Religious Freedom is Impossible… Compared to What?

In previous posts I’ve tried to provide some context for Winnifred Fallers Sullivan’s wide-ranging commentary on Hobby Lobby and Conestoga Wood, “The Impossibility of Religious Freedom.” In this final post, I want to scrutinize her argument and those of some of her critics. What precisely is Professor Sullivan’s objection to the notion of religious freedom? Addressing American liberals and the dissenters on the Court, she writes:

You cannot both celebrate religious freedom and deny it to those whose religion you don’t like. Human history supports the idea that religion, small “r” religion, is a nearly ubiquitous and perhaps necessary part of human culture. Big “R” Religion, on the other hand, the Religion that is protected in constitutions and human rights law under liberal political theory, is not. Big “R” Religion is a modern invention, an invention designed to separate good religion from bad religion, orthodoxy from heresy—an invention whose legal and political use has arguably reached the end of its useful life.

What sort of case is Sullivan making? For analytical purposes, we can read it as anthropological, legal, or moral.

As an anthropological argument, an argument about the beliefs and intentions of the Justices, it is incomplete. If Sullivan were correct that the dissenters on the Hobby Lobby Court objected to the Greens’ and Hahns’ religion simply because they objected to its public, anti-egalitarian cast, it would be difficult to explain why those same dissenters favored blanket accommodations for all such religion so long as it is professed by nonprofit corporations. On the other hand, the Justices’ behavior fits with the hypothesis that they were objecting to what they regarded as a serious misreading of the law that shifted material burdens onto women.

Absent some positive reason to think that the Justices are self-deceived, we should take their stated reasoning to express their genuine reasoning. Their stated reasoning maintains that secular for-profit corporations do not meet the definition of “persons” under the Religious Freedom Restoration Act and that religious accommodations are impermissible when they impose significant burdens on third parties. This reasoning was also on display in Holt v. Hobbs, when Justice Ginsburg approved of a Muslim-beard exemption to a prison grooming policy, citing the fact that it was not burden-shifting.

As for liberal critics of religious exemptions generally, I am not unsympathetic to Sullivan’s claim that many reserve their outrage for exemptions claimed by conservatives (in contrast, say, to conscientious objectors). Still, this is an empirical question that is far from settled. As I read the fiercer secularist critics of exemptions, such as Marcia Hamilton, their opposition rests on the principled difference between religious claims that impose significant costs or risks of harm to others and those that don’t. If that’s cultural chauvinism, sign me up.

Even if the Court’s dissenters and their liberal supporters were driven by a tacit enmity towards a particular form of religion, we could ask whether their conclusions, and the framework they presuppose, are legally sound. However, Sullivan is not simply making a technical legal argument. Responding to Sullivan at The Immanent Frame, Andrew Koppelman commends her work for masterfully conveying the “bewildering multiplicity” of “religion.” But, he says, “the question remains what to do about it.” Isaac Weiner points out that in the present context, this multiplicity of “religion” makes it “more useful than ever” as an “eminently malleable category that can be deployed to advance any number of competing ends.”

Perhaps when she claims that the category of religion has reached the end of its useful life, Sullivan is not suggesting that it serves no one’s purposes, but rather that it serves no defensible purposes. Perhaps hers is fundamentally a moral case, a case about the injustice of protecting “religious freedom.” Then the claim would not be that such protection cannot function, but that it cannot function without invidiously discriminating against citizens whose spiritual and normative commitments are not recognized as falling under the big “R.” Then the principle at stake would be the principle of equal respect and equal protection for all citizens, regardless of their spiritual and normative commitments. This much is apparent in the language of fairness, equity, and equality that recurs throughout her work. Weiner is reading Sullivan too narrowly.

Koppelman has another challenge. In order to cope with multiplicity, he says, “law must simplify.”

Accommodation must take place under some description. That description must somehow pick out valid claims from among the universe of objections to legal regulation: if all such objections are honored, the law is nullified. Any such description will force together, under a single rubric, an enormous variety of human conduct. This is an inevitable effect of any possible legal category.

In the rough-and-tumble of the law, the realistic aim is not to wash our hands of reductive categories, but to adopt the least arbitrary or unfair categories. If religion is to be the object of accommodation, the law must manage its ambiguity. If religion is not to be the object of accommodation, then what is, and what reason is there to think that it is a less arbitrary or unfair category than religion?

