The Tragedy of Religious Freedom

The Tragedy of Religious Freedom

Marc O. DeGirolami
Copyright Date: 2013
Published by: Harvard University Press
https://www.jstor.org/stable/j.ctt32b6kr
  • Cite this Item
  • Book Info
    The Tragedy of Religious Freedom
    Book Description:

    Legal scholars expect to resolve religious dilemmas according to principles of equality, neutrality, or separation of church and state. But such abstractions fail to do justice to the clashing values in today's pluralistic society. Marc DeGirolami explains why conflicts implicating religious liberty are so emotionally fraught and deeply contested.

    eISBN: 978-0-674-07411-8
    Subjects: Law, Religion

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Introduction
    (pp. 1-12)

    Scholars of the law confront a predicament. To theorize about the law—to organize one’s ideas into generalities that capture real legal phenomena—is the peak of scholarly achievement. And with good reason, for when legal theory explains the world of law without distortion or caricature, when it reflects crisply the legal world’s infinite variety in subtle and elegant abstraction, it offers incomparable illumination. At its best, legal theory is a wonder, a pathway to wisdom. The trouble is that legal theory’s ambition to evaluate and pass judgment can suffocate its capacity to explain and understand. At its worst—when...

  4. Part I. Religious Liberty and the Comedy of Legal Theory
    • [PART I Introduction]
      (pp. 13-14)

      This part explores some of the most prominent contemporary accounts of religious liberty. Chapter 1 considers monistic theories, and Chapter 2 reflects on skeptical approaches, including the views of several theorists whom I call quasi tragedians. The purpose of this canvas is to identify and probe what this book claims is legal theory’s shared defect—a tendency to detour past the predicament of legal theory when it addresses the reasons for valuing religious liberty. Those already familiar with the accounts discussed may be forgiven for their impatience, but as Sir James Fitzjames Stephen once said of the views of John...

    • CHAPTER 1 The Monists
      (pp. 15-33)

      This chapter examines the two dominant schools of comic thought about religious liberty under the Constitution: egalitarianism and neutralism. Each school takes a single value—equality or neutrality—to be the single value of religious liberty. The scholars considered are among the most important, thoughtful, and influential writers on these subjects, but my hope is that by emphasizing the common weakness in their theories—the lack of proper appreciation for the predicament of legal theory—I will have set the board for Part Two’s exposition of the method of tragedy and history.

      The first category of comic theory takes equality...

    • CHAPTER 2 The Skeptics
      (pp. 34-54)

      Thus far, I have focused on theories that advocate a monistic value of constitutional religious liberty and claim that all clashing interests in the conflicts of religious liberty can and should be systematized by reference to the premeditated value. But some scholars are skeptical about this view of the religion clauses.

      The rejection of comic monism has given rise to two distinctive varieties of skepticism. The first variety—“strong skepticism”— includes writers who doubt that there are any values of religious liberty at all, or at least any values that might be protected and enforced constitutionally. Scholars of this powerfully...

  5. Part II. Tragedy and History
    • [PART II Introduction]
      (pp. 55-58)

      This part introduces and explains the five theses of the method of tragedy and history. The first three theses describe the conditions of theorizing about religious liberty—the tragic component of tragic-historic method¹—while the last two respond to those conditions.

      As was discussed in earlier chapters, my use of the term tragic draws on classical and literary understandings, though it does not track those meanings precisely. A tragic perspective denies that fully systematic answers to the conflicts of religious liberty are possible. It also emphasizes an acute sense of the losses and costs that adjudication invariably entails, and it...

    • CHAPTER 3 The Clash of Values of Religious Liberty
      (pp. 59-78)

      We have seen that from the comic standpoint, the idea of religious liberty is greatly, and misleadingly, simplified. Comic theorists emphasize familiar justifications for religious liberty—equality, or neutrality, or the separation of church and state, or individual autonomy and choice, or the necessity of avoiding political division or strife,¹ or the futility of compelling belief²—that appear to explain fully the state’s commitment to religious freedom.

      But comic explanations offer only weak protection for religious liberty because they say nothing about what religious freedom is valuable for³—about the multiplicity of ways in which that freedom could be interpreted,...

    • CHAPTER 4 The Inadequacy of Skepticism
      (pp. 79-91)

      In rejecting the comic monistic view of religious liberty, the first tragic thesis entails at least the view that the values of religious liberty cannot be reduced to a single, all-powerful principle, imperative, or set of principles. One might wonder whether it also necessarily entails the proposition that all conceivable values of religious liberty are relative—that is, the denial that any value has salience or application outside of a given context, and a resulting strong skepticism about the existence of any context-independent principles or values of religious liberty. An absolute skepticism posits that because “no theory of religious liberty...

