The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality 9781316780053, 1316780058

Table of contents :
Introduction : the new generation of conscience objections in legal, political, and cultural context / Susanna Mancini and Michel Rosenfeld --
Part I. Conscientious objection in a constitutional democracy : theoretical perspectives --
Conscience and its claims : a philosophical history of conscientious objection / Julie Saada and Mark Antaki --
The conscience wars in historical and philosophical perspective : the clash between religious absolutes and democratic pluralism /Michel Rosenfeld --
Conscientious objections / Bernard Schlink --
Egalitarian justice and religious exemptions / Cécile Laborde --
Is there a right to conscientious objection? / Lorenzo Zucca --
Affect and the theo-political economy of the right to freedom of "thought, conscience and religion" / Marinos Diamantides --
Part II. Conscientious objection or culture wars? The changing discourse of religious liberty claims --
Conscience wars in transnational perspective : religious liberty, third-party harm, and pluralism / Douglas NeJaime and Reva Siegel --
Transatlantic conversations : the emergence of society-protective antiabortion arguments in the United States, Europe, and Russia /Susanna Mancini and Kristina Stoeckl --
The geopolitics of transnational law and religion : wars of conscience and the framing effects of law as a social institution /Pasquale Annicchino --
Part III. Objecting to antidiscrimination laws in the name of mainstream religious convictions : striking a balance between freedom and equality --
Objections to antidiscrimination in the name of conscience or religion : a conflicting rights approach / Eva Brems --
The role of the European Court of Human Rights in adjudicating religious exception claims / Helen Keller and Corina Heri --
When do religious accommodations burden others? / Nelson Tebbe, Micah Schwartzman, and Richard Schragger --
Part IV. Conscience, accommodation and its harms : children, women, and sexual minorities --The missing children in elite legal scholarship /Marci A. Hamilton --
Religious refusals and reproductive rights : claims of conscience as discrimination and shaming / Louise Melling --
Seeking to square the circle : a sustainable conscientious objection in reproductive healthcare / Emmanuelle Bribosia and Isabelle Rorive --Marriage registrars, same-sex relationships, and religious discrimination in the European Court of Human Rights / Christopher McCrudden --
Part V. Concluding perspectives on the conscience wars --
Mission still impossible / Stanley Fish --
The politics of religion : democracy and the conscience wars / Robert Post.

Citation preview

the conscience wars In this work, Professors Mancini and Rosenfeld have brought together an impressive group of authors to provide a comprehensive analysis of the greater demand for religious exemptions to government mandates. Traditional religious conscientious objection cases, such as refusal to salute the flag or to serve in the military during war, have had a diffused effect throughout society. In sharp contrast, targeting practices like abortion, LGTBQ adoption, and same-sex marriage, these authors argue that today’s most notorious objections impinge on the rights of others. The dramatic expansion of conscientious objection claims has revolutionized the battle between religious traditionalists and secular civil libertarians, raising novel political, legal, constitutional, and philosophical challenges. Highlighting the intersection between conscientious objections, religious liberty, and the equality of women and sexual minorities, this volume showcases this political debate and the principal jurisprudence from different parts of the world and emphasizes the little-known international social movements that compete globally to alter the debate’s terms. Susanna Mancini is a full professor of law and the chair of comparative constitutional law at the University of Bologna School of Law. Michel Rosenfeld is the University Professor of Law and Comparative Democracy and the Justice Sydney L. Robins Professor of Human Rights at the Benjamin N. Cardozo School of Law at Yeshiva University in New York.

The Conscience Wars rethinking the balance between religion, identity, and equality Edited by

SUSANNA MANCINI University of Bologna

MICHEL ROSENFELD Benjamin N. Cardozo School of Law

University Printing House, Cambridge cb2 8bs, United Kingdom One Liberty Plaza, 20th Floor, New York, ny 10006, usa 477 Williamstown Road, Port Melbourne, vic 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781107173309 doi: 10.1017/9781316780053 © Cambridge University Press 2018 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2018 Printed in the United States of America by Sheridan Books, Inc. A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data names: Rosenfeld, Michel, 1948– editor. | Mancini, Susanna, editor. title: The conscience wars : rethinking the balance between religion, identity, and equality / edited by Michel Rosenfeld, Cardozo Law School; Susanna Mancini, University of Bologna description: Cambridge, United Kingdom ; New York, NY, USA : Cambridge University Press, 2018. | Includes bibliographical references and index. identifiers: lccn 2017055399 | isbn 9781107173309 (hardback) subjects: lcsh: Liberty of conscience. classification: lcc k3258 .c66 2018 | ddc 342.08/5–dc23 LC record available at https://lccn.loc.gov/2017055399 isbn 978-1-107-17330-9 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

To our children, Lucrezia and Federico (SM) Maia and Alexis (MR)

Contents

page x

List of Figures List of Contributors

xi

Acknowledgments

xx

Introduction: The New Generation of Conscience Objections in Legal, Political, and Cultural Context Susanna Mancini and Michel Rosenfeld part i conscientious objection in a constitutional democracy: theoretical perspectives 1

2

Conscience and Its Claims: A Philosophical History of Conscientious Objection Julie Saada and Mark Antaki The Conscience Wars in Historical and Philosophical Perspective: The Clash between Religious Absolutes and Democratic Pluralism Michel Rosenfeld

1

21

23

58

3

Conscientious Objections Bernhard Schlink

102

4

Egalitarian Justice and Religious Exemptions Ce´cile Laborde

109

5

Is There a Right to Conscientious Objection? Lorenzo Zucca

127

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6

Contents

Affect and the Theo-Political Economy of the Right to Freedom of “Thought, Conscience and Religion” Marinos Diamantides part ii conscientious objection or culture wars? the changing discourse of religious liberty claims

7

8

9

Conscience Wars in Transnational Perspective: Religious Liberty, Third-Party Harm, and Pluralism Douglas NeJaime and Reva Siegel Transatlantic Conversations: The Emergence of Society-Protective Antiabortion Arguments in the United States, Europe, and Russia Susanna Mancini and Kristina Stoeckl The Geopolitics of Transnational Law and Religion: Wars of Conscience and the Framing Effects of Law as a Social Institution Pasquale Annicchino part iii objecting to antidiscrimination laws in the name of mainstream religious convictions: striking a balance between freedom and equality

10

11

12

185

187

220

258

275

Objections to Antidiscrimination in the Name of Conscience or Religion: A Conflicting Rights Approach Eva Brems

277

The Role of the European Court of Human Rights in Adjudicating Religious Exception Claims Helen Keller and Corina Heri

303

When Do Religious Accommodations Burden Others? Nelson Tebbe, Micah Schwartzman, and Richard Schragger part iv conscience, accommodation and its harms: children, women, and sexual minorities

13

149

The Missing Children in Elite Legal Scholarship Marci A. Hamilton

328

347 349

Contents

ix

Religious Refusals and Reproductive Rights: Claims of Conscience as Discrimination and Shaming Louise Melling

375

Seeking to Square the Circle: A Sustainable Conscientious Objection in Reproductive Health Care Emmanuelle Bribosia and Isabelle Rorive

392

Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights Christopher McCrudden

414

part v concluding perspectives on the conscience wars

463

17

Mission Still Impossible Stanley Fish

465

18

The Politics of Religion: Democracy and The Conscience Wars 473 Robert Post

14

15

16

Index

485

Figures

5.1

The ambit of conscience

5.2

A typology of claims of conscience

page 142

x

146

Contributors

Pasquale Annicchino is a visiting research fellow at the Robert Schuman Centre for Advanced Studies at the European University Institute. He is also a senior research associate at the Cambridge Institute on Religion & International Studies. He is a member of the research team in two European Research Council–funded projects: Grassrootmobilise and the Post-Secular Conflicts project based at the University of Innsbruck. He has been an adjunct professor of law at Brigham Young University Law School and St. John’s Law School. He serves as book review editor for Religion and Human Rights: An International Journal and is a member of the editorial board of Quaderni di Diritto e Politica Ecclesiastica. His main interests include the following: legal theory, law and religion, comparative constitutional law, national security law, religion, and politics. He has been appointed by the Italian minister of the interior as a member of the Italian Council for Relationships with Muslim Communities. His latest book is Law and International Religious Freedom: The Rise and Decline of the American Model (2017). Mark Antaki is an associate professor at McGill University’s Faculty of Law. He has been a fellow at McGill’s Institute for the Public Life of Arts and Ideas as well as at the Stellenbosch Institute for Advanced Study. His recent work has concerned such things as legal education, reconciliation, and transitional justice, as well as the relation between ethics and aesthetics as played out and experienced in law. He is an active member of the Association for the Study of Law, Culture, and the Humanities. Eva Brems (LLM Harvard, 1995; PhD KU Leuven, 1999) is a professor of human rights law at Ghent University, where she founded the Human Rights Centre (www.hrc.ugent.be/). Her research interests include most areas of human rights law, in European and international law as well as in xi

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Belgian and comparative law. She also founded the blog Strasbourg Observers (www.strasbourgobservers.com). Emmanuelle Bribosia is a professor at the Law Faculty and at the Institute for European Studies of the Free University of Brussels (Universite´ libre de Bruxelles, ULB). She is the director of the Centre for European Law and the president of the Advanced Master in European Law program. She holds a PhD in law (ULB, 2000, Alice Seghers Price) and an MA (ULB, 1994) and a BA in law. As a full-time professor, she teaches EU law and human rights law at the ULB. Her research activities focus on international and European human rights protection as well as on the right to equality and nondiscrimination, with an emphasis on the interdisciplinary approach of these research themes. As a member of the European Network of Legal Experts in the NonDiscrimination Field and the Berkeley Comparative Anti-Discrimination Law Study Group, she conducts much of her research activity in the framework of international projects. Within one of them, The Global Challenge of Human Rights Integration: Towards a User’s Perspective (Poˆle d’Attraction Interuniversitaire, 2012–17), she launched, in 2014, the Equality Law Clinic (ELC), which she coordinates with Isabelle Rorive at the ULB. More details can be found on her webpage, http://cde.ulb.be/me mber/prof-emmanuelle-bribosia/. Marinos Diamantides, Reader in Law (LLB Athens; LLM Lancaster; PhD London), has taught at Lancaster University, at the London School of Economics, and, since 1995, at the School of Law at Birkbeck, where he has served in various administrative posts including as assistant dean for international links and (acting) head of the Law Department. He is currently the director of studies of the Law Department and the director of the LLM Constitutional Law, Theory and Politics program. His ongoing research interests lie at the intersection of public law, metaphysical traditions, and social and political theories. He most recently cowrote Political Theology: Demystifying the Universal (2017). He is currently working on a monograph on the theologically infected Western tradition of opposing legal and political theories of sovereignty, which, he argues, have the effect of masking managerialism. Earlier work proposed a new field of study, which he terms “comparative historicized political theologies.” He is also known for his work on the potential impact of Emmanuel Levinas’s ethical philosophy on jurisprudential and political problems. He has received awards and grants from the Association for Socio-Legal Studies, the British Academy, and the Leverhulme Trust. He has also been a fellow at law schools in the United States (Berkeley, Cardozo), Japan (Kyoto), and Israel (Hebrew University). His

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working languages are Greek, English, Spanish, French, Hebrew, Arabic, and Italian. Stanley Fish is one of the United States’ leading public intellectuals, and a world-renowned literary theorist and legal scholar. He began his academic career in the English department at the University of California, then became the Kenan Professor of English and Humanities at Johns Hopkins University, where he taught from 1974 to 1985, before becoming Arts and Sciences Professor of English and Professor of Law at Duke University. He was the dean of the College of Liberal Arts and Sciences at the University of Illinois from 1999 to 2004. Professor Fish is a prolific author, having written more than 200 scholarly books and articles. He is also a contributor to The Opinionator blog for the New York Times. Marci A. Hamilton is the Fox Professor of Practice at the University of Pennsylvania. She is also the Fox Family Pavilion resident senior fellow in the Program for Research on Religion in the Fox Leadership Program at the University of Pennsylvania. She is the founder, CEO, and academic director of CHILD USA (www.childusa.org), a 501(c)(3) nonprofit academic think tank at the University of Pennsylvania dedicated to interdisciplinary, evidencebased research to prevent child abuse and neglect. Before moving to the University of Pennsylvania, Professor Hamilton was the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law at Yeshiva University. Professor Hamilton has been a vocal and influential critic of extreme religious liberty and successfully challenged the constitutionality of the Religious Freedom Restoration Act (RFRA) at the US Supreme Court in Boerne v. Flores (1997). The author of God vs. the Gavel: The Perils of Extreme Religious Liberty (2014), which was nominated for a Pulitzer Prize, she is a columnist for “Verdict” on Justia.com as well. She is also the author of Justice Denied: What America Must Do to Protect Its Children (2012) and Children and the Law (with coauthor Martin Gardner, 2017). Hamilton is the leading expert on child sex abuse statutes of limitations. She has filed countless pro bono amicus briefs for the protection of children at the US Supreme Court and state supreme courts. Hamilton clerked for US Supreme Court Justice Sandra Day O’Connor and Judge Edward R. Becker of the US Court of Appeals for the Third Circuit. Professor Hamilton is a graduate of the University of Pennsylvania School of Law (JD, magna cum laude), where she served as editor in chief of the University of Pennsylvania Law Review. Corina Heri is a postdoctoral researcher at the University of Amsterdam (Amsterdam Center for International Law, Law and Justice across Borders

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research program). Her PhD research, which was awarded summa cum laude by the Faculty of Law of the University of Zurich in 2017 and was made possible by grants from the Swiss National Science Foundation and the Janggen-Po¨hn Foundation, concerned the concept of vulnerability as applied by the European Court of Human Rights. She has worked as a research assistant for Prof. Dr. Helen Keller, LLM; and Prof. Dr. Daniel Moeckli, LLM. She holds an LLM from King’s College London and a master of law degree from the University of Zurich. Helen Keller is a professor of public law, European law, and public international law at the University of Zurich and serves as a judge at the European Court of Human Rights. Previously, she was a member of the UN Human Rights Committee. She obtained an LLM at the College of Europe and was a research fellow at Harvard’s European Law Research Center, the European University Institute (Florence), and the Centre for Advanced Studies (Oslo). She was also a visiting fellow at the Max Planck Institute for Comparative Public Law and International Law (Heidelberg). Her central research interest lies in international human rights law, paying particular attention to the European Convention on Human Rights. She is the author of The Reception of International Law (2003; in German) and the coauthor of Friendly Settlements before the European Court of Human Rights (2010), as well as the coeditor of Family Forms and Parenthood (2016), UN Human Rights Treaty Bodies: Law and Legitimacy (2012), and A Europe of Rights: The Impact of the ECHR on National Legal Systems (2008). Ce´cile Laborde holds the Nuffield Chair of Political Theory at the University of Oxford and is a fellow of the British Academy. She has written extensively in the areas of republicanism, liberalism and religion, theories of law and the state, and global justice. She has published five monographs and articles in major journals of political science, law, and political philosophy. She is notably the author of Pluralist Thought and the State in Britain and France (2000) and Critical Republicanism: The Hijab Controversy in Political Philosophy (2008). Her last monograph, Liberalism’s Religion, was published in 2017. Susanna Mancini (Ph.D., European University Institute, 1995; JD, University of Bologna, 1991) is a full professor and the Chair of Comparative Constitutional Law at the University of Bologna School of Law. She is also affiliated to the Paul H. Nitze School of Advanced International Studies of the Johns Hopkins University. Her work explores issue of law and religion, reproductive rights, the partnership of feminism and multiculturalism, the protection of ethnic

List of Contributors

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minorities, and the legitimacy of self-determination and secession. She is the coauthor of Comparative Constitutionalism: Cases and Materials (3rd edn., 2016) (with Baer, Dorsen, Rosenfeld, and Sajo); the coeditor, with Michel Rosenfeld, of Constitutional Secularism in an Age of Religious Revival (2014) and the editor of the forthcoming Handbook on Constitutions and Religion (2018). Mancini is a member of the Italian Association of Constitutional Law, and she also serves on the Executive Committee of the International Association of Constitutional Law. In 2018 she was a senior fellow at the Italian Academy for Advanced Studies in America at Columbia University. Christopher McCrudden is a professor of human rights and equality law at Queens University Belfast, the William W. Cook Global Law Professor at Michigan Law School, and a practicing barrister-at-law with Blackstone Chambers. Specializing in human rights, he concentrates on issues of equality and discrimination as well as the relationship between international and comparative human rights law. He is the author of Buying Social Justice (2007), a book about the relationship between public procurement and equality, for which he was awarded a certificate of merit by the American Society of International Law in 2008; Courts and Consociations (2013, with Brendan O’Leary), a book about the tensions between human rights and ethnic powersharing arrangements that are common in peace agreements; and Litigating Religions (2018), which is about the relationship between human rights, courts, and religions. He also edited the multidisciplinary volume, Understanding Human Dignity (2013). He is an elected fellow of the British Academy. Louise Melling is a deputy legal director of the American Civil Liberties Union (ACLU) and the director of its Center for Liberty, which encompasses the ACLU’s work on reproductive freedom; women’s rights; lesbian, gay, bisexual, and transgender rights; freedom of religion and belief; and disability rights. In this role, she leads the work of the ACLU to address the intersection of religious freedom and equal treatment, among other issues. She is the author of several articles, including “Religious Refusals to Public Accommodations Laws: Four Reasons to Say No,” 38 Harvard Journal of Law and Gender 177 (2015); “Follow the Money: Ending Discrimination against Women in Hospitals,” 15 Georgetown Journal of Gender and the Law 435 (2014) (coauthored with Sarah Lipton-Lubet); “Lift the Scarlet Letter from Abortion,” 35 Cardozo Law Review 1715 (2014); and “The Legal Education of Twenty Women,” 40 Stanford Law Review 1299 (1988) (coauthored with Catherine Weiss).

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List of Contributors

Douglas NeJaime is a professor of law at Yale Law School. Before joining the Yale faculty in 2017, he was a professor of law at UCLA School of Law, where he served as the faculty director of the Williams Institute. He has also served on the faculties at UC Irvine School of Law and Loyola Law School in Los Angeles, and was a visiting professor of law at Harvard Law School in spring 2017. NeJaime is the coauthor of Cases and Materials on Sexuality, Gender Identity, and the Law (with Carlos Ball, Jane Schacter, and William Rubenstein). His recent scholarship includes “The Nature of Parenthood,” 126 Yale Law Journal 2260 (2017); “Marriage Equality and the New Parenthood,” 129 Harvard Law Review 1185 (2016); and “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” 124 Yale Law Journal 2516 (2015) (with Reva Siegel). Robert Post is a Sterling Professor of Law at Yale Law School. From 2009 to 2017 he was the Sol & Lillian Professor of Law and dean of the school. From 1983 to 2003, he taught at Berkeley Law School. He is a First Amendment scholar whose books include Citizens Divided: Campaign Finance Reform and the Constitution (2014); Democracy, Expertise, Academic Freedom: A First Amendment Jurisprudence for the Modern State (2012); Prejudicial Appearances: The Logic of American Antidiscrimination Law (2001); and Constitutional Domains: Democracy, Community, Management (1995). Isabelle Rorive is a professor of law and the director of the Perelman Centre for Legal Philosophy, Free University of Brussels (Universite´ libre de Bruxelles, ULB). Her research focuses on theoretical and practical developments of the right to equality and nondiscrimination, the migration of legal concepts between common law and civil law systems, the imprint of legal cultures on the development of law and judicial reasoning, and the human rights issues raised by the management of cultural pluralism. As a senior member of the European Network of Legal Experts in the NonDiscrimination Field and the Berkeley Comparative Anti-Discrimination Law Study Group, she pursues many of her research projects in an international setting. In 2014, with Emmanuelle Bribosia, she launched the Equality Law Clinic (ELC) in the framework of the Human Rights Integration project (www.hrintegration.be) (more details on her webpage, www.philodroit.be/_ Rorive-Isabelle_?lang=en). Michel Rosenfeld is the University Professor of Law and Comparative Democracy, the Justice Sydney L. Robins Professor of Human Rights, and the director of the Program on Global and Comparative Constitutional Theory at the Benjamin N. Cardozo School of Law. He was the founding

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editor in chief of the International Journal of Constitutional Law (I•CON) from 2001 to 2014, and was president of the International Association of Constitutional Law from 1999 to 2004. He is the author of several books, including The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (2010) and Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account (2011). He is the coauthor of Comparative Constitutionalism: Cases and Materials (3rd edn., 2016) (with Baer, Dorsen, Mancini, and Sajo); the coeditor with Andras Sajo of The Oxford Handbook of Comparative Constitutional Law (2012); and with Susanna Mancini of Constitutional Secularism in an Age of Religious Revival (2014). He is also the coeditor with Peter Goodrich of the forthcoming Economies of Interpretation (2018). Professor Rosenfeld’s works have been translated into eleven foreign languages. Julie Saada is a professor of philosophy at Sciences Po Law School. Her research focuses on philosophy of international law, war, postwar, and international criminal justice. She has written Guerre juste, guerre injuste (with C. Nadeau, 2009), La justice pe´nale internationale face aux crimes de masse (with R. Nollez-Goldbach, 2014), and La guerre en question (2015). She also works on political philosophy and critical legal theory. Her publications include Hobbes, Spinoza ou les politiques de la Parole (2009), Hobbes et le sujet de droit (2010), and Le droit, entre the´orie et critique (with M. Xifaras, 2016). Bernhard Schlink is a professor emeritus of public law and legal philosophy and still teaches at Humboldt University in Berlin. For many years he was also a justice at the Constitutional Court of Northrhine-Westfalia. His work focuses on fundamental rights, the role of the police, and the meaning of justice. Richard Schragger is the Perre Bowen Professor and Joseph C. Carter Jr. Research Professor at the University of Virginia School of Law, where he has been teaching since 2001. His scholarship focuses on the intersection of constitutional law and local government law, federalism, urban policy, and church–state relations. Schragger has been a visiting professor at the Columbia, Chicago, New York University, and Georgetown law schools. He is the author of City Power: Urban Governance in a Global Age (2016). Micah Schwartzman is the Joseph W. Dorn Research Professor of Law at the University of Virginia School of Law. His areas of interest include constitutional law, law and religion, and political philosophy. He recently coedited The Rise of Corporate Religious Liberty (2016) and is currently coauthoring a casebook on constitutional law and religion.

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Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. Siegel’s recent publications include “Community in Conflict: SameSex Marriage and Backlash,” 64 UCLA Law Review 1728 (2017); “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” 124 Yale Law Journal 2516 (2015) (with Doug NeJaime); “The Supreme Court, 2012 Term – Foreword: Equality Divided,” 127 Harvard Law Review 1 (2013); “The Constitutionalization of Abortion,” in Michel Rosenfeld and Andras Sajo, eds., The Oxford Handbook of Comparative Constitutional Law 1057 (2012); and Processes of Constitutional Decisionmaking (with Paul Brest, Sanford Levinson, Jack M. Balkin, and Akhil Reed Amar, 2018). Siegel is a fellow of the American Academy of Arts and Sciences and an honorary fellow of the American Society for Legal History, and serves on the board of academic advisors of the American Constitution Society and on the general council of the International Society of Public Law. Kristina Stoeckl is an assistant professor of sociology at the University of Innsbruck and a principal investigator of the Post-Secular Conflicts research project, which is funded by the European Research Council (ERC-STG-2015 676804). Her coauthored chapter included in this volume draws on findings from this research project, which aims at a political sociology of contemporary transnational moral conservatism with a special focus on the hitherto unexplored role of the Russian Orthodox Church. She is the author of Russian Orthodoxy and Human Rights (2014) and of numerous articles and book chapters on church–state relations in Russia, on Orthodox theology, and on theories of politics, religion, and post-secular society. Nelson Tebbe is a professor of law at Cornell Law School. He is the author of Religious Freedom in an Egalitarian Age (2017) and coauthor of a forthcoming casebook, Constitutional Law and Religion (with Frederick Gedicks, Micah Schwartzman, Elizabeth Sepper, and Robert Tuttle, 2018). His articles have appeared in the Cornell Law Review, Georgetown Law Journal, Journal of Religion, Michigan Law Review, Minnesota Law Review, Notre Dame Law Review, University of Pennsylvania Law Review, and Virginia Law Review. Trained in the academic study of religion as well as law, Tebbe serves on the board of consultants of the Journal of Religion. He also is a member of the board of faculty editors for the Humanities in Law book series published by Cornell University Press. He is a graduate of Brown University (AB), Yale Law School (JD), and the University of Chicago Divinity School (PhD, with distinction). Lorenzo Zucca is a professor of law and philosophy at King’s College London. His interests are in jurisprudence, constitutional theory, law and religion, Shakespeare and the law, EU constitutional law, and human rights. He is

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the author of Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA (2007) and articles on European human rights law and theory. His second monograph is on the place of religion in the European public sphere and is entitled A Secular Europe: Law and Religion in the European Constitutional Landscape (2012). This book is a study of one of the most pressing legal social and political problems in Europe and includes issues such as the ECHR protection of religious freedom, EU policies against Islamic terrorism, EU enlargement to Turkey, and a wider debate on European identity. He also publishes in the fields of legal theory and is particularly interested in theories of human rights. He is presently working on a new monograph entitled The Uncertainty of Will, which is a study of the role of uncertainty in Shakespeare’s plays and in today’s world.

Acknowledgments

This book is the result of a long collaboration on the subject of religion, law, and the state that has involved many scholars and institutions since its inception in 2008. More particularly, all the contributions included in this volume originated in an international interdisciplinary symposium called “The Conscience Wars” held at the Benjamin N. Cardozo School of Law in New York City in the fall of 2015. This symposium was held under the auspices of Cardozo’s Floersheimer Center for Constitutional Democracy and of Cardozo’s Program on Global and Comparative Legal Theory. We wish to thank all those who contributed to the symposium’s great success and especially Cardozo’s dean, Melanie Leslie, for her generous support and inspiring encouragement; and Cardozo’s Professor Kate Shaw, the codirector of the Floersheimer Center, for her superb and indefatigable intellectual and organizational input, which greatly contributed to the symposium’s collegial atmosphere and scholarly achievements. We also wish to give very special thanks to Elena L. Cohen, Esq., Cardozo School of Law graduate and doctoral candidate at the City University of New York Graduate Center, for her invaluable and outstanding editorial and general organizational work on this volume. Finally, we thank Alexis Gideon for kindly allowing us to use his painting on the front cover of this book.

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Introduction The New Generation of Conscience Objections in Legal, Political, and Cultural Context Susanna Mancini and Michel Rosenfeld

I.1 THE NEW CONSCIENTIOUS OBJECTION VERSUS THE OLD

The new generation of conscience-based objections differs sharply from its predecessors in that it involves claims that are interventionist and intrusive as opposed to claims aimed at withdrawal and absence from discrete areas of mainstream collective undertakings. Typical of the past are conscientious objectors who sought to be excused from serving in the military or from going to war,1 or from pledging allegiance to their country’s flag at public gatherings.2 In contrast, today’s most notorious conscientious objectors seek exemption from generally applicable laws requiring employers to provide contraception coverage in the medical insurance benefits they must extend to their women employees;3 or from providing services offered to the general public, such as cakes or flowers for wedding celebrations or hotel rooms with large beds, to individuals belonging to sexual minorities;4 or from issuing marriage or civil union licenses in their capacity as state employees to samesex couples.5 Moreover, even more traditional conscientious objection claims, such as that of medical personnel refusing to take part in abortion procedures, have acquired a different meaning due to their massive invocation and due to the widening of the activities to which the individual objects. Thus, for example, Italy has recently been condemned by the European Council for 1 2 3 4

5

See Chapter 2 of this volume, note 4 and accompanying text. See ibid., note 3 and accompanying text. See, e.g., Burwell v. Hobby Lobby, 573 U.S. ___, 134 S Ct 2751 (2014). See, e.g., Charlie Craig and David Mullins v. Masterpiece Cakeshop, 2015 COA 115 (Colorado Court of Appeals, 2015) and Michael Black and John Morgan v. Susanna Wilkinson [2013] EWCA Civ. 820. See, e.g., April Miller et al. v. Kim Davis, 15–5961 (Appellate Div., 6th Cir., 2015) and Ladele v. Islington Council [2009] EWCA Civ. 1357.

1

2

Susanna Mancini and Michel Rosenfeld

Social Rights because, against the backdrop of a seemingly reasonable conscientious objection clause,6 its eventual invocation by the overwhelming majority of physicians has de facto hampered the application of the general law that grants women access to abortion services.7 There has also been a proliferation of cases in which individuals object to activities that do not require them to engage in any direct participation in acts that they deem immoral. The UK Supreme Court has recently ruled against such an expansionist approach to conscience claims in a case involving two Catholic Labour Ward Coordinators who objected to performing managerial and supervisory tasks. The court held that the words “to participate in” an abortion procedure mean “taking part in a ‘hands-on’ capacity” and do not extend to administrative tasks.8 In the United States, in contrast, since the adoption of the Church Amendment in 19739 – which exempted medical personnel from performing and assisting in sterilizations and abortions,10 and medical institutions from making their facilities available for the performance of such procedures11 – there has been a proliferation of state and federal laws that have considerably widened the scope of conscientious objection. In the 1990s and 2000s, such laws were expanded to include contraception and to cover a much broader range of acts and actors. These laws go well beyond the Church Amendment in order to cover objections to many more forms of conduct, interactions, and associations which the objector asserts would make him or her complicit in the wrongdoing of another person.12

Although honoring the requests of traditional conscientious objectors can be, on occasion, costly to non-objectors and to society at large, it very often has a relatively insignificant impact on the latter. Thus, if half of those called to 6 7

8

9

10 12

See Chapter 2 of this volume, note 73 and accompanying text. International Planned Parenthood Federation European Network (IPPF-EN) v. Italy, Complaint no. 87/2012 (ECSR, decision adopted on September 10, 2013 and delivered on March 10, 2014). Greater Glasgow Health Board (Appellant) v. Doogan and Another (Respondents) (Scotland) [2014] [2015] AC 640, [2015] 2 All ER 1, [2015] 1 AC 640, [2014] UKSC 68 at para. 38. The Church Amendment was passed as part of the Health Programs Extension Act of 1973, Pub. L. No. 93–45, § 401(b)-(c), 87 Stat. 91, 95. 42 U.S.C. § 300a-7(b)(1) (2012). 11 42 U.S.C. § 300a-7(b)(2)(A) (2012). Douglas NeJaime and Reva B. Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (2015): 2516–91, at 2538. For example, the state of Mississippi passed the nation’s broadest health care refusal law in 2004, defining “health care service” to include “any phase of patient medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health care providers or health care institutions” (ibid., at 2539).

Introduction

3

military service were to object on conscience grounds, honoring their requests could be very costly. But if only a small number of Quakers or Jehovah’s Witnesses were to do so, then the effects on military policy and non-objecting conscripts would most likely be minimal.13 In the context of contemporary conscience-based assertions, in contrast, the resulting clashes often escalate into veritable conscience wars. Indeed, even regardless of how large the number of objectors may happen to be, their claims seem bound to raise dignitarian issues and to pose significant challenges to the very fabric of liberal constitutional democracy. Thus, if a state official refuses to marry a same-sex couple on religious grounds, the latter may feel like second-class citizens – just as an interracial couple would under similar circumstances – even if other state officials happen to be readily available to perform the desired civil marriage. In effect, in this context, the state official does not object to performing a given act, as he is perfectly willing to register opposite-sex couples’ marriages. What this state official does, however, is pointedly refuse to register certain categories of people, who are just as entitled to marry under the law, because he abhors same-sex unions. This public act whereby a state official withdraws legally mandated services from an entire segment of the polity has profound social and political meaning. At the same time, from the standpoint of the same-sex couple, their legal entitlement to marriage fits perfectly within the logic of the liberal constitutional state, whereas any recognition or accommodation of religious objections by state officials looms as a serious threat to the integrity of the secular polity.14 As against this, religious objectors to samesex marriage may well consider implementation of an antidiscrimination regime that extends full protection on the basis of sexual orientation as proof of increasing state hostility toward religion and as an assault on religious freedom. I.2 THE REPOLITICIZATION OF RELIGION AND THE CULTURE WARS

A particularly important set of factors for the intensification and proliferation of the conscience wars stems from the combination of the increased presence 13

14

In the context of unpopular wars, such as the US war in Vietnam, where widespread opposition resulted in significant conscientious objection coupled with civil disobedience, social and political turmoil can prove disruptive. However, such cases may be best understood as involving above all a bitter political struggle in which conscience-based arguments figure, for the most part, as being parasitic on strong currents of political aversion to official policy. M. Frank M. et autres, De´cision n˚ 2013–353 QPC du 18 Octobre 2013 (Conseil Constitutionel).

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of strong and fundamentalist religion with the “repoliticization” of religion and with the rapid erosion of the boundary between the private and the public spheres.15 Accordingly, a request based on religious conscience grounds for an exemption from a law prohibiting discrimination on the basis of sex by a “depoliticized” religion that restricts access to the clergy to men and that operates exclusively in the private sphere seems much less likely to fuel an intense conscience war than a corresponding request by a religious employer of thousands who is seeking an exemption that would result in the thwarting of the reproductive rights of his women employees.16 This contrast is of course further exacerbated if we assume that the religious community in the private sphere is made up exclusively of voluntary adherents to the religion at stake, whereas the business led by the religious objector is made up of several secular female employees and of women who adhere to religions that permit the use of contraceptives and that do not require any blanket prohibition of abortions. Home-grown divisions within the dominant cultural and religious traditions figure prominently in the intensification of the conscience wars as a consequence of the widening divide between the revival already alluded to of strong religion and its repoliticization, on one hand, and the expansion of secular liberalism’s fundamental rights to previously broadly excluded or discriminated-against segments of the polity, such as women or LGBT persons, on the other. Here again, it appears increasingly that the center cannot hold as the harmony between liberalized religion largely sheltered from politics and secular democracy’s promotion of rights within certain clear limits dictated by tradition tends to unravel. Indeed, reinvigorated and repoliticized religion becomes a vigorous opponent of the expansion of liberal rights sought for purposes of achieving full equal citizenship of previously disadvantaged groups within the polity. Moreover, the more religious fervor and the quest for expansion of rights intensify, the more the gulf between them deepens. Consistent with this, proponents of religion tend to view institutional secularism as increasingly much more anti-religious than neutral as between religion and nonreligious ideologies.17 For their part, those struggling to achieve full gender and sexual orientation equality confront greater opposition from repoliticized religion, leading to frustration with the inadequacy of institutional secularism for the purpose of fostering the quest for equal citizenship within liberal democracy. 15

16 17

See Jose´ Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994), 3–6. See Burwell v. Hobby Lobby, 573 U.S. ___, 134 S Ct 2751 (2014). See Jean Baube´rot, Laı¨cite´ 1905–2005: Entre passion et raison (Paris: Edition du Seuil, 2004), 185.

Introduction

5

From a legal and constitutional standpoint, all sides within these conflicts are best ultimately viewed as putting forth genuine and, in many cases, mutually exclusive claims based on morals (with religious claims figuring as one set among a plurality of competing moral claims that count with adherents within the relevant polity). To the extent that the constitution or the law must take one side or the other in a particular conflict – for example, same-sex marriage is either legally permitted or it is legally prohibited – the conflict between proponents and opponents of the law will seemingly only involve a moral claim on one side of the divide. Thus, where the law sanctions samesex marriage, the state official who refuses to perform such a marriage because of his religious beliefs and duties grounds his position on a conscience-based claim. In that same situation, the same-sex couple seeking to obtain a civil marriage does not formally assert a moral claim, but rather a claim to the vindication of a right to which that couple is legally entitled. Upon further inquiry, and from a substantive rather than a formal perspective, however, the refusal to perform a civil same-sex marriage on conscience grounds can quite plausibly be regarded as likely to trigger a moral-based dignitarian claim on the part of those subjected to the refusal in question. In other words, the mere refusal by one state official, even if others are available to perform the sought civil marriage, can be experienced as an affront to dignity that offends one’s deeply grounded moral entitlement, much as the legal obligation to perform a marriage that he believes to be divinely proscribed strikes the state official confronting the same-sex couple of our example as conscientiously objectionable. Conscientious objection calls for a withdrawal from a collective endeavor grounded in law or an institutional practice consistent with the dictates of the objector’s innermost normative convictions and commitments. Thus, for the state official of our last example, same-sex marriage is religiously abhorrent, and completely withdrawing from its institutionalization and its spread is an imperative normative command. Similarly, for the same-sex couple seeking to marry, honoring the state official’s request for an exemption would signal an official condoning of homophobia – and particularly in the face of a long struggle to overcome criminalization of homosexuality and legal and social discrimination against homosexuals – thus calling for a withdrawal from the institutional establishment that unconscionably affronts their innermost conviction in, and commitment to, full and equal dignity regardless of sexual orientation. Does this last example suggest an inflation in the incidence of conscience claims in recent times? Does it, instead, signal a rhetorical shift, given that it would seem more persuasive both from the standpoint of the conscientious objector’s insistence in her cause and from that of society as

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a whole if claims for withdrawal and exemption stem from deeply held principles rather than from purely interest-based political disagreement? In order to get a better handle on these and other key questions raised by the contemporary conscience wars, it is imperative to place conscientious objection in its broader historical and philosophical contexts as do several of the chapters that follow. I.3 THE LEGAL AND CONSTITUTIONAL CONTOURS OF RELIGIOUS CONSCIENCE CLAIMS

Leaving aside, for now, the broader theoretical issues, from a legal and constitutional standpoint conscientious objection claims have been traditionally most closely associated with freedom of (or from) religion claims.18 Some constitutions explicitly enshrine a freedom of conscience right, usually alongside freedom of speech, freedom of belief, and freedom of religion.19 Other constitutions, such as that of the United States, do not contain a freedom of conscience right, but such a right has been recognized through interpretation of the right to the free exercise of religion as encompassing it within its scope or, at least, as incorporating freedom of religious conscience.20 Freedom of conscience claims, as are most other fundamental constitutional rights claims, are inherently limited in nature, although the relevant boundary may vary from one constitutional regime to the next.21 Consistent with this, judges called upon to set the limits of conscience-based claims most often have subjected these to the proportionality standard. Application of that standard, however, is prone to contestation to the extent that it involves balancing competing rights or interests over which there are often disagreements concerning their relative importance. Moreover, religious conscience claims are particularly problematic from the standpoint of the proportionality standard, 18 19

20

21

See Chapter 2 of this volume, notes 43–44 and accompanying text. See, e.g., Constitution of India, Article 25; Constitution of Kenya, 2010, Article 32; Constitution of the Republic of South Africa, 1996, Chapter 2, Article 15.1; and Canada’s Constitution Act, 1982, Section 2(a). See, e.g., Gillette v. United States, 401 U.S. 437 (1971) and Parisi v. Davidson, 405 U.S. 34 (1972). Under the Canadian Constitution Act, 1982, for example, everyone has a right to “freedom of conscience and religion” (Section 2[a]), “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Section 1). For its part, Article 9 of the European Convention on Human Rights provides, “[e]veryone has the right to freedom of thought, conscience and religion . . . subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Introduction

7

as they are often cast as resistant to all comparative metrics. Thus, for example, how should one weigh a conscience-based objection to all abortions throughout the polity in relation to which the objector might plausibly assert having a legal duty to perform, assist, or becoming complicit (e.g., by paying taxes used even in infinitesimal part to subsidize abortion services) based on an absolute religious prohibition due to an asserted divine decree equating abortion to infanticide? If that assertion is taken at face value by a judge who must balance the aforementioned conscience claim against a reproductive freedom claim insisting on free and fair access to abortion open to all women, would that not raise a plausible argument for a (nearly) complete rejection of abortion rights?22 Conversely, would not a judicial application of the proportionality standard treating the religious conscience-based opposition to abortion as one relevant ideological position to be weighed against other conflicting and competing ones, thus in all likelihood resulting in a judicial recognition of the legality of at least some abortions, amount, for all practical purposes, to a wholesale rejection of the religious command at issue? To be sure, from the standpoint of liberal constitutionalism comprising the institutionalization of some iteration of state secularism, the balancing of religious against secular claims looms as entirely feasible and has long been routinely performed by constitutional judges across a broad range of jurisdictions.23 However, in the context of the repoliticization and revival of strong religion, constitutional secularism becomes increasingly contested as pretending to be neutral but in fact inevitably functioning with a strong bias against religion.24 Accordingly, from the standpoint of strong or fundamentalist religions, there are no legitimate means to weigh any secular interest against any categorical divine command. Contrast the foregoing example with situations that do not involve religious conscience-based claims, whether the latter relate to conflicts between rights or between rights and interests. Suppose that a journalist wishes to publish an account of the travails of a dysfunctional family involving no public figures, thus pitting a conflict between a freedom of the press claim and a privacy right 22

23

24

Presumably, even accepting this religious conscience claim at face value, a judge could plausibly conclude that proportionality would require authorizing abortion in cases where the life of the mother is in danger, or, at least, in danger in circumstances in which, absent the abortion, neither the mother nor the fetus would survive. See Susanna Mancini and Michel Rosenfeld, “The Judge as Moral Arbiter? The Case of Abortion,” in Andra´s Sajo´ and Rena´ta Uitz, eds., Constitutional Topography: Values and Constitutions (Meppel, NL: Boom Eleven International, 2010). See Michel Rosenfeld, “Recasting Secularism as One Conception of the Good among Many in a Post-Secular Constitutional Polity,” in Michel Rosenfeld and Susanna Mancini, eds., Constitutional Secularism in an Age of Religious Revival (Oxford: Oxford University Press, 2014).

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claim. Even granting that reasonable judges may disagree on the precise location where the appropriate balance between the rights involved ought to be struck, both of these rights inhere within the same constitutional order and are, accordingly, equally amenable to assessment within a common normative framework. Moreover, the same is also the case where a constitutional right, such as freedom of the press, is subject to being weighed against an important state interest, such as the promotion of national security. To the extent that use of the proportionality standard necessarily extracts a religious conscience claim away from its own normative underpinnings for purposes of evaluation under the competing normative criteria attaching to the prevalent constitutional order, this will inevitably result in a partial or complete subordination of the religious conception of the good standing behind the religious conscience claim to its secular-constitutional counterpart. In other words, religious conscientious objection claims will not be tackled from within their own religious tradition, but instead from the standpoint of the secular conception of freedom of religion that inheres in the prevailing constitutional tradition. Moreover, as a consequence of this, proponents of religion-based conscience claims are often bound to be frustrated as their claims become framed and (from their perspective inadequately) accommodated pursuant to an understanding of freedom of religion consistent with the dictates of a liberal worldview. Another reason that suggests that the frame of conscientious objection might not be the optimal one for resolving present-day controversies has to do with the possible distortive effect that the latter have on democracy and the separation of powers. Traditional invocations of conscientious objection (for example, by a Jehovah’s Witness who refuses to do military service) were not only minoritarian but also unlinked to endeavors bent on influencing the democratic process. Jehovah’s Witnesses claimed exemption from the application of general laws, but did not attempt to change those laws. In contrast, in the current predicament, the same politicized religious actors operate simultaneously as claimants before courts in cases grounded on the individual right of conscientious objection or freedom of religion, and as political agents (often representing majoritarian religious or cultural tendencies) influencing legislation and government action. Moreover, traditional conscientious objection invocations did not challenge the general applicability of the law outside limited specific cases. Today, on the contrary, there is a widespread understanding of rules that are deemed morally debilitating on religious grounds as not necessarily applicable to everybody. This attitude is clearly articulated in a lecture delivered in 2008 by the Archbishop of Canterbury, who stressed

Introduction

9

the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to “activate” this whenever called upon.25

There is one alternative to the freedom of religion path available to religious conscientious objectors that seems more promising in several instances. That alternative avails itself of the constitutional jurisprudence relating to equality and to antidiscrimination rights. Ideally, from an equality standpoint, all religious and nonreligious ideologies should stand on the same footing. Thus, for example, if one religion is accepting of homosexuality and another is not, the latter may object to a law prohibiting discrimination against homosexuals on the ground that application of such a law results in discrimination on the basis of religion. Specifically, the religion tolerant of homosexuality is fully accommodated, consistent with the legal protection of homosexuals, whereas the religion intolerant of homosexuality feels thereby disadvantaged, hence figuring as unequal to the first religion. By focusing on the comparative advantages and disadvantages within the operating legal regime of the two religions involved, attention is drawn away from the proper constitutional limits of freedom of religion and turned instead toward endeavoring to avoid or mitigate favoring one religion over another. The antidiscrimination approach can extend to individuals taken alone as well as to religions taken as a whole. Accordingly, when a state official seeks an exemption from issuing a marriage license to a same-sex couple, she can claim, upon denial of such exemption, that she is a victim of discrimination as compared to her colleagues who have no like objection. Moreover, the discourse of antidiscrimination generally appears more compelling when invoked by a powerless, discriminated-against minority person than when asserted by someone within the polity’s mainstream. The Ladele case, discussed in many of the chapters that follow in this volume,26 provides a vivid example of this. Ladele, a black woman with profound Christian beliefs belonging to a non-mainstream Christian church within the United Kingdom conscientiously objected to granting civil union permits to same-

25

26

Rowan Williams (Archbishop of Canterbury), Civil and Religious Law in England: A Religious Perspective (Temple Festival series at the Royal Courts of Justice, February 7, 2008). See Chapters 2, 4, 5, 7, 10, 11, 15, 16, 17, and 18.

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sex couples in London’s Islington district, one of that city’s most progressive and gay-friendly communities.27 Ladele’s exemption was denied, and she was terminated in her municipal position for refusal to perform her official duties in cases involving homosexuals.28 One possible narrative regarding Ladele’s dismissal is that her freedom of religion did not extend so far as to permit her to refuse granting a public benefit to persons entitled by law to obtain it. A perhaps more compelling narrative, however, is that a woman belonging to a racial, cultural, and religious minority that is often discriminated against has been treated unequally as compared with her fellow public employees who share the liberal secular views prevalent in Islington and who therefore have no qualms concerning same-sex relationships. Upon further consideration, the antidiscrimination narrative is often as problematic and as contestable as the religious freedom one when it comes to fair adjudication of conscience-based claims. Returning to the Ladele case, what should be deemed more important, her individual circumstances or the broader societal setting carved out by the history of the United Kingdom as a Christian country that has long criminalized homosexuality and discriminated against homosexuals? Depending on one’s answer to this question, a judge should presumably favor either Ladele’s quest for racial and religious equality or the rights to equal dignity of the homosexual couples who seek to enter into a civil union. In the last analysis, present-day conscientious objection claims pose vexing problems both for freedom of religion jurisprudence and for its antidiscrimination counterpart. Moreover, as briefly alluded to earlier, the contemporary conscience wars derive from and feed on cultural and political conflicts. Consistent with all this, the divisions over conscientious objection have sharpened and become seemingly ever more contentious. Both thwarted objectors and those adversely affected by the grant of conscience-based exemptions experience increasing alienation and frustration within the legal and political order that they share in common. Today’s conscience wars are definitely challenging and potentially highly disruptive. Furthermore, there is significant divergence over how best to institutionally handle the conscience wars. With this in mind, the present collective undertaking aims at a critical and systematic evaluation of the contemporary conscience wars in their historical, philosophical, social, political, and legal/constitutional dimensions.

27

See Chapter 16 of this volume, Section 16.5.

28

Ibid., Section I.1.

Introduction

11

I.4 ORGANIZATION OF THIS BOOK

This book is divided into five parts: Part I deals with theoretical issues, concentrating on the history and philosophy of conscientious objection, as well as its place within the ambit of constitutional democracy; Part II addresses the nexus between contemporary conscience claims and the culture wars through examinations of the evolving discourse of religious liberty claims; Part III, in the context of attempted reconciliation between freedom and equality, concentrates on the confrontation between antidiscrimination laws and conscience claims based on freedom of religion; Part IV confronts conscience accommodation and its propensities for harming children, women, and sexual minorities; finally, Part V is comprised of two conclusory chapters that shed two distinct overall perspectives on many of the most important issues discussed in the preceding chapters. Part I consists of six chapters that focus on theoretical issues from the standpoint of law, philosophy, and political theory. Chapter 1 by Julie Saada and Mark Antaki traces the most salient developments in the history of ideas that culminated in the modern elaboration of conscientious objection as a legal concept starting at the end of the nineteenth century. Before that time, conscience could not confront positive law, as it could only make sense from within theology, philosophy, or politics. The authors highlight major trends spanning from ancient Greece to the modern era. The trends in question yield four distinct ideal-types of conscience: the Catholic one based on institutionalization; the Protestant one resting on deinstitutionalization; the modern contractarian one based on liberty and self-government, but leading paradoxically toward dissolution of conscience; and finally, the one that weds conscience to civil disobedience by embedding it within the precincts of collective action. As the authors emphasize, there is no linear evolution from one of these trends to the next, or from the latter to conscientious objection, but the links between the ideal-types of conscience and conscientious objection emerge through a complex weaving of various key elements that integrate into new configurations. Chapter 2 by Michel Rosenfeld also draws on history and philosophy, but with a different emphasis and aim. Its focus is on the difference between philosophical accounts of conscientious objection a generation ago by Rawls and Dworkin, and the philosophical implications of its present iterations giving rise to the “conscience wars” in light of the contrast between liberalism and democratic pluralism. From the historical standpoint, on the other hand, the analysis concentrates on the place of conscience in Western Christianity and on its evolution toward the emergence

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of secularism coupled with the institutionalization of religious tolerance at the end of the religious civil wars in Europe. This culminated in the Enlightenment’s privileging of freedom of religion while disempowering religion from the public arena in the context of implanting liberal constitutionalism. Based on a critical examination of the current conscience wars and conscientious objection jurisprudence, the chapter concludes that the increased religious contestation of the neutrality of liberalism warrants turning to a pluralist perspective that places religious and nonreligious ideologies on an equal footing. Consistent with the advocated shift to pluralism, repoliticized religion ought to lose its formerly acquired privilege when confronting conflicting fundamental constitutional rights. In Chapter 3, Bernhard Schlink observes that conscientious objection differs from all other constitutionally enshrined freedoms. Whereas the latter constitute the building blocks of democracy, the conscientious objector withdraws and stands apart from democratic society. Inasmuch as conscience is rebellious and, if taken to its logical conclusion, anarchic in nature, a paradox ensues: either conscience prevails and the legal order is undermined; or law is vindicated, but conscience is threatened. There is no solution to this paradox. The conflicts it engenders can only be endured and, as best as possible, mediated. Chapter 4 by Ce´cile Laborde tackles the challenge posed by the quest for religious exemptions, including those based on conscience, in the context of adherence to egalitarian justice. Within a Rawlsian framework where justice and fairness decree an equal apportionment of benefits and burdens among the citizenry, some life projects and conceptions of the good will inevitably fare better than others. Accordingly, none of the latter, including religious ones, appears to qualify for any grant of privilege or exemption. Consistent with this, religious conscience-based exemptions would only seem warranted to the extent that they may be justified on the basis of equality or equal protection. Such justification, however, is problematic, as it is difficult to conceive of what religion may be equal to, or in other words, analogous to. To overcome this hurdle, Laborde suggests that religion be “disaggregated” into a multitude of normatively relevant dimensions, including conscientious activity and expression of identity. Moreover, as thus disaggregated, religion alongside other practices can claim exemptions to safeguard individual ethical integrity. The integrity in question requires upholding equal liberties, including freedom of conscience, and adhering to nondiscrimination. Furthermore, by applying the criterion of individual ethical integrity it is possible to distinguish between warranted and unwarranted religious conscience-based exemptions.

Introduction

13

In Chapter 5, drawing on history and philosophy, Lorenzo Zucca examines whether there is a right to conscientious objection, and announces from the outset that his answer is no. Zucca argues that whereas conscientious objection can play a positive role in a contemporary constitutional democracy and that it ought to even garner exemptions under certain circumstances, its vindications must always be regarded as matters of privilege rather than of right. Stressing that many constitutions protect freedom of religion and freedom of conscience, Zucca emphasizes that freedom of conscience by no means entails validation of conscientious objection. According to him, conscience and law have common secular roots. In a constitutional democracy, law is the product of the citizenry’s collective conscience; and, whereas the individual has a right to criticize or to assert objections against the law based on the dictates of her individual conscience, individual conscience cannot sustain a right to an exemption from what is mandated by the collective conscience. Such exemptions may be sometimes warranted, however, on purely prudential grounds. Part I concludes with Chapter 6 by Marinos Diamantides, who articulates a radical reinterpretation of the familiar clash between religious conscience and duties under positive law. This clash is regarded by many as timeless and universal, and was dramatized by the ancient Greeks in Antigone. But, as Diamantides stresses, neither the Greeks nor the Jews of the Old Testament had a conception of conscience as a private will clashing against a general will. Conscience as it is understood today and as legally framed in the “freedom of thought, conscience and religion” right of Article 9 of the European Convention on Human Rights (ECHR) derives from Christianity. Christianity projects a tragic clash between positive law and conscience as the will to obey a higher law, but Diamantides underscores that the history of Christianity has achieved “a notable displacement of the Final Judgment . . . in favor of an economic/ administrative rationality of mutual accommodation of inner conscience and common will.” Diamantides draws on the legal philosophy of Giorgio Agamben, and on Agamben’s political theology, according to which even secular legal systems are grounded in Christianity and operate consistent with the administrative paradigm of oikonomia. Consistent with this, Diamantides recasts many of the conflicts that have given rise to the conscience wars as matters of management and of mutual accommodation. And accordingly, Diamantides does not characterize some of the most criticized judicial interpretations of Article 9 of the ECHR as erring in drawing a line between secularism and religion, but instead regards them as instances of unfortunate mismanagement.

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Part II tackles the changing discourse of religious liberty claims in a comparative and international perspective. In Chapter 7, Reva Siegel and Douglas NeJaime examine the spread of religious exemptions from laws protecting rights to contraception, abortion, and same-sex relationships in the United States and Europe. They argue that religious liberty claims asserted in these “culture-war” contexts differ from claims for the accommodation of religious ritual observance in ways that warrant principled legal responses. When a person of faith seeks an exemption from legal duties in the belief that the citizens the law protects are sinning, granting the religious exemption can inflict material and dignitary harms on those whom the law protects. These conflicts, which the authors define as “complicity-based,” not only raise special concerns with third-party harms, but also threaten to undermine a workable system of religious accommodation. Employing cross-border comparisons, Siegel and NeJaime maintain that religious accommodation of culture-war-based claims can further pluralist ends only when the resulting accommodation is structured in a way that shields other citizens from harm. In Chapter 8, Susanna Mancini and Kristina Stoeckl showcase the parallel evolution of antiabortion arguments and strategies in North America, Europe, and Russia. The surprising convergences that the authors identify not only testify to the existence of transnational conversations among Western and Russian pro-life activists but also signal a new step in global antiabortion discourse. This novelty centers on society-protective arguments that shift the focus in the abortion debate away from the woman and the fetus to society as a whole. In this evolution from fetus-protective to society-protective, the authors trace a shifting emphasis in the use of conscientious objection. Whereas traditionally individuals invoked conscientious objection to obtain an exemption from generally applicable laws, in the field of reproductive rights it has become a collective instrument designed to subvert existing laws and practices with the purpose of eliminating reproductive rights in the name of the good of society. In Chapter 9, Pasquale Annicchino contextualizes the current “wars of conscience” within the global scenario of the culture wars. Annicchino frames current global conscience wars through the lens of Samuel Huntington’s civilization-based perspective, noting that, paradoxically, conscience-related controversies are particularly divisive within “civilizational blocks,” which, in Huntington’s view, share similar cultural and religious values. In this context, Annicchino argues that, while striking a balance between conflicting conscience-related rights constitutes a major challenge in a fragmented world, an analysis based on the geopolitical framing effects of different legal systems

Introduction

15

helps provide a deeper understanding of the global debate concerning the place of conscience in legal systems. Part III concentrates on the confrontation between antidiscrimination laws and freedom of religion–based conscience claims in the context of attempted reconciliation between freedom and equality. In Chapter 10, Eva Brems examines objections to antidiscrimination in the name of conscience or religion as instances of conflicting human rights. This approach makes it possible to pay adequate attention to both claims, carefully assess the merits of each, and clearly substantiate the outcome on the basis of that assessment. Brems supports this approach on both principle-based and pragmatic grounds. On one hand, the “conflict of rights” model prevents the undermining of the fundamental nature of human rights. On the other, this model makes controversial decisions acceptable to stakeholders because they are perceived as legitimate. Chapter 11, by Helen Keller and Corina Heri, examines the role of the European Court of Human Rights (ECtHR) in adjudicating religious exemption claims regarding the refusal to support or condone same-sex relationships, particularly same-sex marriages or civil unions. The authors argue that the European Convention on Human Rights (ECHR) does not provide clear guidance on the resolution of the conflict between religion and equality. The ECtHR thus supplements the language of the ECHR with three mainstays of proportionality review – the necessity test, the balancing approach, and the margin of appreciation evaluation – to resolve conflicts between various rights that are subject to limitations. Keller and Heri show the difficulties the ECtHR faced in deciding the Ladele case,29 which, they suggest, ultimately implies that the ECtHR, confronting a delicate situation with no ready solution, employs a case-by-case basis approach and uses a reductionist perspective on the scope of the ECHR in order to eliminate potential conflicts. Part III concludes with Chapter 12 by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. This chapter addresses the vexing question of the harms that grants of religious conscience-based exemptions impose on others within the polity. This question is analyzed in the context of the US Constitution and federal law and draws primarily on the controversial 5–4 US Supreme Court decision in the 2014 Hobby Lobby case.30 In that case, the Court upheld a request for an exemption from a general law requiring that employer-provided health insurance include contraceptive coverage for 29

30

Ladele v. United Kingdom was one of four cases heard together by the ECtHR, sub nom Eweida and Others v. United Kingdom (2015) 57 EHRR 8. Burwell v. Hobby Lobby, 573 U.S. ___, 134 S Ct 2751 (2014).

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women employees, a requirement that was objected to as contrary to the employer’s deeply held Christian beliefs. The question concerning harms in exemption cases would be easy to answer if one could adopt a bright-line approach mandating refusal to grant an exemption that harms or burdens any third parties (other than the state itself); or if there were a consensus on a baseline allowing for a clear determination of what constitutes a harm in the context at hand. As the authors stress, however, it may be undesirable to bar exemptions that result in trivial or little significant harm. Moreover, as the authors make clear, the baseline for determining harm is highly contested in US jurisprudence. In view of this, the authors propose that substantive criteria be adopted to generate principled baselines and that claims for religious exemptions be subjected to a balancing test. Part IV concentrates on the harms that granting religious conscience-based exemptions from generally applicable laws is likely to have on certain traditionally disadvantaged groups, such as children, women, and sexual minorities. In Chapter 13, Marci A. Hamilton addresses the often ignored or underemphasized case of children. This chapter interweaves three different concerns regarding mistreatment, abuse, and disregard or inadequate support for the rights and interests of children. The first of these concerns is a general minimizing of the incidences of child abuse in spite of the evolution of the legal treatment of children from one based on property status to one incorporating them as rights-holding individuals. The second concern is focused on the abuses perpetrated and all too often concealed by religious authorities. These go well beyond the much-publicized sexual abuse of boys by Catholic clergymen and include gross misdeeds by representatives belonging to many other religions. Moreover, in several instances, these misdeeds are defended in the name of freedom of religion or sought to be protected from the reach of criminal law on the same grounds. Finally, the third concern stems from what Hamilton characterizes as a virtually complete neglect of the treatment of child abuse by US legal scholars. Hamilton argues that the only way to overcome the legal and societal failures regarding child abuse require loosening existing overly broad legal protections afforded to religious freedom claims and to eradicate myths and inhibitions that result in downplaying the frequency and severity of child abuse. In Chapter 14, Louise Melling critically addresses the different popular reactions to, and conceptualization of, refusals based on religious beliefs to serve LGBT people versus refusals to serve women seeking reproductive health services. Melling focuses specifically on the refusals of institutions – stores, pharmacies, and hospitals, among others – to provide such services, as this has greater implications for third parties than refusals by individuals.

Introduction

17

Melling argues that in the current US debate, denial of service to LGBT individuals is understood as having a discriminatory effect on the ground of sexual orientation, thus causing stigma and dignitarian harms. To the contrary, the latter harms and shaming of women resulting from denying them reproductive services is neither discussed in the broad cultural debates, nor properly addressed by the courts. The reason for this difference in treatment is twofold. In the first place, refusals of institutions to allow access to abortions or contraception are cast as being about the service, not about women. In the second place, Melling argues that the legacy of legal and cultural discrimination against women is at play in the treatment of conscientious objection in the field of reproductive rights. In this light, refusals to serve women seeking to control their fertility are not conceptualized as discriminatory on the ground of gender, because reproductive rights challenge the stereotype of women as committed to embracing their traditional role as mothers. However, Melling argues, the refusals involved stigmatize women and deprive them of equality just as similar refusals do in the case of LGBT individuals. In Chapter 15, Emmanuelle Bribosia and Isabelle Rorive focus on the practical and conceptual difficulties in reconciling the reproductive rights of women with the conscience claims of individual health care providers. From a practical standpoint, drawing on national, international, and European measures, cases, and policy papers, they demonstrate that even the most balanced regulatory framework of conscientious objection fails to overcome the strength of the web of religious and patriarchal structures of society, in which women are still caught. This results in a distortion of religious exemption clauses to the detriment of women’s rights. From a conceptual standpoint, Bribosia and Rorive, like Melling, maintain that conscience clauses involve not only direct harm to women who wish to access abortion services but also dignitary and symbolic harm. In this light, conscientious objection places the medical doctor in the position of exercising personal power over the patient by imposing his or her beliefs, and that per se constitutes a violation of women’s dignity and equality. In the end, according to Bribosia and Rorive, access to abortion is not enough to protect women from discrimination: what is required is access to health care on an equal footing, without any moral judgment by an authority. In Chapter 16, Christopher McCrudden provides a systematic analysis of the conflict between religious conscience objections and officially sanctioned same-sex unions by focusing primarily on the Ladele case mentioned earlier. The author asserts that the case was wrongly decided and that the forced resignation of the marriage registrar Ladele for her refusal to register same-sex

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unions based on her deeply held Christian beliefs was unjustifiably given little or virtually no weight by the UK courts or by the European Court of Human Rights. In McCrudden’s view, these courts erred because of their failure to properly consider Ladele’s claim for an exemption on religious discrimination grounds, concentrating instead on freedom of religion grounds. On the latter grounds, the courts found that carrying out her duty to register same-sex unions interfered neither with Ladele’s freedom of religious belief nor with her freedom to worship. But that, according to McCrudden, ignores the paramount collective and identitarian dimensions of religion. Religions provide a key component of identity and constitute distinct conceptions of the good. Consistent with this, subordinating religion to secularism or a minority religion to the dictates of the majority religion constitutes religious discrimination that requires protection under an equality antidiscrimination standard. Invoking the desirability of a pluralism that allows for coexistence between a wide variety of conceptions of the good – religious and nonreligious – McCrudden underscores the need to subject religious conscience claims to the antidiscrimination approach; to replace secularism by secularity, thus removing the bias against religion; and to embrace a radical conception of accommodation. If this had been done, Ladele’s claim could have been adjudicated under a proper standard of proportionality. Part V consists of two conclusory chapters that provide respectively distinct overall perspectives on many of the most important issues discussed throughout the preceding chapters. Chapter 17 by Stanley Fish offers a radical critique of all the preceding chapters in which the authors explore a principled way to handle conflicts between religious conscience and the secular state. Whether these authors offer proposals respectively for greater or lesser accommodation of claims for religious conscience-based exemptions, they all ultimately fail in their endeavors. According to Fish, the reason for that is that the conflict between secularism and religion has no solution. This was already obvious at the time of Locke’s writings on toleration, and nothing has changed since then. Religious truth is absolute from within, and secularism depends for its survival on the refutation of religious absolutism. Under the circumstances, the best we can do, according to Fish, is to resort to ad hoc, purely rhetorical compromises in the hope of preserving the peace without ever transcending the theoretical impasse. Chapter 18 by Robert Post underscores how the contemporary conscience wars have transformed conscientious objection from a means to obtain few and far between exemptions from generally applicable laws into a tool to alter or reverse the outcomes of ordinary politics. Post emphasizes the distinction

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between civil disobedience, which has always been a political vehicle, and conscientious objection, which operates within the confines of law. When conscientious objection addresses peripheral issues extrinsic to the main thrust of the law, such as a religious exemption from a generally applicable criminal law for the purposes of the use of an illicit substance in the prayer ritual of a small religious minority, religion may be accommodated without compromising democracy. In contrast, present-day religious conscientious objectors seek to severely undermine existing law, thus subverting democracy. As Post highlights, this is the case of former political majorities that produced laws suppressing women’s reproductive rights and that discriminated based on sexual orientation. These same groups now seek to virtually nullify more recent laws promoting equality based on sex and sexual orientation, through carving out extensive exemptions based on religious conscience.

part i

conscientious objection in a constitutional democracy Theoretical Perspectives

1 Conscience and Its Claims A Philosophical History of Conscientious Objection Julie Saada and Mark Antaki

[B]reak the law. Let your life be a counter friction to stop the machine. What I have to do is to see, at any rate, that I do not lend myself to the wrong which I condemn.1

Conscientious objection is generally understood as a refusal to take up arms in the name of an ethical or political principled pacifism, of a religious conviction forbidding participation in warfare, or of a political criticism of a government’s decision to wage a specific war perceived as unjust.2 Legally recognized since the end of the nineteenth century,3 conscientious objection has involved, however, not only objection to war and conscription, but also, and from varying political perspectives, to vaccination, abortion, same-sex marriage, mandatory schooling, and taxation. However one conceives what moves a conscientious objector – from political to religious or moral conviction – conscientious objection implies that the individual conscience has a particular status that allows it to be an authority and an autonomous source of obligation. It implies too that the demands of conscience are opposable to positive law and require either that an exception be made for the objector or that a positive law be modified or repealed. For this reason, it is difficult to distinguish the refusal to commit an action from a positive action demanding change in law or policy. Indeed, in those places where, and times when, conscientious objection is not legally recognized and regulated, it is often difficult to distinguish conscientious objection from civil disobedience.

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3

Henry David Thoreau, “Civil Disobedience,” in Walden and Other Writings of Henry David Thoreau (New York: The Modern Library, 1937), 633–59, at 644. The authors wish to thank Mireille Fournier, Eli Friedland, and Spencer Young for their assistance as well as Bruno Bernardi, Robert Howse, and Martti Koskenniemi for their thoughtful reading. Mark Antaki wishes to acknowledge the financial support of the Social Sciences and Humanities Research Council of Canada. See Chapter 2 in this volume, Section 2.2.2.4.

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How has the individual conscience come to acquire this status in relation to institutions that can shape it and guide it, and to which it can object? From where does it draw the legitimacy of its claims and refusals? Before conscientious objection was recognized by law, conscience had been constituted such that it could oppose itself to positive law. Our chapter provides a history of this constitution, since the objecting conscience, legally defined, is made of theology, philosophy, and politics. The purpose of our chapter is to undertake a historical investigation of a genealogical kind into the way the characteristic features of conscientious objection took shape over many centuries, that is, into what made possible the eventual legal recognition and regulation of conscientious objection. Our inquiry concerns the way in which conscience became understood as the source of obligation or as a medium by which certain obligations came to be known or felt, such that those obligations could constitute objections to positive law. Therefore, we do not examine the way in which conscientious objection has been constructed as a legal category, but rather, the intellectual conditions – philosophical, theological, and political – that shaped its existence as a legal category. In doing so, we do not aim to provide an exhaustive historical account. Rather we provide sketches of different moments that characterize the emergence and constitution of conscience as something capable of “objecting.” Each epoch is characterized by a prominent structure that involves a specific relation of conscience to the religious and political institutions by which, and against which, it is defined. We identify four schemas, or ideal-types,4 according to which conscience is historically first submitted to the authority of the Roman Catholic Church and in that sense institutionalized5 (Catholic schema); then an autonomous source of deinstitutionalized truth or obligation (modern Protestant schema); then a threat to social unity that must be dissolved (modern contractarian schema); and finally, and inversely, intimately tied to collective action and, in that sense, indissociable (in its unregulated form) from civil disobedience (civil disobedience schema). Our approach is deliberately simplified. Nevertheless, it does not take for granted the coherence of the different elements that compose each schema, and within each, we let heterogeneity, contradictions, and opposite tendencies appear. By adopting such an approach, we bow to the necessity of forgoing 4

5

See, e.g., Max Weber, “‘Objectivity’ in Social Science and Social Policy,” in Max Weber, The Methodology of the Social Sciences, trans. E. A. Shils and H. A. Finch (New York: Free Press, 1949), 49–112, at 90. Richard Sorabji, Moral Conscience through the Ages: Fifth Century BCE to the Present (Chicago: Chicago University Press, 2014), 96.

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a comprehensive account that would be impossible to accomplish in a few pages, and at the same time avoid a teleological approach that would see (and seek) in the recognition of the positive legal right to conscientious objection only the necessary accomplishment of the becoming autonomous of individual consciences made possible by Protestantism. By showing how each schema includes contradictions (between the sacred and the profane, conscience and reason, conscientious objection and civil disobedience), we follow Le´vi-Strauss in seeing great structures of thought as being built by “bricolage,”6 by way of the borrowing and putting together of different and disparate conceptions. We locate our analysis within a more general thesis on the modern status of conscience in a larger process of secularization. If the advent of the Cartesian subject, the autonomy of the conscience, and the free legal subject marked the rise of modernity, the question remains of whether the conscience belonging to this autonomous subject was itself conceived as autonomous from its beginning. To address this question, two options, generally speaking, are available, depending on whether one adopts a Weberian or a Schmittian perspective. From a Weberian perspective, “autonomization” is tied to a secularization that involves the differentiation of social spheres (economy, art, justice, and so forth). As religion becomes “privatized” and loses its social influence, these spheres become capable of giving themselves their own norms.7 As a process of the disenchantment of the world,8 the autonomization of social spheres signifies that religion is no longer at the heart of social organization. Conscience is then understood as a separate sphere, that is, autonomous, worldly, capable of giving itself its own laws. Understood as such, conscience is capable of opposing itself to positive law.9 From a Schmittian perspective, on the other hand, autonomization is only illusory appearance: what is perceived as autonomous is actually constituted by a transfer of schemas, contents, representations, and practices from the religious or theological sphere to the profane.10 Conscience, then, includes 6 7 8

9

10

Claude Le´vi-Strauss, The Savage Mind (Chicago: University of Chicago Press, 1968). Max Weber, The Sociology of Religion (Boston, MA: Beacon Press, 1963). See, e.g., Max Weber, “Science as a Vocation,” in From Max Weber: Essays in Sociology, trans. and ed. H. H. Gerth and C. Wright Mills (New York: Oxford University Press, 1958), 129–56, at 139–40. Jerome B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge: Cambridge University Press, 1998). Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago Press, 2006). See also G. W. F. Hegel, Elements of the Philosophy of Right (Cambridge: Cambridge University Press, 1991), § 124; Karl Lo¨with, Meaning in History: The Theological Implications of the Philosophy of History (Chicago: University of

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a sacred core, distinct from reason, that constitutes a normative source opposable to positive law because it is, in actuality, understood as transcendent and, for that reason, authoritative. As is seen in what follows, we do not hold these perspectives to be mutually exclusive, and our thesis combines the two. Our contention is that conscientious objection, or conscience’s prelegal capacity to object, emerges out of conscience’s centrality in an economy of salvation. In the first schema, insofar as it made conscience a key to salvation, Catholicism also institutionalized it, that is, declared it fallible and submitted it to ecclesiastical authority. Conversely, in the second schema, Protestantism’s autonomization of conscience led to the deinstitutionalization of conscience: conscience’s direct relation to God is here seen as allowing it to object not only to positive secular law but also to the dogmas, rules, and practices of the Catholic, and then Reformed, Church. The rights of conscience – even erroneous conscience – conceived of as equal for all men by the reformed Huguenots and Radicals undergird an individualism marked by a principle of autonomy, even as they root this individualism in a sacred – and heteronomous – core. This Protestant schema marks at once a rationalization or disenchantment of the world, and a withdrawal of the sacred to the individual conscience, the site to which it is transferred. We then show that the third schema constitutive of conscientious objection brings an ambivalence to light that marks modern political liberalism. Contractarian theories founded on subjective rights have thought through political autonomy as arising from individual liberties – including against the state – but they proceed by dissolving individual conscience. Because conscience is anarchic, it is relegated to the private sphere and reduced to mere opinion. Political liberalism founds its institutions in individual liberties, yet dissolves the individual conscience’s capacity to object. In the fourth schema, tied to contemporary liberal democracy, conscience’s capacity to object is affirmed as an expression of an inalienable liberty. But here, conscience’s individual dimension is difficult to discern: because it objects always in the name of a higher principle, the conscience that protests Chicago Press, 1957). On secularization as rupture, see Hans Blumenberg, The Legitimacy of the Modern Age (Cambridge: MIT Press, 1985); Michel Foucault, “What Is Critique?,” in The Politics of Truth (Los Angeles, CA: Semiotext(e), 1997), 41–81. Reinhart Koselleck, Critique and Crisis: Enlightenment and the Pathogenesis of Modern Society (Cambridge: MIT Press, 1988) and Futures Past: On the Semantics of Historical Time (New York: Columbia University Press, 2004); Weber, Sociology of Religion. See also Jean-Claude Monod, La querelle de la se´cularisation de Hegel a` Blumenberg (Paris: Vrin, 2002) and Michae¨l Foessel, Jean-Franc¸ois Kerve´gan, and Myriam Revault d’Allonnes, eds., Modernite´ et se´cularisation: Hans Blumenberg, Karl Lo¨with, Carl Schmitt, Leo Strauss (Paris: E´ditions du CNRS, 2007).

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perceives itself as tied to other members of a community by virtue of a collective moral responsibility. In this sense, it is not so much the inverted figure of a power of exception now accorded to the subject rather than the sovereign, but rather a political action that accomplishes itself in civil disobedience. 1.1 FIRST SCHEMA: CHRISTIANITY AND THE INSTITUTIONALIZATION OF CONSCIENCE

This first schema constitutes conscience as central in an economy of salvation. Conscience is here institutionalized by subjecting it to ecclesiastical authority in both praxis and dogma. 1.1.1 The Fallibility of Conscience, Obedience, and Salvation While the conscience is not necessarily a Pauline invention – the Greek word suneideˆsis, of which the Latin conscientia is a translation, predates it by several centuries11 – conscience was given a place of prominence with Paul’s turn away from outward conformity. In Romans, concerned with “God’s Righteous Judgment,” Paul writes of circumcision as being “of the heart, by the Spirit, not by the written code.” Immediately prior, Paul writes of how some Gentiles “who do not have the Law” nevertheless “do by nature things required by the law,” as “[t]hey show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them.”12 Paul’s own “boast” in 2 Corinthians is that his conscience “testifies” to his conduct,13 hence the idea of a “clear conscience.”14 But for Paul a “clear” conscience does not “make [one] innocent,”15 and a conscience can even be “weak”16 or corrupted. What is more, “it is necessary to submit to the authorities, not only because of possible punishment but also as a matter of conscience.”17 Whatever one’s 11 12 13 15 17

See, e.g., Sorabji, Moral Conscience, 12. Rom. 2:29 and 2:14–15 (International Standard Version). 2 Cor. 1:12 (Paul speaks as well of Timothy’s conscience here). 14 2 Tim. 1:3. 1 Cor. 4:4. 16 1 Cor. 8:7, 9–10. Rom. 13:5. Not Paul, but the author of Acts, illustrates the point at which one must obey God rather than men – in a story about Peter and the apostles (not Paul) with regard to the spreading of the Word itself, a story that moreover implies the direct, sustained, and at least partially revealed intercession by God on the apostles’ behalf (Acts 5:29–42). Paul does not discuss such a transgression of the secular law (and in fact is shown by the author of Acts vowing that he has never broken Caesar’s law, nor the Jews’, nor the temple’s, at all [Acts 25:8]).

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views on Paul’s own experience of conscience,18 in his writings, we see conscience as a fallible, corruptible witness of the Law written on human hearts and anticipating, however imperfectly, God’s own judgment. The early Christian conscience is sometimes understood as pacifist, and thus as being at the root of conscientious objection to military service.19 Prominence of place is given to the commandment against killing, as well as the Sermon on the Mount and its admonitions to “turn the other cheek” and “love your enemies.”20 The views of the church fathers, however, may be more closely associated with a reaction against “idolizing or deifying the state in any form”21 than with an unremitting pacifism per se. While there was some Christian nonparticipation in war, perhaps with prayer as alternate service, “as Christianity spread and threats to the Pax Romana continued and increased, it was predictably harder to justify Christian participation only by prayer rather than through killing in conflict, especially under a Christian emperor.”22 Paradoxically, Paul’s inward turn could serve to make intelligible and acceptable Christian participation, of at least the laity, in war or violence more generally. External chastisement could be separated from internal love.23 Thus “for Augustine, beneficence rules out malitia but not militia.”24 This separation of inner and outer was bound up with another distinction tied to motive, that between acting for oneself and for others. Perhaps most important, the burden of war or violence lay with authority, as private was to be distinguished from public violence: “according to Ambrose and Augustine, among others, authorization is only one of several criteria of just wars, but for the ordinary Christian subject it probably was the most important criterion.”25 The ordinary subject could not second-guess the propriety of a war and was bound to obey (unless perhaps in a case of manifest contradiction to divine law) for the error lay with the person of superior authority26 – and presumably his conscience.

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See, e.g., Kirster Stendahl, Paul among Jews and Gentiles and Other Essays (Philadelphia, PA: Fortress Press, 1976). See, e.g., Paul Ramsey, War and the Christian Conscience: How Shall Modern War Be Conducted Justly? (Durham, NC: Duke University Press, 1961), xv. Mt. 5:39 and 5:44. David D. Corey and J. Daryl Charles, The Just War Tradition: An Introduction (Wilmington, DE: Intercollegiate Studies Institute, 2012), 49. James F. Childress, “Moral Discourse about War in the Early Church,” Journal of Religious Ethics 12 (1984): 2–18, at 2, 11. Corey and Charles, Just War, 55. 24 Childress, “Moral Discourse,” 14. 25 Ibid., 14. Augustine, Contra Faustum, 22.75.

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War can serve, indeed, as an example of attitudes to (secular) authority more generally. In a so-called hierarchical world, each Christian’s conscience was not supposed to be preoccupied with the same questions, and with the same degree of care or depth. Ordinary Christians could cultivate the proper inward dispositions without taking it upon themselves to second-guess their superiors and their orders. This may explain the great role played by Providence and lesser magistrates in the history of resistance to tyrants and tyrannicide.27 This is also reflected, no matter how the limits of obedience to secular authority are understood, in the idea that subjection to secular authority is one, in Thomas Aquinas’s words, “whereby one man is bound to another [ as] regards the body, not the soul, which retains its liberty.”28 There were limits, one might say, to the reach of secular authority into consciences, even if just laws were supposed to bind in conscience: unjust secular laws did not, for Aquinas, bind the conscience, and indeed were not, properly speaking, laws at all.29 The Church’s authority, however, did not seem to be subject to the same kinds of limits with respect to conscience. While the question of the relation of secular to ecclesiastical authority from Constantine onward is a tricky one, one might say that the relation to ecclesiastical authority is where Luther’s break truly happens – against the claims of ecclesiastical authority to earthly power in the later Middle Ages30 but also against its pretension to reach into consciences (as well as the way and degree to which it did so). Both of these had been instrumental to what Berman calls “the papal revolution” and the rise of the Church as the “first modern Western state”31 in the centuries preceding Luther. More specifically, both of these had been instrumental to the rise of canon law and of the Church as a corporate entity rather than, or in addition to, a community of believers. Freeing the conscience, for Luther, meant removing it from the overreaching jurisdiction of the Church and restoring it to God. 27

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See, e.g., Mario Turchetti, Tyrannie et tyrannicide de l’Antiquite´ a` nos jours (Paris: Presses universitaires de France, 2001); Jean-Claude Zancarini, ed., Le Droit de re´sistance, XIIe–XXe sie`cle (Fontenay-aux-Roses: ENS e´ditions, 1999). Thomas Aquinas, Summa Theologiæ, 2.2.104.6. Trans. English Dominican Fathers (London: Burnes, Oates and Washburn, 1912–36) (on “Whether Christians Are Bound to Obey the Secular Powers?”). Ibid., 2.1.96.4. For Aquinas, while disobedience of superiors is a mortal sin in general (2.2.105.1), disobeying a lesser authority in order to obey a higher one (and especially the highest authority, God), is not (2.2.105.2). Note, e.g., Pope Boniface VIII’s “two swords” account of papal supremacy, which was to be displaced by the Reformation’s “two kingdoms,” a kind of return to Paul and Augustine (Boniface VIII, Unam sanctam, 1302). Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), 85–119, and in particular 113–15.

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The Christian conscience, pre-Reformation, had been institutionalized by way of such practices as confession and the centrality of priests in absolution,32 and indeed, the canon law of the Church governed not only ecclesiastical courts but also the forum conscientiæ itself, which was not necessarily – at least not yet – conceived of as a forum internum.33 Illustrative of this papal revolution and of the growing power of the clergy was the change in the formula of absolution from the ninth to thirteenth centuries, from “May you be absolved” to “I absolve you.” This movement coincided with the rise of the notion of a “Treasury of Merit,” which was necessary for the development of indulgences.34 In addition, the Church – principally with the Council of Lateran IV in 1215 – mandated annual auricular confession. Indeed, with the papal revolution, a whole economy of salvation arose, one that was not tied simply to clerical power and the corporatization of the Church but also to what Charles Taylor calls the “white magic” of the Church.35 1.1.2 Conscience and Heresy Lateran IV is also often identified as a key moment in the consolidation of orthodoxy, and thus with the identification of heresy and of specific responses to heresy, such as the inquisitio. Lateran IV even “represents in many ways the apogee of the prosecutorial impulse during the Middle Ages.”36 Church practice during this period is reflected in Aquinas’s words that heretics “deserve not only to be separated from the Church by excommunication, but also to be severed from the world by death,”37 for it was permissible to

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Sorabji, Moral Conscience, 96. It is worth acknowledging the existence of theological debates over whether confession to a priest was necessary for forgiveness or whether contrition was sufficient, especially prior to Lateran IV in 1215. Most “contritionists,” however, also asserted the importance of confession. For an overview of this debate, see, e.g., Marcia Colish, Peter Lombard (Leiden: Brill, 1994), 588–609. Joseph Goering, “The Internal Forum and the Literature of Penance and Confession,” Traditio 59 (2004): 175–227, at 175. Dominique Iogna-Prat, “Topographies of Penance in the Latin West (c.800–c.1200),” in Abigail Firey, ed., A New History of Penance (Leiden: Brill Academic Publishers, 2008), 167–68. Charles Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007), 72. Ian Hunter, John Christian Laursen, and Cary J. Nederman, eds., Heresy in Transition: Transforming Ideas of Heresy in Medieval and Early Modern Europe (London: Ashgate, 2005), 3. Aquinas, Summa Theologiæ, 2.2.11.3. Nevertheless, Aquinas here also pointed out that, in the interest of saving “the wanderer,” the Church does not condemn until “after the first and second admonition,” upon which the heretic should be excommunicated and delivered

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eradicate the tares if one could do so without harming the wheat.38 To properly consider the Church’s practices involved here, one therefore cannot and should not separate confession and inquisition:39 both testify to the Church’s control of conscience, reflecting pastoral care as much as pursuit of corporate and personal interest. The institutionalization of conscience and the Church’s claim of jurisdiction over conscience were compatible with differing understandings of conscience and its place in human life. For instance, for Aquinas, conscience was closely tied to practical reason and was “the application of knowledge” through some action.40 It was not itself a power but an act. Aquinas distinguished conscience from synderesis, which he understood also not as a power, but as a “natural habit” by way of which we are bestowed with “first practical principles.” We have here something close to the Pauline law written in our hearts. This first schema is thus characterized by the fact that conscience was given a central role in an economy of salvation, in particular by way of the practices of confession, inquisition, and excommunication. Because these practices accomplished both the discovery and absolution of sins, the preeminent power belonged to the institution of the Church, which was conceived as alone able to carry and transmit dogmatic truths, and to guide fallible consciences. 1.2 SECOND SCHEMA: THE RIGHT TO CONSCIENTIOUS CONVICTION – AUTONOMIZATION OR REENCHANTMENT OF CONSCIENCE?

Protestantism creates or privileges a direct relation of the individual conscience to the word of God (Scripture) without the mediation of an institution. This leads to the autonomization of conscience. In Luther and Calvin, conscience is distinguished from reason and appears, therefore, as the last bastion of enchantment in a disenchanted world, a world marked by the Augustinian separation between the temporal and spiritual cities. The autonomization of conscience proceeds, then, from a deinstitutionalization of conscience that is also, somewhat paradoxically, an enchantment of conscience: because

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“to the secular tribunal to be exterminated thereby from the world by death.” This is not to say, of course, that Aquinas was the source of the practice. Ibid., 2.2.11.3. Indeed, many members of Aquinas’s own Dominican order served as both confessors and inquisitors (as well as preachers). Aquinas, Summa Theologiæ, 1.79.13.

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conscience is the site of the sacred, the voice of God in man, it is affirmed as an unmediated source of knowledge of God’s law, thereby authorized to object to the positive law of state and church. We can see here a nonsecularized source of conscientious objection. One of the important critiques the Protestant Reformation addressed to Catholicism concerned its system of penances and its practice of the “terrorization of conscience.” Catholics such as Marsilius of Padua, John Wycliff, and Jan Hus had already criticized penances and absolution in the fourteenth century, but with Protestantism, these criticisms led to demands for religious liberty founded upon a new conception of conscience. With Luther and Calvin, the Reformation led to demands for the liberation of individual consciences from ecclesiastical authorities, but not from divine law, which was held to be objectively known. With the Radicals, for whom the interpretation of law must be free, conscience was liberated even as a subjective source of knowledge of divine law. For the Radicals, the autonomization of conscience could imply a right of resistance to political sovereigns, while some other Reformers adopted the inverse strategy by asking for freedom of conscience all the while affirming their political loyalty. 1.2.1 Liberty of Conscience and Deinstitutionalization Must a Christian follow his conscience when it objects to a positive civil law or a temporal sovereign’s command that does not conform to the commands that conscience itself reveals? From a Reformation viewpoint, the demand for religious freedom – that is, the civil liberty to practice a cult and to adopt nonCatholic dogmas – rests on the obligation all individuals have to obey their consciences. Luther’s response to the terrorization of conscience led him to develop a new conception of conscience, beyond his critique of the spiritual and temporal authority of the Church. He refused to recant at the Diet of Worms (1521) because the pope was attempting to forbid him from acting according to his conscience,41 and his conscience obligated him more than the state, the Church, or any other human institution. Following Augustine, Luther held that any effort to compel consciences would produce only hypocrisy – not true faith but a false and empty faith: that is, heresy. He held 41

As Luther is held to have famously said, “My conscience is captive to the Word of God: I cannot and will not retract anything, since it is neither safe nor right to go against conscience. I cannot do otherwise, here I stand, may God help me. Amen.” Martin Luther, Works, ed. Jaroslav Pelikan (St. Louis, MO: Concordia Publishing House, 1958), 32:130, 112. See also Edward Andrew, Conscience and Its Critics: Protestant Conscience, Enlightenment Reason, and Modern Subjectivity (Toronto: University of Toronto Press, 2000), 192.

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therefore that one is freed from obedience to both civil and ecclesiastical institutions if one’s conscience opposes itself to the obligations these define.42 We can see Luther’s break as a break with the Christianity that had developed in the Gregorian Revolution and following, with a particular emphasis on the role of the Church in an economy of salvation. A key part of the break involved a kind of repatriation of conscience to God and His Word by freeing conscience from ecclesiastical control. This involved a “reformation of the keys”43 given by Jesus to Peter,44 a reformation by which all Christians gained access to the keys and confessors were “demoted . . . from judge to servant.”45 Along these lines, freedom of conscience is the freedom to be freed from false doctrines and authorities, to be freed to receive true faith in direct submission to God, since conscience is the locus of an “unqualified faith.”46 One can also see this break as a decharging or discharging of the Church and its “magic,”47 and a charging or recharging of “conscience” as man’s point of contact, so to speak, with the divine. If the Catholic Church continued to be a religion of immanence, Lutheranism and particularly Reformed churches in their attack on idolatry and medieval Catholic piety turned Christianity into a religion of transcendence.48 Conscience itself became a kind of sacred interiority in which inhered, potentially, much of the sacredness previously held to be diffused only through the Catholic Church. This break was Luther’s initial move, and one that he quickly reconsidered. Shortly thereafter, Luther upheld state churches and the recourse to constraint, notably against Muntzer’s radical subjectivism and antinomianism in the Peasant War.49 In opposition to this radical subjectivism, Luther believed that if God reveals himself to the individual in his faith, freedom of conscience 42

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Martin Luther, “On Secular Authority” (1523), in Luther and Calvin on Secular Authority, trans. Harro Ho¨pfl (Cambridge: Cambridge University Press, 1991), 1–46. Ronald K. Rittgers, The Reformation of the Keys: Confession, Conscience, and Authority in Sixteenth-Century Germany (Cambridge, MA: Harvard University Press, 2004). Mt. 16:19. Jesus says to Peter, “I will give you the keys of the kingdom of heaven; whatever you bind on Earth will be bound in heaven, and whatever you loose on Earth will be loosed in heaven.” Rittgers, Reformation, 55. Rainer Forst, Toleration in Conflict: Past and Present (Cambridge: Cambridge University Press, 2013), 118. See, e.g., Taylor, Secular Age, 73–80. Carlos M. N. Eire, War against the Idols: The Reformation of Worship from Erasmus to Calvin (Cambridge: Cambridge University Press, 1996), 1–3. In his conclusion, Eire draws attention to the shift from the visual to the verbal and from the stained-glass window and the Mass to the vernacular Bible and the sermon (Eire, War, 317). See, e.g., Martin Luther, “Against the Robbing and Murdering Hordes of Peasants” (1525), in Martin Luther, Selected Political Writings, ed. J. M. Porter (Philadelphia, PA: Fortress Press, 1974), 85–88.

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is the freedom to receive this message. Luther understood Muntzer’s rebellion as “an illicit confusion of the two kingdoms,”50 since one must obey the secular authority to which the keys to the earthly kingdom have been given. And like Augustine in cases where a commanded action goes against one’s conscience, Luther advocated exhortation and martyrdom accompanied nonetheless by a verbal contestation rather than rebellion. In the third book of his Institutes of the Christian Religion, Calvin too posed the question. Paul’s view – that conscience itself requires obedience to temporal authorities – was for Calvin problematic, as it involves the submission of conscience not only to God but also to temporal authorities.51 For Calvin, however, liberty of conscience is Christian liberty and extends to three realms: Christians are, in the Pauline sense,52 delivered from the law in that grace saves, not works; they are free to decide according to their own judgment matters indifferent to their salvation (adiaphora); their conscience is submitted neither to the temporal kingdom nor to men generally, but only to the spiritual kingdom.53 Conscience is, in effect, a kind of witness of divine justice that is free from temporal laws but subject to the laws of the spiritual kingdom. For Calvin, conscience is witness to God’s judgment; it mediates between God and man – not as knowledge (for it can be corrupted by sin) but as a guardian that watches over each man: a witness of divine law for men and of men’s actions for God. How can freedom of conscience not imply a right to disobey sovereign commands that are contrary to what conscience deems just? Calvin’s answer to this difficulty was to hold that Christian liberty qua freedom of conscience does not justify civil disobedience.54 Put differently, and contrary to Luther’s position in On Secular Authority, conscience cannot limit the power of civil authorities and cannot subtract itself from these. In his chapter Of Civil Government, Calvin affirms that spiritual liberty can coexist with civil servitude.55 He distinguishes the two kingdoms but holds that temporal authority must ensure that “true religion” is respected.56 The magistrate is the guardian of the laws and he is of divine law. As a minister of God, his function is to secure “salvation and communal peace.”57 A Christian is therefore permitted to kill if a magistrate so commands because the magistrate holds his authority from God – the Christian who kills thereby obeys God.58 In a Christian polity, individual subjects do not have the right to disobey. If a command seems 50 51

52 55

Forst, Toleration in Conflict, 122. Rom. 13:1–7, cited by Jean Calvin, Institutes of the Christian Religion (Philadelphia, PA: Westminster Press, 1960), 3.19.15. Gal. 2:16–21; Rom. 3:21–31. 53 Calvin, Institutes, 3.19.14. 54 Ibid., 3.19.1. Ibid., 4.20.2. 56 Ibid., 4.20.2, 4.20.3–4, 4.20.6. 57 Ibid., 4.20. 9. 58 Ibid., 4.20.10–11.

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unjust, conscience is not permitted to disobediently oppose itself to it: one may plead, but one must obey. Referring also to Augustine, Calvin holds that the experience of injustice is a test for conscience, a means used by God to increase the number of good men. Obeying an unjust prince is, therefore, also to obey God,59 and a Christian must even pray for his persecutors.60 Only the case of a prince commanding an action directly contrary to God’s law, such as idolatry, allows for a conscientious objection that could make disobedience legitimate.61 In no other case is conscience permitted to object to a positive secular law. Moreover, Calvin approved of the Geneva Town Council’s decision to execute Michael Servetus for having denied the Trinity and baptism. 1.2.2 The Objecting Conscience and Civil Rebellion For a number of Reformers who wished to defend freedom of religion in the name of freedom of conscience, the challenge was to separate – in order to protect – a freedom of conscience that would be able to accomplish and realize itself within religious freedom, from rebellion. The Reformers in France needed to, in effect, defend themselves against accusations of rebellion, and of defending regicide or tyrannicide, which, their critics charged, were tied to and implied by freedom of conscience. The Reformers’ argument was to support a broader dogmatic pluralism contained within Protestantism. Freedom of conscience was thus upheld, on one hand, by way of a redefinition of heresy, and, on the other, by an argument both theological (scripture is obscure in dogmatic matters) and epistemological (a plurality of interpretations favors the discovery of truth). 1.2.2.1 The Huguenot Defense of Freedom of Conscience Some of these Reformers, like Castellion,62 accused Calvin of resorting to persecution and judging in advance the punishments that God might inflict. Because Calvin’s criminalization of heresy was not supported by any biblical passage, Castellion understood Calvin’s effort to this effect as itself a kind of heresy or a crime against the conscience. Castellion used Calvin’s Pauline reference but in an opposite way: for Castellion, the separation of the two 59 62

Ibid., 4.20.25, 4.20.28. 60 Ibid., 4.20.29. 61 Ibid., 4.20.32, 4.20.15. Se´bastien Castellion, Concerning Heretics: Whether They Are to Be Persecuted and How They Are to Be Treated: A Collection of the Opinions of Learned Men, Both Ancient and Modern; an Anonymous Work (New York: Columbia University Press, 1935), 167–72. A later work, Against the Book of Calvin, appeared only posthumously.

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kingdoms, spiritual and temporal, implies that spiritual crimes should be punished only spiritually, not by a temporal power. What is more, Castellion faulted Calvin for considering certain dogmas necessary to salvation that were in reality indifferent thereto. According to Castellion, for fundamental dogmas and the moral commands that are “written in our hearts,”63 there exists not orthodoxy, but a plurality of dogmas willed by God (as are the obscurities of the Bible) in order to make room for debate and a multiplicity of interpretations. Reason contributes to debate and interpretation for it is not entirely corrupted by sin, as it is for Calvin. A heretical opinion in a dogmatic matter is therefore, according to Castellion, in actuality nothing other than a conscience’s expression of what appears to it as true. Heretics act according to conscience and could not oppose themselves to it since it is a divine voice. In this sense, a heretic is the one we name as such when he does not agree with our opinions. By the time of his death in 1563, Castellion had rehabilitated, against Calvin, reason as a source of natural light allowing for the examination of Scripture, and defended the rights of individual conscience on the basis of a dogmatic relativism. A century later, on the eve of the revocation of the Edict of Nantes (1685), Basnage de Beauval64 argued, in a kind of theology of a hidden God, that the obscurities of Scripture require a plurality of interpretations. He affirmed the heuristic character of heresies, which he called “useful goads” (utiles aiguillons) for encouraging a plurality of dogmas and, thereby, the discovery of truth. By this he did not mean, however, that truth, once discovered, would impose itself on all consciences. Basnage de Beauval articulated the dual ideas of a criterion of universal truth and of a subjectivism in its discovery, the latter of which is tied to a particularism or relativism of beliefs. On one hand, he in effect affirmed that the true is what appears as such to conscience, in the face of which men are not free – they have the duty to obey what their conscience commands. Because beliefs cannot be freely chosen, they must be socially free – no temporal authority has the power or the legitimacy to change conscientious convictions – an argument taken up by Locke in A Letter Concerning Toleration. On the other hand, Basnage argued that what a conscience holds as true depends on historical contingency and received education. The defense of freedom of conscience as a universal instance of access to truth coexists in this way with a historicization of truth and its discovery. 63 64

Rom. 2:15. Henri Basnage de Beauval, Tole´rance des Religions (New York: Johnson Reprint Corporation, 1970).

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Basnage de Beauval and a number of other seventeenth-century Protestants, including Pierre Bayle, defended not only freedom of conscience understood theologically as Christian freedom, but also the rights of conscience in their civil dimension. For these thinkers, context played a decisive role in arguments supporting the rights of conscience. In countries such as France, where Protestants were in the minority, the defense of freedom of conscience (even erroneous) was a defense of freedom of religion. In his treaty on toleration,65 Bayle criticized the hypocrisy of declaring a false faith to which the Huguenots persecuted by Louis XIV were subjected. He held that the lumen naturale (conscience or reason, which are not perverted by sin) is a universal criterion, an innate rule enabling one to discern the true from the false, the good from the bad, with the same certainty as geometric truths.66 For Bayle, because it is the site of natural revelation, it is conscience that interprets Scripture,67 and that thus has an authority superior to every ecclesiastical or political institution. At the same time, he argued that the rights of conscience must be reciprocal: claiming a right to follow one’s own conscience implies granting this same right to others, even in cases of disagreement regarding the dogmatic or practical content of the obligation expressed by conscience. According to Bayle, the persecutors in Louis XIV’s France committed, then, a crime against God by forcing Protestant consciences to profess to what they judged to be false, for true faith or orthodoxy designate sincerity of belief rather than a specific dogmatic content. For Huguenots such as Bayle, the defense of the rights of conscience, even consciences in error, rested on the substitution of a subjective norm, the conscience, and a qualitative one, sincerity, for an objective norm of truth. The religious subjectivism that Bayle advocated values good faith over true faith. For detractors of Bayle and other Huguenots, such as Jurieu, this

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Pierre Bayle, A Philosophical Commentary on These Words of the Gospel, Luke 14.23, “Compel Them to Come In, That My House May Be Full,” ed. John Kilcullen and Chandran Kukathas (Indianapolis, IN: Liberty Fund, 2005). The reference in the title is to Christ’s parable about summoning the poor to a feast after others had declined, which Augustine had interpreted to justify the coercion of religious dissenters. Bayle, Philosophical Commentary, 1.1. Bayle criticizes the use of the parable of the great banquet (Lk. 14:23) and the parable of the wheat and the tares (Mt. 13:24–43) to justify the use of force against heretics. Augustine and Aquinas, but also Luther, wanted to uproot the “tares,” i.e. to expel heretics from society, when one could distinguish them from the faithful, rather than tolerate them in awaiting the Final Judgment (as Erasmus and Grotius interpret the parable, e.g.). Those using force against heretics justified their crimes by turning to the literal sense of the parables. Bayle criticized them by highlighting the literal sense of their practice: persecuting and forcing consciences are the true heresies.

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religious subjectivism was seen as skepticism68 that led to rebellion and needed to be fought. This subjectivism in religious matters was not truly a secularized individualism: the conscience still belonged to God, and religion, for Bayle, was not reduced to an entirely private affair. But Bayle’s theological and hermeneutic perspective, and others like it, had political consequences: it implied a defense of religious freedom for minority religions and more generally a defense of freedom of opinion. Some Monarchomachs like Duplessis-Mornay69 supported freedom of religion and opinion as natural rights and grounded them on both a theology and a form of skepticism. But on the eve of the revocation of the Edict of Nantes, some French Protestants70 took inspiration from Jean Bodin to safeguard religious pluralism by acquiescing to the absolute power of the sovereign as a secular power – attempting to gain a protector from religious persecution while demonstrating their political loyalty. While their effort to gain protection failed decisively, the groundwork was laid for a political unity that could be independent of the confessional unity of subjects, and compatible with freedom of conscience.71 1.2.2.2 The Defense of Freedom of Conscience and Radical Protestantism In England, Henry VIII’s sixteenth-century religious reforms had achieved the unity of political and ecclesiastical functions in the temporal authority. These reforms also gave rise to numerous treatises in England defending freedom of conscience in a manner favorable to Protestants.72 For William Ames, conscience is a witness and a judge, the voice of God against which no one is 68

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Richard Henry Popkin, The History of Skepticism from Erasmus to Spinoza (Berkeley: University of California Press, 1979); Jonathan I. Israel, Enlightenment Contested: Philosophy, Modernity and the Emancipation of Man, 1670–1752 (Oxford: Oxford University Press, 2006), 145–55. Discours sur la permission de liberte´ de religion, dicte Religions-vrede au Paı¨s-Bas (1578) was a pamphlet published anonymously in the Low Countries and attributed to Duplessis-Mornay. See Joseph Lecler, Toleration and the Reformation (New York: Association Press, 1960), 2: 576–77. Pierre Du Bosc, “Sermon XVI,” in Sermons (Rotterdam, 1692–1701), 625; Etienne Merlat, Traite´ du pouvoir absolu des souverains (Cologne, 1685); Jean Claude, Re´ponse au livre de M. de Meaux intitule´ Confe´rence avec M. Claude (Charenton, 1683). See also Les Plaintes des protestants cruellement opprime´s dans le royaume de France (Cologne, 1686), 120; and Elisabeth Labrousse, La re´vocation de l’Edit de Nantes (Paris: Payot, 1990). Lecler, Toleration and the Reformation, 2:622. Emile G. Le´onard, Histoire ge´ne´rale du protestantisme (Paris: Presses universitaires de France, 1988), 2:362–64. Often to the detriment of Catholics: one of the arguments in favor of the prohibition of Catholicism concerned the Catholic non-recognition of conscience. Milton wished to prohibit Catholicism, as Catholics did not respect the divine light or testimony of their

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authorized to act.73 Consciences are equal to one another, held Thomas Bilson,74 and they all have the natural capacity to interpret and complete supernatural Revelation – which does not necessarily exclude the unity of political and religious powers as favored by Richard Hooker.75 One of the points of controversy concerned the question of whether conscience must be assimilated to reason – or at least considered sufficiently rational to discover the objective sense of Scripture and accede to knowledge of natural law (a point of view closer to Thomism) – or, conversely, whether conscience is a divine voice distinct from reason and superior to it, including in its most subjective forms. The controversy was tied to the historicization of conscience entailed by the religious subjectivism in the Protestant concept of conscience. This subjectivism was a radicalization in an almost mystical way of Luther and Calvin’s theses, which held conscience to be the receptacle of a divine voice distinct from reason – in opposition to a Thomist perspective according to which reason participates in natural law. The defense of religious subjectivism is nevertheless distinct from the theses of the founders of Protestantism. Luther and Calvin in fact refused the idea that truth is subjective: what appears as true to conscience must be in conformity with Reformed dogma as they define it in accordance with Scripture, the sense of which is evident to them. The autonomization of conscience, for Luther and Calvin, signifies that it is a source of truth distinct from reason, in principle independent of temporal authority, but not necessarily that it is not submitted

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conscience. For Locke, Catholics had no freedom of conscience and therefore no Christian freedom; they do not judge by their own consciences, and they do not evaluate their duties. Thus, for Locke, Catholicism should not be “tolerated.” The argument here is not simply that Catholics obeyed a foreign prince (the pope). Contrarily, in 1613, after the assassination in 1610 of King Henry IV of France (the protector of the Huguenots), the Spanish Jesuit Sua´rez had published his Defence of the Catholic Faith against the Errors of the English Sect, in which he rejects the right of James to rule over the consciences of Catholics. On radical Protestants, see Andrew, Conscience, chapter 3, and Sorabji, Moral Conscience, chapter 9. William Ames, Conscience with the Power and Cases Thereof (London, 1639). Thomas Bilson, The True Difference betweene Christian Subjection and Unchristian Rebellion (London, 1585). This thesis of cura religionis was still adhered to by Jonas Proast, against whom Locke polemicized in his second and third “Letter Concerning Toleration.” See also the pamphlet by William Walwyn, The Compassionate Samaritane: Liberty of Conscience Asserted and the Separatist Vindicated (London, 1644); the defense of toleration by Baptist Roger Williams in The Bloudy Tenent of Persecution for Cause of Conscience Discussed in a Conference between Truth and Peace (London, 1644); and John Goodwin’s pamphlet entitled Hagiomastix or the Scourge of the Saints Displayed in His Colours of Ignorance and Blood (London, 1646). Baptists such as John Smyth, Thomas Helwys, Leonard Busher, John Murton, and Roger Williams also defended freedom of conscience. See also Thomas N. Corns, “Radical Pamphleteering,” in Neil H. Keeble, ed., The Cambridge Companion to Writing of the English Revolution (Cambridge: Cambridge University Press, 2001), 71–86.

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to any objective law. For Ames, it is the law of God written in the hearts of men.76 That the autonomization of conscience takes the form of a radical religious subjectivism, however, was the perspective of Levellers such as John Lilburne, Richard Overton, and William Walwyn, who opposed the Parliamentary Presbyterians favoring a state-controlled, compulsory, national Presbyterian Church.77 Their defense of a radical religious subjectivism articulates a defense of the rights of conscience and a defense of religious freedom as falling within the scope of civil rights. William Walwyn and Richard Overton support in this way the rights of conscience by an argument of progress from ignorance: knowledge of truth being acquirable by degrees, we consider as false – and therefore heretical – what we previously considered true. Coercing consciences is thus compelling hypocrisy; it is itself heretical. 1.2.2.3 Conscientious Objection to Military Service The emergence of the individual conscience in Protestantism, all the way to the first explicit articulations of conscientious objection, include therefore disagreements with regard to revelation and reason, heteronomy and autonomy, the authority of Scripture and freedom of interpretation. This genealogy of the modern concept of conscience allows one to understand how the defense of freedom of conscience led to one of the first modern articulations of conscientious objection to military obligations. Milton inspired the Levellers when he wrote that Scripture is for him an external authority while the supreme authority is that of spirit, which is internal and in every man. Being the judge of what he believes or not, every man must enjoy the right of conscientious objection. John Lilburne developed this thesis in his Agreement of the People (1648): the people’s representatives may not constrain the people to war if it is fought against their consciences. If some, like Rutherford, thought, to the contrary, that following one’s own conscience ran the risk of leading to a godless libertinism,78 a middle position was adopted by Quakers such as James Nayler or George Fox, for whom it belonged to every 76

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Williams Ames, The Substance of the Christian Religion (1659) (Doct. 1, Reas. 1). See also Jeremy Taylor’s Ductor Dubitantium or the Rule of Conscience in all Her General Measures (London, 1660); Richard Baxter, A Treatise of Self-Denial (London, 1675). Christopher Hill, The World Turned Upside Down: Radical Ideas during the English Revolution (London: Penguin, 1972), 107–51. See also Christopher Hill, Collected Essays of Christopher Hill (Amherst: University of Massachusetts Press, 1986), vol. 2: Religion and Politics in 17th Century England. Samuel Rutherford, A Free Disputation against Pretended Liberty of Conscience (London, 1649), as noted in Andrew, Conscience, 57.

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congregation, rather than to every individual, to discover and follow the principles they must observe. The argument of conscientious objection to military obligations developed by the Levellers (who were committed to the army) was transformed into a more general pacifist argument by the Diggers, particularly Gerard Winstanley. Conscientious objection to military service achieved a modern formulation with the radical Protestants precisely because conscience had been autonomized: while in the Catholic perspective the question of knowing whether a Christian could go to war had been decided by the duty to obey temporal authority, the sacred character of the Protestant conscience enabled it to disassociate itself from temporal obligations – in the name of a particular demand of conscience just as in the name of a more general pacifism. It is in this way that the schema that can be articulated from radical Protestantism is characterized by a deinstitutionalization of conscience. Freedom of conscience, which alone reveals the obligations necessary for salvation, implies that conscience must be autonomous, must be freed of relation to every institution, including religious ones. This deinstitutionalization of conscience tends to constitute conscience as a free and autonomous sphere, within which temporal and spiritual authorities may not legislate either because such legislation would be illegitimate (no temporal authority may oppose the duty of individuals to obey their conscience), or because such legislation would be ineffective (no authority has such power), or because it would be counterproductive (it would destroy the pluralism of opinions necessary to the discovery of truth). More than Luther and Calvin, it was the radical Protestants who deinstitutionalized conscience by justifying religious subjectivism and freedom – derived from the primary obligation to follow what conscience indicates. 1.3 THIRD SCHEMA: DISSOLVING CONSCIENCE, RATIONALIZING POLITICS

Some have argued that the emphasis on individual conscience paved the way for the concepts of equality, representation, and self-determination: freed from an ecclesiastical institution imposing dogmatic conformity, conscience became a sphere of freedom that each person enjoys, who is thereafter made available to enter into contracts, property, and the market.79 While it is difficult to see a direct relation between individual conscience and political 79

Erik Erikson, Young Man Luther: A Study in Psychoanalysis and History (New York: Norton, 1958), 225.

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representation, it is nonetheless the case that the Lutheran conception of conscience partially lifted ecclesiastical control over society, sanctifying property and contracts, which became inviolable as long as they did not contravene conscience.80 The liberty moderns conceived was not simply the result of an inherent property right in one’s own body, a right that grounds a natural right over the fruits of one’s labor.81 That liberty was also conceived as a property in one’s person, that is, of one’s conscience and reason, thereby grounding a natural right to alienate one’s rights to a third party’s benefit (Hobbes), to the benefit of a political society and then magistrate (Locke), or for the sake of the restoration of those rights in political form (Rousseau). But the deinstitutionalization of conscience threatens precisely what it made possible: by being a free sphere in dogmatic matters, by making possible the formulation of objections to civil obligations all the way to the military defense of the state, individual conscience threatens political authority as such, a political authority that is nonetheless conceived of as the result of a free self-commitment of individual consciences.82 To resolve this quandary, social contract theorists adopt two strategies. The first is developed by Hobbes, who founds the individual capacity to contract on a calculation of reason, and incarnates natural persons in an artificial person that is the sovereign representative who can therefore disqualify conscience as shaped by individual opinions, which are unstable and potentially seditious. The distinction, within each man, of conscience and reason allows Hobbes to reduce freedom of conscience to freedom of opinion, and conscience to opinions, the latter of which must be regulated by a civil authority that achieves peace and security. The second is developed by Locke, who grants to individual conscience the power to contest law, but subjects this power to object to a collective decision that alone can evaluate the legitimacy of an objection. In both cases, conscience loses its autonomy in losing its capacity to object. This is one of the paradoxical consequences of the birth of political liberalism in its contractarian version: conscience as an autonomous sphere is absorbed either by the political sovereign or the people. It can no longer object individually. 80

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Berman, Law and Revolution, 30. Andrew notes that “[i]n The Communist Manifesto, Marx and Engels wrote that freedom of conscience is the appropriate ideology for the capitalist marketplace, in that it applies the principle of free competition to religious goods and services.” Andrew, Conscience, 55. Crawford B. Macpherson, The Political Theory of Possessive Individualism: From Hobbes to Locke (Oxford: Oxford University Press, 1962). Strictly speaking, it is wills that are held to contract, and not consciences. But it is consciences that, in the state of nature, obligate the forum internum to obey natural laws, the latter of which command to contract, to engage one’s will, with others in order to preserve oneself.

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1.3.1 Hobbes and the Savage Conscience Hobbes is deeply concerned about Protestant tendencies to antinomianism and seeks to overcome the opposition between law and conscience.83 The translation of Scripture into the vernacular led to a multiplicity of interpretations, to disagreements,84 and to a permanent redefinition of heresy – with men accusing one another of not bending to the truths revealed to their own consciences.85 The defense of the rights of conscience made by the Independents, Anabaptists, Fifth Monarchy Men, Quakers, and Adamites,86 but also in “the Schools and Universities,”87 including the defense of the rights of erroneous conscience,88 directly contradicted the duty to obey civil law. That defense, for Hobbes, was but a seditious opinion leading to civil war89 and to the death of the commonwealth,90 that is, leading to that state of nature in which life is “solitary, poor, nasty, brutish and short.” Hobbes therefore redefines conscience as opinion or private judgment.91 Opinion, or private judgment, is protected in the forum internum – a sphere of liberty that no temporal authority should try to legislate.92 However, once it leads to action, it must be limited by law.93 The positive law is the will of the sovereign, that is, the “public conscience,”94 the reason or judgment to which individuals delegated their peace and security. While there remains in Hobbes a positive freedom of conscience in the form of the intimate conviction formulated by juries in a trial, and which cannot be cast aside by the judge,95 the adhesion of the individual to the public reason or conscience is necessary, like the cup of bitterness subjects must drink down to the dregs.96 83

84

85 87 89 90

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92 93 94 96

R. E. Erwin, Virtues and Rights: The Moral Philosophy of Thomas Hobbes (Boulder, CO: Westview Press, 1992). See also Johann Sommerville, “Leviathan and Its Anglican Context,” in Patricia Springborg, ed., The Cambridge Companion to Hobbes’s Leviathan (Cambridge: Cambridge University Press, 2007), 358–74. Thomas Hobbes, Behemoth, in William Molesworth, ed., English Works (London: John Bohn, 1839–45), 6:190. Ibid., 6:174–75, 4:188. 86 Ibid., 6:167. Hobbes, Leviathan, in Molesworth, English Works, 3:331. 88 Ibid., 3:311. Hobbes, Behemoth, 6:191, 225–26. Thomas Hobbes, On the Citizen, ed. Richard Tuck and Michael Silverthorne (Cambridge: Cambridge University Press, 1998), 12.1–2. Thomas Hobbes, Human Nature, or the Fundamental Elements of Policy, in Molesworth, English Works, 4:29–30; Hobbes, Leviathan, 3:53. Hobbes, Leviathan, 3:684. Ibid., 3:311 (see also 3:164–65); Hobbes, Behemoth, 3:167; Hobbes, On the Citizen, 5.5; 6.11, 12. Hobbes, Leviathan, 3:311. 95 Ibid. This is the thesis of Andrew, Conscience, 76–78. See also John Dunn, “The Claim to Freedom of Conscience: Freedom of Speech, Freedom of Thought, Freedom of Worship?,” in O. P. Grell, J. I. Israel, and N. Tyacke, eds., From Persecution to Toleration: The Glorious Revolution and Reason in England (Oxford: Oxford University Press, 1991), 171–94, at 176.

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To discredit conscientious objections, therefore, Hobbes places the sovereign and the subjects in an asymmetric position. For the subjects, he distinguishes and separates conscience and reason. Because they are disruptive and revolutionary, too close to enthusiasm97 and its potentially destructive effects, the consciences of subjects must be dissolved, redounding to the benefit of reason. It is on the basis of this distinction that Hobbes conceives the individual rights that found the social contract and political autonomy understood as the result of an act demanded by reason (the contract), all the while subjecting individual consciences to the civil law issuing from this contract.98 In Leviathan, representation reinforces this subjection by making every rebellion appear contradictory (the individuals who consent to the contract cannot disobey the law without contradicting themselves), irrational, and apolitical.99 Conscientious objection is a mistaken calculation or reasoning. For the sovereign, on the other hand, reason and conscience are equated, or the sovereign’s conscience is promoted as public reason. This is close to the position of Thomas Erastus, for whom spiritual powers belong to temporal authority, which is also the proper interpreter of Scripture. The sovereign’s conscience, or his reason, promulgates positive law, which is included in the general concept of law along with natural law, the law of the church, and divine law.100 Hobbes seeks in this way to eliminate the risk of sedition: on one hand, by dissolving the individual consciences of subjects to make room for reason, a reason that must necessarily consent to the social contract and the sovereign’s law, and that would only contradict itself by disobeying the authority it instituted; on the other, by attributing to the conscience of the sovereign the status of public reason. 1.3.2 Locke and the Judgment of Conscience: A Right to Revolution? The other option held by modern contractarianism is that of Locke. Despite granting an apparent right of revolution, he conceives of the social contract as a way to avoid conscientious objection leading to civil disobedience. Locke first based his defense of toleration on freedom of conscience and supported the latter in a classical Protestant way. After having criticized Edward Bagshaw and his claims for total freedom of conscience (in the 97 98

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Hobbes, Leviathan, 3:311–12. Ibid., 4:691. On the thesis that Hobbes writes against republicans, see Quentin Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, 2008). Julie Saada, Hobbes et le sujet de droit. Contractualisme et consentement (Paris: CNRS Editions, 2010), 180–84. Hobbes, Leviathan, 3:253–54.

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unpublished Tracts on Government, 1660), Locke aims to define a sphere of freedom of conscience by distinguishing it from political and religious obligations (An Essay on Toleration, 1667). Later, in A Letter Concerning Toleration (1689, written in 1686), Locke is still positive about freedom of conscience but in an ambivalent way. On one hand, in the “Letter,” he upholds freedom of conscience and thinks like most of the Reformers that force and prohibition are not effective ways to persuade Protestant dissenters, whereas freedom of conscience granted to all as a natural right would extinguish sectarian, radical, and seditious movements.101 He also grounds the positive civil law on the laws of nature, which are divine (as he had in the earlier Questions Concerning the Law of Nature, 1664).102 For Locke just as for Hobbes, freedom of conscience and civil peace are opposed to one another. But while Hobbes affirms that the doctrines of freedom of conscience and of absolute property rights cause revolution, that is, civil war, Locke thinks, to the contrary, that revolution and civil war result from the failure to respect these rights.103 Locke shows more the irrationality of coercion in religious matters than its illegitimacy: since beliefs do not depend on the will of individuals it is beyond the power of the state to coerce consciences. On the other hand, A Letter Concerning Toleration is mainly focused on the necessary separation of state and church by virtue of the ends that preside over their institution. According to Locke, toleration would result from this separation, a separation that would open a sphere of freedom concerning matters that are not necessary to salvation while restricting the power of the church over the state. Here, toleration no longer rests upon freedom of conscience, but upon the limitations of the authority of the state and of the church, the latter considered as a private association. The Second and Third Letters Concerning Toleration (1690, 1692) are also replies to Jonas Proast, who supported freedom of conscience in a way that had by this point come to be understood by Locke as a kind of subjectivism and enthusiasm that could threaten the political stability and the legitimacy of the positive law. This shift appears also in An Essay Concerning Human Understanding (1689) where Locke holds, like Hobbes, that conscience is nothing other than particular opinion. Here, he identifies conscience as a collection of moral 101

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Locke, “A Letter Concerning Toleration,” in David Wootton, ed., Political Writings (Indianapolis, IN: Hackett, 2003), 390–435, at 427. John Locke, Questions Concerning the Law of Nature, ed. Robert Horwitz, Jenny Strauss Clay, and Diskin Clay (Ithaca, NY: Cornell University Press, 1990). James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 2009), 60.

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opinions resulting from education and custom104 or the opinion we have of ourselves and that constitutes our personal identity.105 It is not, however, the capacity to make autonomous moral choices, a divine witness, a natural light, or innate ideas.106 Conscience is disqualified from interpreting Scripture, since that interpretation must be guided by reason to avoid enthusiasm.107 Conscience is also disqualified in matters of worship – Locke advocates religious uniformity for reasons of civil peace108 – and in moral matters: like Bayle, he thinks that the love of virtue proceeds not from upright conscience but from the love of glory.109 Like Hobbes, and against Bagshaw, Locke fears the anarchical consequences of freedom of conscience. He assimilates claims for the rights of conscience to license leading to zealous enthusiasm. The claims of conscience stir up the revolt of the ignorant masses and make of each man, in the name of the sacred character of his conscience, a being subject only to God, a lawgiver rebelling against all temporal authority. Locke refuses to grant religious freedom to Protestant dissenters as well as to – though for other reasons – “papists” and atheists.110 More generally, he grants to magistrates the right to limit the claims of conscience in the name of social peace. At first glance, Locke’s Second Treatise of Government (1689) appears to be more open to claims of conscience. While it makes few references to conscience, in what few there are, it is no longer opposed to reason.111 In the state of nature, conscience judges whether the natural law has been violated.112 In the civil society, conscience obligates one to obey positive law;113 individuals agreed by social contract to let the majority judge in the body politic.114 This consent to majority judgment, however, does not eliminate conscience’s judgment. When a magistrate violates natural law and abuses his power “every man is judge for himself . . . whether another hath put himself into a state of war with him, and whether he should appeal to the supreme Judge, as Jephthah did”:115 individual conscience may judge whether the magistrate 104

105 108 109

110 111

112

John Locke, “Essay Concerning Human Understanding,” ed. Peter H. Nidditch (Oxford: Clarendon Press, 1975), 1.2.8–14. Ibid., 2.26.16–19. 106 Ibid., 1.3.1–3, 1.3.13. 107 Ibid., 4.19.3–6; 4.18.5–6; 4.19.14. John Locke, “First Tract on Government” (1660), in Wootton, Political Writings, 145. John Dunn, The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969), 50–51. Pierre Bayle, Pense´es sur l’athe´isme, ed. Julie Boch (Paris: Desjonque`res, 2004). Locke, “Letter Concerning Toleration,” 409, 426. Locke, Second Treatise of Government, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), § 8. Locke here joins calm reason and conscience as the proper arbiter, in the state of nature, of the right of proportionate private retribution against transgressors of the laws of nature. Ibid., § 8. 113 Ibid., § 122. 114 Ibid., §§ 95–99. 115 Ibid., § 241.

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commits illegal acts, and may therefore authorize civil disobedience.116 The judgment of a citizen who in the name of his conscience opposes a magistrate does not have anarchical consequences, contrary to the detractors of freedom of conscience who would reduce conscience to fanatical enthusiasm or private opinion. Locke instead attributes to government the responsibility for rebellion when it deprives its citizens of their fundamental rights by violating their liberty and property:117 the summum malum is not civil war but oppression by the government. Locke even advocates that citizens not wait to remedy such oppression,118 thereby legitimating the judgment of conscience and its practical consequence, that is, civil disobedience and the dissolution of government. The right to private judgment does not appear anarchistic here:119 it looks both revolutionary and legitimate. But Locke adds one condition: the individual who disobeys in conscience should appeal to the people.120 The power that each individual gave to society, which then chose magistrates, returns then to society. And civil disobedience can be legitimate only if it is shared by a sufficient number of citizens who object in the name of their consciences: an individual conscience’s judgment, which objects to illegitimate governmental actions, cannot itself be legitimate unless it is shared by the people. To be sure, Locke holds that it is legitimate to dissolve the government when the magistrate violates natural laws, whereas Hobbes holds that it is never legitimate to do so. Conversely, while Locke allows for rare situations in which the contract made according to the majority rule121 can be nullified, he holds private contracts and property to be inviolable, whereas Hobbes affirms the inviolability of the social contract and, ultimately, makes all property and private contracts depend on the will of the sovereign. But in both cases, the individual conscience may not object. For Hobbes, whether individually or collectively, no social contract may legitimately be broken: resistance is not a right but a violation of law, a seditious opinion carried over into action. For Locke, resistance to an unjust magistrate – that is, one who violates the natural and divine laws that are at the foundation of positive laws – may only be undertaken collectively: the people returns to its original contract of association to collectively depose the magistrate, who had been designated by a second contract and a rule of majority. If the social contract does not suppress an individual conscience’s judgment, it nevertheless prevents 116 119 121

Ibid., § 209. 117 Ibid., §§ 168, 221–30. 118 Ibid., §§ 220, 240 (see also §168). Ibid., §§ 168, 208–09, 230. 120 Ibid., §§ 240–42. Ruth Grant, John Locke’s Liberalism (Chicago: University of Chicago, 1987), 115; Alex Tuckness, “Locke’s Political Philosophy,” ed. Edward N. Zalta, The Stanford Encyclopedia of Philosophy (spring 2016 edn.), https://plato.stanford.edu/archives/spr2016/ entries/locke-political/.

