Abstract
In this paper our focus is not on discrimination against religion, but for it. We are concerned that U.S. citizens who are religious believers receive degrees of latitude and deference in the law relative to non-religious believers that privilege religion in general in American society to the detriment of the equal citizenship and standing of other citizens. In many cases, the citizens most impacted by religious deference are precisely those who have been identified in law and policy partly through the lens of majority religious belief, as not deserving of equal consideration. This ought not be an effect of constitutionally securing religious freedom. We distinguish religion-based deference in law and policy with respect to race and sexual orientation to illustrate the conundrums we find, conundrums that are highlighted in the Supreme Court’s recent Hobby Lobby decision.
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Notes
- 1.
Also see Shklar (1991, 17). As Shklar puts the point, “To be less than a full citizen” is to “suffer derogation and the loss of respectable standing.”
- 2.
573 U.S. _____ (2014). The reader may be familiar with the nationwide Hobby Lobby chain of arts and crafts stores owned by the Green Family, or with Hobby Lobby’s annual Fourth of July flag-draped one-page advertisement of patriotic, religion-themed quotations in the country’s major newspapers entitled “In God We Trust,” which solicits the reader to call “Need Him Ministry” and to download a free Bible “for your phone” at www.mardel.com/bible. See the Orange County Register July 4, 2014, p. 13 of the News section. The reader may also have heard of the 440,000 square foot “Museum of the Bible (its working name)” the Greens are building near the National Mall at an estimated cost of between $270 and $440 million, “to house the best of their 45,000-piece collection of biblical artifacts.” See Van Biema (2014, 33, 31).
- 3.
Hobby Lobby asserted that its objection to four of the ACA-mandated contraceptive options was because they worked as abortifacients by preventing implantation of a fertilized egg, though the Institute of Medicine, whose list of medically beneficial contraceptives is reflected in the ACA, disagrees that they are properly termed abortifacients. While this dispute is interesting, the crux of it for our purposes is to note that the principal objection to abortion, at least among religious believers who categorically object to it, is grounded in their religious understandings, which have become an entrenched part of the legal, political, and popular landscape such that to assert a connection between any practice and abortion is to curry deference to religious belief, so that of course it is understandable that the practice is found objectionable without further argument.
- 4.
“The Greens are the only shareholders in the $3 billion, 626-store Hobby Lobby arts-and-crafts empire” and were “invited by the Becket Fund for Religious Liberty…to challenge the Affordable Care Act on the grounds that it infringed in their religious beliefs.” The lawsuit was “a huge departure for the low-key Green clan, which had finally grown too big to avoid public conflict between its deeply conservative faith and a government whose actions it found increasingly unbiblical” (Van Biema 2014, 28).
- 5.
Numerous authors identify, contest, or otherwise discuss the demands of liberalism on religious believers. To mention only a couple of those able commentators whose views lean toward the more expansive accommodation of religious belief: Galston (2005), Gamwell (2002). Those whose views are more critical of the role of religious belief in the public square, or for whom restricting the expression of religious belief in law and policy is part of the sort of mutual accommodations that can rightfully be demanded of citizens, include Eisgruber and Sager (2007), Hamilton (2005), and Leiter (2013).
- 6.
573 U.S. _____ (2014).
- 7.
Reynolds v. United States, 98 U.S. 145 (1878); Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).
- 8.
Both Galston (2005) and Gamwell (2002) would have difficulties addressing the issue of how to protect a citizen’s rights when the moral foundations for their exercise are regarded as dubious by the majority – religious or other – in a given community. Galston’s communitarian leanings incline him to selectively prioritize religious authority over political authority, while Gamwell is committed to the proposition that democracy must ultimately serve a divine purpose. Both positions invite speculation as to government’s obligation to serve religion.
- 9.
Transcript of Oral Argument at 71, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. _____ (2014).
- 10.
As we see it, at issue in Burwell was not the degree of importance of contraceptives to persons who need them, mainly women and often for medical reasons, but the basis for the deference offered to explicitly faith-based objections to this provision of the ACA, and whether the contraceptive mandate could nonetheless be offered in some other way using the least restrictive means so as not to burden those with religious objections to it. The fact that the government presently has other proven means at its disposal to provide access to FDA-approved contraceptives cost-free to women who need them does not subdue our concerns, however, because the trigger for alternative means of provision is that which we dispute – religion. One might also follow Justice Ginsburg, who authored a scathing dissent in Burwell, in noting that any alternative provision is not really cost-free; or one might re-frame the entire issue as motivated by economic concerns – on Hobby Lobby’s part, to avoid the estimated $475 million penalty had it decided not to offer contraception and not to pursue the case in court.
- 11.
Wheaton College v. Burwell, 573 U.S. ___ (2014).
- 12.
