Within academic discussions, to be sure, the “public reason” proposal has been controversial. The proposal has its prominent and powerful advocates, but it has also been subjected to what some will regard as devastating objections by critics like David Enoch and Christopher Eberle.120 In the less rarefied and reflective context of actual political decision-making under the supervision of constitutional law, however, something like a public reason requirement—or, at least, an exclusion of “sectarian” or transcendently religious justifications of laws—has come to have a “taken for granted” quality.121 Constitutional scholars take it as axiomatic that public decisions cannot be based on religious or theological claims.122 Citizens and even politicians may, to be sure, invoke religion or quote the Bible in general public discussions; freedom of speech protects such expressions. But legislators and, even more so, lawyers understand that when a law is challenged in court, they cannot rely on conventionally “religious” reasons to provide justifications; to do so would be fatal to their cause.
The recent same-sex marriage decisions represent a stark manifestation of this condition. Laws limiting marriage to opposite-sex couples were of course challenged in many states, and eventually in the Supreme Court, as violations of the Fourteenth Amendment’s due process and equal protection clauses. As interpreted by the courts, those clauses mean that a state must have at least a “rational basis” for laws it adopts. In attempting to supply such a basis, lawyers defending traditional marriage laws emphatically did not invoke the Bible, or the law of God, or anything of that sort. Instead, they argued basically that traditional marriage is good for children, for the institution of marriage, and hence for society. And in striking the laws down, the courts often suggested that whatever the lawyers might have argued, religion was in fact the real reason for the laws.123 Since religion could not provide a legitimate basis for law (or so the judges assumed), it followed that the traditional marriage laws were unconstitutional.
In excluding such “religious” considerations, both the lower courts and the Supreme Court have rarely if ever offered any serious analysis of the issue; instead, they have dismissed the “religious” considerations summarily and in an “as everybody knows” tone. Asked to supply a constitutional ground, however, the courts and most lawyers would likely refer to the requirement in establishment clause doctrine that governments act only for “secular” purposes.124 Or they might invoke the legendary “wall of separation between church and state” from Thomas Jefferson’s letter to the Danbury Baptist Association.125 Critics of these and similar decisions accordingly react, often, by decrying the “secularism” requirement or the “wall of separation.”126
As a historical matter, in fact, both sides are on shaky ground; both the invocations and the critical reactions are misplaced. It is true that the closing off of political decision making to the transcendent has occurred under the cover of an understanding that government must be “secular.” In itself, though, that understanding is perfectly unobjectionable; political thinkers from Augustine to Aquinas to Madison could all have cheerfully agreed that government, in contrast to the church, is supposed to be “secular.” Indeed, the insistence that government must be limited to the “secular” might almost be said to be a Christian invention, and even a Christian dogma;127 no such restriction would have been recognized—or, probably, even understood—in ancient Rome. And, although not explicitly used in the Constitution, the phrase “wall of separation between church and state,” if read literally (as it hardly ever is, especially by the modern advocates who most often invoke it),128 could be taken as an apt metaphor for the political dualism that has characterized Christian thinking from Jesus through Augustine through Luther and Calvin (with their doctrine of the “two kingdoms”)129 and on to the less overtly Christian Madison and Jefferson.
The decisive change, rather, has come not with the idea that government should be “secular,” but instead with the subtle and perhaps almost unconscious transformation of that term to exclude what in chapter 9 we called the Christian or transcendent secular, leaving only the positivistic and pagan conceptions of the secular. It is under those conceptions that the contemporary “secular” city is conceived.
This conclusion, though—namely, that transcendent religious considerations cannot be permitted to influence the city’s own political decision making—would in itself still leave open the possibility of legal and political deference to individuals’ judgments about the transcendent with respect to their own lives. “Although we as a city do not act on transcendent reasons or commitments,” a community’s authorities might explain, “we recognize that some of our citizens do believe in and act on such reasons. And we try to make room for, and thus to avoid interfering in, that sort of religiosity.”
This position would be compatible with complete civic agnosticism with respect to transcendent religion. Judge and professor Michael McConnell has occasionally proposed a version of such civic agnosticism.130 The liberal state, McConnell argues, is obligated to be religiously neutral, and is accordingly barred from asserting either that theistic religion is true or that it is false. Some citizens hold to theistic beliefs; the liberal state cannot affirm that these citizens are right, but neither can it say that they are wrong. So the state in effect acknowledges that they might be right. And if they are right—if, that is, God commands them to do or not to do particular things (like go to war, or assist in celebrating a same-sex marriage)—the state would not want to compel them to disobey God (and in doing so to put itself in opposition to God). Hence, the state—the agnostically neutral state—should accommodate these citizens’ religious commitments if it can.