The straightest path out of this dilemma is to say that no one gets accommodations, or at least not accommodations that shift material burdens to third parties, a position Brian Leiter defends in his recent book, Why Tolerate Religion? Still, Koppelman observes that even many distinguished legal theorists and philosophers who want to do away with the accommodation of religion as such want to retain the practice of accommodation. They have claimed that “the proper object of the law’s solicitude is not religion, but something else,” such as “conscience” or a “source of meaning inaccessible to other people.”

The problem with these candidates, he claims, is that any “single factor justification for singling out religion will be both overinclusive and underinclusive.” Some religious claims worthy of protection, for example, are not claims of conscience, and not all claims of conscience are worthy of protection. He argues that in order to capture the most of what is worthy of protection while excluding the least, we need the concept “religion” as “an adequate proxy for multiple goods”:

“Religion” denotes salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and much else besides. Each of those goods is, at least, more likely to be salient in religious than in nonreligious contexts.

As a thumbnail sketch of what big “R” Religion is all about, this list of goods is admirably clear. But for precisely that reason it begs the question against Sullivan and others who speak for the equal dignity of citizens whose lives do not aim at the alleged goods of ineffability, salvation, or transcendence. What reason is there to think that the goods on Koppelman’s list and only these goods are worthy of protection?

For those opposed to the regime of religious freedom, the question is what could replace it. Is there a system that would be morally preferable yet also administratively implementable? Although her recent article doesn’t address it, Sullivan’s 2005 book of the same name closes by gesturing towards an alternative.

What would be lost if law focused not on the special case of religion but on the accommodation of difference generally, and what compromises any such accommodations imply for commitments to equality? Without an explicit protection for religion, guarantees of freedom of speech, of the press, and of association would continue to protect most of those institutions, including religious ones, usually thought necessary for a free democratic society.

Under this legal regime, religious individuals and communities would “have to make arguments for the special legal accommodation of difference to legislative bodies.” Those making a case for “differential treatment would be required to make a very strong showing, as in race cases, of past discrimination or present need, to justify special legal treatment.” While these remarks are promising and suggestive, they do not constitute a workable theory. Attempts to construct such a theory—and attempts to show that there could be no such theory—presently preoccupy much legal scholarship. Insofar as there is no feasible alternative to a regime of “religious freedom,” Koppelman’s larger challenge remains in force: Religious freedom may be impossible, but compared to what?

In her comment on Hobby Lobby, Sullivan asserts that “the business of religious studies scholars to explain these phenomena, not to decry them.” There is no question that she has made unrivaled contributions to our understanding of the phenomenology of religion under the law.

At the same time, as a scholar-explainer of phenomena, Professor Sullivan has distinguished herself with a rhetoric that decries the “impossibility” and unmasks the “lies” of religious freedom in ringing tones. When it comes to the task of constructing a legally feasible and morally superior alternative, she has chosen to remain in what Rebecca West called “the deep peace of being in opposition.”

RD contributing editor Austin Dacey will be writing a series of posts in the coming months as part of a joint project between The Immanent Frame and Religion Dispatches made possible by the generosity of the Luce Foundation.


  •' Jim Reed says:

    Religious freedom is difficult to accomplish in a society of religious people.

    The non-religious could set up a society where people are allowed to believe whatever they want, as long as it doesn’t affect anybody else. Religious minorities would appreciate living in that world, because they would not be discriminated against for practicing their religions. The problems start with certain religious majorities, such as Christianity. The purpose of their religion is to make them superior to people of other religions, or no religion, and they want some kind of acknowledgement from society that this is the case. If it is a progressive society that is trying to establish ways for the society as a whole to help the citizens, then the religion might zero in on some aspect of the social program that they object to, and demand a veto over that point. Socialized medicine that includes family planning is one example. People of religion can exclude themselves from taking part in that thing, but they want more. They want it killed for everyone, or some kind of special treatment that they can see as society is admitting the moral superiority of the religion. When the majority is in a strong enough majority, they can get what they want here. In a situation where the majority is shrinking in size and power, they might end up fighting to hold on to power that is slipping away. This might be a temporary growing pain that society has to go through.

  •' Collin237 says:

    I think the mistake is the assumption that religious freedom is a concern of courts in the first place. In most of the world, and certainly in the USA, religious organizations are naturally sources of thought, not power. They exert power over us only because we as a society grant them that artificial privilege. There are plenty of non-religious think tanks that promote things we don’t agree with, and we feel free to debate them or ignore them.

