Religions, Fragmentations, and Doctrinal Limits
Frederick Mark Gedicks, 𝘙𝘦𝘭𝘪𝘨𝘪𝘰𝘯𝘴, 𝘍𝘳𝘢𝘨𝘮𝘦𝘯𝘵𝘢𝘵𝘪𝘰𝘯𝘴, 𝘢𝘯𝘥 𝘋𝘰𝘤𝘵𝘳𝘪𝘯𝘢𝘭 𝘓𝘪𝘮𝘪𝘵𝘴, 15 Wᴍ. & Mᴀʀʏ Bɪʟʟ Rᴛs. J. 25 (2006).
Religion Clauses, pluralism, politics, postmodern religion
This essay questions certain presuppositions implicit in the topic discussed at the 2006 meeting of the AALS Law and Religion Section, Religion, Division, and the Constitution.: That there is a set of activities captured by the term religion, that these activities might be politically or socially or culturally divisive (though maybe not), and that constitutional law should do something about this (or, again, perhaps not). These assumptions form a thesis to be explored, Religion Clause doctrine should mediate the political, social, and cultural divisions caused by religion.
The title also implies three less obvious assumptions. One is that the term religion is meaningful or useful or, at least, uncontested, a concept that uncontroversially signifies a certain kind of activity. Another is that some sort of unity exists in the United States that religion -- whatever it is -- might (or might not) threaten to divide. Still a third assumption is that Religion Clause doctrine is capable of eliminating or mitigating this threatened division.
All three assumptions are flawed. First, the term, religion lumps together attitudes that are irreconcilably different. The problem here is not religion, but rather a certain kind of religion. Second, division implies a unity or an order that religion threatens to divide, which gets the problem exactly backwards: Religion is not threatening to divide an existing social or cultural consensus; rather, a certain kind of religion is seeking to impose unity on a society and a culture that are already radically divided. And finally, there is little that Religion Clause doctrine can do about this state of affairs; at the least, this problem cannot be resolved on the basis of any plausible neutral principle.
In a radically pluralistic, postmodern society, religion ought not to remake society in its own image, but rather should merely seek spiritual elbow room, sufficient space in which believers can live a life that honors and observes the truths to which they are committed, while living in peace with those who do not share those views.
15 Wm. & Mary Bill Rts. J. 25
William & Mary Bill of Rights Journal