Religious Liberty in a Fractured Republic




FEW THINGS have demonstrated the fractured state of American life more than the election of Donald Trump. His electoral triumph was not only a rebuke to the pundit class — how on earth could so many have been so wrong? — it was also a cold dash of water to millions of Americans who failed to grasp the depth and intractability of our national divisions.

The imminent victory of Hillary Clinton, hard on the heels of Barack Obama suggested to many a new era in the United States of consolidated political and moral consciousness in which the religious right had been put into its place. As Harvard law professor Mark Tushnet famously opined: “The culture wars are over; they lost, we won.” The death of Antonin Scalia had opened up the real prospect of using constitutional litigation to tame cultural outliers like Evangelical Christians. The Clinton era would be one of cultural and political unification.

Then Trump won the presidency, and in short order Neil Gorsuch, rather than Merrick Garland, filled Justice Scalia’s vacancy on the high court. The coming Era of Consolidation suddenly vanished as Americans — both on the right and the left — confronted the deep fissures that divide the American people. We encountered not merely a practical roadblock to Tushnet’s vision, but a more profound implausibility of its aims. The way forward is unclear, but we have never seen — at least in modernity — a starker rift in our socioeconomic landscape laid bare.

In a work that takes this cleavage together with the intertwined philosophical divides between right and left, the American Enterprise Institute’s Yuval Levin wrestles with how we might chart a constructive path forward. Initially published in 2016, The Fractured Republic: Renewing America’s Social Contract in the Age of Individualism has been released this summer in paperback with an epilogue addressing Donald Trump’s victory. He argues that our present cultural diffusion is not a passing phenomenon — but rather, as Alexis de Tocqueville said of equality, a permanent feature of our society that we must acknowledge to think constructively about the future.

Tocqueville looked at Western democracies in the 19th century and saw a fading aristocracy anxious to preserve some vestige of the old hierarchy. Their nostalgia blinded them to the fact that equality was the spirit of a new democratic age that required a “new science of politics.” Similarly, Levin wants to convince us that our public life is gripped by misbegotten nostalgias that keep us from engaging new political and social realities.

This diagnosis builds on previous thought in this direction. Robert Putnam’s 2000 bombshell, Bowling Alone, brought the crumbling of American civil society into the public eye. His 2015 book, Our Kids: The American Dream in Crisis, along with Charles Murray’s 2012 Coming Apart: The State of White America, 1960-2010, extended that work by demonstrating the emergence of a divided socioeconomic class structure. To an extent we have never seen in the United States, the super-wealthy are economically, socially, and culturally isolated from the rest of the country — and especially from a new lower class that, in addition to being impoverished, suffers from the isolation, fragility, and despair that come with the dissolution of supportive social structures.

The Fractured Republic frames its central thesis, i.e., that we must address the fracturing of American society by empowering the “mediating institutions” of civil society, within a sweeping political, social, and economic history of the 20th-century United States. The first half of the century saw a steady increase of consolidation and centralization across most sectors of society. A modernized economy produced massive, industrial corporations, and for progressives, this necessitated a counter-balancing expansion in other areas. “They believed that the growing scale of the economy demanded growth in the scale of government, unionized labor, and mass culture,” Levin explains. “A coherent national identity was needed, but based in the masses instead of an economic elite: they would answer consolidation with consolidation, gigantism with gigantism.”

Progressives like Teddy Roosevelt promoted a “New Nationalism” in which government control eclipsed sectional interests, local authority, and ultimately, Levin argues, concern for the voluntary associations of civil society. Driven by the centripetal force of two World Wars and a massive economic depression, the Progressive agenda carried the country into a postwar period of unprecedented national cohesion.

At the same time, Levin maintains that a centrifugal inversion also began to emerge in the immediate postwar period. Evidence may be seen in a series of New York Times best sellers from the late 1940s — Benjamin Spock’s Baby and Child Care, Rabbi Joshua Liebman’s Peace of Mind, and Harry Overstreet’s The Mature Mind — all of which in different ways urged the cultivation of individuality, self-love, and self-affirmation over submission to rigid cultural expectations. Likewise, the Cold War united most Americans, conservative and liberal, in defense of individualism against collectivism. Although social conformity persisted as a dominant value throughout the ’50s, individualism and diffusion were beginning to gain traction. Thus, the decade marks a unique cultural equilibrium that both left and right idealize — only for different reasons.

