Can political liberalism and religious liberty (accommodation) coexist?

29 Apr

Can political liberalism and religious liberty (accommodation) coexist?

Similar argument made in Smith’s game-changing book Pagan and Christian in the City: “The Supreme Court might soon address this issue. Four Supreme Court justices (led by Justice Samuel Alito) began 2019 by suggesting their willingness to revisit a landmark decision with stark views on this question. In the 1990 case Employment Division v. Smith, a five-justice majority (led by Justice Antonin Scalia) made it virtually impossible to secure, under the First Amendment’s Free Exercise Clause, religious-based exemptions to laws that apply to everyone and do not overtly or covertly discriminate against religion (what lawyers call “neutral laws of general applicability”). The Smith decision presumes a deep tension between religious exercise and the common good. In Smith’s view, the democratic process must almost always resolve that tension. Courts, therefore, almost always deny religious accommodation requests. Justice Alito and his colleagues, however, said Smith “drastically cut back on the protection provided by the Free Exercise Clause,” and effectively invited requests to reverse it.

Revisiting Smith possesses significant cultural salience. Many of today’s progressives, conservatives, and libertarians share — knowingly or not — Smith’s critical shortcoming: a failure to explain why religion in particular and religious exercise in particular should shape the common good, even when they go against the grain of secular visions adopted in law. Revisiting Smith provides an opening to address this shortcoming. The Court should take it, as this oversight puts the American tradition of self-government at stake.

Smith and many elements of the modern American left and right possess this shortcoming because they evaluate the social worth of religious pluralism against some set of liberal values that, in their view, should supersede religious duties. For Smith, the superseding value is majoritarianism: Religious pluralism is good when democratic majorities decide it is worth their solicitude. For progressives, religious pluralism is good to the extent it supports what law professor Mark Movsesian calls “equality as sameness.” Any religious practice, institution, or tradition that understands equality differently is publicly unacceptable. For some conservatives and libertarians, religious pluralism is good simply because self-expression is good. On this view, religious liberty deserves protection simply because self-expression deserves protection — nothing particular to religion here does any work. Finally, for other conservatives who dispute that the common good is served by diverse religious expression, religious liberty is part of the common good only to the extent it establishes a particular religion’s orthodoxy.

It is not surprising that what Stanford’s Michael McConnell called “the most thoroughly liberal political community in the history of the world” would strive to define even religion around liberal ideals — but it is problematic. Liberal democracy, as Alexis de Tocqueville observed, is “particularly liable to commit itself blindly and extravagantly to general ideas.” This is partly because liberalism is, as Samuel Huntington put it in Conservatism as an Ideology, an “ideational” ideology. It “approach[es] existing institutions with an ‘ought demand’ that the institutions be reshaped to embody the values of the ideology.” This “ought demand” is present in social-contract theory, and it poses a particular problem for religious liberty. More often than not, religious exercise is manifested in rituals and institutions that are prior to — and claim to outlast — political liberalism. Reshaping religious exercise around liberal values can therefore dilute religion.

The consequences of dilution are not limited to religion. As our founders recognized, diluting religious exercise poses a problem for political liberalism; self-government presupposes certain moral virtues that religion cultivates and liberalism does not. In a culture that does not appreciate a distinct contribution from religious exercise, engagement with religion, both personally and in public life will erode — along with the corresponding cultivation of religious exercise’s personal and public goods.”

Read the rest from National Affairs (and definitely read Smith’s book Pagan and the Christian in the City).  Smith argues that there has been and always will be a vying for supremacy between the transcendent religion of Christianity and the immanent religion of modern paganism.  Compromises in the name of political liberalism are at best short-lived and at worst preferential towards modern paganism.  Any worldview that finds meaning and purpose and epistemological grounding in this world rather than another will always marginalize the transcendent religionists to the outer periphery of society (it’s a logical necessity of sorts).

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