At Judge Ketanji Brown Jackson’s recent confirmation hearings, Senator John Cornyn pointed out a persistent problem in secular liberalism. Sometimes, religious freedom comes into conflict with other constitutional rights. Like other conservatives, Cornyn is especially concerned with the fact that marriage equality and LGBTQ anti-discrimination protections could require conservative Christians to accommodate, do business with, and, in short, not discriminate against people. And he thinks that their right to religious freedom outweighs the rights of others. He argued that in Obergefell, the 2015 case that recognized the legality of same-sex marriage in the United States, the court had created a new right that conflicted with old rights. He asked Jackson if she could see how this is a problem, “particularly in an area where people have sincerely held religious beliefs.” “Well, Senator,” she responded, “that is the nature of a right.”
This is hardly an issue that just happened to crop up unexpectedly during Brown’s Senate confirmation hearings; in fact, we have been debating this for centuries. Rights protect people, but they are not a pass to do whatever you want, especially if what you want to do causes harm to other people. And yet, Cornyn and others would argue, the right to exercise one’s religious beliefs, even harmfully, is more fundamental and more important than these “new rights.” While the central problem is old, the shape of the politics is new.
The brand of religious freedom that conservatives have endorsed in recent years is a deeply antisocial version. And it has often been bolstered by a now-common but relatively new phrase: “sincerely held religious belief.” Sincere beliefs are now used to flout anti-discrimination laws, undermine public education, and endanger public health. New laws and lawsuits aim to protect the sincere beliefs of discriminatory business owners. Many thousands of Americans successfully applied for exemptions from vaccine mandates, since receiving a vaccine would violate their beliefs. Legislators in numerous states are even working to enlist sincere beliefs in the critical race theory panic. For example, Oklahoma legislators recently introduced a bill that would protect public school children from lessons that result “in the promotion of positions in opposition to the closely held religious beliefs of the student.” Sincerely held religious beliefs have become a powerful tool for those believers—especially white Christians—who want to be exempted from certain aspects of public life.
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Of course, many on the political right would not agree with this framing; they would argue the opposite. For them, the protection of religious belief would enable them to participate more fully in society. In his dissent in Obergefell, Justice Samuel Alito wrote, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.” Cornyn quoted this line in his questioning of Jackson, asking her if she was concerned that believers would be “vilified as unwilling to assent to this new orthodoxy.” Not to be too glib about it, but what they seek is the right not to be “canceled”—to say things and act in ways, in public, that are offensive and even harmful, without being denounced or otherwise face public reproach for their beliefs.
Justice Clarence Thomas has put it even more bluntly. In October 2020, the court declined to hear the case of Kim Davis, the Kentucky county clerk who refused to sign the marriage license of a same-sex couple. But Thomas took the opportunity to issue a statement, joined by Alito, in which he argued that “Davis may have been one of the first victims of this Court’s cavalier treatment of religion in its Obergefell decision, but she will not be the last.” He continued, predicting, “Due to Obergefell, those with sincerely held religious beliefs concerning marriage will find it increasingly difficult to participate in society without running afoul of Obergefell and its effect on other antidiscrimination claims” (emphasis added). This, then, is the function conservatives hope sincerely held religious beliefs will serve. They allow them to participate in society, on their own terms.
What does it mean to participate in society? In our neoliberal era, the social and political effects of which are even more starkly apparent in the pandemic, it is not at all clear. In her book Undoing the Demos: Neoliberalism’s Stealth Revolution, Wendy Brown has shown how neoliberalism is not just an economic and political system but also a governing rationality unto itself, a sort of common sense. For many in the U.S. and around the world, the very notion of the public good has grown less thinkable. Under these conditions, Brown has recently explained, “our freedom rests on being able to do what we want as individuals.” On the far right, this libertarian ethic has combined with anti-democratic politics and policies to form what Brown calls “authoritarian liberalism.”
We find a paradigmatic example of authoritarian liberalism in the contemporary politics of sincerely held religious belief. As I wrote in these pages last year, sincere belief “names a distinctly American way of being free and being religious: as an individual, unsystematically, and without regard for others.” To remain unvaccinated, or to pack a sanctuary at the height of pre-vaccine infection surges, is a personal freedom. And when it is sincere and religious, it is worth protecting, regardless of who else might be harmed. Further, sincerely held religious beliefs insulate their holder from critique. They offer an opt-out not only from the demands of democratic participation but from the democratic process of deliberation, of giving reasons and making arguments. You can always say, when pushed, “Don’t question my faith.”
And yet I want to suggest that sincerity could offer, perhaps unexpectedly, an ethic worth pursuing. Sincerity could be—should be—fundamentally social, not antisocial. As the anthropologist Webb Keane explained, when I speak sincerely, “I am not only producing words that reveal my interior state but am producing them for you; I am making myself (as an inner self) available for you in the form of external, publicly available expressions.” You cannot be sincere by yourself. You have to talk to other people. Today, sincerely held religious beliefs are increasingly deployed in service of the opposite function. Claimants—at least, white conservative Christian claimants whose religious beliefs are recognized as normatively religious—do not have to do much to explain or defend their beliefs. They just hold them, sincerely. How might our politics look different if sincerity claims were an invitation to dialogue rather than a conversation-stopper? A chance to negotiate a resolution with one another in good faith?
There are good arguments against our cultural and political obsession with sincerity. Who cares if a legislator really believes what they’re saying? What matters is the effects of their policies. Does it make much difference if Republican leaders actually believe the 2020 election was fraudulent? So much focus on the interior lives and “lived experience” of public figures distracts from the content of their speech. Likewise, there are good arguments against the whole liberal regime of religious freedom and, specifically, the way its focus on sincerity privileges normatively religious believers. Religious freedom historically has been used by minority religious groups to protect themselves from state coercion. And it is still used for good, on certain occasions; disempowered and vulnerable people still do win cases. But now, although the right-wing capture of religious freedom has not been total, a more just and progressive agenda might abandon religious freedom and fight to diminish its power rather than use it. Other, perhaps more promising and productive alternatives exist: We could imagine religious freedom more capaciously, and beyond the First Amendment, in ways that do more than simply protect the unaccountable freedoms of the neoliberal unit of the individual believer.
Many liberals have accused conservatives of turning religious freedom from a “shield” into a “sword”: Whereas it had been meant to protect vulnerable people, it is now used to harm them. I learned from a recent episode of the TNR podcast The Politics of Everything that when cars—a great symbol of American freedom—are rated for safety, that rating refers only to the safety of the people inside the car. Car manufacturers and safety-raters have done little to take into account the safety of other drivers, pedestrians, or children in driveways, who might be struck and killed by, for instance, a driver who cannot see in front of them because their truck’s grille is so massive.
On the podcast, Alex Pareene quipped that, from the driver’s perspective, the safest vehicle would be a tank. This is an apt analogy for the sort of freedom that sincerely held religious belief can guarantee. Rather than a sword or a shield, it’s an armored vehicle, keeping the driver safe while they plow into whoever is unfortunate enough to drive a less “safe” vehicle.
We should embrace the potential for sociality that sincerity promises. That is what it means, or could mean, to participate in society. We interact with people who are different, who believe differently. And we make ourselves available to them. We express ourselves to them, making our private selves selectively public. It requires some vulnerability. The right’s politics of sincerely held religious belief protects a vulnerable believer by rendering them invulnerable. But that sense of invulnerability comes at a cost: Adherents cut themselves off from what it truly means to be a member of the public, and that alienation only serves to deepen the original divide.