The (Hoped for) Shallowness of Progressive Skepticism Towards Religious Freedom

In his recent post, Mark writes:

Increasingly, secular liberals are losing patience with claims for religious liberty, particularly from traditionalists who dissent from progressive orthodoxy. Only fanatics could object to progressive goals like the Contraception Mandate and same-sex marriage, they believe, and it’s wrong to accommodate such people. Accommodation encourages backward and malevolent attitudes that cause innocent people grave harm.

I wonder to what extent this is true. On one level, I think that Mark is clearly correct that secular liberals have increasingly decided that “religious liberty” is a code word for various regressive social positions and behave reflexively when it is invoked. On the other hand, I think that some religious conservatives have been rather too glib about labeling every social development to which they object as a threat to religious freedom. To be clear, I am not trying to adopt a pox-on-both-your-houses-above-the-fray stance here. I think that secular liberals have tended to overreact more than religious conservatives, and I think that religious conservatives are right to be wary of the enthusiasm with which progressives have used the power and authority of the state to stamp out perceived social evils. To be sure, conservatives have defended stuff like Blue laws or the Ten Commandments on the courthouse lawn, while progressives have done stuff like create the New Deal regulatory state. The progressive response strikes me as rather more legally ambitious.

That said, I also think that most people – left and right – are pretty shallow and reactive in how they make political arguments. Just 20 years ago, RFRA enjoyed overwhelming bipartisan support. Today it makes many liberals apoplectic. Perhaps this reflects a deep shift in attitudes towards religious freedom, as Mark suggests. Perhaps not. I wonder if at the end of the day, all of this is about two things and two things only. The first is gay marriage, and the second is antidiscrimination law. Right now, progressives worry that granting the legitimacy of any religious freedom claim will rip massive holes in antidiscrimination laws and might threaten the onward march of gay marriage.

In actual fact, I think that religious freedom exemptions such as RFRA present basically zero threat to either movement. Given the shift in attitudes and demographics along with Anthony Kennedy’s ambitions for immortality, gay marriage is already happening in the United States, and religious conservatives are not going to stop it. As for antidiscrimination laws, to my knowledge no court has ever found the application of the compelling state interest test to a law burdening religious exercise creates an exemption from the application of antidiscrimination laws outside of a church setting. Give that some version of this standard has been applied off and on to religious freedom claims for half a century, if religious freedom was going to destroy antidiscrimination law, I think it already would have happened. Hence, if RFRA represents the maximal position on religious freedom in the current landscape, then the bottom line is that there really isn’t any threat to antidiscrimination laws.  To be clear, I think that antidiscrimination laws present genuine religious freedom problems, and I would prefer a regime in which there were religious exemptions in some cases from such laws.  I just don’t think that such a regime is at all likely, and I don’t think that RFRA or the compelling state interest test is going to deliver it.

I think that over time, both the success of gay marriage despite religious opposition and the continuing vitality of antidiscrimination laws despite state or federal RFRA legislation will become glaringly obvious, even to the most fearful of progressives. Once this happens, I wonder if the newfound hostility to religious freedom will continue. It might. I think that a lot of what happens in politics – even the high politics of academic legal debate – is tribally driven. Secular progressives really dislike religious conservatives (and vice versa). I can imagine a world in which “religious freedom” becomes coded as “racist, homophobic religious hick” in the progressive mind, and their reactions get determined by the overwhelming need to insure that the other team doesn’t win.

I think, however, it is also possible that once it becomes clear that priorities on gay marriage and antidiscrimination laws are not threatened that progressive hostility to religious freedom will wane. I don’t know if this is the case, but it seems possible that really there is nothing deeper going on here than gay marriage and antidiscrimination laws.

Thomas More, Villain

Anton Lesser Thomas More

Anton Lesser as Thomas More in Wolf Hall (BBC)

When it comes to up-market historical fiction, nobody delivers like the Tudors. There’s so much entertainment value in that Renaissance dynasty: royalty; costumes; cool accents; lust and murder; political and religious intrigue; the works—plus enough history to make you feel virtuous for watching. In the 1930s, studios turned out films like The Private Life of Henry VIII and Fire over England, which, for my money, still has the best portrayal of Elizabeth on film, by the great British actress Flora Robson. In the 1960s, there was Anne of the Thousand Days. Forty years ago, PBS broadcast Elizabeth R and The Six Wives of Henry VIII. More recently, there was Showtime’s The Tudors. And now on PBS’s Masterpiece there is Wolf Hall, a BBC dramatization of Hilary Mantel’s 2009 novel.

