An Appraisal of Religious Freedom in an Egalitarian Age by Nelson Tebbe: Eight Commentaries and Tebbe’s Response

An Appraisal of Religious Freedom in an Egalitarian Age by Nelson Tebbe: Eight Commentaries and... Readers of the following series of texts are offered a critical entrée into Nelson Tebbe’s approach to conflicts between equality law and claims to religious freedom in the United States. The eight assessments and the author’s response present a surprisingly cohesive discussion of central tenets of Tebbe’s argument. Some suggest broad and complex themes that could very well preoccupy the field of law and religion in the near future. The fact that Tebbe’s work elicits such thoughtful and focused engagement from this formidable group of committed and accomplished scholars marks its clarity and significance. If I had to choose one word to describe Nelson Tebbe’s substantial contribution to debates about clashes between religious freedom and human rights, it would be “pragmatic.” The label could, of course, be interpreted both as a compliment and a criticism: as a compliment because the book offers a useful program for making reasoned and timely legal decisions; and a criticism for a lack of deeper analysis of concepts basic to current controversies about these decisions. As I read Religious Freedom in an Egalitarian Age, my opinion of the practicality that lies at the heart of Tebbe’s project shifted from suspiciously skeptical to thoroughly appreciative. Tebbe has influenced how I approach and evaluate knotty conflicts involving equality and “religious” resistance. Because this is an expansive move toward greater tolerance and hopefully effectiveness in framing my own work, I am now inclined to think of his book as gloriously pragmatic. Tebbe’s sympathies in the battle are (fairly) clear: he is on the side of progressives who support extending the benefits of equality law to all US citizens in regard to sexual and reproductive freedoms and LGBT rights. However, he does not believe that egalitarian views must triumph in every skirmish. For constitutional democracy to remain healthy and robust, citizens who, under the banner of the free exercise of religion, want to opt out of supporting these relatively recent extensions of equality law must be accorded fair and serious treatment in public debates and judicial proceedings. Sometimes religious freedom discussed and debated á la Tebbe will win. In his view, as long as each outcome is not considered conclusory and is “warranted,” that is, explained through reasoning based on references to legal precedents and his four proposed principles, conversation can continue and democracy can evolve and thrive. Tebbe’s objective for the process he names “social coherence” is to construct a scaffolding to support reasoned debate and decision-making. The commentators differ widely about the efficacy and implications of the method. Blancarte and McBride explain their doubts about whether the rationality Tebbe’s system encourages can ever prevail. Amesbury, Baumgarten, Gordon, Jakobsen, Laborde, and Watt voice thoughtful reservations with a cautious, appreciative optimism. Most contributions sketch out correctives to the limits they identify and elaborate Tebbe’s work by suggesting ways to strengthen his project and push it further. In his response, Tebbe writes that a few reviewers raise a “question about the concept of religion that the book employs…in particular whether it serves to replicate power imbalances between majority and minority faiths.” Tebbe agrees with Watt and Baumgarten that his method could and should be applied to issues other than most of those pertaining to mainstream Christian tradition that have so far been considered in US courtrooms. This is a rather straightforward discussion about remembering that the category of religion comprises traditions other than Christianity. A different problem about the concept of religion that I find more fundamental and compelling is the amorphousness, instability, and incoherence of religion as both word and idea, a subject that both Tebbe’s book and the reviews (with the notable exception of Laborde’s) barely touch upon (Goldenberg 2015; forthcoming). Since Tebbe has approached this problem elsewhere (Tebbe 2011; 2014) and both acknowledges (Tebbe 2017, x) and extensively references Micah Schwartzman (Tebbe 2017, 265) who has done relevant work on the topic (Schwartzman 2012), I was