Equality of Religious Freedom

Equality of Religious Freedom Religious Freedom in an Egalitarian Age by Nelson Tebbe makes an important contribution to discussions of legal possibility in a time of seemingly intractable social conflict. Tebbe provides a method of reasoning for cases that find themselves at the center of some of those conflicts, and in so doing he demonstrates that it is possible to protect both religious freedom and social equality in US society. As someone trained in ethics, I am most appreciative of the fact that Religious Freedom in an Egalitarian Age connects questions of legal reasoning at their most pragmatic to questions of ethical reasoning at their most principled. The method Tebbe presents, “social cohesion,” provides a way to move back and forth between precedents in case law and the ethical principles behind those decisions to allow for coherent resolutions across different cases. The movement between particularities and principles within the framework of social cohesion makes clear how ethics remains central to legal reasoning, even as it is sometimes pushed aside for fear that acknowledging ethical considerations would allow social conflict to engulf legal reasoning. Tebbe shows, however, that such need not be the case. In fact, he begins his description of the method of social cohesion with a consideration of how moral reasoning often works: “When people reason through a new moral problem, they often start with an impulse or intuition about the right result. Sometimes they stop there, but often they subject that initial reaction to examination. They think about it harder” (25). And, in thinking about it harder, they often compare their intuition to judgments that resulted in other cases about which they have confidence. This comparative method allows for a testing of initial intuitions and for what political philosopher John Rawls called “reflective equilibrium.” Coherence across comparable cases allows for confidence that judgments “are backed by reasons” (26). And simultaneously, coherence also allows people to “abstract from their concrete judgments to form more general principles” (26). These principles provide another test for reflection. Importantly, even as the method leads to reasoned consistency across cases, the results of applying social cohesion do not simply fall on one side or the other of current social conflicts. For example, in one of the more unexpected results of Tebbe’s exploration of social cohesion, he shows that there may be good constitutional reasons for some legal exemptions to be provided to public officials on the grounds of religious freedom. As Tebbe notes, public officials are generally understood to have the weakest standing for such exemptions of any of the various parties that have recently requested them. With careful reasoning, Tebbe shows that most religious exemptions cannot apply to government officials, because allowing government officials to be exempt from generally applicable laws would do material and/or symbolic harm to third parties reliant on government services. Providing such exemptions to state officials could also provide state support for specific religious views, creating a conflict with the First Amendment ban on the government establishment of religion. Nonetheless, he also shows that “even public officials can claim exemptions on the basis of their religious convictions, if only in limited circumstances” (180). They can make such claims when their personal conviction but not the function of their office is in question and when accommodation can be made without harm to others. One of the strengths of the method of social cohesion is that in the end, “how these cases will be resolved will depend on the particular facts” (181). Tebbe provides a framework for resolving cases in “a justified way” even as the outcomes are not determined in advance of the particularities of any given case. The moral principles that can be abstracted from cases when using the method of social cohesion are also part of larger moral discussions and debates, ones that are not directly linked to, but nonetheless have an effect on, legal reasoning and the outcome of controversial cases. One of the inspirations offered by Religious Freedom in an Egalitarian Age, for example, is to think more deeply about the meaning of freedom in general and religious freedom in particular. As historian Eric Foner has shown, although freedom has been a central value throughout the history of the United States, it has also been highly contested (Foner 1998). Freedom has meant different things to different people and at different times and places. It has meant something very different in African American “freedom dreams” (to follow Robin D. G. Kelley’s important history [Kelley 2002]) than it does in the current free market reveries of neoliberal policy makers. Similarly, the ethical meaning of “religious freedom” has shifted somewhat drastically over time, and the case law around religious freedom has been notoriously variable. One of the major debates is whether freedom refers only to individual freedom of conscience or to other dreams