Religious Freedom in an Egalitarian Age

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Nelson Tebbe
  • Cambridge, MA: 
    Harvard University Press
    , February
     2017.
     288 pages.
     $39.95.
     Hardcover.
    ISBN
    9780674971431.
     For other formats: Link to Publisher's Website.

Review

Americans today inhabit a nation continually reassessing what it means to protect “religious freedom.” As Nelson Tebbe observes in Religious Freedom in An Egalitarian Age, Americans are experiencing “a period of intense conflict between religious freedom and equality law” (1). This conflict is focused on the tension between the egalitarian impulse toward protections for the full rights of all individuals and the traditional American commitment to preservation of freedom to exercise sincerely held religious beliefs, even the beliefs of those who “dissent from aspects of egalitarianism” (1). Tebbe’s task is to resolve that tension, and he argues it is possible to do so with rationality and certainty.

The work is divided into three parts: Method, Principles, and Applications. In part 1, Tebbe lays the methodological framework for his argument built on his theory of social coherence. Part 2 identifies four key principles that shape this approach to religious freedom and provide a path to negotiating the tension between religion and equality: (1) avoiding harm to others, (2) fairness to others, (3) freedom of association, and (4) government non-endorsement. In part 3, the author brings his discussions of methodology and principles to bear on practical applications in specific contemporary religious freedom debates. 

Tebbe suggests in the introduction that a casual reader may omit part 1 if they wish to avoid an “in the weeds” discussion of methodology. While this is possible, I would suggest that the remainder of the work is made clearer with the thicker understanding of social coherence provided in these opening chapters. Tebbe argues that the “accessibility” of social coherence theory is one reason it is such an appealing and effective methodology. Adapted from John Rawls’ cohesion approach to moral reasoning, wherein people assess whether or not their beliefs “fit” with one another, Tebbe’s social coherence seeks to emphasize the effects of context on that reasoning. No one makes a legal judgment in a vacuum; the world around them shapes everything. In Tebbe’s reading, social context shapes coherent reasoning by providing judicial, political, and social precedent. This natural turn to precedent that is reflective of one’s context connotes the familiarity of social coherence theory, whether one speaks in those terms or not, because “it resembles the way people already think about the Constitution by analogizing to precedents and by applying principles” (49).

While perhaps accessible and familiar, this model is by no means beyond critique, particularly in light of the reliance on moral reasoning as a foundation of legal argumentation. Tebbe himself quite openly acknowledges this possibility, noting that those who reject such moral models may not find it as “attractive” (29). Further, some skeptics would push back on the very possibility of a comprehensive theory of religious freedom. Tebbe anticipates and responds to this line of critique. To those who argue that any decision regarding religious freedom will necessarily prove irrational or arbitrary, he responds that the social coherence theory provides a specific check on this possibility. Tebbe’s method seeks coherence between the solution and constitutional commitments, rooting moral conclusions in reason to yield solutions which are “reflective rather than impulsive” (45). The focus on social context of precedents and principles “bolsters the bulwark against arbitrariness and bias” in making constitutional decisions (42).

While it is an impressive volume of work offering a well-supported argument for a pragmatic response and, Religious Freedom in an Egalitarian Age falls short in Tebbe’s lack of critical engagement with the concept of religion. To be fair, Tebbe is clear about the relatively narrow aim of the book, and he sticks to that focus, but it nonetheless feels as though the argument is divorced from the realities of present scholarly debate. Where scholars such as Winnifred Fallers Sullivan or Elizabeth Shakman Hurd have highlighted the difficulty of litigating what is or is not a religion, and therefore deserving of religious freedom protections, the author fails to address this issue at length. Aside from a brief discussion of the unique or special treatment of religion in American democracy, he provides little specificity as to what he means by religion, and how the judicial system should interpret the term (72-73). Tebbe seems to take for granted that religion or religious freedom can be agreed upon with a certainty that many would not share.

Even so, perhaps such a pragmatic approach is the best path possible. Tebbe’s aim in this volume is to find some resolution to the tension between an egalitarian protection of rights for all citizens and the protection of the right to free exercise of particular religious beliefs, and in that goal he has succeeded. Putting aside ongoing debates about the concept of religion or religious freedom, and assessing Tebbe’s work as it is, what he has done is provide an adept and practical framework for confronting this tension. While the book is certainly not perfect, it is doubtful that such a perfect resolution exists. The intersections of religion and the law are rarely tidy, and such a complex matter requires a complex solution and the humility to recognize the limitations of that solution. Tebbe has given his readers both, and his work provides a valuable contribution to the field.

Tebbe presents a solution rooted in an embrace of pluralism and possibility. The importance of context in his social coherence theory shines through in his insistence that legal decisions regarding matters of law and religion cannot be considered irrefutable. Each instance must be determined through an appeal to context and precedent, along with continued commitment to the four principles. Readers searching for definitive answers to guide jurisprudence may be disappointed, but what Tebbe is offering is a structure for better democratic debate, a “framework for talking to each other” (22).

About the Reviewer(s): 

Adam McDuffie is a doctoral student in American Religious Cultures at Emory University.

Date of Review: 
August 4, 2020
About the Author(s)/Editor(s)/Translator(s): 

Nelson Tebbe is Professor of Law at Brooklyn Law School and Visiting Professor of Law at Cornell Law School.

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