Liberals look to “a consolidated economy that kept workers secure, and a culture that was loosening up and diversifying. For conservatives, the era epitomize[s] exceptional cultural stability and cohesion — what seemed to be a broad and traditionalist moral consensus, but also fairly broadly shared prosperity.” In short, “The Left was fighting the cultural constriction while reveling in the economic consensus; the Right was fighting the economic constrictions while reveling in the cultural consensus.”

This equilibrium was soon overcome, however, by the steady increase of individualism and cultural diffusion, continuing now well into the 21st century. For liberals, the sweet spot of this trend is the 1960s, a time when cultural liberalization coalesced with the socioeconomic vision of LBJ’s Great Society. Progressives enjoyed great uniformity across governmental branches — an atypical interruption of our “intentionally adversarial and grinding system of government.” It was, as Barack Obama has argued, a “golden age when Washington worked.”

By the 1970s, however, all of this began to unravel, as

deconsolidation itself became an organizing principle of American life. The country was no longer tethered by the forces of cohesion and disaggregation. The center had ceased to hold, and America increasingly defined itself by an ethic of individualism and a culture of diversity and fracture.

Levin reviews the familiar indicators of cultural disintegration of the time: plummeting confidence in government and the institutions of faith and family; precipitous rise in illegal drug use, violent crime, divorce, out-of-wedlock birth, and so forth; the escalating dissolution of civil society in the caustic environment of “strident individualism.”

For conservatives, the bonus was that economic liberalization also began to loosen the “tight grip of consolidated regulation” and ushered in the halcyon days of the 1980s. The Reagan years “amounted to a kind of turbo-charging of the economic liberalization that America’s postwar diffusion had gradually set in motion.” Stagflation gave way to a booming economic recovery. Additionally, a “new ethic of personal (rather than communal) responsibility and consequences” began to predominate. Thus, while liberals cling to the memory of 1960s America, conservatives long for a return to the ’80s.

The central problem is that both idealized visions from right and left spring from unique and unrecoverable moments in American history. Our politics is still dominated by Baby Boomer nostalgias that bear little relation to a realistic future. A new day calls for a new American project.

The second and equally damning problem is that neither vision points us to a sustainable political order. Levin adduces Columbia sociologist Robert Nisbet’s prediction (in the 1950s) that a culture of excessive centralization will soon become a culture of excessive individualism. And this is the story of the American 20th century: decades of increasing social and political consolidation, followed by a rebound to strident individualism, the combined effect of which amounts to a “century-long assault on America’s mediating institutions.” The core of society — families, churches, synagogues, mosques, Lions Clubs, Campfire Girls, all of the voluntary associations that Alexis de Tocqueville recognized as the heart of American democracy — has been hollowed out.

Levin quotes a particularly illustrative passage from Francis Fukuyama that gets at the problem of escalating individualism created in the 1970s:

As people were liberated from their traditional ties to spouses, families, neighborhoods, workplaces, or churches, they thought they could have social connectedness at the same time, this time the connections being those they chose for themselves. But they began to realize that such elective affinities, which they could slide in and out of at will, left them feeling lonely and disoriented, longing for deeper and more permanent relationships with other people.

The hollowing out of American civil society robs citizens of human connection and stability and produces a sense of alienation and dysphoria corrosive to meaningful lives. The cost, moreover, is not only personal; it is also profoundly sociological. Civil society theorists have clearly demonstrated that the morbidity of mediating social structures “has led to the emergence of sharp bifurcations (of poverty and wealth, power and powerlessness, order and disorder) between the top and bottom of our society.” Those for whom civil society reasonably functions tend to prosper, but those for whom it doesn’t do not. The problem with both Democratic and Republican visions of the American future is that they are rooted in a political past which has eroded the vitality of our communities and undermined our aspiration to equal opportunity for all.

So what is to be done? Levin recognizes that not everyone will find his criticism of governmental centralization and consolidation compelling, so he takes care to demonstrate that the diffusive trends of the last 60-plus years show no signs of letting up. In the economic realm, forces like globalization, automation, and immigration prevent us from recapturing the “all-purpose economy” of the postwar years. “Consumerization,” as well, pushes toward greater degrees of specialization and efficiency, as American buyers consistently prefer the availability of low-cost, high-quality goods to the security and satisfaction of workers. We must take an increasingly diversified economy as a given, therefore, and look for political solutions that run with the grain. “One-size-fits-all universal programs suited to a consolidating society should give way to more narrowly tailored, leaner, local and personal, bottom-up systems of protections and supports suited to a dynamic and diverse society,” Levin argues.