of freedom. The idea of social responsibility, popularized in the twentieth century through the social gospel movement and multiple movements for civil rights, is now much less prominent than that of individual responsibility. Although many understandings of freedom, including my own, might expand well beyond liberal individualism, even within the framework of liberal, individual freedom, it is possible to think of freedom broadly (for a reading of queer ethics in relation to the liberal tradition, see Jakobsen 2010). One can, for example, think beyond the idea of the autonomous individual that is the basis for what legal theorist Martha Fineman has called “the autonomy myth” (Fineman 2004). Rather than thinking of the individual subject of freedom as autonomous, one could think of freedom as a social relation in which an individual exists in relation to others, and these relations make everyone’s freedom possible. With such an interrelated freedom, not just individuals, but also various freedoms, and even freedom and equality, are mutually interdependent. Thus, a second inspiration that an ethicist can draw from Religious Freedom in an Egalitarian Age is to think about freedom and equality simultaneously. The relationship between freedom and equality is well beyond the scope of this brief essay, but one crucial point is that many legal cases set freedom in opposition to equality. Religious freedom, for example, is often placed in conflict with gender equality or with “women’s health.” There are many reasons for this framing, but one is a fundamental discomfort with combining gender, sexuality, and freedom. I recognize that sexual freedom is barely part of the lexicon of political life or legal reasoning in the United States, but the limits of the predominant ethical discourse about gender and sexuality have serious consequences for both freedom and equality. As Douglas NeJaime and Reva B. Siegel note in their article on conscience-based complicity claims, one of the reasons that complicity claims are given latitude is because they are often directed toward people’s actions about which there is some public discomfort (NeJaime and Siegel 2015). Public discomfort with sexual freedom has many consequences. One of the most important is that in a country where freedom is the preeminent value, religious freedom is contrasted to gender and sexual equality rather than to multiple claims of freedom—and given the preeminence of freedom, equality is quite likely to lose. Another is that when multiple forms of freedom cannot be publicly articulated, one form of freedom can come to rule over others. If only some freedoms can be named as good, then the invocation of one freedom can lead to restrictions on other forms of freedom and on the people who need to exercise those freedoms. In other words, the inability to name sexual freedom as a moral good can lead to freedom for some people and not for others. Public discomfort with sexual freedom could, however, be addressed through a process much like that of social cohesion, as outlined by Tebbe in this book. One of the thought experiments that could be pursued within the method of social cohesion is whether the principle of freedom, in fact, should be applied to sexual practice. The public may have an intuition that sexual freedom is somehow not as worthy as are claims of freedom in other areas, but is this intuition reasonably grounded in principles? Social cohesion would ask us to consider sexual freedom in relation to other issues that have been, like sexual practice, opposed to religious freedom, but what if the relevant comparison—indeed the relevant connection—is to religious freedom itself? As Ann Pellegrini and I have elsewhere argued, although the common sense of public discourse in the United States is that sex is a problem and religion is the solution, sex could also be seen as a source of values, as a part of creating various forms of community—whether broad communities of care or more intimate relations (Jakobsen and Pellegrini 2003). We also argue that religious and sexual freedom are interrelated. Specifically, as a long as actors make political and legal claims about sexuality based on religious commitments, they can be understood to be activating not only “their” religious freedom but that of others. If religious freedom is to be a universal value, it must apply to everyone regardless of religious commitment, and if people’s sexual freedom is a problem for others’ religious commitments, then that freedom is not just about sex, it is also about religion. It is religious freedom. Sexual freedom may be religious freedom because of specific religious commitments. As Rebecca Alpert pointed out in the years leading up to the legalization of “gay marriage,” her religious commitments as a Reconstructionist Rabbi included marrying both same-sex and hetero-sex couples (Alpert 2004). And sexual freedom may be religious freedom simply because, under conditions of freedom one’s conscience and practice with regard to sex should not be subject to someone else’s religious commitment. In other words, it is important to think of the ways in