Over the past week, Ross Douthat has twice (here and here) very thoughtfully engaged this Emily Bazelon piece in Slate on the question of religious liberty as it has presented itself in a couple of different recent contexts.
As he rightly notes, Bazelon’s article essentially attempts a redefinition of pluralism as a tool of progressive political action rather than a broad protection of the right to dissent. Pluralism is only legitimate, Bazelon suggests, when it is used by progressive dissenters to break the stranglehold of a traditionalist majority; when instead it is used by traditionalist dissenters to break the stranglehold of a progressive majority, it is illegitimate. It is a view of the right of conscience narrowed by its subservience to the progressive understanding of the nature of the liberal society—that is, to a view of history as defined by a series of breakthroughs in the struggle against ancient prejudice. (President Obama’s second inaugural address offered an exceptionally clear example of what American history looks like through this prism, for instance.)
There is a further element implicit in Bazelon’s analysis that Ross did not address, however, and which adds some important complications to the argument.
The primary analytical tool that Bazelon uses to draw a distinction between the two types of religious liberty she wants to distinguish is the difference between the individual practice of religion and the institutional practice of religion. And with regard to both the case of employers subject to the HHS mandate and business owners declining to participate in gay weddings, she wants to argue that while people’s freedom to believe whatever they want can be respected, their freedom to effectuate those beliefs through corporations they may own or other institutions they cooperate in does not deserve a similar protection or regard.
This line of argument is actually an extension of the same progressive vision as that which animates Bazelon’s larger point. It follows in a thread of the progressive intellectual tradition that we have seen resurgent in a big way of late: the argument that society really only consists of individuals and the government, and that the various institutions and power centers that lie between the two are inherently illegitimate and should either be seized or pushed aside when they get in the way of public-policy objectives. The things people do together are fundamentally political and so are answerable to the nation’s legitimate political authority even in instances when individuals wouldn’t be.
This is obviously a line of thinking that’s very dangerous to the American idea of freedom and to all of our political rights, and it is especially problematic for religious liberty because it interprets the freedom of conscience to be entirely a matter of belief and not of action. People can believe whatever they want, but when they want to act on their beliefs as anything more than individuals they can be coerced or restrained in violation of those beliefs. For a business to be treated otherwise would be a violation precisely of the rights of conscience of individuals who do not agree with the owners of that business, Bazelon suggests—a line of thinking that requires her to treat businesses and other institutions more like governments than like individuals. She makes that explicit, noting toward the end of her piece: “This is a country of live and let live. That’s how businesses as well as the government have to function.” This equation of economic power with political power is again a classic progressive trope—it is the key conceptual move of Herbert Croly’s The Promise of American Life, for instance.
But on the question of religious liberty in particular, it is also a line of thinking with some rather deep roots in our intellectual and legal tradition, and so presents defenders of the rights of conscience with a complicated problem.
The English common law tradition of religious toleration has always contorted itself some on the question of individual vs. institutional rights. As a practical matter, that tradition was born of efforts to find a way to provide protection for Jews and protestant dissenters in a nation with an established church but specifically not to provide protection for Catholics (for reasons that of course run very deep in English history). It did this, starting as early as Cromwell, by distinguishing between individuals and institutions and (even more significantly) between houses of worship and other institutions that were religiously affiliated but not specifically intended for preaching the faith. Catholicism is an exceptionally institutional religion, with massive charitable and educational arms (and in some countries also with hospitals, shelters, adoption agencies, legal-aid offices, and other institutions) which are Catholic but are not churches and which not only employ but also serve non-Catholics. Such arms are much more rare in other religious traditions, and used to be even more so. So the distinction allowed for broad toleration of just about everyone but Catholics.
This distinction is evident even in one of the greatest early-enlightenment statements of that tradition of toleration, John Locke’s 1689 “A Letter Concerning Toleration,” which specifically calls for toleration of individual expressions of Catholic faith but excludes from such protection the institutional manifestations of the Catholic Church. The only institutions granted such protection in this tradition tended to be actual houses of worship, which engaged in no activity but the profession of faith.
The American offshoot of this tradition of toleration has generally taken a somewhat different approach to this question for a simple reason: We do not have a state religion here. And we have tended to take the absence of an Anglican monopoly on legitimate religiously-rooted social institutions to mean not that there could be no such institutions at all but rather that different communities of faith could build out different institutional forms and stake out for themselves a variety of roles in civil society and the private sphere. This has meant seeing some groups of people working together, and not just individuals alone, as protected by the various forms of the right of conscience and accepting as legitimate the idea that groups of people, as well as individuals, should, whenever reasonably possible, be protected from forms of coercion or restraint that violate their religious beliefs.
This understanding of religious liberty is by now well rooted in the American legal tradition. Even in arguing that some institutions (like for-profit corporations) should not be treated as possessing religious liberty, the administration in the HHS mandate cases had to acknowledge that some other institutions (like religious non-profit institutions) should be so treated. What the administration is doing in these cases is trying to push against the American tradition of religious liberty to the extent it can at this point, and advance a view that looks more like the early-enlightenment British version of religious toleration. This has even taken the particular form of trying to strictly limit the definition of a religious institution to a house of worship, as the administration sought to do in its HHS mandate regulations, and so effectively telling religious people what religion is.
This is what the kind of argument that Bazelon seeks to advance consists of too: An attempt to define all common action as essentially political, and therefore as subservient to the powers that be in an effort to give the state a monopoly on defining and pursuing moral progress in action. The surely unintentional analogy to the contorted definition of religious toleration from which our fuller definition grew shows us how complex these questions can be, but it also reveals one of the implicit ambitions of American progressivism: to ascend to the status of a state religion that will brook no competitors.