LIBERALISM AND THE DISTINCTIVENESS OF RELIGIOUS BELIEF.

• Date: 22 June 2020
• Author: Greene, Abners

LIBERALISM'S RELIGION. By Cecile Laborde.* Cambridge and London: Harvard University Press. 2017. Pp. 337. $36.00 (hardcover).

INTRODUCTION

Every person reading this Review will have pondered, and perhaps resolved, his or her religious identity. Some are devout, and their relationship with and faith in God--in a higher power, an extrahuman source of generative and normative authority--is of central importance to who they are as human beings. Others are still theists, of a sort, but their religiosity is more backgrounded in their everyday lives. And yet others are agnostic--open to theistic belief but not yet convinced--or atheist, and denying God's existence. In the United States, today, these religious differences mostly do not lead to significant conflict. But because the devout, the mildly religious, the agnostic, and the atheist usually coexist in where they live and work, some conflict based in religious belief and difference is inevitable. And when the government is involved, such conflicts often take on a constitutional dimension. To what extent may, or must, the state acknowledge God's existence and help theists in their quest to have their religious beliefs be central to their existence? To what extent may, or must, the state adjust its laws to help those for whom God's mandates should take precedence? For both types of question--what we under our Constitution sort under the Establishment and Free Exercise Clauses of the First Amendment--how do we best preserve the religious liberty of those for whom God's will competes with the state's and those for whom this is not the case, and who might be harmed by state action aiding the devout?

When they arise, the conflicts are front-page news items. Consider these, all cases that ended up at the United States Supreme Court--Should the state be permitted to maintain a 32-foot-high Latin cross on a large pedestal at a public highway intersection? (2) Should the state be permitted to use taxpayer dollars to fund private secular but not religious schools? (3) Must the state exempt, from public accommodations anti-discrimination law, a devoutly Christian baker who won't make a custom cake for a same-sex wedding celebration? (4) Must the state permit religious employers to opt out of providing the portion of group health insurance that includes contraception, because the employer deems the contraception an abortifacient? (5)

Constitutional and statutory jurisprudence in the United States has sought a middle ground between permitting the state to achieve secular, sometimes liberal (as in "left of center") political ends, and ensuring robust religious liberty. In Liberalism's Religion, a work of political theory with important intersections with U.S. law and religion jurisprudence, Cecile Laborde confronts the establishment and free exercise dilemmas that arise in a religiously heterogeneous liberal democracy. She offers a middle-ground solution, permitting a small swath for state acknowledgment of religion, and requiring a somewhat larger space for state exemptions for religion from generally applicable law. But she does this with barely a mention of God or theism. This is because, for Laborde, the solution to the dilemmas a religiously integrated liberal democracy face is, strikingly, to drop religion out of the picture. I exaggerate, but only a bit. Laborde's thesis is that "we should disaggregate religion into a plurality of different interpretive dimensions" (p. 2); she claims that "religion is not uniquely special: whatever treatment it receives from the law, it receives in virtue of features that it shares with nonreligious beliefs, conceptions, and identities" (p. 3). She casts her lot with scholars such as Chris Eisgruber, Larry Sager, Micah Schwartzman, and Nelson Tebbe, describing her approach as "liberal egalitarianism" (6) (p. 4; hereinafter "LE"). Thus, on the nonestablishment side of things, the state should (for the most part) not endorse or establish religion, but "only because it does not establish or endorse any conception of the good in general" (p. 5). For example, Laborde contends, "[a] state that enforces a secular comprehensive conception of the good--Rawls's favorite example was a philosophy of Kantian autonomy, but we could think of other comprehensive world-views, such as ecocentrism--would fall foul of liberal legitimacy on exactly the same ground as would a comprehensively religious state" (p. 145). And on the free exercise side of things, the state should (sometimes) protect religion, but "only as one of the ways in which citizens live a life they think good" (p. 5). For example, Laborde says the following situations that might give rise to exemption claims should at least get to a balancing of individual versus state interest (and not be excluded at the get-go), whether based in religion or other deep commitments: "[a] parent sincerely believes that strict discipline--including justly administered mild corporal punishment--serves the moral edification of her child"; and "[a] bakery owner... does not mind serving a gay customer but objects to writing a pro-same-sex marriage slogan on the cake that the customer wishes to purchase" (p. 211). In addition to casting her lot with the LEs, Laborde describes a separate group of scholars, such as Stanley Fish and Steven Smith, as "critical religion theorists" (p. 14), focusing on their claims that there is no stable, neutral governmental approach that does not involve the state's staking its own positions on matters of religion. (7)

