Perry Dane on religious freedom, current conflicts, and Martin Buber

The recent challenges by some churches and synagogues to COVID related state restrictions are usually framed as religious discrimination claims.  Religious groups argue that governments unjustifiably imposed harsher restrictions on them than on equivalent secular activities.  These types of claims can be hard to referee on their facts.

A deeper and thornier set of questions is raised by another type of religious liberty challenge, claims for religion-based exemptions.  These claims arise when an otherwise unremarkable, neutral secular law happens to conflict with some religious convictions, requiring religious adherents to do something that their faith forbids or penalizing them for doing something that their faith requires.

Religious exemption claims have helped feed our polarized law and politics in recent years.  The Supreme Court is now considering whether a Catholic foster agency should be exempt from the City of Philadelphia’s rule forbidding discrimination against same-sex couples.  Courts have also grappled with whether religiously motivated employers should be exempt from regulations requiring them to include contraceptive coverage in their employees’ health insurance.

Historically, though, claims for religion-based exemptions have spanned over a much wider range of issues.  And their political valences have run the gamut.  Some of the oldest recognized exemptions, dating back to colonial times, include accommodations for conscientious objectors to avoid the military draft.  Other notable examples include, members of the Native American Church arguing for a right to use peyote in their religious rituals; religious prison inmates seeking Kosher or Halal meals; Muslim firefighters or police officers whose faith demands that they wear a beard despite department regulations forbidding them; Jewish military officers insisting on wearing a yarmulke despite regulations requiring that all headgear be removed indoors; Amish who need to pull their children out of formal education after eighth grade contrary to compulsory education laws; Jehovah’s Witness who seek Medicaid coverage for bloodless liver transplants only available out of state despite a rule that limits reimbursement to in-state procedures; debtors in personal bankruptcy reorganization proceedings who wish to have their tithing obligations treated as necessary expenses and not mere dispensable charity.

The legal response to claims for religious exemptions has been inconsistent over the years.  Everyone agrees that no “right to exemptions” should be absolute.  A cult that requires human sacrifices cannot be excused from murder laws.  The question is whether there is a right to at least have one’s exemption claim be heard and taken seriously.  The Supreme Court has swung back and forth on whether the Constitution guarantees such a right.  Congress and state legislatures have sometimes been more supportive, enshrining both specific exemptions and more general exemption regimes in statutes.

The debate over exemptions has been magnified in recent years by the entanglement of many recent claims with today’s culture wars.  Historically, though, exemption claims have been controversial across the ideological spectrum.  The fact is that such claims, in their paradigmatic form, are, as Justice Antonin Scalia argued in 1990, constitutionally anomalous.  They simply do not have the look and feel of other constitutional or even other legal rights.

First, ordinarily, when someone challenges a law, the argument is that there is something wrong about the law. But religious commitments can conflict with any law at all, however prosaic.  Second, legal rights typically do not turn on the convictions  of the persons claiming those rights.  But rights to religion-based exemptions depend on the specific religious commitments of the claimants.  In short, it is easy to see why the Supreme Court in 1879 would have declared that religion-based exemptions threaten “in effect to permit every citizen to become a law unto himself.”  That objection is still the most powerful argument against the very idea of exemptions.

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This radical normative objection requires a radical solution.  To begin with, we need to understand religion as a sovereign realm distinct from the state, its government, and its claims.  In James Madison’s words, “Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe.”  When a religious person claims an exemption from the law of the state, they are not arguing that they are a law unto themselves, but rather that they are subject to another sovereign.  This idea is consistent with a larger commitment to legal pluralism, a jurisprudential position that denies that law is a phenomenon limited to the state.

I take this basic idea further, seeing the relationship between government and religion as an “existential encounter” in which each side tries to make sense of, and decide whether or how to make room, for the other.  Only in the context of that existential encounter does the problem of religion-based exemptions come into focus.  And not just the problem of religion-based exemptions.  Even larger swaths of the law of religion and state, including fundamental questions of church-state cooperation and separation, are at the end of the day best understood through the lens of encounter.

