Reconsidering the Authority of Religious Liberty within the Liberal Order

At the heart of Steven Smith’s essay is the claim that neutrality is a self-defeating foundation for religious freedom.  For Smith, we are now confronted with a choice between religious neutrality and religious freedom.  I concur with the basic thrust of this critique and of the concomitant need to think outside the bounds of neutrality.  Yet, while the difference is one of tone more than principle, I am perhaps even less sanguine that Smith about the residual uses of neutrality, even differently formulated.  Even neutrality of a softer historical variety participates in the fundamental problematic of legal and political modernity.  In particular, the problem with neutrality is not merely that it is circular and self-defeating in its logic, but that it sustains and deepens the chasm of moral meaning between law and religion.  The problem of neutrality is thus the problem of defining the locus of moral meaning within late modern politics.  This is a point towards which Smith arguably gestures but which might helpfully be named more explicitly.

I should perhaps open with something of a qualification of the position adopted above. There is not one neutrality, but rather multiple neutralities grounded in different intellectual genealogies.  There is, I would therefore propose, an alternative way of conceptualizing neutrality that is the expression of a basically theological insight.  In this form, a neutral state is but a desacralized state that possesses no sacral meaning or vocation.  Neutrality in this sense rests on a jurisdictional claim concerning the relationship of state and church. As Smith discusses, the rationales for religious freedom voiced by Roger Williams, John Locke, Thomas Jefferson, and James Madison were all religious in character (though in quite different ways) and thus shared to some extent in this insight.  The divide is thus not only between neutrality and non-neutrality, but between neutrality open to religion and neutrality defined against religion.

In light of this claim, it must be said that the problem Smith identifies is not with neutrality as such, but with a particular account of neutrality.  But this brings us to the core of the problem, which is that neutrality as now widely and assumptively understood is of a different order than any account of neutrality derived from a theology of the desacralized state.  Due both to cultural inertia as well as the logic of constitutional jurisprudence, neutrality has become tethered, perhaps ineluctably so, to a certain conception of secularism.  Far from being neutral, the language of neutrality has come to represent the position that pluralism and equality find meaning and preserve only within the bounds of a deep secular politics segregated from religious particularity.

This shift means that neutrality no longer embodies a jurisdictional account of the relationship between religion and state – an account that finds its very logic only in theology – but rather a normative account of the goods of the state.  To put the matter differently, neutrality is not about the limits of politics but about a way of being within politics.  As such, neutrality advances a thick account of political life that invariably stands in some measure of tension with religion. Secular reasons are presented as non-ideological.  But as Smith points out in his discussion of Epperson v. Arkansas, these reasons are not neutral at all, but rather the privileging of one norm over another.

The capture of neutrality by a secular logic was not inevitable.  At the same time, it might be understood more as the outworking of legal modernity than as a historical deviation therefrom.  It is, after all, not a great distance from the segmentation of law and religion into ontologically distinct spheres of meaning to a notion of neutrality insulated from religion.  In this respect, Smith’s critical investigation of neutrality invites us into a broader problematic.  What is ultimately at stake in the debate over neutrality is not so much neutrality, but the moral order of legal modernity more basically.

What then is the response to be if neutrality, in its regnant formulation, fails to offer an adequate framework for upholding religious freedom?  One certainly understands the appeal of working to resuscitate a thin understanding of the “neutral” state that avoids the circularity of secular neutrality.  The voluntarist tradition Smith references, grounded as it in religious presuppositions, would seem to be one such candidate with particular currency in American discourse.  Yet, attempting to resuscitate the category of neutrality, even in a theological manner, simply clouds the issues at stake in what has become a deep cultural and even civilization dispute.  Quibbling over the suitability and salvageability of neutrality merely delays an engagement with more elemental questions about the place of religion within the liberal order.  Given the cultural dynamics at play, the most pressing task for those concerned with developing legal infrastructure conducive to religious freedom is to defend the qualitatively distinctive role of religion.  It is not to construct a theological defense of neutrality, plausible though this task is, but rather to move beyond neutrality in order to define the proper mode of engagement between theology and legal secularity.

This task includes the need to ground religious freedom in religious reasons.  I follow Smith’s suspicion that secular formulations will prove inadequate.  But in important respects, the task must be even bolder.  What needs to be asserted are not just the religious grounds of religious freedom, but the link between religious freedom and the liberal order more broadly.  The real limitation of neutrality language is that it flattens the liberal social order in such a way that the architectonic role of religion-qua-religion is disrupted.  The turn to the language of neutrality as the predominant way of expressing the constitutional status of religion has been, in this respect, even more pernicious than we might have thought. Neutrality, in its distinctive modern guise, is nothing less than a refusal to understand the liberal order through a theological lens.

The limitations of a non-theological account of the social order have been taken up in particularly interesting ways during the recent British debate over legal pluralism.  On one hand, Archbishop of Canterbury Rowan Williams has proposed the need to consider opening space for religious law within secular law as a way to more fully incorporate Muslim communities into the fabric of civic life.  This project was an expression of what Williams termed “a theology of law” that challenged the Enlightenment account of law’s univocity.  Theologian John Milbank responded that only a recovery of a distinctively Christian insight – what he termed a renewed Christendom – could provide an adequate starting point for addressing the demands of group religious rights.  The particular merits of these respective positions are less important than the fact that they both embody bold attempts to push debate about law and religion beyond the linguistic and structural confines of secular neutrality.  The residues of older patterns of thought have, to a large extent, staved off the impulse for American conversation to move in a similar direction.  Religious freedom floats on the fumes of Christian cultural capital.  Perhaps this can continue for some time longer.  But the real lines of debate are now emerging more clearly, as the recent argument that religious free exercise rights can be subsumed into associational rights indicates the diminished awareness that religion need maintain any privileged position.  The Supreme Court’s ruling in Hosanna-Tabor aside, the Administration’s contraception mandate discloses the extent to which the balancing point between freedom and equality is increasingly unstable and contested.

What is at stake in asserting the distinctive status of religion, and of maintaining the idea of religion as the first freedom, is the task of shaping moral meaning within the social order.  Will secular law, indeed secular politics more generally, derive its meaning from religion or, rather, against religion?  The collapse of religious freedom into associational rights increasingly allows the state to arrogate to itself the predominant role in shaping the meaning of law’s liberty, and moreover, to do so in a way that posits the prerogatives of the state against religion.  Neutrality, even in a resuscitated form, is an inadequate response.  But so too is voluntarism, with its implicit atomism, for religious freedom does not pertain merely to individual freedom but also – perhaps, more so – to institutional freedom.  Only religion concretized in institutional form can adequately counterpose the state as a situs of moral authority.  The ontological separation of law and religion that lies at the heart of modern moral order means that culture is now the basic point of contact between these dueling spheres of authority.  To endorse neutrality is to endorse a certain form of culture formation that will ultimately facilitate a violence against religious particularity.

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