Holding up Hayek for abuse allows both right and left postliberals to substitute ideological argument for data and analysis of specific policies.
Is There a Rawlsian Solution to Conflicts over Religious Liberty?
The title of the new book by Nelson Tebbe, professor of law at Brooklyn Law School and visiting professor of law at Cornell Law School, is a giveaway. The book surveys the challenges that religious freedom, a stubborn relic of another “age,” poses for an “egalitarian” one.
Tebbe offers a method of moral reasoning to mediate the “conflict” between religious liberty and equality norms. He then uses this reasoning to reconceive religious liberty jurisprudence so that it can perform the role of political mediation. At every turn, the analysis suggests that Tebbe does not value religious liberty for its own sake, but rather sees it as a social fact that Progressives must learn to navigate. Readers who agree will likely be impressed with Religious Freedom in an Egalitarian Age, a comprehensive and well-written book that takes an innovative approach to many difficult political and legal questions. Others will likely find that it illustrates the argument its author aims to rebut: that scholars searching for particular outcomes in this field tend to find exactly what they are looking for.
Religious liberty has become a front in the culture wars. In Burwell v. Hobby Lobby (2014), the Supreme Court held that the Religious Freedom Restoration Act protects corporations from being compelled to buy contraceptive insurance for their employees when the owners believe that purchasing the insurance would be morally wrong. This term, the Court will decide whether a bakery has a right to decline to bake a wedding cake for a same-sex couple. These cases make it appear that religious liberty and Progressive norms are locked in a zero-sum game.
Scholars of a variety of political stripes have argued that the law of religious liberty requires courts to import their own value judgments. Legal reasoning, they argue, is a façade for ideological priors. This is in part because the Religion Clauses of the First Amendment suggest a paradox: The Establishment Clause prohibits the government from sponsoring religion, but the Free Exercise Clause sponsors religious exercise. The clauses themselves therefore raise questions about the relationship between religion and society. Is religion good, ambivalent, or a threat? In addition, many doctrines of religious liberty law are cast as standards rather than rules. These standards invite courts to implement their own views of what amounts to a “substantial burden on religious exercise” and what counts as a “compelling governmental interest.”
America has a long tradition of paying lip service to religious liberty while oppressing religious dissenters whose political ideologies challenge the consensus. Think of the Mormons and Catholics in the 19th century (and later), and the Jehovah’s Witnesses in the first half of the 20th century. Many of today’s scholars and judges have proven, like so many before, to be faint-hearted religious liberty devotees.
In the face of recent Progressive federal and state regulations, religious conservatives have invoked laws that accommodate religious dissenters. Accommodation advocates, for their part, can be just as tone-deaf to other values, such as fairness and equality, as their opponents are to religious liberty.
In this context, Tebbe proposes to mediate the conflict between religious liberty and egalitarianism. He begins by sketching a theory of constitutional reasoning that he calls “social coherence.” As John Rawls noted, when someone faces a moral question, she often begins by identifying an earlier case that is analogous to the one she now faces. From the earlier case, she infers general principles to guide her deliberation. She applies these principles to the case before her. She thus arrives at a judgment in the present that coheres with her previous moral commitments.
This process of moral reasoning, says Tebbe, gives people “reason to think that their judgments are justified or warranted. It can even support a stronger conviction that their conclusions are demanded or determined by reasons.” And “social coherence,” he adds, bears a strong resemblance to common-law reasoning, “with its analogies to existing cases and its application of legal principles to new situations.”
Tebbe’s opponents are scholars he describes as religious liberty “skeptics.” They “contend that justified outcomes [in religious liberty cases] are necessarily unavailable.” A person may give reasons for a particular outcome, but the outcome is not thereby justified by those reasons; rather, the judge “announce[s] [the conclusion] in the style of an ipse dixit.” By contrast, social coherence describes “the method that the most persuasive thinkers are already using to drive conclusions to difficult new problems of religious freedom, as well as to reexamine inherited paradigms.”
The core thesis is modest: Social coherence “provides a defensible way of thinking about how people can and should give reasons for their decisions on questions of religious freedom, and that those reasons can and often do bolster the choices themselves, rather than just providing ex post rationalizations for personal preferences.”
How could this thesis be tested? How could one know whether the reasons one offers for a choice—reasons drawn from the common fare of legal and political argument—actually bolstered the choice, or whether they merely rationalized it?
Is it simply a matter of timing? In other words, is a reason offered after a choice an ex post rationalization whereas one offered before a choice “bolsters” it? Tebbe’s argument, like those he attacks, is non-falsifiable. His argument follows the approved grammar of the philosophical guild, but what he is attempting to describe is in fact an opaque dance of the will, intellect, and conscience.
Receiving and giving reasons for moral judgment calls for openness, hard work, smarts, and, above all, good faith. It entails living within a moral community, or overlapping moral communities, that give life to moral habits and render moral reasoning coherent. Tebbe rightly resists reducing moral reasoning to nothing more than an act of individual will. Unfortunately, as discussed more fully below, the way he applies social coherence to mediate the conflict between religious liberty and equality seems to verify, rather than to challenge, the skeptics’ view that religious liberty jurisprudence is inevitably personal value preferences all the way down.
