Michael Zuckert Responds to His Critics

The first two responses to my Liberty Forum essay illustrate well that political theory is (still) not an exact science. Francis Beckwith finds my “religious liberty taxonomy” to be “largely correct . . . as an account of the history of America’s church/state jurisprudence,” but he doubts that my classification is as adequate for understanding “the issues we have today.” Richard Samuelson, however, finds my essay to be a “great introduction to religious liberty as it is discussed in America today,” but he suggests it is not so good in dealing with “religious liberty in the colonial era and in the Founding era.” Go figure.

Despite their apparently conflicting judgments, there is a good deal of overlap among all three responses and I am pleased that my essay provoked three such knowledgeable and thoughtful replies. The commonalities are quite extensive in that Beckwith, Samuelson, and Hancock all agree that, however useful my schema might be for understanding the history of religious freedom, or various alternative theories of religious freedom, there is in fact, at least in our context, one true doctrine of religious freedom, and that is “freedom for.” They develop their arguments for “freedom for” in quite different ways, and so I will respond to each more or less separately, although I hasten to add, comments I make relative one are often relevant to the others.

Richard Samuelson raises a great range of issues and makes or implies some very strong claims. Perhaps the most striking feature of his statement is his apparent view that governmental provision of any goods beyond the protection of the rights listed in the Declaration of Independence is illegitimate, at least in part because “the decision as to what goods to provide, as more and more are provided, will inevitably touch on religious foundations.” His point seems to be that “touching” or resting on or contradicting such a “religious foundation” will render governmental provision of some good or right unconstitutional and illegitimate as either an “establishment of religion” or an infringement of “free exercise of religion.” Thus he concludes with the very sweeping claim, “Can the modern administrative state be reconciled with the first Amendment? The proposition is doubtful.”

Perhaps a better rendition of the question he asks is whether the positive state can be reconciled with the First Amendment. I suspect that the answer he gives and the tenor of his essay are shaped by a general hostility to the modern positive state based in part on the religion issue, but also on other considerations. So far as he rests his antipathy to the positive state on religious concerns, he is deploying an overly broad understanding of what free exercise might mean under any of the three conceptions of religious freedom that I sketched in my original statement.

As to his first point, it seems very clear that there are many goods and positive rights that government may supply that are neither religious establishments nor violations of free exercise. Government tests drugs for safety and effectiveness, for example, and allows certain drugs on the market, creating a positive right for the manufacturers of these drugs, while forbidding others from the market. Government also provides Social Security retirement, unemployment, and disability benefits to citizens. Are these policies per se violations of the First Amendment? Are they in any way unconstitutional? Perhaps they are under a more stringent reading of federalism than prevails today. But even in that case, Social Security policy would seem to be constitutional for the states to provide. In any event, our discussion is not about the positive state as such, but about religious freedom. I agree with Samuelson (and the other respondents) that issues of religious freedom arise more frequently and are often more highly charged than would be the case in times of smaller government: the more government does, the more likely it is to cross some religion-based claims. Therein certainly lies one reason why these issues now arise so often. That said, the positive state does not, in itself and in all its manifestations, inevitably violate rights of religious freedom under any of the three concepts of religious freedom that I laid out.

Let me clarify by taking up several of the examples Samuelson raises. Let me also clarify the aim of my essay: to formulate these three conceptions as distinct from one another, and as lying behind many of the conflicts we have over religious freedom today. It was not to defend one or another of them as the one true conception of religious freedom. I was trying to offer something like a map, to give the lay of the land.

Samuelson considers a case that I raised, the 2014 case of Hobby Lobby v. Burwell, to be an illustration of what he considers the correct way to understand religious freedom. I had suggested that some employees working at the Hobby Lobby stores could argue that an exemption from the mandate of the U.S. Department of Health and Human Services would violate their rights and raise constitutional questions because the exemption would in effect amount to an imposition of their employer’s religious views on them. Samuelson replies that this position tacitly accepts “the proposition that the funding of abortion services is a ‘right’.” Such a right, he points out, is not like the rights in the Declaration and is one that would not have been accepted by most Americans until recently. True on both counts. But I think his statement of the issue is misleading or perhaps just inaccurate.

Those who claim a rights violation are claiming not a right to have abortions funded, but a right to benefit from all rights established under valid laws. They are certainly not claiming a general right to employer-funded abortions, for at most, the Affordable Care Act requires that employers pay for birth control, some forms of which are alleged to be abortifacients. The law does not require employers to underwrite, say, surgical abortions.

