of various episodes of flip-flopping for pecuniary advantage and other sorts of craven behavior that has betrayed the interests of the people. Gregsbury's reply to these charges, and the narrator's comment on it:
"My conduct has been, and ever will be, regulated by a sincere regard for the true and real interests of this great and happy country. Whether I look at home or abroad, whether I behold the peaceful industrious communities of our island home, her rivers covered with steamboats, her roads with locomotives, her streets with cabs, her skies with balloons of a power and magnitude hitherto unknown in the history of aeronautics in this city or any other nation--I say, whether I look merely at home, or, stretching my eyes farther, contemplate the boundless prospect of conquest and possession--achieved by British perseverance and British valour--which is outspread before me, I clasp my hands, and turning my eyes to the broad expanse above my head, exclaim, "Thank Heaven I am a Briton.""
The time had been when this burst of enthusiasm would have been cheered to the very echo; but now the deputation received it with chilling coldness. The general impression seemed to be, that as an explanation of Mr. Gregsbury's political conduct, it did not enter quite enough into detail, and one gentleman in the rear did not scruple to remark aloud, that for his purpose it savoured rather too much of a "gammon" tendency.
Sunday, October 2, 2016
The 2016 recipient of the American Enterprise Institute's prestigious Irving Kristol Award is our own Robby George! So richly deserved. It's worth taking a few minutes to watch the conversation between Robby and Arthur Brooks. Congrats, Robby!