All historical fiction involves anachronism, of course, and depictions of the Tudors often reveal more about contemporary issues than they do about the past. Robert Bolt’s A Man for All Seasons portrayed Thomas More as a liberal dissenter from state ideology, a man committed to individual conscience and the rule of law. (In the 1960s, liberals identified with such people). Glenda Jackson’s 1971 portrayal made Elizabeth an icon for the rising feminist movement.

I was able to catch an episode of Wolf Hall on Sunday, and it seems to me the new series likewise reflects our current cultural moment. Maybe I spend too much time thinking about these things, but to me it is impossible to miss the allusions to current debates about rational government and religious belief. The message, for religious liberty, is not a congenial one.

Wolf Hall—which, incidentally, has great production values and wonderful performances, especially by Damian Lewis as Henry VIII—inverts the conventional portrayal of the Henrician Reformation. Most past film and television versions, even those sympathetic to Henry, show More as a kind of hero, a noble, if misguided, martyr for freedom of conscience. In Mantel’s version, by contrast, it’s Cromwell, the supporter of state orthodoxy and More’s tormentor, who is the hero. And More, the man who resisted the state from religious conviction, is the unalloyed villain.

Now, More was a more complicated figure than widely understood. Even saints have failings. He may have been, as Swift famously wrote, “a person of the greatest virtue this kingdom ever produced,” but, as chancellor, he persecuted Protestants and approved burning heretics at the stake. Mantel’s portrayal goes beyond offering a helpful corrective to the conventional wisdom, though. Her More is not deeper or truer to the historical record. He is simply evil, a nasty piece of work—cold, fanatical, and sadistic.

Mantel’s Cromwell, by contrast, is warm, self-effacing, and pragmatic, even wistful—a family man, though with a ruthless edge. As between him and More, he is easily the more reasonable. Religious enthusiasm is not for him; he is far too insightful and levelheaded. He is also more compassionate. When More tells him that torture is for the victim’s own good—the real More forcefully denied that he ever tortured anyone—Cromwell is aghast. Cromwell is far too tender-hearted to believe something like that. He cannot bear to see someone burned at the stake for heresy. More, we gather, would be delighted.

I know nothing about Mantel’s politics. Perhaps her choices in Wolf Hall are purely aesthetic. Maybe she set herself the artistic challenge of portraying Cromwell, one of British history’s great villains, in a favorable light. But I’m guessing she has an agenda. Increasingly, secular liberals are losing patience with claims for religious liberty, particularly from traditionalists who dissent from progressive orthodoxy. Only fanatics could object to progressive goals like the Contraception Mandate and same-sex marriage, they believe, and it’s wrong to accommodate such people. Accommodation encourages backward and malevolent attitudes that cause innocent people grave harm.

In its biased portrayal of More, British history’s great example of religious resistance to state orthodoxy, Wolf Hall is sending its audience a message: Don’t think this man was at all admirable. He was a dangerous head case. And, by extension, be careful of his analogues today, who continue to oppose religious fanaticism to tolerance, reason, and progress. Cromwell, and pragmatic people like him who protect us from the forces of reaction, are the real heroes.

It’s a powerful message, and one with increasing influence. Perhaps this explains why PBS is advertising Wolf Hall as “a historical drama for a modern audience.” The fact that this hatchet job on Thomas More appears in an impeccably well-done BBC production—surely the gold standard in upper middle class entertainment—shows how fast our culture is changing, and how much work defenders of religious liberty have before them.

“Methodism in Australia: A History” (O’Brien & Carey, eds.)

In May, Ashgate will release “Methodism in Australia: A History” edited by Glen O’Brien (Sydney College of Divinity) and Hilary M. Carey (University of Bristol). The publisher’s description follows:

Methodism has played a major role in all areas of public life in Australia but has been particularly significant for its influence on education, social welfare, missions to Aboriginal people and the Pacific Islands and the role of women. Drawing together a team of historical experts, Methodism in Australia presents a critical introduction to one of the most important religious movements in Australia’s settlement history and beyond. Offering ground-breaking regional studies of the development of Methodism, this book considers a broad range of issues including Australian Methodist religious experience, worship and music, Methodist intellectuals, and missions to Australia and the Pacific.

Alavi, “Muslim Cosmopolitanism in the Age of Empire”

This month, Harvard University Press releases “Muslim Cosmopolitanism in the Age of Empire” by Seema Alavi (University of Delhi). The publisher’s description follows:

Muslim Cosmopolitanism in the Age of Empire recovers the stories of five Indian Muslim scholars who, in the aftermath of the uprising of 1857, were hunted by British authorities, fled their homes in India for such destinations as Cairo, Mecca, and Istanbul, and became active participants in a flourishing pan-Islamic intellectual network at the cusp of the British and Ottoman empires. Seema Alavi traces this network, born in the age of empire, which became the basis of a global Muslim sensibility—a form of political and cultural affiliation that competes with ideas of nationhood today as it did in the previous century.

