Against martyrdom: a liberal argument for accommodation of religion.

• Author: Horwitz, Paul
• Position: Religious Liberty and the Free Society: Celebrating 50 Years of 'Dignitatis Humanae'

INTRODUCTION

The debate between liberty and equality is at a particularly fierce, fertile, and interesting pass in the United States. Like many such conflicts over irreconcilable fundamental values, this struggle is always present but not always prominent. Often, it merely ticks away in the background while other issues--political, doctrinal, or theoretical--take center stage. From time to time, however, it vaults into the foreground, recapturing the attention not only of the academics in their hives, but of public commentators and the public itself. This is such a moment. (1) At the heart of the current conflict are two of the most prominent repeat players: religion, or religious groups, and the state.

Equality, and the power and legitimacy of the state to ensure it, are currently and decidedly in the ascendant. (2) On the other side, religious accommodation--as a fact and as a concept--is in eclipse, vulnerable both politically and intellectually. (3) The ranks of vocal supporters of religious accommodation, which sometimes swell to include the vast majority of representatives of the political branches (4) and liberal public and academic commentators, (5) have thinned out, and the lines of political division on this issue have become more substantially partisan and religious. (6) Stock in accommodationism is selling fast and cheap.

Two aspects of this period of realignment are particularly striking. The first is the relative absence of pluralism from the discussion. That it exists as a social fact, as a "claim of descriptive sociology [ ] that the sources of social organization are many, not one," is not in question. (7) Nor is there any disagreement with the standard

liberal view that the presence of "a variety of reasonable comprehensive doctrines and conceptions of the good ... is the very condition of modern constitutional democracies." (8) But normative arguments for religious and other forms of pluralism--strong positive claims that we should "allow [ ] a plurality of associations, cultures, religions, and so on, to follow their own various norms" (9)--are not major presences in the current discussion.

This is hardly inevitable. The Declaration on Religious Liberty, Dignitatis Humanae, whose fiftieth anniversary we mark here, was deeply influenced by both descriptive and normative views of moral and religious pluralism, and specifically by the American experience of religious pluralism (or at least an idealized account of that experience). (10) But that sort of argument has not featured much in a debate that is so centered on a stark opposition between liberty and equality that any tertium quid is forgotten or ignored. To the extent that pluralism figures in the current discussion, it is more as a technical problem: something to be acknowledged and certainly not reviled, but above all to be managed. (11)

The second, and clearly related, point of note is the dominance on the ascendant egalitarian side of the debate of a particular strand of liberalism. Jacob Levy calls it a "rationalist" strand of liberalism, one that is "committed to intellectual progress, universalism, and equality before a unified law, opposed to arbitrary and irrational distinctions and inequalities, and determined to disrupt local tyrannies in religious and ethnic groups, closed associations, [and] families." (12) With this form of liberalism in the driver's seat, it is unsurprising that normative pluralism doesn't feature much in the debate. Nor is it surprising that the focus is on the centrality and inevitability of state power (13) and its capacity to regulate public interaction and alter private attitudes. (14)

Any debate so stark and polarized cries out for, and inevitably will beget, alternative perspectives. The conflict between liberty and equality in the late 1980s and 1990s resulted in a minority literature rich in normative pluralism and communitarianism. Today, it is beginning to produce writers eager to reengage with the value of pluralism, both as a distinctive approach of its own (15) and as a reminder that there are other resources within liberalism besides the rationalist strand. Those resources include a pluralist liberalism that is "skeptical of the central state and friendly toward local, customary, voluntary, or intermediate bodies, communities, and associations," (16) and that emphasizes the importance of "recognizing a plurality of norms regarding how best to live, especially considering the tenuous grounding the state has to insist on its position at all times." (17)

Drawing in part on that literature, and in sympathy with the desire to reaffirm the importance of religious freedom and the accommodation of religious groups and practices without opposing or disdaining liberalism or progressivism altogether, (18) this Article offers a liberal argument in favor of the legal accommodation of religion, including the accommodation of illiberal religious groups and practices. Although my own work is substantially pluralist in orientation, (19) the argument here is intended to appeal directly to more "rationalist" liberals. (20)

