Reflections on U.S. Domestic Religious Freedom

By: Cathleen Kaveny

January 19, 2021

Rethinking U.S. Domestic Religious Freedom

Many thanks to the eight participants at the Berkley Forum on “Rethinking U.S. Domestic Religious Freedom,” which was prompted in part by my 2020 essay in Daedalus on “The Ironies of the New Religious Freedom Litigation.” I will ponder their individual reflections in detail as I continue my own work in this area. But in this brief response, I want to lift up two general questions that they collectively raised for me.

What is the Role of Scholars of Religious Studies in Religious Liberty Litigation?

These essays are written by scholars who all have substantial training in religious studies and cognate fields in the humanities, including history, philosophy, and critical theory. Taken together, they express substantial frustration at the way in which “religion” is configured in recent religious liberty litigation. That litigation tacitly assumes that the model for (good) religion is white, conservative, American, patriarchal, evangelical Christianity. Other frameworks of belief deserve protection to the degree to which they conform to this mode. In various ways, the individual essayists all draw upon their prodigious learning to problematize this picture.

Their critiques are incisive and persuasive. So why don’t they have more effect? Why doesn’t this nuanced, variegated, and problematized understanding of religion have more effect on case outcomes? Why aren’t they even a greater part of the discussion? To address these questions, I think, requires us to take a hard look at two factors: 1) the marginal role of religious studies in the academy; and 2) the training of lawyers. 

Many religious studies departments are met with suspicion from all sides: They are viewed as strange and dangerous by both secularists and believers. To the extent that the notion of “religion” itself becomes problematized, it becomes harder to say why there should be separate departments of religious studies, rather than incorporating consideration of religion as necessary into departments of history, anthropology, politics, and sociology. 

Many religious studies departments are met with suspicion from all sides: They are viewed as strange and dangerous by both secularists and believers.

Consequently, many religious liberty lawyers on both sides of the legal debates have no formal training in religious studies. Nor do they particularly feel the lack of such training. In part, this is because law school tacitly encourages students to adopt a kind of boundless intellectual confidence as part and parcel of remaking them to “think like lawyers.” People with law school training come to see themselves as equipped with the intellectual equivalent of a Swiss Army knife: They do not need specialized training in any other discipline, because no field of endeavor will not yield to the sharpness of their mental blade. 

But there is an additional wrinkle to consider: Many of the most effective legal proponents of religious liberty are often personally devout; in fact, some consider themselves amateur theologians. Confident of the strength of their own analytical powers, they are at the same time reluctant to subject their religious and moral worldviews to critique. Listening to some of them talk, I have begun to think that they worry that the centuries-old religious tradition to which they adhere would crumble under the pressure of their own hard-headed analysis. What is revealed here is a troubling combination of intellectual hubris and religious fragility. How do we address it?

Religion and Common Morality

Many of the fraught issues in current religious liberty litigation involve the intersection between religion and the nation’s common morality. We can’t solve every problem at the intersection right now. But it doesn’t hurt to try to untangle the traffic jam. And so I want to ask one pressing question: How do we determine what counts as the “common morality” of this country, which forms the basis for the laws we enact, the policies we propose, and the benefits we fund?

How do we determine what counts as the 'common morality' of this country, which forms the basis for the laws we enact, the policies we propose, and the benefits we fund?

Many religious practitioners, including Catholics and evangelical Protestants, believe there is a common morality that binds all human beings, believers and non-believers alike. They believe it is distinct from an additional (but compatible) set of moral norms applying only to believers. At the same time, however, they think that right religious belief gives one a more reliable insight into the common morality. So they think that they themselves (as believers in the right religion) have more acute moral judgment than non-believers. 

Consider for example, the controversies surrounding same-sex marriage and contraception. Many conservative Christians believe that homosexual acts, abortion, and even contraception are prohibited by the common morality. They are wrong for everyone, not just for Christians. Of course, many other people, including many Christians, do not agree with them. Yet is highly unlikely that the second group will be able to persuade the first group, because the first group believes their views have divine backing. It is also highly unlikely that the first group persuades the second, because the latter believe their views are backed by human experience and the witness of human suffering. 

We cannot do without a common morality in this country—or in any country. The law is intertwined with morality in any number of ways. The criminal law depends on normative views of harm and flourishing (as reflected in the changing views of the severity of the crime of sexual assault). But so do questions like what tax policy is adopted and which programs are funded. 

We cannot do without a common morality in this country—or in any country. 

How do we determine the contents of our common morality? I think the Rawlsian project of “public reason” has met with a bad end, in part because religious believers sensed that it unfairly privileged a secular liberal philosophy. But what can replace it? We need to have a forthright conversation about this question. Two neuralgic issues raised by recent religious liberty litigation are these:

First, do conservative religious liberty advocates mean to claim that any view that has a reasonable claim to be backed by Christian scripture must always be tolerated by American common morality, at least absent a constitutional amendment? Here, originalism and conservativism wash each other’s hands. If the Founding Fathers believed in “biblical morality,” then there seems to be no way its contemporary proponents can be pushed outside of the common morality. 

Second, do either religious conservatives or social progressives have any room for the category of “wrong but not intolerable”? And if so, what belongs in that category? America may be increasingly secular, but it is influenced by its Puritan heritage as ever. Our culture wars are wars of purity—on both sides. In our deeply divided country, we all need to think—from our own vantage point—what moral views are wrong, but tolerable, at the edges of our common morality. 

In our deeply divided country, we all need to think—from our own vantage point—what moral views are wrong, but tolerable, at the edges of our common morality.

I am honored and grateful to be part of this conversation. I hope that our work can continue together—maybe even in person—as the pandemic recedes.

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