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conscience from directly opposing itself to law or to government. The Lockean conception of conscience, which evolved over his different works, aims to defend the religious freedom of Protestants and to exclude Catholics and atheists just as much as it seeks to avoid having conscience be the standard by which subjects decide whether to obey, that is, be directly and legitimately opposable to government. Conscientious objection enables us to shed light on an ambivalence of modern political liberalism, at least in its contractarian form. Relying on individual rights and a legal individualism issuing from the hypothesis of a state of nature, modern contractarian theories derive law from right, make positive law a product of pre-political and individual rights, and define, at least for some theorists, the right to a private sphere free from state intrusion and a freedom of expression including the right to contest power. But at the same time, consent to the social contract drastically reduces the contestation of power, either by equating the demands of freedom of conscience or more generally, the possibility of consciences to object, with particular irrational opinions (the best guarantee against conscientious objection is then the total and definitive alienation of conscience by way of contract), or by absorbing the objection of individual consciences into a collective will and procedure that alone enjoys legitimacy. And so, for both Hobbes and Locke, the individual who has the power over himself, his own body, and his private opinions that constitute his conscience accomplishes his freedom in the private sphere: he is rendered available to committing to civil society, the market, and private contracts. Rousseau may be said to accomplish the same thing by different means. The whole of Rousseau’s political project involves making conscience, individual will, and the law coincide in the form of self-government or political autonomy (he is followed in this respect by Kant). Rousseau defends conscience as a “divine instinct,”122 but theorizes a kind of social contract able to produce a unity of will – that of the people in the form of the general will: and because it is the people that wills, the objections that conscience might issue are deprived of any legitimacy in advance. Conscientious objection, then, provides a relevant test for assessing the degree of civil liberty the modern social contract theorists leave to the individual. Later utilitarian theories are still less concerned with freedom of conscience – the Lockean version of which is, for Mandeville, merely a way to

122

See the “Profession of Faith of the Savoyar Vicar,” in Jean-Jacques Rousseau, Emile or On Education, trans. Allan Bloom (New York: Basic Books, 1979), 266ff.

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support freedom of commerce – even as they support the virtue of tolerance, and the epistemological and political virtues of pluralism. 1.4 FOURTH SCHEMA: THE RIGHT TO CONSCIENTIOUS OBJECTION AS A RIGHT TO CIVIL DISOBEDIENCE

Social contract theories justify the moral obligation each citizen has to obey the law by the idea that each citizen has consented to obey the laws since laws derive from the general will in which he participates. Under the rule of law, citizens obey only themselves – so much so that obligation, as distinct from being forced,123 is a question of conscience, an internal relation of self to self. The question is then to know whether conscientious objection violates the very principle of political autonomy. How can one object in the name of one’s conscience without contravening the conditions of collective freedom themselves, that is, the political autonomy and equality constituted by the social contract? Conscientious objection appears as a repudiation of the will of the majority of citizens, even though the objector claims to look to the general interest of the community: the objector claims that the principle, on the basis of which he objects to and refuses to comply with the general will, is more just than the general will and therefore superior to it. And beyond the original contract, enjoying the benefits of social life made possible by the existence of the state and laws would alone make one beholden to them and suffice to justify one’s obedience. Beyond the difficulties presented by contractarian theories, another difficulty of conscientious objection is to know how one can invoke a law that transcends positive law in order to contest the latter, without favoring heteronomy, that is, a transcendent source of law. Conscientious objection must either lead to the realization of the principle that it invokes – by way of an institution (party, union, association) or a collective action (civil disobedience) – or remain at the margins of institutional processes in order to conserve itself as conscience and preserve its dimension of individual contestation. In the first case, it ceases to be the individual expression of a refusal and loses itself in a collective process. In the second case, it excludes itself from the collective process and loses its political dimension in the name of a moral perfectionism impossible to realize in practice – objection is reduced to a desire for a special dispensation. In both cases, conscientious objection loses its distinctive character. 123

Jean-Jacques Rousseau, The Social Contract and the First and Second Discourses (New Haven, CT: Yale University Press, 2002).

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From these difficulties, we can draw out the specific elements of our fourth schema, in which the juridification of conscientious objection is rendered possible. On one hand, conscience is seen as a source of legitimate conviction that authorizes nonaction or nonparticipation in the law that the individual, qua citizen, is nevertheless considered to will. On the other, the legitimate character of objection derives from a principle of justice distinct from legality, but that leads conscience to commit beyond itself (conscientious objection is not a demand for a special dispensation) and calls for a transformation of the political community. In this sense, conscientious objection articulates itself as civil disobedience. 1.4.1 Doing Nothing to Change Everything? Hannah Arendt sees conscientious objection as an individual and exceptional withdrawal from social life, a refusal to cooperate, a nonaction, a refusal of the solidarity at the basis of all society.124 Indeed, conscientious objection includes a refusal of the political relation once it consists in accepting the advantages of society but refusing the moral and political costs implied by these; or, to put it in a nonutilitarian way, once it is, above all, a refusal to live in society with others. Conversely, civil disobedience would be an action that finds its meaning within a collective movement aimed at transforming society.125 But whether one is considering conscientious objection or civil disobedience, both of these forms of non-obedience break with traditional theories of civil resistance to government, which made the refusal to submit to injustice depend either on transcendent obligations (right of tyrannicide) or on clauses of the political contract (right of civil resistance or right of resistance to oppression). Both also challenge the central element of contractarian theories, that is, the idea that the consent of individual wills in a social contract legitimates all the decisions taken by the authority issuing from this contract. Both are refusals to participate in the exercise of power that do not turn to institutional mechanisms of counter power. Conscientious objection raises the question of the significance of nonaction in politics, and particularly so in theories that conceive of democracy through acts of the will (deliberative, participatory, contesting democracy) or believe it 124

125

Hannah Arendt, “Civil Disobedience,” in Crises of the Republic: Lying in Politics, Civil Disobedience, On Violence, Thoughts on Politics and Revolution (New York: Harcourt Brace Jovanovich, 1969), 49–102. Sandra Laugier and Albert Ogien, Pourquoi de´sobe´ir en de´mocratie? (Paris: La De´couverte, 2010); Hourya Bentouhami-Molino, Le de´pot des armes. Non-de´sobe´issance et de´sobe´issance civile (Paris: Presses universitaires de France, 2015).

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to be derived from the will (contractarian theories). If conscientious objection is a nonaction, a refusal to cooperate, a withdrawal, then it locates itself in the private sphere once it subtracts itself from participation in public choices.126 In this way, the withdrawal or “inner emigration” Thoreau undertook at Walden was justified by a perfectionist ethic inspired by Emerson,127 an autarchic model of self-accomplishment that aimed for the authenticity of a life worth living – that is, a life led according to principles of truth that are naturally accessible and evident128 once one distances oneself from empty business.129 Withdrawing in this sense, into solipsism or the ipseity of one’s conscience, is a way of avoiding complicity with a world of which one disapproves. To object in the name of one’s conscience is to withdraw from the world, but not necessarily to disobey. The figure of Socrates – widely invoked by scholars during the protest movements against the Vietnam War130 – values at once the criticism of laws in the name of individual conscience and obedience to these, even to the point of accepting a death sentence. Transforming objection into disobedience (i.e., had Socrates escaped to avoid his sentence) would have, conversely, justified the laws of which Socrates disapproved.

126

127

128

129 130

See, e.g., Henry David Thoreau “Life without Principle,” in Walden and Other Writings (Modern Library, 1937), 730; and “Civil Disobedience,” in Walden and Other Writings (Modern Library, 1937), 637–78, at 642. See, e.g., Ralph Waldo Emerson, “Self-Reliance,” in Self-Reliance, the Over-Soul and Other Essays (Claremont, CA: Coyote Canyon Press, 2010), 19–40. On “evident,” see, e.g., the beginning and end of the “Higher Laws” in Thoreau, Walden; “Civil Disobedience”; “A Plea for Captain John Brown.” On “naturally,” note that Thoreau sometimes uses “supernaturally.” In “Civil Disobedience,” Thoreau argues that the citizen ought not to abandon his conscience (636) because it emerges from the divine (643) or from a transcendent law (651) and its action – “action from principle” – is “essentially revolutionary” (643). See, e.g., Thoreau, “Life without Principle.” And in the following years, see Andrew Barker, “Why Did Socrates Refuse Escape?,” Phronesis 22 (1977): 13–28; James C. Dybikowski, “Socrates, Obedience, and the Law: Plato’s Crito,” Dialogue 13 (1974): 519–35; J. Peter Euben, “Philosophy and Politics in Plato’s Crito,” Political Theory 6, no. 2 (1978): 149–72; James G. Gene, “Socrates on Civil Disobedience and Rebellion,” Southern Journal of Philosophy 11 (1973): 119–27; N. A. Greenberg, “Socrates’ Choice in the Crito,” Harvard Studies in Classical Philology 70 (1965): 45–82; Robert McLaughlin, “Socrates on Political Disobedience,” Phronesis 21 (1976): 185–97; Jeffrie G. Murphy, “Violence and the Socratic Theory of Legal Fidelity,” in Retribution, Justice, and Therapy: Essays in the Philosophy of Law (Dordrecht: Springer Netherlands, 1979), 40–57; Martin Rex, “Socrates on Disobedience to Law,” Review of Metaphysics 24 (1970): 21–38; Gregory Vlastos, “Socrates on Political Obedience and Disobedience,” Yale Review 63 (1974): 517–34; Gary Young, “Socrates and Obedience,” Phronesis 19 (1974): 1–29; A. D. Woozley, “Socrates on Disobeying the Law,” in G. Vlastos, ed., The Philosophy of Socrates (Garden City, NY: Anchor Books, 1971), 299–318.

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From this point of view, only nonaction and the acceptance of legal penalty, illustrated in the Apology just as in the Crito, allows one to critique law in a coherent manner. 1.4.2 To Object, To Disobey But here we see the difficulty of separating nonaction, withdrawal, and the acceptance of penalties resulting from conscientious objection, from the action of disobedience: in obeying, Socrates contests. He engages in a form of public discourse that seeks to change opinion, to sting it like a gadfly,131 and transform the laws. One understands why Socrates has been viewed as a precursor to civil disobedience: beyond the question of knowing whether Socrates decides not to participate or not to obey (by not recognizing the gods of the polis, by adopting another god, by philosophizing with the youth in the Apology) or to obey the law of the polis (Crito), Socrates disobeys by obeying – that is, by insisting on his belonging to the polis and accepting his death sentence while showing the inconsistency of the law. At the same time he withdraws himself from the law of the polis by invoking another and superior justice commanded by his daimon that he couldn’t disobey.132 Even his death becomes a protest.133 In this vein, many commentaries were written during the 1970s in order to argue that following one’s conscience and objecting to the law is a form of civil disobedience. This kind of objection to law has been understood as a politicization of the Socratic affirmation that it is better to suffer injustice than to commit it.134 It has also been interpreted as a plea for conscientious objection understood as part of a dialogue that invites other consciences to criticize the laws and transforms the passive acceptance of punishment into a political contestation of the order of community. To take a converse ancient example, in Sophocles’s Antigone criticism or objection in the name of conscience is directly tied to Antigone’s disobedience of the laws. Antigone is another figure invoked and reinvested in the 1960s, and is one of those most present in arguments justifying civil disobedience. If in the ancient Greek polis, the notion of individual moral conscience does not exist, because the good of the individual is not conceived as separate from the good of the polis and cannot easily enter into conflict with it, the invocation of another law – natural, transcendent, or religious-archaic according to later

131 134

Plato, Apology of Socrates, 30e. 132 Ibid., 38a. Plato, Crito 49a–e; Gorgias 474b, inter alia.

133

Ibid., 38e.

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commentators135 – introduces stasis into the polis.136 Whereas Antigone’s refusal to obey Creon is understood by Jean-Paul Sartre and Nicole Loraux as bringing to light antinomies within law,137 Judith Butler sees a way of overcoming these antinomies, not by way of a higher synthesis, but by a symbolic undoing of the laws themselves.138 For Antigone contests four laws: the laws of the polis (she disobeys Creon), the law of lineage (she disobeys her uncle and defines herself before all as her brother’s sister), the law of gender (she disobeys as a woman), and the law of family (she will not become a wife). Antigone stages, at one and the same time, both acceptance of the penalty with which conscientious objection is met, and civil disobedience. Antigone stages a nonaction (the refusal of and withdrawal from the polis: she prefers to be expelled from the polis – her death sentence – than to obey the law of the polis), which is an action (the burial of her brother, the open contestation of the laws of the polis). Antigone disobeys openly, while Socrates obeys. But, in both cases, the distinction between refusal in conscience and disobedience in action is tenuous. The distinction between a refusal in conscience, withdrawal and nonaction, on one hand, and civil disobedience as a political and collective action, on the other, is also made by E´tienne de la Boe´tie, another great figure attached to civil disobedience. In his Discourse on Voluntary Servitude (1548), known to Protestants and printed multiple times during the sixteenth century in the form of pamphlets, he argues that once it is seen that tyranny no longer rests on the unbridled will of the tyrant but rather on the passivity of those oppressed by him, it suffices to cease to obey the tyrant for tyranny to collapse (or as Thoreau will say later, it suffices to cease to consent).139 The simplicity of the means of undoing the system of tyranny by ceasing one’s participation in it – by withdrawing one’s obedience without active resistance – transforms inaction, that is, the refusal in conscience of domination, into political action. Whether it arises out of a feeling of collective indignation that carries within it a positive action, or out of shame at not involving oneself in the conditions of 135

136

137

138

139

For a general presentation of the interpretations or readings of Antigone, see George Steiner, Antigones (Oxford: Clarendon, 1984), and Kathrin H. Rosenfield, Antigone: Sophocles’ Art, Ho¨lderlin’s Insight (Aurora, CO: Davies, 2010). Nicole Loraux, The Divided City: On Memory and Forgetting in Ancient Athens (New York: Zone Books, 2002). Jean-Paul Sartre, “Forger des mythes,” in Un the´aˆtre de situation (Paris: Gallimard, 1992), 57–69; Nicole Loraux, “La main d’Antigone,” in Sophocle, Antigone (Paris: Les Belles lettres, 2002), 105–45. Judith Butler, Antigone’s Claim: Kinship between Life and Death (New York: Columbia University Press, 2000). See also Steiner, Antigones. Thoreau, “Civil Disobedience,” 642.

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the actualization of freedom, an awareness of the participation of subjects or citizens in the power that oppresses them demonstrates three principal things: first, that refusals of conscience are themselves collective actions; second, that forms of life precede their eventual recognition by law (in the form of conscientious objection in positive law); and third, that contestation can take root in a refusal to will and to participate. This refusal, nevertheless, is to be distinguished from contractarian-voluntarist theories in both their liberal form (where individual will is considered as only private, nonpolitical will, seen as a sphere of freedom) and their republican form (where individual wills merge into the general will, or in participation in public life, seen as the true sphere of freedom). Because the conscience that presides over conscientious objection is conscience of its own responsibility in the face of the collectivity – conscience of the effects of its actions on the collectivity,140 and more broadly, conscience of a collective responsibility with regard to those deprived of freedom (for example, slaves, for Thoreau) – it embraces a collective dimension instead of constituting a withdrawal into a forum internum. Thoreau deduces, logically, the necessity of moving from conscientious objection or withdrawal to collective action. Each individual is responsible for the effects of his acts on the political community to whose existence and shape he contributes,141 and for the benefits he draws from collective life, and therefore if the community is unjust, so too are those acts and benefits. Protesting in good conscience, out of shame for participating in an unjust society, implies a refusal to unburden oneself of one’s own responsibility – the state, the institutions, the laws being none other than the result of our individual actions, and not the product of an originary and collective will.142 How, then, can one maintain the distinction between conscientious objection and civil disobedience? Must one consider the passive disobedience advocated by la Boe´tie as a nonaction analogous to conscientious objection, or as an action analogous to civil disobedience (in the sense that it can undo tyranny)? Must Thoreau be placed on the side of conscientious objectors when he refuses to obey – withdrawing to Walden, refusing to pay his taxes, contesting the war against Mexico, demanding the freeing of slaves to protest the Fugitive Slave Act – or, conversely as practicing civil disobedience143 from 140 142 143

Thoreau, “Slavery in Massachusetts,” in Walden and Other Writings, 659. 141 Ibid., 668. Thoreau, “Civil Disobedience,” 649. Thoreau did not coin the phrase “civil disobedience.” The title he originally gave to his work, as a lecture at the Concord Lyceum in 1848, was “The Rights and Duties of the Individual in Relation to Government.” When he revised and published this in his Aesthetic Papers in 1849, he gave it the title “Resistance to Civil Government.” The title “Civil Disobedience” appeared only after his death, in the collection A Yankee in Canada (1866).

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the moment he violates laws? Socrates, who acts according to law, that is, in following his daimon and refusing to act, also refuses publicly to disobey – but is his obedience not at the same time a public contestation and refusal of the law? As for Antigone, she disobeys in the name of her convictions and a higher law that she claims binds the polis even more than the laws of the polis. By accepting her penalty (as will later the conscientious objector), she publicly denounces the very source of her penalty (as later with civil disobedience) and reveals the violence of power. Hannah Arendt reformulated the problem by asking “to what extent this faculty of thought, which is exercised in solitude, extends into the strictly political sphere, where I am always together with others, is another question.”144 For civil disobedience is at once a refusal to obey the law and a claim to belong to the polity: the first point is also common to conscientious objection whereas the second is distinctive to civil disobedience. The distinction is tenuous, however, because conscientious objection is indissociable from a public and collective commitment:145 public in the sense that it is not a demand for an exemption or exception, but a non-obedience to the law (and acceptance of the resulting sanction) as a way of showing the law’s injustice; and collective in the sense that it is a refusal of a law governing the political community with the hope or aim of mobilizing that community and transforming public opinion. Put differently, conscientious objection implies consciousness of one’s collective responsibility, a responsibility that no governmental institution can relieve us of. It implies too the duty to act in conformity with one’s collective responsibility. In this sense, conscience is not a withdrawal into a forum internum and private sphere, but is political. Its objections must be apprehended as acts of civil disobedience, whether they be simple refusals to obey, nonaction, or open resistance to government. Even in the form of nonaction, conscientious objection acts as a “counter friction to stop the machine” so as not to “lend myself to the wrong which I condemn.”146 This is already to transform the machine, even in the form of revolution that is “quiet,”147 rather than seeking to organize collective contestation. Nonobedience is an abstention that is an action; it no longer has as its end the individual accomplishment of a moral perfectionism (like Thoreau’s withdrawal to Walden), but the transformation of the collective conditions of freedom. 144 145

146

Hannah Arendt, Responsibility and Judgment (New York: Schocken Books, 2003), 157. Kimberley Brownlee, “Civil Disobedience,” ed. Edward N. Zalta, The Stanford Encyclopedia of Philosophy (winter 2016 edn.), https://plato.stanford.edu/archives/win2016/entries/civildisobedience/. Thoreau, “Civil Disobedience,” 644. 147 Ibid., 654.

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Thoreau founds his argument not on the constitutional rights of citizens148 – including those who should be citizens but have the status of slave – but on the consent of individuals, on which depends the power of the state.149 The state is but a means chosen by the people to carry out its will150 and which the people have the right to change when the state acts according to the will of a small number of individuals. The people can organize without the state, in small assemblies,151 as in the model of deliberative and participative democracy. Conscientious objection like civil disobedience implies a critique of the original presumption of government, understood in contractual or utilitarian terms, according to which individuals consent to government either from the moment their will presided over the institution of the political and consented to the resulting obligations, or from the moment they enjoyed the benefits thereof. Conscientious objection and civil disobedience also point to a critique of the institutional checks and balances established by the constitution (the Supreme Court, Parliament, Parlements, intermediary bodies, and so forth). The question is then to know if the challenges they bring to bear are antidemocratic or, on the contrary, if their public and deliberative dimensions reinforce and safeguard democracy both epistemically and in terms of political legitimacy. 1.5 CONCLUSION

These four schemas do not make up a comprehensive history of conscientious objection before its recognition in law, but they do show how the characteristic elements of conscientious objection, in all their ambivalence, were shaped. The inward gaze of the law “written in our hearts,” and the central role of confession in a Catholic economy of salvation institutionalized conscience, submitting it to the Roman Church. In modern Protestantism, freedom of conscience and the obligation to obey it, including against civil and ecclesiastical institutions, deinstitutionalized conscience, all the while constituting it as an autonomous sphere that was, paradoxically, in direct submission to God, like the sacred in a rationalized world. Liberal contractarian theories grounded the obedience of subjects or citizens in their individual wills – those who preside over the social contract – producing a new conception of individual freedom, but also dissolving conscience insofar as conscience is

148

149 151

He even contests the Constitution and the judges of the Supreme Court that accommodate slavery. Thoreau, “Slavery in Massachusetts,” 669, 673. Thoreau, “Civil Disobedience,” 659. 150 Ibid., 635. Thoreau, “Slavery in Massachusetts,” 670.

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nothing other than a collection of private opinions (at best, a capacity freeing the individual for the market). Finally, nonlegal formulations of conscientious objection in democracies were conceived as forms of withdrawal or nonaction, as refusals to cooperate – sometimes in the name of the sacred character of conscience – but that, because they include a principle of collective responsibility, lead to civil disobedience. This moral responsibility for the community or even for humanity thus characterized Thoreau’s fight against slavery and Gandhi’s nonviolent action against colonialism and capitalism, as well as Gunther Anders’s opposition to nuclear weapons, Martin Luther King and Nelson Mandela’s to racism, Arendt’s to the Vietnam War, or Habermas’s to the deployment of American missiles in Germany. In all these cases, the opposition proceeded from a refusal to obey or to cooperate, issued from the conviction of an individual conscience, and led to a justification for civil disobedience in the name of a collective good or superior ends. It nevertheless remains the case that conscientious objection, when it is conceived in the form of civil disobedience, tends to privilege the prominent figures of critical thought without taking into account the ordinary demands made by citizens who refuse to undertake their legal obligations and invoke their conscience as a sacred core, untouchable by the general law – even if that law is understood to be the one that establishes equality between citizens all the way to their mutual obligations. Such is the ambiguity of conscientious objection: when it is legally recognized, it is not strictly speaking an objection to law but a provision of law; conversely, when it is not legally recognized, it constitutes a form of derogation that can just as well accomplish ends that are superior and more just, as it can destroy the conditions of equality between citizens.

2 The Conscience Wars in Historical and Philosophical Perspective The Clash between Religious Absolutes and Democratic Pluralism Michel Rosenfeld

2.1 INTRODUCTION

On first impression, today’s conscientious objection claims appear to differ greatly from those asserted in the past. In a recent telling example, a group of nuns assured of exemption from providing contraceptive coverage for women employees under US federal law (popularly known as “Obamacare”) upon signing a form and providing a copy of it to a thirdparty insurer objected to such formality on religious conscience grounds. According to the nuns, going through the requisite formality would amount to “deputizing” a third party to sin on their behalf.1 Contrast this with Thoreau’s famed mid-nineteenth-century conscience-based refusal to pay taxes in protest against slavery and the injustice of the Mexican–American War;2 twentieth-century Jehovah’s Witnesses’ religious conscience-based refusal to salute the US flag;3 and religious and nonreligious consciencebased refusals to fight in all wars or in particular wars considered singularly immoral, such as the one in Vietnam.4 Are today’s conscience claims different in nature and scope from those of the past? Are the costs of honoring present-day religious conscientious objection claims different and more onerous than those associated with the typical counterparts of earlier generations? More specifically, should religious conscientious objection

1

2

3

See Richard Wolf, “High Court Grants Exemption from Birth Control Mandate,” USA TODAY, January 24, 2014. www.usatoday.com/story/news/politics/2014/01/24/supreme-courthealth-contraception-mandate-obama/4340287/. See Daniel T. Ostas, “Civil Disobedience in a Business Context: Examining the Social Obligation to Obey Inane Laws,” American Business Law Journal 47, no. 2 (2010): 291–312. Ibid., 295. 4 Ibid., 295.

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claims be treated more favorably than those based on the morals and fundamental beliefs of nonreligious conceptions of the good? Should conscientious objection claims be entitled to lesser accommodation in those cases in which the brunt of their burden is to be borne by groups traditionally subjected to prejudice and injustice, such as women, certain racial, ethnic, or ideological (religious or nonreligious) minorities, and LGBT persons? To place these questions in proper theoretical context, Section 2.2 briefly considers conscientious objection in general and religion-based conscientious objection in particular, in their philosophical and historical dimensions. The philosophical inquiry focuses principally on the celebrated past generation’s liberal accounts of conscientious objection and civil disobedience provided respectively by Rawls and Dworkin, and endeavors to adapt their insights for use within a framework circumscribed by democratic pluralism. In a nutshell, democratic pluralism prescribes peaceful accommodation of as many diverse and competing conceptions of the good as possible through deployment of majority rule subject to anti-majoritarian exceptions designed to enhance rather than to restrict the spread of pluralism.5 The historical inquiry, on the other hand, concentrates on the place of freedom of conscience in Western Christianity, on the circumstances surrounding the emergence of secularism and the institutionalization of religious toleration at the end of the religious civil wars in Europe, and on how the subsequent institutional implantation of secularism led to the concurrent privileging of religious freedom and the disempowering of religion in the political arena in conjunction with the advent of liberal constitutionalism at the time of the American and French Revolutions. Section 2.3 closely examines the current spread of religion-based conscientious objection claims and its impact on the sought equilibrium between privileging and disempowering religion while considering whether it poses a serious threat to the pursuit and maintenance of democratic pluralism. Finally, Section 2.4 addresses how best to deal with the threats that broad vindication of current religious conscientious objection claims for exemptions from generally applicable laws are likely to pose to the pursuit of democratic pluralism. In light of the threats involved, should religionbased conscientious objections lose all privilege? Or, should the latter retain their privilege, but be restricted in scope whenever they threaten the rights or interests of groups traditionally subjected to prejudice or injustice?

5

See Michel Rosenfeld, Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account (Cambridge: Cambridge University Press, 2011), ch. 1.

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2.2.1 The Philosophical Dimension Rawls and Dworkin as well as other liberal theorists such as Joseph Raz distinguish between civil disobedience and conscientious objection while stressing that the two overlap. In Raz’s words: Civil Disobedience is a politically motivated breach of law designed either to contribute directly to a change of a law or of a public policy or to express one’s protest against, and dissociation from, a law or public policy. Conscientious Objection is a breach of law for the reason that the agent is morally prohibited to obey it.6

In the context of a working constitutional democracy, according to Rawls, civil disobedience poses a problem in a society that is more or less just and in which a majority-backed law conflicts with fundamental liberties or justice.7 Furthermore, within this Rawlsian conception, an overlap between conscientious objection and civil disobedience occurs when one breaks a law that violates the exercise of one’s fundamental right to do, or not to do, what is morally dictated by one’s conscience – including one’s religious conscience. One important feature distinguishes civil disobedience from conscientious objection. Civil disobedience is always meant to be a public act, the very publicity of which is designed to serve as a rallying point for others to join the lawbreaker’s political cause. Thus, burning one’s military draft card in the course of the US war in Vietnam was meant to draw attention to that war’s perceived policy-based and moral shortcomings in the hope of pressuring the polity to end the war. In contrast, conscientious objection may be purely centered on the individual who invokes it without any intent to persuade others or to influence a change in policy. Thus, a Sikh who objects to wearing a mandatory motorcycle helmet because that would interfere with his religiously mandated wearing of a turban most likely does not intend to convey an opinion on the helmet policy as it relates to non-Sikhs. Civil disobedience and conscientious objection may overlap where a moral or religious conscience-based conviction calls for a particular deployment of civil disobedience. Moreover, the civil disobedience involved may rest on a conscience-based principle as when a group of individuals with the same 6 7

Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon, 1979), 263. John Rawls, A Theory of Justice, rev. edn. (Cambridge, MA: Belknap, 1999), 363.

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conscience-based objection joins forces to defy a law that commands them to do something in contravention of their deeply held religious or moral convictions. Or else the civil disobedience involved may combine a consciencebased principle and a politically motivated policy (to draw on Dworkin’s famed distinction between the two).8 Thus, for example, if a business owner objects to contraceptives on religious grounds and to state-mandated employer-subsidized health insurance to pay for medical services on economic or political grounds, then he may combine principle and policy considerations in a determination to publicly refuse to abide by any legal obligation that would result in payment for contraceptives for his female employees.9 Also, along the same lines those who object on principle may join forces with those who object on policy grounds to turn what may be presented as a pure (religious) conscience matter into a major policy weapon. In the latter case, the policy-based thrust ought not to be entitled to whatever deference or concession might be plausibly accorded to conscience-based and principle-based objections and disobedience. Indeed, from the policy standpoint and its reliance on majority-based decision-making, any refusal to comply with the law would amount to a straightforward violation of the principles of democracy and of the rule of law. Dworkin has stressed that civil disobedience and conscientious objection often occur in settings in which there is no clear-cut demarcation between what is legal and what is illegal,10 consistent with his belief that the US Constitution incorporates liberal political morality and should be interpreted accordingly.11 Consistent with this, conscientious-objection grounds for disobeying existing law may find support in the Constitution and thus embrace principles that will eventually figure in the invalidation of the law in question as unconstitutional. Moreover, as the Constitution is open-ended and judges are prone to disagreeing on its proper interpretation in particular cases, the conscientious objector has a broad range of plausible claims to ultimate legality in a refusal to comply with a particular law, or at least a solid claim to legitimacy even in the absence of legality. Constitutions differ, and the apportionment of legal norms between the constitutional and the infra-constitutional level varies from one setting to the next. Within the ambit of theoretical analysis, however, it is useful to draw the line between the constitutional and the infra-constitutional – between what

8 10

11

Ibid., 368. 9 See Burwell v. Hobby Lobby, 573 U.S. ___, 134 S.Ct. 2751 (2014). See Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 207–08. Ibid., 208.

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is meant to remain subject to anti-majoritarian standards and what ought to be subjected to majority rule – in terms of what ought to be (under applicable liberal or pluralist criteria) and in terms of relevant functional considerations. Thus, for example, in the Hobby Lobby case, the religious conscience-based claim of the business owners that they should be allowed an exemption from providing contraception coverage as part of the health insurance package they extended to their employees was a statutory one as a matter of fact.12 But from a theoretical standpoint, that claim may be better cast as constitutional and regarded as functioning very much like a typical conscience-based freedom of religion one. On the other hand, the women employees’ claim to access free contraceptives figures technically in the case in question as a state interest embodied in the federal legislation challenged by the employers,13 but seems better regarded as deriving from said women’s constitutional right to use contraceptives14 combined with the state’s endeavor to facilitate the exercise of the latter right. 2.2.1.1 Conscience Claims within Liberal Theory Within the framework of liberal theory as envisioned in the works of Rawls and Dworkin, conscience claims ought to overlap with constitutional claims to freedom of religion, freedom of expression, privacy, equality, and dignity, among others. Moreover, where such overlap is actually present within a liberal polity, a conscience-based claim for an exemption from obeying a law that embodies majority-supported societal values and interests ought to be treated as claims predicated on the invocation of fundamental constitutional rights. In the broadest terms, such constitutional claims ought to be assessed when in conflict with societal interests embodied in laws pursuant to the dictates of the constitutional standard of proportionality.15 Consistent with Rawls’s liberalism, fundamental liberties figure at the top of the normative hierarchy and have lexical priority over other norms, including over majoritarian societal interests embodied in laws. Consistent with this prioritization of individual rights over collective societal interests, conscience-based objections grounded on fundamental rights should prevail, save in cases where the societal collective interests rank as compelling from the standpoint of the survival or essential welfare of the collectivity concerned. This reduces 12 14

15

Hobby Lobby, 134 S.Ct. at 2759. 13 Ibid., at 2779–80. See Griswold v. Connecticut, 381 U.S. 479 (1964) and Eisenstadt v. Baird, 405 U.S. 438 (1972) (recognizing constitutional right to use contraceptives). See Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (Oxford: Oxford University Press, 2012), 28–29.

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truly difficult cases to the category of those where the fundamental rights of one individual clash with those of another without liberalism providing for a hierarchical ranking of the particular rights involved. As an example, consider the case of a person who refuses to provide a state-mandated, constitutionally protected service to a homosexual fellow citizen on religious conscience grounds, thus for all practical purposes abridging the liberty, privacy, dignity, or equality rights of the latter individual.16 Drawing on John Stuart Mill’s normative distinction between self-regarding and non-self-regarding acts,17 the liberal may resolve an important number of direct conflicts in which a presumptively self-regarding assertion of a fundamental right by one individual offends another individual’s claim of a conscience violation based on a non-self-regarding act or omission. Thus, a religious objection to a state’s legalization of same-sex marriage should automatically fail. Indeed, as emphasized in the decisions of many courts,18 the self-regarding decisions of individuals to avail themselves of a constitutionally sanctioned entitlement ought to always have lexical priority over the offense on religious-sensitivity grounds (no matter how profound or sincere) of others whose own commitments or right to express their religious reprobation are in no way diminished. It becomes obviously a different matter when the religious conscientious objector is called upon to assist another in obtaining a self-regarding entitlement that the objector’s religion casts as sinful and morally abhorrent, such as in the case of abortion extensively discussed in Section 2.3. Between the two extremes of mere offense to sensibility and forcing one to perform an act that contravenes religious beliefs and proscriptions, there are a number of situations that loom as more vexing for proponents of liberal theory. What about a taxpayer who contributes to the financing of state schools that teach the theory of evolution in contravention to his religion’s most fundamental teachings? Or a baker who refuses to sell a wedding cake to a couple celebrating a same-sex marriage?19 Or an innkeeper who refuses to 16

17

18

19

In the US constitutional setting, these clashes of rights are largely avoided through characterization of one of the conflicting rights as a state interest. In the context of other constitutions and conceptually, however, both the claims of the conscientious objector and of the homosexual person denied a state-mandated liberty or equality-based right or benefit are better regarded as amounting to a clash pitting one fundamental individual right against another. See John Stuart Mill, On Liberty, ed. Elizabeth Rapaport (Indianapolis, IN: Hackett, 1984), 78. See, e.g., Reference re Same-Sex Marriage [2004] 3 S.C.R.698 (SCt. Canada); Minister of Home Affairs v. Fourie (2006)(3) BCLR355 (CC South Africa). See Charlie Craig and David Mullins v. Masterpiece Cakeshop, 2015 COA 115 (Colorado Court of Appeals, 2015).

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honor a reservation by a same-sex couple for a room with a single matrimonialsized bed?20 Or finally, a state employee in a marriage-license-granting office who refuses to service legally and constitutionally entitled same-sex couples who plan to marry?21 In each of these cases, which are analyzed in detail in Section 2.3, the conscientious objector can point to a self-regarding act or omission imposed by law that impinges on the freedom to practice the religion of one’s choice. Moreover, once genuine self-regarding interests become manifest in relation to the respective rights in conflict, liberal theory can avail itself of two distinct means toward a principled resolution of the conflict at hand. The first of these requires application of the aforementioned equal liberties principle.22 The second, in turn, draws upon the proportionality standard and requires comparing how central or peripheral the claimed impingements on the respective rights in conflict happen to be and ascertaining how proximate or remote these impingements prove to be in relation to the conflicting right giving rise to a conscience claim. In terms of the equal liberties principle, it is obvious, for example, that my free speech right should not enable me to drown out the voices of equally entitled fellow citizens. At minimum, a commitment to equal liberties entails an imperative of nondiscrimination. Thus, men and women should enjoy an equal opportunity to compete for public employment of their choice. And accordingly, the conflict between a religious command involving separation between the sexes – such as the one that would arise if an ultra-Orthodox Jewish community objected on religious grounds to having boys transported to school on a state bus driven by a woman – would have to be resolved in favor of the woman involved on nondiscrimination grounds. It may be beyond doubt that the religious claim at stake would involve a self-regarding prohibition – boys being driven by a woman may contravene a clearly set religious proscription – and yet excluding women drivers in those circumstances would clearly offend the equal liberties principle. Regarding centrality and proximity under a proportionality standard, it is first imperative to note that, pursuant to liberal theory, the operative criterion at stake must remain consistent with the equal liberties principle. Indeed, absent such criterion the proportionality standard would remain too indeterminate to be of any significant use. For example, if a conscientious objector to

20 21

22

See Michael Black and John Morgan v. Susanna Wilkinson [2013] EWCA Civ 820. See April Miller et al. v. Kim Davis, 15–5961 (Appellate Div., 6th Cir., 2015) and Ladele v. Islington Council [2009] EWCA Civ 1357. See Rawls, Theory of Justice, 38.

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same-sex marriage sees its eradication as paramount and another claims that institutionalization of same-sex marriage is essential to the preservation of human dignity, then these two claims would loom as equally central within the respective conceptions of the good to which they are linked, and accordingly recourse to proportionality would be of little, if any, use. All this changes, however, within the scope of a liberal conception of the distinction between individual self-regarding and other-regarding concerns and under the guidance stemming from adherence to the lexical priority of the equal liberties principle. Accordingly, without contesting the subjective assessment of the religious objector, the objection at stake, as noted earlier, is less central than the conflicting institutionalization of same-sex marriage. Prohibition of the latter would result in an obvious deprivation of equal liberty for homosexuals whereas its institutionalization does not affect heterosexuals’ right to marry. A similar liberal argument applies in the context of proximity. Again, one can accept on its face the subjective claim of religious conscientious objection of a taxpayer who pays to the general treasury a sum from which an infinitesimal amount is used by government to distribute free contraceptives and yet conclude that the claim in question ranks as highly peripheral from a liberal standpoint. That even an infinitesimal part of a tax contribution is used for something that contravenes the religious prescripts of the contributor involves the latter in something self-regarding, but by the equal liberties standard, the resulting injury is disproportionately small in comparison to those that the women entitled to the contraceptives in dispute would experience were the policy urged by the religious objecting taxpayer to prevail. Similarly, a secular person may conscientiously object that a small fraction of her taxes goes to subsidizing the construction of a house of worship for the benefit of a religion opposed as being sexist. In this case as in the preceding one, the injury at stake looms as much more remote and peripheral than the benefit conferred – and this seems particularly true if the state equally subsidizes all active religions within the polity. When a conscience-based right is to be balanced against a weighty or compelling conflicting societal interest or goal pursuant to a judicially crafted proportionality standard, a hard line-drawing problem arises. As Dworkin emphasizes, a right cannot simply be weighed against policy objectives without thereby effectively reducing the right at stake to yet another policy interest.23 Accordingly, conflicting policy interests must greatly outweigh the cost of allowing the claimed conscience-based act or omission to prevail for a liberal to accept limitation of a conscience-based right as legitimate. In short, 23

See Dworkin, Taking Rights Seriously, 131–49.

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application of the proportionality standard to cases in which a conscience right clashes with a weighty social policy is bound to give rise to a number of cases falling within a grey area, but for present purposes, the liberal contours of the proper scope of conscience rights remain sufficiently distinct – especially if it requires social interests to be compelling in order to override a right – as to allow for a workable resolution of the relevant conflicts generated as a consequence of invocations of conscience rights. 2.2.1.2 Conscience Claims within Pluralist Theory Conscience claimants who embrace a religious perspective can object that subjecting their conscience-based requests or objections to a liberal standard is unfair. Indeed, arguably inasmuch as liberalism amounts to a conception of the good just as several religious ones within the polity, secular liberalism should not be given any priority over competing religious perspectives. Liberals, for example, value rights to abortion and contraception, whereas Catholicism opposes both. Moreover, to the extent that liberals and Catholics remain at war over abortion and contraception, there appears to be no escape from choosing one of the two against the other. In other words, if contrary to its aspirations, constitutional secularism is far from neutral as between liberalism and religion, it then inevitably seems to favor the former over the latter. Accordingly, presumably illiberal religion-based conscience claims will be treated, in all likelihood, in a manner perceived as unfair and hostile from the standpoint of the relevant claimants.24 It would be altogether impossible to equally satisfy all the competing religious and nonreligious ideologies found in a typical contemporary multicultural polity. However, by shifting from liberalism to normative pluralism – and, in particular, to a conception of the latter that I have termed “comprehensive pluralism”25 – as the arbiter of conscience claims issuing from competing religious and nonreligious conceptions of the good, one can overcome the systematic privileging of liberalism and the institutional bias associated with it.

24

25

See Michel Rosenfeld, “Recasting Secularism as One Conception of the Good among Many in a Post-Secular Polity,” in Susanna Mancini and Michel Rosenfeld, eds., Constitutional Secularism in an Age of Religious Revival (Oxford: Oxford University Press, 2014), 79 (distinguishing between institutional secularism inscribed in the constitution and ideological secularism as one conception of the good among many within the same polity). See Rosenfeld, Law, Justice, Democracy, for an elaboration of the theory of “comprehensive pluralism.”

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Comprehensive pluralism regards all conceptions of the good that count with adherents within the polity as ex ante equal in worth and dignity. Moreover, to the extent that there are conflicts and contradictions among existing conceptions of the good, comprehensive pluralism seeks to mediate among them with the aim of achieving ex post the greatest possible peaceful coexistence among the greatest possible number of competing conceptions of the good.26 For example, some citizens within a polity may insist that it is a God-given religious duty to help the poor, whereas others may vehemently assert that the welfare of the poor is a most urgent humanist concern. Although the first of these positions is religious and the second secular, they can both be plausibly equally accommodated. On the other hand, where conceptions prove truly incompatible, in part or whole, comprehensive pluralism subjects these to its criterion of “justice as reversible reciprocity,”27 which requires going beyond mere equality among persons or of persons as possessors of actual or potential conceptions of the good. Instead, this criterion stresses equality among actual conceptions of the good (subject only to limitations stemming from comprehensive pluralism’s pursuit of the greatest possible inclusiveness and accommodation) as the highest expressions of the autonomy and dignity of those who embrace them. In case of conflict between two conceptions of the good, justice as reversible reciprocity requires first that proponents of each of these switch sides and imagine the conception they oppose from within as if it were their own. Thus, if a committed secular liberal confronts a devout Catholic, for instance, and each of them seeks to imagine as best as possible how it is to live the perspective of the other from within, then they should end up with a clear understanding of the extent to which their respective conceptions may be mutually accommodated and to which they seem bound to remain mutually incompatible. Consistent with this, the secularist and the Catholic may both conclude that their respective conceptions of the good should be ultimately compatible as means to self-fulfillment and flourishing, or that they are in part compatible in the realms of social and economic policy, and in part incompatible in the realm of personal morality. Or else they may also conceivably conclude, after trading places, that Catholicism and secularism are wholly incompatible as their search for self-fulfillment, respectively within the

26

27

For a more extended discussion of comprehensive pluralism’s handling of competing conceptions of the good, see ibid., 204–10. See Michel Rosenfeld, Just Interpretations: Law between Ethics and Politics (Berkeley: University of California Press, 1998), 249.

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confines of the transcendent and within those of the immanent, render them radically irreconcilable.28 Radically irreconcilable conceptions of the good with literally nothing in common should be quite rare, particularly since typical modern personhood and citizenship involves partaking in numerous different and often conflicting conceptions of the good. Where partially irreconcilable conceptions of the good clash over particular norms or scarce goods, justice as reversible reciprocity prescribes first of all that a comparison be drawn concerning the relative importance of the norm or good involved to each of the conceptions involved. Thus, if a good in question is crucial to one conception and only marginal to another, then all concerned should agree, after switching places, that the scarce good should go to the proponents of the conception to which it is most crucial. Thus, if there were only one bottle of wine left and a religious group claimed it for ritual use purposes while a secular group wished it available for recreational purposes, then both groups should agree under justice as reversible reciprocity that the religious group’s claim should prevail. Consistent with this, moreover, comprehensive pluralism calls for consideration of centrality and proximity much as liberalism does. Glossing over certain details with little impact on the issues at hand, the principal differences between how comprehensive pluralism and liberalism are meant to handle conscience claims are twofold. First, pluralism does not privilege the individual over collective or communal interests as liberalism does. Second, although there seem bound to be significant overlaps, the liberal divide between self-regarding and other-regarding concerns is replaced within the ambit of pluralism by the contrast between intercommunal and intra-communal relationships. As is detailed in what follows, the principal practical consequence of this is that illiberal intra-communal conscience claims will generally fare better under pluralism than under liberalism. Moreover, pluralism delegitimizes the prevalence of institutionalized liberal secularism, thus potentially invalidating complaints that religious conscience claims are unfairly subjected to liberal bias. Indeed, under pluralism, secularism and liberalism become conceptions of the good entitled to no more prima facie dignity or respect than their religious counterparts. As a corollary to liberal secularism losing all institutional priority within the ambit of pluralism, religions should also lose all valid claims to privilege or special protection after a transition from a liberal to a pluralist constitutional ordering. As already mentioned, it is a common liberal approach to combine the depoliticization of religion with granting the latter certain privileges, many 28

See Charles Taylor, A Secular Age (Cambridge, MA: Harvard University Press, 2007), 18–20.

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of which relate to conscience.29 Thus, for example, religious conscience objections may provide an exclusive or favored path to exemption from military service or from compliance with general nondiscriminatory laws.30 Within the purview of pluralism, in contrast, to the extent that all conceptions of the good are placed ex ante on an equal footing, religious ideologies should experience neither an advantage nor a disadvantage as compared to their secular counterparts. From the standpoint of liberalism and from that of pluralism the truth of particular religions cannot be accepted for the whole polity on its own terms, but the reason for that differs as between liberals and pluralists. Furthermore, liberalism and pluralism also converge significantly inasmuch as pluralism’s commitment to the freedom to adopt diverse conceptions of the good and to switch from one to another, and its call for tolerance of various religious and nonreligious perspectives, overlap with core liberal precepts. The similarities and differences between liberalism and pluralism become more apparent in the course of the discussion in Section 2.3 and Section 2.4, but before turning to an analysis of contemporary religious conscience claims, I now briefly examine salient highlights regarding the historical origins of the latter. 2.2.2 The Historical Dimension of Conscientious Objection Obviously, but importantly, “conscientious objection” must necessarily be a matter of “conscience.” In the contemporary debate concentrated on objections to furthering certain reproductive interests of women or LGBT objectives, it is generally taken for granted that those who seek exemptions from laws do so for reasons of conscience that are informed by religious beliefs or duties. Conscience, however, need not be religious, and religious duty and its fulfillment need not involve (in any relevant sense) conscience. Indeed, one can conscientiously object to fighting a war on the basis of purely secular pacifist convictions, or one can object to eating pork served in a prison or public school as contrary not to conscience but to a specific religious prohibition that one follows without deliberation or questioning. Freedom of religion thus overlaps, but is not coextensive with, freedom of conscience, and conscience-based convictions and assertions may as well be religious as secular.31 29 31

See Section 2.2.2.3. 30 See the Hobby Lobby case, Section 2.2.1. For a thorough historical and philosophical account of moral conscience from Plato to the present, see Richard Sorabji, Moral Conscience through the Ages: Fifth Century BCE to the Present (Chicago: University of Chicago Press, 2014). Significant aspects of the highly schematic historical analysis provided here rely on Sorabji’s account.

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To better grasp the nature and scope of contemporary religiously based conscientious objection, it is useful to place it in its proper historical perspective. Consistent with this, three concepts have variously interacted in the history of the Christian tradition, playing a crucial role: conscience as a means to intuit and discover religious truth; “bad conscience,” which enables the believer to control impulses and tendencies to veer away from true religion; and “conscientious objection” that can be invoked by the believer against those who seek to interfere with the objector living in accordance with his or her true faith as revealed through conscience or as salvaged through the workings of bad conscience. 2.2.2.1 Conscience in Early Christendom It is the Apostle Paul who emphasized the contrast between Christian faith and the laws of Judaism and who insisted on the nexus between the “law in our hearts” and conscience.32 Glossing over certain early Christian disputes and ambiguities not relevant for present purposes, it is through faith that God’s universal truth (that mediates or supersedes the particular law given to the Jewish people) becomes implanted in human hearts, and through conscience that humans become aware of the law they possess in their hearts.33 Importantly, however, Paul and other major early Christian thinkers, such as Augustine, did not believe that conscience was infallible. Moreover, not only is conscience fallible, but also as Augustine emphasized, people may be unwilling to read the law in their hearts that is accessible through their conscience.34 And that unwillingness may eventually lead to bad conscience and remorse. Consistent with all this, right and wrong are implanted by faith and take shape as the law in humans’ hearts, and conscience becomes the means whereby humans become aware both of right and wrong and of their failure to have heeded the prescriptions emanating from the law in their hearts. Although understood in terms of the concept of freedom of religion – as that of freedom of conscience would only develop in the seventeenth century – early Christianity, before the split between the Eastern and Western churches, advocated for a certain degree of tolerance of heretics and pagans.35 The reasons for that kind of tolerance were mainly centered under the belief that forced conversion would yield hypocrisy rather than true faith. Put in contemporary terms, one cannot achieve true faith unless one adopts it as 32 34

See ibid., 31 (citing St. Paul, Romans 2:14–15). 33 Ibid., 31. See Augustine, Letters 157.15 (PL33, 681). 35 See Sorabji, Moral Conscience, 47, 58.

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a matter of conscience and hence freedom of conscience – which greatly overlaps with early Christendom’s freedom of religion36 – thus looming as a prerequisite to conversion to the true faith. If one adds to this the early Christian conception of conscience as fallible, then what we now refer to as freedom of conscience seems crucial in light of early Christendom conceptions of conscience both for reasons of efficiency and for reasons of epistemology.37 It is crucial to stress that tolerance of heretics and pagans in early Christendom was always limited and that, by and large, it became more so with the passage of time.38 What can be derived as essential for early Christianity from the standpoint of freedom of conscience is that conscience must be left alone to discover and internalize what is right and wrong as well as to serve as a means to mitigate human fallibility when it comes to grasp God’s truth. Deference to conscience must always be constrained, however, depending on how much room for fallibility is left by those who purport to speak for the true faith and in order to avert any threat to the ongoing spread of the true faith. 2.2.2.2 The Rise of Protestantism and the Wars of Religion The next crucial historical development for present purposes was the profound split within Western Christianity prompted by the rise of Protestantism in the sixteenth century, by the numerous bloody wars of religion between Catholics and Protestants that ensued in many European countries, and by the eventual truce worked out between these two contending religions through the political institution of tolerance with a view to peaceful coexistence among all Christians within the realm. The Protestant Reformation launched by Luther recast the role of conscience within Christianity in two salient respects. First, Luther rejected the authority of the pope and of the Catholic clergy as the ultimate purveyors of religious truth for the benefit of the Christian faithful, and asserted instead that true belief was a matter of individual conscience based on an unmediated relationship to God and on a personal reading and interpretation of the Holy Scriptures.39 Second, Luther voiced strong opposition to “the ignorant laws of the Pope as introducing executioner’s 36 37

38 39

Ibid., 47, 58. These latter reasons foreshadow John Stuart Mill’s justification of free speech on the grounds that truth emerges gradually from open discussion of views that loom as inherently fallible. See Mill, On Liberty, 50–52. See Sorabji, Moral Conscience, 49–50. See “On Secular Authority,” in Luther’s Werke (Weimar, 1883–1929), 11:264.

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tortures for consciences.”40 Based on Luther’s pronouncements, the Catholic hierarchy had largely reduced conscience to bad conscience, and what true Protestant Christianity required was freedom of conscience both against Catholicism and for itself in order to gain access to religious truth and to seek absolution for one’s sins. In spite of the major role reserved for it in his Protestant vision, however, Luther by no means approved of freedom of conscience as being unlimited, as made plain by his clear opposition to conscience-based resistance against the dictates of civil policy.41 In the wake of the sixteenth-century Protestant Reformation that split Western Christianity into two, the newly religiously divided Europe embraced at first the slogan cuius regio, eius religio, also referred to as “one king, one faith, one law,”42 which required weaving together religion, the state, and politics to secure the hegemony of the dominant religion throughout the realm. After the series of fierce wars of religion pitting Catholics against Protestants in several European realms throughout the sixteenth and seventeenth centuries, however, it became apparent that war would not eradicate the split within Western Christianity, and that reaching a modus vivendi among Catholics and Protestants was preferable to ongoing violence. Accordingly, support grew for the idea that there ought to be room for tolerance of the religion that happened to be in the minority within a particular polity by the latter’s majority religion. Moreover, for there to be the requisite locus for tolerance without compromising on the essential predicates of theological truth, it was necessary to effectuate some disentanglement of the realm of politics from that of religion. In this setting, recourse to secularism could keep the antagonistic religions at arm’s length so long as neither of them could muster a decisive victory over the other. The secularism involved, which differed from its counterpart that would arise subsequently in the context of the Enlightenment, had to remain within the bounds of Christianity, but had to avoid unduly favoring Catholicism or Protestantism so as to preserve its viability as a buffer between them. Though it remained within Christianity, this secularism called for a kind of politics that had to rise above the contending religions to secure the implantation of the degree of mutual tolerance necessary to preserve peace within the realm.43 40 42

43

Sorabji, Moral Conscience, 101. (Emphasis in the original.) 41 Ibid., 111. See Joseph Lecler, “Les origines et le sens de la formule: Cuius regio, eius religio,” Recherches de Science Religieuse 38 (1951). The actual history of relationships between Catholics and Protestants in the various European realms in which they were in conflict during the sixteenth and seventeenth centuries veered at times far afield from the aforementioned theoretical conception of mutual tolerance as

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The secularism among Christians at stake in the modus vivendi and the limited tolerance associated with it amounted to recognition of a certain degree of freedom of religion and thereby reserved a significant role for freedom of conscience. What emerges as most salient, for our purposes, is that, for the first time in Christian Western Europe, the freedom in question acquired a separate political dimension alongside its religious one. Freedom of conscience became political insofar as it factored in the toleration of, and being tolerated by, sworn proponents of an untrue faith, thus doubling as a means, within Christianity, to freedom of religion and to freedom from religion. The particular religious ideologies actually involved in seventeenth-century modus vivendi arrangements varied from one country to the next, but all related conceptions of the proper scope of freedom of conscience comprised specific explicit limitations. In the case of England, for example, even proponents of very broad freedom of conscience, such as John Milton, excluded large groups within the realm, including Catholics and women.44 In the same vein, John Locke, perhaps the most influential defender of freedom of conscience at the time, specified that toleration in England should not be extended to Catholics because of their being beholden to the authority of the pope, and because, if ever in power, they would betray their obligations to England’s rulers and would deny toleration to non-Catholics.45 Moreover, Locke was adamant in insisting that atheists were not to be tolerated at all.46 2.2.2.3 The Enlightenment and the Secularization of Conscience The advent of the Enlightenment and the spread of its ideology in the aftermath of the French and American Revolutions in the late eighteenth century led to an institutionalization of secularism and to a trade-off regarding the place and protection of religion within the polity.47 Enlightenment-grounded institutional secularism is much more expansive than its seventeenth-century

44 45

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47

a means of peaceful coexistence. For example, in France the Edict of Nantes proclaimed in 1598 by King Henry IV accorded substantial rights to French Protestants in order to promote mutual tolerance at the end of a century mired in wars of religion. King Louis XIV revoked the Edict in 1685, however, prompting France’s Protestants to flee in massive numbers. See Michel Grandjean and Bernard Roussel, eds., Coexister dans l’intole´rance: l’E´dit de Nantes, 1598 (Geneva: Labor et Fides, 1998). See Sorabji, Moral Conscience, 133. See John Locke, An Essay Concerning Toleration; and other Writings on Law and Politics, ed. J. R. Milton and Philip Milton (Oxford: Clarendon, 2006), 291. See John Locke, Epistola de Tolerantia: A Letter on Toleration, ed. Raymond Klibansky and J. W. Gough (Oxford: Oxford University Press, 1968), 50–51. See Rosenfeld, “Recasting Secularism,” 79.

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counterpart in that it does not confine toleration and freedom of conscience within the bounds of Christianity. In principle, institutional secularism is meant to be thoroughly apolitical and to call for toleration for all religions and all nonreligious ideologies so long as they do not threaten to undermine the functioning of the secular state. Moreover, in order to simultaneously insulate the state from religion48 and protect religion from the state, religion must undergo a trade-off whereby it retreats from the public to the private sphere in exchange for special protection of its beliefs, faith, and practices within the private sphere.49 Concurrent with the emergence of institutional secularism, conceptions of conscience evolved from religiously based ones to downright secular ones. By the nineteenth century, thinkers such as John Stuart Mill and Thoreau elaborated accounts of conscience that were essentially secular in nature.50 Building upon the convergence of institutional secularism and a secular conception of the freedom of conscience, one can propose the following ideal construct that reflects to various degrees the constitutional arrangements found in democracies committed to institutional secularism. Moreover, the ideal in question can serve as a useful counterfactual tool for purposes of critical assessment and/or exploring the perfectibility of particular institutional approaches to religious and secular claims of conscience. 2.2.2.4 The Ideal of Institutional Secularism In essence, the ideal construct in question posits secularism as institutionalized in the constitution and laws of the polity and as ideologically and practically neutral, thus being optimally suited to rule over a religion-free public sphere and political arena. The neutrality involved, moreover, features as a guarantee of a prima facie equal tolerance and accommodation of all religions with a presence in the polity within the confines of the private sphere. In order to be able to thrive within the latter, religion must be left alone by the state and by the ordering of the public sphere as much as possible. In addition, religion must be generously granted exemptions from generally applicable laws that would seriously impair its flourishing within the private sphere. Furthermore, all the relevant deference to religion within the ideal construct 48

49

Conceptually, under institutional secularism, the state ought to remain completely independent from religion. From a practical standpoint and consistent with a working democracy committed to constitutional secularism, however, it may suffice that the state refrain from preferring one religion over others or that it ally itself with the culture but not the dogma or faith of the majority religion within the polity. See Rosenfeld, “Recasting Secularism,” 79. 50 Ibid., 79.

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under consideration would be encompassed within a broadly conceived freedom of religion that would significantly, but not fully, overlap with freedom of conscience.51 Institutional secularism seems best paired with a version of liberal individualism grounded on respect of a core of equal-liberty individual rights conceived as transcending all conceptions of the good. Consistent with that, there would not be, strictly speaking, any need for freedom of conscience or room for conscientious objection within the public sphere. Indeed, for all that would fall within the scope of the political arena, a combination of a broadly construed array of individual rights to freedom of expression, to freedom of assembly, and to equality would suffice as all matters relating to the common good would be processed through the democratic process. In this ideal setting, there would be no room for freedom of conscience or conscientious objection in the public sphere, and conversely, any plausible conscience claim would have to be cast as a broadly understood religious one even if dressed up in secular garb and unleashed into the public sphere.52 This last point can be illustrated by an actual historical example. In the United Kingdom, both religious and secular conscientious objection to military service were recognized in the context of World War I (1914–18) whereas in the United States, where the constitution protects freedom of religion but not freedom of conscience, only religious-based conscientious objection was recognized by law during the 1960s Vietnam War.53 The federal law involved allowed military service exemptions to conscientious objectors who acted pursuant to “religious beliefs” in relation to a “Supreme Being,” but not to those acting based on “essentially political, sociological or philosophical views or a merely personal moral code.”54 In the imperfect world of American constitutional jurisprudence, the US Supreme Court stretched the law by retaining the law’s requirement of the presence of a religious belief, but by in effect removing the requirement that the latter be associated with allegiance to 51

52

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See Section 2.2.2 for a discussion of the difference between freedom of religion and freedom of conscience. Conscientious objection to military service quite obviously relates to the public sphere in a way that pursuit of an exemption of a generally applicable law in order to engage in ritual slaughter in one’s religious community does not. Nevertheless, for analytic purposes in relation to the institutional secularism ideal, the conscientious objector who seeks exemption from military service in war can be understood as requesting release from the public sphere so as to freely pursue his religious calling within the private sphere space reserved for the religious community to which he belongs. See Sorabji, Moral Conscience, 201–02. Universal Military Training and Service Act, 50 U.S.C. App., # 456 (j) (1964).

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a “Supreme Being” in one case,55 and by extending the law to cover a clearly nonreligious objector in another case. In that latter instance, most of the justices avoided the constitutional issues, but a concurring justice concluded that the distinction between religious and nonreligious objectors was unconstitutional while a dissenting justice countered that it was constitutional.56 In the ideal setting of institutionalized secularism, in contrast, all the grounds upon which conscientious objection were asserted in the relevant mentioned cases can be readily ranked as “religious.” Thus, pantheism, nature worship, or for that matter any normative set of beliefs, whether personal or communal, based on a conception of the good that implies an “ought” not reducible to an “is,” would rank as the equivalent of theism in terms of what should or should not be included within the realm of the religious. Like all the other conceptions of freedom of conscience encountered thus far, the one linked to the ideal construct under consideration would also be subject to significant limitations. Accordingly, all conscience-grounded proposed actions or omissions could only be accommodated so long as they did not pose a threat to the hegemony of institutionalized secularism in the public sphere or did not trample on the equal liberty rights (including freedom of conscience and of religion) of all religions present within the private sphere. Moreover, as institutionalized secularism goes hand in hand with liberal individualism, the restrictions on the honoring of conscientious objection claims in the context of the ideal construct would pretty much track those arising under liberal theory as discussed in Section 2.2.1. With the ideal counterfactual construct based on institutional secularism in place, it is now time to take a closer look at some of the most recent controversial religious-based instances involving conscientious objection. As will become plain in Section 2.3, the instances in question depart in key respects from the counterfactual ideal in that they exceed the bounds between the public and private spheres and arise in a context of the “repoliticization” of religion. 2.3 CONSCIENTIOUS OBJECTION, THE REPOLITICIZATION OF RELIGION, AND THE BLURRED DIVIDE BETWEEN THE PUBLIC AND PRIVATE SPHERES

Although religion may have never been fully disempowered or removed from the public sphere as the ideal counterfactual prescribes, there has been a dramatic repoliticization of religion and an ever more ubiquitous presence of it within the public sphere in the course of the past several decades. As Jose´ 55

US v. Seeger, 380 U.S. 163 (1965).

56

Welsh v. US, 398 U.S. 333 (1970).

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Casanova emphasizes, the “deprivatization” of religion57 combines the “repoliticization of the private religious and moral sphere” and the “renormativization of the public economic and political spheres.”58 The repoliticization of religion has triggered a political and institutional struggle against secular constitutionalism, but even more importantly in the context of ideas, it has led to a two-pronged assault on the very legitimacy and viability of institutional secularism. On one hand, institutional secularism has been attacked as inherently hostile rather than neutral toward religion; on the other, it has been criticized as inevitably favoring one religion (or set of religions) over others. Moreover, although these two charges are seemingly contradictory, they ultimately emerge as two sides of the same coin.59 With the advent of the welfare state, the public sphere tends to reach ever deeper into domains traditionally reserved to the private sphere, often blurring the boundary between the two. At the same time, deprivatized religion increasingly spills over into the public sphere in most polities, including those where institutional secularism has long been prevalent. For example, religious institutions are quite active in the public-sphere battles over abortion, contraception, euthanasia, stem-cell research, same-sex marriage, and multiple other issues of particular interest to religion that are regularly at stake in many secular polities. Moreover, what is most striking in this respect is not so much that religions seek to promote and protect the interests of their own faith community within the public arena. It is rather that certain religions seek to subject the entire population of the polity to normative constraints emanating from their own faith-based imperatives, but not shared by many other religious and secular members of the polity. To cite but one obvious example, the Catholic Church has often intervened in the public arena to promote a complete ban on abortion, even though abortion may be permissible from the standpoint of certain other religions and from that of the nonreligious within the polity.60 In view of these concurrent trends of greater state 57

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Jose´ Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994), 3. Ibid., 5–6. This is perhaps best exemplified in the case of French laı¨cite´, at once widely chastised as downright hostile to religion – as evinced by its ban on students wearing the Islamic veil in public schools – and perceived as particularly well suited to accommodate Catholicism (though not necessarily on the latter’s own terms), thus making for a mutually convenient joint project neatly encapsulated in the coined term “catho-laique.” See Jean Baube´rot, Laı¨cite´ 1905–2005: Entre passion et raison (Paris: Edition du Seuil, 2004), 185. See Marta Cartabia and Andrea Simoncini, eds., Pope Benedict XVI’s Legal Thought: A Dialogue on the Foundation of Law (Cambridge: Cambridge University Press, 2015), 3–9 (referring to the pope’s view that Catholic faith and reason coincide in affirming universally

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intervention in the private sphere combined with the greater active role of religion in the public sphere, one wonders if it still makes sense to center constitutional relationships between secularism, religion, and the state along the divide between the public and the private spheres. The two concurrent trends mentioned earlier exacerbate two important problems regarding religious-based conscientious objection. First, they make it more difficult to maintain coherent boundaries between objections based on principle and those based on policy.61 And, second, they facilitate a vast increase in occasions for conscientiously objecting to laws or policies and in the number of fellow citizens adversely impacted by the vindication of conscience-based exemptions. Thus, for example, where education is confined to the private sphere, a religious private school’s decision to teach values contrary to constitutional norms regarding sexual orientation would remain largely limited and confined to the particular religious community involved.62 In contrast, where all schooling is administered by the state, the request of an exemption from exposure to sexual-orientation equality discourse or a request to have religious anti-sexual-orientation equality views taught alongside their contrary state-backed counterparts would quite conceivably affect the entire school population within the polity. The repoliticization and the blurring at stake here need not reduce the value of the institutional secularism ideal for purposes of assessing contemporary conscience claims. Indeed, these concurrent trends need not upend all functional similarities and differences between societies that fit within the mold of institutional secularism and those that do not. For example, a church that employs members of the clergy and religious laypersons for purposes of advancing its purely religious mission (i.e., worship, religious teaching, religious practice, and proselytizing) ought to be free to deny contraception coverage in the event it provides health insurance to all those under its employ. So long as the church in question operates entirely in the private sphere and its relations to employees remain purely contractual, then it would remain free to insure or not, and to exclude any terms of insurance contrary to its religious beliefs or dogmas. If, on the other hand, all religions are state-

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valid morality and law); and Christopher McCrudden, “Benedict’s Legacy: Human Rights, Human Dignity, and the Possibility of Dialogue,” in ibid., 164–65 (pointing to “major tensions between the Catholic Church and several secular human rights positions, including those on abortion”). See the discussion on this distinction in Section 2.2.1. I leave aside for now questions of likely externalities that intra-communal private sphere bolstering and transmission of values contrary to sexual orientation equality would have within the public sphere where all individuals are invited to contribute to political debate and action in their capacity as citizens.

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subsidized and all employers subject to public health insurance law requiring contraception coverage, then the church of our example would have to thrust itself into the public arena with a view to obtaining an exemption consistent with its religious prescripts while averting any withdrawal or reduction of public financing. In the latter case, though the church would have to resort to politics in a setting where what was formerly distinctly in the private sphere had in the meantime become inextricably tangled within the public sphere, the end result sought by the latter-day church would be the functional equivalent of that within the reach of its earlier counterpart. Accordingly, the conscience-based position of the first church and the conscientious objection of its latter-day counterpart would loom as equally legitimate in terms of our ideal counterfactual. With this in mind, it is now time to tackle some typical contemporary examples of religion-based conscientious objection claims – some of which have already been briefly addressed – that respectively pose different challenges in terms of our ideal counterfactual and within the ambit of repoliticized religion and of the blurring of the private- and public-sphere divide. These claims are assessed in relation to their importance and centrality within the religious perspective from which they issue; their probable impact on the common good of the democratic polity as embodied in its constitutional framework and its policy objectives; and the probable costs they would impose on particular individuals or groups within the polity, with special emphasis on those who have been traditionally disadvantaged based on some minority status or otherwise. Moreover, for purposes of organizational clarity, I start with consideration of contemporary examples that seem most easily reconcilable with the institutional secularism ideal, and least problematic in terms of the self-regarding versus other-regarding liberal distinction and the overlapping pluralist contrast between intra-communal and intercommunal relations. 2.3.1 Religious Objections to State Sanctioning of Same-Sex Marriage What seems exemplary among the “easiest” cases within the parameters set earlier is the objection on religious grounds against state-sanctioned same-sex marriage that was already briefly addressed.63 As noted in the previous discussion, the objection in question is other-regarding in liberal terms and, one may add, intercommunal within the pluralist perspective as the community of objectors would not have to compromise its heterosexual exclusivist beliefs 63

See Section 2.2.1.1.

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or conduct. From the subjective standpoint of the objectors, however, one may conceive of a plausible self-regarding and intra-communal conscientious objection based on a religious dogma that prescribes doing everything possible against same-sex marriage, for the mere living in a polity where that institution was officially established would amount to an unforgivable sin for all adherents to the objecting religion. But even conceding all that and accepting at face value the centrality of the religious concern involved, there would be no change regarding the ease with which the case could be resolved, or the result that ought to be reached. Under liberalism, as already noted, the equal liberty of those who wish to avail themselves of same-sex marriage would enjoy lexical priority; under pluralism, no religious or secular conception of the good can be regarded as absolute and the best feasible mutual accommodation under justice as reversible reciprocity would require that both the religious objectors and the same-sex marriage proponents be allowed to pursue their respective objectives within the confines of their own communities while being entitled to equal institutional treatment within the community of communities. Casting one’s own religion as universal in settings in which other religious and nonreligious conceptions of the good reject the claim to universal validity in question is thus subject to political (as opposed to metaphysical) rejection from both a secular liberal ideal as well as from a post-secular pluralist ideology that does not privilege the individual over the group or the secular over the religious in its “inclusivist” agenda. 2.3.2 Objections to Taxes, Military Service, and Loyalty Oaths The next group of cases in a scale of ascending difficulty is those that are selfregarding or intra-communal and that are confronted with an obligation to which they conscientiously object, but that they cannot avoid or circumvent. In those cases, the objectors must either obtain an exemption or be forced to act against their conscience or be punished for refusing to do so. Pertinent examples include the refusal to pay taxes to be used for religiously impermissible purposes; obligatory military service leading to combat in war against the unqualified pacifist dictates of one’s religion; and the obligation to swear allegiance to the community of communities, through flag saluting or reciting a pledge of allegiance, in square conflict with one’s religious beliefs or loyalty. As the objector has no alternative, whether an exemption ought to be granted would depend on the interrelation between several key factors consistent with implementation of the paramount normative objectives of comprehensive pluralism. In these kinds of cases, the harms and “dignitarian” concerns of the objector must be assessed as against those of the persons who would be

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harmed by the grant of an exemption to the objector – and, in particular, persons who are especially vulnerable or prone to bearing a disproportionate burden on account of the sought exemption – and against the costs or harms likely to befall the society involved as a whole. In the objection to taxes cases, the right pluralist resolution depends on several contextual factors. How directly and substantially does the taxpayer contribute to what she believes is intra-communally religiously objectionable? Thus, a special tax to subsidize religion meant to be exclusively spent on a religion contrary to that of the taxpayer would directly and substantially adversely affect the latter and call for an exemption or for a change in tax policy. On the other hand, a general tax in support of all state areas of expenditure, including public education that mandates the teaching of the theory of evolution in science classes, would not call for an exemption for an objector whose religion imposes a belief in creationism. In this latter case, the taxpayer’s contribution to the conscientiously objectionable activity would seem indirect or insubstantial, and society at large and those who affirmatively support uncensored science teaching in secondary education would clearly be adversely affected by the elimination of the democratically adopted existing relevant public subsidies.64 In other words, as long as the objector remains free from coercion intra-communally (for example, he can send his children to private religious schools that do not teach evolution theory), the pursuit of pluralism may require him to contribute to the intercommunal realm that he shares with proponents of other conceptions of the good so that both he and those who disagree with him can apportion benefits and costs within the political unit that they share in common. In the compulsory military service cases, the objector does not have an alternative and society, in general, and those individuals who would be charged with the battlefield tasks otherwise assigned to the objector, in particular, would suffer harm. Where the number of objectors is small – as in many cases involving Jehovah’s Witnesses or Quakers – however, the harm to society might be minimal or even nonexistent provided that the objector would undertake alternative civil service. Similarly, the added harm or risk to those on the battlefront might be virtually imperceptible in typical cases involving a handful of objectors among several hundreds of thousands destined for combat.

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Were the administrative costs de minimis and the total amount of tax revenue loss due to a grant of the requested exemption completely trivial, then honoring the conscientious objection at stake would presumably not be inconsistent with normative pluralism, all this assuming no significant dignitarian issues for any of the parties involved.

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Under the ideal of institutional secularism, military service exemptions would be limited to those objecting on religious grounds consistent with the concurrent privileging and political disempowerment of religion discussed earlier. Those objecting on secular grounds, on the other hand, would not obtain exemptions as a consequence of their full empowerment in the political policy process ordinarily preceding the undertaking of military operations in constitutional democracies. As institutional secularism recedes, however, the distinction between religious and nonreligious ideologies loses its importance in the present context. In the latter case, moreover, either the grounds for valid objections ought to be expanded as they were in the US Vietnam War–related cases discussed,65 or they should become severely restricted inasmuch as religious objections would rank no differently than secular ones. Religious objections to saluting the flag or to reciting a pledge of allegiance to one’s country66 are clearly self-regarding and unavoidable when imposed by law in the context of school events or other occurrences in which the presence of the objector is mandatory. These objections may offend others and adversely affect the solidarity and cohesion of the community of communities within the nation-state involved. Here again, contextual factors may matter significantly as objections by a persecuted religious minority would seem more worthy of respect than those by a fully armed and dangerous secessionist and regionally dominant religious group. By and large, however, these objections pose little difficulty and ought to be readily granted either because privileging religion seems appropriate or because in this context freedom of religion largely overlaps with freedom of speech. Indeed, where it is clear that the objector acts out of devotion to religion rather than out of hostility to country or fellow citizens, no dignitarian harm seems likely and honoring the objection would clearly outweigh yielding to those taking offense at the requested exemption.67

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See Section 2.2.2.4. These cases themselves obviously did not rely on the counterfactual at stake in the present analysis. Accordingly, their rationale may best be interpreted as relying on either an expansion of the domain of what ought to count as religion, or as adding to religion-based grounds others considered as deriving from constitutional rights, thus in effect judicially broadening the US First Amendment to include a freedom of conscience component. See, e.g., Minersville School District v. Gobitis, 310 U.S. 586 (1940) and West Virginia Board of Education v. Barnett, 319 U.S. 624 (1943). Even where there is hostility between those who refuse to declare allegiance and their fellow citizens, there may still be a stronger case for granting an exemption than for lending support

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2.3.3 Objections to Abortion and to Abortion-Related Services As noted, conscientious objections against performing abortions are selfregarding and involve for the objecting physician the direct intervention and proximate causation of a religiously prohibited act that at least according to some religious perspectives amounts to unjustified homicide if not to downright murder.68 Yet, in spite of the centrality and the gravity of having to perform a religiously prohibited abortion, the corresponding conscientious objection presents a much more difficult case than the preceding ones. And this is because a religious objector can in most cases avoid placing himself in a position where he might be called upon to perform an abortion; because the woman who seeks the abortion is likely to be constitutionally entitled to it under her liberty, privacy, and equality rights; and because society as a whole may well consider the availability of abortion as a sound policy whether or not it happens to be constitutionally mandated. From the standpoint of the objecting physician, he may avoid conflict by working for a private religiously affiliated hospital that does not perform abortions rather than for a state hospital that is legally obligated to provide them when appropriately requested. Moreover, even if the latter option were not available, the objecting physician could avoid any religious conflict by specializing in an area of medicine that would pose no religious conflict. For the women who wish to have an abortion, on the other hand, widespread refusal or inconvenience can pose health problems, negate fundamental constitutional rights, and seriously thwart the path to equality between the sexes. In addition, particularly in societies in which there is strong reprobation of abortion – such as in the United States where antiabortion activists often seek to dissuade or humiliate women entering a medical facility for purposes of obtaining an abortion69 – exemptions for objecting physicians may well result in serious dignitarian harm for all women who favor, or depend on, having abortion available.

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for those who oppose it. Here again, contextual issues may weigh heavily. Thus, for example, a clash over supporting one’s country at war on religious pacifism grounds or on secular human rights grounds would greatly differ from a white South African bemoaning the demise of his country’s apartheid era and refusing to declare allegiance to his country on the grounds that any country democratically ruled by a black majority is unworthy of any white person’s loyalty. See Section 2.2.1. See National Abortion Federation, 2015 Violence and Disruption Statistics: A Dramatic Escalation in Hate Speech, Threats, and Violence (April 2016). Available at www.google .com/url?sa=t&rct=j&q=&esrc =s&source=web&cd=3&ved=0ahUKEwi84tzJ4pXSAhUG3YM KHckxASAQFggpMAI&url=https%3A%2F%2F5aa1b2xfmfh2e2mk03kk8rsx-wpengine.netdna-ssl .co m% 2Fw p- con t en t% 2F up loa d s 2F2 0 1 5 -N A F -V i o l e n c e -D i s r u p t i o n - St a t s . p d f &usg=AFQjCNG5TDqkWtzoY2xU1t0HJYtVzxRusQ&sig2=5QeGksbRDw79Av9Ctd74iA.

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Consistent with institutional secularism, as objections against performing abortions are virtually exclusively based on religion, there ought to be a prima facie disposition to grant exemptions so long as the consequences would not be disruptive or disproportionate. Thus, if a small percentage of relevant public hospital physicians were objectors, granting them exemptions would seem acceptable so long as this would pose no disruption in abortion services or inequities among the staff. Moreover, it is instructive to compare in this context the privileging of religion under institutional secularism with the rejection of such privileging under comprehensive pluralism. The following example provides a vivid illustration of this contrast. On one hand, a Catholic physician working in a public hospital objects to performing abortions; on the other, a secular physician, working in a Catholic hospital that has an absolute ban against performing abortions, seeks an exemption to perform abortions on those of her patients who would benefit from the procedure and who happen to be constitutionally entitled to it.70 Consistent with institutional secularism, all other things being equal, the Catholic physician should obtain an exemption whereas the secular one who objects on human rights and women’s equality grounds should not. Consistent with pluralism’s justice as reversible reciprocity, however, either both physicians should obtain the exemption, or neither ought to. Indeed, in both cases the objection speaks to a core value within religion for the first physician and within ideological secularism for the second one. Furthermore, keeping in mind that both hospitals involved furnish the same types of medical services for purposes of securing the health of their patients, granting the requested exemptions would have equivalent impacts on the respectively affected patients and staff personnel. Similarly, in both cases, grant of the exemption would have a comparable adverse effect on the respective conceptions of the good involved inasmuch as treating abortion as morally permissible (even by a non-Catholic) looms as equally offensive to Catholicism as is treating it as morally abhorrent to those for whom abortion ranks as a core human right.71 The theoretical and hypothetical analysis of conscientious objection relating to abortion does not take into consideration important contextual factors 70 71

I thank my coeditor Susanna Mancini for bringing this last example to my attention. On the surface, there may seem to be an incongruence with treating a state institution as susceptible to possessing a conception of the good in the same way as it is obvious that a Catholic hospital is inextricably linked to a particular religious conception of the good. Without going into the full ramifications of this apparent incongruence, even if the state qua state ought arguably to remain above any particular conception of the good, the state as health care provider or as educator cannot act without reference to guideposts deriving from particular conceptions of the good. In the present example, the relevant conception of the good is that enshrined in the state’s constitution with respect to fundamental human rights.

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brought to light in several accounts of the contemporary legal and political battles over abortion in several Western constitutional democracies.72 All too often, professed principle-based grounds invoked to secure exemptions from performing abortions turn out to be policy-based self-interested pursuits. Thus, for example, several cases have been reported regarding state hospital physicians who express no objection upon starting their affiliation, but later seek an exemption that allows them to switch from the relatively low-paying performance of abortions to the delivery of much more lucrative medical services.73 More generally, where there is pervasive misuse of principle to further policy and intense political investment in destabilizing or defeating women’s reproductive rights, the hurdles to conscience-based exemptions should be heightened and, where proportionate, even to the point of systematic denial. In such circumstances, there could well be several cases involving genuinely objecting physicians without any policy or self-serving afterthought. Nevertheless, since physicians who might be required to perform abortions in public hospitals would be free to work elsewhere or to focus on other medical specializations that would pose no conscience problems for them, it would remain within the power of each objecting physician to engage in a reasonable and remunerative practice of his profession without danger of breaching the dictates of his faith. Consistent with these observations, any objections to performing pre- or postoperative medical or nursing services in the context of abortion74 ought to be squarely denied. The procedures involved are in themselves presumably religiously unexceptionable, whether they involve taking blood, monitoring vital signs, or administering appropriate medications. The objection in question, therefore, would relate to a past or future undertaking of the patient that is adjudged by the medical personnel involved as being sinful and religiously unacceptable. On the one hand, the fact that the service at stake in this context is not itself religiously prohibited as is the abortion that an objecting physician may be requested to perform makes the case for exemption here in all respects much weaker than that involving the physician discussed. On the other hand, if the door becomes open for refusal to provide routine medical services because these will arguably in some way enhance or further past or future “sins” deliberately pursued by the patient, such as engaging in homosexual or 72 73

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See Chapters 7 and 15 of this volume. See Rosie Scammell, “Driving Women around the Bend: What’s Really Going on with Abortion Access in Italy?” Conscience Magazine (August 22, 2016), available at http://con science mag.org/2016/08/22/driving-women-around-the-bend-whats-really-going-on-withabortion-access-in-italy/. See Danquah et al. v. University of Medicine and Dentistry of New Jersey et al., 2:2011cv06377 (2011).

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adulterous sex, spreading atheism, spewing blasphemy, or propagating idolatry, then the very glue that makes it possible to hold together a contemporary liberal or pluralist society would be in danger of unraveling. Indeed, one of the pillars of contemporary pluralist society vying for peaceful coexistence among the respective proponents of a large number of religious and nonreligious ideologies is the availability to all on a nondiscriminatory basis of essential services such as medical ones, as well as consumer products and services such as food and public transportation. In short, when goods and services that are religiously unobjectionable in and of themselves are offered to the public, there ought to be no room for refusal to deal with one who is a patient, client, or customer based on any religiously abhorrent conduct that the latter has engaged in before, or intends to engage in after, the transaction that is being objected to.75 In the case of objections relating indirectly to abortion and involving medical services before or after, which in themselves are concededly not religiously objectionable, it ought to make no difference whether or not religion is deemed a privileged ground for seeking exemptions from generally applicable laws. The reason for this conclusion is that considerations regarding conflicts of rights (or their avoidance) and proportionality militate strongly against the grant of any such exemptions. 2.3.4 Religion-Based Discrimination on Sexual-Orientation Grounds by Goods and Service Providers Offering to do Business with the General Public Similarly, in cases of refusal to provide services or goods to homosexuals, such as cakes, flowers, or other goods to be consumed or used at same-sex weddings, exemptions ought to be denied whether or not religious objections are considered privileged. There are other cases falling within the same broad category, however, where the solution appears somewhat less obvious. These latter cases include the request to refuse on religious grounds: inscribing on a cake something like “in celebration of the wedding of John and Harry”;76 photographing a same-sex wedding ceremony;77 or renting a room with a matrimonial bed in an inn to a same-sex couple.78 Unlike in the pre- and 75

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This does not preclude granting exemptions in the context of relationships that, in contrast to consumer transactions, are singularly private and personal, such as the hiring of a personal secretary or a childcare provider who is expected to assist in the religious education and practices that the hiring parents wish imparted to their children. See Mullins v. Masterpiece Cakeshop, 2015 COA 115 (Colorado Court of Appeals, 2015). See Elane Photography LLC v. Vanessa Willcock, Docket No. 33,687 (New Mexico, 2013). See Bull v. Hall, UKSC 73 [2013] (UK Supreme Court).

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post-abortion cases, the objectors in these latter cases somehow arguably become complicit in the religiously objectionable act. In the case of the inscription on a wedding cake, arguably the religious baker is forced to affirm in writing the celebration of something that his religion considers to be a strictly forbidden sin. Moreover, since this case involves having a baker being asked to express an assertion that is contrary to the baker’s beliefs, it plausibly poses a threat to freedom of speech as well as to freedom of conscience and freedom of religion rights. The wedding photographer may feel complicit and conveying a message of approval of same-sex marriage, particularly to the extent that having one’s wedding photographed is considered an integral part of the affirmation and celebration of a couple’s entry into marriage. Finally, in the case of providing a room with a matrimonial bed, the innkeeper is arguably providing the means or facilitating the sin about to be committed in a way that is more analogous to the sale of a gun to someone intending to use it in a robbery than to the sale of an apple to the same individual. In all three cases, the religious objector can avoid the objectionable conduct in ways that seem easily manageable: the baker may refuse to put any writing on cakes; the photographer may refrain from photographing any and all weddings; and the innkeeper, as noted by the UK Supreme Court that refused to validate the requested exemption, may install separate beds in all the rooms for hire, thus treating all guests alike.79 Whereas in the cases of the photographer and of the innkeeper, the said solution seems the best, and would thus preclude granting any exemption (also making the distinction between religious and nonreligious objections moot), the case of the baker may call for further consideration. Indeed, avoiding all inscriptions on wedding, birthday, and other customary occasion cakes does provide the optimal way to avoid conflict between religious conscience and anti-discrimination, but may be too drastic a solution given the prevalence and deeply ingrained appreciation of such inscriptions in various social contexts. In a quest to best accommodate the baker and would-be customers alike, all constitutionally protected expression would not fare the same, and seemingly plausibly in some cases religious objections may be deemed deserving of greater consideration than similarly positioned secular ones. Even under the assumption that all the following examples would be completely equivalent from the standpoint of the objector, they would remain clearly distinguishable from a liberal or pluralist standpoint. Compare, for example, the message in celebration of the wedding of two named individuals who happen to be both men to a customer requesting 79

See Bull v. Hall, at para. 39.

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a devout Christian baker to inscribe on a cake the following: “Jesus was nothing more than an ordinary man.” Furthermore, compare the latter to the request to a militant environmentalist baker who happens to be secular to inscribe the following on a party cake: “Climate change is a hoax! Preservation is for weak-hearted nerds.” Arguably, within the liberal perspective, the baker should be entitled to refuse inscribing the second of these messages, but not the remaining other two. In contrast, from a pluralist perspective, the second and third message would presumably equally give rise to an exemption. The reasons for treating the three examples under consideration differently are in part grounded on proportionality considerations and, in part, on contextual attributes relating to the individual messages at stake. In terms of proportionality, refusing to inscribe the first message involves discrimination on the basis of sexual orientation against a minority that has been traditionally discriminated against and causes a significant dignitarian injury. In contrast, in the second example, refusal to inscribe a message involving a contestation of the divinity of Jesus does not give rise to any palpable discrimination against any identifiable group or to any concrete dignitarian injury. From a contextual standpoint, on the other hand, depending on the message at stake, it is sometimes clear that the baker does no more than transmit the message of another much like someone who affords a medium for pay to allow third parties to communicate with one another. Thus, if a customer requests that a baker inscribe on a cake the message “To Harriet, the best wife in the world!,” there would be no implication that this represented the baker’s view and it would seem quite absurd if the latter’s wife, Sally, questioned her husband’s devotion to her upon reading the message in question. In the message denying the divinity of Jesus, however, it is by no means clear from either the reader’s or the writer’s standpoint that the baker is not endorsing, or giving the impression of endorsing, what is inscribed. Finally, the example “In celebration of the wedding of John and Harry,” falls somewhere between the two just discussed. The baker is clearly not personally celebrating the two individuals involved as they are strangers to him, but the message could plausibly connote that the baker may approve, or at least not object to, same-sex marriage. Under liberalism and institutional secularism, the religious objection regarding the divinity of Jesus would qualify as stronger than that of the environmentalist due to greater deference owed to religious beliefs than to secular policy-related convictions no matter how strongly held. Under pluralism, however, these two objections ought to be considered equivalent to the extent that the environmentalist’s commitment to ecology under secular ideology is subjectively as central and as heartfelt as is the devout Christian’s conviction relating to the divinity of Jesus. In the last analysis, application of

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the proportionality standard combined with assessment of the reasonable connotation and contextual implications of statements that a baker is requested to inscribe on products may well foster a degree of legal uncertainty. From a theoretical standpoint, however, principled and consistent assessments seem entirely feasible both within the context of institutional secularism and within that of comprehensive pluralism. 2.3.5 Employer Objections to Employee Health Insurance That Covers Contraceptives The objectors to contributions to health plans that provided contraceptives coverage to women employees in the cases involving the Hobby Lobby Corporation and the Little Sisters of the Poor discussed earlier80 would technically be able to avoid engaging in what they consider religiously impermissible action by switching to alternative occupations. The cost of such a shift, however, would be extremely high, as in one case it would preclude engaging in any business of a more than marginal size, and in the other it would prevent the provision of social services to those in need. On the other hand, even conceding that the conscience conflict is for practical purposes unavoidable, the harm that an exemption would cause, namely to the constitutional interests of women employees to unimpeded access to contraception, would be considerable.81 Finally, for purposes of the present analysis, let us take for granted the subjective assertion of the business owners that paying for the health insurance of all its 11,000 employees, of which about half may be women and only some among this group may seek to use religiously objectionable contraceptives is strictly prohibited by their Christian beliefs. Likewise, let us accept the subjective assertion by the nuns that the mere signing of a form that would

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See Section 2.2.1 for Hobby Lobby, and “Introduction” for Little Sisters of the Poor. In his majority opinion in Hobby Lobby, Justice Alito recognized that access to free contraceptives was compelling, but held that the state could cover the associated cost and hence grant the exemption without harming the women employees concerned. See Hobby Lobby, 134 S.Ct. at 2780. Whereas as a matter of policy, state health insurance may be preferable to state regulation of private business health insurance coverage for its employees, the shifting of the burden to the state invoked by Justice Alito would amount to judicial imposition of a policy that had specifically been rejected by the legislator. Furthermore, in her dissenting opinion, Justice Ginsburg stressed that religious conscientious objection exemptions should not be available to corporate entities as contrasted with religious individuals. See ibid., at 2794. I ignore for present purposes, however, the distinction between a family-owned corporation, such as that involved in Hobby Lobby, and its individual owners.

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automatically exempt them from providing the objected-to contraceptives, thus triggering a mechanism whereby the state and a third party would independently arrange for the exempted coverage to be otherwise provided to the women entitled to contraceptive coverage, amounts to the nuns “deputizing” sin.82 Even when giving these concessions full weight, both under a proportionality standard or under a pluralist justice as reversible reciprocity standard, neither of the two objections at stake ought to result in the requested exemptions. In the case of the nuns, the mere assertion of the refusal to provide the religiously objectionable goods triggers independent action by third parties who have no comparable religious impediment. Accordingly, granting the exemption would be tantamount to allowing proponents of an intracommunal prohibition to extend it, in whole or part extracommunally, to those who do not adhere to any comparable prohibition. In the case of the business owners, while from a purely subjective standpoint, not contributing even if indirectly to the use of contraceptives may be as important as their use happens to be in the worldview of the would-be women employee users, the burdens that would result from grant of the exemption would clearly outweigh those that would ensue as a consequence of its refusal. On the side of the business owners, there would be an indirect subsidy of a religiously prohibited practice; on that of the women affected, an infringement of a fundamental interest with unmistakable constitutional dimensions. Under the ideal of institutional secularism, the requests for exemption by the business owners and the nuns ought arguably to be given priority as being based on religion whereas the interests of the women presumably are not. Upon closer consideration, however, three important factors militate against prioritizing the religious interests invoked. First, the objected-to contraceptives may be acceptable within the religious traditions of some of the employed women who seek their use.83 Second, access to contraceptives may be 82

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Several US courts of appeal held that signing the requisite form did not amount to the imposition of a “substantial burden” on the nuns’ free exercise of religion. However, one such court disagreed and held for the objectors. The US Supreme Court took appeals from all these decisions, but refused to adjudicate the case on the merits, on the grounds that the government and the religious objectors had found a way to arrive at a compromise that would satisfy all interested parties. See Zubik v. Burwell, 578 U.S.—(2016). Many religions allow the use of contraceptives. For example, there is no ban on birth control in Hinduism. In Islam, birth control may be acceptable in special circumstances. Judaism comprises a wide variety of theological positions, but most rabbinic authorities agree that people may use the contraceptive pill, and more liberal forms of Judaism generally permit any form of birth control. In Buddhism, contraceptives that prevent fertilization are mostly approved of. See Family Planning Authority, “Religion, Contraception and Abortion Fact

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(depending on the jurisdiction involved) a constitutional as opposed to a mere policy-based interest, thus rising to a rank that is equal to that of religion under institutional secularism. And third, in the context of large-scale corporate employment and systemic NGO engagement in social services,84 the religious claims to exemptions do not arise within clearly delineated confines of the private sphere, but rather in a setting in which the confines between the private and public spheres have become thoroughly blurred. 2.3.6 Religious Objections by State Officials Relating to Performance of their Official Duties The final cases that warrant consideration in the present inquiry involve state officials who refuse to perform their official duties on the grounds of a religiously based conscientious objection. The two notorious cases that have been much debated in this context are those of Lillian Ladele in the United Kingdom and of Kim Davis in the US. Both women refused to officially certify same-sex relationships on the grounds that to do so would fundamentally offend their Christian faith. Ladele lost her case for an exemption in the English courts and in the European Court of Human Rights;85 whereas Davis was sued by same-sex couples who sought to have her register them for marriage, and, after refusing to obey a judge’s order to perform her duties, she was held in contempt of court and sent to prison.86 There are certain factual and circumstantial differences between the two cases. Ladele emerges as a more sympathetic figure than Davis because she was hired as a registrar in London’s Borough of Islington prior to the legalization of same-sex unions and because she only sought to be exempted from personally registering same-sex without in any way interfering with her office’s full performance of its official duties. Davis, in contrast, who was elected as the county clerk and was charged with issuing same-sex marriage licenses after the US Supreme Court held such

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Sheet” (updated November 2016), available at www.fpa.org.uk/factsheets/religioncontrception-abortion. In addition to the nuns devoted to social services, Catholic hospitals, universities and schools also sought the same exemption from filling a government form in order to obtain an automatic exemption. See Priests for Life v. US Dept. of Health and Human Services, 772 F.3d 229 (D.C. Cir. 2014). See Eweida v. UK (2015) 57 EHRR 8. This case is extensively discussed in Chapter 16 of this volume. See Eric Ortiz, “Kim Davis, Kentucky Clerk, Held in Contempt of Court and Ordered to Jail,” NBC News, September 3, 2015.

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marriages to be constitutionally guaranteed,87 not only refused to grant the objected-to licenses, but also forbade deputies under her supervision who had no objections from doing do so.88 Davis wanted to foreclose any same-sex marriage in her county, insisting that there were other counties in Kentucky where same-sex couples could readily obtain marriage licenses. Davis was widely criticized and compared to the Southern states governors who stood at the state school doors to prevent racial desegregation which had been ordered by the US Supreme Court.89 In spite of the differences between the two cases, exemptions should have been refused to both Ladele and Davis – as all courts which dealt with these controversies did on both sides of the Atlantic Ocean – given that state officials should be bound to existing law and to the rule of law. Under institutional secularism, the state must remain religiously neutral, and any state official with a contradictory religious obligation must resign a state position or arrange for a transfer to a state function that does not interfere with religious faith. Similarly, from a pluralist standpoint, state officials must adhere to pluralism’s inclusivist norms, and that forecloses carrying out official state functions in ways that explicitly favor one religious ideology to the detriment of other religious and nonreligious ones. On the surface, it may seem that accommodation of religious objectors so long as there are no disruptions in the provision of the state service at stake would best serve the cause of the greatest possible inclusion of competing conceptions of the good. Upon more careful consideration, however, the refusal to provide a state mandated service on normative grounds has profound adverse dignitarian and “identitarian” consequences for those who are the targets of religious reprobation and rejection. Moreover, these adverse consequences are exacerbated if the targeted group, such as the LGBT community, is one that has been traditionally excluded and discriminated against. In short, as the religious objector for all practical purposes refuses to act in the name of the state, state acquiescence to this refusal looms as tantamount to the community of communities singling out one of the particular communities of which it is comprised for exclusion or only partial second-class inclusion. This is all the more objectionable in cases where the wronged community has been traditionally oppressed or vilified.

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See Obergefell v. Hodges, 135 S.Ct. 2071 (2015). See Mike Wynn, “Clerk ‘Sought God’ on Marriage License Issue,” Louisville Kentucky Courier-Journal, July 21, 2015. See Jennifer Rubin, “Trashing the Rule of Law,” Washington Post, September 4, 2015.

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2.4 THE CONTEMPORARY RELIGIOUS CONSCIENTIOUS OBJECTOR IN THE PLURALIST POLITY: ENTITLED TO PRIVILEGE OR CONSTRAINED TO A LEVELED PLAYING FIELD?

Consistent with the preceding analysis, it becomes apparent that religionbased conscientious objection has evolved greatly from the way it emerged in (the somewhat idealized) setting of the Enlightenment-infused constitutionally structured and institutionally secular polity of yesteryear. At the same time, in spite of all the momentous changes outlined throughout the preceding discussion, one important thing has always remained constant: acceptance or vindication of conscience claims have been consistently subjected to significant limitations going all the way back to early Christendom. Moreover, the limitations in question (though they have obviously varied in content through the ages) have been firmly incorporated both within the philosophical appraisal of conscience claims and within the historical treatment of conscience emanating in the Christian tradition and ranging all the way to the recognition of secular-based conscience as a logical extension of its religious precursor. 2.4.1 The Case for Deprivileging Religion-Based Conscience Claims As we have seen, the combination of favoring of freedom of religion coupled with its political disempowerment, which accorded an acute sense of priority to religion-based claims of conscience, was the product of a particular convergence of historical and ideological circumstances. The priority involved resulted from a trade-off rooted in acceptance of the implantation of institutional secularism combined with the depoliticization of religion through its confinement to the private sphere.90 The confluence of the repoliticization of religion, the discrediting of institutional secularism, and of the accelerating erosion of the boundaries between the public and private spheres, on the other hand, throw the justifications for privileging religion and religious-based conscience claims into serious question. More specifically, first, once religion 90

Neither depoliticization nor confinement was ever close to full realization. What is important for our purposes, however, is that these two restrictions on religion become manifest as counterfactually plausible. Furthermore, upon careful consideration, the requisite counterfactual does not require an absolute depoliticization of religion. Indeed, depoliticization in all that pertains to the public sphere is fundamental, but that does not preclude political action to better live one’s religion within the private sphere. Consistent with this, seeking an exemption from existing law to be able to engage in ritual slaughter in one’s religious community would be arguably consistent with the counterfactual whereas seeking to outlaw abortion throughout the polity would not.

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is repoliticized, the very reason for the quid pro quo whereby religion is privileged in exchange for staying out of the political arena, sparing the latter from the remnants of wars of religion, largely collapses. Second, institutional secularism may well be prone to somewhat disadvantaging religion, thus warranting privileging the latter so long as that does not pose a threat to institutional integrity. Once institutional secularism vanishes or becomes totally discredited, however, all religious ideologies and all secular ones should be able to stand, at least ex ante, on a completely equal footing. And third, so long as the private sphere is neatly carved out from the public sphere, it seems fairly easy to confine religious privilege intracommunally. For example, as already pointed out, within an exclusively private-school based educational system, a Christian school’s refusal to teach the theory of evolution in science classes would most likely have little, if any, intercommunal effect. But that is bound to change with any severe erosion of the boundaries between the two spheres, thus making any religious privileging much more likely to have undesired (and from a pluralist standpoint undesirable) intercommunal effects. Indeed, it would obviously be much more disruptive to have to cope with efforts to prohibit the teaching of evolution theory or the demand that the latter be paired with the teaching of creationism in a state-run public school system. Does the elimination of all privileging of religion-based conscience claims necessarily result in reducing the latter to the equivalent of ordinary policy claims in competition with a multitude of other policy initiatives in a political arena driven by a clash of numerous and varied interests? Within the ambit of comprehensive pluralism, the answer is unmistakably a negative one. Indeed, from a pluralist standpoint, deprivileging religious conscience claims by no means implies reducing all conscience claims (including religious ones) to mere policy ones. Stated in philosophical terms, all conscience claims in accord with pluralism’s core norms ought to enjoy priority over all policybased claims deriving from contested norms that may even be inconsistent, but not incompatible, with those core norms. Moreover, to the extent that such core norms become constitutionalized – including freedom of expression, freedom of conscience, and freedom of religion – all fundamental beliefs and principles deriving from a bona fides conception of the good would enjoy priority over any pure policy interest or objective. The priority in question would of course be limited, but only to the extent necessary to guarantee the equal liberties principle or to realize policy objectives that prove to be compelling in relation to the common good of the polity as the community of communities. Furthermore, the equal liberties principle would provide the standard for resolving conflicts between fundamental rights triggered by

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requests to grant conscience-based exemptions, and that standard would be aided by the deployment of justice as reversible reciprocity as well as by additional safeguards regarding those who are particularly vulnerable or discriminated against. Justice as reversible reciprocity would facilitate comparing the centrality of the pursuit of the conscientious objector as against the gravity and centrality of the likely impairment of the rights-based interests of those likely to be adversely affected by the grant of the objector’s request. The additional safeguards for those who have been traditionally disadvantaged or discriminated against, on the other hand, would provide a crucial counterweight against deeply entrenched conditions of prejudice, oppression or domination, and would be particularly useful in cases in which conscience and prejudice seem likely to converge. Thus, for example, if a religion prescribed that homosexual sex and extramarital heterosexual sex were equally sinful, and an innkeeper who was an adherent to that religion refused to let a room with a matrimonial bed to a same-sex couple while readily doing so to an opposite-sex couple whom he knew not to be married, would it not be fair to question whether or not the innkeeper’s asserted religious objection was tinged by pure and simple homophobia? 2.4.2 Conscientious Objection and Religious Discrimination Comprehensive pluralism affords room for extensive vindication of religious and nonreligious conscience claims with principled and internally coherent limitations much like all the philosophical and historical accounts discussed in Section 2.2 and Section 2.3. Defenders of broad vindication of contemporary religion-based conscience calls for exemptions from generally applicable laws argue, however, that subsuming conscience claims within the freedom of religion paradigm is insufficient. This is because, according to those who advance this argument, freedom of religion and conscience with their customary limitations fail to account for serious discrimination against certain, often vulnerable, proponents of religion within the ambit of liberal and primarily secular societies.91 Christopher McCrudden, a leading proponent of this antidiscrimination approach, uses the Ladele case to highlight what he considers the insufficiencies of the freedom of religion paradigm in the present context.92 Ladele, as McCrudden reminds us, is a black woman who is a member of a small Evangelical church “working in Islington Council, which is among the most LGBT-friendly local authorities 91 92

This argument is thoroughly and eloquently elaborated in Chapter 16 of this volume. Ibid., Section 16.5.

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in London, a city that is among the most secular areas in the world.”93 The implication drawn from this contextual account is that Ladele, a member of a discriminated against racial minority and of a non-mainstream church preaching a fundamentalist brand of Christianity, is in all likelihood the one who is looked down upon, oppressed, and subordinated, not the same-sex couples seeking civil union (and obtaining it without any difficulty from Ladele’s many non-objecting fellow registrars) within the bounds of thoroughly gay-friendly, cosmopolitan, liberal, secular, progressive, and permissive Islington. What McCrudden underscores is that by looking at Ladele’s situation in pure freedom of religion terms, the comparative element just stressed remains completely unaccounted for.94 In other words, rejecting Ladele’s religion-based plea for an exemption from registering same-sex couples seems amply justified as a legitimate limitation on freedom of religious conscience as indicated in the discussion of the case in Section 2.3. This leaves no room for considering the factual assertion that Ladele is the more vulnerable and prone to discrimination in gay-friendly Islington, and that when that becomes properly factored in a comparative antidiscrimination analysis, mutual accommodation of Ladele and same-sex couples seeking civil unions becomes the optimal, fairest, and most satisfactory outcome. Indeed, in the context of Islington as opposed to in that of a conservative Christian setting with a fair amount of homophobia, the gay couples concerned who would be able to obtain civil union without impediment should be little or not affected by the mere knowledge that Ladele has been exempt from registering, while all (or most) of her fellow registrars will do so without reservations. At the same time, Ladele would be able to honor her religious faith and conscience without losing her job as a public servant. McCrudden concedes that the antidiscrimination approach can be problematic, and refers to religion-based refusals to register marriages between Jews and Gentiles or between interracial couples as unacceptable and as undeserving of any accommodation.95 For McCrudden, what distinguish the latter cases from Ladele’s is that they “constitute fundamental breaches of human dignity.”96 From a pluralist standpoint, however, McCrudden’s distinction is unsustainable. Homophobia, anti-Semitism, and racism all constitute equally severe affronts against human dignity, regardless of whether motivated by sincere religious belief or by raw prejudice. Accordingly, Ladele should no

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Ibid., Section 16.5.3. Ibid., Section 16.5.2.

94

Ibid., Section 16.5.3.

95

Ibid., Section 16.5.2.

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more be granted an exemption as a state registrar than any of her counterparts who may happen to religiously object to interfaith or interracial marriage. With a narrow exception discussed below, use of antidiscrimination principles to deal with conscience claims is ill advised on both a contextual and a jurisprudential basis. From a contextual standpoint, concentrating on Ladele as a public official, the right focus ought to be on the United Kingdom as a millennially Christian nation with a long history of criminalization of homosexual sex and of discrimination against homosexuals, as well as a traditional conception of marriage as being exclusively reserved for oppositesex couples. Moreover, in the context of Ladele’s Christian objection to samesex union, her race looms as completely irrelevant since the conflict at stake is not between blacks and whites, but between certain Christians of all races against homosexuals. To take another example, it would be odd to condone black anti-Semitism in the United States on the grounds that blacks have been unquestionably more oppressed and discriminated against than Jews throughout the history of that country. Within the cohort of gentile American anti-Semites, which may be assumed to be significantly larger in number than that country’s small Jewish population, blacks stand united with whites in prejudice and ill will against a small religious minority traditionally reviled for most of the history of Christendom. From a jurisprudential standpoint, on the other hand, use of the antidiscrimination standard is objectionable on two distinct grounds. First, recourse to a discourse of antidiscrimination tends to exacerbate false equivalences to the detriment of real, and often categorical, differences. Thus, for example, in the case of Ladele, what is crucial is that she is a state official charged with registering civil unions regardless of the sexual orientation of the couples that seek to register. Placing her within the antidiscrimination mold, as McCrudden does, tends to minimize the crucial importance of her stateofficial status and of her charge to register civil unions pursuant to the dictates of law regardless of her personal convictions, religious or otherwise. Moreover, within the antidiscrimination mold, Ladele’s official role recedes, and she appears to be on the same plane as the homosexual couples that provoke her objection. Consistent with that, why should her innermost religious convictions count for less than the homosexual couple’s right of intimate association? Second, applying the antidiscrimination standard to the religious objection claim results in doubling its use in the context of the situation at hand, thus resulting in inappropriate and undesirable consequences. Indeed, the objected-to law must itself satisfy the antidiscrimination standard or is otherwise subject to attack, which if successful, would obviate the need to raise a conscientious objection. In the Ladele case, the law granting the right to civil

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unions either creates legal entitlements consistent with the antidiscrimination standard or is vulnerable to attack on that standard. Were the latter the case, entitlement to same-sex unions would be abolished, and those in Ladele’s position would have nothing to object to. On the other hand, if the existing civil union law satisfies the antidiscrimination standard, then reintroducing the antidiscrimination standard de novo to assess independently whether the law in question discriminates against Ladele – presumably by impacting her adversely as compared to its effect on fellow registrars who do not have similar objections – risks undermining the legitimate interplay between entitlements and obligations subsumed under the already antidiscrimination-vetted civil union law objected to. Indeed, if in the second application of antidiscrimination analysis, Ladele is found to have been aggrieved and thus entitled to an exemption, at least some of those with entitlements under the already antidiscrimination-vetted civil union law will become targets of new discrimination which they, in turn, ought to be able to challenge under the antidiscrimination standard. In short, the second use of antidiscrimination may upset already established legal and constitutional rights. This last problem is exacerbated by the contemporary expansion of the antidiscrimination standard to cover indirect discrimination as well as direct discrimination, or what is roughly equivalent in U.S. jurisprudence, discriminatory impact as well as discriminatory intent.97 Since virtually every law can be attacked for either treating differently those who ought to be treated the same or treating the same those deserving to be treated differently, the antidiscrimination standard can be converted into a formidable shield or sword in the conscience wars. In Ladele’s case, this standard figures as a shield, albeit an inappropriate one. In the Kim Davis case discussed in Section 2.3, in contrast, it emerges as a destructive sword for, as one commentator observed, Davis, who wanted to prohibit her deputies from registering same-sex marriages based on her own objections, is a prime example “of someone who wants to use religious liberty arguments to discriminate.”98 Some may argue that any complete ban of the antidiscrimination approach is excessive to the extent that there are cases where treating the religious objection claim under the antidiscrimination standard has at most a barely perceptible or trivial effect on those entitled under the objected-to law. What if only one objector is quietly exempt without any disruption in the grant of the

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See Norman Dorsen, Michel Rosenfeld, Andras Sajo, and Susanne Baer, eds., Comparative Constitutionalism: Cases and Materials (St. Paul, MN: West Academic, 2016). Quoted in Brian Bromberger, “New Book Details Windsor Supreme Court Victory,” San Francisco Bay Area Reporter, October 15, 2015.

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relevant entitlement? The mere knowledge that one state registrar is exempted from registering same sex marriage does mark a difference – as slight or trivial as it may be – between heterosexual and homosexual couples constitutionally or legally equally entitled to civil marriage. Accordingly, even in what may seem a trivial case, there is some erosion within the ambit of antidiscrimination. Moreover, given that almost every claim of triviality or tolerability is contestable – as made manifest in my disagreement above with McCrudden concerning the dignitarian harm likely to ensue upon granting someone like Ladele an exemption – it seems far preferable to adhere to a blanket ban on use of the antidiscrimination standard in the conscientious objection context, or more precisely to a complete ban with one exception. The exception in question relates to seemingly generally applicable laws that in effect are meant to, or primarily, discriminate against religion.99 Thus, for example, imagine that in a country in which bullfighting involving taunting, injuring, and killing bulls in a ritualistic process lasting a quarter of an hour is both legal and highly popular, a law prohibiting ritual slaughter, such as that practiced by Jews and Muslims, is enacted with the stated purpose of preventing cruelty to animals. In this context, it seems reasonable to assume that the latter law has no other real purpose than to discriminate against two (presumably minority) religions within the polity. Accordingly, invocation of the antidiscrimination standard by the targeted religious groups is entirely called for and appropriate. Notice, however, that in this proper use of the antidiscrimination standard, there is no objectionable “doubling” involved. Indeed, in the present case, antidiscrimination is directly invoked against the relevant law itself and not, at least for practical purposes, in favor of obtaining an exemption from the ritual slaughter prohibition. The banning of the antidiscrimination standard does not mean that the religious objector must remain without any recourse. The freedom of religion and freedom of conscience claims not only remain in place but they also emerge as sufficient to strike a proper balance between the objector’s legitimate religious entitlements and other rights and policies inscribed in laws. Whereas freedom of religion, consistent with pluralism, would never entitle someone like Ladele to an exemption from performing her official state duties, it might well in some cases come to her aid against religious infringements by her state employer. Thus, for example, if the 99

See Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) (generally phrased law prohibiting a practice unique to a non-mainstream religion held to be an unconstitutional discrimination based on religion that violates freedom of religion rights).

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state threatened to reduce someone like Ladele’s salary for belonging to a church that condemned homosexuality as sinful, or threatened to dismiss her from her position unless she quit the church in question, then she should definitely prevail against her state employer on freedom of religion grounds. Quite obviously, what a state employee does lawfully in her private life outside of her state employment should not be subject to state control, and even much less so when it involves the exercise of her freedom of religion. 2.5 CONCLUSION

Religion-based conscientious objection has greatly spread in recent years and has sparked cultural strife in contemporary pluralistic, religiously diverse, multiethnic and multicultural polities. Conscientious objection has been invoked both as a shield against perceived unjustified encroachments by institutionally secular societies regarded as biased against religion and as a sword to recast the realm of law so as to better conform with the dogma and precepts of a particular, in most cases majoritarian, religion. Placing conscience claims in their relevant philosophical and historical contexts has yielded valuable insights that provide guidance in the quest to best handle the conflicts fueled by the current conscience wars. From philosophy, the main lesson is that the vindication of conscience claims depends to an important degree on proper application of the distinction between matters of principle and matters of policy. From history, on the other hand, two crucial revelations emerge: first, that freedom of conscience has always been subject to limitations; and second, that the privileging of religious conscience after the advent of secularism has been the product of a confluence of particular historical circumstances and ideological currents. As the conditions sustaining the legitimacy of privileging religion and religious conscience have largely collapsed, it has become increasingly compelling to place religious and nonreligious conscience claims on an equal footing. That, in turn, raises the question of how to achieve parity between all principle-based conscience claims with a view to maximizing the benefits of honoring conscience claims while limiting the harms that exemptions based on conscience may cause. Consistent with this analysis, I have suggested that the best option is to abandon the much criticized institutional secularism and to replace it with an approach circumscribed by comprehensive pluralism. That latter approach, as I have attempted to make clear, while far from perfect, allows for a systematic conception of the proper place of conscience claims; for a clear and cogent account of the proper scope of limitation relating to such

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claims; and for situating conscience conflicts within a broader context of plausible reconciliation of poles of identification and poles of differentiation within the relevant community of communities. As stressed, the overall purpose of the pluralist ethos is the peaceful mutual accommodation of all represented religious and nonreligious conceptions of the good. What that means for particular religions is that they are not entitled through conscience or otherwise to implantation of their own truth beyond the intracommunal bounds of their own community of faith. Correspondingly, religions must accept the status of being one among many in the broader political and societal arena and the imperative to adjust the pursuit of their own truth and the dictates of their own conscience so as to leave enough room for others to pursue within the same limits their own truths and consciences. I have argued that pluralism affords the best normative means to tackle fairly and efficiently contemporary conscience-based conflicts. What still remains open to question, however, is whether the deployment of normative pluralism is more likely to decrease rather than increase the instances of consciencebased conflicts within the polity. As comprehensive pluralism projects an ideal to be used for critical purposes as well as for purposes of perfectibility of the status quo, and as contextual factors such as the number and nature of religious and nonreligious views represented in a polity are bound to weigh heavily in the actual production and management of conscience conflicts, it would be sheer speculation to venture an answer to this important question. Notwithstanding these caveats and staying strictly within the realm of the ideal, it does appear that internalization of the pluralist ethos might well facilitate the decrease in conscience conflicts. In a well-functioning pluralist setting, conflicting ideological communities may conceivably coexist for the most part by turning inward and ignoring one another. But the various groups involved may also at least partially internalize the pluralist ethos and that, at least in theory, could well make for greater mutual accommodation and a consequent dramatic de-escalation of the conscience wars.

3 Conscientious Objections Bernhard Schlink

3.1

The freedom to object for reasons of conscience, in particular if such objections are motivated by religious considerations, differs from all other constitutionally granted freedoms. All the other freedoms are building blocks of democracy. Democracy is inconceivable without freedom of expression, assembly, and association, and without professional and economic freedoms; exercising these freedoms creates the exchange of opinions and the interplay of interests that sustain a socially, culturally, and politically active and diverse society: a democratic society. This even holds true for freedom of religion; religious plurality is an exercise in democratic plurality. Conscientious objectors do not contribute to the democratic society; they withdraw from it and withhold themselves from it. Democratic societies comprise social games in which each individual participates in his or her particular way. Conscientious objectors don’t participate. They want to be left out, to be left alone, not because they want to enjoy their privacy, as everyone does, but because they want to enjoy an exemption from an obligation that everybody else shares. Statutes reflect this peculiar status of the freedom to object for reasons of conscience. Such legislation respects the freedoms of expression, assembly, and association of everyone within society, and, in a general sense, guarantees professional and economic freedom for all. The freedom to object for conscientious reasons is always granted as an exception. It is true that anyone may request that this exception be applied. However, the freedom to object for conscientious reasons is premised on the assumption that not everybody will make use of this waiver. If everyone did so, if everybody refused to serve in the armed forces while the commonwealth depends on compulsory military

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service or if all parents refused to send their children to school and thereby dismantled public education, societies could not survive. The freedom to object for conscientious reasons is a right that can be enjoyed by some members of society, but not by all; a relatively small number of people can avail themselves of this freedom only because most people do not exercise this right. In other words, it is a privilege.1

3.2

It is obvious why a democratic commonwealth grants all the other freedoms to its citizens. But why does it accord some citizens the freedom to object for conscientious reasons? Why does it grant privileges? Democracy is at odds with privileges. Democracy is egalitarian; privileges are elitist.2 The question becomes even more puzzling when we fully grasp the threatening nature of the freedom to be a conscientious objector. The conscience has been called a mystery,3 even a sanctuary,4 because it is ultimately inaccessible and uncontrollable from the outside. There are no limits to what a conscience can demand and forbid, there is no meaningful legal obligation for which someone’s conscience cannot find a reason to object, and if someone claims a position as his or her conscientious position, there is no objective way to determine whether he or she is telling the truth or is faking. There is something rebellious and anarchic5 about the conscience, and if it is taken as the ultimate authority governing social behavior, the legal order is jeopardized. These findings lead to two conclusions: first, the high price a democratic commonwealth pays for granting conscientious objectors freedom to follow their conscience is justified only because and insofar as the freedom protects 1

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Ernst-Wolfgang Bo¨ckenfo¨rde, “Das Grundrecht der Gewissensfreiheit,” in Richard Ba¨umlin and others, eds., Das Grundrecht der Gewissensfreiheit (1970) [Vol. 28 of Vero¨ffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer], 33–56. On the overcoming of established privileges as a main issue of modern constitutionalism since 1776, cf. Dieter Grimm, Deutsche Verfassungsgeschichte 1776–1866 (Frankfurt am Main: Suhrkamp, 1988), 13ff. G. W. F. Hegel, Grundlinien einer Philosophie des Rechts (Frankfurt am Main: Suhrkamp, 1970) [Gesammelte Werke Band 7], 256 (ad § 137). Ibid., n. 3; Robert Spaemann, Personen: Versuche u¨ber den Unterschied zwischen “etwas” und “jemand” (Stuttgart: Klett-Cotta, 1996), 189. Adalbert Podlech, “Leben nach der Ordnung des Staates oder dem eigenen Gewissen,” in Egbert Nickel and Ulrich O. Sievering, eds., Gewissensentscheidung und demokratisches Handeln [Arnoldshainer Texte 29] (Frankfurt: Haag and Herchen, 1984), 10–14; Max Scheler, Der Formalismus in der Ethik und die materiale Wertethik, 4th edn. (Bern: Francke, 1954), 337.

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something of great value – the conscience not as a locus of whim and fancy, but as the core of our being, which must be obeyed in existential situations, decisions, and conflicts as a precondition for preserving our identity and integrity. Second, in granting freedom to object for conscientious reasons, this freedom must not be pushed to its ultimate anarchic conclusion. The insistence of any individual on the position dictated by his or her conscience cannot have the final say on the subject. That means that the conscientious objector must accept that his or her conscientious position can be questioned: Is it plausible? Is it plausible that this conscientious objection is essential? Is it plausible that the acts the conscientious objector refuses to perform would be detrimental to identity and integrity? Since identity is manifested in words and actions, and integrity signifies consistency between our assertions and our deeds, it is possible to communicate, understand, and appraise the plausibility of positions and objections dictated by conscience.6 Asserting that such objections cannot have the final say also means that someone who refuses to fulfill one particular obligation can be required to fulfill an alternative obligation. The freedom to object for conscientious reasons exists to protect the conscience, not to guarantee that obligations can be avoided. The alternative proposed may even be inconvenient;7 the freedom to object for reasons of conscience comes at a high price for the democratic commonwealth and can also, correspondingly, require that the objector pay a certain price too. The objector’s willingness or reluctance to accept an inconvenient alternative obligation can be an important indicator of how genuine his or her position actually is, particularly in situations in which it is difficult for the authorities to assess the plausibility of a conscientious stance and objection. 6

7

Cf. Bundesverwaltungsgericht [BverwG] (Mu¨nchen: C. H. Beck, 1973), December 12, 1972, E 41, 261–67; BVerwG February 3, 1988, in: Neue Zeitschrift fu¨r Verwaltungsrecht 1989, 60; European Court of Human Rights, Case of Eweida and Others v. The United Kingdom (January 15, 2013, 48420/10, 59842/10, 51671/10, and 36516/10) para. 81ff. with further ref.; European Court of Human Rights, Case of Kosteski v. The Former Yugoslav Republic of Macedonia (April 13, 2006, 55170/00) para. 39 with further ref.; Ute Mager in von Mu¨nch and Kunig, eds., Grundgesetz-Kommentar, vol. 1, 5th edn. (Mu¨nchen: C. H. Beck, 2000), Art. 4 para. 29; Roman Herzog in Du¨rig and others, eds., Grundgesetz-Kommentar (Mu¨nchen: C. H. Beck, 1988), Art. 4 para. 159ff.; Martin Morlok in Dreier, ed., Grundgesetz-Kommentar vol. 1, 3rd edn. (Tu¨bingen: Mohr Siebeck, 2013), Art. 4 para. 102ff.; Bo¨ckenfo¨rde, “Das Grundrecht,” n. 1, 66. Cf. Bundesverfassungsgericht [BVerfG] (April 13, 1978), E 48, 127–71; BVerfG (April 24, 1985), E 69, 1–32; Bo¨ckenfo¨rde, “Das Grundrecht,” n. 1, 61–84; Mager, Grundgesetz-Kommentar, n. 6, para. 28, 76.

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If an objection on grounds of conscience cannot have the final say, a position rooted in the dictates of conscience must not be protected if doing so would put other people in serious danger. The freedom to object for conscientious reasons is not granted at the cost of other people’s lives and health, freedom and property.

3.3

Sometimes the plausibility of a conscientious position is obvious. That is the case when a conscientious objection has been, and remains, so frequent that the legislature has established alternatives to replace the critical obligation: civilian service instead of military service; homeschooling as an alternative to traditional schooling; working on Sundays rather than working on Saturdays; kosher meals as an alternative to standard meals in governmental institutions; alternative medicine rather than mainstream medicine in government-funded health care; oaths that do not include any religious assertions as an alternative to oaths with religious content. When alternatives have not been or cannot be organized on a regular basis, they may be identified in an ad hoc manner, either in the form of a different, equivalent obligation for the conscientious objector or even as an obligation for someone else. The objector can be required to cooperate in searching for such an alternative. In one German case8 in which a biology student refused to vivisect an animal for reasons of conscience, the professor adopted the right course of action by explaining to the student why vivisection forms part of the curriculum and asking her to offer other ways of demonstrating the relevant knowledge and skills. When, for conscientious reasons, a doctor refuses to perform an abortion, or a registrar refuses to register a particular marriage, a colleague may be found to stand in for them, and the doctor and the registrar can be required to help find such a replacement. However, it may be impossible to find someone to replace the doctor or the registrar, and there is no substitute for the vaccination some parents reject for their children, nor for the taxes that some pacifists refuse to pay, nor for the insurance premiums that some believers spurn. If no replacement can be found, the doctor cannot refuse to perform the abortion in life-and-death scenarios, or if there are grave health issues.9 If a child will not grow up in solitude, but alongside other children whom 8

9

BVerfG (March 20, 2000), in: Neue Zeitschrift fu¨r Verwaltungsrecht 2000, 909; BverwG (June 18, 1997), E 105, 73–87. Cf. BVerfG (May 28, 1993), E 88, 203–94.