But Liberalism's Religion devotes almost no space to an important third position, which contends that religious belief and practice are distinctive and deserving of distinctive legal treatment. This "religion as distinctive" camp--of which I am a member (8)--begins with recognizing that for many religious people, God exists and their faith in and relationship to God is front and center in their lives. For many religious people, belief in God and what follows from that is not comparable to anything, and cannot properly be disaggregated into just another set of beliefs and practices. For the most devout religious people, God's being extrahuman is at the core of their lives and their devotion. How can law take seriously that beliefs and practices not based in commonly shared material-scientific fact animate the lives of many of our fellow citizens? (8 9)

One goal in this Review is to examine whether Laborde's LE is a defensible approach to the role of religion in the liberal state. At the same time, I will examine how well her approach fits with the U.S. constitutional settlement regarding law and religion. Although her book is not meant to be primarily an analysis of U.S. law, Laborde relies on the work of important U.S. constitutional scholars, who are seeking both a political theoretic and constitutional answer to questions of nonestablishment and free exercise. I will claim that a different kind of egalitarianism is the better answer from both political theory and constitutional law: an egalitarianism that does not disaggregate religion and approach it similarly to other beliefs and practices, but rather that takes seriously religion's distinctiveness--its basis in one's relationship to God--and thus that treats religious people and institutions as fully equal participants in our liberal democratic project. I will also challenge a predicate to Laborde's argument, that the sovereign state in a liberal democracy has legitimate authority to draw jurisdictional lines between church and state and thus justifiably resolve the difficult establishment and free exercise issues that arise. My objection to Laborde on this question of authority isn't that the state has no role in drawing church-state lines, and isn't that the state is never justified in so doing; rather, my position is that there is no general argument that backs the state in applying all laws to all persons and institutions. We should see questions of political obligation (is there a moral duty to obey the law?) and political legitimacy (is the state justified in demanding our legal obedience?) as correlative; we should appreciate that there is no valid, general, affirmative answer to these questions; and thus, the state must earn its stripes, as it were, law by law or case by case. This understanding of political obligation and legitimacy undergirds one way of arguing for exemptions. (10)

Part I of this Review will describe Laborde's argument. Part II will offer two critiques of her position--that she is defending the wrong kind of egalitarianism for the religion and state settlement we have reached in the U.S. and that would be best for any liberal democracy; and that her "jurisdictional" argument backing the wholesale legitimacy of the liberal state's role in policing the religion-state settlement cannot be properly sustained.

1. LABORDE'S CASE

   Part I of Liberalism's Religion ("Analogizing Religion") begins with a chapter containing LE's response to three challenges offered by the critical religion theorists. These challenges are (a) semantic--that liberalism has not offered a "stable, universally valid empirical referent for the category of religion" (p. 18), (b) protestant--that "liberal law is based toward individualistic, belief-based religions" (p. 21), and (c) realist--that the liberal state's treatment of religion is either "the naked exercise of arbitrary power" (p. 24) and/or that it establishes liberalism as a kind of religion. Laborde's answer to the semantic challenge is centered in the anti-religious-distinctiveness position taken by the LEs: The state may sometimes protect religious belief and practice, but only because of qualities shared by secular belief and practice; therefore, the LE needn't get embroiled in difficult questions of defining what is and isn't "religion." Her answer to the protestant challenge is to reject the critical religion theorists' premise: In a...