Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
If Not Exemptions, Then What?
This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.” Then, from about 1963 till about 1990, the Court’s answer (officially, if not in practice) seemed to be “yes.” After that, the answer shifted back to “no,” although a law passed by Congress in 1993 with overwhelming support (the Religious Freedom Restoration Act, or RFRA) gave a “yes” answer as a statutory matter. But although RFRA is still in place (and was enforced in Hobby Lobby), opinion has shifted dramatically until the “no” answer again seems to predominate, at least in some elite legal and cultural neighborhoods.
So, what’s going on? In several insightful articles, Doug Laycock argues that two developments have undermined support for free exercise exemptions. First, the exemption approach came to be viewed as an obstacle to the gay rights agenda. Second, the percentage of atheistic or agnostic or religiously unaffiliated citizens has risen, so that what once seemed like a mutually beneficial non-aggression pact now looks to many like special interest pandering.
Laycock’s explanation is convincing as far as it goes, I think, but there may be other factors as well. I’ve argued, for example, that our commitment to religious freedom was justified, historically, by theological rationales that are now deemed inadmissible on the ironic ground that they violate religious freedom, which is said to restrict government to the realm of the secular. (More on that, maybe, in a later post.) So Jefferson’s celebrated and seminal Virginia Statute for Religious Freedom, with its resounding affirmations that “Almighty God hath created the mind free” and that coercion in religion is “a departure from the plan of the holy Author of our religion,” is in principle unconstitutional today– as a violation of religious freedom! And it’s not clear whether excluded theological rationales like Jefferson’s can be successfully replaced by secular justifications.
Beyond these factors, though, and even for people (like myself) who are not swayed by them, there are reasons to doubt the continuing viability of the exemption strategy. Think of it this way: ever since the breakup of Christendom in the sixteenth and seventeenth centuries, a (or perhaps the) fundamental political challenge has been to find ways to maintain a relatively peaceful, stable, and hopefully even just society under conditions of diversity– religious diversity in particular. The exemptions strategy has been one response to that challenge, and in some contexts the strategy has worked tolerably well. But two things have changed to make the strategy less functional. Those two things are, first, the growth of government and, second, the intensification and hardening of cultural division.
Thus, as government has expanded the scope of its ambitions and responsibilities, and as legal requirements and regulations accordingly proliferate, the occasions of conflict between law and religion multiply. To illustrate: in past generations, the contentious issue of late– namely, the conflict between some employers’ religious convictions and a “contraception mandate”– would not have arisen. The conflict would not have arisen because it would not have been considered the federal government’s business in the first place to tell employers they have to include contraception in their benefits packages.
Moreover, as cultural divisions widen, the people who find themselves at odds with legal requirements are not limited to small outlier groups like the Amish, or Quakers, or devout Native Americans, but instead more numerous and mainstream groups . . . like serious Catholics, and evangelicals, and devout Jews. Today the clash between law and conscience occurs not at the margins of society but rather at its core. And this shift makes exemptions problematic as a strategy for dealing with diversity. It is one thing to excuse a few isolated folks from complying with a law; it is quite another to exempt scores of employers responsible for thousands of employees.
For myself, therefore, although I continue to support the idea of free exercise exemptions for the time being, I also have serious doubts about the overall efficacy of this strategy. So then, is there any alternative?
One possibility favored by many– we might call it the “zero tolerance” or “no accommodation” position– is simply to deny any legal recognition to people’s religious or conscientious scruples. Just enforce the law (or rather the laws, and the regulations, in all of their sprawling and ponderous multiplicity): religious objectors be damned! (As some of them may believe they will be, if they comply.) In this spirit, the political philosopher Brian Barry compares the denial of exemptions to “a course of chemotherapy” that “holds out the hope of destroying the malignant features of religion.” Barry acknowledges that this treatment will be “experienced as debilitating by believers.” Brian Barry, Culture and Equality 25 (2001). Given his disdain for the sort of “malignant” religion that will be thus burdened and “destroy[ed],” Barry evidently regards this consequence not as a problem but rather as a point in the “zero tolerance” policy’s favor.
Barry’s position seems increasingly popular these days. In my view, there are two main problems with this position. First, it is deeply unjust, and disrespectful of the deepest concerns of millions of citizens. And, second, the policy is unlikely to succeed. That is because although “true believers” (as opposed to “check the box” religionists) may now be a minority, they are still a large enough and committed enough minority that they are unlikely just to acquiesce in the sort of intrusive “chemotherapy” that Barry and others advocate. And so the consequences of this policy could get ugly.
But then if the exemption strategy is losing its efficacy, and if uniform enforcement of laws even against religious objectors will produce unacceptable costs and resistance (and on the further assumption that government is not about to shrink or back off, thereby relieving the pressure), then what is the solution? How are we– we variously devout and indifferent and aggressively secular people– supposed to live together in peace?
I admit it: I don’t know the answer to that question. I worry– seriously– that there isn’t any good answer.
Here’s one modest and tentative suggestion, though: I wonder whether we might do well to shift our thinking and efforts away from exemptions and focus on the possibilities for reviving a different but old strategy– namely, federalism. I admit it: this is not an especially promising strategy. For traditional believers, though, what other long-term hope is there?