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Hobbes, Locke, RFRAs, and Wedding Photographers

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In the 16th century, Europe experienced a long series of nasty and violent religious wars. With Christianity splitting into many sects, each one wanted its own political power. Once a sect gained that power, it used it to oppress the others. The oppressed sects then fought that much harder to achieve their own independence.

Into this fray of religious warfare, Thomas Hobbes entered and proposed a solution: Instead of fighting about which religion would hold sovereign power so as to extend its influence, we could all just collectively decide that sovereign power would only promote peace and stability for its citizens. By defining sovereignty down, Hobbes hoped to avoid bloody religious warfare. Amidst this redefined sovereignty, Hobbes proposed picking one overriding religion—it didn’t really matter which one since all were equally untrue—and imposing it on all.

Hobbes went further than John Locke would later think necessary. Hobbes wasn’t content to allow each religion its own viewpoint so long as it didn’t rock the boat of sovereignty; he thought it also necessary to achieve a kind of uniformity of thought, insisted upon and enforced by the sovereign. This uniformity would forever prevent the religious warfare of the past. Despite the apparent religious absolutism, the overriding sovereign secularism would teach people to stop fighting about religion because they would come to think that religion doesn’t matter that much.

Many years after Hobbes (1588-1679) wrote his book and offered his solution, Locke (1632-1704) entered the conversation about the relation between religion and the state. Although Locke shared Hobbes’s aversion to religious warfare and commitment to the peace necessary for the people’s rights to flourish, he thought there was a different solution. In the Letter Concerning Toleration, Locke proposes to achieve this peace not by insisting on uniformity but by embracing toleration.

If all religions could learn to tolerate one another’s existence, and even to learn to cherish that toleration, they would no longer fight over political power. They would all equally accept a sovereign that only aimed at peace and the preservation of rights because they would all equally see that their individual religion would flourish. In other words, they could all make a deal to tolerate one another and embrace a sovereignty that is itself tolerant.

So whereas Hobbes’s sovereign secularism insists on, and enforces, uniformity of belief, Locke’s liberal state is secular even as it also tolerates and thus protects the religious liberty of the various groups within it. Of course, toleration only goes so far; Locke does not think we ought to tolerate religious groups that practice or teach things that threaten to take down this secular and tolerant order.

A commitment to toleration, in other words, need not tolerate the intolerant. A balance must be struck between tolerating religious liberty and permitting religions that threaten the civil order.

This is all to say that modern liberalism has two paths from which to choose. It can either embrace a Hobbesian commitment to secular uniformity so that we are no longer threatened by those odd people practicing odd religions. Or it can embrace a Lockean commitment to toleration and to the religious liberty which that entails. The second path is in some ways more difficult, requiring a constant balancing between civil society’s secular legal framework and the religious liberty that does not always comfortably comport with secularism.

With all of that as a backdrop, the federal Religious Freedom Restoration Act of 1993 and its state equivalents emerge as a kind of case study on these different paths.

First, a brief description of what the RFRAs passed by states like Indiana are actually doing. Critics have asserted that they permit and encourage discrimination. Although some of the statutes could, indirectly and in a complicated way, give rise to acts of discrimination, what critics call an encouragement of discrimination others view as arising from a concern to protect religious liberty that any Lockean would take seriously.

Here’s what they do. Without the RFRAs, a wedding photographer who claimed his religious objections to gay marriage prevented him from photographing them could be hauled into court and sued for discrimination. Right now, there is a case in New Mexico of precisely this character. The RFRAs allow him to appeal to a judge to make the argument that his religion prevents him from this activity. The judge would then decide if the photographer’s religious commitments allow him to choose not to participate in the gay wedding. In making this decision, the judge would be balancing religious commitments against the public good served by preventing discrimination.

Supposedly, the laws passed by states like Indiana would permit things like restaurants’ refusing to serve gay couples. The framework I have just discussed makes such forms of discrimination both unlikely and illegal. It is impossible to imagine why anyone’s reasonable commitment to his religion would demand not serving people whom he suspects might be homosexual. The judge adjudicating such a scenario would likely conclude that the restauranteur is simply discriminating, not practicing his religion.

Or, if we think back to the Lockean framework, the judge might conclude that, even if that restauranteur really does think his religion demands barring a gay couple from his establishment, such an illiberal religion ought not be tolerated and thus can be excluded from participation in the liberal state. Thus, he could be rightfully accused of simple discrimination. In other words, the RFRA does not encourage or even permit the kinds of discrimination we saw in the Jim Crow era. The claim that it does is simply a misrepresentation of the law. In fact, the truth is that religious liberty claims have never protected Jim Crow practices, so it is out of line to argue that Jim Crow would be looked to as some kind of precedent. There is simply no recent legal precedent justifying straightforward discrimination under the umbrella of religious liberty.

But, back to the wedding photographer. Here the issue is more complicated. Is it that unreasonable for the wedding photographer to have a religious objection to gay marriage such that he cannot participate in the event? Restaurant-goers are doing nothing that could possibly violate the tenets of any reasonable religion. The marriage of a gay couple, in contrast, may very well violate the tenets of many religions. After all, most of the world’s religions have for thousands of years only married a man and woman. This is not to say that they are right in continuing only to practice such marriage; my sister and her wife were married by a reform Jewish rabbi and I happen to think reform Judaism is right in extending the institution of marriage to gay couples.

The question isn’t, however, whether I or anyone else has a right to support gay marriage. The question is whether someone could reasonably hold religious beliefs that lead him to think it wrong. And, in so thinking, whether he has a right to object to participating. Here is where those two models for social peace—Hobbes’s enforcement model and Locke’s toleration model—reenter the picture.

A Lockean commitment to toleration means tolerating the wrongness of someone else so long as that wrongness is not a fundamental threat to society. It means creating laws that allow for a diversity of opinions and a diversity of actions. Liberalism then means not the embrace of one wholly secular life, but the embrace of the possibility of a wide diversity of lives. For us to be right, we must also tolerate others who do not think like us.

For Locke, toleration must be a fundamental component of our rightness.

By contrast, Hobbesianism points in only one direction. If you are not on the right train, you must be a pariah who needs to be stamped out of civil society. As can be seen by the very demand that all practice the same religion in the name of civic peace, Hobbes wants to use the state against religious belief itself.

In our reaction to these RFRAs and to the attempt by wedding photographers and others freely to practice their religion, we sound more Hobbesian than Lockean. Just as Hobbes did not make any exceptions in the law for the sake of religious liberty—and in fact wanted to use the state itself as a weapon against religion—some of us have tried to use the state to punish these citizens’ “intolerance.”

Behind that false banner is a form of secularism that aims to stamp out religion rather than merely tolerate it.

That form of secularism is not the right path to take.

Reader Discussion

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on June 03, 2015 at 10:05:24 am

I enjoyed this article. It outlined the fallacies that the media and left leaning politicians proclaimed after this act was passed in Indiana. These fallacies were backed by fear, short shortsightedness, and a misunderstanding of the law. I liked how the author tied in the ideas of Locke and Hobbes to the debate on the RFRA. All the law does is stop people who may not agree with someone based off of religion to not be sued by that individual based on discrimination. The law seems fair in its doctrine and clear in its purpose in promoting religious liberty.

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Michael Redchanskiy
on June 03, 2015 at 10:13:01 am

A Lockean commitment to toleration means tolerating the wrongness of someone else so long as that wrongness is not a fundamental threat to society. It means creating laws that allow for a diversity of opinions and a diversity of actions. Liberalism then means not the embrace of one wholly secular life, but the embrace of the possibility of a wide diversity of lives. For us to be right, we must also tolerate others who do not think like us.

Great!

It is impossible to imagine why anyone’s reasonable commitment to his religion would demand not serving people whom he suspects might be homosexual.

Wait … what?

[E]ven if that restauranteur really does think his religion demands barring a gay couple from his establishment, such an illiberal religion ought not be tolerated….

Uh … what happened to tolerating others who do not think like us?

I understand some branches of Islam forbid men from touching women to whom they are not related by blood or marriage. This doesn’t mean they have animus towards these women; indeed, they will likely marry one eventually. But when an all-girl’s school caught fire in Saudi Arabia, the firemen were unwilling to carry the girls to safety. A prohibition is a prohibition.

Now, we can decry their faith as pure prejudice. Or we can acknowledge that different faiths teach different practices.

So I make no special judgment about the “reasonableness” of someone who says he does not want to serve homosexuals, or married homosexuals, or whathaveyou. And to invite judges to evaluate which religions are “reasonable” and entitled to government sanction, and which are “unreasonable,” is merely to invite government discrimination on the basis of religion.

