Abstract
In this paper, I critique a popular yet seldom recognized theory of the political role of religious reasons. According to this theory, the Free Marketplace model, laws may be justified on religious reasons as long as such laws do not impinge on rights. I argue that this theory is internally contradictory and can only be defended by either accepting normatively unacceptable consequences, or resorting to ad hoc distinctions between compelling and non-compelling legal justifications.
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Notes
Here I follow Micah Schwartzman, ‘Religion, Equality, and Anarchy’, in Cecile Laborde & Aurelia Bardon, eds., Religion in Political Philosophy (Oxford: Oxford University Press, 2017).
The principle of neutrality so stated only reaches the formal legal justifications lawmakers provide. But it’s hard to see how this principle does not extend to political advocacy; it should at least cover advocacy that may or does lead to legal and political action that endorses the comprehensive moral values advocated for. The reach of the principle of neutrality may accordingly be much broader, requiring politically-engaged citizens to speak in the language of ‘public reason’ even when they are outside the halls of government. John Rawls responded to this concern by arguing that much religiously-motivated political advocacy – think the Abolitionists, to take Rawls’ own example – could satisfy his proviso, according to which persons may appeal to their religious and ethical convictions provided that in due course they justify those decisions with sufficient public reasons. See John Rawls, ‘The Idea of Public Reason Revisited’, 64 University of Chicago Law Review 765, 785 (1997). But what if a religious group advocates for stricter abortion restrictions on arguments that sound in the natural law tradition? In such a scenario, as Rawls himself seems to recognize, the group’s political advocacy is acceptable only if its argument is presented in public reason. See id. at 798. Thus the principle of neutrality, even if it does not demand that religious groups refrain from political debate, requires religious citizens to translate their moral values to public reasons. I thank a reviewer for bringing this point to my attention.
John Rawls, Political Liberalism (New York, NY: Columbia University Press, 2005), xlix.
Douglas Laycock, ‘Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century’, Minnesota Law Review 80 (1996): 1082–1084.
John Rawls, ‘The Idea of Public Reason Revisited’, Chicago Law Review 64 (1997): 767; Rawls, Political Liberalism, at 214–215.
Laycock, ‘Continuity and Change’, at 1082.
Michael McConnell, ‘Secular Reason and the Misguided Attempt to Exclude Religious Argument from Democratic Deliberation’, Journal of Law, Philosophy and Culture 1 (2007): 161.
See, for instance, Douglas Laycock’s contention that ‘[the U.S.] Constitution does not limit the arguments that a free people can make in political debate’. Douglas Laycock, ‘Freedom of Speech That is Both Religious and Political’, U.C. Davis Law Review 29 (1996): 795.
All this being said, the distinction Free Marketplace theorists draw between ordinary and rights-restricting legislation bears some similarities to the Rawlsian divide between matters of constitutional essentials and everything else. To the extent that my criticisms in Part III undermine the line drawn by the Free Marketplace model, then, such objections may also suggest some problems for the Rawlsian dichotomy as well.
Christopher Eisgruber and Lawrence Sager, Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, 2007), 49–50; Michael McConnell, ‘Secular Reason’, 171–173.
Douglas Laycock, ‘Freedom of Speech’, 802.
McConnell, ‘Secular Reason’, 166–171.
Anthony Ellis, ‘What is Special About Religion?’, Law and Philosophy 25 (2006): 221–225. In this vein, others have argued that epistemological distinctions meant to single out religious convictions are unjustified. See Larry Alexander, ‘Liberalism, Religion, and the Unity of Epistemology’, San Diego Law Review 30 (1993): 767–780.
Thomas Berg, “‘Secular Purpose’, Accommodations, and Why Religion is Special (Enough)”, University of Chicago Law Review Dialogue 80 (2013): 26. I do not want to overstate the extent to which these scholars take religion to be a special conceptual category. Many, like Laycock, are simply working from within their legal tradition and accept that the First Amendment picks out ‘religion’ in its Religion Clauses. See Laycock, ‘Freedom of Speech’, at 316–322. But some, like Berg above, defend religion’s special status, and even Laycock has sought to justify the First Amendment’s choice as a matter of political morality.
Eisgruber and Sager, Religious Freedom and the Constitution, at 51–78.
Douglas Laycock, ‘Religious Liberty as Liberty’, Journal of Contemporary Legal Issues 7 (1996): 326–336.
