Liberalism versus Liberalism: An Analysis of Muslim-American Amicus Curiae Arguments Concerning Complicity-Based Conscience Claims

Abstract

In 2015, Douglas NeJaime and Reva Siegel identified complicity-based conscience claims as a subcategory of religious liberty claims, which feature objections to generally applicable laws based on religious convictions that harm third parties. Here, we observe that Muslim-Americans have filed or joined amicus curiae briefs in support of litigants on both sides of the recent complicity-based conscience cases of Masterpiece Cakeshop v. Colorado (2018), Bostock v. Clayton County (2020), and Fulton v. City of Philadelphia (2021). This divergence of legal views within the Muslim-American community points to a broader rift in society generally toward issues involving the navigation of identity and faith in the context of American liberalism. In this article, we show that opposing arguments by Muslim-Americans in these complicity-based conscience cases presuppose two different conceptions of liberalism: (1) liberalism as the pursuit of broad religious, cultural, and value pluralism (modus vivendi), and (2) liberalism as the pursuit of social cohesion, assimilation, and fraternité among diverse constituencies (vivre ensemble). Muslim-Americans who advance a modus vivendi vision of liberalism base their arguments mainly on the view that Islam and other minority religions involve specific beliefs, doctrines, and moral injunctions regarding, inter alia, rules of personal conduct in society that deserve distinctive legal protections. Muslim-Americans who support a vivre ensemble conception of liberalism prioritize the uniform enforcement of civil rights laws over religion-based objections and, in doing so, seek an overlapping consensus between their beliefs and prevailing conceptions of expansive civil liberties.

Introduction

In a 2015 article, Douglas NeJaime and Reva B. Siegel identified an emerging category of religious liberty cases involving what they called “complicity-based conscience” claims. ¹ Complicity-based conscience claims feature religious claimants who wish to avoid participating or being complicit in the conduct of third parties that they find to be in violation of their faith commitments. Relative to prior religious liberty cases (such as Employment Division v. Smith ²), NeJaime and Siegel argue that Burwell v. Hobby Lobby ³ ushered in a new kind of religious liberty dispute in which requested religious exemptions from generally applicable antidiscrimination laws concerning sex, gender, reproduction, and marriage could inflict harms on third parties.

Complicity-based conscience claims, where religious parties seek exemptions from general laws ⁴ that compel religious believers to choose between violating their conscience and participating in certain societal activities, are divisive because they require balancing the conflicting interests of two protected classes: the religious liberty interests of religious claimants and the civil rights interests of other groups. When these rights claims collide, deciding in favor of religious claimants could result in dignitary harms to those who are protected by antidiscrimination laws, while a decision in the reverse could pose an affront to the dignity of religious claimants.

One way to balance the competing interests at play in complicity-based conscience disputes would be to enforce equal protection laws uniformly, irrespective of whether objections to those laws are based on religious convictions. Though the context is not identical, this position mirrors the majority opinion in Smith, where Justice Antonin Scalia argued that “because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference’ … and precisely because we value and protect that religious diversity, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order.” ⁵ Such a position emphasizing “freedom under” equal laws reflects a popular understanding of the relationship between religion and the liberal state, one that limits acceptable religious liberty to those expressions that do not contravene general laws. That said, as we show in our analysis of recent complicity-based conscience cases, problems arise when facially neutral laws of general applicability may compel religious constituents to violate their conscience if they choose to participate in social activities such as operating a business and hiring employees. ⁶

Roughly coinciding with the Smith holding was the 1993 publication of John Rawls’s influential Political Liberalism, in which Rawls articulated a similar principle of liberal tolerance toward religion in the manner that the majority in Smith presented three years earlier. As Rawls argued, the scope of religious diversity and the prospect of social stability in liberal societies depend on how well an “overlapping consensus” between particular religious doctrines and the essentials of a liberal democracy could be achieved. ⁷ Whether framed in Rawls’s terms or in terms of Smith’s subjection of religious liberty to generally applicable laws, deciding complicity-based conscience disputes under a social cohesion principle narrows the scope of acceptable religious diversity in the liberal state.

The balancing act involved in the adjudication of complicity-based conscience disputes could, for example, be weighed in the opposite direction, with greater weight being afforded to the protection of substantial religious diversity and value pluralism—perhaps especially when those diverge from prevailing societal attitudes. Against both Rawls’s “overlapping consensus” framework and the coherence principle implied in Smith are theories of liberal pluralism offered by political theorists such as Michael Walzer, William A. Galston, and John Gray that seek to erect minimal conditions of coexistence rather than pursue consensus, where values and ways of life that diverge from prevailing sensibilities deserve as much protection as other objects of civil rights legislation.

Thus, tension between two conceptions of liberalism in the American tradition is on display in complicity-based conscience disputes that underscore the fact of human differences on interests of great significance to self-determination: one that privileges coherence between groups and another that supports robust religious diversity under minimal conditions of basic coexistence. How the competing interests at play in complicity-based conscience disputes are balanced hinges, in no small part, on how liberal tolerance is understood. ⁸

Muslim Participation in Complicity-Based Conscience Disputes

Muslim-Americans ⁹ have received little attention in the emerging complicity-based conscience literature, but they provide a clear example of a minority religious community ¹⁰ in the United States that, at least in its more traditional and doctrinally oriented ¹¹ segments, holds beliefs and seeks to live in accordance with social practices that diverge from prevailing societal attitudes about sex, gender, and marriage that are increasingly being enshrined in equal protection statutes. The way that competing interests at play in complicity-based conscience cases are balanced is thus of consequence for this religious minority.