disappointed that in this book, he does not address the conundrum that defining religion presents for jurisprudence. Or does he? A second reading of Religious Freedom in an Egalitarian Age has led me to think that in it Tebbe begins a crucial process of unraveling an enigma that confounds the study of law and religion in particular as well as discipline of religious studies in general (Arnal and McCutcheon 2013; Balagangadhara 1994; Barton and Boyarin 2016; Cavanaugh 2009; Fitzgerald 2000; 2007a; 2007b; 2011; 2017; Goldenberg 2017; Masuzawa 2005; McCutcheon 1997; 2001; Nongbri 2013; Smith 1998; Stack et al. 2015). By demonstrating how legal disputes about religious freedom can be—indeed, ought to be—productively discussed without even raising the question of what constitutes religion, Tebbe directs attention to particular behaviors, practices, and interests that are currently stirring the passions and inspiring the commitments of citizens under the inconsistent and contingent (though constitutionally shielded) label of religion. What matters to Tebbe is that democratic institutions and public discourse take fair account of the deep feelings aroused by the particularities of each dispute and strive to mitigate harmful effects of one group’s legally protected convictions on another group’s lawful conduct. As Laborde observes, religious freedom for Tebbe is approached in terms of more definable freedoms, such as speech, conscience, and association. With Tebbe’s method, the intractable difficulties that confront courts when they try to decide what is or is not an expression of religion—efforts that Winnifred Sullivan describes in her well-known book, The Impossibility of Religious Freedom (2005)—are circumvented and rendered irrelevant. The lucidity that Tebbe brings to the field of religion and law by putting religion as indeterminate abstraction out of play and utilizing more delineable terms and concepts that become marked as religion in specific situations might prove to be a worthwhile practice throughout the discipline of religious studies. Schwartzman has suggested “a definitional strategy” that could be used to avoid interpreting religious doctrines narrowly in juridical contexts by broadening the “legal concept of religion” to reference ideas that are linked to generalized ethical or moral judgements (Schwartzman 2012, 64). This approach, as Cécile Laborde notes in her commentary, is akin to the disassembling of religion that Tebbe’s method utilizes. Currently, the US Office of the Attorney General might be adopting such tactics. The memo of October 6, 2017 on the subject of “Federal Law Protections for Religious Liberty” stresses that “the exercise of religion” must “encompass all aspects of observance and practice, whether or not central to, or required by, a particular religious faith” (2). In its appendix, with specific reference to abortion and sterilization, the document emphasizes that individuals are allowed to refuse to support such procedures “on the basis of religious beliefs or moral convictions” (16a). The term “moral” might indicate that in order to promote its present agenda more effectively, the Department of Justice recognizes a need to address the indefiniteness of “religion” by using supplementary vocabulary less connected with traditional faith institutions. The recent DOJ memo is perhaps an indication that reliance on “religion” as a sufficiently descriptive term in legal contexts might be waning. Such a development is all the more reason for scholarship in religious studies to vigorously attend to the definitional issues raised by Tebbe’s book. None of the reviewers seems to be as impressed as I am by the civility displayed in Tebbe’s writing. The congenial style of his book is also evident in his response to the reviews even when he challenges what he considers misreadings of his work. For Tebbe, the exchange of reasoned discourse is paramount and requires that he pay close attention to the specificities of critiques of his main premise such as that expressed by McBride as well as suggested enlargements of his method such as that offered by Jakobsen. His largely appreciative tone is appropriate for the program of inclusion he advocates. In the introduction to his book, in reference to Elaine Huguenin, who objects to photographing same-sex marriage ceremonies, Tebbe writes that “American pluralism suggests that we leave room for people like her…” (Tebbe 2017, 