That term “existential encounter” is meant to convey several important ideas.  First, it suggests that what is at stake here is not merely a set of legal doctrines or policy prescriptions, but something more constitutive.  The sovereign nation-state looks out at the world around it and sees other entities that do not easily fit into its own internal sovereign architecture.  Some of these are other nation-states.  Some might be other types of essentially secular, but non-state, human associations.  And others are, or should be, communities (organized or not) whose normative commitment is to a transcendent source of meaning and obligation.

In all these cases, the sovereign state must step outside a purely internal frame and try to make sense of the Other – the existential Other. Second, the encounter is mutual.  As much as the state needs to make sense of religion, its nature, and the extent of its authority, religious traditions need to make sense of the state and its nature and authority. Third, though we can try to articulate purposes and justifications for the legal structures arising out of this encounter, they are not at the end of the day reducible to purposes and justifications.

This sort of language of existential encounter, and the claim that such an encounter is in a deep sense pre-analytic invites comparison to Martin Buber’s notion of the I‑You (or “I-Thou”) relationship.  In Buber’s famous formulation, “The world as experience belongs to the basic word I-It. The basic word I-You establishes the world of relation.”

At first glance, Buber’s “I-You” might seem an odd way to understand a relationship between two abstract entities – the state and a religious tradition.  But to the contrary, Buber emphasized – crucially if cryptically – that the I‑You relationship is not limited to inter-human or human-divine encounters.  One of the most beautiful and powerful passages in I and Thou even talks about an I-Thou relationship with a tree, a relationship that can happen when “will and grace are joined.”  Buber also described and appreciated modes of relationship with works of art.  And his political and theopolitical work and activism, including his brand of Zionism, was grounded in the hope for genuine dialogue and encounter between communities.

But what does all this talk of “existential encounter” and “will and grace” have to do with the decision of specific cases and the nitty-gritty of legal doctrine? And does the lawyerly imperative to construct complex doctrine end up undermining the ideal of religion and state in existential dialogue, let alone engaged in a genuine dialogical encounter akin to Buber’s I-You relationship?

Legal doctrine is indeed analytic.  It dissects phenomena into their parts.  It is often instrumental.  Legal doctrine partakes of the I‑It relationship.  But it can be, and in the context of the problem of religion-based exemptions, it needs to be, an analysis fed by the roots of the I‑You relationship that makes it possible to take religious claims seriously without compromising the rule of law.  Thus, in the contraceptive coverage cases, it requires genuine empathetic encounter and a dose of modesty to recognize that religious traditions might have accounts of moral complicity that do not coincide with the secular observer’s understanding of complicity.  And in the bankruptcy case, it is only by way of an existential encounter – a direct sympathetic act of perception – that a legal system could see an obligation to tithe as a real form of debt.

This is very much in the spirit of Buber’s complete vision, properly understood.  As Hilary Putnam has argued, Buber’s description of the I‑It relation is not “a grudging concession to the demands of everyday life.”  To the contrary, the I‑You relationship, though fleeting, transforms the I‑It relation.  Putnam makes this point with respect to relation with the divine, but it generalizes.  The I‑You and the I‑It forms of relation are not simplistically opposed to each other.  One illuminates and even enables the other.

Buber did not discuss in any real detail how the I-You and I-It relationships meet, for fear perhaps that such a discussion would draw attention away from his effort to emphasize the otherwise-neglected importance of the I-You dimension.  But casting the I-It and the I-You as opposites, even as productively necessary opposites, also risks doing a disservice to both.

Science is not merely an “I” confronting an “It.”  It is rather an effort, with an I-You dimension all its own, to put aside surface appearances and to establish a world of objective “relation.”  This stance, as Anthony Rudd has written, has its dark side in  scientism, which reduces itself to a sterile, frozen, version of the old “spiritual ideal of disengagement and self-transcendence.”  But a genuinely rigorous and disciplined science, like any expression of the I-You instinct, will know both its power and its limits and will also itself as one way among many of engaging in dialogue with the glorious multiplicity of the world around us.

