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Liberalism Beyond Toleration: Religious Exemptions, Civility And Article Philosophy and Social Criticism 1–20 ª The Author(s) 2019 Liberalism beyond Article reuse guidelines: sagepub.com/journals-permissions toleration: Religious DOI: 10.1177/0191453719831344 exemptions, civility and journals.sagepub.com/home/psc the ideological other Stephen Macedo Princeton University, USA Abstract I address the long-standing problem of toleration in diverse liberal societies in light of the progress of same-sex marriage and continued vehement opposition to it from a significant portion of the population. I advance a view that contrasts with recent discussions by Teresa Bejan, Mere Civility, and especially Cecile Laborde, Liberalism’s Religion. Laborde emphasizes the importance of state sovereignty in fixing the boundaries of church and state, emphasizing the priority of public authority and constitutional supremacy. I argue that emphasis on priority needs to be com- plemented by a recognition of the importance of forms of reconciliation that go beyond ‘mere civility’. Reflections on toleration in the liberal and democratic traditions – including in the canonical discussions of Locke, Rousseau, Smith and Tocqueville, and in more recent political science – have recognized that the health of liberal democracy benefits enormously from the educative and morally formative resources furnished by religious communities. We must hope and plan for the reconciliation of the values of liberal democracy and the teachings of the major religions in society. In that context, a great source of present difficulty is the political polarization that infects and inflects religious differences. For that reason, I applaud aspects of Justice Kennedy’s opinion in Masterpiece Cakeshop. Kennedy insists on the equal dignity of gay and lesbian couples, but also requires that the complaints of religious wedding vendors should be listened to respectfully. While progressives constantly urge that we do more to include the other – typically meaning refugees, migrants, racial, sexual minorities and so on – one great challenge in conditions of hyper polarization is to include the ideological other. Keywords accommodation, civil society, democracy, Jack Phillips, liberalism, polarization, religion, same-sex marriage, Supreme Court, wedding Corresponding author: Stephen Macedo, Politics Department, Princeton University, Fisher Hall 001, Princeton, NJ, 08544-1012, USA. Email: [email protected] 2 Philosophy and Social Criticism XX(X) Introduction: Can civic liberalism be saved? What is the role of religious exemptions in securing justice and fostering reconciliation in the wake of radical change, such as the gay rights revolution? How should we respond, more specifically, to conservative religious believers who assert a constitutional right to be exempt from providing services to same-sex marriages? Justice Anthony Kennedy’s opinion for a majority of the US Supreme Court in Masterpiece Cakeshop seems to me, in some respects, a model of judicial statesmanship from which we should learn. Kennedy’s opinion upheld the equal dignity of gay people but also insisted that wedding vendors with conscientious objections to same-sex marriage must be given a fair and respectful hearing. I applaud Kennedy’s recognition of fairness claims on both sides of this fraught issue. We should learn from Kennedy’s fair mindedness and try to slow our slide towards ever-deeper partisan division. Yet the quest for comity should not lead us to compromise on important constitutional principles, and there, as I will argue, Kennedy’s opinion poses risks. This essay situates the issue of religious exemptions from antidiscrimination require- ments within a broad frame. Section I sketches some features of our deeply fractured political social condition, emphasizing the interdependence of religious and political partisanship. American civil society has weakened notably in recent decades. Healthy liberal democracies have healthy civil societies, and we should keep that in mind as we consider how to craft and defend responses to divisive conflicts. In section II, I consider the account of Liberalism’s Religion offered by Cecile Laborde and argue that she somewhat exaggerates the importance of state sovereignty – the power of public legal authorities to command obedience – at the expense of recognizing the need to reconcile religious citizens and communities to liberal rights and civil equality for sexual mino- rities. How should we approach the tasks of repair and reconciliation in our deeply polarized and democratically degraded condition? I also reject the proposal, which Teresa Bejan has recently floated, that we simply lower our expectations and accept a social condition governed by ‘mere civility’ accompanied by ‘mutual contempt’.1 