Here’s an interesting addendum to the discussion of religious institutions and modern society. Last week, Ryan Anderson posted a review of a new book (Why Tolerate Religion? by Brian Leiter) that claims the concept of religious freedom is unnecessary. Once we protect “freedom of conscience,” freedom of religion is superfluous. You couldn’t ask for a more clear illustration of the point I made in my last post:
The nones disallow the claims of our institutions to be what they are, not out of hostility but out of an inability to grasp that something important is at stake in those claims. They have no frame of reference even to understand the nature of our claim, much less to make that claim plausible.
Ryan spends most of his review taking apart Leiter’s naive and uninformed presuppositions about what religion is and what the typical religious believer thinks and does, as well as exposing his failure to consider some important counterarguments.
However, at the end of the review Ryan briefly attempts to offer a capsule version (one paragraph) of the constructive case for why we need both freedom of religion and freedom of conscience. That’s a tall order, and I don’t want to sound too critical, but I have to say I think he’s on the wrong track. Here’s what he says:
Both liberty of conscience and religious liberty ought to be protected. But conflating the right to religious liberty with a more general right of conscience fails to take into account the distinctive good involved with religion, and the ways it can be violated even when conscience is not. Many Catholics do not feel bound by conscience to attend Mass on weekdays. But a law that prevented them from attending, while not violating their rights of conscience, would violate their religious liberty rights. So, too, with the inner workings of religious organizations, their hiring decisions, their determinations of ministers and doctrine, and so on.
The problem with this approach is that the hypothetical law in question, banning attendance at Mass, does in fact violate the freedom of conscience of all people, even those whose consciences don’t tell them to attend Mass. If the law requires you not to attend Mass, your conscience is no longer free on that matter, even if your conscience doesn’t happen to require you to do what the law forbids. Thus Ryan’s example doesn’t really take us to the distinction between freedom of concience and freedom of religion. Ryan himself, earlier in the review, points out that the whole case for freedom of religion is that belief in religious truth is only valuable if it is uncoerced; the same is true for freedom of conscience.
Ryan does, however, start to open up the real heart of the distinction between freedom of concience and freedom of religion at the end of the paragraph, when he brings in religious institutions. As I wrote in my last post:
In the lawsuits over Obamacare, the administration has asserted the theory that a profit-making business or a hospital or a school cannot be said to exist primiarly for a religious purpose or mission. If the courts endorse this claim, Christianity has been made illegal. Christianity cannot be what it is if the total primacy of God’s claim on our lives and the mission he has given us in the world is not permitted to achieve institutional expression in all areas of life, rather than simply in churches narrowly defined. This is not to say that all Christians must attend distinctively Christian schools or work in distinctively Christian businesses; far from it. However, if the formation of such institutions is illegal, Christianity is illegal.
Looking forward to hearing what the rest of the HT team thinks!
Thanks, Greg. I haven’t read enough of your writing on this topic to know how you’d answer, but it seems like your theory of the rights of conscience makes rule of law near impossible. What law doesn’t run the chance of violating conscience then?
Great question! I had not actually intended to articuate here a complete theory of what “rights of conscience” means; I only intended to show that the distinction between rights of religion and rights of conscience doesn’t lie in the fact that a person’s religion and his conscience don’t always require the same things, but rather that religion has an institutional dimension that conscience lacks. If I have a chance I’ll lay out more fully in a subsequent post why I think the view I express here doesn’t imply an all-encompassing view of rights of conscience that becomes, in Scalia’s memorable phrase, “the rule that ate the law.”
The better interpretation of the administration’s actual arguments is that corporate law makes any asserted primacy of the religious mission of an institution organized formally as a for-profit corporation legally irrelevant for purposes of assessing the burden on religions practice of those who run the institution. This is really a Lockean solution to the problem of how to accommodate religion. You can believe that you run your lumber company out of a sense of calling, and you can even act on it in countless ways, but for legal purposes (including the obligation to pay taxes or fund health care insurance), the status of an organized for-profit corporation as legally separate from your individual person means, essentially, that you still have to follow generally applicable laws that obligate the corporation. There’s a lot of law on this and it makes sense.