The book is best understood as an application of one version of Rawlsianism to an array of legal questions arising from a clash between Progressivism and the view that Progressive norms should not always override religious liberty. The reader will encounter a helpful tour through a variety of challenging legal cases and a number of novel proposals for solving vexing doctrinal puzzles.
For instance, I found Tebbe’s account of the principle of “freedom of association” to be creative and engaging. He proposes a distinction among “intimate associations” (like marriage), “community groups” (like a local club or religious congregation), and larger “values organizations” (like the Boy Scouts or an international corporation). He suggests that each association ought to have a measure of freedom to discriminate based on the purpose the association fulfills in society. A values organization, for instance, enjoys freedom of association because it plays a role in the democratic process by shaping public opinion. Therefore, a values organization ought to be able to discriminate only among the leaders who shape its commitments. There is much here to chew on for any reader interested in liberal political theory, religious liberty, and civil rights.
The book’s weakness, however, is its unstated bias for one side of the conflict it purports to mediate. Tebbe acknowledges that his analysis proceeds from a certain viewpoint. At the same time, he promises to supply “mediating” principles that will “serve both free exercise and antidiscrimination norms,” with “none” of them “favor[ing] one over the other.” He does not deliver. Every step of his development and application of these principles is bent toward norms of equality that he does little to justify, develop, or motivate.
Begin with his account of religious liberty. Tebbe presumes that religious freedom “is a foundational value.” Unlike with equality and nondiscrimination norms, he never states the purpose of religious liberty, offers a reason to protect it, or attempts to define it. Perhaps the author accepts religious liberty as an American value because history, law, politics, and culture make it impossible to ignore. But he gives little reason for the reader to conclude that religious liberty is good. Rather, his analysis suggests that there is nothing special about religion at all.
To illustrate, consider Tebbe’s principle of “fairness to others.” It is unfair, he claims, to accommodate religious conduct without also accommodating “comparably profound and worthwhile” nonreligious conduct. He thus states a rule, based on a handful of Supreme Court opinions, that “prevents government from granting special privileges on the basis of religion, even where those accommodations are enacted to preserve religious freedom, itself a core commitment.”
How this is supposed to mediate between religious liberty and equality interests is unclear. Perhaps Tebbe would expand religious liberty for those who object to war on grounds of non-religious ethical commitments. But few non-religious objectors seek an accommodation from equality-enforcing laws. Tebbe gives short shrift to the many Supreme Court cases that uphold and enforce laws that provide unique protection for religious exercise.
Another way he applies his supposition that religion is not special is in discussing the mediating principle of “freedom of association.” According to Tebbe, large religious organizations (such as large religious nonprofits or denominations) should have no right to discriminate among employees or members merely because they are religious; rather they should be subject to the same antidiscrimination laws that apply more broadly to non-religious “values organizations.” Here the practical implication of the author’s unstated view that religion is not unique becomes clear: It is a one-way ratchet, reducing religious liberty to the level that a non-religious claimant could plausibly maintain.
Tebbe’s other mediating principles are no more neutral. Indeed, “avoiding harm to others” seems to be little more than a bald assertion of equality’s priority. The “harm to others” that he has in mind is the harm imposed on a third party when the law requires an accommodation for a religious objector. For instance, he believes the Hobby Lobby decision violates this principle. In that case, the Obama administration enacted a regulation to implement the Affordable Care Act that required many—but not nearly all—employers to pay for their employees’ contraceptive insurance. The administration decided which sorts of employers to exempt from the requirement. It chose not to exempt closely held, for-profit corporations with religious objections. The Supreme Court held that the Religious Freedom Restoration Act required the government to accommodate them. After the decision, “it took the Obama administration roughly a year to implement a fix that covered them.”
For Tebbe, this is principally a story of “serious, irreparable harm [that] was shifted to Hobby Lobby’s employees because of the religion accommodation imposed by the Court.” Nevertheless, he argues (somewhat paradoxically) that scholars and jurists should read the decision “to reaffirm the rule against harm to third parties.” The Court, he says, should have made “relief to Hobby Lobby contingent on the company’s employees retaining contraception coverage.” (Emphasis in the original.)
It is not a convincing narrative. The Obama administration had the means to provide contraceptive insurance for employees from the start; indeed, it did so for the employees of other organizations. It simply chose not to do so for the employees of the Hobby Lobby stores and other closely held, for-profit corporations with religious objections. To the extent that Hobby Lobby implicated the rights of third parties to social welfare benefits, it may reasonably be read to stand for the proposition that the government may not force a religious objector to provide them. This reading, however, requires believing that religious liberty is as valuable as the equality-enforcing welfare benefits at stake. It should be unsurprising that Tebbe reads the case differently. Despite his presumption that religious liberty is a “fundamental value,” his analysis throughout the book suggests that he sees religious liberty as little more than an obstacle to his view of social and political progress.
In sum, Religious Freedom in an Egalitarian Age is an interesting, carefully wrought, thorough analysis of religious liberty from a viewpoint that privileges Progressive egalitarianism. It is a significant contribution to the scholarship that applies Rawlsian political theory to specific legal questions about religious liberty. As a brief against the “skeptics,” however, the book is less successful. It seems rather to illustrate their view that reasoning about religious liberty boils down to ideological priors.