A reader sends in two essays — one from 2014, the other from 2015 — talking about the wide divergence now in public law, particularly around religion. This is really important stuff, re: the future of religious liberty.
For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area–about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.
Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the “great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.
That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for “pluralism” full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.
The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.
This is important. He’s saying that in the not too distant past, most law professors, whether liberal or conservative, shared a view of the importance of religious liberty. Now that has gone. Egalitarianism is what drives the left — and they do not recognize that religious liberty is an important value to defend, even when it contradicts egalitarianism.
DeGirolami draws on an earlier (2014) Harvard Law Review piece by Paul Horwitz, who uses the Hobby Lobby case as an occasion to take stock of the role ideology plays in legal scholarship around religious liberty issues. Excerpts:
Legally, it discusses a key element of the American church-state consensus as it existed until recently: the accommodation of religion. That consensus is aptly summed up by Professor Andrew Koppelman: Religion is “a good thing,” and “[a]ccommodation of religion as such is permissible.” We may debate whether courts or legislatures should be responsible for it, but it is generally agreed “that someone should make such accommodations.” Until recently, there was widespread approval for religious accommodation. That consensus found strong expression in RFRA, which passed just two decades ago with the overwhelming support of Congress. There have been dissenters from this consensus. On the whole, however, it enjoyed “taken for granted” status. In Lessig’s terms, disagreement over religious accommodations was a background issue, not a foreground issue.
The past few years have witnessed a significant weakening of this consensus. Contestation over religious accommodations has moved rapidly from the background to the foreground. Accommodations byanyone — courts or legislatures — have been called into question, including by those who acknowledge that until recently those accommodations would have been uncontroversial. Whether religion is “a good thing” — whether it ought to enjoy any kind of unique status, and whether that status should find meaningful constitutional protection — has itself come up for grabs.
This legal contestation has been accompanied by — indeed, may be driven by — significant social dissensus. Although Hobby Lobby itself involves a controversial social issue — the status of women’s reproductive rights — much of the reason for the shift in views on accommodation involves another contested field in the American culture wars: the status of gay rights and same-sex marriage. The cause of marriage equality, which seems to be a fait accompli awaiting final confirmation from the Court, has come increasingly into conflict with the views of religious objectors to same-sex marriage. Same-sex marriage and its consequences have become a central, foregrounded, socially contested issue. The church-state consensus, drawn into the gravitational pull of this contest, has been put up for grabs as a result. Part III offers some thoughts about the lessons and implications of this debate, both for religious liberty and for the general culture wars that have featured so heavily in the Hobby Lobby controversy.
Remember, this came out a year before the Obergefell decision. The Horwitz comments illustrates what I have been saying for many years, but none of my readers on the left wanted to hear it: same-sex marriage unavoidably affects religious liberty in this country; it’s in the inescapable nature of the thing. Not just lawyers, but the American people held a broad consensus that religious liberty was a good thing. Not anymore. We are living through a critical moment. More Horwitz:
Precisely because these pivotal moments are moments of foregrounded contestation and uncertainty, drawing on the deep divisions that characterize the culture wars on particular issues, the real battle in these moments, within and beyond the law, is over what Lessig calls “utterability.” Moving an issue “on the wall,” so that it forms a legally plausible argument, is only the first part of the game. More important still, if one wants to guarantee or consolidate a victory — particularly one that involves social as well as legal contestation — is to define what can and cannot “be said” over the long run, to define a particular argument as “indecent” and thus unutterable.
This is an old game. It is at least as old as the once-common suggestion that admission to polite legal circles requires one to avow that Brown was wholly correct and Lochner terribly wrong. As with that conventional wisdom, it is always open to recontestation. But the goal — especially when the issue is contested, and much more so when it is both socially and legally contested — is to end the contest, preemptively if possible, by declaring certain arguments unutterable. So it is with the arguments in and around Hobby Lobby. The battle is for the definitional high ground: to define particular religious accommodations, or accommodation in general, as something that will “harm [a] state’s reputation as well as its legal culture”; to define the contraception mandate as part of a “war on religious liberty”; to define accommodations in the area of same-sex marriage as “Gay Jim Crow”; or to describe the Court’s reading of RFRA in Hobby Lobby as utterly beyond Congress’s imagining and liable to lead to terrible consequences. Or — as I have described it here — as an “easy” decision that is easy to fix.
