44 Pages Posted: 27 Mar 2016
Date Written: March 25, 2016
Religious accommodation is going through a period of heated contestation in multiple arenas: in the courts, in the academy, and in public and political debate. For the most part, the contest involves the specific occasions and doctrinal mechanics of accommodation, not its availability. But contestation over specific applications, particularly when it is intertwined with a larger trend of political polarization, can lead to a greater skepticism about and rejection of religious accommodation altogether. And so it has. As a thick version of equality and dignity assumes the status of "the master value of our time," as a rationalist rather than pluralist strand of liberalism becomes increasingly dominant, as specific controversies evoke strong concerns about the danger of religious accommodation, and as pluralism is seen more as a danger to be cabined than as a good in itself, more liberals have adopted a position that is much more critical of religious accommodation as such. To slow or halt that momentum, and not simply relegate accommodationist arguments to the realm of religious traditionalism or political conservatism and encourage further polarization around the topic, arguments for religious accommodation are needed that speak in roughly liberal terms to liberal audiences.
That is the primary goal of this Article. It sets out one standard liberal concern about religious accommodation: that it encourages or entrenches illiberalism and illiberal groups. And it argues that resistance or rejection of religious accommodation as such on illiberalism-fearing grounds fails to fully appreciate the bifurcated response to such refusals. While some religious groups, or portions of such groups, may liberalize as a result of refusals to accommodate, other groups or sub-groups may respond by becoming more, and more intensely, illiberal. Those groups are not only likely to become more confirmed in their illiberal views, but also to withdraw from participation in the larger liberal society, adopting a "Benedict option" approach that makes them more insular and less involved in broader public discussion and participation, and that will make it even more difficult for its most vulnerable members to have access to information or exit options. There are, in short, good reasons for liberals to continue to believe in the value and availability, from their own perspective, of a general principle of religious accommodation.
The Article has three secondary goals. First, it discusses an important argument against accommodation made some time ago by Mark Tushnet: a theological argument for skepticism about religious accommodation, on the grounds that the state should in some sense be indifferent to the threat of religious martyrdom, and that religious groups err by moving into the state's realm when they seek accommodations to avoid that prospect. I argue that Tushnet's argument is important and intriguing, but too narrow in its view of the religious realm and its relation to the secular realm. Religious groups are thus not precluded from arguing for governmental accommodation of religion, and liberals should and do continue to have reasons to favor an anti-martyrdom position. Second, I argue that the Article's primary argument has implications for how governmental decision-makers, particularly judges, should approach accommodation cases. Drawing on the literature dealing with how courts should speak to constitutional "losers," I argue that they should avoid categorical, near-contemptuous rejections of religious arguments for accommodation, lest they add to the threat of illiberal retrenchment and insularity and drive illiberal groups out of the general sphere of liberal society altogether. Religious groups may indeed lose in some accommodation cases, but it can matter how they lose. Finally, albeit more implicitly than expressly, I suggest that the current debate over accommodation would benefit from greater emphasis on the pluralist strand of liberalism, and a view of religious and other forms of pluralism as a positive good to be encouraged rather than a threat to be managed.
Keywords: Liberalism, Religious Accommodation, Accommodationism, Hobby Lobby, RFRA, Religious Freedom Restoration Act, Illiberalism, Benedict Option, Pluralism, Free Exercise
Suggested Citation: Suggested Citation
Horwitz, Paul, Against Martyrdom: A Liberal Argument for Accommodation of Religion (March 25, 2016). Notre Dame Law Review, Vol. 91, No. 4, 2016; U of Alabama Legal Studies Research Paper No. 2754635. Available at SSRN: https://ssrn.com/abstract=2754635