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he or she may infect with a virus that may be fatal or have serious health consequences, his or her parents cannot be allowed to refuse to have the child vaccinated.10 Refusing to register a particular marriage or to pay taxes or insurance premiums is not a matter of life and death. What about those scenarios? Can they be plausibly related to the identity and integrity of the registrar, the taxpayer, or the potential premium holder? One does not jeopardize one’s identity or lose one’s integrity by saying or doing things that nobody else understands as being constitutive of identity or integrity. Mailing a letter, greeting a colleague, stopping at a red light, keeping the sidewalk clear of snow and ice, paying at the store, just like other everyday activities and obligations, are so depersonalized that nobody takes the words said and actions performed as an expression of who a person is. This may be different in certain specific circumstances; a Jew may not feel free to mail a letter on Saturday, and a Muslim may not wish to greet his female colleague with a handshake. Yet such specific circumstances are rare exceptions. Having to pay taxes and even accepting that one must pay taxes does not mean accepting the budget or approving of various budgetary items, such as funding earmarked for the Secret Service, the military, or war. Paying taxes is depersonalized11 and is not a matter in which the citizen is involved, and the citizen is seen to be involved as an individual with a particular political position, with a specific political conscience. As a political being, the citizen is only involved in the elections that give rise to the parliament that makes the budgetary decisions. These are two distinct matters.12 Similarly, having to pay mandatory health insurance contributions and accepting that such payments are due does not mean accepting the insurance benefits paid out in each and every case, nor is it tantamount to approving this patient having ruined his liver by drinking, and that patient having ruined a spine by reckless driving, and another patient needing contraception or an abortion.13 Again, the citizen is politically involved in the process whereby the mandatory health insurance

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12

Cf. Christian Starck in von Mangoldt, Klein, and Starck, eds., Das Bonner Grundgesetz, Kommentar vol. 1, 3rd edn. (Mu¨nchen: C. H. Beck, 1985), Art. 4 para. 56; Morlok, GrundgesetzKommentar, n. 6, para. 155; Mager, Grundgesetz-Kommentar, n. 6, para. 65; Herzog, Grundgesetz-Kommentar, n. 6, para. 157; Adalbert Podlech, Das Grundrecht der Gewissensfreiheit und die besonderen Gewaltverha¨ltnisse (Berlin: Duncker and Humblot, 1969), 138ff. BVerfG (August 26, 1992), in: Neue Juristische Wochenschrift 1993, 455; Matthias Herdegen, “Gewissensfreiheit,” in Merten and Papier, eds., Handbuch der Grundrechte in Deutschland und Europa, vol. 4 (Mu¨nchen: C. F. Mu¨ller, 2011), 663–81, with further ref. Cf. BVerfG (August 26, 1992), n. 11. 13 Cf. BVerfG (April 18, 1984), E 67, 26–37.

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scheme is established; the citizen helps create the parliament that introduces this system. But one is not a Good Samaritan to each and every patient. The position of a registrar is also depersonalized. The registrar who unites two people in matrimony does not do so in a personal capacity, but as a function of his official role; the registrar is not the subject of the marriage registration but its instrument. By registering a wedding, a registrar no more approves of same-sex marriages or unions between divorced people or couples of different faiths or of different races than a notary condones the transactions that are documented or a postman approves of weapons or sex toys or pious literature that are delivered. There is no place for conscience in these actions. If someone feels differently and takes the view nonetheless that conscience is involved, then that person does not wish to serve as a depersonalized instrument, indeed is not fit to do so, and is therefore not fit to be a registrar, notary, or postman.

3.4

The freedom of conscientious objection is not a legal area characterized by clear-cut solutions. Even similar situations differ in practice, for in one scenario an alternative can be found while in another case this may prove impossible. In a large registrar’s office, a registrar with qualms of conscience can easily be replaced; in a small office, the registrar will have to overcome such qualms or leave. In just the same way, a doctor in a large hospital (who can be replaced if need be) has more scope to refuse to perform an abortion, even if the pregnant woman’s life or health are at risk, while in a small hospital the doctor will either have to do the abortion or leave the job. The fluidity of this legal realm cannot be remedied. It goes hand in hand with the paradox14 generated by the rebellious, anarchic nature of the conscience: if the conscience serves as the final authority for social behavior, the legal order is undermined; if the legal order is taken as the final authority for social behavior, the conscience is threatened. This paradox cannot be resolved. It must be endured and ways found to mediate the conflicts it triggers. Protecting the freedom to object for conscientious reasons cannot be taken to its ultimate anarchic conclusion. But neither must guarantees protecting freedom of conscientious objection neglect the conscience’s characteristic rebellious quality. Such guarantees must protect the essence of conscience, but can do so only up to a certain point, the point when other people would be put in serious danger, the point where no 14

Podlech, Leben nach der Ordnung des Staates oder dem eigenen Gewissen, n. 5, 13ff.

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alternative is available, the point where the conscientious position lacks all plausibility. Where precisely these points lie will differ from situation to situation and even from one occasion to another. Still, the fact that the freedom to object for conscientious reasons is a privilege comes into play in each and every situation. For all other freedoms the burden of proof lies with the commonwealth, not the citizen; the citizen doesn’t have to argue and produce justifications when exercising these freedoms, but instead the commonwealth must put forward its arguments and justify why it is interfering, intruding, curtailing a particular freedom. When it comes to the freedom of conscientious objection, it is up to the citizen to present arguments and justifications in order to demonstrate why he or she should be allowed to refuse to do what everybody else is obliged to do.

4 Egalitarian Justice and Religious Exemptions Ce´cile Laborde

Liberal egalitarian theorists of religious freedom argue that there is nothing special about religion that would justify the idea that religiously burdened citizens have a pro tanto claim to exemption from certain laws.1 Some are skeptical about the legitimacy of religious exemptions altogether.2 Others would grant exemptions, but in the name of equal protection rather than special privilege.3 Two questions arise. The first concerns the metric of equality. What does it mean to give equal protection to religious citizens: what is religion analogous to, for the purposes of legal protection? I have shown elsewhere that existing attempts to identify a single analogy for religion are unsatisfactory;4 and I have defended a strategy of disaggregating religion. On this strategy, religion has an array of normatively relevant dimensions: as conception of the good, as conscientious activity, as expression of identity, as collective 1

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This chapter is an abridged version of chapter 6 of Ce´cile Laborde, Liberalism’s Religion (Cambridge, MA: Harvard University Press, 2017), 197–238. [Reprinted with permission.] Brian Barry, Culture and Equality (Cambridge: Polity, 2001); Sonu Bedi, “What Is So Special about Religion? The Dilemma of Religious Exemptions,” Journal of Political Philosophy 15, no. 2 (2007): 235–49; Ronald Dworkin, Religion without God (Cambridge, MA: Harvard University Press, 2013); Brian Leiter, Why Tolerate Religion? (Princeton, NJ: Princeton University Press, 2013). Christopher Eisgruber and Lawrence Sager, Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, 2007); Charles Taylor and Jocelyn Maclure, Secularism and Freedom of Conscience (Cambridge, MA: Harvard University Press, 2011); Micah Schwartzman, “What If Religion Is Not Special?,” University of Chicago Law Review 79 (Fall 2012): 1351–427. Ce´cile Laborde, “Equal Liberty, Non-Establishment and Religious Freedom,” Legal Theory (March 2014): 1–28; Ce´cile Laborde, “Protecting Religious Freedom in the Secular Age,” in Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood, and Peter G. Danchin, eds., Politics of Religious Freedom (Chicago: Chicago University Press, 2015), 269–79; Ce´cile Laborde, “Dworkin’s Religious Freedom without God,” Boston University Law Review 94, no. 4 (2014): 1255–71.

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purpose, as mode of association, as ideal of justice, and so forth. I suggested that exemption claims apply to practices that are expressive of individual ethical integrity. I construe ethical integrity broadly, to include not only claims of conscience but also weighty identity claims. These integrityprotecting claims (IPCs) are ethically and morally salient, and they provide the currency of equality in religious exemptions controversies. Some IPCs will be traditionally religious, and others nonreligious, and not all traditionally religious claims will be IPCs. So we have identified the sense in which religion is special, but not uniquely so.5 This, however, begs the second question, which is about the structure of justice and is the focus of this chapter. Why and when should an IPC justify an exemption for an individual who makes it? On an egalitarian theory of justice, the mere fact that an individual has an IPC does not entail that he or she should benefit from an exemption from the law. There are two main reasons for this. First, there is no presumption that just because an IPC is burdened by a law, that that burden is thereby unfair. Egalitarian theorists rightly reject liberty-based accounts of religious freedom, which posit a baseline of maximal freedom against which each law must be justified in relation to some compelling state interest. Egalitarian theorists argue that legal and political arrangements unavoidably limit the untrammeled pursuit of people’s life projects, because they provide a fair framework for the sharing of the burdens and benefits of common life.6 Furthermore, robust protection for IPCs is built into egalitarian fairness. To put it in Rawlsian terms, IPCs are key expressions of individuals’ moral freedom, such that core basic liberties – such as freedom of conscience, speech, and association – paradigmatically apply to them. A fair legal regime will protect IPCs in various ways. It will not directly repress some religious practice out of prejudice or animus, and it will not selectively accommodate some religious practice over others. To illustrate: the French and Belgian ban on Muslim veils, the City of Hialeah ban on Santerı´a animal sacrifice, and the preferred funding of Christian over Muslim and Jewish associations in many European countries are all incompatible with an egalitarian theory of religious freedom. Matters are different, however, when IPCs are burdened incidentally 5

6

Ce´cile Laborde, “Religion and the Law: The Disaggregation Approach,” Law and Philosophy, September 2015. http://link.springer.com/article/10.1007%2Fs10982-015–9236-y. Michael W. McConnell, “Accommodation of Religion,” Supreme Court Review 1985 (1985): 1–59; Michael W. McConnell, “The Problem of Singling Out Religion,” DePaul University Law Review 50, no. 1 (Fall 2000): 9–12; Douglas Laycock, “Religious Liberty as Liberty,” Journal of Contemporary Legal Issues 7 (1996): 313–56, at 313; Eisgruber and Sager, Religious Freedom, 202–03.

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by a legitimate general law. Consider a safety law making motorcycle helmets compulsory. It does burden Sikh motorcyclists who wear turbans, but it is not obvious that it is thereby unfair. Sikhs are not persecuted or discriminated against on grounds of their IPC. The law does not prevent them from wearing a Sikh turban; it simply prevents them from riding a motorcycle without a helmet.7 The law sets out a general health-and-safety requirement, and the fact that it (incidentally) burdens those with reasons not to comply with it does not raise issues of justice. The second skeptical thought about exemptions resides in the value of the rule of law. The notion is intrinsically connected to egalitarian ideals because it emerged in reaction to the hierarchical order where different social groups had different laws, and the rich and privileged could exempt themselves from the burdens of common life. From this point of view, exemptions begin to look not so much like fair accommodation as like unfair privilege. It is easy to see the intuitive appeal of the notion that if there is a law, it should be the same for all. Intuitions, however, can lead us astray. Regimes of exemptions, if they can be designed and administered transparently, are a feature of modern legal regimes and do not in themselves undermine the rule of law.8 This is particularly the case when the law is able to identify categories of citizens for whom differential treatment would not defeat the purpose of the legal regulation in question. Accommodation of citizens with disabilities, pregnancy and maternity workplace arrangements, special provisions for the elderly, and so forth fall under that category. On reflection, then, there must be something troubling about IPC exemptions that does not also apply to these less controversial exemptions. What is troubling about them, I think, is that they are connected to people’s life projects and conceptions of the good, and that the only reason for the exemption is that people object to the fact that the law frustrates their realization. A just state cannot guarantee the success of all (or any) life projects; it is only there to provide a fair framework for the possible pursuit of different and conflicting life plans. In Rawls’s terms, there should be a social division of responsibility between the state – which provides a fair framework of justice – and individuals, who have to take responsibility for adjusting their life projects to the common framework.9 Talk of responsibility, I hasten to add, 7 8

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Barry, Culture and Equality, 44–48. Jeremy Waldron, “One Law for All? The Logic of Cultural Accommodations,” Washington and Lee Law Review 59, no. 1 (2002): 3–34; Simon Caney, “Equal Treatment, Exceptions, and Cultural Diversity,” in P. Kelly, ed., Multiculturalism Reconsidered: Culture and Equality and Its Critics (Oxford: Blackwell, 2002), 81–101. Alan Patten, Equal Recognition (Princeton, NJ: Princeton University Press, 2016), 139–40.

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does not entail the problematic view that people should be compensated for circumstances not chosen and for bad luck, but that they should take personal responsibility for the choices they make. Such a “luck egalitarian” framework is wholly inappropriate to the understanding of the ethical status of IPCs in a theory of justice.10 IPCs are not worthy of respect because they are somehow chosen – here the critics of the liberal language of choice and religious freedom have a point. Rather, they are worthy of respect because they are connected to people’s integrity – to the projects, beliefs, and commitments that people happen to identify with. It makes a moral difference that people (by and large) positively endorse and embrace IPCs, whereas they (by and large) prefer not to suffer from a disability. One may object here that people may also embrace, and identify with, their state of pregnancy, age, or disability. This is correct, but it misses the point: there are separate reasons for accommodating such states of being or cycles of life. IPC exemptions, by contrast, arise principally out of a conflict between the law and a given belief or project. An incidental burden on an IPC should not be construed as a disadvantage worthy of compensation but, rather, as one of the costs of (well-ordered) freedom. To use Peter Jones’s pithy expression, people must, generally, “bear the consequences of their beliefs.”11 But – as Jones himself eloquently argued – people should take responsibility for their beliefs only if background circumstances are fair. A liberal state should not equalize people’s success at maintaining integrity, but it should provide a fair framework for them to pursue their IPCs. So we need to identify more precisely what counts as an unfair background. Let me set out two distinct cases of background unfairness that bear on justice toward IPCs. Disproportionate Burden. Pursuit of some state regulatory interest makes it impossible for some citizens to fulfill an obligatory requirement of their faith or culture, yet makes it possible to relieve them of the burden without excessive cost. Disproportionate burden scenarios invite a strict balancing test, which weighs up the interests pursued by the law, the severity of the IPC burden, and the costs incurred in alleviating it. To illustrate: it would be unfair to compel Orthodox Jews to endure an invasive autopsy in case of non-suspicious death if they consider this

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Susan Mendus, “Choice, Chance and Multiculturalism,” in Multiculturalism Reconsidered, 31–44; Jonathan Quong, “Cultural Exemptions, Expensive Tastes, and Equal Opportunities,” Journal of Applied Philosophy 23 (2006): 53–71. For the view that taking seriously people’s beliefs implies asking them to take (at least some) responsibility for them, see Peter Jones, “Bearing the Consequences of Belief,” Journal of Political Philosophy 2, no. 1 (1994): 24–43.

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a desecration of the body.12 There seems to be a disproportion between the aims pursued by the law and the burden it inflicts on the claimants. Majority Bias. Minority citizens are unable to combine the pursuit of a core societal opportunity with an IPC, whereas the equivalent opportunity set is institutionally available to the majority. Majority bias scenarios invite a contextual evaluation test, which compares burdens between similarly situated groups in relation to core opportunities whose exercise is facilitated by a background of institutional majority precedence. To illustrate: it would be unfair to deny Muslims some time off on Fridays, as Christians can both go to church on Sundays and hold a regular job. In both cases, exemptions are permitted or even required by justice, when denying them would gravely violate equal liberty. Let me say a bit more about the rationale, scope, and limits of both types of exemption.13 4.1 DISPROPORTIONATE BURDEN

In this section, I argue that IPCs should be protected against disproportionate burden. One promising line of justification for this claim is found in Rawls’s argument for the priority of freedom of conscience. Given what they know about the weight and ethical salience of obligations of conscience, Rawls argued, parties in the Original Position would not want to gamble with 12

13

This is an example provided by William Galston and discussed in Kent Greenawalt, Religion and the Constitution: Vol. 2: Establishment and Fairness (Princeton, NJ: Princeton University Press, 2008). Alternative typologies of theories of religious exemptions are Jonathan Seglow, “Theories of Religious Exemptions,” in G. Calder and E. Ceva, eds., Diversity in Europe: Dilemmas of Differential Treatment in Theory and Practice (London: Routledge, 2010), 52–64; Andrew Shorten, “Cultural Exemptions, Equality and Basic Interests,” Ethnicities 10 (2010): 100–26, at 100; Stuart White, “Religious Exemptions: An Egalitarian Demand?,” Law and Ethics of Human Rights 6, no. 1 (2012): 97–118; Alan Patten, “The Normative Logic of Religious Liberty,” Journal of Political Philosophy 25, no. 2 (2017): 129–54; Peter Jones, “Religious Accommodation and Distributive Justice,” in Aure´lia Bardon and Ce´cile Laborde, eds., Religion in Liberal Political Philosophy (Oxford: Oxford University Press, 2017), 163–76. I should emphasize here that I am only concerned with exemptions granted on an individual, one-to-one basis. In practice, of course, many exemptions are granted categorically – to groups of citizens (Muslims, Native Americans, Sikhs, etc.). But, as Peter Jones has emphasized, the rights underpinning individual exemptions can be group-differentiated without being group rights in the strict sense. Exemptions from workplace uniform regulations are granted to groups such as Jews or Sikhs for administrative convenience, but they are not rights enjoyed by groups as groups: they are enjoyed by individuals who are (presumptively) members of these groups. Peter Jones, “Cultures, Group Rights, and Group-Differentiated Rights,” in M. Dimova-Cookson and P. Stirk, eds., Multiculturalism and Moral Conflict (London: Routledge, 2010), 38–57, at 40.

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them, and, to avoid suffering “strains of commitment,” they would opt for laws that guarantee equal freedom of conscience. The argument can be generalized to apply to exemptions. Given what we know about IPCs, we should not want laws simply to have a sound public justification, nor to guarantee formally equal treatment: we should want laws to avoid disproportionately burdening certain kinds of commitments.14 But what is a disproportionate burden? Four criteria are relevant to the overall balance of considerations: 1. 2. 3. 4.

How direct is the burden? How severe is the burden? How proportionate is it to the aim pursued by the law? Can it be alleviated without excessive cost shifting?

Let me explain these four criteria in turn. 4.1.1 Directness The directness of a burden is measured in relation to the costs incurred by individuals in avoiding subjection to the law or regulation in the first place. Typically, laws of universal application – for example, laws mandating compulsory military service – are directly burdensome because they apply to all citizens in a given age (and often gender) group. Directly burdensome regulations are also paradigmatically found in closed, authoritarian institutions such as prisons or boarding schools, where inmates and students are mandatorily subjected to a system of compulsory rules. Regulations concerning specific professions and activities, by contrast, are less direct because – on principle – people enjoy the market freedoms that allow them to avoid being subject to them. For example, a law compelling nursing homes to provide 24/7 care is only indirectly burdensome because care workers who observe a regular day of rest can opt to work in environments where their commitments can be more easily accommodated. In such cases, something like the “specific situation rule,” articulated by the European Court of Human Rights, applies.15

14 15

Quong, “Cultural Exemptions,” 60. On a strict construal, a person waives her Article 9(1) right to manifest her religion or belief if she voluntarily enters an institution that restricts that manifestation in some way, typically through paid employment. One familiar objection is that in the case of gender or race discrimination, it is never acceptable simply to say that claimants must go and find another job. This is correct. But it merely suggests that, in exemption cases, religion should not be simply analogized with race or gender. People must take some responsibility for their beliefs and commitments, and not all burdensome regulation is unfair qua discriminatory.

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The higher the costs of not taking up a particular social opportunity or position are for an individual, the more the burden is a direct one, and the more scope there is for accommodation. Such costs can be measured objectively, in relation to alternative social opportunity sets available to individuals. To illustrate, consider again a Sikh turban example, but this time in relation to a law compelling the wearing of safety helmets for all workers on construction sites. Assume – as is the case in the United Kingdom – that, in many areas, Sikh men are employed in the construction industry and that there are high costs for them in retraining or relocating. In cases such as these, an exemption is permissible. The relevant difference between the motorcycling and the construction site health-and-safety regulations is that the latter, but not the former, is a direct burden on a Sikh IPC. The costs of losing one’s job in the construction industry (when this is the chief employment opportunity available) is higher than the cost of having to forgo riding a motorcycle (which is not a vital human interest or core societal opportunity).16 4.1.2 Severity While the directness of the burden is law-dependent, the severity of the burden is IPC-dependent. IPCs are particularly ethically salient when they are experienced as obligatory. They are commitments that the individual feels must be honored if he or she is to act with integrity and be faithful to conscientious, theological, or communal attachments. On the approach that I defend, IPCs are connected to individual subjective experience: they do not need to be validated by any objective religious authority or text. Such subjective burdens are particularly severe when they are experienced as obligations. Classically, if one’s conscience (religious or secular) dictates that one must not kill other human beings, then this works as a categorical imperative whose moral force cannot be overridden by any contextual or consequentialist consideration. But many religious rituals, as well as cultural practices, while not strictly speaking conscientious, can still be experienced as having the force of obligations by those who engage in them. If they are central

16

Brian Barry, despite his mostly formal account of equal opportunity, also distinguishes between the two Sikh cases. See Barry, Culture and Equality, 49–50. For different theories of costs and opportunities, see Bikhu Parekh, “Barry and the Dangers of Liberalism,” and David Miller, “Liberalism, Equal Opportunities and Cultural Commitments,” both in Multiculturalism Reconsidered (pp. 133–50 and 45–61, respectively); Peter Jones, “Liberty, Equality and Accommodation,” in T. Modood and V. Uberoji, eds., Multiculturalism Rethought: Interpretations, Dilemmas and New Directions (Edinburgh: Edinburgh University Press, 2015), 126–56.

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to an individual’s life, such that a sense of self and integrity is bound up with them, they can have comparable weight as categorical obligations.17 However, not all IPCs have this obligatory, nonnegotiable force. For example, some religious practices are relatively flexible: while important to religious life, no particular exercise of them need be experienced as obligatory. One may value going to pray in a mosque, synagogue, or church without feeling it is mandatory to do so. One may feel religiously motivated, though not obligated, to wear a cultural or religious symbol. And so forth. For many devout citizens, the religious experience is fundamentally about exhibiting the virtues of the good believer, living in community with others, and shaping one’s daily life in accordance with the rituals of the faith. These rituals are meaning-giving and connected to believers’ sense of their ethical integrity. Yet they are not, strictly speaking, obligatory, and single burdens on them (say, by workplace regulations) need not be severe. The good religious life is a life of constant, difficult, ritual affirmation of the faith against the corrupting influences of the secular world. It is not always – not often – one in which one single obligation is so stringent as to encumber the conscience of the believer in an unbearable fashion. Even if religious practices are not rooted in obligatory duties, they can still express the ethically salient value of integrity. Individuals act with integrity when they are faithful to relationships of community – be they cultural, linguistic, or religious – that are of central importance to their lives. And they are sometimes unfairly deprived of such opportunities, for example, in cases where the state unequally accommodates some ways of life over others. Such a worry is central to the literature on multicultural equality.18 There are cases when a minority religious practice should be exempted, not because it is a weighty obligation, but because it is unfairly accommodated in relation to some comparable majority practice that is itself given privileged status by the state. In my view, this is quite a distinct rationale for exemptions, which I call “majority bias” and set out and elucidate. In cases that concern us here (disproportionate burden), by contrast, the (non-comparative) severity of the burden is a crucial criterion to factor into the proportionality test.

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On the broad notion of cultural obligation, see Bikhu Parekh, Rethinking Multiculturalism (Cambridge, MA: Harvard University Press, 2000), 272; James Tully, Strange Multiplicity (Cambridge: Cambridge University Press, 1995), 172. Charles Taylor, “The Politics of Recognition,” in A. Gutmann, ed., Multiculturalism: Examining the Politics of Recognition (Princeton, NJ: Princeton University Press, 1994); Will Kymlicka, Multicultural Citizenship (Oxford: Clarendon, 1995); Joseph Carens, Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness (Oxford: Oxford University Press, 2000); Patten, Equal Recognition.

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4.1.3 Aim of the Law The third criterion draws attention to the importance and centrality of a particular law in promoting egalitarian justice. The more tightly a law promotes a goal of egalitarian justice, and the more it requires universal and uniform compliance for its effectiveness, the less it will tolerate exemptions. Consider three cases. 1. A law is demanded by justice and requires universal and uniform compliance. In such cases, no exemption is permissible, even if burdens are direct and severe. Consider, for example, a law forcing parents to provide their children with appropriate medical care, including lifesaving blood transfusions if necessary. Such a law directly and severely burdens Jehovah’s Witnesses, but it should be enforced even against them.19 Similar reasoning applies regarding the array of laws against rape, abuse, and exploitation, as well as laws setting out universal civic obligations such as the payment of taxes and compulsory education. 2. A law is demanded by justice, but its objectives can be achieved in different ways. Consider a law guaranteeing the right of all women to have adequate access to abortion and contraception. The aim of the law is not necessarily defeated if a small number of practitioners refuse on conscientious grounds to offer the service, as long as the service is adequately provided, on a universal basis, by someone. Such reasoning has served to justify the right of Catholic surgeons, in many countries, not to be forced into performing abortions. What matters is that the rights of the individuals whom the law is designed to protect are actually protected, even if exemptions are granted. An interesting question here is whether laws demanded by justice only protect rights, narrowly construed, or whether they also expressively affirm the equal civic status of persons. In that case, a publicly endorsed exemption can constitute something like an expressive or dignitarian harm. Consider, for example, a recent UK law making marriage available to same-sex couples. If a civil registrar refuses, on conscientious grounds, to perform such marriages, a person might be seen – as a civil servant – to be conveying the message that LGBTQ citizens are second-class citizens who cannot avail themselves of the rule of law.20 19

20

Ian McEwan’s novel The Children Act (London: Vintage, 2014) sensitively explores the relevant ethical dilemmas. The key question he asks is whether a seventeen-year-old Jehovah’s Witness should be treated by the law as a child and have a blood transfusion forced onto him. Ladele v. London Borough of Islington (2009).

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3. A law is not demanded (but is permitted) by justice. For example, it protects welfarist or regulatory interests. It is in relation to such laws and regulations that the case for exemptions is strongest. Consider regulations about dress and uniform in workplaces. There are good reasons to have such regulations (corporate visibility, esprit de corps, professional reputation), and in addition to their intrinsic benefits, they are presumptively not incompatible with basic rights of justice (such as freedom, privacy, or freedom of expression). But nor do they directly promote any basic right of justice. So if a given dress or uniform regulation clashes with an individual’s IPC, there is scope for accommodation – the specific situation rule should not be applied harshly.21 Another example of eligible regulation is that requiring autopsies. Assuming that the point of the regulation – the swift identification of the causes of death – can be met through less invasive procedures such as body scans (at least in the cases of non-suspicious deaths), it makes sense to allow Orthodox Jews to require the latter. This is because Jews regard invasive autopsies, defined by one Jewish leader as “cutting open a body and removing internal organs,” as a desecration of the body – a severe and direct burden on a strict religious obligation.22 4.1.4 Cost Shifting This last dimension is crucial to liberal egalitarian theories, for which the benefits and burdens of social cooperation must be shared fairly. Exemptions are sometimes said to be inherently unjust simply because they involve cost shifting.23 But this cannot be right. First, the permissibility of cost shifting must be balanced against the other dimensions of severity, directness, and the interests pursued by the law. Second, many extra costs that are generated by exemptions are negligible or reasonable. This is the case, notably, of dress and uniform exemptions. Likewise, allowing coroners to require MRI scans instead of autopsies for Orthodox Jews does not involve excessive cost shifting. Somewhat more complicated are exemptions from health-and-safety measures: allowing Sikhs working on construction sites to wear turbans shifts the costs of suffering head injuries onto them, but also onto collective health care 21 22

23

Eweida v. United Kingdom (2013). See www.independent.co.uk/news/uk/home-news/coroners-must-send-bodies-for-scans-ratherthan-autopsies-if-religion-demands-they-stay-intact-high-court-rules-10422561.html. Leiter, Why Tolerate Religion? For further discussion, see Francois Boucher and Ce´cile Laborde, “Why Tolerate Conscience?,” Criminal Law and Philosophy (October 2014): 1–22.

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systems, so these costs must be factored into the proportionality test. Even more tricky are workplace exemptions concerning timetable and work schedules: they can be costly for employers and co-employees, and it is right that the jurisprudence on reasonable accommodation, in Canada and Europe for example, has consistently suggested that accommodations are not reasonable if they entail “undue hardship” for the organization. I suggest, therefore, that exemptions are compatible with justice if the balance of these four reasons renders the burden disproportionate. One implication of this balancing exercise is that severe burdens are not automatically alleviated, as in the case of the Jehovah’s Witnesses’ rejection of blood transfusions for their children. Conversely, burdens that are not that severe can sometimes be alleviated: in the case of workplace uniform regulations, where no principle of justice is at stake and costs are low, claimants do not need to show that wearing religious signs or dress is a strict obligation for them. In between these two cases, however, the severity of the burden will make a difference in the overall weighing process. Now, is disproportionate burden an egalitarian principle? In a broad sense, it is. All individuals should have a fair opportunity not to have their obligatory IPCs disproportionately burdened. The principle is an implication of the liberal commitment to equal freedom of religion and conscience.24 But, in a narrower sense, disproportionate burden is not a comparative principle. To grant an exemption to X, we do not need to identify a Y that is already advantaged. This is one of the limits of Chris Eisgruber and Larry Sager’s influential egalitarian theory of exemptions.25 They argue that religious exemptions should be granted out of a principle of equality, such that religious needs and interests should not be discriminated against in relation to already protected or otherwise advantaged nonreligious interests. They use the example of two Muslim police officers, Faruq Abdul-Aziz and Shakour Mustafa, who challenged the Newark Police Department’s requirement that officers be clean-shaven, on the ground that their faith demanded that they wear beards.26 Given that the Newark Police Department already exempted officers with skin disorders, such as folliculitis, that made shaving painful or promoted infection, its refusal to accommodate the Muslims’ request constitutes a breach of equal regard. On my approach, by contrast, it is enough to say that the Muslim police officers have suffered a disproportionate burden, regardless of whether

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Martha Nussbaum, Liberty of Conscience (New York: Basic Books, 2008), 19–20, 168–70. Eisgruber and Sager, Religious Freedom. For a more developed analysis, see chapter 2 of Laborde, Liberalism’s Religion. Fraternal Order of Police Newark Lodge v. City of Newark (1999).

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other officers are accommodated on grounds of disability. This prevents us from having to draw unsatisfactory analogies between religious commitments and disabilities (which are not IPCs). It also avoids us having to search for hypothetical, presumptively advantaged nonreligious comparator groups, in relation to which religious groups are discriminated against. In the next section, I turn to the second principle and identify the cases of unfair background where equality concerns do come to the fore. They are cases of majority bias – where the relevant majority is the historically dominant religious majority. 4.2 MAJORITY BIAS

Exemptions on grounds of majority bias are justified because laws and regulations are enacted against a baseline of precedence in favor of historically dominant religion. An egalitarian demand is generated because, in many societies, the politico-legal baseline is itself one that has accommodations for the religious majority built into it.27 In such cases, Eisgruber and Sager’s demonstration is forceful: the point of many religious exemptions is indeed to rectify the status of religious minorities in societies historically shaped and dominated by the majority religion (for example, Protestant Christianity in the United States). Consider their interpretation of the landmark Supreme Court decision in the Sherbert v. Verner case (1963). Adell Sherbert was a member of the Seventh-Day Adventist Church who was denied unemployment compensation on the ground that no “good cause” justified her unwillingness to comply with her employer’s demand that she, like other employees, accept Saturday work. Eisgruber and Sager argue that denying compensation would entail unjustly discriminating against Sherbert. This is because, unlike similarly situated workers, she faces an unfair dilemma: either complying with the job’s requirements or obeying the demands of her faith (and losing her claim to compensation). The state of South Carolina had strict Sunday closing laws, which meant that mainstream Christians were not forced to choose between exercising their religious rights and performing the demands of their jobs. So Sherbert was discriminated against when her claim for compensation was denied.28 Justice, here, is a demand of reciprocity: it ensures that minorities do not suffer undue disadvantage in relation to the majority.29

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Nussbaum, Liberty of Conscience; Ce´cile Laborde, Critical Republicanism (Oxford: Oxford University Press, 2008), 82–83. Eisgruber and Sager, Religious Freedom, 14–15. See also White, “Religious Exemptions,” 97–118; Quong, “Cultural Exemptions.”

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The idea that exemptions can be supported by specifically egalitarian considerations is, of course, a key starting point of the liberal political philosophy of multiculturalism.30 But in what sense, exactly, does multicultural diversity generate unjust inequalities? After all, in culturally and religiously diverse societies, individuals will not be equally successful in living by the demands of their religion or culture, nor should they expect that their religion or culture be kept alive, supported, and recognized by the state. Majorities will naturally be more successful than minorities in the cultural marketplace. Following Alan Patten, I reject both the view that the erosion of minority societal cultures is bad per se – regardless of the justice of institutions – and the view that states have an all-embracing purpose of recognition of ethical and cultural identities. Patten rightly locates unfair background in the “formatting” of public institutions: the endowing of those institutions with particular characteristics in ways that unequally disadvantage certain citizens on the basis of their beliefs and identities. Patten focuses on holidays, language, jurisdictions, and boundaries.31 When cultural formatting unfairly limits the material rights and opportunities of minority citizens, it demands rectifying accommodations. As Jonathan Quong has suggested, minority citizens should not be unduly disadvantaged in their access to a specific opportunity set – the possibility of combining a core societal opportunity with the pursuit of their cultural and religious commitments (IPCs in my preferred terminology) – because of the cultural formatting of public institutions.32 Two points need to be further clarified in order to elucidate the specific logic of majority bias: the nature of the opportunities and the content of the IPC. First, what kind of inequality of opportunity should we be concerned about? Core societal opportunities paradigmatically relate to work and education. Consider the UK case of Ahmad v. Inner London Education Authority (1976). By being prevented from attending a mosque on Friday afternoons, Ahmad was being denied the opportunity to be a teacher in a state school as a Muslim – a significant infringement of equality in societies where members of the majority can both join others in prayer and be full participants in the workplace, especially in such crucial positions as state school teachers. Accommodating his Friday schedule is a way of equalizing his opportunity set in relation to the advantaged Christian majority.33 30 31 33

Kymlicka, Multicultural Citizenship, 114, 115 (section on “the equality argument”). Patten, Equal Recognition. 32 Quong, “Cultural Exemptions.” On the Ahmad case, see Jones, “Bearing the Consequences of Belief,” 24–43.

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In majority bias scenarios, then, the reasoning is straightforwardly egalitarian. Majority bias does not give us reason to accommodate; it gives us reason only to accommodate, or not accommodate, in even-handed fashion. So it is dependent on a prior account of whether the existing majority accommodation is itself permissible. To rectify majority bias, equality can take two forms: upward and downward. If the majority privilege is not defensible in the first place, justice requires not that the privilege be extended to minorities but rather that it be abolished altogether. This, I have argued elsewhere, is the main flaw of proposals (in a UK context) in favor of “multi-faith establishment” – the extension to religious minorities of privileges historically granted to the Christian majority (such as the right of bishops to sit in the House of Lords). In that case, one first needs to ascertain whether religious representation in the House of Lords is compatible with democratic justice. If the majority privilege is not defensible, the right thing to do is to “equalize downward,” not to “equalize upward.”34 Assume, however, that the majority privilege is not unjust, either because it is itself required by justice (e.g., it protects an important IPC) or because it serves ends that are not incompatible with the pursuit of justice. This is the case, for example, of regulations about the benefits of having a shared weekly day of rest: in post-Christian societies, Sunday. There are good reasons for having a shared day of rest, and, while protecting an important Christian IPC, the choice of Sunday does not infringe on the liberty of nonreligious citizens.35 However, because it favors (mainstream) Christians, it unfairly disadvantages members of religious minorities. So justice demands that, when possible, a minority member’s request to absent themselves from work to attend a mosque, synagogue, or temple should be the object of reasonable accommodations. In such cases, it is acceptable to ask the employer (or society at large if the costs amount to undue hardship for the employer) to pick up (some of) the costs of belief in order roughly to equalize the opportunity sets of majority and minorities. Majority bias scenarios, then, invite comparative contextual assessment of how minorities fare in their access to core societal

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Laborde, Critical Republicanism, chapter 4. For various perspectives, see Tariq Modood, “Establishment, Multiculturalism and British Citizenship,” The Political Quarterly 65, no. 1 (1994): 53–73; Sune Laegaard. “Unequal Recognition, Misrecognition and Injustice: The Case of Religious Minorities in Denmark,” Ethnicities 12, no. 2 (2012): 197–214. For an argument on the need for the temporal coordination of leisure time in society, see Julie L. Rose, “Freedom of Association and the Temporal Coordination Problem,” Journal of Political Philosophy 24, no. 3 (2016): 261–76. For the view that official recognition of religion does not necessarily infringe on personal liberty, see chapter 4 of Laborde, Liberalism’s Religion.

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opportunities in a given society. The costs incurred in compensating them for majority bias are costs that must be borne, in justice, by society at large. Second, which IPCs should be accommodated? Majority bias scenarios allow us to capture discrete forms of comparative inequality, which relate to the broadly cultural dimensions of religion. They pick out broader dimensions of the religious experience – the dimensions where (ordinary descriptions of) religion and culture meet. Religion appears here as a way of life, an embodied habitus, a set of practices, none of them essential or central but that, put together, create a thick web of ethical and social meanings. Such IPCs are salient, not simply because they are important to one’s moral, ethical, or cultural identity, but also because they have intersubjective recognition salience: they are imbricated in socially specific patterns of institutional and social recognition. Under majority bias, it does not matter whether an IPC is an obligation – a duty of conscience, a compulsory tenet of a faith, or a central practice. Generally speaking, the burden does not need to be as severe as in the disproportionate burden scenario. This is because what matters is that minorities and majorities find that their roughly comparable IPCs are burdened unequally. It is irrelevant whether attendance in a church or mosque or synagogue is experienced as obligatory, or whether the ingestion of peyote or the consumption of communion wine is central to devout practice. What matters is that similar IPCs are not accommodated on the same basis in a given society because of the majoritarian formatting of public institutions. On this view, Muslims do not need to show that going to the mosque on Fridays is a religious obligation to have a valid claim for reasonable accommodation. (As it happens, it is not one of the five compulsory pillars of Islam, while prayer [salat] five times a day is.) Nor do individual claimants have to show that they themselves experience it as an obligation (although, on my subjective theory, it is of course open to them to do so). What matters is that, in a society where joining together in weekly prayer has acquired social salience and institutional recognition, members of minorities can pursue IPCs that are comparable to the majority’s – when the latter is still advantaged by existing institutions. Now this raises difficult questions. The Ahmad example is relatively straightforward. Here, the relevant IPC is attend a place of prayer once a week. Insofar as the Christian, Muslim, and Jewish religions include weekly attendance of a place of prayer as one of their important (if not necessarily compulsory) rituals, it is easy to equalize majority and minority religion. This simplified model assumes, however, that different religions are isomorphic: that they have the same structure of demands and rituals. But what about the following IPCs: pray five times a day, cremate bodies on an open pyre, or bleed

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animals to death before meat consumption? Such demands are difficult to accommodate on the majority bias account because there is no obvious majority equivalent, and therefore it is not clear what treating majorities and minorities equally might entail. They should instead be considered under disproportionate burden and subjected to the rather more stringent test of success that applies there. A demand to take five breaks from work every day, for example, would likely impose unreasonable costs on coworkers – and so should be rejected, even if it is a weighty obligation. This simply means that all religious believers, out of consideration for the fair pursuit of other citizens’ projects and opportunities, must take some responsibility for the pursuit of their integrity-protecting practices. From the perspective of Muslims, the fact that majority bias egalitarian reasoning accommodates going to the mosque every week but not praying five times a day might seem arbitrary, insofar as both practices are key IPCs within Islam (and, as we have seen, only praying is standardly considered compulsory). It is this thought that motivates the oft-voiced criticism that Western law reshapes non-Christian religion according to its own (Christian) standards: it homogenizes religious practice into a set of clearly identifiable obligations and duties based on the Christian model. There is undoubtedly some force to this criticism. But the majority bias approach helps mitigate it. The point of exemptions, on this approach, is not to equalize opportunities to practice one’s religion regardless of the demands of that religion. It is, rather, to equalize opportunities to practice equivalent IPC opportunities as the already privileged majority, where the criterion of equivalence is a rough, culturally mediated, approximation of already accommodated practices. What is at stake here is the equal status of minorities in societies that already accommodate the majority religion. Interestingly, many exemptions for minority members can be justified under either the disproportionate burden or the majority bias principle. Consider again the Ahmad case. We could say that Ahmad was unfairly treated against a majoritarian background where similarly situated workers do not have to choose between complying with their job’s requirements and attending a place of prayer on their preferred day. Or we could say that dismissal from a teaching position is a disproportionate burden on a weighty obligation. The fact that some religious exemptions qualify under both scenarios should not come as a surprise. It denotes the multidimensionality of religious claims and practices: religion is both a historical mode of minority domination (as culture) and a particularly stringent set of moral, ethical, or cultural obligations. Thus going to the mosque can be interpreted either as a cultural minority practice isomorphic to an already accommodated majority

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practice (under majority bias) or an especially stringent demand of the Islamic faith (under disproportionate burden). Minority religious IPCs – for example, the wearing of religious dress and symbols – will often qualify for exemptions under both approaches. But what about majority religious IPCs and nonreligious IPCs, such as secular obligations of conscience? For their holders, the burden of proof is higher because they rarely qualify under majority bias, and must instead show a disproportionate burden. To see this, we need to say more about what counts as an unfair background. Consider a nonreligious person who objects to the religious bias of some rules and regulations: for example, one cannot leave work on Friday to attend a trade union meeting (whereas the Muslim can go to the mosque). Or consider a Christian who claims she is disadvantaged by the secular background of rules and regulations: for example, she cannot leave work on Holy Thursday (an important Catholic day), because the secular nature of the calendar does not recognize all Christian religious festivals. Do either have an exemption claim under the majority bias approach? I think not, because neither background is unfair in the way that is picked out by the majority bias strategy. The moral force of demands for accommodation of religious minorities is rooted in recognition of the pervasive role played by the majority religion in shaping seemingly neutral institutions, and in the deleterious impact of this majoritarian baseline for the current equal standing of religious minorities. The nonreligious person has no claim against residual religious privilege because such privilege is purely residual: whatever claim of equalization it generates, it does so out of compensatory recognition of the unequal historical standing of minority groups in particular societies. In a society where there is no official weekly day of rest, neither Christians, nor Muslims, nor trade unionists have a pro tanto right to leave work on grounds of fairness: whatever rights Muslims currently acquire are grounded in claims of reciprocity, rooted in an acknowledgment of the privileges historically enjoyed by members of the majority religion. Muslims and Jews can complain of indirect discrimination on grounds of their minority status. Under majority bias, they are owed redress not because the law is secular but because the law advantages Christians – that is, is not secular enough.36 So what about the Catholic who seeks a Holy Thursday exemption? She has no pro tanto claim against nonreligious rules and regulations because there is nothing unfair, in and by itself, in rules and regulations being nonreligious. This, however, is not the end of the matter. 36

See Laborde, Critical Republicanism, especially chapter 4.

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Both the nonreligious and the majority-religion citizen can press a claim under the disproportionate burden approach. But here, I have suggested, the test is more stringent. Not only do they have to show that the burden is direct and disproportionate to the aim of the law but they must also meet some criterion of severity and show that alleviating the burden would not shift excessive costs onto others.

5 Is There a Right to Conscientious Objection? Lorenzo Zucca

5.1 INTRODUCTION

Claims of conscience are becoming more and more widespread. Those who raise them believe they have a right to be exempted from ordinary laws. Take for example same-sex marriage: the law of many Western countries permits it, but some individuals object to it, and would like to be exempted from their legal obligation of equal treatment in their official or private capacity.1 Exemptions from ordinary law are granted on certain occasions, but the question here is wider: is there a right to conscientious objection? To anticipate, the short answer is no. The longer answer is articulated in this chapter. To begin with, we must stress the importance of conscience in our lives. We all want to live according to our deepest convictions, whether religious or nonreligious. We certainly do not welcome the state interfering with our beliefs. We also want to shape our actions in conformity with those beliefs. But when we move from beliefs to action, we should be able to accept that our actions can interfere with the life of others, and to this extent the law is justified in setting legal boundaries between individuals. Within the boundaries set by the law, an individual has a special right against government when one’s action is protected against any intrusion of the state. An individual’s right corresponds to the state’s duty to refrain from interfering unless the state has a full-fledged justification. Freedom of speech is a special right; it cannot be interfered with unless the state can bring evidence of a clear and present danger. Freedom of religion is also treated as a special right by European and North American courts. A special right should be distinguished from a general right.2 A general right has a lower threshold of justification. We are free to 1 2

See, for example, Eweida and others v. United Kingdom [2013] ECHR 37. Ronald Dworkin, Religion without God (Cambridge, MA: Harvard University Press, 2013).

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behave according to our own beliefs, but the state can restrict that behavior when it is in the public interest to do so. Freedom of conscience can be conceived as a general right that permits everyone to act according to their own convictions unless a conflicting public interest is at stake. The distinction between special and general rights is useful to understand conscientious objection. To object to legal obligations on grounds of conscience with the intent of being exempted from a law is not a special right in the sense that the state does not have to provide a full and compelling justification for why one has to comply with any given law. It is enough for a state to point to a reason that supports the legislation; the fact that that reason is not compatible with one’s own individual conscience is not sufficient to invalidate the claim of the law. Conscientious objection may at times qualify as a general right: we have a right to behave compatibly with our conscience, and sometimes the state will accept that as a reason to create an exemption, as is the case for military conscientious objection. It is important to note, however, that the state could revoke that right at any point if there is a sufficient reason. Technically, conscientious objection to military draft is a waivable privilege rather than a fundamental legal right. A major problem has to be acknowledged here. Individual conscience is subjective: it refers to deeply held beliefs at the core of one’s own personal identity. People’s beliefs are necessarily plural and discordant: They ground potentially conflicting courses of action. Insofar as actions are self-regarding, individuals are generally protected from interference by a general right to freedom of conscience, which still needs to be carefully distinguished from conscientious objection. But when courses of action based on deeply held beliefs run against other people’s courses of action or the law’s general policies, then we exit the realm of a general right to freedom of conscience, where the law is not welcome. There is no freedom to act against the law, so we enter the realm of conscientious objection, while we exit that of freedom of conscience; but to be exempted from the law requires a very stringent reason, and most of the time there will not be a good reason enough to justify an exemption from ordinary law. A further problem is that conscience is neither purely inward looking, nor purely outward looking. It is not a straightforward freedom of belief or a limited freedom of action. Conscience is the bridge between belief and action. It so happens that some of our beliefs are incompatible with the actions required by the law; to put it even more bluntly, some of our actions are incompatible with the collective conscience expressed by the law. In order to clarify the idea of conscience and its relation with the law, I devote Section 5.2 to a genealogical analysis of the link between law and conscience. Section 5.3

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deals with the conflict between individual and collective conscience. To grasp how fundamental this conflict is for any liberal democracy will help us to have a better understanding of the scope of the freedom of conscience on one hand, and of conscientious objection on the other. Finally, and given that the state still has to manage a residual conflict between the law and conscientious claims, I offer some suggestions on how to accommodate conscientious objection without recognizing it as a right. 5.2 LAW AND CONSCIENCE

The relation between law and conscience has not always been one of conflict. Conscience can play various roles in supporting or undermining legal, moral, and political authorities. In this section, I sketch the evolution of the relation between conscience and law in four stages, from its origins to its modern status. To anticipate, conscience and law have common secular roots. Christianity hijacked the term for its own purposes, either to assert the authority of the Church as the source of ultimate truth guiding everyone’s conscience or as a denial of Church authority and in favor of individual moral convictions.3 The clash between Protestant and Catholic conscience led to a lengthy conflict, which was resolved with an agreement to disagree on matters of conscience. In Protestant countries, the moral authority of individual conscience remained very strong, while in Catholic countries, it has always been subordinated to the authority of the magisterium of the pope. In both Catholic and Protestant countries, however, the rise of secular authorities as guarantors of social peace made it possible for secular law to become the expression of a collective conscience. In what follows, I examine the emergence of the conflict between individual conscience and collective conscience in four steps. The notion of conscience first appeared in Roman law:4 its origin was secular and legal. In ancient Rome, it was used as a prominent evidentiary tool that helped to incriminate a person. In Cicero’s Roman handbook of legal and political rhetoric, Rhetorica ad Herennium, signs of guilty conscience help the prosecutor to establish whether the accused is to be condemned. For Subsequent Behaviour we investigate the signs which usually attend guilt or innocence. The prosecutor will, if possible, say that his adversary, when 3 4

Joseph Ratzinger, On Conscience (San Francisco, CA: Ignatius Press, 2007). Cicero, Rhetorica ad Herennium, ed. Harry Capaln (Cambridge, MA: Harvard University Press, 1954), 73.

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come upon, blushed, paled, faltered, spoke uncertainly, collapsed, or made some offer – signs of a guilty conscience.5

Signs of conscience such as broken speech, blushing, paling, and collapsing provide evidence of guiltiness. If a man breaks the law, his conscience will bear witness and condemn his action or acquit him. Conscience was regarded as the internal tribunal that holds man accountable for his own actions. The word conscience comes from the Latin conscientia, an aggregate word of cum and scientia. Scientia means “knowledge” (of oneself), and cum, which means “together with,” adds a dimension of shared knowledge. If we pursue the image of the internal tribunal, an individual shares knowledge of himself with himself. He accuses or justifies his actions on the basis of his own deeply held beliefs; external signs of his behavior can tell us something about the trial within him. In the ancient Roman understanding, law and conscience worked together and helped each other. There was no conflict between law and conscience. The conflict was nevertheless potential in the ancient world, especially when the law of city-states was incompatible with religious customs and norms. An ancient example of this conflict, even though not cast in the Latin notion of conscientia, is Antigone. The law of Thebes, which prohibited the burial of a traitor (some would call him a conscientious objector or civil disobedient), was pitted against religious law, which mandated burial for a member of the family. Antigone was faced with a dilemma: she had to choose between the law of the state and religious obligations. In her understanding, the law of the state was incompatible with religious law; even if she could not escape the punishment of the state, she decided to side with religious law. In this example, conscience witnesses the opposite demands of law and religion, and orients the individual toward the latter. Historians of ancient Greece point out that moral conscience began to play a role when the authority of the city-state started to decline.6 There is a parallel here between the decline of ancient Greek city-states, and the decline of Renaissance city-states. The rise of conscientious dilemmas appeared again in the late sixteenth century and continued into the seventeenth; the parallel is not a coincidence. Conscientious voices are stronger when political authorities lose their legitimacy. It may also be true for our present world, in which political authorities are losing their grip on society as religious pluralism is pushing people to live in separate communities and follow different standards.

5 6

Cicero, Rhetorica, 2.6.9. C. A. Pierce, Conscience in the New Testament (London: SCM Press, 1958).

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In our pluralist age, the decline of nation-states goes hand in hand with the rise of conscientious objections. The second stage of development of conscience came with the affirmation of Christianity. Conscience became central to religion with St. Paul, a Jewish convert to Christianity. St. Paul used conscience to describe the difference between the two religions. Jews have no need for the concept of conscience because they obey a written law that is external to them. The law of God has been laid down and is written in the Torah; it does not require individual interpretation. Christianity, on the other hand, has no written law because the law is communicated by God directly to men’s hearts. Conscience was the witness of God’s law for Christians. St. Paul introduced this idea in his letter to the Romans. Christians have an internal grasp of God’s law whereas Jews rely on the written law. Conscience is an intermediary between God and human beings, a reminder that we used to be godlike, and that our nature is fundamentally geared toward the good. But we are also weak, and so we are not always capable of listening to our conscience. Indeed, when Gentiles, who do not have the law, do by nature things required by the law, they are a law for themselves, even though they do not have the law. They show that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts sometimes accusing them and at other times even defending them.7

St. Paul’s understanding of conscience constitutes a major break with Roman law because the law of the republic is challenged by the law of God. It is important to note here that in the original Greek text St. Paul uses the word synderesis, which is not the same as conscientia. Synderesis is purely inward looking and refers to inner intuition of right and wrong. Conscience, on the other hand, combines inward knowledge with outward action. It is a bridge between beliefs and behavior. It is only in the Latin translation of Lactantius that synderesis is translated as conscientia, which has a Janus-faced nature: it is knowledge of oneself shared with another part of the self. The distinction between synderesis and conscientia is not just empty semantics. There is a real substantive difference between a faculty that is inward looking and exclusively private, and a faculty that bridges the private life of beliefs with the public life of actions. Aquinas insisted on the distinction between conscience and synderesis. This distinction is very important because it points to the fact that divine law guiding individuals can be described as working in two different steps. When 7

Rom. 2:14–15.

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St. Paul talks of a law written on their hearts, he can be interpreted as suggesting that there is a divine author of the law, who is the source of the truth of conscience. This is the first step, which St. Thomas calls synderesis in order to distinguish it from conscience. St. Thomas argues that confusion dominates the theological debates because of the failure to distinguish the two. Synderesis is the natural disposition of the human mind to form beliefs about right actions without inquiry, while conscience is the rational ability to translate those beliefs into actions. Thus conscience is a bridge between belief and action, or as he puts it, the “application of knowledge to activity.”8 It is no longer the knowledge of the law that one shares with oneself, as held by St. Paul. The third stage of the evolution appeared with Protestantism. Throughout the history of Christianity, there have been profound disagreements about conscience. The chief disagreement concerned the authority of moral conscience. In the Catholic tradition, conscience refers to the importance of an external authority coming to the help of the individual in deciding how to orient his behavior. The conscience of a Catholic is informed by a number of external props, and ultimately by the magisterium of the pope. Protestant conscience is at odds with such a conception, and insists on a much bigger role for individual interpretation. Institutional authority is rejected in the name of an individual conscience that is deemed to be free. Autonomy is at the center of both Luther’s and Calvin’s understandings of conscience; in their accounts, conscience is a quasi-physical organ that is in direct communication with God. Protestants insist on the value and strength of individual conscience, whereas Catholics consider conscience as a fallible human disposition in need of guidance. Pope Benedict XVI recently suggested that while a man can experience a deeply held conviction of acting in the right way, he can still be mistaken in the evaluation of the moral truths intrinsic to conscience. Benedict XVI thus revisits St. Thomas’s distinction and claims that synderesis is the most important stage of conscience, and that it cannot be easily accessed without external guidance.9 In Luther, conscience inspires rebellion and possibly even courts anarchy. One can contrast Luther with Erasmus, who insists on the necessity of conscientious deference to religious and political institutions. For Luther, conscience provides a definitive intuition that serves as an interpretive device of beliefs and actions. In contrast, Erasmus believes that conscience works in connection with rational judgment and cannot be relied on as a bare intuition. Erasmus is following here St. Thomas Aquinas. However, after the 8

Aquinas, Summa Theologica, 2.1.1.

9

Ratzinger, On Conscience, 30.

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Reformation, conscience became increasingly more at odds with established religion and established authority. Individual conscience is a force of reform, and it inspires people to challenge the establishment of the Roman Church. The conflict between conscience and religious authority was open, and in a context of legal and political vacuum, it led to religious violence and wars. Following the Reformation, conscience was the object of doubts and skepticism. It was unclear whether it was a force of good or a force of evil. There was disagreement as to its weight in relation to individual action and the strength of collective and social norms. Several Catholic and Protestant thinkers doubted its motivational role. All these doubts and qualms are expressed eloquently in Shakespeare’s plays, which often deal with conscience. Hamlet, for example, is often described as a play about inconclusive conscience: Thus conscience does make cowards of us all; And thus the native hue of resolution Is sicklied o’er with the pale cast of thought, And enterprises of great pith and moment With this regard their currents turn awry, And lose the name of action.10

Shakespeare, as a child of a Catholic family living in an iconoclastic Protestant country, is bound to feel the pull of conscience in opposite directions, and the confusion that results from it. Hamlet is restrained by conscience rather than motivated into action by it. This is an intriguing thought, but difficult to fully grasp since conscience is usually understood as guiding actions on the basis of beliefs. We can only make sense of Hamlet’s monologue if we distinguish between a Catholic conception of conscience that is informed by external authorities, and a Protestant conception of conscience that relies on the exercise of individual autonomy to draw moral lines on the basis of one’s own interpretation of divine texts; in Hamlet, the conception of conscience that emerges from the monologue is rather Catholic: external authorities weigh down individual action with its own innate resolution, and turn the individual into a coward. This leads us to the fourth and final shift in the relations between law and conscience. Let us call it the Hobbesian moment. Hobbes wanted to reconnect conscience and the law of the state, and put aside religious and theological controversies about religious conscience. Law provides authoritative reasons for action and motivates people into compliance by attaching 10

Shakespeare, Hamlet, 3.1.123–28.

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sanctions and punishments to directives. In Hobbes’s account, the psychological motivation that drives us into action on the basis of our beliefs is externally provided by law itself. In this sense, law is conscience: law is the collective conscience of the land, vastly more reliable than individual conscience, which is fallible and weak and cannot prompt people into rightful action. Hobbes’s understanding of conscience sees it as indisputably leaning toward authority. This does not settle the issue of the relation between law and conscience but provides a very rigid framework that still holds true today: ordinary law should provide guidance to society and should silence individual expressions of dissent that are only likely to corrode state authority. An interesting response to Hobbes was provided by Butler in his sermons.11 Butler understands conscience as leaning toward autonomy. He claims that when we act according to conscience, we act as a law unto ourselves, or simply according to the law of our nature. Butler is regarded as a champion of conscience understood in autonomous terms. Butler offers an interesting twist on the authority of conscience. He does not believe that God is directly intervening. Instead he believes that God has created nature and within it, humans, so as to give to each living being in nature a constitution oriented to a given purpose. Human nature is constituted so as to pursue virtue, because God has so willed. Butler explains that within each human being there are a number of conflicting appetites and passions pulling in different directions. It is not God that suggests what is right to do. Instead it is the very faculty of conscience that adjudicates between competing passions and directs human beings toward virtue. Conscience is supreme because it resolves the conflicts within the human heart and points to one correct line of action. If a human being happens to take a line of action that conscience has not recommended, then one will feel the pangs of conscience. It will be the object of selfdisapproval. Conscience will condemn us before its own internal court. Butler proposes a new basis for the authority of morals – not revelation or divine will, but moral experience, as available to common sense and conscience. Rawls regarded Butler, together with Hobbes, as the most important moral philosophers.12 Rawls’s sympathy leans toward Butler and tends to give an important role to conscience as a human disposition toward rationality (and reasonableness). Many others have criticized Butler precisely because his

11

12

David E. White, ed., The Works of Bishop Butler (Rochester, NY: University of Rochester Press, 2006). John Rawls, Lectures on the History of Moral Philosophy, ed. Barbara Herman (Cambridge, MA: Harvard University Press, 1999).

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understanding of conscience waters down the concept, and deprives it of its bite by presenting it in the light of rationality. That said, it is easy to see that Hobbes and Butler occupy the two extremes of a spectrum that conceives of conscience as either completely subordinated to legal authority or as the supreme authority governing individual actions and separated from law, and from established religion. In the next section, I focus on the way in which it is possible to reconcile the Hobbesian view of the modern state as ruling out individual conscience and Butler’s view of conscience as supreme moral authority. We can pause for a moment and collect a few thoughts on the relation between law and conscience. First, the origin of conscience is secular, rather than religious.13 This may help us in drawing a boundary between conscience and religion. Second, there are two stages at which conscience plays a role: on one hand, it does refer to the knowledge of moral truths, and, on the other, it concerns the application of moral truths to discrete cases. The Catholic tradition stresses the importance of the latter, while the Protestant tradition focuses on the former. Third, the Reformation is the assertion of the moral authority of conscience in the face of the corrupt authority of the Church. Fourth, the authority of the modern nation-state, and of its secular law, is defined as encapsulating collective conscience and trumping individual conscience. 5.3 THE CORE CONFLICT: COLLECTIVE CONSCIENCE VERSUS INDIVIDUAL CONSCIENCE

Modern constitutional democracies have to grapple with the conflict between individual and collective conscience that replicates the tension between Hobbes and Butler. These two help us to focus on the clash. The former saw law as the expression of collective conscience and as a way of silencing individual conscience; Hobbes expressed a great skepticism of the moral authority of individual conscience. The latter suggested that conscience tracks the law of human nature and has supreme moral authority, superior over and independent from the law of political authorities. The question is whether it is possible to reconcile the moral authority of law with the moral authority of individual conscience. Modern constitutional democracies found a compromise between the law – as the expression of the collective conscience – and individual conscience. Constitutions carve out a space of freedom within which every individual can 13

On this point, see Richard Sorabji, Moral Conscience (Oxford: Oxford University Press, 2014).

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act according to his own conscience. This is what is properly called a general right to freedom of conscience; it can also be referred to as a general right to ethical independence. However, outside the fortress of individual sovereignty reigns law. It can even be suggested that modern constitutions define in a written and visible way the collective conscience of states. We could say the same of international human rights as enshrined in the Universal Declaration of Human Rights (UDHR): at the international level, they express the conscience of mankind. The compromise relies on the ability to draw a line between the realm of law and the realm of individual conscience. The line is to a certain extent questionable, but the point is that there are two separate domains and to each domain corresponds a supreme authority. To use conscience in this way is not to deny the importance of individual conscience. It is to make a suggestion as to how to understand the role of conscience in public debates as opposed to the role of conscience as a guide in one’s own private life. Constitutional norms and human rights treaties negotiate the boundary between legal authority and individual autonomy by dividing the normative space into a sphere of public regulation and one of private action. Legal and political authorities have hardly been contested on the basis of individual conscience until recently. The main exception is the case of conscientious objection to military draft. It is important to note that conscientious objection is not recognized as a claim right, but rather as a privilege granted by the legislators to a narrow number of people who meet strict conditions. The privilege in question here does not qualify as a fundamental legal right because it can be revoked by the state at any time, and because it only applies to a very limited class of people defined by legislation. The European Court of Human Rights (ECtHR), for example, recognizes that Article 9 of the European Convention on Human Rights (ECHR) does not explicitly refer to a right to conscientious objection. National states have a choice of whether to recognize conscientious objectors. However, in light of the fact that today most nation-states do recognize objectors to military service and organize alternatives to it, the ECtHR accepted to review a case where no alternative to military service had been put in place.14 In other words, the antimilitaristic belief can be deep enough to justify the creation of alternative service, but not to justify a right to full exemption from service. What needs to be noted here is that nation-states could revoke their choice and coerce people into military draft when the circumstances are sufficiently serious to justify such a decision. Likewise, in hospitals, medical doctors can ask to be 14

Bayatyan v. Armenia, [2011] ECHR 1095.

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exempted from practicing abortions. This is possible where the medical structures allow for the fulfilment of the service by another medical doctor. But it is also possible that in a certain region of the state the scarcity of medical practitioners would justify coercing a doctor to perform abortions. The point is that doctors do not have a fundamental legal right to be exempted, but they are granted a simple, revocable privilege. Constitutions recognize a general right to ethical independence, alternatively called freedom of conscience. However, outside of the individual fortress protected by liberal rights, individuals have to subject themselves to ordinary law, which encapsulates collective conscience. Thus, in modern constitutional democracies, there is still a possibility of conflict between collective conscience and individual conscience. Take for example the case of same-sex marriage. On one hand, collective conscience in many countries is recognizing that sexual orientation is not a valid ground to deprive individuals of the right to marry, even if it has traditionally been the case. On the other, many individuals all over the world claim that their individual conscience does not allow them to perform services that would signify their acquiescence with a practice that they do not regard as acceptable. To begin making sense of this problem, we must not forget that collective conscience on matters of sexual morality has been determined for centuries by religion. Religion has imposed the conditions for the recognition of a union between two people and for legitimate reproduction within that union. Same-sex marriage and abortions were well beyond the acceptable limits set by any religion. The religious collective conscience was opposed to them as a matter of principle. Within that context, it was impossible for an individual to object to collective conscience because there was no space for tolerance of behavior outside of the bounds of permissibility set by religion. Once religion lost its grip on sexual morality, many liberal democratic societies progressively changed the way in which they understood sex, divorce, abortion, marriage, and reproduction. Constitutional law modified collective conscience so as to free sexual morality from religion; by liberating sexual morality, the law made previously prohibited behavior permissible and prohibited obstacles to the recognition of equal status. Liberal sexual morality has slowly but surely become the new collective conscience and replaced the traditional standards of religious sexual morality. Religion attempts to resist the liberalization of sexual morality, but since the law is aligning with a liberal sexual morality, the only avenue that is open to religious people is to claim exemptions from applicable ordinary law. Can individual conscience ground a special right to be exempted from the application of ordinary law? It is hard to see how collective conscience could

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accommodate behavior that is legally and morally prohibited. Now, compare objection to same-sex marriage with objection to a military draft. In the latter case, collective conscience is often bitterly split on the morality of intervention. By granting selected exemptions, the state acknowledges that the legitimacy of any war is deeply contested. In the former case, collective conscience is slowly but surely shifting in the direction of recognition of equal status of same-sex partners. This is not to say that there is no bitter disagreement, but it is to say that the law is following a liberal trend. More importantly, when we object to military service, we are asking to be exempted from doing something that is potentially wrong; on the other hand, when we object to same-sex marriage, we are asking to be permitted to do something wrong from a constitutional viewpoint: we would like to be able to deny equal status. But when a constitution gives a set of values as the foundation of the system of norms of a society, it is difficult to see how it could possibly make space for individual expressions of conscience that are not compatible with foundational values. There can indeed be conflicts between individual and collective conscience, but collective conscience is deemed supreme even if fallible. Individual conscience in those cases can be a spur to consider and evaluate the claims of collective conscience, but it has no other role than that of critical observer. A constitution that would allow the existence of a right to behave in a way that is incompatible with the best interpretation of constitutional values and the law is a constitution that promotes contradictions – a bad constitution, in other words. Of course, a few problems remain. The boundaries between the inner citadel and the outside are not so easily defined. That is why we have to say a little more about what is covered by individual conscience as a matter of freedom, and what lies outside. We also have to show that conscientious objection does not fall within the scope of freedom of conscience as it should be understood as a claim to be exempted from a legally mandated behavior. 5.4 THE SCOPE OF FREEDOM OF CONSCIENCE

Freedom of individual conscience can be interpreted as freedom from collective conscience. Were it possible to clearly draw a boundary between the two, every conflict would be defined away. Not only constitutions protect individual conscience; the UDHR protects freedom of thought, conscience, and religion: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and

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observance.” Since thought, conscience, and religion are all mentioned, it is necessary to clarify the realm of each of these terms as they are not interchangeable. Freedom of thought is rightly seen as an absolute right prohibiting any interference with one’s own thoughts and beliefs. Freedom of conscience, on the other hand, can be qualified and limited: it is better understood as a general right to ethical independence that allows people to be the authors of their lives by shaping their behavior compatibly with one’s own beliefs. As a general right, it can be overridden by competing interests put forward by the state, when behavior is likely to impinge on other people’s lives. Freedom of religion is a special right, and protects individual and collective practices that are the core of one’s system of beliefs. When an action is covered by freedom of religion, it can only be qualified by compelling reasons that require a stringent level of scrutiny. In what follows, I first distinguish freedom of conscience from freedom of thought and freedom of religion. Then I explain why freedom of conscience does not always cover conscientious objection. 5.4.1 Freedom of Conscience versus Freedom of Religion Freedom of conscience should not be equated to freedom of religion. There is a tendency to do so in Anglo-American legal and political systems, especially when Protestantism is the majority’s religion. Many legal and political philosophers in North America collapse one into the other, or prioritize conscience over religion, thereby giving to freedom of religion an individualistic and subjective understanding.15 Those who suggest it have a very precise idea of religion in mind, that is, they have a Protestant notion of what religion is, which stresses the centrality of the individual experience rather than the associative element of religious life. Conscience is independent from religion: it is clearly possible for a nonreligious person to raise a conscientious objection: think again of those who oppose a war on moral grounds. Thus, a conscientious belief can be religious or nonreligious; the quality of a conscientious belief is part of the fundamentals of one’s worldview and depends on its depth and centrality in one’s worldview. It is held as nonnegotiable, and determines the way in which one wants to shape one’s life’s meaning. Moreover, freedom of conscience is different from freedom of religion and from freedom of thought as it emerges in Article 18 of the UDHR, and Article 9 of the ECHR. Freedom of conscience 15

See, for example, Martha Nussbaum, Liberty of Conscience: In Defence of America’s Tradition of Religious Equality (New York: Basic Books, 2008).

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does not require religious beliefs. Now, it is obviously very difficult to determine exactly what qualifies as religious beliefs, but this is not a good enough reason to collapse them into the category of subjective conscience. Freedom of conscience should also be distinguished from freedom of thought, since we have seen that conscience is not only about the ability of freely holding beliefs and thoughts. The freedom of holding inward beliefs or thoughts does not present any legal or philosophical problem in modern constitutional democracies. Of course, it made a world of difference in societies where religious persecution was a normal practice. But modern constitutional democracies protect as a matter of rights both freedom of thought and freedom of expression of thoughts, beliefs, and opinions. If freedom of conscience means anything, then, it has to be different from freedom of thought. To have freedom of conscience is to be capable of acting in a way that is consistent with one’s own beliefs. Freedom of conscience applies to the sphere of autonomy of the individual, where secular law is not meant to penetrate. In that sphere, we can safely assume that conscience can have superior moral authority.16 Government cannot restrict people’s liberty on the ground that their way of life is inferior to the way of life favored by government. It is up to individual citizens to decide how to best live their lives. So, for example, a government committed to ethical independence cannot prohibit sadomasochism because it deems it morally repugnant. However, it can prohibit sadomasochism if there are other countervailing reasons such as health or prevention of physical harm. The actions protected by freedom of conscience are mostly self-regarding. If one would like to act in a way that curtails another person’s freedom, this cannot be protected by one’s freedom. Of course, there are different types of actions and some of them will have an effect on others. More precisely, the exercise of one’s freedom covers instances in which one may want to refrain from engaging with another person. To have freedom of religion, on the other hand, does not necessarily mean that one can always act compatibly with one’s own conscience. Many religions provide a set of norms that have to be followed as a matter of course. One can be a Catholic gay, even if this raises a conflict between the duties imposed by the Church and the freedom that can be exercised by the individual. Engaging in consensual gay sex is probably felt as perfectly compatible with one’s own individual conscience, even if it is not compatible with religious norms. In other words, to have religious freedom does not necessarily mean to be 16

Dworkin, Religion. Some philosophers call it “ethical independence” and regard it as a general right to freedom.

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free from the coercion of the group to which one belongs. Freedom of conscience, on the other hand, is precisely the idea of being free from coercion dictated by collective conscience as embodied by secular or religious authorities. A fundamental question remains open: does freedom of conscience cover instances of conscientious objection? 5.4.2 Freedom versus Objection An important distinction must be drawn between freedom of conscience and conscientious objection. Freedom of conscience, as a general right to ethical independence, protects the choices of individuals, but does not guarantee that one’s actions are immune from governmental regulation. Such immunity is only afforded by special rights, which make governmental intrusion particularly hard to justify. Freedom of expression is an example of special rights, insofar as government may not interfere with the speech of an individual unless very strict conditions are met; for example, speech can be limited if it entails a clear and present danger. While constitutions and human rights treaties recognize a general right to freedom of conscience, they do not acknowledge a special right to conscientious objection. Moreover, conscientious objection only falls within the scope of freedom of conscience if the exemption that is sought is not at odds with other constitutional principles. So for example, conscientious objection to military draft can be considered as overlapping with the scope of freedom of conscience, but conscientious objection to same-sex marriage cannot. The latter falls within behavior that is in conflict with the requirement of equal concern for all and nondiscrimination. When deeply held beliefs clash with legislation, we cannot rush to a conclusion. Deeply held individual beliefs can tap into a collective moral reservoir, and as such they need to be heard, respected, and taken into account. That is why conscientious objection to military service is valuable. The same is not true for conscientious objection to same-sex marriage; the difference between the two is that the latter is in conflict with deeply held constitutional principles, chief among which is the principle of equal treatment. To grant an exemption to those who object to same-sex marriage would send a negative message to all those who have been excluded from the society because they were not seen as equal members. Wherever an exemption amounts to sending a message of exclusion it should not be granted. It should only be granted if it silently accommodates individuals who are in a position of individual objection, but accept that equal treatment is too important to be undermined.

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Thought hought

RELIGION

Conscience

figure 5.1 The ambit of conscience

The fact that there is no special right to conscientious objection does not mean that the practice of objecting to laws on grounds of deeply held belief is not valuable or, at worst, that it should be prohibited. Objection to laws is a very healthy practice of liberal democracies. But this does not entail that those who have a serious reason to object to a law also have a special right to be exempted from that law. To voice the objection is not the same thing as to act on it. Objection is not a very refined category: there are at least two types of objection to the law. One can be called conscientious refusal and the other conscientious evasion. If I decide to manifest my opposition to a war, what I want to achieve is precisely to be seen and heard. I want to express my beliefs in a way that affects public policy, and I want to be exempted from taking part in a war to which I am deeply and firmly opposed. This is a clear case of conscientious refusal. I refuse to participate in an action organized by my country and mandated by the law of that country. There can also be cases of conscientious evasion, where I secretly refrain from doing something that is in principle mandated by the law. Under the Nazi regime, many people secretly refrained from turning in Jews because they had a conscientious objection to the racial laws. Obviously, the latter was the right moral thing to do, but it was not legal. Neither conscientious evasion nor conscientious refusal can be equated to freedom of conscience. The idea is that both evasion and refusal are reactive attitudes to an exercise of legal or political authority, whereas freedom of conscience covers a creative exercise of authority over one’s own life. Freedom of conscience is protected by human rights law, while evasion and refusal are not. So it is reasonable to expect that a court would not enforce

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legislation that impinges upon freedom of conscience so as to deny one’s own life authorship, but it is not reasonable to expect that a court will carve out an exemption to a valid law on the basis of conscientious objections. With that in mind, we still have to add that some cases of conscientious refusal are protected by the law: in this case, the exemptions are typically already listed by a statute. 5.5 CAN OBJECTION BE ACCOMMODATED?

Legislation can and indeed does carve out instances of accommodation on the basis of conscientious objection. The paradigm case is conscientious objection to military draft. It is crucial to understand that even in this case, there is no special right to be exempted but a simple privilege awarded by the state; indeed, the state has an interest in drafting only motivated individuals to fight its own battles. Also, by granting a privilege to selected objectors, the state can win back a certain degree of political legitimacy by opening itself to counterarguments and protests. However, the state retains the right to draft everyone – including those who are most openly against – if the survival of the state justifies the drafting of all able citizens. More generally, the state can grant privileges if it believes that the person who is called to perform a highly risky job is not motivated to do so. Another example is abortion: it is prudent to grant an exemption to those doctors who do not want to perform it, provided that a replacement to perform the same service without additional costs can be found. Let us be very clear about it: these are prudential reasons for conscientious objection and prudential reasons can be overruled at any point by principled reasons. Prudential reasons do not ground the existence of a special right to be exempted. At best, they force us to find ways to realize certain results without unnecessarily coercing individuals who would not be motivated to do the best job. Obviously, when we shift from a highly risky scenario to a much more mundane case – such as the case of marriage registrars – it becomes much more difficult to argue that there are strong prudential reasons to accommodate those officers who refuse to perform a simple service such as marriage registration. There may still be less stringent prudential reasons to organize the work environment so as to let people choose the functions in which they excel or for which they have a preference. Again, there is no special right to be exempted from core obligations of the work. And indeed, when marriage registration becomes a core duty of the job, it is increasingly more difficult to accommodate those who are expressing their discontent. Moreover, that very discontent

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may very well be causing harm of a dignitary type to those who work with the conscientious objector or to those who are meant to receive the service denied by the conscientious objectors. Accommodation can happen along prudential lines, but it does not guarantee that the objector will not have to be coerced to perform its core obligations. This does not mean that objection does not have a valuable role to play in a democracy. It simply means that it does not qualify as a special right to be exempted from what the law establishes as the democratic product of a collective conscience. The fact that we daily accommodate objections does not mean that there is a special right to be exempted from the law. That said, objection has democratic value insofar as it forces the law to provide adequate reasons for compliance and lessens the risks of complicit consensus with unjust laws. It is fundamental to stress that objection as refusal is to be valued in its own right. Conscientious refusal of the law still represents a meaningful engagement with the law. There might be very good reasons to object to the law, and it is important to unearth them and possibly follow up on them for the sake of preserving the legitimacy of the law. Conscientious refusal may capture a very widespread resentment in the society, and there is little interest to create more resentment. It is in the interest of the state and of the society to have citizens express their beliefs when they are not compatible with ordinary laws. Obviously one thing is to express disagreement and the other is to refuse to obey the law. Civil disobedience is another possible response to laws that are not met with approval. The consequences are not mysterious: overt disobedience is met with lawful punishment, and those who engage in civil disobedience accept this price. Conscientious refusal is different insofar as sometimes it is the law that accepts that some people who meet certain conditions are legally entitled to the exemption. This is important to stress because it confirms the point of this chapter: conscientious refusal is a legislative privilege and not a special right from which everyone can benefit. To be eligible one has to meet legislated conditions and has to discharge the legal obligations in other ways. I did object to military service, but didn’t meet the conditions. Had I met them, I would have had to discharge my obligation to the state through civil service. Conscientious refusal is accommodated by the state because the alternative to that is not blind obedience but conscientious avoidance. The law might be so unbearable that one is conscientiously justified in breaking it silently whenever it is possible to do so. The attitude of conscientious avoidance is more detrimental to the state than that of conscientious refusal. The latter still displays all the marks of a healthy democratic society where it is possible to be

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heard and to still be a part of a society in which there is deep disagreement. Conscientious avoidance on the other end is the most evident sign of disengagement from democratic life, which in turn is a sign of decreased legitimacy of the state. Even so, there are cases in which conscientious objection expresses harmful messages toward other members of the society. This is obviously the case with conscientious objection to same-sex marriage. If my analysis of conscientious objection is correct, it helps taking a stance in this case. I argued that there is no general right to conscientious objection. When some individuals claim the right to be exempted from celebrating same-sex marriages, they cannot be accommodated as a matter of right. This is eminently true if these individuals are representing the state: when they officiate at a marriage, they are not acting in their name, but in the name of the state. If the law of the state demands them to carry out a certain obligation, the options are twofold. Either one complies with the legal duty or one resigns from one’s job as an enforcer of state law. Italy has recently passed legislation allowing same-sex people to enter into a civil union. The law was met with mixed feelings, especially negative feelings in the conservative part of the society. Many politicians running for administrative office in the aftermath of the legislation vowed that if elected they would not apply the law. This was one of those pre-electoral promises that will never be fulfilled because it is very clear that the legal and moral obligation of an elected official is to obey the law of the land. Other politicians claimed that the law is faulty because it does not allow for conscientious objection. Again this is an entirely moot point. The job of an elected official is to enforce the law of the land, which stands in direct contrast with the attempt to refuse or avoid the application of the law. This is particularly true for politicians who have the opportunity to run for office and to change the law if they are unhappy with it. Is accommodation possible in those cases? Certainly not as a matter of rights. It can happen as a prudential matter. Let us imagine that in Rome, the administration is equally populated by religious and nonreligious officers. Their tasks are varied and one of these tasks includes the registration of samesex marriages. It is possible to conceive that to allow for an efficient service while avoiding too much bitterness, the nonreligious officers will be requested to perform the task and the religious officers will perform other tasks. In practice, we resort to countless accommodations of this type, so why not in this case? It is possible to build a typology that takes into account all the various scenarios. The scenario changes profoundly depending on the degree of

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TYPOLOGY Act/Actor

Private Actor

Private Act Public Act

B&B owner refusing to host homosexuals; Baker refusing to decorate a cake

Civil Officer

Elected Official

Ladele

Italian Mayors

Kim Davis

Kim Davis

figure 5.2 A typology of claims of conscience

publicness of the act or of the actor involved. If an elected official asks to be exempted from the law that it is one’s job to apply, then we are clearly facing an easy case. But on the other end of the spectrum, we can find private business owners turning down some clients in order not to be forced to provide a service or a product against their own will. If the owner declines to help without engaging in a discriminatory explanation of his own behavior, then it is hard to believe that the state could force private business owners to enter into unwanted contractual relations. What we learn from these typologies is that what matters is the way in which the meaning of an act is communicated, and this depends on the nature of the act, as well as on the position of the actor. To understand how this typology can help, you can compare the case of Ladele with the case of Kim Davis. Much has been written on both cases, so I assume that the details can be found elsewhere. Both cases deal with a civil officer whose job it is to register public acts, including same-sex unions. They both expressed their conscientious objection to doing so. So far the two cases sound similar. However, the position of the two persons and the act proposed are very different. Kim Davis is the head of her office and, as such, enjoys more visibility and more responsibility. She publicly announced that she would refuse to register same-sex unions, and that her office would not abide by the law. By contrast, Ladele is one employee among many and she is claiming privately that she wishes to be exempted from doing it. It seems to me that Kim Davis’s behavior calls for a public response and a clear sanction, while Ladele could in principle be accommodated for a certain time and under some conditions. This does not mean that she has a right to be exempted, but she should be treated fairly. There is no reason to claim that this accommodation will never work, but if a problem arises either among colleagues or between the administration and the citizens, the solution will have to be pondered long and hard. Imagine that nonreligious officers feel unfairly burdened or perhaps even offended by the refusal of their religious colleagues. Is it possible to tolerate this type of offense

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just as a matter of prudential accommodation? The answer is no: prudential accommodation works only if everyone is willing to turn a blind eye to the situation in which we live together without accepting each other. When push comes to shove, administrative officials will have to accept that the law expresses the collective conscience of the whole society and that if they want to work as officials of the society they will have to bend their individual conscience to fit with collective conscience. 5.6 CONCLUSION

There is no special right to conscientious objection. No one can expect to make a successful claim to be exempted from ordinary laws on the basis of his own beliefs. The reason is that the law presumptively expresses a collective conscience on social and moral issues. Moral conscience emerges over time and through deliberation; laws can be mistaken on moral issues, but this does not mean that individuals have a right to disregard democratic authority. Individuals can object and disobey; objection is always allowed, while disobedience is illegal in most cases. Individual conscience nevertheless plays an enormous role in shaping identity and political battles. Its authority should not be underestimated, and the law is to take conscientious claims seriously. It remains the case that a constitutional democracy expresses through its laws a collective conscience that has supremacy over individual claims of conscience. This means that there is no special right to conscientious objection, even if there can be instances of accommodation on prudential grounds. Individual conscience is first and foremost the tribunal of everyone’s actions. It pricks us when we have done something that is not aligned with our values and principles. And to this extent, we have seen that constitutional democracies protect and promote the right to freedom of conscience as the affirmation of one’s creative authorship over one’s life. It is equally clear that the scope of the general right to freedom of conscience does not cover the exercise of conscientious objection. Whether conscientious objection expresses an attitude of refusal or one of avoidance of laws, it is not covered by the general right to freedom of conscience. It remains fundamental to express conscientious claims and to object to the law in order to keep it under control and scrutinize the work of democratic institutions. Open objection is a healthy attitude toward the law. It can lead people into refusal of one law, when it is only a law that we complain about. Conscience plays a vital role in criticizing and improving the law. It also allows for a room of dissent that is still legally manageable; indeed, it is

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the law itself that allows for instances of conscientious objection. The law can welcome expressions of individual conscience, but does not have to accept them all as valid grounds of accommodation. In particular, it is increasingly more challenging to accommodate conscientious objections that undermines the cohesion of a society and the collective conscience expressed by the law. In the example of same-sex unions, while it is understandable that not everyone will be immediately on board, it nevertheless remains clear that objections to the law cannot amount to discrimination or to the licensed expression of harmful feelings. Religious claims of conscience cannot be aimed at undermining the conscience of the law.

6 Affect and the Theo-Political Economy of the Right to Freedom of “Thought, Conscience and Religion” Marinos Diamantides

6.1 INTRODUCTION

The debate surrounding the accommodation of religious beliefs in secular democratic societies, such as recent refusals to issue marriage licenses to samesex couples on religious conscience grounds, tends to overlook two aspects that are highlighted in this chapter. First, pitting religious conscience against duties under positive law is assumed to be a species of a universal “conscience versus law” problem that the Greeks, say, depicted in plays such as Antigone. Yet this chapter suggests caution in assuming the timeless universality of this problem, at least in any precise sense. The modern perspective on conscience is essentially that of a private will, as a representative faculty of the inner or core self, which is pitted against the general will that is expressed by the law in a representative democracy. As Hannah Arendt argues, this perspective has its roots in Christian (especially Pauline) doctrine whereby conscience refers to experiences that humans have not only with themselves but also “inside themselves.”1 In religious conscience claims, I submit, it is such private will that is pitted against the general will represented by the law. Arendt has made clear the difference of this perspective on conscience from the one suggested in classical discourses centering on the equivalent Greek word for the inner voice – συνείδησις. Plato and Aristotle never explicitly mention it, while Socrates, as Hannah Arendt argues, spoke of it in terms of an inner “dialogue between me and myself”2 that is “not thematically concerned with the Self, but on the contrary, with the experiences and questions that this Self, [which understood as no more than] an appearance among appearances, feels are in need of examination.”3 The fact that Socrates did not refer to his conscience as 1

2

Hannah Arendt, “Willing,” in The Life of the Mind (New York: Harcourt Brace Jovanovich, 1978), 63. Ibid., 64. 3 Ibid., 64.

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valid reason to be excused from the law in his trial is evidence that indeed the classical understanding of conscience was not one of representation of a self that privileges its own position. Moreover, the classical position was that conscience expresses the constant interplay of interiority and exteriority – not their perpetual struggle as we find it in and since Paul.4 Turning from Athens to Jerusalem one can likewise acknowledge the lack of a developed and central concept of individual conscience in the Old Testament, as we see emerging later in Paul. Rather, the word “heart,” the nearest equivalent to conscience in the Old Testament Hebrew, denotes a relationship between God and a covenant community, rather than an autonomous self-awareness between a person and the world in the way it is the case for conscience in Christianity. For these reasons Christianism must be acknowledged as the original formative context of the (now globalized) use of the term “conscience” to denote an idea of freedom that is tied to the notions of conflicting private and general wills as in the case of the freedom of “thought, conscience and religion” per the European Convention on Human Rights (ECHR), Article 9. On this basis, this chapter emphasizes the need for the debate to move beyond the desire to come up with a definitive hierarchy between moral/ religious conscience and respect of the general law. To be sure, unlike the ancient Greeks, Christians and post-Christian moderns are not prepared to merely register, or also stage, for cathartic reasons, the tragic clash between positive law and conscience in the sense of a will to obey a higher law: rather, their glorious synthesis remains in the horizon. On the other hand, however, there is in the history of Christianity a notable displacement of the Final Judgment – and of the violence of those who seek to precipitate it – in favor of an economic/administrative rationality of mutual accommodation of inner conscience and common will. Today, sometime after the Reformation and secularization, the prevalence of this rationality is clear in such late modern developments as the judicial test of proportionality, but also through flexible policies of religion-respecting secularism or pragmatic multiculturalism in liberal polities. In this regard, this chapter, following Giorgio Agamben, suggests that the most noteworthy, if usually downplayed, feature of the Western legal system is its ancient dualism (originally between natural and positive law) in its medieval acculturation: namely as a dualism structured around the metaphysical pivot of a God-modeled providential sovereign will. Indeed, historically, Byzantine emperors, Catholic popes, Western European kings, and modernity’s autonomous individuals and self-determined polities 4

Ibid., 64.

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have, in effect, excelled less in championing the rule of either higher or positive law and more in perpetuating a (now globalized) managerial mode of social existence in which principles and rules are dealt with flexibly and exceptions can become the norm where it is expedient. Despite its conservatism, this ultimately anomic biopolitical administrative paradigm of oikonomia – originally derived from the theological postulate of anarchic divine providence – has the advantage of staking social coexistence on an (originally Catholic) ethos that comprises dogmatism with flexibility and promotes prudence in economically, and always provisionally, synthesizing law and critique, even law and revolution, passing one off for the other. While Agamben criticizes this ethos and even developed an emancipatory strategy for subverting it, my ambition here goes no further than providing a realist critique of contemporary laws and jurisprudence relating to religiousconscientious claims from the perspective of said ethos in the Western and Westernized world. Overall, I first argue, contemporary controversies stemming from the distinction between modern, secular, and/or multicultural law and politics and traditional religion (and from disagreements over the correct way to structure their relationship) must be seen as part of a self-perpetuated globalized Western, secularized-Christian paradigm of oikonomia, namely of administration of populations in a tentatively post-sovereign era in which neither transcendent nor immanent visions can prevail and the perennial tension generated between them must, thus, be managed. We need to own up to the fact that insofar as this paradigm is perpetuated, neither a political or moral theory of justice nor a theory of pure law will ever have a greater significance than the utility of their economic association, which requires the exercise of discretion with a view to managing social conflicts. For all its faults, the great advantage of this biopolitical mode of social coexistence that occidental Christianism made possible is its – first Catholic, then Protestant – ethos, which comprises dogmatism with flexibility and economically and always provisionally synthesizes such binaries as interiority/exteriority, transcendence/immanence, religion/the secular, law/critique, even law/revolution. In relation to the specific topic of this volume I argue, first, that we should declare openly that by invoking will and sovereignty – including in order to be allowed exceptions from universally applicable rules on the basis of the qualified right to thought, conscience, and religion – any individual or group is inserted into the oikonomik/managerial mode of social existence that has been represented long term and originally invented by Christianism. Thus, members of any religion exercising a right to freedom of thought, conscience, and religion are to be understood as availing themselves of conceptions of moral or juridical right, conscience, and religion that

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have always been key to the Western-Christian paradigm of governance in which the power of the will of the individual, of peoples and their sovereign state, and its emanations is routinely exaggerated in comparison to the paradigm’s truly unique gift to humanity: discreetly and increasingly putting management of differences above their resolution. Thus, to rely on Article 9 is to invite the question of how best to achieve a good-enough balance, say, between identitarian needs and ultimate loyalty to the state. Second, I argue, achieving such a balance is not to be taken for granted, as if it were a matter of definitive knowledge or will of legislators, judges, religious leaders, experts, and individuals. Nor can the discretion that comes with this task of management be fettered through appeals to majorities’ constituent power, such as, for example, the 2009 Swiss referendum result banning the construction of new minarets. It is incumbent upon anyone availing the discourse of a legitimately qualified human right to thought, conscience, and religion to persuade, explicitly or not, of their position’s prudential value in facilitating the management of various – traditional and hybrid – appeals to extralegal duty. In this regard this chapter reviews and echoes several critics of various recent legal and political decisions on religious freedom in Europe who diagnose problems ranging from the misunderstanding of all religions as easily comparable to Christianism to outright privileging of the latter. My endorsement, however, comes with important qualifications. Rather than submitting such decisions to some theory of justice or democracy I, first, question whether they constitute bad management of religious-conscience claims; secondly, I propose an explanation for this bad management that is less accusatory than those who speak of Western chauvinism. To properly manage religions one must first understand their hold on the human psyche, and this requires us to leave behind the Enlightenment’s bias against affect and the chimera that purely intellectual, or conceptual, sense-making suffices for living together. These arguments are made gradually in what follows. First the groundwork is laid in Section 6.2, where the thesis is presented that the most important feature of the Western governmental paradigm is its administrative rather than legal or political logic. This is followed by exemplification in Section 6.3, in the form of a critique of the universalism of concepts underlining freedom of thought, religion, and conscience in liberal, secular, or multicultural constitutional polities in relation to Article 9 of the ECHR.5 A reading of related 5

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of

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contemporary jurisprudence ultimately shows that while its first paragraph speaks of everyone, its main beneficiaries cannot but be those who blindly trust in what is presupposed in the second, qualifying, paragraph of the Article: the presumed capacity of the sovereign and the courts to definitively declare what ought to count as “religion” after taking into consideration a range of issues as presented to them not only and not predominantly by politicians and jurists, but also by experts in various fields (for example, security) and a mediamade public opinion.6 To get more people to join in the chorus of acclamation of such decisions – especially among minorities living in Europe – requires, I suggest, less emphasis on the rightness of laws and judgments and more on their practical, less glorious, managerial merits. Conversely the critique of the manner in which religious differences are handled should go beyond the universalist point of view of either democratic pluralism or the rule of secular law; instead, it should be part of a critique of biopolitics enhanced by political theology and that takes seriously the possibility that ideologies, fantasies, even shared values and consensus, can continue to have a hold on the subject even after what has been, (and perhaps prematurely, hailed as) their deconstruction. 6.2 PREMISES AND ARGUMENTS

6.2.1 Today, the dominant hypothesis about the origins of modern constitutionalism is no longer the one defended by C. H. McIlwain, who, in his classic work Constitutionalism: Ancient and Modern, identified Plato’s Laws as the foundational work on constitutionalism.7 Instead, the prevailing hypothesis is provided by historians like Berman, Tierney, and Oakley, who argue that modern constitutionalism finds its roots in the so-called Papal Revolution of the twelfth century, when the pope decided that the Church could give itself laws

6

7

public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” This is not the place to respond fully to those who will say that no sovereign has even demonstrated a capacity to decide such matters in a thoroughly inclusive way. It suffices to mention that in order to answer them I would first have to disclose my preference for Giorgio Agamben’s tentative formula of inclusive exclusion developed in his multivolume Homo Sacer. It presents its readership with the thesis that, in the West, the flourishing of a community is necessarily predicated on the existence of some forms of life that are not as much excluded as abandoned within it. Plato’s conception of the rule of law, according to McIlwain, was carried forward by Cicero, and in this neo-Roman garb it arrived to modern republicanism, as would later be outlined by Pocock and Skinner and Pettit.

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independently of imperial law.8 Moreover, the discovery of just how much late medieval natural theologians have contributed to the emergence of the rule of law, modern democracy, and even free market capitalism9 forces us to doubt the parthenogenesis of secular cosmopolitan and neo-cosmopolitan, liberal and neoliberal worldviews with their assumptions that universal models of democracy have gradually been perfected in the West in just the last few centuries. This change of perspective, requiring us to reconsider modern constitutionalism and human rights in light of their longer, medieval-modern, parochial Western and specifically occidental Christian/post-Christian history, coincides with a growing, diverse literature on political theology10 as well 8

9

10

The idea, roughly speaking, is that by functionally distinguishing law from power, canon law advances the first ideal of “rule of law.” Cf. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983); Harold J. Berman, Faith and Order: The Reconciliation of Law and Religion (Grand Rapids, MI: William B. Eerdmans, 1993); Harold J. Berman, “Law and Logos,” DePaul Law Review 44, no. 1 (Fall 1994): 143–67; Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard University Press, 2003); Brian Tierney, Religion, Law and the Growth of Constitutional Thought 1150–1650 (Cambridge: Cambridge University Press, 1982); Francis Oakley, The Mortgage of the Past: Reshaping the Ancient Political Inheritance (1050–1300) (New Haven, CT: Yale University Press, 2012). E.g., Giacomo Todeschini, Il prezzo della salvezza. Lessici medievali del pensiero economico (Rome: Nuova Italia scientifica, 1994). The term was most infamously popularized by Carl Schmitt (1888–1985) but has been thankfully appropriated by a large and growing body of non-fascist literature. See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (Chicago: University of Chicago Press, 2006); Carl Schmitt, Political Theology II: The Myth of the Closure of any Political Theology (Cambridge: Polity Press, 2008); Carl Schmitt, Roman Catholicism and Political Form (Westport, CT: Greenwood Press, 1996); Giorgio Agamben, The Kingdom and the Glory: For a Theological Genealogy of Economy and Government (Stanford, CA: Stanford University Press, 2011); Charles L. Cohen and Leonard V. Kaplan, eds., Theology and the Soul of the Liberal State (Plymouth, UK: Lexington Books, 2010). In particular for the militant-millenarian theology of capitalism, see Elizabeth Mensch, “St Augustine, Markets and the Liberal Polity,” in Cohen and Kaplan, Theology, 121–60; Hent de Vries and Lawrence E. Sullivan, eds., Political Theologies: Public Religions in a Post-Secular World (New York: Fordham University Press, 2006); Creston Davis, John Milbank, and Slavoj Zˇizˇek, eds., Theology and the Political: The New Debate (Durham, NC: Duke University Press, 2005); Phillip Blond, ed., Post-Secular Philosophy: Between Philosophy and Theology (New York: Routledge, 1998); James R. Martel, Divine Violence: Walter Benjamin and the Eschatology of Sovereignty (Routledge, 2012); Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003); Gil Anidjar, “Secularism,” Critical Inquiry 33 (2006): 52–77. See also Marinos Diamantides, “Constitutional Theory and Its Limits. Reflections on Comparative Political Theologies,” Law, Culture and the Humanities 11, no. 1 (2015); Marinos Diamantides, “On and Out of Revolution: Between Public Law and Religion,” Law, Culture and the Humanities 10, no. 3 (2014); Marinos Diamantides, “God’s Political Power in Western and Eastern Christianity in Comparative Perspective,” Divus Thomas, November 2012.

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as post-secular theory.11 In the current climate this debate cannot be considered esoterically “academic.” Cases like SAS v. France, in which the European Court of Human Rights (ECtHR) endorsed France’s claim that banning the burqa is indeed necessary for living together, force us to consider the possibility that, even today, the question of apprendre a` vivre enfin posed by Derrida12 may be answerable in different ways depending on the prevailing political theology. In my key example, Giorgio Agamben argues that in the Western paradigm the imperatives of oikonomia, biopolitics, or population management trump both democracy and the rule of law, but Christian and post-Christian/secular Western legal and political imagination is ideologically blind to the actual impotence of law and politics (which are mystified as glorious notwithstanding their impotence, by analogy to God). Said Western (Greek-Roman-Christian) paradigm, I submit, comprises elements derived from Greek philosophical metaphysics (especially as filtered via Stoicism) and the Roman statist-juridical legacy especially after it merged with Christian economic-political theology (Trinitarianism), which, as Agamben argues,13 still overdetermines our deficiently immanent thinking. In my view this composite paradigm involves (i) thinking according to a series of binary distinctions inherited, or derived, from classical philosophical metaphysics (for example, body/mind, zoe/bios, private/public, emotion/reason, dynamis/energeia, auctoritas/ 11

12 13

In one example of post-secular thinking, Michel Rosenfeld argues that the defense of constitutionalist values is better served once we admit that constitutionalism is not a culturally neutral discourse although it is the one that can ensure the best conditions for multicultural living in modernity. Michel Rosenfeld, Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account (Cambridge: Cambridge University Press, 2012). For another recent example, in relation to rights, Samuel Moyn asserts that the “rise of human rights after World War II was prefigured and inspired by a defence of the dignity of the human person that first arose in Christian churches and religious thought in the years just prior to the outbreak of the war” (Samuel Moyn, Christian Human Rights [Philadelphia: University of Pennsylvania Press, 2015]). In relation to politics, and in a much more sweeping argument, the central thesis of Simon Critchley’s The Faith of the Faithless is that modernity is a religious drive not to see the religious dimension in politics: “secularism, which denies the truth of religion, is a religious myth” (Simon Critchley, The Faith of the Faithless: Experiments in Political Theology [London: Verso, 2014], 111). Modernity is nothing but “a series of metamorphoses of sacralization” (Critchley, Faith, 10). This means that any modern political formation makes use of something sacral, of a belief in divine sovereignty – be it popular (“God the monarch becomes God the people” [Critchley, Faith, 55]) or anonymous (e.g., “the markets are not satisfied”) – in its rituals (such as parliamentary elections), in the constitution (Critchley, Faith, 107), in the “magic” (Critchley, Faith, 85) of political representation (Critchley, Faith, 88), etc. All this leads Critchley to claim that “in the realm of politics, law and religion there are only fictions” (Critchley, Faith, 91), and “[i]s politics practicable without religion? . . . I do not think so” (Critchley, Faith, 24). Jean Birnbaum and Jacques Derrida, Apprendre a` vivre enfin (Paris: Editions Galile´e, 2005). Agamben, Kingdom. See also supra n. 10.

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potestas, autonomy/heteronomy, and, for our purposes, religion and the secular). Ipso facto, as Agamben’s series entitled Homo Sacer makes clear, we tend to disregard (or abandon) any form of life that cannot be neatly placed on either side of these distinctions; (ii) postulating a third element that economizes – that is, encompasses without dissolving – such binary-relational encryptions of reality and stabilizes their tension. The Stoics introduced for this purpose the ideas of Logos and Pneuma (Greek: Spirit), which were, in turn, substituted, in the medieval period, by the Christian postulates of God as Word (John 1:1) and the Holy Spirit and to which were added the new idea of Man as the incarnated Son of God. An additional Christian postulate was the idea, unknown in classical antiquity, of the whole universe being organised as one household (Gr: oikos) which, contrary to the use of this term in Greek, now was meant to contain all distinctions, including between divine/human and public/private. After St Paul, in whose arresting words “There is neither Jew nor Greek, slave nor free, male nor female” (Galatians, 3:28), humans would gradually be imagined to inhabit this cosmic household as one “family” –humanity– used in a way that defies the genealogical sense of the word family and also contrasts with the reality of human hierarchies. Our modern ideas of all humans born free and equal with an inherent dignity and declared to be not: either persons or human-objects (slaves), as in Greek and Roman antiquity, but: subjects that are free to make the laws they submit to, were born not in a flash of enlightenment but out of this religious, counterfactual, imagination. As all human ideas, however, this idea too did not have only positive consequences. First, unlike the Greeks, who lacked a word for “family” and spoke of oikos as the private household of each dignified male adult free citizen –encompassing his property, women (used for reproduction), slaves (used for labor) and animals– in the new, Christian/post-Christian, humanity each subject is free to surrender part of his “natural” freedom (as in social contract theories) and to sell his/her labor (as in capitalism). Hence, in the western tradition, humanity found a self-understanding that prizes dignity, fraternity and equality but also makes this conditional on (always contestable) pragmatic grounds for living together with others. Secondly, unlike the Greek polis which had several masters or archontes. Here goes the existing,14 Christian/post-Christian “household” of humanity, supposed to be governed by only one master akin to a puppeteer – God, the King, the People, the Market, the Idea of History. Again, this is two-edged; without this notion there would have been no “absolute right” and, thus, no “subjective right” to counter it; on the other hand, however, this imagination creates unrealistic, voluntaristic, visions, of power and agency which seldom matches reality. There is, however, a third element that offsets this weakness. Thus, like the Greeks, the 14

Ps.-Aristotle, Oikonomika, Book I, first phrase, quoted in Agamben, Kingdom, n. 4.

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Christian/post-Christian political and legal imagination understands the omnipresent and efficient personality in the “household” to be not the acclaimed master or “sovereign” – who enjoys his threefold largely unlimited superiority in the strict master/slave sense from afar – but, rather, his more mundane chief executive, or vice master, or manager of the household (Greek: oikonomos). In Greece the oikonomos was mostly chosen from among the slaves with the explicit task of watching over the successful everyday coping with any business that came along. The process by which in the last millennium the king’s servants transmuted into the all-important civil servants and, more recently, into international and transnational functionaries must be seen in this light. As Agamben shows, the notion in modern secular constitutional thinking that the sovereign reigns but does not govern is a direct adaptation of the postulate that God/Christian prince must be acclaimed as the glorious sovereign even if impotent/crucified. Thus, Agamben’s genius is not merely that he has pointed out the particular geographic, cultural, and religious Western origins of our deficiently secular and universalist legal and political imagination that still mistakes the word for the household of a withdrawn Lord and thus equates politics with housekeeping. More importantly, he has shown that since the Greek polis–oikos distinction has itself been imagined as part of a universal oikonomia, neither democracy nor law actually play the decisive role attributed to them. Law and politics may be attributed the ultimate authority of the absent landlord or the “halo” of the withdrawn God but are impotent, if by potency we mean power to decide comprehensively and oversee the exact implementation of their decision. In whose hands lies the task of administering the universal house of humanity in our emerging post-sovereign world society of biopolitics? In the Western tradition the owner of the house has been successively imagined as the male head of the family, the Roman God Emperor, the Christian God, and finally universal man/the people; yet in all cases, Agamben shows, it is not they who actually govern even if they are said to reign. Behind the fac¸ade of (legally or politically defined) sovereignty lies increasingly anomic administration without government in the hands, respectively, of a chosen slave in the Greek household (the oikonomos), of the bureaucracy of the Roman emperor, the majordomo of the anointed Christian king, and, in modern times, of the increasingly differentiated professions (e.g., lawyers and politicians, economists and scientists, the media) and impersonal bureaucracies, interest groups, experts, and so forth whose agendas/interests are always partial and temporary and who derive their legitimacy neither from democracy nor from law.15 If Agamben is right, diffuse biopolitical administration/management is all there is, but God, 15

For one contemporary example of the discussion of our advanced stage in replacing law and politics by management in all but name, see, for example, Alexander Somek, “Administration

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first, and a series of pseudo-immanent archons in the wake of God’s death (popular will, categorical imperative, utility, class struggle) serve to hypostatize and agentify this managerial process with reference to one glorious sovereign; the numerous daily, fragmented, mundane, day-to-day acts of administration of beings and things – even beings as things – are hence imagined to constitute a singular power and avail of a dignity greater than the sum total of their constituent fragments. In sum, ours are societies that are managed as a household, or oikos, according to administrative rationality, but that are misrepresented as a polis in which either legal or political rationalities ostensibly prevail, due to the prevalence of a still-active particular political theology. First impressions aside, this approach ought not to surprise. Did not oikonomia exist in all but name in the modern legal realists’ criticism of conceptual formalism (that is, the claim that legal concepts and principles are always situational for they neither have a necessary content nor are their relationships fixed within a coherent and integrated body of law)? And what else but a sense of oikonomia underpins the desire to strike a balance between majoritarian democracy and counter-majoritarian courts, or utility and rights forms the leitmotif of much contemporary analytical jurisprudence, say that of Rawls and Dworkin? In the field of modern public law theory is it not an accurate statement that “the modern formation of all constitutionalist regimes is characterized – in various degrees according to country – by the fact that the government’s jurisdictional authority [to pursue an ill-defined salus populi] is recognized as absolute but its exercise is circumscribed in form,”16 notably, in our times, through the application of the proportionality test and such a principle of judicial self-limitation as the “margin of appreciation”? Building on Agamben’s insights in a recent book I coauthored with A. Schu¨tz,17 we emphasized that, historically, the simultaneous dedication to the rule of law and the critique of the law are the dual legacy of Christianism’s overcoming of Judaism that led it to embrace individualism; likewise, in politics, the postulation of sovereign will that is equidistant from such binaries as immanence and transcendence, natural and positive law, liberty and statism, revolution and law, rights and social justice, and so forth, as the necessary basis for organized society is, we claim, indisputably part of the legacy of Western Christian, Trinitarian, and economic political theology; this outlook specifically identifies occidental Christianism (Catholicism and

16 17

without Sovereignty,” in Petra Dobner and Martin Loughlin, eds., The Twilight of Constitutionalism? (Oxford: Oxford University Press, 2010), 267–90. Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2004). Marinos Diamantides and Anton Schu¨tz, Political Theology: Demystifying Universality’s Immaculate Conception (Edinburgh: Edinburgh University Press, 2016).

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Protestantism), including its latest epigenetic outcome, secularism. Moreover, we defend the – admittedly polemical – thesis that a sort of foundational schizophrenia, regarding its universality or parochialism, has hitherto meant that all attempts of providing a Western-modern model for a convincingly non-imperial18 type of global civilization so far have failed just as the many conceptual fruits of the modernity it has fostered, notably limited government and rights, have spread or, at least, are known everywhere. On one hand, the global spread of Western values and institutions in the nineteenth and twentieth centuries has drastically limited the diversity of ways to institute humankind that historically obtained in and among different traditions;19 on the other, however, the various crises of the early twenty-first century are being met with increased anxiety about civilizational clashes, the return of religion, and so forth. In our book we argue that since by now there is no viable traditional, moral, or practical alternative to Western Christian/postChristian, secular/post-secular modernity, the words “clash,” “conflict,” and “war” can now only refer to endo-civilizational conflict or civil war.20 Part of our argument is that while the occidental, and by now globally familiar, triadic 18

19

20

For an example in the area of constitutionalism, see James Tully, “The Imperialism of Modern Constitutional Democracy,” in Martin Loughlin and Neil Walker, eds., The Paradox of Constitutionalism (Oxford: Oxford University Press, 2007). One way of showing this is related to the spread of Western law; Samera Esmeir refers to nineteenth-century colonial Egypt, where the widespread presence of the “positive law v. natural law” Western debate took up all available space for discussion in the very name of “modernity”; this, thereby, both presupposes the violent dehumanization of subjects of alternative non-Occidental institutional models, and forecloses the evolution (or even the taking into account) of these models; yet, the positive law versus natural law model is playing the role of a resilient and uninterrupted consensus worldwide and, thus, is structuring the ensuing juridical humanity, to quote Esmeir’s title: Juridical Humanity: A Colonial History (Stanford, CA: Stanford University Press, 2012). Cf. Giorgio Agamben, Stasis: Civil War as a Political Paradigm (Edinburgh: Edinburgh University Press, 2015). It is thus that we make sense of such murderous incidents as the attack on July 14, 2016 in Nice, by a disaffected Muslim Tunisian-French perpetrator who apparently embraced Islamism in between working, drinking alcohol, and gay cruising. Consider also those who fly out of their native Europe to fight in Syria on the side of the Islamists who recruited them (using social media and while relying on aid from God knows how many different agents) in order to establish a sovereign Islamic state (ironically while also using the old Islamic slogan “there is no sovereignty but in God”) where only one school of Islamic law would be interpreted by a hierarchy (a dejected notion in classical Islamic history) and imposed territorially (not by personal status as in classical Islamic history); in what sense are these disaffected second-generation Europeans indicating a return of a medieval Islamic theocracy to the throne from which modernity ejected it other than the one it had in Western medieval and humanist history where the Christian prince – unlike the Muslim caliphs – was anointed and where, among all previous non-European states, the Semitic ones were the worst (followed at some distance by the Eastern Roman Empire [Byzantium])? Cf. Marinos Diamantides, “Shari’a, Faith and Critical Legal Theory,” in Marinos Diamantides

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model of humanity – centering on the specific ideas of the political animal (the zoon politikon, to recall Aristotle), the juridical human (the homo juridicus, to quote A. Supiot’s title),21 and the economic human (the homo economicus, to cite critics of A. Smith, J. S. Mill, and so forth) – is, historically and anthropologically speaking, only one among many ways of instituting humanity, it is by now a de facto inescapable framework for integration into the emerging world society; indeed, under the aegis of supporters of new cosmopolitanism, even international law is departing from its horizontal, consentbased, Westphalian character and is being “constitutionalized” with certain universal values being claimed as ensuring the hierarchical prevalence of international law just like domestic constitutional law. 6.2.2 In these circumstances, any individuals or groups that purport to abide, and inculcate in their children, a different, premodern, traditional identity are answerable to the question just how much one can achieve this without either ending up as sort of exotic curiosity (living inside yet cut off from the state, for example, as the members of the anti-Zionist Naturei Karta in Israel) or else committing performative contradiction, for instance, either by claiming an exception from liberal universally applicable laws on the basis of a stateguaranteed right to freedom of conscience and religion, or, say, of choosing, having been radicalized on social media, to take a plane from Europe to Syria to be a pawn for various forces while fighting for an Islamic state that is led by a caliph that bears much more similitude to a divine-right type premodern European sovereign than a premodern Arab caliph. In sum, the very invocation of sovereignty, alongside the exercise of individual choice by right, appears as an efficient means of conversion of all religions not to Christianism, but to the mode of social existence of religion that has been long term represented and originally invented by Christianism. Non-choice, or, for the individual, the fact of simply being born into a religious framework and existing within a given religious integrity – in other words, the existence of religion in the form of an extended form of kinship – had, for long, provided the general framework of the existence of religions. If, according to Serge

21

and Adam Gearey, eds., Islam, Law and Identity (Abingdon: Routledge, 2012), 49–67; Marinos Diamantides, “Towards a Western-Islamic Conception of Legalism,” in Lior Barshack, Peter Goodrich, and Anton Schu¨tz, eds., Law, Text, Terror (London: Glass House Press, 2006), 95–118. Alain Supiot, Homo juridicus: Essai sur les fonctions anthropologiques du droit (Paris: Seuil, 2005).

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Margel’s insight, the Christian religion can be described as a “comparative religion,”22 that which distinguishes Christianism from other cults against which it has profiled itself right from its beginnings and from which it keeps distinguishing itself, is the very fact of its self-profiling, or self-distinguishing, through an intrinsically choice-based mode of relating to the Christian message. On this basis we think that, starting from the seventeenth and in an accelerated manner through to the twenty-first century, there has been a process of Christianization – or perhaps meta-Christianization – of world society by successfully subjecting the subject’s relationship to any religion whatsoever to a conversion process toward religiosity that is offer- and choicebased (until then the distinctive feature of Christianity). In this sense Christianism has historically taken possession of the religious potential of Westernized humankind not only nor primarily through actual conversions, but through ever more individuals and groups embracing choice-based religiosities. In light of this the question of religious conscience claims loses any reference to actual interreligious, intercultural, or inter-civilizational differences. Consequently, whenever we are confronted with conscience-based religious exceptions claims based on the truth of one’s religion, it is pertinent to recall Foucault’s point that man has become a confessing beast (in French, une beˆte d’aveu) within the Western-cum-Christian cultures (en occident are his own words).23 This beast, the individual who is shaped as a truth-saying, truth-arguing, truth-exalting being, is not part of divine creation: it is the product of a number of centuries of involvement in Western, secularizing/ secularized Christianism; what forms the actual content of the truth to be confessed is secondary to the attachment to the image of truth-exalting being. Hence, that “words are deeds” – Wittgenstein’s famous observation – must be read in conjunction with Foucault’s insight about the unprecedented value Western Christian history has tagged to the fact of “saying it,” of “speaking it out.” We may call this the “surplus value” of speaking out. Foucault was not the first or the only one to have had an inkling of the difference-construing adventure that Western Christian self-shaping has initiated by dignifying the human animal as an outspoken animal, capable of hitherto unseen performances within the dimension of performativity. In this sense, whenever one exercises a right to defend a truth before a modern public arena, one must also be prepared to be content with just the very action of doing so, which amounts to discharging

22

23

Serge Margel, Superstition: L’anthropologie du religieux en terre de chre´tiente´ (Paris: Galile´e, 2005), 63ff. Michel Foucault, “Nietzsche, Genealogy, History,” in Donald Bouchard, ed., Language, Counter Memory Practice (Ithaca, NY: Cornell University Press, 1977).

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a moral duty regardless of the outcome.24 In this regard trust in the value of modern processes of legislation and adjudication as independent of their actual outcomes and consequences is tantamount to the social trust generated in medieval Christian times by participation in doxological and acclamatory rituals. The other side to Schu¨tz’s and my thesis in Political Theology: Demystifying Universality’s Immaculate Conception is that conceptual, or purely intellectual, meaning is not the most fundamental in the institution of human subjects as it has been widely accepted since the Enlightenment; as far as the institution of the human subject is concerned, affective meaning – iconomic and experiential – takes precedence; ideology finds its force in the affective side of the subject’s identification with particular iconic images in which specific metaphysical postulates are encoded, and in its ritualistic behavior through which these postulates are performatively validated as if true social facts; thus, for one example, the Western Christian/post-Christian subject trusts blindly in the message encoded in the Christian cross: glory and humiliation, victory and defeat, sovereignty and impotence, freedom and servitude, exist in a never-ending, unverifiable, and unquestioned dialectic relation. Arguably, the love of this message still helps even the atheist but non-nihilist post-Christian Western subject to deal with the disappointments that follow from both the unintended consequences of its actions and decisions as well as the necessary and pragmatic compromises to the principles of rule of law and democratic sovereignty, giving it an advantage over those for whom the cross commands no love (or even commands hatred, as, for example, the symbol of crusades); consequently, only that subject is gifted/burdened with what we called an oikonomical intelligence; this intelligence gave rise, in the fourth-century religious history in the Greek-speaking New Rome, to the theological-institutional edifice of the Trinity and the image of the world-as-oikos; this led to the subsuming of political and juridical thinking to administrative/managerial rationality; hence, the aforementioned Western triadic conception of man as political, juridical, and economic animal is imagined as a relation in which the former two are mediated by the latter. Along with this came the Christian version of the oikonomos – one who gloriously takes his duty of saving the household at heart to the point of giving his life – with the effect that every time political or juridical principles are mutually compromised there is no sense of loss of dignity. Here lies 24

In Opus Dei: An Archaeology of Duty (a follow-up to The Kingdom and the Glory) Giorgio Agamben investigates the roots of the moral concept of duty in the theory and practice of Christian liturgy: “the liturgical mystery is not limited to representing the passion of Christ, but in representing it, it realises its effects so that one can say that the presence of Christ in the liturgy coincides with its effectiveness. But this implies . . . a transformation of ontology, in which substantiality and effectiveness will seem to be identified.” Giorgio Agamben, Opus Dei: An Archaeology of Duty (Stanford, CA: Stanford University Press, 2013), 40.

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a real difference between the “West and the rest”; while, as mentioned, the conceptual framework for thinking of the human as a political, juridical, and economic/administrative animal is almost perfectly globalized by now, the affective-ideological trust invested in the latter’s capacity to structure the tension generated between the former two is not or is less so. When, for example, a Syrian Muslim refugee seeks refuge in Europe on account of his intellectual knowledge that the people of this continent swear by their absolute allegiance to universal human rights (for there is no Jew or gentile, nor Christian or Muslim), but is turned away (for example, forcibly sent back to a third country like Turkey with which EU leaders reached a deal that defies the Geneva Convention), it is unlikely that person will not feel anger at the perceived European hypocrisy. In view of this, this chapter argues secondly that, as with all qualified human rights, the right to freedom of thought, conscience, and religion, or any other right that may be invoked as part of a claim to exception from universally applicable laws, presupposes affective trust in its oikonomic deployment, no matter how close this comes to anomie, and that said trust is more readily had by those post-Christian subjects who are accustomed to glorifying/acclaiming as absolute principles of legal or political right despite their impotence before the exigencies imposed by the ad hoc logic of administrating populations in a manner analogous to the way premodern Christian subjects offered doxologies to God/acclamations to the sovereign. That Christianism is distinguished for its contribution to the development of a paradigm in which the political animal and the homo juridicus are enveloped by the homo economicus is due to the fact that, as analyzed by Agamben, economic, Trinitarian, Christian theology was from the outset not a story about God or about divinity; rather, it is immediately about economy and providence, in other words, an activity of self-revelation and government, of self-revelation in the service of government, and that means, in turn, of the care for the world as an oikos. The Christian deity articulates itself in a Trinity; it does so, however, not in a way that might be understood as a form of theogony or mythology; rather, what it offers is an oikonomia, and this not in the weak and negative sense of dispensation or government by so-called one-off or exceptional cases as was primarily the case in Byzantium, but also in the strong and positive sense of deploying ever-new administrative devices and constantly making learning-led adjustments. Divine freedom and providence support creaturely freedom precisely in founding and governing “an immanent praxis of government.”25 In light of this Agamben proposes that in order to gain access, let alone to understand the structures and functioning of power, we must set aside the “pseudo-philosophical analyses of popular sovereignty, the rule of law, or the communicative procedures that 25

Agamben, Kingdom, 47. See also supra n. 10.

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regulate the formation of public opinion and political will,” turning instead to the analysis of an unbroken Roman-Christian tradition of doxology, to the hymns and acclamations that “seemed to have disappeared in modernity” but that, in reality, reaches its climax in what Debord calls the contemporary society of the spectacle26 wherein, per Agamben, “power in its ‘glorious’ aspect becomes indiscernible from oikonomia and government.” “To have completely integrated Glory with oikonomia in the acclamative form of consensus is . . . the specific task carried out by contemporary democracies and their government by consent, whose original paradigm is not written in Thucydides’ Greek but in the dry Latin of medieval and baroque treaties on the divine government of the world.” In short, the claim in the center of Agamben’s message is that modern democracy – government by consent – pertains to a tradition in which we endlessly or performatively glorify the economic administration of the world. Administration by governments that promise optimal conditions for the advantageous reproduction of chances of some new type of activity – we might call it the exercise of life – at once glorify human subjects as persons with inherent dignity and instrumentalizes them as “human resources.” This administration, these governments, at once act as a mirror in which we see our “inherent” dignity enshrined in law and our popular “sovereignty” expressed though decisions and abandon us to legal exceptionalism and political irrelevance leaving us either overworked or chronically unemployed. This acclaimative biopolitical tradition – where God, or sovereign Will, is glorified regardless of its truth or falsity – was never really in jeopardy by such key modern constitutionalist ideas as legislative sovereignty, natural right, and the separation of powers, all of which rather reify the tradition by presupposing a unitary yet divided political subject along the lines of the trinitarian God. First God, or Pope Emperor, then, under the sign of secular nature, Leviathan, or the people (nation). Nor is, arguably, this tradition notably inflected in a further step, and by a more recent set of postmodern ideas, those foregrounded by “reflexive constitutionalism.”27 26 27

Quoted in ibid., 47. The debate on reflexive constitutionalism centers, in abstract terms, on the need for permanent constitutional contestation and revisability of constitutional norms through a permanent process of deliberation; it covers various theories of constitutional design understood in terms of purely bottom-up, deliberative democracy procedural terms and avoiding setting substantive norms; it stresses law’s role in providing the procedural framework to allow for selfregulation by other subsystems (politics, economy, etc.). As Stijn Smismans notes in the context of an analysis of attempts to found a European Constitution, however, “thinking normatively about ensuring bottom-up reflexive processes without reflecting on the substantive values of the constitutional design in which such processes have to operate is unlikely to deliver democratic governance”; this is, at best, an attempt to think constitutional design “as if such design could be neutral in substantive terms”; moreover, “[law] has traditionally had a role in translating societal norms into substantive legal norms. As in no other subsystem, this process has been linked to democratic procedures. In reducing law to a procedural role, the

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As we know, this set of ideas is based upon a further notion of people/the people understood as pure communication. Here belongs the consensual position of Ju¨rgen Habermas, of which Gunther Teubner and others try to develop a reformed-informed updated version.28 What follows is a more detailed defense of these two arguments especially in relation to Article 9 of the ECHR.29 6.3 ARTICLE 9 ECHR

6.3.1 The first paragraph of Article 9 ECHR draws together, in one triadic right, the freedoms of “thought, conscience and religion.” Thus, human rights lawyers are accustomed to using these three terms in one breath as aspects of a compassing right held by autonomous man, which is at once guaranteed by and limiting the sovereign state. The same structure – a triadic relation structured by and against the sovereign – is also typical of legal theorists confronting the question whether members of religious minorities may have a right to be exempted from otherwise universally applicable laws; indeed the literature reveals mostly arguments from fairness, conscience, or equality of opportunity, alongside the (implied or explicit) assumption that the state holds the rightful power to determine what may count as a religion in the first place.30 A first implication of this structure of Article 9 is both obvious and not generally paid enough attention to; thinking (thought), feeling a sense of extralegal moral responsibility (conscience), and not questioning some unfalsifiable, transcendental, or sacred source of value (religion) are all imagined as being in an obscure relation that is at once inescapable and non-fusible and which the sovereign legislator, the law-interpreting courts, and legal theory can render less obscure by hierarchizing it. Now, it has been the modern experience – motivating this very volume – that parliaments, courts, and legal theory have been

28 29 30

definition of substantive norms will be left to subsystems that do not guarantee democratic processes” (“European Constitutionalism and the Democratic Design of European Governance: Rethinking Directly Deliberative Polyarchy and Reflexive Constitutionalism,” in Suvi Sankari and Kaarlo Tuori, eds., The Many Constitutions of Europe [Routledge, 2010], 169–95). I wish to retain, from Smismans’s critique that, so far, reflexive constitutionalism has not reflected enough on the role Western law has historically played in both promising and guaranteeing a substantive meaning to democracy; Smismans’s love of and trust in this promise is too entrenched in Western consciousness to ignore. E.g., Gunther Teubner, Constitutional Fragments (Oxford: Oxford University Press, 2013). See supra n. 6. Cf. Kent Greenawalt, Religion and the Constitution (Princeton, NJ: Princeton University Press, 2006), 1:124–56; Asad, Formations. See also supra n. 10.