Western scholarship on the relationship between Islam and liberalism in the twenty-first century has focused on discerning cohesion between the two, perhaps because in the wake of September 11, 2001, Muslims have been looked upon in certain quarters of society as a suspect class with collective attitudes, values, and ways of life that did not appear to comport with those of the broader American public. Establishing a Rawlsian overlapping consensus between Islamic theological doctrines and liberal values captured the sustained intellectual energies of erudite scholars such as Andrew F. March and Mohammad Fadel, who have sought to demonstrate conceptual compatibility between the two with the goal, presumably, of defending this suspect group against ill-intentioned and at times prejudiced efforts to deny Muslim-Americans their place in the big tent of American liberalism. ¹²

Yet there are reasons to question whether the interests of religious minorities such as doctrinally oriented Muslims are adequately protected under a regime of cohesion, where facially neutral laws of general applicability increasingly reflect values that conflict with traditional religious convictions about areas of life as fundamental as sex, gender, reproduction, and marriage. As applied to such religious constituents, these facially neutral laws require complicity with social norms that many religious believers consider unacceptable. Leveraging tools from within the liberal tradition that look favorably upon robust religious diversity would support “freedom from” laws that, though intending to protect certain classes of people, threaten traditional religious believers.

It should be no surprise then that certain Muslim and other religious groups have filed amicus curiae briefs in support of litigants in recent complicity-based conscience cases to argue that religious liberty extends to freedom from general laws that have the potential to constrain religious social practices. What may be surprising, however, is that other Muslim groups have presented arguments in support of the expansion of civil liberties in these cases against the interests of such groups, and thus we observe that arguments advanced by members of this religious minority reflect two distinct understandings of liberalism. ¹³

In what follows, we present a formal framework of competing interpretive traditions within American liberalism. Our analysis of Muslim amicus curiae briefs filed in the recent complicity-based conscience cases of Masterpiece Cakeshop v. Colorado (2018), ¹⁴ Bostock v. Clayton County (2020), ¹⁵ and Fulton v. City of Philadelphia (2021) ¹⁶ reveals that these arguments are animated by competing conceptions of liberalism, with one involving the pursuit of broad religious, cultural, and value pluralism (modus vivendi) and the other involving the pursuit of social cohesion, overlapping consensus, assimilation, and fraternité among diverse constituencies in a shared civil sphere (vivre ensemble).

Finally, this article contributes to several bodies of scholarship. First, we contribute to the emerging literature on complicity-based conscience issues by examining how one religious minority interprets this kind of controversy. Second, this article also provides Muslims with representation in a growing body of scholarship on religious amici in the United States. ¹⁷ Third, we add to the literature on the relationship between Islam and liberalism (or on the relationship between religion and liberalism more broadly) which, as mentioned above, has been largely focused on Rawls’s overlapping consensus framework to date. ¹⁸ To this last point, we examine an actual encounter ¹⁹ between Islam and liberalism that can ground what often amounts to abstract theorizing on the relationship and potential compatibility between religion and liberalism.

Theory

Normative works in the liberal canon (such as those presented by Locke, Mill, Rawls, and others) are distinct from theories about tensions within liberalism. Theories about what we may call varieties or modalities of liberalism have been identified by political and legal theorists since at least the mid-twentieth century. Here, we focus on frameworks that involve divergent understandings of liberalism as it pertains to the issue of social tolerance specifically (rather than, for example, different understandings of economic liberalism). ²⁰

One influential theory which identified a tension within liberalism on the question of tolerance specifically can be found in William A. Galston’s 1995 essay “Two Concepts of Liberalism,” in which he presents a framework containing two strands of liberal philosophy, which he labels autonomy and diversity. Galston uses those terms to reference competing interpretive traditions within liberalism, with autonomy referring to a tradition emphasizing individual self-determination and self-direction (as represented by John Locke, Immanuel Kant, and John Stuart Mill). By contrast, Galston uses diversity to mean a distinct liberal tradition that recognizes and seeks to accommodate “differences among individuals and groups over such matters as the nature of the good life, sources of moral authority, reason versus faith” and so forth. ²¹ Though Galston observes that the standard liberal hope is that these two frameworks will cohere, he maintains that they typically point in different directions regarding public policy and legal decision-making on disputed issues of cultural concern (such as those involving education, rights of association, and the free exercise of religion).

After providing a framework presenting a bifurcation within liberalism, Galston observes that many religious individuals and communities simply want to be left alone, and, as long as they comply with “shared liberal purposes” (such as the protection of human life), ²² he argues normatively in favor of liberalism as modus vivendi (a collection of different ways of life in which valuing individual autonomy over local or religious communitarianism is one possible mode of existence among others). His support for modus vivendi is also motivated by his observation that John Rawls’s concept of political liberalism fails to take diversity seriously enough. To Galston, Rawls unjustifiably limits the scope of pluralism to encompass only those citizens whose world views could be characterized as “reasonable” and that cohere with “the essentials” of a liberal democratic state. ²³

Another theory of competing varieties of liberal tolerance was presented by John Gray in his 2000 book Two Faces of Liberalism. ²⁴ There, Gray argues that one face of liberalism reflects the Enlightenment project’s effort to promote universal, cosmopolitan values—what he calls “political liberalism.” The other tradition Gray identifies as modus vivendi is a system that “aims to find terms on which different ways of life can live well together.” Gray emphasizes that this second face of liberalism does not attempt to be an ideal regime; instead, akin to what Galston noted about this modality of liberalism, modus vivendi is oriented toward facilitating basic coexistence between constituencies that disagree on fundamental values and who intend to live in accordance with different ways of life. ²⁵

Finally, in his 2015 book La possibilité du cosmopolitisme, Constantin Languille presents a framework incorporating two conflicting varieties of liberalism to explain the burqa controversies which made their way to the European Court of Human Rights that year. ²⁶ Under Languille’s framework, one variant of liberalism prioritizes self-determination (motivating those who supported the right to wear the burqa in public places). The other modality privileges social cohesion—what he calls vivre ensemble (living together on the basis of a set of shared social values and commitments). The government of France leveraged the concept to help justify its ban on public veiling before the European Court: “[t]he effect of concealing one’s face in public places is to break social ties and to manifest a refusal of the principle of ‘living together’ (le vivre ensemble).” ²⁷ We present this as an example of religious liberty being suppressed to the degree that it conflicts with prevailing or majoritarian societal values.