If I understand it right, a similar claim operates with respect to educational institutions. They might be already exempt from the Affordable Care Act or might qualify under some of the exemptions in the statute or in regulatory implementations. But the institution as an employer still pays social security taxes and also otherwise behaves as an economic entity as to its employees. And there is no real conflict between a religions educational mission (say, teaching those who are students that Jesus Christ is the central fact of human history), or a religions medical mission (say, relieving suffering as a matter of compassionate, biblical duty) and being required to adhere to generally applicable regulations that apply to other employers. Employees who also believe need not choose objectionable plans. But, employees who don’t believe are not forced to adhere to the same strictures. It’s hard to see how this is a burden on the religious practice of those who run the institution. And even if there is some conceivable burden, the Lockean argument goes, generally applicable principles trump – in the specific situation covered by the regulation.
Examples of things not at stake in any way in the litigation over the Affordable Care Act: mission statements, communications with customers or students or patients, inscriptions on buildings, prayers over loudspeakers, offers of charity, proselytizing messages, personal and heartfelt expressions of love and kindness, free bibles, statements in employee handbooks. The claim that christianity is even close to being threatened with being “made illegal” even in the institutional setting you describe is hyperbole at best. And now you’ve written in twice!
What you describe is exactly the opposite of a “Lockean” solution. Locke 1) places the restriction on what types of justification government may claim for its actions, not on what types of justification regulated individuals/institutions may claim for their actions, and 2) argues that there is intrinsic value in not obstructing people from practicing their religions so long as they don’t harm others or undermine the social order, meaning that even when government is acting on permissible justifications, it should still give significant weight to the claims of those whose religions are obstructed by a given regulation, and do its best to avoid obstructing religion wherever possible. In other words, Locke’s reasoning implies that if a given regulation will prevent significant numbers of people from practicing their religion, that fact ought to be weighed as a negative consideration – and a pretty important one – when deciding whether the regulation ought to be implemented. The pleas of the religious minority cannot be granted in absolutely every case, because the law must take many different factors into account; but they are always to be heard, and always to be treated as a matter of urgent concern. There is a presumption, rebuttable but still strong, that the religious minority are to be accommodated when possible.
By contrast, you describe an approach that 1) restricts permissible justifications for the regulated rather than for the regulator, and 2) implies that government not only can be but is actually required to be blind, deaf, and dumb to the pleas of those whose beliefs and practices are suppressed by its actions. You are making yourself a bed that I think you will eventually find very uncomfortable to lie in.
PS That’s just on the subject of how your view compares to Locke’s; I haven’t even gotten started on your failure to understand that more than just “the religious practice of those who run the institution” is at stake. Your view leaves no room at all for the institution itself to have a religious identity; you would make it impossible for such a thing as an institution with a religious identity to exist, because “employees who don’t believe are not forced to adhere to the same strictures.” Thanks for proving my point that the people who advocate your view are unable to see this problem!
Greg – I would welcome your starting on that last part, since it appears to be the key point you wish to articulate.
The administration didn’t advance the argument you ascribe to it, and the courts would not accept it in that form. In the way these issues were teed up, something much more limited was at stake. (Even if you disagree with me, that’s sort of a factual question and not really interesting.)
Even if the courts would accept such a principle, it would not change the myriad things that support an institutional identity.
An institution that can do the things I describe above in my comment — a non-exhaustive list of things guaranteed by law and no way threatened — is not at risk of losing its Christian identity or being made “illegal.”
It might help if you put some meat on the argument. What exactly are you afraid will be prohibited that would actually (not metaphorically) outlaw Christianity? The way you described it, it sounded a lot like: the ability to force non-observant employees to live according to principles of the institution. If that’s not it, then what?
Gosh, I don’t know. How about we start with the fact that your view requires my company to subsidize and facilitate the distribution of abortion-inducing drugs?
Really, how obvious does this point need to be?
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