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Religious Freedom Toolkit

Part III | Expanded Analysis

Category E | Perspectives

Topic 29 | Macro and micro

Some practical problems can be solved by focusing on specific micro issues even when there is strong disagreement on the bigger picture. Conversely, sometimes agreement can be forged on the macro level even if there are significant differences on particular issues. Both strategies can be used to find common ground, but which strategy is appropriate will depend on circumstances.

Illustrative examples  

U.S. federal Indian law professor Michalyn Steele recounts an illustrative Native American legend:

"Many tribes have stories of a trickster they call Coyote, a notoriously transgressive figure whose misadventures help to reinforce community mores and teach important lessons. . . . In this story, Coyote has learned a dangerous trick. He can send his eyes far out over the plains and mountains to see things far away and then call his eyes back into place. Wise people warn him not to keep doing this, predicting that one day his eyes may not come back. He doesn’t listen. (He never listens.) One day he sends his eyes on a far-off adventure one too many times and his eyes don’t come back. Coyote is blind, with two empty holes in his face where his eyes should be. Eventually, because Coyote is unusually lucky, he finds one bison eye (way too big) and pops it into one eye socket, and one mouse eye (way too small) and pops it into the other socket. This looks very unusual of course, but it restores him to an odd kind of vision. With the bison eye, he can see only long distances and the big picture of things. With the mouse eye, he can see only very close up and the fine details of things."752

Steele notes that in her legal practice and teaching she has found it useful sometimes “to look at a problem from the big picture, with the perspective of the bison eye” while at other times it is essential to “pay special attention to fine details with the perspective of the mouse eye.”753 In the context of the right to freedom of religion or belief (FoRB), some issues will call for examination and attempted resolution at a macro level (with the bison eye) while others will call for examination and attempted resolution at a micro level (with the mouse eye).

To employ another illustration, donning figurative bifocals can be useful when examining FoRB issues. Doing so helps us develop the ability to identify whether “close-up” or “distance” examination and problem-solving is most constructive or feasible in a given situation—and to switch between them if and when necessary.

Micro-level focus  

In some controversies, consensus on philosophical “big picture” issues is extremely difficult, if not impossible, to achieve. In such cases, it may be productive to “zoom in,” employing the mouse’s eye or near-seeing lenses, to focus on achievable micro solutions.

Law professor Cass R. Sunstein has argued that, in challenging legal controversies, facilitating “incompletely theorized agreements” can be a productive “mouse eye” strategy.754 To produce such agreements, [p]articipants in legal controversies . . . agree on the result and relatively narrow or low-level explanations for it.”755 However, “[t]hey need not agree on fundamental principle. They do not offer larger or more abstract explanations than are necessary to decide the case. When they disagree on an abstraction, they move to a level of greater particularity.”756

Sunstein explains, for example, that most people will agree on the concrete, particular concept that endangered species protections are important, but many will differ as to why protections are important in the abstract: “Some may stress obligations to species or nature as such; others may point to the role of endangered species in producing ecological stability; still others may point to the possibility that obscure species will provide medicines for human beings.”757 According to Sunstein, differing “whys” underlying an agreed-upon “what” (i.e., protecting species) are not necessarily relevant. “When (and if) people who agree on the same course of action are able to do so from different foundations, they need not choose among foundations.”758

The Universal Declaration of Human Rights is perhaps one of the most significant examples of an “incompletely theorized agreement.” Key drafters such as Eleanor Roosevelt, P.C. Chang, Charles Malik, and Muhammad Zafrulla Khan approached the drafting task from varying cultural, philosophical, religious, and political backgrounds.759 Foundationally, drafters may have differed in their ideas of the precise definition and source of human dignity but came to agree on dignity as the foundation of human rights, which famously allowed the UDHR drafting process to go forward after fraught early stages.760 Additionally, though drafters differed on the macro “why” behind many enumerated human rights, they were eventually able to agree on the micro “what,” in the form of specific rights enumerated in the Declaration’s 30 Articles.761

Fairness for All efforts in the United States have similarly used a micro-focused, “incompletely theorized” approach to issues where religious freedom and nondiscrimination rights seemingly conflict. Two such efforts are discussed below.