The biggest problem with the social-democratic political model of the left is that it is simply anachronistic; it assumes a level of social and economic consolidation we no longer possess. Likewise, the cultural fractures of American life are intractable, at least for the foreseeable future. Levin observes that both sides of the aisle are fond of vastly exaggerating their cultural influence in a bid to define new social norms. The fact that these aims are persistently disappointed proves that we have entered a new era of decentralization. It is certainly the case that once-dominant institutions of cultural authority and influence now compete in a diverse and specialized market of ideas. And perhaps, Levin suggests, a common culture is not so important as it used to be. “If the problem we have is not that we are increasingly failing to live up to our own moral standards, but that we increasingly do not have such standards in common, then wholesale solutions become ever more difficult to imagine.” In lieu of waging interminable battles to define new social norms, Levin counsels that we adopt a subsidiarity model, i.e., one that invests power in the least centralized authority possible.

In the realm of public policy, this would involve embracing “the logic of economic competition” in devising viable solutions to problems with education (including higher ed), healthcare, welfare, and so forth. Market-based ideas, Levin explains,

would mean that, instead of trying to address complex problems with uniform programs imposed in a centralized way, we would allow an assortment of potential problem-solvers (public and private, local, regional, and national) to propose or attempt various solutions in different circumstances.

To progressives this will sound like the standard conservative infatuation with privatization, but Levin argues that it is an expression of humility more than anything else: “Experimentation is what you do when you do not know the answer, and when it comes to many of our biggest public problems today, we are lacking answers.” Moreover, he welcomes the “public option progressivism” of those on the left who advocate for introducing public providers into market competition alongside private suppliers.

Likewise, in the realm of culture, Levin’s subsidiarity entails allowing the mediating institutions of society to define their own communal norms as much as possible. This primarily means giving wide berth to families and religious groups to live according to the moral teachings of their respective faith traditions. The attractiveness of this proposal springs from more than the present impossibility of consensus or the ascendance of either side. It is in these “human-sized communities” that individuals find the belonging, stability, and purpose upon which their long-term satisfaction depends. The project of revitalizing the vast social space between the individual and the state is one — for millions of Americans — of recapturing the pursuit of happiness. And it will create a space in which many different ways of life, many different ideas, compete for affirmation and adoption. The United States’s failed experiment with radical individualism demonstrates that we must begin to take seriously the vitality of what Edmund Burke called “the little platoons” of civil society. If the most disadvantaged among us are to recover social and economic stability, we must seek to reinvigorate the civil associations upon which individual happiness so often directly relies.

Nevertheless, elevating the impact of mediating institutions through a subsidiarist policy does not fully dispose of specific conflicts like the one surrounding religious liberty and gay marriage. For many, to fully embrace or reject Levin’s thesis will require the more detailed policy analysis provided by a newly published book like Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, authors of the same book who often disagree with each other in an ongoing dialogue.

Here lie some particularly thorny questions. Should traditional religious communities be given the social and political space to follow a creed at odds with the evolution of constitutional rights? Should their members be permitted to live according to those beliefs in the public square?

These questions go far beyond arguments about refusals to bake cakes for gay weddings, and they are rapidly expanding as transgender rights come to the fore of public debate. For example, the ACLU recently filed suit against a Catholic hospital for refusing to perform a sex reassignment surgery. Corvino, Anderson, and Girgis, therefore, provide a particularly timely venture into the thicket of philosophical and legal issues surrounding these questions. Moreover, inasmuch as they bring together opposing ideas in a vigorous but respectful debate, their work models how these dialogues could and ought to go forward in the public square.

All three co-authors agree that religion deserves serious protections in a free society, but they are in substantial disagreement about why that is. As we will see, this disagreement about principle ultimately yields sharp divergence at the level of policy. Anderson and Girgis take a few steps back from the heat of political debate to ask what contribution religion makes to the human good. Why is it worthwhile for people to be religious?

The deepest answer, they argue, is that humans seem to have a universal and ineluctable desire to know what — if anything — grounds or stands behind our immediate reality. We want to know the truth about final causes. “Even those who end up atheist or agnostic,” they observe, “are compelled to search by a sense of the value of achieving harmony with whatever ultimate source of meaning there might be.” Pursuing this harmony with integrity, however, requires freedom — the ability to follow the inquiry wherever it takes you and to live accordingly. Thus, the principal value of religious liberty is that it enables citizens to authentically pursue a basic human good. Moreover, since all of this can be said about freedom of conscience as well, Anderson and Girgis treat them together. The human person also fundamentally desires to understand what is good and just and to live one’s life consistently with it. Therefore, if we are to realize the core good of integrity, rigorous protection must also be afforded freedom of conscience.

