What Comes After Religious Freedom?

There are several ways in which my views are sympathetic, and might even converge, with the project of exploring what might come “after” certain conceptions of religious freedom. By reducing the reasons to protect religious freedom under the Constitution to single values such as equality or neutrality, some comic conceptions of it flatten legal disputes in ways that fundamentally misconstrue the true nature of the conflicts within them. Since what goes under the label of religion is culturally contingent, multifarious, and multifunctional — ideological, personal, political, institutional, communal, a phenomenon of cultural identity and at the same time a source of trans-temporal truth — one ought to expect the same variety, conflict, and incommensurability among and within the conceptions of religious liberty cherished by particular communities and enlisted to protect religion under the Constitution.

From comedy to tragedy

It may be that legal conceptions of religious liberty not only are insufficiently capacious to accommodate the welter of reasons to protect religious freedom (this would not be a failing unique to this area of law) but are also so grossly inadequate as to demand some radical alternative, as Winnifred Fallers Sullivan suggests. We would, in that case, be well-advised to begin thinking about what should come “after” laws and theories that are irredeemably maladapted to the purpose. But before reaching this conclusion, we ought at least to move away from comic accounts of religious liberty and begin to hear the music of religious freedom in a more tragic key—in a way that embraces a plurality of values and that necessarily involves sacrificing ends about which we care deeply.

In other ways, however, my views are in at least some tension with the ambition to get past, or over, or somehow beyond religious freedom. I suspect that this skepticism about getting beyond religious freedom may relate to broader differences of interest, focus, and purpose between the disciplines of law and the academic study of religion (ASR). To indulge in an overgeneralization (though one that, I hope, captures something true): ASR scholars are interested in dissolving religion; legal scholars are interested in managing it. There are several reasons that the pungent and interesting critique of religion and religious freedom that has developed in ASR scholarship has been relatively slow to affect law and legal scholarship.

First, lawyers and law professors — even those many who believe that the interpretation of a text can and should change over time — almost always pay close attention to text. From the lawyer’s perspective, to accept the claim that we should get over or past religious freedom might suggest that we ought to take the extraordinary act of reading the religion clauses out of the Constitution. There are some clauses of the Bill of Rights that lie largely dormant; but there are few, if any, that have suffered this end.

Second, dispensing with religious freedom would present the problem of what to do with precedent. A battalion of cases interpreting the religion clauses now exists as part of our legal heritage and tradition. Discarding the concept of religious freedom leaves hundreds of cases purportedly about religious freedom in a kind of no-man’s-land. It would be as if a theorist one day declared that there were no such things as buses or subways, and as a result the government could no longer provide public transportation.

One of the core functions of law is to provide stability across time. People rely on the subway to conduct their daily affairs. They plan their lives and activities around the subway’s regular operations. True, some theorists have argued that whatever is covered by the religion clauses could simply be absorbed by other constitutional provisions — the Equal Protection Clause, for example. Both as a doctrinal matter (the Equal Protection Clause, after all, has its own precedential traditions and wrinkles) and as a conceptual strategy (is this not simply a reversion to comic theory?), I remain skeptical.

Last, the ambition to get beyond religious freedom may illustrate the distance between the disciplines of law and ASR. The legal enterprise is primarily concerned with managing existing social projects, interactions, and arrangements. It is therefore dependent on the particular history of the country in which it operates — its culture, traditions, customs, and common patterns of behavior — taking what exists in society and controlling, administering, and regularizing it according to legal forms. For better or worse, most American lawyers, judges, and legal scholars believe that religion is a special cultural phenomenon. Legal scholars likewise give sustained attention to the historically contingent function of law. For example, when legal scholars and courts are faced with the difficulty of defining religion for legal purposes, they are not generally guided by the categories and frameworks that have informed ASR scholars, but by historical and culturally contingent settlements that can be analogized to present legal problems. Their perspective is internal.

Practice and Theory: Maintaining or Collapsing the Division?

To my knowledge, ASR is, by contrast, largely unconcerned with maintaining and managing an existing formal mechanism of organization. Of course this is not to say that ASR scholars are not interested in the history of these mechanisms. They are, but their historical interests are directed elsewhere — in the construction of critical genealogies of religion, for example, with the aim of putting into question and possibly dismantling and dissolving customary structures. They imagine what might come after such conventions, and the fact of there being an existing structure that has functioned tolerably well is of little scholarly importance. Their perspective is external.

However, both law and ASR may be similar in that they harbor anxieties about their methodological uniqueness and about the autonomy of their disciplines as fields of academic inquiry. In law, this has been a perpetual worry that became particularly acute in the 20th century, as scholars from Pound to Holmes to Posner have argued compellingly for law’s non-autonomy. Indeed, Posner has advocated the project of “overcoming” law: what takes the reins after law has been overcome is economics, philosophy, political science, or some other discipline with truly independent methodological bona fides (it’s mostly economics for Posner).

Though it is not my field (and so I hope to be corrected by those who know better), my sense is that ASR has some of these same anxieties but in its case, the anxieties are connected to the conceptual distinctiveness of the subject matter that it studies. Certainly in law, self-justification and disciplinary apology are not unknown. I believe there is a tension that permeates legal scholarship that is in some ways a product of its historical situation within a practical discipline alongside its long tradition of rigorous academic study (dating at least to the University of Bologna in the medieval period). Sometimes, legal scholars do not negotiate this tension successfully.

The Role of Doctrine

But one might question this collapse of practice into theory: It has always seemed to me that one of the strengths and unique points of legal scholarship lies in its preservation of the separation of theory and practice. That is, its strength lies in negotiating that separation, and in refusing to collapse it into either constituent category. Legal scholarship is perched between two worlds, and it is only in this precarious posture that it retains both an internal and an external perspective on its subject. If it fell to one side or the other – if the separation on which it depends really did collapse – what methodological tools would the legal scholar use to analyze law? Precisely those of the economist, the philosopher, the political scientist, or the ASR scholar.

Likewise, as I have noted before, law schools and schools of theology or divinity are the only ones I can think of in which the idea of doctrine is intrinsically important. This is in part because these disciplines are specially attuned to the authoritativeness of the past. Other disciplines have no such commitments – indeed, their commitments may run in a very different direction. It is not clear to me what perspective ASR has on the role of doctrine, but it would not be surprising that the less closely the discipline associates itself with schools of theology or divinity schools, the more it would embrace a critical posture towards doctrine. The other difference in this respect is that doctrine provides a coordinating function in law and theology that simply does not apply in other areas of study. This function of doctrine is, of course, connected to law’s managerial role and its internal perspective on the customs and traditions of the specific society in which it operates. This role and this orientation are not shared by most other disciplines.

Lest I be misunderstood: both sets of scholarly purposes have great value within the respective practices and traditions of academic inquiry in law and ASR. And dialogue between the disciplinary communities has been too long in coming; it is a welcome development, and I am grateful to be included in it. The disciplines have much to learn from one another. There are convergences between my own criticisms of legal theory in this area and some of the critiques brought to bear by ASR scholars that I hope to explore. But the distance between the aims of the disciplines should not be ignored and should not be collapsed. That disciplinary separation will bear directly on the perspective from which we are assessing what, if anything, should come “after” religious freedom.

Marc O. Degirolami is Associate Professor of Law and Associate Director at the Center for Law and Religion at St. John's Univeristy, New York