By demonstrating that these Muslim networks depended on European empires and that their sensibility was shaped by the West in many subtle ways, Alavi challenges the idea that all pan-Islamic configurations are anti-Western or pro-Caliphate. Indeed, Western imperial hegemony empowered the very inter-Asian Muslim connections that went on to outlive European empires. Diverging from the medieval idea of the umma, this new cosmopolitan community stressed consensus in matters of belief, ritual, and devotion and found inspiration in the liberal reforms then gaining traction in the Ottoman world. Alavi breaks new ground in the writing of nineteenth-century history by engaging equally with the South Asian and Ottoman worlds, and by telling a non-Eurocentric story of global modernity without overlooking the importance of the British Empire.

From the Fuggers to Justice Ginsburg

One of the things that the law has always done is order the relationship between religion and the market. For example, the prohibition on usury, which for a long time was one of the central issues in commercial law, has religious roots. In the Bible, charging interest on debt is condemned. In the ancient world, debt was less a way of raising capital for new ventures than a response to misfortune. The money lender was less a financier than a predator who extended credit to the unfortunate to tide them over and extracted high interest, often as a way of enslaving the debtor or his children.  Hence the prohibition.

By the high Middle Ages, however, bankers such as the Fuggers were seeking to extend credit to merchants to finance commercial ventures. They developed what became known as the German Contract. The banker would from a partnership with the merchant in which the banker would contribute capital and share in the profits of the venture. Such investments did not run afoul of the prohibition on usury because, to use modern terminology, they took the form of equity rather than debt. The banker would then purchase from the merchant an insurance contract on the venture, in which the merchant agreed to accept the risk of the venture’s failure, promising – in return for a nominal fee – to pay the banker the expected profits in the event of failure. Insurance, not being a loan, did not come within the prohibition on usury. Taken together, of course, the partnership agreement and the insurance contract were the economic equivalent of a loan for interest. The papacy’s willingness to bless the German Contract is what launched the beginnings of modern finance.

Notice that in this legal world, commerce is supposed to be infused with religious values and the law is supposed to structure markets so that they reflect these godly concerns. Usury is a sin, one that cannot be allowed to stain honest commerce. The debate over the German Contract was a theological debate, one about whether or not the law could bless an arrangement that seemed to skirt the edges of what revelation defined as legitimate commercial activity.

The law continues to structure the relationship between commerce and religion. Consider Justice Ginsburg’s dissent in the Hobby Lobby case. Rejecting the idea that for-profit corporations could exercise religion, Justice Ginsburg’s argument was embarrassed by the facts that churches – which are organized as corporations – routine claim to practice religion and obtain religious protection. She distinguished churches from for-profit corporations by writing, “Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. ”

As an empirical matter, of course, this statement is false, as the Hobby Lobby case itself illustrates. There are many for-profit corporations that seek to infuse their commercial activities with religious values and some such corporations are formed for explicitly religious purposes, as for example when for-profit religious publishing houses are organized to advance a particular set of theological positions.

We can, however, understand Ginsburg’s dissent as making a normative claim rather than an empirical claim. Viewed most charitably, her dissent suggests that the market should be understood as an explicitly areligious space, one in which religious considerations are out of place and where they ought to be ignored. One might justify such a position in a number of ways. For example, perhaps religion should be seen as purely private, while the market is in some sense public. Perhaps we view religion as particularly dangerous, and therefore ought to limit its ability to wield the power that can accrue to successful corporations. One might point out that the market is a particularly good mechanism for fostering cooperation between those with sharply differing religious and moral beliefs. Perhaps religion ought to be excluded from the marketplace lest it threaten the ability of commerce to mediate moral pluralism.

It’s hard to discern which if any of these arguments motivates Ginsburg’s position, and one suspects that like many judicial statements it wasn’t all that carefully thought out. What is striking to me is that while the position gestured towards in the Ginsburg dissent is essentially the polar opposite of the stance taken by participants in the usury debates, it shares with the medieval casuists the conviction that the law ought to regulate commerce so as to insure that it takes the proper stance towards religion.