To restate the issue without the controversial abortion question as part of it, let us posit an Association for the Promotion of Blonde Hair (APBH) that decided, on the basis of its members’ belief that blonde hair is specially favored by the Teutonic gods they worship, not to contribute their share to the Social Security benefits of the association’s non-blonde employees on the ground that to so contribute would violate their religious duty to promote blondeness. The employees who protested the APBH’s action would be acting on the claim of a right to a general good mandated for all under the law. The particular character of the good is less to the point than is the fact that the law provides it for all. Of the three doctrines of religious freedom, the freedom-of-religion doctrine would side with these employees.

That would be so for the advocates of “freedom of religion” even in the Founding era, contrary to Samuelson’s assertion on the matter. George Washington, for example, did not consider it a right that Quakers be exempted for military service but a generous accommodation to them. (My authority for this claim is my colleague Phillip Muñoz, and his splendid 2009 book, God and the Founders.) One needs to keep straight the Constitution or the principles of political morality permitting religious accommodations as distinct from mandating them.

Advocates of “freedom for religion” will be more open to the claims of the owners of Hobby Lobby and the APBH. Nonetheless, I find that Samuelson’s treatment of their claims suffers from two difficulties. First, he begs the question my essay meant to put on the table. He takes the “freedom for” position for granted as the correct approach, when it was my point to argue that that was but one of three possible approaches, and he does so without presenting any reasoning on which to base his preference. Second, he supplies an interpretation of religious freedom that even under the most expansive reading of the “freedom for” doctrine is not viable. He holds that religious freedom means “that government [is to] leave us free to go about our lives in accord with our consciences, in a largely autonomous realm of civil society.”

Civil society, the sphere where citizens and associations interact and pursue their goals, is rife with occasions for potential rights violations. To take the most extreme cases: it cannot be that government may not interfere with any religiously motivated individual action in the sphere of civil society, for then human sacrifice, or the killing of heretics or apostates, would be permissible. There are and must be limitations on acts of conscience. Indeed in a pluralistic society like ours, where there is no consensus on what the true religion is, and thus on what the true claims of conscience are, the general rule must be that otherwise valid law governs the behavior of all citizens.

“Freedom for,” however, would carve out exceptions for some conscience-inspired action. But the judgment of when such exceptions are to be made cannot be left to the individuals who are seeking an exception. So “freedom for,” in the contemporary context, leads to a doctrine of accommodation under which a legislative or regulatory body grants exceptions in the law, or where an in-principle neutral body (for example, a court), grants exceptions using standards such have been applied under the federal Religious Freedom Restoration Act and state laws modeled on it. Of course we can take Samuelson to be pleading, in effect, that legislatures and regulators show concern and restraint in promulgating rules that actually or potentially impinge on individual conscience.

Let me emphasize a point that I believe three-part typology points toward. Samuelson sees much of the legislation passed in the era of the modern positive state as inspired by antireligious animus. So it may appear, from the perspective of “freedom for.” But looking at the situation as it appears to partisans of “freedom of,” it may be much more a matter of adopting legislation believed to be in the common good, with that good not being defined as deliberately or inevitably stepping on the claims of conscience and religion. Given conscientious disagreements in our society, there is bound to be conflict over such laws, but the answer to this conflict cannot be giving an automatic veto or ability to opt out to any and all conscientious objection.

Ralph Hancock’s probing response is at once more personal and more theoretical than Samuelson’s. It is more personal in that it attempts to identify an implicit argument beneath my typology for one of the three doctrines of religious freedom. It is more theoretical in that it presents an analysis aiming to show that, of the three modes, only “freedom for religion” is based on viable premises (as per his title)—or that, of the three, the only two serious contenders are “freedom for” and “freedom from” (as per his last paragraph).

My essay quite intentionally aimed not to identify any of the three as the best or the one true version of religious freedom. Yet Hancock says without any hesitation that “there is no question but that ‘freedom of religion’ is the hero of Zuckert’s analysis.” He later modifies this claim to propose that my real or deeper loyalty is to “freedom from,” because, as he puts it, my exposition of the freedom-of-religion position “accepts the premises of ‘freedom from religion’ and rejects those of ‘freedom for religion.’ ” To repeat, this was not my intention nor, I think, my unwitting achievement. Contrary to the views Hancock attributes to me, if I had sought to defend one of the three as best, I would lean toward the “freedom for” doctrine as the three respondents do. But my commitment to it would be more tentative and I would not agree that it is the only viable doctrine today.

But the main goal of my essay lay elsewhere, so let me leave my personal views aside other than to consider what led Hancock to discern an allegiance to “freedom from” on my part. I do this largely because it gives me an opportunity to clarify parts of my argument that may be susceptible to misunderstanding.

