Against Religious Freedom

Austin Dacey & Colin Koproske
Dissent (Summer 2011), posted with permission

Controversy in the summer and fall of 2010 over plans for the construction of an Islamic community center in New York City near Ground Zero reminds us that America's legacy of religious freedom is by no means settled. Debates about the proper limits of religious freedom don’t arise only with respect to new Muslim populations. Even as conservative Christians seek to restrict Muslims' freedom, they allege that their own freedom is under threat from aggressive secularism: school administrators are infringing students' rights to pray and discriminating against creationist biology teachers. And atheists argue that their rights are violated when they are compelled to recite the Pledge of Allegiance.

As disparate as these views may be, they agree on the importance of religious freedom. And yet few of us have thought through its real meaning and implications. In fact, there are two quite distinct ideas that fly under the banner of "religious freedom." The first is that people have the right to practice a faith, consistent with the rights of everyone else. We think this is vital and unassailable. However, as we will contend, it is misleading to label this idea "religious freedom." The second idea is that religions deserve some special accommodations under the law that are not available to comparable secular institutions or commitments.

Traditionally cherished and unquestioned though it may be, this latter notion of religious freedom is philosophically unsound, legally incoherent, and morally indefensible. To make real progress in the conversation about church and state, we must give it up.

Paradoxes of accommodation

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The religion clauses of the First Amendment to the U.S. Constitution were perhaps the boldest and most novel assertions of the American experiment. Their formulators, Thomas Jefferson and James Madison, hoped "to keep forever from these shores the ceaseless strife that has soaked the soil of Europe with blood for centuries," as Madison put it. Neither man foresaw that the Free Exercise clause would come to mean what it does today: the "accommodation" of religion by granting practitioners a presumptive right to violate otherwise valid laws.

This is a relatively recent development. The seminal 1963 case Sherbert v. Verner concerned unemployment compensation for Adell Sherbert, a Seventh-day Adventist who was denied benefits under South Carolina law because she refused to take available suitable jobs. Sherbert felt religiously bound to reject such jobs because they would require her to work on Saturday, her Sabbath. The Court ruled in favor of Sherbert, granting her an exemption to the state law. This case, together with the 1972 decision in Wisconsin v. Yoder, set a far-reaching precedent: free exercise of religion entails that religiously motivated persons may disobey a valid and generally applicable law unless the government can demonstrate, first, that there is a "compelling state interest" in enforcing it and, second, that there is no alternative, less burdensome legislative means of pursuing this interest. In practice, this is a tall order, because a compelling state interest is considered more powerful than a merely "rational," “important," "valid," or "legitimate" purpose.

The 1980s and 1990s saw a series of judicial and legislative twists and turns, pivoting on the controversial 1990 case Employment Division v. Smith and the legislative backlash against it in the form of the federal Religious Freedom Restoration Act and similar state-level laws. Today, many areas of law in many states still operate within the Sherbert-Yoder framework. Statutory and case law tends to grant presumptive exemptions to the religious, typically making no provisions for those nonreligious individuals who might be substantially burdened by a law on account of their moral convictions.

A survey of federal and state laws conducted about a decade ago found that more than two thousand statutes of all kinds provide for so-called religious exemptions. For example, in numerous states, religiously affiliated child care providers are exempt from many of the regulations—such as minimum staff-child ratios and training standards—that apply to their secular counterparts, despite the fact that the religious day care centers may receive federal subsidies. In addition, many states exempt religious organizations from paying property taxes even as they collect property taxes from secular non-profits. The law often defines religious uses of property broadly, qualifying everything from churches to commercial parking lots and multimillion-dollar "parsonages" with golf-course views. Religious exemptions are not just unfair. They can be deadly. Dozens of states provide exemptions from criminal prosecution for child abuse or neglect by members of faith communities that engage in “faith healing”— Christian Scientists among them—and whose children suffer or die while under their care.

A regime of religious freedom gives favorable treatment to some people not because they have a weightier claim but because they claim a particular identity. If the courts were to apply the compelling state interest standard robustly and consistently, then religious organizations and individuals would be free to disregard a significant swath of zoning, environmental, tax, and other law. We would be left with a system, as the Supreme Court put it in Smith, “in which each conscience is a law unto itself.”

The legal quandary goes deeper, right to the core of the constitutional order. Church-state separationists, of course, want to uphold the Free Exercise Clause, but also the so- called Establishment Clause. And yet the Establishment Clause stands in tension with the Free Exercise Clause, interpreted as a protection of religious freedom. The Establishment Clause, as currently understood, forbids government from disfavoring or favoring religion as such. But by conferring special benefits on religion in the form of presumptive exemptions, the government is favoring it, in violation of the Establishment Clause. No wonder, then, that an increasing number of constitutional scholars are calling for an end to the special treatment of religion.

What is so special about religion?