22). His book proposes a process for making room for all parties in continual reasoned conversations that will hopefully become progressively enlightened as they build a shared history. Since, as he predicts toward the end of his book, in regard to conflicts between religious freedom and equality rights, “the most consequential legal decisions will be made outside the courts” by “presidential administrations” (197), citizens’ opinions will have increasing impact. In such a regulatory context, Tebbe’s effort to foster tolerant discursive space to cultivate “the full realization of citizens’ capacities” (199) is especially noteworthy. REFERENCES Arnal, William E., and Russell T. McCutcheon. 2013. The Sacred Is the Profane: The Political Nature of Religion . New York: Oxford University Press. Balagangadhara, S. N. 1994. The Heathen in His Blindness: Asia, the West and the Dynamic of Religion . Leiden: Brill. Barton, Carlin A., and Daniel Boyarin. 2016. Imagine No Religion: How Modern Abstractions Hide Ancient Realities . New York: Fordham University Press. Cavanaugh, William T. 2009. The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict . New York: Oxford University Press. Google Scholar CrossRef Search ADS   Fitzgerald, Timothy. 2000. The Ideology of Religious Studies . New York: Oxford University Press. ——, ed. 2007a. Religion and the Secular: Historical and Colonial Formations . London: Equinox. ——. 2007b. Discourse on Civility and Barbarity: A Critical History of Religion and Related Categories . New York: Oxford University Press. ——. 2011. Religion and Politics in International Relations: The Modern Myth . New York: Continuum. ——. 2017. “ Critical Religion: Religion is Not a Stand-Alone Category.” In Religion, Theory, Critique , edited by Richard King, 435– 54. New York: Columbia University Press. Goldenberg, Naomi R. 2015. “ The Category of Religion in the Technology of Governance: An Argument for Understanding Religions as Vestigial States.” In Religion as a Category of Governance and Sovereignty , edited by Trevor Stack, Naomi Goldenberg, and Timothy Fitzgerald, 280– 92. Leiden: Brill. Google Scholar CrossRef Search ADS   ——. 2017. “ Queer Theory Meets Critical Religion: Are We Starting to Think Yet?” In Religion, Theory, Critique: Classic and Contemporary Approaches and Methodologies , edited by Richard King, 531– 43. New York: Columbia University Press. ——. Forthcoming. “ Toward a Pushier Critical Analysis of ‘Religion’ and Attendant Categories.” In Method Today: Redescribing Approaches to the Study of Religion , edited by Brad Stoddard. Sheffield, UK: Equinox. Masuzawa, Tomoko. 2005. The Invention of World Religions . Chicago: University of Chicago Press. Google Scholar CrossRef Search ADS   McCutcheon, Russell T. 1997. Manufacturing Religion: The Discourse on Sui Generis Religion and the Politics of Nostalgia . New York: Oxford University Press. ——. 2001. Critics Not Caretakers: Redescribing the Public Study of Religion . Albany: State University of New York Press. Nongbri, Brent. 2013. Before Religion: A History of a Modern Concept . New Haven, CT: Yale University Press. Google Scholar CrossRef Search ADS   Office of the Attorney General, Washington, DC 2017. “Federal Law Protections for Religious Liberty.”https//www.justice.gov/opa/press-release/file/1001891/download. Accessed October 30, 2017. Schwartzman, Micah. 2012. “ What If Religion Isn’t Special?” Public Law and Legal Theory Working Paper Series 2013–03 . University of Virginia School of Law. Google Scholar CrossRef Search ADS   Smith, Jonathan Z. 1998. “ Religion, Religions, Religious.” In Critical Terms for Religious Studies , edited by Mark C. Taylor, 269– 84. Chicago: University of Chicago Press. Stack, Trevor, Naomi Goldenberg, and Timothy Fitzgerald, eds. 2015. Religion as a Category of Governance and Sovereignty . Leiden: Brill. Sullivan, Winnifred F. 2005. The Impossibility of Religious Freedom . Princeton, NJ: Princeton University Press. Tebbe, Nelson. 2011. “ Nonbelievers.” Virginia Law Review  97: 1111– 80. ——. 2014. “ The End of Religious Freedom: What Is at Stake?” Pepperdine Law Review  41: 963– 82. ——. 2017. Religious Freedom in an Egalitarian Age . Cambridge, MA: Harvard University Press. © 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: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of the American Academy of Religion Oxford University Press

