There is every reason to conclude that Montana's Blaine Amendment violates the Free Exercise Clause.
Samuel Gregg’s essay, “What is Social Justice?” is an important reminder that many different moral traditions – including the Catholic natural law tradition – may lay claim to the vocabulary of “social justice” and to an associated notion of the “common good.” As articulated by Gregg, this natural law tradition can employ the language of “social justice” without construing social justice as fundamentally a call for an egalitarian or egalitarian-leaning distribution of material well-being or material resources that are conducive to material well-being. That natural law tradition offers a thick understanding of human well-being and of the sort of social order that generally promotes human flourishing and links social justice to the diverse ways in which such a social order can and should be sustained and promoted. Since the diverse ways of sustaining and promoting such a social order do not much involve the equalization of material resources or material well-being, social justice as conceived within the Catholic natural law tradition does not have much to do with such an egalitarian program.
Were I attracted to social justice and the common good as Gregg understands them, I too would be interested in rescuing “social justice” from the grip of those “identified as ‘left-wing’ or ‘progressive.’” But since I’m not, I’m not. So my purpose here is not to rescue social justice but, rather, to weigh it down and sink it. More specifically, I want to say a few things about why one should disavow the common egalitarian or egalitarian-leaning conceptions of social justice for which Gregg wishes to offer a substitute.
To begin with, let us survey what views would qualify as egalitarian or egalitarian-leaning conceptions of social justice. Some advocates of social justice are deeply committed to substantive equality as such. Substantive equality among individuals is at least the most important value in assessing the society comprised of those individuals. Ideally, whatever is of ultimate value in human life – say, happiness – ought to be equally distributed among all people. If it is too difficult to measure or manipulate what is of ultimate value in human life, some proxy for that value – say, income – ought to be equalized. According to the strict substantive egalitarian, justice demands the creation of the social order in which the distribution of whatever is to be distributed is most equal. This, of course, would require the choice of a two person social order with payoffs of ˂5,5˃ over one with payoffs of, say, ˂93,78˃. A slightly less strict egalitarian may also give some weight to the magnitude of payoffs and, so, in the name of justice favor ˂93,78˃ over ˂5,5˃ but still favor ˂43,41˃ over ˂93,78˃.
The paradigmatic advocate of what I have called an egalitarian-leaning conception of social justice would be an advocate of John Rawls’ difference principle according to which that available distribution which maximizes the lowest payoff is required by justice. So, for a two person social order, the strict difference principle advocate would (unlike the strict egalitarian) favor ˂93,78˃ over ˂43,41˃; but he would also favor ˂79,79˃ over ˂93,78˃. Strictly speaking, the difference principle allows any degree of inequality as long, but only as long, as the lowest payoff within that inequality is greater than the lowest payoff within any other available arrangement.
The difference principle is strongly egalitarian-leaning because the ranking of alternative social outcomes focuses entirely on the outcome for the worst off. Any improvement for the worst off within a society makes that society more just no matter what the cost to the better off members of that society. In addition, most standard difference principle advocates think of the gains to the worst off as coming mostly (or entirely) from coerced downward redistribution from folks who are better off. For instance, the transition from the ˂93,78˃ distribution to the ˂79,79˃ distribution will typically be thought of as taking place through some cleverly designed coercive transfer program that consumes 14 units of the first party’s “excess” payoff to undo 1 unit of the second party’s “unjust” deprivation. A somewhat less strict version of the difference would pay some attention to the costs that downward redistribution would impose on the “more favored” members of society. Perhaps moving the second party from ˂78˃ to ˂79˃ will not be required by justice if that transition would require moving the first party from ˂193˃ to ˂79˃. And, of course, one might try to combine somewhat discrete egalitarian and egalitarian-leaning conceptions of social justice.
Now the first thing that should be noted – albeit it can only be noted here – is how thin the arguments on behalf of any such conception of justice are compared to the heftiness of the demands on people that believers in any such conception make. It is really hard to find anyone who even offers an argument for the conclusion that equality of outcome as such is required by justice. The great attempt to provide such an argument an egalitarian-leaning principle of justice is Rawls’ attempt to defend the difference principle in A Theory of Justice. That argument depends on a striking number of controversial suppositions about the moral significance of hypothetical bargains, about how the separateness of persons can be respected by requiring people to abide by bargains that they would only enter into if they knew nothing about what makes them separate persons, about what is required for a bargain to be rational, to be free, and to be fair, and about what decision procedure rational people would follow under uncertainty. Each of these suppositions is carefully tailored by Rawls to yield exactly the conclusion that Rawls wants. However, we cannot here go into all the different sorts of arguments that might be given for all the different versions of social justice and all the sorts of problems those arguments have. We must focus instead on other sorts of problems for social justice.
The first problem that I will mention does hearken back to the gap between supportive arguments for social justice and the demandingness of social justice. Insofar as one finds arguments for social justice, they usually begin with observations about how nice, how benevolent, some inequality reducing action would be or how unfair some grossly unequal situation is. If nice guy Josh had ten million dollars and nice gal Bekah had nothing, wouldn’t it be nice if Josh gave a bit of his fortune to Bekah? Wouldn’t we all as nice people welcome Josh doing that? Suppose nice guy Josh inherited those ten million dollars from his previously unknown uncle while Bekah’s previously unknown aunt lost the ten million dollars she was planning to give to Bekah. Isn’t that unfair? Wouldn’t it be more fair – albeit clearly not yet perfectly fair – if Josh’s more careful uncle had given two million of his ten million dollars to Bekah? (But won’t even that be grossly unfair if there were other equally swell young people in the world without wealthy uncles or aunts?) Suppose one joins in all the sentiments expressed in these rhetorical questions – questions that are crafted to make sure that no hint of differential entitlement or desert exists in the contemplated situations. We still get nowhere near a conclusion about justice.
The reason we get nowhere near justice is that justice tells us what we may demand of others and coercively enforce upon others. When we make a claim of justice we are asserting (for ourselves or our agents) a very special moral authority, viz., the authority to use force or the threat of force against others to make them do what they will not freely do. Of course, such a use of force will not be necessary in the extremely unlikely situation in which the purportedly just egalitarian or egalitarian-leaning outcome actually arises out of people’s voluntary actions and interactions. But, even in those unlikely circumstances, advocates of social justice are saying to people, “You had better make sure that your actions add up to the satisfaction of our demands. Your ‘voluntary’ actions had better toe the social justice line. If not, you will be forced back into line.”
F.A. Hayek makes a large number of weak or misdirected arguments against social justice. However, one of his better arguments is simply to point out that, since the institution of any such doctrine of social justice will almost certainly require the use of the state’s coercive powers, the advocate of any such doctrine bears the burden of establishing that “there exists a moral duty to submit to [such] a power.” Hayek’s important point is that the application of the phrase “social justice” to some purportedly better or more fair pattern of distribution does not discharge the burden of establishing a duty to submit to the coercive imposition of that pattern. I contend that it is a universal feature of advocates of social justice that they do not discharge that burden. That is part of what I mean to convey in my slightly hyperbolic title.
It is in the nature of arguments for egalitarian or egalitarian-leaning doctrines of social justice to begin by ignoring or denigrating the idea that individuals might deserve or be entitled to some of the goods over which social justice claims authority. Respect for any such deserts or entitlements will to some extent insulate some goods (and their owners) from the reign of social justice; it may turn out to insulate many goods (and their many owners) from the reign of social justice. Moreover, any respect for such deserts or entitlements will almost certainly preclude the institution of the social justician’s most prized distribution of goods.
Indeed, it is in the nature of arguments for egalitarian or egalitarian-leaning doctrines of social justice to begin with the assumption that society or society’s state has authority over whatever goods are in practice available for distribution. The starting presumption is that whatever goods are in practice available for distribution are part of a social pie which – however it has come into existence – is now sitting there waiting to be cut up in accord with the reigning recipe for social justice.
Society, of course, may need to pay some attention to which policies will over time produce bigger haute cuisine pies and which policies will produce those little Drake’s Fruit Pies. And the selected policy may itself regrettably preclude certain slicings up of the resulting pie. (You cannot for long have a policy of eliciting the efforts of very productive people by promising them somewhat more than equal slices and in fact distributing only equal slices.) Nevertheless, under any social justice regime, what each person has coming to her will have nothing to do with individual desert or entitlement; it will instead be entirely a matter of society, i.e., the state, directly or indirectly supplying to that individual or allowing that individual to retain that which fits the pattern enshrined in the favored conception of social justice. The presumption of societal or state authority over whatever exists to be distributed is another part of what I mean to convey in my slightly hyperbolic title.
Social justice doctrines of the sort we have been considering are at some deep level wed to the idea that society itself is an organization or an enterprise. Society itself has a purpose, viz., the proper distribution of, say, happiness or whatever are the best proxies for happiness. And society fulfills that purpose by properly exercising its authority over whatever is available to be distributed. If, as a member of the organization, I appeal for a larger slice, I must explain to those in charge how my getting a larger slice will advance the organization’s purpose. Society qua organization, i.e., the state, might recognize that sometimes its ends are better served by allowing its members a considerable degree of local discretionary control. The state might be convinced by its pro-freedom and pro-market advisors that this is the best way for the state to make use of people’s talents, energies, and knowledge for the sake of social justice. Still, individual discretionary control – especially over the fruits of one’s permitted economic activity – will have to remain hostage to the state’s judgment about the distributional justice of those individual freedoms. This also is what I mean to convey by my perhaps not very hyperbolic title.
I have said that a state devoted to a conception of social justice of the sort under consideration here might be convinced by its pro-freedom and pro-market advisors to adopt something like classical liberal policies. However, I would not advise anyone to hold her breath. In practice, the demand for social justice functions as a blank check that is almost always filled in and cashed by concentrated special interests – often at the expense of those who are supposed to be served by social justice. Social justice, however, is not among the innocent victims. Social justice is so inherently indeterminate that almost any politically savvy interest can wrap itself in the social justice flag. Social justice necessarily champions extensive state authority. It necessary champions the idea that the social order is an organization and that the executive branch of that organization, i.e., the state, has the final say in distributing the burdens and benefits of being part of the organization. All of this is what I mean to say in my not very hyperbolic title.
 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
 This has been a theme of a number of recent discussions with Jim Cote.
 F.A. Hayek, Law, Legislation, and Liberty, v.2 (The Mirage of Social Justice), (Chicago: University of Chicago Press, 1976), 64.