In Loudoun County, Virginia, disputes over proposed policies protecting LGBTQ student rights in public schools became heated and caustic. A community association brought together representatives of conservative religious and LGBTQ interests, respectively, to discuss possible points of compromise on transgender student bathroom use. Although religiously conservative and LGBTQ representatives maintained differing views about macro, conceptual questions on the nature of human sexuality, sexual orientation, and gender identity, they were able to agree to 8 of 10 proposed policy amendments that protected the interests of both “sides”; those amendments were eventually approved by the school board.762

The Utah Compromise (2015)763 is another example of religious freedom advocates and LGBTQ rights advocates setting aside macro issues and focusing on micro issues, where common ground could be found. In the U.S. state of Utah, religious organizations and LGBTQ advocates cooperated in crafting comprehensive legislation that included specific, practical protections for diverse interests:

  • religious interests—for example, upholding the right of religious organizations and individuals to decline to perform same-sex marriages, allowing employers to create workplace regulations aligned with their values, and permitting faith-based counseling;

  • LGBTQ+ interests—for example, banning housing and employment discrimination, and guaranteeing access to state-authorized celebrants for same-sex marriages; and

  • interests of both groups—for example, protecting employee expression inside and outside the workplace.764

While the Utah Compromise has not changed the macro religious worldview of many Utahns, and Utah “remains one of the most sexually conservative states in the nation,” the state has become “one of the most supportive of basic rights against unjust discrimination for LGBT[Q] persons” at the micro level.765

Sometimes solving one practical micro problem will make it easier to address the next practical micro problem. For example, collaborative relationships created in the crafting of the Utah Compromise’s micro agreements shifted the rhetoric and culture of those on all sides of the relevant issues.766 While “there are still periodical tensions and flare-ups, . . . as a community Utah is vastly less polarized than it once was” on the relevant issues,767 thus laying the foundation for future collaborations and compromises.

Macro-level focus  

In other controversies, consensus on particulars may be difficult, if not impossible, to achieve. In those contexts, it may be productive to “zoom out,” employing the bison’s eye or distance lenses, to find macro-level agreement.

For example, meaningful agreement about overarching concepts such as human dignity, equality, and freedom may be possible even if people disagree about the specific sources, definitions, or applications of these concepts. Many of the human dignity initiatives of the International Center for Law and Religion Studies are designed to find common ground on broad concepts and ideals, even among people with very different ideas about how those concepts apply to specific situations.768 Focusing on the macro level can create common ground where seemingly none exists; once this macro-level common ground is established, progress may be made on micro-level solutions.

In some sense, the UHDR drafters and “Fairness for All” participants mentioned above employed a macro-level focus in the early stages of their respective projects, when micro-level agreement seemed impossible.

The UDHR drafters’ agreement on the macro concept of dignity as the foundation of human rights (even as they disagreed about its precise definition or source) laid the foundation for agreement on the Declaration’s 30 articles.769

Both the Utah and Loudoun County compromises also zoomed out to focus first on the human dignity of participants. In Utah, early meetings between religious and LGBTQ leaders focused on relationship-building rather than specific policies or issues. “Over months and years of these interactions, friendships grew, and so did understanding and trust,” paving the way for negotiations on specific legal protections for religious and LGBTQ rights.770 In Loudoun County, meetings between parties similarly began with dignity-focused exercises that promoted sharing and building relationships of trust among participants who represented differing interests.771 In each of these cases, a macro focus on the human dignity of all participants laid the groundwork for micro-level agreements and solutions.

Employing a macro-level approach to politically polarized issues could potentially lead to similar agreements. For example, micro-level conflicts about abortion, such as at what stage or in what circumstances abortion might be allowed, could potentially benefit from a “zoomed-out” view of the respective dignity interests of the mother, the fetus, and others. Similarly, charged debates over immigration policy might benefit from pulling back the lens to examine the dignity interests of potential immigrants to the target country, undocumented immigrants who currently reside in that country, and the country’s citizens. While a macro-level approach will not generate easy answers to difficult questions, zooming out can put us in a mindset of mutual recognition of dignity interests, which is more likely to result in a solution acceptable to all.

