From Center for Gender and Sexuality Law Director Katherine Franke, originally published in States of Devotion on April 21st.
The accommodation of a normative claim made in the name of religion often entails the surrender of governance authority by a competing norm aimed at advancing equality or sexual liberty. In this sense, the demand for an accommodation of religion is at once jurisgenerative and jurispathic.
In this blog post I want to do a bit of critical thinking about the political space cleared out by the assertion of religious free exercise rights. That is to say, what does the demand for an accommodation of religion actuallydo? Can it be understood as an assertion of a kind of governance authority? What kind of political work might robust religious exemptions accomplish?
Consider this: one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme.
Unlike the pluralistic legal cultures present in South Africa, India, or Israel, we have a strong tradition of a unitary source of law here in the US. In important ways, the claim to religious exemptions poses a serious challenge to the singular authority of law in our legal culture.
Some have argued that the free exercise clause asks nor more than that we tolerate religion and the norms that are generated in its name. But as Wendy Brown has taught us in her work, tolerance is not able to assert a claim on the political. Indeed it is, at bottom, a discourse that depoliticizes the claims made in its name.
In this sense claims to religious exemptions do much more than assert a demand for tolerance of value pluralism: they present a challenge to the unitary sovereign authority and general applicability of secular law. They mobilize a direct challenge to the political, by and through an unambiguous claim to governance.
Not coincidentally, the claim to a kind of political power from the camp of religion that we witness today is in direct reaction to a similar claim made on behalf of the lesbian and gay community’s advocates. A demand for tolerance could not have mobilized a substantive right to marriage for same-sex couples. And a claim to tolerance cannot justify the arguments made by Hobby Lobby or Elane Photography to be excused from the jurisdiction of secular legal norms and in their place substitute the commands of a competing form of authority. To launch such claims requires a kind of “will to power” that well exceeds a demand for tolerance, and we will be well served by committing more thinking to the very nature of the kind of power mobilized by these kinds of claims.
This is where I imagine real work and hard thinking is yet to be done: the gay community has pursued a democratic, political process to change the law on the basis of substantive claims to justice made internal to the governance authority of secular legal principles, and the law has so changed. A mere plea for tolerance could not have launched that project. By contrast, the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority. The implications of this kind of claim are, in my view, quite radical and deserve much deeper scholarly attention to unpack and elaborate the kind of political promiscuity it may open up.