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EQUAL LIBERTY, NONESTABLISHMENT, AND RELIGIOUS FREEDOM

Published online by Cambridge University Press:  19 March 2014

Cécile Laborde
Cécile Laborde*
Affiliation:
University College London, [email protected]
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Abstract

Egalitarian theories of religious freedom deny that religion is entitled to special treatment in law above and beyond that granted to comparable beliefs and practices. The most detailed and influential defense of such an approach is Christopher Eisgruber and Lawrence Sager's Religious Freedom and the Constitution (2007). In this essay I develop, elucidate, and show the limits of the “reductionist” strategy adopted by Eisgruber and Sager. The strategy requires that religion be analogized with other beliefs and practices according to a robust metric of comparison. I argue that Eisgruber and Sager fail to develop a consistent and coherent metric and I further suggest that this failure is symptomatic of the broader difficulty encountered by liberal theory in fitting the concept of religious freedom into a broadly egalitarian framework.

Type
Research Article
Information
Legal Theory , Volume 20 , Issue 1 , March 2014 , pp. 52 - 77
Copyright
Copyright © Cambridge University Press 2014 

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References

1. Sherbert v. Verner, 374 U.S. 398 (1963).

2. Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (2007).

3. The idea of an egalitarian theory of religious freedom is insightfully adduced (though not fully explicated) in Greene, Abner S., Three Theories of Religious Equality . . . and of Exemptions, 87 Tex. L. Rev. 963–1007 (2009)Google Scholar. See also Feldman, Noah, From Liberty to Equality: The Transformation of the Establishment Clause, 90 Cal. L. Rev. 673–731 (2002)CrossRefGoogle Scholar.

4. Accommodationists focus on the Free Exercise Clause and argue that religious freedom should be specially protected by the state; separationists focus on the Establishment Clause and argue that there should be a “wall of separation” between state and religion. The two positions are neither mutually incompatible nor exclusive of other interpretations of the two clauses, but they provide a useful focus for my discussion here. For comprehensive literature reviews and classifications, see Kent Greenawalt, Religion and the Constitution (2008); Micah Schwartzman, What If Religion Is Not Special? (University of Virginia Public Law and Legal Theory Research Paper No. 2012–03, 2012).

5. Michael W. McConnell, Accommodation of Religion, Sup. Ct. Rev. 1–59 (1985); McConnell, Michael W., The Problem of Singling Out Religion, 50 DePaul L. Rev. 9–12 (2000)Google Scholar.

6. For similar views of the special and unique nature of religious freedom, see Laycock, Douglas, Religious Liberty as Liberty, 7 J. Contemp. Legal Issues 313 (1996)Google Scholar; Berg, Thomas, Can Religious Liberty Be Protected as Equality?, 85 Tex. L. Rev. 1–49 (2007)Google Scholar; Koppelman, Andrew, Is It Fair to Give Religion Special Treatment?, 2006 U. Ill. L. Rev. 571 (2006)Google Scholar; Smith, Steven D., Non-Establishment under God? The Nonsectarian Principle (University of San Diego Public Law Research Paper No. 04–08, 2004)Google Scholar; Greene, supra note 3. More generally, and in a European context, see Rex Ahdar & Ian Leigh, Religious Freedom in the Liberal State (2005).

7. John Rawls, A Theory of Justice (2nd ed. 1971), at 206.

8. Ronald Dworkin, Justice for Hedgehogs (2011), at 376.

9. Marshall, William. Solving the Free Exercise Dilemma: Free Exercise as Expression, 67 Minn. L. Rev. 545 (1983)Google Scholar; Paulsen, Michael A., Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311 (1986)Google Scholar, at 317.

10. Gérard Bouchard & Charles Taylor, Fonder l'avenir. Le temps de la conciliation. Commission de consultation sur les pratiques d'accommodements reliées aux différences culturelles. Archives nationales du Québec, 2008 [Building the future. A time for reconciliation. Available at: http://red.pucp.edu.pe/wp-content/uploads/biblioteca/buildingthefutureGerardBouchardycharlestaylor.pdf]; Cécile Laborde, Républicanisme critique, républicanisme conservateur: repenser les “accommodements raisonnables,” Critique Internationale, July–Sept. 2009, at 19–33.

11. See Bleich, Erik, Modood, Tariq, Hansen, Randall, O'Leary, Brendan & Carens, Joseph H., The Danish Cartoon Affair: Free Speech Racism, Islamism and Integration, 44 Int'l Migration 3–62 (2006)Google Scholar; Post, Robert, Religion and Freedom of Speech: Portraits of Muhammad, 14 Constellations 72–90 (2007)CrossRefGoogle Scholar; Lægaard, Sune, The Cartoon Controversy: Offence, Identity, Oppression?, 55 Pol. Stud. 481–498 (2007)CrossRefGoogle Scholar; Talal Asad, Judith Butler, Wendy Brown & Saba Mahmood, Is Critique Secular? Blasphemy, Injury, and Free Speech (2009); Cécile Laborde, Rights, Wrongs and the Right to Do Wrong. Jytte Klausen and the Political Theory of the Danish Cartoon Controversy, Persp. on Pol., September 2011, at 603–605.