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hierarchizing this triadic relation without the desired bonus of rendering it much clearer. The US Supreme Court’s approach to religious exemptions from the 1960s to date, for example, shows a trajectory from an accommodationist phase, where exemptions from laws that were thought to burden people’s consciences were liberally granted (provided the Court was satisfied there was no compelling state interest that the law promoted [compare Sherbert v. Verner (1963), Wisconsin v. Yoder (1972)]), to the adoption of a much weaker nondiscrimination test (compare Employment Division v. Smith [1990]). In Europe, too, as I presently mention in more detail, there is no disputing the growing lack of clarity – and consequently of trust – that prevails in the general ambit of Article 9. For radical critics of the very idea of sovereignty the fact that the state fails to definitively provide principled clarity is not surprising; for Wendy Brown, for instance, “sovereignty produces both internal hierarchy (sovereignty is always sovereignty over something) and external anarchy (by definition, there can be nothing governing a sovereign entity, so if there is more than one sovereign entity in the universe, there is necessarily an anarchy among them)”;31 to this insight I wish to add that sovereignty is not merely a notion that “somehow” allows us to think of political unit as simultaneously necessarily hierarchical and anarchic; it has a long history that stretches only in part to the ancient Greek democratic polis, which had a tendency to disunion, faction, stasis; there, the binary relation between internal hierarchy/external anarchy lacked, as it were, the solid anchor that our concept of sovereignty offers. This concept of sovereignty is unthinkable otherwise than within a Western (Greek-Roman-Christian) paradigm that presupposes unity as, and entrusts it to, a flexible economic-anarchic relationship of indifference between hierarchy and anarchy that finds its original model in the trinitarian God on whom the modern idea of an omnipotent yet limited government is modeled (the “constitutional paradox”32 of sovereignty as constituent and, at once, constituted power). Hence, as is the case with many other matters, questions of religious exemptions are sent to the sovereign to be resolved under general normative standards only to arouse the suspicion of a sectarian (or secularist) bias by being treated, instead, by means of endless exceptions, re-qualifications, and so forth, as part of a non-ideal, contextual, policy-informed oikonomic strategy that is less about legal or political reasoning and much more about administrative or managerial reasoning. The more the sovereign attempts or promises principled solutions, the bigger the ensuing need to manage the disappointment from the gap between the aspiration to govern and the reality of managing. At the same time, the fact that in Article 9 “thought” is mentioned first in the sequence while 31 32

Wendy Brown, Walled States, Waning Sovereignty (New York: Zone Books, 2010), 53. Cf. Loughlin and Walker, Paradox.

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“religion” is last is not without significance: it shows the modern attribution of primacy to secularized logos; even religion, as the second paragraph of Article 9 shows, is primarily understood by lawyers in line with the modern, protestant, German idealist-cum-secular paradigm: as having a “core” of private/communal beliefs in the truth of some specific conceptual meaning and a “periphery” of manifestations of said beliefs in the form of symbols, icons, rituals, and so forth. Conceptual sense making is thus proclaimed, in and out of the scope of religion, as fundamental while imagery, ritual, love, and art – the stuff of which affective meaning consists both in traditional religion (when they are sanctified in relation to the Holy) and civil religion (in which case they are sanctified by the absence of the Holy) – are relegated to secondary status. Conscience, in turn, sits squeezed between thinking and believing, and public and private meaning, discharging the same function of the pivot that allows two players to play seesaw. 6.3.2 Overall, I submit, insofar as the modern autonomous individual and collective sovereign subjects are imagined as consisting of a foundational triadic relation between thought, conscience, and religion, in that order, Article 9 ECHR might as well have been Article Number One of the ECHR. There is, I further suggest, a double trouble with this arche. The first trouble is that, arguably, the very assumption of the primacy of conceptual over affective meaning contributes to the alleged bias of Western judges and lawmakers against non-Western religions. For example, in the United States the suggestion that religion equals belief gives rise to legitimate complaints that the state burdens religious individuals and groups with the duty to explain their religious practices in theological terms.33 Meanwhile, in Europe the suspicion grows that, despite claims to neutrality, state courts are prone to privileging Christian images and rituals by arbitrarily downplaying them as a bit of innocuous national culture in contrast with minority religions’ symbols and rituals considered to be carrying specific religious messages. The obvious example is the ECtHR finding that the crosses hanging in Italian schools are passive symbols while, on other occasions, it has found that the various veils worn by many Muslim women is an active symbol of the essentially undemocratic religion of Islam.34 The message seems to be that while the cross 33

34

W. Fallers Sullivan, The Impossibility of Religious Freedom (Princeton, NJ: Princeton University Press, 2007). Susanna Mancini, “The Tempting of Europe, the Political Seduction of the Cross: A Schmittian Reading of Christianity and Islam in European Constitutionalism,” in Susanna Mancini and Michel Rosenfeld, eds., Constitutional Secularism in an Age of Religious Revival (Oxford: Oxford University Press, 2014), 111–35. Cf. Anastasia Vakulenko,

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symbolizes the Christian/post-Christian prince’s love of all humanity, the veil or circumcision, to take other common examples, are marks of premodern tribal distinction. Arguably, however, making children look up to the image of the impotent yet triumphal god on the cross at the place of their secular education is an efficient way to make them love and blindly trust in the cross’s embedded message of political theology in a secular context: God/the sovereign/the autonomous subject are to be glorified even if evidently weak and falling. Moreover, insofar as distinctions such as that drawn between the cross and the veil can be shown to be less than impartial and principled, this begs the question of the efficacy of the (Rawlsian) “veil of ignorance” since it raises the suspicion that the universality of Western conceptions of political equality may be skin-deep. In fact many a critic has suggested that European courts arbitrarily discriminate against minority religions and cultures in order to shore up a European identity threatened by immigration in ways that validate the least palatable aspects of Carl Schmitt’s critique of liberal democracy. Take, for example, SAS v. France; while the Court did not accept the French government’s position that the blanket ban of wearing a veil that covers the face completely was valid due to gender equality or human dignity concerns, it did accept France’s claim that it was necessary for living together in France, underlining that states enjoy a wide margin of appreciation in cases like this but, presumably, also on the basis that France’s claim is made in terms of purely secular public reason and is thus intelligible to all, unlike the private beliefs (manifested by veiling). In this connection, I join critics who suggest that there are structural reasons for such apparent failures to open up to other nonChristian/post-Christian cultures. As S. Motha writes, neither private beliefs nor public reasons exist on the basis of intelligibility alone insofar as they equally presuppose a common affect;35 the idea is that the autonomous (individual and collective) sovereign subject of modern law/politics is shaped, motivated, and sustained by its affective attachments to heteronomous contingencies of religion, as well as class, race, and culture. In a similar fashion I argue that while the jurisprudence and laws regarding the triadic Article 9 may be intelligible to all, they can be mistrusted or trusted depending on whether one shares in the affect of occidental Christian/post-Christian communities that equally imagine an inescapable relation of tension between God and caesar, transcendence and immanence, the sacred and the profane, and so forth, which requires continuous

35

“‘Islamic Headscarves’ and the European Convention on Human Rights: An Intersectional Perspective,” Social and Legal Studies 16, no. 2 (2007): 183–99. Stewart Motha, “Veiled Women and the Affect of Religion on Democracy,” Journal of Law and Society 34 (2007): 154.

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management, not resolution, in line with trinitarian economic political theology as analyzed by Agamben.36 A rift over the role of unconscious affect in ensuring or undermining blind, ideological, social trust as a precondition for the emergence of public reason – and consequently, on whether a particular affect underlying Article 9 jurisprudence and related legislation bridges rather than distinguishes modern and traditional Western views on the relation of law or politics and religion – is by now clearly demarcated. On one end, those who deny the primacy of affect over reason are liable to the accusation of either cognitive dissonance or cyclical foundationalism; Dieter Grimm, for example, argues that secular democratic states must abstain from preferential treatment of any one religion but also recognizes their privilege to protect and promote specific “values, traditions and customs that, although, originally rooted in a country’s predominant religion, have lost their religious connotations” and are no longer viewed as specific expressions of religion but rather have become a “part of a country’s general culture that includes believers and non-believers.”37 Or else: secularized Christian traditions and values can be legitimately privileged because despite having “Christian roots [they] developed a formative effect for society without retaining a specific religious connotation.”38 36

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Agamben, Kingdom. See also supra n. 10. Trinitarianism can be described as one of the most successful examples of what social anthropologist R. Rappaport calls “ultimate sacred postulates” shared only by members of particular communities as the basis of their intersubjective trust: particular religious and secularized metaphysical postulates (e.g., Genesis, the “chosen people,” Christ, universal salvation through martyrdom and resurrection, etc.). As linguistic beings our communication is beset by two fundamental problems: the “lie” and the “alternative” – the two sources of evil for M. Buber – and these are ameliorated by adopting “absolute sacred postulates” such as Divine Oikonomia that are unfalsifiable (for they do not correlate to any material significata) and unquestionable and, further, validated performatively as true social facts (with or without subjective belief in their truth); see Roy Rappaport, Ritual and Religion in the Making of Humanity (Cambridge: Cambridge University Press, 1999). Dieter Grimm, “Conflicts between General Laws and Religious Norms,” in Mancini and Rosenfeld, Constitutional Secularism, 7, 11. Ibid., 11; Grimm’s essay begins with the observation that “a process of re-politicisation of religion is taking place that goes along with a corresponding process of de-secularisation of society.” His primary concern is to defend European Christian-cum-secular states’ prerogative to: (i) the monopoly of legitimate force in enforcing laws that are “deemed to be consented to by all citizens in so far as they are good for all citizens in a this-worldly sense: security and welfare” (ibid., 5); (ii) ensure that religious beliefs are privatized and that religious freedom is protected by law as an individual right to pertain or not in particular religious communities provided they are “regarded as compatible with the secular state [namely] as long as they do not claim absolute validity for society as a whole and stay within the framework of public order” (ibid., 5); (iii) determine “whether a certain belief is religious in nature, and whether a group is truly a religious community” (ibid., 7). These prerogatives are threatened in European states that are at the receiving end of immigration by “members of non-Christian beliefs” (ibid., 4) which, unlike Christian denominations, “have not

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That argument of course requires us to take for granted the very thing we objected to from the outset: the parthenogenesis of modern universality. On the other end of the divide Saba Mahmood denies the primacy of intellectual meaning; she detects an impoverished modern understanding of icons, images, and signs as inert objects of interpretation, rather than as actively constitutive of social reality and just as important as language in mediating social relations;39 obviously, to this concern, must be added the aforementioned suspicion that Western courts do not apply this view systematically across religious icons. “Icon” refers not simply to an image but to a cluster of meanings that “suggest a persona, an authoritative presence, or even a shared imagination. In this sense the power of an icon lies in its capacity to allow an individual (or a community) to find oneself in this world . . . a form of relationality that binds the subject to an object of the imaginary.”40 Thus, in explaining the controversy surrounding cartoons depicting the prophet Mohamed, Mahmood shows how the fact that the debate was framed only in terms of an opposition of the concepts of blasphemy and freedom of speech suggests a failure to understand the anger felt by many Muslims by attending to the “affective and embodied practices through which a subject comes to relate to a particular sign – a relation founded not only on representation but also . . . attachment and cohabitation.”41 Mahmood brilliantly traces this failure to Protestant textualism, and further back to Byzantine iconomachy, presupposing a “semiotic ideology in which signifiers are arbitrarily linked to concepts, their [conceptual] meaning open to peoples’ reading in accord with a particular code shared between them.” This ideology works to naturalize “a certain concept of a religious subject ensconced in a world of encoded meanings.”42 Siding with Mahmood, rather than Grimm, I claim that the conceptual disavowal of traditional authorities in modernity does not constitute a complete disinheritance of a tradition that still binds the secular to images as that of Christ on the cross; by declaring that this symbol is no longer religious – as

39

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undergone the process of historicisation and contextualisation of God’s revelation that permits Christian churches to adopt a more distant attitude vis-a`-vis sacred texts and the commandments from them” nor “distinguish between the errors and the erring person, such that it is difficult for them to bridge the incompatibility of religious dogmas by a spirit of tolerance vis-a`-vis believers of a different faith” (ibid., 4). In particular, many immigrants tend to come from “Islamic societies [that] remain unaffected by Western modernisation” and are “accustomed” to states where there is no clear distinction between religion, politics, and law. In representing Islamic societies in this way Grimm effectively agrees with modern Islamists that Islam provides a comprehensive legal and political code for the exercise of sovereign power. For a different, historically informed view, see Diamantides, “Shari’a,” and Diamantides, “Towards a Western-Islamic,” supra n. 20. Saba Mahmood, “Religious Reason and Secular Affect: An Incommensurable Divide?,” Critical Inquiry 35, no. 4 (2009): 840. Ibid., 74. 41 Ibid., 70. 42 Ibid., 70.

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opposed, say, to the hijab – the ECtHR judges made an arbitrary and circumstantial division so as to keep some forms of life in their allocated minority place inside a Europe that wishes to identify its way of life as the prototype household of humanity rather than being seen as yet another form of life inside the global society that its culture indeed made possible in the first place. Where one stands in connection to the primacy of conceptual or affective sense clearly impacts where one stands on the wider debate that informs the question of regulating the manifestation of religion and, thus, determines one’s allowed standing in the household. Contrast, for example, Kokkinakis v. Greece,43 (where the state’s blanket constitutional prohibition of proselytism was judged by the ECtHR as a disproportionate interference with religious freedom) with Dahlab v. Switzerland44 or SAS v. France45 where the Court found in favor of, respectively, a particular and general prohibition of merely wearing a particular type of headdress. It could be argued, on the basis of a comparison, that in Kokkinakis the Court ostensibly protects a universal freedom while in effect it protects a familiar Christian apostolic ritual of announcing the “Good News” (in this case by Jehovah’s Witnesses); after all, the Pentecostal miracle (which allowed the Good News to be conceptually equally intelligible to all, Jews and gentiles) is commemorated as a public holiday even in secular France! Could it be that, irrespective of disbelief in God, the mere fact of celebrating this holiday can be said to validate as an unquestionable social fact the Christian-cum-secular postulate that communication on the basis of conceptual logos alone – the business of the “confessing animal” to use Foucault’s term – suffices for the purposes of living together? If so, is not the different treatment of Kokkinakis from Dahlab a sign of religious affect and blind trust in a postulate that not everyone on the planet is predisposed to love? While the ECtHR would not likely decide Kokkinakis in the same manner had the applicant been speaking incomprehensibly (say, in tongues), its preference for confessional logocentrism is as blindly enthusiastic as that shown by those earlier European colonizers who addressed native Americans in Latin, reading to them a papal letter that announced the good news of their inclusion in the civilized world qua common household of humanity.46 Similarly, consider those Western-educated colonial subjects who replace local with Western law in order to gain membership in the civilized juridical humanity at the cost of retrospectively dehumanizing their precolonial lives.47

43 46

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[1993] ECHR 20. 44 [2001] ECHR 899. 45 [2014] ECHR 695. This, per Agamben, is one of the key features of the Christian theo-political imagination. See Agamben, Kingdom. See also supra “Introduction”; and supra n. 10. See Esmeir, Juridical Humanity.

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6.3.3 The second trouble with contemporary Article 9 is that by placing, as is the standard, the qualifying paragraph in a sequentially secondary position, it mystifies the situation of oikonomia by suggesting that the right is primarily about absolute freedom of private faith – its so-called “core” – whereas the state and its bureaucracy may only limit its noncore public manifestation. There is no doubt that this distinction is itself a secularized legacy of the Christian tradition and that the Christian prince was the first model of a sovereign who determines the meaning of religion, as well as of public safety, order, health, or morals and is to be prima facie entrusted to prescribe such limitations to the freedom to manifest one’s religion or beliefs as are necessary for the protection of the rights and freedoms of others. Among those who do not blindly abide the metaphysical thesis that the glory of an absolute is not diminished by its economic application, however, Article 9 jurisprudence and associated national legislation may actually reinforce the suspicion that the modern constitutional state, secular or multicultural, did not just replace but assumed the characteristics of the Catholic Church. Hence the importance of political theology; how the ever expanding literature on political theology impacts the debates on the ability of the sovereign state to function separately from religion (secularism) and/or in a way that allows all religions to flourish (multiculturalism) requires only a basic introduction here. As is well known, thanks primarily to E. Kantorowicz, the very concept of the corporate sovereign is unthinkable without taking into account the rise of natural theology, at the expense of the apophatic, in the Catholic Middle Ages and, specifically, those scholastics who made possible the idea of impersonal sovereignty by blending Roman (inheritance) law with Christian metaphysical postulates. For a less known example, P. Legendre shows how the Catholic Church inverted the Roman idea of the emperor as dominus mundi (owner of the world) into the elusive and impersonal notion of dominium mundi that served to justify the West’s civilizing mission.48 Certain post-secular philosophers also understand modern law, politics, and society as still structured through what can be termed “ontotheology,” seeing in modern sovereignty a secularized theological concept of power. Concerning such secular theology Schmitt famously speculated that all significant concepts of the state are secularized theological concepts and that “the metaphysical image that a definite epoch forges of the world has the same structure as a form of its political organization.”49 More recent scholarship discusses yet other aspects of the epigenetic relationship between medieval natural 48

49

Pierre Legendre, Dominium Mundi: L’Empire du Management (Paris: Mille et une nuits, 2007). Schmitt, Political Theology. See also supra n. 10.

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theology and the modern secular political and legal imagination; C. Thornhill shows how the modern state inherited from the Catholic Church the notion of continuous abstract political power, always-already legitimate, that can be stored in ecclesiastical/state institutions.50 It is, arguably, just such abstract power that gets enlisted by the institutional sovereign who, as C. Schmitt infamously argued, must be understood primarily not as having an absolute power to legislate, as Bodin declared, but rather a prerogative – not delegated – power to proclaim enemies and to introduce exceptions so as to bridge the inevitable gaps between norms and facts at times of crisis. Further, we can conceive of liberal lawyers’ attempts51 to counter Schmitt’s emphasis on unity and constituent power52 as well as leftists’ attempts to enlist his ideas in order to promote an agonistic democratic politics that advance pluralist rather than fascist agendas,53 taken together, as performatively iterating and certifying, first, a distinction between constituent/ constituted power inherited from the Catholic Middle Ages (insofar as it derived from the distinction between God’s potentia absoluta and potentia limitata),54 and, second, the need to economically manage the tension between them, ostensibly in line with ideas of legal or political right but, in effect, as arbitrarily as the circumstances require, in line with the secularized Christian postulate of oikonomia. Oikonomia, which in classical Greece had meant the apolitical administration of a household, had by then become the mysterious divine praxis undertaken for the salvation of humankind.55 Since, further, the theological idea of exception-as-oikonomia coalesced with, respectively, the Greek and Roman legal concepts of epieikeia and aequitas, fairness and justice came to mean the anomic dispensation (dispensa) that relieves one from too rigid an application of the canons in imitation of divine compassion for humanity.56 In fact this marked the Byzantine political and legal system as dispensation from the law gradually replaced legislation as the main expression of sovereignty and Byzantine rulers 50

51

52 53

54 55

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Chris Thornhill, A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective (Cambridge: Cambridge University Press, 2011). These are well summarized in David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006), 35–53. Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996). E.g., Chantal Mouffe, Agonistics: Thinking the World Politically (New York: Verso, 2013); Chantal Mouffe, “Deliberative Democracy or Agonistic Pluralism?,” Social Research 66, no. 3 (Fall 1999): 745–58. See Diamantides, “Constitutional Theory.” See also supra n. 10. The ninth-century Eastern Patriarch Photius, for example, wrote: “Oikonomia means precisely the extraordinary and incomprehensible incarnation of the Logos . . . [I]t means the occasional restriction or the suspension of the . . . rigor of the laws and the introduction of extenuating circumstances, which ‘economizes’ . . . the command of law in view of the weakness of those who must receive it” (cited in Agamben, Kingdom). See also supra n. 10. Agamben, Kingdom, 49.

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found it equally expedient to appear as merciful Christians by annulling onerous contracts binding the meek and pardoning their corrupt officials. Now, without a doubt, the constitutional states the luckier among us live in do not avail of the eastern Christian apophatic theology that essentially endorses anomie as mystery (in ways that both sustain and bring down power). Our constitutional states follow a path marked by yet more innovations introduced by Catholicism’s late medieval natural theology whereby, in sum, oikonomia/exception is not a mysterious silence of the law as in the East,57 but a rationally justifiable suspension of the law – as in the Catholic idea of “just war” or permissible usury – introducing the known problematic that concerns us to date whenever we debate the (im)possibility of constitutional dictatorship that liberals struggle to affirm and C. Schmitt famously denied. In modern liberal democracies justifications of use of public power are essential and exceptions are ultimately traced to the need to preserve the circumstances in which the popular will can be expressed; for some see this means basically free elections while others, Habermasians for instance, present a wider list of conditions necessary for the endless communicative processes of consensus making that is, according to them, wider than elections. Moreover, the very suggestion that a legal or political sovereign is the third element required to structure the tension obtaining between the religious and the profane – conceived in a binary manner – has a history that belies its universalism. Arguably, the modern distinction between the secular state and religion mirrors rather than dissolves the Catholic tradition that, in turn, had transformed the ancient Christian idea of “two swords” or “two powers” (sacred and temporal) into a “political” principle. In any case scholars such as Saba Mahmood convincingly argue that the religious and the secular are not opposed ideologies but, rather, concepts that are “interdependent and necessarily linked in their mutual transformation and historical emergence,” which gained a “particular salience with the emergence of the modern state and attendant politics.”58 Talal Asad contrasts the distinctly modern opposition between the sacred and the profane, according to the modes of classification particular to developments in anthropology and sociology in the nineteenth century, which found its most famous exposition in Durkheim’s Elementary Forms of Religious Life, with the opposition between divine/ satanic transcendent powers and spiritual/temporal worldly institutions in medieval theology.59 The reclassification occurred, claims Asad, in the aftermath of Europe’s encounter with the non-European. It was through the 57 58 59

See Diamantides, “God’s Political Power.” See also supra n. 10. Mahmood, “Religious Reason,” 836. See also supra n. 39. Asad, Formations. See also supra n. 10.

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designation of non-European practices as fetish and taboo, allocated exclusively to “Nature Folk” or backward peoples, and the self-identification of enlightened Europe with profanation, namely the (exclusive) capacity to reorder society through forcible emancipation from error and despotism, that an essential separation was wrought between the sacred, now universally associated with mythic religion that Europe had left behind, and the profane, now associated with the history of the European Reformation and secularization that others – for example, Islam – must emulate. Asad further focuses on the fact that in structuring the right relation between the state and religion the secular sovereign as well as secular courts must first assume the paradoxical position of a secular body having to determine what counts as religious before deciding to what extent manifestations of religion can be legitimately limited in the name, once again, of preserving the separation of church and state, in order to show how contemporary secular liberal democracy retains structures and forms embedded in Christian dogma. These criticisms of the secular state extend to multicultural polities. Thus, the modern principle of state-guaranteed multiculturalism – as practiced, for example, in the less than secular United Kingdom – can be genealogically linked, via Hobbes, Locke, and so forth, to the Christian prince’s toleration of religious and other differences and, further back, to the medieval principle of “unity in diversity,” a product of the Catholic Church subsequently incorporated into the ideology of the Holy Roman Empire in their parallel efforts to proclaim their appellate jurisdiction over the fragmented European feudal space. The adaptation of the principles of the two powers and of unity in diversity into the principles of state/church separation and toleration, respectively, is explicable in the context of Bodin’s reformulation of sovereignty as legislative (rather than appellate) and the rise of social contract theories among bourgeois Europeans in need to bring to a close their Catholic–Protestant wars so as to proceed with the business of commercial peace. These adaptations were first made possible thanks to the efforts of natural theologians who confiscated God’s absolute yet self-limited power on behalf of man.60 Moreover, B. Bhandar61 eloquently argues that notwithstanding their differences as political ideologies, French-style secularism and multiculturalism are “deployed as techniques to govern difference,”62 which share a “common philosophical lineage” and a relationship to the collective

60 61

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See Diamantides, “Constitutional Theory.” See also supra n. 10. Brenna Bhandar, “The Ties That Bind: Multiculturalism and Secularism Reconsidered,” Journal of Law and Society 34, no. 3 (2009): 301–25. Ibid., 301.

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and individual subject of Enlightenment and post-Enlightenment thought, namely a unitary if plural sovereign political subjectivity. “[W]hile secularism ostensibly decouples culture from religion to produce a common political culture, and multiculturalism purports to accommodate a diverse range of cultural and religious practices, both fail to accommodate difference that stretches the bounds of citizen-subject defined according to Anglo-European norms of culture, which implicitly includes Christianity.”63 Bhandar’s insightful equation of secular and multicultural “techniques to govern difference” in the light of their common presupposition of a unitary if plural sovereign political subjectivity can be related to the claim that our legal and political imagination may be overdetermined by Christian postulates that simultaneously prep us for submitting to pastoralism, biopolitics, anomic administration, and for not knowing it as we are passionately glorifying any would-be god-like sovereign to replace the monarch we dispatched in the modern era. 6.4 CONCLUSION

6.4.1 I argued that controversies stemming from the distinction between modern, secular, and/or multicultural law and politics and traditional religion (and from disagreements over the correct way to structure their relationship) must be seen as part of a self-perpetuated, globalized Western paradigm of oikonomia, namely of – ultimately anomic – biopolitical administration of populations. In view of this, especially in a post-sovereign era in which neither transcendent nor immanent visions can prevail and the tension generated must be managed. In view of this, we need less grandiose attempts to resolve such issues – by way of referenda like the Swiss minarets kind, or by way of laws such as the French legislative ban on the burqa – and fewer attempts to glorify these decisions as in conformity with natural or positive law; we need, instead, to own up to the fact that – for all its many faults – the great advantage of the mode of social coexistence that occidental Christianism made possible is its – first Catholic, then Protestant – ethos to comprise dogmatism with flexibility and to economically and always provisionally synthesize law and critique, even law and revolution, passing one off for the other. From this perspective some of the transnational successors of sovereign states appear less as “usurpers” and more as suitable adaptations; the European Union is the perfect example of a transnational body that theoretically operates in the service of 63

Ibid., 301.

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lofty ideals, but in practice works at the level of micro-bureaucracy. Returning to the specific topic of this volume I argued, first, that it is high time to declare openly that simply by invoking a private conscientious will that is ready to confront state sovereignty – including in order to be allowed exceptions from universally applicable rules on the basis of the qualified right to thought, conscience, and religion – any individual or group is inserted into the oikonomik/managerial mode of social existence that has been long-term represented and originally invented by Christianism. Today, no one but perhaps an uncontacted tribe in some jungle can claim not to be working in, and effectively for, the perpetuation of the globalized Western paradigm whereby a sovereign is acclaimed as able to hierarchize between such binaries as democracy and rule of law, positive and natural law, immanence and transcendence, while the actual business of managing these differences falls to more mundane, disparate, and often anonymous forces; with that in mind an article such as Article 9 ECHR should be read and taught with less fanfare about the supposed power of law or politics to settle matters and more emphasis on law and politics as merely parts of a wider biopolitical nexus that becomes apparent when we scrutinize the jurisprudence that interprets this article’s qualifying second paragraph. Applicants should be left in no doubt that by relying on this article they are inadvertently validating neither only democracy nor only the rule of law but the Christian biopolitical notion of government by oikonomia, an integral, if usually under-highlighted, part of modern political theory and jurisprudence. On the other hand, there is sadly no disputing the fact that today’s Europe, in particular, shows signs of uneconomic inflexibility. This is the Europe of ethno-religious revival in Hungary or Poland, of Switzerland banning minarets by referendum, of France banning burqas by law, and even of super-liberal Sweden firing a well-integrated Muslim civil servant for refusing, on conscientious-religious grounds, to shake a woman’s hand while instead placing his right hand on his heart as a sign of respect.64 Some instances of xenophobia would be ridiculous if they were not terrifying – for example, French mayors banning “burqinis” on beaches that, not too long ago, had witnessed the obverse policing of swimwear; this is all the more terrifying because this particular clothing item, invented only a few years ago by an entrepreneurial Lebanese-Australian woman fashion designer, is a perfect example of a “glocal-isation,” a term first used in the Harvard Business Review in the late 1980s, popularized a decade later by sociologist Roland Robertson and generally taken to mean the simultaneity or the co-presence of both 64

www.rt.com/viral/352863-sweden-muslim-handshake-lawsuit/ (accessed August 2016).

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universalizing and particularizing tendencies. The burqini, thus, exemplifies perfectly how the non-Western subject can be peacefully inserted into the oikonomik/managerial mode of social existence pioneered by Christianism and, consequently, into the global space of Westernized/Westernizing world society that became accessible with decolonization; this is a space the key ideological feature of which is the simultaneous presence of binarily organized differences – for example, religion and the secular – under the ideological aegis of sovereignty; its main actual feature is the constant management of differences by a wide range of loosely interconnected actors – from burqini designers to security experts – and where commodification, for all its faults, requires cultural flexibility and commercial peace. Insofar as contemporary incidents of Western xenophobia and chauvinism suggest a desire to insulate the West’s particular ways of life from the necessary adaptations that come with the globalization that these very same particularities initially made possible, this amounts to a desire to revert to the particular place called “West” from which to oversee the management of the global space of Westernized/Westernizing world society. The violence of such chauvinism can and is met with even more violent forms on the part of those Westernized/ Westernizing non-Christian others it angers. All this is bad oikonomia, which, in view of the Westernization of the whole world, leads not to a genuine clash of civilizations but to an endo-civilizational civil war. Another side to my argument was that such bad management of religious claims may in part be due to the Enlightenment bias against affect and the chimera that purely intellectual or conceptual sense making suffices for living together. Indeed, this prejudice is common between those happy with the way the ECtHR has recently employed the margins of appreciation and the proportionality test in cases concerning Article 9, such as D. Grimm, and those who, on the contrary, disapprove of these decisions as having misapplied these tests in certain cases, and even those radical thinkers who focus on faith as an instrument of transformation.65 Because they accept the dominant Enlightenment paradigm whereby conceptual, universalizable meaning is the most fundamental, they all endorse the view that Christianity is no longer a real religion: it is a kind of “belonging without believing”;66 this is compatible with the earlier modern axioms of civic religion in which the postulate of God is replaceable with the consciously held counterfactual of sovereignty. 65 66

See infra Section 6.4.2. Jose Casanova, “Religion, European Secular Identities and European Integration,” in Timothy Byrnes and Peter Katzenstein, eds., Religion in an Expanding Europe (Cambridge: Cambridge University Press, 2006), 65 (quoting Grace Davie, Religion in Britain since 1945: Believing without Belonging [Oxford: Blackwell, 1994]).

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That may be true but, as Lacan argued, an idol gives pleasure to other gods that are arguably more essential than a factual idea – or, indeed, a counterfactual idea, or even a fiction that one knows to be a fiction. If this is correct, then our love of, blind trust in, and performative validation of communal idols and formulaic imaginations in which key postulates are encrypted are preconditions for language at the level of both private belief and reasoned discourse. From this alternative point of view, it is understandable that scholars of postcolonial subjectivities are suspicious of all claims that Christianity is no longer a religion (for example, in response to Badiou and Zˇizˇek’s turn to Paul’s emancipatory universal message, A. Abeysakara speaks of Euro-centrism in the guise of “Christianity Light”67). If I am right that the continuity, as opposed to rupture, between theological and secular imagination passes through the subject’s affective identification with metaphysical postulates – such as oikonomia – that are embedded in stuff like those crosses displayed in Italian schools that the Court in Lautsi declared religiously deactivated or passive symbols, then, alongside the conceptual universality of such key modern philosophies as Kantianism, Hegelianism, utilitarianism, and so forth, we must consider the possibility that subjectivities instituted in Christian/postChristian settings are more predisposed, compared to others, to have – and expect of others! – blind trust in the Western paradigm that casts oikonomia in the fictitious “glorious light” of lofty ideals including of sovereignty, political or legal, that supposedly shapes the world by reasoned decision, for instance, by hierarchizing the relation of public order to freedom of manifesting one’s private religious beliefs. On one hand, this affective predisposition is a privilege: in the current climate it allows the Christian/post-Christian subject to experience the current crises of sovereignty and legitimacy68 with a subjective sense of certainty that others lack. On the other, this privilege is 67

68

Ananda Abeysakara, The Politics of Post Secular Religion: Mourning Secular Futures (New York: Columbia University Press, 2008) 82; but see the whole paragraph “Humanism’s ‘New Beginning,’” 68–83. In constitutionalist terms: “We live today in an age simultaneously marked by the widespread adoption of the idea of constitutionalism, of ambiguity over its meaning, and about its continuing authority far from being an expression of limited government; constitutionalism is now to be viewed as an extremely powerful mode of legitimating extensive government. Where this form of constitutionalism positions itself on the ideology-utopia axis . . . has rarely been more indeterminate . . . notwithstanding the liberal gains . . . [T]he significance of the idea of the constitutional imagination has never exhibited a great degree of uncertainty.” Martin Loughlin, “The Constitutional Imagination,” Modern Law Review 78, no. 1 (2015): 25. Alternatively, “continued belief in political democracy as the realisation of human freedom depends upon literally averting our glance from powers immune to democratisation, powers that also give the lie to the autonomy and primacy of the political upon which so much of the history and present of democratic

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tantamount to blindness; a key feature of the modern crisis of legitimacy/ authority is that it at once increases the suspicion that all types of sovereignty, secular or neo-religious, are impotent before the planet-wide growth of pastoralism and purely administrative rationality (as Foucault taught us, less authority means more normalizing power) and increases the desire for a sovereign authority. Insofar as the controversies surrounding the proper relation of traditional and civic religions and, in particular, the proper exercise of the right to thought, conscience, and religion also reflect and feed the general crisis of authority, it is interesting to consider how the debates on religious conscience claims contribute to the perpetuation of a “loop”69 between the suspicion of the extant law/politics and the desire for new, improved, legislation and/or legal interpretation, or a new revolutionary shift by means of constituent power be it as part of class struggle or the so-called clash of civilizations. Meanwhile, from Israel to the United Kingdom and from the United States to Iraq the actual regulation of social life is left in the hands of a disparate body of loosely connected administrators and experts in various fields, lawyers, secular and ethno-religious politicians, lobbyists, economists, communication experts, and security advisers whose decisive interactions and clashes neither amount to a singular decision nor can be authorized by reference to law, politics, economy, or even traditional religion (how, for instance, religious Zionism can be seen as anything other than as a modern, very untraditional, form of Judaism70).

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theory has depended” (Wendy Brown, “We Are All Democrats Now,” in Giorgio Agamben, Alain Badiou, Daniel Bensaid, Wendy Brown, Jean-Luc Nancy, Jacques Ranciere, Kristin Ross, and Slavoj Zˇizˇek, eds., Democracy in What State? [New York: Columbia University Press, 2011], 54). “While weakening nation-state sovereigns yoke their fate and legitimacy to God, Capital . . . becomes God-like: almighty, limitless, and uncontrollable. In what should be the final and complete triumph of secularism, there is only theology” (Brown, Walled States, 66). In philosophical terms, “Today, there is no legitimate power left anywhere on earth . . . The integral juridification and economisation of the relations between humans and the confusion between what we can believe, hope, love, and that which we are required to do and not to do, to say and not to say, [convicts] all the powerful of the world themselves of illegitimacy,” translated from G. Agamben, “L’Eglise et le Royaume,” in Andre´ Vingt-Trois, ed., Saint-Paul: Juif et apoˆtre des nations (Paris: Paroles et Silence, 2009), 35. “Widespread suspicion undermines trust in the courts and the law, even while it further entrenches the law by spurring in ever more legislation. Every new set of reforms opens doors for . . . more suspicion, and in return, more legislation.” Hussein Al Agrama, Questioning Secularism: Islam, Sovereignty and the Rule of Law in Modern Egypt (Chicago: University of Chicago Press, 2012), 141. See Leora Batnitzky, How Judaism Became a Religion: An Introduction to Modern Jewish Thought (Princeton, NJ: Princeton University Press, 2013).

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6.4.2 One may balk at my suggestion that Christian fantasies may be still playing such an important ideological role; I am aware that the position I advance breaks with a consensus that spans the divide between defenders and critics of modern democracies. For the former, going against Arendt’s dismissal of elections as the best possible form of democracy, the revolution has succeeded – the republic is secular. Among critics of liberal regimes some endorse Arendt’s critique of the failure of secularization but, echoing the view that Christianity is a way out of religion, suggest that, paradoxically, “the persistence of [Christian] political theology could be a prelude to its end.”71 This is a strong position held, diversely but equally, by an increasing number of Western philosophers such as M. Gauchet,72 J. L. Nancy,73 S. Critchley,74 71

72

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Samuel Moyn, “Hannah Arendt on the Secular,” New German Critique 35:3, no. 105 (2008): 96. Marcel Gauchet, The Disenchantment of the World: A Political History of Religion (Princeton, NJ: Princeton University Press, 1999). Per Gauchet, all the great religions of the “Axial Age” (the term is German philosopher Karl Jasper’s), brought with them a threefold “dynamics of transcendence.” In sum, the sacred, previously dispersed and coextensive with something like “nature,” concentrated in one omnipotent creator God who still sustains the world yet is increasingly withdrawn from it; subsequently God’s transcendence led man to abandon magical explanations for the phenomena that surrounded him; third, because the new God was to be the God of all men, the idea of human universality under one God and his human vicar both legitimated and spread with political empires. These dynamics of transcendence result in a fascinating paradox: the more powerful God becomes, the “more man is free” in the sense that man begins to reason for himself, to question the divine law, to embrace his freedom. Jean-Luc Nancy, “Deconstruction of Monotheism,” Postcolonial Studies: Culture, Politics, Economy 6, no. 1 (2003): 37–46. Philosopher J. L. Nancy writes of the “auto-deconstructive” tendencies of monotheisms to marginalize their myths in favor of narratives that relate directly to the needs and interests of man, including in relation to law and politics. Simon Critchley’s central thesis in The Faith of the Faithless is that modernity has so far been a religious drive not to see the religious dimension in politics (“secularism, which denies the truth of religion, is a religious myth” [Critchley, Faith, 111]). “Modernity” is nothing but “a series of metamorphoses of sacralization” (Critchley, Faith, 10). This means that any modern political form makes use of something sacral, of a belief in divine sovereignty – be it popular (“God the monarch becomes God the people” [Critchley, Faith, 55]) or anonymous (e.g., “the markets are not satisfied”) – in its rituals (such as parliamentary elections), in the constitution (Critchley, Faith, 107), in the “magic” (Critchley, Faith, 85) of political representation (Critchley, Faith, 88), etc. All this leads Critchley to claim that “in the realm of politics, law and religion there are only fictions” (Critchley, Faith, 91); “Is politics practicable without religion? . . . I do not think so” (Critchley, Faith, 24). He proceeds to argue for the emancipatory potential of faith in “a fiction that we know to be a fiction, yet one in which we still believe” (Critchley, Faith, 10; emphasis added). Against this background, Critchley argues that we need a new conception of the stuff that makes political communities stick together, a new conception of the fictitious “religious dimension, which is found in the life of every

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A. Badiou,75 and S. Zˇizˇek. From this point of view the contemporary phenomenon of individuals and groups in modern secular constitutional democracies turning to the law to claim exceptions from civic duties on grounds of religious conscience, in principle, represents a possible setback. The liberal position is that if religious views are not yet absent from public communicative reason – as an (earlier) Habermas once advocated – their public manifestation must be delimited through the collaborative labor of the national sovereign and the courts. Radical critics like Critchley or Badiou, on the other hand, insist that we need to continuously reform our religious faith so that its energies can be channeled toward re-politicization. The common devil with these different positions lies, first, in the fact that despite their universalism, their understanding of religion as conceptual faith uncritically reflects the specific historical transformations of European Christendom, above all other religious groups, culminating with Protestantism and the view of religion by German Idealism. Second, the problem lies in the fact that their openended, eschatological character coincides, and performatively certifies, the particular and much criticized arbitrary and biased handling of Christianism and other religions by the ECHR as discussed earlier. It is preferable to acknowledge this anomie as integral to the economic political theology that still characterizes the Western approach to law and politics and, on this basis, assess each law passed and each judicial decision in the field of religious difference with an eye to whether it helps the integration of all people in the increasingly biopolitical mode of social existence that Christianism pioneered or, instead, it impedes it in the name of reverting to the model of absolute legal or political sovereignty. My approach does not foreclose in toto the conceptual critique of biopolitics, but it does point out the possibility that ideologies and fantasies can continue to have a hold on the subject even after their deconstruction.

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people” (Critchley, Faith, 68). This is why the main “concern of [my] book is with the nature of faith” (Critchley, Faith, 161). Its nature is fictitious but linked to a “rigorous activity of a subject” (Critchley, Faith, 18). These two – theory of political fictions (faith) and subjective ethical activism – are the elements of an “ethical neoanarchism” (Critchley, Faith, 114). Radical neo-Hegelians reject much of Arendt’s critique – the social question for them is the political question – but, mindful of the Lacanian idea that man has a “passion not to know,” acknowledge the political usefulness of fiction, for example, in radicalizing Christian liberation theologies. Hence the turn toward Paulian theology, minus its liturgical “packaging” and institutional history (Alain Badiou, Saint Paul: The Foundation of Universalism [Stanford, CA: Stanford University Press, 2003] or his Philosophy for Militants [New York: Verso Books, 2012]).

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Humans develop social relations on the basis of trust based on sense they must invent and which, for the most part of human history, included diverse, unverifiable, unquestionable postulates, which correspond to no material significata but can be validated as true social facts in a performative sense.76 Thus, even though by today many people do not believe in the conceptual truth of such postulates as, for instance, Christian Trinitarianism, writers on matters of law and political theology as diverse as Harold Berman77 and Giorgio Agamben have fruitfully examined the ideological and affective basis on which this fundamental postulate of European Christian – and, in Agamben’s case, of its attendant theological notion of oikonomia – still functions to the effect that the Western and Westernized subject can, by validating in deed these postulates, reproduce a certain sense of living together that allow it to trust those who also do. If in a religious sense this means believing in such postulates or at least behaving piously before ancient images or in liturgies where these postulates are embedded, in a secular sense this can also mean believing in the power of sovereignty or at least acting in ways that iterate its political theology by acting piously before a constitutional text, or the ECHR, or alternatively Das Kapital and participating in such constitutional rituals as elections or demonstrations with a raised fist. This persistence of political theology can explain, for instance, the frustration of Hannah Arendt – renowned for arguing, in The Human Condition, that “the victory of the Christian faith in the ancient world . . . could not but be disastrous for the esteem and the dignity of politics”78 – with the constitutional settlement that followed the American Revolution.79 In their attempts to give new esteem and dignity to popular political sovereignty after the death of God and the toppling of monarchy by divine right, however, legalists, natural lawyers, Marxists, and Arendt equally took for granted the narrative of modernity’s historical rupture with traditional faith (though it inherited the innocuous paraphernalia of this faith – medieval acculturation); this narrative of parthenogenesis of a modernity that bravely dared to look back to antiquity for inspiration, however, is much too close to the fiction that an incarnated God remains glorious even as his tortured body hangs dead on a cross. It is, arguably, on the 76 78

79

Rapaport, Ritual. See also supra n. 36. 77 Berman, “Law and Logos.” Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 314 (emphasis added.) Cf. Hannah Arendt, On Revolution (Harmondsworth: Penguin, 1973), 159–60. Her depiction of the pre-constitutional American colonists’ covenants as having a purely worldly founding and merely incidentally and retroactively religious (by means of the unfortunate triumph of the metaphysics of legalism and natural rights that collapsed politics into nature) was described by one of her sympathetic contemporary commentators as bearing “little relation to historical fact” (Moyn, “Hannah Arendt,” 90). See also supra n. 71.

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basis of love for this secularized fiction of undying dignity that both supporters and critics of representative government routinely dismiss the insights of political theology. Thus, while critical legal history and “societal constitutionalism”80 point to a disenchanting mode of historical analysis, stripping law of its metaphysical dignity, unity, and coherence by exposing it as the outcome of mundane and profane processes and interests, critical legal studies continue to exemplify the continuing inability of modern constitutional imagination to seduce the subject without making allusions to precisely such metaphysically postulated unity, coherence, and even glory of law or politics. In fact, even in situations where national sovereignty is clearly hollow (for example, in crisis-stricken Greece and in Brexit Britain) people are seduced by legal and purely political visions of restoring it. As a result, any discussion of the re-enchantment of law81 should extend beyond those who make religious claims from exceptions from universally applicable rules to include those who, in making and interpreting such rules and dealing with these claims, overemphasize with words political or legal rationality and underplay the administrative/managerial rationality informing their deeds.

80 81

E.g., Teubner, Constitutional Fragments. See also supra n. 28. Yishai Blank, “The Re-enchantment of Law,” Cornell Law Review 96 (2011).

par t i i

conscientious objection or culture wars? The Changing Discourse of Religious Liberty Claims

7 Conscience Wars in Transnational Perspective Religious Liberty, Third-Party Harm, and Pluralism Douglas NeJaime and Reva Siegel

These days, conservatives seem to own “conscience.”1 In the United States, conscience and religious liberty have emerged as the dominant objections to same-sex marriage, as both the majority and dissenting opinions in Obergefell v. Hodges, the US Supreme Court’s marriage equality decision, recognized.2 In a high-profile conflict after Obergefell, Kim Davis, the clerk for Rowan County, Kentucky, was jailed for refusing to comply with the Court’s decision and subsequent court orders requiring her to perform her governmental duties. Davis claimed that her conscience prevented her from issuing marriage licenses to same-sex couples or allowing others in her office to do so.3 1

2

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This chapter builds on our work in “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (May 2015): 2516–91, and “Conscience and the Culture Wars,” American Prospect 26, no. 2 (Summer 2015): 70–73, http://prospect.org/ article/ conscience-and-culture wars. We benefited from presenting this chapter at “The Conscience Wars” conference at Cardozo Law School. For helpful comments, the authors thank Bruce Ackerman, Eva Brems, Marie Mercat Bruns, Rebecca Cook, Stephen Gardbaum, Vicki Jackson, Adriana Lamackova´, Susanna Mancini, Richard Moon, Judith Resnik, Darren Rosenblum, Michel Rosenfeld, and Julie Suk. For excellent research assistance, the authors thank Violeta Canaves, Jordan Laris Cohen, Hilary Ledwell, Zachary Manfredi, and Seth Williams. See Obergefell v. Hodges, 135 S.Ct. 2584, 2602, 2607 (2015) (majority); ibid., at 2625–26 (Roberts, C. J., dissenting); ibid., at 2638–39 (Thomas, J., dissenting). Opponents greeted the Obergefell decision with claims for religious exemptions. See Erik Eckholm, “Conservative Lawmakers and Faith Groups Seek Exemptions after Same-Sex Ruling,” New York Times, June 26, 2015, www.nytimes.com/2015/06/27/us/conservative-lawmakersand-faith-groups-seek-exemptions-after-same-sex-ruling.html. See Appellant Kim Davis’s Emergency Motion for Immediate Consideration and Motion for Injunction Pending Appeal at 7–8, Miller v. Davis, No. 15–5961 (6th Cir. September 7, 2015) (claiming that her religious beliefs make her unable “to issue [marriage] licenses” to same-sex couples or to provide “the ‘authorization’ to marry [even on licenses she does not personally sign]”).

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In the commercial sphere, business owners assert that being required to serve same-sex couples would make them complicit in relationships they deem sinful, and so they claim religious exemptions from antidiscrimination laws.4 As the Heritage Foundation’s Ryan Anderson argues, “[s]ome citizens may conclude that they cannot in good conscience participate in a same-sex ceremony, from priests and pastors to bakers and florists. The government should not force them to choose between their religious beliefs and their livelihood.”5 Conscience is also the rallying cry of opponents of abortion and contraception. Consider challenges to the health insurance required under the Affordable Care Act (ACA). In Burwell v. Hobby Lobby Stores, decided by the Supreme Court in 2014, employers challenged the ACA’s requirement that they include contraception in health insurance benefits on the ground that doing so would make them complicit in their employees’ use of drugs that the employers believe cause abortion.6 The Court ruled five to four in favor of the employers’ conscience objections.7 Religious objections continued, as religiously affiliated nonprofit organizations objected to the government’s framework for accommodating employers religiously opposed to providing employees with contraceptive insurance. These organizations rejected the government’s accommodation mechanism because they claimed that applying for an accommodation would make them complicit in arrangements that provide their employees with alternative coverage of contraception.8 In Europe, some with objections to abortion and same-sex marriage are also asserting conscience claims. In the health care context, these may involve objections to direct participation in the performance of abortion; or they may involve objections to complicity in the sins of another – for example, to laws

4

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6

7

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See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 137 S.Ct. 2290 (2017); see also Andrew T. Walker, “The Equality Act: Bad Policy That Poses Great Harms,” Public Discourse (July 24, 2015), www.thepublicdiscourse.com/2015/07/15381/. Ryan T. Anderson, “Indiana Protects Religious Liberty. Why That’s Good Policy,” Daily Signal (March 26, 2015), http://dailysignal.com/2015/03/26/indiana-protects-religious-libertywhy-thats-good-policy. 134 S.Ct. 2751 (2014). On efforts to stigmatize contraception as “the new abortion,” see Douglas NeJaime and Reva B. Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (May 2015): 2582, n. 273. Ibid. In Hobby Lobby, the religious liberty challenge to the health care act arose under the Religious Freedom Restoration Act (RFRA). 42 U.S.C. § 2000bb-1(a) to (b) (2012). Opponents of same-sex marriage sought to enact state laws that mirror the federal RFRA. See, e.g., Ind. Code § 34–13-9–0.7 to -11 (2016). See Zubik v. Burwell, 136 S.Ct. 1557 (2016).

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that oblige the objector to refer for abortion9 or to sell contraception.10 In Europe, as in the United States, conscience claims, including claims based on complicity, have begun to appear in the LGBT context.11 Consider a recent case from the United Kingdom. In Bull v. Hall, innkeepers refused to rent a double-bed room to a same-sex couple and sought an exemption from antidiscrimination law on the ground that they objected “to facilitat[ing] what they regard as sin.”12 Drawing on our earlier work on conscience claims emerging in the US culture wars13 and expanding our analysis beyond US borders, this chapter offers a political diagnosis of why these claims are appearing, and then suggests a principled legal response. We begin by showing how, in the United States, conscience claims became entangled in conflicts over laws that break with traditional sexual morality – such as laws protecting rights to contraception, abortion, and same-sex relationships. When opponents of such laws have been unable to block them entirely, they have invoked claims of religious liberty and shifted from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that depart from traditional morality; in this way, they can appeal to pluralism and nondiscrimination to justify

9

10

11

12 13

See European Parliamentary Association, “Women’s Access to Lawful Medical Care: The Problem of Unregulated Use of Conscientious Objection,” Doc. No. 12347 (July 20, 2010): 11, http://semantic-pace.net/tools/pdf.aspx?doc=aHR0cDovL2Fzc2VtYmx5LmNvZS5p bnQvbncveG1sL1hSZWYvWDJILURXLWV4dHIuYXNwP2ZpbGVpZD0xMjUwNiZsYW5 nPUVO&xsl=aHR0cDovL3NlbWFudGljcGFjZS5uZXQvWHNsdC9QZGYvWFJlZi1XR C1BVC1YTUwyUERGLnhzbA==&xsltparams=ZmlsZWlkPTEyNTA2 (discussing the need for national requirements that objecting providers timely refer patients, given that objecting providers often refuse to provide referrals). See Sentencia Tribunal Constitucional (S.T.C.), July 7, 2015 (S.T.C., No. 52) (Spain), available at www.tribunalconstitucional.es/es/salaPrensa/Documents/NP_2015_052/2012-00412 STC.pdf. The relevant law was Ley de Farmacia de Andalucı´a art. 75 (B.O.E. 2007, 45); El Estatuto de Autonomı´a para Andalucı´a art. 2 (B.O.C.M. 2001, 171). See Eweida and Others v. United Kingdom, Nos. 48420/10, 59842/10, 51671/10, 46516/10, para. 26, p. 8, para. 34, p. 11 (Eur. Ct. H. R. 2013); Lee v. McArthur & Others, [2016] NICA 39. Bull v. Hall, [2013] UKSC 73, [34]. NeJaime and Siegel, “Conscience Wars,” 2516. For our most recent work, see Douglas NeJaime and Reva Siegel, “Religious Accommodation, and Its Limits, in a Pluralist Society,” in Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground (Cambridge: Cambridge University Press, forthcoming 2018), https://papers.ssrn.com/sol3/papers .cfm?abstract_id=3078002. For our recent writing generally available online, see Douglas NeJaime and Reva Siegel, “Trump and Pence Invoke Conscience to Block Contraception, Contrary to Our Religious Liberty Tradition,” Take Care (June 4, 2017), https:// takecareblog.com/blog/trump-and-pence-invoke-conscience-to-block-contraception-contrary-toour-religious-liberty-tradition.

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limiting the recently recognized rights of other citizens. We show how similar developments have also begun to appear in Europe. The religious liberty claims we examine seek to exempt a person or institution from a legal obligation to another citizen – for instance, from duties imposed by health care or antidiscrimination law. For this reason, conscience claims asserted in conflicts over reproductive rights and LGBT equality are prone to inflict targeted harms on other citizens and so raise concerns less commonly presented by traditional claims for religious exemption – by, for example, the claim to engage in ritual observance. When a person of faith seeks an exemption from legal duties to another citizen in the belief that the citizen the law protects is sinning, granting the religious exemption can inflict material and dignitary harms on those who do not share the claimant’s beliefs. As we demonstrate, concerns about the third-party harms of accommodation are especially acute in culture war contexts, when religious exemption claims are employed, not to protect the practice of minority faiths that may have been overlooked by lawmakers, but instead to extend conflict over matters in society-wide contest. The accommodation of these claims may become a vehicle for opposing emergent legal orders and for limiting the newly recognized rights of those they protect. In such contexts, religious objectors often seek exemptions from laws that they assert make them complicit in the sins of others. We recognize that “complicity-based conscience claims” of this kind are bona fide faith claims,14 yet we call for special scrutiny of these claims because of their distinctive capacity to harm other citizens. Indeed, we show how the accommodation of complicity-based conscience claims can undermine efforts to construct a legal regime that mediates the impact of accommodation on third parties. Religious accommodation is conventionally thought to promote pluralism. But the comparative analysis of religious accommodation regimes we offer in this chapter illustrates that accommodation can serve different ends, not all of which are pluralist. Examining accommodation across borders, we argue that an accommodation regime’s pluralism is measured, not only by its treatment of objectors, but also by its attention to protecting other citizens who do not share the objectors’ beliefs. Exemption regimes that (1) accommodate objections to direct and indirect participation in actions of other citizens who do not share the objectors’ beliefs, and (2) exhibit indifference to the impact of widespread exemptions on other citizens, do not promote pluralism; they sanction and promote the objectors’ commitments. Only when conscience 14

See infra note 68.

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exemption regimes are designed to mediate the impact of accommodation on third parties do they provide for the welfare of a normatively heterogeneous citizenry and serve genuinely pluralist ends.15 The remainder of this chapter proceeds in four sections. Section 7.1 explains how claims for religious accommodation, including complicity-based conscience claims, have become entangled in culture war conflicts. Section 7.2 shows how accommodating these claims can impose significant burdens on other citizens. The remainder of our chapter argues for limiting religious accommodation in those cases where accommodation would inflict material or dignitary harm on third parties. Section 7.3 demonstrates that US law on religious liberty, as well as legislation and case law in Europe, restricts religious accommodation where accommodation would harm others. Section 7.4 concludes by considering the relationship between religious accommodation and pluralism. 7.1 HOW CONSCIENCE CLAIMS HAVE BECOME ENTANGLED IN THE CULTURE WARS

Conscience has been drawn into the culture wars. But why, and how? What follows is the story of the spread and evolution of conscience claims in recent decades, in the United States and in Europe. 7.1.1 Conscience and Health Care In the wake of Roe v. Wade’s recognition of a constitutional right to abortion,16 newly enacted federal and state laws authorized doctors with religious or moral objections to refuse to perform abortions or sterilizations.17 Health care refusal laws exempt providers from duties of patient care that emerge 15

16 17

In this chapter, we do not weigh in on whether exemption regimes should privilege religious interests only or accommodate conscience generally. For an argument in favor of general conscience protections in the abortion context, including both for those who oppose and those who support provision of abortion, see Bernard M. Dickens, “The Right to Conscience,” in Rebecca J. Cook, Joanna M. Erdman, and Bernard M. Dickens, eds., Abortion Law in Transnational Perspective (Philadelphia: University of Pennsylvania Press, 2014), 210–38; see also Rebecca J. Cook and Bernard M. Dickens, “Reproductive Health and the Law,” in Pamela R. Ferguson and Graeme T. Laurie, eds., Inspiring a Medico-Legal Revolution: Essays in Honour of Sheila McLean (Burlington, VT: Ashgate, 2015), 3–23, at 19. 410 U.S. 113 (1973). The original federal exemption law, on which many of the state laws were modeled, is the Church Amendment, passed as part of the Health Programs Extension Act of 1973, Pub. L. No. 93-45, § 401(b)-(c), 87 Stat. 91, 95. By the end of 1974, twenty-eight states had laws allowing physicians to refuse to perform abortions, and twenty-seven states had laws that

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from various bodies of law – not only the constitutional principles announced in Roe but also obligations imposed as a matter of professional licensing, tort liability, common law, and statutory law.18 The US Congress responded to Roe by providing conscience protections to medical professionals for the direct performance of objected-to services. After failing to overturn Roe in 1992,19 opponents set out to limit the decision’s reach by enacting incremental restrictions on abortion access. In this period, opponents of abortion enacted a new and more expansive set of health care refusal laws. The new health care refusal laws use concepts of complicity to authorize conscience objections, not only by the doctors and nurses directly involved in the objected-to procedure, but also by others indirectly involved who object on grounds of conscience to being made complicit in the procedure.20 Mississippi, for example, allows health care providers to assert conscience objections to providing “any phase of patient medical care, treatment or procedure, including, but not limited to, the following: patient referral, counseling, therapy, testing, diagnosis or prognosis, research, instruction, prescribing, dispensing or administering any device, drug, or medication, surgery, or any other care or treatment rendered by health-care providers or health-care institutions.”21 The Mississippi law also defines “health-care provider” as expansively as possible.22 Concepts of complicity are used to authorize many more persons in health care services to object to the provision of care. States like Mississippi could accommodate the conscience objections of health care providers while ensuring alternative care for patients; but, crucially, in the United States, health care refusal laws at the federal and state levels are rarely written to require institutions to provide alternative care. Many laws authorizing health care refusals impose no duty on the refusing

18 19 20

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applied to hospitals. See “A Review of State Abortion Laws Enacted since January 1973,” Family Planning/Population Reporter 3, no. 2 (1974): 88–94; Sara Dubow, “‘A Constitutional Right Rendered Utterly Meaningless’: Religious Exemptions and Reproductive Politics, 1973–2014,” Journal of Policy History 27, no. 1 (2015): 1–35, at 25, n. 3. On efforts to pass health care refusal laws in the years before Roe, see Kathleen J. Frydl, “Taking Liberties with Religious Liberty,” Washington Monthly (January/February 2016): 21–28, at 21. See NeJaime and Siegel, “Conscience Wars,” 2534–35, and notes 72–76. Planned Parenthood of SE Pa. v. Casey, 505 U.S. 833 (1992). For a more general discussion of the trajectory and expansion of exemption legislation after the Supreme Court’s 1992 decision reaffirming Roe, see NeJaime and Siegel, “Conscience Wars,” 2538–39. Notably, health care refusal laws also expanded in terms of subject matter, from abortion and sterilization to contraception. See, e.g., Act of Mar. 13, 1998, ch. 226, 1998 S.D. Sess. Laws 292, 293 (codified as amended at S.D. Codified Laws § 36-11-70 [2015]). Miss. Code Ann. § 41-107-3(a) (West 2016). Miss. Code Ann. § 41-107-3(b) (West 2016).

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provider to ensure that patients turned away receive care.23 Laws like Mississippi’s expressly authorize objecting providers to refuse to provide the patients they turn away counseling or referrals that might help them find alternative care.24 Importantly, these refusal laws fail to acknowledge obligations of care that flow from other sources of law. The new, expansive, complicity-based health care refusal laws alter the provision of health care services. In the case we are examining, health care refusal laws function to restrict access to abortion. It is perhaps not surprising that laws such as Mississippi’s are based on model statutes promulgated by the antiabortion group Americans United for Life.25 While an early law like the Church Amendment was adopted with bipartisan support and can facilitate a pluralist regime in which health care providers and patients with different moral outlooks may coexist, later laws, of which Mississippi is an extreme example, protect conscientious objection on a different model. Such laws provide conscience exemptions without providing for the needs of patients with different beliefs and may be understood as part of an effort to build a legal order that would restrict access to abortion services for all. 7.1.2 Preservation through Transformation What forces have contributed to these changes in the form of conscience legislation in the United States? We commonly understand religious exemptions as protecting members of minority faith traditions not considered by lawmakers passing laws of general application that burden religious exercise. But in the case we have just considered, those seeking religious exemptions are engaged in political struggle over laws of general application. Unable to reverse Roe and reinstate

23

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See, e.g., Mich. Comp. Laws Ann. § 333.20181 (West 2016); Miss. Code Ann. §§ 41-107-3, 41107-5 (West 2016). See Miss. Code Ann. § 41-107-3(a) (West 2016); Ark. Code Ann. § 20-16-304 (West 2015); Colo. Rev. Stat. Ann. § 25-6-102 (West 2015); Fla. Stat. Ann. § 381.0051 (West 2016); 745 Ill. Comp. Stat. § 70/4 (2014). The federal government has enacted legislation allowing providers to refuse to refer patients to alternative care. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104–134, § 245(a), 110 Stat. 1321, 1321–245 (codified as amended at 42 U.S.C. § 238n(a) [2012]). See Americans United for Life, “Mississippi 2014 Report Card,” www.aul.org/states/missis sippi. For the model act on which the Mississippi law and other state legislation is based, see Americans United for Life, “Healthcare Freedom of Conscience Act: Model Legislation and Policy Guide for the 2014 Legislative Year” (2013), www.aul.org/downloads/2014-LegislativeGuides/ROC/Healthcare_Freedom_of_Conscience_Act_-_2014_LG.pdf.

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restrictions on abortion for all, abortion opponents continued to pursue this general goal in whatever ways constitutional law would allow, including the enactment of expansive conscience legislation that would simultaneously protect religious liberty and restrict and stigmatize the practice of abortion. The changing form of conscience exemptions reflects a dynamic that recurs in political conflicts. When advocates suffer defeat and their arguments lose legitimacy, they look for new rules and reasons that may help them attain similar ends – a dynamic we term “preservation through transformation.”26 Restricting access to abortion through expansive religious exemptions illustrates this dynamic. When unable to enforce traditional values through laws of general application, opponents of abortion have mobilized to seek expansive exemptions from laws departing from traditional morality. Without change in numbers or belief,27 they have shifted from speaking as a majority to speaking as a minority. In this way, claimants can advance traditional values by appeal to different and potentially more persuasive rules and reasons. Laws that restrict access to abortion through expansive conscience exemptions can be justified as vindicating secular values of pluralism and nondiscrimination.28 Opponents of same-sex marriage have looked to health care refusals as an inspiration for restraining another legal development they could not entirely block. The religious liberty argument for health care refusals offered a model for restricting equality rights for LGBT persons.29 As same-sex couples gained the right to marry and state and federal lawmakers pressed for antidiscrimination laws that include sexual orientation, opponents sought religious exemptions to relieve public and private actors from obligations to serve same-sex couples or to recognize their marriages. Before the Supreme Court’s marriage equality ruling in Obergefell, Ryan Anderson wrote in the National Review: “Whatever happens at the Court will cause less damage if we . . . highlight the importance of religious liberty. Even if the Court were to one day redefine marriage, governmental recognition of same-sex relationships as marriage 26

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Reva B. Siegel, “‘The Rule of Love’: Wife Beating as Prerogative and Privacy,” Yale Law Journal 105 (January 1996): 2117–207, at 2119; Reva Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” Stanford Law Review 49 (1997): 1111–48, at 1113. NeJaime and Siegel, “Conscience Wars,” 2553. 28 Ibid., 2553, 2589. See Matthew Kacsmaryk, “The Inequality Act: Weaponizing Same-Sex Marriage,” Public Discourse (September 4, 2015), www.thepublicdiscourse.com/2015/09/15612/ (in seeking to limit the implications of same-sex marriage and LGBT antidiscrimination law, looking to “twenty-first century” health care refusal laws as a model for limiting newly recognized rights “with more and more protections for conscientious objectors”). See also Lynn D. Wardle, “Religious Liberties: ‘Conscience Exemptions,’” Engage 14, no. 1 (February 2013), 77–80, www.fed-soc.org/library/doclib/20130628_ConscienceExemptions.pdf.

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need not and should not require any third party to recognize a same-sex relationship as a marriage.”30 The mobilized faithful – and those who court their votes – now argue for limiting equality protections for gays and lesbians in the language of antidiscrimination. They appeal to antidiscrimination values to oppose the spread of antidiscrimination laws. Positioning himself for a run for the White House, Jeb Bush warned that recognition of marriage equality “shifts the focus to people of conscience,” adding, “people that act on their conscience shouldn’t be discriminated against, for sure.”31 Mississippi again provides a striking example. After Obergefell, the state enacted the nation’s most expansive conscience legislation aimed at LGBT people – the Protecting Freedom of Conscience from Government Discrimination Act.32 For those engaging in refusals based on “religious beliefs or moral convictions . . . that . . . [m]arriage is or should be recognized as the union of one man and one woman,” the law protects them from “any discriminatory action.”33 As in the case of health care, conscience objections generally take two forms – the refusal of some state officials to officiate same-sex marriages,34 and complicity-based objections to antidiscrimination laws governing the sale of goods and services to same-sex couples.35 The Mississippi law exempts judges and magistrates with religious or moral objections to same-sex marriage “from performing or solemnizing lawful [same-sex] marriages.”36 And it authorizes conscience-based refusals by businesses and individuals who decline to provide “services, accommodations, facilities, goods, or privileges for a purpose related to the solemnization, formation, celebration, or recognition of any marriage.”37 Here, as in the case of abortion, the enactment of 30

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Ryan T. Anderson, “Marriage: Where Do We Go From Here?,” National Review (May 22, 2014), www.nationalreview.com/article/378538/marriage-where-do-we-go-here-ryan-t-anderson. Chris Johnson, “Jeb Bush Endorses Religious Discrimination Legislation,” Washington Blade (March 20, 2015), www.washingtonblade.com/2015/03/20/jeb-bush-endorses-religiousdiscrimination-legislation. Miss. H.B. No. 1523 (2016). 33 Ibid., §§ 2–3. See, e.g., Cheryl Wetzstein, “Gay Marriage Foes Dig In for Extended Culture War after Landmark Supreme Court Ruling,” Washington Times (December 21, 2015), www.washingtontimes.com/news/2015/dec/21/gay-marriage-foes-reject-supreme-court-rulingdig-/ (reporting on judges in Oregon and Alabama); John Seewer, “Ohio Judge Wants to Know if He Can Refuse Gay Weddings,” Associated Press (July 8, 2015), www.apnews.com/ 051ea1edf3b64745a345915bece79a4f. See, e.g., Richard Wolf, “Legal Battles Follow Gay-Marriage Ruling: Bakers,” USA Today, July 23, 2015, A8. Miss. H.B. No. 1523, at § 8. Ibid., § 5. Strikingly, Mississippi law expresses little concern for the interests of same-sex couples. State law does not prohibit discrimination on the basis of sexual orientation. And the conscience legislation addresses the third-party impact of refusals in only one context: it

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expansive conscience legislation simultaneously protects religious liberty and limits and stigmatizes same-sex marriage.38 7.1.3 Faith in Politics These developments are not spontaneous. Political leaders have encouraged the faithful to mobilize in support of religious exemptions to laws authorizing abortion and same-sex marriage. In recent years, conscience has become a rallying cry for a cross-denominational coalition opposing abortion and same-sex marriage and supporting religious liberty. For example, the “Manhattan Declaration” – a 2009 manifesto of Christian principles endorsed by Catholic and evangelical Protestant leaders as well as conservative political activists – is subtitled “A Call of Christian Conscience.”39 The declaration asks Christians to unite across denominational lines in support of three central principles: “the sanctity of human life, the dignity of marriage as a union of husband and wife, and the freedom of religion.”40 Alongside planks opposing abortion and same-sex marriage, the statement offers support for claims of conscientious refusal to be complicit in either one.41 This call to conscience is not just a statement of creed; it is the manifesto of a movement that calls upon its adherents to enact its principles in law.42 As Jeb Bush’s comments suggest, the cross-denominational coalition asserting conscience claims in health care and marriage has the backing of the

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provides that when a state official or employee refuses to perform, solemnize, license, or authorize a same-sex couple’s marriage, the government “shall take all necessary steps to ensure that the [performance, solemnization, authorization, or licensing] is not impeded or delayed.” Ibid., § 8. Richard Moon makes a similar observation about the political dynamics in Canada. See Richard Moon, “Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages,” Social Science Research Network (July 20, 2015): 1–26, at 6, http://papers.ssrn.com/sol3/papers.cfm?abstract_id= 2631570. “Manhattan Declaration: A Call of Christian Conscience” (November 2009): 1–9, http://ma nhattandeclaration.org/man_dec_resources/Manhattan_Declaration_full_text.pdf. Ibid., 2. For another example of such cross-denominational organizing, see the work of the Family Research Council (FRC). See NeJaime and Siegel, “Conscience Wars,” 2548–49. The Manhattan Declaration invokes Christian principles as it urges signers “to labor ceaselessly to preserve the legal definition of marriage as the union of one man and one woman” and “to roll back the license to kill that began with the abandonment of the unborn to abortion.” Manhattan Declaration, 3, 7; infra, note 39. Similarly, the FRC “believes that homosexual conduct is harmful” and “supports state and federal constitutional amendments” banning same-sex marriage. Family Research Council, “Homosexuality,” www.frc.org/homosexuality. It also seeks to “build a culture of life” and to ensure that Roe’s “grave error will be corrected.” Family Research Council, “Abortion,” www.frc.org/abortion (accessed April 7, 2016).

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Republican Party, which invokes conscience to decry a so-called war on religion.43 As the party’s 2012 platform asserted: “The most offensive instance of this war on religion has been the current Administration’s attempt to compel faith-related institutions, as well as believing individuals, to contravene their deeply held religious, moral, or ethical beliefs regarding health services, traditional marriage, or abortion.”44 While we are primarily reporting on developments in the United States, there are related developments in Europe. Some European actors are mobilizing around conscience.45 A progressive advocate with the European Parliamentary Forum on Population and Development46 describes the agenda of his opponents in Europe in terms that echo the Manhattan Declaration and the platform of the Republican National Committee: Their strategy, deployed equally at national and European levels, is threefold: 1) protection of life (from the moment of conception to natural death); 2) protection of the family (which this group defines as the “natural” heterosexual family with the father as its head); and 3) religious freedom (i.e., undermining equality legislation, often through conscience clauses, and then when these objections are denied, terming this discrimination).47 43

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See Republican National Committee, “Republican Platform 2012: We Believe in America” (2012), 10, 12, 14, www.presidency.ucsb.edu/papers_pdf/101961.pdf. Ibid., 12. For work on conservative transnational mobilization more generally, see Clifford Bob, The Global Right Wing and the Clash of World Politics (Cambridge: Cambridge University Press, 2012). This is “a network of members of parliaments from across Europe who are committed to protecting . . . sexual and reproductive health.” European Parliamentary Forum on Population & Development, “About EPF,” www.epfweb.org/node/114 (accessed April 7, 2016). Neil Datta, “Keeping It All in the Family,” Conscience: The News Journal of Catholic Opinion (June 2013): 22–27, at 23. For additional documentation of this movement in Europe, see Amir Hodzˇic´ and Natasˇa Bijelic´, “Neo-Conservative Threats to Sexual and Reproductive Health & Rights in the European Union,” Center for Education, Counseling and Research (2014): 1–30, at 11–13, www.cesi/_n/neo-conservative_threats_to_srhr_in_eu .pdf. (explaining how a European movement that includes organizations such as CitizenGO, HazteOir [Speak Up], European Dignity Watch, and the European Center for Law and Justice represents itself as protecting the values of “life, family and religious freedom”). Some activists frame their efforts against reproductive rights and LGBT equality as mobilization against “gender ideology.” See, e.g., Women of the World Foundation, “The EU Seeks to Enshrine Devastating Gender Ideology in Upcoming Vote,” CitizenGO (June 4, 2015), www.citizengo.org/en/24661-eu-seeks-enshrine-devastating-gender-ideologyupcoming-vote; European Dignity Watch, “Estrela Revisited: Noichl Report Calls for Aggressive Sex Ed Programmes, Abortion, and Medically-assisted Reproduction” (June 5, 2015), http://europeandignitywatch.org/day-to-day/detail/article/estrela-revisited-noichlreport-calls-for-aggressive-sex-ed-programmes-abortion-and-medically-ass.html. For work on the relationship between “gender ideology” and Catholic mobilization, see Mary

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As in the United States, some European groups seek to expand conscience protections. The Brussels-based European Dignity Watch,48 a watchdog for European institutions, has argued for extending conscience protection in health care to a wider universe of objectors.49 European Dignity Watch also argues that recognition of LGBT rights gives “special protection” to “a tiny minority” and in doing so, “puts freedom of speech, of conscience, of religion . . . at great risk.”50 Advocates act not only in European institutions but also in national governments.51 The assertion of conscience claims in culture war conflicts is a transnational phenomenon, and the organizations and activists encouraging these claims work across borders. American organizations have reached into Europe.52 The European Center for Law and Justice is the European offshoot of the

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Anne Case, “After Gender the Destruction of Man? The Vatican’s Nightmare Vision of the ‘Gender Agenda’ for Law,” Pace Law Review 31, no. 3 (2011): 802–17. European Dignity Watch, “About European Dignity Watch,” http://europeandignitywatch .org/about-us/about-us.html. In celebrating the Council of Europe’s adoption of a conscience-protective resolution, European Dignity Watch explained: The vote constitutes . . . an affirmation that “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.”

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European Dignity Watch, “Council of Europe for Freedom of Conscience!,” (October 13, 2010), http://europeandignitywatch.org/pl/codzienny/detail/ article/council-of-europe-for-freedom-of-conscience.html. European Dignity Watch, “A Turning Tide: What Is Really Going On at the European Parliament?” (February 5, 2014), www.europeandignitywatch.org/day-to-day/detail/article/ a-turning-tide-what-is-really-going-on-at-the-european-parliament.html (explaining opposition to LGBT-focused Lunacek report). See Datta, infra note 47. In some European countries, this “anti-gender” mobilization receives support from conservative political parties. For reporting on these developments in France, Germany, Hungary, Poland, and Slovakia, see Foundation for European Progressive Studies, Gender as Symbolic Glue: The Position and Role of Conservative and Far Right Parties in the Anti-Gender Mobilizations in Europe, ed. Eszter Kova´ts and Maari Po˜im (Foundation for European Progressive Studies, 2015). See Peter Montgomery, “New Report on Religious Right in Europe – And Its U.S. Backers,” Right Wing Watch (January 7, 2015), www.rightwingwatch.org/content/new-report-religiousright-europe-and-its-us-backers. See also Hodzˇic´ and Bijelic´, “Neo-Conservative Threats,” 16–17, supra note 47 (documenting similar influence of US groups and funders on European organizations and mobilization). American organizations are also active in other regions. See Cole Parke, “Natural Deception: Conned by the World Congress of Families,” Political Research Associates (January 21, 2015), www.politicalresearch.org/wp-content/uploa ds/2015/07/Parke_Winter2015.pdf (describing Illinois-based World Congress of Families’ work with networks of conservative advocates and leaders around the world to achieve law and policy that reflects what it describes as the “natural family”).

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American Center for Law and Justice, the organization founded by Pat Robertson.53 The Alliance Defending Freedom (ADF, formerly the Alliance Defense Fund) and the Becket Fund for Religious Liberty are both now active in Europe. And these US-based organizations are backing up their institutional affiliations with financial support.54 European actors also have reached into the United States.55 Board members of CitizenGO, the Spanish group that used new media to help defeat the Report on Sexual and Reproductive Health and Rights (often called the Estrela report) in the European Parliament in 2013,56 have joined with the leadership of the National Organization for Marriage (NOM), the United States’ leading anti-same-sex-marriage organization. In a 2014 meeting in Washington, DC, activists from approximately seventy countries began working to establish an International Organization for Marriage.57 Religious objections to same-sex relationships are now being asserted in litigation in Europe. Again, these conscience claims take two forms. For example, in Eweida and Others v. United Kingdom, a case that reached the European Court of Human Rights, a government official objected to direct performance – conducting same-sex civil partnerships – while another claimant objected to complicity in what he deemed sinful conduct – by providing 53

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Pat Robertson is a former Southern Baptist minister who now runs a religious ministry through the media as chief executive officer of the Christian Broadcasting Network. Christian Broadcasting Network, “The 700 Club: Pat Robertson,” www1.cbn.com/700club/pat-robertson. In 2012, the American Center for Law and Justice sent $1.1 million to its European branch, and the ADF spent more than $750,000 on European programs. Montgomery, “New Report on Religious Right in Europe,” supra note 52. European activists are coming to the United States to support social conservative groups and causes. In June 2014, Ignacio Arsuaga (board member of both CitizenGO and HazteOir) and Ludovine de La Roche`re (the president of anti-gay French group La Manif Pour Tous) publicly supported “The March for Marriage” in Washington, DC. See J. Lester Feder, “The Rise of Europe’s Religious Right,” BuzzFeed (July 28, 2014), www.buzzfeed.com/lester feder/the-rise-of-europes-religious-right. For the 2013 Estrela report, see “Report on Sexual and Reproductive Health and Rights,” European Parliament Doc. A7-0426/2013 (December 3, 2013), www.europarl.europa.eu/sides/ getDoc.do?type=REPORT&reference=A7-2013-0426&language=EN. CitizenGO has continued to organize against similar efforts. See Federation of Catholic Family Associations in Europe, “Stop Tarabella Relaunching Estrela! No EU Support to Abortion,” CitizenGO (January 14, 2016), www.citizengo.org/en/15605-protection-subsidiarity-and-no-eu-supportabortion. Feder, “The Rise of Europe’s Religious Right,” supra note 55. The 2016 World Congress of Families X, which focused on “the fight for the family . . . moving south and east,” was held in the Republic of Georgia and included as co-conveners the European groups CitizenGO and HazteOir as well as the US groups NOM, the ADF, and the Howard Center for Family, Religion & Society. See World Congress of Families, “World Congress of Families X,” http:// worldcongress.ge (accessed May 1, 2016).

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“psychosexual” therapy to same-sex couples.58 The European Center for Law and Justice intervened in support of the claimants.59 7.2 RESPONDING TO CULTURE WAR CONSCIENCE CLAIMS

How might those concerned about the proliferation of conscience claims in the culture wars respond? While some would deny persons of faith religious exemptions from laws of general application,60 we write as observers who respect conscience and are committed to reproductive rights and LGBT equality. We support recognition of religious exemptions from laws of general application where the exemptions do not (1) obstruct the achievement of major social goals or (2) inflict targeted material or dignitary harms on other citizens. We believe the accommodation of religious liberty claims should be structured to shield other citizens from material and dignitary harm; where accommodation would inflict significant harm, accommodation is not appropriate. We understand our position to affirm the role that a well-designed system of conscience exemptions can play in promoting pluralism in a heterogeneous society. 7.2.1 Religious Accommodation and Third-Party Harm Many religious liberty claims do not ask one group of citizens to bear the costs of another’s religious exercise. For instance, in Holt v. Hobbs, a case decided by the US Supreme Court in 2015, a prisoner sought a religious exemption from a rule prohibiting prisoners from wearing beards.61 The Court granted the accommodation, with Justice Ginsburg pointing out in her concurring opinion that “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”62

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Nos. 48420/10, 59842/10, 51671/10, 46516/10, paras. 26, 34 (Eur. Ct. H.R. 2013). See Observations Relating to Third Party Intervention, Ladele and McFarlane v. United Kingdom, Nos. 51671/10, 36516/10 (Eur. Ct. H.R. 2011). The US-based ADF also intervened in the case, in support of the other two religious claimants, who sought to wear religious dress or symbols at work. See Written Observations of Third Party Interveners, Eweida and Chapin v. United Kingdom, Nos. 48420/10, 59842/10 (E. Ct. H.R. 2011). For an analysis of the ways in which US-based nongovernmental organizations have begun to engage in transnational advocacy specifically through litigation featuring struggles over interpretations of human rights law, see Christopher McCrudden, “Transnational Culture Wars,” International Journal of Constitutional Law 13 (April 2015): 434–62. See, e.g., Brian Leiter, Why Tolerate Religion (Princeton, NJ: Princeton University Press, 2013); Employment Div. v. Smith, 494 U.S. 872 (1990). 135 S.Ct. 853 (2015). 62 Ibid., 867 (Ginsburg, J., concurring).

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The most significant constitutional free exercise cases in the United States involve claims like the one against the prison beard rule in Holt. In these cases, religious minorities sought exemptions based on unconventional beliefs or practices generally not considered by lawmakers when they adopted the challenged laws.63 The costs of accommodating their claims were minimal and widely shared. For example, if the government grants an exemption from drug laws to members of the Native American Church who use peyote in ritual ceremonies, the burden of the accommodation does not fall on an identified group of citizens.64 Unlike claims for religious exemption asserted by practitioners of minority faiths overlooked by lawmakers, claims for religious exemption from laws concerning health care and marriage grow out of wide-ranging societal conflict. Because large groups are encouraged to assert the claims, the claims may be numerous. Because the claims concern sexual norms in long-running political contest, the claims are fraught with legible and powerful social meaning. Accommodation of these conscience claims can impose material and dignitary harms on those the law has only recently come to protect. Material harms include restrictions on access to goods and services and information about them. Dignitary harms may be inflicted when refusals to serve or to interact create stigmatizing social meaning, a dynamic classically illustrated by regimes of racial segregation. Conscience-based refusals can obstruct access to services and to information about alternative providers, and they can inflict dignitary harm, as one citizen seeks an exemption from a legal duty to serve another on the ground that she believes her fellow citizen is sinning. For these reasons, we believe that conscience objections by those acting in professional roles should only be accommodated when the institution in which they are situated mitigates the material and dignitary effects on third parties. Accommodation regimes must be designed in such a way as to shield other citizens from the deprivations and denigrations that refusals can inflict. In settings where there is no feasible way of organizing a regime that can accomplish this, we are deeply skeptical of accommodation. 7.2.2 Third-Party Harm and the Problem of Complicity Concerns about third-party harm lead us to focus on a special kind of conscience claim – complicity-based conscience claims. Here we are not referring 63

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Smith, 494 U.S. at 874; Wisconsin v. Yoder, 406 U.S. 205, 209 (1972); Sherbert v. Verner, 374 U.S. 398, 409 (1963). Smith, 494 U.S. at 911–12, 916 (Blackmun, J., dissenting). See also Sherbert, 374 U.S. at 407 (noting that accommodation imposed at most generalized costs on the state unemployment system).

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to the conscience claims of those directly participating in the objected-to conduct – for example, those who refuse to perform abortions or to officiate at a marriage. Rather, we are focusing on the conscience objections of those who assert they are being asked indirectly to participate in objected-to conduct. They object to complying with laws requiring health care professionals to serve patients, or requiring businesses not to discriminate, on the grounds that compliance enables others to engage in sin or sanctions their wrongdoing. For example, the employers in Hobby Lobby objected to complying with provisions of the health care law that required the insurance benefits they provide their employees to cover contraception, reasoning that the law forced them to provide “insurance coverage for items that risk killing an embryo [and thereby] makes them complicit in abortion.”65 In Bull v. Hall, innkeepers in the United Kingdom objected to complying with antidiscrimination law by boarding a same-sex couple and thereby “facilitat[ing] what they regard as sin.”66 Similarly, business owners in the wedding industry engaged in baking cakes, providing flowers, or hosting events object to antidiscrimination obligations that they contend force them to “participate” in or “facilitate” same-sex weddings.67 Why draw special attention to complicity claims? Complicity claims are bona fide faith claims. For example, Catholic principles of “cooperation” and “scandal” warn the faithful against complicity in the sins of others.68 Evangelical Protestants also assert religious claims based 65

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Brief for Respondents at 9, Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014) (Nos. 13354, 13-356). Bull v. Hall, [2013] UKSC 37, [34]. See, e.g., Odgaard v. Iowa Civil Rights Comm’n, No. CV046451 (Iowa Dist. Ct. April 3, 2014); Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied, 134 S.Ct. 1787 (2014); Complaint, Arlene’s Flowers, Inc. v. Ferguson, No. 13-2-01898-2 (Wash. Super. Ct. August 1, 2013). See Bernard Ha¨ring, The Law of Christ: Moral Theology for Priests and Laity, Vol. 2, Special Moral Theology (Mercier Press, 1963), 2:494–517. For more contemporary texts, see Anthony Fisher, Catholic Bioethics for a New Millennium (Cambridge: Cambridge University Press, 2011), 69–98; Germain Grisez, The Way of the Lord Jesus, Vol. 3, Difficult Moral Questions (St. Paul’s/Alba House, 1997), 3:871–97. Principles of cooperation address the circumstances under which an individual or institution can be involved in others’ illicit actions. The Catechism of the Catholic Church explains: Sin is a personal act. Moreover, we have a responsibility for the sins committed by others when we cooperate in them: -

by participating directly and voluntarily in them; by ordering, advising, praising, or approving them; by not disclosing or not hindering them when we have an obligation to do so; by protecting evil-doers.

U.S. Catholic Church, Catechism of the Catholic Church (1995), pt. 3, ¶ 1868.

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on complicity.69 The structure of these religious exemption claims is relevant, not to the claims’ sincerity or religious significance, but instead to the claims’ potential to harm others. Because complicity claims single out other citizens as sinners, their accommodation has the potential to inflict material and dignitary harm on those the objector claims are sinning.70 Other aspects of the claims increase the likelihood of third-party harm. Complicity claims expand the universe of potential objectors, from those directly involved to those who consider themselves indirectly involved in the objected-to conduct. Where complicity claims become entangled in society-wide conflicts, the number of potential claimants multiplies. The universe of objectors is especially likely to expand in regions where majorities still oppose recently legalized conduct. Under these circumstances, barriers to access to goods and services may spread, and refusals may demean and stigmatize members of the community. Just as importantly, the logic of complicity offers objectors a ground on which to object to efforts to mediate the impact of their objection on third parties. For example, a health care provider with conscience objections to performing particular health care services (for example, abortion, sterilization, or assisted reproductive technologies) might refer patients to alternate providers. But if that objector raises a complicity-based objection to referring the patient, she will deprive the patient of information about alternate services. As we have seen, in the United States, some health care refusal laws expressly sanction these complicity-based objections by authorizing refusals to refer or counsel patients who are denied services.71 Unconstrained, complicity claims undermine the very logic of a system of religious accommodation. In the United States, Catholic and evangelical Protestant organizations even object to seeking an accommodation from laws requiring coverage of contraception in health insurance benefits, on the ground that registering their objection to complying with the law would make them complicit in employees receiving contraceptives through an alternate route. As the Catholic organization Little Sisters of the Poor argued in its petition to the Supreme Court: [T]hese organizations do not merely object to paying for or being the direct provider of contraceptive coverage; they object to facilitating, or being complicit in, access to contraceptives; to paving the way for contraceptives to be provided under their plans; and to directly transferring their own obligations onto others. Being forced to “comply” with the mandate via the regulatory 69 71

See NeJaime and Siegel, “Conscience Wars,” 2523 and n. 24, 25. See supra notes 21, 24.

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See ibid., 2566.

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“accommodation” is no more compatible with their religious beliefs than being forced to comply with that mandate directly.72

To this point, we have been largely focusing on the material harms that the accommodation of complicity-based conscience claims can inflict. But the accommodation of complicity claims can inflict dignitary harm as well. Complicity claims focus on citizens who do not share the objector’s beliefs. By their terms, complicity claims call out other citizens as sinners. In the culture war context in which complicity claims are arising, the social meaning of conscience objections is readily intelligible to those whose conduct is condemned.73 For example, a gay customer reported being told by a bakery owner, “[we] don’t do same-sex weddings because [we] are Christians and being gay is an abomination.”74 But even when not explicitly communicated, the status-based judgment entailed in the refusal is clear to the recipient.75 The conscientious objection demeans those who act lawfully but in ways that depart from traditional morality.76 The objection’s power to denigrate is amplified because it reiterates long-standing judgments of conventional morality. One might challenge complicity claims on the grounds that the claimant is not directly involved in prohibited religious conduct and therefore the burden on religious exercise is not substantial.77 But rather than ask government to distinguish among faith claims in this way,78 we invite government to focus on the question whether accommodating the claims will inflict harm on citizens who do not share the claimants’ convictions. If the government accommodates

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Petition for Writ of Certiorari at 10, Little Sisters of the Poor Home for the Aged v. Burwell, No. 15-105 (U.S. July 23, 2015). See NeJaime and Siegel, “Conscience Wars,” 2576–78, n. 246–58 and accompanying text. Rachel C., “Review for Sweet Cakes,” Yelp (January 17, 2013), www.yelp.com/user_details? userid=a4fuAn84fRddJTt7jJEo7g [http://perma.cc/7VBA-CY7P]. For instance, a lesbian couple turned away from a wedding venue reported feeling “horrible” and “shell-shocked”; indeed, one of the women reported that the refusal constituted a “kind of blow” to her coming-out process. Notice and Final Order at 10, McCarthy v. Liberty Ridge Farm, LLC, Nos. 10157952, 10157963 (N.Y. Div. Hum. Rts. July 2, 2014). See NeJaime and Siegel, “Conscience Wars,” 2574–79. See, e.g., Little Sisters of the Poor Home for the Aged v. Burwell, 794 F.3d 1151, 1178–82 (10th Cir. 2015); East Texas Baptist Univ. v. Burwell, 793 F.3d 449, 459 (5th Cir. 2015). Christopher McCrudden argues that courts should take a “cognitively internal” perspective, rather than an external viewpoint, when approaching religious issues. See Christopher McCrudden, “Catholicism, Human Rights and the Public Sphere,” International Journal of Public Theology 5, no. 3 (2011): 331–51, at 337–39; Christopher McCrudden, “Religion, Human Rights, Equality and the Public Sphere,” Ecclesiastical Law Journal 13 (January 2011): 26–38, at 30–32.

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the claims, it must structure the accommodation in ways that shield other citizens from the accommodation’s material and dignitary impact.79 7.3 ACCOMMODATION AND THIRD-PARTY HARM: THE LAW

Pluralism is often advanced as a justification for expansive religious accommodations. In ideal form, religious accommodations facilitate a pluralist social order in which those with different moral views can coexist. For instance, laws allowing abortion can include conscience provisions while also protecting patient access to services. But as we have seen, religious accommodations may function in practice to undermine pluralism by obstructing access to objected-to services for persons who do not share the religious claimants’ beliefs. For instance, in the United States, health care refusal laws sanction complicity-based conscience objections to counseling and referring patients, and thus deprive them of knowledge essential to identifying alternative providers. In our view, genuinely pluralist accommodation regimes are structured with attention to mediating their impact on citizens who do not share the claimants’ beliefs. As we now show, this pluralist approach to religious accommodation finds support in law. 7.3.1 US Law on Third-Party Harm US law features significant precedent for limiting faith claims when accommodation would inflict targeted harm on third parties. The underlying intuition seems to be that one group of citizens should not be singled out to bear significant costs of another citizen’s religious exercise. The Supreme Court’s decision in Employment Division v. Smith holds that a free-exercise challenge to a generally applicable law merits only minimal constitutional scrutiny, unless the law targets religion.80 In Smith’s wake, federal and state laws, including the federal Religious Freedom Restoration Act (RFRA), have been enacted to recognize religious liberty as a statutory civil right. Concern with third-party harm appears intermittently across both constitutional and statutory decisions as a limit on religious accommodation.81 79 80

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NeJaime and Siegel, “Conscience Wars,” 2521, 2579. 494 U.S. 872. The Court has been invited to address the scope of free exercise protections in Masterpiece Cakeshop. NeJaime and Siegel, “Conscience Wars,” 2529–33. Constitutional limitations have arisen as a matter of both free exercise law and Establishment Clause doctrine. See, e.g., United States v. Lee, 455 U.S. 252, 261 (1982) (in free exercise case, rejecting exemption claims that would

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The Court even addressed this concern in Hobby Lobby, which recognized exemption claims in some far-reaching ways. Yet, at the same time, the majority opinion recognized concerns about the potential third-party harm of accommodation, presumably to secure Justice Kennedy as a crucial fifth vote. Kennedy’s concurring opinion recognized the government’s compelling interest in protecting women’s health and expressed concern with the impact of the sought-after accommodation on female employees.82 These concerns structured the majority’s decision. Because the government could provide Hobby Lobby’s employees contraception without involving their employer, the majority granted the exemption on the assumption that “[t]he effect of the . . . accommodation on the women employed by Hobby Lobby . . . would be precisely zero.”83 The Hobby Lobby Court was incorrect in its assumption about the effect of accommodation,84 but its reasoning shows how third-party harm is an integral part of the RFRA inquiry, even though the statute itself does not expressly discuss third-party harm. What Hobby Lobby illustrates is that third-party harm matters in determining whether unobstructed enforcement of the law is, in the language of RFRA, the “least restrictive means” of furthering the government’s “compelling” ends.85 If the government’s interests are compelling and if

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“impose the employer’s religious faith on the employees”); Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 720 (1985) (invalidating accommodations that impose “significant burdens” on third parties). Statutory accommodation regimes, including the Religious Land Use and Institutionalized Persons Act (RLUIPA) and Title VII of the Civil Rights Act of 1964, also have been limited by a concern about third-party harm. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (explaining that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries”); Noesen v. Med. Staffing Network, Inc., 232 F. App’x 581, 584-85 (7th Cir. 2007), holding under Title VII that “an accommodation that requires other employees to assume a disproportionate workload (or divert them from their regular work) is an undue hardship as a matter of law”. Only in rare circumstances have courts accommodated religious liberty claims that have a targeted impact on third parties. For instance, the Court has explained that there is a ministerial exception that shields churches from the claims of employees, such as clergy, whose jobs involve substantial religious duties. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694, 702 (2012). See Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2787 (2014) (Kennedy, J., concurring). For analysis, see NeJaime and Siegel, “Conscience Wars,” 2530–31. 134 S.Ct. at 2760. For commentators questioning the accuracy of the Court’s premises, see Frederick Mark Gedicks, “One Cheer for Hobby Lobby: Improbable Alternatives, Truly Strict Scrutiny, and Third-Party Employee Burdens,” Harvard Journal of Law and Gender 38 (2015): 153–76, at 159–62; and Andrew Koppelman and Frederick Mark Gedicks, “Is Hobby Lobby Worse for Religious Liberty Than Smith?,” University of St. Thomas Journal of Law and Public Policy 9 (2015): 223–47. See NeJaime and Siegel, “Conscience Wars,” 2580–84.

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religious accommodation would impose material or dignitary harm on the individuals protected by the law or otherwise undermine the societal interests the law promotes, then unimpaired enforcement of the law is likely the least restrictive means of furthering the government’s compelling ends.86 Accordingly, our reading of RFRA shows that where the government is pursuing a compelling interest, an accommodation of religious exercise must minimize, to the extent feasible, adverse material and dignitary effects on third parties. In some cases, third-party harm is a sufficient reason to deny the accommodation. This approach furnishes a useful lens to understand Zubik v. Burwell, the case in which religiously affiliated nonprofit organizations challenged the government’s method of accommodating employers with religious objections to including contraception in the health insurance benefits they provide their employees (as US law requires).87 In Zubik, the organizations objected to the accommodation the government offered, asserting that even though it relieved them of the obligation to provide their employees with health insurance covering contraception, the accommodation made them complicit in their employees receiving contraceptive insurance coverage from alternative sources.88 (Once the organizations notified the government of their religious objections, their employees were to receive coverage through entities with which the religiously affiliated nonprofits may be in contractual relations.89) The objecting organizations rejected this accommodation and sought a complete exemption from the health insurance law. They contended that 86

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See ibid., 2580–81. (“An antidiscrimination law can illustrate. In enacting an antidiscrimination law, legislators seek to provide the citizens the law protects equal access to employment, housing, and public accommodations and to ensure that they are treated with equal respect; legislators also seek to promote the growth of a more integrated and less stratified society. If granting a religious accommodation would harm those protected by the antidiscrimination law or undermine societal values and goals the statute promotes, then unencumbered enforcement of the statute is the least restrictive means of achieving the government’s compelling ends. If, however, the government can accommodate the religious claimant in ways that do not impair pursuit of the government’s compelling interests in banning discrimination, then RFRA requires the accommodation.”) Many federal appellate courts rejected the religiously affiliated nonprofits’ claims by focusing instead on the “substantial burden” inquiry. See, e.g., Priests for Life v. U.S. Dep’t of Health & Human Servs., 772 F.3d 229 (D.C. Cir. 2014). See supra text accompanying note 72. See Brief for Petitioners at 51, Zubik v. Burwell, No. 15-35 (U.S. 2016) (objecting “to facilitating . . . provision [of contraceptive insurance coverage] by providing the notice and maintaining a contract with the coverage provider”); Brief for Petitioners at 44, East Texas Baptist Univ. v. Burwell, No. 15-35 (U.S. 2016). (“By [the government’s] own telling, petitioners’ execution and delivery of the requisite paperwork is ‘necessary’ to enable the provision of coverage through their own plan infrastructure.”)

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their employees should not receive coverage of contraception through their health insurance benefits as other employees do, but instead argued that employees should purchase their own insurance policies for contraception in the private market (even though no such policies actually exist).90 In Zubik, the Court issued a per curium order remanding the cases to the lower courts that echoed Hobby Lobby’s concern with third-party harm. The parties, according to the Court, should have “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’”91 Zubik demonstrates the special concerns about third-party harm that complicity-based conscience claims raise. Without a limiting principle, complicity objections can undermine the government’s ability to administer a workable system of religious accommodation and thus to pursue social aims in a fashion that respects religious pluralism.92 Hobby Lobby and Zubik demonstrate that RFRA analysis requires attention to third-party harm. Outside RFRA, judges deciding constitutional and statutory cases have regularly limited religious exemptions in order to protect third parties from harm.93 But US health care refusal laws, from which so many of today’s complicity claims descend, are not in conformity with this principle. 94 This discrepancy in US law is especially important to recognize as 90

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See Brief for Petitioners at 75–76, Zubik, No. 15-35 (U.S. 2016) (arguing that the employees of objecting organizations should buy their own health insurance policies and noting that the government could enact a new law to subsidize them). 136 S.Ct. at 1560. In its constitutional free exercise jurisprudence, the Supreme Court has refused to provide a religious exemption to tax laws on the ground that the potential multiplication of such claims threatens the government’s ability to run a system of taxation. See Lee, 455 U.S. at 260 (denying a free exercise claim for exemption from social security taxes on the ground that “[t]he tax system could not function if denominations were allowed to challenge the tax system” and observing that “[b]ecause the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax”). In so doing, the Court identified complicity-based claims as having obvious potential for multiplication. See ibid. (“If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax.”). See supra note 81. See NeJaime and Siegel, “Conscience Wars,” 2528–29 and notes 50–54. In late 2017, the Trump administration issued interim final rules allowing employers that provide health insurance for their employees to withhold coverage for contraception if they have religious or moral objections to providing such coverage. See Religious Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care

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opponents of same-sex marriage hold up health care refusals legislation as a model for shaping law in the LGBT context.95 We now turn to conscience claims in other jurisdictions. Without endeavoring comprehensively to survey law in Europe, we note a variety of contexts in which concern about third-party harm shapes approaches to religious accommodation. We offer this comparison for the limited purpose of illustrating that many practical approaches to religious accommodation are feasible. Some systems accommodate conscience claims without regard to their impact on citizens who do not share the claimants’ beliefs, while other systems restrict accommodation with attention to third-party harm. In this way, cross-borders comparison illustrates our claim that only some forms of religious accommodation protect heterogeneity of belief and so genuinely promote pluralist ends. 7.3.2 Accommodations Law and Third-Party Harm: Comparative Observations In Europe, as in the United States, religious objectors seek exemptions from generally applicable laws that impose duties with respect to third parties – for instance, to provide health care services, or to provide goods and services on a nondiscriminatory basis. We illustrate how, under both national law and European human rights law and standards, third-party harm may operate as a limit on accommodation. Of course, application of the harm principle in the accommodation of conscience is subject to dispute and debate. For example, there have been struggles in the Council of Europe over the contours of conscientious objection in health care. In 2010, a resolution that sought to limit conscience objections in order to protect the rights of patients was proposed in the Parliamentary Assembly of the Council of Europe but ultimately passed, after significant struggle, in a much more conscience-protective

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Act, 82 Fed. Reg. 47,792 (interim final rule October 6, 2017); Moral Exemptions and Accommodations for Coverage of Certain Preventive Services under the Affordable Care Act, 82 Fed. Reg. 47,838 (interim final rule October 6, 2017). The regulations go well beyond what the Court sanctioned in Hobby Lobby and Zubik in two ways. First, they offer a complete exemption while making no effort to provide any alternative source of coverage for employees. Second, they authorize employers to refuse to provide coverage on the basis of moral, as well as religious, objections. In their disregard for the impact of accommodation on other citizens, the regulations resemble health care refusal laws and in this respect stand well outside the mainstream of American constitutional and statutory religious liberties traditions. See NeJaime and Siegel, “Trump and Pence Invoke Conscience to Block Contraception,” supra note 13. For an analysis of the relationship between health care refusal laws and exemption proposals in the same-sex marriage context, see Elizabeth Sepper, “Doctoring Discrimination in the Same-Sex Marriage Debates,” Indiana Law Journal 89, no. 2 (2014): 703–62.

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posture.96 Nonetheless, both legislation and case law in a variety of jurisdictions recognize third-party harm as a reason to limit accommodation of conscience claims, particularly those involving complicity. Some countries allow conscience exemptions in health care as a matter of national law, yet on terms that differ from many US health care refusal laws. In particular, the statutes authorize refusals in frameworks that restrict complicity-based claims. For instance, UK regulations require those with conscience objections to performing abortion to provide “prompt referral to another provider of primary medical services who does not have such conscientious objections.”97 Similarly, France’s abortion law allows individuals to claim conscience protections, but requires objecting physicians who are asked about the possibility of abortion to provide patients with a list of names and addresses where abortion is practiced.98 Further, though French law permits private hospitals to refuse to provide abortions, it prevents hospitals with certain public contracts from doing so if other establishments are not available to respond to local needs.99

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Compare supra note 8, with The Right to Conscientious Objection in Lawful Medical Care, Eur. Parl. Ass. Res. 1763 (2010), available at http://assembly.coe.int/nw/xml/News/Features Manager-View-EN.asp?ID=950. This resolution is nonbinding for the members of the Parliamentary Assembly of the Council of Europe. On the developments surrounding this resolution, see Christina Zampas and Ximena Andio´n-Iban˜ez, “Conscientious Objection to Sexual and Reproductive Health Services: International Human Rights Standards and European Law and Practice,” European Journal of Health Law 19, no. 3 (2012): 231, 243–44. The National Health Service (General Medical Services Contracts) Regulations, sched. 2(3) (2)(3), cl. 9.7.1(c), 2004, S.I. 2004/291. Loi n˚ 75-17 du 17 janvier 1975 relative a` l’interruption voluntaire de la grossesse [Law 75-17 of January 17, 1975 Relating to the Voluntary Interruption of Pregnancy], Journal Officiel de la Re´publique Franc¸aise [J.O.] [Official Gazette of France], January 17, 1975, art. L 162-3. Codified at Code de la Sante´ Publique [Public Health Code], art. L2212-3. Art. L2212-8(4). While we cannot draw conclusions about the laws of each European country and recognize that some countries have failed to adequately protect patients seeking lawful services, we note that many countries have limited conscience objections in health care by (1) allowing only those who are directly involved in the objected-to procedure to claim conscience objections, see, e.g., Lov om svangerskapsavbrudd [abortloven] [Norway Abortion Act], Lov no. 50, ch. II, § 20 of June 13, 1975; Legge 22 maggio 1978, n. 194, Norme per la Tutela Sociale Sella Maternita e sull’Interruzione Volontaria Della Gravidanza [Law May 22, 1978, n. 194, Provisions on the Social Protection of Maternity and the Voluntary Interruption of Pregnancy], art. 9, G.U. May 22, 1978, no. 140, art. 9; (2) requiring practices such as counseling and referral that reduce the adverse impact of conscience objections on patients, see, e.g., Lov om svangerskapsavbrudd [abortloven] [Norway Abortion Act], Lov no. 50, ch. II, §§ 2-3 of June 13, 1975; Co´digo Deontologico da Orden dos Medicos, Portaria No. 189/1998, de 21 de Marco [Code of Medical Ethics, Admin. Rule No. 189/1998, Mar. 21, 1990], Interrupcao voluntaria da gravidez/Servicos obstetrician [Voluntary Termination of Pregnancy and Obstetric Services] (Portugal); Slovenian Code of Medical Deontology Practice, art. 42

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Similarly, some national courts have limited conscience exemptions, rejecting complicity-based objections where accommodating them would impose targeted harm on third parties. For instance, in the 2014 case of Greater Glasgow Health Board v. Doogan, the UK Supreme Court rejected complicity-based conscience objections to complying with obligations imposed by national abortion legislation. The court limited conscience exemptions so that they would only cover health care providers directly performing or assisting in abortions,100 and it required objecting health care professionals to refer patients to willing providers.101 But these types of limits are not universal. Recently, Spain’s Constitutional Court exempted a pharmacist with complicity-based objections to selling contraceptives, which he was obliged to sell under Andalusia law.102 The court upheld the pharmacist’s objection to selling emergency contraception, reasoning it could be bought elsewhere in Seville, but refused to extend the same reasoning to the pharmacist’s refusal to sell condoms.103 (It is difficult to discern a principle that justifies this differential treatment, which seems to reflect views about gender or the merits of the claimant’s religious beliefs.) In parts of Europe that have adopted LGBT-protective laws – the United Kingdom, for example – conscience claims, which have predominated in conflicts over abortion and contraception, have begun to spread to the LGBT context. Here too, courts have rejected exemption claims to protect

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(1992); and (3) restricting or denying conscience protections for institutions, see, e.g., Sundhedsloven, LBK nr. 546 af 25/6/2005 [Danish Health Act, Law No. 546 of June 25, 2005], Lov om ansvaret for og styringen af den active beskaeftigelsesindats [Law on Responsibility and Employment Management], part A, June 25, 2005, No. 92, pp. 3914–54; 1992. e´vi LXXIX. to¨rve´ny a Magzati e´let Ve´delme´rol (Act LXXIX of 1992 on the protection of fetal life), §§ 5(1), 13(2) (Hung.). In response to the broad interpretation of “participate” in “treatment” urged by the objectors, the UK Supreme Court found that the treatment “authorized by the Act,” and hence covered by the conscientious objection provision, only encompassed “the whole course of medical treatment bringing about the ending of pregnancy,” and that “participate . . . means taking part in a ‘hands-on’ capacity.” Greater Glasgow & Clyde Health Board v. Doogan, [2014] UKSC 68, [33], [37]. The court explained, “it is a feature of conscience clauses generally within the health care profession that the conscientious objector be under an obligation to refer the case to a professional who does not share that objection. This is a necessary corollary of the professional’s duty of care towards the patient.” Doogan, [2014] UKSC [40]. S.T.C., July 7, 2015 (S.T.C., No. 52) (Spain), available at www.tribunalconstitucional.es/es/ salaPrensa/Documents/NP_2015_052/2012-00412STC.pdf. The relevant law was Ley de Farmacia de Andalucı´a art. 75 (B.O.E. 2007, 45); El Estatuto de Autonomı´a para Andalucı´a art. 2 (B.O.C.M. 2001, 171). S.T.C., July 7, 2015 (S.T.C., No. 52).

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third parties. For example, in 2013, in Bull v. Hall, where innkeepers raised complicity-based conscience objections to boarding a same-sex couple, the UK Supreme Court held that “the protection of the rights and freedoms of [the same-sex couple]” provided a reason to reject the sought-after exemption from antidiscrimination law.104 Looking beyond national law, we see that, to this point, European institutions applying human rights law and standards have neither provided nor sanctioned expansive exemptions. Concern with third-party harm has played a role in these decisions. First, consider the European Committee on Social Rights (ECSR).105 The ECSR has denied exemption claims asserted under the European Social Charter’s rights to protection of health and nondiscrimination. In rejecting a challenge to Sweden’s failure to accommodate conscience objections in health care, the ECSR found no “positive obligation to provide a right to conscientious objection for health care workers.”106 Indeed, the ECSR emphasized that in the abortion context, Article 11 of the European Social Charter, which provides for the protection of health, is “primarily concerned” with the rights of “pregnant women” and not health care providers.107 Further, the ECSR has found that, in cases where national law permits conscience-based refusals, the law cannot do so in ways that violate women’s rights to the protection of health under the Charter. In 2013, in International Planned Parenthood Federation – European Network v. Italy, the ECSR determined that Italy had violated the Charter because patients did not have access to non-objecting personnel who could perform abortions. The ECSR expressed concern that the exercise of conscientious objection “may involve considerable risks for the health and well-being of the women concerned” and thereby violate women’s rights to the protection of health under Article 11.108 104

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Bull v. Hall, [2013] UKSC 37, [51]. The court not only determined that there should be no exemption from antidiscrimination law under domestic law but it also rejected the innkeepers’ claim under the European Convention on Human Rights, and specifically Article 9’s protection of the right “to manifest one’s religion.” The ECSR is part of the Council of Europe and is charged with implementing the European Social Charter. That treaty, which was adopted in 1961 and revised in 1996, focuses on social and economic rights. In contrast, the European Convention on Human Rights (ECHR), which was drafted by the Council of Europe and adopted in 1953, protects fundamental civil and political rights and falls within the jurisdiction of the European Court of Human Rights (ECtHR). Fed’n of Catholic Families in Eur. (FAFCE) v. Sweden at 16 (ECSR 2015). ADF participated in the case as a third-party observer. Ibid., 3. Ibid., 16. Int’l Planned Parenthood Fed’n – Eur. Network v. Italy at paras. 175, 177 (ECSR 2013).

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Accordingly, it required Italy to take “adequate measures . . . to ensure the availability of non-objecting medical practitioners and other health personnel when and where they are required to provide abortion services.”109 Next, consider the European Court of Human Rights (ECtHR). A growing body of law addresses conscience exemptions in relation to the European Convention on Human Rights (ECHR). The court has interpreted the ECHR to deny accommodation, or to limit accommodation, in the interest of protecting the rights of other citizens. When national authorities have implemented conscience protections in particularly expansive ways, the ECtHR has invoked third-party harm in imposing limits on such protections. In P. and S. v. Poland, the court determined that the patient’s right to respect for private life under Article 8 of the ECHR was violated when conscience refusals were invoked in ways that impeded her access to abortion.110 The objections had not been accommodated, as required by Polish law, so as to “allow the right to conscientious objection to be reconciled with the patient’s interests, . . . by imposing on the doctor an obligation to refer the patient to another physician competent to carry out the same service.”111 Indeed, a year earlier, in another case involving Poland, the ECtHR declared: “States are obliged to organize the health services system in such a way as to ensure that an effective exercise of the freedom of conscience of health professionals in the professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”112 When national authorities have refused to accommodate conscience objections, the ECtHR has invoked third-party harm as a basis for denying claims to exemption under the ECHR. Article 9 of the ECHR protects the “[f]reedom to manifest one’s religion or beliefs” but subjects this right to “limitations . . . necessary in a democratic society . . . for the protection of the rights and freedoms of others.”113 The Article 9 framework invokes third-party harm as a limit on religious liberty – though it is unclear whether or when Article 9 itself protects religious-liberty objections to reproductive and LGBT rights.

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Ibid., ¶ 163. 110 See P. and S. v. Poland, No. 57375/08, para. 112 (Eur. Ct. H.R. 2012). Ibid., at para. 107, p. 24. It is important to note that the ECtHR has not found that the ECHR provides a right to abortion per se, but it has consistently found flaws under ECHR principles in the way that a country has applied its existing abortion laws. See A, B & C v. Ireland, No. 25579/05, paras. 232–233 (Eur. Ct. H.R. 2010). R.R. v. Poland, No. 27617/04, para. 206 (Eur. Ct. H.R. 2011). European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 9, November 4, 1950, 213 U.N.T.S. 221. Similar language is found in the International Covenant on Civil and Political Rights, art. 18, December 19, 1966, 999 U.N.T.S. 171.

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In Pichon and Sajous v. France, the ECtHR held that pharmacists with complicity-based objections to a legal requirement that they stock and dispense contraception did not suffer an interference with their Article 9 rights to manifest their religious beliefs.114 Invoking third-party harm, the court reasoned that so long as the pharmacies are the sole suppliers of the prescribed items, “the applicants cannot give precedence to their religious beliefs and impose them on others.”115 In the LGBT context,116 where the ECtHR found that the religious objectors asserted claims that fell within Article 9, the court nonetheless limited accommodation – of claims involving direct performance and claims involving complicity – in order to shield other citizens from material and dignitary harm. The 2013 case of Eweida and Others v. United Kingdom addressed conscience objections to direct performance (a government registrar objecting to conducting the same-sex civil partnerships recently authorized by national legislation), as well as objections to indirect facilitation (a private employee objecting to employer regulations requiring counseling same-sex couples in “psychosexual therapy”).117 The objectors invoked Article 9’s right to manifest religion, as well as Article 14’s right to nondiscrimination. In contrast to Pichon, the Eweida Court found that these complaints “fell within the ambit of Article 9.”118 Yet the Court found no violation, reasoning that both the local government and private employer were pursuing a legitimate interest in protecting the rights of gays and lesbians.119 Indeed, the ECtHR’s account was sensitive not only to the government’s practical interest in promoting equal access but also 114 115

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See Pichon and Sajous v. France, App. No. 49853/99, para. 4 (Eur. Ct. H.R. 2001). Ibid. For analysis of this case and the conflict between conscience claims and women’s access to reproductive health care, see Adriana Lamackova´, “Conscientious Objection in Reproductive Health Care: Analysis of Pichon and Sajous v. France,” European Journal of Health Law 15, no. 1 (2008): 7–43. It is important to note that the ECtHR has not at this point found a right to marry for same-sex couples. See Schalk and Kopf v. Austria, No. 30141/04 (Eur. Ct. H.R. 2010). Nonetheless, the court found Italy in violation of Article 8’s protection of privacy and family life for failing to provide “a legal framework allowing for recognition and protection of [same-sex couples’] relationship[s].” Oliari and Others v. Italy, Nos. 18766/11, 36030/11, para. 200 (Eur. Ct. H.R. 2015). In addition, the ECtHR has interpreted Article 14’s protection against discrimination to include sexual orientation. See Schalk and Kopf, at para. 87. Eweida and Others v. United Kingdom, Nos. 48420/10, 59842/10, 51671/10, 46516/10, paras. 26, 34 (Eur. Ct. H. R. 2013). For a more extensive discussion of the registrar’s claim, see Christopher McCrudden’s contribution to this volume. Ibid., paras. 37, 108. In rejecting the registrar’s challenge, the court focused on the importance of the government’s interest in protecting “the rights of others” – specifically same-sex couples. Ibid., para. 106. In rejecting the counselor’s challenge, the court relied on the importance of “the employer’s

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to the government’s expressive interest in communicating its commitment to equality and to inculcating the antidiscrimination norm among citizens: [T]he aim pursued by the local authority was to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being “an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others.”120

Still, having found that the religious objectors’ claims in this context fell within the ambit of Article 9, the ECtHR may be asked in future conflicts to consider whether a refusal to accommodate a religious objection is a proportionate means of achieving the legitimate interest in promoting equality and in shielding individuals from discrimination. Of course, given that Eweida involved a situation in which no accommodation had been granted by the national actors, the decision does not speak directly to the limits on accommodation the court might impose, especially given the margin of appreciation for national authorities.121 Our analysis shows that across Europe different decision makers have recognized third-party harm as a sufficient reason to deny or limit religious accommodation under disparate bodies of law. In Europe, as in the United States, this body of law is contested and still evolving. And debate continues in conflicts over reproductive health care and LGBT equality. 7.4 PLURALISM AND THE QUESTION OF CONSCIENCE

The regulation of conscientious objection varies across jurisdictions in more ways than this chapter can hope to chronicle. But our brief exploration of approaches to accommodation in the United States and Europe allows us to observe an important distinction in the functional role that conscience exemptions may play. Pluralism is often invoked as a basis on which to grant

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interest in securing the rights of others” and “providing a service without discrimination.” Ibid., para. 109. Ibid., para. 105 (quoting Ladele v. London Borough of Islington, [2009] EWCA (Civ) 1357, [45], which quoted statement by local government). See Robert Wintemute, “Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve,” Modern Law Review 77, no. 2 (March 2014): 223–53, at 243 (“[B]y granting governments a wide margin of appreciation with regard to conflicts between religion and sexual orientation, the ECtHR chose an ambiguous, potentially neutral position: accommodation is not required, but might be permitted.”)

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widespread religious exemptions. But exemptions can both serve and undermine pluralist ends. On one model, protection of conscience facilitates a pluralist regime in which those with different moral outlooks may coexist.122 Laws decriminalizing abortion have included conscience provisions that simultaneously seek to protect patient access to services. The United Kingdom and France, which decriminalized abortion in the 1960s and 1970s, institutionalized protection for conscience on this model.123 This balance is consistent with international human rights principles. The UN Committee on the Elimination of Discrimination against Women, providing guidance on application of the Convention on the Elimination of Discrimination against Women (CEDAW), instructs that “if health service providers refuse to perform [reproductive health] services based on conscientious objection, measures should be introduced to ensure that women are referred to alternative health providers.”124 Protection of conscience, however, can serve not a pluralist but a monist regime that seeks to constrain access to objected-to services. In the United States, since the 1990s, health care refusal laws have recognized complicitybased conscience objections and have expressly authorized refusals to counsel and refer patients. Laws of this sort are openly championed by those who seek the (re)criminalization of abortion. While the particulars may differ, this approach to conscience has visibly shaped law in some European jurisdictions, particularly in Central and Eastern Europe, where there is widespread hostility to the legalization of abortion.125 In Poland, for example, conscience 122

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The ECtHR reasoned in this way about Article 9 claims of conscience in Eweida: [A]s enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, skeptics, and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. Eweida, at para. 79 (citing Kokkinakis v. Greece, 260 Eur. Ct. H.R. [ser. A] [1993]). See supra notes 97–99 and accompanying text. Committee on the Elimination of Discrimination against Women, General Recommendation 24, para 11, Women and Health (Twentieth session, 1999), U.N. Doc. A/ 54/38 at 5 (1999), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 271 (2003). In 2005, the EU Network of Independent Experts on Fundamental Rights, set up by the European Commission, issued an opinion criticizing the Draft Treaty between the Slovak Republic and the Holy See on the Right to Objection of Conscience. E.U. Network of Independent Experts on Fundamental Rights, Opinion N˚ 4-2005: The Right to

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legislation quickly followed in the wake of the first laws restricting access to abortion in the 1990s, and the European Court of Human Rights has criticized the government’s failure to enforce limits on conscientious objection in order to protect patient rights.126 The conflict between newly protected rights and expansive claims to religious accommodation exists outside the United States and Europe. In Latin America, courts have taken different approaches to conscientious objection in the context of abortion. After Uruguay enacted legislation protecting the right to abortion in 2012,127 the government expressly regulated conscientious objection in ways that limited complicity-based refusals and protected patient access to services. But when doctors challenged these regulations, the Supreme Administrative Court of Uruguay in 2015 rejected the regulations for impermissibly restricting the right to conscientious objection.128 The court issued this decision despite evidence that, especially in the interior of Uruguay, there are not enough health professionals available to perform abortions, and that in several cities practically all health professionals have claimed conscience protections.129 The Colombian Constitutional Court, in contrast, has limited conscientious objection to protect women’s access to abortion. In 2009, the court sought to constrain conscience as a locus of open efforts to resist implementation of the court’s 2006 judgment declaring a limited constitutional right to abortion.130 The court recognized the threat posed by conscientious objection in situations in which objected-to “rights developed out of struggles led by sectors of the society that have historically been discriminated against and whose successes have generally not been well-received by many sectors of society.”131

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Conscientious Objection and the Conclusion by EU Member States of Concordats with the Holy See 31 (December 14, 2005), http://ec.europa.eu/justice/fundamental-rights/files/cfr_ cdfopinion4_2005_en.pdf (objecting to the draft treaty’s “broad recognition of the right to exercise objection of conscience in the field of reproductive healthcare, without providing for . . . compensatory measures,” such as obligations to refer and counsel patients and to effectively ensure their access to abortion). See supra notes 108–10. 127 Law 18,987, Article 1 (2012) (in Spanish). Alonso Justo y otros contra Poder Ejecutivo (2015) (in Spanish). Asegurer y Avanzar Sobre lo Logrado: estado de situacio´n de la salud y los derechos sexuales y reproductivos en uruguay (monitoreo 2010–2014) (in Spanish). For the decision recognizing the constitutional right, see Corte Constitutional [C.C.] [Constitutional Court], May 10, 2006, Sentencia C-355/06 (Colom.), available at www.corteconstitucional.gov.co/relatoria/2006/C-355-06.htm (in Spanish). Corte Constitutional [C.C.] [Constitutional Court], May 28, 2009 Sentencia T-388/09, available at www.corteconstitucional.gov.co/relatoria/2009/T-388-09.htm (in Spanish).

