On The Scope of Religious Liberty

By Arpit Chauhan

There’s some interesting back-and-forth going on between liberal and conservative columnists on the extent to which religious freedom should be accorded to individuals and institutions. It’s all, of course, in the wake of the Hobby Lobby case in the Supreme Court, which has made many liberals openly question the legitimacy of the concept of religious liberty. They are against the claim that for-profit corporations should be provided religious exemptions and consider it as an “overly broad construal” of the Religious Freedom Restoration Act (RFRA).

Over at Slate, Emily Bazelon tried to argue for a qualified version of religious liberty. RFRA, she contends, was enacted by the Congress in response to the Employment Division v. Smith ruling in order to protect religious minorities; its invocation by powerful religious organizations only gives religious liberty a “bad name:”

At the time, the ruling read as insensitive to the lack of power religious minorities have relative to the majority. “In law school, I saw Smith as a conservative decision,” Brooklyn law professor Nelson Tebbe remembered when I called him this week. “And when Congress passed RFRA in response, it was about protecting potentially persecuted minorities. But now, in an amazing shift, it’s the most powerful religious organizations in the country that are invoking this law—the Catholic Church and Protestant evangelicals.”

For businesses, when religious freedom comes at a cost to employees or customers, it has to give. That’s the best way to interpret RFRA, and it’s also the best fit for the American tradition of tolerance. This is a country of live and let live. That’s how businesses as well as the government have to function. Hobby Lobby’s owners can object to forms of birth control personally while respecting the rights of their employees to receive it as a benefit. And if a state has the sense to outlaw discrimination on the basis of sexual orientation, then the owners of companies that are in the wedding business can steer clear of gay marriage on their own time, but when their doors are open to the public, then they serve whoever walks in. That’s what religious liberty has to mean in the end. Now let’s get there.

Her main objection is to “fundamentalists” using religious liberty as a shield against “modernity:”

 On these two fronts [same-sex marriage and Hobby Lobby case], religious liberty looks like a shield fundamentalists are throwing up against, well, sexual modernity. They’re not ready to accept same-sex marriage or sex without procreation, and they’re arguing that fundamentalist-owned businesses, as well as individuals and churches, shouldn’t have to.

Ross Douthat of The New York Times (rightly) vexed by her redefinition of religious liberty wrote a very well-argued response:

In a “defense” of religious liberty that’s basically written to reassure liberals that they can support something called religious freedom without conceding an inch to actual-existing dissenters from liberalism’s preferred legal and regulatory regime, Emily Bazelon offers a formulation that hints at why religious and ideological pluralism, so honored in theory, is often hard for people to get behind in practice.

If we take pluralism seriously, the whole point of the concept is to enable groups to “throw up a shield” against the pressure of consensus, and develop and promote alternatives that are rejected by the powerful, or by society as a whole. This is true when the consensus in question is old and rooted and traditional, but it’s also true when the consensus in question likes to describe itself as representing “modernity” (or “progress” or “enlightenment” or whatever loaded, whiggish word you prefer), because vanguard-of-history ideas no less than rooted-in-tradition ideas can turn out to be mistaken, misdirected, immoral, barbaric. (I shouldn’t need to rehearse all of the examples of thoroughly “modern” ideas from the 19th and 20th centuries that today’s liberals quite rightly find abhorrent.) And one of the advantages that pluralism offers to modern societies in particular is a kind of hedge against the progressive fallacy — a way for a culture rushing to embrace a new paradigm to concede, along the way, the possibility that it might be making a mistake, and that even capital-p Progress might benefit from having critics.

National Review’s Yuval Levin concurred with Douthat on this point:

As [Douthat] rightly notes, Bazelon’s article essentially attempts a redefinition of pluralism as a tool of progressive political action rather than a broad protection of the right to dissent. Pluralism is only legitimate, Bazelon suggests, when it is used by progressive dissenters to break the stranglehold of a traditionalist majority; when instead it is used by traditionalist dissenters to break the stranglehold of a progressive majority, it is illegitimate. It is a view of the right of conscience narrowed by its subservience to the progressive understanding of the nature of the liberal society—that is, to a view of history as defined by a series of breakthroughs in the struggle against ancient prejudice.

He also articulated the inherent danger in the progressive idea of “respecting” individuals’ right to believe what they want but disregarding their right to act on them through institutions:

…she wants to argue that while people’s freedom to believe whatever they want can be respected, their freedom to effectuate those beliefs through corporations they may own or other institutions they cooperate in does not deserve a similar protection or regard.

This line of argument is actually an extension of the same progressive vision as that which animates Bazelon’s larger point. It follows in a thread of the progressive intellectual tradition that we have seen resurgent in a big way of late: the argument that society really only consists of individuals and the government, and that the various institutions and power centers that lie between the two are inherently illegitimate and should either be seized or pushed aside when they get in the way of public-policy objectives…

This is obviously a line of thinking that’s very dangerous to the American idea of freedom and to all of our political rights, and it is especially problematic for religious liberty because it interprets the freedom of conscience to be entirely a matter of belief and not of action.

In a subsequent article, he goes yet deeper and contrasts conservatives’ view of societal evolution and individual liberty with the Whig theory of history (which suggests that society is marching “forward” and “progressing” towards greater individual liberation) embraced by progressives. Best words I have read in a lot of time:

[Liberals’] concerns seem moved by a sense that it is somehow hypocritical (or at least paradoxical) to appeal to human rights and civil rights to resist what they take to be the expansion of the orbit of individual liberty and to oppose the explosion of traditional beliefs and practices. The idea of religious liberty exists to protect people from subjection to oppressive dogma, they suggest, so it is therefore absurd for the partisans of what they deem oppressive religious dogma to claim protection behind such liberty…

It seems to me that many conservatives looking at the same pattern of facts react differently because we have a different understanding of the larger story of liberal democracy. We take the arrangement of rights and liberties at the core of the liberal-democratic understanding of society to exist in the service of sustaining the space in which society thrives, rather than of taking society “forward” and away from its roots. There is room in that space for different parts of society to sustain quite different ways of living, and room for people to debate our broader society’s social and political course – which can take different directions at different times in response to different circumstances. Liberty is not the yearned-for endpoint of that story, when we will be free at last from the burdens of the past. Liberty is what exists in that space now, what allows for different people (and groups of people) to pursue different paths and debate different options, and what allows society to address its problems in various ways as they arise. Liberty is not what we’re progressing toward but what we are conserving. It is a means to social, moral, and material progress, but the shape of that progress is itself defined and debated in a dynamic, incremental, and ongoing way in that space in which society lives, rather than existing as an ideal of social justice understood as individual moral liberation and standing always as the criteria against which everything society does must be tested.

Needless to say, I overwhelmingly agree with Douthat and Levin, here. A truly pluralistic society needs to defend the individual liberty of not just minorities, but also that of people who find themselves in disagreement with the over-confident progressive consensus. And, as I argued in my previous post, the freedom of contract that the Hobby Lobby owners want is essential to liberty, not antithetical to it.

Note: The conversation isn’t over yet! Emily will very likely respond in coming days. I’ll update this post, accordingly.

Update: Emily responded and linked to my post. One of her arguments is that corporations should not be allowed to “trump” other’s rights. I’ve addressed that here. 

Feel free to comment and add to the conversation!

 

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