This summer, Harvard University Press published The Tragedy of Religious Freedom, by our very own Marc DeGirolami (left), CLR’s Associate Director. In the book, Marc argues for a “tragic” understanding of religious freedom, one “that avoids the twin dangers of reliance on reductive and systematic justifications, on the one hand, and thoroughgoing skepticism about the possibility of theorizing, on the other.” This week, Marc answers some questions about his book. Among other things, he discusses the differences between “tragic” and “comic” legal theories; the value of history and tradition in judicial decision-making; and the inevitability of judicial discretion. He also explains why the Court got religious freedom wrong in Employment Division v. Smith and right in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.
CLR Forum: Marc, explain what you mean by “comic” and “tragic” approaches to law generally. Why do you think religious freedom, in particular, should be addressed from a tragic perspective?
DeGirolami: The terms comic and tragic are ancient and have been used in classical, literary, and philosophical settings. I draw on some of these meanings in the book, but I use comic in the legal context to mean two things: (1) a preference for systematic ordering of the law by reducing legal values either to one or to a small set, in the belief that human society is progressively improved by that reduction; and (2) the marginalization of the loss of other values in the process of accomplishing (1). Tragic approaches to the law resist both of these points. A tragic approach to law says that the reasons we value a practice like religious freedom are plural and cannot be reduced. Each value struggles to avoid absorption and subordination by the others. The clash of values results both from the limits of human reasoning and from the conflict of human interests and aspirations. So in the face of conflict in law, a tragic approach affirms that the comic impulse to reduce legal values, and systematically to marginalize those that are subordinated, will exacerbate conflict and end up deforming, and perhaps eventually destroying, important social practices and institutions.
CLR Forum: You single out Employment Division v. Smith, Justice Scalia’s famous opinion in the peyote case, as an example of the misguided “comic” approach and argue that it should be gradually dismantled. What’s so wrong with Smith? And why not just overrule it?
DeGirolami: Yes, I am critical of Smith and believe it to be an example of a comic approach. Smith reduced all possible values of free exercise under the Constitution to a single value: formal neutrality. A neutral rule that is applied generally no longer can violate the Free Exercise Clause of the Constitution after Smith, no matter how severely the rule burdens the religious free exercise of an individual or a group and no matter how insubstantial the government’s interest in enforcing the rule on a religious claimant. The Smith decision attempted to accomplish both of the comic points I listed above. It wanted to bring system Continue reading