This is an invitation Kleinerman seems only too willing to accept. I can only assume that he believes that judges will look upon his religious views with favor.

Instead, I have offered my “antitrust” theory of accommodation: Let business providers withhold service/employment/housing on any basis they choose – provided they bear the burden of telling the customer where she could find comparable service/employment/housing in the vicinity of comparable quality at comparable terms. This provides us with a (more or less) objective standard. We don’t have to pretend we can read the proprietor’s mind and heart, or pass judgment on the reasonableness of his worldview.

Under this test, the photographer could decline to take wedding photos because both members of the couple are the same gender, or because they’re wearing clashing outfits; it wouldn’t matter. The photographer would simply have to say, “I decline to serve as your photographer. But Joe’s Studio is just across the hall and would be happy to accommodate you. Here’s a coupon for his services, a listing of his Yelp reviews compared to mine, and his contact information; please take them with my compliments.”

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nobody.really
on June 03, 2015 at 10:56:33 am

Why not just let the business person contract with whomever they like and let the free market and current culture take care of the rest? This is what is called liberty. If no other business will provide the same service, it sounds like a wonderful opportunity to make money based on other people's stupidity.

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Ron Johnson
on June 03, 2015 at 11:39:04 am

That may indeed be what is called liberty. It is not what is called equality.

In his Commentaries on the Laws of England (1765–1769), Sir William Blackstone wrote:

[I]f an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.

In 1911, Prof. Charles Burdick argued that this list of the duties of inn-keepers and other victuallers was merely illustrative of a broader duty owed by “anyone who held himself out [as open to the public] to serve all who might apply.”

More recently, Title II of the Civil Rights Act of 1964 barred many providers of housing/employment/public accommodations from discriminating on the basis of various suspect categories. Wisely or not, Congress felt it appropriate to require Southern lunch counter operators to serve black folk, or to get out of the business. Many states have enacted their own versions of this law.

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nobody.really
on June 03, 2015 at 12:50:15 pm

A poet (of note) has written:

Tolerance is Love, sick with the sickness of haughtiness.

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R Richard Schweitzer
on June 03, 2015 at 15:25:05 pm

Rev. Dr. Martin Luther King Jr. (of note) has written:

It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that's pretty important.

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nobody.really
on June 03, 2015 at 15:36:45 pm

Insuring equity of process or treatment is indeed implicated if the government is acting; the failure to contract as between private parties does not. This is what distinguishes "Jim Crow" laws from the acts of private citizens. I'm not sure how applicable Blackstone or Prof. Charles Burdick is in this context. Title II of the Civil Rights Act of 1964 is a statutory restriction to the right of contract because of the special nature of public accommodations; I doubt wedding cakes should be considered similarly situated. Trumping liberty should take more than the majority's desire to establish equality of outcome; if a majority could trump liberty at will, there would soon be no liberty.

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Ron Johnson
on June 05, 2018 at 11:25:27 am

First of all, in response to your first questions: because these are places or things of public accommodation we have to make distinctions between reasonable allowances for religious liberty and unreasonable ones. And the state has to be able to judge the point at which a religious liberty claim becomes unreasonable. The judgment is acceptable insofar as it's based on a question of the public good and not on a judgment of their religion. As such, there is only accommodation for religious views and practices that are somewhat congenial to a liberal political order. As Locke makes clear in the Letter Concerning Toleration, the polity need only tolerate the tolerant. Of course, the question becomes how broadly we define what is "tolerant." My aim in the article is to show that liberalism doesn't have to become uniformly and aggressively "tolerant" in order to remain liberalism. There is room for diversity within it. I would say that a religion that demands that firemen abandon girls to the fire is not a religion which we ought tolerate. We ought tolerate Islam but not that abhorrent version of it. Slippery slopes make bad arguments and bad precedents. We can as a society make distinctions between tolerable religions. We need not tolerate all in order to tolerate some. As for your "Kleinerman seems only too willing to accept. I can only assume that he believes that judges will look upon his religious view with favor," I'm tempted to go on a screed about the implicit anti-Semitism in that statement. But maybe I'm wrong. Maybe you just happened to use my Jewish name, my religious views, and "judges" in connection with one another by accident. I still wonder why you think my religious views are at all relevant.

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Benjamin Kleinerman

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.