Cautious Contextualism: A Response to Nelson Tebbe’s Nonbelievers Article

Volume 98

98 Va. L. Rev. Online 32
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Professor Nelson Tebbe’s recent article, Nonbelievers, provides a comprehensive account of an increasingly visible issue: the status of nonbelievers under religious freedom laws. Rejecting any uniform answer, he argues that courts should employ a polyvalent approach, one which incorporates multiple, context-dependent principles and pragmatics. His article makes an important theoretical contribution, and provides detailed analyses of a wide range of legal disputes that can be expected to grow exponentially in coming years.

Two prominent approaches serve as his foils: (i) the single-value equality theory, which argues against privileging religious believers, and for nonbelievers’ equal status; and (ii) defining religion so that nonbelievers are either in or out. Tebbe asserts that even within these categories, the most persuasive scholars end up allowing room for differential treatment in some contexts. For example, with their “Equal Liberty” theory, Provost Christopher Eisgruber and Professor Lawrence Sager argue that religious freedom guarantees should apply equally to all deep and valuable commitments. Still, confronting intractable facts, like the male-only Catholic priesthood, they work to cobble together alternative constitutional grounds for permitting such special treatment.

On the elusive project of defining “religion,” Professor Tebbe reviews leading theories in both religious studies and law, and finds Professor Kent Greenawalt’s “flexible analogical approach” most persuasive. Greenawalt recommends that courts focus on how closely beliefs and practices resemble those of undisputed religions, cautioning that what counts as “religion” may vary depending on the specific legal issue. Tebbe agrees with this context-sensitivity, but rejects the definitional enterprise itself as a distracting, unhelpful shortcut. Instead, he proposes, courts should “simply ask whether nonbelievers should be protected in each doctrinal area, taking all the relevant values into account.”

In this brief Response, I explore several potential concerns about this open-ended approach to the rights of nonbelievers. On the “exemptions” issue, the article’s approach to nonbelievers risks exacerbating existing, troubling inequities created by some individual religious claims. In this and a second example, government religious speech, more familiar legal standards, including Professor Greenawalt’s definitional approach, seem to provide more predictable and attractive results. My reflections begin with the threshold line-drawing challenge: describing the “nonbeliever.”

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