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As conflicts across the United States, Europe, and Latin America demonstrate, conscience exemptions can, but do not always, serve pluralist ends.132 As we have seen, the law of conscientious objection can also be deployed to enforce indirectly restrictions on access that, for constitutional or political reasons, cannot be enforced directly. By contrast, conscience exemptions of a genuinely pluralist kind endeavor to mediate the impact of accommodation on third parties, providing for the welfare of a normatively heterogeneous citizenry. An accommodation regime’s pluralism is measured, not only by its treatment of objectors, but also by its attention to protecting other citizens who do not share the objectors’ beliefs. A system of accommodation does not serve pluralist ends when, in the words of the ECtHR in Pichon, religious objectors are allowed to “give precedence to their religious beliefs and impose them on others.”133 Exemption regimes that (1) accommodate objections to direct and indirect participation in the lawful actions of others who do not share the objectors’ beliefs, and (2) exhibit indifference to the impact of widespread exemptions on others, do not promote pluralism; they sanction and promote the objectors’ commitments.134 Building a genuinely pluralist exemption regime that limits the accommodation of complicity claims in the interest of protecting other citizens from material and dignitary harms is especially important where conscience claims are entangled in society-wide conflict, such as the conflict over sexual mores we term the “culture wars.” In the culture war context, religious claimants seek

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Responding to government actors resisting its 2009 decision, the court issued another judgment in 2012 reiterating the limits on conscientious objection. Decision T-627/2012 (in Spanish). For an account of the struggle over conscience in Colombia, see Alba Ruibal, “Movement and Counter-Movement: A History of Abortion Law Reform and the Backlash in Colombia 2006-2014,” Reproductive Health Matters 22, no. 44 (2014): 42–51, at 45–46. For observations about such conflicts within the region more generally, see Juan Marco Vaggione, “The Politics of Camouflage: Conscientious Objection as a Strategy of the Catholic Church,” States of Devotion (April 26, 2014), http://hemisphericinstitute.org/ devotion/2014/04/juan-marco-vaggione-the-politics-of-camouflage-conscientious-objec tion-as-a-strategy-of-the-catholic-church/. Cf. Jean L. Cohen, “Freedom of Religion, Inc.: Whose Sovereignty?,” Netherlands Journal of Legal Philosophy 44, no. 3, (2015): 169–210, at 205 (rejecting pluralist justifications, featured in much of the “freedom of religion” discourse supporting claims to religious accommodation in the contemporary US context, by showing how such justifications may draw on liberal rights discourse to mask antidemocratic, integralist claims to religious jurisdiction or sovereignty). Pichon and Sajous v. France, App. No. 49853/99, para. 4 (Eur. Ct. H.R. 2001). In Eweida, the ECLJ, in arguing on behalf of Ladele and McFarlane, repeatedly appealed to pluralism as the basis for granting exemptions, claiming that “to ensure . . . pluralism, . . . the State’s attitude cannot be justified by the protection of the rights of others[.]” Observations Relating to Third Party Intervention, supra note 58, at 15.

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exemptions from laws that protect citizens whose conduct departs from traditional roles and customary morality. In these situations, the demand for accommodation is potentially widespread and will reiterate recently disestablished social norms. In seeking exemptions from laws that religious claimants assert make them complicit in sins of their fellow citizens, religious claimants may speak as a minority and yet assert what have long been the norms of the majority against those whose rights the law has only recently and fragilely come to protect. Under these circumstances, limiting accommodation in ways that respect the convictions of the believer and one’s fellow citizens is the most pluralism-promoting path.

8 Transatlantic Conversations The Emergence of Society-Protective Antiabortion Arguments in the United States, Europe, and Russia Susanna Mancini and Kristina Stoeckl

8.1 INTRODUCTION

In 2012, pro-life news agency LifeNews reported: When asked what country should be watched for upcoming pro-life initiatives . . . [Joseph Meaney, the director of Human Rights International] replied that pro-lifers should look towards Russia. The Russian presidency and the parliament are both interested in finding concrete solutions to limiting abortion . . . They’ve already started with a number of measures this year, particularly making it illegal to describe abortion as a “safe medical procedure,” and requiring those who advertise for abortion to talk about the health risks associated with it. But I think they’re going to move even more in the direction of outright banning of abortions for all kinds of different reasons.1

A few months later, the US-based evangelical periodical Christianity Today enthusiastically commented on “Europe’s top courts” supposedly “pro-life roll”: The European Court of Human Rights (ECHR) upheld Austria’s ban on invitro fertilization in November. Weeks earlier, the European Court of Justice ruled against destroying human embryos for scientific research. In December 2010, the ECHR upheld Ireland’s abortion ban. “It’s definitely a trend,” said Roger Kiska of the Alliance Defense Fund in Slovakia. “Two or three years ago, you never would have thought that within a year you would have three pro-life [victories] in the courts.” The cases

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“Eastern Europe Sees Growing Pro-Life Effort against Abortion,” LifeNews, October 26, 2011, www.lifenews.com/2011/10/26/eastern-europe-sees-growing-pro-life-effort-against-abortion/ (accessed April 28, 2017).

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coming from the ECHR – Europe’s equivalent of the US Supreme Court – show judicial restraint, deciding simply that abortion is not a right and leaving its legality up to each of the Council of Europe’s forty-seven member states, Kiska said. But the Court of Justice’s ruling went a step further, ruling that embryos are human beings. This stand was both strong and surprising, he said. “It’s the first international court decision to say that life begins at conception.”2

As these citations suggest, in the past three decades, political and legal discourses over abortion have changed dramatically, both domestically and internationally. Globalization and the rise of supranational constitutionalism have provided a wide range of opportunities to antiabortion movements to widen their networks, but have also brought about new challenges. As Charmaine Yoest, the ex-president of Americans United for Life and presently the assistant secretary of the US Department for Health and Human Services, put it: “Let’s face it, the world is getting smaller every day,” and any new abortion right in Europe would be a “distinct threat to American law,” because they give ammunition to domestic judges looking for an international consensus.3 Today, pro-life activists from different continents and countries cooperate both formally and informally, unified by an agenda aimed at influencing domestic and international lawmaking and litigation, in the sphere of religious freedom and sexual and reproductive rights. Pro-life religious organizations have become key players in regional and international policy-making fora such as the United Nations, as well as in norm-creating national and international contexts such as the European Union, and also, increasingly, in constitutional and human rights litigation.4 This transnational dialogue has resulted in the circulation of antiabortion arguments and strategies across different countries and legal systems. In this chapter we showcase the parallel evolution of antiabortion arguments in North America, Europe, and Russia. While each case has to be assessed in own right and in the light of the specific historical, cultural, and political factors that impact public discourses concerning reproductive rights, we

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“Europe’s Top Courts Are on a Pro-Life Roll,” Christianity Today, January 30, 2012, www .christianitytoday.com/ct/2012/january/lifeeurope.html (accessed April 28, 2017). Note by the authors: Austria bans the use of in-vitro fertilization on donor ovocytes or sperm. Sarah Wheaton, “Anti-Abortion Groups Inspire Abroad,” Il Politico, February 5, 2014, www .politico.com/story/2014/05/europe-anti-abortion-advocates-106285 (accessed May 20, 2017). Christopher McCrudden, “Faith-Based Non-Governmental Organizations in the Public Square,” in Malcolm Evans, Peter Petkoff, and Julian Rivers, eds., Changing Nature of Religious Rights under International Law (Oxford: Oxford University Press, 2015), 185–210.

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identify some surprising convergences among contemporary antiabortion discourses and strategies across these different contexts. These convergences not only testify to the existence of transnational conversations among Western and Russian pro-life activists but also signal a new step in the global antiabortion discourse. As a general observation, the antiabortion discourse has undergone an evolution from the fetus-protective arguments that were prevalent in the 1970s and 1980s to the women-protective arguments that emerged in the 1980s and 1990s. We argue that in connection with the rise of transnational pro-life activism, a new step in the antiabortion discourse has emerged, namely society-protective arguments, which shift the focus in the abortion debate away from the woman and the fetus to society as a whole. The three argumentative strategies do not succeed each other, but add up and increase the breadth of the antiabortion discourse. In what follows, we document the evolution of the antiabortion strategies and rhetoric transnationally. In the unfolding of these developments from fetus-protective to society-protective, we trace a shifting emphasis in the use of conscientious objection. Whereas traditionally conscientious objection was invoked by individuals to obtain an exemption from generally applicable laws, in the field of reproductive rights it has become a collective instrument designed to subvert existing laws and practices with the purpose of eliminating reproductive rights in the name of the good of society. This evolution is particularly salient in the context of the US culture wars. Remarkably, however, this discourse has now burst well beyond the borders of the United States. In this chapter, we showcase the transposition of the American pro-life rhetoric and strategy throughout Western Europe and Russia. Such transposition leads to very different results. In Western Europe, where abortion has not been traditionally highly politicized, but where legal systems have reached longlasting compromises over it, pro-life movements seem to be influenced by their US counterparts in a straightforward and substantially passive manner. Courts and legislators, however, have so far not proven receptive to the new antiabortion arguments. Russia, on the other hand, seems to be playing a fundamental role in their spread and consolidation. While in the West antiabortion activism dates back to the 1960s, in Russia it is a recent phenomenon that emerged after the fall of the USSR. Thus, the language and the strategies of US pro-life movements appear prima facie to be adopted wholesale by their Russian counterparts, who completely lack a tradition in this domain. In the Russian adaptation, however, the meaning of the discourse is significantly altered and supplemented. This is done by combining a societycentered collectivist approach to reproductive policies that is rooted in the

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Stalinist period with a discourse on traditional values associated with the doctrine of the Russian Orthodox Church, as well as with demographic concerns raised by the dramatic decrease in birthrates following the fall of the USSR. The Russian re-elaboration of Western pro-life arguments reinforces the society-protective case for curtailing abortion transnationally. 8.2 FROM THE CONFLICTING RIGHTS MODEL TO WOMEN-PROTECTIVE ANTIABORTION ARGUMENTS

In Western Europe and in the United States, abortion became a constitutional issue in the 1970s, mainly under the pressure of the feminist movements.5 Between 1973 and 1975, five landmark judicial decisions in the United States, Germany, Italy, France, and Austria decriminalized some forms of abortion.6 These decisions framed the constitutional conflict concerning abortion in terms of clashing rights and/or values and interests, pitting women’s right (to life, privacy, health, and self-determination) against the right of the fetus (to life and dignity), and/or the value of pre-birth life and the interest of the government to protect it. The aforementioned abortion cases all involved use of the proportionality principle and of judicial balancing. The Italian decision is exemplary in this respect: “The constitutional protection of the fetus might collide with other goods that also enjoy the protection of the Constitution, thus, the legislator may not protect the former in absolute terms, and deny any protection to the latter.”7 The Court balanced these conflicting goods and concluded that “[t]here is no equivalence between the right to life and to health of a born person, such as the mother, and the safeguard of the embryo, that is in the process of becoming a person.”8 In the years that followed, virtually all cases decided in stabilized democratic countries or in countries that had transitioned to democracy conformed to this broad standard.9 Structuring abortion conflicts in terms of conflicting rights mirrored the moral, social, and political polarization concerning pregnancy termination that emerged in the 1960s. Courts were called to strike a balance in contexts 5

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Reva B. Siegel, “The Constitutionalization of Abortion,” in Michel Rosenfeld and Andra´s Sajo´, eds., The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), 1057–78. Machteld Nijsten, Abortion and Constitutional Law: A Comparative European-American Study (Firenze: European University Institute, 1990). Constitutional Court, Italy, Final Judgment no. 27/1975. 8 Ibid. See Susanna Mancini and Michel Rosenfeld, “The Judge as Moral Arbiter? The Case of Abortion,” in Andra´s Sajo´ and Rena´ta Uitz, eds., Constitutional Topography: Values and Constitutions (Meppel, NL: Boom Eleven International, 2010), 299–316.

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characterized by a profound split over ultimate moral values and political conceptions. Contestation of traditional mores and the patriarchal family by the feminist and the youth movements was met with resistance from traditional social actors and with new forms of conservative and religious activism. Feminists upheld “[t]he right of [a] woman to control her reproductive process . . . as a basic, inalienable civil right, not to be denied or abridged by the state.”10 Pro-life movements opposed the legalization of abortion on the ground that “personhood” should be attributed to the fetus. The judges were confronted with a particularly high level of indeterminacy in that no legal system provided a clear answer concerning the existence, the content, and the limitations of the right to have an abortion, nor did it furnish a clear definition of what has to be regarded as a “person.” As a consequence of such indeterminacy, courts had to engage not only with a bitter political split, but also with the moral content of legal provisions, exposing themselves to charges of unfairness or of having imposed contestable moral prescriptions illegitimately. The five 1970s judicial decisions were contingent on the relevant constitutional provisions, the political climate, and the particular conflicting conceptions of the good in play within the relevant polity. The US Supreme Court conceptualized a constitutional right to abortion, whereas all of the European courts constructed abortion as the exception to the no-abortion rule. Paradoxically, however, these prima facie incommensurable decisions produced very similar practical outcomes: all courts both required the grant of some access to abortion to a pregnant woman and afforded some degree of protection to the fetus, precluding an unlimited right to abortion.11 As Udo Werner puts it, while the US Supreme Court “recognized a woman’s privilege to remain free from the state’s interference in abortion decisions,” the European courts “granted immunity from the legal power of the state in its application of the penalty law to satisfy its obligation to protect unborn life.”12 This difference, while important technically and symbolically, did not notably affect women’s actual access to abortion, or the fact that, if abortion was legal, “women make the final choice about their pregnancy.”13

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Betty Friedan, “Speech at the First National Conference for the Repeal of Abortion Laws, Chicago, January 1969,” in Betty Friedan, ed., It Changed My Life (New York: Random House, 1976), 171. Richard E. Levy and Alexander Somek, “Paradoxical Parallels in the American and German Abortion Decisions,” Tulane Journal of International and Comparative Law 9 (2001): 109–66. Udo Werner, “The Convergence of Abortion Regulation in Germany and the United States: A Critique to Glendon’s Rights Talk Thesis,” Loyola of Los Angeles International and Comparative Law Review 18 (1996): 571–603, at 599. Ibid., 599.

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In Europe, the 1970s abortion decisions (and the subsequent laws that granted access to abortion) displeased several political and social actors, but did not turn the abortion into a perennial political struggle, nor did they damage the institutional authority and legitimacy of the judiciary. Thus, unlike in the United States, in Europe abortion controversy has remained at the margin of political life. For a long time, Western European pro-life movements kept a low profile, avoiding direct attacks on abortion laws and concentrating their action on mainly local initiatives aimed at spreading the “culture of life” and on charitable programs for women facing unwanted pregnancies.14 Pro-life activism regained momentum in the 1990s and 2000s as a direct consequence of the fall of the Berlin Wall, of the dramatic demographic changes that had occurred especially in Eastern Europe, and of the turn toward neoliberal economies.15 In Western Europe the cultural and political climate had deeply changed since the 1970s: the feminist movement was hardly visible, Catholic ideology was regaining importance “as a factor of political consensus,” and scientific and medical developments, such as image diagnostics, assisted reproduction techniques, abortion drugs, and so forth, had taken place, allowing for new antiabortion discourses.16 In Central and Eastern Europe, “abortion rights had been restricted . . . due to the political revitalization of religious institutions . . . and the general ‘remasculinization’ of the region, manifested in a backlash against the gender-equality ideology presumably imposed by communism.”17 These factors set the premises for the intensification of antiabortion activism and for a shift in its strategy and agenda. Pro-lifers have become more visible and vocal and have regained interest in the legal and political dimensions of abortion. The European institutions as well as the very existence of a European public sphere provide new opportunities for pro-life movements. Thus, antiabortion groups work at the national as well as at the European level, challenging legal measures, submitting briefs, monitoring the work of national and European institutions, and attempting to influence political actors and decision-making processes. The reawakening of European antiabortion movements has been met with much enthusiasm by their American counterparts: it has inaugurated a phase of intense transatlantic dialogue among pro-life supporters. 14

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Claudia Mattalucci, “Contesting Abortion Rights in Contemporary Italy: Discourses and Practices of Pro-Life Activism,” in Silvia de Zordo, Joanna Mishtal, and Lorena Anton, eds., A Fragmented Landscape: Abortion Governance and Protest Logics in Europe (New York: Berghahn Books, 2017), 85–101, at 87. Silvia de Zordo, Joanna Mishtal, and Lorena Anton, “Introduction,” in ibid., 6. Mattalucci, “Contesting Abortion Rights,” 87–88. De Zordo, Mishtal, and Anton, “Introduction,” 6.

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Unlike in Europe, abortion took center stage in American politics since the 1973 US Supreme Court decision in Roe v. Wade.18 This decision raised awareness of the counter-majoritarian difficulty, exacerbated issues of federalism, and deepened social and political polarization, leading, according to many commentators, to the birth of the New Right.19 The rise of fundamentalist Protestantism as a political force played a key role in the radicalization of US pro-life activism in the years following Roe. The commingling of radical Christian narratives and the post–Vietnam War paramilitary culture charged the abortion discourse to an epic dimension, depicting it as a sort of American Armageddon.20 In the decades following Roe, the pro-life movement interiorized the narrative according to which abortion is an ultimate war between Christ and the Antichrist. Antiabortion terrorism hit the United States, culminating in the murder of “abortion doctor” David Gunn in 1993, which signaled, as Carol Mason explains, “a move away from protest and toward retribution . . . to restore the order of God.”21 Pro-life extremism and violence did not prove a successful strategy. It alienated mainstream Americans, and especially women, who felt that their rights and needs had been disregarded in the light of the absolute protection of the fetus, and had difficulties engaging with an openly misogynist movement and narrative. In the hope to recuperate popularity among the “middle majority” and to become more attractive to potential women activists, the antiabortion movement began to rethink its strategy, shifting the focus from the fetus to the woman. David Reardon, in his 1996 book Making Abortion Rare, a sort of manifesto of the new antiabortion argumentative line, articulated the need to “change the abortion debate so that we are arguing with our opponents on their own turf, on the issue of defending the interests of women.”22 Reardon argued that the conflicting rights model had to give way to a narrative of reconciliation, on the ground that “[t]he middle majority is paralyzed by competing feelings of compassion for both the unborn and for women.”23 Hence, “[a]ccepting the fact that the middle majority’s concerns are primarily focused on the woman is a prerequisite to developing 18 19

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Roe v. Wade, 410 U.S. 113 (1973). Robert Post and Reva B. Siegel, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights–Civil Liberties Law Review 42, no. 2 (2007): 373–434. Carol Mason, Killing for Life: The Apocalyptic Narrative of Pro-Life Politics (Ithaca, NY: Cornell University Press, 2002), 4. Ibid., 4. David Reardon, Making Abortion Rare: A Healing Strategy for a Divided Nation (Randburg, ZA: Acorn, 1996), Introduction, www.afterabortion.org/MAR/marsum.html. David Reardon, “Chapter II,” Making Abortion Rare, http://afterabortion.org/MAR/IGCHA P2.htm.

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a successful pro-woman/pro-life strategy. Rather than trying to reduce public sympathy for women, we want to increase it and align it with our own outrage at how women are being victimized.”24 To feminize the antiabortion discourse, the pro-life movement reduced the space of morality in opposing abortion. As Reardon puts it, Rather than getting bogged down in arguments with moral agnostics, we can simply capitalize on their refusal to judge. To do so we need simply to ask the relativists: Who are we to say that post-aborted women have not suffered? Who are we to say they should not be allowed compensation for their pain? If we are to be fair and compassionate, shouldn’t they be allowed their day in court?25

Instead of focusing primarily on the representation of the fetus as a person, the antiabortion discourse shifted its attention to women’s rights and women’s health. It appropriated feminist language and human rights rhetoric as well as scientific and medical jargon. Instead of showing graphic images of aborted fetuses and blaming women for killing their unborn babies, it began to suggest that women were hurt by abortion. Central to the growing success of the new antiabortion strategy were the alleged link between abortion and breast cancer and the invention of the post-abortion syndrome (PAS). Thus, the previous focus on morality and emotions gave way to a “rational” (scientific) message: abortion jeopardizes women’s physical and mental health. This message achieved two important results: it turned women from murderers into victims, eliminating altogether the notion that a conflict of rights exists, and it provided a new legal platform to challenge abortion regulation. As Ellie Lee explains, “Central to the PAS claim is a critique of the legal concepts and arguments that have tended to legitimize abortion”: courts and legislators have wrongly assumed that abortion is a safe procedure, but under the new frame, government should restrict or prohibit abortion to protect women’s health.26 This 24

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Reardon, Making Abortion Rare, 32–33. “The abortion debate has typically been framed as a conflict between women’s rights and the rights of the unborn. Pro-abortionists have consciously defined the issue in these terms to polarize public opinion and paralyze the middle majority – the ‘fence sitting’ 50 percent or more who feel torn between the woman and the child – so they will remain neutral. Unfortunately, many pro-lifers are all too willing to accept this characterization of the issue. In practice, they even reinforce it by rushing to announce the conclusion, which the middle majority refuses to embrace, that the right of the unborn child to live must always prevail over the needs and desires of the woman. This conclusion, however morally sound, does not help the middle majority in its search to escape the paralysis of compassion for both the unborn and their mothers.” Reardon, Making Abortion Rare, 25–26. Reardon, “Chapter II,” Making Abortion Rare, http://afterabortion.org/MAR/IGCHAP2.htm. Ellie Lee, Abortion, Motherhood, and Mental Health: Medicalizing Reproduction in the United States and Great Britain (New York: Aldine de Gruyter, 2003), 38.

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paved the way for the implementation of new political and legal antiabortion strategies, including the spreading of therapeutic services offered to postabortion women, as well as attempts to change the law concerning informed consent, on the ground that women need to be aware of the health risks associated with abortion, and the “mounting of malpractice suits against abortion clinics and physicians with the intent of making them uninsurable.”27 In City of Akron v. Akron Center for Reproductive Health28 the US Supreme Court struck down, together with other abortion restrictions, an “informed consent” provision, according to which women willing to terminate their pregnancy had to be informed “[t]hat abortion is a major surgical procedure which can result in serious complications, including hemorrhage, perforated uterus, infection, menstrual disturbances, sterility and miscarriage and prematurity in subsequent pregnancies; and that abortion may leave essentially unaffected or may worsen any existing psychological problems she may have, and can result in severe emotional disturbances.”29 In Planned Parenthood of Southeastern Pa. v. Casey,30 however, the Court opened the door to women-protective antiabortion arguments, holding that “[i]n attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”31 Since the mid-1990s, informed consent legislation in the United States has become a battlefield. Several states, for example, have introduced legislation concerning the use of medically unnecessary ultrasound in connection with abortion services. In North Carolina and Kentucky, laws that compelled doctors to display and narrate in detail an ultrasound to a woman prior to providing an abortion, even if the woman objects and the doctor believes that this is harmful to the patient, were struck down by the courts32 on the ground 27

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Patricia Jasen, “Breast Cancer and the Politics of Abortion in the United States,” Medical History 49, no. 4 (October 1, 2005): 423–44, notes that “[e]arly in 1995, the British Medical Journal noted the growing importance of malpractice suits in the US aimed at forcing abortionists out of business. The author described how an organization called Life Dynamics assembled evidence of the alleged harm caused to individual women following abortion, including the danger of breast cancer, while helping to link lawyers with potential clients. Their long-term goal was to establish the legal understanding that women could sue, even years later, for any adverse effects of abortion.” City of Akron v. Akron Center for Reproductive Health 462 U.S. 416 (1983). 29 Ibid., 445. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 882–83 (1992). Ibid., 882. US Court of Appeal for the Fourth Circuit, Gretchen S. Stuart v. Paul S. Camnitz No. 14-1150 (2014) (Wilkinson) and US District Court Western District of Kentucky Louisville Division, EMW Women’s Surgical Center, P.S.C., et al. v. Andrew G. Beshear, et al. (2017) (Hale).

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that: “[t]his compelled speech, even though it is a regulation of the medical profession, is ideological in intent and in kind.”33 No scientific study could conclusively establish that abortion augments the risk of developing breast cancer,34 nor that women develop a specific posttraumatic disorder after terminating a pregnancy.35 The narratives according to which these cause-and-effect relations actually exist and have been irrefutably proven has, however, permeated the abortion discourses well beyond the United States. Women-protective arguments, being focused on individual health rather than on religious and moral principles, proved particularly appealing in Western European secularized and strongly individualistic societies.36 In the United Kingdom, where Vincent Rues, the American inventor of PAS, spoke at a 1989 meeting of pro-life politicians,37 the argument according to which abortion objectively damages women’s health has become dominant in the leaflets and books disseminated by prolife activists.38 These arguments made their appearance in British decisionmaking bodies in the late 1980s. In 1987, for example, during a debate concerning a bill aimed at restricting the legal time for abortion, a Member of Parliament expressed his concern over the “psychiatric morbidity experience[d] by a woman after an abortion.”39 PAS began to appear across Europe and Latin America, to be discussed in the press and to be used in a variety of debates concerning abortion legislation, for example in opposing early and chemical abortions, on the ground that their “easiness” conceals to women abortion’s side effects. Aciprensa, the world’s largest Spanish-language Catholic website, with sister websites in Italian and Portuguese, disseminates countless articles

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US Court of Appeal for the Fourth Circuit, Gretchen S. Stuart v. Paul S. Camnitz No. 14-1150 (2014) (Wilkinson). For a comprehensive review of the literature, see Jasen, “Breast Cancer.” See also American Cancer Society, “Abortion and Breast Cancer Risk,” www.cancer.org/cancer/cancer-causes/ medical-treatments/abortion-and-breast-cancer-risk.html (accessed May 20, 2017). The existence of PAS has not been acknowledged by any accredited medical or scientific association. The Council of Representatives of the American Psychological Association charged the Task Force on Mental Health and Abortion (TFMHA) with “collecting, examining, and summarizing the scientific research addressing the mental health factors associated with abortion, including the psychological responses following abortion, and producing a report based upon a review of the most current research.” None of the literature reviewed adequately addressed the prevalence of mental health problems among women in the United States who have had an abortion: Report of the APA Task Force on Mental Health and Abortion, www.apa.org/pi/women/programs/abortion/mental-health.pdf (accessed May 22, 2017). Lee, Abortion, Motherhood, and Mental Health. 37 Ibid., 25. 38 Ibid., 25. Ibid., 21.

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maintaining that abortion hurts women and advocating for “[a] new strategy to strengthen the pro-life movement, focusing on the damages that abortion causes to women, who are the second victim of the anti-life laws and mentality.”40 Social media looms as the most powerful means of disseminating misleading information concerning the health risks associated with abortion. In 2017, the French Parliament adopted a law criminalizing the online “spreading or transmitting allegations or indications liable to intentionally mislead, on the characteristics or medical consequences of a voluntary interruption of abortion with the purpose of deterring” women from abortion.41 According to the French health minister, Marisol Touraine, the bill was made necessary by recent attacks against the right to abortion and by a “cultural backdrop that tends to make women feel guilty when they consider terminating a pregnancy.”42 8.3 FROM WOMEN-PROTECTIVE TO SOCIETY-PROTECTIVE ARGUMENTS

The French health minister’s observation signals an important evolution of the women-protective antiabortion arguments, namely the shifting focus from women’s health rights to women’s reproductive role. The narrative of PAS contained the seeds for this shift since its existence was put forward by Vincent Rue, a family therapist and a close ally of David Reardon, who made his name when he testified before the US Congress in 1981, claiming that women who undergo an abortion suffer from a variant of posttraumatic stress: “postabortion syndrome.”43 Rue associated it with “psychic numbing”: postabortion women may not exhibit any sign of posttraumatic stress for a long time, and may spend years in a state of denial and actually never acknowledge that they suffer from PAS. Said differently, women’s perception of their experiences is irrelevant, and the absence of medical evidence suggesting the existence of posttraumatic symptoms does not invalidate the claim that 40

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“¿Co´mo afectael Aborto a las mujeres?,” ACI Prensa, www.aciprensa.com/recursos/comoafecta-el-aborto-a-las-mujeres-84/ (accessed April 20, 2017) (authors’ translation). LOI no. 2017–347 du 20 mars 2017 relative a` l’extension du de´lit d’entrave a` l’interruption volontaire de grossesse, JORF no. 0068 du 21 mars 2017. This law was upheld by the Constitutional Council in Decision no. 2017–747 DC, March 16, 2017. Natalie Huet, “France to Sanction ‘Misleading’ Anti-Abortion Websites,” Politico, February 2, 2017, www.politico.eu/article/france-to-sanction-misleading-anti-abortion-websites/ (accessed May 22, 2017). Constitutional Amendments Relating to Abortion: Hearings on S.J. Res. 18, S.J. Res. 19, and S.J. Res. 110 Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 97th Cong. 329–39 (1981) (testimony of Vincent Rue).

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abortion objectively hurts women and that its consequences will ultimately hit their lives. These consequences, other than depression, include anger, difficulties in maintaining relationships, poor parenting skills, low self-esteem, eating disorders, substance abuse, sexual problems, inability to communicate, and suicidal tendencies.44 Moreover, as is the case with other posttraumatic stress disorders, the damage done to the woman by abortion, if not addressed, is likely to “pass to the next generation,” resulting in the post-abortion woman damaging her subsequent children.45 Assuming that abortion – unlike other much more invasive medical procedures – is an objective affront to women’s mental health that generates lifelong consequences that especially hurt women’s emotional sphere, their intimacy, and parenting skills infers that abortion runs counter to women’s nature and, thus, compromises women’s domestic and social role. As Reva Siegel puts it, “a woman who has an abortion has been injured in her very womanhood – she is impaired in her capacity to perform as a wife and mother.”46 What follows is that government should protect women, by outlawing abortion, to protect them from themselves, so that their traditional role is safeguarded. Such gender-paternalistic justifications for restricting access to abortion turn the very notion of reproductive rights on its head: the law needs to protect women’s “natural” role as wives and mothers by taking away from them the very possibility of making reproductive choices. This narrative has become a fundamental tenet of contemporary antiabortion discourses across continents. Reva Siegel has powerfully tracked its spread across the United States,47 showing how from social movements, gender-paternalistic antiabortion arguments have made their way into the Supreme Court. In 2007, in the case of Gonzales v. Carhart,48 which upheld a federal ban to a particular abortion procedure that the majority deemed “gruesome,” the Court held that “[t]he State has an interest in ensuring so grave a choice is well informed,” because “[w]hile we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”49 44

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Anne C. Speckhard and Vincent M. Rue, “Post-Abortion Syndrome: An Emerging Public Health Concern,” Journal of Social Issues 48, no. 3 (Fall 1992): 95–119. Nick Hopkins, Steve Reicher, and Jannat Saleem, “Constructing Women’s Psychological Health in Anti-Abortion Rhetoric,” Sociological Review 44, no. 3 (August 1996): 539–64, at 557. Reva B. Siegel, “The Rights’ Reasons: Constitutional Conflict and the Spread of WomanProtective Anti-Abortion Argument,” Duke Law Journal 57 (2008): 1641–92, at 1655. Ibid., 1655. 48 Gonzales v. Carhart, 550 U.S. 124 (2007). 49 Ibid., 128.

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Gender-paternalistic antiabortion arguments have reached well beyond the United States. In 2005, for example, Hungarian extreme right-wing politician Krisztina Morvai, then a member of the UN Committee for the Elimination of Discrimination against Women, and presently a member of the European Parliament, maintained that “[n]o woman actually wants to have an abortion. We have this illusion that women have free choices. But abortion is a terribly damaging thing psychologically, spiritually and physically.” Morvai expressed her hope that one day “abortion will be the past” and that it will be looked upon as “like torture in the field of human rights.” She also pointed out that many women resort to abortion because of pressure put upon them by their male partners and called for a greater focus on the “responsibility of men.”50 In 2013, the Spanish minister of justice, Alberto Ruis-Gallardon, attempted to repeal the progressive abortion law adopted during the Zapatero government with a heavily restrictive one, entitled “Protection of Life and of the Rights of Pregnant Women.” Gallardon justified the need to restrict abortion rights “to protect the weakest subjects, the unborn children, but always in the interest of women,” who are “the victims of abortion” and of the “structural gender violence” that is conducive to abortion. “Abortion is a personal tragedy,” he added, before explaining that the law should liberate women from it in order to fulfill their natural role: “Motherhood is what makes women real women.”51 Morvai’s and Gallardon’s reference to coercion and violence are typical of gender-based paternalistic arguments. The assumption is that if women were informed and not coerced into having abortion, they would never engage in an unnatural act fraught with traumatic consequences. The narrative according to which women are pressured or compelled to abort is widespread in pro-life propaganda. The US-based website Unchoice.com, for example, states: “Over half of abortions in America are unwanted or coerced, and many here and elsewhere are forced, followed by serious aftereffects, ranging from physical injury and post-traumatic stress to death of the mother, too.”52 The website heavily relies on narratives that echo feminist battles, such as that against domestic violence.

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“‘Abortion Bad for Women,’ Protests United Nations Women’s Representative,” LifeSiteNews, www.lifesitenews.com/news/abortion-bad-for-women-protests-unitednations-womens-representative (accessed April 20, 2017). Luis A. Sanz, “Gallardon: ‘La libertad de maternidades lo que a las mujeres les hace aute´nticamente mujeres,’” El Mundo, March 27, 2012, www.elmundo.es/elmundo/2012/03/ 27/espana/1332867371.html (accessed May 22, 2017). “Abortion Is the Unchoice: Unwanted, Unsafe, Unfair,” Unchoice, http://theunchoice.org/in tro.htm (accessed April 20, 2017).

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Many pregnant women have been killed by partners trying to prevent the birth. Simply being pregnant places women at higher risk of being attacked. Homicide is the leading cause of death among pregnant women. Women are aware of these risks. 92% of women surveyed list domestic violence and assault as the women’s issue that is of highest concern to them.53

The correlation between coercion and abortion has also made its appearance in legal documents. In 2010, for example, the Canadian Parliament tabled Bill C-5, entitled “An Act to Prevent Coercion of Pregnant Women to Abort.” The bill, which was ultimately defeated, protected pregnant women against coerced abortions on the grounds that “many pregnant women have been coerced to have an abortion and have suffered grievous physical, emotional and psychological harm as a result.”54 Reproductive rights are a crucial component of women’s equality. As the US Supreme Court recognized in Casey, women’s ability to realize their full potential is intimately connected to “their ability to control their reproductive lives.”55 Thus, restrictions on abortion access affect women’s autonomy to determine the course of their lives, and to enjoy equal citizenship stature.56 Restrictions motivated by arguments centered on women’s nature are particularly pernicious in this respect, because their effect is not limited to interference with women’s equal rights. These restrictions question women’s agency and women’s wholeness as rights holders, because they are founded on the claim that the law should recognize that men and women have different roles based on their biology. This claim is reminiscent of nineteenthcentury biological and medical arguments supporting opinions about the existence of a “natural” difference between men and women. These natural differences centered on women’s reproductive role and supported their intellectual inferiority and legal status. As Cesare Lombroso, the Italian founder of Positivist Criminology, explained in 1893, “intelligence varies inversely to fecundity . . . [T]here is an antagonism between the reproductive and intellectual functions. Today the work of reproduction has for the most part devolved onto the woman and for this biological reason she has been left

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“Forced Abortion in America,” Unchoice, 2, www.theunchoice.com/pdf/FactSheets/Forced Abortions.pdf (accessed April 20, 2017). www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1& DocId=4427296&File=24#1. 505 U.S., at 856. Reva B. Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44 (1992): 261–365.

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behind in intellectual development . . . Women of high intelligence . . . are often sterile.”57 The fight against reproductive rights in the name of preserving gender roles has unsurprisingly shifted from abortion to contraception. This shift indicated without ambiguities that the value of pre-birth life is not the fundamental interest at stake in the struggle against reproductive rights. Like womenprotective antiabortion arguments, anti-contraception ones are presented prima facie as scientific evidence of health risks associated with the use of certain drugs and devices. The discourse, however, reaches well beyond women’s health and translates into a general critique of liberal gender equality. An article published in 2015 by the Linacre Quarterly, the official journal of the Catholic Medical Association, explores the “[p]sychological, social, and spiritual effects of contraceptive” drugs, and concludes that “[c]oincidental to the use of ‘the pill’ there has been an increase in depression, low sexual desire, ‘hook-ups,’ cohabitation, delay of marriage and childbearing.”58 In the United States, conservative Christian actors and legal scholars have made claims against public policies in favor of contraception, challenging the notion, supported by the Obama administration as well as by “other influential groups and organizations – for example the United Nations and leading medical organizations” – that “access to contraception, and in some cases abortion, is an essential and basic aspect of women’s health care and even overall flourishing.”59 Helen Alvare, a law professor at George Mason University, claims that contraception does not prevent unintended pregnancies, because, inter alia, “a woman’s opinion might shift over the course of the pregnancy”60 and because “increased access to contraception is associated with the normalization of nonmarital sex and an increase in teen sexual behaviors leading to more teen pregnancies and abortions overall.”61 Moreover, “increasing access to contraception – associated with a message of sexual expression as freedom, and the good of sexual expression outside of the context of a relational commitment, or parenting – might itself harm women’s health.”62 These developments show that antiabortion discourses are increasingly characterized as protective of collective societal values, such as the

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Cesare Lombroso and Guglielmo Ferrero, Criminal Woman, the Prostitute, and the Normal Woman, ed. Nicole Hahn Rafter and Mary Gibson (Durham, NC: Duke University Press, 2004), 87. Hanna Clause and Manuel Cortes, “Psychological, Social, and Spiritual Effects of Contraceptive Steroid Hormones,” Linacre Quarterly 82, no. 3 (August 2015): 283–300. Helen M. Alvare, “No Compelling Interest: The ‘Birth Control’ Mandate and Religious Freedom,” Villanova Law Review 58, no. 3 (2013): 379–436, at 389. Ibid., 396. 61 Ibid., 401. 62 Ibid., 414.

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preservation of patriarchal structures and gender hierarchies, as well as sensitive to demographic preoccupations. An explicit assertion of the societal damages of abortion is contained in the “Report of the South Dakota Task Force to Study Abortion,” which the legislature of South Dakota created in 2005 with the aim to prepare a report that included proposals to change legislation. The report heavily relies on women-protective justifications for banning abortion. It also, however, elaborates at length on the societal harm it produces: The impact this pain, sadness, and anger has on our society is difficult to measure. We know it results in parenting problems, substance abuse, problems with relationships and personal issues, and sexual dysfunction. We do not know the cost of abortion to our society, in the form of the lack of productivity of the women, but we fear it is far greater than we can imagine. We do not know the cost to our society of losing the children who die in abortions, but we fear that the loss of their talent, productivity, and their love for their families and companionship with their mothers is far too great for us to imagine. We do not know the cost to our society by the shattered and broken relationships caused by abortion, and the anger and pain resulting from abortion, but we fear it is far worse than what we are able to comprehend. What we do know, and what we can say, is that abortion is unethical and immoral and our support of it as a society wounds all of us. It exploits the mother, destroys her rights, destroys her interests, and damages her health, and does so by killing her child. It isolates her in her pain by placing all of the blame for the loss of her child upon her. It kills an innocent human being, and in the process creates the illusion that a mother and her child – who in reality have interests in harmony with each other – are somehow enemies. It portrays life, the greatest of gifts, as an intruder of no worth. It portrays the role of mother as valueless.63

The Task Force emphasizes also the economic damages resulting from the legalization of abortion: By 1996, the cumulative effect of legalized abortion in the state was the loss of over 13,000 annually in the South Dakota K–12 school systems, and this number has remained at over 13,000 fewer students annually for the period 1996–2003. Declining enrollment is a major problem for our K–12 school system. We cannot begin to estimate the earnings and other contributions that these citizens would have made to our State.64 63

64

“Report of the South Dakota Task Force to Study Abortion, 2005,” Dakota Voice, 33–34, www .dakotavoice.com/Docs/South%20Dakota%20Abortion%20Task%20Force%20Report.pdf (accessed May 31, 2017). Ibid., 34.

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By relying on society-protective arguments, conservative social movements pursue a political agenda that reaches well beyond the regulation of reproductive rights, and is centered on the defense of the “natural family” as the fundamental unit of society. This agenda is clearly articulated in the “Manifesto of the Natural Family” written by Allan Carlson in 2005. The manifesto upholds the notion of gender equality not as equal treatment, but as complementarity: We affirm that women and men are equal in dignity and innate human rights, but different in function. Even if sometimes thwarted by events beyond the individual’s control (or sometimes given up for a religious vocation), the calling of each boy is to become husband and father; the calling of each girl is to become wife and mother. Everything that a man does is mediated by his aptness for fatherhood. Everything a woman does is mediated by her aptness for motherhood. Culture, law, and policy should take these differences into account.65 We believe wholeheartedly in women’s rights. Above all, we believe in rights that recognize women’s unique gifts of pregnancy, birthing, and breastfeeding. The goal of androgyny, the effort to eliminate real difference between women and men, does every bit as much violence to human nature and human rights as the old efforts by the communists to create “Soviet Man” and by the Nazis to create “Aryan Man.”66

Interestingly, Carlson’s manifesto relied, inter alia, on the work of Pitirim A. Sorokin, a Russian e´migre´ Harvard sociologist (1889–1968), who, together with Carle Zimmerman, wrote several influential studies in rural sociology, according to which only a rural lifestyle, based on a traditional model of family, an economy of manual work and home business, and a strong link of the individual to the inhabited territory, is sociologically, demographically, and economically sustainable.67 Sorokin furthermore abhorred the changes in American society, which he denounced in his pamphlet The American Sex Revolution,68 and he argued that “marriage and the family must be restored to their place of dignity among the greatest values in human life, not to be trifled with. As a socially sanctioned union of husband and wife, of parents and children, the family is to be radically differentiated from all unsanctioned sex association.”69 65

66 67

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Allan C. Carlson and Paul T. Mero, The Natural Family: A Manifesto (Dallas, TX: Spence Publishing, 2007), 25. Ibid., 25. Pitirim A. Sorokin and Carle C. Zimmerman, Principles of Rural–Urban Sociology (New York: H. Holt, 1929). Pitirim A. Sorokin, The American Sex Revolution (Boston, MA: P. Sargent, 1956). Pitirim A. Sorokin, The Reconstruction of Humanity (Boston, MA: Beacon Press, 1948), 148.

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Sorokin’s theses are among the foundations for the secular, professional pro-family discourse advocated by Carlson and the organization he helped to found, the World Congress of Families (WCF).70 These foundations gained prominence when, in 1997, Carlson started to act as bridge builder between American and Russian pro-family activists. He traveled to Moscow in order to meet a Russian scholar of similar views, demographer Anatoly Antonov. Carlson and Antonov shared an understanding of the crisis of the family and the roots of this crisis, and together, the men founded the WCF,71 which today functions as a transnational nongovernmental pro-family organization and has organized yearly congresses in support of the natural family across Europe, the United States, and the former Soviet Union. The important place of Russia in the global pro-family and pro-life movement is corroborated by WCF managing director Larry Jacobs, who said that “[g]iven its traditional support for faith and family, Russia will play an increasingly important part in the international struggle to preserve the natural family.”72 The WCF created a space for a partnership between various stocks of rightwing conservative actors across the United States, Europe, and Russia,73 motivated by different domestic and regional preoccupations, but unified by certain common transnational strategies, including that to “rebalance international human rights back towards the local and the indigenous, weakening the pull of a homogenizing, universal, and liberal agenda.”74 Women’s equality, especially in the sphere of reproductive rights, constitutes a particularly powerful obstacle in the pursuance of this agenda. Thus, just as had been the case in Europe, Russian moral conservatives have developed a powerful antireproductive-rights discourse, which, as we show in more detail, is heavily influenced by the rhetoric of US pro-life propaganda.

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Dmitry Uzlaner and Kristina Stoeckl, “The Legacy of Pitirim Sorokin in the Transnational Alliances of Moral Conservatives,” Journal of Classical Sociology, November 14, 2017, http:// journals.sagepub.com/doi/abs/10.1177/1468795X17740734. Christopher Stroop, “The Russian Origins of the So-Called Post-Secular Moment: Some Preliminary Observations,” State, Religion and Church 1, no. 1 (2013): 59–82. “Jacobs Finds Support for International Pro-Family and Pro-Life Movement in Moscow,” Christian News Wire, December 13, 2010, www.christiannewswire.com/news/4302615709 .html (accessed May 24, 2017). Doris Buss and Didi Herman, Globalizing Family Values: The Christian Right in International Politics (Minneapolis: University of Minnesota Press, 2003). Christopher McCrudden, “Human Rights, Southern Voices and ‘Traditional Values’ at the United Nations,” University of Michigan Public Law Research Paper No. 419 (May 28, 2014): 1–44, at 3, https://papers.ssrn.com/sol3/papers.cfm?abstractid=2474271.

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8.4.1 The Russian Orthodox Church’s Antiabortion Discourse and the Role of Conscientious Objection Russia’s history of abortion can hardly be compared with that of Western countries. The very nature of the legal and political system of the Soviet Union prevented the emergence of any constitutional struggle over abortion, together with the conceptualization of the latter as a “right.” Abortion was treated as an issue of public health, and its space was determined chiefly by demographic preoccupations: concerning population containment in the 1920s and concerning population growth under Stalin. Moreover, the absence of religion in the Soviet public sphere and the collectivistic socialist philosophy prevented any public discourse concerning the morality of abortion. After the fall of the USSR, however, abortion quickly became a central topic both for the Russian Orthodox Church (ROC) and for lay religious actors. The ROC tackled the abortion issue through a twofold lens. On one hand, it associated abortion with the dramatic population decrease of the 1990s, raising demographic concerns. On the other, it developed a theological discourse, in which abortion emerged in the first place as a pastoral issue: in a country where the average woman had undergone six or seven abortions in her life, and many Russians were in the process of rediscovering their faith, the mass abortions conducted during the Soviet past became a question for both personal and collective atonement. Thus, for example, the narrative of PAS was successfully transposed in Russia. Its significance, however, must be understood in the specific post-Soviet context, as a form of “collective affliction.”75 As Sonja Luehrmann explains, PAS is filtered through the Orthodox religion and collective trauma. The existence of the syndrome is taken for granted and used as a scientific explanation by activists as to “why women who had abortions need to participate in the struggle against it.”76 In post-Soviet Russia, women who became involved in religious practice traumatically “discovered” that they had committed a terrible sin: engaging in antiabortion activism thus acquired the significance of saving the next generation of women and giving a chance to a new generation of Russian children: “Russian activists interpret [PAS] through the lens of teaching about the consequences of sinful and virtuous actions that they learn through their 75

76

Sonja Luehrmann, “Innocence and Demographic Crisis: Transposing Post-Abortion Syndrome into a Russian Orthodox Key,” in De Zordo, Mishtal, and Anton, Fragmented Landscape, 103–22, at 116. Ibid., 112.

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involvement with the Church.”77 Thus, unlike in the West, PAS is not used by antiabortion activists to lower the moralistic tone of pro-life battles and to emphasize the materialistic individual dimension of the damage produced by abortion. To the contrary, “the trauma associated with abortion is imbued with moral significance.” Unborn children, the victims of a collective sin, simultaneously represent the horrors of the Soviet system and a hope for the future. And, as Luehrmann further notices, they are easier to mourn than other victims of the past regime, “because they pose no threat to the political elites.”78 The ROC has never hidden its preference for a complete ban on abortions. The teaching of the ROC on abortion has been elaborated in detail in the document The Basis of the Social Teaching of the Russian Orthodox Church (2000).79 The cardinal point of the ROC’s position is the rejection of abortion as murder: Since the ancient time the Church has viewed deliberate abortion as a grave sin. The canons equate abortion with murder. This assessment is based on the conviction that the conception of a human being is a gift of God. Therefore, from the moment of conception any encroachment on the life of a future human being is criminal.80

As a consequence of this rejection, the ROC elaborates two strategic attitudes vis-a`-vis abortion as a social fact and legal act. These attitudes appear contradictory at first, because one includes strategies of retreat and conscientious objection of the lay Christian living in a society judged as apostatic, whereas the other consists of active engagement of the Christian with public and political life in order to “improve” society and change existing laws. From the ROC’s perspective, the two attitudes are complementary and mutually reinforcing through a division of tasks: the lay Christian believer is called to bear witness to his or her faith through actions, and the Church hierarchies commit to an active dialogue with state authorities in view of “guiding” public morality, also in legislative terms. The first strategic attitude is expressed in the Social Doctrine as follows: “If the authority forces Orthodox believers to apostatize from Christ and His Church and to commit sinful and spiritually harmful actions, the Church should refuse to obey the state. The Christian, following the will of his 77 79

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This and the following quote are from ibid., 113. 78 Ibid., 116. “The Basis of the Social Concept,” Mospat, 2000, www.mospat.ru/en/documents/socialconcepts/ (accessed June 13, 2017). Official translation of ROC social doctrine by Moscow Patriarchate. Ibid.

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conscience, can refuse to fulfill the commands of state forcing him into a grave sin.”81 The second strategy is formulated by the ROC as a solution to the conflict arising from the first: If the Church and her holy authorities find it impossible to obey state laws and orders, after a due consideration of the problem, they may take the following action: enter into direct dialogue with authority on the problem, call upon the people to use the democratic mechanisms to change the legislation or review the authority’s decision, apply to international bodies and the world public opinion and appeal to her faithful for peaceful civil disobedience.82

Conscientious objection, therefore, is contemplated as a last resort rather than preferred strategy. The Social Doctrine further clarifies this issue. Conscientious objection is evaluated by the Church in the first place as a harmful principle, because it testifies that in the contemporary world, religion is turning from a “social” into a “private” affair of a person. This process in itself indicates that the spiritual value system has disintegrated and that most people in a society which affirms the freedom of conscience no longer aspire for salvation . . . The adoption of the freedom of conscience as legal principle points to the fact that society has lost religious goals and values and become massively apostate and actually indifferent to the task of the Church and to the overcoming of sin.83

Freedom of conscience is recognized only at a second step, as a last resort that “has proved to be one of the means of the Church’s existence in the nonreligious world, enabling her to enjoy a legal status in a secular state and independence from those in society who believe differently or do not believe at all.”84 Interestingly, an analogous view of conscientious objection was put forward in 2009 by a coalition of conservative Christian leaders in the United States, who signed the Manhattan Declaration, a “call for Christian unity on issues of life, marriage, and religious liberty.”85 The coalition of advocacy groups and ministries cuts across Christian traditions: in addition to many US evangelical and conservative Catholic leaders, its signatories include the primate of the Anglican Church of Nigeria, and the primate of the Orthodox Church in 81 85

Ibid. 82 Ibid. 83 Ibid. 84 Ibid. “A Call of Christian Conscience,” Manhattan Declaration, 2009, http://manhattandeclara tion.org/man_dec_resources/Manhattan_Declaration_full_text.pdf (accessed May 30, 2017).

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America. Eric Teetsel, the executive president of the Manhattan Declaration, was featured as a speaker at the 2015 World Congress of Families in Salt Lake City. The declaration calls Christians “to affirm our right – and, more importantly, to embrace our obligation – to speak and act in defense” of Christian principles. “We pledge to each other, and to our fellow believers, that no power on earth, be it cultural or political, will intimidate us into silence or acquiescence.” Like the ROC, the drafters of the Manhattan Declaration deplore the forced complicity of Christian taxpayers in providing abortion services, stating that “[m]any in the present administration want to make abortions legal at any stage of fetal development, and want to provide abortions at taxpayer expense” and indicate the correct legislative regulation of abortion, criticizing “[t]he President [who] has also pledged to make abortion more easily and widely available by eliminating laws prohibiting government funding, requiring waiting periods for women seeking abortions, and parental notification for abortions performed on minors. The elimination of these important and effective pro-life laws cannot reasonably be expected to do other than significantly increase the number of elective abortions.”86 In its final statement, the declaration openly vows civil disobedience: Because we honor justice and the common good, we will not comply with any edict that purports to compel our institutions to participate in abortions, embryo-destructive research, assisted suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family. We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances will we render to Caesar what is God’s.87

In the Social Doctrine of 2000, the ROC formulates a dual strategy for dealing with the issue of abortion. On one hand (strategy 1), the Church insists on the right of Christian doctors to refuse to conduct abortions on the ground of conscience, and promotes the rights of the Christian taxpayer not to be forced into compliance with public funding of abortions; and on the other (strategy 2), the ROC offers itself as a partner of the state to implement measures that will “align” public morality with the Church’s teachings. Strategy 1 is repeated several times throughout the Social Doctrine and not restricted to the question of abortion:

86

Ibid.

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Ibid.

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When compliance with legal requirements threatens his eternal salvation and involves an apostasy or commitment of another doubtless sin before God and his neighbor, the Christian is called to perform the feat of confession for the sake of God’s truth and the salvation of his soul for eternal life. He must speak out lawfully against an indisputable violation committed by society or state against the statutes and commandments of God. If this lawful action is impossible or ineffective, he must take up the position of civil disobedience.88

Chapter 11 of the Social Doctrine is dedicated to “Personal and national health.” The very fact that “national health” is correlated with personal health in the heading of the section suggests that the ROC sees individual health as instrumental to the health of the people. This becomes especially clear in the section dealing with abortion, which is introduced by an assessment of Russia’s demographic crisis: The Russian Orthodox Church has to state with deep concern that the peoples she has traditionally nourished are in the state of demographical crisis today . . . The Church has been continually occupied with demographic problems. She is called to follow closely the legislative and administrative processes in order to prevent decisions aggravating the situation. It is necessary to conduct continuous dialogue with the government and the mass media to interpret the Church’s stand on the demographic and healthcare policy. The fight with depopulation should be included in the effective support of medical research and social programs intended to protect motherhood and childhood, the embryo and the newborn. The state is called to support the birth and proper upbringing of children.89

Only after this explicit elaboration of strategy 2, is strategy 1, conscientious objection, again brought into play: “Sin also lies with the doctor who performed the abortion. The Church calls upon the state to recognize the right of medics to refuse to procure abortion for the reasons of conscience.” ROC extends the “responsibility for the sin of the murder of the unborn child” also “to the father if he gave his consent to the abortion” and concludes “[i]f a wife had an abortion without the consent of her husband, it may be grounds for divorce.” The ROC also condemns the use of “some contraceptives [that] have an abortive effect, interrupting artificially the life of the embryo on the very first stages of his life.”90 Other means of contraception, however, are not ruled out. Every single one of the points contemplated in the ROC Social Doctrine of 2000 with the view of changing the situation of abortion legislation in Russia

88

“Basis of the Social Concept,” Mospat.

89

Ibid.

90

Ibid.

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has subsequently been developed in public and, specifically, political debates about abortion, and in some cases has been incorporated in the legislative frame.91 The Russian government proved sensitive to both the analysis and the remedy proposed by the ROC. In the next section we showcase the contemporary legal frame and political discourse in Russia, influenced by the ROC position as well as by Western language and rhetoric. Since 2000, Russia has: 1. Created a joint committee of the ROC and the Ministry of Health to devise strategies reducing the numbers of abortion in 2010, which led to 2. Adopting a new law on public health that a. adds consultation and a waiting period to the procedure of having an abortion and b. gives medical personnel the right to refuse abortions; 3. Seeing the emergence of pro-life charity organizations; 4. Putting forward a legal proposal that makes the consent of male partners obligatory for women to have an abortion; 5. Adopting legislation that forbids advertisement for abortion and “abortive contraceptives”; moreover, 6. In 2016, proposed a referendum to abolish abortion in Russia; and 7. In 2016, debated taking abortion off the social health care system. 8.4.2 The Changing Landscape of Abortion Legislation in Russia In the Soviet Union, abortion was legalized in 1920 by the Bolsheviks, making Russia the first modern state that offered women medical abortion services on demand. Abortion was once again criminalized in 1936 and finally decriminalized in 1954. Subsequently, abortion became one of the main means of birth control as contraceptives were unavailable or unreliable and sexual education was lacking.92 In 1987, when the abortion rate had already 91

92

Not only has the ROC’s position on abortion found political implementation, also the ROC’s teaching on homosexuality has been written into law with the “Gay-Propaganda Legislation” in 2012. Cf. Alexandre Avdeev, Alain Blum, and Irina Troitskaya, “The History of Abortion Statistics in Russia and the USSR from 1900 to 1991,” Population: An English Selection 7 (1995): 39–66, at 61–62, www.jstor.org/stable/2949057; A. A. Popov, “Family Planning in the USSR: Sky-High Abortion Rates Reflect Dire Lack of Choice,” Entre Nous Cph Den 16 (September 1990): 5–7, www.ncbi.nlm.nih.gov/labs/articles/12222340; A. A. Popov, A. P. Visser, and E. Ketting, “Contraceptive Knowledge, Attitudes and Practices in Russia during the 1980s,” Studies in Family Planning 24, no. 4 (1993): 227–35, www.ncbi.nim.nih.gov/labs/articles/8212092/; Victoria I. Sakevich and Boris P. Denisov, “Birth Control in Russia: Overcoming the State System Resistance,” National Research University Higher School of Economics Working Paper

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decreased compared to the past decades, the average Soviet woman had five abortions over her reproductive life span.93 Today, even though more than twenty years have passed since the demise of the USSR, the rate of abortions in Russia, albeit much lower than in the Soviet period, remains among the highest in Europe.94 Against this background, since the beginning of the 2000s, Russia has seen a number of measures and initiatives aimed at reducing abortions and increasing fertility and population growth. These measures – on one side, legal restrictions on abortions; on the other, nonlegal initiatives aimed at preventing abortions – have turned Russia from being the country with one of the most liberal policies on access to abortion to a situation comparable to many European countries, where relatively restrictive measures are in place. The path to the present abortion regulations in Russia, in place since 2012, was accompanied by fierce debates that unfolded at all three levels of argumentation previously identified, at one and the same time: the fetus’s right to life, women’s health, and protection of society. Compared to Western countries, pro-life movements and activism in Russia are a recent phenomenon. Thus, while in the West there has been a temporal shift from fetus-protective to women-protective and to society-protective arguments in opposing abortion, in Russia the three arguments came to prominence simultaneously and merged in the public debate as a general narrative. What is special about the Russian situation is that antiabortion debates continue to be highly politicized, with a new wave of society- and fetus-protective arguments paving the way for potentially more restrictive legislation in the future. In the early 1990s, during the wave of democratic reforms taking place in Russia, the government adopted a federal target program on “Family Planning,” which was designed to change societal attitudes toward reproductive rights and sexual education. These efforts proved effective and by 2012, the number of abortions was 25 percent of the 1990s figure.95 Since then, however, the official position of the government has changed under the influence of the Russian Orthodox Church. Denisov and others write that “the Orthodox Church agitates extensively against advances in

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Series: Sociology 42 (June 2014): 1–25, June 2014, hse.ru/data/2014/06/02/1324958898/42SO C2014.pdf. Luehrmann, “Innocence,” 105. Francesca Stella and Nadya Nartova, “Sexual Citizenship, Nationalism and Biopolitics in Putin’s Russia,” in Francesca Stella, Yvette Taylor, Tracey Reynolds, and Antoine Rogers, eds., Sexuality, Citizenship and Belonging: Transnational and Intersectional Perspectives (New York: Routledge, 2016), 24–42. Sakevich and Denisov, “Birth Control in Russia,” 16–18.

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reproductive health and rights . . . [I]t successfully penetrated the public health decision making process.” One source even states that between 1998 and 2012, reproductive health centers decreased from more than 400 to 21.96 Under the influence of segments of society holding traditionalist and fundamentalist views, the advances in federal policies on family planning in the 1990s have been reversed: Today, they [traditionalists] constitute an influential social force, which stirs up negative associations with and agitates against family planning. The belief in the myth that birth control is synonymous to low fertility and that broader access to family planning services inevitably leads to fertility reduction has become rather widespread. This myth has not only become part of folk common-sense, but also has successfully penetrated the level of decision makers. The resumption of a program, similar to “Family planning,” is hardly possible given the current pronatalist course proclaimed by the Government of Russia.97

Legal initiatives geared toward restricting access to abortions in Russia started around the year 2000. The Russian law “Fundamentals of the Health Care of Russian Citizens” from 1993 had legislated that abortions can be performed upon women’s request up to twelve weeks of gestation or up to twenty-two weeks in the presence of certain “social reasons.” The definition of what constitutes eligible “social reasons” changed several times during the 1990s and 2000s. In 2003, the list of eligible causes for legal abortions after week 12 (except for medical reasons) was reduced drastically on the grounds of a women-protective argument, with the legislator arguing that late abortions carry high risks for women’s health.98 The list was finally reduced, in 2012, to only one point, namely rape.99 In 2011, the World Congress of Families (WCF) had held its first Demographic Summit in Moscow, bringing together leading US evangelicals, Orthodox Church leaders and prominent Russian politicians. In promotional

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Adam Federman, “How US Evangelicals Fueled the Rise of Russia’s ‘Pro-Family’ Right,” The Nation, January 7, 2014, www.thenation.com/article/177823/how_us_evangelicals_ fueled_rise_russiaspro_family_right (accessed April 6, 2017). Boris P. Denisov, Victoria I. Sakevich, and Aiva Jasilioniene, “Divergent Trends in Abortion and Birth Control Practices in Belarus, Russia and Ukraine,” PLoS ONE 7, no. 11 (2012): 1–14, at 8, http://dx.doi.org/10.1371/journal.pone.0049986. Steven Lee Myers, “After Decades, Russia Narrows Grounds for Abortions,” New York Times, August 24, 2003. Denisov et al. have found that abortions for “social reasons” represented only less than 1 percent of reported abortions (Denisov, Sakevich, and Jasilioniene, “Divergent Trends,” 4).

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materials the WCF claimed that the summit “helped pass the first Russian laws restricting abortion in modern history.”100 In effect, the draft bill submitted to the Duma stipulated, among other things, that before signing a consent form for abortion, a woman was required to visualize the fetus by means of ultrasound, to listen to the fetal heartbeat, to consult with a psychologist “that has to explain the right to refuse abortion.”101 While this rhetoric and language previously had no place in the Russian legal system, we have seen in our previous analysis that it is widespread in the US pro-life propaganda, and that analogous provisions have been adopted in several US states’ law. Erofeeva, and Denisov and others, associate the gradual tightening of reproductive rights in Russia over the past two decades with the official rhetoric of traditional family values and demographic crisis. In 2006, President Vladimir Putin made Russia’s demographic decline a major point of his annual address to the nation. One year later, the Russian government launched a program entitled “Demographic Policy for the Russian Federation – Present to 2025.” The program included monetary incentives for women to have more children and was almost exclusively built around a one-time monetary measure called “maternal capital.”102 During the same years, several legislative proposals were discussed, for example a complete ban on abortions, or the requirement to get a husband’s approval for abortions, none of which made it beyond the proposal stage.103 However, things began to change, according to Erofeeva, when in 2010 the Russian State Duma installed a Women, Family and Children Issue Committee with the participation of the Russian Orthodox Church. This committee, she concludes, had a decisive impact on the new Russian health law, which changed access to abortion significantly in 2012. The new law, “On the Fundamental Health Care Principles in the Russian Federation” (N232-FZ), included measures such as establishing a mandatory “week of silence” from seven days to forty-eight hours between the visit to a medical facility and the termination of pregnancy, depending on gestational age (Article 36), and the right of the doctor to refuse to perform medical “termination of pregnancy if it does not directly threaten the patient’s life and health of others” (Article 70).104

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Federman, “US Evangelicals.” 101 Stella and Nartova, “Sexual Citizenship,” 8. Michele Rivkin-Fish, “Pronatalism, Gender Politics, and the Renewal of Family Support in Russia: Toward a Feminist Anthropology of ‘Maternity Capital,’” Slavic Review 69, no. 3 (Fall 2010): 701–24. Lyubov Vladimirovna Erofeeva, “Traditional Christian Values and Women’s Reproductive Rights in Modern Russia – Is a Consensus Ever Possible?,” American Journal of Public Health 103, no. 11 (2013): 1931–34, at 1931–32, http://dx.doi.org/10.2105/AJPH.2013.301329. Stella and Nartova, “Sexual Citizenship,” 8–9.

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The 2012 law on fundamental health care principles effectively rendered the Russian abortion legislation similar to the situation in many Western European countries. It soon became quite evident, however, that the battle against abortions in Russia was not over with this step.105 8.5 PARALLELISMS IN TRANSNATIONAL SOCIETY-PROTECTIVE ANTIABORTION STRATEGIES

Despite the deep divergences in the history of abortion in Russia and the West, and despite the different significances of contemporary antiabortion struggles, current strategies against abortion in Russia and the West show some surprising similarities. In both cases antiabortion activism targets simultaneously the legal frame that allows for abortion as well as the de facto access to abortion services. Moreover, in all cases, antiabortion movements exhibit an incremental strategy: they pursue a particular legal change, but, once they obtain it, conflict is not settled. To the contrary, each victory galvanizes pro-life activists, who raise the threshold and engage in new battles. Several legal initiatives have followed the 2012 health law reform in Russia, all of which have the intention to further restrict access to abortion. This new set of initiatives thrives on society-protective arguments, such as in 2014, legislation on advertising (N38-FZ “On Advertisement,” Article 7) that rendered advertisement for abortions illegal, or, in 2015, an initiative to exclude abortions from the public health service. This last initiative resulted from the joint effort by members of Parliament Elena Mizulina and Vitaly Milonovand, and the ROC, with Patriarch Kirill arguing that believers have to be “liberated” from their obligatory compliance with the murdering of children through the state-imposed social security tax.106 This initiative failed to get support from the government. Yet, starting in December 2017 all medical facilities that offer abortions will have to obtain a special license. Interestingly, while the US and Russian health systems can hardly be compared, a strategy aimed at drastically reducing the number of abortion providers through clinic licensing has been at play in the United States for many years. In 2017, in Whole Woman’s Health v. Hellerstedt107 the US Supreme 105

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It is important to add that sociologists, based on comparative studies, have predicted that Russia’s exclusive focus on reducing abortions as a means to increase fertility levels will fail to achieve its goal if not combined with an equal investment in sexual education and familyplanning programs (Denisov, Sakevich, and Jasilioniene, “Divergent Trends”). “B Moskve Sostoyalos’ Sobranie Pravoslavnoj Obshchestvennosti, Vystupayushchej Protiv Abortov,” Mospat, June 29, 2015, www.mospat.ru/archive/41595.htm. Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016).

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Court struck down a number of provisions in Texas that required abortion providers to obtain admitting privileges and adhere to prohibitively expensive building requirements (like down-to-the-inch dimensions for hallways and janitors’ closets). These requirements would have shut down most clinics in Texas and in other states, such as Alabama, Mississippi, and Wisconsin, where efforts to enforce similar abortion restrictions fell. These restrictions have been traditionally defended by conservative politicians and pro-life activists on the ground that they aim at protecting women’s health.108 In Russia, the new government decree on clinic licensing was interpreted in the media as a bargain of the government with the pro-life movement: the government did not take abortions off the free social health care services, but has tightened the control over abortion facilities.109 This licensing policy creates the preconditions for taking abortions off the public health care service in the future, since it will allow, for the first time, the obtaining of precise statistics and information on abortions performed in Russia. It may also lead to banning private clinics from offering abortions. Consequently, the law could, in the long run, pave the way for even more restrictions on abortions.110 The ROC furthermore appears to be contemplating additional measures in terms of conscientious objection of medical personnel. When the 2012 law on health was passed, church commentators were not satisfied with Article 70 and would have preferred a more extensive article on conscientious objection to abortion following the model of the Declaration of the World Medical Association (WMA) of Oslo on Therapeutic Abortions.111 Given the Church’s active participation in the antiabortion struggle, its doctrinal stance on conscientious objection, and the influence of US pro-life movements, it is conceivable that the conflict over conscientious objection will escalate in Russia similarly to how it has escalated in the West. Article 70, while rather 108

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On the implications of this decision see Linda Greenhouse and Reva Siegel, “The Difference a Whole Woman Makes: Protection for the Abortion Right after Whole Woman’s Health,” Yale Law Journal Forum 126 (2016) (“Yale Law School Public Law Research Paper No. 578,” SSRN, August 16, 2016, https://ssrn.com/abstract=2838562). “Litsenziya Na Abort: Orenburgskie Kliniki Obyazali Poluchit’ Spetsial’noe Razreshenie,” RIA 56, December 13, 2016, www.ria56.ru. Dmitrij Ivanov, “Litsenziya Na Abort – Novyj Kamen’ Pretknoveniya Na Puti Otechestvennogo Zdravookhraneniya,” February 15, 2017, Pravo-Med, www.pravo-med.ru. Igumena Kseniya (Chernega), “Reply to the Question Chto mozhno posovetovat’ akusheruginekologu, ne zhelayushchemu v svoej rabote proizvodit’ aborty? (What Advice Should Be Given to the Obstetrician-Gynecologist Who Does Not Want to Perform Abortions in His Work?),” Pastyr’/Priest.today, February 12, 2017. The WMA Declaration states that “If the physician’s convictions do not allow him or her to advise or perform an abortion, he or she may withdraw while ensuring the continuity of medical care by a qualified colleague.”

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restrictive compared to US and European provisions protecting medical personnel unwilling to participate in abortion procedures, is remarkable in the Russian legal frame, which did not traditionally recognize consciencebased exemptions to general laws. In Western democracies, the right to conscientious objection arose in the context of individuals refusing to bear arms or to serve in the army, and was invoked by marginal minorities (such as Jehovah’s Witnesses or pacifists) holding anomalous religious or moral views. With the decriminalization of abortion, most countries introduced provisions providing the right to conscientious objection for medical personnel. Such provisions were very similar to Article 70 of the Russian 2012 law. In Italy, for example, Article 9 of Law 194/1978 states that medical personnel may object to participating in abortion procedures, but that this does not apply to ancillary activities (pre- and post-abortion care) and that objection may not be invoked if a woman’s life is in danger. Moreover, this provision requires public health care facilities to ensure that women have access to abortion procedures and regional authorities to supervise and ensure the implementation of the law. In Italy, just as in other Western countries, the rationale of conscientious objection provisions was to shield medical personnel hired prior to the decriminalization of abortion. In other words, in Western countries conscientious objection was introduced as a necessary complement to the liberalization of abortion: in the words of the UK Supreme Court, “[t]he conscience clause was the quid pro quo for a law designed to enable the health care profession to offer a lawful, safe and accessible service to women.”112 In Russia, by contrast, Article 70 was adopted together with other provisions aimed at restricting access to abortion, in a context where medical personnel had traditionally treated pregnancy terminations as a morally irrelevant form of contraception. Since the 1970s, in Western countries, the claimed space for conscientious objection in the field of reproductive rights has expanded dramatically. Against the backdrop of a rather restrictive conscientious objection provision, in today’s Italy more than 70 percent of medical personnel object to performing abortions, young doctors are not trained to perform abortions, and those who do not object often suffer career damages. The European Committee for Social Rights condemned Italy in 2013113 for the “shortcomings [that] exist in the provision of abortion services,” which violated the right to health care 112

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Greater Glasgow Health Board (Appellant) v. Doogan and Another (Respondents) (Scotland) [2014] [2015] AC 640, [2015] 2 All ER 1, [2015] 1 AC 640, [2014] UKSC 68. International Planned Parenthood Federation European Network (IPPF-EN) v. Italy, Complaint no. 87/2012 (ECSR, decision adopted on September 10, 2013 and delivered on March 10, 2014).

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alone and read in conjunction with the nondiscrimination clause. According to the Committee, discriminatory treatment occurred on the grounds of socioeconomic and territorial status, health status, and gender, which constituted a case of “overlapping,” “intersectional,” and “multiple” discriminations.114 In a subsequent decision of 2016,115 the Committee condemned Italy also for the violation of the right to work, and of the right of dignity at work, on the grounds of the difference in treatment between objecting and non-objecting medical practitioners. In 2017, a heated debate followed the decision of the Rome Region (where objecting personnel is more than 90 percent) to set a public competition to select physicians for hire in a major hospital. A prerequisite to access to the competition was a declaration that they did not object to performing abortions. The regional authority justified this decision on the ground that women’s right to health care could not have been guaranteed under the current predicament. Many countries have also experienced a multiplication of refusals to deliver services and perform activities that do not imply direct participation in an activity that the individual considers incompatible with his or her religion, such as selling contraceptives, prescribing prenatal tests, providing reproductive health-related information, and so forth. The UK Supreme Court recently ruled against the widening of conscientious objection to activities not directly related to performing abortions in the Doogan case, which concerned the claim by Catholic midwives employed as Labour Ward Coordinators who objected to “delegating, supervising and/or supporting staff to participate in and provide care to patients throughout the termination process.” The court clarified that the words “to participate in” an abortion procedure mean “taking part in a ‘hands-on’ capacity” and do not extend to the managerial and supervisory tasks required of a Labour Ward Coordinator, which are administrative in nature, and do not amount to taking part directly in the treatment bringing about the termination of pregnancy.116 In the United States, following the Roe v. Wade decision, Congress adopted the Church Amendment in 1973,117 which provided that receipt of federal funds would not provide a basis for requiring a physician or nurse “to perform or assist in the performance of any sterilization procedure or abortion if his performance or assistance in the performance of such procedure or abortion 114 115

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Ibid., para. 190. Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint no. 91/2013 (ECSR, decision adopted and delivered on April 11, 2016). Greater Glasgow Health Board (Appellant) v. Doogan and Another, at para. 38. The Church Amendment was passed as part of the Health Programs Extension Act of 1973, Pub. L. No. 93–45, § 401(b)-(c), 87 Stat. 91, 95.

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would be contrary to his religious beliefs or moral convictions,”118 and that no “entity” could be compelled to “make its facilities available for the performance of any sterilization procedure or abortion if [such] performance . . . is prohibited by the entity on the basis of religious beliefs or moral convictions.”119 “In the 1990s and 2000s, laws at the state and federal levels grew to include contraception and to cover a much broader range of acts and actors. This new generation of laws went beyond the Church Amendment and plainly sought to accommodate objections to many more forms of conduct, interactions, and associations thought to make the objector complicit in the wrongdoing of another person.”120 The escalation of religiously motivated exemption claims reached its peak in 2014 with the Hobby Lobby case,121 in which the claimants, closely held for-profit corporations, objected to providing their employees’ health insurance benefits that covered certain contraceptives (such as the morning-after pill and intrauterine devices that they deemed “abortifacient”), under the Affordable Care Act. The latter, colloquially known as “Obamacare,” mandated individual health insurance and employers of a certain size to insure their employees as part of the employment relationship. In particular, this insurance explicitly included an obligation to offer contraceptive coverage to any woman who wished to avail herself of it. This was an important change from the previous insurance arrangement that often denied women the essentials of reproductive health coverage, which put women at a disadvantage in obtaining equal access to health care. Obamacare sought to remedy these deficiencies but immediately ignited a heated debate that coalesced libertarian interests set against government intervention and religious interests rigidly opposed to promotion of reproductive rights. The Supreme Court upheld the claim by Hobby Lobby that offering to their employees the required health care substantially burdened their free exercise of religion under the Religious Freedom Restoration Act (RFRA).122 The Court did however find that the employees would not lose their contraception coverage because the state itself could provide for it. Remarkably, as of this writing, the Trump administration has proposed to expand the exemption from contraceptive coverage in two essential ways. First, unlike the result in the Hobby Lobby decision, the exemption would not allow women to get alternative insurance coverage. Second, the exemption would extend not only 118 120

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42 U.S.C. § 300a-7(b)(1) (2012). 119 42 U.S.C. § 300a-7(b)(2)(A) (2012). Douglas NeJaime and Reva B. Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (2015): 2516–91, at 2538. Burwell v. Hobby Lobby Stores, Inc. 134 S. Ct. 2751 (2014). Religious Freedom Restoration Act of 1993, Pub. L. No. 103–141, 107 Stat. 1488 (November 16, 1993).

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to religious but also to any moral objection asserted by the employer. To buttress this expansion, the proposed rule insinuates that contraception is not effective in preventing pregnancy and abortion for unmarried women and that it fosters extramarital sex.123 As Priscilla Smith highlights, this is reminiscent of the inclusion in an 1873 anti-obscene-literature bill of a ban on contraceptive devices and abortifacients on the ground that “[w]here obscene literature inflame desires, contraceptives and abortion enabled people to act on their sexual desires and engage in sex while escaping the fear of procreation and sexually transmitted diseases.”124 These developments indicate that the antiabortion movements do not in fact pursue the reasonable accommodation of conscientious objectors, but an incremental agenda, whereby each accommodation is a step further toward the ultimate victory over reproductive rights. This agenda heavily interferes with the democratic process by camouflaging policy objectives under individual claims of conscience. Thus, while traditional invocations of conscientious objection were aimed at protecting minority views and minority religious practices, today religious exemptions in the field of reproductive rights are overstretched and invoked to thwart the implementation of laws intended to advance the equality of women, in the name of traditional religious views. The latter often overlap with and reinforce a broader political agenda. The controversy surrounding the adoption of Obamacare also suggests that Hobby Lobby is part of a larger political strategy by social conservatives aimed at preserving the traditional prejudice of conservative American politics against government interventionism and socialized medicine. In Russia, the introduction of a conscientious objection clause in Article 70 of the 2012 law, and its critical reception by the ROC, seems to suggest that antiabortion activism foresees a similar incremental path as in the United States. In fact whereas the Russian Orthodox Church’s strategy has been one of influencing public policy in order to change the legal situation of abortion in Russia, radical pro-life civil society movements have mobilized to ban abortion in Russia altogether. In 2015/2016, the Orthodox Christian Association For Life (Zazhizn’) launched a popular referendum to ban abortions completely. The referendum gained little support among politicians, but gathered around half a million signatures according to the organizers. In the pro-life strategy of Zazhizn’, the connection between fetus-protective arguments and the cult of

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“Proposed Rule Coverage of Certain Preventive Services under the Affordable Care Act” [Billing Codes: 4830–01-P; 4510–029-P; 4120–01-P; 6325–64], https://assets.documentcloud .org/documents/3761268/Preventive-Services-Final-Rule-0.pdf (accessed June 6, 2017). Ibid.

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the Russian nation is apparent. Vladimir Potikha, at the time the vice president of the organization, has argued that the prohibition of abortion in Russia should contribute to making Russia a great power again, much like the Soviet Union in the past. For this purpose he even created an emblem based on the state emblem of the Soviet Union, replacing the hammer and sickle in the center with a baby inside a uterus, his organization’s symbol. He explained that the slogan “Proletarians of the world unite” had a hidden meaning, because the Latin term proles originally meant “offspring.” Potikha glosses over the paradox that abortion in the Soviet Union was legal; as a matter of fact, he blames the legalization of abortion in the Soviet Union on “Jewish doctors” and hails the Stalinist period of criminalization of abortion as a successful project and as a response to eugenics in Nazi Germany.125 In short, the ideology fueling the pro-life agenda of the organization Zazhizn’ is nationalist, Orthodox, and anti-Semitic. These ingredients – nationalism, Orthodoxy, anti-Semitism, and Stalinism – are a common feature of the Russian right.126 The Russian pro-life movement looks attentively to the West and in particular to the United States. Activists interviewed by us confirmed that already during the 1990s there were contacts with pro-life movements from the United States, who shared informational material with them: “When we saw pictures . . . from the United States [of aborted children], well, from the American prolife movement, yes, we realized that . . . it is necessary to stop the killing of children,” one interviewee said to us.127 Another interviewee recalled that the two most influential pieces of information imported from the United States in the early 1990s were the film Silent Scream (1984), for which they acquired the rights and prepared a professional translation, and the translation of the Handbook on Abortion (1971) by John C. Willke.128 This activist explained that he has almost daily contacts with pro-life organizations in the West, many of them connected with the Catholic Church, but also with American Protestants and Anglicans. The Russian activists interviewed by us, 125

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Vladimir V. Potikha, “Iz Istorii Prenatal’nogo Infantitsida: Vekhi I Daty Proshedshego Stoletiya,” YouTube, March 2, 2017 (video uploaded by Festival Za Zhizn’, registered January 27, 2017 in the context of the XXV Christmas Readings, Hotel Salyut, Moscow, 2017). Alexander Verkhovsky, “The Role of the Russian Orthodox Church in Nationalist, Xenophobic and Antiwestern Tendencies in Russia Today: Not Nationalism, but Fundamentalism,” Religion, State, and Society 30, no. 4 (2002): 333–45. Person B, interview by Olena Kostenko, Moscow, January 2017 (conducted in the context of the Project Postsecular Conflicts [PI Kristina Stoeckl], with a Russian pro-life activist). Person A, interview by Olena Kostenko, Moscow, January 2017 (conducted in the context of the Project Postsecular Conflicts [PI Kristina Stoeckl], with a Russian pro-life activist).

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who use the anglicized term “pro-life” in Russian (pro-lajf), freely admit to obtaining and translating informational material from the West, and to discovering topics previously not in the focus of the Russian pro-life movement, for example the battle against contraceptives that are considered to have an abortive effect. Russian pro-life activists interpreted the election of Donald Trump as president of the United States as an opportunity for antiabortionists in Russia and worldwide. A few days after President Trump signed an executive order on January 23, 2017, barring federal funds from organizations that promote abortion around the world,129 including the International Planned Parenthood Federation (the policy, known as the Mexico City Policy or the Global Gag Rule, was ushered in under Ronald Reagan and bars federal funds from going to foreign organizations that perform abortions overseas or lobby for the practice’s legalization in other countries), one Russian activist was on record as having expressed the hope that this act will have beneficial effects on Russia, preventing “such organizations from destroying family values here in Russia.” It was up to Russian pro-life organizations, this activist concluded, to fill the void left by no-longer-funded prochoice groups.130 Importantly, pro-life activists in Russia do not feel that they have the Russian government on their side; rather, they lobby and mobilize the public for their ideas in order to force the government into action. Galina Semionova, who directs a crisis center in Saint Petersburg, characterized her work as an “antistate activity.”131 However, they also feel in a minority position inside their own society. One activist interviewed by us lamented the fact that an antiabortion rally in Moscow collects no more than 2,000 to 3,000 people, whereas the March for Life in Washington regularly gathers large support,132 and another activist commented that Russian society was ready neither for a complete prohibition of abortion nor for militant antiabortion actions as common in the United States.133 As Luehrmann notices, Russian antiabortion activists portray themselves as anti-state as well as patriots “because of the specific history of abortion and reproductive legislation in the Soviet Union.”134 It also became apparent from our fieldwork that the Russian prolife movement is divided in strategic terms, with one civil society branch 129

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“Presidential Memorandum Regarding the Mexico City Policy,” www.whitehouse.gov/thepress-office/2017/01/23/presidential-memorandum-regarding-mexico-city-policy. Sergey Chesnokov, “Sovremennaya Diskusiya,” YouTube March 2, 2017 (video uploaded by Festival Za Zhizn’, registered January 27, 2017 in the context of the XXV Christmas Readings, Hotel Salyut, Moscow, 2017). Quoted by Luehrmann, “Innocence,” 103. Person B, interview by Olena Kostenko, Moscow, January 2017. Person A, interview by Olena Kostenko, Moscow, January 2017. Luehrmann, “Innocence,” 104.

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aiming at maximalist solutions (like the complete ban on abortions), and another branch, closely related to the Patriarchate of Moscow, more focused on pastoral care, education, and legislative influence in small steps. 8.6 CONCLUSIONS: ANTIABORTION MEASURES “IN THE NAME OF SOCIETY”

In this chapter, we have demonstrated parallelisms between and in some places a direct influence of antiabortion arguments and strategies matured in the United States and antiabortion debates in Europe and Russia. We have made a distinction between fetus-centered, women-centered, and societycentered strategies and have shown that arguments against abortion in the name of society as a whole are gaining increasing appeal across all three regions. In Russia, in particular, society-centered arguments have been reshaped against the backdrop of the collective trauma resulting from Soviet abortion practices. Hence, while in Western democracies the focus of abortion discourses has traditionally been the individual, in Russia the question of abortion structurally acquires a collective dimension. This collective appeal has been heavily reinforced by the demographic preoccupations raised by the Russian government and the ROC following the collapse of the USSR. Thus, in Russia, antiabortion arguments translate predominantly into societyprotective arguments, even if they are articulated in terms of fetuses’ rights or women’s health. Echoes of the society-protective antiabortion arguments are increasingly perceivable in the contemporary Western debate. They constitute, on one hand, an evolution of fetus- and women-protective justifications for restricting reproductive choices. In the United States, they thus represent a further step of escalation in the ongoing culture wars that are characteristic of an American society heavily divided over moral issues. On the other hand, society-protective arguments may be gaining global appeal precisely through the persuasiveness they have acquired in the Russian context and, for that matter, all over Central and Eastern Europe. The political rhetoric of defending traditional values and the natural family are at the heart of an organization like the WCF or the ecumenical contacts of the ROC. The global activism of these actors spreads the message beyond narrow circles of pro-life activists and church leaders and contributes to raising the stakes in the transatlantic and transnational antiabortion discourse. The evidence presented here suggests that, on the question of abortion, reasonable accommodation may reach its limits. Antiabortion movements pursue an incremental agenda, whereby each accommodation is a step further toward the ultimate victory over reproductive rights. The venues for this

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agenda are multifold: political parties, national governments, national and international courts, transnational civil society. Antiabortion activism thereby indicates a broader trend in the politicization of social conservative values: in liberal democratic societies claims based on morality and conscience will usually find reasonable accommodation through the instrument of legal exemptions. The abortion debate is one instance of such claims where social conservatives no longer merely want to be accommodated by the legal system; they want to give shape to it.135 In countries where antiabortionists do not achieve this goal through majoritarian political means (by being voted into political positions that would allow them to pursue their program), they pursue their policy objectives in a way that thwarts the implementation of laws, that is, through mass objection to abortion and through the extension of conscientious objection and religious exemptions to arenas that no longer represent a close and direct nexus between the objector and the objected action, such as refusal to pay for health services in the Hobby Lobby case and in recent policy proposals in Russia. Disagreement over fundamental moral and religious questions is an inevitable feature of modern pluralistic societies. Indeed, robust disagreement that forces opponents to make compromises is a motor for democratic politics. If we look at the evolution of antiabortion arguments as described in this chapter through the lens of Habermas’s theory of a “post-secular society,” what strikes us is that today’s society-centered antiabortion strategies appear ever less conducive to the “complementary learning process” envisioned by the German philosopher and thus to compromise.136 In the past, fetus- and women-protective arguments may have served as correctives in debates over reproductive rights. When abortion was decriminalized in Western Europe and in the United States in the 1970s against the opposition of the Catholic Church and of conservative social actors, the compromise found – pitting women’s rights against the interests of the fetus – proved remarkably durable. This compromise is objectionable on many levels: first, it prioritizes privacy over equality and, second, it seems to privilege the physician’s expertise over the woman’s autonomy.137 In spite of all its shortcomings, on pragmatic grounds, this compromise remains preferable to the new lines of argumentation that are bent on quashing all conflicts of rights in the name of society. 135

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Kristina Stoeckl, “Political Liberalism and Religious Claims: Four Blind Spots,” Philosophy and Social Criticism 43, no. 1 (2017): 34–50. Ju¨rgen Habermas, “Religion in the Public Sphere,” European Journal of Philosophy 1, no. 14 (2006): 1–25. See Ruth Bader Ginsburg, “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade,” North Carolina Law Review 63, no. 2 (1985): 375–86, and Catharine Mackinnon, “Reflections on Sex Equality under Law,” Yale Law Journal 100, no. 5 (1991): 1281–328.

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The “conflict of rights” model de facto left space for the expression and interaction between a plurality of views, whereas the new rhetoric in effect cuts off all discussion and imposes a unidimensional ideological and political point of view. The compromises that matured out of heavy controversy decades ago seem at risk today. Society-protective strategies that rely on overstretched conscientious objection claims no longer aim at finding rules valid for all, which everybody can more or less live with, but rather desire purity for a selected group of people at the expense of access to rights for others. In this sense, society-centered arguments are profoundly divisive: they divide hospitals, communities, and entire populations into those who consciously object and those who do not. Furthermore, they construct an enemy (the “culture of death”) where, in reality, we have conflicting claims that should be handled, with responsibility and reasonability, in the light of the fact that in complex societies complete partisan victories are unattainable and ultimately undesirable. Legal exemptions for conscientious objectors are a last resort of accommodation of divergent views in pluralistic democratic societies. If they become majoritarian, as in the case of some regions of Italy, or if they extend to causes such as paying taxes, as in the case of American or Russian debates, they become democratically problematic. The criteria for granting such exemptions must therefore be handled with care. Opposition to abortion and contraception has become a standard feature of right-wing populist political agendas across Europe and the United States. It frequently comes with advocating for isolationism, nationalism, antiimmigration policies, and cultural protectionism. The Trump administration provides a salient example of this new ideological campaign, by combining the dismantling of the mainstays of reproductive freedom with xenophobic and Islamophobic language and immigration measures. The antiabortionists’ dream, just like the populist dream, is a self-selected purity in a world they divide between “us” and “them.” For liberal democracies, this aspiration, which is fueled by transnational activism and shared arguments and strategies across countries, constitutes a major challenge.

9 The Geopolitics of Transnational Law and Religion Wars of Conscience and the Framing Effects of Law as a Social Institution Pasquale Annicchino1

9.1 INTRODUCTION

A few months before the fall of the Berlin Wall, Francis Fukuyama announced the “end of history.”2 The ideas of liberal democracy would take center stage: human rights would become a cornerstone of the international political order, as would capitalism. A real sense of the close of history was spreading. But, as Robert Kaplan has pointed out, unfortunately this “was an era of illusions.”3 What we are now witnessing in many parts of the world (including in the West) is a return of identitarian politics and many challenges to liberal constitutionalism.4 Law and its interpretation are now being shaped not by positivistic assumptions and doctrines, but increasingly by the “material” forces of history and politics. Religious groups – and often-forgotten religious laws – are playing a central role in this effort, shaping the new legal and political imagination.5 They 1

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This research was conducted under the auspices of the Grassrootsmobilise project, supported by a grant from the European Research Council (Grant no. 338463, 1/2014–12/2018). I would like to express my gratitude to Silvio Ferrari and Andrea Pin for comments and criticism on earlier drafts of this chapter. Francis Fukuyama, “The End of History?,” The National Interest (summer 1989). Later expanded and published as a book. See Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). Robert D. Kaplan, The Revenge of Geography (New York: Random House, 2012), 4. See Nadia Marzouki, Duncan McDonnell, and Olivier Roy, eds., Saving the People: How Populists Hijack Religion (London: Hurst, 2016). For the impacts on legal developments, see Susanna Mancini, “The Tempting of Europe, the Political Seduction of the Cross: A Schmittian Reading of Christianity and Islam in European Constitutionalism,” in Susanna Mancini and Michel Rosenfeld, eds., Constitutional Secularism in an Age of Religious Revival (Oxford: Oxford University Press, 2014), 111–35. On the necessity to rediscover religious laws for the purpose of comparative constitutional law scholarship see Ran Hirschl, “Early Engagements with the Constitutive Laws of Others: Possible Lessons from Pre-Modern Religious Laws,” Law and Ethics of Human Rights 10,

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are at the core of a global trend of conscience and culture wars6 that are reshaping our understanding of law and culture. Within this framework appeals to conscience are therefore often used to claim exemptions from applicable laws in the name of the right to freedom of religion or belief. The wider the spectrum and the definition of religion, the wider will be the exemption claimed. The aim of this contribution is to contextualize the current wars of conscience within the global scenario of culture wars through the frame of legal narrative and geopolitical imagery,7 in which religious factors and variables play a significant role. Legal orders and consciencerelated conflicts are therefore understood in the context of a constantly shifting and fragmenting international legal regime. To this end, Section 9.2 focuses on transnational law and religion and the role of courts as framing actors. Section 9.3 introduces key concepts developed by Samuel Huntington, using a civilizational perspective to frame current global culture and wars of conscience. Section 9.4 examines how these controversies are also deeply divisive within civilizational blocks which, according to Huntington’s approach, share similar cultural and religious values. Section 9.5 discusses the interaction and possible balance of individual and collective rights in this context, with a particular focus on rights of conscience. I argue that, in the context of the increasing fragmentation of the national and international legal regime for the protection of human rights (often driven by the positions taken by religious groups and religious laws), finding an easy balance between rights of conscience and other civil rights will be a challenge. An analysis based on the geopolitical framing effects of different legal systems, however, can help provide a deeper understanding of this global debate. 9.2 TRANSNATIONAL LAW AND RELIGION: COURTS AS FRAMING ACTORS

Developments in legal scholarship point toward a new global dimension of law: in the international arena, the production and enforcement of legal

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no. 1 (2016): 71–108. On the notion of “legal imagination” see James Boyd White, The Legal Imagination (Chicago: University of Chicago Press, 1985). On the notion of “culture wars” see James Davison Hunter, Culture Wars: The Struggle to Control Family, Art, Education, Law and Politics in America (New York: Basic Books, 1992). For a Christian perspective on contemporary culture wars, see James Davison Hunter, To Change the World: The Irony, Tragedy and Possibility of Christianity in the Late Modern World (New York: Oxford University Press, 2010). See among others Pier Giuseppe Monateri, Geopolitica del diritto: Genesi, governo e dissoluzione dei corpi politici (Bari: Laterza, 2013).

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norms outside of the state is an ongoing trend that challenges the traditional paradigm developed by legal positivism.8 Private actors, NGOs, courts, public interest law firms, states, and religious groups all contribute to the reimagining of the concept of what law is and how it is applied;9 in doing so, they also shape a new conception of normativity. Conscience-related conflicts can therefore also be characterized as true “transnational culture wars.”10 Significant contributions in this area have been made by some religious groups whose theological heritage includes a developed understanding of the relationships between law and society and the role of the state.11 In the United States and Europe, relations between religious groups and the state have recently been challenged through litigation aimed at reshaping regulations in specific fields of law, but also at reimagining our legal landscape. Scholars in this field witnessed the apex of some of these trends in the March 2011 European Court of Human Rights (ECtHR) decision in Lautsi v. Italy.12 As it emerged, and as I have tried to demonstrate,13 the outcome of that judgment was also the result of a truly transnational litigation effort, which revealed clear geopolitical14 and strategic differences in conceptions of law, constitutionalism, and the relationship between law and religion. It is worth asking what those geopolitical differences were, and how they could help us to better understand developments in transnational law and religion. This case could be read, through a very parochial lens, as an effort by the conservative Berlusconi-led 8

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I rely for this contribution on the methodological approach of the “Law and Social Movements” scholarship. As Michael McCann has pointed out, “process-oriented legal mobilization approaches are typically much more expansive in conceptualizing law, especially regarding the legal norms and discursive logics at stake in many social struggles. The interpretive perspective begins by rejecting conventional positivist understandings of law largely limited to discrete, determinate rules or policy actions. Rather, law is understood as particular traditions of knowledge and communicative practice.” Michael McCann, “Law and Social Movements,” in Austin Sarat, ed., The Blackwell Companion to Law and Society (Malden, MA: Blackwell, 2004), 507. Christopher McCrudden, “Transnational Culture Wars,” International Journal of Constitutional Law 13, no. 2 (2015): 434–62. Ibid. See Silvio Ferrari, “Tra geo-diritti e teo-diritti: Riflessioni sulle religioni come centri transnazionali di identita`,” Quaderni di Diritto e Politica Ecclesiastica 1 (April 2007): 3–14. Lautsi v. Italy, European Court of Human Rights, March 18, 2011 (30814/06). See Pasquale Annicchino, “Winning the Battle by Losing the War: The Lautsi Case and the Holy Alliance between American Conservatives, Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity,” Religion and Human Rights: An International Journal 6 (2011): 213–19. For the relationships between geopolitics and law, see Alexander Orakhelashvili, “International Law and Geopolitics: One Object, Conflicting Legitimacies?,” Netherlands Yearbook of International Law 39 (2008): 155–204; Rein Mu¨llerson, “Ideology, Geopolitics and International Law,” Chinese Journal of International Law 15, no. 1 (2016): 47–73.

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government to exploit religion for political purposes, with the national administrative courts, as often happens, tending to defend government prerogative,15 the reactions of NGOs, and the first-instance decision of the Strasbourg Court, and ending with the final decision on the “margin of appreciation,” to be understood as the vindication of national prerogatives vis-a`-vis supranational institutions. This could be a true story, and it is the narrative used by many scholars who have commented on the decision. In fact, this is the most obvious and true legal analysis. But the case can be read in a very different way. Of course, as I mentioned, the previous narrative is true, yet it is only part of a larger story, and likely not the most important one. It satisfies a normativist and positivist legal narrative, where all legal developments can be explained by legal doctrines. With this chapter I aim to show that sometimes it is also worth taking a look at the larger legal picture, an understanding of what law is, not based on conventional positivistic assumptions. First of all, this case is a clear representation of the increasing role of transnational activism in litigation and the politics of litigation.16 Clifford Bob provides a useful definition of transnational activism that includes three distinct phenomena: 1) non-state actors based in one country forming transnational advocacy networks (TANs) with similar entities in other countries; 2) these networks then seeking to influence ideas and policy in other societies; and 3) the networks seeking to affect international organisations and their member state as they develop global policy.17

The development of these networks involves all positions within the political spectrum, from those supporting progressive causes to those sharing a more conservative view of society. Transnational actors are particularly active before certain domestic courts, such as the US Supreme Court, but also before the ECtHR. For instance, Laura van den Eynde has noticed an increase of thirdparty interventions before the ECtHR over the years. The Anglo-Saxon legal 15

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For an English translation of the national court’s decisions in the Lautsi case, see Pasquale Annicchino and Frederick M. Gedicks, Lautsi v. Italy, English Translation of Italian Trial and Appellate Decisions, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361188. On this transnational dimension of litigation see also Reva Siegel, “Dignity and Sexuality: Claims on Dignity in Transnational Debates over Abortion and Same-Sex Marriage,” International Journal of Constitutional Law 10 (2012): 355–79; and Chapter 7 in this volume, Section 7.1.3. Clifford Bob, “The Global Right Wing and Theories of Transnational Advocacy,” International Spectator: Italian Journal of International Affairs 48, no. 4 (2013): 71–85, at 72. See also Clifford Bob, “The Global Battle over Religious Expression: Sweden’s Ake Green Case in Local and Transnational Perspective,” Journal of Ethnic and Migration Studies 40, no. 2 (2014): 212–29; Clifford Bob, The Global Right Wing and the Clash of World Politics (Cambridge: Cambridge University Press, 2011).

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world is rather hegemonic in this area, with the United Kingdom and the United States totaling up to 45 percent of the interventions before the Strasbourg Court. As Laura van den Eynde points out, “the largest group of NGOs active before the Court is based in the United Kingdom. Interestingly, the second largest group of NGOs comes from the US. Among them, five are law school clinics. The remaining NGOs are dispersed over Central, Eastern and Southern Europe. The small presence of Scandinavian groups is noteworthy.”18 It is therefore worth asking why NGOs and public interest law firms increasingly make use of third-party interventions before national and international courts and, in general, why they seem to be so focused on the role of judicial power in adjudicating highly political disputes. Court judgments need not be seen only through the traditional prism of legal enforcement and legal positivism. For instance, in a system with weak enforcement provisions, such as the one governing enforcement of judgments in the Council of Europe,19 judicial decisions, especially in very sensitive fields dealing with religion, bioethics, or highly contested moral issues, also have a framing and narrative effect. As Dia Anagnostou and Effie Fokas have pointed out, “rights are primarily understood as discursive logics that shape the normative and political frames through which individual and collective actors conceptualise social problems.”20 It is true that we are living in a world of increasing judicialization, where the “judicialization of politics”21 is one of the most significant techniques employed to decide many of society’s controversial issues. As Ran Hirschl has demonstrated, there may be several reasons why politicians might want to delegate, or unconsciously delegate, these decisions to the judiciary.22 But it must be stressed that the court also performs another 18

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Laura van den Eynde, “An Empirical Look at the Amicus Curiae Practice of Human Rights NGOs before the European Court of Human Rights,” Netherlands Quarterly of Human Rights 31, no. 3 (2013): 271–313, at 283. As Shai Dhotan has pointed out: “The ECHR does not have an internal enforcement mechanism; the Committee of Ministers of the Council of Europe (the Committee) is tasked with monitoring the enforcement of ECHR judgments. The Committee can issue decisions and declarations against states that fail to comply and may also expel states from the Council of Europe (but this measure has never been used). Despite this very weak enforcement mechanism, most ECHR judgments were complied with, by most accounts”; see Shai Dhotan, Reputation and Judicial Tactics: A Theory of National and International Courts (Cambridge: Cambridge University Press, 2015), 217–18. Dia Anagnostou and Effie Fokas, “The ‘Radiating Effects’ of the European Court of Human Rights on Social Mobilisations around Religion in Europe – an Analytical Frame,” Grassrootmobilise Working Paper (May 22, 2015): 6, http://grassrootsmobilise.eu/wp-con tent/uploads/2016/10/GRM-Working-Paper-Radiating-Effects.pdf. Ran Hirschl, Towards Juristocracy: The Origins and Consequences of New Constitutionalism (Cambridge, MA: Harvard University Press, 2007). Ibid.

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important role. It not only “do[es] things with words,”23 it also “say[s] things with words” and with judgments. This creates the frame for what is on or off the table in public debates and contributes to the formation of legal and political imagination. Again Dia Anagnostou and Effie Fokas highlight these important dimensions of the actions of the judiciary: Court decisions can recast the contours of public debates on an issue by imparting legitimacy on, or enhancing the salience of particular kinds of rights claims. They can influence the discursive frames of social movement actors, reconstruct their interests, and at times empower . . . them . . . In these . . . ways, courts can contribute to the emergence, growth, or decline of social movements.24

This framing effect created by the judiciary is often as relevant as the direct legal consequences of its judgments. This is particularly important at the global level, where NGOs or states often associate litigation with their positioning vis a` vis certain deeply divisive moral or cultural issues. It is also through the role of courts and their decisions that these actors are able to craft a narrative on how to interpret the world in which we live and suggest venues of legitimacy. In essence, sometimes courts – and therefore their judgments – are relevant “more for their secondary consequences such as changing people’s perceptions about a stigmatised social group or situation”25 because, as Galanter has pointed out, “Courts produce not only decisions, but messages . . . These messages are resources that parties and others use in envisioning, devising, pursuing, negotiating, and vindicating claims (and in avoiding, defending, and defeating them).”26 With this methodological background in mind, we will analyze how today different conceptions of law and normativity battle among themselves in what is increasingly perceived as a global culture and war of conscience. This approach helps us to understand how social movements today view law and courts as unconventional narrative weapons to advance their discourse.

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John L. Austin, How to Do Things with Words (Cambridge, MA: Harvard University Press, 1975). See Anagnostou and Fokas, “Radiating,” 6. Lauren B. Edelman, Gwendolyn Leachmann, and Doug McAdam, “On Law, Organizations and Social Movements,” Annual Review of Law and Social Science 6, (2010): 653–85, at 664. Marc Galanter, “The Radiating Effects of Courts,” in Keith O. Boyum and Lynn Mather, eds., Empirical Theories about Courts (New York: Longman, 1983), 117–42, at 126.

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9.3 WARS OF CONSCIENCE AND THE GEOPOLITICS OF LAW: A “QUASI-HUNTINGTONIAN” VIEW

Understanding the role of the framing effects of law and courts in the context of global wars of conscience helps us to expand the mainstream positivistic approach, and to situate wars of conscience within a narrative framework. Along the same lines, this analysis can also benefit from a geopolitical understanding of law. The ideas of Samuel Huntington have not been widely influential in the analysis of legal scholars. I am not aware of any major scholarly work in constitutional and comparative constitutional law that has seriously engaged with Huntington’s reflections, nor of any in the fields of law and religion, although a few occasionally refer to his work, particularly in the post-9/11 scenario. The argument that I want to develop here is that one need not necessarily share Huntington’s normative framework to realize the importance of geography, geopolitics, and politics to the understanding of law, especially in a very sensitive and interdisciplinary field such as law and religion, or public law dealing with religious or moral issues. This, as I mentioned before, is a larger implication of the understanding of law as having framing and discursive effects rather than only performative ones. One clear example of this approach is found, for instance, in the expanding role in national and international debates played by ideologies that use the notion of the “Third Rome” to associate them with Russia. The Russian legal system today is hugely influenced by the religious identitarian narratives produced by the Russian Orthodox Church, which are used to position Russia in conflict with “Western values.”27 Of course, the ideological and political landscape is fragmented within Russia, but there is a common narrative set out according to the different ideological positions of various authorities of the Russian Federation: Russia is opposed to the rest of the world as the only country that potentially could keep it from the alleged apostasy (decline) of the coming anti-Christian kingdom (often equated to globalisation and/or the USA) . . . Hence the fate of the world is dependent on the Third Rome, its catehon, restraining, holdback power of the Russian empire to provide humanity with a lighthouse for salvation. If Russia fails to restore the Third Rome, then nothing would be able to prevent the world from its own collapse.28 27

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For an analysis of the development of the human rights doctrine within the Russian Orthodox Church, see Kristina Stoeckl, The Russian Orthodox Church and Human Rights (Abingdon: Routledge, 2014). Dmitrii Sidorov, “Post-Imperial Third Romes: Resurrections of a Russian Orthodox Geopolitical Metaphor,” Geopolitics 11, no. 2 (2006): 317–47, at 327.

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I have detailed elsewhere how the Russian Orthodox Church, with its understanding of the relationship between law and religion, was also a key actor in the context of the Lautsi judgment before the ECtHR.29 The Russian Federation has been particularly active in portraying Europe and the United States as the epitome of liberalism, attempting to frame an understanding of Russia in a completely different fashion. The main actor in this effort on the Russian side has been the Russian Orthodox Church, which can be understood as the main “moral norm entrepreneur.”30 This concept, widely used in international relations theory, is applied by Kristina Stoeckl to her study of the Russian Orthodox Church. According to Stoeckl, “Norm entrepreneurs ‘create’ norms by calling attention to issues that hitherto have not been ‘named, interpreted and dramatized’ as norms. They construct cognitive frames, often in opposition to rival frames, effectively causing a shift in public perceptions of appropriateness.”31 This norm-entrepreneurship is particularly active in issues concerning human rights, as the Russian Orthodox Church developed a new position: “from a clear-cut rejection of human rights as a [W]estern invention to endorsing human rights as a concept, but utilising the concept in a way that was opposed to the liberal and egalitarian evolution of the international human rights system.”32 This epistemological and political shift has consequences not only for Russia, but in a context of global culture wars, influences all who oppose an individualistic understanding of human rights to strengthen a more identitarian and collectivistic position. This approach also facilitates appeals to arguments based on the right to freedom of conscience to invoke exemptions from generally applicable laws. For instance, the Russian Federation is not the only state that has advanced an understanding of human rights at the United Nations that is more in tune with the concept of “traditional values,”33 which aims at bringing the role of tradition and religion back to the debate on the understanding of rights. This “geopolitical framing” of rights can also be seen at the macro-level by looking at the reactions that followed the decision of the US Supreme Court in Obergefell v. Hodges34 concerning the recognition of the constitutional right to same-sex marriage. The protection and promotion of LGBTI rights was at the center of the second

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Annicchino, “Winning the Battle by Losing the War,” 213–19. Kristina Stoeckl, “The Russian Orthodox Church as Moral Norm Entrepreneur,” Religion, State and Society 44, no. 2 (2016): 132–51. Ibid., 133. 32 Ibid., 134. See Christopher McCrudden, “Human Rights, Southern Voices, and ‘Traditional Values’ at the United Nations,” University of Michigan Law Research Paper 419 (2014): 1–43, http://pap ers.ssrn.com/sol3/papers.cfm?abstract_id=2474241. Obergefell v. Hodges, 576 U.S.__ (2015).

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term of Barack Obama’s presidency, but it is worth mentioning that Obama himself changed his position on gay marriage: In 2008, in an interview with pastor Rick Warren, he said that he believed that marriage “is a union between a man and a woman”35 and that he was not somebody “who promotes same-sex marriage.”36 His views, and the policy of the US administration, began to gradually evolve and change. In May 2012, President Obama announced that he had changed his position on the issue and would now support same-sex marriage.37 One year before, in December 2011, Secretary of State Hillary Clinton had announced in a major speech at the UN that the United States would promote and protect LGBTI rights in its foreign policy, including devoting financial resources to this goal.38 With LGBTI rights taking center stage in the “rights discourse” in the United States and in many Western countries,39 other actors began to react to this framing and understanding of law and rights.40 The clearest statement probably came from Patriarch Kirill of the Russian Orthodox Church, who, prior to the decision of the US Supreme Court, already viewed the recognition of same-sex marriage as a “sign of the apocalypse,” creating a clear geopolitical understanding of the law and how his country should react: In recent times, in a number of countries the choice of sin has been approved and justified by law, and those who in good conscience, fight these laws imposed by a minority, are repressed . . . This is a dangerous sign of the apocalypse and we must do everything to ensure that in the area of the Holy Rus this sin is never justified by the law, because that would mean that the nation has embarked on the path of self-destruction.41 35 36 37

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See “Barack Obama on Gay Marriage,” www.youtube.com/watch?v=N6K9dS9wl7U. Ibid. “Interview with President Obama,” dir. Robin Roberts, ABC News, May 9, 2012, http://abcn ews.go.com/Politics/transcript-robin-roberts-abc-news-interview-president-obama/story? id=16316043. Hillary Clinton, “Remarks in Recognition of International Human Rights Day,” December 6, 2011, www.state.gov/secretary/20092013clinton/rm/2011/12/178368.htm. This trend is also to be linked to the increasing spread of individualism in the West and around the world. As Jay Ogilvy points out, there is scientific evidence of a “universal, secular trend toward increasing individualism. The United States, ‘home of the free,’ is the leader in this trend,” Jay Ogilvy, “The Global Spread of Individualism,” Stratfor, October 14, 2015, www .stratfor.com/weekly/global-spread-individualism. I have already claimed that the decision of the US Supreme Court in Obergefell has also wider geopolitical implications. Pasquale Annicchino, “Love Wins: Il matrimonio tra omosessuali e la geopolica U.S.A.,” Limes, July 8, 2015, www.limesonline.com/love-wins-il-matrimonio-traomosessuali-e-la-geopolitica-usa/81680. Nina Achmatova, “Patriarch Kirill against Gay Marriage and Dictatorship of Will,” Asianews, July 22, 2013, Signs of the Apocalypse, www.asianews.it/news-en/Patriarch-Kirill-against-gaymarriage-and-the-dictatorship-of-free-will:-Signs-of-the-Apocalypse-28530.html.

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This geopolitical framing of rights has immediate and direct consequences on the different legal systems, as can be seen, for instance, by studying the cases where the ECtHR has sanctioned the Russian Federation’s violations of conventional rights for measures taken to prevent LGBTI groups and individuals from enjoying basic, fundamental rights.42 This can be seen also with the decision of the ECtHR in Oliari and others v. Italy,43 in which the Fourth Section of the Court ruled that the lack of legal means for same-sex couples to marry or to form civil unions under Italian law was a violation of Articles 8 and 14 of the Convention. This case is particularly relevant from a geopolitical perspective because it was decided several weeks after the US Supreme Court decision in Obergefell v. Hodges, and demonstrates the current trend of increasing recognition of LGBTI rights in Western legal systems. In fact, the US Supreme Court decision is widely cited in the “Comparative and European Law and Practice” section of the judgment. Oliari is another of the recent manifestations of the intense mobilization of NGOs in litigating cases before the ECtHR. Several proLGBTI organizations were given permission to intervene but, interestingly enough, requests to intervene were also submitted by Russian and Ukrainian NGOs.44 The decision of ECtHR is not much different from the decision previously made in 2010 by the Italian Constitutional Court, which, according to the 2013 report by Judge Franco Gallo (former president of the Italian Constitutional Court) recalled, while finding the fact that a marriage could only be contracted by persons of a different sex to be constitutionally compliant, also affirmed that same-sex couples had a fundamental right to obtain legal recognition, with the relevant 42

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For an introduction to the current debate on the relationships between Russia and LGBTI rights in the context of ECHR, see Paul Johnson, “‘Homosexual Propaganda’ Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights?,” Russian Law Journal 3, no. 2 (2015): 37–61, www.russianlawjournal.org/jour/article/view/82/94. See also Paul Johnson, Homosexuality and the European Court of Human Rights (Abingdon: Routledge, 2014). Oliari and others v. Italy, ECtHR, July 21, 2005 (18766/11; 36030/11). Fe´deration Internationale des ligues de Droit de l’Homme, AIRE Centre, ILGA Europe, European Commission on Sexual Orientation Law, Unione Forense per la tutela dei diritti umani, Lega Italiana per i Diritti dell’Uomo, Associazione Radicale Certi Diritti. On the other side the European Centre for Law and Justice filed an intervention, but also several organizations of Russian (Family and Demography Foundation; For Family Rights; Moscow City Parent Committee; Saint Petersburg City Parents Committee; Parents Committee of Volgodonsk; the regional charity “Svetlitsa Parents” Culture Centre; and the “Peterburgskie mnododetki” social organization) and Ukrainian origin (Parental Committee of Ukraine, The Orthodox Parental Committee, the Health Nation social organization) were granted the possibility to intervene, but they did not submit any document to the court.

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rights and duties, of their union. It left it to Parliament to provide for such regulation, by the means and within the limits deemed appropriate.45

Also worth mentioning is the position of the European Centre for Law and Justice, which also intervened in the case, that is, with the classic position taken by social conservatives in Europe and in other parts of the world where battles on marriage and LGBTI rights are fought. In the case of the ECtHR, particular stress was placed on the role of the different states in legislating on social issues and the relatively hands-off approach that supranational institutions should take: Otherwise, the Court would transform itself into an instrument of ideological actualisation on the basis of national legislations, in matters related to society – a role which surely did not fall within its competence . . . They considered therefore that the Court should not usurp the role of States, especially given that the latter were free to add an additional protocol to the Convention had they wished to regulate sexual orientation (as was done to abolish the death penalty).46

The conflict between “traditional values” and LGBTI rights lies at the center of global culture and wars of conscience. At stake is the definition of the appropriate balance of protection of civil rights and reasonable accommodation of conscientious objections and religious rights,47 but, more importantly, the hegemonic narrative of the normative content of the law, especially in the quickly secularizing countries of the West. In such cases, the hegemonic narratives of the law, based on once-shared religious (particularly Christian) frameworks, are now being challenged, and courts are at the center of this battle. As Archbishop Hilarion of Volokolamsk wrote in a letter to Vatican Secretary of State Tarcisio Bertone during the Lautsi case: We consider this practice of the European Court of Human Rights to be an attempt to impose radical secularism everywhere despite the national experience of church–state relations. The above mentioned decision is not the only one in the practice of the Court, which has increasingly shown an antiChristian trend. Taking into account the fact that the decisions of the European Court of Human Rights have clearly lost touch with legal and historical reality in which most of the Europeans live, while the Court itself has turned into an instrument of promoting an ultra-liberal ideology, we 45 47

Oliari v. Italy, 8. 46 Ibid., par. 158. See Douglas NeJaime and Reva Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (2015): 2516–91; also see Chapters 5, 10, and 16 (previously, University of Michigan Public Law Research paper No. 513, 2016, http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=2812289) of this volume.

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believe it very important that religious communities in Europe should be involved in a discussion concerning its work.48 9.4 FROM CLASH OF CIVILIZATIONS TO CLASHES WITHIN CIVILIZATIONS: THE GROWING ROLE OF “CONSCIENCE”

It is tempting to view the emerging global culture and wars of conscience as the result of conflicts between areas of the world (not necessarily states) that, at least to some extent, share common cultural and civilizational aspects. At the superficial level, this may appear to be true. But deepening the analysis, we notice that these clashes are also within civilizations: clashes are not only experienced among states or areas of influence from different cultural or religious traditions. The real issue that we are forced to look at is the conflict within any of these civilizations. A clear example of this is the recent US Supreme Court decision on same-sex marriage. The reactions to the decisions have, of course, varied widely. Many commentators believe the decision is a deviation from the minimalist role that the judiciary should assume in such cases, an approach that can be reversed through the political process, and that the Supreme Court simply “got it wrong.”49 As George Weigel has argued, the result of the US Supreme Court decision cannot be primarily attributed to legal developments. It is largely the result of a continuous cultural evolution: “The marriage battle was lost in the culture long before it was lost in courts. The foundations of our culture have eroded; now, the New Normal insists that literally everything is plastic, malleable, and subject to acts of human will.”50 The “New Normal” views traditional religious groups as grasping onto a minority position within the United States and in the Western world in general. This cultural change is one of the main reasons why today we witness an increasing appeal to conscience in litigation aimed at preventing the application of general laws. This cultural change can be understood also as one of the outcomes of the advancement of the secularization process. As Olivier Roy argued in the final report of the ReligioWest project, Tensions today are not about the political role of religion and churches (who have accepted the separation with the State), but about the sharing of a 48

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“Archbishop Hilarion’s Letter to Vatican Secretary of State Concerning the European Court’s Decision to Ban Christian Symbols in Italian Schools,” Russian Orthodox Church Official Website of the Department for External Church Relations, November 27, 2009, www.mospat .ru/en/2009/11/27/news9297/. George Weigel, “The Church and the ‘New Normal,’” First Things, June 29, 2015, www.first things.com/web-exclusives/2015/06/the-church-and-the-new-normal. Ibid.

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common set of values and norms. It is a cultural gap, not a political one. Religious communities of all faiths tend today to feel alienated from the dominant Western culture, which stressed the absolute freedom of the human being.51

Reva Siegel and Doug NeJaime have argued that, in this current scenario, the tools used to fight culture wars are changing: “As the conditions of conflict change and arguments rooted in traditional morality lose their ability to persuade, movement leaders have advocated shifting to arguments for religious liberty arguments for exemption as part of a long-term effort to shape community-wide norms.”52 In fact, as they argue later in their article on samesex marriage controversies, religious conservatives “shift from speaking as a majority seeking to enforce customary morality to speaking as a minority seeking exemptions from laws that offend religious morality.”53 Conflicts of conscience (and culture) are not only part of a global and transnational redefinition of civilizational boundaries, but they also play an important role within a single state with people sharing the same citizenship, as “there is no longer a consensus on the ‘common Good’ and the issue is to accommodate in the same political society people who have a different and even antagonistic agenda on norms and values.”54 Conflicts, therefore, are both global and local. Samuel Huntington predicted that after the collapse of communism, clashes of civilizations would be the new frame for political conflict in the world: It is my hypothesis that the fundamental source of conflict in this new world will not be primarily ideological or primarily economic. The great divisions among humankind and the dominating source of conflict will be cultural. Nation states will remain the most powerful actors in world affairs, but the principal conflicts of global politics will occur between nations and groups of different civilizations. The clash of civilizations will dominate global politics. The fault lines between civilizations will be the battle lines of the future.55

Huntington was probably right in anticipating the relevance of cultural and religious conflict, but his essentialist definition of the notion of “civilization” did not take into account the possibility of clashes within civilizations. This is

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Olivier Roy, “Rethinking the Place of Religion in European Secularized Societies: The Need for More Open Societies,” ReligioWest project final report, March 2016, www.iris-france.org/ wp-content/uploads/2016/03/RW-rethinking-the-place-of-religion.pdf. NeJaime and Siegel, “Conscience Wars,” 20. 53 Ibid., 34. Roy, “Rethinking the Place of Religion in European Secularized Societies.” Samuel Huntington, “The Clash of Civilization?,” Foreign Affairs 72, no. 3 (summer 1993). www.foreignaffairs.com/articles/united-states/1993–06-01/clash-civilizations.

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the case in many of the cultural clashes we are now seeing throughout the world. In the case of the United States, and in many European countries, political and cultural clashes are primarily taking place in societies that are deeply divided on the conception of the good in society, and still more deeply divided on the anthropological conception of man.56 This cultural and political change makes the identification of a unified Western legal tradition much more complex.57 When societies become more diverse, consensus on questions of basic morality grows elusive. In this scenario, any governmental action that impinges on basic moral issues can be the basis of a strategic appeal to the protection of conscience, and the revival of legal traditions58 – especially as influenced by religious laws – becomes a powerful tool. Laws are therefore often called upon to balance claims based on individual conscience with other societal needs. 9.5 RELIGION AND IDENTITY

A geopolitical analysis of the developments of transnational law and religion does not offer an easy, deterministic solution for the challenge to constitutional law in protecting and balancing constitutional principles and human rights. However, it can offer an understanding of how historical and political events can arrange religious and legal analyses along “fault lines” to give added value to religious and cultural elements. In this regard, it is worth emphasizing that many of the cultural reconfigurations envisaged within Islam and Eastern Orthodoxy are not necessarily on the same track (stressing the importance of communitarian and identitarian approaches over individual rights),59 except for one issue: they both oppose the West and liberal democracy. Therefore, in the first case, Russia becomes a distinct civilization that the West has often tried to change: more liberalism and more human rights, with the assumption that this is the way things ought to be. But the 56

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Pasquale Annicchino and Olivier Roy, “Religion, Culture and Human Rights,” in Ana F. Vrdoliak, ed., The Cultural Dimension of Human Rights (Oxford: Oxford University Press, 2013), 13–25. On the notion of “Western legal tradition” see Rudolf B. Schlesinger, Comparative Law (Mineola, NY: Foundation Press, 1980); Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983). On legal traditions see also H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford: Oxford University Press, 2000). I dealt with this trend in my book on international religious freedom. See Pasquale Annicchino, Esportare la Liberta` Religiosa: Il Modello Americano nell’Arena Globale (Bologna: Il Mulino, 2015); Pasquale Annicchino, Law & International Religious Freedom: The Rise and Decline of the American Model (Abingdon: Routledge, 2017).

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resurgence of Eurasian ideology, also propelled by the influence of Russian Orthodox teachings, has challenged this vision. In this understanding, the West is using LGBTI rights as a part of an ideological propaganda war waged against traditional societies.60 Deep cultural differences ought to be respected, and traditions stemming from different civilizations should prevail over individual rights. Appeals to the principle of equality against the forces of tradition are seen as imperialistic acts forced upon them by the West: “American values pretend to be universal ones. In reality, it is a new form of ideological aggression against the multiplicity of cultures and traditions still existing in the rest of the world . . . Therefore, all traditionalists should be against the West and globalisation, as well as against the imperialist politics of the United States.”61 The United States is seen as the core state (in Huntingtonian terms) of Western civilization, and therefore its hegemony over the ideas informing Western liberalism are to be fought. As Dugin articulated in a lecture at Texas A&M University in April 2015, “American liberalism must be destroyed . . . I consider liberalism to be a kind of universalist racist and hegemonic doctrine that tries to impose the type of values, of ideas, of principles created in the West, in Europe and in the U.S. over all mankind and I think this is an imperialistic and colonial adventure.”62 Liberalism should therefore abandon its pretense of universalism and redefine its mission in local or civilization-wide terms. When we begin to take into consideration the wider context in which judicial decisions are formed, we are left with the surprising realization that legal scholars have devoted very little attention to a geopolitical analysis of decisions that are never made in a vacuum. It is particularly important for legal scholars who aim to understand today’s global wars of conscience to revisit this dimension of intellectual inquiry, because political elites often do use a civilizational perspective to advance their political claims and position themselves within the global legal and political order. Within this framework appeals to conscience are often used as a strategy to invoke an exemption from applicable laws and signal a revival of religious laws. In this regard, the history of the Western world and developments on other continents lead to a rejection of Fukuyama’s political philosophy of “endism,” which posited that after the end of the Cold War we would see a gradual development toward the spread of constitutional liberal democracy throughout the world. In our current

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It would be enough to analyze all the cases decided on this issue by the ECtHR against Russia. Aleksandr Dugin, The Fourth Political Theory (London: Arktos, 2012), 193–94. “A. Dugin Lecture at Texas A & M University, April 2015,” www.youtube.com/watch? v=y2NcpWI6iJk.