A multi-lens gaze  

In many contexts, an alternate or simultaneous use of both near and distant lenses—both a mouse eye and a bison eye—is optimal or required.

Constitutions, for example, typically contain both macro and micro articulations of foundational governing principles. In national constitutions, some foundational values remain vague and undefined (e.g., freedom of speech, freedom of the press, free exercise of religion, non- establishment of religion, freedom of assembly), whereas other provisions are very specific (e.g., age requirements for government office).

Politics generally also function best with both macro and micro foci. Legal and political philosopher Bruce Ackerman has described the United States as a “dualist” political system.772 According to Ackerman, macro “constitutional politics” happen during rare, historic, transformative periods when widespread agreement is forged on framework principles.773 This macro-level framework then facilitates micro-level “normal politics”—the day-to-day governance processes of administration, legislation, campaigning, and elections—that may be divisive and more amenable to tradeoffs and compromise.774

In the realm of human rights, the Punta del Este Declaration on Human Dignity for Everyone Everywhere (2018) asserts that the task of upholding human dignity (the foundation and goal of human rights) requires us to employ a multi-focus gaze:

"Human dignity for everyone everywhere reminds us to work toward the elimination of the most egregious abuses of the human rights of individuals and groups, including genocide, crimes against humanity, war crimes, and other atrocities. It also reminds us to protect those human beings most at-risk of human rights violations. At the same time, it encourages efforts to respond to problems that may be amenable to practical and feasible solutions."775

In other words, our duty in upholding human dignity involves focus and action on the macro level, such as preventing genocide, but it also involves focus and action on relevant micro-level issues that may be more “practical and feasible.” On the macro level, international parties may agree that genocide is wrong but fail to agree on whether a state’s or group’s actions constitute genocide. Even so, those same parties may be able to agree, on the micro level, that the immediate needs of individuals affected on the ground should and can be met through coordinated humanitarian efforts.

Thus, states, organizations, and individuals best protect human dignity and human rights, including the right to FoRB, when they develop a multi-lens gaze—the ability to move between the most and least contestable issues and between the most and least abstract and concrete solutions.

Conclusion  

In recounting the legend of Coyote, Professor Steele reflects on its lessons:

"I’ve found the perspective of each of these [near- and distance-vision] eyes useful, so I have long wondered if this was such a bad outcome for Coyote. I’ve also wondered what was transgressive about Coyote sending his eyes away. What is the principle being taught? . . .

. . . I have thought of Coyote’s transgression as a failure to be present. While he sits there with his eyes out roaming the world . . . he is ignoring those around him and shirking his responsibilities to family and community."776

Perhaps one takeaway from the legend, then, is that maintaining a dual-lens micro and macro vision is helpful, but more important is maintaining a consistent focus on the humanity and human dignity of the individuals around us, in our sphere of influence.

Similarly, employing the appropriate micro or macro lens can facilitate the finding of common ground or solutions in divisive issues relating to religious freedom. More important, however, may be consistently maintaining (1) a macro-level understanding of human dignity as the foundation of the right to religious freedom and (2) a micro-level understanding of the human dignity of individuals on all sides of the issues involved in promoting and protecting that right.

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References

752. Michalyn Steele, The Great Law(s) of Peace, Spring 2024, at 10, 13, CLARK MEMORANDUM. https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?params=/context/clarkmemorandum/article/1074/&path_info=CM_S24.pdf.

753. Id.

754. See Cass R. Sunstein, Incompletely Theorized Agreements, 108(7) HARVARD LAW REVIEW 1733 (1995), https://doi.org/10.2307/1341816.

755. Id. at 1735–36.

756. Id. at 1736.

757. Id.

758. Id.

759. See generally 21(4) THE REVIEW OF FAITH & INTERNATIONAL AFFAIRS 22, 29–30 (2023) (Essays in Honor of the 75th Anniversary of the Universal Declaration of Human Rights), https://www.tandfonline.com/toc/rfia20/21/4.