Insofar as they argue that religious accommodation is not merely not mandatory but impermissible, however, opponents of accommodation would forbid the state to recognize the possibility of transcendence even in that indirect and agnostic sense. That, of course, is the conclusion argued for, sometimes in qualified form,131 by proponents of the nonestablishment and equality objections discussed earlier in the chapter. Their position thus reflects a second phase in the closing off of the city to transcendence. In this second phase (which is still in progress, and contested), the city not only declines to acknowledge or act on transcendent reasons in its own decision-making; it declines to afford respect to such reasons as embraced by individual citizens.
Successfully consummated, the first and second phases would leave the city thoroughly insulated against transcendence. In another sense, though, it might still be said that the city is not hostile to transcendence, exactly. Some of its citizens still believe in transcendence, and the city does not prosecute or punish them for doing so—as it could do, and as some governments have done. On the contrary, citizens are still left free to believe in and act on transcendent religion—to profess, pray, worship, congregate, even proselytize—so long as these activities do not enter into public decision-making and do not conflict with any public interest or policy or law. The city might thus even sincerely proclaim that it respects “religious freedom.” Religion is free to flourish in the private sphere—outside the city walls, so to speak.
There is precedent for such a position. In ancient Rome, Christians often lived and practiced, and were largely left free to live and practice, outside the walls of the city. That is where the Christian catacombs were located, for example, where Christians often buried their dead. And in the confessional states of early modern Europe, dissenting religious communities were sometimes permitted to meet and worship outside the city walls.132 This was religious freedom—of a tenuous sort, to be sure. It was far from full inclusion. But the faithful could live out their faith, as long as they were willing to pay the price of staying out of the public sphere. It was a steep price; still, religion has often fared worse.
As noted, the successful completion of phases one and two would leave the contemporary devotees of transcendent religion in a similar position. Considering the alternatives, many might be satisfied with—even thank
ful for—this sort of free space “outside the walls” in which to practice their faith.133 But then a third phase may set it. In this phase the city swells and the walls are moved outward, so that the space for the free practice of transcendent religion becomes ever more cramped.
Such a process is discernible in America in recent decades, as the public sphere has expanded, leaving less room for the private. Although various factors have contributed to this expansion, probably the most important factor for these purposes has been the enactment and expansion of ambitious antidiscrimination laws, in a variety of forms, on the national, state, and local levels. Such laws differ in their content, obviously, but many or most of them apply to institutions of various sorts, including nearly all businesses of any significant size, and many or most of them prohibit discrimination on grounds of race, religion, sex, often sexual orientation. Antidiscrimination laws have the effect of annexing the marketplace, once mostly thought of as part of the private sphere, into the public domain, at least for many important purposes. Or perhaps more accurately, the marketplace has long been thought to have both public and private dimensions; antidiscrimination laws have the effect of significantly expanding the public component of that domain.134 And the result is that people whose religious views conflict with public policies are still free to practice their religion in private. But the “private” no longer includes the domain of business, or economic activity.
These are, of course, the laws that directly provoked the question that we noticed at the outset of this chapter. A wedding photographer, say, is religiously opposed to same-sex marriage. Probably she has no objection to providing services to gay individuals—it would never occur to her to decline to do a portrait of someone because he or she is gay—but the photographer does object to using her creative and artistic talents to assist in celebrating a union that she believes to be contrary to the Bible, or to God’s will. Her refusal to do so, however, may bring her into conflict with a state antidiscrimination law, and the prospect of potentially devastating sanctions.
Such conflicts have multiplied, and have gained increasing public attention, in recent years.135 At least a large part of the elite public seems unsympathetic to the wedding photographer’s plight—hence the critical outcry against the Indiana law that primarily sought to protect people in the photographer’s position—and the standard response to her plea is by now comfortingly (or perhaps wearisomely) familiar. The photographer is perfectly free to practice her religion, the argument goes; no one is trying to stop her from doing that. She just cannot practice her religion while working as a wedding photographer. And if she finds that constraint unacceptable, then she needs to relinquish her profession and practice her religion somewhere else—in private.136
If the photographer is a traditional Christian, of course, it is probably not only the business of wedding photographer that will no longer be open to her. Public annexation of the marketplace under nondiscrimination and other public norms not qualified by religious accommodation may mean that she will also be inhibited from being a marriage counselor,137 a doctor in general practice,138 perhaps a pharmacist,139 a baker,140 or a florist.141 Teaching may be problematic; at least she may be required to keep some of her Christian convictions to herself.142 The same may be true if she wants to be a judge.143 Exactly what conflicts she may face will depend, of course, on the specifics of her faith, on her particular talents and career prospects, on the jobs that happen to be available, and on the particulars of the antidiscrimination and other laws where she happens to reside. In the abstract, it can still be said that she is free to practice her faith in the private sphere—outside the city walls. But the city walls have expanded significantly, and the private sphere has shrunk accordingly.