To be sure, a Rastafarian soldier may object that such policy exemptions prioritize “religious” forms of belief over equally sincere, but secular, forms of moral conviction. This is an important point, but it leads to a much broader debate about whether religious accommodation is ever morally required within the liberal framework – a debate that we lack the space to take up in this paper. For present purposes, the important point is that, although the yarmulke accommodation grants one class of citizens a privilege not granted to others, it does not grant the Jewish soldier authority over his fellow service members, or suggest that the U.S. military operates with a religious vision.
- 13.
See, e.g., Shklar (1991), Chap. 2.
- 14.
U.S. v. Lee, 455 U.S. 252 (1982), 261.
- 15.
It should be noted that in the U.S. laws governing the workplace have long contained exceptions for small businesses. Even the ACA employer mandate applies only to businesses with at least 50 employees. For reasons of space, we cannot take up the philosophical basis of such exemptions here, except to note that they appear to reflect the commonsense idea that larger business enterprises wield greater influence over the lives of citizens, and may therefore be justifiably subjected to a greater degree state oversight.
- 16.
The potential problems arising from arbitrary and shifting “beliefs” has led noted law Professor Brian Leiter to ask whether there may be “special reasons not to tolerate religion?” (Leiter 2013, 59, emphasis original). Although the Obama administration did not question the sincerity of the Green family’s religious objections to the contraception mandate, some critics have seen the family’s investments in companies that manufacture contraceptives as evidence that the ACA litigation may have been motivated by political or economic, rather than purely religious, considerations. See Long (2014).
- 17.
See fn. 3, above.
- 18.
573 U.S. _____ (2014).
- 19.
See, e.g., Freeman (1983, 1557–1559). In this seminal article, Freeman argues that “there is no single feature or set of features that constitute the essence of religion” and urges us to be sensitive to the problems of vagueness and vacuity with respect to religious concepts.
- 20.
Justice Potter Stewart coined the phrase “I know it when I see it” in the obscenity case Jacobellis v. Ohio 378 U.S. 184 (1964).
- 21.
See, for example, the Supreme Court’s 1983 decision upholding the denial of tax-exempt status to a private religious university that prohibited interracial dating among its students. Bob Jones University v. United States (1983), 461 U.S. 574 (1983).
- 22.
The Equality Act of 1974 sought to ban discrimination against unmarried persons and also women alongside gay and lesbian individuals in employment, housing, and public accommodations. It would stretch credulity, however, to suppose that the Act failed to get out of committee owing to the presence of these other groups. Since 1974 the Act has been revised and re-introduced many times with its focus narrowed to sexual orientation, which has not managed to win it majority support in any session of Congress so far. To date, only President Obama’s recently signed executive orders have extended federal benefits for gay couples, though while providing exemptions for religious nonprofit groups (Lederman 2014), or prohibited employment discrimination on the basis of sexual orientation nationwide in the federal government and also in organizations that the federal government has contracts with, but without such exemptions (Bendery 2014; Lee and Meckler 2014; Pickler 2014). The latter Executive Order “affects 24,000 companies employing roughly 28 million workers, or about one-fifth of the nation’s workforce” (Bendery 2014).
- 23.
We should note here that these sorts of exemptions are very different from the Title VII exemption which “gives religious organizations, and only religious organizations, complete freedom to discriminate on the basis of religion, whether they do so from good motives or ill” (Eisgruber and Sager 2007, 251). Religious organizations have exclusive permission to discriminate on the basis of religion because “[i]t makes perfectly good sense for the Catholic church to insist that its priests be Catholic, but there is no comparable reason for, say, McDonalds to scrutinize the religious beliefs of its short-order cooks” (Ibid., 249). If viewed through the standard lens of Title VII exemptions, an Evangelical church, but not a chain of arts and crafts stores, may engage in workplace discrimination for religion and against non-Evangelicals, albeit then only with respect to church affairs.
- 24.
Twenty-one states have statutes against workplace discrimination based in sexual orientation, 18 of which also protect against gender identity discrimination to protect transgendered people, among others.
- 25.
Corbin (2012, 962) notes that “[c]ourts have held that antidiscrimination laws trump religious views” as part of her argument that neutral laws of general applicability, such as the Americans with Disabilities Act, do not violate the Free Exercise Clause and are not to be blithely dismissed as happened in the Hosanna-Tabor case, where a suspect ministerial exception was found controlling.
- 26.
461 U.S. 574 at 604.
- 27.
See Babst (2002).
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Babst, G.A., Compton, J.W. (2016). Equal Citizenship and Religious Liberty: An Irresolvable Tension?. In: Cudd, A., Lee, Wc. (eds) Citizenship and Immigration - Borders, Migration and Political Membership in a Global Age. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-319-32786-0_7
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