In the first part of his response, Hancock rightly sees me as opening some distance between the “freedom for” position as expressed in the famous sermon by Jonathon Winthrop versus the version we have today. He then reads a comment I made more or less in passing as implying that more modest, more pluralist (more recent) versions of “freedom for religion” are “still tainted by . . . Winthrop’s cruel dogmatism.” I did not imply nor did I mean to imply anything so sweeping as that. I was merely making an observation that current freedom-for-religion advocates, in their commitment to accommodating some claims of conscientious objection, do not often specify clearly what the boundaries of the claims they mean to accommodate might be. As I said above in reply to Richard Samuelson, surely nobody is holding that each and every claim that might be raised on behalf of conscience can or should be accommodated by the state. I do believe that the “freedom for” position needs some serious thinking on this topic of the limits of conscience. This is not to say, nor did I mean to say, that clearer standards for accommodating conscientious claims would be impossible to articulate.

Hancock also, paradoxically, finds my arguments exhibit a subtle tilt toward “freedom from,” signaling my covert commitment to it. I had said, “overt action against religion is no part of religious freedom in America,” which could be contrasted with the “freedom from” position as we see it elsewhere, most notably in the former communist countries or even in France. The French doctrine of laicité, for example, authorizes bans on religious garb in certain public spaces, for example—think birquinis on beaches. These overt actions meant to suppress certain forms of religious expression and action would be outside of the American core of religious freedom. By emphasizing “overt action” in my essay, I meant to leave room for situations, valid under the freedom-for-religion doctrine and the freedom-of-religion doctrine, where a law, serving a valid secular purpose, may interfere with an action claiming protection on grounds of conscience. Perhaps “overt” was not the best way to make my point, but my point was, again, more limited than Hancock takes it to be and is not a tilt toward “freedom from.”

Apparently more important than the above is a sentence Hancock takes as my “key premise”: “More purely than the ‘freedom of’ position, adherents of ‘freedom from’ posit the ground and purposes of the state in completely nonreligious terms.” The important part of that statement, according to Hancock, is the assertion that the “purpose of the state can be conceived in completely nonreligious terms.” I agree that the state’s purposes can be stated in nonreligious terms, but not with the inference Hancock draws from that. That the “freedom from” advocates understand “more purely” than the “freedom of” advocates does not mean that the former’s position is a more “lucid form of” the “freedom of” doctrine. That the state’s purposes can be conceived in completely nonreligious terms does not in itself imply that the state must denude itself of all elements of religion, much less that it must oppose religion. This was my point in emphasizing the concerns about coercion that are articulated in the “freedom of” position. I refer the reader to what I said about Locke and the right of the magistrate to religious expression and even advocacy. Hancock is taking some of my efforts to distinguish the three versions from each other in the voice of advocates of those positions to be expressions of my own positions. I plead not guilty.

Although he spends much of his time looking for a smoking gun aimed at “freedom for religion,” Hancock’s most serious point, I believe, is his assertion that I—as an alleged supporter of “freedom of ”—“succumb to the illusion of a pure theory of the ‘secular’ that would be neutral regarding conflicting understandings of the meaning or purpose of human existence.” Accordingly, the least viable position is “freedom of”: “we must choose between ‘freedom for’ and ‘freedom from.’ ” Thus he ends by reversing his opening invocation that we learn from the Founders and, behind them, from Locke. Hancock is willing to jettison “freedom of,” with its doctrine of spheres, for there is no such thing as a separate secular sphere. But was it not said, “Render unto Caesar, the things which are Caesar’s and unto God the things which are God’s”? Does this not mean that there are things that are Caesar’s?

Francis Beckwith comes to much the same conclusion as does Hancock, although Beckwith’s response is less cosmic in its claims. Rather than concluding that there is no such thing as a neutral secular sphere at all, he argues that, in our post-Lockean world, with its positive state, there is a great deal more involvement of the state in matters that would as a matter of course have been left to individual conscience in Locke’s day. Unlike Samuelson, he does not consider the positive state in itself to be illegitimate but he does argue that state action in our day makes Locke’s “freedom of” position much less viable.

Actually, as I read his essay, one could characterize it as ambivalent in a fruitful way in its central claim. One could say that he does not actually mean to jettison “freedom of,” but rather to say that, under contemporary conditions this doctrine, applied according to Locke’s own principles, leads naturally to “freedom for.” In so arguing, he picks up on a theme that characterizes all three responses: the modern state is not John Locke’s state, nor James Madison’s state. Nor is it Locke’s or Madison’s society. As Beckwith suggests toward the end of his essay, back in the day, there was much more of a common culture, despite the religious controversies (to put it mildly) that impelled Locke to develop his doctrine of “freedom of” and that sparked Madison to work to implant religious freedom in the laws of Virginia and in the Constitution of the United States.

