The Importance of Value Pluralism in Constitutional Interpretation

• In Event: Critical Perspectives on Civil Rights & Citizenship

Abstract

Over the last two terms, the U.S. Supreme Court handed down a series of blockbuster decisions that have the potential to reshape and fundamentally alter the role of religion and religious identity in public life. Whether one considers the domain of religious free exercise and questions about exemptions to antidiscrimination laws based on the sincerely held religious beliefs of business owners (303 Creative v. Elenis), or whether one focuses on the realm of religious establishment and questions about prayer at public school events (Kennedy v. Bremerton) or religious school funding schemes (Carson v. Makin), there is a discernible trend among free exercise and establishment clause decisions that skews in favor of religious adherents at the expense of other societal actors, values, and interests. As legal scholar Kate Shaw has noted, these rulings are part of a long-term trend where “the court has taken a sledgehammer to a set of practices and compromises that have been carefully forged over decades to balance religious freedom with other important—and sometimes countervailing—principles” (Shaw 2023). The reluctance of the Court to balance religious liberty against other competing values and interests is the point of departure of my work.

In this essay I plan to (1) summarize these recent legal trends and the historical and contemporary forces animating them, to (2) analyze these trends and determine their implications for a liberal democratic society, and to (3) argue for a theory of constitutional/legal interpretation guided by respect for religious pluralism in particular and value pluralism in general. The recent backlash to LGBTQ+ rights in the United States, perhaps typified best by conservative boycotts of retailers selling Pride-themed merchandise (e.g., Target and Walmart) and the “record surge of restrictions on gay and transgender rights” proposed in state legislatures across the US, underscores the importance and urgency of this project (Arnsdorf et al. 2023). It is against this backdrop of anti-LGBTQ+ political activity and advocacy that the Supreme Court has handed down decisions such as 303 Creative v. Elenis, a decision that curtails the rights of LGBTQ+ persons in public spaces. Rather than facilitating the retrenchment of LGBTQ+ rights, however, respect for religious liberty in a pluralistic society demands that the Court safeguard such rights and serve as a bulwark against attempts to restrict the rights of legally protected groups further. Analyzing these trends on the Court, assessing their impact, and proffering a theory of constitutional interpretation informed by value pluralism helps to illuminate a viable legal path forward; it offers a legal and theoretical response to the Court’s establishment and free exercise jurisprudence and the broader wave of anti-LGBTQ+ activism of which some of the Court’s rulings are a part.

In arguing for a method of constitutional interpretation guided by respect for religious pluralism in particular and value pluralism in general, my work builds on and reinforces the conclusions of existing scholarship on the importance of equal citizenship in religious liberty debates (See, especially, Eisgruber and Sager 2007; Sepper 2016; Tebbe 2017). My work goes beyond this scholarship by relying on elements of John Rawls’ Political Liberalism (1993)—primarily the “criterion of reciprocity”—to illuminate the role that normative political theory and value pluralism should play when resolving important first amendment questions such as those at issue in cases like 303 Creative v. Elenis.

Lastly, although there have been scholarly examinations of the power of the Christian Right and its impact on politics (Hollis-Brusky and Williams 2020; Wilcox and Robinson 2019; Green et al. 2003), as well as analyses of the rightward shift on the Court and its effects on pluralism (DeJamie and Siegal 2018; Murray 2018; Shaw 2023), there has not been an attempt to analyze in a systematic way the judicial decisions comprising these recent trends across establishment clause and free exercise cases, to connect these trends to broader political events, and to offer a theory of constitutional interpretation grounded in value pluralism. The convergence of these three goals will allow me to contribute in a meaningful way to the academic literature on first amendment law—specifically the establishment and free exercise clause—and the broader literatures on religion and politics and judicial politics.

Author

• James Michael DeLise, Temple University