Once again, this development brings to mind features of the ancient struggle between Christians and pagan authorities. As we saw in chapter 6, “as a prerequisite to engaging in any commercial transaction [Christians] had to give specific divine honours to the Caesars. Without doing so they would not have been able to secure provisions for their daily needs, as all goods could only be bought or sold through the authorized markets in a first-century city.”144 Subjects had to be certified for economic activity: “then, and only then, could they sell or purchase essential commodities.”145 A similar logic is being applied, it seems, to pharmacists, doctors, marriage counselors, wedding photographers, florists, bakers, and others who are told: accept requirements that put you in violation of your religion or else get out of your business or profession.
The Question Continued
At the outset of the chapter, it was promised that we would address a question posed in chapter 1: Why would proponents of same-sex marriage, or of laws forbidding discrimination on the basis of sex or sexual orientation, bring lawsuits against, say, counselors who oppose same-sex marriage when those professionals’ services are readily available elsewhere and when no sensible same-sex couple would actually want to be counseled by someone who is religiously opposed to their union?
Our discussion has answered that question only halfway. We have considered reasons why proponents of the antidiscrimination policy would oppose a constitutional or legal doctrine requiring accommodation of the religious counselor, wedding photographer, pharmacist, or doctor. Such a doctrine, reflective of a Christian or transcendent religiosity, is incongruous in the city now reconceived in secular and immanently religious terms.
Still, even if the objecting professionals or providers are not legally entitled to an exemption, it does not follow that the laws must be aggressively applied against them. Why do at least some proponents of the antidiscrimination policies strongly favor this sort of aggressive application? We will revisit that question in the next chapter.
1. For a supporting survey, see Steven D. Smith, The Rise and Decline of American Religious Freedom (Cambridge, MA: Harvard University Press, 2014).
2. Douglas Laycock, “Sex, Atheism, and the Free Exercise of Religion,” Detroit-Mercy Law Review 88 (2011): 407.
3. See, e.g., Chris Johnson, “DOJ Touts Anti-LGBT Views, Task Force at ‘Religious Freedom’ Summit,” Washington Blade, July 30, 2018, http://www.washingtonblade.com/2018/07/30/sessions-announces-new-task-force-at-anti-lgbt-religious-freedom-summit/.
4. Matthew Arnold, “Dover Beach,” Poetry Foundation, accessed July 13, 2017, https://www.poetryfoundation.org/poems/43588/dover-beach.
5. Cf. Stephen Macedo, “Transformative Constitutionalism and the Case of Religion: Defending the Moderate Hegemony of Liberalism,” Political Theory 26 (1998): 56, 61, 63 (arguing that a liberal state needs to cultivate “wishy-washy religion”).
6. Holy Trinity Church v. United States, 143 U.S. 457, 470 (1892).
7. The point is developed in Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995), 6–8.
8. See above, 268–82.
9. To invoke a commonly used example, see, e.g., Andrew Koppelman, “Secular Purpose,” Virginia Law Review 88 (2002): 106n68: if a group of devout Aztecs believes it is religiously obligated to cut out the beating hearts of sacrificial victims, application of a state’s laws prohibiting homicide would surely burden the exercise of that belief; but, at least in America today, nearly everyone would consider it unreasonable for the government to exempt the Aztecs from the murder laws. The government’s interest in preventing murder will outweigh the Aztecs’ religious commitment.
10. Governments need not purport to respect religious freedom, of course. Governments might be—and have often been—actively hostile to religion, or at least some religions. Communist governments have often adopted this attitude, for example. So did the Mexican government during the period portrayed in Graham Greene’s novel The Power and the Glory (New York: Penguin, 1991).
11. On Locke, see Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2009), 67. On Williams, see Stev
en D. Smith, “Separation and the Fanatic,” Virginia Law Review 85 (1999): 230–31.
12. An accommodation strategy can be and has been implemented on a variety of levels. It can be—and was, for decades—enshrined in constitutional doctrine. It can also be—and often has been—embodied in statutes, both state and federal. Accommodation can be afforded by institutional policies—of a school district, or a corporation. Often the strategy is implemented on an informal and ad hoc basis: a student asks if she can be excused from class on Friday because of a religious holiday, and the teacher says yes (or no).
13. I have elsewhere offered a slightly different interpretation of what the Court’s “free exercise” jurisprudence had called for. See Steven D. Smith, Getting Over Equality: A Critical Diagnosis of Religious Freedom in America (New York: New York University Press, 2001), 83–96.
14. Sherbert v. Verner, 374 U.S. 398 (1963).
15. Employment Division v. Smith, 494 U.S. 872 (1990).
16. See, e.g., Ira C. Lupu, “Hobby Lobby and the Dubious Enterprise of Religious Exemptions,” Harvard Journal of Law and Gender 38 (2015): 48–54.
17. See Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (1990): 1421–29.
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