An Appraisal of Religious Freedom in an Egalitarian Age by Nelson Tebbe: Eight Commentaries and Tebbe’s Response

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Abstract

Readers of the following series of texts are offered a critical entrée into Nelson Tebbe’s approach to conflicts between equality law and claims to religious freedom in the United States. The eight assessments and the author’s response present a surprisingly cohesive discussion of central tenets of Tebbe’s argument. Some suggest broad and complex themes that could very well preoccupy the field of law and religion in the near future. The fact that Tebbe’s work elicits such thoughtful and focused engagement from this formidable group of committed and accomplished scholars marks its clarity and significance. If I had to choose one word to describe Nelson Tebbe’s substantial contribution to debates about clashes between religious freedom and human rights, it would be “pragmatic.” The label could, of course, be interpreted both as a compliment and a criticism: as a compliment because the book offers a useful program for making reasoned and timely legal decisions; and a criticism for a lack of deeper analysis of concepts basic to current controversies about these decisions. As I read Religious Freedom in an Egalitarian Age, my opinion of the practicality that lies at the heart of Tebbe’s project shifted from suspiciously skeptical to thoroughly appreciative. Tebbe has influenced how I approach and evaluate knotty conflicts involving equality and “religious” resistance. Because this is an expansive move toward greater tolerance and hopefully effectiveness in framing my own work, I am now inclined to think of his book as gloriously pragmatic. Tebbe’s sympathies in the battle are (fairly) clear: he is on the side of progressives who support extending the benefits of equality law to all US citizens in regard to sexual and reproductive freedoms and LGBT rights. However, he does not believe that egalitarian views must triumph in every skirmish. For constitutional democracy to remain healthy and robust, citizens who, under the banner of the free exercise of religion, want to opt out of supporting these relatively recent extensions of equality law must be accorded fair and serious treatment in public debates and judicial proceedings. Sometimes religious freedom discussed and debated á la Tebbe will win. In his view, as long as each outcome is not considered conclusory and is “warranted,” that is, explained through reasoning based on references to legal precedents and his four proposed principles, conversation can continue and democracy can evolve and thrive. Tebbe’s objective for the process he names “social coherence” is to construct a scaffolding to support reasoned debate and decision-making. The commentators differ widely about the efficacy and implications of the method. Blancarte and McBride explain their doubts about whether the rationality Tebbe’s system encourages can ever prevail. Amesbury, Baumgarten, Gordon, Jakobsen, Laborde, and Watt voice thoughtful reservations with a cautious, appreciative optimism. Most contributions sketch out correctives to the limits they identify and elaborate Tebbe’s work by suggesting ways to strengthen his project and push it further. In his response, Tebbe writes that a few reviewers raise a “question about the concept of religion that the book employs…in particular whether it serves to replicate power imbalances between majority and minority faiths.” Tebbe agrees with Watt and Baumgarten that his method could and should be applied to issues other than most of those pertaining to mainstream Christian tradition that have so far been considered in US courtrooms. This is a rather straightforward discussion about remembering that the category of religion comprises traditions other than Christianity. A different problem about the concept of religion that I find more fundamental and compelling is the amorphousness, instability, and incoherence of religion as both word and idea, a subject that both Tebbe’s book and the reviews (with the notable exception of Laborde’s) barely touch upon (Goldenberg 2015; forthcoming). Since Tebbe has approached this problem elsewhere (Tebbe 2011; 2014) and both acknowledges (Tebbe 2017, x) and extensively references Micah Schwartzman (Tebbe 2017, 265) who has done relevant work on the topic (Schwartzman 2012), I was disappointed that in this book, he does not address the conundrum that defining