Ventura, “From Your Gods to Our Gods”

I’m slightly late in noting this, but our friend Professor Marco Ventura (Siena; Ventura, FYGTOGKU Leuven) has recently published this very interesting book, From Your Gods to Our Gods: A History of Religion in Indian, South African, and British Courts (Cascade Books 2014). Marco’s work is always penetrating and insightful, and this looks to be no exception. Here is the description:

The global world debates secularism, freedom of belief, faith-based norms, the state’s arbitration of religious conflicts, and the place of the sacred in the public sphere. In facing these issues, Britain, India, and South Africa stand out as unique laboratories. They have greatly influenced the rest of the world. As single countries and together as a whole, the three have moved from the colonial clash of antagonistic religions (of your gods) to an era when it has become impossible to dissociate your god from my god. Today both belong to the same blurred reality of our gods. Through a narrative account of British, South African, and Indian court cases from 1857 to 2009, the author draws an unconventional history of the process leading from the encounter with the gods of the other to the forging of a postmodern, common, and global religion. Across ages, borders, faiths, and laws, the three countries have experienced the ambivalent interaction of society, politics, and beliefs. Hence the lesson the world might learn from them: our gods promise an idealized purity, but they can only become real in the everyday creation of mixed identities, hybrid deities, and shared fears and hopes.

“The Prophet and the Reformer” (Grow & Walker, eds.)

This June, Oxford University Press will release “The Prophet and the Reformer: The Letters of Brigham Young and Thomas L. Kane” edited by Matthew J. Grow and Ronald W. Walker (Professor Emeritus, Brigham Young University).  The publisher’s description follows:

The Prophet and the ReformerUntil his death in 1877, Brigham Young guided the religious, economic, and political life of the Mormon community, whose settlements spread throughout the West and provoked a profound political, legal, and even military confrontation with the American nation. Young first met Thomas L. Kane on the plains of western Iowa in 1846. Young came to rely on Kane, 21 years his junior, as his most trusted outside adviser, making Kane the most important non-Mormon in the history of the Church. In return, no one influenced the direction of Kane’s life more than Young. The letters exchanged by the two offer crucial insights into Young’s personal life and views as well as his actions as a political and religious leader. The Prophet and the Reformer offers a complete reproduction of the surviving letters between the Mormon prophet and the Philadelphia reformer. The correspondence reveals the strategies of the Latter-day Saints in relating to American culture and government during these crucial years when the “Mormon Question” was a major political, cultural, and legal issue. The letters also shed important light on the largely forgotten “Utah War” of 1857-58, triggered when President James Buchanan dispatched a military expedition to ensure federal supremacy in Utah and replace Young with a non-Mormon governor.

This annotated collection of their correspondence reveals a great deal about these two remarkable men, while also providing crucial insight into nineteenth-century Mormonism and the historical moment in which the movement developed.

Tuna, “Imperial Russia’s Muslims”

This May, Cambridge University Press will release “Imperial Russia’s Muslims: Islam, Empire and European Modernity, 1788–1914” by Mustafa Tuna (Duke University).  The publisher’s description follows:

Imperial Russia's MuslimsImperial Russia’s Muslims offers an exploration of social and cultural change among the Muslim communities of Central Eurasia from the late eighteenth century through to the outbreak of the First World War. Drawing from a wealth of Russian and Turkic sources, Mustafa Tuna surveys the roles of Islam, social networks, state interventions, infrastructural changes and the globalization of European modernity in transforming imperial Russia’s oldest Muslim community: the Volga-Ural Muslims. Shifting between local, imperial and transregional frameworks, Tuna reveals how the Russian state sought to manage Muslim communities, the ways in which both the state and Muslim society were transformed by European modernity, and the extent to which the long nineteenth century either fused Russia’s Muslims and the tsarist state or drew them apart. The book raises questions about imperial governance, diversity, minorities, and Islamic reform, and in doing so proposes a new theoretical model for the study of imperial situations.

Movsesian to Speak at Conference on the Islamic State & Religious Minorities

I’m delighted to announce that I’ll be a speaker at the Hudson Institute’s upcoming conference, “The Islamic State’s Religious Cleansing and the Urgency of the Strategic Response,” scheduled for May 7 in New York. The conference will be lead by Cardinal Timothy Dolan and Professor Walter Russell Mead; other speakers include Kirsten Powers and Samuel Tadros. Here’s a description:

Nearly a year after the Islamic State swept through northern Iraq and enforced its convert-or-die ultimatum, tens of thousands of Iraqi Christians and members of other ancient religions remain in encampments in Kurdistan and neighboring countries. They subsist on international humanitarian aid and their children lack access to education. Many are losing hope of ever returning to their homes and, with few options to resettle within the region, many are seeking to leave.

Is there any hope that these Christians and other religious minorities can remain in the Middle East?

I’ll be on the first panel, “Genocide and Crimes Against Humanity: the Islamic State’s Impact on Vulnerable Religious Minority Communities.”

For the conference schedule and information about registration, please click here.


Around the Web This Week

Some interesting law and religion news stories from around the web this week: