Footnote 4 of Carolene Products and the "counter-majoritarian difficulty."
The central point of Michael Zuckert’s Liberty Forum essay is that contemporary disputes about religious liberty should not come as a surprise, since they are the result of three contrary, though sometimes overlapping, understandings of religious liberty that have been found in the body politic in differing degrees since the American Founding. He classifies these positions as “freedom-of-religion,” “freedom-for-religion,” and “freedom-from religion.” For this reason, Zuckert argues, there is no “original understanding” of religious liberty to which one can appeal to resolve these current conflicts.
Zuckert, it seems to me, is largely correct in his religious liberty taxonomy as an account of the history of America’s church/state jurisprudence. However, I have my doubts as to whether the issues we face today—over contested policies in healthcare, prenatal life, and marriage that some citizens claim violate their religious conscience—are best accounted for by Zuckert’s classifications. What I am going to suggest is that these issues concern more fundamental disagreements that the differing historic positions on religious liberty were never intended to, and cannot possibly, adjudicate.
Consider first the U.S. Supreme Court case that Zuckert addresses: Hobby Lobby v. Burwell (2014). Under powers given to her by the Affordable Care Act, a.k.a. Obamacare, the Secretary of Health and Human Services (HHS) issued a mandate requiring all employers, with some important exceptions, to provide in their employee healthcare plans a full panoply of birth-control devices and pharmaceuticals.
According to the plaintiffs in the case, the Green family (which owns Hobby Lobby) and the Hahn family (the owners of Conestoga Wood Specialties), four of the birth-control methods may result in the destruction of a human embryo if they fail to prevent fertilization. The Greens and the Hahns believe that human embryos, like human infants and human adults, are full-fledged members of the human community, and thus possess by nature a right to life. This belief, they argued, is affirmed in their theological traditions, though they also maintained that it may be a deliverance of unaided reason as well. Thus, for the federal government to compel their respective companies to offer as a benefit and directly pay for these birth-control methods, or face stiff financial penalties, involves them in material cooperation with what they are convinced is evil.
The plaintiffs convinced five members of the Court that under the Religious Freedom Restoration Act, the HHS mandate violated their religious liberty, since the government could have made these birth-control methods easily available to the employees without requiring material cooperation on the part of the Greens and the Hahns.
Zuckert argues that the Court’s ruling was in line with freedom-for-religion but not freedom-of-religion, writing that “the pure freedom-of-religion position would dismiss the claims of the company’s owners, assuming we accept Obamacare has in fact having a valid secular purpose.”
A couple of observations.
The first is that technically, the HHS mandate is not part of the Obamacare law. It is an edict issued by the HHS secretary resulting from the exercise of a power given to her by that law. The mandate specifies numerous exemptions intended to accommodate certain religious organizations such as churches, synagogues, and mosques while at the same time intentionally not accommodating closely-held, family-owned businesses (like Hobby Lobby) and many charitable organizations (like the Little Sisters of the Poor).
Second, it is clear that the administration, knowing the HHS mandate would not have become law if it had been in the Affordable Care Act because of its potential conflicts with religious conscience, went the administrative agency route, and carefully crafted its regulation so that it included just enough religious exemptions to lessen public dissent.
So, the HHS mandate is very much unlike the religious liberty conflicts that arise from generally applicable laws that were passed by duly elected legislative bodies that had no intention of coercing religious citizens (the 1943 case of West Virginia v. Barnette, for example, or the 1990 case of Employment Division v. Smith). As the actions of the Health and Human Services Department since the passage of Obamacare reveal, coercion of religious conscience is a feature of the HHS mandate and not an unintended consequence. Thus, it does not seem like a stretch at all to interpret the government’s position in the Hobby Lobby case as closer to freedom-from-religion than freedom-of-religion.
Third, Zuckert correctly notes that the classic formulation of the freedom-of-religion position is found in John Locke’s A Letter Concerning Toleration. In that work Locke argues that “the commonwealth” has no authority to coerce its citizens on matters of religion: “[T]he Care of Souls is not committed to the Civil Magistrate any more than to other Men.” The commonwealth does, however, exist “for the procuring, preserving, and advancing of [the people’s] Civil Interests,” which Locke identifies as “Life, Liberty, Health, and Indolency of the Body; and the Possession of outward things, such as Money, Lands, Houses, Furniture, and the like.”
Locke’s church/state demarcation, however persuasive it may have been to 17th century Englishmen and 18th century Americans, seems particularly inapt in helping us resolve Hobby Lobby-type cases. After all, if, as Locke claims, the state’s jurisdiction covers only bodies and properties but not souls, what happens in cases, such as Hobby Lobby, in which the adversarial parties are contesting each other’s understanding of bodies, properties, and souls, which Locke believed in his day were uncontroversial givens?
For the Greens and the Hahns, as for most serious religious believers, how and why they exercise their wills, move their bodies, and use their properties determines the sorts of virtues or vices that are formed in their souls. For this reason, certain theological traditions have over the centuries developed and clarified moral principles by which a believer may judge whether he or she has inappropriately cooperated with an evil act performed by another person.
For example, it would be morally wrong and would corrupt my soul for me to transport a friend to a legal brothel in Nevada so that he could procure its services, even though the activity, from the perspective of the commonwealth, seems only to require what Locke calls “civil interests,” in other words means of transport, money, property, bodies. Suppose Nevada passed a statute that said that no cab driver in the state may refuse service to any person who wants to be transported to a brothel. Given Locke’s church/state demarcation, it’s not exactly clear how one should assess this law. Although it does seem to only involve “civil interests,” or as Locke would put it, “the just Possession of these things belonging to this Life,” that’s not the way the devout cabdriver would see it. Because, as Locke would say, “it appears not that God has ever given any such Authority to one Man over another, as to compell anyone to his Religion,” the cabdriver would view the statute as the commonwealth giving authority to his customer to compel him to morally cooperate with an activity that his religion not only strictly forbids but claims may deprive his soul of sanctifying grace.
One sort of “Lockean” response to this analysis is the one given by Justice Ruth Bader Ginsburg in her Hobby Lobby dissent: “No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs.” (emphasis added). If Justice Ginsburg is right, it turns out that the commonwealth not only has authority over civil interests, but it also has authority to determine what constitutes a sin. Under this account, one’s action is only a sin if it is purely self-regarding. Thus, the state may justly compel one to assist others in what one believes are illicit actions, and the civil magistrate may declare ex cathedra that one’s refusal to assist is an unlawful imposition of one’s beliefs on others.
We have here Justice Ginsburg, a civil magistrate, suggesting that the commonwealth has the power to grant absolution to anyone who believes that formal or direct material cooperation with sin is itself a sin. Yet this seems patently inconsistent with what Locke claims is outside the commonwealth’s jurisdiction: “The care of Souls cannot belong to the Civil Magistrate, because his Power consists only in outward force: But true and saving Religion consists in the inward perswasion of the Mind; without which nothing can be acceptable to God.”
Locke himself thought that conflicts between the public good and individual conscience “will seldom happen.” However, when they do, the citizen “is to abstain from the Action that he judges unlawful . . . [and] undergo the Punishment, which it is not unlawful for him to bear.” For Locke, a citizen’s private judgment on the wisdom of a particular law enacted for the public good does not relieve the citizen of his obligation to obey the law or to willingly accept his punishment if he chooses to disobey. The citizen does not “deserve a Dispensation.” However, if the law “concern[s] things that lie not within the Verge of the Magistrate’s Authority . . . [,] men are not . . . obligated by that Law, against their consciences.” One would not, for example, be obligated to obey a law that compelled one “to embrace a strange Religion, and join the Worship Ceremonies of another Church.”
In light of this, let us now consider the recent antidiscrimination cases involving same-sex weddings. The most well-known cases concerned closely-held businesses—a baker in Colorado, a florist in Washington, and a photographer in New Mexico—that were not merely selling commodities, but offered to their prospective clients customized, expressive goods and services that required their presence at and cooperation with the performance of the ceremony or its celebration. In each case, the same-sex couples successfully convinced the court that they were denied service because the businesses had violated the jurisdiction’s prohibition of discrimination based on sexual orientation.
Unlike the Hobby Lobby case, these cases involve the commonwealth’s legal recognition of a relationship—a marriage—that is central to the liturgical life of most religious traditions. For example, within Christianity, the relationship between Christ and his Church is likened to that of a groom and his bride. (Matthew 9:15, Mark 2:19, Luke 5:34, John 3:29, 2 Corinthians 11:2, Ephesians 5:25, Ephesians 5:31–32, Revelations 19:7, Revelations 21:2, Revelations 21:9, Revelations 22:17). Catholicism and Orthodoxy consider marriage, along with baptism, holy orders, and last rites, to be one of seven sacraments, the primary means by which God imparts his grace to his people. Similar sacred understandings of marriage are found in other faiths as well.
Consequently, weddings, for most serious religious believers, are like bar mitzvahs, baptisms, and burials, and not like birthdays, baby showers, or bachelor parties. However, unlike other sacramental or liturgical practices, a marriage can be entered into outside the confines of the faith. For this reason, most religious traditions have developed elaborate and sophisticated criteria to determine whether civilly married converts to the faith were ever really married. In the Catholic tradition, for example, a non-sacramental marriage is a real marriage if it is a natural marriage: a voluntary, permanent, and exclusive union between one man and one woman not in violation of the rules of consanguinity. This is why the Church teaches in its Catechism (1603) that “the vocation to marriage is written in the very nature of man and woman as they came from the hand of the Creator.” Thus, for the Church, a natural marriage is presumptively valid.
But the contemporary commonwealth’s understanding of marriage, unlike the one embraced by the government in Locke’s day, does not think of natural marriage as the standard by which the state ought to assess the validity of its marriage laws. In fact, modern governments in the West have largely rejected this criterion and consider the use of it as a violation of human dignity.
Thus when the state rejects natural marriage as normative and requires a religious business owner to honor that understanding with his craftsmanship and service, it is not only suggesting that his theological beliefs on marriage are mistaken, what it demands is tantamount to compelling him “to embrace a strange Religion, and join the Worship Ceremonies of another Church.”
Until recently, virtually all the disputes about religious free exercise and establishment involved public expressions and symbols of faith (prayer in school and legislative bodies, the posting of the Ten Commandments, the celebration of religious holidays), the allocation of state monies (through school vouchers, or through reimbursement for textbooks and transportation), exemptions from generally applicable laws on matters of religious practice (for example, peyote-smoking, compulsory education, unemployment insurance for Sabbatarians), and curricular and post-curricular policies and activities in public schools (for example, teaching creationism, allowing after-school student religious groups to meet on campus ).
Within the confines of these disputes, Zuckert’s religious liberty taxonomy has great explanatory power. It helps us better understand why it is very difficult to find a conceptually principled consistency in our nation’s church/state jurisprudence. As Zuckert notes, since the Founding there have been three contrary accounts of religious liberty vying for dominance, with two emerging as the only live options (freedom-of-religion, freedom-for-religion) but none ever winning the day. This makes a lot of sense.
With these recent cases, however, something has changed. What were once the givens of a common culture (beliefs about sexuality and marriage, for example), in which citizens identified with a particular faith tradition or none at all, are now as contested as the religious beliefs that divided these citizens. In the past, it was in most cases not too difficult to distinguish, as Locke would put it, civil interests from the care of souls. But given the issues that confront us today, that distinction is becoming blurred by a government that seems determined to include the care of souls as a civil interest.