[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
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.
Sunday, July 5, 2015
Here is a new, short book from West (edited by Brad Wilson) that includes my chapter on Rehnquist's religious-freedom and church-state work:
It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.
Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.
A great summer gift for the lawyers and law students in your life!
Prof. Paul Caron has helpfully collected links to a lot of recent stories and comments around the web on the question whether, after Obergefell, religious institutions (in particular, colleges and universities) should expect challenges to their tax-exempt status. One of the pieces, from Inside Higher Ed., has this quote from Prof. Michael McConnell:
"Private institutions that dissent from today's reformulation of marriage must be prepared for aggressive legal attacks on all fronts," said Michael W. McConnell, the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford University Law School.
I'd only add that such institutions should not be distracted by "lullaby talk" from scholars or commentators who insist that challenges to such institutions' tax status, accreditation, and funding eligibility are, for political reasons, extremely unlikely.
Thursday, July 2, 2015
Here is James Mumford, in The Hedgehog Review, on the yet-again-picking-up-steam movement for euthanasia in the U.S. and U.K. The conclusion:
In a world that has seen amazing progress in so many areas of social life, euthanasia would be a huge step backwards. Why? Because in an increasingly ageist culture, many older people perceive themselves to be a burden. They might not say so. They definitely haven’t been sat down and told so. But their sense of superannuation is a societal norm that has been, in the way Michel Foucault demonstrated over and over again, thoroughly internalized. Is it not more than imaginable that this sense of being a burden will lead, in many sad and tragic cases, to euthanasia?
At City Journal, Adam Freeman helpfully identifies a number of the issues that are, or will soon be, arising regarding religious institutions, public funds and grants, and antidiscrimination laws.
So says Frank Bruni, in the NYT. It turns out, apparently, that when we're talking about Hobby Lobby (etc.), corporations "don't have a soul," don't stand for things, don't exercise religion, don't have expressive interests, etc. But, when it's Eli Lilly bashing Indiana for its Religious Freedom Restoration Act (on the basis of misrepresentations and misunderstandings of that Act), then . . . we see the "sunny side of greed."
