Thursday, April 20, 2017

Reflections on "Law and Religion in an Increasingly Polarized America"

Mark Tushnet

On the plane to San Francisco I read the terrific symposium issue of the Lewis and Clark Law Review, "Law and Religion in an Increasingly Polarized America." (Congratulations to Jim Oleske for putting it together.) Several of the articles raised the following question for me. A person's faith commitments are often an important part of her/his individual identity. (The same can be said about faith communities, and everything I say about individuals in what follows could be said about such communities. But exposition is easier if I refer to individuals.) So, state regulations that bear on faith commitments should be understood to pose threats to, or at least difficulties for, beliefs at or near the core of the person's self-understanding. That supports the case for adjusting the state's demands to take into account its regulations' impact on individuals' ability to live their lives in accordance with their deep commitments.

What I wonder about is this. The foregoing formulations take the individual's identity, self-understanding, and faith commitments as more or less fixed. But, I'm sure we all know people whose faith commitments have changed to some degree in the face of experience. (The clearest example I can come up with is, for present purposes, unfortunately liberal-leaning, but I'm confident that with more reflection I could come up with others leaning the other way.) For example, I'm quite confident that many people who previously held, as part of their faith commitments, the view that homosexuality per se was wrong, now hold a more nuanced view -- for example, that acting on homosexual impulses is wrong but that having those impulses is not, or that acting on them is not wrong but seeking public approval of those actions is wrong. (I'm also reasonably confident that many of those to whom I attribute these views would say -- in my view mistakenly -- that they never held the prior views I'm imputing to them. Psychology's complicated.)

Now, one of the things experience throws at you is the law -- and changes in the law. Perhaps (I think it's true), the very fact that a large number of your co-citizens believe that something you thought, as part of your faith commitments, was wrong do not think it is, will induce you to think some more about your faith commitments, and perhaps revise them. (An example on the institutional level: Suppose your church-related institution had a policy against employing gays because they engage in sexual relations outside the context of a marriage between a man and a woman. Your jurisdiction enacts an anti discrimination ordinance barring employment discrimination against gays. It wouldn't be crazy, or a deep threat to the institution's identity, for the institution to clarify its policy by acknowledging that not all gays engage in the activity I've described, and that many straights do, leading to the adoption of a policy that doesn't discriminate against gays as such. The new policy isn't one I'd admire, but that's a different matter.)

The possibility of revision in the face of experience, including the law, seems to me to weaken the case for accommodation sketched above. My inclination is to say that it introduces a fatal circularity into the case, but maybe that's because I'm not inclined to favor accommodations at all -- I'm an "early adopter" of what one of the articles in the Lewis & Clark symposium describes as the pro-religion anti-accommodation position. In any event, I'm puzzled about how one can work the revisability of deep views into a case for accommodation that focuses on core identity.

[I was flying to San Francisco to comment at Stanford on Amalia Kessler's recently published and quite interesting book, "Inventing American Exceptionalism."]

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