Conservative Christian communities met the US Supreme Court’s 2015 landmark decision on marriage equality, Obergefell v. Hodges, with alarm, surmising that the government would transgress upon their sincerely held religious beliefs by compelling county clerks—such as Kim Davis of Rowan County, Kentucky, who held born-again Christian views—to issue same-sex marriage licenses. The LGBT community, on the other hand, feared that religious prejudice would trump their hard-fought victory in the courts by encouraging resistance to their newly-won rights, just as racial prejudice delayed the recognition of equality for African Americans in the aftermath of the 1954 Brown v. Board of Education decision. Given the contemporary atmosphere of American political partisanship, the conflict between civil rights and religious rights seems irresolvable. In Religious Freedom in an Egalitarian Age, Nelson Tebbe, a professor at Brooklyn Law School, offers nuanced legal arguments to elucidate the tensions between the protection of religious belief and practice and the right of the LGBT community to equal treatment before the law. His approach is simultaneously the strength and weakness of his book. Tebbe invokes a sanguine faith in rationalism that can resolve the “current impasse between religious freedom and equality law” (198). His view “presumes deep respect for the inherent capacities and worth of every citizen, without exception” (199). He believes that a rational consensus on constitutional rights is possible in at least some instances if participants in the public forum follow his approach, marked by methodological and substantive components. Tebbe describes his methodological component as “social coherence,” which “provides a way of working through these problems that is capable of generating reasoned conclusions. Judgments can be reached without arbitrariness . . . ” (8). Tebbe’s social coherence is not to be confused with sociological ideas, such as Durkheim’s mechanical solidarity of shared values, but rather suggests that communities can be brought together through rational agreement. The utility of an argument in a public forum is predicated on the rational consistency of its elements (“mutual reinforcement”) as well as an individual’s open-mindedness or willingness to examine the argument’s presuppositions: “Social coherence claims as a central virtue that it forces interpreters to interrogate their unreflexive impulses . . .” (11). There is no room for bias. Accordingly, “everything is revisable” (28). Tebbe warns, however, that such coherence is an “ideal”; consistency cannot be achieved in every respect. Nonetheless, “rational conversion is possible” (31); people can change their minds. He states that his method is akin to “common-law reasoning” (29), and therefore is simply a reflection of the way jurists—and law professors—think. Based on this methodology of social coherence, Tebbe suggests that substantive reflection on constitutional law is best advanced by using certain principles derived from American jurisprudence, including avoiding harm to others, fairness to others, freedom of association, and government nonendorsement of religion. Harming others occurs when religious accommodation shifts the burden from one citizen to another. For example, Tebbe argues that the Supreme Court’s 2014 Hobby Lobby decision, accommodating Christian evangelical owners of an arts-and-crafts chain who objected to Obamacare’s contraceptive mandate, unjustly burdened female employees who would not have access to two forms of IUDs and two “morning-after” pills, unlike similarly situated employees at other companies. “Imposing such costs on citizens with different beliefs starts to look uncomfortably similar to . . . government establishment or endorsement of religion” (53). Even if an action by the government does no harm to its citizens, it may nonetheless violate the principle of fairness to others. For example, Tebbe points to the Supreme Court’s 1988 decision Texas Monthly v. Bullock, which held that a Texas law exempting religious publications from sales tax was unfair to secular publications and therefore unconstitutional. However, in some cases, respect for the principle of freedom of association, including intimate associations, community groups, and values organizations, may countenance religious accommodation even at the cost of equal rights. For example, families and close relations are free to discriminate regarding with whom they associate; community groups may limit membership according to gender, race, or ethnicity; and values organizations, such as religious social service groups, may deny membership to those who do not embrace their beliefs. Indeed, §703 of the U.S. Code’s Title VII permits religious organizations to discriminate in employment against those who do not share the same faith. Finally, Tebbe cites the principle prohibiting government endorsement of religion in general or any religion in particular, noting that, in the religiously inspired proscription of same-sex marriage by state governments, the harm to the LGBT community was “chiefly or entirely expressive” (105). Despite these principles, Tebbe reaches a startling conclusion regarding proposed religious exemptions for Christian evangelical civil servants from fulfilling their duty to issue same-sex marriage licenses. As long as others in the clerk’s office will issue the same marriage license to same-sex couples as those granted heterosexual couples without change or delay, Tebbe concludes that “people like Kim Davis can be accommodated without harm” (180). Tebbe’s argument, however, will fail to persuade many people. If harm to the LGBT community arising from the prohibition of same-sex marriage was “chiefly or entirely expressive,” how could a Christian evangelical clerk’s refusal to issue a same-sex marriage license do other than harm when her actions are broadcast over social and mass media? Perhaps, as Tebbe implies, she could be persuaded to issue the license through rational argument, but new social scientific research suggests otherwise. As European researchers Hugo Mercier and Dan Sperber have argued in The Enigma of Reason (2017), reason is a product of “social interaction rather than solitary thinking.” Its purpose is not to find a truth but rather “to justify oneself and to evaluate the justifications of others” (Mercier and Sperber 2017, 185–86). In an experiment on social interaction in which participants were confronted by others with arguments they themselves had previously used, Mercer and Sperber found that subjects most often unknowingly disagreed with their own prior arguments. Contra Tebbe’s “social coherence,” reason functions in the service of group identification rather than persuasion. “Put a bunch of people together and ask them about something they agree on, and some will come out with stronger beliefs. Racists become more racist, egalitarians become more egalitarian” (Mercier and Sperber 2017, 243). Similarly, in The Knowledge Illusion, cognitive scientists Steven Sloman and Philip Fernbach found that most people harbor the “illusion of explanatory depth.” They are incapable of providing a causal explanation as to why they hold their most cherished cultural and political beliefs. “When group members don’t know much but share a position, members of the group can reinforce one’s understanding, leading everyone to feel like their position is justified and their mission is clear, even when there is no expertise to give it solid support. Everyone sees everyone else as justifying their view so that opinion rests on a mirage.” Based on their review of the literature as well as their own work in the field of cognitive science, Sloman and Fernbach concluded that “generating reasons” did not result in the modification of the subject’s views (Sloman and Fernbach 2017, 21, 173, 179). In light of the work of Mercier, Sperber, Sloman, and Fernbach, Tebbe’s rationalist theory of “social coherence” and principled argumentation would have little effect on most people who use reason to justify their own positions. It is doubtful that Kim Davis and other Christian evangelicals and fundamentalists like her would change their views. There is little chance that Davis would examine her “unreflexive impulses” or revise her closely held religious beliefs, even if they were subject to rational evaluation. On the other hand, Tebbe suggests that his approach is simply a reflection of lawyerly thinking, and perhaps he could change minds within the legal interpretive community, if not the public-at-large. However, I suspect that jurists and attorneys are equally entrenched in their own political and religious views and utilize rational argument to justify their positions, not change them. As every lawyer knows, appeals court judges direct their clerks to write opinions that legitimate the judges’ prior conclusions, frequently arising from their distinct legal philosophies. The law is no more immune to arbitrariness and bias than other segments of society. It seems that Tebbe’s faith in the power of reason is misplaced. REFERENCES Mercier, Hugo, and Dan Sperber. 2017. The Enigma of Reason . Cambridge, MA: Harvard University Press. Sloman, Steven, and Philip Fernbach. 2017. The Knowledge Illusion: Why We Never Think Alone . New York: Riverhead/Penguin. © The Author(s) 2018. Published by Oxford University Press on behalf of the American Academy of Religion. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org.
Journal of the American Academy of Religion – Oxford University Press
Published: Mar 1, 2018
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