Before considering a constructive alternative to religious freedom let us examine its motivation. Why would one think that religion deserves special protection by the state? Suppose someone were to propose a basic constitutional right to literary freedom, the right of writers to put on paper whatever they wish. Two problems would immediately be obvious. First, the freedom to write is already protected as it is a subset of more general freedoms that are guaranteed to everyone, such as the freedom of expression. Second, if the idea instead is that writers get some kind of additional assistance not already received by everyone, then the following question arises: what is so special about writing—as opposed to painting, cooking, or volunteering for charity—that it deserves to be singled out for favorable treatment from government? In a liberal democracy, the government works to ensure that all people enjoy a certain sphere of personal liberty and privacy in which they can do what they want. It does not give special treatment to those who use that liberty and privacy to write instead of cook. So, while everyone gets the freedom to write, no one gets literary freedom.

Although it is more familiar, religious freedom makes about as much sense as literary freedom. This is overlooked because we are so accustomed to thinking of religious freedom as a unique and basic right. But the free exercise of religion should be seen as one manifestation of more fundamental rights held by all people, religious and secular alike: private property, personal autonomy, freedom of expression, freedom of association, and perhaps most important, freedom of conscience—the right to make up our own minds on moral and spiritual questions. Some people exercise these rights by being observant Christians, Jews, Sikhs, Hindus, or Muslims. Others exercise them by being Marxists, existentialists, secular humanists, or devotees of self-help psychology. Still others remain uncommitted.

A number of scholars and public intellectuals have argued that religion is special; that among all the possible manifestations of our fundamental freedoms, it stands apart by its very nature and therefore deserves unique treatment. But they all fail to show that there is something about a religious exercise of conscience that makes it more worthy of state solicitude than a secular exercise of conscience.

Three families of arguments loom large in the literature. Remember that a successful case would have to apply only to religion. It could not apply equally to political or other secular commitments, but to all religions, reasonably defined. If not, it would only prove that particular religious communities deserve special protection. And finally, it would have to illustrate that the distinctions it cites are relevant to political rights.

One family of arguments maintains that religion, or some characteristic of religion, is an important good that warrants special considerations in law and government. In this vein, legal philosopher Timothy Macklem argues that faith, understood as “a mode of belief distinct from reason,” provides “a way to come to terms with the unknowable where to do so is necessary to human well-being.” Yet this way of knowing, whether it is explained in terms of a priori intuitions or basic beliefs not arrived at by inference, is too narrow to capture all religious commitments—see Aquinas, Maimonides, and Ibn Rushd (Averroes) on the indispensible role of reason. At the same time, it is too broad to rule out important nonreligious commitments—see Hobbes, Hume, and Mill on the place of desire and value in the foundations of secular ethics.

But insofar as “faith” is distinctive of religion, why should we think that the state has a legitimate duty to subsidize it? Shouldn’t we rather be wary of the public dangers posed by beliefs that are nonnegotiable and unresponsive to evidence, as the philosopher Brian Leiter has observed?

Another candidate for a public good inherent in religion is the search for “ultimate meaning.” Martha Nussbaum writes that “religion merits special deference from the liberal state, given its central importance to citizens in the search for meaning.” This conception of religion succeeds at excluding some secular pursuits, such as playing baseball or day-trading, and points to some- thing that most of us do care deeply about. But like the argument from faith, it is too broad to exclude all secular pursuits. We know of no reason to think that believers’ search for meaning is necessarily more profound than that of their unbelieving counterparts. Nussbaum’s argument serves better as a defense of “liberty of conscience”—not accidentally the title of her recent book on religious freedom, a liberty that belongs to all citizens.

A second family of arguments for religious specialness maintains that religious belief is an exceptionally binding kind of commitment, central to the believer’s integrity. Treating citizens fairly means understanding and respecting such commitments. This suggestion has been developed impressively in the writings of William Galston and Michael Sandel, who emphasize that religious beliefs are not regarded by believers as optional but rather as unchosen commitments that are constitutive of their identity. This line of thought draws our attention to three features that a commitment might have: it is regarded as a categorical obligation rather than a mere preference; it was not voluntarily adopted; and it is essential to a person’s identity. But we must be careful not to overstate the presence of these features in religious commitments or their absence from secular commitments.

Clearly, the Muslim police officer who refuses on religious grounds to shave his beard to comply with police force regulations is acting under an obligation in a way not true of the officer who simply wants to make a fashion statement. But from the fact that some secular claims express mere preferences, it does not follow that all do. It would be perverse to conclude that the commitment to racial justice of Andrew Goodman and Michael Schwerner—murdered for their civil rights activism during Freedom Summer—was not sufficiently “binding” because it sprang from secular attitudes.