Andrew Koppelman, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013), 120–124.
Michael McConnell, ‘Five Reasons to Reject the Claim That Religious Arguments Should Be Excluded from Democratic Deliberation’, Utah Law Review 1999 (1999): 644–648.
Cecil Laborde, Liberalism’s Religion (Cambridge, MA: Harvard University Press, 2017), 70–82.
Eisgruber & Sager, Religious Freedom and the Constitution, 70; Laycock, ‘Religious Liberty as Liberty’, 319–320.
Another benefit, though one I will not explore here, is that the Free Marketplace model may be an accurate descriptive account of American constitutional law and practice surrounding the First Amendment’s religion clauses. It captures the relevance of religious reasons in political advocacy as well as the limits the Supreme Court has established over time. It also explains cases like Obergefell v. Hodges and Lawrence v. Texas, where the Supreme Court rejected religious justifications proffered in defense of rights-restricting laws. Whether the theory is a good description of American constitutional law is an interesting question, but answering it would require its own separate paper.
Brief of Douglas Laycock, Thomas C. Berg, David Blankenhorn, Marie A. Failinger, and Edward McGlynn Gaffney, as Amici Curiae in Support of Petitioners, Obergefell v. Hodges, No. 14-556, 11.
Berg, ‘Secular Purpose’, at 34.
Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), xi.
Obergefell v. Hodges, 576 U.S. 644, 672 (2015).
U.S. Constitution, amend. 1.
Eisgruber & Sager, Religious Freedom and the Constitution, at 124–128.
See, e.g., Berg, ‘Secular Purpose’, at 34.
Robert Audi, ‘The Separation of Church and State and the Obligations of Citizenship’, Philosophy and Public Affairs 18 (1989): 278–279.
Dworkin himself recognized that fundamental rights could be restricted ‘to protect the rights of others’ or to ‘prevent a catastrophe’. Dworkin, Taking Rights Seriously, at 191. For more discussion on cases of conflicting rights, see Jeremy Waldron, ‘Rights in Conflict’, Ethics 99 (1989): 507–519.
Eisgruber & Sager, Religious Freedom and the Constitution, at 126. The expressive strategy I’m exploring here pertains to whether and when religious reasons can limit competing rights, but Eisgruber & Sager’s account is more general. It applies to all laws justified on religious grounds, not just rights-restricting ones.
Id., 128.
I will assume without argument here (1) an exceptionless requirement to comply with anti-discrimination law infringes on religious rights, and (2) the state has a compelling interest in protecting individuals’ right to be free from discrimination.
Schwartzman, Berg, and others have made a similar criticism of Eisgruber and Sager’s more general Equal Liberty approach. See Micah Schwartzman, ‘What If Religion Is Not Special?’, University of Chicago Law Review 79 (2012): 1397–1398; Thomas Berg, ‘Can Religious Liberty Be Protected as Equality?’, Texas Law Review 85 (2007); Ira C. Lupu & Robert W. Tuttle, ‘The Limits of Equal Liberty as a Theory of Religious Freedom’, Texas Law Review 85 (2007).
For an effort to find a defensible justification for exemptions within a liberal framework, see Kevin Vallier, ‘The Moral Basis of Religious Exemptions’, Law and Philosophy 35 (2016): 10–18.
Michael McConnell, in the context of religious accommodations, has argued that religious obligations are sui generis and have no secular counterpart. Michael McConnell, ‘The Origins and Historical Understanding of the Free Exercise of Religion’, Harvard Law Review 103 (1990): 1497. Interestingly, McConnell does not extend this argument to the issue of public justification. For criticism of this inconsistency, see Schwartzman, ‘What if Religion is Not Special?’, 1378–1385.
Laycock, ‘Religious Liberty as Liberty’, at 317.
United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970).
See Laborde, Liberalism’s Religion 120–131, Abner Green, ‘The Political Balance of the Religion Clauses’, Yale Law Journal 102 (1993): 1614–1619.
See Andrew Koppelman, ‘Secular Purpose’, Virginia Law Review 88 (2002): 125–140.
Laborde, Liberalism’s Religion, at 135.
465 U.S. 668, 688 (1984).
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Garcia, C.A. Religious Reasons in Politics: Some Problems for the Free Marketplace Model. Law and Philos 41, 601–625 (2022). https://doi.org/10.1007/s10982-022-09442-0
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DOI: https://doi.org/10.1007/s10982-022-09442-0