Posts tagged: religious exemptions

Important Religious Liberty Victories at the Supreme Court

Important victories for religious liberty today, but the Little Sisters decision far from settles their “legal odyssey” (as Alito puts it). All that happened is that the Court let the Trump Administration broaden the exemption from what the Obama Administration offered. From what I can tell, you’d need new litigation to stop a future Democratic administration to re-narrow the exemption again, but someone correct me if I am wrong. Here are some of my quick reactions. (I’d write in more detail, but I’m knee-deep in copyediting for my next book, Trust in a Polarized Age.)

1. The good news about today is that the large majority of the Court is prepared to defend religious liberty, and to force the federal government to seek other methods for facilitating contraception access, LGBT equality, and so on besides compromising the liberty of religious institutions. That’s essential for justice, and the political stability of the country. Progressives, you’ll govern the vast majority of American public institutions in accord with your conception of equality; you just have to make some exceptions for the sake of peace and mutual respect.

2. These religious liberty issues are part of the basis for Trump’s support, and I hope my progressive readers will factor that into account in deciding how hard to fight these battles. For me, the contraception mandate was the deciding factor in my decision to vote for Romney in 2012. I didn’t vote for Trump, but I was not able to oppose him with my whole heart because of these issues. There are many like me, progressive friends. We want to join you, but not when you ask us to choose between opposing Trump and harming the Church. 

3. Most of my readers are secular, so let me quickly review how I think about the morality of the Little Sisters case (the details of which are more complicated than you may initially think). Basically, the case at issue, if you describe it in terms of the perspectives of groups like the Little Sisters, is that the federal government is forcing them to choose between a divinely-given vocation and imperiling their souls. Contraception, for some of these groups, is often seen as a *mortal* (roughly, damning until confessed) sin, and facilitating contraception in any way is also a mortal sin. So basically, from these groups’ perspectives, the feds are pressuring them into the possibility of an *infinite utility loss*. I know what it is like to fear for your soul. It might be the worst thing ever. And it’d be nice if the feds would find a way to ensure contraception coverage that didn’t have this implication. I hope my secular friends will try to take our perspective here.

4. I actually think when you get into the details, the Little Sisters themselves may not even be the subject of these legal strictures since their insurance provider is exempt, so it is kind of misleading to make them the public face of the religious liberty side of this case. But the other side is in many ways worse, claiming that women would be harmed by these exemption but were (from what I can tell) unable to find an instance of it. So the case is more political than I realized at first, which dampens my enthusiasm somewhat. So that needs to be said. But remember that this isn’t the end of seamless contraception coverage. The feds just have to pay for it directly, rather than making religious institutions into their instruments.

5. I agree with David French that Gorsuch may well have a plan to impose a religious liberty compromise on the country that is probably a good idea, and not unlike the Utah Compromise, where LGBT people come under equality before the law in employment, but extensive religious exemptions are provided to institutions that have a traditional view of sexual morality. I think it is a stable legal equilibrium, one that makes neither side happy, but the legal settlement that is most likely justified to the widest group of people. I don’t like that the Supreme Court is imposing the compromise on the country, but neither of the major parties are willing to compromise on the matter, and so at least we’re getting the right result, if in a non-ideal way. But Gorsuch may be intent on making the religious liberty/LGBT liberty less red hot, and as someone who believes in the values of peace, trust, and mutual respect, that gives me some hope. This is what reconciliation often looks like, folks. It isn’t victory, there is loss, but there is a beauty to it.

Against (Most) Religious Exemptions for Worshippers

I’m on record supporting a wide range of religious exemptions for all kinds of people. And I only sometimes oppose them. But I am now concerned, quite concerned, that demands for religious exemptions from lockdown policies risk imposing harms on others. When religious worshippers gather together in large numbers, they can easily spread the virus, and risk infecting hundreds and thousands of others.

In other posts, and some articles, I’ve outlined what I take to be the principles that license religious exemptions. I think religious exemptions from a law morally ought granted whenever the following four conditions are met:

(1) The law is endorsed by the subset of the population whose support makes the law democratically legitimate (something like a majority).