In this article, we employ a framework derived from this literature on varieties of liberalism to explain an observable divergence between Muslim amicus curiae arguments on recent complicity-based conscience issues. ²⁸ Though others have commented on different conceptions of liberalism at play in the interpretation of complicity-based conscience issues, ²⁹ we formalize a model of competing modalities of liberalism involved in complicity-based conscience cases and show how this framework contextualizes Muslim advocacy on both sides of these issues.

The framework we rely on derives from Galston and Gray’s articulation of modus vivendi and Languille’s vivre ensemble. ³⁰ Though importing a European concept into a discussion of American liberalism may seem lacking in relevance, we use the concept as a category intended to capture similar concerns expressed by American thinkers and addresses the cohesion paradigm at the heart of Smith and Rawls’s overlapping consensus tradition. ³¹ We thus present vivre ensemble and the cohesion principle it represents as a major alternative to the modus vivendi tradition of liberal tolerance, which is less concerned with facilitating cohesion and more concerned with constructing minimal conditions of basic coexistence, in order to broaden the landscape of beliefs and ways of life as much as possible. For our purposes, this is a formal distinction intended to emphasize a tension between two interpretive traditions within liberalism regarding religious liberty and the accommodation of diverse constituencies.

Modus Vivendi

Arguments that reflect the modus vivendi modality of liberalism presume that, as Galston and Gray maintain, different ways of life are incommensurable. Modus vivendi seeks to accommodate maximal differences among individuals and groups “over such matters as the nature of the good life, sources of moral authority, reason versus faith” and so forth. ³² As it applies to religion, the presumption of incommensurability extends not only to private belief and practice, but also to overt manifestations of faith in the public sphere. Accordingly, modus vivendi is less concerned about facilitating cohesion than erecting conditions for basic coexistence and, as one celebrated political theorist adeptly observed, a regime focused on accommodating maximal diversity “brings an end to persecution [but] is not a formula for social harmony.” ³³ Thus, where rights claims collide in a pluralistic society, modus vivendi does not presume that religious liberty claims should defer to competing rights claims provided under general laws.

Vivre Ensemble

Alternatively, the vivre ensemble modality of liberalism is oriented toward the facilitation of social cohesion under shared moral attitudes and viewpoints. According to this vision of liberalism, government neutrality toward religion means minimizing available religious exemptions to generally applicable laws (as seen in Smith). Under vivre ensemble, religious liberty is limited to expressions that do not contravene facially neutral laws (even if applying those laws has a disparate impact on traditional religious minorities), and it is often understood to pertain exclusively to the realm of private belief and practice.

Observations

We proceed by examining the patterns of reasoning presented in amicus curiae briefs filed or joined by Muslims in support of litigants on both sides of complicity-based conscience disputes at the US Supreme Court. ³⁴ The presence of Muslim amici was observed in three recent cases: Masterpiece Cakeshop, Bostock, and Fulton, outlined in table 1.

Table 1. Muslim amicus curiae briefs in support of litigants on both sides of Masterpiece Cakeshop v. Colorado Civ. Rts. Comm’n (2018)

In Masterpiece Cakeshop, a same-sex couple requested that the owner of a Colorado bakery, Phillips, design and create a cake for their wedding. The owner refused because of his religious conviction against same-sex marriage. The same-sex couple then filed discrimination charges against Phillips with the Colorado Civil Rights Commission, alleging discrimination based on their sexual orientation—a protected class under Colorado’s public accommodations law. Though the Supreme Court circumvented the heart of the matter—the issue of whether a law can compel a proprietor to create a message in contravention of his or her religious conviction (holding instead that the relevant Colorado ALJ failed to apply the law in a neutral manner toward Phillips)—amicus arguments, including those filed or joined by Muslim parties, directly addressed the substance of this complicity-based conscience dispute. ³⁵

Imam Omar Ahmed Shahin

Imam Omar Ahmed Shahin joined a brief in support of Phillips. ³⁶ There are three components to the brief’s argument. First, Abrahamic religions often consider vocation to be an expression of faith. The argument points to Islamic belief in particular: “Islam regards it as meaningless to live life without putting [one’s] faith into action and practice,” that believers should weave “everyday activities and their beliefs into a single cloth of religious devotion.” ³⁷ Analogously, the argument continues, we would not compel a Jewish merchant to sell a cheeseburger or a Muslim butcher to offer pork products—whether as a part of their regular business (i.e., off the shelf) or as a custom (i.e., off-menu) item, as the distinction was drawn by some justices in Masterpiece Cakeshop. ³⁸ In those circumstances, Imam Omar Ahmed Shahin maintains, we recognize that there is an intimate connection between religious conviction and outward ways of conducting one’s affairs.

The second component of this argument places religious objections to same-sex marriage within the sphere of protection announced by the majority opinion in Obergefell v. Hodges (specifically by what has been called the “Obergefell promise,” that religious organizations and individuals would remain secure in their right to believe, teach, and express their sincere religious conviction that same-sex marriage should not be condoned). ³⁹ Robust value pluralism, this brief maintains, requires that any one view about same-sex marriage does not dominate over particular religious views to the contrary. Value pluralism is protected when, for example, Orthodox Jewish and Qur’anic prohibitions on same-sex marriage (believing that marriage is a sacred bond between a man and a woman) do not face potential civil or criminal penalties.

