Document Type

Working Paper

Publication Date

3-27-2016

SSRN Discipline

PSN Subject Matter eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Political Theory eJournals; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; AARN Subject Matter eJournals; Humanities Network; Political Science Network; Anthropology & Archaeology Research Network

Abstract

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 illiberalismfearing 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 subgroups 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 states realm when they seek accommodations to avoid that prospect I argue that Tushnets 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 antimartyrdom position Second I argue that the Articles primary argument has implications for how governmental decisionmakers 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 nearcontemptuous 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

Download

Share

COinS