    The church is just another think tank. If they oppress us, it is not the government’s job to overrule them. We have the right to popularly hit them where it actually hurts: not in their money, not in their political clout, but in their epistemology. If they oppress our rights, we have the right to call them heretics.

  •' Jim Reed says:

    Dealing with religion is complicated, and the law is complicated. If we want to make progress I think it would help to simplify a bit. Since this is largely a Christian nation, start with Christianity. What is it? I don’t think it can be defined because the ancient definitions are too embarrassing to mention, and modern definitions can only survive by being too obscure to have real meaning. Jesus if perfect, and everyone else is a sinner. The fact that Jesus is a myth can be overlooked by disregarding what was actually written, and going by the thousands of years of expert opinion. That is what we have so far.

    People want religion, and the church gives it to them. Religious propaganda is largly bought and paid for by the rich. The rich don’t like science because it so often goes against conservative economics, and so the rich buy propaganda to make the church anti-science, and that seems to mesh well with ancient religious teachings. Being anti-science is a win win for conservatives and religion.

  •' Collin237 says:

    “the ancient definitions are too embarrassing to mention”
    What? That Jesus is a version of Mithra? Hardly unmentionable. It seems to me that Christianity was meant not to be everlasting like other religions, but to accomplish two vast but finite goals:
    1. To purge Judaism of the heresy of the Messiah, by attributing to the Messiah a network of contradictions that would eventually collapse.
    2. To take advantage of the cross-cultural popularity of Mithra / Messiah myths as a way to spread the tenets of Judaism throughout the world.
    And the end-game is that eventually the Jesus myth will self-destruct and all Christians will convert to Judaism.

    “Religious propaganda is largly bought and paid for by the rich.”
    That’s only because of the illusion that there is something to buy and sell in the first place. There is no such thing as the soul of a nation; souls belong to individual people. If people who believe they have souls took responsibility for their own, and admitted that they have their own unique priceless faith that’s only tangential to official religion, then religious leaders would be outnumbered.

  •' Jim Reed says:

    That end game self destruction seems to have evolved into something that might forever get closer and closer to the end game, without end.

    The bought and paid for souls has actual meaning when you consider votes.

  • “People want religion, and the church gives it to them.”

    This might be breaking down more and more as time marches on. The so-called rise of the Nones in American culture (at least) makes them the second largest group (after Christians) according to Pew. But, the interesting thing is that most of the Nones, i.e. people who don’t claim a religious affiliation, still believe, they just don’t do so from within the confines of a church, synagogue, mosque, etc.

    I guess time will tell if, as this demographic grows, do more and more people leave the traditional religious systems in favor of these sorts of movements. And, if this does occur, at what point does a large-enough group of Nones simply end up creating some sort of reform movement around a shared set of beliefs?

  •' Jim Reed says:

    Leaving Christianity might be a process that takes some time, both for the individual and for the nation. There is still a tendency to believe. I think you can see this in the current intellectual process of questioning. Maybe Christianity was a creation of the church in early centuries, but maybe Jesus is still real, or if not real as a spirit being maybe he was an actual person who said those things. When people have believed all their lives, and everyone else they know also believes, they still want to believe at least something even after they learn it was all fake. Or at least believe something for a couple more decades.

    Most people believe religion is needed because something in the nature of humans needs religion. Once the pressure is off and humans no longer have to believe to fit into society, that might change, as least after a thousand years.

    The process of society maturing and humans being dragged along with it will continue its evolution. Science will persist because the more it continues to eliminate what is not true, the more true it will continue to become. Religion doesn’t work that way, and there is nothing to keep it going, other than pressure from people who want it to continue, but that can’t last forever.

  • What about religions that don’t believe in a transcendent god of the gaps? There’s many religious movements out there that practice virtue ethics, have a mutable theology (i.e. process theology), and don’t appeal to the authority of ancient assumed-to-be-revealed scriptural sources. Do you suppose that such communities will also suffer from the onward march of science as you describe?

  •' Jim Reed says:

    Are they different from science?

  •' Duck says:

    Christianity ‘is’ superior by virtue of the fact they have been here forever. Whether right or wrong they were here first and yes as a result they have gained a foothold in society. The thing is that much of society has now outgrown them and Christianity is fighting to stay alive though it’s becoming increasingly evident they are not wanted or needed. Now they see themselves as being persecuted for their beliefs and you are right, are fighting for their perceived rights that society gave them. Yes they are shrinking in size and power but still wield a surprising amount of influence in Canada and the US. In a democracy it’s “same for all” and they will just have to join the ranks of everyone else.