religion presents for jurisprudence. Or does he? A second reading of Religious Freedom in an Egalitarian Age has led me to think that in it Tebbe begins a crucial process of unraveling an enigma that confounds the study of law and religion in particular as well as discipline of religious studies in general (Arnal and McCutcheon 2013; Balagangadhara 1994; Barton and Boyarin 2016; Cavanaugh 2009; Fitzgerald 2000; 2007a; 2007b; 2011; 2017; Goldenberg 2017; Masuzawa 2005; McCutcheon 1997; 2001; Nongbri 2013; Smith 1998; Stack et al. 2015). By demonstrating how legal disputes about religious freedom can be—indeed, ought to be—productively discussed without even raising the question of what constitutes religion, Tebbe directs attention to particular behaviors, practices, and interests that are currently stirring the passions and inspiring the commitments of citizens under the inconsistent and contingent (though constitutionally shielded) label of religion. What matters to Tebbe is that democratic institutions and public discourse take fair account of the deep feelings aroused by the particularities of each dispute and strive to mitigate harmful effects of one group’s legally protected convictions on another group’s lawful conduct. As Laborde observes, religious freedom for Tebbe is approached in terms of more definable freedoms, such as speech, conscience, and association. With Tebbe’s method, the intractable difficulties that confront courts when they try to decide what is or is not an expression of religion—efforts that Winnifred Sullivan describes in her well-known book, The Impossibility of Religious Freedom (2005)—are circumvented and rendered irrelevant. The lucidity that Tebbe brings to the field of religion and law by putting religion as indeterminate abstraction out of play and utilizing more delineable terms and concepts that become marked as religion in specific situations might prove to be a worthwhile practice throughout the discipline of religious studies. Schwartzman has suggested “a definitional strategy” that could be used to avoid interpreting religious doctrines narrowly in juridical contexts by broadening the “legal concept of religion” to reference ideas that are linked to generalized ethical or moral judgements (Schwartzman 2012, 64). This approach, as Cécile Laborde notes in her commentary, is akin to the disassembling of religion that Tebbe’s method utilizes. Currently, the US Office of the Attorney General might be adopting such tactics. The memo of October 6, 2017 on the subject of “Federal Law Protections for Religious Liberty” stresses that “the exercise of religion” must “encompass all aspects of observance and practice, whether or not central to, or required by, a particular religious faith” (2). In its appendix, with specific reference to abortion and sterilization, the document emphasizes that individuals are allowed to refuse to support such procedures “on the basis of religious beliefs or moral convictions” (16a). The term “moral” might indicate that in order to promote its present agenda more effectively, the Department of Justice recognizes a need to address the indefiniteness of “religion” by using supplementary vocabulary less connected with traditional faith institutions. The recent DOJ memo is perhaps an indication that reliance on “religion” as a sufficiently descriptive term in legal contexts might be waning. Such a development is all the more reason for scholarship in religious studies to vigorously attend to the definitional issues raised by Tebbe’s book. None of the reviewers seems to be as impressed as I am by the civility displayed in Tebbe’s writing. The congenial style of his book is also evident in his response to the reviews even when he challenges what he considers misreadings of his work. For Tebbe, the exchange of reasoned discourse is paramount and requires that he pay close attention to the specificities of critiques of his main premise such as that expressed by McBride as well as suggested enlargements of his method such as that offered by Jakobsen. His largely appreciative tone is appropriate for the program of inclusion he advocates. In the introduction to his book, in reference to Elaine Huguenin, who objects to photographing same-sex marriage ceremonies, Tebbe writes that “American pluralism suggests that we leave room for people like her…” (Tebbe 2017, 22). His book proposes a process for making room for all parties in continual reasoned conversations that will hopefully become progressively enlightened as they build a shared history. Since, as he predicts toward the end of his book, in regard to conflicts between religious freedom and equality rights, “the most consequential legal decisions will be made outside the courts” by “presidential administrations” (197), citizens’ opinions will have increasing impact. In such a regulatory context, Tebbe’s effort to foster tolerant discursive space to cultivate “the full realization of citizens’ capacities” (199) is especially noteworthy. REFERENCES Arnal, William E., and Russell T. McCutcheon. 