which different freedoms might be understood as interdependent rather than as opposed to each other. If it is the case that the reasons behind state policies regulating sexuality are religious (and as Pellegrini and I document, both lawmakers and the judiciary often appeal to “religious heritage,” by which they mean a predominant sense of Christian ethics, when it comes to sexual regulation), then, in fact, sexual freedom is dependent on religious freedom: on the freedom for those religious people who do not share religious commitments to sexual regulation, as well as the freedom from religion of those whose commitments lie in other ethical frameworks. The case for why religious freedom is dependent on sexual freedom is made even less frequently than is the case for sexual freedom itself. As a result, the claim for an interdependent religious and sexual freedom may be counter-intuitive; but it is nonetheless powerful. If religions are not to be simple replicas of a dominant Christian ethos, then, in fact, they must be free to develop—and enact—their own sexual ethics. If sex is a primary religious concern for many people, then there cannot be any approach to religious freedom if there is no sexual freedom. The very depth of the claim that sexual ethics are central to religion makes sexual freedom a necessary condition for religious freedom. Importantly, Tebbe’s book shows how such a recognition could benefit religious freedom. Let me return for a moment to the section of Religious Freedom in an Egalitarian Age that attends to religious exemptions for public officials. Would accepting sexual freedom as freedom create more space for religious officials to express their commitments? In meeting the conditions that Tebbe points to for such an exemption to be acceptable, it would. Tebbe argues that religious exemptions are allowed if: (1) the exemption is for the person, not the office; (2) the exemption does not materially harm third parties (e.g., does not cause delays to some people that are not faced by others); and (3) does not symbolically harm others by suggesting state disapproval for their free and legal actions. It is this last condition that is enhanced by the recognition of the intertwining of religious and sexual freedom. What is requested of those who would claim religious freedom is a recognition not of the moral good of other people’s commitments—within the liberal framework, people can disagree about the good—but of the morality of other people’s freedom. The claim for recognition of the potential moral good of sexual practice is a claim of membership in the universal community of free beings. Whatever their reasons, people who would make claims for freedom in sexual practice are not beyond the pale of public life; they are not nonmoral beings; they are simply different from other moral beings. On this reading of freedom, any claim to one’s own freedom is also a claim to grant freedom to others. But this mutually constituted freedom is truly interdependent. Any increase in space for religious freedom would depend on acknowledging the value of sexual freedom, including its value as part and parcel of the compelling state interest in religious freedom. Would those requesting religious exemptions be likely to acknowledge the sexual freedom of others as part of religious freedom? Probably not. But the fact that such a claim is unlikely to be recognized in practice makes it even more important to recognize it in principle: if sexuality is a concern because of religion, then religious freedom entails sexual freedom. Should such an acknowledgment of others’ freedom be made, it would create space for religious freedom, because claiming religious freedom would not involve symbolic denigration of others’ freedom. Even if one morally disagrees with a practice, one also recognizes that the disagreement is between those who are equally and mutually free. Equality in freedom, rather than a freedom that stands in opposition to equality, is one way to interpret religious freedom in an egalitarian age. REFERENCES Alpert, Rebecca. 2004. “ Religious Liberty, Same-Sex Marriage, and the Case of Reconstructionist Judaism.” In God Forbid: Religion and Sex in American Public Life , edited by Kathleen M. Sands, 124– 34. New York: Oxford University Press. Fineman, Martha Albertson. 2004. The Autonomy Myth: A Theory of Dependency . New York: New Press. Foner, Eric. 1998. The Story of American Freedom . New York: Norton. Jakobsen, Janet R., and Ann Pellegrini. 2003. Love the Sin: Sexual Regulation and the Limits of Religious Tolerance . New York: New York University Press. Jakobsen, Janet R. 2010. “ Queer Relations: A Reading of Martha Nussbaum on Same-Sex Marriage.” Columbia Journal of Gender and Law  19 ( 1): 133– 78. Kelley, Robin D. G. 2002. Freedom Dreams: The Black Radical Imagination . Boston: Beacon. NeJaime, Douglas, and Reva B. Siegel. 2015. “ Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics.” Yale Law Journal  124: 2518– 88. © 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

Equality of Religious Freedom