But why rigorous protection? One might object that religion and conscience represent only a slice of human well-being. Why give them any more protection than, say, the good of self-determination? The reason, Anderson and Girgis contend, is that the goods of religion and conscience are uniquely fragile. Self-determination only requires that one have a reasonably broad range of options available. I don’t necessarily have to have every conceivable career option open to me to realize the good of self-determination, for example. But integrity in matters of religion and conscience is different: “[I]f you’re pressured into flouting even one of your perceived obligations, you’re stuck; your integrity is cracked. So integrity is more fragile than self-determination.” The key is always going to be: Is there a way we can keep this person from having to compromise his or her integrity in following convictions of religion and conscience? The state should do so wherever possible.

Corvino, on the other hand, is unwilling to allow that religion is a basic human good. Certainly it does many good things quite well (e.g., creates communal bonds, gives solace in grief, et cetera), but “[t]here is also no doubt that it does great evil.” Likewise, although we can recognize the value of acting with integrity according to one’s conscience, Corvino argues that it doesn’t follow from this that someone with a misguided conscience deserves accommodation by anyone else. Conscience protection apart from truth is “integrity on the cheap.” Perhaps what you really need is encouragement to change your convictions. Instead, the right basis of religious liberty protection, Corvino argues, is the political fact that

[r]eligion is a common site of discrimination and conflict. […] Perhaps the best reason for considering specifically religious exemptions [to generally applicable laws] is that they serve as a useful check on sectarian strife, whether stemming from unintentional privilege or from deliberate persecution.

Can religion itself become a privileged majority position that no longer merits special protection? Corvino thinks so. Sunday blue laws in the Bible Belt, for example, privilege the majority’s preferred work schedule at the expense of Jewish business people or impoverished citizens who desperately need a seven-day work week. In consequence, the protection religious liberty and conscience receive is never inherent or unique for Corvino. It is a function of minority, disadvantaged status, which may apply more to other designations. Thus, where Anderson and Girgis look to protect religion and liberty wherever possible, for Corvino the essential question is: Who in this conflict is more disadvantaged and likely to be oppressed?

Thus, in practical conflicts Corvino emphasizes the dignitary harm to gays who are denied wedding services by religious objectors. There is no question that the goods can easily be acquired elsewhere, but a just society should not allow a majority — religious or otherwise — to denigrate the core identity of a disadvantaged group. Anderson and Girgis respond that any truly free society intrinsically involves significant dignitary harm of a sort. To hold to any particular view about ultimate questions — whether about the meaning of life, the origins of the universe, or human nature — unavoidably entails a repudiation of contrary views, a claim that other people and ways of life are profoundly mistaken about the most important things. This is true, in fact, of almost all conscientiously held beliefs. Yet, holding that a fellow citizen is categorically misguided doesn’t amount to a deeper rejection of her equal humanity and moral worth. And if that’s the case, Anderson and Girgis conclude, we should protect the basic good of religious belief — except in cases where it is motivated by the clear devaluation of another’s humanity.

Where does Debating Religious Liberty and Discrimination leave us with respect to Levin’s thesis in The Fractured Republic? It raises the plausibility of living with greater diversity of thought on fundamental issues in civil society. Learning to tolerate religious disagreement has been a signal achievement of liberal societies, and if we can live together with mutually exclusive — but also reciprocally respectful — religious systems thriving in civil society, why can’t we expand the scope of that tolerance to include other moral and social issues that divide us? Why can’t civil society function as a realm of diverse ideas and communities, each attempting to model a well-lived common life, to honor others’ attempts to do the same, and to persuade by example rather than through coercion?

This is what Yuval Levin gets right. We have entered a new historical phase of social and political fracture that is, in many ways, deeply troubling. Yet it is also one that suggests possibilities for revitalization in long-neglected sectors of our society. He is right, and profoundly so, that our “mediating institutions” are necessary to reclaiming American opportunity for all our people — as well as in the judgment that the final ascendance of one nostalgic vision over the other is a chimerical alternative.

¤

Matthew D. Wright, PhD, is assistant professor of Government in the Torrey Honors Institute at Biola University. He is a contributor to The American Project at the School of Public Policy, Pepperdine University.


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