This leads to the authors’ third point, that Colorado’s antidiscrimination law, as applied to merchants like Phillips, foists an unacceptable dilemma upon religious constituencies, who are either compelled to create a message that celebrates a union that violates their sincerely held beliefs, or they disobey the relevant law and face penalties. ⁴⁰ Laws that force this decision upon believers, they argue, is a de facto religious test which, under Lukumi Babalu Aye v. City of Hialeah, need not be overt to violate the Free Exercise Clause. ⁴¹ The argument concludes by differentiating between government circumscribing conduct based on racist beliefs in the public sphere and compelling the violation of traditional religious beliefs about marriage which, the authors maintain, are “based on decent and honorable religious or philosophical premises” and are central to religious identity among a community of believers. ⁴²

Muslims for Progressive Values

The second brief was joined by Muslims for Progressive Values and Muslim religious leaders. ⁴³ The logic presented in this brief contrasts with Imam Omar Ahmed Shahin’s (which prioritizes religious objections to creating messages in contravention of sincerely held beliefs over the enforcement of generally applicable anti-discrimination laws). Here, Muslims for Progressive Values prioritizes the interests of minority groups protected by antidiscrimination laws over the interests of traditional religious constituencies. While Imam Omar Ahmed Shahin considered the issue in Masterpiece Cakeshop mainly to involve the First Amendment, the authors of this brief consider the issue to be primarily about discrimination against protected minorities.

This argument has two prongs. First, upholding religious liberty and protecting religious pluralism in public requires “evenhanded civil rights enforcement that declines to give special status to any one set of religious views.” ⁴⁴ In other words, no religious viewpoint or conviction should be exempt from general civil rights law enforcement. Second, compelling Phillips to create a cake for a same-sex wedding would not infringe on the rights of “religious people … to determine what and who satisfies the requisites for practice of their faith” when dealing with matters of belief and internal religious organizational standards, say, in a synagogue, church, or masjid. ⁴⁵ Although religious constituencies have latitude to determine how their religious beliefs about marriage, for example, are implemented in the privacy of their own communities, they are not exempt from civil rights enforcement in the public sphere when their beliefs conflict with generally applicable and neutral laws.

Further, unlike the argument joined by Imam Omar Ahmed Shahin (which distinguished the exemption Phillips was seeking from acts of racial discrimination), Muslims for Progressive Values and their co-authors contend that there is no meaningful distinction between the refusal of service based on Phillips’s objection to same-sex marriage and the refusal of service based on objections to serving persons of a certain race. ⁴⁶ Allowing Phillips to opt out of creating a wedding cake for a same-sex couple because of a religious objection to same-sex marriage would be tantamount to providing Phillips with a license to opt out of generally applicable legal rules designed to protect against certain forms of discrimination and that have “little or nothing to do with his actual religious exercise.” ⁴⁷

Muslim Advocates

The last brief joined by Muslim authors in Masterpiece Cakeshop features several Muslim advocacy organizations, including Muslim Advocates, Muslim Alliance for Sexual and Gender Diversity, and Muslim Public Affairs Council. ⁴⁸ Like Muslims for Progressive Values, Muslim Advocates and their co-authors frame the dispute in Masterpiece Cakeshop as an instance of invidious discrimination against a protected minority, rather than as a collision of two competing but otherwise legitimate rights claims and argue that the Court should not provide the requested religious exemption. ⁴⁹ As these amici maintain, Phillips’s refusal to create a cake for a same-sex wedding (what they interpret as a denial of service rather than a refusal to express a message in contravention of his religious views on marriage ⁵⁰) is akin to a shopkeeper denying service to a customer because of the customer’s racial or religious identity. ⁵¹ It is immaterial that Phillips is seeking an exemption to Colorado’s general antidiscrimination law on religious grounds, they explain, because the Free Exercise Clause “does not allow religious believers engaged in activities open to the public to thwart generally applicable anti-discrimination laws.” ⁵²

Supporting their argument that the Court should not provide a religious exemption from the relevant law, Muslim Advocates and their co-authors make a second point: enforcing antidiscrimination laws without exemption is necessary not only to protect vulnerable minorities in general but also to safeguard the rights of religious minorities in particular. ⁵³ Religious minorities, amici observe, rely on antidiscrimination laws for protection, ⁵⁴ and if those laws are not enforced uniformly, “individuals or groups who are outside the mainstream would not be able to fully participate in civil society and would be vulnerable to targeting.” ⁵⁵ Accordingly, as Muslim Advocates maintains, permitting a religious exemption in cases like Masterpiece Cakeshop would “harm the cause of religious liberty” by undermining statutory protections that benefit religious minorities. ⁵⁶

No matter that some religious minorities in the United States, including Imam Omar Ahmed Shahin, consider their religious interests to be best protected by exemptions from general laws that would otherwise in some cases require them to express views or act in ways that contradict their beliefs about marriage; to Muslim Advocates, protecting minorities in general and religious minorities in particular requires maintaining a “secular public sphere” by rejecting requests for religious exemptions from general laws. ⁵⁷

Below we present the amicus curiae arguments filed or joined by Muslim parties on Bostock v. Clayton County and Fulton v. City of Philadelphia, as outlined in tables 2 and 3, respectively. Our analysis of the arguments presented in Masterpiece Cakeshop, Bostock, and Fulton follows.

Table 2. Muslim amicus curiae briefs in support of litigants on both sides of Bostock v. Clayton Cnty., GA (2020)

Table 3. Muslim amicus curiae briefs in support of litigants on both sides of Fulton v. City of Philadelphia (2021)

At the Supreme Court, Bostock was consolidated from cases that came up through the Eleventh, Second, and Sixth Circuits involving disputes in which gay or transgender employees were terminated by both private and government employers. ⁵⁸ The question presented was whether the language of Title VII of the Civil Rights Act of 1964 protected employees from termination because of their sexual orientation.

