Religion and social coherentism.

• Author: Tebbe, Nelson

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics ' prudential way of working on concrete problems actually shares much with the methods of others. Part II then argues that the best defense of religious freedom jurisprudence begins with an approach known as coherentism. In political philosophy, coherentism refers to the way legal actors compare new problems to existing principles and paradigms in order to identify solutions that are justified. The Essay then extracts and emphasizes the social aspects of this basic account. It contends that arguments about the meaning of the Constitution appropriately reflect social and political dynamics. The resulting approach, social coherentism, describes a powerful method for generating interpretations of the first Amendment that are justified, not conclusory. This matters at a moment when some defenders of religious traditionalism are suggesting that principled decisionmaking on questions of religious freedom is impossible, and therefore that such issues should be largely surrendered to political processes.

INTRODUCTION

Writing on religious freedom often begins with an observation that the field is in crisis. (1) Scholars regularly say that the doctrine is deeply confused and has not been successfully rationalized by anyone. Even some judges have critiqued the law of religious freedom as unavoidably messy, (2) or they have predicted that systematization will continue to elude the courts. (3)

One response to these assessments has become influential. Skeptics are arguing not only that the existing law is confused, but that decisionmaking in the area is necessarily rudderless. (4) They believe that deep and persistent conditions of western thought doom religious freedom jurisprudence to contradiction, and that no defensible theory of religious freedom is possible. (5) Their contention that contemporary implementation of the Religion Clauses is unavoidably incoherent represents a significant obstacle to religious freedom jurisprudence today. A response is needed, and this Essay begins work on the most promising candidate.

Part I acknowledges that the skeptics' critique has substantial force. It focuses on an example, namely the skeptical attack on pluralist theories of religious freedom. Pluralists argue that the religion provisions of the First Amendment incorporate multiple values, such as individual autonomy to practice religion without government control, equality among religions and between religion and nonbelief, the separation of church and state properly interpreted, government agnosticism on questions of religious truth, and so forth. (6) Unlike some others, pluralists argue that these values cannot be reduced to any single principle or rubric. (7) Pluralism represents probably the leading perspective on religious freedom today--or certainly a common one. (8) I have applied a polyvalent method in previous work. (9)

Skeptics argue that pluralism cannot avoid significant indeterminacy of outcomes. Moreover and relatedly, they argue that it cannot resolve disputes without resorting to conclusory argumentation or ipse dixit-ism. And therefore they believe that decisions taken by pluralists will necessarily be unwarranted. The argument has power because the complexity of decisionmaking in this area does seem to allow for a range of conclusions in many cases. Of course, this is a problem for much of constitutional law, and for law generally, but it is especially salient in religious freedom law at the moment. And although the skeptics levy their critique against all forms of religious freedom theory, it has particular force as applied to the pluralists, both because those theorists admit greater complexity than others, and because they represent probably the most prevalent approach.

It is striking, and not usually noticed, that pluralists and skeptics actually employ similar ways of working on ground-level cases: both carefully assess the reasons on either side of an issue before making a judgment, both take into account a wide range of considerations, and both avoid deducing outcomes from singular formulas. (10) And this Essay envisions a method that is not entirely dissimilar. What distinguishes skeptics is their critical evaluation of this process. They believe that it cannot generate legal principles, and that it can only result in haphazard solutions.

So far, pluralists have not formulated an entirely satisfying answer to the skeptics' critique. Kent Greenawalt, who is among the leading pluralists and a primary target of skeptics like Steven Smith, has said only that in hard cases reasons run out. (11) In those cases, Greenawalt chooses a particular outcome because the reasons behind it simply "seem" stronger than reasons supporting the alternatives. (12) Part II aims to supplement that response. It argues for an approach to religious freedom that is capable of generating conclusions that are rationally justified, even in hard cases. To defend against the skeptical attack, no more is required--it is not necessary to go further and show that determinate outcomes can be identified in all cases. (13)

The best defense of religious freedom begins with coherentism. Inspired by moral philosophy, where it is common if not mainstream, coherentism offers an account of how people properly resolve new problems by comparing them to existing cases and principles. (14) When constitutional actors encounter a new question or situation, they ask whether a given result fits together with their considered convictions, both about correct resolutions of more familiar cases and about abstract tenets. Working back and forth among these elements, they seek a solution that achieves coherence. If they succeed, then the solution qualifies as warranted.

This Essay articulates a version of reflective equilibrium or coherentism that offers an attractive alternative to skepticism. Coherentism also rationalizes and justifies what many theorists are already doing in practice. Moreover, it has a recognized application to law--it shows how constitutional determinations, in particular, can count as morally warranted. It has conceptual bite because (and insofar as) it defends against the skeptical claim that conclusions on questions of religious freedom law will be necessarily conclusory or ad hoc. Though the Essay offers only a method for thinking about these disputes, and not a substantive theory of religious freedom, it needs to do nothing more to accomplish its purpose, which, again, is to show that thoroughgoing skepticism regarding religious freedom is wrongheaded. (15)

Underemphasized in the philosophical literature on coherentism, however, is a full appreciation for social and political dynamics. Citizens reason through problems in a situated way. Paradigms and precepts, to which actors compare the conflict before them, are made salient by cultural developments, which also limit the range of appropriate outcomes. Especially for constitutional law, these influences are salutary because they work to vindicate a commitment to democratic responsiveness. They also help to limit the problem of indeterminacy. So while a social aspect may not be appropriate for all fields of inquiry--scientific disciplines, for example--it should be included in constitutional methods.

Social coherentism does not eliminate unpredictability of outcomes, however. Nor does it offer a moral ontology--an account of what is real or true. Nor does it count as a theory of moral epistemology--of how we know what is good or true. (16) It has a different and more modest aspiration than any of these, namely to defend a common way of solving legal problems. It argues that complex decisionmaking on questions of legal interpretation can count as justified, where "justified" means backed by reasons, rather than conclusory or ad hoc. A moral conclusion that is justified or warranted (17) has persuasive power because of the reasoning behind it. Sometimes arguments must be confronted, even though power politics and private interests are also at play, simply because they carry force. Convincing each other, not just contestation, becomes necessary.

And social coherentism does generate criteria for critiquing some judgments. If a legal conclusion cannot be harmonized with principles or precedents that are authoritative within constitutional practice, then it fails to satisfy social coherentism and it is unwarranted. Below, Burwell v. Hobby Lobby Stores, Inc. (18) serves as an example of a decision that was discontinuous with the Court's precedent and therefore could not count as morally or legally justified. (19)

Of course, people who use this approach will still disagree about whether a particular outcome is defensible or not. This is a feature, rather than a defect, of the approach. Defenders of Hobby Lobby have arguments that they believe make the Court's conclusion consistent with precedent and principle. Conclusions can be conflicting but still justifiable, meaning backed by reasons. And people can disagree about whether a result is even warranted. Social coherentism cannot and does not resolve those conflicts--only ongoing efforts to persuade each other can do that. Its aim is simply to show that defensible arguments can be made, and to provide an understanding of their criteria and conditions. (20)

Skeptics might still object that social...