760. See MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 144–46 (2002); Glenn Hughes, The Concept of Dignity in the Universal Declaration of Human Rights, 39(1) THE JOURNAL OF RELIGIOUS ETHICS 1, 1–9 (2011); Hans Ingvar Roth, P.C. Chang, Multicultural Confucian Philosopher and Human Rights Champion, 21(4) THE REVIEW OF FAITH & INTERNATIONAL AFFAIRS 22, 29–30 (2023), https://doi.org/10.1080/15570274.2023.2272437; Brett G. Scharffs, Introduction: Faith and the Founding Figures of Human Dignity, id. at 1, 3, https://doi.org/10.1080/15570274.2023.2272439.

761. See Michael Novak, Human Dignity, Human Rights, 97 FIRST THINGS 39 (1999), https://www.firstthings.com/article/1999/11/human-dignity-human-rights.

762. Melaney Tagg, Collaboration Amid Controversy: A Hopeful Report from Loudoun County, PUBLIC SQUARE MAGAZINE (Mar. 1, 2022), https://publicsquaremag.org/politics-law/freedom/collaboration-amid-controversy-a-hopeful-report-from-loudoun-county; see also 2022 Religious Freedom Annual Review, What Can I Do Locally: Building Bridges with LGBTQ Groups?, YOUTUBE (June 2022), https://www.youtube.com/watch?v=HRX0Gjl7SzI&list=PLFjLFjjmdYzInVRDYsuOChnLutQ-C2NYC&index=2 (featuring a panelist discussing the Loudoun County compromise).

763. Antidiscrimination and Religious Freedom Amendments, S.B. 296, 2015 Gen. Sess. (Utah 2015) (codified in scattered sections of Utah Code §§ 34A, 57 (2024)); Protections for Religious Expression and Beliefs About Marriage, Family, or Sexuality, S.B. 297, 2015 Gen. Sess. (Utah 2015) (codified in scattered sections of Utah Code §§ 17, 30, 63G (2024)).

764. S.B. 296, 2015 Gen. Sess. (Utah 2015); S.B. 297, 2015 Gen. Sess. (Utah 2015); see also Robin Fretwell Wilson, Summary of the Utah Compromise (Mar. 24, 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584543; J. Stuart Adams & Robin Fretwell Wilson, Protecting Religious Liberty Requires Protections for All, RELIGIOUS FREEDOM INSTITUTE (July 12, 2016); https://religiousfreedominstitute.org/2016-7-12-protecting-religious-liberty-requires-protections-for-all.

765. Sarah Jane Weaver, Elder Alexander Dushku Speaks at 2024 Notre Dame Religious Liberty Summit About Building Respect, Friendship, THE CHURCH NEWS (July 16, 2024), https://religiousfreedominstitute.org/2016-7-12-protecting-religious-liberty-requires-protections-for-all (quoting Elder Alexander Dushku, General Counsel for The Church of Jesus Christ of Latter-day Saints, on a panel at the 2024 Notre Dame Religious Liberty Summit).

766. Id.

767. Id.

768. See, e.g., AFRICAN CONCEPTIONS OF HUMAN DIGNITY (Brett G. Scharffs, M. Christian Green & Simeon O. Ilesanmi eds., 2024) (compiling scholarship and reflections on human dignity from members of the African Consortium of Law and Religion Studies, following the signing of the Punta del Este Declaration on Human Dignity for Everyone Everywhere and the “Botswana Declaration” on African Perspectives on Human Dignity for Everyone Everywhere); HUMAN DIGNITY, JUDICIAL REASONING, AND THE LAW: COMPARATIVE PERSPECTIVES ON A KEY CONSTITUTIONAL CONCEPT (Brett G. Scharffs, Andrea Pin & Dmytro Vovk eds., 2024); Punta del Este Declaration on Human Dignity for Everyone Everywhere (Dec. 2018) [hereinafter Punta del Este Declaration], https://www.dignityforeveryone.org/languages.

769. See GLENDON, supra, at 144–46.

770. Weaver, supra.

771. Id.

772. 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 3–31, 295–324 (1991) [hereinafter ACKERMAN, WE THE PEOPLE]; Bruce Ackerman, Constitutional Politics/Constitutional Law, 99(3) THE YALE LAW JOURNAL 453, 461–62 (1989).

773. See ACKERMAN, WE THE PEOPLE, supra, at 31–32.

774. See id.

775. Punta del Este Declaration, supra, art. 10.

776. Steele, supra, at 13–14.