As Beckwith says, “In the past it was not too difficult to distinguish, as Locke would put it, civil interests from the care of souls,” where the civil authorities take care of civil interests and are debarred from taking care of souls. The upshot of the changes in state and society is that there are now too many cases where the care of civil interests overlaps with, is intertwined with, the care of souls as understood by at least some believers, for the line between the two spheres to be any longer easily or non-contentiously drawn.

It is hard to disagree with Beckwith’s observations about changes in state and society since the 18th century, but I cannot agree that the implications of these changes are just what he sees them to be, or that Locke’s “freedom of” has no resources with which to respond to the changes. Before I set off to show this, let me reiterate that I am not arguing that “freedom of” is the winning doctrine. Rather, I wish merely to show its continuing vitality.

Beckwith invites us to reconsider the Hobby Lobby case. He makes three points: 1) The contraception mandate was not a law but an administrative regulation. 2) The contraception mandate was crafted as an intentional effort to coerce religious conscience. 3) The case illustrates very well the intertwined character of civil interests and soul-interests such that Locke’s general anti-dispensation position cannot work well in enforcing or maintaining the very standard he invokes. The first point is an interesting one, but for purposes of dealing with the matters of principle that we have here, not dispositive.

The second point requires more attention. He observes that many exemptions were in fact carved out of the mandate (to quell public opposition), showing that it was a known feature of the mandate that it raised issues of conscience for many citizens. In promulgating the regulation to apply to all those not exempted, the state thus indicated foreknowledge and intention to coerce conscience.

There are two ways to take Beckwith’s observations. One is that “freedom of religion” would ipso facto find the mandate illegitimate. We could conclude, as Beckwith apparently does, that the Department of Health and Human Services’ mandate meant to coerce conscience and that the mandate’s ostensibly secular purpose was essentially a pretense. This would put the mandate in the category of the municipal law invalidated by the Supreme Court in its 1993 decision in Church of the Lukumi Babalu Aye vs. Hialeah. There, a law meant to suppress a religious rite was disguised as a health regulation.

The HHS mandate could, however, be given a second and different reading under “freedom of,” a more compelling reading. It was determined in Hobby Lobby that, under accepted standards, contraception coverage was the sort of preventive healthcare coverage the Affordable Care Act was meant to provide. That determination applied to every employer, not only to those who conscientiously objected to providing employees such coverage, so that, unlike the Lukumi case, the mandate does not appear to be disguised coercion. Again, assuming that the Affordable Care Act is morally and constitutionally legitimate apart from the issue in contention, then mandating this coverage is legitimate under “freedom of” even when some object to it on religious grounds. The key issue is whether there is a secular purpose that is a valid secular purpose, not a mere pretense. If so, then as I said before, the law overrides the claims of conscience. Civil disobedience, as Beckwith indicates, remains an option for objectors. Locke was very aware that laws serving civil interests might on occasion cross the conscientious convictions of some, but he nonetheless concluded that they are valid and require obedience.

The above contains the general response to Beckwith’s third point as well. Unlike Hancock, he does not go so far as to claim that there are no valid secular purposes independent of given religious systems, and I suspect he would agree in general that tending to the health needs of the population would count as a legitimate civil interest. But Locke, aware of the possible intertwining of the civil and the religious sphere (even if he did not anticipate that entanglements would be as frequent as they are in the modern state), argued as he did because he saw the accommodation or “dispensation” position (“freedom for”) to be fraught with problems.

For one, it went against his commitment to the idea of rule of law as a system that applied equally to all, an arrangement he thought essential to the making of good laws. Second, he considered a system of individual opt-outs to be a recipe for civil chaos. It seems to me that the facts about the modern state and modern society that Beckwith calls attention to go to strengthen Locke’s position as much as they challenge it. With more law and much greater religious pluralism in the United States in our day than in England in his, the greater the tendency to generate the kind of patchwork legal system that Locke sought to avoid if a robust system of exemptions is allowed. Arguably, exemptions are more to be resisted now.

What emerges from this analysis is that “freedom of religion” is not disqualified or rendered impossible by the conditions of the modern, pluralist state. This is not to say that my rebuttal of Beckwith’s claim amounts to an establishment of the opposite claim—that “freedom of” is the one true religious freedom.

Let me close by again thanking my respondents for their attentive and careful consideration of my argument, and for the opportunity to put it to the test. They and Law and Liberty’s readership will have to judge if it has passed or not.