Protecting Religious Liberty

During my first year of graduate school, when I was still very wet behind the ears, I had the privilege of interviewing the philosopher John Rawls for Commonweal (“Politics, Religion, and the Public Good: An Interview with Philosopher John Rawls,” September 25, 1998). The interview focused on Rawls’s thinking about what sort of reasons one ought to present in support of laws and policies in a liberal democracy like our own, one characterized by pervasive pluralism in matters of faith and morals. Rawls defended what he called “public reason.” According to him, fairness requires citizens in positions of political power to argue in terms that all other citizens can embrace. So it would be unfair—more strongly, unjust—to reject gay marriage, for example, on the basis of Scripture. It would also be unfair either to limit or to extend abortion rights on the basis of Immanuel Kant’s philosophy or any other “comprehensive doctrine” (to use Rawls’s terminology) that one could not reasonably expect all citizens to embrace. To be clear, Rawls’s position wouldn’t rule religion out of political discourse: he recognized the important part that religious language and inspiration played in the civil-rights movement, for example. But he insisted that political justifications must be based, at the end of the day, in our common political culture, embodied and articulated by the likes of Jefferson, Madison, and Lincoln. To fail to justify laws and policies in terms that all citizens can embrace is to fail to observe the duty of civility we have toward one another.

Twenty years later, this argument is beginning to seem a little old-fashioned—as if Rawls, who died in 2002, belongs already to the same near-mythical past as Jefferson and Madison and Lincoln. How quaint his insistence on civility sounds in this tawdry age of ours! Our political culture, such as it is, has slouched from the lurid banality of the Monica Lewinsky scandal to the perpetual scandal of Donald Trump’s presidency.

The conversation about religion and politics has also changed over the past twenty years. Though figures like Alabama’s Roy Moore still have theocratic ambitions, the growing number of Americans who no longer identify with any religion—a trend hastened, social-science research has found, by the association of religion with reactionary politics—has made those ambitions appear ridiculous. The Evangelical right has been reduced to whispering sweet nothings into the ear of a thrice-married reality-television star who has boasted about groping women; a porn star was paid off to keep her quiet about their affair. Religion is now on the defensive. Today, our questions about religion and politics are: Can bakers or photographers refuse to provide their services for a gay wedding on free-exercise grounds? Should employers who object on religious grounds to contraceptives or abortion be exempted from having to provide employees health insurance that covers such services? Should Catholic hospitals and physicians be allowed to refuse to perform legal, professionally sanctioned procedures to which they object? May religiously affiliated schools fire a teacher who gets pregnant out of wedlock, or a teacher who gets married to her same-sex partner? In short, why give religion special treatment under the law? Why should religious beliefs warrant accommodation when they conflict with other people’s interests?

Cécile Laborde, who publishes in French as well as in English, holds the Nuffield Chair in Political Theory at Oxford University. Liberalism’s Religion is her first big book: though it’s not very long, it’s a major contribution to its field, likely to displace a lot of other texts from reading lists. It will command attention from political theorists, philosophers, and legal scholars for years to come.

The multiple meanings of the title reflect the book’s multiple ambitions. Liberalism’s Religion has to do with “the concept of religion at the heart of liberalism.” Here “liberalism” is understood as the tradition of political thought, dating back to the seventeenth century, committed to toleration of religious differences, individual rights, and state neutrality toward what Rawls called “comprehensive doctrines.” Laborde acknowledges that “liberal law is biased toward individualistic, belief-based religions”—that is, toward Protestantism. She also takes seriously the accusation that “liberal regulation of religion amounts...to the establishment of an alternative religion”—namely, so-called ethical individualism, a creed famously expressed in Justice Anthony Kennedy’s Opinion of the Court in Planned Parenthood v. Casey (1992): “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Finally, Liberalism’s Religion insists on and explicates “the crucial point that while religion has a special place in liberal theory, it is not a uniquely special place.” In this book religion is “disaggregated,” to use Laborde’s term. She does not try to address all its features, but only those that deserve civic respect and legal protection. In her words, “it is not sufficient simply to say ‘religion is X and Y.’ What is required is to identify the specific normative values that the law has reason to protect—values that make X or Y legally salient.” Laborde argues that those values also belong to many “nonreligious beliefs, conceptions, and identities,” with the upshot that it becomes possible “to treat religious and nonreligious individuals on the same terms, as expressions of ethical and social pluralism.”