American Islamic Congress

The brief for Bostock was filed by the National Association of Evangelicals and joined by, among other groups, the American Islamic Congress. ⁵⁹ The brief was authored in support of the employers, and the logic presented focuses on the dignitary harms that would be inflicted on certain religious employers if the Supreme Court extended Title VII’s protections to include gay and transgender identities without providing accompanying exemptions for religious objectors. ⁶⁰

Like Imam Omar Ahmed Shahin’s brief in Masterpiece Cakeshop, the American Islamic Congress and their co-authors appeal to the “Obergefell promise” (“it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned”) as a basis for justifying the requested religious exemption. ⁶¹ They argue that those whose religious commitments reflect “fundamental and long-standing doctrines holding that sexual relationships are divinely sanctioned only between a man and a woman who are married,” like amici and other religious organizations, will be unable to comply with nondiscrimination laws that require the recognition of expansive conceptions of sexual orientation and gender identity. ⁶²

Further, these amici argue that religion doesn’t only pertain to private belief, but it also involves rules of personal conduct that extend into one’s vocational pursuits. As they write, “religion includes how one lives, not merely what one believes [and, consequently,] a religious employer cannot form a workplace that truly reflects its faith unless it has the legal right to make employment decisions based on shared religious beliefs and compliance with those beliefs.” ⁶³ If the Court were to construe the term sex in Title VII broadly to include expansive conceptions of sexual orientation and gender identity, these amici argue, religious individuals seeking to affirm traditional conceptions of sex, gender, and marriage in the workplace would be compelled to violate their beliefs. Thus, to the American Islamic Congress, expanding Title VII without providing accompanying religious exemptions would unjustifiably constrain religious liberty and “threaten the free exercise rights and institutional integrity of religious employers.” ⁶⁴

Islam & Religious Freedom Action Team and Islamic Scholars

The next brief joined by Muslim parties in Bostock was filed by the Religious Freedom Institute’s Islam & Religious Freedom Action Team and two Islamic scholars, Abdullah Bin Hamid Ali and Sheikh Mohammed Amin Kholwadia. ⁶⁵ Like the American Islamic Congress, these amici argue that broadening Title VII’s definition of sex to include expansive conceptions of sexual orientation and gender identity without providing accompanying exemptions for religious objectors would suppress religious liberty, because traditional religious employers would be obligated to comply with a law that, though facially neutral, would require them to operate their businesses in ways that violate their religious beliefs about sex, gender, and marriage. ⁶⁶ Implied in their argument is an understanding of religiosity that includes ways of conducting one’s public life together with private belief and worship.

To support their claim that there is a rift between prevailing societal attitudes about expansive sexual orientation and gender identity norms (which are reflected in the proposed expansion of Title VII) on the one hand, and the views of traditional religious constituencies on the other, ⁶⁷ these amici offer several examples of particular Islamic beliefs about sex, gender, and marriage which center on the ideas that God created human beings as male and female, that sex is binary, fixed, and immutable, and that Muslims must observe privacy norms as a matter of religious obligation. ⁶⁸ The authors point to Qur’an 24:31, ⁶⁹ the concepts of ihtisham (chastity), hijab (modesty), the seclusion of the sexes in certain social settings (khalwa), and distinctions between the male and female sexes. ⁷⁰ If the scope of Title VII were expanded, these amici argue, observant Sunni Muslim employers would “face [either the] compulsory contradiction of their fundamental religious conviction[s] or [the] abandonment of the business or vocation to which they feel called.” ⁷¹

The Islam & Religious Freedom Action Team and Islamic Scholars conclude by presenting a counterpoint to the issue at hand. In most cases, they maintain, observant Muslims in the United States find ways to practice their faith without resorting to the legal system to coerce non-Muslims to accommodate their customs. ⁷² For example, Muslim women who wear the hijab cannot receive hair services from most American salons because these businesses do not provide the degree of privacy required by the established rules of Islamic law (in the typical American hair salon, stylists or other customers may be male). ⁷³ In order to live in accordance with their religious convictions about gender mixing (and without trying to coerce others to accommodate their customs), these Muslim women have opted to open their own hair salons, spas, and beautician services catering exclusively to observant Muslim women. As these amici suggest, coexistence in this context would be hampered by compelled integration: to require Muslim women’s salons to hire or serve men would be an affront to the dignity of doctrinally observant Muslim constituencies in the United States who take seriously their commitment to established rules of Islamic law on sex, gender, and marriage.

Muslim Bar Association of New York

The third brief in Bostock was presented solely by Muslim parties, including the Muslim Bar Association of New York, Muslims for Progressive Values, and Muslim Advocates. ⁷⁴ It differs from the first two in terms of its reasoning and reflects a different conception of liberal tolerance—one that seeks to minimize exemptions from general laws, even when those laws enshrine and enforce views about sex, gender, and marriage that are incompatible with certain religious commitments.

This argument proceeds in two parts. First, its authors provide a plain meaning argument, in which they assert that Title VII prohibits discrimination on the basis of sex, sexual orientation, and gender. ⁷⁵ Discrimination based on sex as provided in the statute, they argue, entails discrimination on the basis of sexual orientation and transgenderism. As the authors note, “When an employer discriminates against an employee on the basis of … sexual orientation or transgender status, the employer necessarily consider[s] the employee’s sex—even if that is not its sole (or even principal) consideration. This is because sexual orientation and transgender status are defined in terms of sex.” ⁷⁶ In other words, the authors argue that the language of Title VII necessarily extends to protections for sexual orientation and transgender status.

