Let’s Be Reasonable!

Let’s Be Reasonable! Religious Freedom in an Egalitarian Age is a very well-written book, which addresses the contemporary conflict between religious freedom and equality law, in particular regarding LGBT rights. Through the analysis of major decisions by the Supreme Court in cases concerning LGBT rights, Nelson Tebbe proposes a specific method to solve potential conflicts with religious freedom. This is a fascinating read for lawmakers but also for those who are new to these issues—and particularly for people like me, who either belong to a discipline other than law or are merely unfamiliar with the American legal tradition. How can Americans conciliate an increasingly necessary protection from discrimination to enjoy the full spectrum of civil rights and at the same time protect their idea of religious freedom? I deliberately insist on the pronoun “their,” because, although this is a book that pretends to establish a general rule to dissipate conflicts, it is based on a particular legal culture, and its recipes cannot be exported or discussed except for comparative purposes. The examples, analyses, and discussions are a nice portrayal of American culture concerning these matters today, which makes it a useful tool for everyone, though in different ways. Tebbe battles the skeptics, who on this issue argue “that the jurisprudence on religious freedom is messy” and that “the law is inherently or necessarily patternless” (5). He proposes instead, in the first part of the book, an alternative method for thinking about religious freedom and civil rights: social coherence. How does this method work? Quite simply: When people confront a new scenario, they compare it to familiar situations and to conclusions they have drawn about them after careful consideration. These could be judgments about concrete scenarios . . . Or they could be principles . . . Reflecting on the problem at hand, people then try to find a resolution that fits together with their existing judgments (about concrete cases) and principles. Working back and forth, they test the solutions, looking for harmony . . . Yet when people come to a conclusion that resonates with their other judgments, they can claim that the solution is warranted—that is backed by reasons. (8–9) In other words, the author proposes that we should be reasonable. He affirms that the method of social coherence “claims as a central virtue that it forces interpreters to interrogate their unreflective impulses” (11). This, unfortunately, is the problem. Because what history and sociology (and psychoanalysis) tell us is that most of our actions are not really dictated by reason. Max Weber taught us a long time ago that social action can be “instrumentally rational,” but also “value-rational,” “affectual,” or “traditional.” Weber was interested in rationality as much as in irrationality, and he understood that there can be a “rationality” based on sentiments or a certain idea of tradition. But the idea of acting rationally (instrumentally speaking), as this book advocates, tends to forget that most rationality drives through values, affections, or a certain idea of the past. In the second part of the book, Tebbe identifies four legal principles that can manage or mediate tensions between religion and equality: (1) avoiding harm to others, (2) fairness to others, (3) freedom of association, and (4) government nonendorsement. These principles are each discussed in their own chapter. Then in a third part of the book, different applications are explored around specific themes such as “Public Accommodation,” “Employment Discrimination,” “Public Officials,” and “Government Subsidy and Support.” It is in these particular cases that we find that things are not so simple (as Tebbe in fact announced earlier in the book). Local and supreme tribunals have not always acted “rationally” or coherently. And the application of principles produces different results. For example, concerning government subsidy and support, the author offers two examples: (1) Locke v. Davey, where the US Supreme Court upheld a funding exclusion for a student in Washington, concerning a scholarship that could not be used to major in theology; and (2) Rosenberg v. Rectors of the University of Virginia (founded by Thomas Jefferson, author of the concept of “Wall of Separation”), where a Christian students’ newspaper was excluded from funding because the university was also worried about the separation of church and state. In this case, the Supreme Court agreed and upheld the lawsuit. How can we talk about simple reason in the light of such different outcomes? Tebbe affirms that “Rosenberg was wrongly decided because Virginia ought to have had discretion to implement its convictions about the importance of non-establishment, just as the State of Washington did” (189). But why can’t we say, inversely but also reasonably speaking, that Locke v. Davey was wrongly decided because the principle of religious freedom was not taken dutifully into account? Common sense and particular values tell many people that it should be the other way around. The problem Tebbe articulates resides in the multiple possible interpretations of the First Amendment as well as all the articles of the Bill of Rights and other foundational documents such as the Declaration of Independence and the Constitution. If we have a conflict between the nonestablishment clause (“Congress shall make no law respecting the establishment of religion”) and religious freedom (“or prohibiting the free exercise thereof”), the only way to solve it is through receptiveness toward one of them at the expense of the other. That is what local or federal judges and members of the Supreme Court do. And they make reasonable decisions, but according to their own personal and professional trajectories. That is why battles for the selection and nomination of new members of this tribunal are so fierce: potential justices all have different ideas, for example, about the role religion should play in the public sphere. As Tebbe affirms concerning one famous case (Burwell v. Hobby Lobby, where religiously oriented employers were allowed not to provide employees’ coverage for female contraception), the court’s decision “was unjustified, but it does not mean that it was necessarily unjustifiable” (69). Religious Freedom in an Egalitarian Age is, in any case, a book that should be read by lawmakers, academics, and common citizens, not only because it shows the conundrums American society is facing, but also because it demonstrates the necessity of finding answers to old problems and above all to new challenges concerning contemporary rights and freedoms of the people. © 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

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Publisher
Oxford University Press
Copyright
© 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.
ISSN
0002-7189
eISSN
1477-4585
D.O.I.
10.1093/jaarel/lfx099
Publisher site
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Abstract