12. Secularism, Religion and Multicultural Citizenship (Geoffrey Brahm Levey & Tariq Modood eds., 2009); Cécile Laborde, Critical Republicanism. The Hijab Controversy and Political Philosophy (2008).

13. Brudney, Daniel, On Non-Coercive Establishment, 33 Pol. Theory 812–839 (2005)CrossRefGoogle Scholar; Laborde, Cécile, Political Liberalism and Religion: On Separation and Establishment, 21 J. Pol. Phil. 67–86 (2013)CrossRefGoogle Scholar; Cohen, Joshua, Establishment, Exclusion, and Democracy's Public Reason, in Reasons and Recognition: Essays on the Philosophy of T.M. Scanlon (Wallace, R. Jay, Kumar, Rahul & Freeman, Samuel eds., 2011)Google Scholar.

14. Greenawalt, supra note 4, at 2:182–191; Martha Nussbaum, Liberty of Conscience:In Defense of America's Tradition of Religious Equality (2008), at 229, 253, 265–266, 270.

15. Nussbaum, supra note 14.

16. Leigh, Ian, The European Court of Human Rights and Religious Neutrality, in Religion in a Liberal State: Cross-Disciplinary Reflections (D'Costa, Gavin, Evans, Malcolm, Modood, Tariq & Rivers, Julian eds., 2013)Google Scholar; Danchin, Peter, Islam in the Secular Nomos of the European Court of Human Rights, 32 Mich. J. Int'l L.(2011)Google Scholar; Ronan McCrea, Religion and the Public Order of the European Union (2010).

17. More recent egalitarian theories of religious freedom include Charles Taylor & Jocelyn Maclure, Secularism and Freedom of Conscience (2011); Schwartzman, supra note 4; Ronald Dworkin, Religion without God (2013).

18. Eisgruber & Sager, supra note 2, at 6.

19. Id. at 202–203.

20. See, e.g., Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (2001); Marshall, William, The Case against the Constitutionally Compelled Free Exercise Exemption, 7 J.L. & Religion 363–414 (1989)CrossRefGoogle Scholar.

21. Eisgruber & Sager, supra note 2, at 202–203.

22. Id., at 52.

23. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

24. On the idea of neutrality between “religion” and “nonreligion,” see Marshall, William, What Is the Matter with Equality?: An Assessment of the Equal Treatment of Religion and Nonreligion in First Amendment Jurisprudence, 75 Ind. L.J. 193 (2000)Google Scholar.

25. Eisgruber & Sager, supra note 2, at 4.

26. Id. at 88. This is where their egalitarian theory of religious freedom departs most sharply from accommodationist theories: Eisgruber and Sager have no objection to the evenhanded enforcement of such regulatory frameworks even when they override religious concerns.

27. Id. at 90.

28. Fraternal Order of Police Newark Lodge No. 12 et al. v. City of Newark et al., 170 F.3d 359 (3d Cir. 1999).

29. Eisgruber & Sager, supra note 2, at 89.

30. Id. at 14–15.

31. Id. at 92.

32. Id. at 52.

33. Id. at 59.

34. Id. at 70.

35. Id. at 17.

36. Zelman v. Simmons-Harris, supra note 23.

37. Id. at 212–215. In the particular case of Cleveland, however, they note that the absence of good-quality public schools provided insufficient options for parents and generated an unfair advantage for the religious schools.

38. Id. at 19.

39. Id. at 122.

40. Id. at 150–152.

41. Id. at 128.

42. Id. at 164.

43. See Eisgruber, Christopher L. & Sager, Lawrence G., Chips Off Our Block? A Reply to Berg, Greenawalt, Lupu and Tuttle, 85 Tex. L. Rev. 1273, 1274 (2007)Google Scholar. They argue that a municipal sign such as “Finneville—a Town for Straight Folks” would be unconstitutional on this ground: “race, sex and sexual orientation should all be constitutionally protected against disparagement.”

44. Eisgruber & Sager, Religious Freedom, supra note 2, at 170, 192.

45. Id. at 126.

46. Westen, Peter, The Empty Idea of Equality, 95 Harv. L. Rev. 537–596 (1982)CrossRefGoogle Scholar; Joseph Raz, The Morality of Freedom (1986), at 240.

47. I use postsecular here in a specific sense: to refer to a state that deconstitutionalizes religion and does not apply special and unique legal standards to it.