At the same time, it is not a necessary condition of a religious practice that it is regarded as inescapable. A self-identifying Catholic might recognize that as a Catholic she has a duty to attend Sunday Mass, while at the same time affirming other identities—as friend, colleague, mother, or life partner—that generate their own, conflicting duties and that sometimes take priority over her religious identity. Furthermore, believers may regard a religious identity itself as chosen. As Alan Wolfe documents in The Transformation of American Religion, “religion in the United States is as much about choice and personal autonomy as it is about belonging and community.” Readers who are attracted to Galston’s or Sandel’s position may doubt the “authenticity” or worth of such individualistic adherence. Yet if we are seeking an understanding of religion to inform our general system of law, empirical generalizations about the lived experience of people of faith should carry more weight than the opinions of political theorists.

What these two strategies—religion-as-good and religion-as-binding—have in common is that they posit some property of religion that is supposed to justify special accommodation by the state. However, if our analysis is correct, the properties proposed do not map onto all and only religious practice. So, the most that these strategies could show is that the state must be sensitive to such properties, not that it must accommodate religious practice as such.

A third and different strategy for vindicating the specialness of religion draws strength, perhaps surprisingly, from the doctrine of “separation of church and state.” For Establishment Clause reasons, we already single out religion for special treatment, such as denial of certain kinds of aid. It may seem that if the National Council on the Humanities but not the National Council of Churches is to be constitutionally permitted to receive direct government funding, then we must attribute to religion a special importance. However, this conclusion would be unavoidable only if we could locate no other, more fundamental constitutional rationale for preventing government establishment or endorsement of religion. There is such a rationale. It is the value of equal respect for citizens.

An alternative: Equal liberty

In Religious Freedom and the Constitution, a 2007 book that deserves a broad audience beyond academia, Christopher Eisgruber and Lawrence Sager, of Princeton University and the University of Texas, respectively, propose a comprehensive new understanding of the place of religion under the law. They call their model Equal Liberty. According to this model, the Free Exercise and Establishment Clauses are not requirements on how the state should treat religion, but rather requirements on how the state should treat citizens.

Equal Liberty encompasses three principles: antidiscrimination, neutrality, and general liberty. The antidiscrimination principle “insists in the name of equality that no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments or projects.” The neutrality principle holds that apart from concerns over discrimination, “we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities.” Finally, the general liberty principle holds that “all persons— whether engaged in religiously inspired enterprises or not—enjoy rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish.”

If Eisgruber and Sager’s proposals were to be adopted, many aspects of the present legal landscape would remain in place, though they would be affixed within a more coherent framework. For example, Equal Liberty is consistent with the decision to grant welfare benefits to Adell Sherbert, though not for the reason that she had a religious claim and the state had no compelling interest. Rather, Eisgruber and Sager argue, denying benefits to Sherbert would have violated the antidiscrimination principle by treating her claim differently from mainstream faiths already accommodated by the law. Other exemptions could survive by expanding to countenance comparable nonreligious claims. The Supreme Court’s decision in the Vietnam-era United States v. Seeger, for instance, acted consistently with Equal Liberty when it expanded the existing conscientious-objector status, formerly reserved for theists, so as to include the claims of Daniel Seeger, a pacifist on principled, secular moral grounds.

However, under an equality-based framework, many privileges currently enjoyed by religious organizations and individuals could not survive. What reason—apart from discrimination on the basis of “spiritual foundations”—could be given for granting immunity from zoning or employment regulations to religious charities but not their secular counterparts? Indeed, it may well be that in many of the cases where religious exemptions seem most justifiable—dress codes in public school gym classes, for example—this is not because of the strength of the religious claims but the weakness of the rationale for the rules themselves. On the other hand, where the rationale is particularly powerful—think of the safety of children in the medical neglect and abuse cases—no exemptions of any kind appear justifiable.

Beyond religious freedom

While it is not our intention here to defend Equal Liberty in every detail, we hope to have made clear that there are workable, constructive alternatives to the automatic accommodation of religion as such. To be clear: we would not deny that people have the right to construct a mosque or religiously affiliated community center in Lower Manhattan, but we maintain that their right is not a right of “religious freedom.” Fundamentally, they would be exercising rights that the New York Academy of Sciences, an educational nonprofit organization, exercised when it moved into its offices at 7 World Trade Center: rights of free association and private property. On the other hand, we would oppose presumptively granting to a mosque special privileges that are not also available to the New York Academy of Sciences, unless such privileges can be justified solely by appeals to personal equality and liberty that can be brought by all citizens.

The twin moral pillars of a liberal democratic order are freedom and equality. In the end, the current regime of religious freedom runs counter to the value of treating all citizens equally regardless of their convictions of conscience. In Lynch v. Donnelly, Justice Sandra Day O'Conner wrote that government endorsement of religion is unacceptable because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." The present legal system of religious freedom does just that. It tells the religious that they are favored members of the political community, while telling secular people of conscience that they are outsiders. What a liberal democracy must stand for is not freedom of religion, but freedom of conscience.

(Read William Galston's response here, and our reply to Galson here.)