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© 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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Abstract

Religious Freedom in an Egalitarian Age by Nelson Tebbe makes an important contribution to discussions of legal possibility in a time of seemingly intractable social conflict. Tebbe provides a method of reasoning for cases that find themselves at the center of some of those conflicts, and in so doing he demonstrates that it is possible to protect both religious freedom and social equality in US society. As someone trained in ethics, I am most appreciative of the fact that Religious Freedom in an Egalitarian Age connects questions of legal reasoning at their most pragmatic to questions of ethical reasoning at their most principled. The method Tebbe presents, “social cohesion,” provides a way to move back and forth between precedents in case law and the ethical principles behind those decisions to allow for coherent resolutions across different cases. The movement between particularities and principles within the framework of social cohesion makes clear how ethics remains central to legal reasoning, even as it is sometimes pushed aside for fear that acknowledging ethical considerations would allow social conflict to engulf legal reasoning. Tebbe shows, however, that such need not be the case. In fact, he begins his description of the method of social cohesion with a consideration of how moral reasoning often works: “When people reason through a new moral problem, they often start with an impulse or intuition about the right result. Sometimes they stop there, but often they subject that initial reaction to examination. They think about it harder” (25). And, in thinking about it harder, they often compare their intuition to judgments that resulted in other cases about which they have confidence. This comparative method allows for a testing of initial intuitions and for what political philosopher John Rawls called “reflective equilibrium.” Coherence across comparable cases allows for confidence that judgments “are backed by reasons” (26). And simultaneously, coherence also allows people to “abstract from their concrete judgments to form more general principles” (26). These principles provide another test for reflection. Importantly, even as the method leads to reasoned consistency across cases, the results of applying social cohesion do not simply fall on one side or the other of current social conflicts. For example, in one of the more unexpected results of Tebbe’s exploration of social cohesion, he shows that there may be good constitutional reasons for some legal exemptions to be provided to public officials on the grounds of religious freedom. As Tebbe notes, public officials are generally understood to have the weakest standing for such exemptions of any of the various parties that have recently requested them. With careful reasoning, Tebbe shows that most religious exemptions cannot apply to government officials, because allowing government officials to be exempt from generally applicable laws would do material and/or symbolic harm to third parties reliant on government services. Providing such exemptions to state officials could also provide state support for specific religious views, creating a conflict with the First Amendment ban on the government establishment of religion. Nonetheless, he also shows that “even public officials can claim exemptions on the basis of their religious convictions, if only in limited circumstances” (180). They can make such claims when their personal conviction but not the function of their office is in question and when accommodation can be made without harm to others. One of the strengths of the method of social cohesion is that in the end, “how these cases will be resolved will depend on the particular facts” (181). Tebbe provides a framework for resolving cases in “a justified way” even as the outcomes are not determined in advance of the particularities of any given case. The moral principles that can be abstracted from cases when using the method of social cohesion are also part of larger moral discussions and debates, ones that are not directly linked to, but nonetheless have an effect on, legal reasoning and the outcome of controversial cases. One of the inspirations offered by Religious Freedom in an Egalitarian Age, for example, is to think more deeply about the meaning of freedom in general and religious freedom in particular. As historian Eric Foner has shown, although freedom has been a central value throughout the history of the United States, it has also been highly contested (Foner 1998). Freedom has meant different things to different people and at different times and places. It has meant something very different in African American “freedom dreams” (to follow Robin D. G. Kelley’s important history [Kelley 2002]) than it does in the current free market reveries of neoliberal policy makers. Similarly, the ethical meaning of “religious freedom” has shifted somewhat drastically over time, and the case law around religious freedom has been notoriously variable. One of the major debates is whether freedom refers only to individual