One major premise of liberalism is that the state will not weigh in on the truth of religious claims. This premise has led to a view of the legal system as a distant and dispassionate arbiter of disputes that involve religion, paying little attention to the content of religious beliefs as they relate to a particular law, focusing instead on the weight of the relevant state interests. The courts do not care, for example, why Native Americans were using peyote as part of a religious ceremony. They ask instead whether the state had a valid reason for depriving the claimants of their unemployment benefits because of their illicit drug use. For the state to probe too far into the religious belief behind the ritual drug use would threaten the neutrality on which the maintenance of a peaceful pluralism depends.
In his insightful and bracing book, Paul Horwitz seeks to upset this arrangement, though his analysis underscores the difficulty of articulating a realistic alternative to it. Calling for a “constitutional agnosticism,” he urges judges, public officials, and citizens to confront openly the truth of religious claims. The failure to do so, he argues, has contributed to the gradual erosion of religious liberty by discounting the possibility of religious truth and substituting a conception of religious claims as expressions of “feeling” that resist rational assessment. Horwitz concludes that this hands-off approach to religious claims can no longer withstand the growing dissatisfaction of citizens who insist on the public relevance of religious belief.
Horwitz argues that our constitutional actors and citizens need to exercise “negative capability,” allowing them “to occupy, as fully and empathetically as possible, the varied worldviews of our fellow citizens, even at those moments when their worldviews come into the sharpest conflict with each other and with our own perspectives.” He illustrates his point by looking to the post-Romantic experience of art, noting that
even the most committed theist or atheist may betray the possibility of the agnostic stance by doing something as unremarkable, but quintessentially modern, as reading a novel...[for] one enters the novel as a willing participant, one who is willing to experience it as a real thing—but at the same time maintains a distance from complete belief, knowing that the tale is not true.
Taking this kind of agnostic stance into the sphere of religious liberty means that, rather than avoiding religious questions altogether, public officials need to “engage empathetically with their fellow citizens’ perspectives on religious truth.” Agnostics will not root themselves in either belief or unbelief, but they nevertheless want “deeply to know what it means, what it feels like, to live in a state of belief or unbelief.” Negative capability is not nothingness; it is “an erasure of the barriers between [oneself] and others—both believers and nonbelievers.”
So, even though public officials cannot answer questions of religious truth, Horwitz believes they need to confront them. In deciding whether a belief should be accommodated by law, constitutional agnosticism asks, “What if this belief is true?” It doesn’t do justice to the religious believer merely to balance an unspecified claim of “conscience” against secular state interests, “as if the potential truth of that claim added nothing to the scales.” Horwitz encourages us to approach policy decisions that affect religious communities—for example, whether to grant a zoning permit for a mosque—from the perspective of the “other,” taking the relevant religious claim as potentially true before deciding its legal weight.
This is where Horwitz’s approach runs into some practical complications. If public officials were to take some religious claims to be actually true, the claims would seem to overwhelm even the most compelling state interests. If God really did instruct Abraham to kill Isaac, on what ground would the state step in to thwart God’s will? Horwitz correctly points out that the state would still have a valid interest in defending Isaac’s life, but how could it allow that interest to trump an explicit command from the Creator of the Universe? We would all (I hope) want the state to step in on Isaac’s behalf, but that is because we would refuse to assume the truth of Abraham’s claim. If we knew his claim was true, all bets would be off.
Horwitz argues that our failure to take the truth claim seriously “balances the religious claimant’s emotions, and not the claim itself, against the countervailing interests of the state.” This failure is similar, in his estimation, to “a parent who takes his child’s feelings seriously, but not her claim.” For the past twenty years, free-exercise-of-religion claims have focused on whether the law at issue is neutral and generally applicable; if it is, the claimant loses. Horwitz sees the state of the law, with its refusal to grapple with the potential truth value of a claim, as akin to telling one’s terrified child, “Even if there really is a monster under your bed, the important thing is that we consistently follow our rules about bedtime.”
But this example shows how difficult it is to see how a claim’s truth value fits into the legal inquiry. When my child fears a monster under her bed, I can check under the bed. If there were a monster there, I would take my child out of the room immediately and call the police (or perhaps an exorcist). The point is an epistemological one: it is possible for me to verify my daughter’s claim in a way it is not possible for public officials to verify a religious believer’s claim. When officials have attempted to do so in past eras, the results have not been good (for example, Salem, Massachusetts, circa 1692).
None of this is lost on Horwitz, who cautions that public officials must also acknowledge the possibility that the religious belief is false. This may prevent the state from having to condone Abraham’s behavior, but it also calls into question the degree to which constitutional agnosticism would really change the state’s current “hands off” approach to religious belief. Horwitz thinks that greater empathy for religious claimants would lead to greater liberty, with constitutional agnosticism essentially putting a thumb on the scale in favor of the claimant. Thumb on the scale or not, we are still faced with the vexed question of how to balance the claimant’s interests against the state’s. Horwitz insists that taking the stakes of these cases seriously “does not demand that we go past our breaking point.” But his constitutional agnosticism does not help us identify the breaking point any better than any other theory of religious liberty. We can all agree that the state should reject religious arguments for child sacrifice, but most real cases are not that easy. In a few states, permitting Catholic Charities to exclude same-sex couples from its pool of adoptive parents went too far. The French state has decided that just wearing an Islamic veil in public goes too far. It is not clear how the empathy of Horwitz’s constitutional agnostic would bear on either case.
Even one of his central illustrations leaves more questions than answers. Constitutional agnosticism, he explains, “honors Pontius Pilate’s question—‘What is truth?’—but condemns Pilate’s shrug.” So what, the reader might ask, should Pilate have done as a constitutional agnostic? The crowd calling for crucifixion was making religious truth claims—that Jesus was not the son of God, and that describing himself as such amounted to blasphemy against the one true God. Should Pilate have deferred to the potential truth of those claims and ordered crucifixion with more enthusiasm and less hand-wringing? If Pilate had stepped in to protect Jesus, it probably would not have been because of empathy for Jesus’ religious-truth claims, but because of respect for a shared human value that is squarely within the earthly law’s ordinary domain: human life should be protected. More work to identify the bedrock values that define our “breaking point” would provide a more helpful—though still frustratingly messy—path through the maze of religious-liberty disputes than any effort to assume the truth of claims that lie beyond our collective grasp.