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complex transnational scenario, the protection of individual liberty, collective identities, and equality will not easily find a proper balance. In this legal and political landscape, state laws and court rulings are only a few of the many normative tools of regulation in a society. Often they encounter resistance from religious and social norms, customs, and any other kind of informal rule produced by different actors. Therefore, if we look at law and rights primarily as cultural, and not legal institutions, we discover a complex transnational arena where culture and wars of conscience are now fought in the name of defending very different conceptions of rights. In this regard, political positions and interests can also be advanced in court by “winning through losing”63 strategies that help to reframe public debates and social imagination. This is now happening on a global scale, and we must be aware of it. As mentioned, these trends are made explicit by the increasing clashes we see between the protection of religious freedom and the protection of LGBTI rights. Often these two sets of human rights are understood as irreconcilable, because they are grounded in very different understandings of human nature. I would argue that the main variable behind many of the conflicts we are witnessing today is not legal in nature, but social, or even anthropological. Let us take for instance the central figure of Justice Kennedy’s opinion in Obergefell v. Hodges. It is a conception of liberty and the individual already made explicit in his opinion in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”64 In these two lines, the outcome is already clear; a complete Weltanschauung is revealed. It is an understanding of human nature that presupposes certain civilizational elements that are not shared in many areas of the world.65 While these notions of liberty and individuality are at the center of many legal developments in Western states where individual autonomy is promoted, we should not be surprised (considering the geopolitical approach we have suggested) that we see in other states the political and legal rejection of this understanding of law and rights. Decisions such as the one made by the Russian Constitutional Court, which established that no international treaty or convention may take precedence over national sovereignty, and that therefore the decisions of ECtHR should be enforced only insofar as they do not contradict the basic principles of the Russian constitutional legal

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Douglas NeJaime, “Winning through Losing,” Iowa Law Review 96 (2011): 941–1003. Planned Parenthood v. Casey, 505 U.S. 833. Annicchino and Roy, “Religion, Culture and Human Rights.”

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system,66 are the direct consequence of the influence of civilizational ideas on the internal legal systems of the various states. 9.6 CONCLUSION

We are used to thinking of the interaction between religion, identity, and equality within the boundaries of modernity that were created by state law and its rationalizing logic.67 In the current geopolitical scenario, the norms emerging from different religion and cultural traditions are showing us that this set of epistemological assumptions will not go unchallenged. As Christopher McCrudden has argued, “Human rights have become a central site of normative contestation over the implications of modernity, with both sides claiming to interpret human rights in the ‘right’ way.”68 This point was also recently stressed by Mark Movsesian: “In short, the postwar project to forge a universal notion of human dignity has failed. Instead, radically different understandings contend against one another and prevent agreement on crucial issues. How are we lawyers to respond?”69 I do not know if the project for universal human rights has “failed,” as Mark Movsesian has argued. What we do know is that the project is currently facing serious problems and challenges. The global wars of conscience being fought transnationally, through the melting pot of sources of law stemming from various legal systems, are currently at the heart of the efforts to redefine the mission and boundaries of the human rights project. Protection of conscience will be needed to preserve the right of individuals not to act against their deeply held beliefs, but the proper use of the law will be key to preserving legal systems from anarchy. It will not be an easy balance.

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Maria Smirnova, “Russian Constitutional Court Affirms Russian Constitution’s Supremacy over ECtHR Decisions,” EJIL:Talk, July 15, 2015, www.ejiltalk.org/russian-constitutional-co urt-affirms-russian-constitutions-supremacy-over-ecthr-decisions/. See Zachary Calo, “Religion, Human Rights and Post-Secular Legal Theory,” St. John’s Law Review 85 (2011): 495–520. McCrudden, “Transnational Culture Wars,” 435. Mark Movsesian, “Of Human Dignities,” Notre Dame Law Review 91, no. 4 (2016): 1517–51, at 1519.

part i ii

objecting to antidiscrimination laws in the name of mainstream religious convictions Striking a Balance between Freedom and Equality

10 Objections to Antidiscrimination in the Name of Conscience or Religion A Conflicting Rights Approach Eva Brems

10.1 INTRODUCTION: EMANCIPATION RIGHTS, CONFLICTS OF RIGHTS, AND PROCEDURAL FAIRNESS

In the present chapter, objections to antidiscrimination in the name of conscience or religion are examined as instances of conflicting human rights. This chapter sets out to test the author’s previously developed three-step model for addressing conflicting rights cases, through four case studies involving conscience-based objections to antidiscrimination. For this purpose, the three-step model is applied in a manner that takes into account the specificities of emancipation rights, as well as the teachings of procedural fairness scholarship. 10.1.1 Emancipation Rights Antidiscrimination legislation exemplifies the law as an instrument of cultura change. The introduction of antidiscrimination laws does not kick off cultural change. Indeed, such laws can come about only with the support of a political majority that has come to reclassify as unacceptable certain behavior that used to be considered unproblematic.1 Yet the introduction of antidiscrimination laws generally comes at a time when the cultural change that accompanies such requalification has not yet been fully realized. That is to say, legal change comes at a time when significant parts of the population are not yet (fully) convinced that distinctions they used to make on a current basis and that are deeply entrenched in their way of thinking should be

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In fact, the law has often entrenched discrimination, e.g., concerning women’s access to employment.

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considered irrelevant. Both the symbolic value of the law and the enforcement of the law through the judicial system may contribute to realizing the necessary cultural change. Antidiscrimination laws are expressions of the fundamental right to equality and the right to be free from discrimination. In the broader context of human rights law,2 I submit that, when applied to groups that have suffered structural discrimination or marginalization in the past, the right to be free from discrimination is a centerpiece of a distinct category of human rights that I call “emancipation rights.”3 These are rights intended to correct a legacy of structural discrimination of specific groups and to provide to members of such groups equal opportunities and equal enjoyment of their human rights. Concretely, these include among others women’s rights, children’s rights, the rights of ethnic and cultural minorities, the rights of persons with disabilities, and LGBT rights. What these rights have in common is that they present some of their main challenges in the horizontal relations among individuals in society. The realization of emancipation rights requires cultural change that is focused in particular on the way we view members of that group, and international texts impose state obligations to help realize that cultural change. Specific state obligations to this effect are included among others in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),4 the Convention on the Rights of Persons with Disabilities (CPD),5 and the Yogyakarta

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In this chapter, “human rights” is used as a generic term, encompassing expressions of fundamental rights in domestic law as well as international law. Emancipation rights do not only include antidiscrimination rights. They may also include, for example, autonomy rights. CEDAW Article 5 (a): “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” CPD Article 8: 1. States Parties undertake to adopt immediate, effective and appropriate measures: a. To raise awareness throughout society, including at the family level, regarding persons with disabilities, and to foster respect for the rights and dignity of persons with disabilities; b. To combat stereotypes, prejudices and harmful practices relating to persons with disabilities, including those based on sex and age, in all areas of life; c. To promote awareness of the capabilities and contributions of persons with disabilities. Measures to this end include: a. Initiating and maintaining effective public awareness campaigns designed: i. To nurture receptiveness to the rights of persons with disabilities; ii. To promote positive perceptions and greater social awareness towards persons with disabilities;

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Principles on LGBT rights.6 An important aspect of state obligations to realize cultural change in favor of equality is the fight against harmful stereotypes, and the opening up of concepts such as marriage, family, disability, or gender identity to a broader range of meanings. When a state has adopted antidiscrimination legislation, its intention to change discriminatory practices and attitudes is clear, yet in the realization of this intention, it can sometimes encounter fierce resistance. When cultural resistance to the adoption of nondiscriminatory attitudes and practices is rooted in a religious or nonreligious belief system, this may result in the mobilization of legal arguments – in addition to ethical, political, and other arguments – against the antidiscrimination legislation. Such legal arguments typically include human rights arguments, centered principally around the freedom of conscience and religion, and on the prohibition of discrimination on grounds of religion. When they are put forward in the process of designing antidiscrimination legislation, such arguments may lead to restrictions in the scope of antidiscrimination provisions.7 After adoption of antidiscrimination legislation, human rights arguments may be mobilized with a view to obliging legislators, judges, or other actors to craft exceptions to such legislation in law or in practice.8

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iii. To promote recognition of the skills, merits and abilities of persons with disabilities, and of their contributions to the workplace and the labour market; b. Fostering at all levels of the education system, including in all children from an early age, an attitude of respect for the rights of persons with disabilities; c. Encouraging all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the present Convention; d. Promoting awareness-training programmes regarding persons with disabilities and the rights of persons with disabilities. “Principle 2 (The rights to equality and non-discrimination), sub (f): States Parties shall . . . [t] ake all appropriate action, including programmes of education and training, with a view to achieving the elimination of prejudicial or discriminatory attitudes or behaviours which are related to the idea of the inferiority or the superiority of any sexual orientation or gender identity or gender expression.” E.g., article 4(2) of the EU Equal Treatment Directive 2000/78/CE; cf. infra Section 10.3.3 “Rejection of a Job Applicant on Religious Grounds: The Case of the Dutch Salvation Army.” E.g., Mississippi’s “Protecting Freedom of Conscience from Government Discrimination Act,” enacted in April 2016, which allows, e.g., sheltering individuals and organizations against discriminatory action among others for refusing services on grounds of their “sincerely held religious belief or moral conviction” that “marriage is or should be recognized as the union of one man and one woman”; or that “sexual relations are properly reserved to such a marriage” or that “male (man) or female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.” However, the opposite development exists as well. In the Netherlands, a 2014 law amends antidiscrimination law to make an end to municipal authorities tolerating civil registrars who refuse to register same-sex

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10.1.2 Conflicts of Rights Cases in which conscience claims are made against antidiscrimination provisions are therefore cases of conflicts between human rights. A challenge to a human right that is itself based on a human right cannot automatically be treated in the same manner as a challenge to a human right that is based on an interest that is not itself recognized as a human right. Indeed, the logic of human rights law is one in which most human rights can be restricted, but restrictions should be kept minimal, that is to say it has to be shown that a restriction does not go further than necessary to achieve the stated goal of the measure (which in itself must be legitimate). The flipside of this is that interests that are not human rights can be infringed upon to the extent needed for the protection of human rights. However, this logic does not suffice to solve cases in which human rights are invoked on both sides of a dispute. Human rights–adjudicating bodies seem to address such cases on an ad hoc basis; they have not yet come up with a coherent and consistent approach to conflicts between human rights. Efforts in that sense have however been undertaken in legal scholarship.9 The present chapter is to be situated in that context. Building on my previous work, in which I developed a threestep model for addressing conflicts between human rights, this chapter tests that model in the specific context of conscience-based challenges against equality provisions. The position I adopt in favor of a “conflicting human rights” approach to this issue is a position in favor of devoting adequate attention to both the conscience-based claim and the antidiscrimination claim, of carefully assessing the merits of each, and of clearly motivating the outcome on the basis of that assessment. This position is supported by an argument of principle, which is the wish not to undermine the fundamental nature of human rights. If a fundamental right weighs heavily in the balance against an interest that

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marriages on religious grounds; “Law of 4 July 2014” (Wet tot wijziging van het Burgerlijk Wetboek en de Algemene wet gelijke behandeling met betrekking tot ambtenaren van de burgerlijkse stand die onderscheid maken als bedoeld in de Algemene wet gelijke behandeling), Staatsblad van het Koninkrijk der Nederlanden, July 15, 2014. Eva Brems, ed., Conflicts between Fundamental Rights (Antwerp: Intersentia, 2008); Peggy Ducoulombier, “Les Conflits de Droits Fondamentaux devant la Cour Europe´enne des Droits de l’Homme,” unpublished PhD dissertation, University of Strasbourg (2008); Daniel Erskine, “Judgments of the United States Supreme Court and the South African Constitutional Court as a Basis for a Universal Method to Resolve Conflicts between Fundamental Rights,” St. John’s Journal of Legal Commentary 22, no. 3 (2008): 595–641; Claire Oakes Finkelstein, “Introduction to the Symposium on Conflicts of Rights,” Legal Theory 7 (2001): 235–38; Stijn Smet, Resolving Conflicts between Human Rights: The Judge’s Dilemma (Oxon: Routledge, 2017).

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is not a fundamental right, it is hard to justify that it would lose this weight when balanced against another fundamental right. If valid human rights claims are made on both sides of a dispute, the human rights on each side need to be taken seriously, in a manner that fits their human rights status. This position is in addition supported by a more pragmatic reason, which is the need for a decision in a controversial matter to be accepted by stakeholders, that is, to be perceived by them as legitimate. This is where considerations of procedural fairness come in. 10.1.3 Procedural Fairness The concept of procedural fairness (also called procedural justice) was developed by American social psychology researchers and has gained worldwide recognition.10 Its central empirical finding is that in people’s contact with the law, they care not only about the outcome of their case, but also about the way in which it is handled.11 In fact, as a factor determining the perception of the legitimacy of the institution concerned, the perception of procedural fairness (was the case dealt with in a fair manner?) is more significant than the perception of distributive fairness (was the outcome of the case fair?). Research about the US Supreme Court’s abortion case law among others has confirmed the applicability of procedural fairness theory to fundamental rights cases: the legitimacy of the Court and the willingness of citizens to empower the Court to make decisions on controversial issues were proven to be related to procedural fairness judgments, rather than to outcome favorability.12 Procedural fairness thus has a strong impact on fairness perceptions overall, as well as on acceptance and compliance. Moreover, it has been shown that procedural fairness perceptions have a strong impact on people’s experience of group belonging, and hence that procedural fairness might be critical in preventing the alienation of minorities from legal authorities.13 Tom 10

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John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis (Hillsdale, NJ: Lawrence Erlbaum Associates, 1975), vii. Ibid., 1–3. Tom R. Tyler and Gregory Mitchell, “Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights,” Duke Law Journal 43, no. 4 (1994): 703–814, at 752. Yuen J. Huo, Heather J. Smith, Tom R. Tyler, and E. Allan Lind, “Superordinate Identification, Subgroup Identification, and Justice Concerns: Is Separatism the Problem; Is Assimilation the Answer?,” Psychological Science 7 (1996): 40–45; Tom R. Tyler, “Multiculturalism and the Willingness of Citizens to Defer to Law and to Legal Authorities,” Law & Social Inquiry 25, no. 3 (2000): 983–1019, at 1008; Tom R. Tyler, “Public Trust and Confidence in Legal Authorities: What Do Majority and Minority Group

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Tyler, one of the most influential scholars in this field, distinguishes four procedural fairness criteria and applies these among others to courts: participation or voice, neutrality (including also transparency, consistency, accuracy, and correctability), respect (people need to feel that they are taken seriously), and trust (referring to perceptions of sincerity and caring).14 Based on the extensive and highly developed body of empirical scholarship in the field of procedural fairness, it can be concluded that procedural fairness is particularly important in the area that is the subject of this chapter, as this is an area in which it may not be possible to provide outcomes that satisfy all stakeholders.15 Yet it is nevertheless possible to address these issues of conflicts between freedom of conscience and equality in a way that all stakeholders perceive as correct. That is to say, it is probably impossible to deliver substantive justice in the eyes of all concerned, yet it is possible to deliver procedural justice to all. What is more, the latter is key to optimizing chances of acceptance, compliance, and social cohesion. Applying the teachings of procedural fairness to conflicts between freedom of conscience and equality, one important conclusion is that it is important for decision makers to show genuine respect and care for all stakeholders. Hence the need to carefully assess the merits of each position, to allow all voices to be expressed, and to make people feel that their concerns are taken seriously, and that sincere efforts are being undertaken to address them. Conclusions from procedural fairness concerns also emphasize the need for extensive motivation of decisions: it is important to give room to the arguments that stakeholders raise, and to give empathic reasons that explain why a certain argument gets more weight than another, or why a particular compromise can be considered balanced. In what follows, I first present a model for addressing conflicts between human rights (Section 10.2), before testing it in the specific context of conscience-based objections to antidiscrimination law (Section 10.3).

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Members Want from the Law and Legal Institutions?,” Behavioral Sciences & the Law 19, no. 2 (2001): 215–35, 233; Yuen J. Huo, “Procedural Justice and Social Regulation across Group Boundaries: Does Subgroup Identity Undermine Relationship-Based Governance?,” Personality and Social Psychology Bulletin 29 (2003): 336–48, at 337. Tom R. Tyler, “Procedural Justice and the Courts,” Court Review 44, no. 1/2 (2007–08): 26–31, at 30. See also Kevin Burke and Steve Leben, “Procedural Fairness: A Key Ingredient in Public Satisfaction,” Court Review 44, no. 1/2 (2007–08): 4–25. (Also published separately as “White Paper,” American Judges Association, September 26, 2007.) Cf. Bruce MacDougall, Elsje Bonthuys, Kenneth McK. Norrie, and Marjolein van den Brink, “Conscientious Objection to Creating Same-Sex Unions: An International Analysis,” Canadian Journal of Human Rights 1, no. 1 (2012): 127–65, at 164. “No resolution will satisfy everyone”: the authors conclude that state institutions should consider how they could “at least do the least amount of harm.”

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10.2 THREE-STEP MODEL FOR ADDRESSING CONFLICTS BETWEEN HUMAN RIGHTS

In previous research,16 which was not specifically focused on either emancipation rights or conscience-based objections to antidiscrimination rights, I developed a three-step model for addressing conflicts between human rights. Since human rights are by definition at stake on both sides of the conflict, the model prefers compromise solutions over solutions that completely sacrifice one right in the name of the other. Even before that, the first step consists of examining whether the conflict can be made to disappear, that is, whether a prima facie conflict might actually be the result of a particular approach to the case, for which alternatives exist. 10.2.1 Step 1: Eliminate Fake Conflicts In some cases, the conflict between fundamental rights is not a necessary feature of the issue concerned, but rather results from a particular approach to that issue. I submit that when a claim is made for the restriction of one human right in the name of the protection of another human right, it has to be examined whether it is possible to avoid the conflict between those two rights. Can a solution be found that leaves both rights intact? If this is the case, I submit that such solution will have to be preferred in most cases. An example in the context of criminal procedure is a legal provision attempting to realize the right to a trial within a reasonable time by imposing strict procedural time limits only on the accused, and not on the prosecutor. This is a restriction of the accused person’s right of equality of arms. Both the reasonable time requirement and the requirement of equality of arms are sub-rights of the right to a fair trial. The European Court of Human Rights (ECtHR) held that the reasonable time objective can – and therefore should – be realized without impinging upon the equality of arms.17 10.2.2 Step 2: Preference for Compromise Most of the time, however, it will not be possible to fully protect both rights, which means that there is a real conflict between human rights. In those cases, 16

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Eva Brems, “Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms,” Human Rights Quarterly 27, no. 1 (February 2005): 294–326. Also see editor’s “Introduction” to Brems, Conflicts, 1–16. ECtHR, Wynen v. Belgium, November 5, 2002, Reports of Judgments and Decisions, 2002-VIII.

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I submit that it is important to attempt to avoid having to sacrifice one right for the sake of the other. By definition, each of the interests involved is considered particularly important, such that under normal circumstances it is given priority over other claims. Hence a solution that completely forsakes the protection of one of those rights is undesirable. When both rights are put in the balance, the challenge is to find equilibrium, rather than making the balance tilt to one side or the other. Preference has to be given to a solution that does not subordinate one right to the other, but rather finds a compromise with concessions from both sides for the purpose of guaranteeing maximum protection of both rights. For example, when the glamor press publishes photographs of movie stars or princes, this opposes the privacy rights of these people to the freedom of the press. In this conflict, it is generally accepted that the solution lies not in either totally protecting privacy (and thus prohibiting the publication of photographs without explicit permission) or totally protecting press freedom (and thus allowing a paparazzi hunt on the stars), but rather in a compromise, in which, for example, photographs taken at public occasions can freely be published, but photographs in the private sphere require permission.18 10.2.3 Step 3: Criteria for Prioritization It seems inevitable that a substantial number of conflicts will not be susceptible to either elimination or compromise, and may only be solved by according priority to one right over the other. In rare cases, international law provides the order of priority. For example, in the conflict between freedom of expression and the prohibition of racial discrimination in the context of racist hate speech, Article 4 CERD gives priority to the latter.19 Yet in most cases, no such ranking by the treaty maker is available, and the principle of indivisibility applies. Yet in order to solve the issue, rights have to be ranked in the concrete case.

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See, for the European Court’s approach to this issue, the Von Hannover cases, involving the royal family of Luxemburg: ECtHR, Von Hannover v. Germany, June 24, 2004 and especially ECtHR (Grand Chamber), Von Hannover v. Germany (no. 2), February 7, 2012. Article 4 CERD under (a) obliges states to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred” as well as incitement to racial discrimination. Under (b) it moreover states that states “shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law,” prioritizing racial equality also over freedom of association.

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In this respect, it is useful to inventory relevant criteria that may guide this exercise. One criterion operates on the distinction between the core and the periphery within each right. In a conflict between rights A and B, it is possible that realizing A infringes upon the core of B, whereas realizing B would only infringe upon a peripheral zone of A, which would argue in favor of that solution. A related criterion concerns the severity of the interference caused by the exercise of one right in the exercise of the other and vice versa. If the exercise of the right is rendered utterly impossible, this will carry more weight than if it is only made more difficult. Another criterion is that of the indirect involvement of other rights, due to the involvement of third parties or to the “leverage” effect of a particular right (for example, the right to a fair trial acts as a lever for the enforcement of all other rights); if an infringement on right A indirectly results in infringements upon rights C and D, there is increased reason to avoid this infringement. Similarly, the involvement of other weighty general interests in addition to the individual rights may play a role: there are fundamental individual rights on both scales of the balance. If this is joined on one scale but not the other by an important general interest, that may tilt the balance. For example, press freedom is not only important for the individuals and organizations that make up the press; it is also recognized as an essential feature for the functioning of a democracy.20 10.3 TESTING THE MODEL

The merits of the model in the specific context of conscience-based objections to antidiscrimination law will be tested through the lens of four cases. All four cases concern Christians invoking religious freedom or the freedom from discrimination on grounds of religion, against nondiscrimination provisions.21 The latter concern discrimination on grounds of sexual 20

21

Cf. the European Court of Human Rights’ consistent reference to the vital role of “public watchdog” by the press and others. ECtHR, Observer and Guardian v. UK, November 26, 1991, para. 59. This focus is related to the fact that the first version of this chapter was written in the context of a panel addressing “objections to anti-discrimination laws in the name of religious majorities,” at the interdisciplinary international conference “The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality,” at Cardozo School of Law, New York, September 20–21, 2015. As the cases concern Christians in countries in which Christianity is the majority religion, the cases can be labeled as concerning “religious majorities.” However, it should be acknowledged that the interpretations of Christianity that are adhered to by the

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orientation (cases 1 and 2), discrimination on grounds of religion (case 3), and gender discrimination (case 4). The cases cover public as well as private contexts. All cases concern real disputes that took place in Europe. While the European context impacted both the facts of the cases and their resolution in European domestic or supranational judicial fora, it is submitted that the assessment of the capacity of the model to address these cases remains valid regardless of such context. 10.3.1 Religious Objection to Same-Sex Marriage Registration As marriage was opened up to same-sex couples, several countries in which civil marriage is conducted by a civil servant were confronted with the phenomenon of civil servants refusing to conduct same-sex marriages on grounds of conscience. In Europe, this has notably occurred in the Netherlands,22 the United Kingdom,23 Spain, Finland, Sweden, and France.24 The European Court of Human Rights addressed the issue in a case against the United Kingdom.25

22

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24

25

conscientious objectors in these cases may not be (and in some cases are manifestly not) the majority interpretations of Christianity in the relevant societies. In the Netherlands, the government at first preferred what it called “a pragmatic approach,” leaving the matter to municipal policies, i.e., tolerating municipal policies that accommodated conscientious objectors to same-sex marriage among marriage registrars. In 2012, it was noted that there were a total of eighty-eight conscientious objectors among marriage registrars, over forty-eight municipalities – in a total of 415 Dutch municipalities (Explanatory Report Bill W04.12.03331/I, Dutch Parliament 2011–12). The bill ending this tolerance of conscientious objection was adopted in 2014 (cf. supra, n. 8) against the advice of the Dutch Council of State (Advice W04.12.0331/I of October 12, 2012). In the parliamentary proceedings leading up to the legalization of same-sex marriage in the United Kingdom, an amendment providing for a permanent conscientious exemption for marriage registrars was discussed but not put to the vote; an amendment providing for a transitional exemption for registrars who were already appointed was defeated. See Rex Ahdar, “Religion and Same-Sex Marriage: Same-Sex Marriage Exemptions for Celebrants and Religious Freedom,” in W. Cole Durham Jr. and Donlu Thayer, eds., Religion and Equality: Law in Conflict (Oxon: Routledge, 2016), 93–116. The French Constitutional Council ruled in October 2013 that the lack of a conscientious exemption for marriage registrars was not unconstitutional: Conseil Constitutionnel, De´c. No. 2013–353 QPC. In Marseille, a marriage registrar was convicted to a suspended prison sentence in September 2015 for having refused to conduct a wedding of two women. www .metronews.fr/info/marseille-l-adjointe-au-maire-sabrina-hout-condamnee-pour-avoir-refusede-celebrer-un-mariage-gay/moiC!EZgOpZhVTUTk/. Stijn Smet, “Conscientious Objection to Same-Sex Marriages and Partnerships: The Limits of Toleration in Pluralistic Liberal Democracies,” in Aure´lia Bardon, Maria Birnbaum, Lois Lee, Kristina Stoeckl, and Olivier Roy, eds., Religious Pluralism: A Resource Book (Florence: European University Institute, 2015), 60–67. ECtHR, Eweida and others v. the United Kingdom (Ladele), January 15, 2013.

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In such cases, the freedom of conscience and religion conflicts with the right to be free from discrimination on grounds of sexual orientation. The latter is a clear emancipation right. Moreover, it is relevant for this discussion that the process of cultural change toward the realization of this right in Europe is still in an early stage, compared to, for example, the process of cultural change toward gender equality. The law is of course not the main driver of cultural change. Yet it is beyond question that law can contribute to entrenching cultural attitudes and practices as well as to changing them. With regard to the role of the law in contributing to the realization of cultural change toward emancipation rights, I submit that two elements are of particular importance, that is, the expressive function of the law and the temporal dimension of cultural change. The direct control of human behavior is not the only function of the law. “Making statements” is another function, which is notably prominent in antidiscrimination law.26 Because law has this expressive function, it can cause “expressive harm.”27 When antidiscrimination law is used to realize emancipation rights, the expressive function of the law is arguably more important than the direct control function toward the goal of realizing a change in people’s minds. When exemptions are created in such law, we should reflect also about the expressive function of such exemptions, and their potential for causing expressive harm. The second point I want to advance is a sense of the temporal dimension of cultural change. Cultural change does not happen overnight and it cannot be imposed. Once a victory for emancipation rights (in casu: the legalization of same-sex marriage) is won, it is only human that many want to forget the discriminatory past as fast as possible. Yet as the French maxim goes, “on ne change pas la socie´te´ par de´cret”: the change of the law alone does not change minds and attitudes. It is therefore submitted that a “transition mind-set” that is aware of this human reality may be more productive than a blind victor’s mind-set. People who have been raised and socialized with the axiom that marriage is for heterosexual couples only can change these deeply held convictions, but that requires time. Some understanding for that fact, especially in a historical context in which the heterosexual monopoly of marriage remains the majority position worldwide, can be seen as a matter of 26

27

Cass Sunstein, “On the Expressive Function of the Law,” University of Pennsylvania Law Review 144, no. 5 (1996): 2021–53. As defined by Anderson and Pildes, “a person suffers expressive harm when she is treated according to principles that express negative or inappropriate attitudes toward her.” Elizabeth Anderson and Richard Pildes, “Expressive Theories of Law: A General Restatement,” University of Pennsylvania Law Review 148, no. 5 (2000): 1503–75, at 1527.

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fairness.28 In addition, there is a concern of effectiveness: showing intolerance to late adaptors to cultural change may lead to entrenching resistance to such change and in fact slowing down change for equality. Applying the three-step model presented earlier to conscientious objections to same-sex marriage registration, it can be observed that Step 1 strategies, which aim to make one side of the conflict disappear, have regularly been attempted on both sides of the conflict. On one side is the claim that conscientious objections to same-sex marriage registration “are not an exercise of religious freedom.”29 At least in the European context, this position is plainly wrong from a legal point of view. As we are dealing with behavior that is “motivated or inspired by religion or belief,”30 religious freedom is involved. Moreover, from a procedural fairness perspective, it is not helpful to ignore the lived experiences of sincere individuals – who experience the denial of an exemption as an assault on their religious identity.31 Hence this attempt to frame the issue as a “fake conflict” must fail. On the other side, it is argued that conscientious objection to same-sex marriage can be accommodated in a manner that does not infringe on equality rights. There is some prima facie merit in this reasoning,32 as in many jurisdictions the exercise of conscientious objection can be organized in such a manner that no impediment or delay is created for access to marriage.33 The accommodation of the conscientious objection is then a behind-the-scenes matter of office organization. Yet it would not be correct 28

29

30 31

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33

Cf. the argument of the Dutch Council of State (advising in 2012 on the bill that would outlaw conscientious objection in this field), that it is relevant that in most European countries, marriage legislation is still based on the premise that marriage is reserved to couples of opposite sex, and that the legislator when legalizing (as the first country in the world) samesex marriage, has repeatedly considered that such opinion is worthy of respect. (See supra note 22 on Council of State.) E.g., Moon, arguing in the Canadian context that in these cases “there is no freedom of religion interest to be balanced against the right to sexual orientation equality.” Richard Moon, “Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same-Sex Civil Marriages,” in Benjamin Berger and Richard Moon, eds., Religion and the Exercise of Public Authority (Oxford: Hart, 2016): 149–66. ECtHR (Grand Chamber), Leyla S¸ahin v. Turkey, November 10, 2005, para 78. That is not to say that they may not have to accept such infringements, which is a matter that concerns not the scope of the right, but its legitimate restrictions. In the sense that conscientious objection provisions can be drafted in a nondiscriminatory manner, cf. Robin Fretwell Wilson, “Insubstantial Burdens: The Case for Government Employee Exemptions to Same-Sex Marriage Laws,” Northwestern Journal of Law & Social Policy 5, no. 2 (2010): 317–68. This applies in particular to “single entry point” systems in which couples contact an office, not an individual.

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to say that such an arrangement does not touch upon equality rights. Even if no material harm is done, it will be hard to avoid expressive harm. In the words of Anderson, expressive harm is the nonmaterial harm caused by the state to a person “when she is treated according to principles that express negative or inappropriate attitudes towards her.”34 Especially given the context of contestation and mobilization around these conscientious objections, same-sex couples would know that their municipality accommodates conscientious objections. Even though some couples might appreciate a system that avoids the risk for a same-sex couple to have their marriage ceremony conducted by an individual who opposes same-sex marriage,35 this arrangement may be perceived by same-sex couples as an affront to their human dignity, as a message that “discrimination of homosexuals is, at the least, tolerable.”36 The accommodation of objectors against marriage equality would also talk to society at large, sending the message that sexual orientation equality is not unequivocally endorsed by this municipality. If we take the expressive function of the law seriously – as I submit we should – we therefore cannot solve this matter in Step 1 as a “fake conflict.” Can behind-the-scenes accommodation of conscientious objectors then be qualified as a balanced compromise in Step 2? It can be qualified as a compromise in that it involves concessions on both sides of the conflict. LGBT individuals and LGBT people as a group would suffer expressive harm, yet not material harm, while religious objectors would be accommodated most of the time, but would have to yield if in the concrete circumstances of the case granting the exemption would cause a delay or otherwise generate unequal access to marriage. In some countries, this might be a very rare event, given the relatively low demand for same-sex marriage, and the relatively low percentages of objecting staff. For example, in the Netherlands, the first country in the world to introduce same-sex marriage, the number of samesex marriages is less than 2 percent of the total number of marriages. There are 415 municipalities in the Netherlands, where in 2012 a total of around eightyeight conscientious objectors worked as marriage registrars.37 There are no known cases of persons who have been unable to marry in the municipality of their choice, or who would have suffered other obstacles. In such a situation, 34 35

36

37

Anderson and Pildes, “Expressive Theories,” supra note 27, 1527. Patrick Parkinson, “Accommodating Religious Belief in a Secular Age: The Issue of Conscientious Objection in the Workplace,” University of New South Wales Law Journal 34, no. 1 (2011): 281–99, at 293–94. Robert Wintemute, “Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others,” Modern Law Review 77, no. 2 (2014): 223–53, at 223. Cf. supra n. 21.

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the compromise does not, at the aggregate level, appear to be a balanced one: all LGBT individuals would suffer expressive harm to their equality rights, whereas only rarely would conscientious objectors suffer interference in their religious freedom. In practice, the compromise solution would thus come very close to giving priority to religious freedom over equality rights. A more balanced solution would be one that increases the concessions on the side of the conscientious objectors while decreasing concessions on the LGBT side. Such a solution exists where the exemption is limited to individuals who were hired before the introduction of same-sex marriage.38 I submit that this significantly reduces the extent of expressive harm, not only because the number of objectors would be smaller, but above all because a sunset exemption sends a different message than a permanent exemption. Carving out a permanent exception to equality suggests that it is not the intention of policy makers to work toward changing minds in favor of equality, and that the commitment to equality is thereby limited as it omits a crucial part of what international human rights law expects states to do in order to realize equality. By contrast, a sunset clause can be a very functional feature in a state policy that does aim to change culture and to change minds. Its very nature – the gradual extinguishing of an exception – communicates the idea of change and transition. As a concession to conscientious objectors, it is less a matter of principle than a matter of strategy and humanity. As such it cannot be confused with giving priority to claims of conscience over claims of equality. It is a matter of humanity because it recognizes that the heterosexual monopoly of marriage was self-evident until very recently, and that this is a matter that touches upon very fundamental values in the sphere of marriage and the family. It thus implicitly recognizes that a degree of cultural resistance to change in this field is deeply human. Facilitating cultural change for equality may be better served by recognizing that such resistance exists and that it is a normal feature of cultural transition, than by pretending it does not exist or confronting it with intolerance. The latter approach might in fact contribute to entrenching resistance and slowing down change. In that sense a sunset clause is also a strategic choice. In summary, in this scenario, there is no material harm on the LGBT side and the expressive harm is significantly reduced. On the side of the conscientious objectors, some individuals may have to choose between a preferred 38

This has been called “sunset” (Mark Hill, “Religious Symbolism and Conscientious Objection in the Workplace: An Evaluation of Strasbourg’s Judgment in Eweida and Others v. United Kingdom,” Ecclesiastical Law Journal 15 [2013]: 191–203, at 203) or “grandfathering” (Steven Shavell, “On Optimal Legal Change, Past Behavior, and Grandfathering,” Journal of Legal Studies 37 [2008]: 37–85, at 37).

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career option and their conscience. This is material harm. Yet it is light, as no sitting officials lose their job, and many alternative jobs exist for people with similar qualifications. This is combined with a degree of expressive harm, in the sense that through the sunset clause the authorities are expressing the message that they do not support these people’s heartfelt point of view, and that they aim for a society in which that view carries no weight whatsoever. Yet if we take emancipation rights seriously, we cannot delegitimize this message, which is at the heart of what emancipation rights are about. I am not claiming that this is the only acceptable solution for this case of conflicting rights,39 but I submit that the kind of reasoning I suggest, based on empathy for both sides, and on carefully motivated balancing, can lead to finding a balanced compromise.40 10.3.2 Religious Objection to Delivering Services to Same-Sex Couples: The Case of a British B&B Conscience-based objections to the equal treatment of same-sex couples have been made also in private relations, involving the delivery of services. In Europe, these have included among others an incident in which a bakery in Northern Ireland refused to serve a customer seeking a cake featuring the slogan “support gay marriage,”41 the refusal of a Dutch textile printing company to accept an order to print the message “Gay Sport Nijmegen PINK Tournament 2009” on towels,42 and several cases of refusal to rent a room in a Dutch church to an LGBT organization.43 Moreover, the European Court of Human Rights examined a case of a couples therapist who refused to work with same-sex couples.44 We zoom in here on the case of hotel or B&B owners

39

40

41

42

43

44

In Eweida v. UK, the European Court of Human Rights approved of a scheme that obliges all registrars without exception to conduct same-sex marriages. See also supra note 25. It is possible that proponents of conscientious objection do not consider this to be a balanced compromise, but rather as priority of equality over conscience. I submit that under Step 3 (the balancing exercise) such priority can be defended. In this case, discrimination was found by a Belfast county court in May 2015 (www .independent.co.uk/news/uk/home-news/gay-marriage-bert-and-ernie-cake-row-to-hear-rul ing-of-judge-in-northern-ireland-10259865.html). At the time of writing, the appeal case is pending. The (then) Equal Treatment Commission ruled that this was not discriminatory, as a company cannot be obliged to deliver certain goods, and as this company would not deliver that particular good to heterosexual customers either: CGB, ruling 2010–196 (www .mensenrechten.nl/publicaties/oordelen/2010–169). The Dutch Human Rights College has found discrimination in its rulings 2014–109 (www .mensenrechten.nl/publicaties/oordelen/2014–109) and 2014–110 (www.mensenrechten.nl/pu blicaties/oordelen/2014–110). ECtHR, Eweida a.o. v. UK. See also supra note 25, concerning McFarlane.

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who rent out a room with a double bed only to (married) heterosexual couples, based on their religious views of marriage and sexual relations. This was the issue at stake in two British cases in 2013,45 in which the courts held that such refusal was discriminatory.46 As in the case of the marriage registrars analyzed, this situation presents a conflict between the freedom of conscience and religion and the right not to be discriminated against on grounds of sexual orientation. There is, however, a number of relevant differences between the two types of situations, which are identified in the application of the three-step model. To start, no credible claim can be made that this would be a fake conflict of rights, as a scenario that eliminates the material harm to same-sex couples (that is, the fact of not being able to book a double room in the hotel of their choice) is not available. More importantly, the expressive harm in this type of case is of a brutal nature, that is, one individual directly informing another individual that one refuses service to another because one does not approve of the other person’s relationship. Moreover, it does not seem possible to identify a balanced compromise solution (Step 2) in this scenario. Offering a room with twin beds could be a compromise for some hotel owners. In one of the British cases, there was no objection against same-sex couples in twin beds,47 yet in the other, there was.48 This mitigates the material harm compared to a situation in which a hotel refuses to offer any room to a same-sex couple, yet it keeps the expressive harm, which is arguably the crucial matter in this case, intact. It can therefore not be considered a balanced solution. A sunset clause that would have granted hotel owners a timeframe to adapt to the requirements of newly introduced antidiscrimination legislation might have been considered. Both British cases concern applications of the Equality Act (Sexual Orientation) Regulations 2007. The facts date from 2008 to 2010 respectively, which might conceivably have fallen within a transition period. In the case of Black & Anor, it is clear that the B&B owner who rents out three rooms in her own house holds so strongly to her religious objection that she would rather withdraw from the B&B business than comply with the antidiscrimination legislation. Considerations of the economic impact in such cases, as well as considerations related to the time needed to mentally adapt one’s strongly held convictions, might justify a transition period. Yet from the perspective of 45 46

47 48

I.e., predating the introduction of same-sex marriage in the United Kingdom in 2014. Bull and another v. Hall and another, UK Supreme Court [2013] UKSC 73; Black and Morgan v. Wilkinson, Court of Appeal of England and Wales [2013] EWCA Civ 820. Bull and another v. Hall and another. See also supra note 46. Black and Morgan v. Wilkinson. See also supra note 46.

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same-sex couples, this can be considered a compromise solution only at the aggregate level that might, for instance, be accepted in the run-up to legislative change. At the level of the couple, however, who are dealing with direct rejection of their lifestyle by a service provider, the knowledge that such rejection will no longer be acceptable in a few years does not serve as a mitigating factor.49 In my opinion, this can therefore not be considered a balanced compromise either. In this case therefore, one right will have to get priority over the other (Step 3). I submit that a balancing exercise that is centered on the relative weight of the interference in each of the conflicting rights clearly points in the direction of giving priority to the right not to be discriminated against on grounds of sexual orientation. Indeed, the facts in this type of situation concern the heart of what the protection of discrimination on grounds of sexual orientation is about: they are about brutal, direct, in-your-face discrimination. Mr. Black and his partner had booked a room by email, yet were refused the room upon arrival in the B&B. The hotel owner “made it clear that she would not accommodate them because she did not like the idea of two men sharing a bed. She refunded the deposit and they left.”50 Mr. Preddy had booked a room by telephone, and as a result had not seen the clause on the online booking form that said, “Here at Chymorvah we have few rules, but please note, that out of a deep regard for marriage, we prefer to let double accommodation to heterosexual married couples only – thank you.” When the couple arrived, they were told in the presence of other guests that their booking could not be honored, which they experienced as “very hurtful.”51 These facts must be considered serious interferences with these couples’ equality rights that moreover touch upon the core of these rights. On the other side of the conflict, it would be hard to sustain that the possibility to avoid facilitating the “sinful” lifestyle of others through the delivery of professional services concerns the core of religious freedom. Arguably, the core concerns the believer’s own lifestyle, not the indirect involvement in the lifestyle of others. Moreover, the seriousness of the interference with the freedom of conscience and belief is in most cases of a limited nature. Compared to the role of the marriage registrar, whose intervention is necessary to conclude a marriage that is considered sinful, the role of the hotel owner in recognizing relationships or 49

50 51

To the small extent that it does, it is likely outweighed by the knowledge that the legislator accepted that they would have to suffer such brutal direct discrimination during the transition period. This scenario is qualitatively different from that of sunset clauses for registrars discussed, which would be limited to behind-the-scenes organization of work. Black and Morgan v. Wilkinson. See also supra note 46. Bull and another v. Hall and another. See also supra note 46.

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facilitating sexual relations considered sinful is a lot more limited. In that sense the burden on the believer’s conscience can reasonably be considered lighter for the hotel owner than for the marriage registrar. Admittedly, the interference is significantly more serious for a B&B owner who receives guests in her own home and treats them “as members of the family”52 than for a hotel owner who lives elsewhere and may leave most of the interaction with the guests to his or her staff. Such a B&B owner will not continue her business if she is obliged to accept guests that she experiences as a burden on her conscience. Yet even in such cases in which the interference is relatively serious, the fact that it does not touch upon the core of her right makes that the potential harm on the B&B owner is outweighed by the potential harm on the couple, which concerns a serious interference with the core of their rights. 10.3.3 Rejection of a Job Applicant on Religious Grounds: The Case of the Dutch Salvation Army In the European context, one of the most prominent instances of recognition of conscientious objections to antidiscrimination law is found in Article 4(2) of the EU Equal Treatment Directive 2000/78/CE.53 This provision stipulates the possibility for Member States to provide an exemption from antidiscrimination legislation in the employment context pursuant to which, in the case of occupational activities within churches and other public or private organizations the ethos of which is based on religion or belief, a difference in treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organization’s ethos.

The exemption in the Directive legitimizes conscientious exemption clauses in domestic antidiscrimination law, such as that of Article 5 (2) (a) of the Dutch General Equal Treatment Act.54 This provision explicitly protects, as an exception to the application of the Equal Treatment Act, “the freedom of 52 53

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Black and Morgan v. Wilkinson. See also supra note 46. Council Directive 2000/78/CE of November 27, 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, 16–22. Act of March 2, 1994, “houdende algemene regels ter bescherming tegen discriminatie op grond van godsdienst, levensovertuiging, politieke gezindheid, ras, geslacht, nationaliteit, hetero- of homoseksuele gerichtheid of burgerlijke staat [holding general rules for the protection against discrimination on grounds of religion, conscience, ideology, race, sex, nationality, hetero- or homosexual inclination or civil status].”

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an institution based on religion or belief to stipulate requirements which, in the light of the objective of the institution, are required for fulfilling a function, on condition that these requirements do not lead to distinctions based on the simple fact of political ideology, race, sex, nationality, hetero- or homosexual inclination or civil status.”55 An example of the application of this provision is found in a 2015 ruling under the quasi-judicial complaint procedure of the Dutch National Human Rights Institution (College voor de Rechten van de Mens [CRM]). The case concerns the rejection of a candidate for the position of salary administrator with the Dutch Salvation Army (DSA).56 Concretely, the electronic application form of the DSA includes the question whether the candidate is a Christian believer. In case the question is answered in the negative, the candidate receives the message that the procedure cannot be continued. Before the CRM, the rejected candidate argued that this was a prohibited discrimination on grounds of belief. Yet the CRM ruled that this was not the case, as the DSA could rely on the aforementioned conscientious exemption clause. The main elements in the assessment concerned the consistent character of the DSA’s policy, which was based on policy memos concerning organizational identity and hiring policy, and the finding of a clear objective link between the realization of the organization’s religious foundation and the related requirements with respect to the vacant position. The CRM accepted the DSA’s argument that even a salary administrator in the DSA has to bear witness of his faith, as it is not excluded that he may act as a representative of the organization vis-a`-vis clients and external contacts. Moreover, as emphasized by the DSA in its introduction and training activities, it considers it important that colleagues can recognize the same religious inspiration in each other. This case concerns a conflict between the DSA’s freedom of religion, as applied to its internal organization, and the candidate’s right to protection against discrimination on grounds of religion in the employment context. It is a conflict of human rights that can neither be qualified as a “fake conflict” (Step 1 of the three-step model) nor addressed through a compromise solution (Step 2). Can the priority that Dutch and EU law give in a case like this to religious freedom over the prohibition of discrimination be justified? In an attempt to balance the conflicting rights, I zoom in first on the respective seriousness of the interference with either right, and on the question whether the interference concerns the core of that right.

55

My translation.

56

College voor de Rechten van de Mens, ruling 2015–68 of June 9, 2015.

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The rejected candidate suffers a direct discrimination on the ground of the fact that he is not a Christian believer. This concerns the core of the protection of discrimination on grounds of religion. The material harm caused by the discrimination is fairly serious, as it concerns access to employment. The ruling of the CRM does not contain any information on alternative employment opportunities for the candidate. Yet it can be assumed that there are many alternatives in the field of salary administration, which reduces the harmful impact of the discrimination. In terms of expressive harm, it is submitted that this type of conscientious exemption is significantly less harmful than an exemption that would allow public officials or private service providers to refuse service to homosexual couples. This is because the objective of the latter exemption is to make room for individuals to refuse to be complicit in what they consider the sinful conduct of others, which automatically implies a negative judgment of the other persons’ behavior, which can moreover be very direct and brutal. The Dutch exemption discussed here, on the other hand, is to allow organizations based on religion or belief to protect their identity. In other words, the reason for the rejection of the candidate in the DSA case is that the candidate is “not one of us,” that is, not a believer, whereas the reason for refusing service to homosexual couples is that “they are sinful.” Whereas the first is a fairly neutral factual finding, the second is a derogatory moral judgment. On the other side of the conflict, it has to be accepted that the possibility for a faith-based organization to control its internal organization with a view to protecting its identity is an important concern that is close to the core of religious freedom. The question how serious the interference in this right would be if the DSA were obliged to hire persons in administrative functions that do not share this faith-based identity was indirectly assessed by the CRM when it researched the organization’s internal policies and practices. It found that the statutes of the DSA stipulate that it is the organization’s goal “to express the Gospel, and in particular its call to conversion, through words and actions in any suitable place, time and manner.”57 Moreover the most recent version of the DSA’s “Identity Nota” stipulates that “Christian identity is apparent in policy choices, procedures . . . and in the way of dealing with others, including clients, colleagues and society.” On contact with clients, the Identity Nota states moreover that “[c]ollaborators are willing, when asked, to talk about what inspires and directs them in life. If clients experience a need for a conversation about belief, they can address collaborators . . . Attention for Christian faith can happen in the form of a conversation, as well as an 57

College voor de Rechten van de Mens, ruling 2015–68 of June 9, 2015, para. 2.5.

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invitation to participate in spiritual activities.” On “identity and collaborators,” the Identity Nota mentions that the organization’s Christian identity “can only exist because it is supported by collaborators, who find their own identity also in the belief in Jesus Christ . . . All collaborators, regardless of function, whether salaried or volunteer, have to comply with the requirement of Christian belief.” In this light, it becomes clear that the DSA is not just an organization that delivers aid to people in need based on Christian inspiration, but is indeed an organization for which the practice and dissemination of Christian faith is part of its core business. For such an organization, employing nonbelievers inside the organization may indeed constitute a serious threat to its identity. In sum, the balancing on the basis of the core and severity criteria does not yield a clear conclusion for prioritization. Looking at additional criteria does not provide a clearer picture either. A general interest can be invoked on either side of the conflict. On the side of the rejected candidate, this could be the general interest to not waste talent on the labor market by rejecting people for jobs on the basis of criteria that are not related to their talents or skills. On the side of the DSA, this would be the general interest in a society in which religious pluralism can flourish. Given this inconclusive balancing, I conclude that the position of the EU to leave it for the Member States to include or not such conscientious objection is defensible, as is the carefully crafted and narrowly interpreted58 exemption in Dutch law.59 10.3.4 Exclusion of Women from the Ballot on Religious Grounds: The Case of the Dutch SGP The final case study concerns a conflict between religious freedom and the prohibition of gender-based discrimination. A Dutch political party (Staatkundig Gereformeerde Partij [SGP])60 whose program is based on “the infallible Word of God as revealed in the Bible,” used to present, on the basis of its religious conviction, only male candidates for elections to general representative bodies of the state. This led to a series of 58

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Cf. ruling 2006–93 of the Equal Treatment Commission, the precursor of the CRM, finding that the exemption cannot be invoked in the case of a Catholic school rejecting a candidate for a temporary function as a mathematics teacher because he is a Muslim. At the same time, it would also be defensible not to provide such an exemption. The SGP is a small party. At the national level, it currently holds three seats (out of 150) in the Lower House (Tweede Kamer) of Parliament (elections of 2012), and two (out of 75) in the First Chamber (Senate, elections of 2015).

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court cases,61 as a result of which the party had to change its policy and now presents female as well as male candidates. The court procedures were mainly focused on the issue of state obligations to intervene in the SGP’s policies and to exclude the party from state subventions. Due to the parallel course of procedures before the civil and administrative courts, the conflicting rights situations resulted in conflicting outcomes in December 2007, when the SGP won its case before the Council of State,62 yet lost before the Court of Appeal of The Hague.63 In 2010, the Supreme Court ruled on the joint appeals to both cases, finding that the Dutch state is under an obligation to take measures that will lead to the SGP granting the right to stand for election to women, in a manner that is both effective and at the same time impinges as little as possible on the fundamental rights of (the members of) the SGP. It ruled, however, that the court was not competent to order any specific measures (such as withholding of state funding) in this respect.64 An application by the SGP to the European Court of Human Rights against this judgment was found inadmissible for being manifestly ill founded.65 Applying the three-step test, the first question is whether the issue can be seen as a “fake” conflict. This may be argued on account of the fact that at the time when the legal procedures were being conducted, no woman had ever expressed a wish to be included on any SGP electoral list.66 The Council of State could thus state that there was in fact no effective restriction of women’s passive voting rights.67 Indeed, one might hypothesize that women who join the SGP embrace its program, including its views on gender roles. However, even if that were an empirical fact,68 that does not eliminate the women’s rights concern, and hence does not eliminate the conflict of rights. At least as far as the public financing of political parties is concerned, the women’s rights 61

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Court of First Instance The Hague, September 7, 2005 (two judgments); Court of First Instance The Hague, November 30, 2006; Council of State December 5, 2007; Court of Appeal The Hague, December 20, 2007; Supreme Court, April 9, 2010. See also European Court of Human Rights, July 10, 2012. Council of State, December 5, 2007. 63 Court of Appeal The Hague, December 20, 2007. Supreme Court, April 9, 2010. European Court of Human Rights (dec.), July 10, 2012, SGP v. the Netherlands. The legal procedures were initiated by nongovernmental organizations. In 2013, however, a female SGP member saw her candidacy to head a list for the municipal elections honored by the local SGP branch, and was elected to the municipal council of Vlissingen in March 2014. Raad van State. See also supra note 62. In practice, of course, most if not all political parties have members who embrace most but not all of its program, and it is quite common that even rather central points of a party’s program are contested by some of its membership at some point in time. Also, after the loosening of the party’s gender restrictions in 2013, it did not take long for a woman to apply for a position at the head of a local list. See supra n. 62.

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issue extends beyond the female SGP members to all taxpayers or even all citizens. When the state is financing a political party that actively discriminates against women on a par with other political parties, it may be argued that the state is facilitating such discrimination. I submit that this is a matter of public interest. Yet even the female SGP members’ rights may be considered at stake. As women’s rights are emancipation rights, it is important to consider the fact that women who are part of a cultural group that embraces patriarchal discrimination may have internalized those rules, yet may also start questioning them as a result of awareness-raising activities or other events. While one must be extremely careful not to claim that women are victims of culturebased human rights violations when they themselves do not share this view, it is also important not to accept too readily that women’s rights are not even at stake. Given the central importance of political rights as levers for women’s emancipation overall, an – admittedly paternalistic – lens that identifies a women’s rights issue regardless of its not being claimed by the women concerned is arguably justified.69 Hence the matter cannot be set aside as a fake conflict. Once the SGP case has been recognized as a true conflicting rights case, it is clear that a compromise solution (Step 2) is not possible. Indeed, allowing women on some lists but not others – or allowing some women but not others on the lists – would keep the core of the problem intact for both sides. Hence, one right is to be prioritized over the other. Should that be the right to be free from gender-based discrimination, as was the final ruling of the Dutch and European courts? An analysis of the Dutch courts’ reasoning in this case reveals that they have relied on several of the criteria mentioned, in particular the core/periphery distinction, the seriousness of the interference, and the involvement of important general interests. The Court of Appeal of The Hague argued that if the SGP were to be compelled to open up its electoral lists to women, this would not touch upon the core of their religious freedom; “that core was the protection of personal religious beliefs and acts closely connected to it, such as acts of worship in the context of generally accepted religious ceremonies.”70 On the other side of the balance, the Court of Appeal held that the prohibition of gender-based discrimination was affected in its core by the SGP internal rules, because this was discrimination “in the exercise of one of the most fundamental rights 69

70

See supra note 65. Cf. also the decision of the ECtHR: “No woman has expressed the wish to stand for election as a candidate for the applicant party. However, the Court does not consider that decisive.” See supra note 63 for Court of Appeal of The Hague, and supra note 65 in the translation of the ECtHR.

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that the Netherlands as a democratic society grants to its citizens.”71 At the same time, and in the opposite sense, the Council of State held that the interference in the prohibition of discrimination was relatively light, as it had not affected any actual women, and as “nothing prevented women wishing to stand for office but otherwise adhering to views and convictions like those adhered to by the SGP from founding their own political party.”72 On the seriousness of the interference in the SGP’s rights, the Court of Appeal held that this was relatively minor, as the party would only be precluded from a priori excluding women from electoral lists, and as “nothing precluded it from freely deciding on such issues as composition of lists of candidates standing for elections73 and what political opinions such candidates should express. Such political opinions, the Court of Appeal held, could also include those not shared by the majority in the Netherlands, namely that women were by definition not suited for any Government office.”74 Indeed, when compared, for instance, with the mandatory imposition of gender quota on electoral lists,75 the intervention in the party’s freedom would be a minor one. The Council of State, on the other hand, focused on the impact of withdrawal of state subventions and considered this a serious infringement on the party’s rights. It held that this would put the party in a significantly disadvantaged position as compared to other political parties in a context in which it is important that all parties participate in the parliamentary debate on an equal footing. Hence, this would, according to the Council of State, undermine the legitimacy of the outcome of the debate.76 In addition, arguments were raised concerning important general interests.77 The Court of Appeal held that discrimination at the heart of the democratic system affects the democratic rule of law in a fundamental manner.78 This was echoed by the Supreme Court, stating that this affects the democratic functioning of the state in its core.79 Yet on the other side of the balance, the Council of State held that it is a matter of general interest that the 71 72 73

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Supra note 63, Court of Appeal of The Hague. Supra note 62, Council of State, and supra note 65 in the translation of the ECtHR. The Court thus seems to suggest that the party could in fact still submit lists with only male candidates, as long as it presented this as a selection on the basis of other factors than gender. See supra note 63 for Court of Appeal of The Hague, and supra note 65 in the translation of the ECtHR. As is the case, for instance, in the neighboring country Belgium. Supra note 62, Council of State. In addition, the case involved on the side of the SGP not only religious freedom but also the freedom of political association. The weight of the interference in this right was also a matter on which the Court of Appeal and the Council of State had different opinions. Supra note 64 for Court of Appeal of The Hague. 79 Supra note 64 for Supreme Court.

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ideological and religious tendencies in society be broadly reflected in the political parties taken as a whole, and that the entire electorate should be adequately represented, including small minorities with ideas that deviate from dominant opinion.80 What the hefty judicial debate in the Netherlands on this issue shows is that a model for addressing conflicting rights situations can help structure the arguments, but does not necessarily point in the direction of a clear solution. In March 2013, a large majority of 320 versus 85 SGP members (80 percent) voted in favor of allowing women on electoral lists. The rule that women should not govern remains unchanged, as does the principle that women and men have different roles in society and that for women to sit on representative bodies is a violation of her calling.81 In August 2013, Lilian Jansen applied for the position at the head of the SGP electoral list for the municipal elections in Vlissingen, after six men to whom the position had been offered had rejected it. She was later joined on the same list by two other women. Lilian Jansen became the first woman to be elected on an SGP list in the municipal elections of March 2014.82 This is in my opinion an important new element that corroborates the prioritization of women’s rights by the Court of Appeal and the Supreme Court. Whereas no female SGP member had challenged the genderdiscriminatory internal rule in ninety-five years of the party’s existence, within one year of the change of the rules (which itself came about within one year of the dismissal of the party’s appeal to the ECtHR), a woman has been elected for that party. This clearly shows that the conflict of rights was not just outsiderconstructed, but existed in fact within the party membership, including the female party membership. The human rights-based intervention allowed that conflict to be addressed internally. The party membership could have taken the principled road, assuming the risk of withdrawal of subventions, yet there appeared to be an overwhelming majority in favor of change toward equality. What is more, almost immediately women inside the party stood up and grasped their new opportunities. The paternalistic character of the women’s rights-based intervention was in my opinion compensated for by the swift ownership of equal rights within the party base.83

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Supra note 62 for Council of State. This stated also as regards the right to vote, with the addition that is a matter of each woman’s conscience whether or not to vote, taking into account the place that God has given her. SGP, Programma van Beginselen, art 10 (on www.sgp.nl). www.volkskrant.nl/binnenland/sgp-vrouw-schrijft-geschiedenis-in-vlissingen~a3618631/. The party governance was explicitly unhappy with the situation in Vlissingen, but had to grudgingly accept it. Ibid.

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This case suggests that in cases involving a conflict between cultural or religious group rights and emancipation rights of members within that group that cannot be conclusively resolved through the three-step model, it is justifiable to resolve the deadlock by prioritizing the emancipation right, as such a solution may greatly advance the process of cultural change inside the cultural or religious group that is the objective of that right. 10.4 CONCLUSION

This chapter has advanced a conflicting rights approach to conflicts between freedom of conscience/religion and equality rights, on grounds of principle and for reasons of procedural fairness. The case studies have shown that the application of the three-step model for conflicting human rights to conflicts between freedom of conscience/religion and equality rights may facilitate reaching a solution. In particular, the model points to the oft-overlooked fact that such conflicts need not necessarily be solved by giving priority to one right over another. Instead, it is argued that compromise solutions should be explored first. When the need to prioritize nevertheless arises, the model provides a framework that allows a clear structuring of argumentation and an empathic motivation of a court’s reasoning, in line with procedural fairness concerns. This benefit can be realized regardless of whether the application of the model points toward a clear outcome. The recognition of the cultural change dimension of equality rights as a type of emancipation rights has proven very helpful. It has pointed at the need to take seriously the expressive function of the law, and the relevance of the temporal dimension. Both factors are helpful in the search for a balanced compromise solution, as well as in the exercise of prioritization of rights. They also corroborate the importance of the procedural fairness criterion of respect for all stakeholders. Finally, the last case suggests that when a conflict concerns group-based religious rights and emancipation rights of group members, it is justifiable in a prioritization exercise to give additional weight to the emancipation rights.

11 The Role of the European Court of Human Rights in Adjudicating Religious Exception Claims Helen Keller and Corina Heri

11.1 INTRODUCTION

As recent events in both the United States and Europe have shown,1 individuals who are confronted with insurmountable conflicts between legal obligations and deeply held (religious) convictions or beliefs may refuse to comply with the law by claiming a religious or conscientious objection.2 The European Court of Human Rights (ECtHR) has dealt with cases concerning religious objection under Article 9 ECHR, the freedom of thought, conscience, and religion, largely concerning three main areas. These are (i) the refusal to perform military service,3 (ii) the refusal to support or contribute to medical procedures concerning the creation and ending of human life, for example, abortion services and contraceptive medicine,4 and (iii) the refusal to support or condone same-sex relationships, particularly same-sex marriages or civil unions.5 The present contribution focuses particularly on the ECtHR’s approach to the third area, wherein conscientious objection to modern, secular, and 1

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For the United States, see the examples in Douglas NeJaime and Reva B. Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (2015): 2572–74. For Europe, compare Eweida and Others v. the United Kingdom, nos. 48420/10, Judgment of January 15, 2013, Reports 2013. See Bayatyan v. Armenia, no. 23459/03, Judgment [GC] of July 7, 2011, Reports 2011, § 110. Bayatyan; Thlimmenos v. Greece, no. 34369/97, Judgment [GC] of April 6, 2000, Reports 2004IV; Savda v. Turkey, no. 42730/05, Judgment of June 12, 2012, §§ 91–100; Erc¸ep v. Turkey, no. 43965/04, Judgment of November 22, 2011, §§ 62–64; this may be the only type of objection explicitly accepted by the Court, see Enver Aydemir v. Turkey, no. 26012/11, Judgment of June 7, 2016, § 81. Compare Pichon and Sajous v. France, no. 49853/99, Decision of October 2, 2001, ECHR 2001X; Van den Dungen v. the Netherlands, no. 22838/93, Decision of February 22, 1995. See also, mutatis mutandis, R. R. v. Poland, no. 27617/04, Judgment of May 26, 2011, Reports 2011, § 206. Compare Eweida.

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equality-based understandings of gender and human sexuality creates a conflict between religious freedom and the right to equality. Framed as a conflict between respect for the incompatible religious identities of believers and the sexual and psychosocial identities of lesbian, gay, bisexual, and transgender (LGBT) individuals,6 or between liberty and equality, this conflict seems to reach a stalemate. Some authors have suggested instead that a workable solution is possible by seeking to avoid harms to both groups concerned to the greatest possible extent.7 Against that background, the focus of the present contribution is to explore the ECtHR’s role and map its strategy in dealing with religion–equality conflicts. Given that these conflicts are by no means unique to Europe, their resolution – which has proven extremely challenging to date – lends itself to a transnational judicial dialogue. Developments in the ECtHR’s case law are thus of relevance for an American audience, and the US Supreme Court’s jurisprudence has attracted attention in Europe. Of course, these two courts are fundamentally different. The ECtHR is not a constitutional court, but a regional human rights body that hears cases brought by individuals and legal persons from forty-seven sovereign contracting states, as well as interstate applications brought by these states themselves. Cases can only be brought against Member States, which must accordingly be responsible for any human rights violation found – either because they failed to comply with a negative obligation not to intrude on the human rights of individuals in their territory or because they failed to fulfill a positive obligation to protect individual rights and freedoms.8 In addition, the ECtHR exercises a subsidiary role vis-a`-vis the state authorities, and cases can only be brought to Strasbourg if domestic legal avenues for redress have first been exhausted.9 States also play an important role in the post-judgment phase: domestic implementation of the ECtHR’s judgments is largely dependent on the political will of the Member States, of

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The acronym LGBT, which is used throughout the present contribution, must be read with the understanding that gender identity and sexual orientation are two different matters, and that transgender people experience unique challenges and forms of discrimination along with a particular risk of violence, particularly at the intersection with other factors such as poverty and minority racial identity. Raymond Plant, “Religion in a Liberal State,” in Gavin D’Costa, Malcolm Evans, Tariq Modood, and Julian Rivers, eds., Religion in a Liberal State (Cambridge: Cambridge University Press, 2013), 9–37, passim; Maleiha Malik, “Religion and Sexual Orientation: Conflict or Cohesion?,” in D’Costa, Evans, Modood, and Rivers, Religion, 67–92, at 69. On positive ECHR obligations, see Alistair R. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart, 2004), 1 et seq. Article 35 § 1 ECHR.

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whom several have threatened to leave the Council of Europe after controversial judgments.10 Under these circumstances, the ECtHR’s democratic legitimacy to decide against states in controversial matters is sometimes questioned, and its interpretation of the European Convention on Human Rights (ECHR) met with accusations of judicial activism. This is in part due to the fact that the ECtHR interprets the ECHR in modern-day terms, or as a living instrument.11 To stave off criticism, it relies on international and foreign legal materials in addition to the existence of a European consensus among the contracting states in order to support its argumentation. The Court is thus in tune with the jurisprudence of other adjudicators: for example, in July 2015, when deciding a case concerning access to civil unions for same-sex couples in Italy, the ECtHR already referred to the Supreme Court’s Obergefell judgment on the right of same-sex couples to marry, which had been handed down less than a month before.12 As the Council of Europe Member States grows more religiously diverse, both due to the eastward expansion of membership and to migration, the ECtHR has heard a number of legally and politically polarizing cases concerning Article 9 ECHR in recent years. While cases concerning the rights and freedoms of members of minority religions have attracted much media and academic attention, particularly where religious symbols are concerned,13 applications concerning the reconciliation of religious-values individual rights to equal treatment have also been making their way to Strasbourg. 10

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For the United Kingdom, see Chris Grayling, “Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws,” Guardian, October 3, 2014, www.theguardian.com/politics/interactive/2014/oct/03/conservatives-humanrights-act-full-document, 2, accusing the ECtHR of “mission creep.” On the efforts by the Swiss People’s Party (SVP) to limit the effect of Strasbourg’s judgments in Switzerland, see Walter Ka¨lin and Stefan Schlegel, “Schweizer Recht bricht Vo¨lkerrecht?: Szenarien eines Konfliktes mit dem Europarat im Falle eines beanspruchten Vorranges des Landesrechts vor der EMRK,” SKMR, 2014, www.skmr.ch/cms/upload/pdf/140519_Studie_EMRK_def.pdf, 5 et seqq. See Bayatyan, § 102. Oliari and Others v. Italy, nos. 18766/11 and 36030/11, Judgment of July 21, 2015, § 65, citing Obergefell v. Hodges, 576 U.S. ___ (2015). Compare Nehal Bhuta, “Two Concepts of Religious Freedom in the European Court of Human Rights,” South Atlantic Quarterly 113, no. 1 (2014): 9. See also Susanna Mancini and Michel Rosenfeld, “Unveiling the Limits of Tolerance: Comparing the Treatment of Majority and Minority Religious Symbols in the Public Sphere,” in Lorenzo Zucca and Camil Ungureanu, eds., Law, State and Religion in the New Europe: Debates and Dilemmas (Cambridge: Cambridge University Press, 2012), 160–91; Saı¨la Ouald Chaib and Eva Brems, “Doing Minority Justice through Procedural Fairness: Face Veil Bans in Europe,” Journal of Muslims in Europe 2, no. 1 (2013): 1–26.

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The 2013 Eweida14 case combined both religious symbol and conscientious objection claims. That case was brought by four applicants who alleged that their freedom of religion under Article 9 ECHR, taken alone and in combination with their right to be free from discrimination in exercising this right under Article 14 ECHR, had been violated. The complaints of two applicants in Eweida concerned the fact that they were not permitted to wear a necklace featuring a cross at work. In the case of one of these applicants, a British Airways employee, the ECtHR found a violation of Article 9 because, it held, there was no evidence that her necklace presented a real encroachment on the interests of others.15 The second applicant’s complaint was dismissed on the grounds that, as she was a hospital employee, her cross could present hygienic concerns.16 The third and fourth applicants in Eweida – whose cases are the most directly relevant for present purposes – complained that requirements imposed on them by their employers were incompatible with their Christian beliefs that marriage “is the union of one man and one woman for life” and that homosexual activity is sinful, respectively.17 The third applicant, Ms. Ladele, was a public registrar. When same-sex civil unions became legally possible in the United Kingdom, Ms. Ladele refused to be designated as a civil partnership registrar; this ultimately led to the loss of her job.18 The fourth applicant, Mr. MacFarlane, a psychosexual counselor employed by a private company, faced disciplinary proceedings upon refusing to counsel same-sex couples.19 In both cases, the ECtHR found that there had been no violation of the ECHR. 11.2 THE SCOPE OF ARTICLE 9 ECHR

In order to fully understand Eweida, it is necessary to provide some background on the protection of religious freedom under Article 9 ECHR. That provision states: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection 14

15 18

See Eweida and Others v. the United Kingdom, nos. 48420/10, Judgment of January 15, 2013, Reports 2013. Eweida, § 95. 16 Ibid., §§ 99–101. 17 Ibid., §§ 23, 102, and 31, respectively. Ibid., § 102. 19 Ibid., § 107.

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of public order, health or morals, or for the protection of the rights and freedoms of others. Article 9 § 1 protects both individuals and religious communities, though not commercial bodies,20 and its scope is, at least in theory, quite broad: it covers all manners of philosophical ideas and conceptions, including individuals’ religious conceptions and their personal ways of perceiving their social and private lives.21 This includes, for example, vegan and scientologist beliefs,22 and does not – at least not a priori – exclude the belief in equality.23 However, not every belief attracts the protection of Article 9. For example, in 2002, the Court held that an applicant’s views concerning assisted suicide – namely, her belief in assisted suicide for herself – did not constitute a belief in the sense protected by Article 9 § 1 because her claims before the ECtHR did not concern the manifestation of belief through “worship, teaching, practice and observance.”24 In addition, only views with “a certain level of cogency, seriousness, cohesion and importance” are protected under Article 9 § 1.25 Provided that these criteria are met, states must remain neutral and impartial as regards the content of the views in question, and may not assess the legitimacy of these views or their expression.26 This duty of neutrality also means, for example, that states must leave it up to religious leaders to determine to which faith a community belongs. In 2016, in I˙zzettin Dog˘an and Others v. Turkey, the Grand Chamber found that the respondent government had violated this duty because its attitude of 20

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In 1979, the Commission found that a distinction between a church and its members was artificial and that “a church body is capable of possessing and exercising the rights contained in Article 9 (1) in its own capacity as a representative of its members,” X. and Church of Scientology v. Sweden, no. 7805/77, Decision of 5 1979, D.R. 16 p. 68, § 2. See also Cha’are Shalom Ve Tsedek v. France, no. 27417/95, Judgment [GC] of June 27, 2000, ECHR 2000-VII, § 72; Metropolitan Church of Bessarabia and Others v. Moldova, no. 45701/99, Judgment of December 13, 2001, Reports 2001-XII, § 101. Concerning the exercise of Article 9 rights by a private association, see Verein “Kontakt-Information-Therapie” and Hagen v. Austria, no. 11921/86, Decision of October 12, 1988, D.R. 57-A, p. 81, § 1. Jean-Franc¸ois Renucci, “Article 9 of the European Convention on Human Rights: Freedom of Thought, Conscience and Religion,” Human Rights Files, No. 20 (Strasbourg: Council of Europe Publishing, 2005), 12–13. W. v. the United Kingdom, no. 18187/91, Decision (Commission) of February 10, 1993, § 1 (on veganism as a religious belief); X. and Church of Scientology; Church of Scientology Moscow v. Russia, no. 18147/02, Judgment of April 5, 2007, inter alia § 72 (on Scientology as a religious belief). Roger Trigg, Equality, Freedom and Religion (Oxford: Oxford University Press, 2012), 27 et seq. Pretty v. the United Kingdom, no. 2346/02, Judgment of April 24, 2002, 2002-III, § 82. Eweida, § 81, citing, inter alia, Bayatyan, § 110 and Jako´bski v. Poland, no. 18429/06, Judgment of December 7, 2010, § 44. Eweida, § 81, with further references to the Court’s case law.

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considering Alevism as part of mainstream Islam constituted a denial of the religious nature of the Alevi faith.27 In that case, the Court held that the role of the authorities when faced with diverging interpretations of a religion is “not to adopt measures favouring one interpretation of religion over another . . . or to remove the cause of the tensions by eliminating pluralism, but to ensure that the competing groups tolerate each other.”28 The protection of inner freedom in Article 9 is absolute: rights bearers may not be limited in the beliefs and convictions they hold in the so-called forum internum.29 While Article 9 § 1 also protects the right to manifest one’s belief or conviction in the external sphere, this right can, however, be limited under the conditions set forth in Article 9 § 2: the Convention does not protect every act or behavior motivated by a religious basis in the forum externum and does not generally allow laws to be broken for religious reasons.30 As concerns this division, the ECtHR’s case law mirrors that of the US Supreme Court.31 For a long time, the ECtHR took a conflict-avoidant approach to freedom of religion by narrowing the scope of what constitutes a manifestation of belief. In 1995, for example, the Commission considered the case of a Dutch man who had been banned from entering the area around an abortion clinic. The applicant had frequented the surroundings of the clinic, showing patients pictures of fetal remains and of Jesus Christ and attempting to convince them not to have an abortion, a procedure he considered child murder. Without much ado, the Commission considered that Article 9 does not always guarantee individuals the right to behave according to their beliefs in the public sphere, and that Article 9 § 1 does not cover all acts motivated or influenced by religious beliefs. It therefore decided that the applicant’s activities, which it considered to be aimed primarily at dissuading women from having abortions, did not constitute an expression of belief as per Article 9 § 1.32 In the past, the ECtHR also regularly found no interference with Article 9 § 1 if an employee could take steps to circumvent the limitation of his or her freedom to manifest a religion or belief at work, including by manifesting that 27 28 29

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I˙zzettin Dog˘an and Others v. Turkey, no. 62649/10, Judgment [GC] of April 26, 2016, § 95. Ibid., § 108. This is intrinsic to the text of the provision, which only permits limitations on the manifestation of beliefs under its § 2. Eweida, § 80; Pichon and Sajous. Compare Wisconsin v. Yoder, 406 U.S. 205, 214, 219 (1972); Bowen v. Roy, 476 U.S. 693, 699 (1986); Chai R. Feldblum, “Moral Conflict and Liberty: Gay Rights and Religion,” Brooklyn Law Review 72 (2006–07): 61–123, at 102–03. Van den Dungen, § 1. Later case law has shown that antiabortion demonstrators do enjoy the protection of Article 10 ECHR (Annen v. Germany, no. 3690/10, Judgment of November 26, 2015).

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belief outside of work or resigning from his or her position.33 For example, in 2001, the Court considered an application from two pharmacists who had refused, on religious grounds, to fill prescriptions for contraceptives. The ECtHR held that as long as contraceptive medicine is legally allowed on prescription and available only in pharmacies, “the applicants cannot give precedence to their religious beliefs and impose them on others as justification for their refusal to sell such products, since they can manifest those beliefs in many ways outside the professional sphere.”34 11.3 LIMITING THE SCOPE OF RIGHTS TO REDUCE CONFLICT

Cases such as Eweida show how one individual’s freedom to manifest his or her religion may conflict with another person’s right to be free from discrimination – in some sense, their freedom from religion.35 Conflicts of rights are by no means exceptional under the ECHR,36 but the Convention does not offer a solution to the conflict between religion and equality, as it does not predetermine a hierarchy of the rights concerned. It is therefore up to the domestic authorities and ultimately to the ECtHR in its supervisory role to resolve such conflicts. However, it must be noted that framing the issue in terms of a conflict between persons purely affected in their rights under Article 9 and those purely affected in their equality rights is an oversimplification. Conscientious objectors may also be affected by discrimination,37 and individuals alleging discrimination could, at least arguably, frame their belief in equal treatment as falling under Article 9. In other words, and in light of the interconnectedness of all rights, both rights are important both to religious groups and to minorities such as the LGBT community. That said, the focus of the present section is the conflict seen in Eweida, with considerations about the interconnectedness of these rights following later.

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On the freedom to resign, see Konttinen v. Finland, no. 24949/94, Decision (Commission) of December 3, 1996, D.R. 87-A, p. 68, § 1; Stedman v. the United Kingdom, no. 29107/95, Decision (Commission) of April 9, 1997, § 1; Kosteski v. “the former Yugoslav Republic of Macedonia”, no. 55170/00, Judgment of April 13, 2006, §§ 37–39. Pichon and Sajous. Stijn Smet, Resolving Conflicts between Human Rights: The Judge’s Dilemma (Abingdon: Routledge, 2016), 63–65, drawing on Dahlab v. Switzerland, no. 42393/98, Decision of February 15, 2001. The present analysis assumes that human rights can and do conflict (Smet, Resolving, 13–41, with further references). Jacco Bomhoff, “The Rights and Freedoms of Others: The ECHR and its Peculiar Category of Conflicts between Individual Fundamental Rights,” in Eva Brems, ed., Conflicts between Fundamental Rights (Antwerp: Intersentia, 2008), 619–54, at 619–20. Compare, for example, Thlimmenos, §§ 44 and 48.

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11.3.1 Limiting Antidiscrimination and Equal Rights Rules One avenue for resolving equality–religion conflicts is to limit the ECHR’s protection from discrimination, which is not absolute. If directly or indirectly discriminatory measures are based on a legitimate aim and there is a reasonable relationship of proportionality between the measures and that aim, they do not constitute a violation of Article 14 or of Article 1 of Protocol 12 to the Convention.38 The main difference between these two provisions, which are considered together, is that the latter lacks the so-called parasitic nature of the former, which offers accessory protection and must therefore be invoked in conjunction with another Convention right.39 The prohibition of discrimination has increasingly come into its own in the past decade as the ECtHR has begun to advance a substantive concept of equality and grown increasingly receptive to claims of unequal treatment by minorities.40 Since 1999, it has been clear that, though not explicitly included in the text of the provision, sexual orientation is a prohibited ground for discrimination under Article 14.41 While there is a state margin of appreciation under that provision,42 very weighty reasons need to be advanced to justify a distinction on the basis of “suspect grounds” such as gender43 and sexual orientation.44 Article 14 thus represents one of the cornerstones of the ECtHR’s LGBT rights jurisprudence. Another cornerstone is the legal recognition of 38

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Religionsgemeinschaft der Zeugen Jehovas v. Austria, no. 40825/98, Judgment of July 31, 2008, § 87; this finding is applicable also to Article 1 of Protocol 12. Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 177), Explanatory Report, §§ 1, 5; Luzius Wildhaber, “Protection against Discrimination under the European Convention on Human Rights: A Second-Class Guarantee?,” in Ineta Ziemele, ed., 2 Baltic Yearbook of International Law (Leiden: Brill, 2002), 71–82, at 71–72; Rory O’Connell, “Cinderella Comes to the Ball: Article 14 and the Right to Non-Discrimination in the ECHR,” Legal Studies 29, no. 2 (2009): 211–29, at 212. Compare O’Connell, “Cinderella,” 226–29. On minority rights, see Dia Anagnostou, “The Strasbourg Court, Democracy and the Protection of Marginalised Individuals and Minorities,” in Dia Anagnostou and Evangelia Psychogiopoulou, eds., The European Court of Human Rights and the Rights of Marginalised Individuals and Minorities in National Context (Leiden: Brill, 2010), 1–26. Salgueiro da Silva Mouta v. Portugal, no. 33290/96, December 21, 1999, Reports 1999-IX, § 28. See, for example, Frette´ v. France, no. 36515/97, Judgment of February 26, 2002, ECHR 2002-I; §§ 36, 40–41. Staatkundig Gereformeerde Partij v. the Netherlands, no. 58369/10, Decision of July 10, 2012, §§ 72–73; Andrea Bu¨chler and Helen Keller, “Synthesis,” in Andrea Bu¨chler and Helen Keller, eds., Family Forms and Parenthood: Theory and Practice on Article 8 ECHR in Europe (Antwerp: Intersentia, 2016), 501–44. Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, Judgment of September 27, 1999, Reports 1999-IV, § 94, and A.D.T. v. the United Kingdom, no. 35765/ 97, Judgment of July 31, 2000, § 37.

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same-sex relationships, which is considered a core right under Article 8 ECHR (the right to respect for private and family life) and a “momentous” interest of those concerned.45 Religious considerations may provide a legitimate aim for limiting LGBT rights in two ways. First, the protection of religious values can be framed as an aspect of the protection of the rights and freedoms of others, particularly of members of a majority religion.46 Second, certain religious ideas may overlap with public morals, which also represent a legitimate aim for limiting Convention rights.47 Given the lack of a European consensus on LGBT equality, it has in the past been easy for states to justify limitations on LGBT rights as proportionate to one of these aims.48 Over time, however, the ECtHR has grown less willing to accept such arguments as a justification for measures that limit LGBT rights, instead relying on growing public support for equal rights and the finding that democratic societies are characterized by tolerance and broadmindedness.49 This is so despite the fact that recognition of LGBT rights is by no means sweeping every Member State, with public opinion and legal protections exhibiting sharp discrepancies between nations.50 In addition, the Court has begun to examine certain LGBT rights issues under Article 3 ECHR, the prohibition of torture, which is absolute and cannot be subjected to limitations.51 11.3.2 Limiting Freedom of Thought, Conscience, and Religion As it continues to develop and strengthen the protection against discrimination offered by the Convention, it seems that the ECtHR is exploring a second 45 46

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48 49

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Oliari, §§ 174, 176–77, 185. Dudgeon v. the United Kingdom, no. 7525/76, Judgment of October 22, 1981, Series A-45, Dissenting Opinion of Judge Zekia, § 1, arguing that “Christian and Moslem religions are all united in the condemnation of homosexual relations and of sodomy. Moral conceptions to a great degree are rooted in religious beliefs.” See also Norris v. Ireland, no. 10581/83, Judgment of October 26, 1988, Series A-142, §§ 24 and 40 et seq. On the danger that individual rights are systematically underprotected because too much weight is lent to a conflicting public interest also framed in rights terms, see Bomhoff, “Rights and Freedoms,” applying Ronald Dworkin’s writings on the conflict of rights (Ronald Dworkin, Taking Rights Seriously [London: Duckworth, 1977]) to the ECHR. Compare Mata Estevez v. Spain, no. 56501/00, Decision of May 10, 2001, Reports 2001-VI. See, for example, the evolution of the ECtHR’s approach to the criminalization of homosexual acts: compare Dudgeon, §§ 53 and 61, to W. B. v. the Federal Republic of Germany, no. 104/55, Decision of December 17, 1955, Yearbook I (1955–57) 228. Thomas Hammarberg, Discrimination on Grounds of Sexual Orientation and Gender Identity in Europe, 2nd edn. (Strasbourg: Council of Europe Publishing, 2011), 25, citing “Exploring Public Attitudes, Informing Public Policy: Selected Findings from the First Three Rounds,” European Social Survey, 2005, 16–17, 43. See Identoba and Others v. Georgia, no. 73235/12, Judgment of May 12, 2015, §§ 63–81.

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avenue for resolving (or avoiding) the conflict between nondiscrimination and religious freedom. That means limiting the protection of Article 9. A priori, that protection seems rather strong: the ECtHR has recognized that the provision enshrines a foundational element of a democratic society and that religion is one of the most vital elements of believers’ identities.52 Objection to military service has been recognized by the Court as a form of religious objection protected under Article 9 ECHR.53 In addition, as explored previously, states may under no circumstances interfere with internal beliefs. Nonetheless, the ECtHR readily finds that interference with the external manifestation of religious beliefs is justified. It does so, as stated earlier, either by declaring that the acts in question fall outside of the scope of Article 9 § 1 entirely because they do not constitute an expression of belief,54 or by considering that while there has been interference with the manifestation of a belief, that interference is justified under Article 9 § 2. Regarding the former avenue, it is important to note that the Court may not evaluate the validity of religious beliefs themselves in the forum internum. Provided that beliefs reach a certain level of cogency, seriousness, cohesion, and importance, the domestic authorities and the Court must thus remain neutral and impartial regarding their content, and may not assess their legitimacy or that of their expression.55 Thus, they may not find that views cannot constitute religious convictions because they are, for example, racist or homophobic. As concerns the latter argument, interference with religious freedom is justified under Article 9 § 2 if it is prescribed by law and necessary in a democratic society in pursuit of a legitimate aim. Article 9’s list of legitimate aims explicitly mentions the protection of the rights of others, a concept that has been given increasingly broad interpretation especially as regards the wearing of religious dress, and seemingly includes the idea of laı¨cite´.56 In this regard, and as argued by the applicants in the Lautsi case, the Court must remain wary of the difference between “state atheism,” described as the denial of religious freedom “by imposing a secular viewpoint in an authoritarian manner,” and secularism, which is part and parcel of state neutrality and impartiality and means securing the freedom of religion and conscience of all persons.57 52 54 55 56

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Eweida, § 79. 53 See, instead of many, Bayatyan, § 110. Pichon and Sajous; Van den Dungen, § 1. Eweida, § 81; S.A.S. v. France, no. 43835/11, Judgment [GC] of July 1, 2014, Reports 2014, § 55. Compare Ebrahimian v. France, no. 64846/11, Judgment of November 26, 2015, Reports 2015, §§ 50–53. Lautsi and Others v. Italy, no. 30814/06, Judgment [GC] of March 18, 2011, Reports 2011, § 44.

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In Eweida, the government argued that the case of Ms. Ladele, the civil registrar, was indistinguishable from the pharmacist case discussed earlier. However, the ECtHR did not follow its own previous conflict-minimizing approach, and instead examined whether there had been an interference with Articles 9 and 14. It found that both the third and fourth applicants’ activities constituted expressions of religious belief, and it did not engage with the argument that they could express their beliefs outside of the professional arena.58 The ECtHR went on to criticize its own past approach, which regarded the possibility of resigning from a job that interferes with religious freedom as “neutralizing” that interference.59 Accordingly finding an interference with the applicants’ rights, the ECtHR went on to examine whether that interference was justified by a legitimate aim. Regarding both applicants, the ECtHR found that their employers’ policies aimed at ensuring the protection of the rights of others.60 This meant that it proceeded to test the proportionality of the interference, as laid out in what follows, instead of rejecting the applications as outside the scope of Article 9. 11.3.3 Article 17 ECHR There is also a potential third avenue regarding cases that threaten the foundational values of the Convention, namely the rejection of applications as an abuse of rights. Article 17 ECHR, which the Court has used to exclude hate speech from Convention protection,61 reads that “[n]othing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” Under that prohibition of the abuse of rights, the ECtHR found in 2013 that an anti-Semitic and pro-violence Islamist organization could not benefit from the protection of Articles 9, 10, and 11 ECHR.62 A year earlier, the ECtHR found that a political party operating on the basis of a deeply held religious belief that women should not hold political office could not rely on Article 9.63 This avenue is, however, reserved for exceptional use in very extreme cases.64

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Eweida, §§ 103 and 108. 59 Eweida, § 83. 60 Eweida, §§ 105, 106, and 109. M’Bala M’Bala v. France, no. 25239/13, Decision of October 20, 2015, Reports 2015, §§ 40–42. Kasymakhunov and Saybatalov v. Russia, no. 26261/05 and 26377/06, Judgment of March 14, 2013, §§ 106, 107, 111, 113. Staatkundig Gereformeerde Partij, §§ 70–79. Perinc¸ek v. Switzerland, no. 27510/08, Judgment [GC] of October 15, 2015, Reports 2015, § 114.

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The preceding section has shown that the limitation clauses of Articles 8, 9, and 14 ECHR do not provide clear guidance on the resolution of the religion versus equality conflict. Religious freedom may be limited in favor of nondiscrimination rules and vice versa, unless either result threatens the foundational values of the Convention or the forum internum of religious belief. However, this alone does not explain how the ECtHR goes about addressing the conflict between these rights. The ECtHR employs three tools of proportionality review – the necessity test, the balancing exercise, and the margin of appreciation – to resolve conflicts between limitable rights.65 11.4.1 Necessity The second paragraph of Article 9 ECHR permits only such limits on the manifestation of religion or beliefs as are prescribed by law and are necessary in a democratic society in the interest of certain legitimate aims. The adjective “necessary” implies the existence of a pressing social need and means that, in case of conflicts between two rights, one right may be limited only insofar as is strictly required for the protection of the other.66 The extent of this limitation must be proportionate to the aim pursued. This means that one right cannot simply be sacrificed in the interest of another. However, the problem with the necessity test is its tendency to be one-sided: despite the Court’s effort to decide cases uniformly, regardless of the angle from which they are brought, this test automatically frames a conflict in a way that is favorable to whichever right has been invoked in Strasbourg.67 While interested parties may intervene in a case as amicus curiae, proceedings before the Court can never hope to duplicate the inclusive and deliberative nature of domestic legislative proceedings.68

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Compare, on this, Olivier De Schutter and Franc¸oise Tulkens, “The European Court of Human Rights as a Pragmatic Institution,” in Brems, Conflicts, 169–216. See, among others, Wingrove v. the United Kingdom, no. 17419/90, Judgment of November 25, 1996, Reports 1996-V, p. 1956, § 53; The Moscow Branch of the Salvation Army v. Russia, no. 72881/01, Judgment of October 5, 2006, Reports 2006-XI, § 62. Brems, Conflicts, 305. See also Von Hannover (No. 2) v. Germany, no. 40660/08 and 60641/08, Judgment [GC] of February 7, 2012, Reports 2012, § 106. Article 36 § 2 ECHR. On the benefits of third-party intervention, see Nicole Bu¨rli, “Amicus Curiae as a Means to Reinforce the Legitimacy of the European Court of Human Rights,” in Spyridon Flogaitis, Tom Zwart, and Julie Fraser, eds., The European Court of Human Rights and Its Discontents (Cheltenham: Edward Elgar, 2013), 135–46.

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Although applications to the Court, including but not limited to those driven by strategic litigation, are necessarily one-sided, the Court must consider the situation surrounding an application as a whole if it is to ensure consistency in the outcomes of cases brought from a variety of perspectives.69 If cases brought by religious individuals are decided in favor of religious freedom and cases brought by LGBT individuals are favorable to LGBT rights, that incoherence opens the ECtHR and its legitimacy up to criticism. It also fails to ensure a practical and effective interpretation of Convention rights.70 11.4.2 Balancing Instead of viewing one right as a limitation on another, balancing two conflicting rights may, in theory, help paint a holistic picture and grant adequate consideration to each right at stake. For example, the ECtHR has recently begun to move away from its “freedom to resign” idea, deciding instead to incorporate this consideration into its proportionality analysis.71 Thus, the possibility of resigning and finding other employment, while not changing the fact that there has been an interference with Article 9, serves to determine whether that interference was justified. However, the ECtHR’s approach to balancing is not endowed with a strict methodology, and has several issues. First, there is the problem of incommensurability.72 It is, in other words, very difficult to balance two things as different as, for example, the freedom of religion of a public servant and the right to be free from discrimination of a same-sex couple seeking to register their civil union or marriage. Second, the ECtHR’s perspective may be quite far removed from the domestic political and social situation. As an international adjudicator, the ECtHR is therefore in a position of subsidiarity to the national decision maker. Third, there is still a problem of framing in this context: where the interest of an individual applicant conflicts with what is perceived as a majority interest, judges may tend to favor the latter.73 The ECtHR’s heavy reliance on the emerging European consensus concerning LGBT rights, for example, may cause the genuine religious convictions of those who object to same-sex unions to be

69 70

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See, in this respect, Annen, § 56. Christine Goodwin v. the United Kingdom, no. 28957/95, Judgment [GC] of July 11, 2002, Reports 2002-VI, § 74. See also R. R. v. Poland, § 206. The decisive case was Eweida, § 83. See Stijn Smet, “Eweida, Part II: The Margin of Appreciation Defeats and Silences All,” Strasbourg Observers, January 23, 2013, http://stras bourgobservers.com/2013/01/23/eweida-part-ii-the-margin-of-appreciation-defeats-and-silences -all/. De Schutter and Tulkens, “Pragmatic Institution,” 169–216. 73 Ibid.

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dismissed, at least cognitively, as outliers or as homophobic and old-fashioned. Last, balancing may misrepresent or negate the effect of interference on an individual. 11.4.3 Margin of Appreciation Given all of these difficulties, it is hardly surprising that in Eweida the ECtHR granted the state a wide margin of appreciation. The state margin of appreciation to decide whether an interference with Article 9 § 1 was necessary, over which the ECtHR exercises European supervision,74 is wide where the national authorities must balance private interests or competing Convention rights.75 Regarding both Ms. Ladele and Mr. MacFarlane, the ECtHR ultimately found quite laconically that this margin of appreciation had not been exceeded.76 A case like Eweida lends itself well to the application of the margin of appreciation doctrine, particularly given the different speeds at which ideas about religion and equality are developing in the Council of Europe Member States. The width of the margin of appreciation depends on the nature of an individual case: the ECtHR restricts it where a particularly important facet of an individual’s existence or identity is at stake and expands it where there is no consensus among the Member States on the relative importance of the interest at stake or the best means of protecting it. The margin of appreciation is usually wide if the state has to strike a balance between competing private and public interests or ECHR rights.77 Of course, applying the margin of appreciation doctrine does not resolve the conflict of rights at issue, but it does provide an opportunity to find a solution at the domestic plane that takes national peculiarities into consideration. This does not mean that states should simply be permitted to jettison one right in favor of another. Some commentators have argued that the ECtHR, in its role as a European supervisor, should encourage solutions that make practical concordance of the rights in question possible and accommodate religious objections where doing so is reasonable and does not excessively impact the rights of others, especially vulnerable minorities.78 In Ms. Ladele’s and 74 75

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Eweida, § 84. Sindicatul “Pa˘storul cel Bun” v. Romania [GC], no. 2330/09, Judgment of July 9, 2013, ECHR 2013, § 160, with further case law references. Eweida, §§ 106 and 109. S. H. and Others v. Austria, no. 57813/00, Judgment [GC] of November 3, 2011, Reports 2011, § 94. De Schutter and Tulkens, “Pragmatic Institution,” 215–16.

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Mr. MacFarlane’s cases, however, the ECtHR did not take that approach; instead, it simply stated that the national authorities had a wide margin of appreciation, which they had not exceeded. What the ECtHR found, in other words, was that the solution reached by the state was not unreasonable. The ECtHR thereby chose to engage with the conflict at hand neither in a substantive nor in a procedural way. Instead, it deferred to the analysis of the domestic courts, which had already examined the matter in depth. 11.5 USING THE ECTHR’S TOOLBOX: THE MARGIN OF APPRECIATION, DRITTWIRKUNG, AND REASONABLE ACCOMMODATION

What Eweida ultimately implies is that the ECtHR, facing a delicate situation with no ready solution, has chosen to await further developments in the Member States. Until such developments allow a clear-cut line of reasoning to emerge, the ECtHR will likely continue to deal with these issues on a caseby-case basis and to use a reductionist approach to the scope of Article 9 § 1 in order to eliminate potential conflicts. Nonetheless, the Eweida judgment was revolutionary: the Court did not follow its previous argumentation under which the protection of freedom of religion ended where its manifestation came into conflict with the rights and freedoms of others.79 In the future, where similar conflicts cannot be interpreted away, the Court will need to have recourse to one or more of the tools described. In doing so, it must be aware of certain parameters. First and foremost, accommodation of religious objections to antidiscrimination rules by one or more large religious groups or a religious majority could conceivably constitute a catastrophic setback for the rights of vulnerable minorities, including LGBT rights. In states in which a religious majority subscribes to a widespread culture of anti-LGBT sentiment, religious objection to LGBT rights could become the nail in the coffin of equality. It is therefore essential to underline the requirement of reasonableness on such accommodation, along with the vulnerability of groups who have suffered from a history of discrimination. On the other hand, the evolution of nondiscrimination law and equality rules may place religious individuals in a crisis of conscience that leaves them irremediably torn between their faith and equal rights. If the opposing rights of all of these individuals are to be guaranteed in a manner that renders them practical and effective, a balancing exercise in the specific context of an individual case becomes the only, if imperfect, alternative. 79

See Pichon and Sajous.

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For the time being, the Court is using another of its tools – the margin of appreciation – to place that balancing exercise in the dominion of states. As more state practice on the matter emerges, the Court may standardize national approaches into one. For now, it is the Court’s task to provide the parameters for balancing opposing rights. These include the inviolability of the forum internum, the requirement of particularly serious reasons for a difference in treatment based on sex and sexual orientation, and the prohibition of the abuse of rights. In addition, though it defers to domestic appreciation, it has been argued that the Court must pay attention to the procedural aspect of its judgments, for example drawing on the lessons of procedural justice theory to focus on improving individual applicants’ perception of proceedings, if not their outcomes, as just.80 To counter the criticism of perfunctory analysis raised by Ms. Ladele’s case in Eweida, the Court should focus on recognizing the legitimacy of the interests of both sides in the religion–equality debate in future cases. Ultimately, however, the question of how to resolve the conflict between religion and equality requires tough decisions that depend on the question of the Court’s role, namely on whether it is to be understood as a conveyor of individual justice or a setter of general rules, a subsidiary international body or a supranational constitutional court. Resolving the conflict is thus contingent on the answer to that question, one that is attentive to the evolution of domestic approaches in order to preserve a fragile equilibrium between state consent and the evolutive interpretation of European human rights standards. As it continues to explore its role in the present context and apply the proportionality principle to particular cases, the ECtHR would do well to consider two factors. The first is the nature of the relationship in question – be it between private persons or between the state and individuals – as a mechanism for determining the extent of Convention obligations. Second, it could incorporate an understanding of the multipolar nature of the conflicts at hand and examine the extent to which the various individuals involved are affected by a religious objection as a mechanism for identifying possibilities for reasonable accommodation. 11.5.1 The Drittwirkung of Article 14 ECHR Regarding the nature of the relationship in question, it is necessary to identify whether it is statal, para-statal, or private. States are bound to respect the 80

Eva Brems and Laurens Lavrysen, “Procedural Justice in Human Rights Adjudication: The European Court of Human Rights,” Human Rights Quarterly 35, no. 1 (2013): 176–200, especially 195 et seq.

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requirements of the Convention vis-a`-vis all individuals in their jurisdiction under Article 1 ECHR. In cases that involve the relationship between the state and individuals, the ECHR has vertical effect.81 The conflict of the rights of two human rights subjects, on the other hand, entails questions about the horizontal effect of the Convention, its so-called Drittwirkung in the relations between private individuals.82 Because the Convention can only be invoked against states, the question of Drittwirkung is also a question of the positive obligations of states to safeguard respect for the Convention in interactions between private individuals.83 Thus, while individuals may not rely on the Convention before the ECtHR vis-a`-vis other individuals, states can be held responsible for failing to take reasonably available measures to meet their positive obligation to secure respect for the Convention rights of persons in their jurisdiction.84 The domestic authorities are also obligated to intervene against violence fueled by discrimination and to investigate possible discriminatory motives behind violent acts.85 Article 14 thus has indirect horizontal effect.86 However, this does not mean that states are required to prevent all discrimination between private individuals.87 To what extent, then, does the Convention’s prohibition of discrimination entail positive state obligations? The protection against discrimination offered by the Convention primarily creates a negative obligation on states: the obligation not to treat individuals differently on the basis of a prohibited ground in an unjustified manner. The Aristotelian maxim (“treat like cases in a like manner, and unlike cases in an unlike manner”) sums up the ECtHR’s core approach to nondiscrimination.88 Over time, that approach 81

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87 88

Though this does not necessarily mean that public-sector employees have the right to manifest their religion at work (see Ebrahimian). Compare David Harris, Michael O’Boyle, Edward Bates, and Carla Buckley, Law of the European Convention on Human Rights, 3rd ed. (Oxford: Oxford University Press, 2014), 21 et seq., with further references. Compare Oddny´ Mjo¨ll Arnardo´ttir, Equality and Non-Discrimination under the European Convention on Human Rights (The Hague: Martinus Nijhoff Publishers, 2003), 95 et seq. This idea is derived, in part, from the text of Article 1 ECHR. See Mowbray, Positive Obligations; Harris, O’Boyle, Bates, and Buckley, Law of the ECHR, 21 et seq., with further references. Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, no. 71156/ 01, Judgment of May 3, 2007, §§ 139–42; Bekos and Koutropoulos v. Greece, no. 15250/02, Judgment of December 13, 2005, Reports 2005-XIII, § 69. Pla and Puncernau v. Andorra, no. 69498/01, Judgment of July 13, 2004, Reports 2004-VIII, § 59; Samantha Besson, “Gender Discrimination under EU and ECHR Law: Never Shall the Twain Meet?,” Human Rights Law Review 8, no. 4 (2008): 647–82, at 660. Protocol No. 12 to the ECHR, Explanatory Report, § 25. Oddny´ Mjo¨ll Arnardo´ttir, “The Differences that Make a Difference: Recent Developments on the Discrimination Grounds and the Margin of Appreciation under Article 14 of the European

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has evolved toward a substantive concept of equality and one that can potentially tackle indirect discrimination.89 In addition, it is becoming increasingly clear that the ECtHR’s approach does not exclude positive obligations and Drittwirkung altogether. As the Explanatory Report to Article 1 of Protocol 12 to the Convention shows, lacunae in domestic law or a failure to provide protection from discrimination in relations between private persons “might be so clear-cut and grave that it might engage clearly the responsibility of the State.”90 Any positive obligations concerning relations between private persons, the Explanatory Report states, “would concern, at the most, relations in the public sphere normally regulated by law, for which the state has a certain responsibility (for example, arbitrary denial of access to work, access to restaurants, or to services which private persons may make available to the public such as medical care or utilities such as water and electricity, etc.),” while “purely private matters would not be affected.”91 Though not yet clarified in the ECtHR’s case law concerning the accessory Article 14, this means that the domestic authorities could be required to ensure that certain para-statal and economic activities are conducted free from discrimination. A degree of support is emerging in the Court’s case law for the Drittwirkung of Article 14, for example concerning state responsibility for preventing discrimination in private-sector employment.92 However, for the time being it appears unlikely that the Convention will give rise to positive state obligations concerning nonviolent discriminatory exchanges between private persons that take place outside the public sphere: the more private an activity, the more sparse the positive obligations under the Convention grow in this context. As concerns the public service, it has been argued that tolerating discriminatory attitudes in state employees – whatever their basis – sends a signal that discrimination is acceptable.93 This signal function may be an additional criterion to consider when determining what is acceptable in the public – vis-a`-vis the private – sphere.

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90 92

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Convention on Human Rights,” Human Rights Law Review 14, no. 4 (2014): 647–70, at 656; O’Connell, “Cinderella,” 212, 215, 228. Compare O’Connell, “Cinderella,” 221, 226–28; Lourdes Peroni and Alexandra Timmer, “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law,” International Journal of Constitutional Law 11, no. 4 (2013): 1056–85, 1074 et seq. Protocol No. 12 to the ECHR, Explanatory Report, § 26. 91 Ibid., § 28. See, mutatis mutandis, I. B. v. Greece, no. 552/10, Judgment of October 3, 2013, Reports 2013 (concerning an employee who was fired due to his HIV status); Eweida, §§ 89–95. Compare Erica Howard, “Religious Rights versus Sexual Orientation Discrimination: A Fair Deal for Everyone,” Religion and Human Rights 10 (2015): 128–59, at 157, referring to the Dutch context.

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Where exactly the line between the private sphere, contractual freedom, and nondiscrimination lies is a question that the ECtHR’s future case law will need to answer. At present, the contours of this distinction remain blurry at best. This becomes clear when taking the example of a same-sex couple who are refused service (or provided service subject to certain limitations) at a guesthouse operated by religious individuals who believe that same-sex relationships are sinful.94 For some bed-and-breakfast owners, particularly those who open up their own homes to guests and whose lodgers live side by side with their own families, the divide between economic activity and personal sphere is blurred; these individuals may consider the distinction between public and private to be meaningless.95 On the other hand, access to goods and services on a nondiscriminatory basis is central to LGBT persons’ equal participation in society.96 The Court will need to identify the applicable standards in this regard in the future. One thing to keep in mind during this process is that delineating positive obligations along the public–private distinction may have the unwanted effect of squeezing religious individuals out of public spaces and into private ones.97 Another specification may be added regarding the public–private divide. First, the proportionality test is stricter regarding individuals in a special relationship of dependence to the state – for example, those who are incarcerated and lack alternatives to provision by the state98 – as well as in the realm of the autonomy of religious institutions regarding internal matters. In these contexts, it is exceedingly difficult to justify interference with religious freedom. While economic enterprise by religious individuals may fall within the scope of positive state obligations under Article 14, the Court has been quite clear about the freedom of religious institutions to, for example, fire individuals from representational positions because some aspect of their private lives violates their duty of loyalty to the institution’s religious principles.99 There is thus rather strong support for the argument that, while religious individuals’ right to freedom of religion in the public sphere may give way to 94 95

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97 99

See inter alia Feldblum, “Moral Conflict and Liberty,” 61–62, 119, 121. Compare Carl F. Stychin, “Faith in the Future: Sexuality, Religion and the Public Sphere,” Oxford Journal of Legal Studies 29, no. 4 (2009): 729–55, at 732–33. This argument was formulated by the Ontario Superior Court in Ontario Human Rights Commission v. Brockie (2002) 22 DLR (4th) 174 (HC), § 55. Stychin, “Faith in the Future,” 736–37 and 754. 98 See Jako´bski, §§ 48–55. Compare Obst v. Germany, no. 425/03, September 23, 2010, § 50 (concerning the dismissal of a member of the Mormon Church who had engaged in adultery). See also Ferna´ndez Martı´nez v. Spain, no. 56030/07, Judgment [GC] of June 12, 2014, Reports 2014, § 141 (concerning the dismissal of a married Catholic priest); Siebenhaar v. Germany, no. 18136/ 02, Judgment of February 3, 2011, § 46.

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nondiscrimination laws, religious bodies and institutions should enjoy autonomy regarding internal matters. 11.5.2 No Room at the Inn: On Reasonable Accommodation Where the prohibition of discrimination does have Drittwirkung, albeit indirectly, the proportionality test requires states and – subsidiarily – the ECtHR, when seeking to reconcile the religion–equality conflict, to search for the solution that is the least restrictive of all fundamental rights and freedoms involved. The least restrictive means available may, under certain circumstances, include acceptance of adjustments and exceptions by one or both groups in the interests of the other – an attitude we term, in the following paragraphs, reasonable accommodation.100 This concept is well known in the United States and Canada in the context of nondiscrimination in employment.101 While such a concept has not yet been explicitly acknowledged in the jurisprudence of the ECtHR, a similar result can be reached through proportionality analysis.102 Of course, the Court only arrives at its own proportionality analysis if it does not defer to the margin of appreciation of the Member States; concerning the balancing of two rights against each other, it requires strong reasons to not apply such deference.103 The following comments stand under that caveat, and present our take on some of the diverse opinions formulated by judges and academics on this issue. An attitude of accommodation could allow two conflicting rights to coexist with minimal interference with both. For example, in the Ladele case, an attempt to accommodate both Ms. Ladele’s beliefs and the equality policy of her employer was made when she was asked to sign an alternative job description, which would have entailed equal pay and required her to perform certain administrative functions concerning civil unions but would not have required her to perform civil union ceremonies.104 Another example of what reasonable accommodation could look like in the context of publicly proffered goods and services is provided by the case law of the British Columbia Human Rights Tribunal, which recently considered a case concerning the cancellation of a same-sex couple’s reservation of a room at a bed and breakfast. The reservation was cancelled when the Christian owners of the 100

101

102 104

Francesco Sessa v. Italy, no. 28790/08, Judgment of April 3, 2012, Reports 2012, Joint Dissenting Opinion of Judges Tulkens, Popovic´, and Keller, § 9, with further references. Compare Section 701j of the US Civil Rights Act of 1964 and Section 15(2) of the Canadian Human Rights Act of 1985. In all, see Howard, “Religious Rights,” 139. Howard, “Religious Rights,” 140–41. 103 Von Hannover (No. 2), § 107. Eweida, § 26; Howard, “Religious Rights,” 144.

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establishment learned of the couple’s sexual orientation. The Tribunal found a failure in the owners’ duty of reasonable accommodation, as they had cancelled the reservation in a manner that was offensive and failed to explore any available alternatives.105 The Canadian bed-and-breakfast example suggests some problem areas, mainly because it implies that, if LGBT guests are turned away in a friendly manner, or if alternative accommodation is available, no issue of discrimination has arisen. And, in fact, given the possibilities provided by modern means of communication, alternative accommodation is often nearby. The problem with this argumentation is that it confuses the ability to participate in society at all with the ability to participate fully and equally.106 If a couple is turned away from a guesthouse because its management’s religious beliefs do not condone interaction with them due to their race, sexual orientation, disability, or religion, for example, friendly demeanor by the management and the fact that the couple may turn to a number of other lodgings – though certainly providing them with a place to sleep – does not change the fact that they have been treated differently from other guests. While such factors could possibly enter into the balance, therefore, they do not neutralize discrimination. In this vein, Chai R. Feldblum has stated that: If individual business owners, service providers and employers could easily exempt themselves from [nondiscrimination] laws by making credible claims that their belief liberty is burdened by the law, LGBT people would remain constantly vulnerable to surprise discrimination. If I am denied a job, an apartment, a room at a hotel, a table at a restaurant or a procedure by a doctor because I am a lesbian, that is a deep, intense and tangible hurt. That hurt is not alleviated because I might be able to go down the street and get a job, an apartment, a hotel room, a restaurant table or a medical procedure from someone else. The assault to my dignity and my sense of safety in the world occurs when the initial denial happens. That assault is not mitigated by the fact that others might not treat me in the same way.107

Andrew Koppelman responded to this statement by arguing that the problem in the scenarios cited by Feldblum is not discrimination, but the element of surprise.108 While it would certainly be preferable for all involved to avoid this sort of surprise – for example, if LGBT individuals were informed of 105

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Eadie and Thomas v. Riverbend Bed and Breakfast and Others (No. 2) 2012 BCHRT 247, cited by Lady Hale in Bull v. Hall and Preddy [2013] UKSC 73, at 49. See in this regard Howard, “Religious Rights,” 155–56. Feldblum, “Moral Conflict and Liberty,” 119. Andrew Koppelman, “You Can’t Hurry Love: Why Anti-Discrimination Protections for Gay People Should Have Religious Exemptions,” Brooklyn Law Review 72 (2006): 125–46, at 136.

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a hotelier’s objection to their stay at the time of booking, and not once they arrived at the establishment in question – removing the element of surprise does not per se justify a difference in treatment. Such a result would legitimize a world in which LGBT individuals are a priori unwelcome in certain establishments, an outcome that causes expressive harm109 and entrenches internalized homophobia. Similarly, in a recent case – which also concerned the denial of equal access to lodging to a same-sex couple – before the UK Supreme Court, Lady Hale wrote: [W]e should not underestimate the continuing legacy of [past] centuries of discrimination, persecution even, which is still going on in many parts of the world. It is no doubt for that reason that Strasbourg requires “very weighty reasons” to justify discrimination on grounds of sexual orientation. It is for that reason that we should be slow to accept that prohibiting hotel keepers from discriminating against homosexuals is a disproportionate limitation on their right to manifest their religion.110

Anti-discrimination rules have particular importance in ending the social marginalization of vulnerable groups who have suffered a history of discrimination.111 Therefore, the argument that curtailing the rights of vulnerable individuals or groups in the public or semi-public sphere is necessary in order to allow religious individuals to comply with the requirements of their faith is, given all of this, a rather difficult one to make under the Convention system. This, of course, raises the question of whether the LGBT community can be termed vulnerable according to the Court’s case law. Under Article 14, group vulnerability characterizes groups that have suffered a long-standing history of discrimination – a definition that would certainly seem to apply to the LGBT community.112 For a long time, the Court did not explicitly recognize the vulnerability of the LGBT community, though this may be changing.113 What it has done, as mentioned earlier, is to require very weighty reasons to justify a distinction on the basis of suspect grounds such as sex114 and sexual orientation.115

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113 114 115

Stijn Smet, “Conscientious Objection to Same-Sex Marriages: Beyond the Limits of Toleration,” Religion and Human Rights 11, no. 2 (2016): 114–39, at 118. See also Chapter 10 of this volume. Bull v. Hall and Preddy [2013] UKSC 73, at 53. See, for example, Peroni and Timmer, “Vulnerable Groups.” Alajos Kiss v. Hungary, no. 38832/06, Judgment of May 20, 2010, § 42 (concerning persons with a mental disability); D. H. and Others v. the Czech Republic, no. 57325/00, Judgment [GC] of November 13, 2007, Reports 2007-IV, § 182 (concerning the Roma). Peroni and Timmer, “Vulnerable Groups,” 1070; Identoba, §§ 68, 72, 94. Staatkundig Gereformeerde Partij, § 72; Bu¨chler and Keller, “Synthesis.” Smith and Grady, § 94, and A.D.T., § 37.

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And yet, an application of antidiscrimination norms that automatically prioritizes LGBT rights over religious convictions would arguably create another form of discrimination.116 Religion is a classic forbidden ground for discrimination under Article 14 ECHR, and nondiscrimination rules are a valuable asset to all human rights subjects. Given this interdependence, Ronald Dworkin sought to meld equality and freedom together so that they are each an aspect of the other; he argued that emphasizing foundational values instead of controversial specific issues would allow individuals on both sides of the religion–equality conflict to identify common ground. Other authors have written about the need to create a “culture of compromise” that emphasizes openness, reciprocity, and mutual respect, among other attributes.117 Framing conflicts between different groups’ rights as “controversies about the best interpretation of fundamental values they all share” may represent one way to overcome the current stalemate.118 So would “de-essentializing” the understanding of both human rights and religion as immutable and static.119 For example, both religious convictions and equal LGBT rights could be seen as variations on a belief in recognition, respect, and equality, between which a mutually acceptable compromise must be sought.120 It could also be emphasized that both the right to live a life that complies with the tenets of one’s religious belief and the right to live according to one’s sexual orientation and to have relationships on that basis are crucial for one’s sense of self.121 Overemphasis of these similarities, of course, negates the incommensurability problem and the existence of harm. Thus, while mutual cooperation as well as the availability and acceptability of an alternative could be factors to consider in the proportionality analysis, reasonable accommodation and the search for acceptable alternatives should not simply amount to an exemption for the faithful from the obligation not to discriminate – as outlined, an outcome resolving a conflict between rights in favor of one while negating 116 117

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120 121

In Eweida, § 70, Ms. Ladele advanced such an argument. Stychin, “Faith in the Future,” 754, citing Gerard Bouchard and Charles Taylor, “Building the Future: A Time for Reconciliation,” Abridged Report (Quebec: Government of Quebec, 2008), 55. Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate (Princeton, NJ: Princeton University Press, 2008), 11, 22. Eva Brems and Lourdes Peroni, “Religion and Human Rights: Deconstructing and Navigating Tensions,” in Silvio Ferrari, ed., Routledge Handbook of Law and Religion (Abingdon: Routledge, 2015), 145–59, at 149. Ferrari, Routledge, 149. See also Koppelman, “You Can’t Hurry Love,” 146. Compare Feldblum, “Moral Conflict and Liberty,” 83, 99.

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the other cannot be considered the least restrictive solution, nor be considered in the interest of pluralism.122 The same goes for a result that fails to recognize the impact of nondiscrimination law on certain individuals’ religious convictions. An important first step in the latter regard was certainly the Court’s acknowledgment in Eweida that Ms. Ladele and Mr. MacFarlane were particularly burdened by their employers’ nondiscrimination policies given their faith. The fact that there is a real and deeply felt interference with religious freedom where the law obliges individuals to act contrary to their religious convictions certainly deserves emphasis. One commentator, considering the conflict between religion and equality, concluded that mutual accommodation was necessary because “[r]eal pluralism is about the reality of the irreconcilable existing side by side, civilly, in the public sphere, and of finding ways of living together.”123 “Living together” here takes a different meaning than its controversial124 use as the justifying interest for the limitation of the applicant’s religious freedom in a recent Grand Chamber judgment concerning the French ban on face veils.125 What we mean here is that where there is harm,126 or in other words where the Court faces the reality of the irreconcilable existing side by side, mutually acceptable solutions to the equality–religion conflict should certainly be sought by the domestic authorities and, if found, employed – considering the severity of the impact of the present conflict on all involved, it would be quite difficult to argue against any readily available compromise. However, in the societally and religiously diverse Council of Europe, such a compromise may not always be readily available. The polarizing effect of an interventionist ECtHR jurisprudence in these cases may be less successful than deference to the margin of appreciation, and strategic litigation may ultimately be less productive than democratic and deliberative solutions.

122 123 124

125 126

NeJaime and Siegel, “Conscience Wars,” 2589–91. Stychin, “Faith in the Future,” 753. Compare Eva Brems, “S.A.S. v. France as a Problematic Precedent,” Strasbourg Observers, July 9, 2014, http://strasbourgobservers.com/2014/07/09/s-a-s-v-france-as-a-problematicprecedent/; Erica Howard, “S.A.S. v. France: Living Together or Increased Social Division?,” EJIL:Talk!, July 7, 2014, www.ejiltalk.org/s-a-s-v-france-living-together-orincreased-social-division/; Hakeem Yusuf, “S.A.S v. France: Supporting ‘Living Together’ or Forced Assimilation?,” International Human Rights Law Review 3, no. 2 (2014): 277–302. S.A.S., §§ 121, 141–42. On harm, see Robert Wintemute, “Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusals to Serve Others,” Modern Law Review 77, no. 2 (2014): 223–53.

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11.6 CONCLUSION

There is no easy solution to the conflict between religious freedom and antidiscrimination rules, no matter how it is framed. Today, though the Member States are tasked with balancing the interests at stake, the ECtHR seems more willing than ever to recognize the existence of a conflict between religion and nondiscrimination. For the time being, however, its reliance on the state margin of appreciation means that its role will be to dictate the parameters for a balancing of the conflicting rights by states. The application of a broad margin of appreciation is a classic method for indicating that the ECtHR has identified a risk of reaching too far into domestic competences, and has therefore decided a given matter needs additional time and development. Until the ECtHR becomes more certain of the approach to take with regards to resolving the conflict at hand, this will likely remain its approach of choice. Ultimately, the question of how the ECtHR should respond to this and other hard-to-resolve conflicts is dependent on another question: that of the ECtHR’s role. Unlike the US Supreme Court, the ECtHR is not a constitutional court, at least not in the strict sense. As it determines the parameters in which states should balance the rights concerned, it must ensure that the individuals on both sides of the religion–equality conflict feel that their interests have been taken adequately into consideration. In determining the adequate response to complaints such as those in Eweida, the Court may benefit from emphasizing the public–private divide. This result also seems to be the method of choice for delineating positive obligations under Article 1 of Protocol 12 to the Convention. In the public or para-statal context, where the Court decides that it is necessary to conduct its own proportionality analysis, it may further benefit from considering whether either side of the religion–equality conflict can reasonably be expected to accommodate the other. While the Court is likely to defer to the state authorities in these controversial matters, it needs to continue developing its approach in order to ensure a baseline of human rights protection. This baseline includes fine-tuning the balance between, on one hand, the protection of vulnerable groups and individuals, such as the LGBT community and its members, and, on the other, the individuals whose religious beliefs may render them unable to participate fully in society absent an exemption from or accommodation by nondiscrimination rules.

12 When Do Religious Accommodations Burden Others? Nelson Tebbe, Micah Schwartzman, and Richard Schragger

12.1 INTRODUCTION

In recent years, cases involving demands for religious accommodations have raised difficult questions about how to balance the rights of religious believers against the rights of those who may be harmed when the government provides accommodations or exemptions from the law. Consider, for example, the Supreme Court of the United States’ landmark decision in Burwell v. Hobby Lobby.1 In that case, the Court interpreted an important federal statute, the Religious Freedom Restoration Act (RFRA).2 Currently, the US Constitution does not protect religious groups against government burdens that are incidental, rather than purposive.3 By contrast, RFRA invalidates any federal law that substantially burdens religious observance, unless the government can show that the law is necessary to vindicate a compelling state interest.4 The litigation resulting in Hobby Lobby began after the government, acting under authority granted by the Affordable Care Act (ACA), or “Obamacare,” adopted regulations known as the “contraception mandate.” Under those rules, all employers who provided health insurance for religious employees were required to include coverage for approved forms of female contraception. Hobby Lobby, a business corporation, challenged the mandate, arguing that providing its employees with contraception coverage would contradict its beliefs in violation of RFRA. We thank William McDavid and Steven Bovino for excellent research assistance. Thanks for comments on a previous draft to James Nelson and participants in workshops at BYU Law School, Cardozo Law School, Cornell Law School, Harvard Law School, and the Annual Law and Religion Roundtable held at Georgetown Law School in 2015. 1 Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). 2 42 U.S.C. §§2000bb–2000bb-4 (2000) et seq. 3 Employment Division v. Smith, 494 U.S. 872, 878–79 (1990). 4 42 U.S.C. §2000bb-1.

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As such, the case pitted concern for the religious freedom of the company against a guarantee of adequate health care for women. In the aftermath of Hobby Lobby, litigation over the contraception mandate also extended to a wide range of nonprofit organizations, albeit without a clear resolution by the Court.5 Many other examples of the conflict between religious freedom and the interests of other citizens have emerged as well. They extend beyond reproductive freedom for women to marriage equality and equal rights for transgender people. Mississippi passed a statute designed to protect religious actors who dissent from same-sex marriage in the wake of Obergefell v. Hodges, which established a right to marriage equality for same-sex couples.6 Kim Davis, a county clerk in Kentucky, refused to issue marriage licenses because of her theological objections to same-sex marriage.7 Utah extended antidiscrimination protection to LGBT citizens in employment and housing but completely exempted religiously affiliated employers and landlords.8 And both Indiana and Arkansas passed religious freedom statutes that they modified significantly after public outcry over the possible impact on civil rights.9 In all of these situations, religious actors seek exemptions from general laws. In this chapter, we isolate and address one of the conflict’s thornier problems. An important constitutional principle for mediating between religious freedom and the public good is that religious accommodations should not shift substantial harm to others. Normally when the government accommodates religious actors, it bears any cost that may result. That is appropriate and even necessary in some cases. Yet a long-standing constitutional rule prohibits the government from accommodating religious citizens when that means shifting meaningful costs onto other private citizens. Both the Free Exercise Clause and the Establishment Clause prohibit the state from

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See Zubik v. Burwell, 136 S.Ct. 1557 (2016) (vacating lower court opinions and remanding to circuit courts). Miss H.B. 1523 (2016); Obergefell v. Hodges, 135 S.Ct. 2584 (2015). See, e.g., Miller v. Davis, No. 15-CV-44-DLB, 2015 WL 9461520 (E.D. K. Sept 11, 2015) (denying Davis’s motion for emergency injunctive relief pending appeal). Utah S.B. 296 (2015) (codified at Utah Code Ann. § 34A-5-106 (employment), Utah Code Ann. § 57-21-5 (housing), and Utah Code Ann. § 34A-5-102(i)(ii) (excludingreligious organizations from the definition of employer). See Micah Schwartzman, Nelson Tebbe, and Robert Tuttle, “Indiana’s New Law Allows Discrimination. That Was the Point,” Slate, March 30, 2015, www.slate.com/blogs/outward/ 2015/03/30/gov_mike_pence_s_characterization_of_indiana_s_new_religion_law_is_ wrong.html; Nelson Tebbe, Micah Schwartzman, and Richard Schragger, “Why Arkansas Is Worse Than Indiana,” Balkinization, April 1, 2015, http://balkin.blogspot.com/2015/04/ why-arkansas-is-worse-than-indiana.html.