Religious Freedom in an Egalitarian Age is a very well-written book, which addresses the contemporary conflict between religious freedom and equality law, in particular regarding LGBT rights. Through the analysis of major decisions by the Supreme Court in cases concerning LGBT rights, Nelson Tebbe proposes a specific method to solve potential conflicts with religious freedom. This is a fascinating read for lawmakers but also for those who are new to these issues—and particularly for people like me, who either belong to a discipline other than law or are merely unfamiliar with the American legal tradition. How can Americans conciliate an increasingly necessary protection from discrimination to enjoy the full spectrum of civil rights and at the same time protect their idea of religious freedom? I deliberately insist on the pronoun “their,” because, although this is a book that pretends to establish a general rule to dissipate conflicts, it is based on a particular legal culture, and its recipes cannot be exported or discussed except for comparative purposes. The examples, analyses, and discussions are a nice portrayal of American culture concerning these matters today, which makes it a useful tool for everyone, though in different ways. Tebbe battles the skeptics, who on this issue argue “that the jurisprudence on religious freedom is messy” and that “the law is inherently or necessarily patternless” (5). He proposes instead, in the first part of the book, an alternative method for thinking about religious freedom and civil rights: social coherence. How does this method work? Quite simply: When people confront a new scenario, they compare it to familiar situations and to conclusions they have drawn about them after careful consideration. These could be judgments about concrete scenarios . . . Or they could be principles . . . Reflecting on the problem at hand, people then try to find a resolution that fits together with their existing judgments (about concrete cases) and principles. Working back and forth, they test the solutions, looking for harmony . . . Yet when people come to a conclusion that resonates with their other judgments, they can claim that the solution is warranted—that is backed by reasons. (8–9) In other words, the author proposes that we should be reasonable. He affirms that the method of social coherence “claims as a central virtue that it forces interpreters to interrogate their unreflective impulses” (11). This, unfortunately, is the problem. Because what history and sociology (and psychoanalysis) tell us is that most of our actions are not really dictated by reason. Max Weber taught us a long time ago that social action can be “instrumentally rational,” but also “value-rational,” “affectual,” or “traditional.” Weber was interested in rationality as much as in irrationality, and he understood that there can be a “rationality” based on sentiments or a certain idea of tradition. But the idea of acting rationally (instrumentally speaking), as this book advocates, tends to forget that most rationality drives through values, affections, or a certain idea of the past. In the second part of the book, Tebbe identifies four legal principles that can manage or mediate tensions between religion and equality: (1) avoiding harm to others, (2) fairness to others, (3) freedom of association, and (4) government nonendorsement. These principles are each discussed in their own chapter. Then in a third part of the book, different applications are explored around specific themes such as “Public Accommodation,” “Employment Discrimination,” “Public Officials,” and “Government Subsidy and Support.” It is in these particular cases that we find that things are not so simple (as Tebbe in fact announced earlier in the book). Local and supreme tribunals have not always acted “rationally” or coherently. And the application of principles produces different results. For example, concerning government subsidy and support, the author offers two examples: (1) Locke v. Davey, where the US Supreme Court upheld a funding exclusion for a student in Washington, concerning a scholarship that could not be used to major in theology; and (2) Rosenberg v. Rectors of the University of Virginia (founded by Thomas Jefferson, author of the concept of “Wall of Separation”), where a Christian students’ newspaper was excluded from funding because the university was also worried about the separation of church and state. In this case, the Supreme Court agreed and upheld the lawsuit. How can we talk about simple reason in the light of such different outcomes? Tebbe affirms that “Rosenberg was wrongly decided because Virginia ought to have had discretion to implement its convictions about the importance of non-establishment, just as the State of Washington did” (189). But why can’t we say, inversely but also reasonably speaking, that Locke v. Davey was wrongly decided because the principle of religious freedom was not taken dutifully into account? Common sense and particular values tell many people that it should be the other way around. The problem Tebbe articulates resides in the multiple possible interpretations of the First Amendment as well as all the articles of the Bill of Rights and other foundational documents such as the Declaration of Independence and the Constitution. If we have a conflict between the nonestablishment clause (“Congress shall make no law respecting the establishment of religion”) and religious freedom (“or prohibiting the free exercise thereof”), the only way to solve it is through receptiveness toward one of them at the expense of the other. That is what local or federal judges and members of the Supreme Court do. And they make reasonable decisions, but according to their own personal and professional trajectories. That is why battles for the selection and nomination of new members of this tribunal are so fierce: potential justices all have different ideas, for example, about the role religion should play in the public sphere. As Tebbe affirms concerning one famous case (Burwell v. Hobby Lobby, where religiously oriented employers were allowed not to provide employees’ coverage for female contraception), the court’s decision “was unjustified, but it does not mean that it was necessarily unjustifiable” (69). Religious Freedom in an Egalitarian Age is, in any case, a book that should be read by lawmakers, academics, and common citizens, not only because it shows the conundrums American society is facing, but also because it demonstrates the necessity of finding answers to old problems and above all to new challenges concerning contemporary rights and freedoms of the people. © 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.

Journal

Journal of the American Academy of ReligionOxford University Press

Published: Mar 1, 2018

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