That argument seems right, but note that it does not quite reach the point of contention in Masterpiece Cakeshop (which Laborde, to be clear, does not discuss). Jack Phillips does not refuse to serve gay persons all baked goods; instead, he refuses to make cakes celebrating gay weddings. Further, while there are no grounds other than racism to oppose participation in an interracial wedding, there are grounds other than homophobia to oppose participation in a same-sex wedding. Opposition to an interracial wedding can only be about the persons being wed; opposition to a same-sex wedding can be about the redefinition of the institution of marriage.
Laborde writes that “as a practice becomes more distant from the core religious practices and activities of the association, it also becomes less relevant to associational coherence,” with the upshot that “religious employers cannot discriminate on religious grounds…in relation to employees not doing religious work.” This claim also seems right, and it’s relevant to the resistance of some Catholic colleges and universities to the formation of part-time faculty unions under the auspices of the National Labor Relations Board. But again, Laborde’s argument does not quite reach the point of contention. Catholic colleges and universities like DePaul and Loyola Chicago claim that they should be recognized as having the competence to judge which employees are “doing religious work”; the NLRB claims this competence for itself. This raises the question: Who has the authority to define what counts as “religious work”? Is the question of what counts as religious itself a religious question over which religious associations have sole competence, or should they have to convince governmental bodies like the NLRB? Laborde refers to this type of dispute as a jurisdictional boundary problem—coming soon, it seems likely, to a federal court near you.
Laborde’s defense of individual exemptions to generally applicable laws turns not on the rights of conscience, but on the value of integrity, which she defines as “an ideal of congruence between one’s ethical commitments and one’s actions.” In keeping with her egalitarian premises, she argues that “the moral force of individual exemption claims lies…in their importance to individual integrity, not in their advancement of objective or collective goods such as ‘religion’ or ‘tradition.’” In other words, for her, the question to ask is, “What kinds of commitment are so important to people that their integrity would be threatened were they prevented from acting on them?” Integrity-protecting commitments come in two kinds: those that a person feels obligated to observe (for example, a commitment not to participate in war) and those that, while not experienced as obligations, figure saliently in a person’s way of life (for example, ingesting peyote in a religious ceremony). Of course, the fact that an integrity-protecting commitment is burdened by a law does not by itself mean that the burden is unfair. According to Laborde, such a law is unfair only when “there seems to be a disproportion between the aims pursued by the law and the burden it inflicts on claimants,” or when “minority citizens are unable to combine the pursuit of a core societal opportunity with an [integrity-protecting commitment], whereas the equivalent opportunity set is institutionally available to the majority”—for example, denying Muslims time off from work on Fridays, when Christians enjoy time off on Sundays.
In its favor, Laborde’s argument captures the logic of the U.S. Supreme Court’s Seeger-Welsh jurisprudence while also laying the groundwork for a more capacious interpretation of religious liberty than the one put forward by the U.S. Supreme Court in the notorious case of Employment Division v. Smith (1990). According to Justice Antonin Scalia’s Opinion of the Court, “generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Scalia feared that having to grant exemptions whenever a compelling governmental interest was not at stake “would be courting anarchy.” Laborde agrees with Scalia that “religious believers have no presumptive right” to exemptions, but her argument provides principled grounds for granting exemptions in some cases.
Still, there is reason to wonder whether respect for religious liberty can be redescribed as respect for integrity without loss. According to Laborde, what we valued in religious liberty was really personal integrity all along. Now, in this age of religious pluralism and growing religious nonaffiliation, we can just value personal integrity directly, rather than through the proxy of religion. For Madison, however, it was a citizen’s relationship to God in conscience—understood, roughly, as the faculty through which a person might hear God’s voice and the duties it prescribes to her—that grounded the limitation on the federal government articulated in the First Amendment. As he wrote in his 1785 pamphlet titled “Memorial and Remonstrance against Religious Assessments”:
The Religion...of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right...because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the General Authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign.
In brief, any government that seeks to respect its citizens’ natural rights has to recognize limits to its powers. In particular, it must seek to allow each person to practice his or her religion according to the dictates of conscience. This is because, according to Madison, a person is more than a citizen. Each of us has a dimension that transcends the temporal order and that renders us subject to an authority higher than government.
We might wonder, then, whether the claim that political authorities should avoid requiring a person to deny his or her God has the same force when it is translated into the claim that authorities should avoid requiring a person to compromise his or her integrity. It is interesting in this regard that, while in both Seeger and Welsh the Supreme Court expanded the class of conscientious-objection claims warranting accommodation, in Negre v. Larsen (1971) the Court rejected the claim of a Roman Catholic who objected on faith-based grounds not to war in general, but to the war in Vietnam. Perhaps that decision is exactly what one should expect once religious liberty claims have been reduced to just one among many species of intensely held beliefs. It’s hard to see why the mere intensity of a belief should give it priority over the nation’s security. Perhaps Laborde’s concept of integrity has more weight than that of intensely held belief; maybe “I can’t go to war lest my integrity be compromised” is a more powerful argument than “I can’t go to war because it’s against my intensely held beliefs.” But that still doesn’t make it as powerful as “I can’t go to war lest I violate my duty to God.” In Rawls’s terms, the appeal to integrity is one that all citizens can understand. Madison’s defense of religious liberty, by contrast, is rooted in an increasingly foreign comprehensive doctrine.
Harvard University Press, $35, 344 pp.