Is Religion Special? by Stanley Fish

"...the law is more often than not in the business of avoiding substantive issues by recasting them as issues of procedure. Rather than directly confronting the moral questions apparently animating a case, courts will replace them with the questions demanded by the tests, models and magic phrases that make up the machinery of legal inquiry in a particular area.The process of applying those tests and models and of invoking those phrases has the effect of distancing one from the urgencies felt by the opposing parties as the professional urgency to find the right (or most persuasive) rubric becomes paramount.

"The strategy in those cases is to move the issue from the establishment clause, where the concern is state support for or entanglement with religion, to the free expression clause, where the concern is whether religion, as a viewpoint, is treated fairly with respect to other viewpoints. So the rule is changed from “no aid to religion” to “no aid that is not also given to secular entities”; evenhanded equality in aid replaces the older policy of prohibiting aid.

"Lurking in the background of these cases is the question of exactly what a religion is. The courts do not confront that question directly — how could they? What would be their expertise? — but when even-handed treatment becomes the rule in aid and burdens on free exercise must be tolerated if imposing them was not the law’s affirmative intention, an answer has implicitly been given: religion is just another discourse, no different than any other. That is to say, religion is not special; it is not special in the negative sense implied by the establishment clause, which by its very existence announces, “watch out, this stuff is trouble”; and it is not special in the positive sense declared by the free exercise clause, which seems to announce, “this is something the state must protect.” The evisceration of the establishment clause gets religion in the door but at the expense of its unique status; the neutering or “neutraling” of the free exercise clause completes the denial to religion of the label “special.”

"...it’s what religion is, and by definition religion sees itself as above secular norms, although the issue of being exempt from those norms is a vexed one, occupying the territory between “render unto Caesar what is Caesar’s” and “no one can serve two masters.”

"The entire point of religion — at least of the theistic kind, Christianity, Judaism, Islam — is to affirm a fidelity to an authority and to a set of imperatives that exceed, and sometimes clash with, what is required by the state. The denial of religion’s claim to be special is the denial of religion as an ultimate discourse, and is, in effect, the denial of religion as religion; it becomes just one more point of view. (This is the inevitable effect of protecting religion as a viewpoint; it is just an item on a list.)

"Christianity, like any other religion, is not an all-comers institution, but an institution that conditions membership on adherence to specific beliefs including, in some versions, the belief that sexual relationships outside of marriage between a man and a woman are immoral and disqualifying.

"Democracy, on the other hand, is an all-comers political concept; membership in the democratic polity is conditioned not on belief, but on a willingness to play by the rules — procedural non-substantive rules (or so is the claim) — proclaimed in democracy’s key documents.

"What it goes to show is that the conflict between the liberal state, with its devotion to procedural rather than substantive norms, and religion, which is all substance from its doctrines to its procedures, is intractable. In his “Political Liberalism,” John Rawls asks how democracy’s aspiration for “a just and stable society of free and equal citizens” can be squared with the fact that some of those citizens hold beliefs that are exclusionary; how can they receive equal treatment if they deny it to others?

"Another philosopher, Thomas Nagel, explains what must happen if the liberal state and its religious members are to co-exist in harmony: “Liberalism should provide the devout with a reason for tolerance,” that is, with a reason for putting tolerance above commitment to an absolute and demanding truth. There are no such reasons; the devout can only recognize reasons that flow from the structure of their devotion; liberalism can only give reasons that reflect its own commitment to neutrality. The rapprochements between them are fitful and temporary products of the endless political maneuverings we see in this case and in every case brought under the religion clause. That’s just the way it is and always will be."

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