by Michael Dorf
My new Verdict column discusses how secular liberals (like me) ought to talk to religious conservatives. The column was inspired by my experience speaking on a panel on the Hobby Lobby case in which all three panelists (including me) approached the issue by asking how the secular society ought to treat religious claims for exceptions from general rules. The column explains that there is something peculiar about that framing, given that we non-believers are actually a minority. I note how this approach is pervasive among secular liberals, as captured by the title of Brian Leiter's book, Why Tolerate Religion?
The column doesn't attempt to answer Leiter's question, instead focusing on how that sort of framing limits the conversation. And to be clear, I didn't and don't mean to single out Leiter. I make plain in the column that I am as guilty as he is of the framing problem. Nearly all secular liberals approaching the problem of religious exceptions are. Notwithstanding what I say in the column, here I do want to come back to the problem of religious exceptions as seen through the lens of the secular state--recognizing that, in light of what I say in the column, I will be limiting my audience by doing so.
To oversimplify a great deal, there are three main approaches to the problem of religious exceptions. One view, taken by Justice Scalia for the majority in Employment Division v. Smith, is that no one should be entitled to exceptions from otherwise valid general laws. A second view, taken by Michael McConnell and others, is that religious claimants--but only religious claimants--should be presumptively entitled to exceptions. A third view, taken by Leiter, by Chris Eisgruber and Larry Sager, and recently by Micah Schwartzman, is that insofar as religious claimants are entitled to exceptions, so are other people making non-religious claims of conscience.
The foregoing paragraph mixes views about the Constitution with more purely normative views. That's not strictly right, of course. One might think on historical and/or textual grounds that the Constitution authorizes exceptions for religious but not non-religious claims of conscience, but also think that as a first-order normative matter, a well-designed constitution ought to treat religious and non-religious conscience claims equally. That used to be my view, although in recent years I have come closer to the view that our existing Constitution is best construed to treat religious and non-religious conscience claims equally. In any event, for the balance of this post, I'll focus on the normative question, rather than the question of constitutional law.
There is a tendency in the literature to model exceptions for conscience on religious exceptions. We tend to ask whether the non-religious claimant has a sincerely held belief that taking some legally required action, or refraining from some legally forbidden action, would be wrong. We ask whether the felt obligation of conscience plays a role similar to the role played by religious obligations for religious people. But there are at least two other ways of thinking about both religious and non-religious conscience claims. Considering them may broaden our understanding of what's at stake in exceptions cases.
One way to understand exceptions claims is best captured by Brian Barry's discussion of claims for cultural exceptions. Take the case of the Hmong immigrant to a Western country, charged with kidnaping and rape for what, in his culture, would be the accepted practice of marriage by capture. Barry offers a powerful set of arguments against a cultural defense for persons in these circumstances, but note that even if we are inclined to think that a defense should be available, very few people will say that it is acceptable for a Hmong immigrant to a Western country to engage in marriage by capture. At most we might say that his culture provides an excuse for his behavior, perhaps to mitigate punishment or to reduce the charge.
Claims for exceptions based on religion or conscience are not identical to claims for cultural defenses, but there may be a useful partial analogy: Just as someone who was educated to think that there's nothing wrong with marriage by capture can be thought not to know any better than to attempt it, so we might think that religion or conscience also acts as a kind of excuse.
The difference, however, is that a cultural defense need not be rooted in cultural relativity; the mainstream culture still thinks that marriage by capture is really wrong, even for the Hmong; it's just that we forgive recent immigrants for not internalizing that view. (I realize that there are some accounts of cultural defenses that do rest on cultural relativism, but I'm not considering them here.)
By contrast, at least up to a point, we do engage in a kind of religious or conscience relativism. Someone who objects to working on her sabbath or to fighting in a war does not simply get a lighter sentence. She is excused from the obligation to work on her sabbath or to fight in a war. Religious and conscience objections vindicate the legitimacy of the underlying objections in a way that cultural defenses (where they are available) generally do not. As noted, however, the vindication only goes up to a point--as expressed in the compelling interest test in RFRA and similar regimes.
Another possible analogy for objections rooted in religion and conscience might be disability as treated under the Americans with Disabilities Act (ADA). Whereas most antidiscrimination laws require same treatment, the ADA (in some circumstances) requires a "reasonable accommodation." That requirement is roughly analogous to the obligation on the state to satisfy the compelling interest test where religious or conscience objections are in play. A worker who uses a wheelchair may be unable to perform certain tasks in light of how the employer has configured the job, but the burden is on the employer to try to reconfigure the job so that the worker can do it, just as in a RFRA regime, an employee who observes the sabbath may be unable to do a job that the employer has configured to require work on seven consecutive days, but the burden is then on the employer to show that the job cannot be reconfigured.
Conceiving of religious claims and conscience claims as a kind of disability ultimately shows respect for such claims. It's a way of recognizing that a person who feels a religious obligation or an obligation of conscience really is incapable of complying with the law--although she may well be able to comply with a modified version of it that still serves the law's background purpose. But note that conceiving of religion and conscience as like disability raises the bar for what counts as a substantial burden on religion (or conscience). It means that compliance with the unmodified law must be pretty nearly forbidden by the religion or conscience, not merely frowned upon or deemed vaguely bad. Some of the more aggressive claims being made in Hobby Lobby and other cases probably don't meet that standard.