Second, beyond protecting LGBT employees from discrimination, the Muslim Bar Association of New York and its co-authors argue that including sexual orientation and transgender categories within the purview of Title VII is necessary to protect religious minorities who are subject to a disproportionate amount of workplace discrimination (notwithstanding that religion is already an enumerated category under Title VII). ⁷⁷ They argue that Title VII protections benefit all marginalized groups (including LGBT and Muslim individuals in the United States) ⁷⁸ and that, by strengthening protections for vulnerable groups in general, Muslims will also be protected from invidious discrimination.

The amicus curiae arguments filed or joined by Muslim parties on both sides of Fulton v. City of Philadelphia are outlined in table 3.

Fulton v. City of Philadelphia arose out of a dispute between a Catholic foster care organization and the City of Philadelphia in which the organization Catholic Social Services chose not to certify unmarried couples or same-sex couples as foster parents because it believed that doing so would violate their sincere religious beliefs about marriage and sexual orientation. ⁷⁹ In response, Philadelphia froze its referral of foster children to Catholic Social Services, arguing that the organization violated a local nondiscrimination ordinance and contractual nondiscrimination provisions in its agreement with the City.

Catholic Social Services claimed that it experienced anti-religious prejudice by Philadelphia. The City argued alternatively that Smith supported the City’s decision to terminate its relationship with Catholic Social Services because of the organization’s violation of nondiscrimination regulations, irrespective of its religious motivations. ⁸⁰ The complicity-based conscience issue at play in this dispute is clear: the Catholic organization’s decision not to comply with the relevant Philadelphia nondiscrimination regulations based on its religious convictions arguably resulted in harms to third-party beneficiaries of Philadelphia’s antidiscrimination laws (the same-sex couples who were seeking to adopt children through organizations like Catholic Social Services).

Islam & Religious Freedom Action Team and Asma Uddin

Writing in support of Catholic Social Services, the Islam & Religious Freedom Action Team and Asma Uddin advance a legal argument promoting a broad conception of religious liberty in which protections must be provided to minority, insular, and unpopular forms of religiosity. ⁸¹ Many of these forms of religiosity go beyond private belief and practice (what they call a “myopic conception of religious life” that few religious practitioners would actually defend) to include ways of life that often manifest in personal, though publicly visible commitments. ⁸² Amici argue that protecting the religious liberty of minority groups like the Amish, Sikh, and Muslim communities in the United States (whose views and ways of life are unpopular and often unfamiliar from the vantage point of majorities) requires overturning the Smith framework, which departed from prior First Amendment doctrine and continues to unduly constrain the scope of permissive religious self-direction. ⁸³

Their argument against the Smith framework proceeds in three parts, each showing how alternatives to overruling Smith would be suboptimal in the pursuit of protecting robust religious liberty. First, amici contend that efforts to secure religious exemptions under Smith often succeed only where there is a corresponding secular purpose being pursued. ⁸⁴ They point to cases like Fraternal Order of Police v. Newark, in which Muslim police officers pursued exemptions from a policy which forbid beards. ⁸⁵ Amici argue that the Muslim officers’ victory in that case hinged on a preexisting medical exemption for officers with certain skin conditions, and that protections for minority religions should not depend on a corresponding secular exemption.

Second, they argue that legislative efforts to undermine the Smith doctrine through federal and state religious freedom restoration acts (known as RFRAs) are inconsistent and do not adequately protect religious minorities from laws that compel them to violate their religious convictions. ⁸⁶ The federal RFRA only applies in disputes over federal law. There is variation among state RFRAs, and some states have even nullified their own versions of the statute. ⁸⁷ RFRAs are thus an inconsistent basis for protecting robust religious liberty.

Third, amici argue that targeted religious exemptions by legislatures are also unworkable because they are often too narrow in scope. ⁸⁸ They may also fail to anticipate all the religious objections that may arise in response to a single statute in a country home to myriad religious minorities. Such targeted religious exemptions also require the ability to effectively petition representatives, and religious minorities who may wish to petition their representatives and participate in the political process (especially those that are small, insular, or poor) may not have the funding or political capital necessary to garner legislative support. ⁸⁹

While each of these possible alternatives to overruling Smith would soften the doctrine in favor of broader religious self-determination, these amici argue that the alternatives do not do enough to protect religious liberty for religious minorities, dissenters, and insular groups who, they maintain, should be afforded the distinctive treatment and protection which the First Amendment entitles them to. ⁹⁰ Amici’s effort to overturn Smith presupposes a conception of liberal tolerance as something oriented toward maximizing religious dissent and diverse ways of life, reflecting a sanguine view of the messiness of civil society and a conception of religious pluralism in the liberal state as modus vivendi. It is predicated on the idea that, irrespective of what the prevailing consensuses of shifting majorities may be, constitutional religious protections are intended to protect minority beliefs and ways of life.

Muslims for Progressive Values

Writing in support of the City of Pennsylvania, Muslims for Progressive Values and their co-authors promote a different conception of religious liberty relative to the conception put forth by the Islam & Freedom Action Team and Asma Uddin. ⁹¹ To Muslims for Progressive Values, that Catholic Social Services’ requested religious exemption would result in dignitary harms to third parties (in this case, to same-sex couples seeking to adopt children through Catholic Social Services) is enough to justify denying the requested religious exemption altogether. In accordance with the Smith framework, though religious objectors may participate in public debate about specific laws and their applications, they cannot expect to circumvent generally applicable and neutral laws designed to protect third parties. ⁹²

These amici also argue that Petitioners should not be granted an exemption to the Philadelphia law at issue because the relevant law does not require Catholic Social Services to violate its beliefs about marriage, nor does it encroach on religion’s authority in its own domain (presumably referring only to homes and houses of worship). ⁹³ They also argue that the relevant law does not require religious constituents to believe anything in particular; it does not require that they express any particular viewpoint, nor does it compel Catholic Social Services to “religiously endorse” unions they find offensive. ⁹⁴ They grant no weight to Catholic Social Services’ contention that being required to certify same-sex couples for foster care would violate its religious convictions about something as sacrosanct as marital relations.