freedom of conscience or to other dreams of freedom. The idea of social responsibility, popularized in the twentieth century through the social gospel movement and multiple movements for civil rights, is now much less prominent than that of individual responsibility. Although many understandings of freedom, including my own, might expand well beyond liberal individualism, even within the framework of liberal, individual freedom, it is possible to think of freedom broadly (for a reading of queer ethics in relation to the liberal tradition, see Jakobsen 2010). One can, for example, think beyond the idea of the autonomous individual that is the basis for what legal theorist Martha Fineman has called “the autonomy myth” (Fineman 2004). Rather than thinking of the individual subject of freedom as autonomous, one could think of freedom as a social relation in which an individual exists in relation to others, and these relations make everyone’s freedom possible. With such an interrelated freedom, not just individuals, but also various freedoms, and even freedom and equality, are mutually interdependent. Thus, a second inspiration that an ethicist can draw from Religious Freedom in an Egalitarian Age is to think about freedom and equality simultaneously. The relationship between freedom and equality is well beyond the scope of this brief essay, but one crucial point is that many legal cases set freedom in opposition to equality. Religious freedom, for example, is often placed in conflict with gender equality or with “women’s health.” There are many reasons for this framing, but one is a fundamental discomfort with combining gender, sexuality, and freedom. I recognize that sexual freedom is barely part of the lexicon of political life or legal reasoning in the United States, but the limits of the predominant ethical discourse about gender and sexuality have serious consequences for both freedom and equality. As Douglas NeJaime and Reva B. Siegel note in their article on conscience-based complicity claims, one of the reasons that complicity claims are given latitude is because they are often directed toward people’s actions about which there is some public discomfort (NeJaime and Siegel 2015). Public discomfort with sexual freedom has many consequences. One of the most important is that in a country where freedom is the preeminent value, religious freedom is contrasted to gender and sexual equality rather than to multiple claims of freedom—and given the preeminence of freedom, equality is quite likely to lose. Another is that when multiple forms of freedom cannot be publicly articulated, one form of freedom can come to rule over others. If only some freedoms can be named as good, then the invocation of one freedom can lead to restrictions on other forms of freedom and on the people who need to exercise those freedoms. In other words, the inability to name sexual freedom as a moral good can lead to freedom for some people and not for others. Public discomfort with sexual freedom could, however, be addressed through a process much like that of social cohesion, as outlined by Tebbe in this book. One of the thought experiments that could be pursued within the method of social cohesion is whether the principle of freedom, in fact, should be applied to sexual practice. The public may have an intuition that sexual freedom is somehow not as worthy as are claims of freedom in other areas, but is this intuition reasonably grounded in principles? Social cohesion would ask us to consider sexual freedom in relation to other issues that have been, like sexual practice, opposed to religious freedom, but what if the relevant comparison—indeed the relevant connection—is to religious freedom itself? As Ann Pellegrini and I have elsewhere argued, although the common sense of public discourse in the United States is that sex is a problem and religion is the solution, sex could also be seen as a source of values, as a part of creating various forms of community—whether broad communities of care or more intimate relations (Jakobsen and Pellegrini 2003). We also argue that religious and sexual freedom are interrelated. Specifically, as a long as actors make political and legal claims about sexuality based on religious commitments, they can be understood to be activating not only “their” religious freedom but that of others. If religious freedom is to be a universal value, it must apply to everyone regardless of religious commitment, and if people’s sexual freedom is a problem for others’ religious commitments, then that freedom is not just about sex, it is also about religion. It is religious freedom. Sexual freedom may be religious freedom because of specific religious commitments. As Rebecca Alpert pointed out in the years leading up to the legalization of “gay marriage,” her religious commitments as a Reconstructionist Rabbi included marrying both same-sex and hetero-sex couples (Alpert 2004). And sexual freedom may be religious freedom simply because, under conditions of freedom one’s conscience and practice with regard to sex should not be subject to someone else’s religious commitment. In other