(2) The law places a substantial burden on the integrity or conscience of religious citizens (or secular citizens), or considerably sets back their fundamental interests.

(3) The exemption is feasible. Government can detect burdened citizens, exempt them without enormous costs, and typically root out fraudulent exemption claims.

(4) The exemption economizes on third party harms.

All of these principles are fairly straightforward (but if you want more clarification, see the post linked above). The key in this case is principle (4). On my view, religious exemptions can be restricted if they impose third-party harms or significant risks of third-party harms. The trouble for religious exemptions for large church gatherings is that, under current conditions, such gatherings impose risks of third-party harms because they create sites for transmission of COVID. By refusing to engage in social distancing, these worshippers put others at risk. Now, people of faith have extremely strong reason to worship, but they don’t necessarily have strong reason to worship in physical proximity to one another during a pandemic since they can worship in other ways, and the leaders of many religious organizations have created other ways for them to do so (such as drive-thru services and online services, both of which I have benefited from) and strictly directed them not to attend services in person.

So it is not clear to me that people of faith have sufficiently strong reasons to reject these restrictions because their faith does not require that they meet. So, strictly speaking, the restrictions are a substantial burden, but the risk of infecting people, at least in certain areas, is a much greater burden.

But here’s the trouble: we don’t know exactly how much risk we’re imposing on others by gathering to worship, but we have a much better sense of the concrete losses to churches and parishioners for not being able to worship. Churches, like any other institution, can lose money, but the bigger issue is that there’s an enormous loss in being isolated from fellow believers. So the challenge for covid policymakers is to try and figure out whether restrictions should be applied broadly or targeted by region.

I can see a case to be made that in certain sparsely populated parts of the country that the restrictions on church gathering be more modest, whereas in large cities, the rationale for restrictions is stronger. I’m not in a position to make those calls, of course, but I think the principles I’ve laid out are the right ones. In general, we default in favor of religious liberty, but when exemptions pose third-party harms and when the legal restrictions don’t strictly violate the conscience of adherents of the faith, restrictions on church gatherings can be justified rather straightforwardly.

When are Religious Exemptions Morally Required?

I’m writing this post as a reference for future discussions about religious exemptions.

Conditions Sufficient to Morally Require a Religious Exemption

I think religious exemptions from a law morally ought granted whenever the following four conditions are met:

(1) The law is endorsed by the subset of the population whose support makes the law democratically legitimate (something like a majority).

(2) The law places a substantial burden on the integrity or conscience of religious citizens (or secular citizens), or considerably sets back their fundamental interests.

(3) The exemption is feasible. Government can detect burdened citizens, exempt them without enormous costs, and typically root out fraudulent exemption claims.

(4) The exemption economizes on third party harms.

Reasons for the Four Conditions

The case for (1) is simple: if, say, a majority supports the law, then that’s usually a good reason to have the law. If they don’t support it, then abolish the law. No exemption is necessary.

The case for (2) is also simple: all persons have dignity and worth, and part of respecting that worth is respecting their liberty to live their own lives in their own way, to integrate their lives and identities with core principles, projects, and values. Laws that require people to violate their integrity or conscience or that greatly restrict the liberties to live out their own lives in their own way are, for that reason, unjust and undesirable, and so should not be imposed on everyone. Also note that this point is not restricted to religious citizens, but covers secular citizens too.

The case for (3) is also pretty straightforward. If the exemption is infeasible, say because too many people want the exemption, or the people who want the exemption can’t be detected, then that’s a good reason not to have the exemption. In those cases, either abolish the law or restrict the exemption.

The argument for (4) is complicated. On the one hand, we shouldn’t grant exemptions that cause severe harm, like exemptions from laws banning child sacrifice (a go-to example of exemption opponents). But all exemptions have the potential for harm, just as all rights do, so the mere fact that an exemption harms a third party is not sufficient to deny the exemption. Instead, the exemption should be crafted to economize on third party harm, at least to a large extent. So exemptions can impose harms on third-parties, but should not cross a certain threshold of harm, at least once we subtract the harm that comes from denying the exemption (since total harm is what’s at issue). But it’s going to be hard to specify that threshold in any precise way.

