It is a privilege, and also a great pleasure, to receive these eight thoughtful reviews of Religious Freedom in an Egalitarian Age. Two themes seem to run through the reviews. First, there is curiosity about the role of reasons in the book’s method. Several reviewers wonder whether reason-giving can help to resolve tensions between traditional religion and civil rights law. Second, there is interest in the concept of religion that the book employs, and in particular whether it serves to replicate power imbalances between majority and minority faiths. I share the intuitions driving both themes and to a considerable degree I would like to simply adopt them here. Yet I also will explain why neither inquiry undermines the main argument of the book. Finally, I will suggest that the two themes interact in interesting ways. In the methodological section of the book, I respond to legal scholars who have been arguing not only that decision-making on questions of free exercise and nonestablishment is often unreasoned, but more profoundly that such decisions are necessarily patternless, conclusory, or ad hoc (210 n1). Taking that view seriously, I contend that reasons can be given for particular conclusions in this area of constitutional law and politics, and that interpretive decisions may be justified or warranted. Reasons do some work on this understanding, and that is enough to defeat the strongest forms of skepticism. Nothing about that method is designed to eliminate conflict (10, 36, 40, 199). At least two forms of disagreement can and certainly will persist: arguments that opposing views are unwarranted, and arguments that opposing views are mistaken, though they may be warranted (30). Social coherence is not designed to “generate” solutions in a mechanical way, and it therefore cannot eradicate disagreement over those solutions. Arbitrariness within the worldview of any individual can be eliminated, but rational disagreement among individuals is a fixed feature of any constitutional democracy (10, 36, 40, 211n7; Schwartzman 2004). Reasonable disagreement is not only possible but unavoidable. The same is true of unreasoned disagreement. Some of those conflicts can be managed through processes of legal decisionmaking, while others must play out through political dynamics. In any event, the book nowhere expresses a “faith in rationalism that can resolve the ‘current impasse between religious freedom and equality law’” (McBride). I do suggest in a short afterword that providing explanations for government decisions might have beneficial effects. Giving people reasons for official actions could conceivably lower the temperature of debate, as compared to imposing outcomes that are conclusory or ad hoc (199). I still believe that to be true (at least in the long term—I also acknowledge that government explanations may actually exacerbate division in the near term). But regardless, my belief that giving reasons for government decisions may have benefits is not necessary to the argument of the book. My central point is more modest, namely that reasons can be offered for decisions on difficult questions of religious freedom and equality law even if they often are not, and further that reasons can make a difference in decision-making even if many or most outcomes are overdetermined by power politics and brute economics. In his perceptive review, Richard Amesbury draws just the right kind of distinction between a rejection of skepticism about the possibility of giving reasons, which he supports, and a faith that there exists a formula for resolving these disputes, which he doubts. Yet he seems to think that I would disagree.1 Part of the difficulty here might be that Amesbury demands more of a “method” than I do. He defines the term as “an impartial procedure which, if consistently followed, will yield the same conclusions.” Somewhat similarly, Cécile Laborde expresses a worry that coherence theory cannot generate a single set of reasonable principles. But social coherence is not a method in that sense, and it does not claim to be one. I myself find the approach to be useful or handy for structuring the substantive arguments of the book (8, 49). But social coherence provides only a demonstration that conclusions can be backed up with reasons, not a formula for agreement. Furthermore, Amesbury is right to say that whether an individual finds the reasoning of someone else to be persuasive depends as much on whether they are convinced of the importance of their arguments as it does on whether they believe those arguments hang together. That is one of the reasons why the social aspect of social coherence is so critical—because often it is not through logical argumentation that individuals come to be convinced by others, but rather through the efforts of social and political mobilizations that operate not only with reasons but also through images, narratives, and personal appeals. Roberto Blancarte observes in his own lively review that “most rationality drives through values, affections, or a certain idea of the past.” Consequently, there can be multiple, conflicting interpretations of precedent that nevertheless are justified. Blancarte gives the example of the contradiction that I identify between Locke v. Davey, where the Court upheld a state decision to exclude students studying to be ministers from a general scholarship