Here it is important to remember that religion is contested nowadays both from within and from without. From within, there are now so many “religions” in countries like the United States that it is increasingly hard to say what exactly counts as religion, and the demand that the law accommodate all citizens’ religious beliefs appears increasingly unrealistic and imprudent. From without, there are now so many people professing no religion that it appears unfair for the law to accommodate religious beliefs in particular. Why should the beliefs of religious people be privileged in this way? Egalitarians may seek to solve this problem in two ways: either by denying that religious citizens should enjoy exemptions from generally applicable laws, or by denying that exemptions should be exclusive to religious citizens. Brian Leiter goes the first way in Why Tolerate Religion? (see William Galston’s review in the May 3, 2013 issue). Laborde goes the second way. For her, in a very telling line, “If exemptions are not exclusive to religion...then religious exemptions might be permissible.”

Laborde’s project might remind readers of the philosopher Charles Taylor’s polemic in A Secular Age (2007) against what he calls “subtraction stories”—stories according to which, when religion crumbles away or is sloughed off, ideals and values that were always there, operating in the background, come to the fore, clear at last to sight. Arguably, a subtraction story is behind fifty years’ worth of Supreme Court rulings on conscientious objection to military service. According to this story, what we valued in religious liberty was really liberty of conscience. Now, in this time of growing religious non-affiliation, we can begin valuing liberty of conscience directly, rather than through the proxy of religion; otherwise we privilege the consciences of the religious over the consciences of the nonreligious. In United States v. Seeger (1965), the Court focused on whether the objector’s belief occupied in his life “a place parallel to that filled by the God of those admittedly qualifying for exemption”; in Welsh v. United States (1970), the Court focused on whether the objector’s belief was “held with the strength of traditional religious convictions.” What mattered now—and had always mattered implicitly—was not that a belief was religious but the intensity with which it was held.

Laborde acknowledges that “the Seeger-Welsh jurisprudence has become a point of reference for liberal egalitarian theorists, as the paradigm of accommodation extended from religious to nonreligious moral commitments.” But the story she tells is more complicated. Religious liberty, she claims, cannot be redescribed without loss as liberty of conscience, for protecting liberty of conscience does “not protect all religious beliefs and practices, because religion cannot be reduced to conscience.” For example, the ingestion of peyote in a Native American ceremony is not an obligation of conscience, but it is nonetheless a religious practice that arguably ought to be protected against generally applicable laws prohibiting the possession and use of hallucinogens.

The book’s final two chapters stake out positions on the controversial questions in the news today concerning freedom of association and the boundaries of religious liberty. Laborde holds that “only groups that are voluntary and identificatory have rights to discriminate”—for example, in hiring and firing. An “identificatory” association is one “where individuals identify with the projects and commitments that are at the core of the association’s integrity.” Take a church, for instance, or a religious school. In Laborde’s account, the right of such a voluntary, identificatory association to discriminate with respect to gender or sexuality is based on its “coherence interests”: for the association to hang together rather than disintegrate, it must be free to live by its own standards, purposes, and commitments. Concretely, it must be free to hire ministers and teachers who satisfy the relevant criteria—perhaps church doctrine specifies the ministers must be male—and live out the relevant teachings—say, regarding same-sex relationships. What’s more, an association like a church or a religious school also has “competence interests”: it matters for its coherence that it be recognized as the sole competent authority to interpret its own standards, purposes, and commitments. Concretely, it is not for the state to judge whether a minister or a teacher is a good or bad fit for the association.

To this point, the argument seems unobjectionable. But then Laborde turns to what the law calls places of public accommodation, like bakeries and flower shops, which provide goods and services for the public at large. Masterpiece Cakeshop is the example in today’s headlines; its owner’s refusal to make a cake for a gay couple’s wedding has led to a Supreme Court case. According to Laborde, public accommodations “have no relevant coherence interest that would allow them to refuse to serve all members regardless of race, gender, or sexuality.” While the defining commitments of a church or religious school would be imperiled if it did not have a right to discriminate in hiring and firing, Laborde does not believe that having to serve all comers similarly imperils what a public accommodation is all about. So, for example, a Roman Catholic church that was compelled to employ a woman as a priest would run awry of Catholic doctrine and cease to be a Catholic church in good standing with Rome. A bakery compelled to serve all comers, by contrast, does not cease to be a bakery. There is just no sense in claiming it must be free to discriminate on the basis of race, gender, or sexuality lest it be untrue to its function, which is to bake

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. 

Liberalism’s Religion
Cécile Laborde
Harvard University Press, $35, 344 pp.