Much the same might be said of law.  The legal imagination at its best is both precise and open-hearted, focused and double-coded.  At its worst, it is none of these.  Buber, despite himself, gives us a language and a frame of mind that can help us to understand the importance of radical, uncompromising, immediate, existential encounter, the legitimacy and dignity of analysis and categorization, and the important dialectical and even paradoxical splicing of the two.

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So much for the law’s side of the existential encounter between the state and religion.  But what about religion’s side?  If, as Madison insisted, the state must try to make sense of the sovereign claims of the “Governor of the Universe,” part of the task of any religious community or doctrine is to try to make sense of the nature and sovereignty of the state.  In fact, most mature religious traditions make substantial room for legitimate political authority.  There are many reasons for this, both abstrusely theological and eminently practical.  Faith traditions consider themselves answerable to the demands of an Absolute God or Absolute Reality.  But they live in a world full of competing absolutes.  That requires, in at least some provisional and even paradoxical sense, a healthy dose of modesty.

Martin Buber was skeptical of religious institutions and religious law.  He understood the I-You encounter with God to be personal.  He could “not believe that revelation is ever a formulation of law.”  He therefore believed that the only genuine form of theocracy – a loaded word if there ever was one – would necessarily be an anarchy, in which every person did “what was right in his own eyes.”  One need not agree with Buber on this score – I certainly do not – to learn from him at least some provisional honesty about the limitations of our own horizons, a reticence that should be able to co-exist, stereoscopically, with confidence in our tradition.  That sort of double-coding has proved crucial to productive interfaith dialogue.  And it might be equally necessary to religion’s side of the encounter between religion and state.

It would, however, be a disservice both the topic at hand and the moral underpinnings of Buber’s place in it to end on such an abstract and optimistic note.  I have alluded to how recent religious liberty debates have become enmeshed in our current, especially polarized, culture wars.  That jarring fact should come as a jolt to any neat account of the current state of religious liberty.  For the consequence of such enmeshment has been, sadly, a profound failure of genuine encounter.  Real, ennobling, encounter is insistently and powerfully mutual.  And the failures of today’s climate have occurred on both sides of the legal, political, and existential dialogue.

On the one hand, the current crisis has seen way too little understanding and empathy in some of the pushback to recent religious liberty claims.  For example, some reactions to claims seeking exemption from contraceptive coverage mandates have been stubbornly oblivious to basic religious complexities:  the religious life is not limited to what goes in churches or even in religious institutions.  It can also be manifest in commerce and mundane employer-employee relations.  Religion can, and in some traditions must, involve itself in every department of life.  To demand the privatization of religion, as some have for centuries, should be a non-starter.

Similarly, religious understandings of notions such as moral complicity cannot be dismissed merely on the grounds that they seem extreme from the perspective of secular reason.  Much of what religious people belief does not translate easily into secular terms.  And while the outside observer need not agree with such religious conceptions, genuine empathy in a spirit of empathetic encounter should at least make generous room for them.  That is not to say that religious claimants should always win their lawsuits.  But if they lose, it should be for the forthright reason that sometimes the state will need to have its way, not because the religious claims are judged insubstantial at the outset.

With respect to the challenges to COVID regulations:  My own religious conviction is that preservation of life takes priority and that religious groups do best, not only to heed public health requirements, but to go well beyond them, as many if not most have done.  Moreover, for some communities and in some contexts, engaging with virtual technologies has opened new possibilities, experiences, and resources that might enrich religious life even after the current health crisis has ended.

But we also need to understand why meeting in person matters.  Reception of the Eucharist for Catholics is a physical act.  It cannot be done on Zoom. Similarly, many observant Jews cannot use virtual technology at all on Shabbat or Jewish holidays or to form a minyan even on other days.  And even religious folk who do not face such specific obstacles can attest that physical presence in community can be indispensable to a fully formed spiritual life.  Though not for religious reasons, Nicholas Carr’s recent post argues that remote activity reinforces the disembodiment of mind (what religion might call spirit) and body. Remote participation in a community through online platforms is ultimately a solitary experience. A human home alone on a screen is a person in isolation. Even those who do not claim a religion know (or sense) that the body matters. That is why people experience remote school, work, or even worship as exhausting.  Contrary to Alfred North Whitehead, religion is much more than “what the individual does with his own solitariness.”  Moreover, the costs of suspending vibrant in-person worship will probably be felt long after the restrictions are lifted as scattered souls find regathering in the old way easier said than done.