  •' Collin237 says:

    But votes, albeit vital for society, are simply petitions for someone else to corroborate your opinion. Actual meaning would be, for example, arguing with your minister face-to-face.

  •' Jim Reed says:

    If you want your dollar to buy more votes, then fundamentalist Christian votes are your best deal. That is why the Republican party is Christian.

    If you argue with your minister, what could the argument be about?

  •' Collin237 says:

    1. Looks like there are a lot of steps I’m not seeing in that logic. Could you please elaborate?

    2. About not letting him define sin for you. If you believe privately that something isn’t a sin, and the minister insists publicly that it is a sin and anyone who disagrees is wrong, you have the right to talk back.

  •' Jim Reed says:

    I see the major steps to Republicans buying votes as:

    – In the 60’s I was just in school and might have been less informed, but Christianity seemed to be more politically neutral, or even leaning a little Democratic.

    – Then serious religious people started to be more concerned about the social changes. By 1980 they were forming the moral majority which was a way to put Christian vanity into high gear. This was an opportunity for Reagan to pander to Christianity and there was no limit to how rich Republicans could exploit things.

    – By the time Bush Jr. was elected, Democrats across the board were scared. They were afraid of stepping out of line with fundamentalist Christians and getting thrown out of office. This allowed the rich to use 9/11 as a reason to go after the oil fields in Iraq. Progressive Christianity offered almost no resistance to Conservative Christianity, and rich Republicans even if they weren’t religious pandered to the Christian vote because it was working. This was the Republican voting block.

    – Since then, every election brings hope that Christianity might see through it and stop voting Republican, but we are still waiting for that to happen.

    If I was talking to a minister, I would have to question the authority of the Bible, and the church and him. I don’t think Christianity has ever started at the beginning and shown they have any connection to God. I don’t have a minister, so I don’t have to worry about how much trouble that discussion would be.

  •' Collin237 says:

    ” I don’t think Christianity has ever started at the beginning and shown they have any connection to God.”

    No religion can do that. The reason religious authenticity can’t be bought is that there isn’t such a thing. Religions are opinions, wild guesses. Religious people go to church (etc.) to participate in a service. They’re not students; they’re customers. A customer always has the right to challenge the authority of a vendor.

  •' Kelly says:

    They were hardly here first as there were native religions before THAT.

  •' Jim Reed says:

    A lot of religions survive by training a congregation to not challenge authority. They have somehow constructed a system where the people themselves pressure each other to conform. The stronger this pressure becomes, the longer the religion will last.

  •' Collin237 says:

    Good point! Maybe society has been going at the relationship between religion and science all wrong. Religion is languishing for being too authoritative, and science is languishing for being not authoritative enough. Scientific discoveries that are well enough established to be considered fact should be handed over to religion.

    Imagine if those arguing that Creationism should not be taught in schools were to say that evolution is the word of God, and Creationists are sinners. It just might work!

  •' Jim Reed says:

    Scientists teach other scientists. Religion should be sitting at the feet of science asking for truth. People should be rejecting religions that are not willing to humble themselves and do this.

  •' Duck says:

    This has nothing to do with native religions being here first. I was making the point that Christianity has been here for a long time and as a result has become dominant. Native religions do not even come into play here.

  •' SDK says:

    Our tools for managing religion and secularism are imperfect from a theoretical point of view. So are our tools for managing condo associations, lead paint, and underage dance clubs. Does that mean we shouldn’t try? More purity in theory does not always lead to better practices that most people find “fair”.

    It’s true that religious commitments enjoy a privileged place in American life not enjoyed by commitments to hunting or even reading the New York Times over brunch. We are a believing and religious people and our laws and their interpretations reflect that. They also reflect a preference for people to be married and homeowners. Are these cultural preferences injustices against single atheists who rent or mere annoyances?

    Does it work? We have a wide variety of passionate religious commitments in America and yet we manage to get by with very few religious wars, even verbal ones. Cases like Hobby Lobby are rare and mostly distasteful. Our core values and our Constitution state that freedom to and freedom from are a win-win and because most Americans actually believe that, it is true.

    The militant secularism of France has not served them well. I submit that our system works and that any country with France-like conflicts over the role of religion and state would do well to adopt it.

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