program, and Rosenberger, where the Court invalidated a state decision to exclude religious publications from a student activities fund.2 In the book, I suggest that Rosenberger was wrongly decided (189). But why, he asks, could someone not conclude instead that Locke v. Davey was the mistaken decision? Of course, that is possible. In fact, as Sarah Barringer Gordon trenchantly observes, the Supreme Court recently handed down Trinity Lutheran, where it invalidated a state policy that excluded churches from a funding program for school playgrounds.3 The Court distinguished Locke v. Davey by saying that its holding was specific to training for the clergy and other intense religious activities. To my mind, Trinity Lutheran was regrettable, as Gordon reports. I have reasons for that view, of course, but people who support the decision have their reasons as well. For me the lesson of such disagreements is not that it is impossible to credit reasons for either position, but rather that support can be given for both. Moreover, reasons can do some work in convincing others. Yet because I understand and embrace the reality—described so eloquently by Amesbury, Blancarte, and McBride—that reasons alone do not drive much decision-making, I am closer to the skeptics in methodology and temperament than it might at first appear.4 In the second theme, a few reviewers wonder about the concept of religion that is used in the book and in particular about the predominance of Christianity in examples of conflicts between religious traditionalism and equality law in the United States. In his fascinating review, for instance, Christoph Baumgartner reports that equality discourse in Europe “is selectively positioned against religious freedom, not to strengthen the rights of LGBT people, but to foster an anti-liberal cultural homogeneity and nativist forms of nationalism.” He also reminds us that deploying specific concepts of religion and religious freedom can hamper the ability to understand unfamiliar forms of religiosity. David Harrington Watt keenly observes something similar, though he is writing from a domestic perspective. He notes that “conservative Christians’ . . . demands have shaped what it is that Americans are talking about when they discuss ‘religion.’” Religious Freedom in an Egalitarian Age focuses on Christianity simply because that tradition figures centrally in contemporary American conflicts between religious traditionalism and equality law. Consider Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which the Supreme Court of the United States will soon decide.5 There, an evangelical Protestant who ran a bakery refused to provide a wedding cake because of his religious objection to a couple’s same-sex union. Yet one might still think it a weakness of the coherence method that it revolves around cases that happen to capture the attention of courts and commentators, thereby inviting bias toward naturalized or normalized forms of religiosity. If the reviews fail to raise any examples of places where the coherence approach leads the book astray, they nevertheless are right to identify it as a danger more generally. Critical perspectives are absolutely necessary to any constructive effort. My conviction is that the coherence approach is perfectly amenable to critical work of that sort. In a separate reply to another set of critics, I assess the work of critical theorists of religion (Tebbe, forthcoming, addressing Asad 1993, Hurd 2015, and Mahmood 2016, inter alia). These writers are correct to identify just the sorts of dynamics and discourses around the categories of religion and religious freedom that are highlighted here. Again, normative work on religious freedom and equality law requires—it cannot succeed without—diagnostics that keep it from simply reproducing majoritarian biases. Theorists must not fail to ask, as Watt puts it, “whose religious rights are defended most zealously in the contemporary United States.” Lawyers are not immune to improper influence in this regard, as James McBride rightly insists. Yet I also argue that critical work on religion has relevance for constructive argument on questions of free exercise and equality law, and vice versa. In fact, these eight reviews themselves often trade on normative impulses. For example, Baumgartner argues in two places that “particular conceptions of the good” are driving the actions of state institutions and officials. That is a worry that is indebted to political theory and can be articulated in the language of constitutional law. Tentatively, I want to suggest that critical writing in the academic study of religion can benefit from a theoretical apparatus that can support the prescriptive impulses that seem to be motivating so much of this valuable work. This is where the reviews’ two themes intersect and where we see some of the most creative reactions to the book. In a wonderfully evocative essay, Janet Jakobsen notices that religious freedom enjoys a privileged place in legal discourse, while sexual freedom is disfavored or disregarded altogether. After identifying this problem, she suggests that social coherence offers a pathway toward the construction of a solution. By analogizing sexual freedom to religious freedom, with its elevated place in legal doctrine and discourse, we might come to recognize that conflicts between religion and