Austin Dacey & Colin Koproske Reply

Dissent (Summer 2011), posted with permission

We are grateful for the historical and constitutional perspective that William Galston brings to his stimulating response. He does not dispute our charge that the present regime of religious accommodation rests on philosophically unsound arguments. Instead, he says this is irrelevant because “a philosophical question is not the same as a constitutional question.” But surely we should prefer a constitutional order based on defensible assumptions to one based on indefensible assumptions. If something like Eisgruber and Sager’s Equal Liberty approach is justified, then such an understanding of our constitutional order is available to us.

We argued against accommodation not just on philosophical grounds, but on the legal and moral grounds that it conflicts with the Establishment Clause, treats citizens unfairly, and violates individual rights. Equal Liberty insists that the treatment of religious practice under the law must be guided by principles of nondiscrimination, neutrality, and general liberty that apply to all citizens. By putting equal rights first, it interprets the Free Exercise norm in a way that protects the legitimate freedoms of the religious without privileging any claims of conscience simply because they are associated with “religion.” Thus, Equal Liberty brings greater coherence to the constitutional treatment of religion.

Galston fails to offer an alternative that addresses the problems of fairness and individual rights. He sees the wisdom in extending the zone of accommodation to secular moral claims in the Seeger and Welsh cases, citing the (suspiciously philosophical) rationale that in these cases, the convictions of conscience impose “binding obligations” that “shape individual identity.” Why won’t he follow us to the conclusion that the law should reflect the non-religious rationale for accommodation? Because, he says, “religion provides the paradigm for that zone.” This is not unlike saying that combat roles in the military should be denied to women—instead of being denied to anyone who is not combat-ready—because men provide the paradigm of combat-readiness. We well recognize that religion has a traditional monopoly on claims of conscience. That is precisely the problem.

There is little comfort in the assurance that the courts have been “perfectly capable of distinguishing legitimate and counterfeit conscientious claims.” With so many blanket, presumptive exemptions for those who claim affiliation with a mainstream religion, there is not nearly enough distinguishing going on. There is no reason to think that equality-based alternatives must run afoul of Scalia’s anarchy of conscience. The genuine worry over anarchy is that the “compelling state interest” standard is too high, not that we cannot distinguish between those citizens who deserve some relief from a burdensome law and those who do not. We do distinguish, and we must. But we must not do so merely in virtue of traditional religious affiliation.

The merits of an approach like Equal Liberty do not depend on its faithfulness to Madison. However, a plausible case can be made that Madison’s thought contains the resources to support it. His 1785 “Memorial and Remonstrance” attacked Patrick Henry’s proposed Religious Assessment Bill, which would have dedicated tax monies to the support of Christian denominations. Madison argued that in virtue of their natural rights, citizens retain “equal title to the free exercise of Religion according to the dictates of Conscience” (emphasis in the original):

Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle, by granting to others peculiar exemptions.

The Framers’ attention to “Religion” was a wise response to the circumstances of their historical moment: the fresh memory of reli- gious war and the social necessity of presenting arguments persuasive to Protestant lawmakers. With the maturation of toleration and the proliferation of new ideologies, both religious and secular, this moment has passed. If we read Madison’s “Religion” so as to include only traditional theistic communities, then Seeger-style expansions would be anti-Madisonian. The alternative is to take Madison to be concerned with the space of liberty of conscience in which citizens pursue questions of ultimate meaning and value, a
domain that in his time happened to be roughly coextensive with the ranks of the major faith communities.

Call us unfaithful Madisonians, but we would like to think that the framers, in their unswerving attention to legal equality for minority viewpoints, would have responded to the astonishing and unpredictable explosion of religious and moral pluralism since 1785 by recognizing that the fundamental ideal at stake is not the freedom of the God-fearing but of all persons of conscience. We may owe to God our eternal obedience, but what we owe to each other is equal liberty.