    • CHAPTER 5 Loss, Sacrifice, and the Disposition of Custom
      (pp. 92-106)

      Someone as yet unconvinced by the first two theses of the method of tragedy and history might wonder what reasons or evidence support the claims, first, that the values of religious liberty clash and, second, that skeptical accounts of religious liberty are inadequate. Or, to come at it from the other direction, someone persuaded by the first and second theses might wonder what follows from them for conflict resolution in the realm of religious liberty. The third thesis grapples with these questions.

      One answer is that it is a basic fact of our experience that we feel a sense of...

    • CHAPTER 6 The Need for Modest Movement
      (pp. 107-120)

      The first three theses have described the tragic features of the method of tragedy and history—those that render theorizing about religious liberty particularly difficult and problematic. The last two theses respond to these features, offering an approach that best accommodates the predicaments of tragic judgment. That approach is called “historical,” and the two historical theses prescribe a minimalist and incremental approach to adjudication that emphasizes doctrinal and social history.

      Before developing the fourth thesis, it is useful to take the measure of what has been said thus far. This book began by describing a predicament faced by legal scholars:...

    • CHAPTER 7 The Conciliations of History
      (pp. 121-144)

      The final thesis of the method of tragedy and history is that history—both legal and cultural—has value because it represents the collected wisdom of the past in managing the tragic clashes of religious liberty. The history of the conflicts of religious liberty is the sum of its conciliations. The “intellectual sacrifice” required of the commitment to religious liberty demands the abandonment of the abiding certitude that a unified answer may be found to the question of why it is that religion has value and ought to be protected.¹ It requires this relinquishment because the collisions of the values...

  6. Part III. The Method of Tragedy and History
    • [PART III Introduction]
      (pp. 145-146)

      In this part of the book, the method of tragedy and history is applied to a selection of religious liberty disputes. The survey of issues and cases is not exhaustive, since earlier chapters have already examined how a tragic-historic theorist would decide various conflicts in both the free exercise and establishment contexts, and since the aim here is merely to give the reader a sense of the analysis that a tragic-historic approach would entail.

      It is problematic to offer any single rule, value, or principle that represents the method of tragedy and history’s approach to conflict resolution; indeed, one of...

    • CHAPTER 8 The Challenge of Free Exercise
      (pp. 147-166)

      Before discussing specific applications of the method of tragedy and history in the following chapters, it is necessary to address a complex challenge posed by the current state of Free Exercise Clause jurisprudence. The clause bars the government from “prohibiting” religious “free exercise,”¹ and the central free exercise issue involves requests for exemptions from laws that interfere with religious freedom.² The issue is under what circumstances, if any, such exemptions are constitutionally required. The most important free exercise decision of the late twentieth century, Employment Division v. Smith,³ held that in general they are never required. Smith involved the state’s...

    • CHAPTER 9 Free Exercise Applications
      (pp. 167-188)

      The current doctrine of free exercise was seen in the last chapter to obstruct the possibility of a tragic-historic approach. This chapter applies the method of tragedy and history to a selection of the core issues of free exercise law. Three specific problems are considered: the conflict between ordinary government projects and religious liberty interests; the issue of church autonomy from secular authority; and the more specific question of whether religious institutions should be exempt from antidiscrimination laws in hiring and firing certain employees.

      One fundamental type of free exercise problem concerns what the government ought to do when its...

    • CHAPTER 10 Establishment Clause Applications
      (pp. 189-206)

      One serious difficulty in applying the method of tragedy and history to the Establishment Clause has been described as an innate feature of the clause: it seems to forbid the weighing of interests.¹ This “all-or-nothing” approach has had the regrettable effect of stunting the natural process of examining different types of conflicting values and practices in Establishment Clause contexts by a kind of fixation on the “definitional stage,”² where the selection of a test, and the analysis of a practice by measurement against that test, assumes cardinal importance.

      Thus, for example, whether one chooses a neutrality test or a coercion...

    • CHAPTER 11 Objections and Replies
      (pp. 207-216)

      Having seen how the method of tragedy and history might operate in several free exercise and establishment contexts, some concluding observations about its potential weaknesses are in order. Perhaps unsurprisingly, many of the qualities that render the method of tragedy and history appealing might also be deemed deficiencies.

      The most powerful objection is that the method of tragedy and history is not sufficiently organized as a theory to provide any guidance to judges or litigants, and that it threatens to unravel into judicial lawlessness. Indeed, the method of tragedy and history may not be a “theory” at all, but only...

  7. Conclusion
    (pp. 217-220)

    Legal theory’s misapprehensions have had a distorting influence. There has been too little thought for the predicaments and irreconcilable conflicts faced by law. There has been too much for constructing systems that solve problems conclusively and without tragic remainder. We would do better to cast a colder eye on the sanguine pieties of legal theory. We may find that our theories, when composed in minor keys, are less negative than we had supposed. Legal theory, stripped of its pretensions, has the power to understand the world, to imagine why it is the way that it is, and, in the end,...

  8. Notes
    (pp. 221-300)
  9. Acknowledgments
    (pp. 301-302)
  10. Index
    (pp. 303-306)