Free religious practice requires conversation, accommodation

Religious pluralism requires real work. It can only be sustained with careful, studied, face-to-face negotiations, adaptations and accommodations. It depends on pragmatic judgements.

To make religious pluralism work -- freely allowing robust religious practices from diverse minorities that variously offend and befuddle the majority while at the same time disallowing any group's imposition of its beliefs and practices on others -- a society has to be willing to make pragmatic judgements. Judgements have to be made case-by-case. The principle calls for compromise. The ideal, in practice, values actual humans and life and its messiness over the clean and clear pronouncements of ideological abstractions.

US law, as it currently stands, does this.

For example, as Eugene Volohk recently explained in the Washington Post, the law since 1972 has required private and public employers to exempt employees from rules they find religiously objectionable, except when the exemption would cause the employer undue hardship.

The law says, essentially, "work it out."

"The rule requires judgments of degree," Volohk writes. "Some accommodations are relatively cheap ... while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that's a bad idea, but that's what Congress set up with the 'reasonable accommodation' requirement."

The rule also, according to Volohk:

    •    turns on specific facts of particular cases,

    •    accepts the risk of insincere objections,

    •    accepts the risk of slippery slopes, and

    •    focuses on what specific accommodations are practical.

Perhaps most importantly, the law rejects the idea the religious minority should just conform. It rejects the idea that people should either "get with it" or "get out." The religious minority has a right to an accommodation -- even if it's stupid. Even if it's offensive. Even if that religious minority is a terrible human being.

That's why it's called tolerance.

This requires work. Perhaps too much work. I have spent more than a little time studying philosophers and theologians who don't think this idea of religious pluralism is coherent or even possible. If it is possible, though, it is only possible with a commitment to open conversations. Pluralistic religious freedom, if it's actually practiced and means anything, depends on dialogue and discourse, valuing other human beings in an open-ended commitment called "society."

The real enemy of this vision of pluralism, then, is political polarization. The real threat is the fracturing and fragmentation of a "public" that could partake in public discourse and work things out.

If that's right, and the Kim Davis case is any measure of how things are now, then things aren't great.

The public conversation around this Kentucky official who objected on religious grounds to personally endorsing marriages in her official capacity as county clerk has only barely been a "conversation." There has been only the scantest interest in accommodation. The loudest voices show no interest in working anything out.

The sides of this conversation are obsessed with winning. And when they win, they really lose.

As Adam Kotsko, a philosophy professor at Chicago's Shimer College, puts it, Kim Davis has defeated us all. Writing from and to the political left, Kotsko argues the whole spectacle has been a disaster for liberals, who seemed to go out of their way to confirm their worst stereotypes.

"Do you think that liberals are smug assholes who think they're smarter than everyone?" Kotsko writes. "Then you'll be really pleased at all the superficial analogies and 'gotcha' logic contradictions that they deploy against people's religious convictions .... Again and again, these dumb talking points show an absolute lack of any thought or even the most minimal empathy -- it's all about feeling smart and building solidarity by pointing and laughing at the dumb Republicans."

From the opposite perspective, writing as a religious conservative to religious conservatives, blogger Rod Dreher makes a markedly similar point. Conservatives in this "conversation" have been congratulating themselves and feeling smug. They've scored points at the cost of persuasion.

Watching Kim Davis become a prop for Mike Huckabee's presidential campaign, Dreher writes, "She comes out of jail with that cheesy 1980s song 'Eye of the Tiger' playing, and mounts the stage, holding hands with Huck, and giving God the glory. Now, religious liberty -- our most precious freedom -- is associated in the mind of the public with ersatz culture-war pageantry orchestrated by a cynical Republican presidential candidate."

Winning, as children are sometimes told, isn't everything. And sometimes it isn't even winning.

At least for the moment, the laws are strong enough and humane enough to withstand this sort of "winning." American religious pluralism has survived this most recent breakdown of discourse. The Kim Davis case appears to be settled for the time being.

A fairly practical accommodation seems to have been found -- however inelegantly. The clerk's office changed the marriage forms, taking the elected official's name off the document. So now people can get married, as is their right under the law. And Davis doesn't have to endorse those marriages with her name in violation of her religious commitments, as is her right under the law.

It's a pragmatic judgement, a compromise befitting the principle of religious pluralism.

There are better ways to negotiate to that compromise. There are more sustainable ways to work it out. It does take real work, though -- case-by-case, judgement call by judgement call, pragmatic accommodation by pragmatic accommodation.

Originally published Sept. 11, 2015.