The GOBA Blog - Page 5

This post has also been published on The Immanent Frame

In many scholarly and advocacy circles today human rights are conceived as pragmatic global norms of human solidarity – as polite international extensions of the tradition of theorizing summed up in John Rawls’ dictum, “political, not metaphysical.” For many working in the shadow of Rawls’s attempt to “bypass religion and philosophy’s profoundest controversies and uncover a stable overlapping consensus,” religion and international human rights seem like oil and water, their practitioners engaged in different normative discourses, or even distinct normative universes. As Benjamin Berger sums up this point of view, “law is the curator, rather than a component, of cultural pluralism.”

In the concluding passage of her powerful take on the U.S. Supreme Court’s enigmatic record on religious freedom over the past decades, Winnifred Fallers Sullivan boldly suggests that we ought to “...find some other words.” The concept of religion (and thus of religious freedom), she maintains, is essentially too vague and too bound up with specific orders of knowledge and power to be considered as a valuable aspect of constitutional and human rights law. To liberate ourselves from the “often unacknowledged flotsam and jetsam of religio-political history” that burden religious freedom when actualized in the courtroom or on the political stage, we need to free ourselves from the concept altogether.

The exchange among Winnifred Sullivan, Sindre Bangstad and Marc DeGirolami offers a number of wonderful provocations to help us think more deeply about the role of religious freedom in our legal and political discourse, about the nature of the secular, and – encouraged by Prof. Degirolami – about disciplinary cultures and the study of religion and law. I want to focus on this latter point as a way into my own reflections on this conversation.

My work considers the religion clauses of the First Amendment to the United States Constitution and the body of federal and state laws protecting religious freedom in the United States. One theme in my work involves doubt about the law’s capacity to protect everything worth protecting about religion and religious practice. Here the law is limited and imperfect — both because of the limits of human reason and because of the inevitable conflicts of human interests and aspirations. The law’s limits come sharply into focus for what I have called “comic” theories of religious freedom — theories that reduce religious freedom under the Constitution to one or a small set of values (most commonly equality, neutrality, and the separation of church and state). None of these comic theories includes a sufficient accounting of the costs (including the costs to religious freedom) of such a reduction. These are some of the ideas explored in my book, The Tragedy of Religious Freedom.