words, it is important to think of the ways in which different freedoms might be understood as interdependent rather than as opposed to each other. If it is the case that the reasons behind state policies regulating sexuality are religious (and as Pellegrini and I document, both lawmakers and the judiciary often appeal to “religious heritage,” by which they mean a predominant sense of Christian ethics, when it comes to sexual regulation), then, in fact, sexual freedom is dependent on religious freedom: on the freedom for those religious people who do not share religious commitments to sexual regulation, as well as the freedom from religion of those whose commitments lie in other ethical frameworks. The case for why religious freedom is dependent on sexual freedom is made even less frequently than is the case for sexual freedom itself. As a result, the claim for an interdependent religious and sexual freedom may be counter-intuitive; but it is nonetheless powerful. If religions are not to be simple replicas of a dominant Christian ethos, then, in fact, they must be free to develop—and enact—their own sexual ethics. If sex is a primary religious concern for many people, then there cannot be any approach to religious freedom if there is no sexual freedom. The very depth of the claim that sexual ethics are central to religion makes sexual freedom a necessary condition for religious freedom. Importantly, Tebbe’s book shows how such a recognition could benefit religious freedom. Let me return for a moment to the section of Religious Freedom in an Egalitarian Age that attends to religious exemptions for public officials. Would accepting sexual freedom as freedom create more space for religious officials to express their commitments? In meeting the conditions that Tebbe points to for such an exemption to be acceptable, it would. Tebbe argues that religious exemptions are allowed if: (1) the exemption is for the person, not the office; (2) the exemption does not materially harm third parties (e.g., does not cause delays to some people that are not faced by others); and (3) does not symbolically harm others by suggesting state disapproval for their free and legal actions. It is this last condition that is enhanced by the recognition of the intertwining of religious and sexual freedom. What is requested of those who would claim religious freedom is a recognition not of the moral good of other people’s commitments—within the liberal framework, people can disagree about the good—but of the morality of other people’s freedom. The claim for recognition of the potential moral good of sexual practice is a claim of membership in the universal community of free beings. Whatever their reasons, people who would make claims for freedom in sexual practice are not beyond the pale of public life; they are not nonmoral beings; they are simply different from other moral beings. On this reading of freedom, any claim to one’s own freedom is also a claim to grant freedom to others. But this mutually constituted freedom is truly interdependent. Any increase in space for religious freedom would depend on acknowledging the value of sexual freedom, including its value as part and parcel of the compelling state interest in religious freedom. Would those requesting religious exemptions be likely to acknowledge the sexual freedom of others as part of religious freedom? Probably not. But the fact that such a claim is unlikely to be recognized in practice makes it even more important to recognize it in principle: if sexuality is a concern because of religion, then religious freedom entails sexual freedom. Should such an acknowledgment of others’ freedom be made, it would create space for religious freedom, because claiming religious freedom would not involve symbolic denigration of others’ freedom. Even if one morally disagrees with a practice, one also recognizes that the disagreement is between those who are equally and mutually free. Equality in freedom, rather than a freedom that stands in opposition to equality, is one way to interpret religious freedom in an egalitarian age. REFERENCES Alpert, Rebecca. 2004. “ Religious Liberty, Same-Sex Marriage, and the Case of Reconstructionist Judaism.” In God Forbid: Religion and Sex in American Public Life , edited by Kathleen M. Sands, 124– 34. New York: Oxford University Press. Fineman, Martha Albertson. 2004. The Autonomy Myth: A Theory of Dependency . New York: New Press. Foner, Eric. 1998. The Story of American Freedom . New York: Norton. Jakobsen, Janet R., and Ann Pellegrini. 2003. Love the Sin: Sexual Regulation and the Limits of Religious Tolerance . New York: New York University Press. Jakobsen, Janet R. 2010. “ Queer Relations: A Reading of Martha Nussbaum on Same-Sex Marriage.” Columbia Journal of Gender and Law  19 ( 1): 133– 78. Kelley, Robin D. G. 2002. Freedom Dreams: The Black Radical Imagination . Boston: Beacon. NeJaime, Douglas, and Reva B. Siegel. 2015. “ Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics.” Yale Law Journal  124: 2518– 88. © 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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