Finally, a point that Muslims for Progressive Values emphasizes is that religion is exceptionally diverse in the United States, and that many religious Americans interpret their beliefs in ways that do in fact cohere with expansive conceptions of sexual orientation and marital arrangements enshrined in civil rights laws. ⁹⁵ They support this point with references to public statements made by groups like the Evangelical Lutheran Church in America (“families are formed in many ways [including] where the parents are the same gender”) and by adducing surveys of American religious communities which reveal varying but broad support for expansive conceptions of sex, gender, and marriage. ⁹⁶

Based on these observations, Muslims for Progressive Values argues that it is in the interest of both protected minorities and religious communities that requested exemptions from anti-discrimination laws should be denied. ⁹⁷ To balance the competing interests in favor of Catholic Social Services’ requested religious exemptions would, they argue, eviscerate civil rights enforcement that benefits everyone: “the best way to ensure that all people retain the First Amendment right to speak, preach, pray, and practice their religious beliefs—including with respect to sexual orientation and marriage—is to prevent illegal discrimination in the civil sphere regardless of its basis.” ⁹⁸

Their proposed resolution to Fulton thus reflects a different conception of liberal tolerance relative to what the Islam & Religious Freedom Action Team presented. To Muslims for Progressive Values, constitutional religious protections are intended to secure private belief and practice. And though they argue that religious diversity is something to be protected, they do not believe protections should extend to conscience-based objections advanced by religious minorities (like doctrinally oriented Muslims, Catholic Social Services, and others) who do not wish to be complicit in the affirmation of sex, gender, and marriage norms that contravene their religious commitments.

Discussion

Members of the Muslim community have filed amicus curiae briefs in support of litigants on both sides of complicity-based conscience disputes that set the enforcement of equal protection laws against conscience-based objections to certain applications of such laws that conflict with doctrinal Islamic viewpoints on sex, gender, and marriage. The arguments presented in these briefs reflect two conceptions of liberalism, animated by the Muslim experience in the United States which pulls these groups in opposing directions.

Doctrinally Oriented Muslims and Modus Vivendi

In one approach, Muslims understand themselves as a traditional religious group with specific beliefs and practices that strain (if not outright contravene) emerging norms about gender, sexuality, and identity in general. That their views on culturally sensitive issues like marriage and gender identity may diverge from prevailing social norms is something that they believe should be protected in the interest of securing robust religious diversity. Accordingly, these doctrinally oriented Muslims view themselves as a part of the diverse American religious landscape, deserving of strong protections for their right to religious self-determination and coexistence with others. Like other conservative religious communities, they view the right to religious self-determination to involve overt ways of living along with private belief. Prioritizing self-determination of religious beliefs and ways of life when they conflict with prevailing societal norms is an example of understanding tolerance in terms of basic coexistence rather than cohesion, reflecting a conception of liberalism as modus vivendi.

For doctrinally oriented Muslim amici (like Islamic Scholars and the American Islamic Congress), the word Muslim cannot be denuded of Islamic beliefs and established doctrine, nor is Islam simply reducible to a concern for social justice. Instead, Islam is a set of substantive beliefs and ways of life, which include convictions about sexual relations and identity, and which Muslims must not repudiate in words or deeds to the extent possible. In their Bostock brief, the Religious Freedom Action Team & Islamic Scholars emphasized this view, that doctrinal Islam is defined by a set of specific customs and beliefs that are constitutive of believers’ religiosity, and which do not conform with the vision of sex and gender enshrined in the proposed expansion of the generally applicable Title VII provisions. In the interest of protecting their religious way of life, in support of robust religious pluralism, and against compulsion to be complicit in the violation of their convictions, this group argues that religious merchants should not be coerced into managing their organizations’ operations (including hiring) under expansive conceptions of sex, gender, and marriage that conflict with their own religiously grounded viewpoints on these topics.

Further, doctrinally oriented Muslims not only hold substantive beliefs regarding acceptable forms of gender expression and marital arrangements, but they also consider it a religious imperative not to promote views that contravene these beliefs. ⁹⁹ In light of the Islamic doctrine of “commanding the good and preventing evil,” Muslims must not be complicit in the promotion and furtherance of expansive gender identities and marital arrangements; general laws that compel Muslims to do so (or that fail to provide religious exemptions) require Muslims to violate this fundamental religious obligation. ¹⁰⁰

Finally, unlike their progressive ¹⁰¹ counterparts, doctrinally oriented Muslims do not view the Islamic community as coextensive with a marginalized minority group, nor do doctrinally oriented Muslims advocate for their political and legal rights through this construct. To them, the category Muslim cannot be reduced to a minority identity because Islam is believed to be a universal religion which includes, in the United States, adherents from an exhaustive cross section of society (including white and other Americans from privileged backgrounds that do not fit into the minority or other popular social justice and identity politics rubrics in use today). ¹⁰²

Progressive Muslims and Vivre Ensemble

In another approach, Muslims emphasize their identity as a minority group in the United States that, especially after September 11, 2001, has faced prejudice and feels a great deal of public and internal pressure to conform with wider American culture. To this end, Muslims align themselves with progressive groups that champion issues of diversity, inclusion, social justice, and the protection of minority rights in general. In their amicus curiae arguments, this group of Muslims emphasizes that their protection as a minority group depends on the uniform enforcement of equal protection laws.

