[Note: I've revised this post slightly since originally publishing it.]
A few days ago, in the NYT Magazine, Emily Bazelon had this piece, What Are the Limits of "Religious Liberty"? Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars: Complicity-Based Conscience Claims in Religion in Politics." I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read. I also think, though, that some of its primary claims are unconvincing. I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.
The Siegel & NeJaime article covers a lot of ground. Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . . Complicity claims focus on the conduct of others outside the faith community. Their accommodation therefore has potential to harm those whom the claimants view as sinning." (The quoted language is from the SSRN abstract.)
It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided. Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way. And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" would raise, I think, the concerns NeJaime and Siegel raise. The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor but this sweeping claim is hard to square with our practices and policies. (Marc DeGirolami has more on this point, here.)
Relatedly, it strikes me as misguided to insist that the law necessarily demeans or insults B by accommodating (to the extent it is reasonably possible) A's religiously-based desire not to be complicit in what A believes to be B's wrong. Even if A's moral judgment is, we think, itself wrong or unattractive, the government's accommodation of A's religiously based conclusion is not an endorsement of that conclusion, but only of the general desirability of accommodating, to the extent possible, religious commitments and exercise. What's more, if a law demeans when it allows an exemption for religious complicity-claimants, then why does it not demean when it mandates, without exemption, the cooperation to which the claimants object? That is, why shouldn't the law from which the exemption is, for complicity-avoiding reasons, being sought (say, a law requiring pharmacists to provide an abortion-causing drug) be regarded by the exemption-seeker as imposing on her a "dignitary harm", i.e., the harm of having one's moral commitments and reasoning not only rejected-on-balance, but also disapproved and found wanting?
I question the premise that inquiring into one's moral responsibility for -- or, one's complicity in -- another's act and, as part of that inquiry, evaluating the morality of that act, involves any "demeaning" of the other. Again, if it amounts to "demeaning" -- and, more specifically, if it amounts to causing a "dignitary harm" that triggers, as some have argued, Establishment Clause limits -- another person to conclude that that other person has engaged in an act that is wrong and so to decide to avoid complicity with that act then we'll have to reexamine a whole lot more than particular applications of RFRA-type laws.
In addition, I don't think it's entirely right to say that "complicity claims focus on the conduct of others outside the faith community." As I see it, when we talk about "complicity" (see, for example, the Model Penal Code's treatment) we are asking about the extent to which one person is morally responsible, or morally blameworthy, by virtue of her own conduct and state-of-mind, for the conduct of another. The accomplice's responsibility -- her state of mind and her assistance, encouragement, or facilitation -- is, I think, at least as much the "focus" of the inquiry as the action done or the harm caused by the other. (And, again, it seems to me that the character, worth, dignity, or identity of the other need not be part of the inquiry at all.) True, the reason we care about the accomplice's responsibility is usually because we have identified someone else's wrong -- or, more precisely, a harm caused or wrong done or wrong attempted by someone else -- but the focus remains, I think, is on the accomplice. (Sometimes, we even conclude that an actor is morally responsible for another's wrongful act or harm caused although the other is, for one reason or another, not blameworthy for that act or harm.
In any event, read Siegel and NeJaime, and also read DeGirolami. I remain, for what it's worth, concerned that the emerging focus on the "third-party harms" and "dignitary harms" said to be caused by legislative accommodations of religion threatens to excessively constrain our ability to vindicate the fundamental right to religious liberty in our context of increasing regulatory activity, dissensus, and diversity.
Sally Cohn's recent piece, "The New Post-Homophobic Christianity", attracted a lot of attention across the interwebs. Most of the concern focused on this line: "Will anti-gay Christians be politically and socially ostracized? I sure hope so." As some people pointed out, this sentiment seems in tension with some other things Cohn has written about the importance of civility and humility.
Another aspect of the piece jumped out at me, though:
As for everyone else, including florists and county clerks, yes, you will now have to provide the same services to straight couples that you provide to gay couples. Don’t like it? Find a new job. The law also requires that clerks issue birth certificates to the children of single mothers and that florists provide flowers for interracial weddings, regardless of the religious beliefs that have definitely been cited now and throughout history to condemn these families as well. Still, that doesn’t mean the law is trouncing on religion. It means the law is prioritizing equal treatment for all, as it should.
