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Religion and Liberalism

October 27, 2010

In his latest post, Stanley Fish provides a concise overview of Shari’a in the West, a forthcoming collection of “learned and thoughtful essays by some of the world’s leading scholars of religion and law.” Unsurprisingly, Fish finds fault with the collection’s liberal consensus, preferring instead the alternate perspective on Islam and the West advanced by theologian John Milbank:

“Liberal principles,” declares Milbank, “will always ensure that the rights of the individual override those of the group.” For this reason, he concludes, “liberalism cannot defend corporate religious freedom.” The neutrality liberalism proclaims “is itself entirely secular” (it brackets belief; that’s what it means by neutrality) and is therefore “unable to accord the religious perspective [the] equal protection” it rhetorically promises. Religious rights “can only be effectively defended pursuant to a specific and distinctly religious framework.” Liberal universalism, with its superficial respect for everyone (as long as everyone is superficial) and its deep respect for no one, can’t do it.

As quoted and summarized by Fish, Milbank’s remarks closely echo Fish’s analysis of the Christian Legal Society v. Martinez Supreme Court decision a few months back. (The Court upheld the right of the University of California-Hastings College of Law to deny a Christian student group official recognition on the basis that it required a statement of faith precluding “homosexual conduct.”) According to Fish, the Court’s decision depended upon problematic belief/conduct distinction that

itself embodies a very specific viewpoint (one the government is not entitled to have or enforce) concerning just what a religious belief is, and as such it discriminates against religions that do not respect, indeed cannot respect, the belief/conduct distinction. The Statement of Faith C.L.S. members are asked to sign and the canons of conduct they are asked to observe mark it as that kind of religion, one that demands not just assent to a set of doctrines, but conformity to a code of behavior. C.L.S. members must not only believe certain things; they must comport themselves in ways dictated by their belief, and so must the organization itself if it wishes to be true to the beliefs it declares, the beliefs around which it organized in the first place.

So when [Justice] Ginsburg insists that the all comers policy “aims at the act of rejecting would-be group members without reference to the reasons motivating that behavior,” she treats the act (of requiring members to affirm and adhere to C.L.S.’s doctrinal and behavioral tenets) as if it were just a disagreeable manifestation of prejudice unrelated to the group’s beliefs, as if it were distinct from the “reasons” animating the group’s existence. She appears to think that, were C.L.S.’s membership rules relaxed in deference to Hastings’ all-comers policy, the organization’s beliefs would survive intact; for it’s just an extrinsic procedural change, isn’t it?

Here is where the analysis gets interesting: supposing Fish is right about the belief/conduct distinction, it follows that Sarah Palin is as much outside the liberal consensus as is Feisal Abdul Rauf. In other words, supposing it is true that the West is not merely at odds with a few isolated terrorist cells, but with a religion that would demand “corporate religious freedom” over and against the rights of the individual, it follows that the religion in question is not merely that of Islam, but also that of conservative Christianity. For what conservative Christians demand is likewise “corporate religious freedom,” as is clear from the C.L.S. v. Martinez case — not to mention the larger debates over gay marriage, prayer in public schools, evolution, and a host of other issues.

So, really, a secularist like Bill Maher or Christopher Hitchens is in a much better position to defend religious intolerance than is a right-wing Christian like Sarah Palin or Laura Ingraham. As for me, I’m with Milbank.

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