Politics & Policy

Religious Liberty vs. Anti-Discrimination: Toward a ‘Political Settlement’

(Photo: Wisconsinart/Dreamstime)
In a new book, three scholars make the argument that a pluralistic society can be both pragmatic and principled.

Thanks to the work of three young American scholars, a new and invaluable primer is the latest tool helping to make sense of the country’s current culture wars. In Debating Religious Liberty and Discrimination, John Corvino, Ryan T. Anderson, and Sherif Girgis boldly tackle the ongoing legal and cultural battles in which matters of faith and fairness appear opposed and poised to further divide an already divided nation.

The authors’ thought-provoking essays, presented in a point-counterpoint format, broadly address religious liberty, tolerance, and discrimination, providing a valuable framework from which to assess public policy as it relates to these questions in the context of intimate matters including marriage, sex, and child rearing.

The book begins with an important introduction to our country’s history of religious freedom and to how the “close connection between civil liberties, religious liberties, and limits on government power is reflected in the combination of rights reinforced by the First Amendment.” Readers are reminded, for example, that the First Amendment’s religion clauses and guarantees of freedom of speech, press, assembly, and petition were designed and are still meant to “work together.”

The essays address recent federal and state legislation that sets standards for when the government can impinge on freedom of religion. The authors note that the Supreme Court relied on one such law, the federal Religious Freedom Restoration Act (RFRA), in its Hobby Lobby and Little Sisters of the Poor decisions, in which it struck down the contraception mandate of the Affordable Health Care Act in the case of objecting privately held corporations and religious institutions.

The authors had finished their book before the Supreme Court’s decision last month in Trinity Lutheran v. Comer. There the Court held that the exclusion of a church from a public benefit solely because it is a church is “odious to our Constitution” and therefore cannot stand. (Although the printing press outpaced precedent in this case, that hardly diminishes the book’s overall value.)

Courts have assumed a primary role in defining the scope of religious freedom in the face of laws purporting to endorse fair treatment, and that will again be on display during the Supreme Court’s upcoming consideration of Masterpiece Cakeshop v. Colorado Civil Rights Commission. (Here too, the Court’s decision to grant review came down after the book’s publication.) This case involves the question of whether a state, pursuant to its anti-discrimination law, can compel a citizen, in violation of his religious beliefs, to bake cakes for same-sex weddings. Or does the First Amendment protect the baker who refuses? Commenting on cases in which bakers, florists, photographers, and other service providers have, on grounds similar to those involved in the Colorado case, refused to participate in same-sex weddings, the authors offer a range of ideas for what the law should do “about that cake.”

But the fundamental question they address goes far deeper than the Supreme Court’s resolution of particular cases: How best to address tension between faith and law?

Should sexual orientation be equated with race and direct us to protect persons identifying as LGBT, as we have for racial and ethnic minorities, equal rights of employment, housing, and public services?

Is religious-based opposition to endorsing certain sexual orientations or assumed gender identities the same as opposition to racial integration and equality?

Anderson and Girgis warn against a ‘progressive Puritanism’ that attempts to ‘coerce conscientious dissenters to live by the majority’s views.’

Corvino, Anderson, and Girgis take on such questions while guiding readers to the ultimate conclusion that a pluralistic society can be both “principled” and “pragmatic.” Corvino, concerned that religious liberty might morph into religious privilege, supports laws that prohibit discrimination on the basis of sexual orientation and gender identity. He proposes three paths for those who oppose the endorsement of such laws when conducting business: either excluding certain types of business from such anti-discrimination laws, allowing for religious exemptions provided those seeking them post their position publicly, or prohibiting exemptions but permitting business owners to publicly object.

In response, authors Anderson and Girgis warn against a “progressive Puritanism” that attempts to “coerce conscientious dissenters to live by the majority’s views.” They stress that “the public square exists to bring a variety of voices together. It can’t serve its function unless dissenters feel free to step into it. Nothing could be more at odds with that goal than counting it against dissenters’ conscience claims that they choose to serve the public.”

Pointing to the “political settlement” allowing doctors, nurses, and institutions to refuse to perform abortions, Anderson and Girgis argue that expanding this idea to our current conflicts of conscience is a win–win solution to the tension between SOGI laws (laws against discrimination based on sexual orientation and gender identity) and religious-based objections to compliance with them. They propose exemption for four types of claimants: “private hospitals and other charities, private educational institutions, wedding and relationship professionals, and public employees.”

In the same vein, Anderson and Girgis set forth a framework for considering whether anti-discrimination laws are justified in the first place. “The need for the ban must be high, and the cost of enforcement low,” they write. “Because of the nature of racism and the design of the Civil Rights Act, the latter fought a social evil without banning legitimate choices or exacting serious social costs.” The same, they argue, cannot be said for SOGI laws, because “the need isn’t there” and “they aren’t drawn narrowly enough to avoid needless burdens on other interests.” But even if you disagree with their assessment on these three considerations, Anderson and Girgis assert that, unlike other anti-discrimination laws, the goals of SOGI laws “don’t require compliance even against conscience.”

The book goes beyond comparing public-policy solutions for addressing the difficult and delicate task of promoting fairness while protecting faith. Anderson and Girgis, in particular, analyze the profound question of why faith matters so much to some people and impels them to seek “harmony or integrity between one’s conviction and actions,” often known as “unity of life.” Far from being an endorsement of relativism, their advocacy of a “live and let live” approach to protecting conscience rights in American law offers a principled basis for directing traffic at the intersection of morality, law, and public policy.

Debating Religious Liberty and Discrimination is a bold effort to enrich debate, encourage civility, and promote the formation of policy and personal perspective worthy of this great country. No matter one’s opinions on these matters, we will all be the wiser to take the time and effort to follow the authors’ lead.


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