A second problem arises when we try to decide what counts as a harm. Obviously physical harms should be counted, and many psychological harms as well. But sometimes people cite a third kind of harm – dignitary harm – that isn’t the same as a physical or psychological harm. The harmful act is harmful simply because it is an affront to the dignity of a person, regardless of whether the person feels hurt or degraded. However, some people (like me) deny that there are dignitary harms over and above physical harms, psychological harms, or simple rights violations. So that’s going to complicate matters.

Some Illustrations

The Draft: To illustrate how to apply the conditions, let’s begin by considering the classic case of exemption from the draft. In at least some wars, most people support the war. Second, participating in the war places a modest or substantial burden on the liberties and interests of some persons. Third, it is feasible to exempt a small number of people. Objectors are easy to detect and there are few enough people wanting exemptions that the exemptions can be granted without large costs. Finally, while having fewer soldiers may result in some harms, the numbers are small enough that draft exemptions don’t impose third-party harms, and may even reduce harm if the exempted become medics. If they heal rather than kill.

Note that secular citizens can secure draft exemptions, so I’m not limiting these standards to religious citizens. Religious citizens on my view possess no religious privilege in this domain of the law.

Sacred Drug Use: We can also assess the famous case of Employment Division v. Smith. A majority of people presumably supported restrictions on drug use, including peyote, but being forbidden from ingesting peyote placed a substantial burden on the integrity of two men employed by the State of Oregon, and when they were fired, they were denied unemployment benefits, a further harm added to losing their job. The exemption is feasible. Few people have an incentive to lie about whether their faith requires peyote use nor can they usually successfully deceive the courts. And there is no real third party harm from occasional peyote use. So again, the exemption is morally required.

Vaccine Exemptions: A case where exemptions plausibly should be denied are cases of vaccine exemptions, since too many exemptions impose a grave physical harm on children, such that the exemption does not economize on third-party harms. If the number of people who wanted the exemptions were very small, the exemption should be granted, but now that vaccine denialism is being mainstreamed (sigh), denying exemptions is appropriate in many cases. That said, there are better and worse ways to craft exemptions. I think the denials should simply lead to forbidding families with unvaccinated children from using public services. No one needs to go to jail, no doctors need to be sent to private homes, etc.

Serving Same-Sex Weddings: Here’s a harder case – Jack Phillips, owner of Masterpiece Cakeshop, wanted an exemption from providing same-sex couples with certain kinds of wedding cake or product. A sizeable majority of citizens in Colorado want restrictions on discrimination on the basis of sexual orientation. These restrictions arguably place a substantial burden on the integrity of Phillips. An exemption for Phillips is feasible as well. It isn’t hard to detect such citizens because very few people request exemptions, and few will ask for them insincerely, given how unpopular they are. Further, the exemptions can occur with very little cost. So conditions (1)-(3) are satisfied. But what about (4)?

Clearly those turned away aren’t physically harmed, nor are they even financially harmed, since the vast majority of cake shops provide cakes to same-sex weddings. And I seriously doubt there is any psychological harm in being turned away by a single cake-shop among dozens, even if being turned away is offensive. No, the question is whether there is a dignitary harm in this case because someone is denied a service solely because of their sexual orientation and desire to be married. As I said earlier, I don’t think there are dignitary harms. One reason is that I think it is basically a misleading way of characterizing an offense, and I agree with J.S. Mill that friends of free societies must insist that people distinguish between harm and offense. The law must regulate harm, but must not regulate offense.

But even if there are dignity harms, I doubt one denial of service can harm a person’s dignity. The refusal has to part of a broader social norm that degrades persons over time. But that’s not present here. So Phillips merits an exemption by my criteria and the way in which I’ve specified them.

My purpose here is not to prove that Phillips merits an exemption, but to examine how to apply the standards I’ve set out. Since my standards take no position on whether there are dignitary harms, however, most people should be able to get on board with the four conditions I outline.