For the past decade I have helped organize an annual roundtable of law and religion scholars. Some years back, I complained half-jokingly to my fellow organizers that the roundtable was too nice. Most conferees shared some basic premises—in particular, that religious belief is important and deserves both respect and substantial legal protection. While that made the conference more pleasant, it removed the sense of fierce conflict that drives debates over law and religion in a wider world that is often indifferent or even hostile to religion and religious liberty. I asked: “Can’t we all just not get along?”
Well, I got my wish. In recent years disagreement has become more heated, as views about religion have changed and conflicts involving same-sex marriage and LGBTQ rights have soared to the top of the religious-freedom agenda. The cast of characters at our roundtable has also changed. Law professors who focus on the Constitution’s equality protections, with religion only a secondary topic of interest, are now as frequent as religion scholars for whom equality is just one consideration. The days of shared premises are gone. The room now comprises two camps—one focused on religion, the other on equality—competing to set the terms of engagement preemptively. For better or for worse, our roundtable has become more reflective of the wider debate.
One of my co-organizers for this event is Nelson Tebbe, a professor at the Brooklyn and Cornell law schools, and author of the important new book Religious Freedom in an Egalitarian Age. Although Tebbe is clearly aligned with the “egalitarian” camp, he respects religion and religious freedom. That respect makes his book a useful, approachable introduction to the new egalitarian thinking driving so much social and legal conflict over religious liberty today.
It helps that Tebbe does not think the conversation is advanced by simply placing scare quotes around the phrase “religious freedom.” Unlike Martin Castro, the former chairman of the United States Commission on Civil Rights, he does not dismiss “religious freedom” as a code for “discrimination, intolerance, racism, sexism, homophobia, Islamophobia or any form of intolerance.” Egalitarians should welcome a book that does not reject the meaningfulness of religious exercise and community. Religious libertarians should appreciate engaging with someone who does not simply rule them out of bounds from the start. That makes the book cause for hope. But not enough hope, in the end.
Despite its focus on reasoned elaboration, a certain magical thinking drives this book, with its relentless mixture of is and ought. “We should insist both that current conflicts between religious freedom and equality law are intricate and that they are not intractable,” Tebbe writes. “Justified solutions can and must be found.” Readers may rightly worry about words like “should” and “must.” That we face urgent problems is no guarantee that we can find a way to “diminish or dissolve the apparent tension between peace and justice” in this area. But Tebbe wants lasting solutions; and though he insists that his book “is not a recipe for the end of disagreement,” he advocates a method, and a set of outcomes, that will “shape civil rights law and religious freedom guarantees into the future.” Like the warring camps at our law and religion roundtable, he wants to set the terms of engagement and treat certain “settlements” as final. The losers should not only “understand why their arguments have been rejected,” but accept defeat with good cheer.
That seems unlikely—and not only because some will reject Tebbe’s proposed outcomes on issues such as the contraceptive mandate, religious accommodations, religious associational freedom, and the reach of nondiscrimination law. More important is the method he relies on for resolving these issues. That method is labeled “social coherence.” Despite Tebbe’s reluctance to say so explicitly, it is essentially a fairly aggressive form of political liberalism. Its aim is to provide a way of addressing not only current conflicts between religious liberty and equality, but “questions of law and political morality” in general. Central to the method is the importance of “warranted” conclusions: conclusions “backed by reasons.” Tebbe holds that if we can come up with “ways of discussing complicated questions of constitutional law, about which there are strong convictions on both sides, in a reasoned way”—a way that leads to what he considers non-arbitrary judgments—then the outcomes should be acceptable to both sides.