Religious Freedom in an Egalitarian Age

ISBN 9780674971431

Publication date: 02/06/2017

Tensions between religious freedom and equality law are newly strained in America. As lawmakers work to protect LGBT citizens and women seeking reproductive freedom, religious traditionalists assert their right to dissent from what they see as a new liberal orthodoxy. Some religious advocates are going further and expressing skepticism that egalitarianism can be defended with reasons at all. Legal experts have not offered a satisfying response—until now.

Nelson Tebbe argues that these disputes, which are admittedly complex, nevertheless can be resolved without irrationality or arbitrariness. In Religious Freedom in an Egalitarian Age, he advances a method called social coherence, based on the way that people reason through moral problems in everyday life. Social coherence provides a way to reach justified conclusions in constitutional law, even in situations that pit multiple values against each other. Tebbe contends that reasons must play a role in the resolution of these conflicts, alongside interests and ideologies. Otherwise, the health of democratic constitutionalism could suffer.

Applying this method to a range of real-world cases, Tebbe offers a set of powerful principles for mediating between religion and equality law, and he shows how they can lead to workable solutions in areas ranging from employment discrimination and public accommodations to government officials and public funding. While social coherence does not guarantee outcomes that will please the liberal Left, it does point the way toward reasoned, nonarbitrary solutions to the current impasse.

Praise

The intersection of religious liberty and equality is a topic of great academic, legal, and social importance. It is also a topic where passion and confusion too often outrun reason. In this book, Nelson Tebbe patiently unravels the most prominent puzzles concerning the place of religion in our constitutional jurisprudence. His arguments are intelligent; fair and reflective; methodologically self-conscious and careful; clear and fluent; and exquisitely well-informed and timely.

—Lawrence Sager, University of Texas School of Law
Nelson Tebbe brings principled coherence to controversies pitting religious freedom against LGBT and women’s rights. This book is an important, learned, and incisive contribution to topical debates in legal practice and political theory.

—Cécile Laborde, University of Oxford
With great rigor, intelligence, and a steady hand, Nelson Tebbe’s Religious Freedom in an Egalitarian Age charts a thoughtful course out of the polarized debates surrounding religious liberty and LGBT/women’s equality. To great effect, the book deploys a notion of ‘social coherence’ to guide legal mediation of conflicts between faith and reason, divine and earthly values, private and public power, and complex and conflicting moral visions of the good. Tebbe is remarkably skilled at finding common ground from which to bring otherwise warring parties together through shared values and a sense of collective good. This book is essential reading for anyone interested in the most difficult questions surrounding the modern civil rights era.

—Katherine Franke, Columbia Law School
Tebbe…reviews the current state of legal conflicts around religious freedom and non-discrimination, including topics such as wedding businesses turning away gay customers and the freedom of teachers at religious institutions to express controversial opinions on social media. Tensions run high around these cases, but Tebbe balances all sides as he presents a framework, which he calls social coherence, for how to ensure a fair, rational, and consistent legal outcome…Tebbe’s explications of the principles and the case law precedents they apply to are calm and reasoned, and his selected examples shed light on some of the complexities of applying them, including common errors…It’s a fascinating showcase of relevant legal issues that is both scholarly and compassionate, a true commitment to ideas above ideology.

—Publishers Weekly
His goal was to create a framework for lawyers, journalists, and advocates to reason through the culture wars on solid footing. Tebbe’s question isn’t whether there should be religious exemptions from laws that guarantee equal protection. An entire body of laws and precedent tells us the answer is yes. Rather, he reminds us, the question is when and how these exemptions should be allowed…For those looking to root their advocacy arguments in constitutional principles, the book is a worthwhile resource.

—Stephanie Russell-Kraft, Religion & Politics
Nelson Tebbe’s aspiration is nothing less than teaching us all to think more clearly and coherently about issues of marriage equality and religious freedom. For anyone paying attention, this bandwidth of legal disputes is white hot. And it is rare to find such a thoughtful voice on these questions, which keep coming at us but are rarely dealt with as skillfully and thoughtfully as in Tebbe’s work.

—Sarah Barringer Gordon, Jotwell
Masterful…Extraordinary in its ambition, erudition and scope. Tebbe covers vast areas of constitutional law seamlessly, bringing the reader on a rich journey through the multiple spheres of law, politics, and moral reasoning relevant to the topics addressed in his book. This is, in many ways, far from surprising. Tebbe is one of the most talented and highly regarded experts in the law and religion field, and Religious Freedom in an Egalitarian Age reflects that expertise…[This] is a first-rate work that should be read by anyone interested in questions of religious freedom and equality law.

—Michael A. Helfand, Constitutional Commentary
Religious Freedom in an Egalitarian Age provides insightful guidance on achieving compromises between these two foundational values at a time where such compromises are sorely needed.

—Harvard Law Review