The main argument here, as I make clear in a moment, is narrow. But the subjects touched on are somewhat broader. One subsidiary goal of this Article is to argue, albeit more implicitly than explicitly, that the current discussion of religious accommodation, and our culture wars more broadly, are missing a sense of pluralism--religious and otherwise--as a positive value to be welcomed, not a problem to be managed. The second is to spotlight and respond to a pair of essays by Mark Tushnet. Along with Dignitatis Humanae itself, these articles are the inspiration, or spur, for this Article. Written a decade and a half apart, taken together, the essays provide one of the more interesting arguments against the accommodation of religion. The arguments Tushnet makes there deserve serious attention from those who support religious accommodation on theological or religion-friendly, as opposed to liberal or religion-neutral, grounds. (21)

Nonetheless, the argument made here is not theological. Nor, although I understand it to be underwritten by a normative commitment to pluralism, does it require the reader to share that commitment. It is a pragmatic argument, consistent with general liberal views, about the benefits of religious accommodation and the costs--including the unintended costs to equality--of the refusal to accommodate. It is as much consequentialist as normative.

The argument, in brief, is that refusals to accommodate that arise from opposition to, or concerns about, illiberal groups or practices may actually reinforce rather than reduce illiberalism. More specifically, they may do both. Refusals to accommodate, and the strong public insistence that religious communities comply strictly with and, in Nancy Rosenblum's words, follow the "logic of congruence" with liberal norms, (22) may cause some groups, or some members of those groups, to alter their beliefs or conform their conduct to liberal norms of equality and nondiscrimination. It may also push some religious individuals and communities to become more strongly attached to illiberal beliefs and practices.

One might still conclude on consequentialist grounds that the game is worth the candle. As long as the number of "liberalized" groups or individuals exceeds the number of "illiberalized" groups or individuals, the refusal to accommodate is still both justified and salutary. But part of the cost that must be factored in here is the intensity of the illiberal group's (re)attachment to illiberal beliefs and practices, and the degree to which that group becomes more insular, more disconnected from the wider liberal society. The more emphatic and categorical the refusal to accommodate, the more likely it is that some groups or individuals will become more polarized and more insular in relation to the larger society. To use a phrase that has figured in recent discussions among and about traditionalist religious groups, they will turn to the "Benedict option," "ceas[ing] to identify the continuation of civility and moral community with the maintenance of American empire," and "keen[ly] ... construct[ing] local forms of community as loci of Christian [or other religions'] resistance against what the empire represents." (23) That result, for both practical and normative reasons, is something many liberals want, or should want, to avoid.

The value of this argument does not lie in its novelty so much as its timeliness and, I hope, its acceptability. It is not novel, although it is more uncommon in the legal and political literature on religious accommodation than one would expect. (24) In a sense, that is part of its value. Arguments that government efforts to tame or suppress illiberal groups can reinforce or exacerbate illiberalism, sometimes to a dangerous degree, are familiar and accepted in other areas of law and policy. That provides some basis to find it plausible here, and thus to change the tenor, or lower the temperature, of the conversation on religious accommodation. Importantly, it offers grounds for liberal acceptance of accommodation, at a time when the conversation seems to have polarized between religious conservative arguments for accommodation, on the one hand, and liberal or progressive resistance or antagonism toward accommodation on the other.

Some discussion of the limited scope of the argument is necessary. First, this is a liberal argument for religious accommodation, not a theological argument--although, as I have noted, I will address Tushnet's theological arguments against accommodation.

Second, by "liberal" I mean something general and colloquial, not technical and philosophical. In the next Part, I offer some specification of what "liberalism" entails, drawing on some of the standard liberal literature. Still, for the most part I have in mind the general views, values, and modes of thinking of the...