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making some citizens bear costs associated with the religious practices of other citizens.10 In our examples, the principle prohibits the government from accommodating Hobby Lobby’s religious scruples if that means shifting the burden of paying for contraception coverage to employees. Mississippi cannot exempt wedding vendors from local civil rights laws if that means harming same-sex couples. Kim Davis cannot be relieved of her obligation to process marriages if that would stymie or subordinate couples who seek to marry in her county. Utah may not exempt large employers from its employment protections if that means exposing employees to harmful discrimination. And a religious hospital may not win a religious exemption from Indianapolis’s employment discrimination law when that impacts LGBT employees. Some advocates for religious freedom have responded by denying that the principle against third-party harms is embodied in legal doctrine.11 But that argument is weak, as we explain in what follows. Even Hobby Lobby is best read to have reaffirmed the rule. A more nuanced and powerful response – and the one that we set out to address in this chapter – is the argument that many denials of government aid or protection do not count as burdens at all. For example, advocates for Hobby Lobby have argued that the company’s employees did not have a right to contraception coverage in the first place, and therefore that depriving them of that coverage as a consequence of accommodating the company did not count as a burden.12 Scholars have made the same argument 10

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Of course, constitutional concerns might also be present independent of third-party harms. Accommodations must also comply with secular purpose, non-endorsement, and neutrality requirements. One of us has argued that wholesale nationwide religious accommodations like RFRA pose a problem of religious favoritism that should make them vulnerable to Establishment Clause challenge. Richard Schragger, “The Role of the Local in the Doctrine and Discourse of Religious Liberty,” Harvard Law Review 117 (2004): 1810–92. Another of us has argued that accommodating only religiously motivated activity is troubling as a matter of political morality. Micah Schwartzman, “What if Religion Is Not Special?,” University of Chicago Law Review 79 (2012): 1351–1427. See, e.g., Brief of Amici Curiae National Association of Evangelicals [NAE], et al., Zubik v. Burwell, 2016 WL 183799, at 27 (2016) (“No religious exemption has ever failed scrutiny under the Establishment Clause. Although unyielding religious preferences are forbidden . . . religious exemptions like RFRA are perfectly valid – even when they result in third-party burdens.”) See Brief, NAE, 27 (“Granting the RFRA exemption returned employers and employees to the status quo ante, their respective positions before the HHS contraception mandate was binding.”); Brief of Amici Curiae Constitutional Law Scholars [CLS] in Support of Petitioners, 2016 WL 183794, Zubik v. Burwell, at 5 (2016) (“[S]ome scholars may prefer a new constitutional test that considers ‘substantial’ third party harms outside of the RFRA analysis . . . This new test would change the ‘baseline’ of rights and make RFRA the problem. But, this Court’s jurisprudence requires understanding RFRA as preserving the rights of religious claimants and third parties as they were before the Affordable Care Act burdened religion.”); Brief of Constitutional

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in favor of the religious nonprofits in Zubik. If they are right, then the principle against shifting burdens to third parties simply does not apply. According to the structure of this baseline argument, society’s natural state is a libertarian world with limited government funding or regulation. Or even if this is not a natural state, RFRA “runs through” all federal law, creating a presumption in favor of religious freedom.13 Noticing the resonance between this view and laissez-faire economics during the early New Deal, commentators have started to identify a new “Free Exercise Lochnerism”14 or even a more general “First Amendment Lochnerism.”15 According to the more general account, baselines arguments like the one used in Hobby Lobby are part of a larger development in constitutional law. We address the problem of determining when religious accommodations can be said to harm others. How should we identify the baseline for measuring whether an exemption has shifted a burden to third parties? We show why the problem is genuinely difficult – and critically

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Law Scholars, et al., 2014 WL 356639, Burwell v. Hobby Lobby Stores, Inc., at 3–4 (2014) (“Under the proposed [third-party harm rule], a court facing a statutory religious accommodation will often face a difficult baseline question: does the statute provide a right to a third party that would be burdened by a religious accommodation . . . ? In cases like this one, the answer is clear . . . [The ACA] effectively incorporates RFRA’s balancing test into its own provisions . . . [P]laintiffs’ employees simply have no right to plaintiff-provided coverage under the ACA regulations, and employees would not be burdened by plaintiffs’ religious exercise.”). See also Carl H. Esbeck, “When Religious Exemptions Cause Third-Party Harms: Is the Establishment Clause Violated?,” Journal of Church and State 58 (2016): 357–76; Kevin C. Walsh, “A Baseline Problem for the ‘Burden on Employees’ Argument against RFRA-Based Exemptions from the Contraceptives Mandate,” Mirror of Justice, January 17, 2014, http://mirrorofjustice.blogs.com/ mirrorofjustice/2014/01/a-baseline-problem-for-the-burden-on-employees-argument-against-rfrabased-exemptions-from-the-contr.html. Cf. Eugene Volokh, “Would Granting an Exemption from the Employer Mandate Violate the Establishment Clause?,” The Volokh Conspiracy, December 4, 2013, http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandateviolate-establishment-clause/ (“The burden on employees would thus be a burden relative to what the ACA would provide in the absence of an exemption.”) (emphasis original). See Michael Stokes Paulsen, “A RFRA Runs through It: Religious Freedom and the U.S. Code,” Montana Law Review 56 (1995): 249–94. See Elizabeth Sepper, “Free Exercise Lochnerism,” Columbia Law Review 115 (2015): Total 1453– 520; see also Frederick Mark Gedicks and Rebecca G. Van Tassell, “Of Burdens and Baselines: Hobby Lobby’s Puzzling Footnote 37,” in Micah Schwartzman, Chad Flanders, and Zo¨e Robinson, eds., The Rise of Corporate Religious Liberty (Oxford: Oxford University Press, 2015), 323–41. See, e.g., Thomas Colby and Peter J. Smith, “The Return of Lochner,” Cornell Law Review 100 (2015): 527–600 (focusing on free speech); Leslie Kendrick, “First Amendment Expansionism,” William and Mary Law Review 56 (2015): 1199 (also focusing on free speech); Jeremy Kessler, “The Early Years of First Amendment Lochnerism,” Columbia Law Review 116 (2016): 1199–1215 (tracing the history of First Amendment Lochnerism).

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important – and we offer an approach to resolving it that can account for the most difficult cases.16 We set out the argument in two parts. First, we describe the baseline problem and argue that burdens can only be identified by reference to substantive or normative values. Second, we apply that solution to the Court’s problematic treatment of the subject in Hobby Lobby. In Footnote 37 of the opinion, the Court questions whether the company’s employees will be harmed, and in the process it offers a confused account of how third-party harms ought to be conceptualized. We reject the Court’s contradictory dicta, and we argue that accommodating Hobby Lobby at the cost of interfering with its employees’ contraception coverage did indeed violate the principle against shifting burdens from religious claimants to other private citizens. In a companion piece, we address the related issue of how much harm to third parties suffices to defeat a religious accommodation.17 We acknowledge that some exemptions are acceptable even if they do burden others (given an appropriate baseline). So the principle of avoiding harm to others is not categorical or absolute. The doctrine of avoiding third-party harms has limits, and explicating them in particular cases is important in responding to critics who argue that a rule prohibiting any and all religious accommodations that shift burdens, however slight, cannot possibly exist. In this chapter, however, we focus on the baseline difficulty and its resolution. 12.2 THE BASELINES OBJECTION

To understand the baselines problem, it is helpful to step back and recall the constitutional principle at play. Again, when the law accommodates religious actors, any resulting costs normally are absorbed by the government or by the public. If instead the government imposes those costs on other private individuals, it may run up against constitutional limits on religious accommodations. A long-standing rule holds that the government may not accommodate religious actors if that means shifting meaningful burdens to identifiable third parties.18 Grounded in both the Free Exercise Clause and in the

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Our response to the baseline argument builds on, but also is somewhat different from, the path-breaking answer of Gedicks and Van Tassell, “Burdens.” Nelson Tebbe, Micah Schwartzman, and Richard Schragger, “How Much May Religious Accommodations Harm Others?,” in Holly Fernandez Lynch, I. Glenn Cohen, and Elizabeth Sepper, eds., Law, Religion, and Health in the United States (Cambridge: Cambridge University Press, 2017), 215–29. For background on this rule, see Nelson Tebbe, Religious Freedom in an Egalitarian Age (Cambridge, MA: Harvard University Press, 2017), 49–70; Douglas NeJaime and Reva Siegel,

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Establishment Clause, this principle guards against the government imposing the religious beliefs of some citizens onto others. That principle was reaffirmed in Hobby Lobby, where the majority recognized that “[i]t is certainly true that in applying RFRA ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.’”19 And Justice Kennedy, who provided the fifth vote for the majority, wrote that free exercise may not “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.”20 Most recently, the Court clarified that RFRA does not require an outcome that harms employees by denying them cost-free coverage for contraception.21 Putting these statements in the context of previous authority, as we have elsewhere, makes clear that the principle is recognized in legal doctrine.22 Here, it protects employees against having to pay the costs of accommodating their employer’s religious opposition to the contraception mandate.23 As we noted earlier, advocates for strong religious freedom protection have responded in two ways to this limitation on accommodation. Some have tried to deny the existence of the principle against third-party harms as a matter of

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“Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (2015): 2516–91; Frederick Mark Gedicks and Rebecca G. Van Tassell, “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,” Harvard Civil Rights–Civil Liberties Law Review 49 (2014): 343–84. 134 S.Ct. at 2781 n. 37. Quoting an Establishment Clause decision, Cutter v. Wilkinson, 544 U. S. 709, 720 (2005). 134 S.Ct. at 2786–7 (Kennedy, J., concurring). Zubik, 136 S.Ct. at 1560–61 (“Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans obtain, without cost, the full range of FDA approved contraceptives.”) (internal quotation marks omitted). For an argument that the justices should use the opportunity of any additional opinion in Zubik to reiterate and apply the third-party harm doctrine, see Nelson Tebbe, Micah Schwartzman, and Richard Schragger, “Zubik and the Demands of Justice,” Scotusblog, May 16, 2016, www.scotusblog.com/2016/05/symposium-zubik-and-thedemands-of-justice/. See Tebbe, Schwartzman, and Schragger, “How Much,” and Tebbe, Religious Freedom in an Egalitarian Age, 49–70 (arguing that the principle is embodied in legal doctrine under both the Establishment Clause and the Free Exercise Clause). The Court did not go far enough in this regard. It should have conditioned relief for Hobby Lobby on absence of harm to its employees. In fact, the employees are being burdened today, while the Obama administration works on implementing an administrative change that would provide them with coverage. See Nelson Tebbe, Richard Schragger, and Micah Schwartzman, “Update on the Establishment Clause and Third Party Harms: One Ongoing Violation and One Constitutional Accommodation,” Balkinization, October 16, 2014, http://balkin.blogspot.com/2014/10/update-on-establishment-clause-and.html.

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doctrine.24 That has proven difficult, however, because the rule is embodied in holdings of the Supreme Court, regarding both free exercise and nonestablishment.25 In fact, the balance of cases strongly weighs in favor of the doctrine, rather than against it.26 A second and more powerful response has been to deny that a particular impact on third parties counts as a burden at all. For example, advocates for Hobby Lobby argued that RFRA predated the ACA, which the government was seeking to enforce. Because both laws were merely statutes, these advocates reasoned, the employees never had a right to contraception coverage.27 Therefore, they were not burdened when the Court ruled in favor of the company, even if that meant they would not receive contraception coverage without cost-sharing.28 So regardless of whether the administration ever succeeded in developing a regulatory solution that extended coverage to them, the Court did not violate the principle against shifting burdens to third parties. That was because RFRA modified all federal statutory benefits. This is a classic baselines argument, and it can work in many other situations where a harm or burden is alleged, including not only funding scenarios but regulatory ones as well. Consider, for example, the Utah legislation. There, similarly, religious advocates can argue that because LGBT citizens 24

25

26

27

28

See, e.g., Marc O. DeGirolami, “Holt v. Hobbs and the Third-Party-Harm Establishment Clause Theory,” Mirror of Justice, October 7, 2014 (arguing that the third-party harm argument in Hobby Lobby is “based on a misreading [and substantial extension] of the relevant case law”); Kevin C. Walsh, “Did Justice Ginsburg Endorse the Establishment Clause Third-Party Burdens Argument in Holt v. Hobbs?,” Mirror of Justice, January 21, 2015, http://mirrorofjustice .blogs.com/mirrorofjustice/2015/01/did-justice-ginsburg-endorse-the-establishment-clause-thirdparty-burdens-argument-in-holt-v-hobbs-.html (“I agree [with two other scholars] in rejecting the existence of a general rule that the Establishment Clause prohibits RFRA- or RLUIPArequired accommodations that impose third-party burdens.”). See Tebbe, Religious Freedom in an Egalitarian Age, 49–70 (reviewing the case law in both areas). Congregational association cases are different as a doctrinal matter, as we have argued elsewhere. Micah Schwartzman, Richard Schragger, and Nelson Tebbe, “Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter,” Balkinization, December 9, 2013, http://balkin.blogspot.com/2013/12/hobby-lobby-and-establishment-clause_9.html. For a case-by-case refutation of the argument that the Court has extended religious accommodations in the face of third-party harms, see Nelson Tebbe, Richard Schragger, and Micah Schwartzman, “Reply to McConnell on Hobby Lobby and the Establishment Clause,” Balkinization, March 30, 2014, http://balkin.blogspot.com/2014/03/reply-tomcconnell-on-hobby-lobby-and.html. See supra n. 12. It is fairly clear that the ACA did not partially repeal RFRA, even though it came second in time. Michael Dorf, “Did the Affordable Care Act Partially Repeal the Religious Freedom Restoration Act?,” Dorf on Law, December 2, 2013, www.dorfonlaw.org/ 2013/12/did-affordable-care-act-partially.html. See, e.g., Walsh, “Baseline”; Esbeck, “Third-Party Harms.”

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did not previously enjoy antidiscrimination protection in employment or housing, they are not harmed by the law’s exemptions, which leave them vulnerable to discrimination by religiously affiliated employers or landlords. LGBT Utahans simply have not been burdened, relative to the status quo ante, and therefore the religious accommodations do not violate the principle against shifting burdens to third parties.29 How do we determine the difference between the imposition of a burden and the absence of a benefit? According to some proponents of the baselines objection, all goods or opportunities provided by the government are benefits that the government can take away without imposing burdens. But, of course, that cannot be; such a view depends on positing some pre-governmental, prelegal baseline that has never existed. Recognizing that difficulty, libertarians sometimes assume a common law baseline – arguing that the existing background rules of contract, property, and tort law form a basis for assessing whether government action imposes a harm or merely removes a benefit.30 Consider a church that commits a nuisance. It would be very strange indeed to hold that a statutory exemption from background nuisance law does not burden the church’s neighbors because the neighbors had no right to be protected from nuisance in the first place. Why state action that establishes common law rights is different from state action that creates statutory rights, however, is unclear. Common law rights are not unchanging, fixed background points of reference – they are constantly evolving, and many have become statutory over time. But, more importantly, every exercise of rights occurs against the backdrop of a state that will enforce them. Starting from a pre-statutory baseline makes about as much sense as starting with a pre-common law baseline or a pre-governmental baseline – there is no justification for it, unless one accepts controversial assumptions

29

30

Cf. Robin Fretwell Wilson, “SB296 Comes in the American Tradition of Live and Let Live,” Salt Lake Tribune, March 7, 2015, www.senatesite.com/home/robin-wilson/ (“SB296 accomplishes a balancing act between nondiscrimination protections and religious liberties by placing faith groups outside the bounds of state dictates . . . All of these organizations fall outside the definition of employer, receiving critical assurance that they can operate tomorrow as they do today.”). See, e.g., Richard A. Epstein, “Takings, Exclusivity and Speech: The Legacy of PruneYard v. Robins,” University of Chicago Law Review 64 (1997): 21–56. Cf. Frank Michelman, “The Common Law Baseline and Restitution for the Lost Commons: A Reply to Professor Epstein,” University of Chicago Law Review 64 (1997): 57–69 (“Under Epstein’s proposal, the baseline for constitutional-legal protection of property would be taken directly from the general common law of trespass and nuisance. We can follow Epstein in calling this a ‘natural’ standard because Epstein, for reasons we shall soon notice, decidedly treats the common law as an expression of right reasoning in the service of natural human interests.”).

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about the role of government that have long been repudiated in American constitutional doctrine. Our argument is that there is no natural baseline for measuring benefits and burdens. Rather, meaningful comparisons can only be made by considering the substantive commitments at play in a particular dispute. We can assume neither a libertarian baseline that imagines limited government involvement, nor regulation in all cases that the baseline is the existing government regulation. Only by carefully examining the values pulling in both directions can we determine the appropriate measure of third-party harms in a manner that is realistic and normatively attractive. In Hobby Lobby, for example, it would be mistaken to deny that female employees, as well as the female dependents of male employees, were harmed when the company denied its employees full contraceptive coverage. After consultation with medical experts, the administration made a deliberate determination that insurance coverage for all FDA-approved methods of female contraception was a necessary part of the coverage for “preventive care” that Congress required all employers to carry.31 That decision changed public policy on a core question concerning women’s health. Moreover, it did so in a way that protected women’s equality. Justice Kennedy was therefore right to say that employees’ interest in adequate and equal preventive care was an “interest the law deems compelling.”32 Moreover and relatedly, Establishment Clause values also support the conclusion that employees were harmed. It was reasonable for workers to believe that protecting the company’s religious freedom came at a cost to them – namely, their loss of health insurance coverage that public officials had deemed mandatory, not optional. Those workers could conclude that the Court made a value judgment that subverts their right not to have the beliefs of other citizens imposed on them. It is true that Hobby Lobby’s workers eventually did receive coverage. The Obama administration took up the Court’s suggestion and extended the accommodation it had fashioned for nonprofits to Hobby Lobby and other business corporations.33 Under that accommodation, those who work for religious employers receive cost-free contraception coverage from their insurance company or health care administrator. But it took a full year for the administration to implement that fix, and in the interim workers presumably 31

32 33

See Elizabeth Sepper, “Contraception and the Birth of Corporate Conscience,” American University Journal of Gender, Social Policy, and Law 22 (2014): 303–42. Hobby Lobby, 134 S.Ct. at 2786–87 (Kennedy, J., concurring). Coverage of Certain Preventive Services Under the Affordable Care Act, 80 Fed. Reg. 134, July 14, 2015.

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were harmed.34 Several courts have noted that lack of free contraception coverage can damage women’s health, sometimes irreparably.35 Of course, there are important public policy values on the other side as well – principally, the value of religious freedom for the company. And obviously the free exercise of religion is a right with constitutional status. But the Free Exercise Clause does not ordinarily provide for exemptions from general laws, such as the contraception mandate imposed under the ACA.36 So free exercise values do not point toward a libertarian baseline in Hobby Lobby. On the contrary, the principle of avoiding harm to others has constitutional significance under both the Establishment Clause and the Free Exercise Clause, as we have explained.37 On balance, then, the values at stake point toward a baseline of equal access, not a libertarian baseline of governmental nonintervention. A distinct baseline argument comes from Eugene Volokh. He concedes that religious accommodations sometimes do shift burdens to third parties, and that the Establishment Clause places limits on that kind of burden shifting.38 But he argues that burden shifting raises constitutional problems only where the government accommodates religious actors by imposing affirmative obligations on third parties. Other commentators have picked up the argument as well.39 In Estate of Thornton v. Caldor, for instance, Connecticut required employers to allow all of their employees who observed a Sabbath to take that day off. The Court struck down the law under the Establishment Clause.40 Volokh believes the consequent burdens on employers and nonreligious employees were unconstitutional because the government itself was imposing a regulation on those nonreligious actors. By contrast, he argues that where government accommodates religious actors by lifting a preexisting regulation, any resulting effect on third parties does not raise constitutional problems. In Hobby Lobby, for example, RFRA simply relieved religious employers from the obligation to cover contraception. It did not require

34 35

36 38

39

Tebbe, Schragger, and Schwartzman, “Update.” University of Notre Dame v. Burwell, 786 F.3d 606, 607–08 (7th Cir. 2015) (Posner, J.) (examining empirical medical findings that cost-free contraception coverage promotes women’s health); Priests for Life v. U.S. Department of Health and Human Services, 772 F.3d 229, 259–262 (D.C. Cir. 2015) (Pillard, J.) (examining similar evidence). Employment Division v. Smith, 494 U.S. 872, 878–79 (1990). 37 See supra n. 17 and n. 25. Volokh, “Exemption” (acknowledging that “religious accommodations do often leave nonbeneficiaries worse off, as a result of giving the benefits to the beneficiaries,” and “there are indeed some precedents that suggest that excessive burdens on nonbeneficiaries do indeed pose Establishment Clause problems”). See Brief, CLS, 17–18; Brief, NAE, 22. 40 472 U.S. 703 (1985).

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them to take advantage of that exemption, resulting in consequences for employees.41 Volokh’s point here, should be considered a baseline argument, because it rests on a distinction between government providing a benefit to religious actors and government lifting a regulatory burden on such actors, even though both negatively affect third parties. It depends, in other words, on where one sets the regulatory baseline. Understanding a decision in favor of Hobby Lobby as lifting a burden assumes a baseline of less regulation, whereas viewing it as a benefit assumes a baseline that includes the ACA and its administrative implementation. But here again, the distinction between a government benefit and a government decision to lift a regulatory burden is constructed, not predetermined. It too depends on a controversial account of when the government is affirmatively regulating and when it is not. For similar reasons, then, Volokh’s version of the baseline argument fails. Volokh draws his distinction from a passage in Amos, the case in which the Court upheld Title VII’s provision exempting religious organizations from the prohibition on employment discrimination against workers who did not share the employer’s faith.42 In that decision, the Court distinguished Caldor by saying that there, the government was requiring employers to accommodate religious employees, whereas in Amos the government was merely allowing the employer the freedom to observe a religious precept, should it so choose.43 Volokh concludes from this that only governmental religious accommodations that benefit religious actors and impose burdens on others violate the Establishment Clause, not those that lift regulations on private actors and thereby allow them to impose equivalent harms on other private citizens.44 But that distinction is indefensible. The employees in Hobby Lobby, like in Amos itself, surely were burdened as a consequence of religious accommodations for the employer.45 For similar reasons, Justices Brennan and O’Connor 41

42

43

44 45

See Volokh, “Exemption”; see also Eugene Volokh, Sebelius v. Hobby Lobby: Corporate Rights and Religious Liberties (Washington, DC: Cato, 2014), 64. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). Here is the passage Volokh quotes: “This is a very different case than Estate of Thornton v. Caldor, Inc . . . In effect, Connecticut had given the force of law to the employee’s designation of a Sabbath day and required accommodation by the employer regardless of the burden which that constituted for the employer or other employees. In the present cases, appellee Mayson was not legally obligated to take the steps necessary to qualify for a temple recommend, and his discharge was not required by statute.” Amos, 483 U.S. at 337 n.15. See supra n. 38. The main reason why Amos came out the way it did was because of associational considerations that arise in the context of churches and other congregations, as we have argued elsewhere. See Schwartzman, Schragger, and Tebbe, “Hobby Lobby.” As we have also argued,

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rejected the Amos Court’s distinction as “irrelevant” and tending to “obscure more than enlighten.”46 Seeing why requires only a moment’s consideration of the importance of being free from employment discrimination on the basis of religion and sex. Considering those values confirms the serious nature of the burdens imposed on nonreligious employees in both Hobby Lobby and Amos. Nothing about the distinction between lifting and imposing burdens tracks the deeper concern with situations in which the government requires private citizens to bear the consequences of accommodating the religious beliefs of other private citizens.

46

the Amos majority’s reading of Caldor was effectively rejected in a later case, Cutter v. Wilkinson, 544 U.S. 709 (1995). There, the Court held that one of the Establishment Clause conditions for granting an exemption is that the government must be lifting a burden that it has imposed. Cutter, 720. The Court then immediately cited Caldor for the principle that a religious accommodation cannot shift meaningful harm to third parties. Cutter, 720. But that limitation on government accommodations only makes sense on the understanding of baselines that we have offered here. Under the reading offered by Volokh or the Amos majority, by contrast, no burden-shifting limitation was necessary or appropriate, because, in Cutter, the government was only lifting a regulation, not requiring a private actor to accommodate a religious practice. Justice Brennan, joined by Justice Marshall, refuted the Court’s distinction this way: “The fact that a religious organization is permitted, rather than required, to impose this burden is irrelevant; what is significant is that the burden is the effect of the exemption. An exemption by its nature merely permits certain behavior, but that has never stopped this Court from examining the effect of exemptions that would free religion from regulations placed on others. See, e.g., United States v. Lee, 455 U.S. 252, 261 (1982) (‘Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees’).” Amos, 483 U.S. at 340 n. 1 (Brennan, J., concurring in the judgment) (citations omitted). Justice Brennan also endorsed the reasoning of Justice O’Connor, who wrote: “[T]he Court seems to suggest that the ‘effects’ prong of the Lemon test is not at all implicated as long as the government action can be characterized as ‘allowing’ religious organizations to advance religion, in contrast to government action directly advancing religion. This distinction seems to me to obscure far more than to enlighten. Almost any government benefit to religion could be recharacterized as simply ‘allowing’ a religion to better advance itself, unless perhaps it involved actual proselytization by government agents. In nearly every case of a government benefit to religion, the religious mission would not be advanced if the religion did not take advantage of the benefit; even a direct financial subsidy to a religious organization would not advance religion if for some reason the organization failed to make any use of the funds. It is for this same reason that there is little significance to the Court’s observation that it was the Church rather than the Government that penalized Mayson’s refusal to adhere to Church doctrine. The Church had the power to put Mayson to a choice of qualifying for a temple recommend or losing his job because the Government had lifted from religious organizations the general regulatory burden imposed by § 702.” Amos, 483 U.S. at 347 (O’Connor, J., concurring in the judgment) (citations omitted). Justice Blackman also concurred in the judgment, and he specifically endorsed the passage just quoted from Justice O’Connor. Amos, 483 U.S. at 346 (Blackmun, J., concurring in the judgment).

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In sum, burdens on third parties can be identified neither by assuming a naturalized state of nonintervention by the government nor by assuming that government programs always set the proper point of reference for measuring burdens. Instead of either of these methods, we should measure burdens by referring to the substantive public commitments – including constitutional values – implicated in a particular case. That is the lesson applied by the realists during the progressive era,47 and that is the most nuanced and powerful approach today. Using that approach, again, the baseline in Hobby Lobby and Zubik can only be determined by reflecting on the public values and governmental interests advanced by the ACA and the regulations implementing it. Not only public policy concerning women’s health, which at least five justices took to be compelling in Hobby Lobby, but various constitutional principles are also relevant to setting the appropriate baseline. Employees have interests in gender equality that are supported by the Equal Protection Clause, and they have interests in religious freedom that are supported by the First Amendment principle that prohibits the government from shifting burdens from certain private religious citizens onto others. Of course, religious freedom values support the company’s claim as well, but those values must be measured against countervailing commitments, including again religious freedom itself, as well as women’s equality and reproductive autonomy. Despite the Court’s recognition of these values, however, it misunderstood its role in determining the proper baseline for measuring harm to third parties. In the next part, we clear up that confusion and model what we take to be a more attractive approach. 12.3 SETTING THE BASELINE: A REPLY TO FOOTNOTE 37

The Hobby Lobby majority conceded two important points: first, that thirdparty burdens are relevant to the application of RFRA, and second, that an exemption from the contraception mandate for Hobby Lobby imposes a substantial burden on its female employees and families. But uniquely to Hobby Lobby and the contraceptive mandate, the Court found that the costs of the exemption need not be shifted to female employees because the government “can readily arrange for other methods of providing 47

See, e.g., Cass Sunstein, “Lochner’s Legacy,” Columbia Law Review 87 (1987): 893–919. See also Sepper, “Lochnerism,” 1518–19 (“In 1937, in West Coast Hotel Co. v. Parrish, the Supreme Court declared that ‘[t]here is no absolute freedom to do as one wills or to contract as one chooses.’ [300 U.S. 379, 392 (1937).] Rejecting Lochner, the Court decided that the legislature could recognize the harms of the private order and act to avoid the exploitation of workers. The baseline had changed.”).

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contraceptives, without cost sharing, to employees who are unable to obtain them . . . due to their employers’ religious objections.”48 Religious employers get their exemptions; female employees get their contraceptives without cost sharing. Everyone wins. That conclusion ostensibly allowed the Court to avoid the baselines question altogether. But in Footnote 37 the Court addressed the issue directly, observing in dicta that the government cannot be allowed to impose burdensome regulations on religious believers merely because those regulations confer some benefit on third parties. The reason is that the government could always characterize its regulations as providing a benefit, and thus claim that granting exemptions imposes harms on third parties by depriving them of that benefit. On the basis of such reasoning, Justice Alito suggests, the government could mandate that all supermarkets sell alcohol for the sake of customer convenience, forcing out Muslim owners who might object to such sales. Similarly, the government could require all restaurants to stay open on Saturdays to allow employees to earn more tips, excluding observant Jews from the restaurant business.49 In both examples, the government could defend its regulations as benefiting third parties (customers and employees) and, on that basis, refuse to allow religious accommodations. “By framing any Government regulation as benefiting a third party,” according to the majority, “the Government could turn all regulations into entitlements to which nobody could object on religious grounds, rendering RFRA meaningless.”50 This dicta, as well as the reasoning used to support it, is mistaken for a number of reasons. First, the regulations in the Court’s examples are so implausible that one would suspect the government of having enacted them with the aim of burdening religion, which would violate not only RFRA but also the Free Exercise Clause of the First Amendment.51 A government that required stores to sell only one type of religiously objectionable product (and no other products) or to be open only on Saturday (as opposed to Sunday, or any other day) would quickly raise concerns about religious prejudice.52 Of course, the government cannot fabricate benefits to third parties as a pretext to oppress religious minorities. 48 51

52

134 S.Ct. at 2781 n. 37. 49 Ibid. 50 Ibid. See Church of the Lukumi Bablu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (“The First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general.”). Cf. Sherbert v. Verner, 374 U.S. 398, 406 (1963) (granting an exemption to a Sabbatarian who was denied unemployment benefits because she refused to accept work on Saturdays, and, after noting that the state did not put Sunday worshippers to the same choice, holding that the exclusion was unconstitutional partly because of “the religious discrimination which South Carolina’s statutory scheme necessarily effects”).

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Second, even if we suppose that the regulations in the Court’s examples are not pretextual, the Court drew the wrong conclusion from them, namely that the government can always shift the baseline by claiming that a regulation confers a benefit. But a normative approach to setting baselines takes the sting out of this criticism by explaining the circumstances in which the government might be required to provide exemptions from benefit-conferring regulations. Consider the requirement that supermarkets sell alcohol. The benefit to consumers is, ex hypothesi, merely a matter of convenience. That, of course, is the point. In offering the example, Justice Alito is arguing that the government should not be allowed to trump the weighty interests of religious believers by avoiding insignificant harms to third parties. But this is a straw man. No one is arguing that any cost to third parties, however trivial, justifies the imposition of significant burdens on religion. Again, on our account, courts must examine the normative significance of all the relevant interests. In determining whether there is a harm to third parties, and whether any burden is warranted, nothing requires courts to be blind to the values underlying a challenged regulatory regime; on the contrary, and as the Court recognized in Hobby Lobby, RFRA and the Religion Clauses all require courts to undertake this type of balancing inquiry.53 Now compare the requirement that restaurants stay open on Saturdays. The Court treated this example as equivalent to the first involving forced alcohol sales. But a realist response must be more nuanced and sophisticated than the Court’s. The state may have powerful interests in regulating wages, which are not merely a matter of customer convenience. Indeed the state may be concerned about the ability of low-income employees to sustain a decent or living wage. An exemption that resulted in diminished wages might seriously harm workers. For that reason, Justice Alito’s quick dismissal of his own example raises concerns about whether the Hobby Lobby majority implicitly assumed a libertarian, or laissez-faire, regulatory baseline with Lochnerian implications.54 By contrast, our approach would take seriously employees’ economic interests, at least if the state can make out a plausible case that it is, in fact, attempting to protect their interests as part of a neutral and generally applicable economic policy, rather than, say, as a pretext for religious discrimination. Indeed, we do not need to imagine examples of economic regulations

53

54

See Hobby Lobby, 134 S.Ct. at 2781 n. 37 (“It is certainly true that in applying RFRA ‘courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries,’” quoting Cutter v. Wilkinson, 544 U.S. 709, 720 [2005]). See Sepper, “Lochnerism,” 1456–57.

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that past courts have upheld against religious objections. In United States v. Lee,55 for instance, the Court denied a free exercise exemption to an Amish employer who refused on religious grounds to pay Social Security taxes. The Court said that any exemption would harm the employees. And in Tony and Susan Alamo Foundation v. Secretary of Labor,56 the Court rejected an employer’s religious objection to paying the minimum wage. In both cases, there was no controversy about the baseline of economic benefits provided to employees. And the Court had no difficulty in rejecting religious exemptions that would have defeated employees’ statutory rights to those benefits. Third, by casting doubt on statutory baselines as a starting point for its inquiry into third-party harms, the Hobby Lobby majority left open some crucial questions. If statutory entitlements do not establish baselines from which to measure benefits and burdens, then what does? Footnote 37 did not say, except to indicate that courts must account for third-party harms in considering the “[g]overnment’s compelling interest and the availability of a less restrictive means of advancing that interest.”57 But it is not entirely clear what this means. The majority might be suggesting that third-party harms can only defeat requested accommodations when they are independently equivalent to a “compelling interest.” For example, an accommodation from a child abuse statute might lead to physical harms to children. Protecting against such harms is a compelling interest and would therefore justify rejecting a religious exemption. But if the harms to third parties were minor, not rising to the level of a compelling interest, then they would not be sufficient to defeat an exemption under RFRA. If the Court’s conception of third-party harms is linked in this way to the compelling interest test, its account of baselines is much too stringent and indeed inconsistent with prior case law. A burden on third parties need not rise to the level of physical injury, or total deprivation, to trigger the constitutional prohibition on shifting costs of religious observance onto others. For example, in Estate of Thornton v. Caldor,58 the Court struck down a state statute that provided employees with an “absolute right not to work on their chosen Sabbath.”59 The statute had the potential of imposing what the Court described as “substantial economic burdens” on employers and “significant burdens on other employees.”60 But it is not clear, and indeed is unlikely, that protecting against the imposition of those burdens would amount to a compelling governmental interest. The economic interests of employers 55 57 60

455 U.S. 252, 260 (1982). 56 471 U.S. 290, 303 (1985). Hobby Lobby, 134 S.Ct. at 2781 n. 37. 58 472 U.S. 703 (1984). 472 U.S. at 710.

59

472 U.S. at 704.

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and employees are not protected because they are independently compelling. They are significant in their own right and protecting them becomes compelling because the Religion Clauses prohibit the government from granting accommodations that fail to take them into adequate consideration. In folding third-party harms into RFRA’s strict scrutiny analysis, the Court might have meant that exemptions should be granted provided the government has some less restrictive means, including paying for the entitlement through a different program. Some have read Hobby Lobby to require taxpayers to cover the costs of regulation when religious believers object to paying for those costs. This seems unlikely, though. Some members of the Court may share an anti-regulatory, libertarian view that might look favorably on forcing the government to internalize the costs of all redistributive regulations. And maybe RFRA could be read to achieve that goal for laws that burden religion. But it would be quite dramatic to force taxpayers to cover the cost every time a religious employer decided that a law substantially interfered with its religious sensibilities. Of course, shifting the costs of exemptions to taxpayers is a burden itself, and it should certainly be considered when deciding the reach of RFRA. But it is also easy to distinguish cases in which an employer’s exemption imposes diffuse and relatively minor costs on taxpayers (or other unspecified third parties, such as customers) from those cases which an employer’s exemption directly eliminates the statutorily mandated benefits that would otherwise be received by the employer’s employees. That is why Hobby Lobby was not a hard case in this regard and why Footnote 37 protested too much. Statutory baselines are the place to begin in identifying relevant normative interests. They will not always be the place to end, but often when an exemption is demanded, it will either impose burdens on an identifiable class of employees, coworkers, neighboring landowners, and so forth, or it will have some diffuse, indirect effects. Often – but not always. A final criticism of the Court’s dicta in Footnote 37 is this: despite Justice Alito’s exaggeration that “the Government could turn all regulations into entitlements to which nobody could object on religious grounds,”61 not every regulation confers a benefit or one that would be undermined by granting an exemption. For example, in Holt v. Hobbs, the Court granted an exemption for a Muslim prisoner who was prohibited by state prison authorities from wearing a quarter-inch beard.62 Despite its 61 62

472 U.S. at 710 (emphasis added). Holt v. Hobbs, 135 S.Ct. 853, 867 (2015). We offer additional examples in Tebbe, Schwartzman, and Schragger, “How Much.”

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protestations to the contrary, the state made no factual showing that accommodating the prisoner would impose burdens on anyone, let alone cause any harm to other prisoners, guards, or other third parties.63 As Justice Ginsburg remarked in her brief concurring opinion, “Unlike the exemption this Court approved in Burwell v. Hobby Lobby . . . accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”64 The point is simple but important: not every religious exemption harms third parties, which means that not every statute – or at least not every application of a statute – can be shown to confer benefits on others. For that reason, Justice Alito’s conclusion in Footnote 37 is incorrect. The doctrine prohibiting significant third-party harms is compatible with religious freedom, at least when that freedom is understood to contain a limiting principle, such that it does not authorize religious believers to impose the significant costs of their religious observance onto others. What we have been arguing is that the costs of exemptions have to be tested against Free Exercise and Establishment Clause limits. In granting exemptions to otherwise generally applicable neutral laws, the government cannot make some people endure undue hardship for the sake of other people’s religious exercise. If statutory entitlements are neutral and generally applicable (and the alcohol and Saturday opening hypotheticals are questionable in this regard), then they are the place to begin a realistic inquiry into the possible benefits and harms to third parties. 12.4 CONCLUSION

An important objection to limiting religious exemptions on the basis of thirdparty harms is that RFRA sets the regulatory baseline. On this view, the ACA or any other federal law can confer benefits only subject to RFRA. And if RFRA protects a religious actor, then there are no benefits to be had, and no third parties can legitimately claim that they have suffered any harm. This is merely another version of the baseline argument we have been tracking (and resisting) in this chapter – the idea that Hobby Lobby’s employees were not harmed when they lost contraceptive coverage without cost sharing because they had no right to that benefit in the first place. 63 64

Holt, 135 S.Ct. at 863–66. Holt, 135 S.Ct. at 867 (Ginsburg, J., concurring); see also Micah Schwartzman, Richard Schragger, and Nelson Tebbe, “Holt v. Hobbs and Third Party Harms,” Balkinization, January 22, 2015, http://balkin.blogspot.com/2015/01/holt-v-hobbs-and-thirdparty-harms.html.

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This way of thinking about regulatory baselines not only trades on antiregulatory, Lochnerian assumptions, but it is also inconsistent with constitutional doctrine under the Establishment Clause and under the view of religious free exercise that RFRA was intended to restore.65 RFRA does not “run through” the law any more than the Court’s constitutional application of strict scrutiny did in the numerous cases in which the Court protected third parties from harm, including the loss of important statutory rights and benefits.66 Properly interpreted, RFRA does not systematically alter existing baselines; rather, it requires courts to balance the demands of religious freedom against the values that challenged regulations are designed to promote. When those regulations provide important protections for third parties, courts are obligated under RFRA and under the Religion Clauses to respect them.

65

66

See Micah J. Schwartzman, “What Did RFRA Restore?,” Cornerstone, September 11, 2014, https://www.religiousfreedominstitute.org/cornerstone/2016/6/30/what-did-rfra-restore; Martin S. Lederman, “Reconstructing RFRA: The Contested Legacy of Religious Freedom Restoration,” Yale Law Journal Forum 125 (2016): 416–41. The reference is to Paulsen, “A RFRA Runs through It.”

p a r t iv

conscience, accommodation and its harms Children, Women, and Sexual Minorities

13 The Missing Children in Elite Legal Scholarship Marci A. Hamilton1

Freedom for the pike is death to the minnow. Isaiah Berlin2

There is a widespread assumption that humans are innately child-protective, and until recently it was widely believed in the United States that children in religious settings receive special solicitude and love. Those assumptions are being challenged in this era by international and domestic atrocities toward children in the name of religion. For example, the extremist Islamic terror group, ISIS, makes girls (and women) sex slaves3 and enslaves boys as soldiers,4 and the sexual enslavement is justified on theological

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Fox Professor of Practice and Senior Resident Fellow, Program for Research on Religion and Urban Civil Society, University of Pennsylvania. CEO and Academic Director, CHILD USA. I thank Michel Rosenfeld and Susanna Mancini for inviting me to speak at their stimulating conference, “The Conscience Wars: Rethinking the Balance between Religion, Identity and Equality,” and for the comments and discussion of the other participants, and the insightful comments on drafts from Jim Dwyer, Fred Gedicks, Leslie Griffin, and Jordan Walsh. I also thank Cardozo law students Zoe Kheyman, Charles Manfredi, Samantha Millar, Glenne Fucci, Madison Wiles-Haffner, and Nakisha Duncan for their excellent research assistance. Any and all errors, of course, are my own. Isaiah Berlin, “Two Concepts of Liberty,” in Henry Hardy, ed., Liberty (Oxford: Oxford University Press, 2007), 171–71 (quoting R. H. Tawney, Equality [New York: Harper-Collins, 1938]). Yazidi Women Tell of Rape and Enslavement at Hands of ISIS, dir. Kelly Cobiella and others, NBC News, November 30, 2015, www.nbcnews.com/storyline/isis-uncovered/yazidi-womentell-rape-enslavement-hands-isis-n462091; “Roughly 3,000 Women and Girls Are Sold on ISIS Sex Slave Market Using Telegram, WhatsApp,” NY Daily News, July 6, 2016, www.ny dailynews.com/news/world/roughly 3–000-women-girls-sold-isis-sex-slave-market-article1.2700156. Allen McDuffee, “ISIS Is Now Bragging about Enslaving Women and Children,” The Atlantic, October 13, 2014, www.theatlantic.com/international/archive/2014/10/isis-confirms-and-justi fies-enslaving-yazidis-in-new-magazine-article/381394/.

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grounds.5 Another radical Islamic terror group, Boko Haram, kidnapped 276 girls from their secondary school in Nigeria and consigned them to forced marriages and sexual slavery for their captors’ religious cause.6 The seriatim sexual abuse of children within religious organizations has spanned the spectrum: ultra-Orthodox and Orthodox Jews,7 the Roman Catholic Church,8 the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS),9 the Children of God,10 and Tony Alamo’s 5

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Rukmini Callimachi, “ISIS Enshrines a Theology of Rape,” New York Times, August 13, 2015, www.ny times.com/2015/08/14/world/middleeast/isis-enshrines-a-theology-of-rape.html?_r=0; see also Zeina Karam and Bram Janssen, “Under Islamic State, Children Trained to Behead at an Early Age,” Huffington Post, July 19, 2015, www.huffingtonpost.com/entry/isis-training-ch ildren-beheading-in-under-islamic-state-children-trained-to-behead-at-early age_us_ 55ac2795e4b0d2ded39f45e9. “A sinister plot emerged that their captors, Boko Haram, ‘converted’ their young hostages to Islam and wanted to sell them into slavery,” Will Nigeria’s Girls Ever Be Saved?, dir. Erik Ortiz, NBC News, May 17, 2014, www.nbcnews.com/storyline/missing-nigeria-schoolgirls/will-niger ias-girls-ever-be-saved-whats-next-desperate-hunt-n107616. Also, “Boko Haram Fighters Are Known to Have Forced Their Kidnap Victims into Marriage, Rape, and Conscription as Suicide Bombers,” #BringBackOurGirls: Chibok Victim Found in Nigeria after 2 Years, Activist Says, dir. Alexander Smith, NBC News, May 16, 2016, www.nbcnews.com/storyline/ missing-nigeria-schoolgirls/bringbackourgirls-chibok-victim-found-nigeria-after-2-years-acti vist-says-n576056. See Elija Wolfson, “Child Abuse Allegations Plague the Hasidic Community,” Newsweek, March 3, 2016, www.newsweek.com/2016/03/11/child-abuse-allegations-hasidic-ultraorthodoxjewish-community-brooklyn-432688.html. Also, “[a]s with the FLDS, the ultra-Orthodox communities have put children at risk due to inadequate medical treatment, educational neglect, and mostly undeterred child sex abuse,” Marci A. Hamilton, “The Plight of Jewish Children in Ultra-Orthodox Jewish Communities and the Failure of Government and Pandering Politicians to Protect Them,” Verdict Justia, September 15, 2015, https://verdict.ju stia.com/2015/09/17/the-plight-of-children-at-risk-in-the-ultra-orthodox-jewish-communitiesand-the-failure-of-government-and-pandering-politicians-to-protect-them. “Public Hearing into the Yeshivah Centre and Yeshivah College Melbourne,” Royal Commission into Institutional Responses to Child Sex Abuse At Melbourne Public Hearing Notice www.child abuseroyalcommission.gov.au/case-study/a5fd40f7-d96c-4043–9801-d4490fba4188/case-study22,-february-2015,-melbourne (accessed July 20, 2016): 2–3. (Investigations into two religious institutions that are a part of the worldwide Hasidic Judaism sect – Chabad, Yeshivah Melbourne and Yeshivah Bondi – uncovered that children had been the victims of abuse at the hand of at least three individuals who were involved in activities run by these institutions, such as martial arts classes, religious programs, and overnight youth camps.) The most reliable archive on abuse within the Roman Catholic Church is Bishop Accountability, www.bishopaccountability.org. See also “Final Report HTML,” Royal Commission into Institutional Responses to Child Sexual Abuse Vol. 16 (2017): Book 2. Paul T. Brown and Flora Jessop, Church of Lies (San Francisco, CA: Jossey-Bass, 2009); Lisa Pulitzer and Elissa Wall, Stolen Innocence: My Story of Growing Up in a Polygamous Sect, Becoming a Teenage Bride, and Breaking Free of Warren Jeffs (New York: William Morrow, 2008); Carolyn Jessop and Laura Palmer, Escape (New York: Broadway, 2007). See Lynne Wallace, “Violent Sexual Abuse, Brainwashing and Neglect: What It’s Like to Grow Up in a Religious Sect,” Independent, September 1, 2007, www.independent.co.uk/ne

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cult,11 to name only a few. Specifically, the FLDS forces girls into prophetmandated polygamous marriages with much older men and abandons the boys who do not fully conform to the group, a move necessary in part to keep the numbers favorable to men seeking multiple wives.12 These organizations typically revert to theology and church autonomy rationales to excuse and explain the widespread sexual abuse and trivialization of children.13 In addition, numerous religious organizations have medically neglected and even let children die or be permanently disabled for religious reasons, including Christian Scientists, the Followers of Christ, and many others.14

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ws/uk/this-britain/violent-sexual-abuse-brainwashing-and-neglect-what-its-like-to-grow-up-ina-religious-sect-401035.html. See generally “32 Children Seized from Tony Alamo Christian Ministries, over Alleged Beatings, Sexual Abuse,” Fox News, December 4, 2008, www.foxnews.com/story/2008/12/04/ 32-children-seized-from-tony-alamo-christian-ministries-over-alleged-beatings.html. Brent Jeffs, Lost Boy (New York: Broadway, 2009); Marci A. Hamilton, God vs. the Gavel: The Perils of Extreme Religious Liberty, 2nd edn. (Cambridge: Cambridge University Press, 2014), 73–74. Marci A. Hamilton, “The ‘Licentiousness’ in Religious Organizations and Why It Is Not Protected under Religious Liberty Constitutional Provisions,” William and Mary Bill of Rights Journal 18, no. 4 (2010): 953–54; Marci A. Hamilton, “The Rules against Scandal and What They Mean for the First Amendment’s Religion Clauses,” Maryland Law Review 69, no. 1 (2009): 115–18. Ramani v. Chabad of Southern Nev., Inc., 2011 Nev. Unpub. LEXIS 497 (Nev. 2011) (No. 49341); Joinder of the Roman Catholic Bishop of Las Vegas and of the Roman Catholic Bishop of Reno, Ramani v. Segelstein, No. 49341 (Nev. October 12, 2009); Sharon Otterman and Ray Rivera, “Ultra-Orthodox Shun Their Own for Reporting Child Sexual Abuse,” New York Times, May 9, 2012, www.nytimes.com/2012/05/10/nyregion/ultra-orthodoxjews-shun-their-own-for-reporting-child-sexual-abuse.html?pagewanted=all&_r=0. (Members of the ultra-Orthodox community were shunned after reporting child molestation by religious leaders, on the basis that there was an ancient prohibition against mesirah, the turning in of a Jew to non-Jewish authorities, and that publicly airing allegations against fellow Jews is chillul Hashem, a desecration of God’s name.) Hamilton, God vs. the Gavel: Perils, 63–73; Paul Offit, Bad Faith: When Religious Belief Undermines Modern Medicine (New York: Basic, 2015); Lundman v. First Church of Christ, 1996 U.S. LEXIS 760 (U.S. 1996). (Death of child due to untreated diabetes by Christian Scientist.) State v. Neumann, 2013 WI 58 (Wis. 2013). (Death of child due to untreated diabetes through online faith-healing.) Faith Healing Churches Linked to Two Dozen Child Deaths, dir. Vince Lattanzio, NBC Philadelphia, May 24, 2013, www.nbcphiladelphia.com/news/local/FaithHealing-Churches-Linked-to-Two-Dozen-Child-Deaths-208745201.html. (Faith Tabernacle and First Century Gospel Church in Philadelphia.) Cameron Rasmusson, “Idaho’s ‘Faith’ Healing Dilemma,” Boise Weekly, March 16, 2016, www.boiseweekly.com/boise/idahos-faith-healing-dil emma/Content?oid=3739400. (Deaths of children in Idaho.) Sarah Jane Tribble, “Measles Outbreak in Ohio Leads Amish to Reconsider Vaccines,” NPR, June 24, 2014, www.npr.org/sec tions/health-shots/2014/06/24/323702892/measles-outbreak-in-ohio-leads-amish-to-reconsider-vac cines. (Amish failure to immunize leading to outbreaks of previously eradicated childhood diseases, e.g., measles.) Woman Who Blames Parents for Health Woes Looks to Shut Down Faith Healers, dir. Holly McKay, Fox News, April 21, 2016, www.foxnews.com/

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These facts have created severe cognitive dissonance for many in the United States, as horrific human rights violations have been reported against a backdrop of trust in religious actors. “Cognitive dissonance” is the “psychological conflict resulting from incongruous beliefs and attitudes held simultaneously,”15 and is often experienced as discomfort, which can lead the person to choose various routes away from the discomfort, for example, denial or action.16 These sickening reports have been disclosed simultaneously with a multiplication of demands for extreme religious liberty by legal scholars in the United States, as well as national advocacy organizations like the Becket Fund and the Alliance Defending Freedom, who routinely take no account of the costs they externalize onto others, even children. 13.1 RELIGIOUS LIBERTY APPROACHES IN THE UNITED STATES: ABSTRACT ACCOMMODATION MANDATES (RFRA) VERSUS THE FIRST AMENDMENT

While it is beyond the scope of this chapter, it is necessary to at least sketch the contours of US religious liberty jurisprudence to explain how children could be more at risk today than they were before. Since 1990, religious entities and their defenders have demanded near-absolute rights of accommodation, for example, the right never to do business with a same-sex couple based on religious belief17 or the right to raise children without interference by the state even when the child’s life is at stake.18 The advocates’ internal premise is that religiously motivated conduct is virtually unassailable, and they pursued statutes like the Religious Freedom Restoration Act of 1993 (RFRA)19 at the

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us/2016/04/21/idaho-woman-blames-parents-for-health-woes-seeks-change-in-law-protecting-faithhealers.html. (Debilitating lung disease due to lack of medical treatment from LDS parents.) Merriam-Webster, www.merriam-webster.com/dictionary/cognitive%20dissonance (accessed July 29, 2016). David M. Amodio, Cindy Harmon-Jones, and Eddie Harmon-Jones, “Action-Based Model of Dissonance: A Review, Integration, and Expansion of Conceptions of Cognitive Conflict,” Advances in Experimental Social Psychology 41 (2009): 119–66. See, e.g., the Mississippi Religious Freedom Restoration Act, Miss. Code. Ann. § 11–61-1 (West), which I discuss in Marci A. Hamilton, “The Lessons of the New Mississippi RFRA That Shed Light on the Hobby Lobby and Conestoga Wood Cases Pending at the Supreme Court,” Verdict Justia, May 15, 2014, https://verdict.justia.com/2014/05/15/lessons-new-missis sippi-rfra-shed-light-hobby-lobby-conestoga-wood-cases-pending-supreme-court. Rasmusson, “Idaho’s.” The Religious Freedom Restoration Act of 1993, found in 42 U.S.C. § 2000bb through 42 U.S. C. § 2000bb-4 (also known as RFRA), provides that the government may not place a substantial burden on one’s exercise of religion unless it proves that it is in the furtherance of a compelling interest and that it is the least restrictive means of furthering this interest.

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federal and then state levels under the assumption that religion can do no harm. When President William Jefferson Clinton signed the RFRA, there was a rosy patina of unity between religious and civil rights groups, who supported supposedly old-fashioned religious liberty. In his signing remarks, President Clinton said: We all have a shared desire here to protect perhaps the most precious of all American liberties, religious freedom. Usually the signing of legislation by a President is a ministerial act, often a quiet ending to a turbulent legislative process. Today this event assumes a more majestic quality because of our ability together to affirm the historic role that people of faith have played in the history of this country and the constitutional protections those who profess and express their faith have always demanded and cherished.20

These same groups had lobbied for the bill as though it was a benign addition to the law and a simple return to prior case law. There was a predominant presumption, though not entirely unchallenged,21 that religious groups would do no harm. The religious lobbyists’ public relations combined with this false sense of safety led members of Congress to believe that there would be no major change in religious liberty protections if it were passed.22 In fact, the RFRA is an extreme reinterpretation of aspects of some prior case law, not a return to prior cases. Moreover, when reenacted in 2000, it was built on a hidden agenda: a drive by conservative Christians to secure a right to discriminate against unmarried couples, single mothers, and eventually samesex couples in the housing context.23 Because of its broad and blind scope, the RFRA appeared desirable on its surface but in fact put at risk many vulnerable individuals other than these categories of marital status. Before the RFRA, according to a majority of the Supreme Court, the “vast majority” of the Supreme Court’s First Amendment free exercise cases recognized an absolute right to believe what one chooses but an obligation to abide by neutral, generally applicable laws.24 But laws targeted negatively at a particular religious entity have been subjected to more searching judicial 20

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President Bill Clinton, “Remarks on Signing the Religious Freedom Act of 1993, November 16, 1993,” www.presidency.ucsb.edu/ws/?pid=46124 (accessed July 28, 2016). The Religious Freedom Restoration Act of 1991: Hearings on H.R. 2797 before the Subcomm. On Civil and Constitutional Rights of the House Comm. On the Judiciary, 102nd Cong. 385– 87 (1992). (Statement of Professor Ira C. Lupu.) Hamilton, God vs. the Gavel: Perils, 7–8, 346. (Chart of expanding religious liberty tests.) Hamilton, God vs. the Gavel: Perils, 232–36. “[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or

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scrutiny.25 In other words, in the United States, faith has not justified avoiding laws that apply to every other person taking the same action. For example, if someone is driving to a religious service and violates the speed limit, there is no religious liberty defense to the speeding ticket even if the process of the police writing the ticket means one misses the service altogether. The same analysis applies to a church building that does not have legally mandated fire prevention measures. In both cases, the neutral, generally applicable law applies to the believer regardless of the involvement of even worship. The First Amendment’s doctrine, however, has not only contributed to the neutral rule of law in a religiously diverse society, but also paved the way for permissive legislative accommodations. When the Court rejected a First Amendment-mandated exemption for the use of an illegal drug, peyote, in 1990, it also pointed to the long tradition of legislative accommodation for specific religious practices. The result was that peyote use was then permitted for religious uses in many states and at the federal level. Religious lobbyists have not been shy in demanding exemptions to laws that are intended to protect children from harm, for example, faith-healing exemptions to medical neglect laws, exemptions from mandated reporting of child sex abuse (and neglect), and confessional exceptions to a duty to protect a child when the information arrives via a confession.26 Since the early 1960s, religious litigants have worked assiduously to avoid the application of laws that are neutral and generally applicable in a wide array

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prescribes) conduct that his religion prescribes (or proscribes),” Employment Div. v. Smith, 494 U.S. 872, 879–80 (U.S. 1990). (Internal quotes omitted.) While I am persuaded that the Court correctly summarized its jurisprudence, pre-Smith cases also reflect this reading of the Free Exercise Clause, e.g., Bowen v. Roy, 476 U.S. 693 (1986); Goldman v. Weinberger, 475 U. S. 503 (1986); United States v. Lee, 455 U.S. 252 (1982); Cantwell v. State of Connecticut, 310 U. S. 296 (1940), as I discuss inter alia Marci A. Hamilton, “Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse,” Cardozo Law Review 32, no. 5 (2011): 1671–82. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (U.S. 1993). See generally Child USA, www.childusa.org; US Department of Health and Human Services, Children’s Bureau, “Clergy as Mandatory Reporters of Child Abuse and Neglect,” Child Welfare Information Gateway, 2016, www.childwelfare.gov/pubPDFs/clergymandated.pdf; Julie Love Taylor, “Parents of Minor Child v. Charlet: A Threat to the Sanctity of Catholic Confession?,” Louisiana Law Review (October 22, 2014), https://lawreview.law.lsu.edu/2014/ 10/22/parents-of-minor-child-v-charlet-a-threat-to-the-sanctity-of-catholic-confession/; Jack Jenkins, “Unholy Secrets: The Legal Loophole That Allows Clergy to Hide Sexual Abuse,” ThinkProgress, August 8, 2016, https://thinkprogress.org/unholy secrets-the-legal-loophole-tha t-allows-clergy-to-hide-child-sexual-abuse-9a6899029eb5#.ksudm7wxh; Marci A. Hamilton, “The Universal Need for the Mandatory Reporting of Child Sex Abuse,” Verdict Justia, November 11, 2011, https://verdict.justia.com/2011/11/17/the-universal-need-for-the-mandatoryreporting-of-child-sexual-abuse.

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of contexts, including social security taxes,27 child labor laws,28 and military dress requirements,29 among others. They sought a doctrine that would presume believers are exempt from any law in conflict with a believer’s faith. The Supreme Court routinely interpreted the First Amendment to reject such claims. Then, in 1990, the Court definitively rejected their demands for extreme religious liberty in a case involving the use of an illegal drug during religious services, and the religious entities, who at that time were joined by civil rights organizations, pivoted from the Supreme Court and turned their attention to Congress to provide the hyper-protection for religious liberty against all laws that they had never obtained from the Court. Congress acquiesced and the RFRA was imposed on the United States after President Clinton signed the bill into law. The RFRA layered a statutory, extreme free exercise right onto the First Amendment and the large network of legislative accommodations, and thereby created a legal system in which it is presumed that the religious entity should be accommodated in all contexts. RFRA imposes an extremely heavy burden on the government to justify all laws, even neutral and generally applicable laws. The result was that religious entities became empowered to harm others in ways never before contemplated by the First Amendment cases.30 13.2 CHILDREN AT RISK

A significant at-risk cohort in the religious setting is, ironically or inevitably depending on one’s view of religion, children. The RFRA has been invoked in one case after another threatening children,31 and succeeded in granting a 27

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United States v. Lee, 455 U.S. 252 (1982). (No First Amendment free exercise right to avoid social security taxes.) Prince v. Massachusetts, 321 U.S. 158 (1944). (No First Amendment free exercise right to avoid child labor laws.) Goldman v. Weinberger, 475 U.S. 503 (1986). (No First Amendment free exercise right for active military to wear religious headgear.) The history of free exercise in the United States is more fully explained in Hamilton, God vs. the Gavel: Perils. Perez v. Paragon Contrs., Corp., 2014 U.S. Dist. LEXIS 128339 (D. Utah September 11, 2014). (RFRA precluded need for witness to testify regarding investigation of potential child labor violations on a pecan ranch.) United States v. Brown, 2007 WL 2746608 (W.D. Ark. September 18, 2007) aff’d, 312 F. App’x 828 (8th Cir. 2009). (RFRA invoked to obtain right to grow and distribute marijuana and peyote and distribute them to the sick, including children.) In re Three Children, 24 F.Supp.2d 389 (D. N. J. 1998). (RFRA invoked to block Orthodox Jewish children from testifying before a federal grand jury regarding criminal activity by parents.) United States v. Dee, 122 F.3d 1074 (9th Cir. 1997). (RFRA invoked for right

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right to avoid the child labor laws.32 The RFRA formulation cuts a broad swath in the law. In the child labor case, the RFRA nearly shut down the case and wasn’t even raised by the parties but rather by the judge sua sponte. The RFRA also was vigorously asserted as a defense to the fraudulent conveyance laws in a federal bankruptcy filed by the Milwaukee Archdiocese to avoid compensating more than 500 child sex abuse victims. This RFRA defense ultimately lost in the Court of Appeals, but the victims were dragged through years of litigation that would not have been imagined without the RFRA.33 Finally, the Indiana RFRA was invoked by a mother who beat her young child with a hanger because she believed “spare the rod, spoil the child.” She received a light sentence.34 Yet concerns about child abuse, child brides, neglect, and harm have not yielded serious attention from leading legal scholars or the most prestigious law reviews. Nor has child endangerment been enough to persuade lawmakers and policy makers that RFRA and state RFRAs are bad public policy, or that there should be exemptions from all such extreme religious liberty regimes to ensure child protection.35 The issue that finally slowed blind trust in the RFRA implicated not children but adults – LGBTQ adults and women in need of reproductive

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of church minister to practice his religion during his supervised release after pleading guilty to sexually abusing a minor.) Jeffs v. State, No. 03–10-00272-CR, 2012 WL 601846 (Tex. App. February 24, 2012). (RFRA invoked to prevent search of ranch in case involving child sex assault.) Thopsey v. Bridgeport Roman Catholic Diocesan Corp., No. NNHCV106009360S, 2012 WL 695624 (Conn. Super. Ct. February 15, 2012). (State RFRA invoked to permit defendant priest and diocese to block production of evidence.) In re Watson, 309 B.R. 652 (B.A.P. 1st Cir. 2004) aff’d, 403 F.3d 1 (1st Cir. 2005). (RFRA invoked to permit parents who have agreed to a Chapter 13 bankruptcy plan to repay creditors to use funds instead to send child to private religious school.) A.H. ex rel. Hernandez v. Northside Indep. Sch. Dist., 916 F. Supp. 2d 757 (W.D. Tex. 2013). (Federal and state RFRA invoked to argue that student should not have to wear a Smart ID badge in violation of faith.) A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248 (5th Cir. 2010). (RFRA invoked by Native American student against policy prohibiting long hair on males.) Ex parte Snider, 929 So. 2d 447 (Ala. 2005). (State RFRA invoked to avoid change in custody after mother moved to remote rural area to engage in missionary work.) See Perez v. Paragon Contrs., Corp., 2014 U.S. Dist. LEXIS 128339 (D. Utah September 11, 2014). Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731 (7th Cir. Wis. 2015). (Application of Bankruptcy Code does not violate church’s free exercise rights under RFRA or First Amendment.) Vic Ryckaert, “Son Had 36 Bruises. Mom Quoted the Bible as Defense,” IndyStar, August 31, 2016, www.indystar.com/story/news/crime/2016/08/31/son-had-36-bruises-mom-quoted-bibledefense/88998568/. Marci A. Hamilton, “The Case for Evidence-Based Free Exercise Accommodation: Why the Religious Freedom Restoration Act Is Bad Public Policy,” Harvard Law and Policy Review 9, (2015): 129–35.

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health care. When the RFRA formula revealed itself as a means of discriminating against LGBTQ adults,36 only then did powerful forces in society step up to fight new state RFRAs and to amend the federal and state RFRAs to prevent harm to adults. LGBTQ, civil rights organizations, and a significant portion of the business community mobilized to their defense. The Arizona and Georgia RFRAs were vetoed,37 the Indiana RFRA was scaled back,38 and the West Virginia RFRA failed.39 In the same era this version of religious liberty looked problematic when a for-profit corporation, Hobby Lobby, demanded under the RFRA a right to curtail female employees’ reproductive health coverage based on the owners’ religious lights. Civil rights organizations from the ACLU to Americans United for Separation of Church and State publicly denounced this use of the RFRA and began to lobby against the state RFRAs and their application in certain scenarios.40 In Congress, the Do No 36

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Marci Hamilton, “Indiana Leads the Way with an Outrageous RFRA Proposal,” Verdict Justia, January 21, 2016, https://verdict.justia.com/2016/01/21/indiana-leads-the-way-with-anoutrageous-rfra-proposal-again; Marci Hamilton, “The Insatiable Demand for Extreme Religious Liberty under the RFRAs, Part II,” Verdict Justia, March 20, 2014, https://verdict .justia.com/2014/03/20/insatiable-demand-extreme-religious-liberty-rfras-part-ii. The Arizona RFRA, Arizona SB 1086 or A.R.S. § 41–1493.01, was vetoed by Governor Jan Brewer, who described it as a “broadly worded bill that could result in unintended consequences.” Arizona Gov. Jan Brewer Vetoes Controversial Anti-Gay Bill SB 1086, dir. Halimah Abdullah and Catherine E. Shoichet, CNN, February 26, 2014, www.cnn.com/2014/02/26/ politics/arizona-brewer-bill/. The Georgia RFRA, HB 757, was a “bill to be entitled an Act to protect religious freedoms . . . so as to provide that religious officials shall not be required to perform marriage ceremonies in violation of their legal right to free exercise of religion.” See Georgia Legislative Navigator, HB 757, http://legislativenavigator.myajc.com/#bills/HB/757 (accessed July 28, 2016). It was vetoed by Governor Nathan Deal, who stated that it did not “reflect Georgia’s welcoming image as a state of warm, friendly, and loving people.” (Internal quotes omitted.) Greg Bleustein, “Nathan Deal Vetoes Georgia’s ‘Religious Liberty’ Bill,” AJC, April 9, 2016, http://politics.blog.ajc.com/2016/03/28/breaking-nathan-deal-will-veto-geor gias-religious-liberty-bill/. Indiana’s initial religious liberty bill, Indiana S.B. 101, was revised in order to ensure that sexual orientation and gender identity would be protected. Tony Cook, “Indiana Governor Signs Amended ‘Religious Freedom’ Law,” USA Today, April 2, 2015, www.usatoday.com/story/news/ nation/2015/04/02/indiana-religious-freedom-law-deal-gay-discrimination/70819106/. The law “prohibits a governmental entity from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest.” “Senate Bill 101,” IGA, https://iga.in.gov/legislative/2015/bills/senate/101 (accessed July 28, 2016). Erin Beck, “WV Senate Kills ‘Religious Freedom’ Bill,” Charleston Gazette Mail, March 2, 2016, www.wvgazettemail.com/news/20160302/wv-senate-kills-religious-freedom-bill. Each of these organizations, which fully supported the RFRA at its inception, have now embraced a mission to criticize the state RFRAs and to lobby against religious liberty claims against same-sex couples and LGBTQ. The American Civil Liberties Union (ACLU) has

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Harm Act was introduced to carve out certain elements of the RFRA.41 (It is my view that a wholesale repeal of the RFRA that reinstates in full the First Amendment is the best policy choice, but has not yet been politically feasible in the United States, largely due to the pandering of elected officials to politically powerful – and even some not so powerful – religious entities.) The push for the Do No Harm Act was almost exclusively for the benefit of the adult issues mentioned earlier. Child protection was never a priority and had to be brought into the discussion; it was not initially embraced by those at the table. Eventually, in large part due to LGBTQ concerns about the conversion therapy movement, child protection provisions were included. The Do No Harm Act never would have been introduced solely for the protection of children, once again showing how child protection in the religious context is often a second-order concern. It is also unlikely to be passed in a Republican-controlled White House, House, and Senate. After the election of President Donald Trump, right-wing Christians pursued child-endangering extreme religious liberty with a vengeance, introducing bills that permit statepaid believers, whether individuals or organizations, to refuse to provide social services to same-sex couples and gay children.42 Children have been subject to increasing protections in the law, even visa`-vis their parents. To be sure, there is a long history of deference to parents on childrearing, but that power has been reduced to a degree as children have emerged from property status to rights-holding

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protested the use of religion to discriminate against LGBTQ people, stating that “everyone is entitled to their own religious beliefs, but when you operate a business or run a publicly funded social service agency open to the public, those beliefs do not give you a right to discriminate.” See ACLU, “The ACLU’s Campaign to End the Use of Religion to Discriminate,” www.aclu.org/feature/using-religion-discriminate (accessed July 30, 2016). The Americans United for the Separation of Church and State launched the “Protect Thy Neighbor” campaign to “prevent the use of religion to discriminate against and otherwise cause harm to individuals including religious objection to marriages and religious-based restrictions on women’s healthcare.” See Americans United, “Marriage and Reproductive Rights,” www.au.org/issues/marriage-reproductive-justice-other-privacy-issues (accessed July 30, 2016). The Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (U.S. 2014), that the protection of the RFRA extended to religious business owners and that therefore, such owners were exempted from providing contraceptives and abortifacients coverage to their employees. The “Do No Harm Act,” H.R. 5272, was introduced in order to “clarify that no one can seek religious exemption from laws guaranteeing fundamental civil and legal rights.” See Lauretta Brown, “‘Do No Harm Act’ Would Forbid Religious Objection to ‘Any Healthcare’ Service,” CNSNews (May 23, 2016), www.cnsnews.com/news/article/lauretta-brown/do-noharm-act-would-amend-rfra-prevent-discrimination-forbid-religious. Marci A. Hamilton, “The Children Be Damned. . .,” Verdict Justia, March 30, 2017, https:// verdict.justia.com/2017/03/30/children-damned.

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individuals.43 Corporal punishment is now outlawed in a majority of states,44 parents can be liable for leaving their children alone or with a young sibling under a theory of neglect or failure to supervise,45 and many states place limits on the ability of parents to deny medical care, such as vaccination.46 The changing legal status of children challenges not only the power of parents to harm children, but the power of religious organizations to do so. The failure to prioritize child protection is not limited to Congress or the states, but is also a part of the academic universe. 13.3 LEGAL SCHOLARSHIP’S NEGLECT OF CHILDREN IN RELIGIOUS SETTINGS

There is a dearth of attention paid by law professors in general and law and religion scholars specifically to child abuse and neglect in religious settings, despite the epidemic of child abuse and neglect and widespread media coverage. Professor James Dwyer47 made this point in 1996: Legal commentators . . . have failed to perceive the problem of equal protection for children that such [religious] exemptions create. Instead, both courts and commentators have analyzed religious exemptions principally in terms of the religious free exercise rights of the parents who receive the exemptions, and in terms of the equal protection rights of other parents – those who object to a particular child welfare law but do not fall within the law’s exemption because they do not have the right sort of beliefs or religious affiliation. Occasionally legal commentators, troubled by the consequences of religious exemptions for the welfare of children, assert on the children’s behalf moral claims to state protection of their welfare. They typically balance such claims

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James G. Dwyer, “A Constitutional Birthright: The State, Parentage, and the Rights of Newborn Persons,” UCLA Law Review 56, no. 4 (2009): 755–58. This has been a cause for alarm for some. Bruce Hafen, “Children’s Liberation and the New Egalitarianism: Some Reservations about Abandoning Youth to Their ‘Rights,’” Brigham Young University Law Review 1976, no. 3 (1976): 605, 628. Social Policy Report, “Corporal Punishment in U.S. Public Schools: Prevalence, Disparities in Use, and Status in State and Federal Policy,” Society for Research in Children Development, 2016, www.srcd.org/sites/default/files/documents/spr_30_1.pdf. “Leaving Your Child Home Alone,” Child Welfare Information Gateway, September 2013, www.childwelfare.gov/pubPDFs/homealone.pdf. Children’s Healthcare, “Religious Exemptions to Medical Treatment of Children in State Civil & Criminal Codes,” http://childrenshealthcare.org/?page_id=24. James G. Dwyer, “The Good, the Bad, and the Ugly of Employment Division v. Smith for Family Law,” Cardozo Law Review 32, no. 5 (2011): 1781–82.

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against parents’ constitutional rights in order to argue that courts should limit or eliminate the religious exemptions.48

The statistics show that, nearly twenty years later, there is still a lack of attention paid to the issues. From 2005 to 2015, the top ten law reviews49 published 1,909 scholarly articles. Out of those articles in elite law reviews, only twelve dealt significantly with children’s issues or children,50 and only one specifically focused on children and religious liberty.51 That accounts for 0.6 percent of all articles published during the relevant decade. Among the twelve articles focusing on children’s issues, seven analyzed the issues in light of adults’ needs, while five argued in favor of treating children’s interests as distinctive from adults’.52 Only one article discussed religious liberty and the rights of the child.53 48

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James G. Dwyer, “The Children We Abandon: Religious Exemptions to Child Welfare and Education Laws as Denials of Equal Protection to Children of Religious Objectors,” North Carolina Law Review 74, no. 5 (1996): 1321, 1324. This is an arbitrary choice but one that in my view does not undermine my central point. The top ten law reviews were chosen according to the US News and World Report rankings of law schools: Yale, Harvard, Stanford, Columbia, University of Chicago, New York University, University of Pennsylvania, Duke University, University of California at Berkeley, and the University of Virginia. It is undeniable that each of these is a leading law school with top-tier students who produce high-level journals. The tally per law review is as follows: Yale (1), Kristin A. Collins, “Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation,” Yale Law Journal 123 (2014): 2134; Harvard (0); Stanford (1), Clare Huntington, “Postmarital Family Law: A Legal Structure for Nonmarital Families,” Stanford Law Review 67 (2015): 167; Columbia (1), Carol Sanger, “Infant Safe Haven Laws: Legislating in the Culture of Life,” Columbia Law Review 106 (2006): 753; University of Chicago (0); New York University (3), Clare Huntington, “Staging the Family,” New York University Law Review 88 (2013): 589; Goodwin Liu, “Interstate Inequality in Educational Opportunity,” New York University Law Review 81 (2006): 2044; Eugene Volokh, “Parent-Child Speech and Child Custody Speech Restrictions,” New York University Law Review 81 (2006): 631; University of Pennsylvania (1), Laura R. Rosenbury, “Between Home and School,” University of Pennsylvania Law Review 155 (2007): 833; Duke University (2), Doriane Lambelet Coleman, “The Legal Ethics of Pediatric Research,” Duke Law Journal 57 (2007): 517; Jessie Hill, “Constituting Children’s Bodily Integrity,” Duke Law Journal 64 (2015): 1295; University of California at Berkeley (2), James E. Ryan, “A Constitutional Right to Preschool?,” California Law Review 94 (2006): 49; Camille Gear Rich, “Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law,” California Law Review 101 (2013): 609; and the University of Virginia (1), Ethan Rutt, “The New Education Malpractice Litigation,” Virginia Law Review 99 (2013): 419. They were also disproportionately written by female authors, but that is another topic for another day. Kimberly A. Yuracko, “Education off the Grid: Constitutional Constraints on Homeschooling,” California Law Review 96, no. 1 (2008): 123. The following is drawn from the articles listed in footnote 50. The articles by Collins, Huntington (both), Sanger, Volokh, Rosenbury, and Rich involved children, but their premises were focused on the law’s interactions with adults. The articles by Liu, Coleman, Hill, Ryan, and Rutt addressed issues more centrally focused on the needs of children as independent rights-holders. Supra n. 49.

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A review of the decade 2005–15 in the law and religion specialty review, The Journal of Law and Religion, also shows de minimis interest in children’s issues in religious settings. During the 2005–15 decade, the Journal published a total of 4 articles out of 140, or 2.8 percent focusing on religion and children’s issues, none before 2008. The four articles address: (1) medical neglect statutes and faith-healing exemptions;54 (2) Catholic clergy sex abuse;55 (3) Jewish child custody doctrine;56 and (4) child abandonment in the late Roman Empire.57 When law and religion scholars do take up the issues involving violations of children, they tend to trivialize the issues and to assume facts that are inconsistent with the most recent research into child abuse and neglect. For example, highly regarded law and religion scholar and RFRA apologist Douglas Laycock addresses the child sex abuse cases by making false factual assumptions: Many of the causation claims in the sex abuse cases are vaguely impressionistic. Everything bad that ever happened in this plaintiff’s life after the age of fifteen was all because of that one priest who abused him as an adolescent. Sometimes it may even be true. But I don’t think it’s true in many of these cases.58

Setting aside its condescending tone, this statement is deeply troubling in its failure to grasp the scientific evidence of devastating harm that child sex abuse visits on many, though certainly not all, individuals.59 It is also troubling in its narrow focus in terms of defining the issue of child sex abuse and religious entities. For example, a majority of sex abuse victims are female, not male,60 and Catholic priests are far from the only religious actors who sexually abuse children. The further assumption that few claims are true or verifiable is

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Sana Loue, “Parentally Mandated Religious Healing for Children: A Therapeutic Justice Approach,” Journal of Law and Religion 27 (2011–12): 397–422. John F. Wirenius, “Clerical Immunity, Scandal, and the Sex Abuse Crisis in the Roman Catholic Church,” Journal of Law and Religion 27 (2011–12): 423–94. Yehiel S. Kaplan, “Child Custody in Jewish Law: From Authority of the Father to the Best Interest of the Child,” Journal of Law and Religion 24 (2008–09): 89–122. Joshua C. Tate, “Christianity and the Legal Status of Abandoned Children in the Late Roman Empire,” Journal of Law and Religion 24 (2008–09): 123–41. Douglas Laycock, Religious Liberty (Grand Rapids, MI: Eerdmans, 2011), 2:334, 644–45. (Referring to “phony claims.”) Delphine Collin-Vezina, Isabelle Daigneault, and Martin Hebert, “Lessons Learned from Child Sexual Abuse Research: Prevalence, Outcomes, and Preventive Strategies,” Child and Adolescent Psychiatry and Mental Health (July 24, 2013), http://sol-reform.com/Lessons-learn ed-from-child-sexual-abuse-research-prevalence-outcomes-and-preventive-strategies.pdf. National Sexual Violence Resource Center, “Statistics about Sexual Violence,” 2015, www .nsvrc.org/sites/default.

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inconsistent with the science of child sex abuse and traumatology.61 It is also at odds with the grand jury reports that have investigated seriatim sex abuse in institutions, especially Catholic dioceses,62 which have shown not only that false claims are rare but also that the effects of child sex abuse often negatively affect a survivor over a lifetime. The medical community now views trauma as a lifespan medical issue, not as a short-term event with short-term consequences.63 13.4 THE FACTORS THAT MAY DRIVE SCHOLARLY INTEREST AWAY FROM THE ABUSE AND NEGLECT OF CHILDREN IN RELIGIOUS SETTINGS

This chapter highlights the paucity of scholarship and attention paid to children’s interests in law and religion scholarship, despite the copious 61

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The Leadership Council on Child Abuse and Interpersonal Violence, “How Often Do Children’s Reports of Abuse Turn Out to be False?,” www.leadershipcouncil.org/1/res/csaacc.html (accessed July 29, 2016). (Studies indicate that false reports were rare and that if anything, children tended to understate the extent of abuse they experienced.) Debra Allnock, “Children and Young People Disclosing Sexual Abuse: An Introduction to the Research,” Child Protection Research Department NSPCC Fresh Start, April 2010, www.ns pcc.org.uk/Inform/research/briefings/children_disclosing_sexual_abuse_pdf_wdf75964.pdf. See also David P. H. Jones and others, “Erroneous Concerns about Child Sexual Abuse,” Child Abuse and Neglect 24 (2000): 149–57. (Erroneous concerns about sexual abuse of children are uncommon.) See also Marci A. Hamilton, “Constitutionality of HB 1947,” Child USA, June 13, 2016; Marci A. Hamilton, “Hawaii H.B. 2034 HD 2,” Child USA, March 19, 2014. In re: County Investigating: Grand Jury XXIII, MISC. NO. 0009901–2008 (Court of Common Pleas, First Judicial District of Pennsylvania 2011); In re: County Investigating Grand Jury of September 17, 2003, MISC. NO. 03–00-239 (Court of Common Pleas, First Judicial District of Pennsylvania 2003); Office of Attorney General, Commonwealth of Pennsylvania, A Report of the Thirty-Seventh Statewide Investigating Grand Jury (2015). See also “Jerry Sandusky Grand Jury Report,” Washington Post, November 5, 2011, www.washingtonpost.com/wp-srv/sports/ documents/sandusky-grand-jury-report11052011.html (accessed July 31, 2016). Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015); Commission of Investigation Report into the Catholic Archdiocese of Dublin (July 2009), www.justice.ie/en/JELR/DACOI%20Part%201%20beginning.pdf/Files/; Bishop Accountability, “Report on the Investigation of the Diocese of Manchester,” March 3, 2003 www.bishop-accountability.org/resources-files/reports/NewHampshireAGReport.pdf; Bishop Accountability, “Report of April ‘E’ 2002 Westchester County Grand Jury Concerning Complaints of Sexual Abuse and Misconduct against Minors by Members of the Clergy,” June 19, 2002; Bishop Accountability, “Suffolk County Supreme Court Special Grand Jury May 6, 2002 Term1D Grand Jury Report, CPL 190.85(1)(C),” May 6, 2002, www.bishop-accountabil ity.org/reports/2003_02_10_SuffolkGrandJury/Suffolk_Full_Report.pdf. Steven Berkowitz and John Northrup, “Stress, Trauma, and the Developing Brain,” in Clarence Watson and Kenneth Weiss, eds., New Applications for Forensic Psychiatry (New Haven, CT: Yale University Press, 2015).

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information and examples flowing into the public square. I cannot presume to know why any one professor would not focus on these issues or study the related scientific research. The choice of scholarly focus is part of academic freedom, and I am not suggesting that professors should be assigned topics. Yet this lacuna deserves to be examined. These issues should inform doctrinal, policy, and legal debates because children are being subjected to inhumane treatment in many religious settings. There are no studies to my knowledge that have attempted to explain this blind spot of law and religion professors, but there are a number of interesting avenues for examination, which I will treat as hypotheses for future investigation. 13.4.1 A Failure of Public Education on the Facts of Child Abuse and Neglect The curious failure to identify or deal with child abuse and neglect in religious settings is not limited to law professors, and they, of course, are part of the larger society. The law professors’ ignorance about child sex abuse must be attributable at least in part to the larger culture’s lack of knowledge. There was a time when stories of child sex abuse rarely made the news, and it was widely assumed that it happened relatively infrequently. Therefore, it is worthwhile examining how it is that the larger culture has also failed in this arena until recently. No doubt much of the surprise about the sex abuse scandals across organizations including the religious is due to a lack of knowledge about the prevalence of child sex abuse, its characteristics, and the ways in which children “cope” with abuse. At this point, there has been even less public education aimed at religiously motivated medical neglect. 13.4.2 Denial of and Repugnance of Sex Abuse Generally In her ground-breaking book, Trauma and Recovery: The Aftermath of Violence – From Domestic Abuse to Political Terror, Dr. Judith Herman describes the “study of psychological trauma” as “one of episodic amnesia.” The amnesia is caused by the difficulty of com[ing] face to face with human vulnerability in the natural world and with the capacity for evil in human nature. To study psychological trauma means bearing witness to horrible events. When the events are natural disasters or “acts of God,” those who bear witness sympathize readily with the victim. But when the traumatic events are of human design, those who bear witness are caught in the conflict between the victim and the perpetrator. It is morally impossible to remain neutral in this conflict. The bystander is forced to take sides . . . It is very tempting to take the side of the perpetrators. All the

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perpetrator asks is that the bystander do nothing. He appeals to the universal desire to see, hear, and speak no evil. The victim, on the contrary, asks the bystander to share the burden of pain. The victim demands action, engagement, and remembering.64

Further, child sex abuse is repugnant and in direct conflict with our shared ideals for family and childhood, which is central to the cognitive dissonance in this field. Therefore, there has been tremendous denial of the problem, even when the outlines of the epidemic were quite clear. The dialectical relationship between the child and the culture also has contributed to the lack of attention to this issue. Victims typically were isolated with each assuming he or she was the “only one.” It is difficult to imagine a more powerless individual than the child being groomed and then sexually assaulted or abused in a society that cannot see the child as a sex abuse victim due to denial and repugnance. 13.4.3 The Social Dynamics of Child Sex Abuse A majority of child sex abusers are those who are trusted family members or acquaintances, not the now-outdated “Stranger Danger.” In the words of former FBI expert Kenneth Lanning, [e]xcept for child prostitution, most sexual-exploitation-of-children cases in the United States involve acquaintance molesters who rarely use physical force on their victims . . . Although a variety of individuals sexually abuse children, preferential-type sex offenders, and especially pedophiles, are the primary acquaintance sexual exploiters of children.65

For each abuser, there may also be very large numbers of child victims, which means the failure to act with respect to one report by a child can geometrically increases the harm: “A preferential-acquaintance child molester might molest 10, 50, hundreds, or even thousands of children in a lifetime, depending on the offender and how broadly or narrowly child molestation is defined.”66 The lack of knowledge is also due to the victims’ barriers to disclosure. Trauma works in myriad and often negative ways on a child’s health and wellbeing, often with lifetime effects.67 Children do not fully understand (if they 64

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Judith Lewis Herman, Trauma and Recovery: The Aftermath of Violence – From Domestic Abuse to Political Terror (New York: Basic, 1997), 7. Ibid., 52. 66 Ibid., 52. Scott D. Easton, Danielle M. Leone-Sheehan, and Patrick O’Leary, “‘I Will Never Know the Person Who I Could Have Become’: Perceived Changes in Self-Identity among Adult Survivors of Clergy-Perpetrated Sexual Abuse,” Journal of Interpersonal Violence (2016). Scott Mendelson,

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understand it at all) what sex is, and certainly have no idea of the consequences to their lives of being sexually assaulted. The aggressor always has power over them, and in the case of parents or guardians it is a particularly egregious power differential as the child is dependent on them for providing life’s basic needs, including shelter, food, and clothing. Abusers typically threaten the child to maintain the silence, and in the family, the child is charged consciously or subconsciously with keeping the secret to hold the family together. In the institutional setting, the adult exercises power through the structure of the organization. Penn State football coach Jerry Sandusky manipulated at least three institutions to obtain access to boys to abuse: his self-created charity The Second Mile, which was established for underprivileged youth; the football program at Penn State, which gave him prestige, access to facilities, and summer football camps; and the adoption system. Jerry Sandusky held power over some of the boys he abused because he had the capacity to “make” their football career by getting them into Penn State. Similarly, in religious institutions, the priest, rabbi, imam, prophet, or elder holds spiritual power that can be every bit as compelling as the power of the parent. And in the schools, teachers have power over children’s grades and advancement; while in sports, coaches determine whether an athlete plays, obtains a scholarship, and even goes to the Olympics. The child predators’ capacity to control the child is compounded by the fact that many choose children who are in need and offer gifts, money, and loving attention the child can get nowhere else. Finally, the successful child predator is often the person who is trusted, loved, and even adored by the organization, making it virtually impossible for those within the organization to attack or turn in the perpetrator. These factors – failure to understand, powerlessness, and a sadly contorted sense of obligation – contribute to the victim’s incapacity to come forward. Many studies have documented the psychological barriers to revealing sex abuse.68 That means there is often significant lag time between the acts of

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“The Lasting Damage of Child Abuse,” The Huffington Post, March 2, 2014, www.childusa.org/ wp-content/uploads/2016/11/The-Lasting-Damage-of-Child-Abuse-_-The-Huffington-Post.pdf. Rebecca Campbell, “Neurobiology of Sexual Assault: Explaining Effects on the Brain,” National Institute of Justice (2012); R. L. v. Voytac, 199 N.J. 285, 971 A.2d 1074 (N.J. 2009); Bessel A. van der Kolk, Alexander C. McFarlane, and Lars Weisaeth, Traumatic Stress: The Effects of Overwhelming Experience on Mind, Body, and Society (New York: Guilford, 2006); Brief for American Psychological Association et. al. as Amici Curiae Supporting Respondent, Stogner v. California, 539 U.S. 607 (U.S. 2003) (No. 01–1757); Irit Hershkowitz, M. E. Lamb, and O. Lanes, “Exploring the Disclosure of Child Sexual Abuse with Alleged Victims and Their Parents,” Child Abuse and Neglect 31 (2007): 111–23; Rosaleen McElvaney, “Disclosure of Child Sexual Abuse: Delays, Non-Disclosure and Partial Disclosure. What the Research Tells Us and Implications for Practice,” Child Abuse Review 24 (2015): 159–69.

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abuse and public knowledge of it, and it also means there is a more complicated legal terrain because victims – due to no fault of their own – may well need justice long after the original injustice. 13.4.4 Adults Prefer Adults and Children’s Second-Class Status Adults engage in what I call “adult preferentialism,” where they instinctively assume that the interests of children are less weighty than their own. To put it bluntly: adults prefer and protect adults. From a legal perch, another way to explain it is that adults tend to view child-protective measures through the frame of an adult-rights matrix. For example, when speaking to lawmakers and policy makers about enlarging the statutes of limitations for child sex abuse, a change that has the capacity to aid thousands of victims in any one state, the typical initial response is what happens when a false claim is alleged, which could put an adult in a bad light. Often, the reasoning will be that even if one adult is falsely accused and their life “ruined,” that is reason enough not to provide justice to the many child sex abuse victims. This powerful preference obscures the potential harm to children and has left children at unreasonable risk. A prime example of this dynamic appears in the Supreme Court’s decision in Wisconsin v. Yoder,69 which trivialized the impact on children of being forced by their parents’ faith to leave school before the vast majority of other children.70 Law and religion scholarship and jurisprudence by and large is rife with similar preferences and assumptions.71 Adults prefer and protect adults and so assess the challenges that adults face as higher on the scale of immediacy and importance than challenges facing children. Thus, when it came to criticizing RFRAs, it was their negative effects on adults – including the LGBTQ and same-sex couples and women seeking reproductive health care – who finally turned the tide against them, not their pernicious effects on child protection. There has been a slow evolution from treating children as property to treating them as rights-bearing “persons.” Early in her career, Hillary 69 70

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McElvaney, “Disclosure,” 159–69. See generally Hamilton, God vs. the Gavel: Perils, 5–7, 64, 168–69; James G. Dwyer, “Parents’ Religion and Children’s Welfare: Debunking the Doctrine of Parents’ Rights,” California Law Review 82, no. 6 (1994): 1371, 1446–47; Dwyer, “The Children,” 1324–27. “Yoder is a shining symbol of religious tolerance . . . a thoughtful and careful effort to accommodate religious differences and protect the free exercise of religion,” James D. Gordon III, “Wisconsin v. Yoder and Religious Liberty,” Texas Law Review 74, no. 6 (May 1996): 1237. “[T]he decision was a very good one . . . the majority opinion is perhaps the wisest of modern religion clause opinions,” Steven D. Smith, “Wisconsin v. Yoder and the Unprincipled Approach to Religious Freedom,” Capital University Law Review 25 (1996): 805.

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Rodham identified the importance of civil rights for children.72 Since then, there have been incremental increases in “children’s rights” but also pushback in the form of a “parental rights” movement. Without question, though, the earlier property status of children has given way to treating them as “persons” when it comes to bodily integrity and crime. The civil rights movement for adults – which opened the way to thinking about civil rights for children – created a habit of mind for Americans to think in terms of the powerless fighting the powerful, and to formulate legal and social pathways for the powerless to gain power. Even more specifically, the fight to obtain justice for women against rape has laid down paradigms that can illuminate the experience of child sex abuse victims. Catharine MacKinnon’s description of women’s experience with rape and the lack of justice is not dissimilar to the experience of child sex abuse victims: Existing laws against gender-motivated violence, by omission as well as by pattern of practice, embody a margin of toleration, project an aura of lassitude, exude a sense in enforcement that some aggression against women by men is inevitable. Legal institutional processes are so imprinted with denial of sexual abuse – both its normality and effective impunity, especially when committed by men with power among men – that it is as if the laws do not mean what they say. The [Violence against Women Act] openly repudiated such systemic habits.73

For women, the lag time between the rape and reporting “is because the victims anticipate, with reason, that the authorities will not believe them or that they will be revictimized in the legal process. Sexual abuse survivors dread the legal system. Women are routinely disbelieved, humiliated, harassed, and shunned as a result of reporting sexual assault to officials.”74 Children typically assume that no one will believe them either instinctively or because the perpetrator tells them so, and they feel responsible for the sex abuse even though the law of statutory rape absolves them of all responsibility. When they are sexually abused by a family member, they often struggle with family loyalty as well. There is also the added cognitive layer that they typically do not understand what happened to them, and they are always at a severe power disadvantage to the adult.

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Hillary Rodham, “Children under the Law,” Harvard Educational Review 43 (winter 1973): 487, 491. Catharine A. MacKinnon, “Disputing Male Sovereignty: On United States v. Morrison,” Harvard Law Review 135 (2000): 137–38. (Emphasis added.) Ibid., 142–43.

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As civil rights for children have emerged, which treats their interests as separate from adult interests, the Internet has increased the momentum for child sex abuse victims in particular to be individually empowered and to band together. That has sped the pace of press coverage, public acknowledgment, and the movements for legal and social reform to meet the underlying epidemic. The information was known to the victims, the abusers, and those who were in positions of power that would make them recipients of the information children tried to share, either directly or indirectly.75 The patterns were there to be seen, because pedophiles’ “sexual behavior is repetitive and highly predictable.”76 At the same time, the general public has been slow to see what is directly in front of them due to assumptions about the quality of an adult’s intuitions about trusted adults. As a political matter, children are routinely treated less well than adults. Children don’t vote, and they are dependent upon adults for protection and vindication. The Supreme Court’s First Amendment doctrine has occasionally sided with the protection of children. Parents may not use their faith to make “martyrs” of their children77 and may not avoid immunizing or providing medical care to their children.78 But it has also put them at risk. That occurred in cases like Yoder, when the Court adopted a high level of scrutiny that presumes the value of the government’s interest and the Court considered the parents’ interest without serious consideration of the children’s.79 This same harmful procedure was repeated in the RFRA and extended to all aspects of children’s lives. 13.4.5 Contemporary Doctrinal Preoccupation The wholesale alteration of free exercise doctrine since 1990 was driven by a retreat from specifics (the lives of children, women, LGBTQ, and other 75

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The paradigm is the cache of information held by the Catholic bishops in the “secret archives,” which documents the identities of known pedophiles, child victims, and the institutional tactics taken in response. But the Catholic bishops are simply an example of the larger reality that many institutions, including families, have had written and/or oral histories among those in control that document a pattern of persistent abuse by particular individuals. Kenneth V. Lanning, Child Molesters: A Behavioral Analysis, 5th edn. (National Center for Missing & Exploited Children, 2010), 52. www.cybertipline.com/en_US/publications/ NC70.pdf. Prince v. Massachusetts, 321 U.S. 158, 170 (1944); see also Wisconsin v. Yoder, 406 U.S. 205, 246 (1972), Douglas dissent. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905); Zucht v. King, 260 U.S. 174 (1922); see also Brown v. Stone, 378 So. 2d 218 (Miss. 1979); State v. Miskimens, 22 Ohio Misc. 2d 43, 490 N.E.2d 931 (Com. Pl. 1984). Wis. v. Yoder, 406 U.S. 205 (U.S. 1972). (Holding that Amish parents could withdraw children from compulsory education several years before graduation for purpose of pursuing agrarian way of life mandated by faith.)

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minorities) to banal generalities about constitutional doctrine. Many law and religion scholars and advocates defended “accommodations” of religion that protected institutions run by adults over their child members, even in situations involving serious violations of children’s human rights.80 One possibility then is that scholars of law and religion have collectively, though unconsciously, sided with the perpetrators of trauma against children in the name of religion by supporting a doctrine that they thought protected religion but instead protected religion’s primarily male leaders against children. (They couldn’t or didn’t see that by protecting accommodations for religion they were protecting adult institutional leaders rather than children.) The one-size-fits-all-cases regime established in the past twenty years in the United States by the framework of extreme religious liberty statutes like the RFRA and state counterparts81 treats all religious actors as equal and all contexts as equally legitimate for consideration of accommodation – regardless of the harm they may impose. There has been lip service paid to concerns about harm to third parties in some cases,82 but in others the harm to others has been ignored or trivialized.83 As I have discussed elsewhere, the RFRA by

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Taken together, the establishment and free exercise holdings of Hosanna-Tabor (565 U.S. 171) suggest a shift in Religion Clauses jurisprudence from a focus on individual believers to a focus on the autonomy of organized religious institutions. Although the Court never confined the protections of the Religion Clauses to natural persons, opinions gave the impression that, to the Court, religion is essentially a matter between individuals and their God (however conceived). Free exercise cases emphasized individual sincerity and rejected the idea that religious exercise must be rooted in the teachings of a faith community. In some of the parochial school cases, members of the Court gave the impression they regarded the “inculcat[ion]” of church “dogma” as a threat to the freedom of individuals to form their own beliefs. Now, however, as interpreted in Smith and Hosanna-Tabor, the Free Exercise Clause provides far greater protection to the “faith and mission” of religious institutions than to individual acts of religious exercise, and the Establishment Clause bars the government from interfering in “ecclesiastical” decision-making. Perhaps it is a coincidence, but this shift in emphasis corresponds very roughly to the old divide between individualistic Protestantism and institutional Catholicism and might be the first evident fruit of the new Catholic majority on the Court. The “freedom of the church” was the first kind of religious freedom to appear in the Western world, but got short shrift from the Court for decades. Thanks to Hosanna-Tabor, it has again taken center stage. Michael W. McConnell, “Reflections on Hosanna-Tabor,” Harvard Journal of Law and Public Policy 35 (2012): 821, 835–36. Hamilton, God vs. the Gavel: Perils, 19–20, 340–42. See also Hamilton, “Indiana”; Hamilton, “RFRA, Zubik v. Burwell, and the Do No Harm Act,” Verdict Justia, May 19, 2016, https://ve rdict.justia.com/2016/05/19/rfra-zubik-v-burwell-no-harm-act. Zubik v. Burwell, 136 S. Ct. 1557, 194 L. Ed. 2d 696 (2016). “No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others – here, the very persons the contraceptive coverage requirement was designed to protect,” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2801, 189 L. Ed. 2d 675 (2014).

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its nature does not invite or encourage consideration of harm to anyone but the believer.84 13.4.6 Preferences for Religion, Personally and Professionally When it comes to studying religion, law professors are different from many other academics. For more than a century, religion scholars have sought to be objective, academic, and scientific about the study of religion, recognizing that personal religious faith could skew their research: the University of Pennsylvania’s Morris Jastrow, whose career was devoted to exploring and defining the proper parameters for the study of religion, urged scholars of religion to pursue their study as a science: There is a special reason for emphasizing the importance of method in the study of the various religious systems of the past and present, and of religious phenomena in general. In the study of religion, a factor that may be designated as the personal equation enters into play. So strong is this factor that it is perhaps impossible to eliminate it altogether, but it is possible, and indeed essential, to keep it in check and under safe control; and this can be done only by the determination of a proper method and by a close adherence to such a method . . . Scholars of religion have spent the last century trying to identify and clarify this method.85

In contrast, little attention has been paid to how law professors’ views are shaped by being employed by universities controlled by religious entities, or how a professor’s particular religious views drive choices in law and religion scholarship. There is a legitimate question about law professors’ personal biases regarding religion. This is particularly true in an era when it has become common to argue that one’s faith necessarily directs every aspect of one’s life, including one’s professional decisions. There is a subset of universities that is closely linked to and/or controlled by religious organizations and their spiritual leaders, who have very specific 84

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Hamilton, God vs. the Gavel: Perils, 16; Hamilton, “Evidence-Based”; Marci A. Hamilton, “Guest Blog: The RFRA Black Box,” Alliance for Justice, April 3, 2014, www.afj.org/blog/guestblog-the-rfra-black-box. Some have argued that the “substantial burden” analysis in the RFRA is an avenue to consideration of harm to others. Frederick Mark Gedicks, “‘Substantial’ Burdens: How Courts May (and Why They Must) Judge Burdens on Religion under RFRA,” George Washington Law Review 85 (2017): 94. There was a time a number of years ago when that was a potential avenue, but the Supreme Court’s interpretation of “substantial burden” and the RFRA generally in Hobby Lobby pushes courts away from consideration of harm to others. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___, 134 S.Ct. 2751 (2014). Leslie Griffin, “‘We Do Not Preach. We Teach.’: Religion Professors and the First Amendment,” Quinnipiac Law Review 19 (2000): 1, 15–16.

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agendas regarding religious liberty. In those schools, it is legitimate to ask whether the scholar is undertaking doctrinal analysis based on the religious organization’s requirements or an open inquiry into the law. Where hiring and firing can be driven by religious tenets, it is legitimate to question whether law and religion scholars are engaging in neutral decision-making with respect to the topics to address and the arguments to make regarding religious liberty. For example, the Catholic bishops have declared certain positions off-limits and demanded loyalty to the Catholic mission as the price for teaching at a Catholic university.86 I do not mean to overstate this point. It is not that a scholar’s employment at a religious university always results in views that tilt toward the institution’s preferences. Moreover, excellent work has been done by scholars who are at religiously based universities, for example, Professor Frederick Gedicks of Brigham Young University. I was employed by Yeshiva University for twentysix years and no one ever confused my views on religious liberty with the University’s. But there was increasing pressure, though subtle, from the University to modify, or perhaps more accurately, stifle my views on issues directly related to the faith, for example, the practice of oral suction for a bris, or Jewish circumcision, and on child sex abuse.87 Some elevate religion to utopian levels, rather than the reality on the ground. The decision in Wisconsin v. Yoder provides an illuminating example. According to Chief Justice Warren Burger, the Amish are a superhuman group that never violates the law and that lives in a utopian agrarian society where there is no reason to question their demand to remove children from compulsory education before graduation.88 Until recently, the negative consequences for children born into the Amish tradition have been ignored, and children have suffered accordingly.89 The more abstract and utopian the assumptions in one’s sights, the more likely that children will in fact be at risk. 86

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Pope John Paul II, “Ex corde Ecclesiae: On Catholic Universities,” http://w2.vatican.va/con tent/john-paul-ii/en/apost_constitutions/documents/hf_jp-ii_apc_15081990_ex-corde-eccle siae.html; United States Conference of Catholic Bishops, “The Application for Ex Corde Ecclesiae for The United States: Decree of Promulgation,” www.usccb.org/beliefs-and-teach ings/how-we-teach/catholic-education/higher-education/the-application-for-ex-corde-eccle siae-for-the-united-states.cfm; Hilary White, “Pope to U.S. Bishops: Reform of Catholic Universities the ‘Most Urgent Challenge’,” Life Site, www.lifesitenews.com/news/pope-tou.s.-bishops-reform-of-catholic-universities-the-most-urgent-challe. Amy Sara Clark, “City’s New Metzitzah Policy ‘A Witch Hunt,’ Charedi Leader Says,” The Jewish Week, April 4, 2017, http://jewishweek.timesofisrael.com/citys-new-metzitzah-policy-awitch-hunt-charedi-leader-says/. Wisconsin v. Yoder, 406 U.S. 205, 246 (1972). “[Amish are] people whose formal education was cut short. With their limited education, professional jobs are not an option; the Amish are limited to manual work, often in shops, warehouses, and factories,” Gage Raley, “Yoder Revisited: Why the Landmark Amish

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The politics of religion can affect scholarship as well. Religious organizations emerged from the private sphere onto the political stage in the 1970s and some have muscularly exploited their political power in the political arena.90 They have affected judicial appointments, major party political platforms, and divisive issues.91 More recently, evangelical Christians and Catholics joined together to employ religious liberty rhetoric to unite in political activism toward their shared political agendas against same-sex marriage, contraception, and abortion.92 It is undeniably tempting for those legal scholars who have political or judicial aspirations to shape their scholarship so as not to offend particular religious entities, and to protect tenure and promotion opportunities.93 But that should be taken into account when assessing whether scholarly positions taken are consistent with the larger public good or with one religious viewpoint.

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Schooling Case Could – and Should – Be Overturned,” Virginia Law Review 97, no. 3 (May 2011): 681, 691–92; Employment Needs of Amish Youth: Hearing before the Sub. Comm. of the Committee on Appropriations, 2001 Leg., 107th Sess. 94 (Md. 2001); Mary Maushard, “Amish Take a Step back to the Future, School: Abandoning Their Traditional Opposition to Secondary Education, Amish and Mennonite Graduates of a Garrett County Public School Are Pursuing GED Diplomas,” Baltimore Sun, November 8, 1998, http://articles.baltimore sun.com/1998-11-08/news/1998312071_1_amish-communities-amish-and-mennonite-swan. See generally Michael Sean Winters, God’s Right Hand: How Jerry Falwell Made God a Republican and Baptized the American Right (New York: HarperOne, 2012); Eric L. McDaniel, Politics in the Pews: The Political Mobilization of Black Churches (Ann Arbor: University of Michigan Press, 2008), 9–20; Juan Marco Vaggione, “Reactive Politicization and Religious Dissidence: The Political Mutations of the Religious,” Social Theory and Practice 31 (2005): 233, 242–44. See also Hamilton, God vs. the Gavel: Perils, 21–31. (Political involvement related to RFRA.) See generally Gregory C. Sisk and Michael Heise, “Ideology ‘All the Way Down’? An Empirical Study of Establishment Clause Decisions in the Federal Courts,” Michigan Law Review 110 (2012): 1206; Justin Pope, “Another Courtroom Victory for Religious Colleges,” USA Today, July 24, 2008, http://usatoday30.usatoday.com/news/nation/2008-07-24-411077101 2_x.htm; Stephen Prothero, “We Need Less Religion in Our Politics and Less Politics in Our Religion,” Religion & Politics, February 5, 2013, http://religionandpolitics.org/2013/02/05/weneed-less-religion-in-our-politics-and-less-politics-in-our-religion/; Daniel Schlozman, “How the Christian Right Ended Up Transforming American Politics,” TPM, August 25, 2015, http:// talkingpointsmemo.com/cafe/brief-history-of-the-christian-right; Nomi Maya Stolzenberg, “Today, Religion Looms Larger in Judicial Selections,” http://law.usc.edu/assets/docs/stolzen berg_op-ed_4_15_10.pdf (accessed August 2, 2016). In 2009, a number of Christian leaders drawn from the Catholic and evangelical ranks signed what was described as an “ecumenical statement of conscience by Christian leaders, dedicating themselves to defending life, marriage, and religious liberty.” This is now known as the Manhattan Declaration, and it has been signed by approximately 550,000 people to date. See Archdiocese of New York, “Manhattan Declaration,” http://archny.org/manhattan-declara tion (accessed July 30, 2016). See, e.g., “Ex corde Ecclesiae”; United States Conference of Catholic Bishops, “Catholics in Political Life,” www.usccb.org/issues-and-action/faithful-citizenship/church-teaching/catho lics-in-political-life.cfm.

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13.5 CONCLUSION

The push for abstract, extreme religious liberty – enacted through state and federal RFRAs and all their variations as well as through numerous religious exemptions to neutral laws of general applicability – has driven scholars to be consumed with doctrinal niceties and to fail to tackle extraordinary human rights violations against children. Even before the RFRA, there were in place many legislatively enacted accommodations that put children at risk, included but not limited to medical neglect and to sex abuse.94 By failing to acknowledge or grapple with these specific issues, and by not examining the science in the child protection arena, these scholars in effect have given religious actors a pass, even when children are at risk. Among the crushing human rights violations of our day one must include the atrocities committed in the name of religion against children. Overseas, radical Muslims sexually enslave girls and send young boys to war.95 Church leaders of all stripes arrogantly and callously cover up clergy sex abuse,96 engage in scorched-earth legal tactics against child sex abuse victims in the courts and in the legislatures,97 and falsely insist that the men in power in the institutions have “solved” the problem even as they harbor and protect pedophile clergy.98 Others subject children to unbearable suffering by refusing to provide medical treatment for easily treated ailments99 and yet others sexually enslave girls in their polygamist or cultic cultures.100 Finally, children in 94 96

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Hamilton, God vs. the Gavel: Perils, chapter 2. 95 See supra n. 4, and supra n. 5. See generally Bishop Accountability, www.bishopaccountability.org; Silent Lambs, www.sil entlambs.org/; Jewish Community Watch, www.jewishcommunitywatch.org/. Marci A. Hamilton, “A Public Service Translation of a Catholic Bishop’s Letter against SOL Reform,” Verdict Justia, June 9, 2016, https://verdict.justia.com/2016/06/09/public-service-tr anslation-catholic-bishops-letter-sol-reform. Marci A. Hamilton, “The 1-2 Punch the Catholic Bishops Have Delivered to Clergy Sex Abuse Victims,” Verdict Justia, March 29, 2016, https://verdict.justia.com/2016/03/29/the-1-2punch-the-catholic-bishops-have-delivered-to-clergy-sex-abuse-victims; see also Nikki DuBose, “Denial, More Than Anything, Is Hindering Progress for Victims of Child Sexual Abuse,” Huffington Post, July 20, 2016, www.huffingtonpost.com/nikki-dubose/denial-morethan-anything_b_11077340.html?platform=hootsuite. See generally Laurie Goodstein and Richard Perez-Pena, “Minnesota Priest’s Memo Says Vatican Ambassador Tried to Stifle Sex Abuse Inquiry,” New York Times, July 20, 2016, www .nytimes.com/2016/07/21/us/minnesota-priests-memo-says-vatican-envoy-tried-to-stifle-sex-ab use-inquiry.html?rref=collection%2Ftimestopic%2FRoman%20Catholic%20Church%20Se x%20Abuse%20Cases&action=click&contentCollection=timestopics®ion=stream&mo dule=stream_unit&version=latest&contentPlacement=1&pgtype=collection&_r=0 Rasmusson, “Idaho’s.” See Offit, “Bad Faith”; Hamilton, God vs. the Gavel: Perils, 60–74. See Andrea Moore-Emmett, God’s Brothel (San Francisco, CA: Pince-Nez, 2004); Nautilus Ins. Co. v. Alamo, No. 4:11-CV-4054, 2015 WL 1470152, at *1 (W.D. Ark. March 31, 2015); see also In re Texas Dep’t of Family & Protective Servs., 255 S.W.3d 613, 618 (Tex. 2008); see

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isolated religious communities in the United States are often deprived of basic education.101 These child-debilitating tactics in the name of religion are common, yet ignored by most law and religion scholarship. They are in fact “unbearable,” as Herman points out. That is no excuse, however. A fact-based, evidence-gathering approach to exemptions and extreme religious liberty regimes is necessary to protect children from detrimental religious practices. Religious liberty issues involving children should be approached on the basis of specific religious practices and claims, not wholesale (in other words, not under the rubric of an extreme religious liberty statute like the RFRA), and should be based on facts regarding the (1) the practice, and (2) the actual harm generated by it – not by uninformed assumptions and generalizations.102 It is a moral imperative.

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generally Jessop and Palmer, Escape; Mary Mahoney, “My Life in the Cult: How ‘Serving God’ Unraveled into Sex Abuse, Child Neglect, and a Waking Nightmare,” Salon, October 25, 2015, www.salon.com/2015/10/25/my_life_in_the_cult_how_serving_god_unraveled_in to_sex_abuse_child_neglect_and_a_waking_nightmare/. Hella Winston and Amy Sara Clark, “Don’t Know Much about History,” Jewish Week, September 7, 2015, www.thejewishweek.com/news/new-york/12-hour-school-day-cant-do-math; Raley, “Yoder”; see generally State ex rel. Douglas v. Faith Baptist Church of Louisville, 207 Neb. 802, 301 N.W.2d 571 (1981); Clemons v. United States, No. 4:10-CV-209-CWR-FKB, 2012 WL 5364737, at *9 (S.D. Miss. October 30, 2012). Hamilton, “Evidence-Based.”

14 Religious Refusals and Reproductive Rights Claims of Conscience as Discrimination and Shaming Louise Melling*

This chapter was written at a time of promise for the equality rights of LGBT people and women, before the election of Donald Trump as president of the United States. The argument set forth in this chapter remains relevant, however, as calls for religious exemptions to nondiscrimination principles continue to be prevalent in the United States’ new political environment as is the failure to see claims for exemptions in the context of reproductive rights as sex discrimination.

14.1 INTRODUCTION

In 2015, Governor Mike Pence of Indiana signed into law a state Religious Freedom Restoration Act (RFRA).1 At the time, RFRA bills were being introduced in state legislatures throughout the United States in the name of affording greater protection for religious exercise, including as a possible avenue of relief for those with religious objections to newly enacted or promised state protections against discrimination for LGBT people and women. For those objecting to state laws barring discrimination based on sexual orientation or requiring insurance coverage of contraception, for example, the US Constitution offered no prospect for relief, the Supreme Court having ruled more than twenty years earlier that the Constitution did not relieve people from complying with “valid and neutral law[s] of general *

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Deputy legal director of the ACLU and director of its Center for Liberty, which encompasses the ACLU’s work on freedom of religion and belief, LGBT rights, reproductive rights, women’s rights, and disability rights. The views expressed in this chapter are my own. Many thanks to Brigitte Amiri, Mary Anne Case, Jennifer Dalven, James Esseks, Andrew Koppelman, Doug NeJaime, Steve Shapiro, and Priscilla Smith for their comments, and to Rebecca Guterman and Priya Nair for editorial and research assistance. Tony Cook, “Gov. Mike Pence Signs ‘Religious Freedom’ Bill in Private,” Indy Star, April 2, 2015, www.indystar.com/story/news/politics/2015/03/25/gov-mike-pence-sign-religious-freedombill-thursday/70448858/.

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applicability” even if they were acting for religious reasons.2 The only possible remedy for those with faith-based objections to new state antidiscrimination protections then lay in the states, in measures such as the one passed in Indiana. The passage and signing of the RFRA measure in Indiana sparked a national outcry. The outcry was striking for what was said and for what was not said. The conversation was national, it was big, and it was about LGBT rights. Tim Cook, CEO of Apple, expressed concern about the ways in which the bill could permit an individual to refuse to serve a customer or resist an antidiscrimination law.3 A Change.org petition objected to the discrimination against LGBT people the law might allow. Salesforce, a San Franciscobased company, said it would cancel all programs that required its customers or employees “to travel to Indiana to face discrimination,”4 Gen Con said it would reconsider plans to host its convention in Indianapolis,5 and the National Collegiate Athletic Association spoke out against the measure.6 In the face of the outcry, Indiana’s RFRA was modified to specify that it could not be used to override state or local protections prohibiting discrimination based on sexual orientation or gender identity. There was no similar storm about the consequences of Indiana’s RFRA for women even though, at that time, the federal RFRA was being widely invoked to contest rights accorded to women.7 In particular, by the time the Indiana bill was signed, more than 100 lawsuits had been filed in the country by for2

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Employment Division v. Smith, 494 U.S. 872, 879 (1990). The federal Religious Freedom Restoration Act also provides no relief, its protections extending only to burdens imposed by federal law. City of Boerne v. Flores, 521 U.S. 507 (1997). Tim Cook, “Pro-Discrimination ‘Religious Freedom’ Laws Are Dangerous,” Washington Post, March 29, 2015, www.washingtonpost.com/opinions/pro-discrimination-religious-freedomlaws-are-dangerous-to-america/2015/03/29/bdb4ce9e-d66d-11e4-ba28-f2a685dc7f89_story.html. “Salesforce CEO Says Company Is ‘Canceling All Programs’ in Indiana over LGBT Discrimination Fears,” dir. Bill Disbrow, CBS San Francisco, March 26, 2015, http://sanfran cisco.cbslocal.com/2015/03/26/salesforce-ceo-says-company-is-cancelling-all-programs-inindiana-over-lgbt-discrimination-fears/. Dominique Mosbergen, “Gen Con Threatens to Take Popular Convention, and Millions, Out of Indiana over Religious Freedom Bill,” Huffington Post, March 25, 2015, www.huffingtonpost .com/2015/03/25/gen-con-indiana-religious-freedom-bill_n_6936698.html. Amanda Terkel, “NCAA Troubled by Indiana’s New Anti-Gay Law,” Huffington Post, March 26, 2015, www.huffingtonpost.com/2015/03/26/ncaa-indiana-lgbt-discrimination_n_69 49530.html. Harm to women is, of course, harm to lesbians and to transgender women, and interference with reproductive rights harms transgender men as well. This chapter, however, often talks of harm to and discrimination against women when speaking of refusals to facilitate or provide contraception and abortion services because those refusals have historically targeted cisgender women. The profound harm to transgender men denied abortion and contraception, whether for religious or other reasons, merits robust discussion, particularly given the invisibility and

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profit businesses and nonprofit entities arguing that a newly enacted requirement that they provide insurance coverage for contraception to their employees violated their religious liberty.8 Most significant, by the time Indiana’s RFRA was being debated, the US Supreme Court had already held that requiring Hobby Lobby – a for-profit arts-and-crafts business chain – to comply with the contraception coverage mandate over a religious objection violated the federal RFRA.9 But the national outcry about Indiana’s RFRA included no talk of Hobby Lobby and its potential for harm at the state level. There was no call for boycotts because of potential discrimination against women. And there was no legislative fix addressing the implications of Indiana’s RFRA for women who will seek contraception, sterilization, and abortion in the state. All was quiet on the reproductive rights front. Indiana was not an aberration. The storm over its RFRA followed a similar protest over an RFRA in Arizona in 2014. There too the outcry was loud: Apple,

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stigma in our culture surrounding transgender men’s need for reproductive health care. That discussion, however, is beyond the scope of this chapter. Richard Wolfe, “High Court Grants Exemptions from Birth Control Mandate,” USA Today, January 24, 2014, www.usatoday.com/story/news/politics/2014/01/24/supreme-court-healthcontraception-mandate-obama/4340287/. The requirement that employers’ insurance benefit plans include contraceptive coverage was part of the Affordable Care Act (ACA). As part of the ACA, Congress passed the Women’s Health Amendment, which ensured coverage for many preventative services and aimed to eliminate discrimination in health care coverage. See, e.g., 155 Cong. Rec. S11, 979, S11, 988 (daily edn., November 30, 2009); 77 Fed. Reg. 8725, 8728 (February 15, 2012). With the change in administration as a result of the November 2016 US elections, the fates of the ACA and the contraception rule are uncertain. In October 2017, the administration issued interim final rules permitting virtually any employer with a religious or moral objection to the birth control rule to claim an exemption. Religious Exemptions and Accommodations for Coverage of Certain Preventative Services under the Affordable Care Act (Religious Exemption IFR), 82 Fed. Reg. 47,792 (October 13, 2017); Moral Exemptions and Accommodations for Coverage of Certain Preventative Services under the Affordable Care Act (Moral Exemption IFR), 82 Fed. Reg. 47,838 (October 13, 2017). Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). In its opinion, the Court reasoned that the decision’s effect on women employed by Hobby Lobby and other companies challenging the requirement “would be precisely zero.” Burwell, 2760. The Court reasoned that the federal government could extend to for-profit businesses the accommodation it had crafted for religiously affiliated nonprofit organizations that objected on religious grounds to providing contraception coverage. Under the accommodation, the entity could notify its insurer of its objection to covering contraception, and the insurer was then required to provide the coverage separately. Burwell, 2763. Notably, at the time of the decision, the accommodation itself was subject to more than fifty suits. See “HHS Case Database,” Becket Fund, January 9, 2018, www .becketlaw.org/research-central/hhs-info-central/hhs-case-database/. The Supreme Court ultimately heard the RFRA challenge to the accommodation and issued an opinion taking no position on the case, but instead remanding it so the parties might seek an approach that would accommodate the free exercise concerns while ensuring women received seamless coverage. Zubik v. Burwell, 136 S. Ct. 1557 (2016). The interim final rules rendered objections to the accommodation superfluous. See supra n. 8.

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American Airlines, and AT&T, among other businesses, opposed the measure, as did Senator John McCain and former Massachusetts governor Mitt Romney.10 Comments from the NFL raised the specter of the Super Bowl moving from Arizona.11 And the outcry centered on the implications of the bill for the LGBT community, with the bill regularly described as anti-gay.12 It was not decried for its implications for women seeking reproductive health care. The stories from Indiana and Arizona illustrate the different way in which we currently view refusals to serve LGBT people for reasons of religious beliefs versus refusals to serve women seeking reproductive health services because of religious beliefs.13 This chapter takes issue with this difference. It argues we need to see, question, and protest the harms that result when women seeking services related to contraception and abortion are turned away for reasons of faith as robustly as we question the harms when LGBT people are refused service because of religious beliefs.14 It asks that we see these refusals as discrimination too. In making this call for change, this chapter first puts the current debate in the United States about religious refusals in context; second, it posits parallels 10

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“Arizona Gov. Jan Brewer Vetoes Controversial Anti-Gay Bill, SB 1062,” dir. Catherine Shoichet and Halimah Abdullah, CNN, February 26, 2014, www.cnn.com/2014/02/26/poli tics/arizona-brewer-bill/. “NFL Won’t Rule Out a Move of Super Bowl XLIX,” dir. Mike Florio, NBC Sports, February 25, 2015, http://profootballtalk.nbcsports.com/2014/02/25/nfl-wont-rule-out-a-moveof-super-bowl-xlix/. See, e.g., “Arizona Gov. Jan Brewer Vetoes Controversial Anti-Gay Bill, SB 1062”; “Hundreds in Tucson Protest Religious Rights Bill Targeting Gays,” Arizona Daily Star, February 21, 2014, http://tucson.com/news/local/hundreds-in-tucson-protest-religious-rights-bill-targeting-gays/ar ticle_46008816-9b54-11e3-a2ff-001a4bcf887a.html; Dan Nowicki, Yvonne Wingett Sanchez, and Alia Beard Ra, “Arizona Governor Vetoes Anti-Gay Bill,” Arizona Republic, February 26, 2014, www.usatoday.com/story/news/nation/2014/02/26/arizona-governor-vetoesanti-gay-bill/5849187/; “What’s the Matter with Arizona?,” Economist, March 1, 2014, www .economist.com/news/united-states/21597954-state-americans-love-hate-whats-matter-arizona. The difference in the nature of the debates is not limited to the context of religious refusals. In 2016, when Mississippi and North Carolina passed laws sanctioning discrimination against the LGBT community, the backlash was swift. E.g., Christopher Mele, “In North Carolina and Mississippi, Backlash Grows over Rights Law,” New York Times, April 12, 2016, www .nytimes.com/2016/04/13/us/north-carolina-mississippi-gay-rights-boycott.html. There was no similar outcry to laws restricting abortion access passed that year by several states, including Indiana and Mississippi. “Mississippi Governor Signs Bill Banning Second-Trimester Abortion,” dir. WKRG Staff, WKRG, April 16, 2016, http://wkrg.com/2016/04/15/mississippigovernor-signs-bill-banning-second-trimester-abortion/; “Indiana Governor Signs New Abortion Restrictions into Law,” dir. Merrit Kennedy, NPR, March 25, 2016, www.npr.org/ sections/thetwo-way/2016/03/25/471842196/indiana-governor-signs-new-abortion-restrictionsinto-law. For the purpose of this chapter, references to refusals to provide or facilitate contraception include refusals to provide or facilitate sterilizations.