2013. The Sacred Is the Profane: The Political Nature of Religion . New York: Oxford University Press. Balagangadhara, S. N. 1994. The Heathen in His Blindness: Asia, the West and the Dynamic of Religion . Leiden: Brill. Barton, Carlin A., and Daniel Boyarin. 2016. Imagine No Religion: How Modern Abstractions Hide Ancient Realities . New York: Fordham University Press. Cavanaugh, William T. 2009. The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict . New York: Oxford University Press. Google Scholar CrossRef Search ADS   Fitzgerald, Timothy. 2000. The Ideology of Religious Studies . New York: Oxford University Press. ——, ed. 2007a. Religion and the Secular: Historical and Colonial Formations . London: Equinox. ——. 2007b. Discourse on Civility and Barbarity: A Critical History of Religion and Related Categories . New York: Oxford University Press. ——. 2011. Religion and Politics in International Relations: The Modern Myth . New York: Continuum. ——. 2017. “ Critical Religion: Religion is Not a Stand-Alone Category.” In Religion, Theory, Critique , edited by Richard King, 435– 54. New York: Columbia University Press. Goldenberg, Naomi R. 2015. “ The Category of Religion in the Technology of Governance: An Argument for Understanding Religions as Vestigial States.” In Religion as a Category of Governance and Sovereignty , edited by Trevor Stack, Naomi Goldenberg, and Timothy Fitzgerald, 280– 92. Leiden: Brill. Google Scholar CrossRef Search ADS   ——. 2017. “ Queer Theory Meets Critical Religion: Are We Starting to Think Yet?” In Religion, Theory, Critique: Classic and Contemporary Approaches and Methodologies , edited by Richard King, 531– 43. New York: Columbia University Press. ——. Forthcoming. “ Toward a Pushier Critical Analysis of ‘Religion’ and Attendant Categories.” In Method Today: Redescribing Approaches to the Study of Religion , edited by Brad Stoddard. Sheffield, UK: Equinox. Masuzawa, Tomoko. 2005. The Invention of World Religions . Chicago: University of Chicago Press. Google Scholar CrossRef Search ADS   McCutcheon, Russell T. 1997. Manufacturing Religion: The Discourse on Sui Generis Religion and the Politics of Nostalgia . New York: Oxford University Press. ——. 2001. Critics Not Caretakers: Redescribing the Public Study of Religion . Albany: State University of New York Press. Nongbri, Brent. 2013. Before Religion: A History of a Modern Concept . New Haven, CT: Yale University Press. Google Scholar CrossRef Search ADS   Office of the Attorney General, Washington, DC 2017. “Federal Law Protections for Religious Liberty.”https//www.justice.gov/opa/press-release/file/1001891/download. Accessed October 30, 2017. Schwartzman, Micah. 2012. “ What If Religion Isn’t Special?” Public Law and Legal Theory Working Paper Series 2013–03 . University of Virginia School of Law. Google Scholar CrossRef Search ADS   Smith, Jonathan Z. 1998. “ Religion, Religions, Religious.” In Critical Terms for Religious Studies , edited by Mark C. Taylor, 269– 84. Chicago: University of Chicago Press. Stack, Trevor, Naomi Goldenberg, and Timothy Fitzgerald, eds. 2015. Religion as a Category of Governance and Sovereignty . Leiden: Brill. Sullivan, Winnifred F. 2005. The Impossibility of Religious Freedom . Princeton, NJ: Princeton University Press. Tebbe, Nelson. 2011. “ Nonbelievers.” Virginia Law Review  97: 1111– 80. ——. 2014. “ The End of Religious Freedom: What Is at Stake?” Pepperdine Law Review  41: 963– 82. ——. 2017. Religious Freedom in an Egalitarian Age . Cambridge, MA: Harvard University Press. © 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: journals.permissions@oup.com.

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Journal of the American Academy of ReligionOxford University Press

Published: Mar 1, 2018

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