48. For a similar account of equal opportunities and religious exemptions, see Quong, Jonathan, Cultural Exemptions, Expensive Tastes, and Equal Opportunities, 23 J. Applied Phil. 53–71 (2006)CrossRefGoogle Scholar.

49. For critiques of Eisgruber and Sager along similar lines, see Webber, Jeremy, Understanding the Religion in Freedom of Religion, in Law and Religion in Theoretical and Historical Context 26–43 (Cane, Peter, Evans, Carolyn & Robinson, Zöe eds., 2008)Google Scholar, at 35; Berg, supra note 6; McConnell, supra note 5; Greene, supra note 3, at 1006.

50. Eisgruber & Sager, Religious Freedom, supra note 2, at 101.

51. Id. at 101.

52. Id. at 104.

53. Tayor, Charles. What's Wrong with Negative Liberty?, in Philosophy and the Human Sciences: Philosophical Papers 211–219.(1985)Google Scholar.

54. For a thoughtful interpretation of Eisgruber and Sager's theory by appeal to Taylor's notion of “strong evaluation,” see Koppelman, supra note 6.

55. Eisgruber, Christopher L. & Sager, Lawrence G., Does It Matter What Religion Is?, 84 Notre Dame L. Rev. 807–836 (2009)Google Scholar.

56. Eisgruber, Christopher and Sager, Lawrence, The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct, 61 U. Chi. L. Rev. 1245 (1994)CrossRefGoogle Scholar.

57. See, e.g., the essays in Multiculturalism Reconsidered: Culture and Equality and Its Critics (Paul Kelly ed., 2002). For an attempt to explore the two dimensions of religion as “ideas” and as “identity,” see Marshall, William, Religion as Ideas: Religion as Identity, 7 J. Contemp. Legal Issues, 385 (1996)Google Scholar.

58. But one question Eisgruber and Sager do not address is whether, if people identify with their beliefs, they should take some responsibility for them. In other words, this formulation does not quite get to the heart of the luck egalitarian problem, namely, that people must be compensated for things they cannot change or control but must take responsibility for their own preferences and beliefs, however these were acquired. The analogy between a medically required and a religious required beard, therefore, is not as straightforward as Eisgruber and Sager assume.

59. The DC is in fact a compound of a number of different features associated with religious beliefs, such as the following: they are particularly weighty and serious; they invoke demanding duties of observance; they are rooted in conscience; they are of “ultimate concern” to individuals; they address profound moral questions; they are comprehensive and cover the whole of life; they are central to individual identity; they are key to personal integrity. Eisgruber and Sager deny that they need to provide a definition of religion, but their understanding of what it means for a belief to be “deep,” “serious,” or “moral” appeals to one or more of the features that are traditionally associated with religion yet are also present in secular worldviews. Note that the implicit definition of religion used is not uncontroversial. To get off the ground, the reductionist approach needs to deny that whatever it is that makes religious beliefs “deep” in the relevant sense (the sense that matters to equality) cannot exclusively lie in their appeal to a divine authority or to the prospects of an afterlife. But how do reductionist theorists answer the charge that they are able to analogize religious with secular beliefs only at the cost of denying precisely what makes religious beliefs religious? Reductionists have two answers to this challenge: conceptual (the singled-out features do not in fact apply to all commonly recognized religions—many religions are this-worldly and/or nontheistic—and therefore assume an unacceptably sectarian view of what a religion is) and substantive (there is no reason to think that belief in God is what gives moral weight to otherwise deep, respectable, foundational ethical views).

60. I explore a version of this problem in another egalitarian theory of religious freedom, that of Taylor and McLure, in Cécile Laborde, The Politics of Religious Freedom: Protecting Freedom of Religion in the Secular Age, The Immanent Frame (Apr. 23, 2012, 12:06 PM), http://blogs.ssrc.org/tif/2012/04/23/protecting-freedom-of-religion-in-the-secular-age/, reprinted as Protecting Religious Freedom in the Secular Age, in, After Religious Freedom (Saba Mahmood, Elizabeth Sharkman Hurd & Winnifred Sullivan eds.,2014).

61. For the view that taking seriously beliefs people's implies asking them to take (at least some) responsibility for them, see Jones, Peter, Bearing the Consequences of Belief, 2 J. Pol. Phil. 24–43 (1994)CrossRefGoogle Scholar.

62. Eisgruber & Sager, Religious Freedom, supra note 2, at 117–118.

63. United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333

(1970).

64. Eisgruber & Sager, Religious Freedom, supra note 2, at 113–114.

65. Dane, Perry, Constitutional Law and Religion, in Blackwell Companion to Philosophy of Law and Legal Theory (Patterson, Dennis ed., 2010)Google Scholar.

66. Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990),—the landmark Supreme Court decision of 1990 that overturned Sherbert, supra note 1, by positing that there is no constitutional requirement to allow religious exemptions from general laws—did not significantly alter this situation. It was overturned by Congress through the Religious Freedom Restoration Act, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993) (RFRA), and only partly reinstated in City of Boerne v. Flores 521 U.S. 507 (1997). The current situation is that RFRA still has constitutional status at the federal level. Furthermore, even when exemptions are not constitutionally required, they often are constitutionally permitted. There are an estimated two thousand statutory exemptions from general laws in the United States (from compulsory vaccinations to prison diets). Out of these, only a few have been successfully extended to nonreligious convictions (parents can object to compulsory vaccinations for their children on secular grounds in twenty U.S. states, for example). There is, however, an area of potential growth for secular conscientious claims concerning medical research and controversial medical procedures, such as assisted suicide and stem cell research (where claimants appeal to a secularized view of the inherent dignity of human life). In Canada, where religion formally has no special constitutional status, ecocentric vegetarianism has been recognized as entitled to “reasonable accommodation” on the same grounds as comprehensive, categorical religious belief systems. Maurice v. Canada (Attorney General), 2002 FCT 69, [2002] 2 F.C. D-47. Cf. Taylor & Maclure, supra note 17.

67. Eisgruber & Sager, Religious Freedom, supra note 2, at 116.

68. Id. at 116.

69. This is how I interpret Eisgruber and Sager's reference to the possibility that Mother Sherbert has “secular moral convictions.”

70. They do consider a hypothetical case of unemployment benefit for a pacifist who objects to working in armaments. This is in fact a version of Seeger applied to the workplace (Eisgruber & Sager, Religious Freedom, supra note 2, at 114–116). Tellingly, Eisgruber and Sager distinguish this worker from Mother Sherbert by suggesting that his claim, unlike hers but like Seeger's, bears “a relation to religion,” which again begs the question by reintroducing a maximalist definition of religion. Intriguingly, they do not consider prima facie hard cases of real-world, secular conscientious objection, such as possible secular parallels to Wisconsin v. Yoder, 406 U.S. 205 (1972). Yoder allowed Amish parents to withdraw their children from school at the age of fourteen as an exemption from laws making education compulsory until the age of sixteen, and did so by appeal to freedom of religion. The Court insisted that such exemptions could be granted only to religious groups, presumably preempting demands for school exemptions from (inter alia) radical anarchists. It is not clear whether and on which grounds Eisgruber and Sager would disagree, and it is unfortunate that they do not discuss Yoder.

71. Id. at 64–65. Boy Scouts of America et al. v. Dale, 530 U.S. 640 (2000).

72. Lupu, Ira C. & Tuttle, Robert W., The Limits of Equal Liberty as a Theory of Religious Freedom, 85 Tex. L. Rev. 1–36 (2007)Google Scholar (book review), at 29–33. A strong doctrine of ministerial exception was recently asserted by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School, Petitioner v. Equal Employment Opportunity Commission, 132 S. Ct. 694; 181 L. Ed. 2d 650; 2012 U.S. LEXIS 578.

73. They suggest, however, that there might be a strategic rationale for carving more extensive protections for churches than would be allowed by the strict demands of equal liberty: because judges are prone to prejudicial determinations about the risk of discrimination by religious groups and undue interference with employment relationships that are essential to associational autonomy. Eisgruber & Sager, Religious Freedom, supra note 2, at 249–252. I am grateful to Chris Eisgruber for directing me to this important passage.

74. Much more remains to be said, however, about what it means for a religious organization to provide a public service “on the same terms” as a nonreligious one. The issue of direct public funding for faith-based initiatives is a complex and controversial one and is underexamined by Eisgruber and Sager.

75. Winnifred Sullivan, After Secularization: Governing through Spiritual Care, unpublished manuscript (2011), on file with author.

76. Eisgruber & Sager, Religious Freedom, supra note 2, at 52.

77. Lupu & Tuttle, supra note 72; Greene, supra note 3.

78. Greenawalt, supra note 4, at 2:466–467. For an extended and subtle discussion, see also Kent Greenawalt, Does God Belong in Public Schools? (2005).

79. However, state-run schools can permissibly teach about religion in two ways: they can present it as historical and sociological objects of study; and they can criticize religiously inspired commitments when these openly contradict basic rights and democratic principles.

80. Steven D. Smith, The Disenchantment of Secular Discourse (2010), ch. 4.

81. In this paper, I deliberately avoid providing a precise definition of religion. What should be apparent is that while many authors work with a commonsense, “you-know-it-when-you-see-it” understanding of the notion, they select very different features of it for purposes of analysis. In future work, I aim to reformulate a viable egalitarian project that dispenses with the category of religion altogether and instead pursues a strategy of disaggregation of the compound concept of religion.

82. Amy Gutmann, Identity in Democracy (2003), at 158–159.