Obviously -- and notwithstanding the often-noted fact that "equality", by itself, is not usually doing the real work in any moral or political argument -- we are committed to "equal justice under law." (Whether "equal justice" always and in every context requires "equal treatment" is what we argue about.) Is it obvious, though, that "equal treatment for all" does or should, morally or constitutionally, enjoy "priority" over "religion" or, more specifically, "religious freedom"? It's a complicated question, for sure. After all, the content of "religious freedom" is itself determined at least in part by the demands of public order, the common good, others' rights, and other aspirations like "equal justice under law." But, the content of "equal justice under law" is also, in a similar way, determined "at least in part by the demands of public order, the common good, others' rights, and other aspirations like 'religious freedom.'"
What is (among other things) worrisome about the sentiments expressed by Cohn is that she seems to make "religious freedom" simply what's left over after we have finished comprehensively the work of securing "equal treatment for all." I don't think there's reason to expect, though, that very much would be left over.
I developed something like this idea in more detail in this short law-review article, which just came out in the Southern California Law Review.
Thursday, July 9, 2015
I will be speaking at the Christian Legal Society's national conference in New Orleans on October 2 and 3. (An especially fine time of year to visit NOLA, and a fascinating group of featured speakers, overall topics, etc.) First I'll join a panel on religious freedom issues, on the 2nd; then on the 3rd, I'll do a follow-up workshop on "Why Progressives Should Care About Religious Freedom." I hope these will give food for thought on very challenging issues (the whole conference is sub-themed "practicing law in turbulent times"). And then there will be great food for savoring, only blocks away. Y'all come down!
California "Right to Die" Bill Stalls Amid Opposition from Religious Groups. More here. Good. Unfortunately, and perhaps because the piece is in The Guardian, there's a lack of comprehension of, let alone sympathy for, these "religious groups'" opposition. For example:
Religious groups say allowing doctors to prescribe life-ending drugs is assisted suicide and goes against God’s will. Religious opposition helped defeat similar legislation in California in 2007.
It's hardly unique to, or even distinctive of, "religious groups" to characterize "allowing doctors to prescribe life-ending drugs" as "assisted suicide." Nor (more important) are the important arguments religious (and other) groups make against assisted suicide limited to the observation that the practice "goes against God's will." Although Glucksberg was given pretty short shrift by the Supreme Court recent, it nevertheless provides (according to this admittedly biased former Rehnquist clerk) a pretty good summary of a number of very good reasons -- in addition to "God's will" -- for being worried about assisted suicide. As did, if I recall, the amicus briefs of the many "religious groups" that were filed in the case.
I am just back from the Libertas Conference at Villanova Law School. It was an extremely edifying period of thought, reflection, and fellowship with a wonderful group of lawyers, political theorists, philosophers, historians, and journalists, including Steve Smith, Damon Linker, Christopher Tollefsen, Elizabeth and David Corey, Tuan Samahon, and Gerald Russello, among many others. Rick Garnett, Zak Calo, and I were fortunate enough to moderate the sessions over a period of three days.
The sessions really broke down into four general categories: (1) genealogical accounts of church and state in modernity (including readings by Brad Gregory and Mark Lilla, as well as by Steve Smith); (2) historical studies of the specifically English and American experience of church and state (including readings by Stuart Banner and Michael McConnell), (3) comments on the projects of cultural Christianity and secularism (John Courtney Murray, Robert Louis Wilken, and Pope Benedict XVI were on the agenda); and (4) diagnoses of and prognoses for religious freedom in the United States (here some of the readings were decidedly inferior as they included some of my recent work, but also much better stuff by Rick Garnett and Paul Horwitz).
The conference was organized by Michael Moreland with his usual grace, generosity, and aplomb. The participants' comments and insights will influence my own thinking and writing for a while, in ways I hope to note by and by. But here's one initial thought having to do with scholarly method. There are of course many different ways to make scholarly contributions in law: argument in the service of changing doctrine, synthesis of a body of law to arrive at a new insight, normative pleas for turns or returns to various positions having assertedly desirable political results, studies of empirical states of affairs, and so on. But my own view--helped along and shaped by the participants at the conference (as well as by posts like this one)--is that we are at the beginning of the flowering of an interesting period of long-view, retrospective, critical diagnostic scholarship in law and religion and constitutional law more broadly. Not everybody will be interested in this sort of approach, of course. Others in the field have different projects and different objectives. But at least for me, this is an invigorating thought.