By prioritizing uniform compliance with the equal protection paradigm over religious liberty-based objections, progressive Muslim amici offer a narrower conception of acceptable religious diversity relative to their doctrinally oriented counterparts, limiting protected religiosity largely to the realm of private belief and to those social practices that do not undermine expansive sex, gender, and marriage norms. For example, as Muslims for Progressive Values argues in Masterpiece Cakeshop, the Colorado Anti-Discrimination Act does not prevent Phillips from believing that marriage is a sacred union between a man and a woman or to express that belief in public or private, ¹⁰³ and any penalty imposed as a result of Phillips’s refusal to create a wedding cake for a same-sex couple does not encroach on his right to hold, express, or privately practice his understanding that marriage is limited to the union of one man and one woman. Even if Phillips were compelled to create a message in contravention of his beliefs, they argue, he would remain able to believe what he wants, express his views, and put his own understanding of marriage into practice in his own life. That Phillips does not wish to be complicit in creating a message in celebration of a conception of marriage he disagrees with is not considered to warrant protection. ¹⁰⁴

Thus, the logic presented in the arguments advanced by progressive Muslim amici is rooted in the idea that religious liberty is only protected where it involves private belief and practice, or public expressions and ways of conducting one’s professional pursuits that cohere with prevailing sex, gender, and marriage norms. This is liberalism as vivre ensemble. To define acceptable religious diversity in this way narrows the scope of legitimate religious pluralism by crowding out certain traditional religious constituencies, such as the doctrinally oriented Muslim communities described by the American Islamic Congress, for whom the focus on private belief ignores conceptions of religiosity, common among these Muslims, that prioritize “how one lives” ¹⁰⁵ and for whom a strong distinction between belief and overt ways of living is foreign.

In sum, rather than a contest between liberal and illiberal frameworks, both doctrinally oriented Muslims and progressive Muslims are interested in the core liberal value of government neutrality toward religion as a fundamental aspect of liberal tolerance and present their arguments within a broad framework of American liberalism and constitutional jurisprudence. At the same time, they appear to diverge over how they interpret government neutrality and the proper scope of religious liberty. If one holds a conception of liberalism as “a sanguine view of the messiness of civil society” ¹⁰⁶ or “an open clash between earnestly held ideals and opinions about the nature and basis of the good life,” ¹⁰⁷ expecting only basic coexistence among heterogenous constituencies (modus vivendi), then one may prioritize claims for religious exemptions from general laws that require violations of religious conscience. Alternatively, if one holds a conception of liberalism as an effort to facilitate cohesion under a set of ostensibly universal attitudes and values (vivre ensemble), then complicity-based conscience claims will be balanced against religious claimants, constraining the scope of acceptable religious diversity.

Conclusion

Scholarship on the relationship between Islam and liberalism in America post 9-11 has largely relied on Rawls’s framework to evaluate the prospect of coherence between Islamic theological doctrine and liberalism. One issue with this project is that establishing consistency between Islamic doctrine and the essentials of a liberal state hinges on how liberalism’s essentials (such as government neutrality toward religion) are understood. As we have shown here, diverging positions taken by Muslims on complicity-based conscience cases are driven, at least in part, by different understandings of liberalism and its objectives. Another issue is that, if an overarching concern with perceived or real prejudice toward Muslims is a motivational force for such inquiries, the treatment of liberalism will be biased toward finding overlapping consensus with other groups and promoting social cohesion, at the expense of other possible solutions within liberal theory (such as simultaneously advocating for protection from discrimination and maximizing value pluralism in society).

Liberalism began as a search for modus vivendi, as Gray contemplated in his Two Faces of Liberalism, ¹⁰⁸ a search that began after the Thirty Years’ War (1618 to 1648)—a conflict between Catholics and Protestants that decimated roughly 30 percent of Germany’s population at the time. It was a search that sought to accommodate the brute fact of religious difference and the plain observation that people were willing to engage in conflict rather than abandon their values, world views, and ways of living. The liberal solution as an effort to “turn down the temperature of politics” ¹⁰⁹ centered, in part, on government neutrality toward diverse religious communities, whose values and ways of life were presumed to be incommensurable. Predicated on a posture of neutrality, liberalism ultimately refracted into two competing faces or modalities based on how neutrality toward religion was understood. One of these modalities has been called modus vivendi, a framework of neutrality that seeks minimal conditions for basic coexistence and broad tolerance for diverse ways of life. Another modality of liberalism, what we have here called vivre ensemble, is an effort to pursue neutrality toward religion not by considering different ways of life to be incommensurable, but instead through the uniform enforcement of neutral laws of general applicability, which seek to minimize exemptions from such laws for religious objectors.

The perhaps perennial tension in American liberalism between the pursuit of deep diversity of religious, cultural, and value pluralism on the one hand, and the pursuit of social cohesion and assimilation on the other is a contest between two competing visions of liberal pluralism, a tension which reemerged in the context of complicity-based conscience disputes at the United States Supreme Court. Among Muslims, these competing modalities of liberalism animate, at least in part, their support for litigants on both sides of cases that threaten to set orthodox Islamic doctrine against a prevailing equal protection paradigm regarding sex, gender, and marriage norms.

Far from requiring Rawls’s overlapping consensus ex ante, the amicus curiae briefs surveyed here reveal that Muslims are active participants as Americans in an ongoing negotiation over what liberal values include, how they should be interpreted and prioritized, and how such values should apply to the adjudication of contemporary disputes. Given the emergence in recent legal debates of Muslims whose arguments focus on traditional Islamic doctrine as the main feature of what it means to be Muslim, the modus vivendi approach to the complicity-based conscience issue is likely to be adopted and developed by such groups as an appropriate framework for advocacy within a commitment to American liberalism, as distinguished from the current predominance of a progressive, minority identity group framework among Muslim advocacy organizations.