These kinds of efforts are understandable, but deeply ironic. They are most true when they are least needed. No one expends that kind of rhetorical energy, or succeeds in sparking public interest to this extent, on an easy case involving an uncontested social issue. Hence the rhetorical heat of the Hobby Lobby moment. These arguments are inevitably pitched in terms of what the law already and incontestably is — about what RFRA, or prior cases, or the Religion Clauses themselves, “clearly” mean. It is not always evident whether those arguing in such terms believe it. Indeed, it may very well be the mark of a moment of foregrounded social contestation that the participants in the argument do believe that what they are saying is clearly and incontrovertibly right, even when they should know better.
In any event, the truth is otherwise. The important arguments in moments of deep social and legal contestation — including the Hobby Lobby moment — are not arguments about what the law is; they are assertions about what our values should be. They are a battle for the descriptive high ground: for mastery over the terms of utterability. The heated level of rhetoric in and around Hobby Lobby — seemingly everywhere but in Justice Alito’s aggressive but tempered opinion — stands as a recognition of the limits of legal reasoning in such transitional moments. It is an indirect acknowledgment that the answers to the questions posed by such cases — Is religion special? Should we accommodate it? Can we make room for both LGBT rights and religious liberty? How much room is there for pluralism in the marketplace? — lie outside the scope of any statute or judicial opinion, Hobby Lobby included. For better or worse, at least in particular moments of foregrounded legal contestation, everything is utterable and even what was once sacred is up for grabs.
What these pieces mean is that religious liberty is fast becoming a dead letter in American culture, especially legal culture. Pluralism around religious issues has long been considered a fundamental good, though we have naturally contested its boundaries. This country is now moving, and moving quickly, into a legal culture in which most lawyers — from whose ranks we find tomorrow’s jurists — don’t believe that.
In 2012, Dale Carpenter wrote about a survey of over 400 constitutional law professors, asking them for their personal opinions on same-sex marriage, and for their professional opinions about whether the Constitution mandates it (keep in mind that this was three years before SCOTUS judged that the Constitution does mandate it). An astonishing 87 percent of con law profs favored gay marriage, and 54 percent of them thought it was constitutionally required. Carpenter, who supports SSM, commented:
Not surprisingly, constitutional law professors overwhelmingly support same-sex marriage. Indeed, the 87% figure exceeds even what I expected. (Many among the remaining 13% volunteered that they would support the creation of civil unions or other legal protections for gay couples.) It certainly exceeds the percentage of the American people who support same-sex marriage (about 50%, depending on the poll). Indeed, I cannot think of a demographic group that can match this impressive solidarity in favor of gay marriage — including adults under 30, atheists, those with graduate degrees, and even gays themselves (among LGBT respondents in a recent poll, 85% support same-sex marriage, 12% oppose it, and 3% are unsure). This represents a huge shift toward support for same-sex marriage among constitutional law experts, who just three decades ago would have greeted the idea with bemusement if not disdain.
This is massive. Around religion, egalitarianism is smashing pluralism. Carpenter goes on to cite something I’ve heard from lawyer friends:
Support for SSM is a strong cultural and political norm in most American law schools among both students and faculty. Opposing same-sex marriage might be considered a professional disadvantage, either for those seeking tenure or for those seeking promotion.
The point is that law school culture, and professional legal culture, in America is overwhelmingly pro-SSM. Now that SSM is a constitutional reality, that does not settle the issue. If the legal world is overwhelmingly pro-gay, and religious liberty as a shared constitutional ideal is disappearing, then what do you think the future holds for religiously traditional individuals and institutions who, because of their faith commitments, dissent from gay rights orthodoxy?
Religious liberty as a constitutional right only really matters when your religious practice is unpopular. It’s one thing to hold to an unpopular belief, as long as the legal system recognizes that no matter how repugnant your belief may be to the majority, we live in a pluralistic society where some reasonable accommodation must be made for dissenters. It’s quite another when the law won’t protect you because lawyers and judges refuse to recognize that the right meaningfully exists.
This is a big reason I keep banging on about the Benedict Option. We orthodox Christians have to prepare ourselves to pay a heavy price for fidelity to what we hold to be true. Don’t lie to yourself: it’s coming. This is not alarmism. This is reality.
Our side lost the culture war. Now we have to learn to live under indefinite occupation.
UPDATE: If the only comment you have to make on this thread is the same old boilerplate “you don’t have a right to bigotry claim,” save it; I’m not going to post it. Make a substantive comment, or don’t comment at all.