Religious worship is in many ways a unique activity.  Restrictions on it involve real loss and real danger, both spiritual and constitutional.  And while, as I said, I would be inclined to support such restrictions under proper circumstances, the reaction to religious liberty objections has often been overwrought and disdainful. They have assumed that religious groups are rejecting science even when the spiritual calculations those groups are making are more subtle and poignant than that.  And in this context, as in others, opposition to religiously motivated legal claims turns easily and quickly into scorn of religion itself and religious believers.

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Yet the failure of genuine encounter has come from the religious side of the encounter too.  In the current political atmosphere, religious convictions have too often become subsumed into tribal allegiances and political identities.  Sometimes, it is hard to tell if genuine religious discernment has been lost entirely in the roiling seas of political reflexes.  The constant risk is that greatest of religious offenses, idolatry.

Religious groups and individuals faced with the imperatives of the larger society can, if they are so minded, try to understand those demands in good faith and stretch their conscience and their own interests to accommodate them. That too is an act of empathy with a long religious pedigree.  It does not require stretching conscience to the point of breaking it, but it does require some soulful flexibility.  In today’s overheated times, some claims for religious exemptions look too much like resistance for the sake of resistance, asserting rights for the sake of asserting rights, taking a stance of opposition rather than dialogue.

The mutual failure of mutual encounter is especially clear in clashes between religious liberty rights and LGBTQ rights to equality, as in the Philadelphia foster agency case and in earlier disputes about bakeshops, florists, and country clerks who refused to deal with same-sex couples intending to marry. There is a striking symmetry between how the two sides view the conflict.  Opponents of religious exemptions are convinced that these purportedly narrow claims are really a rearguard effort to undo the gains for which LGBTQ persons have fought so hard, and especially to erode the right to same sex marriage that the Supreme Court guaranteed in 2015.

Religious claimants and their supporters, meanwhile, are convinced that their opponents are engaged in a mopping-up operation to eradicate any last vestige of dissent from the new orthodoxy. They argue that the law’s unwillingness to leave them alone violates the Supreme Court’s assurance that religious and other opponents of same-sex marriage would be “given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Each side claims that the other is trying to weaponize (both sides often use this verb) their own asserted rights to attack, if not destroy, the other.

It is helpful to see this conflict in somewhat mundane terms, as one in a long history of difficult efforts to reconcile the claims of civil society and religious convictions.  But the imperative to genuine encounter demands even more.

Supporters of LGBTQ rights and same-sex marriage should give up the assumption that their opponents are mere bigots.  Some are.  But for others, the threat they perceive is not from same-sex couples but rather to the institution of marriage or human nature as they understand it.  Recognizing that nuance does not mean that religious dissenters should prevail. But it does recognize the poignancy of the conflict.  And it might open the possibility of more nuanced, context-specific, solutions.

At the same time, some religious folk need, with all respect, to engage in an I-You encounter themselves, not only with the law but with the LGBTQ folk whose needs they want to deny. Buber insisted the I-You relationship does not reject I-It understandings. Accommodation need not mean surrender or compromise of principles.  But it can involve responding with an open heart to real people with real lives and then having the “will and grace” to seek out practical alternatives.

I am not suggesting that conflicts over religious liberty will or even should disappear.  Such conflicts are one way that the existential encounter between religion and state plays out in a world of plural values.  One tragedy of our current polarization and tribalization is that it has substituted bluster for truth and a defensive crouch for genuine encounter. But a genuine encounter, which is to say a real effort at seeing the other as a You and not only an It, requires in the first place that each side be open to the sovereign claims of the other. It also requires that each side become attuned to the potential solipsism and hubris in its own position.  If we are to understand one another’s positions, we must first  acknowledge our own biases and blinders.  In this way, each side can bring its truth to the encounter, without distorting that truth or entangling it I half-truths.  And that might make all the difference.

Perry Dane is a Professor of Law at the Rutgers Law School.