RELIGIOUS FREEDOM IN EGALITARIAN AGE. Nelson Tebbe. (1) Cambridge, Mass.: Harvard University Press, 2017. Pp. x + 288. $39.95 (Hardcover).
One of the few widely shared views regarding contemporary clashes between law and religion is that we are in a state of "deep contestation," (3) as increasing degrees of social, political and legal polarization have become the norm. (4) Concern over this increasingly deep social division and political polarization has been particularly salient of late. Thus, the admixture of the constitutional recognition of same-sex marriage, (5) litigation surrounding the Affordable Care Act's "contraception mandate," (6) and claims for religious accommodation from laws that violate faith commitments has created a highly fraught legal environment. And this has led scholars to worry that disagreements have become so deep that there may not even be a way for those who differ to reason about these matters collectively. In the somewhat depressing words of John Inazu, "These deep and often irresolvable differences call into question our constitutional aspiration for 'a more perfect union,' our national metaphor of a great 'melting pot,' and the promise of our nation's seal, E pluribus unum ('Out of many, one')." (7)
Given the state of affairs, it is not surprising to now see scholarly works that not only attempt to resolve conflicts between law and religion, but that also aim to provide a method for how those from deeply divided viewpoints might reason about these conflicts. (8) Nelson Tebbe's recent book, Religious Freedom in an Egalitarian Age, is one such work and a masterful one at that. As Tebbe notes at the very outset of his book, "[m]any American[s] sense that they are living through a period of intense conflict between religious freedom and equality law" (p. 1).
The book itself aims to provide a method for reasoning about these deep conflicts, what Tebbe refers to as social coherence. Drawing from John Rawls's reflective equilibrium method, Tebbe asks participants to reason about concrete dilemmas between religion and equality, and then compare those resolutions about concrete dilemmas to build a coherent vision for addressing these types of conflicts. Tebbe then engages in this very type of reasoning to address a wide range of conflicts between religion and equality, including clashes over anti-discrimination laws in areas such as public accommodations and employment as well as debates over religious exemptions for public officials and government support of religion and religious institutions.
The book itself is extraordinary in its ambition, erudition, and scope. Tebbe covers vast areas of constitutional law seamlessly, bringing the reader on a rich journey through the multiple spheres of law, politics, and moral reasoning relevant to the topics addressed in his book. This is, in many ways, far from surprising. Tebbe is one of the most talented and highly regarded experts in the law and religion field, and Religious Freedom in an Egalitarian Age reflects that expertise. The book is a must-read for all those who are working through questions of religious freedom, equality, and the relationship between church and state. Tebbe's proposals for how the law ought to resolve these tense conflicts reflect his wisdom, knowledge, and ability to identify a "careful approach" that "appreciates the power of arguments on both sides" that "can provide a stable, defensible foundation for the future of both free exercise and anti-discrimination law" (p. 5).
This review aims to assess Tebbe's ultimate success in this ambitious project: that is, has Tebbe provided a useful and successful method for reasoning about these "intense conflicts" between religion and equality? All told, the review identifies some challenges for Tebbe's method. To be sure, no attempt to navigate such conflicts will be immune from criticism and Tebbe's framework has much to commend. The comments below therefore represent some questions for Tebbe's framework and
some thoughts on where more discussion might be necessary to shore up the social coherence method as articulated by Tebbe.
PLURALISM, SKEPTICISM, AND THE PURPOSE OF SOCIAL COHERENCE
Tebbe begins Religious Freedom in an Egalitarian Age with an explanation of the motivation behind the project. Tebbe notes the convergence among law and religion scholars that the doctrine is fundamentally "messy"--that is, legal decisions and choices related to religious freedom flow from a contorted amalgamation of multiple considerations, values, and principles. And these different pieces to the religious freedom present, at least superficially, a broader picture of irrationality and indeterminateness to the doctrine.
In highlighting this convergence, Tebbe draws upon the work of two groups of scholars, groups he terms "pluralists" and "skeptics." He classifies pluralists as those "who embrace the idea that multiple values are needed to account for correct judgments across the entire range of religious freedom cases" (p. 7) and includes such scholars as Kent Greenawalt, Marc DeGirolami, Alan Brownstein, Steven Shiffrin, Paul Horwitz (p. 203 n.17), and, apparently, Tebbe himself. (9) But pluralism, in its use of different values, considerations, and principles, explains Tebbe, has become vulnerable to the growing criticism of skeptics across the political spectrum. As described by Tebbe, "Skeptics have been arguing not only that the jurisprudence on religious freedom is messy... but further that the law is inherently or necessarily patternless" (p. 5). Tebbe is quick to note that these skeptics do not advocate discarding the prevailing religious freedom enterprise, but instead encourage the law to "muddle through, seeking modus vivendi solutions without any hope of principled results" (p. 6). In this way, Tebbe notes that, ultimately, the proposals of skeptics and pluralists for addressing "ground-level conflict" are quite similar--employing a significant dose of pragmatics and "all-things-considered judgements" (p. 7)--even as they derive from somewhat divergent philosophical underpinnings. But this convergence, according to Tebbe, cannot mask the fundamental challenge of skeptics to pluralists. If a pluralist approach to religious freedom is to truly thrive, it must answer the charge of irrationality. And it is to this project that Religious Freedom in an Egalitarian Age is, in large part, dedicated.
Thus, Tebbe dedicates the first section of his book to outlining his methodological approach that is geared to meeting the challenge of skepticism--that is, the inability to systemize religion clause doctrine in any meaningful and principled way. That method, which Tebbe first explored in a previous essay, (10) is social coherence. Tebbe describes this first section as "relatively independent from the rest" of the book in that the latter sections can be understood independently (p. 13), but it is ultimately essential to appreciating Tebbe's contribution to ongoing religious freedom jurisprudence. On Tebbe's account, the best way to meet the existence of multiple and competing values at stake in religious debates is to employ social coherence, which asks us to mine our intuitions about how to navigate these plural commitments in concrete cases and then reason, in a deliberative fashion, from those concrete intuitions so that they increasingly fit together.
Social coherence is thus a method that both utilizes a mode of reasoning that encourages thinking through a prism of coherence and also emphasizes the role of social dynamics in this process of reasoning. Noting his indebtedness to John Rawls's theory of "reflective equilibrium," Tebbe explains that when people encounter new moral questions or dilemmas, "they evaluate their convictions by asking whether they fit together with each other" (p. 26). This process of assessing the fit of a person's various commitments is different than reasoning directly from first principles and then applying them to concrete circumstances. Instead, it requires vacillating between considered judgments about concrete circumstances and general principles, thereby reasoning in a manner that increases the degree of overall coherence to our intuitions. In Tebbe's words, this method can help explicate the overall rationality of pluralist judgments by "[o]scillating among judgments and principles," thereby giving "legal actors a way to reason through problems that are highly intricate" (p. 30). Tebbe sees this approach as particularly useful in clashes between religion and equality, which implicate a wide range of considerations and values. In this way, Tebbe's method is an attempt to rehabilitate a pluralist approach to these legal dilemmas.
Tebbe is careful to note a number of features of a coherence approach to legal dilemmas. The...