equality law feature liberty interests on both sides. At least where objections to sexual freedom are animated by religion, on the one hand, and where sexual freedom is itself connected to commitments of conscience, on the other hand, sexual freedom “is not just about sex, it is also about religion.” Reasoning in this way, we can begin to understand that “the claim for recognition of the potential moral good of sexual practice is a claim of membership in the universal community of free beings.” Jakobsen chooses as her example the case of public officials, like Kim Davis, who object on religious grounds to administering same-sex marriages. While McBride wonders how exempting Davis could fail to communicate disregard for LGBT citizens, Jakobsen suggests that accommodating her might well be possible under conditions like the ones I outline in the book—so long as the exemption is accompanied by a recognition of the moral value of sexual freedom. Conditioning religious exemptions for some citizens on recognition of other citizens’ countervailing interests in sexual freedom might even allow for greater religious accommodation in situations like Davis’s, “because claiming religious freedom would not involve symbolic denigration of others’ freedom.” I am interested to know more about how this would work in practice. But in principle, Jakobsen is absolutely right to conclude that “equality in freedom, rather than a freedom that stands in opposition to equality, is one way to interpret religious freedom in an egalitarian age.” Is social coherence flexible enough to support this kind of analysis? Definitely. There is nothing inherently atavistic about the approach (29)—it can be deployed to build creative prescriptive arguments based on powerful insights like Jakobsen’s. In fact, some might have the opposite concern, namely that the approach is too flexible, that it can be made to serve virtually any end. In chapter 2, I defend against the objection that it could bolster any worldview, no matter how reprehensible (43–44). Yet although the approach has limits, it can be used to justify a wide variety of critique and creative construction. Those who disagree about particular outcomes can argue for alternatives, and they too will have significant latitude to claim the support of principles and precedents. That is how interpretive argument works. A conversation will ensue, and its participants will try to convince one another. They will also reach beyond simple argument, mobilizing political and social resources to their cause. Sometimes legal doctrine will shift in response, and sometimes public opinion will too. Other times, disagreements will persist, assuming relatively predictable patterns. My methodological ambition is just to show that reasons can support conclusions in this consequential area of constitutional law and that reasons can have some impact. My substantive ambition is to promote resolutions of conflicts between religious freedom and equality law that maximize full and equal citizenship for everyone. REFERENCES Asad, Talal. 1993. Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam . Baltimore, MD: The Johns Hopkins University Press. Hurd, Elizabeth Shakman. 2015. Beyond Religious Freedom: The New Global Politics of Religion . Princeton, NJ: Princeton University Press. Laborde, Cécile. 2017. Liberalism’s Religion . Cambridge, MA: Harvard University Press. Mahmood, Saba. 2016. Religious Difference in a Secular Age: A Minority Report . Princeton, NJ: Princeton University Press. Google Scholar CrossRef Search ADS Schwartzman, Micah. 2004. “ The Completeness of Public Reason.” Politics, Philosophy, and Economics 3: 191– 220. Google Scholar CrossRef Search ADS Tebbe, Nelson. Forthcoming. “ Conscience and Equality: A Reply to Critics.” Journal of Civil Rights and Economic Development . Footnotes 1 For example, Amesbury considers it a weakness of my argument that “coherence seems to be a necessary but insufficient dimension of legal reasoning.” But I entirely concur with that statement, which does not undermine the argument I intended to make. 2 Locke v. Davey, 540 U.S. 712, 721 (2004); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 837 (1995). 3 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017). 4 Laborde asks whether there is a tension between my political theory, which mostly denies that religion ought to enjoy special solicitude, and my coherence approach to legal authorities, which mostly assumes that religion does occupy a special place in constitutional law. Her point is perceptive. In the book, I simply assume that religion ought not to be special, because arguing for that proposition is outside the scope of the project. But in a parallel reply to critics, I sketch the outlines of a substantive theory of religious freedom that accounts for existing features of constitutional law (Tebbe, forthcoming). Laborde’s fantastic new book is helpful in this regard (Laborde 2017). 5 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 137 S.Ct. 2290 (2017) (granting cert.). © The Author(s) 2018. Published by Oxford University Press on behalf of the American Academy of Religion. All rights reserved. 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Journal of the American Academy of Religion – Oxford University Press
Published: Mar 1, 2018
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