I address these issues, in section III, by drawing on ideas familiar from Alexis de Tocqueville, and before him Adam Smith, and closer to our own time, Robert Putnam. These figures contribute, along with others, to what we can think of as the liberal civil society tradition.2 The structure, tone and content of community life and social relations can help make religiously and ethically diverse societies peaceful and tolerant: places where citizens generally have warm fellow feeling towards one another as citizens. How do societies generate and sustain social norms of civility, moderation and compromise, and a commitment to the civic commons or the shared public good? I take up aspects of those final questions, in section IV, by examining the conflicts over whether non-discrimination requirements should be applied to wedding vendors – wedding cake bakers and others – who object on religious grounds to same-sex marriages. I argue that we should be reluctant to make exceptions to the norm of non-discrimination in the commercial sphere, but that we should nevertheless listen sympathetically and respond respectfully to religious con- servatives. We must, in this and other ways, be clear about the imperative of equal justice under law while not assuming bad faith among our opponents. Macedo 3 I Political and religious polarization in America In the United States, the deepest source of conflict nowadays is not religion or at least not religion alone, but religion allied to and in some ways driven by political partisanship. Recent empirical work suggests that when people experience a conflict between their religious and political values, they tend to change their religious affiliations to conform to their moral and political convictions, rather than the other way around.3 Opposition to abortion, gay rights and premarital sex have been most important in driving the highly religious towards the Republican party.4 Political mobilization on these ‘hot-button’ moral issues has shaped people’s religious convictions. The specifics concerning how political partisanship nowadays shapes people’s ethical and religious commitments is both astonishing and deeply depressing. Consider this, Evangelical Christians were asked in 2012 whether they would vote for a presidential candidate with ‘serious personal ethical failures’. In 2012, 72% of Evangelicals said they would not. In 2016, with Donald Trump as presidential candidate, only 30% said they would not: an astonishing shift of 42% in 4 years and on a matter that must be highly salient to Evangelicals. Trump remains extremely popular with Evangelicals. Moreover, in 2014, 43% of Republicans and 72% of consistent conservatives said they viewed the Democratic Party very unfavourably, and most of those (36% of Republicans) say that the Democratic Party’s policies are a threat to the nation’s well-being (among Demo- crats, 27% view Republicans as a threat to America’s well-being).5 The figures are now undoubtedly worse as this was before the rise of Donald Trump. Republicans generally, the party of the religious right, are far more sympathetic to Vladimir Putin than Barack Obama.6 Finally this, many prominent Republicans said during the last presidential campaign that they would never vote for Trump. These were the so-called ‘Never Trumpers’. But essentially no prominent Republican office holders said they would instead vote for Hillary Clinton.7 Not John McCain, who Trump ridiculed for being captured and tortured mercilessly in Vietnam. Not Ted Cruz, whose father, Trump suggested, was involved in the Kennedy assassination. None of the so-called Republican moderates, such as former Arizona Senator Jeff Flake or Senator Susan Collins of Maine. American civic culture is dissolving in important respects into two cultures as deeply divided as at any time since the Civil War. People are sorting themselves into both religious congregations and geographical areas based on political partisanship,8 and they express increasing levels of alarm at the idea that their son or daughter might marry not someone outside their church, but a member of the opposing political party. Ideological commitments are deep, identity shaping and people are willing to sacrifice for them; in this sense they are increasingly like conscientious religious commitments: deep, identity shaping and non-negotiable. So, what is to be done? Many are justifiably heartened by signs of increased political mobilization. And certainly, more participation and especially more equal participation by class and ethni- city, could help. While greater partisan mobilization especially among under-represented groups, is to be welcomed, it is not sufficient. 4 Philosophy and Social Criticism XX(X) What are we to do as academics, scholars and commentators on public policies?
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