Religious Liberty is a Farce

There is an American tradition of political fuzzy-ism that my mental disposition and emotional sentiments are ill suited for. It is on display in many David Brooks columns, in most of President Obama’s “historic” speeches, and in just about every reference made inside the Beltway to “compromise.” It is also what animates this recent post by Michael Brendan Dougherty at The Week.

In it, Dougherty takes up the issue of religious liberty in the context of Arizona Gov. Jan Brewer’s vetoing of SB 1062, the bill which would have allowed businesses to “legally refuse service to anyone on ‘religious freedom’ grounds.”

The conflict, for liberals, is seen as one between “retrograde religion and the progressive state.” And yet, “in truth” explains Dougherty, the battle is really between two competing values within liberalism itself: pluralism and egalitarianism.

It’s worth noting two things at this point. First, Dougherty also asserts “administrative efficiency” as a particularly liberal virtue. This is not the case. Without here tracing out a lineage of the value many different people in many different positions at many different times have found in “getting things done,” I will simply suggest (uncontroversially I think) that efficiency is a virtue of any modern endeavor. Second, it’s not clear to me that egalitarianism and pluralism or tolerance are in direct conflict with one another. Indeed, respect for people’s idiosyncratic beliefs and preferences, and their right to pursue and or maintain them, seems like a necessary part of any egalitarian vision.

Already then, I’m not sure what to make of the idea that a “monocultural elite class” is inclined to resolve conflicts “in favor of its egalitarian goals” not only because I doubt the conflict truly exists, at least as Dougherty has framed it, but also because, to the degree that there is a “monocultural elite class,” one which presumably has the power to resolve disputes like the one that arose in Arizona, there is little evidence that it is truly committed to “egalitarian goals.”  The apparent equanimity with which “elite” liberals traverse the climate of extreme inequality of circumstance and disparity in opportunity that is the United States would seem to suggest otherwise.

Dougherty focuses on religious pluralism: the tolerated diversity of religious institutions and organizations, each with its own particular rules and norms regarding social interaction as well as the nature of cosmic existence. Apparent even to the casual observer, “religion” includes beliefs and practices which can both align with secular ones as well as directly contradict them. Thus claims regarding the rights of individuals to have control of their own bodies, which ultimately result in arguments in favor of free access to contraception, come into conflict with competing claims by religious communities that this is not the case.

To deal with this conflict, Dougherty claims that partisans of the “egalitarian project define pluralism down.” Or, in my words, resort to political fuzzy-ism. These partisans, having never really believed in the first place that these religious claims should be given special treatment, start walking back their celebratory rhetoric on pluralism.

And I agree with Dougherty on this. When the rubber hits the road, people’s proclaimed exuberance for the “free exercise of religion” is replaced with something much more benign: “You’re allowed to believe whatever you want.” While both of us see the hypocrisy of this though, we favor different ways of resolving it. Dougherty thinks a more robust liberalism should tolerate individuals or organizations with projects contrary to the mission of the state, while I believe that any practice which is deemed illegal shouldn’t be excepted simply because, in a given instance, those doing it do so for “religious” reasons.

Dougherty mentions the issue of peyote in Native American religious observance. People should be allowed to do with peyote what they want, not because they may happen to hold some idiosyncratic beliefs, but because certain commonly agreed to principles about human autonomy demand it.

And here it is important to note that I’m not trying to argue about whether certain forms of discrimination are constitutionally sound or not, or for the actual merits of regulating how wedding cake bakers manage their clientele. Instead, my beef is with political fuzzy-ism, i.e. the idea that certain foundational principles obtain in certain situations, or at certain times, but not in others, and not just because of some higher order rule, but rather because its simply politically expedient to bullshit in this way (compromises, for instance, are all well and good, but only so long as everyone is clear about what was compromised and why, and don’t go making claims after the fact that, somehow, the compromise is itself the logical result of principles which are contradicted within it).

Dougherty maintains that, “Real pluralism preserves the possibility of critique emerging within a liberal state.” Which is true, but also beside the point when it comes to religious liberty. Earlier on in the post Dougherty poises the rhetorical question, “Why even bother with a First Amendment if religion is such a trivial phenomenon?” The answer is: because with in it are contained both a right to speak as well as too freely associate. The possibility of emergent criticism originates there. Whether or not that criticism is religiously motivated, or predicated on religious dictates, doesn’t matter.

The piece ends with the suggestion that “Legislators and jurists would do best to retain these two essential liberal values, by finding solutions that deftly avoid setting them against each other.” But Dougherty never shows why either of these “essential” liberal values is actually in conflict, nor why emergent critique or personal belief and association are being sacrificed for “administrative efficiency” or a greater egalitarian project.

Rather, as seems much more plain and likely, beliefs and practices which are dressed up in religious justifications and traditions and are for that reason accommodated when benign are simply not acceptable when they actually conflict with secular values and principles. In other words the idea of “religious liberty” is a ruse, and one which is exists because of historical accident and is casually maintained because it’s politically expedient to let people continue to believe that morality is not something the state is interested in regulating.

As Dougherty notes, religious tolerance in the United States is predicated on the idea that “if the government were to burden the conscience of religious believers, it must show evidence of a compelling interest and a lack of alternatives for achieving its goal.” It is, of course, members of the government who determine what a “compelling interest” is, as well how to most optimally achieve it. Judges, many of whom are elected, the rest of which are appointed by other people who are elected, decide these matters by marshaling together legal precedent, statutory language, and pre-existing beliefs about how the universe should be. They are agents of the state, even if their professional ideology pre-disposes them to tread carefully and act conservatively.