A few weeks ago, I spoke on a panel about the pending Supreme Court litigation concerning the claim of Hobby Lobby and Conestoga Wood for religious exemptions from the federal law that requires employers who provide health insurance to their employees to include coverage for contraception. I was honored to share the platform with National Organization for Women President Terry O’Neill and New York Planned Parenthood board member Leslie Danks Burke. Although we each described different aspects of the case and its potential implications, we all approached it from the same broader perspective: as secular liberals trying to figure out whether and if so, how, the government ought to accommodate religious dissenters.
There is nothing necessarily wrong with that viewpoint, but upon reflection, I have come to regard it as a poor fit for American society. Large numbers of Americans are very religious. For example, as noted in a recent summary of Gallup polls taken over the last three decades, over forty percent of Americans consistently say that they believe humans were created by God in their current form only several thousand years ago, while fewer than twenty percent believe that evolution occurred without Divine guidance. (The balance, usually between thirty and forty percent, think that evolution occurred under Divine supervision.)
Accordingly, secular liberals like myself and my fellow panelists—or like University of Chicago Law Professor Brian Leiter in his book, Why Tolerate Religion?—may be asking the wrong question. It is a strange conception of toleration that asks why the minority ought to tolerate the majority. Typically, toleration works the other way around.
That is not the end of the matter, of course. “Religion” is not a monolithic institution, after all, and the practice of religious toleration originated at a time when most people were religious. For them, tolerating religion meant tolerating other religions. As the widening Shia/Sunni civil wars in Syria and Iraq tragically illustrate, that older notion of toleration remains highly relevant—even if too often absent—in the modern world.
But surely given our constitutional traditions we can aspire to something more than a kinder, gentler theocracy that declines to persecute heretics and apostates. How can secular liberals who see the state as an engine for good—forbidding discrimination in public accommodations and meeting citizens’ basic health care needs—respond to religious conservatives who seek a right to opt out of their role in the provision of these goods?
I do not have a definitive answer to that question. Instead, I want to suggest that to be effective, secular liberals need to understand how to make arguments that will resonate with the majority of the American public who begin with fundamentally religious premises.
Engaging Religious Arguments
In arguing over questions about the role of religion in public life—as well as other issues that implicate religious views, such as abortion, the death penalty, or same-sex marriage—religious people understandably view their religious views themselves as relevant. People with a secular orientation do not. As a consequence, the religious and the secular often talk past one another.
One way to mitigate that problem is for people who support restricting religious freedom in favor of some public end to couch (at least some part of) their argument in religious terms. My Cornell Law School colleague Professor Steven Shiffrin argues in his book The Religious Left and Church-State Relationsfor the indispensability of people who are themselves religious in making the case for even a modest separation of church and state.
Looking beyond the question of church-state relations, the papacy of Pope Francis dramatically illustrates the power of arguments from within religion. Francis can speak credibly in favor of greater acceptance of LGBT persons by religious people—even non-Catholics—in a way that people who are not themselves religious may not be able to.
People who are not themselves religious can also engage with their religious fellow citizens, although doing so carries risks. As Antonio says in Shakespeare’s The Merchant of Venice, “the devil can cite Scripture for his own purpose.” An atheist or agnostic who tells a person of faith what the latter should or should not believe based on the content of her holy books will understandably be met with skepticism. Still, there are better and worse ways to make such a point.
Even a non-believer can make a respectful argument within a religious context. For example, in a 2010 post on my blog, my colleague Professor Sherry Colb offered an alternative reading of a well-known Biblical verse that appears in both Exodus and Deuteronomy: “Do not seethe [or translated more plainly, cook] a kid in his mother’s milk.” Religious Jews understand this verse to forbid the eating of meat and dairy in the same meal. Colb argues that it might be better understood to forbid the consumption of baby animals; and because selective breeding has caused just about all animals raised for food to reach their slaughter weight when still very young, under Colb’s reading, the verse forbids virtually all animal consumption.
To be sure, most religious Jews who observe the rules of kashrut are unlikely to forgo their chicken soup simply because they read Colb’s blog post. My point in citing it is simply to note that it is offered in a sympathetic spirit—the same spirit in which similar arguments are made by people who are religious.
Respectful Consideration
Contrast Colb’s respectful engagement with religious views with a move one sometimes sees in other arguments over religion. So-called “pastafarians” profess belief in the Flying Spaghetti Monster, while thousands of Americans claim to celebrate the pseudo-holiday of Festivus.
By poking fun at older religions, pastafarians and Festivus celebrants can make a serious point about the role of religion in the public square—as I noted in a column last December. Nonetheless, the comparison of religions that most adherents take very seriously to ones that nearly no one takes seriously can cause serious offense. Indeed, for some, that may be the point of the comparison. They do not aim to persuade the devout to give up their beliefs; they aim to show the rest of us how silly those beliefs are.
Despite sometimes producing interesting discussion or even judicial victories, the basic problem with this approach is that it operates on a false premise. There is no rest of us in the sense of a majority of Americans who will agree that mainstream religions are no more inherently sensible than the spoof religions.
Meanwhile, when pastafarians, Festivus celebrants, and others mock mainstream religious beliefs as primitive or ridiculous they inadvertently reinforce a false view that many religious Americans hold: namely, that they—the devout—are a beleaguered, scorned minority.
It’s generally a bad idea to mock other people’s sincere beliefs because, not to put too fine a point on it, one should try to avoid being a jerk. In addition to hurting the feelings of devout Americans, this tactic will likely be counterproductive, because people rarely respond to a sense of grievance and humiliation with generosity and tolerance.
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