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between the harm to women turned away for wanting to control their fertility and to same-sex couples denied services for their weddings; third, this chapter offers an account for why refusals to provide services because of religious beliefs are treated differently in the two contexts; and finally, it argues that how we think about religious objections to serving those seeking abortion and contraception matters for women’s equality. This chapter does not purport to put forward a definitive argument; it aims instead to make a case for questioning a long-standing norm. In making this case, this chapter focuses on the refusals of institutions – stores, pharmacies, and hospitals, among others – to provide services because of religious beliefs.15 Refusals of institutions to provide services have more serious implications for third parties – in particular for customers and patients – than do refusals of individuals to provide services. Unless institutions serve only people of the same faith, their refusals to provide services impose the institutions’ faith on customers, denying them services and turning them away based on the institutions’ beliefs.16 This harm is the focus of this chapter. 14.2 PUTTING THE CLAIM FOR RELIGIOUS EXEMPTIONS IN CONTEXT

The current public policy debates in the United States often concern claims by institutions – pharmacies, hospitals, bakeries, and florists, among others – to a right to refuse to provide services based on religious objections.17 In the name 15

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Important though the issue is, this chapter does not distinguish between refusals of an institution to provide a service and refusals to facilitate a service. For a robust discussion of that issue, see generally Douglas NeJaime and Reva B. Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (2015): 2516–2595. Refusals of individuals to provide services because of faith can similarly function to discriminate against the customer or patient. In the case of individuals, however, the harm can sometimes be mitigated, as when, for example, the customer is passed seamlessly and without judgment to another staff member for service. There is a real question, however, whether an individual should be accommodated if he or she objects to complying with an antidiscrimination law. Should the law, for example, accommodate a hospital nurse who objects to caring for a black patient because of religious objections to integration of the races? Even if the accommodation were seamless from the perspective of the patient and without undue hardship to the hospital (see Trans World Airlines, Inc. v. Hardison, 432 US 63, 76 [1977]) (describing test for accommodation), the accommodation would sanction discrimination. Moreover, the staff would see the accommodation and thus the way in which the law and management protected discrimination. That question, however, is beyond the scope of this chapter. These debates are, of course, not limited to the United States. See, e.g., “Drawing the Line: Tackling Tensions between Religious Freedom & Equality,” International Network of Civil Liberties Organizations (INCLO), September 2015, www.aclu.org/report/drawing-line.

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of religion, stores assert a right to turn away same-sex couples seeking weddingrelated services,18 pharmacies claim a right to turn away women seeking birth control,19 employers assert a right to refuse even to facilitate insurance coverage for contraception for their employees,20 and hospitals claim a right to refuse to provide abortion, sterilization, or transition-related health care.21 It is not surprising that we are seeing this debate at this time. Changes in societal norms to advance equality in the United States have often met with resistance, with calls for exemptions based on religious beliefs being just one form.22 Resistance to racial equality, for example, included resistance rooted in religion;23 when laws banning racial discrimination were enacted, the new norms were often resisted as infringing on religious liberty.24 There were calls for exemptions by those objecting on religious grounds to the ban on discrimination in hiring in the Civil Rights Act of 1964,25 those opposed to integration in public accommodations,26 and those resisting bans on discrimination in education.27 Congress and the courts rejected those 18

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E.g., Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), appeal argued sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16-111 (U.S. December 5, 2017 argued); State v. Arlene’s Flowers, Inc., 389 P. 3d 543 (Wash. 2017), petition for cert. filed, No. 17-108 (U.S. July 14, 2017); Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013), cert. denied, 134 S. Ct. 1787 (April 7, 2014) (No. 13–585). Stormans, Inc. v. Weisman, 794 F.3d 1064 (9th Cir. 2015), cert. denied, 136 S. Ct. 2433 (June 28, 2016) (No. 15–862); Morr-Fitz, Inc. v. Blagojevich, 901 N.E.2d 373 (Ill. 2008). See, e.g., Zubik, supra n. 9. E.g., Means v. U.S. Conference of Catholic Bishops, 836 F.3d 643 (6th Cir. 2016); Complaint, Chamorro v. Dignity Health, No. CGC 15–549626 (Cal. Super. Ct. December 28, 2015); Franciscan Alliance v. Burwell, 227 F. Supp. 3d 660 (N.D. Tex. 2016). See generally “Ethical and Religious Directives for Catholic Health Care Services, 5th ed.,” U.S. Conference of Catholic Bishops, 2009, www.usccb.org/issues-and-action/human-life-and-dignity/health-care/ upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf (setting forth standards for care in Catholic health care services; hereinafter USCCB, “Ethical and Religious Directives”). I credit James Esseks, director of the ACLU’s LGBT & HIV Project, with denoting the strategy of calling for exemptions as Plan B, with Plan A being to advocate against the change in legal norms. The demands for racial equality too were often grounded in religion. See, e.g., Brief Amici Curiae of Julian Bond, et al. in Support of the Government, Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (No. 13–354), 2014 WL 491245, at *7, *13. See generally Julian Bond amicus, Hobby Lobby, supra n. 23 at *10–19; “Striking a Balance: Advancing Civil and Human Rights While Preserving Religious Liberty,” The Leadership Conference Education Fund, 9–11, February 1, 2016, http://civilrights.org. See EEOC v. Pac. Press Publ’g Ass’n, 676 F.2d 1272, 1276–7 (9th Cir. 1982) (recounting legislative history of Civil Rights Act of 1964). Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966), aff’d in relevant part and rev’d on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968). Bob Jones Univ. v. United States, 461 U.S. 574, 580–2 (1983).

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claims.28 A similar pattern arose as women secured legal protections against discrimination. Religiously affiliated schools, for example, looked to principles of faith in an attempt to justify lower pay for women.29 Again, the courts said no.30 And now, as legal protections for LGBT people – whether to respect marriage rights, to bar discrimination in hiring, or to end discrimination in health care – become more common, so too do the calls for exemptions for those with faith-based objections.31 Similarly, measures to advance women’s equality – be it the federal rule requiring contraceptive coverage in insurance, state rules requiring pharmacies to fill prescriptions for contraception, or the federal regulation barring discrimination in healthcare based on sex and termination of pregnancy – have sparked calls for exemptions.32 Here, as in the other contexts, the exemptions if granted will preserve the status quo for some sectors of society and, more importantly, the protest against change.33 To date, however, the calls for exemptions have been received quite differently depending on whether the refusal concerns services for LGBT people or for women seeking to control their fertility. 14.3 SEEING THE HARMS OF BEING DENIED SERVICE

In this emerging context, as the stories of the Indiana and Arizona RFRAs illustrate, refusals to serve LGBT people for reasons of faith are increasingly

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See Pac. Press, supra n. 25; Piggie Park, supra n. 26; Bob Jones Univ., supra n. 27. Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1392 (4th Cir. 1990); EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986). While the courts in this context rejected arguments for exemptions to permit discrimination based on sex, Congress has afforded more limited protections against sex discrimination, in terms of both the reach of the laws and the exemptions that are baked into the laws. The federal Civil Rights Act, for example, provides no protections against discrimination based on sex in public accommodations, 42 U.S.C. § 2000a (2016), and Title IX, which bars sex discrimination in education, does not apply to an educational institution controlled by a religious organization “if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C. § 1681(a)(3) (2016). See, e.g., supra n. 18 (challenges involving public accommodations); Barrett v. Fontbonne Acad., 33 Mass. L. Rptr. 287 (Super. Ct. 2015) (settled May 2016; challenge involving employment); Franciscan Alliance, supra n. 21. Hobby Lobby, supra n. 9 (for-profit challenges to contraception coverage rule); Zubik, supra n. 9 (nonprofit challenges to contraception coverage rule); Stormans, supra n. 19 (challenge to pharmacy rule); Morr-Fitz, supra n. 19 (challenge to pharmacy rule); Franciscan Alliance, supra n. 21 (challenge to health care nondiscrimination regulations). See NeJaime and Siegel, “Conscience Wars,” supra n. 15 at 2563–64 (demonstrating how conscience claims are not just about preserving a space to maintain religious views but rather are part of a “long-term effort to contest society-wide norms”).

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understood as discriminatory, with the harm of being turned away often recognized and articulated. As this section argues, refusals to serve women seeking to control their fertility similarly discriminate, stigmatize those turned away, and frustrate equality. The decision of a federal district court preliminarily enjoining a 2016 Mississippi law sanctioning religious refusals shows how robustly we understand the harms of faith-based exemptions in the LGBT context. The Mississippi law at issue in that decision provides that the state will not “discriminate” against institutions that act based on sincerely held beliefs that marriage is between one woman and one man; that sex is properly reserved to such a relationship; and that male and female refer to “an individual’s immutable biological sex as objectively determined by anatomy and genetics at the time of birth.”34 The district court in that case recognized the “injurious nature” of the law, describing it as establishing a “broad-based system by which LGBT persons . . . can be subjected to differential treatment based solely on their status.”35 “Part of the injury is stigmatic,” the court explained, “but that stigmatic injury is linked to the tangible rights that will be taken away [on the law’s effective date], including the tangible rights [to marriage] Obergefell extended.”36 Most significant for the purpose of this chapter, the court noted that “[u]nder the guise of providing additional protection for religious exercise, [the law] creates a vehicle for state-sanctioned discrimination on the basis of sexual orientation and gender identity.”37 It further emphasized that the law would subject LGBT people to the “same message of inferiority and secondclass citizenship” as they had before Obergefell and other decisions respecting LGBT rights issued.38 In addition, the court noted, for some services such as counseling, the law didn’t even place a duty on the institution or individual asserting a claim of conscience to ensure that LGBT individuals turned away were in fact able to receive services.39 That court, like the businesses and celebrities protesting the bills in Indiana and Arizona, understood the harm at issue to be the harm of the discrimination itself, not just the harm of being denied the service or being forced to seek the service elsewhere. In this way, that court appreciated what the Senate 34 35

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H.B. 1523 § 2(c), 2016 Leg., Reg. Sess. (Miss. 2016). Barber v. Bryant, 193 F. Supp. 3d 677, 699 (S.D. Miss. 2016), rev’d on standing grounds, 860 F.3d 345 (5th Cir. 2017), cert. denied, Nos. 17-547 & 17-642 (U.S. January 8, 2018). The decision of the district court remains significant despite reversal. It demonstrates that measures sanctioning religious objections to LGBT rights are seen as discriminatory, even if that understanding is not universal. Barber, supra n. 35 at 700. In Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the US Supreme Court recognized a right to marriage for same-sex couples. Barber, supra n. 35 at 710. 38 Barber, supra n. 35 at 711. 39 Barber, supra n. 35 at 711.

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Commerce Committee recognized in the context of the Civil Rights Act: “Discrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.…”40 In other words, in the LGBT context in the United States, the issue as it is debated isn’t just about cakes and flowers; it’s about much more.41 When it comes to refusals to provide services related to contraception and abortions, too often the harms are seen differently. The conversation is still all too often about the service and access alone. We talk of pharmacies refusing to provide contraception and hospitals refusing to provide abortion. We don’t talk of pharmacies closing their doors on women because they want emergency contraception or of hospitals turning away women because they want an abortion. Women often simply aren’t in the picture. And if women are, it is often to talk about whether they can access services elsewhere. The harms of stigma and shaming and discrimination against women are not robustly discussed in the broad cultural debates – assuming they are seen at all.42 But the woman who is turned away from the hospital because she seeks an abortion or from the pharmacy because she seeks Plan B is akin to the same-sex couple refused a wedding cake in that she is turned away because of who she is. She is turned away for not adhering to gender stereotypes about how a woman should be. If she sought prenatal vitamins from the pharmacy, she would be served. If she sought prenatal care at the hospital, she would be served. But if she seeks emergency contraception or an abortion or even a referral for abortion at a Catholic hospital, for example, she is turned away.43 She is 40

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Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 292 (1964) (Goldberg, J., concurring) (quoting S. Rep. No. 88–872, at 16 [1964]). As the mother of Charlie Craig, a plaintiff in the Masterpiece Cakeshop case in the US Supreme Court, said, “This case is not about a cake . . . [My son and his fiance´e] were told they weren’t good enough to be served in their own community.” Debbie Munn, “How It Feels When Someone Refuses to Make Your Son a Wedding Cake,” Time, October 27, 2017, http://time.com/4991839/masterpiece-cakeshop-supreme-court-gay-discrimination/. Even the judge in the Mississippi case, otherwise sensitive to stigma and discrimination, distinguished the law there at issue from laws that permit institutions to close their doors on those seeking abortion services. Federal laws sanctioning religious refusals to provide abortions, the court reasoned, do not permit entities to discriminate by and choosing whom to serve. Barber, supra n. 35 at 720. In other words, even that court did not see the issue as a refusal to serve some women, based on how we decide to live our lives. See also Barber v. Bryant, No. 3:16-cv-417-CWR-LRA, 2016 WL 4096726 at *2 (S.D. Miss. Aug. 1, 2016) (slip copy) (denying motions to stay) (rejecting analogy to laws permitting persons to opt out of going to war or performing abortions: “Matters of life and death are sui generis”). According to the Ethical and Religious Directives, Catholic health care institutions should provide prenatal, obstetric, and postnatal services; they should permit neither direct abortion nor direct sterilization; and they may not condone contraception USCCB, “Ethical and

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turned away for not embracing the role of mother, for not putting aside her needs and desires, for being selfish. It’s all part of a legacy of discrimination.44 That legacy kept women out of the legal profession because, according to the Supreme Court, women’s “paramount destiny” was “to fulfill the noble and benign offices of wife and mother.”45 The legacy kept women off juries because we were “the center of home and family life.”46 The legacy is one the Supreme Court acknowledged and rejected in 1992 when it stated that, while the sacrifices to become a mother “have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others,” they “cannot alone be grounds for the State to insist she make the sacrifice.”47 The legacy, of course, isn’t only about stereotypes. It’s about having a shot at equality. As the plurality in Planned Parenthood v. Casey emphasized, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”48 But today, when we think about the pharmacy or the hospital or Hobby Lobby asserting a right to deny women access to contraception or abortion, we don’t think of these institutions as creating a “stigmatic injury” of the sort the federal district court recognized when considering the 2016 Mississippi law.49 Nor do we see the refusals of the pharmacy, the hospital, or Hobby Lobby to provide service because of faith as creating an injury “by denying tangible rights” to contraception and abortion recognized in Griswold v. Connecticut,50 Roe v. Wade,51 Planned Parenthood v. Casey,52 and Whole Woman’s Health v. Hellerstedt53 as we see refusals to serve LGBT people as undermining marriage rights declared in Obergefell.54

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Religious Directives,” supra n. 21 at 26–27. Notably, as of 2016, one in six hospital beds in the United States was in a hospital that adheres to the Directives. Julia Kaye, Brigitte Amiri, Louise Melling, and Jennifer Dalven, “Health Care Denied,” ACLU, 2016, www.aclu.org/report/re port-health-care-denied?redirect=report/health-care-denied. For a fuller discussion of how restrictions on abortion constitute sex discrimination, see, e.g., Reva Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 124 (1992): 261–381. Bradwell v. State, 83 U.S. 130, 141 (1872) (Bradley, J., concurring). Hoyt v. Florida, 368 U.S. 57, 62 (1961). Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833, 852 (1992). Casey, supra n. 47 at 856. 49 Barber, supra n. 35 at 700. 381 U.S. 479 (1965) (recognizing constitutional protection for contraception). 410 U.S. 113 (1973) (recognizing constitutional protection for abortion). 505 U.S. 833 (1992) (reaffirming constitutional protection for abortion). 136 S. Ct. 2292 (2016) (enforcing Casey standards). 54 Obergefell, supra n. 36 at 2602.

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14.4 WHY THE DIFFERENCE?

There are at least two reasons for the different discourses around religious refusals in the reproductive rights and LGBT contexts, each of which merits a more robust treatment than this chapter affords. First, we see refusals of institutions to permit actions that facilitate abortions or contraception as about the service, not about women and thus a class. Second, we have a legal norm, and now a cultural one as well, that accepts refusals of institutions to serve women who seek abortions and in many cases women seeking contraception as well. 14.4.1 Service or Status First, at its core, as indicated earlier, our discourse around conscience and reproductive rights and our discourse around conscience and LGBT rights differ because the refusal to provide services related to contraception and abortions is often seen as being about a service, not as being about a class or protected status.55 In the case of the bakery that refuses to make a wedding cake for a same-sex couple, the discourse often isn’t about the cake or even just about the wedding. It’s about the couple turned away.56 Refusal in this context – even where motivated by faith – is now often seen as a form of discrimination. That is true even though, in many if not most cases, the businesses refusing to serve same-sex couples for services related to their weddings will provide other services to lesbian and gay customers.57 When it comes to refusals to provide services to women who seek to control their fertility, as discussed earlier, the service at issue, not the woman, all too often remains the centerpiece of the conversation. But if we are to be true to what’s at stake, we need to transform our thinking about reproductive rights as we have transformed our thinking about LGBT rights. Sodomy laws were once defended on the ground that they condemned 55

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The ACA marked a beginning for change in this respect. The ACA bars discrimination on a host of grounds, including on the basis of sex. 42 U.S.C. § 18116 (2016). The regulation implementing the ACA defines “on the basis of sex” to include discrimination “on the basis of termination of pregnancy.” 45 C.F.R. § 92.4 (2016). The transformative power of the regulation is limited, however, as the ACA and its regulations do not disrupt “applicable Federal statutory protections for religious freedom and conscience.” 45 C.F.R. § 92.2 (2016). In addition, the regulation was enjoined in litigation in December 2016 and remains enjoined as of January 2018. Its fate is also uncertain given the new administration. See Franciscan Alliance, supra n. 21. The conversation is also about the bakery owner and the challenges the owner faces in terms of competing claims of faith and changing societal norms. See Masterpiece, supra n. 18.

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certain sexual conduct, not gay people. In Bowers v. Hardwick,58 for example, the Court framed the issue as whether there is “a fundamental right [of] homosexuals to engage in sodomy” and upheld the constitutionality of a law that made sodomy illegal.59 More than fifteen years later, in Lawrence v. Texas, the Court wrote, That statement . . . discloses the Court’s own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse.60

Justice O’Connor in her concurrence added, “While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.”61 To cast access to contraception and abortion as about goods and services is similarly a “failure to appreciate the extent of the liberty at stake.”62 The Court in Lawrence compared the liberty at issue there to that involved in personal decisions about “marriage, procreation, contraception, family relationships, child rearing, and education.”63 Looking to Planned Parenthood v. Casey, the Lawrence Court noted “the respect the Constitution demands for the autonomy of the person in making these choices,”64 emphasizing that “[a]t the heart of liberty is the right to define one’s own concept of existence.”65 That, and not just a service, is what is at stake in today’s debate about women’s access to contraception and abortion. The reasoning of the Lawrence Court readily applies: “While it is true that the [rule] applies only to [a service], the [service] targeted . . . is closely correlated with being [a woman]. Under such circumstances, [the] law is targeted at more than [a service]. It is instead directed toward [women] as a class.”66 It’s all part of a legacy of discrimination yet it’s not recognized as one. We’ve moved beyond Bowers, but we haven’t moved completely beyond Bray v. Alexandria Women’s Health Clinic,67 a case in which the Court rejected 58 60

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478 U.S. 186 (1986). 59 Bowers, supra n. 58 at 190. 539 U.S. 558, 567 (2003); see also Christian Legal Soc’y v. Martinez, 561 U.S. 661, 689 (2010) (rejecting distinction between conduct and sexual orientation). Lawrence, supra n. 60 at 583 (O’Connor, J., concurring). Lawrence, supra n. 60 at 567 (majority opinion). 63 Lawrence, supra n. 60 at 573–74. Lawrence, supra n. 60 at 574. Lawrence, supra n. 60 at 574 (quoting Casey, supra n. 47 at 851). Lawrence, supra n. 60 at 583 (O’Connor, J., concurring). 67 506 U.S. 263 (1993).

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the notion that animus toward abortion reflects discrimination against women as a class. More than twenty years later, we still hesitate to see refusals to provide contraception or abortions as sex discrimination. More fundamentally, we don’t seem even to see the stigma and judgment when women are turned away for wanting to prevent or end a pregnancy.68 It’s time to move beyond the arguments that differential treatment related to pregnancy is not sex discrimination. One contention – that refusals to provide abortion or contraception to women can’t be discrimination because there is no comparator – falls short because it leaves women, by virtue of pregnancy, as exceptional and thus unprotected. It signals that women can be regulated because of our capacity to become pregnant, a principle we have rejected whenever the rationale is expressly stated. More fundamentally, the argument reflects a cramped understanding of discrimination. The issue is not about how women are treated relative to men. It is about the treatment of women seeking to control their fertility by preventing or ending a pregnancy. It is about women who want to control their lives; it is about women not embracing the role of mother, at least at that moment;69 and it is about sex for pleasure versus for procreation. In that sense, it is all about gender roles. It is discrimination against women who are defying the gender stereotype that their role is to create and nurture other lives. And punishing women for not fitting gender stereotypes is sex discrimination.70 Nor is it an answer here that abortion is different as it implicates potential life. This difference does not speak to the question this chapter poses, namely, why do we not see the harms attendant on the woman when she is turned away from the pharmacy or the hospital or denied insurance coverage because she is deciding not to parent? Or, more essentially, why do we not see the women? The Court, however, has seen women and rejected the notion that we can impose on women the sacrifice of motherhood – that we can force women to continue pregnancies in the name of the fetus – and it has recognized access to abortion and contraception as essential to women’s equality. In this respect, by denying rights promised by the law to address inequality, religious exemptions

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To draw on language from Justice Kennedy’s opinion in Obergefell, “Especially against a long history of disapproval . . . this denial . . . works a grave and continuing harm.” Obergefell, supra n. 36 at 2604. See also Jenna Jerman, Rachel K. Jones, and Tsuyoshi Onda, “Characteristics of U.S. Abortion Patients in 2014 and Changes since 2008,” 7, Guttmacher Institute, 2016, www .guttmacher.org/report/characteristics-us-abortion-patients-2014 (notably nearly 60 percent of abortions in 2014 were for patients who had given birth at least once previously). E.g., Pricewaterhouse v. Hopkins, 490 U.S. 228 (1989) (employer who acts on the basis of sex stereotyping engages in sex discrimination).

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in the reproductive rights context, like those in the LGBT context, foster discrimination. 14.4.2 The Norm But a second reason helps inform why it is so hard, even for those who support access to contraception and abortion, to see the religiously based refusal of institutions to serve women seeking these services as a form of discrimination. It is that refusals to provide reproductive health care are the norm. We have accepted them. Laws sanctioning the refusal of hospitals and health care providers to provide services to women because they seek abortion wallpaper the country and have done so for more than four decades. By the end of 1974, less than two years after the Supreme Court issued its decision in Roe, twentyseven states had enacted laws allowing hospitals to refuse to provide abortions.71 Congress also moved quickly after Roe was decided to protect institutions that refused to treat women seeking abortions as well as those seeking sterilization. In 1973, Congress passed the Church Amendment, a federal law providing that receipt of federal funds could not be used as a predicate to require that a hospital provide services to women seeking abortion or sterilization services.72 This was only the beginning. Forty-three states now permit health care institutions to refuse to provide abortion services.73 Nearly half of these states permit institutions to refuse to provide contraception.74 Congress, too, continued to act. In a series of laws, the receipt of federal dollars became a force to protect, not contest, the right of health care institutions and individuals to turn away women because they seek abortion services. Today, for example, federal, state, and local government agencies and programs risk losing federal dollars if they “subject any institutional or 71

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NeJaime and Siegel, “Conscience Wars,” supra n. 15 at 2583, n. 89. Laws enacted by Congress and the states also allow individuals to refuse to participate in abortions and, to a lesser extent, sterilization and contraception services. This chapter does not recount those laws because of its focus on institutions. Health Programs Extension Act of 1973, Pub. L. No. 93–45, § 401(b)-(c), 87 Stat. 91, 95. The law provides that the receipt of government funds cannot be the basis for hospitals being seen as state actors and thus unable to ban or severely restrict access to sterilization or abortion. Receipt of state funds remains a factor in state court analysis of whether hospitals are quasipublic institutions and thus unable to refuse to provide abortions. See Doe v. Bridgeton Hosp. Ass’n, 366 A.2d 641 (N.J. 1976); Valley Hosp. Ass’n v. Mat-Su Coalition for Choice, 948 P.2d 963 (Alaska 1997). “Refusing to Provide Health Services,” Guttmacher Institute, January 2018, www.guttmacher .org/state-policy/explore/refusing-provide-health-services. “Refusing,” Guttmacher Institute, supra n. 73.

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individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions.”75 This is in marked contrast to the way in which Medicare funding, for example, was used to require assurances of nondiscrimination based on race as a condition of participation and thus spark integration of hospitals.76 In other words, for more than two generations, we have lived with laws meant to let hospitals and health care institutions refuse to serve women seeking abortions or other services to control their fertility because of claims of conscience. The norms reflected in these laws reinforce a view that abortion is immoral. The laws sanctioning refusals are, of course, only one part of that piece. The Hyde Amendment, which banned coverage of abortion in the Medicaid program, passed in 1976.77 In Harris v. McRae, the Supreme Court upheld the ban, further stigmatizing abortions, and thus the women who seek them.78 The Court characterized the amendment as a way to, “by means of unequal subsidization of abortion and other medical services, encourage alternative activity deemed in the public interest.”79 More bluntly stated, the Court ruled that the government can make “a value judgment favoring childbirth over abortion, and . . . implement[] that judgment by the allocation of public funds.”80 The Court later extended the reasoning of Harris to uphold a state law making it unlawful for any public facility – including a public hospital – to be used for an abortion.81 Come 1992, the doctrine was adopted outside the funding context, with the Court in Planned Parenthood v. Casey ruling that the government could use its power to “persuade [a woman] to choose childbirth over abortion,” provided it did so in a manner that did not impose an undue burden.82 And now we have a Court unwilling to reject squarely a claim that merely stating an objection to providing insurance coverage for

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Consolidated Appropriations Act, 2016, Pub. L. No. 114–113, § 5087(d)(1), 129 Stat. 2242, 2649 (2015). See generally Louise Melling and Sarah Lipton-Lubet, “Follow the Money: Ending Discrimination against Women in Hospitals,” Georgetown Journal of Gender and Law 15 (2014): 473–78, (detailing ways in which government funds typically have been used to mandate nondiscrimination and contrasting that with the way in which government dollars are used as tools to protect discrimination against women who seek to control their fertility). HHS Appropriations 1977, Pub. L. No. 94–439 § 209, 90 Stat. 1434 (1976) (original version). 448 U.S. 297 (1980). Medicaid is a program of government insurance for the poor in the United States. Harris, supra n. 78 at 315. Harris, supra n. 78 at 314 (quoting Maher v. Roe, 432 U.S. 464, 474 [1977]). Webster v. Reproductive Health Servs., 492 U.S. 490 (1989). 82 Casey, supra n. 47 at 977.

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contraception, where that objection may facilitate coverage by a third party, violates the religious liberty of nonprofit entities.83 Again, this body of law fosters a norm that abortion it is contrary to the public interest, is a practice to be discouraged and shunned, and is immoral. How else do we understand a world in which hospitals can ban abortions, doctors can refuse to make referrals, and the government can discourage exercise of the right? If we come to accept a notion that abortion is immoral, if we think of it that way rather than as a right essential to equality or as health care, the press for refusals is all the more sympathetic and the instinct to question less ready. We increasingly accept a vision of the woman seeking an abortion as wearing a scarlet letter A on her hospital gown and being shunned.84 We do not see her as the subject of discrimination, with a dignity harm to be remedied in law and culture. And there is now a push to cast the woman seeking to access contraception similarly. This trend needs reversal so that the refusal to serve women seeking to control their fertility, like refusals to serve LGBT people based on faith objections, is increasingly seen as discrimination that is against the public interest. 14.5 WHY IT MATTERS

The difference in approach matters. It matters for women, for our national conversation about abortion and contraception, and for policy. If we saw the harm to women turned away because they sought contraception or abortions, we would have a different conversation about pharmacies and insurance and hospitals and women. The conversation would not focus, as it often does today, on whether there was another place for a woman to go, just as the first question in the context of the wedding services is not whether there was another bakery or photography studio in town. The question wouldn’t be only how many miles are too many. Rather, the conversation would attend to the harms of being turned away. Our focus would turn to preventing the initial harm of being refused, rather than accepting that harm and seeking to avoid the secondary harm by focusing on access to the service elsewhere. 83 84

Zubik, supra n. 9 at 1557. See generally Danquah v. Univ. of Med. & Dentistry of N.J., No. 2:11-cv-06377-JLL-MAH (D.N.J 2011) (case in which nurses objected on religious grounds to providing services to women before and after abortion, including having the patient change into a gown, checking to see if the patient had a ride home, checking the patient’s temperature, seeing if the patient was nauseated after the procedure, reviewing discharge instructions, and making a follow-up appointment).

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We would ask different questions. What does it mean to allow pharmacies to turn away women because they seek Plan B? What does it mean to close the door on women because they want an abortion? Should our taxpayer dollars be used to protect institutions that refuse to serve women seeking abortions or to support the woman seeking care essential to her equality and protected by the Constitution? Should our hospitals be allowed to post a metaphorical sign, “Only women embracing motherhood served here”? What does it mean to reject religious exemptions in the law because they undermine rights declared in Obergefell but to embrace them when they undermine rights secured in Griswold, Roe, Casey, and Whole Woman’s Health?85 Our national discourse would be different. In Obergefell, in the majority opinion, Justice Kennedy stated, Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.86

So too refusals laws put the imprimatur of the state on an exclusion that stigmatizes. The question is, when it comes to laws sanctioning the refusals of institutions to serve women seeking abortions and contraception, are we willing to start seeing that?

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The difference cannot be that those objecting to providing services for same-sex couples are often for-profit and those objecting to serving women seeking reproductive health care are typically religiously affiliated. The institutions refusing to provide wedding-related services include religiously affiliated institutions that open their doors for receptions, but close them to same-sex couples. Bernstein v. Ocean Grove Camp Meeting Ass’n, OAL DKT No. CRT 6145–09, 2012 WL 169302, at *1 (N.J. Adm. January 12, 2012). The institutions objecting to contraception include for-profit entities, nonprofits, and religiously affiliated nonprofits as do those objecting to providing abortions and tubal ligations. E.g., Burwell, supra n. 9 (for-profit challenges); Zubik, supra n. 9 (nonprofit challenges), Kaye and others, “Health,” supra n. 43 at 7. Obergefell, supra n. 36. Note that the federal RFRA has since been used to sanction discrimination against a transgender woman. EEOC v. R. G. & G. R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837 (E.D. Mich. 2016), rev’d, No. 16-2424, 2018 WL 1177669 (6th Cir. Mar. 7, 2018).

15 Seeking to Square the Circle A Sustainable Conscientious Objection in Reproductive Health Care Emmanuelle Bribosia and Isabelle Rorive

15.1 INTRODUCTION

Conscientious objection strongly resonates with Belgian lawyers.1 On March 30, 1990, King Baudouin I, a practicing Catholic, refused to sign a law that decriminalized induced abortion when performed during the first twelve weeks of pregnancy. The king alleged a “serious problem of conscience.”2 He argued that he could not reconcile the duties of his office and the duties of his conscience and relied on the prime minister to guarantee the functioning of parliamentary democracy. The showdown translated into a political backlash that remains in living memory. This was totally untested in the history of Belgium, a representative democratic constitutional monarchy born in 1831 where no personal power has ever been vested in the king.3 Our head of state mainly has formal functions and certainly no right to veto.4 Yet Baudouin I claimed that he could not be “the only Belgian citizen to be forced

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This research was funded by the Interuniversity Attraction Poles Programme (IUAP), initiated by the Belgian Science Policy Office (BELSPO). More particularly, this chapter was written in the framework of the IUAP project “The Global Challenge of Human Rights Integration: Towards a Users’ Perspective (2012–2017),” www.hrintegration.be/. The authors want to thank the participants in the international conference “The Conscience Wars” on September 20, 2015 at the Cardozo School of Law (New York), where an earlier version of this work was presented. Some fragments of this chapter come from Emmanuelle Bribosia, Ivana Isailovic, and Isabelle Rorive, “Objection Ladies! Taking IPPF-EN v. Italy One Step Further,” in Eva Brems and Ellen Desmet, eds., Integrated Human Rights in Practice: Rewriting Human Rights Decisions (Cheltenham: Edward Elgar, 2017), 261–85. King Baudouin of Belgium, letter to Prime Minister Wilfried Martens, March 30, 1990 (translation from the French version). Belgian Constitution of February 7, 1831 as promulgated by the National Congress, esp. Articles 63–64. Belgian Constitution (as modified on February 7, 2014), Article 106.

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to act against his conscience in a key area.”5 In the end, the prime minister, with the help of constitutional lawyers, found a loophole to save the monarchy and keep both the king and the law partially decriminalizing induced abortion.6 For quite some time now, it has been well documented that there is no correlation between highly restrictive abortion laws and lower abortion rates.7 The World Health Organization (WHO) recognizes that “whether abortion is legally restricted or not, the likelihood that a woman will have an abortion for an unintended pregnancy is about the same.”8 The key issue is about access to safe abortion to avoid putting women’s health and lives in jeopardy. The numbers speak for themselves. Worldwide, 25 percent of pregnancies ended in abortion in 2010–14.9 Although unsafe abortion is a very tricky indicator to measure, WHO manages to maintain a database showing that unsafe abortions performed annually are estimated to be between 21 million and 22 million, resulting in 47,000 maternal deaths10 and causing disability in millions of women.11 Unsafe abortion remains the third leading cause of maternal death (accounting for nearly 13 percent of all maternal deaths), after hemorrhage and sepsis due to childbirth.12 While most European countries ensure legal access to abortion,13 some national laws are still very restrictive. The UN Human Rights Committee 5 6

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King Baudouin, letter to Prime Minister Wilfried Martens. Abortion Act 1990 [Loi relative a` l’interruption de grossesse, modifiant les articles 348, 350, 351 et 352 du Code pe´nal et abrogeant l’article 353 du meˆme Code], Official Journal [Moniteur belge], April 1990. See Xavier Mabille, “Le de´bat politique d’avril 1990 sur la sanction et la promulgation de la loi,” Courrier Hebdomadaire du CRISP 10, no. 1275 (1990): 1–33; Roger Lallemand, “La conscience royale et la repre´sentation de la Nation. Re´flexions a` propos d’une crise,” Journal des Tribunaux 109, no. 5556 (1990): 465–69. Gilda Sedgh, Jonathan Bearak, Susheela Singh, Akinrinola Bankole, Anna Popinchalk, ¨ zge Tunc¸alp, Brooke Ronald Johnson Bela Ganatra, Cle´mentine Rossier, Caitlin Gerdts, O Jr., Heidi Bart Johnston, and Leontine Alkema, “Abortion Incidence between 1990 and 2014: Global, Regional, and Subregional Levels and Trends,” Lancet 388, no. 10041 (2016): 258–67, at 263–64. See also N. Muizˇnieks, “Protect Women’s Sexual and Reproductive Health and Rights,” Human Rights Comment – CoE Commissioner for Human Rights’ Blog, 2016. World Health Organization (WHO), Safe Abortion: Technical and Policy Guidance for Health Systems, 2nd edn. (World Health Organization, 2012), 23. Sedgh, “Abortion Incidence,” 263–64. World Health Organization (WHO), Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2008, 6th edn. (World Health Organization, 2011), 27. Five million women according to World Health Organization (WHO), Women and Health: Today’s Evidence, Tomorrow’s Agenda (World Health Organization, 2009). WHO, Unsafe Abortion. In the European Union (including the United Kingdom), Malta is the only country that still criminally bans abortion in all cases. Within the Council of Europe, similar laws are in force

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recently condemned Ireland, where abortion is only permitted to save a woman’s life. According to the Committee, forcing a woman to choose between carrying her nonviable fetus to term and seeking an abortion abroad at personal expense amounts to discrimination, and cruel, inhuman, or degrading treatment.14 The Commissioner for Human Rights of the Council of Europe expressed concern at a 2016 bill prepared in Poland that introduced a similarly restrictive law, despite three rulings from the European Court of Human Rights in the past decade that have criticized the country for hindering access to abortion.15 Aside from restrictive laws, many European countries still tolerate various barriers that prevent women from accessing the procedure for the termination of pregnancy such as waiting periods, mandatory counseling and other administrative requirements, or limitations on abortion funding.16 Conscientious objection is one of these barriers. It refers to the refusal by health care personnel, including doctors (general practitioner, gynecologist, anesthetics), nurses, and other nonmedical staff, to perform abortion or provide pre-abortion or post-abortion care on the grounds of their moral, religious, or philosophical beliefs.17 With few exceptions, a refusal clause, most commonly known as a conscience clause in Europe, is enshrined in many European legal systems, although it takes different forms (statutory law, medical policies, or code of ethics).18

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in San Marino and Andorra. More generally, see the “World’s Abortion Laws Map” designed by the Centre for Reproductive Rights (www.worldabortionlaws.com). Mellet v. Ireland (UN Human Rights Committee [UNCCPR], March 31, 2016), CCPR/ C/116/ D/2324/2913, paras. 7.6 and 7.11. Muizˇnieks, “Protect Women’s Health.” The rulings of the European Court of Human Rights referred to are: P. and S. v. Poland, App. no 57375/08 (ECHR, October 30, 2012); R.R. v. Poland, App. no 27617/04 (ECHR, November 28, 2011); Tysiac v. Poland, App. no 5410/03 (ECHR, March 20, 2007). Rebecca J. Cook, Joanna N. Erdman, and Bernard M. Dickens, eds., Abortion Law in Transnational Perspective: Cases and Controversies (Philadelphia: University of Pennsylvania Press, 2014); International Covenant on Economic, Social and Cultural Rights (CECSR), General Comment no. 22 on the Right to Sexual and Reproductive Health (Article 12 of the CECSR), May 2, 2016, E/C.12/GC/22, para. 2; International Planned Parenthood Federation (IPPF), Abortion Legislation in Europe (January 2012). See, e.g., Bernard M. Dickens, “The Right to Conscience,” in Cook, Erdman, and Dickens, Abortion Law in Transnational Perspective, 210. In EU Member States, conscientious objection to performing abortion is granted by law, except in countries such as Sweden, Finland, Bulgaria, and the Czech Republic. Within the Council of Europe, the same applies with a few exceptions such as Norway, Switzerland, and Iceland. The lack of express regulation does not mean that there is no use of conscientious objection in practice. See Anna Heino and others, “Conscientious Objection and Induced Abortion in Europe,” European Journal of Contraception and Reproductive Healthcare 18, no. 4 (2013): 231–33.

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Today, human rights defenders are denouncing the worrying trend against abortion rights worldwide that puts women’s rights and gender equality at risk.19 In the European Union, the Estrela report on Sexual and Reproductive Health and Rights is an emblematic instance of this development. Prepared in 2013 by Edite Estrela, a Portuguese Member of the European Parliament, it was finally defeated in the European Parliament by a margin of a few votes after intense lobbying from religious and political conservatives. The extensive report of nearly ninety recommendations and opinions called for strong EU action on sexual and reproductive health and rights to ensure their universal accessibility throughout Europe, including safe and legal abortion services.20 It was replaced with a Resolution noting that the formulation and implementation of policies in sexual and reproductive health and rights is a competence of the Member States.21 The same dynamic is noticeable in the Council of Europe. In 2010, the adoption of European Resolution 1763 on “The right to conscientious objection in lawful medical care”22 is a salient example of the way reactionary religious groups are using human rights rhetoric in order to push forward their interests. At first, the resolution proposal came from the Social, Health and Family Affairs Committee of the Parliamentary Assembly of the Council of Europe. It was based on a report presented by Christine McCafferty, a British Labour MP, which stressed the urgent need to regulate and monitor the use of conscientious objection in health services as women were at risk of being unable to access lawful services such as abortion and emergency contraception. The balanced framework of this resolution proposal was completely reversed with the support of a narrow majority.23 The result is an incoherent text, prefixing some parts of 19

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N. Muizˇnieks, “Women’s Rights and Gender Equality in Europe,” Human Rights Comment – CoE Commissioner for Human Rights’ Blog, 2016, paras. 48–53; Muizˇnieks, “Protect Women’s Health.” A. Hodzˇic´ and N. Bijelic´, Neo-Conservative Threats to Sexual and Reproductive Rights in the European Union (CESI, 2014), 1–30. This report is based in part on monitoring carried out by the European Humanist Federation (EHF), “Sexual and Reproductive Rights ARE Human Rights,” EHF campaign 2013/2014. At the global level, see the retrogressive measures denounced by the CECSR in CECSR, “General Comment no. 22.” In the United States, see, for instance, House Bill 2 enacted in 2013 in Texas and struck down by the Supreme Court in Whole Woman’s Health v. Hellerstedt, 579 US __ (2016). Report on Sexual and Reproductive Health and Rights, December 2, 2013 (A7-0426/2013), Committee on Women’s Rights and Gender Equality Rapporteur: Edite Estrela. European Parliament Resolution of December 10, 2013 on Sexual and Reproductive Health and Rights (2013/2040[INI]). Parliamentary Assembly of the Council of Europe (PACE), Resolution no. 1763, The Right to Conscientious Objection in Lawful Medical Care (2010), http://assembly.coe.int/main.asp? Link=/adoptedtext/ta10/eres1763.htm. Christine McCafferty, “Report on Women’s Access to Lawful Medical Care: The Problem of Unregulated Use of Conscientious Objection,” Social Health and Family Affairs Committee, 2010, www.assembly.coe.int/committeedocs/2010/20100621_aah%202010_18.pdf.

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the original with unfettered rights to conscientious objection not only for individuals, but also for institutions, even though the report in its original form expressly excluded the latter. Its first paragraph reads as follows: “No person, hospital or institution shall be coerced, held liable or discriminated against in any manner because of a refusal to perform, accommodate, assist or submit to an abortion, the performance of a human miscarriage, or euthanasia or any act which could cause the death of a human foetus or embryo, for any reason.”24 As Lady Hale put it in a 2014 ruling of the Supreme Court of the United Kingdom: “The conscience clause was the quid pro quo for a law designed to enable the healthcare profession to offer a lawful, safe and accessible service to women.”25 What is true for the UK Abortion Act 1967 is true in many other countries. At first sight, such a path is actually very attractive: a way to reconcile the fundamental rights of women with the conscience claims of health care providers. And if we take the human rights standards seriously (Section 15.2), this should involve a strict regulatory framework to keep the balance. Our aim in this chapter is to bring the argument one step forward and to show, against the background of supranational and national legal cases, that the recognition of a right to conscientious objection in reproductive health care is hardly sustainable (Section 15.3). Besides, even if a balanced framework were enforceable, we argue that there are strong legal and principled arguments for refusing to accommodate conscientious claims in the field of reproductive health. Conscience clauses involve not only direct harm to women who wish to access abortion services, but also indirect or symbolic harm (Section 15.4). 15.2 INTERNATIONAL AND EUROPEAN HUMAN RIGHTS LAW STANDARDS

While the right to abortion is not spelled out as such in the international or regional human rights treaties,26 recent developments strongly support the 24 25

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PACE, “Resolution on the Right to Conscientious Objection.” Greater Glasgow Health Board (Appellant) v. Doogan and Another (Respondents) (Scotland) [2015] AC 640, [2015] 2 All ER 1, [2015] 1 AC 640, [2014] UKSC 68. At the regional level, the Maputo Protocol on the rights of women in Africa explicitly states that the right to health care includes access to safe and legal abortion and calls on States Parties to “take all appropriate measures to protect the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest and where the continued pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus” (Article 14). See also Ch. Zampas and J. M. Gher, “Abortion as a Human Right – International and Regional Standards,” Human Rights Law Review 8, no. 2 (2008): 249–94, at 287.

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view that a right to “safe and legal abortion is a woman’s human right.”27 In May 2016, the UN Committee on Economic, Social and Cultural Rights in its General Comment 2228 considered that the right to sexual and reproductive health care stems from the combination of several human rights such as the general right to health,29 the right to individual autonomy,30 privacy and respect for family life, equality and nondiscrimination, the right to education as well as the right to life, and freedom from torture and other cruel, inhuman, or degrading treatment.31 The Committee embraced a gender perspective and emphasized the pressing need to reform discriminatory laws, policies, and practices to prevent unintended pregnancies and unsafe abortions. States are required to adopt legal and policy measures to guarantee all individuals access to affordable, safe, and effective contraceptives and comprehensive sexuality education, including for adolescents; to liberalize restrictive abortion laws; to guarantee women and girls access to safe abortion services and quality post-abortion care, including by training healthcare providers; and to respect the right of women to make autonomous decisions about their sexual and reproductive health.32

In Europe, in the wake of a 2008 Resolution of the Parliamentary Assembly of the Council of Europe,33 the Commissioner for Human Rights strongly 27

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“Safe and Legal Abortion Is a Woman’s Human Right,” Briefing paper, Centre for Reproductive Rights, October 2011, www.reproductiverights.org. CECSR, “General Comment no. 22.” The CECSR defines the right to sexual and reproductive health care as entailing “the right to make free and responsible decisions and choices, free of violence, coercion and discrimination, regarding matters concerning one’s body and sexual and reproductive health. The entitlement includes unhindered access to a whole range of health facilities, goods, services and information” (ibid., para. 5). Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) guarantees women equal rights in deciding “freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.” CECSR, “General Comment no. 22,” para. 10. See the very detailed table provided by the Centre for Reproductive Rights listing the relevant provisions enshrined in international and regional human rights law (“Safe and Legal Abortion Is a Woman’s Human Right,” Briefing paper, October 2011); United Nations Office of the High Commissioner for Human Rights (OHCHR), “Abortion,” in Information Series on Sexual and Reproductive Health and Rights (United Nations, 2015); OHCHR and Danish Institute for Human Rights & UNFPA, Reproductive Rights Are Human Rights: A Handbook for National Human Rights Institutions (United Nations, 2014), HR/PUB/14/6; Human Rights Council, “Practices in Adopting a Human Rights-Based Approach to Eliminate Preventable Maternal Mortality and Human Rights,” Report of the Office of the OHCHR (2011) (A/HRC/18/27) paras. 29–30; Zampas and Gher, “Abortion as a Human Right,” 287. CECSR, “General Comment no. 22,” para. 28 (emphasis added). PACE, Resolution 1607, Access to Safe and Legal Abortion in Europe, 2008, http://assembly .coe.int/Mainf.asp?link=/Documents/Adopted/Text/ta08/ERES1607.htm.

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supported “the need to ensure access to safe and legal abortion.”34 In July 2016, he called for the decriminalization of abortion in the few countries where it is still totally forbidden and for the amendment of unduly restrictive abortion laws. His opinion widely relied on the requirements issued by the UN human rights treaty bodies. For instance, he endorsed the conclusions of the Human Rights Committee, adopted in June 2016, according to which Ireland “should amend its law on voluntary termination of pregnancy . . . including ensuring effective, timely and accessible procedures for pregnancy termination in Ireland and take measures to ensure that healthcare providers are in a position to supply full information on safe abortion services without fearing being subjected to criminal sanctions.”35 One must concede that the case law of the European Court of Human Rights is not as bold.36 Despite a European consensus among a large majority of Member States that abortion should be permitted on health and well-being grounds,37 the right to private and family life has so far not been construed so as to enshrine a right to induced abortion.38 This has to be put into perspective with the mandate of the Court, which is a supranational body operating in a subsidiarity-based framework. In recent years, the link between the legitimacy of the Court and subsidiarity has been clearly made.39 The fact that the Court is walking on eggshells to defend its mandate explains in part its cautious position regarding some sensitive issues. Thus, a broad national margin of appreciation as regards the circumstances in which an abortion should be permitted is left to Member States. Yet the Court monitors the coherence and the effectiveness of the national legal framework and requires

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Muizˇnieks, “Protect Women’s Health.” UNCCPR, Mellet v. Ireland, para. 9. See also UNCCPR, Concluding Observations Adopted by the Committee at Its 111th Session, July 7–25, 2014, CCPR/C/IRL/CO/4, para. 9. P. Londono, “Redrafting Abortion Rights under the Convention: A, B and C v. Ireland,” in Eva Brems, ed., Diversity and European Human Rights: Rewriting the Judgements of the ECHR (Cambridge: Cambridge University Press, 2013), 95–120; F. Fabbrini, Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (Oxford: Oxford University Press, 2014), 195–247. A., B. and C. v. Ireland, App. no 25579/05 (ECHR [GC], December 16, 2010), para. 235. See also Fabbrini, Fundamental Rights in Europe, 199–209. A., B. and C. v. Ireland, paras. 214–15. According to the Court, Article 8 ECHR cannot be interpreted as meaning that pregnancy and its termination pertain uniquely to a woman’s private life. The latter should be weighed against other competing rights, including those of the unborn child (see also Tysiac v. Poland, App. no. 5410/03 [ECHR, March 20, 2007], para. 76; Vo v. France, App. no. 53924/00 [ECHR (GC), July 8, 2004], paras. 76, 80, and 82). “High Level Conference on the Future of the European Court of Human Rights,” Interlaken Declaration, February 19, 2010.

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that “once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it.”40 Conscientious objection in reproductive health care can create a structural obstacle. Many issues stem from the fact that the use of conscientious objection is highly unregulated in a great number of jurisdictions.41 Doubts persist regarding its scope, especially as to who is entitled to object and with respect to what kind of activity. This is particularly salient in a context in which hospitals and corporations are also claiming a right to conscientious objection.42 Other questions relate to the moment when it should be raised and whether it also applies to urgent procedures. In addition, the duties of the objector are often not well defined and the compliance and oversight mechanisms vary. Beyond these legal aspects, the escalating number of objectors in some jurisdictions also produces stigmatizing effects on other health care practitioners who may then use conscientious objection in order to avoid being subjected to discrimination. A sustainable model of conscientious objection in reproductive health care must take into account the human rights developments concerning induced abortion. To start with, one has to keep in mind that military service is the only area in which conscientious objection has been recognized as a human right.43 As the European Court of Human Rights put it, freedom of religion does not protect every act motivated or inspired by a religion or belief44 and a medical doctor cannot rely on faith to escape from his professional duties. In other words, “States are obliged to organize their health service system in 40

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R.R. v. Poland, App. no. 27617/04 (ECHR, May 26, 2011), paras. 187, 200; A., B. and C. v. Ireland, para. 249; Tysiac v. Poland, parsa. 116–24; P. and S. v. Poland, para. 107. See McCafferty Report (n. 8). See R. Fletcher, “Conscientious Objection and Harm Reduction in Europe. T-388/2009 Conscientious Objection and Abortion: A Global Perspective on the Colombian Experience,” June 1, 2014, 123 (n. 9). Bayatyan v. Armenia, App. no 23459/03 (ECHR [GC], July 7, 2011) (concluding that in some cases conscientious objection can fall within the ambit of Article 9 ECHR, which guarantees freedom of thought, conscience, and religion). UNCCPR, “General Comment no. 22,” Article 18 (48th sess., 1993), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (1994), U.N. Doc. HRI/GEN/ 1/Rev.1 at 35, para. 11 (concluding that refusal to perform military service can be derived from Article 18 ICCPR, “inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief”); OHCHR, “Conscientious Objection to the Military Service,” 2012, www.ohchr.org/Documents/Public ations/ConscientiousObjection_en.pdf. See, for instance, Pichon and Sajous v. France (admissibility decision), no. 49853/99 (ECHR, October 2, 2001). See also Adriana Lamacˇkova´, “Conscientious Objection in Reproductive Healthcare: Analysis of Pichon and Sajous v. France,” European Journal of Health Law 15, no. 1 (2008): 7–43.

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such a way as to ensure that the effective exercise of freedom of conscience by health professionals in a professional context does not prevent patients from obtaining access to services to which they are entitled under the applicable legislation.”45 And since a 2016 decision of the European Committee of Social Rights, it is clear that states are under no positive obligation to provide a right to conscientious objection for health care workers under the right to health (enshrined in Article 11 of the European Social Charter).46 While UN human rights bodies refrain from ruling on a theoretical human right to conscientious objection in reproductive health care, they call on states to use caution when allowing health care providers to raise conscience refusals.47 In this line, states have to “appropriately regulate this practice to ensure that it does not inhibit anyone’s access to sexual and reproductive healthcare, including by requiring referrals to an accessible provider capable of and willing to provide the services being sought,48 and that it does not inhibit the performance of services in urgent or emergency situations.”49 States also need to ensure that “conscientious objection is accompanied by information to women about existing alternatives and that it remains a personal decision rather than an institutionalized practice.”50 A regulatory framework and a monitoring mechanism of the practice are also required.51 Before it was overturned by religious lobbies in the Parliamentary Assembly of the Council of Europe, the McCafferty Report shared a similar standpoint: a deep concern for the rise of largely unregulated conscience refusals in

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R.R. v. Poland, App. no. 27617/04 (ECHR, May 26, 2011), para. 206. See also P. and S. v. Poland, para. 106. Federation of Catholic Families in Europe (FAFCE) v. Sweden, Complaint no. 99/2013 (ECSR, June 17, 2015). CEDAW, Concluding Observations of the Committee on the Elimination of Discrimination against Women: Slovakia, 41st sess., 2008, CEDAW/C/SVK/CO/4; CEDAW, Concluding Comments of the Committee on the Elimination of Discrimination against Women: Poland, 37th sess., 2007, CEDAW/C/POL/CO/6. See also Brooke R. Johnson Jr. and others, “Conscientious Objection to the Provision of Legal Abortion Care,” International Journal of Gynecology and Obstetrics 123 (2013): S60–S62. CEDAW, General Recommendation no 24: Article 12 of the Convention (Women and Health), 1999, A/54/38/Rev.1, para. 11. CECSR, “General Comment no. 22,” para. 43. CEDAW, Article 10 (h); CEDAW, General Comment no. 24, Article 12, para. 20. See also CECSR, “General Comment no. 14,” para. 12.b. CEDAW, Concluding Observations on the Combined Seventh and Eighth Periodic Reports of Hungary Adopted by the Committee at Its Fifty Fourth Session, CEDAW/C/HUN/CO/ 7–8, 2003. See also the Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, presented at the fourteenth session of the Human Rights Council (May 20, 2010) (A/HRC/14/20/Add.3), para. 50; WHO, Safe Abortion, 94–96.

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reproductive health care that especially impact women with low incomes or living in rural areas.52 In its original form, the report called for a comprehensive legal and policy framework governing the practice, coupled with an effective oversight and complaint mechanism so as to “ensure that the interests and rights of both healthcare providers and individuals seeking legal medical services are respected, protected, and fulfilled.”53 15.3 THE TRICKY MONITORING OF A CONSCIENCE CLAUSE IN REPRODUCTIVE HEALTH CARE

The downside of a conscience clause, even if it is regulated by the legislator, is well illustrated in IPPF v. Italy, a case the European Committee of Social Rights decided in 2013.54 In Italy, a 1978 Act allows medical practitioners and other health personnel to exempt themselves from assisting legal abortion procedures if they raise a conscientious objection beforehand. This objection covers activities that are “specifically and necessarily designed to bring about the termination of pregnancy” but excludes pre-abortion and post-abortion care.55 The law provides for a duty to promptly refer the patient to someone who can help her. The law also provides that conscientious objection cannot be raised in emergency cases. In any event, hospitals and authorized nursing homes are required to ensure that women have access to abortion procedures. Regional authorities have the duty to supervise and ensure the implementation of the law. On paper, the law seems to provide enough safeguards to avoid any snowball effect. IPPF – International Planned Parenthood Federation (Europe)56 – launched a collective complaint before the European Committee of Social 52 53

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McCafferty Report. Ibid. In the same line, see the 2009 decision of the Constitutional Court of Colombia (T-388/ 2009), Gaceta de la Corte Constitucional [G.C.C.] n.p. (Colom.), www.corteconstitucional .gov.co/relatoria/2009/t-388–09.htm; O’Neill Institute for National and Global Health Law and Women’s Link Worldwide, T-388/2009. Conscientious Objection and Abortion: A Global Perspective on the Colombian Experience, 2014, www.womenslinkworldwide.org/wlw/new .php?modo=detalle_proyectos&dc=74&lang=en. International Planned Parenthood Federation European Network (IPPF-EN) v. Italy, Complaint no. 87/2012 (ECSR, decision adopted on September 10, 2013 and delivered on March 10, 2014). See also Bribosia, Isailovic, and Rorive, “Objection Ladies!.” Section 9 of the Italian Act No. 194/1978 relating to the Norms on the Social Protection of Motherhood and the Voluntary Termination of Pregnancy (Norme per la tutela sociale della maternita` e sull’interruzione volontaria della gravidanza), Gazzetta ufficiale 22/05/1978, n. 140. The IPPF is one of the largest nongovernmental organizations working in the field of sexual and reproductive health.

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Rights to denounce the fact that conscientious objection is pervasive in Italy and the figures are much higher than the official data declared by the government (for instance, in the region of Rome, Lazio, the number of objectors is as high as 91.3 percent).57 The number of objecting doctors has skyrocketed in past years and the health system as a whole has many downfalls. New doctors are not trained to perform abortions and those who are willing to do so might face discrimination at the hiring stage and in the workplace.58 For IPPF, the European (revised) Social Charter provided a great opportunity for challenging the Italian system as a whole before the Committee without having to rely on an identified victim. Although it is a quasi-judicial body issuing nonbinding decisions, the action before the Committee had some strategic benefits when compared to the opportunities offered by other forums including the European Court of Human Rights. By seizing the Committee and arguing that access to abortion is a matter of right to health,59 the plaintiff avoided the pitfalls of the current jurisprudence of the European Court of Human Rights under which the issue is often framed as a question of right to private life60 coupled with a wide margin of appreciation left to the state to define the domestic regime applicable to the termination of the pregnancy, on the grounds that there is no European consensus as to when life begins.61 In IPPF-EN v. Italy, the European Committee of Social Rights found that “shortcomings exist in the provision of abortion services” that violated the right to health (Article 11 of the Social Charter) alone and read in conjunction with the nondiscrimination clause (Article E of the Social Charter).62 Discriminatory treatment occurred on the grounds of socioeconomic and territorial status, health status, and gender that constituted, according to the

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IPPF-EN v. Italy, Collective Complaint, 37–8, https://www.coe.int/t/dghl/monitoring/social charter/Complaints/CC87CaseDoc_en.pdf. (Hereinafter, “Collective Complaint.”) Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint no. 91/2013 (ECSR, registered on January 17, 2013). “WHO defines ‘health’ as a state of complete physical, mental and social well-being, going beyond the mere absence of disease or infirmity. Seen in this light, good reproductive (or sexual) health, which concerns the reproductive processes, functions and system at all stages in an individual’s life, requires not only ensuring each person can have a satisfying, responsible and safe sex life, but also the right to decide if, when and how to reproduce.” Article 2 ECHR (right to life) and Article 3 (degrading and inhuman treatments) are also at stake in some cases. See Londono, “Redrafting Abortion Rights,” 95–120. See J. Erdmann, “The Procedural Turn: Abortion at the European Court of Human Rights,” in Cook, Erdman, and Dickens, Abortion Law in Transnational Perspective, 121–42 (which argues that the ECtHR actually manages to protect pluralism in Europe by framing access to abortion as a “procedural question”: once the procedure for access to abortion is defined it needs to be implemented). IPPF-EN v. Italy, para. 174.

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Committee, an instance of “overlapping,” “intersectional,” and “multiple” discriminations.63 In other words, certain categories of women were subject to less favorable treatment in the form of impeded access to lawful abortion as a consequence of the combined effect of where they live and low social condition. Such a stance was reaffirmed by the Committee in the later case, CGIL v. Italy, decided in 2016 and involving a major Italian trade union.64 Once again, the Committee was “called to rule on the adequacy of measures taken by the relevant authorities to ensure effective access to the services responsible for carrying out abortion procedures defined by national legislation as a form of medical treatment related to the protection of health and well-being.”65 Significant evidence pointed to the fact that the Italian authorities had not remedied the many problems found by the Committee in IPPF-EN v. Italy.66 Furthermore, the Committee found a violation of the right to work that entails “the right of the worker to earn one’s living in an occupation freely entered upon” (Article 1[2] of the Social Charter). In this aspect, the right to work requires Member States to remove all forms of discrimination in employment regardless of the legal nature of the professional relationship.67 According to the majority of the Committee, the medical practitioners who raise conscientious objection to abortion within the meaning of the Italian Act of 1978 and those who do not “are in a comparable situation because they have similar professional qualifications and work in the same field of expertise.”68 And a wide range of evidence points to the fact that “non-objecting medical practitioners face several types of cumulative disadvantages at work both direct and indirect, in terms of workload, distribution of tasks, career development opportunities, etc.”69 The aggravated working conditions of non-objecting medical practitioners were of such a nature that the majority of the Committee found a violation of the right to dignity at work (Article 26[2] of the Social Charter). Not only are the few non-objecting practitioners available left to perform repeated abortion procedures that are often outside their field of specialization, but they must also work in a hostile environment, are placed under intense pressure to suspend their duties, and are subject to mobbing. Moreover, the Italian government could not point to any preventive or

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Ibid., para. 190. In the more recent case, CGIL v. Italy, the Committee refers only to “overlapping” or “multiple discrimination,” without mentioning “intersectional discrimination.” See Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint no. 91/2013 (ECSR, decision adopted on October 12, 2015 and delivered on April 11, 2016), para. 206. CGIL v. Italy, paras. 204–13. 65 Ibid., para. 165. 66 Ibid., paras. 173–79. Ibid., para. 235. 68 Ibid., para. 241. 69 Ibid., para. 243.

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reparatory measures taken to protect non-objecting medical practitioners against such recurring instances of moral harassment.70 The IPPF and the CGIL cases show the extreme difficulty of monitoring refusal clauses. A balanced regulatory framework fails to overcome the strength of the web of religious and patriarchal structures of society, in which women are still being caught. And Italy is not an isolated example. Many other instances are documented elsewhere in Europe, the United States, South Africa, and Latin America.71 It seems that once the principle of conscientious objection is accepted in reproductive health care, it becomes very tricky to control. “Who will be in charge of deciding? Where does it stop? What criteria will determine the limits? Who will enforce it? And what are the sanctions?”72 15.4 BEYOND DIRECT HARM: THE DIGNITY OF WOMEN

Nondiscrimination is not only about procedural fairness (that is, treating like cases alike). Equality also relates to recognition and dignity as humiliation, stigma, or stereotyping can be experienced regardless of any particular material disadvantage.73 As the Canadian Supreme Court put it, “equality means that our society cannot tolerate legislative distinctions that treat certain people as second class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity.”74 70 71

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Ibid., paras. 294–98. As to Europe, see, e.g., the McCafferty report; “Abortion: Legislation in Europe,” IPPF, January 2012. As to the United States, see Douglas NeJaime and Reva Siegel, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” Yale Law Journal 124 (2015): 2516–89, at 2202; International Network of Civil Liberties Organizations (INCLO), “Drawing the Line: Tackling Tensions between Religious Freedom and Equality,” 2015. As to South Africa, see Harries and others, “Conscientious Objection and Its Impact on Abortion Service Provision in South Africa – A Qualitative Study,” Reproductive Health 11 (2014): 16. As to Latin America, see “2009 Decision of the Constitutional Court of Colombia (T-388/ 2009)”; L. Casas, “Invoking Conscientious Objection in Reproductive Healthcare: Evolving Issues in Peru, Mexico and Chile,” Reproductive Health Matters 17, no. 34 (2009): 78–87. “An analysis of law and policy on conscientious objection in Peru, Mexico and Chile shows that it is being used to erode women’s rights, especially where it is construed to have no limits, as in Peru. Conscientious objection must be distinguished from politically-motivated attempts to undermine the law; otherwise, the still fragile re-democratisation processes underway in Latin America may be placed at risk.” Ch. Fiala and J. H. Arthur, “‘Dishonourable Disobedience’ – Why Refusal to Treat in Reproductive Healthcare Is Not Conscientious Objection,” Woman – Psychosomatic Gynaecology and Obstetrics 1 (2014): 12–23, at 13. S. Fredman, Discrimination Law, 2nd edn. (Oxford: Oxford University Press, 2010), 19–25, 28–30. Law v. Canada (1999) I SCR 497 (Canadian Supreme Court), para. 51.

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Indirect harm is part of Robert Wintemute’s test to define when accommodation of the manifestation of a religious belief is legally allowed (or even required). This test is designed around three conditions assessing the lack of direct and indirect harm to others, as well as the minimal cost, disruption, or inconvenience to the accommodating party.75 Ce´cile Laborde also recommends a strict balancing test that takes dignitary harm into account in order to decide when a conscience claim (which she places into the category of “integrity-protecting claim – IPC”) justifies an exemption from a fair law of general application. The test consists of “[weighing] up the interests pursued by the law, the severity of the IPC burden, and the costs incurred in alleviating it.” To assess the interests pursued by the law, one has to make sure that “the rights of the individuals that the law is designed to protect are actually protected, even if exemptions are granted.”76 And in delineating such rights, one has to consider “whether laws demanded by justice only protect rights, narrowly construed, or whether they also expressively affirm the equal civic status of persons. In that case, a publicly endorsed exemption can constitute something like an expressive or dignitarian harm.”77 To address tensions between religious freedom and equality, the International Network of Civil Liberties Organizations (INCLO) stresses the obligation, grounded in human rights, to outlaw religious exemptions or accommodations that cause direct or indirect harm to others. “Religious freedom does not give us the right to impose our views on others, including by discriminating against or otherwise harming them.”78 And according to the Ontario Human Rights Commission (OHRC), “a duty to accommodate may not extend to situations in which discrimination against another group is the by-product of accommodating a particular belief.”79 Dignity as a component of equality is a key concept in solving conflicts between religious freedom and nondiscrimination. Religious freedom does not give a blank check “to denigrate the dignity of other individuals, for example because they are women or gay.”80 75

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R. Wintemute, “Accommodating Religious Beliefs: Harm, Clothing or Symbols, and Refusal to Serve Others,” Modern Law Review 77, no. 2 (2014): 223–53, at 228–29. Wintemute’s triple test reads as follows: “(i) the particular manifestation of religious beliefs itself causes no direct harm to others; and (ii) the requested accommodation involves minimal cost, disruption or inconvenience to the accommodating party; and (iii) the requested accommodation will (upon further examination) cause no indirect harm to others.” Ce´cile Laborde, “Egalitarian Justice and Religious Exemptions,” draft paper presented at the Conscience Wars Conference, Cardozo Law School, September 20–21, 2015; Ce´cile Laborde, Liberalism’s Religion (Cambridge, MA: Harvard University Press, 2017). Ibid. See also Chapter 4 of this volume. 78 INCLO, “Drawing the Line,” 5–6. OHRC, “Balancing Conflicting Rights: Towards an Analytical Framework,” 2005, 8–15. Fredman, Discrimination Law, 29.

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Conscience claims raised in the aftermath of the legalization of same-sex unions in various countries (such as the Netherlands, Canada, the United Kingdom, France, or the United States) offer a useful benchmark to further develop the issue.81 Cases of civil servants who refuse to celebrate or to register same-sex unions are flourishing in several jurisdictions and provide insightful thought.82 In this respect, Canada is a fascinating case study as it provides different legal answers to conscience claims raised by civil marriage commissioners.83 Once same-sex marriage was allowed at the federal level,84 taking into account the religious freedom of marriage commissioners was a pressing issue.85 The federal Civil Marriage Act (2005) only provides for an exemption of officials of religious groups. Actually, while the definition of marriage belongs to the federal state in Canada, the conditions of its solemnization, including the duties of civil marriage commissioners, are a competence of the provinces.86 The latter have implemented the whole range of legal 81

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According to NeJaime and Siegel, in the United States, “advocates look to the healthcare context as a model for how similar conscience claims might function within campaigns against same-sex marriage and LGBT equality” (NeJaime and Siegel, “Conscience Wars,” 2554). LGBT and reproductive rights are also addressed together in INCLO, “Drawing the Line.” See MacDougall and others, “Conscientious Objections to Creating Same-Sex Unions,” Canadian Journal of Human Rights 1 (2012): 127–64; INCLO, “Drawing the Line,” 7–23; Wintemute, “Accommodating Religious Beliefs,” 240–53; Emmanuelle Bribosia and Isabelle Rorive, “Les droits fondamentaux, gardiens et garde-fous de la diversite´ religieuse en Europe,” in Emmanuelle Bribosia and Isabelle Rorive, eds., L’accommodement de la diversite´ religieuse. Regards croise´s – Canada, Europe, Belgique (Brussels: P.I.E. Peter Lang, 2015), 192–201; Emmanuelle Bribosia and Isabelle Rorive, “Towards a Balance between Right to Equality and Fundamental Rights,” EU Commission, 2010. In the United States, see the much-debated story of Kim Davis, a Rowan County, Kentucky, clerk, who was sent to jail in 2015 for her refusal to issue a marriage license to a same-sex couple on the ground of her conscience (A. Blinder and T. Lewin, “Clerk in Kentucky Chooses Jail over Deal on SameSex Marriage,” New York Times, September 3, 2015). OHRC, “Balancing Conflicting Rights,” 8–15. In Canada, the principle of same-sex marriage was first decided by the Supreme Court in 2004 (Reference re Same-Sex Marriage [2004] 3 SCR 698, 2004 SCC 79) before being embodied in statute (Civil Marriage Act, SC 2005, c. 33). Although the federal government is not competent to regulate marriage ceremonies, the Civil Marriage Act provides that “3.1. For greater certainty, no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom.” In this line the Court of Appeal of Saskatchewan ruled that “Section 3 of the Civil Marriage Act [reproduced in the previous footnote] is confined to the federal legislative sphere . . . Accordingly, the section does not implicate matters beyond the limits of federal jurisdiction

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options.87 Alberta provided for a very broad exemption,88 Saskatchewan denied civil marriage commissioners any form of accommodation,89 and Ontario provided for a statutory exemption limited to religious officials, while relying on informal ad hoc accommodation for civil marriage commissioners.90 To bar conscience claims altogether, the Court of Appeal of Saskatchewan convincingly relied on the recognition dimension of the principle of equality and nondiscrimination. According to Justice Smith, the major aspect of the issue “is the affront to dignity, and the perpetuation of social and political prejudice and negative stereotyping that (the) refusals to celebrate same-sex marriage would cause. Furthermore, even if the risk of actual refusal were minimal, knowing that legislation would legitimise such discrimination is itself an affront to the dignity and worth of homosexual individuals.”91 In the United Kingdom, the England and Wales Court of Appeal defended a similar line of reasoning in the famous Ladele v. Borough of Islington case it decided in 2009. The case concerned a civil servant, Mrs. Ladele, fired from the London borough of Islington after repeated refusals to register same-sex civil partnerships based on her religious view of marriage.92 According to the Court of Appeal, “Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that

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and, as a result . . . (a) provincial requirement that marriage commissioners solemnize samesex marriages does not contradict or in any way frustrate the operation of Section 3 of the Civil Marriage Act” (Court of Appeal of Saskatchewan, 2011 SKCA 3, In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, S.S. 1995, c. M-4.1; and in the Matter of a Reference by the Lieutenant Governor in Council to the Court of Appeal Under The Constitutional Questions Act, RSS 1978, c. C-29. para. 52). MacDougall and others, “Conscientious Objections,” 132. In Alberta, “those who hold social, or cultural beliefs or values, whether religious or nonreligious, will be free to express opposition to the change to the traditional definition of marriage and will not be required to advocate, promote, or teach about marriage in a way that conflicts with their beliefs” (D. Girard, “Gay Marriage Fight Over; Alberta to Begin Issuing Licenses. But Law to Protect Opponents’ Rights,” Toronto Star, July 13, 2005, A12). Court of Appeal of Saskatchewan, 2011. In the wake of the legalization of same-sex marriage, the Ontario government introduced Bill 171 in 2005, An Act to Amend Various Statutes in Respect of Spousal Relationships. Statutory law was amended to reflect the same-sex marriage ruling of the Court of Appeal of Ontario (June 2003). Bill 171 amendments to the Ontario Human Rights Code and Marriage Act explicitly provide that registered religious officials for whom same-sex marriage is contrary to their religious beliefs are not required to solemnize such marriages (M. C. Hurley, “Sexual Orientation and Legal Rights: A Chronological Overview,” Law and Government Division, revised September 26, 2005). Court of Appeal of Saskatchewan, 2011, concurring opinion, para. 107. This followed the enactment of the Civil Partnership Act 2004.

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task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination . . . ; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.”93 Furthermore, the Court stressed that “once Ms Ladele was designated a civil partnership registrar, Islington were not merely entitled, but obliged, to require her to (perform civil partnerships).” The prohibition of discrimination enshrined in the law “takes precedence over any right which a person would otherwise have by virtue of his or her religious belief or faith, to practice discrimination on the ground of sexual orientation.”94 The European Court of Human Rights has upheld the legitimacy of a public policy that requires employees to act in a nondiscriminatory way despite their religious belief. Such a policy falls within the wide margin of appreciation national authorities deserve when they strike a balance between competing rights.95 Beyond the issue of civil servants who raise conscience claims so as not to participate in the celebration of same-sex unions, a real concern is the detrimental effect that accommodation policies could have on the full operation of nondiscrimination law. This is particularly alarming when we consider the strategies led by religious and neoconservative groups in order to model conscientious exemption regarding same-sex marriage on refusal laws in the field of abortion.96 In the past few years, an emblematic line of cases in the United Kingdom, the United States, and Canada relates to for-profit companies with no religious corporate object, which refuse to provide services to LGBT customers on the basis of the Christian beliefs of their managers. Major cases have involved a bed-and-breakfast owner denying double-bedded rooms to same-sex couples,97 a photography company refusing to cover the

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Ladele v. London Borough Islington [2010] WLR 955, [2010] ICR 532, [2009] EWCA Civ 1357, [52]. Ibid., paras. 69, 70. Eweida and Others v. United-Kingdom, App. nos. 48420/10, 59842/10, 51671/10, and 36516/10 (ECHR, January 15, 2013), paras. 104–06. Note that in Ladele, the European Court of Human Rights only clearly rejected the obligation for the state to accommodate the religious belief of a civil servant. It did not decide whether such an accommodation is prohibited by the Convention because of the indirect harm it entails for LGBT people (see Wintemute, “Accommodating Religious Beliefs,” 243). NeJaime and Siegel, “Conscience Wars,” 2554. Bull & Bull v. Hall & Preddy [2013] UKSC 73; Black & Morgan v. Wilkinson [2013] EWCA Civ 820; Eadie & Thomas v. Riverbend Bed and Breakfast and Others (No. 2), 2012 BCHRT 247.

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wedding ceremony,98 a bakery refusing to make custom cakes honoring samesex marriage,99 a print shop turning down an LGBT organization asking for printed envelopes and business cards,100 etc.101 So far, national courts have held that those denials of services based on sexual orientation were discriminatory, but there are still pending issues related to free speech. Unequal treatment occurred even if customers could get the same service elsewhere without additional cost. The crucial aspect of these cases is the injury to dignity and the humiliation suffered. According to the different courts, forprofit organizations that open their doors to the public should not be able to claim religious exemptions that could perpetuate structural prejudice and breach human rights.102 The point we want to make here is that a commitment to equality and nondiscrimination requires including indirect harm in the equation. If dignity is still undermined, social prejudice perpetuates and the structural discrimination often embedded in power relationships is not questioned. Yet, in most cases dealing with religious exemptions in reproductive health care, the focus is chiefly on direct harm. “The case law in this area does not yet robustly engage questions about discrimination, stigma, and harm to dignity.”103 The highly debated decision of the US Supreme Court in Hobby Lobby104 illustrates this tendency. For-profit corporations with no religious affiliation relied on their freedom of conscience to refuse to provide compulsory insurance coverage for some contraceptives to their employees.105 The majority of the US Supreme Court ruled in favor of the closely held family businesses. According to the Court, there are other ways the government could ensure that every woman has cost-free access to these particular contraceptives, making the impact on women employed by the companies “precisely zero.” 98 99

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Elane Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013). Charlie Craig and David Mullins v. Masterpiece Cakeshop (2015), Colorado Court of Appeals no. 14CA1351, and the petition for a writ of certiorari introduced before the US Supreme Court on January 8, 2016; Lee v. Ashers Baking & Anor [2015] NICty 2. Note that an appeal was still pending in June 2016 before the Belfast Court of Appeal. Ontario Human Rights Commission v. Brockie (No. 2), (2002) 222 DLR (4th) 17. More generally, see Emmanuelle Bribosia, Isabelle Rorive, and Gabrielle Cace´re`s, “Le droit de la non-discrimination aux prises avec la conscience des entreprises,” in A. Gagnon and P. Noreau, eds., Constitutionnalisme, droits et diversite´: Me´langes en l’honneur de J. Woehrling (Montre´al: The´mis, 2017), 419–60. Wintemute, “Accommodating Religious Beliefs,” 242. See also INCLO, “Drawing the Line,” 13–23. INCLO, “Drawing the Line,” 24. 104 Burwell v. Hobby Lobby, 573 US __ (2014). The case relates to the Patient Protection and Affordable Care Act (2010), known as Obamacare, under which employers with more than fifty employees were required to provide coverage for contraception under their group health plans.

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The majority of the Court seems to ignore the administrative burden that “Obamacare” aimed to alleviate. Chiefly, it totally overlooks the dignity of women and gender equality.106 The Colombian Constitutional Court is a notable exception to this general tendency. Its 2006 ruling legalized abortion in cases of rape, endangerment to a woman’s life or health, and conditions that would result in fetal death.107 As this was totally undermined on the ground with the use of wide-ranging conscience claims, the Court provided detailed conditions that objecting medical practitioners should fulfill. Its line of reasoning was based on the social implications raised with the use of conscientious objection in reproductive health care. According to the Court, such conscience claims interfere with “women’s fundamental constitutional rights to health, personal integrity and life in conditions of quality and dignity. It would also violate their sexual and reproductive rights and cause them irreversible harm.”108 As we have seen, there are strong arguments for relying on the test of indirect or dignitary harm in reproductive health care. In particular, “there is a clear stigma placed on a woman when the doctor refuses to provide her a legal abortion.”109 Even though a medical doctor is not a civil servant, he is in a powerful relationship with a woman seeking an abortion. He enjoys a kind of monopoly. Conscientious objection is a way to exert personal power over the patient by imposing one’s own beliefs,110 and this applies whether or not the woman manages to get an abortion in the end. In other words, access is not enough. The right to health care coupled with the nondiscrimination clause requires access on an equal footing, without any moral judgment by an authority. 15.5 CONCLUSION

For the past 100 years, conscientious objection has been used almost exclusively in the context of refusal to perform compulsory military service.111 There 106

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Compare to the Pichon & Sajous case (App. no. 49853/99, October 2, 2001) where the European Court of Human Rights ruled that the freedom to manifest one’s beliefs does not always guarantee the right to behave in a manner governed by that belief. Here the pharmacists were denied the right to refuse to deliver contraceptive pills. Constitutional Court [C.C.] May 10, 2006, Decision C-355/06, Gaceta de la Corte Constitucional [G.C.C.] (Colom.), www.corteconstitucional.gov.co/relatoria/2012/t-355–12 .htm. “2009 Decision of the Constitutional Court of Colombia (T-388/2009),” para. 5.1. INCLO, “Drawing the Line,” 28, 33. On stigma and stereotyping, see the very well-argued concurring individual opinion of Sarah Cleveland in UNCCPR, Mellet v. Ireland. Heino and others, “Conscientious Objection and Induced Abortion,” point 9. OHCHR, “Conscientious Objection to the Military Service,” 2.

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are major difficulties in trying to transpose the debate surrounding conscientious objection to the realm of reproductive health. The question of whether conscientious objection should be granted plays out very differently in the two fields: military service is mandatory, while no one is required by law to become a gynecologist or an obstetrician. Besides, the power relationship between a doctor and a woman seeking an abortion differs significantly from the one between a soldier and his commander. The legitimate exercise of conscientious objection is much more delicate when it is used against a person in a vulnerable situation. In addition, the impact of the use of conscientious objection is not comparable in the two situations.112 While there is little impact on the rights of others when conscientious objection is raised in the military service, objecting to providing reproductive health services greatly impairs women’s human rights. Undue delay puts women’s lives at risk, and may result in unsafe, clandestine, and illegal abortions, which endanger the lives and physical and mental health of women.113 The wider context of conscience claims raised after the legalization of samesex unions is even more disturbing. It shows the detrimental effect that accommodation policies could have on the full operation of nondiscrimination law. Empirical studies of religious actors show that alongside the liberal and fundamentalist representatives of a religious tradition, one can find a middle group (sometimes called “traditionalists”) that pushes religious claims in liberal democracies and international regimes.114 This group forges transnational alliances, enters into public debates using “non-religious language, adapting to a secular legalistic human rights terminology,”115 lobbies national parliaments and supranational organizations, and brings cases to courts. As a moral tool that imposes what “the good life” is, conscientious objection framed as reasonable accommodation might well be the Trojan horse of ultra-conservative religious groups attempting to regain some legal ground.116 Those who support the view that sexual and reproductive health care, including access to safe abortion services and quality post-abortion care, is a human right are divided along two lines of thought. Some defend the view that 112

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Centre for Reproductive Rights, “Conscientious Objection and Reproductive Rights: International Human Rights Standards,” 2013, 1; Fiala and Arthur, “Dishonourable Disobedience,” 12. WHO, Safe Abortion. See Section 15.1 of this chapter. K. Stoeckl, “Political Liberalism and Religious Claims: Four Blind Spots,” Philosophy and Social Criticism 43, no. 1 (2016): 34–50, at 35–38. Ibid., 37. 116 In this line, see also NeJaime and Siegel, “Conscience Wars,” 2542–52.

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As a “refusal to treat,” conscientious objection should more aptly be called “dishonourable disobedience,” because it violates women’s fundamental right to lawful healthcare and places the entire burden of consequences, including risks to health and life, on the shoulders of women . . . Why should a doctor’s private beliefs trump the medical needs of an individual? No other sector of medicine or other kind of service delivery would allow a service refusal with so little resistance.117

Others call for a comprehensive legal and policy framework to take into account the interests of both the medical practitioners and the women seeking an abortion.118 This would include at least, first, that only individuals directly related to abortion provision can exercise a conscience claim; second, that hospitals must have available non-objectors providing convenient and timely access; third, that women denied abortion services on the ground of conscience are well informed about existing alternatives and duly referred to physicians who can provide such services in a timely manner; fourth, that in the absence of an appropriate referral or in emergency situations, no conscientious objection can be raised; and fifth, that adequate monitoring as well as effective, proportionate, and dissuasive national remedies and sanctions are available. The second path is very appealing: it is a way to reconcile the fundamental rights of women with the conscience claims of health care providers. However, recent supranational and national cases show the downside of such a position. The recognition of conscientious objection in reproductive health care is hardly sustainable on the ground. A snowball effect seems inevitable. And even well-defined legal safeguards are failing. One cannot deny that allowing limited conscientious objection rests on the misconception that objecting healthcare personnel will make the required compromises, including referring for abortion or providing accurate information on the procedure. But this relies on trusting people to set aside deeply held beliefs that have already been deemed strong enough to invoke conscientious objection, making any compromise far less likely.119

This leads to wide discriminatory treatment based on gender, territorial status, low social condition, and ethnicity. In addition, it fails to recognize the dignitary harm to women and the perpetuation of social prejudice and 117 118

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Fiala and Arthur, “Dishonourable Disobedience,” 18. For instance, McCafferty Report and “2009 Decision of the Constitutional Court of Colombia (T-388/2009).” Fiala and Arthur, “Dishonourable Disobedience,” 141.

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structural inequality that result from this approach. In other words, designing, implementing, and monitoring a strictly regulated conscience clause in reproductive health care resembles an effort to square the circle. Something always falls by the wayside, and the “something” is no less than women’s human rights.

16 Marriage Registrars, Same-Sex Relationships, and Religious Discrimination in the European Court of Human Rights Christopher McCrudden*

16.1 INTRODUCTION

There is a multiplicity of differing ways in which religious beliefs and practices are “protected” from state interference, but in essence this diversity resolves into three main approaches: (i) a freedom of religion approach in which the practice of religion is protected; (ii) a protection from religious coercion and undue religious entanglement with the state; and (iii) an antidiscrimination approach in which religious discrimination is prohibited. Using the terminology of the US Constitution, let’s call these the free exercise, establishment, and equal protection approaches. Similar approaches, using different terminology, can be found in most modern systems committed to human rights. The assumption is often made that issues of religious conscience arise primarily in the context of the first of these approaches: an individual with a conscientious belief argues that the guarantee that we are free to practice our religion means that antidiscrimination law prohibiting gender, or race, or sexual orientation discrimination that requires us to contravene our conscience should be limited, or overridden, or set aside: the conscientious * An earlier version of this chapter was presented at the symposium “(How) Should the European Court of Human Rights Resolve Conflicts between Human Rights?,” Human Rights Centre, Ghent University, October 16, 2014, and at the conference “The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality,” at Cardozo Law School, September 20–21, 2015. I am particularly grateful to Judge Paul Lemmens of the European Court of Human Rights for commenting on an earlier version of the paper presented at the symposium, and to Robert Post and Stanley Fish for commenting on a more recent version. Full disclosure: I was junior counsel representing Ms. Ladele in the European Court of Human Rights, and subsequently provided legal advice to the Catholic Bishops’ Conference of England and Wales on the legal implications of the same-sex marriage legislation during the parliamentary consideration of the bill.

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believer should be granted an exemption from the application of antidiscrimination law. This framing of the issue means that the conflict is a relatively straightforward one between freedom of religion and freedom from discrimination. And there have, indeed, been several high-profile cases that have been formulated in just this way, and the conflicts between equality and freedom of religion that are generated are complex and multifaceted. In some jurisdictions, this may, indeed, be the principal way in which the issues will be framed. But, at least in the European context, to conceive the problem of religious conscience only in this way is misleading, and evades an even more difficult issue. Recently, much more attention has been given to the relationship between conscience and discrimination in a way that generates tensions within the concepts of equality and discrimination themselves. This is because, increasingly, the claim to protection by the conscientious believer is formulated in antidiscrimination terms rather than (or sometimes in addition to) freedom of religion terms: the claim is that by requiring me to conform to an antidiscrimination requirement that prohibits racial or gender or sexual orientation, you discriminate against me on religious grounds. In this chapter, I focus, therefore, on conflicts within equality that are generated by claims to the protection of religious conscience formulated as religious discrimination claims. The example I want to take to illustrate this approach, and its problems in the European Convention on Human Rights (ECHR) context, is the case of Ladele v. United Kingdom, decided in January 2015 by the European Court of Human Rights (ECtHR).1 Lillian Ladele was a marriage registrar, with years of good service, employed by a local public authority (the London borough of Islington). The law in the United Kingdom changed while she was in her post with the borough to permit civil partnerships between same-sex couples. Ms. Ladele had a sincere conscientious objection to performing civil partnership ceremonies, arising from her Christian faith. In spite of her protests, Ms. Ladele was designated to register and perform civil partnership ceremonies by the local authority, contrary to her religion and conscience. She refused, was disciplined, and was forced to resign. She claimed religious discrimination in the national courts, won at first instance, lost at the domestic appellate level, and then took her case to the ECtHR, where she also lost. In this chapter, I hope to achieve four aims. First, in Section 16.2, I set out to analyze the facts and reasoning of the ECtHR in Ladele, and suggest that in 1

Ladele v. United Kingdom was one of four cases heard together by the ECtHR, sub nom Eweida and Others v. United Kingdom (2015) 57 EHRR 8.

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several respects the Court’s approach is problematic. Second, in Section 16.3, I suggest that the problem that the Ladele case presents, and the approach that the Court takes in addressing this problem, raises broader questions, going beyond the acceptability of arguments based on conscience. My argument is that in carrying out their adjudicatory task in religious discrimination litigation, such as Ladele, there is a fundamental problem that the courts are faced with on a recurring basis. As a shorthand way of describing it, I’ll call it the “teleological” problem. By the teleological problem, I mean the problem that the courts face of deciding what human rights protections relating specifically to discrimination are for, what their aim or telos is. I suggest that this difficulty arises for those provisions dealing with religious discrimination, as well as for those provisions dealing with discrimination on other grounds. There is essentially no clear answer to the question as to what they aim to achieve, and when they come into conflict, the courts are thrown into confusion. The result (in Ladele) is that the Court considers the teleology of religious antidiscrimination to be largely coterminous with freedom of religion. The Court, in other words, defaults to an understanding of religious discrimination claims as masked freedom of religion claims. The effect is significantly to blunt the radical potential of religious discrimination claims and incorporate elements into the legal analysis of such claims that are sui generis in the antidiscrimination context. Third, in Section 16.4, I offer some preliminary and provisional thoughts as to how to address this problem at the judicial level in the context of antidiscrimination law. In particular, I argue that the human rights system should be aiming to encourage a genuine dialogue between conscientious believers and the wider public, and that there are three particularly important doctrinal moves that courts could usefully make to encourage and sustain such a dialogue: adopting the concept of pluralism as the central telos of religious antidiscrimination law; adopting the idea of secularity rather than secularism as the appropriate way of conceiving the public space; and adopting a radical understanding of religious accommodation. In this way, I suggest, our commitment to religious pluralism engendered through dialogue can better be achieved through antidiscrimination law. I then briefly test what difference adopting the recommended approach would have made in the Ladele situation. Fourth, these preliminary suggestions undoubtedly need to be further refined, not least by identifying problems with the approach recommended in Section 16.4. In Section 16.5, I address three particular questions that indicate underlying problems. The first question is whether the approach adopted is consistent with the underlying theory of antidiscrimination law,

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as it has emerged over time. The second question is whether the fact that marriage registrars are state officials trumps any claims to conscience that such officials might assert. The third question is what, if any, limits on the approach recommended could or should be specified; so, for example, how should we react to assertions of religious conscience by a marriage registrar who refuses to marry a couple because they are of a different race to each other? Section 16.6 briefly concludes. 16.2 AN ANALYSIS OF THE LADELE CASE

16.2.1 Introduction The local authority that employed Ms. Ladele was under no legal obligation to designate her as a civil partnership registrar. Nor was there any practical need for her to be designated in order for the local authority to provide the service of registering civil partnerships to gay couples. Prior to designating her, the local authority was aware of Ms. Ladele’s religious conscientious objection but did not consult her on its decision to designate her. Having been designated, when she objected to being compelled to form civil partnerships and repeated her religiously based conscientious objection, she was disciplined for gross misconduct, and ultimately resigned as a result of the treatment she received. The local authority gave no weight to her religious beliefs. Having lost at the domestic level, Ms. Ladele brought a claim for religious discrimination in the ECtHR, alleging a breach of Article 14,2 taken together with Article 9.3 Lillian Ladele’s case raises significant questions about the correct interpretation of the ECHR in cases involving religious belief and practice in the workplace and in public life. Should such a religious conscientious objection be accommodated in circumstances where accommodating it would have no adverse effects on the conduct of the employer’s business or on the rights of any individual? Does discrimination on grounds of religious belief require 2

3

Article 14 ECHR provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 9 ECHR provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

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particularly weighty reasons for it to be justified under Article 14, read with Article 9 of the Convention (similar to the idea of a suspect classification under the US Fourteenth Amendment)? Should the right to equal treatment on grounds of religious belief be afforded less weight than the right to equal treatment on grounds of sexual orientation? What margin of appreciation should be afforded to states in cases of religious discrimination? 16.2.2 Chamber Decision in Ladele The Fourth Section of the ECtHR gave the Ladele case priority status and joined it with three other cases (Eweida, Macfarlane, and Chaplin), all from the United Kingdom. Eweida and Chaplin alleged a breach of Article 9 (freedom of religion) on the basis that the applicants had not been allowed to wear religious symbols at work. Macfarlane alleged a breach of Article 9 on the basis that the applicant had been dismissed for failure to commit to offering sexual counseling services to same-sex couples. The cases were joined as “test cases” to allow the Fourth Section to identify and apply the relevant principles across an area of jurisprudence; each applicant was separately represented. On January 15, 2013, the Fourth Section of the Court held by five votes to two that there had been no violation of Article 14 taken in conjunction with Article 9 in respect of Ms. Ladele.4 Mr. Macfarlane and Ms. Chaplin also lost. Ms. Eweida’s case was alone in being upheld, although its practical significance was limited, since her employer had already conceded the point. Alone among the four cases, Ms. Ladele’s case was based on Article 14 read with Article 9, not Article 9 by itself. In other words, her case was formulated as an antidiscrimination argument, rather than a freedom of religion argument. Three major issues were presented to the Court in Ladele. Of these three, the Court agreed with Ms. Ladele’s argument in two and disagreed in the third. I briefly mention the two issues in which Ms. Ladele succeeded, before turning to the third, in which she was unsuccessful. To reach the conclusion that Ms. Ladele’s Article 14 claim should be upheld, the Court nevertheless had to decide that Ms. Ladele’s claim fell “within the ambit” of Article 9. Unless it was within the ambit of Article 9, Article 14 would not be engaged because Article 14 is not a “stand-alone” antidiscrimination provision, but one that is parasitic on other substantive protections in the ECHR. The government argued that for a claim to be within the ambit of Article 9 there had to be a breach of Article 9. The Court, 4

Eweida and Others v. United Kingdom (in the application of Ms. Ladele) (2015) 57 EHRR 8.

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however, held that “the application of Article 14 does not presuppose a breach of one or more of [the other substantive provisions].”5 And then, later: “It is clear that the applicant’s objection to participating in the creation of same-sex civil partnerships was directly motivated by her religious beliefs. The events in question fell within the ambit of Article 9.”6 This finding has important implications for future litigation under Article 14 religious discrimination claims. The applicant does not have to show that she was engaged in a “manifestation of religion” in the narrow sense of being involved in some religious ritual, in order for her claim to be within the ambit of Article 9. Nor does the applicant have to show an “interference” with the manifestation of religion in order for Article 14 to be engaged. Future applicants will only need to show that their actions were, in the Court’s words, “directly motivated by religious beliefs.” The second major issue on which Ms. Ladele persuaded the Court was that she had been treated in such a way as to establish a prima facie claim of religious discrimination, which the government needed to justify. For a claim of discrimination under Article 14 to succeed, an applicant must show that he or she was either (a) treated differently from other persons in analogous or relevantly similar situations, or (b) treated similarly to persons in relevantly different situations. Ms. Ladele’s claim arose under (b), that is, she argued that she was treated similarly to other persons in relevantly different situations. In failing to treat Ms. Ladele differently from those staff members who did not have a conscientious objection to registering civil partnerships, she argued, the local authority failed “to treat differently persons whose situations are significantly different,” as the Court put it in Thlimmenos v. Greece.7 The Court agreed that she had correctly identified the relevant comparators, holding that the “relevant comparator in this case is a registrar with no religious objection to same-sex unions.” The Court further agreed that failing to treat her differently from those staff members meant that the local authority failed “to treat differently persons whose situations are significantly different.” The Court agreed with the applicant’s contention “that the local authority’s requirement that all registrars . . . be designated as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs.”8 The Court therefore held that Article 14 was engaged, and that the public authority’s treatment of Ms. Ladele amounted to a prima facie breach of Article 14’s prohibition on indirect discrimination (or the “discriminatory effects” test, to use American terminology). 5 8

Ibid., para. 85. 6 Ibid., para. 103. Eweida, para. 104.

7

Thlimmenos v. Greece (2001) 31 EHRR 15.

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The third and remaining issue (which led to her case being dismissed by the ECtHR) was the critical issue of justification: whether the prima facie discriminatory treatment afforded to Ms. Ladele pursued a legitimate aim and was proportionate to the achievement of the aim pursued.9 On this issue, there is extensive jurisprudence in the Article 14 context, but the operative part of the Court’s decision in Ladele does not refer to this in any detail. The Court’s complete findings on the issue of justification were as follows: It remains to be determined whether the means used to pursue this aim were proportionate. The Court takes into account that the consequences for the applicant were serious: given the strength of her religious conviction, she considered that she had no choice but to face disciplinary action rather than be designated a civil partnership registrar and, ultimately, she lost her job. Furthermore, it cannot be said that, when she entered into her contract of employment, the applicant specifically waived her right to manifest her religious belief by objecting to participating in the creation of civil partnerships, since this requirement was introduced by her employer at a later date. On the other hand, however, the local authority’s policy aimed to secure the rights of others which are also protected under the Convention. The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I). In all the circumstances, the Court does not consider that the national authorities, that is, the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them. It cannot, therefore, be said that there has been a violation of Article 14 taken in conjunction with Article 9 in respect of [Ms. Ladele].10

It was this approach to the issue of justification that raised the serious questions affecting the interpretation of the Convention that Ms. Ladele sought to have referred to the Grand Chamber, which ultimately declined to accept the case, thus leaving the Chamber decision to stand. 16.2.2.1 Approach Adopted to “Justification” We need at this point to parse this critical paragraph on “justification” carefully. Two aspects of the approach taken are of considerable importance. The first is that the Court makes clear that the national authorities whose action is being scrutinized consists not only of the local authority, but also 9

Ibid., para. 104.

10

Ibid., para. 106.

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comprises the various courts that adjudicated the issue, including in particular the English Court of Appeal. It is necessary, then, to include the approach taken by these national courts within the idea of what “the state” did to Ms. Ladele, and why, in deciding whether the United Kingdom breached the Convention. The second important point that emerges from a close reading of the paragraph is that the ECtHR decides that there is no breach of the Convention, “[i]n all the circumstances.” The circumstances include the justification for the local authority’s actions advanced by the Court of Appeal, which is therefore effectively incorporated by reference into the judgment of the ECtHR. Critically, therefore, we need to turn to the domestic Court of Appeal’s judgment in order to understand the ECtHR’s approach. The Court of Appeal had set out in an important paragraph a summary of the reasons why it held that the local authority’s actions were justified, and therefore why it would not make a finding of unlawful indirect discrimination. Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele’s refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington’s Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington’s employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele’s refusal was causing offence to at least two of her gay colleagues; Ms Ladele’s objection was based on her view of marriage, which was not a core part of her religion; and Islington’s requirement in no way prevented her from worshipping as she wished.11

There are two main issues regarding the Chamber’s approach to justification, read together with this passage from the Court of Appeal, that I want to focus on: first, what is the standard that the state must meet in order to rebut the prima facie discrimination case – the issue is whether a prima facie case of religious discrimination can only be rebutted if the state establishes “very weighty reasons” justifying that discrimination; and, second, how and why the Court applied the “margin of appreciation” doctrine in this case, and what the implications of its approach on this issue are more broadly.

11

Ladele v. London Borough of Islington [2010] WLR 955, [2010] ICR 532, [2009] EWCA Civ 1357, [52].

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16.2.2.2 Religious Discrimination and “Very Weighty Reasons” As is well known, claims based on race, sex, sexual orientation, and several other grounds are considered by the Court to merit a particularly high degree of protection. In such cases, the function of Article 14 is not to be merely ancillary to the other substantive rights. It has an important autonomous role in protecting individuals from unfair discrimination. Very weighty reasons have to be shown by the state before the Court will regard prima facie cases of such discrimination as compatible with Article 14. These have sometimes been called “suspect categories” by commentators, drawing on US Supreme Court Fourteenth Amendment jurisprudence. In Ladele, the Court reiterated its previous case law regarding sexual orientation, that “differences based on sexual orientation require particularly serious reasons by way of justification.” Where a contracting party is required to demonstrate very weighty reasons, or “particularly serious reasons,” it is less likely that the Court will apply an extensive margin of appreciation in such cases. Both the issue of margin of appreciation and the weight of the burden of justification under Article 14 are intimately related. Ms. Ladele had argued that in claims of discrimination under Article 14, read with Article 9, religion is a ground of discrimination that also requires very weighty reasons at the justification stage. She argued that the Court had previously adopted a similar test in Hoffmann v. Austria,12 and ought to apply this test in her case. Indeed, in Redfearn v. UK,13 decided on December 6, 2012, a month before Ladele was decided, Judge Bratza, who was in the majority in Ladele, specifically listed religion as a suspect category meriting the veryweighty-reasons test, citing the Hoffmann case.14 Yet there is no reference to Hoffmann in the Court’s judgment in Ladele, or to very weighty reasons being required in the religious discrimination context. As we have seen, in Ladele, the Chamber dealt with the whole question of legitimate aim and proportionality very briefly. Two of Ms. Ladele’s arguments were addressed and accepted by the Court. The Court accepted Ms. Ladele’s argument that “the consequences for the applicant were serious.” As the Court said: “she lost her job.”15 The Court also agreed with Ms. Ladele that she could not be regarded as having “waived her right to manifest her religious belief . . . since [the employer’s requirement that she officiate at same-sex partnership ceremonies] was introduced by her employer at a later date.”16 12 14 15

(1994) 17 EHRR 293, para. 36. 13 Application no. 47335/06, (2013) 57 EHRR 2. Joint Partly Dissenting Opinion of Judges Bratza, Hirvela¨, and Nicolaou, para. 4. Eweida, para. 106. 16 Ibid., para. 106.

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Beyond that, however, it is unclear what, exactly, the Court decided. If the Court rejected the argument that religion qualifies as a suspect ground, this gives rise to the paradoxical situation in which a ground that is explicitly included in the text of Article 14 (religion) is accorded less protection than a ground that is not explicitly included in the text (sexual orientation) but was introduced by judicial interpretation of “other status.” From Ms. Ladele’s perspective, there appeared to be no justification for such a hierarchy of grounds of discrimination. The argument that religion was not a suspect ground would also be inconsistent with a more recent judgment by the Court, in Vojnity v. Hungary.17 In this case, decided on February 12, 2013 (after the judgment of the Chamber in Ladele but before the Grand Chamber rejected the appeal), the Second Section stated explicitly that religion should now be considered a suspect category, requiring very weighty reasons.18 A second possible interpretation of the Court’s decision in the relevant paragraphs in Ladele is that the Court concluded that any government efforts to eradicate discrimination on grounds of sexual orientation will automatically be proportionate simply by virtue of that fact. The Court may have accepted the government’s argument that requiring Ms. Ladele to validate same-sex civil partnerships was intended to send a message on the importance that the local authority attached to the principle of eradicating sexual orientation discrimination (irrespective of no individual’s rights having been adversely affected), and that this automatically attracted priority over any religious equality interests and the adverse effect on Ms. Ladele’s rights. If so, as Ms. Ladele argued, this was not the appropriate approach to adopt in the role of proportionality under Article 14. If proportionality means anything, she suggested, it means that it is unacceptable to give one factor automatic priority. The Court did not address this issue, perhaps because the Court considered that no such automatic priority had been accorded. The Court refers in its judgment to “striking a balance between competing rights,”19 implying that both competing rights were accorded some weight (an issue I return to in a moment). 16.2.2.3 Margin of Appreciation These two interpretations do not exhaust the possible interpretations. It is probably the case that a third interpretation of the Court’s decision better explains the Court’s approach than those we have just considered, although this third interpretation is not set out explicitly in the Court’s judgment. This 17

Application no. 29617/07, [2013] 2 FCR 495.

18

Vojnity, para. 36.

19

Eweida, para. 106.

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third interpretation is that the Court decided to afford a wide margin of appreciation to the national authorities in this case and therefore considered that it did not need to decide whether discrimination on grounds of religion is properly to be treated as a suspect category in this case, or to grapple with the complexities of applying proportionality in such circumstances. Ms. Ladele had argued that according the government a wide margin of appreciation was wrong in law in this case. A margin of appreciation, she suggested, is particularly narrow if religion is a suspect ground of discrimination that attracts the test of very weighty reasons, as it should. The role for a margin of appreciation, she stated, must be earned by Member States and should apply only when the national authorities have in place the appropriate procedures for ensuring compliance with the Convention. In Ms. Ladele’s case, she said, neither the public authority that employed her, nor the domestic courts that heard her case, had ever conducted any proportionality analysis. Her right to equal treatment on grounds of religious belief had been afforded no weight at all in the national proceedings. In the circumstances, Ms. Ladele argued, the adoption of the concept of the margin of appreciation by the Court was wrong in principle. The proper role of this doctrine is in the context of assessing the results of a properly executed proportionality analysis carried out at the national level. Where the national authorities have not assessed the proportionality of discriminatory treatment afforded to a victim, there is no good reason to afford them any margin of appreciation. The United Kingdom, by failing to ensure that the national authorities (including the domestic courts) carried out an appropriate proportionality analysis, had failed to earn the margin of appreciation. The Chamber of the Court in Ladele did not address this argument, and accepted that the local authority’s aim, as set out by the Court of Appeal, was “to provide a service which was not merely effective in terms of practicality and efficiency,” but also one that complied with the overarching policy of being “an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others.”20 The Court did not, however, address or respond to Ms. Ladele’s arguments that there was no sufficient connection of proportionality between this aim and the decision to designate Ms. Ladele as a civil partnerships registrar. On the facts found by the first instance domestic adjudicatory body, the Employment Tribunal, a decision not to designate Ms. Ladele as a civil partnerships registrar would have had no adverse effect on equality of 20

Ladele [2009] EWCA Civ 1357, [2010] 1 WLR 955, [2010] ICR 532 , para 105.

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opportunity for same-sex couples. There was no obligation on the local authority to designate her, and there would have been no adverse effect on the service provided to same-sex couples had they decided not to do so. Had Ms. Ladele remained as a marriage registrar, and had not been designated as a civil partnerships registrar, it would have been legally impermissible under the domestic legislation for her to register or perform civil partnerships. There would, therefore, have been no question of her discriminating against others, and no inconsistency with the local authority’s equal opportunities policy. The local authority’s equal opportunities policy applied to religion as well as to sexual orientation. A policy of forcing Ms. Ladele to be designated as a civil partnerships registrar was in fact inconsistent with the local authority’s equal opportunities policy, since it involved discrimination against Ms. Ladele. The same policy ultimately caused two other registrars in the same authority, one Muslim, one Christian, to leave their profession for reasons of conscience. Neither the local authority nor the national courts adequately considered the significance of this fact. In addition, other local authorities in the United Kingdom had chosen not to designate as civil partnership registrars those marriage registrars already in their employment who had a conscientious objection to performing the civil partnership role, at least where they could do so without any adverse effect on the service offered to same-sex couples. There was no explanation as to why Islington could not and should not have done the same in this case. The decision to designate Ms. Ladele with prior knowledge of her religious conscientious objection pursued no legitimate aim, therefore, and created an unnecessary situation whereby Ms. Ladele was prevented from continuing in public service by reason of Islington’s refusal to accommodate her sincerely held religious beliefs. There is a further problem. Granting a wide margin of appreciation in cases such as this, where there has been no proper proportionality analysis by the national authorities or courts, gives little or no guidance to domestic courts, legislatures, or other public authorities in future cases, except to say that a very large proportion of cases are now subject to the margin of appreciation. This is an undesirable result and undermines the effective protection of human rights. Nor is this what the Court does in practice in other circumstances. For example, in Associated Society of Locomotive Engineers & Firemen v. United Kingdom,21 the Court itself conducted a balancing exercise between two rights both protected by the Convention, and explicitly denied a wide margin of appreciation to the UK authorities. So too, for example, where the 21

Application no. 11002/05, judgment of February 27, 2007, (2007) 45 EHRR 34, at para 46.

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rights of homosexuals to adopt children were restricted by public authorities in order to further what they considered the best interests of children, the Court has been prepared to intervene to protect the rights of the homosexual applicants and has not left the issue to the margin of appreciation.22 So why did the Court apply the margin of appreciation in the Ladele case? No clear answer was provided. 16.2.2.4 Aftermath The issue of whether to accommodate the conscientious objections of registrars came before the UK Parliament in the same-sex marriage bill during 2013 in a much more sustained and serious way than had occurred in the context of the earlier legislation introducing civil partnerships, at issue in Ladele.23 In the same-sex marriage bill, the issue was center stage in the parliamentary debates, not least because of the publicity surrounding Ladele. Despite sustained attempts to provide for protections in domestic law for civil registrars, nothing in the act that was passed permits a registrar to refuse to conduct civil same-sex marriages on the ground that she or he has a conscientious objection to doing so. Indeed, in one way, the act is more restrictive than the position was under civil partnerships: as we have seen, local authorities that were willing to allow registrars not to conduct civil partnerships were permitted under the legislation to do so (even though Islington chose not to) – the Civil Partnership act 2004 had given local authorities the discretion to decide whether to designate their registrars as civil partnership registrars. However, the 2013 same-sex marriage legislation accorded local authorities no discretion; it has effectively forced every local authority to designate their registrars as same-sex marriage registrars, and then required them to conduct these marriages. The absence of protection for registrars in the civil context contrasts markedly with the protection from compulsion to conduct such marriages that is afforded to clergy (or others within religious organizations). Civil registrars will not be afforded the protection from compulsion that clergy have in relation to same-sex marriages in the religious context. The act includes a conscientious objection protection for ministers or other religious figures from being required by their church to take part in same-sex religious marriages, if the minister or other religious figure objects. So a Liberal Jewish 22 23

E.B. v. France, application no. 43546/02, judgment of January 22, 2008, (2008) 47 EHRR 21. The issue had not even been raised in the Civil Partnership Bill, although it was considered briefly during the passage of the later Equality Act 2010.

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rabbi who objected to same-sex marriages would not be compelled to undertake such marriages even though Liberal Judaism in general has opted to conduct religious same-sex marriages. One of the raft of amendments that Parliament examined was a much broader conscientious objection provision that would have applied to all those acting as registrars as a group in both civil and religious marriage contexts.24 This was intended to permit all registrars to exercise their right to freedom of thought, conscience, and religion. A conscientious objection clause, such as this, was not unprecedented in the British context. Section 4 of the (British) Abortion Act 1967, for example, allows individuals with conscientious objections to abstain from participating in abortions. The proposed amendment partly drew on that conscientious objection provision in the Abortion Act, in requiring that the registrar’s objection must be based on a sincerely held religious or other belief, and in placing the burden of proof on the registrar claiming to rely on it. But, in an attempted compromise, the proposed amendment to the same-sex marriage bill was significantly more limited than that in operation in the abortion context. The amendment would not have allowed individuals to exercise a conscientious objection if doing so would result in same-sex couples being unable to access this service. So, if sufficient numbers of registrars were not available in any area, a registrar with a conscientious objection would have a duty to conduct the same-sex marriage. Therefore, no same-sex couple would be prevented from marrying by reason of this amendment. However, both the government and the opposition opposed this amendment and it was defeated in both houses of Parliament.

24

The proposed amendment provided: “Conscientious Objection (1) Subject to subsections (2) and (3) of this section, no registrar shall be under any duty, whether by contract or by any statutory or other legal requirement, to conduct, be present at, carry out, participate in, or consent to the taking place of, a relevant marriage ceremony to which he has a conscientious objection. (2) Nothing in subsection (1) shall affect the duty of each registration authority to ensure that there is a sufficient number of relevant marriage registrars for its area to carry out in that area the functions of relevant marriage registrars. (3) The conscientious objection must be based on a sincerely held religious or other belief. (4) In any legal proceedings the burden of proof of conscientious objection shall rest on the person claiming to rely on it.”

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16.3 THE PROBLEM OF TELEOLOGY IN RELIGIOUS LITIGATION

In this section, I suggest that the Court in Ladele has fundamentally misunderstood what it means to consider a religious antidiscrimination claim, as opposed to one based in freedom of religion, and that in several critical respects the Court has adopted perspectives that appear to derive from the Court viewing the case through the freedom of religion lens rather than the antidiscrimination lens. In order to make this case, I begin, first, with a brief discussion of the teleology of religious freedom provisions before turning to contrast these with the teleology of religious antidiscrimination provisions. I then consider how the Court’s approach in Ladele appears much closer in several respects to the former than to the latter. 16.3.1 Teleology of Religious Freedom Protections The ECHR contains several different kinds of rights, or at least rights with different weights. So we can distinguish those rights, such as the right to be free from torture,25 the right not to be held in slavery,26 and the right to life,27 as rights that have very considerable weight. In the case of torture and slavery, we even say that the right is “absolute” in the sense that the right has such weight that no other consideration is sufficiently important for it to trump that right. Other rights, in particular such rights as the right to a private life,28 the right to freedom of speech,29 and the right to freedom of assembly,30 are structured so that other considerations can be taken into account in determining whether that right has been breached. In that sense, these rights are qualified rather than absolute. “Qualified” rights are thus highly contextualized, requiring judgments to be made about how the right is to be exercised in particular situations, and the limits on that right. The right to freedom of religion in the ECHR is partly of the first type, and partly of the second type.31 The right to “freedom of thought, conscience, and religion” has two dimensions. First, there is the “freedom to change his religion or belief”; this is not subject to any limitation (we might say it is an absolute right). Second, there is the “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance”; this is a qualified right, subject to limitations set out in the second part of Article 9 itself. The way in which this limitation provision is drafted (any limitations on the right must be “necessary 25 29

Article 3 ECHR. Article 10 ECHR.

26 30

Article 4 ECHR. Article 11 ECHR.

27 31

Article 2 ECHR. Article 9 ECHR.

28

Article 8 ECHR.

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in a democratic society”) leads the ECtHR to test for “proportionality”: that is, the Court considers if the purpose of the limitation of the right is legitimate, if the limitation is necessary for attaining that purpose, and if the measure strikes a proper balance between that purpose and the right that is being restricted. The inclusion of a right to freedom of religion in both aspects requires explanation and justification, but it is the second form on which particular attention has been lavished, because it is the “manifestation” of religious practice in public that is more likely to meet with opposition, at least in modern circumstances. There is now a sophisticated literature in both law and philosophy discussing why it is, or is not, appropriate to include special protections for freedom of religion as such. What is it about religion that should lead to it being given a specially tailored right? What is the value that a freedom of religion provision protects that can’t be equally well catered for by other provisions, such as freedom of speech, privacy, the right to marry, property rights, the right to education, and so forth? Think of it this way: assume, for the moment, that a bill of rights guaranteed freedom of association, freedom of speech, and freedom from discrimination (including on grounds of religion). Would anything be lost if there were not a provision guaranteeing freedom of religion in the form that we have in the ECHR? For some, of course, there is no good justification for such special protection: religion should stand or fall according to the same standards as other systems of belief and action. For those who consider that there is a place for a freedom of religion provision, however, one of several different responses tends to be adopted. Freedom of religion is sometimes regarded as special because in the past religious disputes have proven so fractious and divisive that, for the sake of peace, it is inadvisable for the state to intervene in religious controversies unless there is a very strong reason to do so. This concern dates at least from the need to resolve the religious wars that scarred much of the seventeenth and eighteenth centuries in Europe. Guaranteeing freedom of religion was seen as a means of guaranteeing civil peace. For British courts, guaranteeing freedom of religion for this reason remains of current significance. Lord Nicholls, for example, stressed how respecting another’s religious beliefs “enables [us] to live in harmony. This is one of the hallmarks of a civilized society. Unhappily, all too often this hallmark has been noticeable by its absence. Mutual tolerance has had a chequered history even in recent times. The history of most countries, if not all, has been marred by the evil consequences of religious and other intolerance.”32 32

In R (Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246, at [15], per Lord Nicholls.

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The potential for civil strife if religious passions are not moderated by mutual tolerance therefore provides an important background consideration against which to interpret the role of freedom of religion. Where courts have a feeling that accepting claims to freedom of religion is likely to increase rather than decrease religious tensions, they tend to react negatively. It is noteworthy, for example, that in upholding the compromise that a school had worked out over which types of Islamic dress to permit, Lord Bingham stressed the “period of harmony . . . to which the uniform policy was thought to contribute,” how the compromise was “acceptable to mainstream Muslim opinion,” how the changes proposed by the claimant “would or might have significant adverse repercussions,” and how the Court would be “irresponsible” to override the school “on a matter as sensitive as this.”33 The “confrontational”34 and the “threatening”35 nature of the way in which the issue was raised by the claimants, and the sense that an “extremist version of the Muslim religion”36 might be being promoted, will not have helped the applicant either. In the same case, Lady Hale was even more explicit: “The school’s task is . . . to promote the ability of people of diverse races, religions and cultures to live together in harmony.”37 There is a second, alternative argument adopted by those who consider that there is a place for a freedom of religion provision: that there is some particular added value that religious freedom protects that the other rights do not, such as the importance of individual conscience, or the value of being reminded of the importance of the spiritual. The parallels between privacy and freedom of religion in this regard are in some ways quite striking. Freedom of religion emphasizes membership in a religion as something that involves private beliefs and activity. Indeed, there is much in common more generally between the idea of a zone of privacy and the protection of freedom of religion. The protection of the first aspect of freedom of religion distinguished earlier, the forum internum as it is called, has much in common with a privacy idea. Under freedom of religion more generally, the approach taken is one that emphasizes the singular importance of the individual’s choice to act on a particular belief. It is similar to deciding whether to engage in sexual activity, and of what type, both choices that are regarded as private. The idea of toleration is also central to both. As with privacy in the sexual orientation context, under freedom of religion judges are not called on to approve the religion or belief that claims protection, simply to be prepared to tolerate it. 33 34 37

R (SB) v. Governors of Denbigh High School [2007] 1 AC at 34 (Lord Bingham). At [80], per Lord Scott. 35 At [79], per Lord Scott. 36 At [65], per Lord Hoffmann. At [96].

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Freedom of religion, in this justification, protects the free choices of autonomous individuals within a zone of beliefs. One can say that this is the primary understanding of the freedom of religion protected by Article 9 ECHR. Indeed, the Court has said as such: “religious freedom is primarily a matter of individual conscience.”38 These aspects of freedom of religion are often seen as involving different aspects of what American jurisprudence would call the First Amendment “free exercise” of religion. We have, however, already identified another aspect of freedom of religion, what we have termed “freedom from religion,” or at least freedom from religion imposed as an exercise of state authority. The limited version of this aspect of religious freedom adopted in the ECHR amounts to a requirement that the state should not coerce individuals to adopt a religion and should not favor one religion over another. The ECtHR has held that national governments cannot unreasonably discriminate between religions with regard to the requirements that the church must fulfill.39 So Article 9 safeguards the right of one religion to be free to operate on conditions equal to other churches, especially where the action of the state causes an unjustified restriction on the exercise of religious freedom in its collective dimension.40 The relationship between the individual and the collective dimension is problematic. Understanding the value of freedom of religion as primarily the protection of a zone of privacy is in tension with what we can call the “collective dimension” of organized religion. The ECtHR has recognized that “religious communities traditionally and universally exist in the form of organised structures. They abide by rules which are often seen by followers as being of a divine origin.”41 Indeed, the ECtHR regularly emphasizes that states should not underestimate the importance of the community dimension of the right.42 While we have seen that the Court said that “religious freedom is primarily a matter of individual conscience,” the Court went on to say, in the same case, and immediately following this, that Article 9 “also implies, inter alia, freedom to manifest one’s religion, alone and in private, or in community with others, in public and within the circle of those whose faith one shares.”43 How do the courts address the relationship between the protection of an individual private right and claims based on the protection of this collective 38 39 40 41 42

Hasan and Chaush v. Bulgaria (2002) 34 EHRR 55 (emphasis added). Canea Catholic Church v. Greece (1997) 27 EHRR 521 (Commission Decision). Metropolitan Church of Bessarabia v. Moldova (2002) 35 EHRR 13. Hasan and Chaush v. Bulgaria (2002) 34 EHRR 55, at [62]. Kokkinakis v. Greece (1993) 17 EHRR 397, para. 31. 43 Hasan, at [60].

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dimension? The answer, unfortunately, is “in some confusion,” and in a multiplicity of voices. One approach is to seek to individualize the collective dimension. Freedom of religion in its collective dimension is seen as important partly because it furthers the autonomy of the individual. So the Court has said that “the autonomous existence of religious communities . . . directly concerns . . . the effective enjoyment of the right to freedom of religion by all its active members. Were the organisational life of the community not protected by Article 9 of the Convention, all other aspects of the individual’s freedom of religion would become vulnerable.”44 In other cases, however, the Court considers that freedom of religion in both its individual and collective aspects is important for a third main reason, that such freedom is in the interests of the society as a whole, not just in the interests of the individual believer or collectively organized religion. In particular, the Court has viewed the collective aspect of freedom of religion as going beyond safeguarding the particular religious community in question, considering that “it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”45 “Indeed,” the Court says, “the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 affords.” For the ECtHR, it is important to protect “the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socioeconomic ideas and concepts.”46 To repeat, this does not mean that the state (or the Court) is called on to approve the religious beliefs; it is the existence of the variety of beliefs that is important, presumably irrespective of whether they are “correct” or not. We can see, therefore, that three main approaches characterize the ECtHR’s interpretation of Article 9: an approach based on maintaining civil peace; an approach based on securing protection of private choices; and an approach based on ensuring the pluralism of the public space. The Court draws on each of these in its jurisprudence but has never, to my knowledge, made clear which, if any, has priority over the others, and the precise relationship between them remains largely unresolved.

44 45

46

Hasan at [62] (emphasis added). Moscow Branch of the Salvation Army v. Russia, Application No. 72881/01, (2007) 44 EHRR 46, para. 57. Moscow Branch, para. 61.

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16.3.2 Teleology of Religious Discrimination Protections Religion often becomes, independent of belief, a social status, a badge of identity, similar in many ways to other forms of identity, such as ethnic or cultural identity. Not surprisingly, therefore, arguments concerning the place of religion in the public or private spheres are now frequently reframed as issues of discrimination and equality. This appears to be the result of at least two significant developments. The first is that legal practitioners now more frequently identify antidiscrimination arguments as providing ways of avoiding the uncertainties engendered by the jurisprudence on freedom of religion. The second is that the growth of equality and discrimination arguments generally, and in particular the greater focus on the protection of various identities, has brought to the fore the “identity” dimensions of religion. Several similarities between freedom of religion and freedom from discrimination on the basis of religion are initially quite striking. There is, in particular, a degree of overlap between the interpretation of freedom of religion and the religious discrimination provisions insofar as freedom of religion itself encompasses an equality dimension. We have seen that freedom of religion has been interpreted as encompassing a degree of equality between religions. Indeed, one of the ways in which a breach of freedom of religion is proven is by pointing to more favorable treatment being accorded to another religion when, other things being equal, they should have been treated similarly.47 This intuition is captured in the ECHR through Article 14, the original intention of which was to provide that these substantive rights should not be delivered in a discriminatory way. Beyond these similarities, however, textual differences emerge. In Article 9, freedom of religion (along with thought, conscience, and belief) is singled out for special treatment, in the sense that freedom of religion has a particular provision that is devoted primarily to enunciating this freedom, whereas the provision prohibiting religious discrimination is located among several other 47

Under Article 9 ECHR, states cannot unreasonably discriminate between religions with regard to the requirements that the church must fulfill (Canea Catholic Church v. Greece [1997] 27 EHRR 521 [Commission Decision]). So Article 9 safeguards the right of one religion to be free to operate on conditions equal to other recognized churches, especially where the action of the state causes an unjustified restriction on the exercise of religious freedom in its collective dimension (Metropolitan Church, above). The US Supreme Court has also frequently adopted a nondiscrimination approach in interpreting the First Amendment’s religion clauses: Widmar v. Vincent, 454 US 263, 269 n. 6 (1981); Lamb’s Chapel v. Center Moriches School District, 113 S Ct 2141 (1993); McDaniel v. Paty, 435 US 618 (1978). See further Jay A. Sekulow, James M. Henderson, and Kevin E. Broyles, “Religious Freedom and the First Self-Evident Truth: Equality as Guiding Principle in Interpreting the Religion Clauses,” William & Mary Bill of Rights Journal 4, no. 1 (1995): 391, n. 231.

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grounds of nondiscrimination, including race, gender, and so forth. A second difference is more institutional – unlike the treatment of freedom of religion, freedom from religious discrimination has, in the past, often been the subject of detailed legal treatment in ordinary statute law as well as being sometimes addressed through constitutional or human rights provisions.48 In light of this, there are two major problems in identifying the telos of the antidiscrimination approach when applied to religion. The first is the relationship between freedom of religion and freedom from religious discrimination. Is there anything fundamentally distinctive between these rights? Do the differences in drafting and institutional elaboration discussed earlier denote a significant substantive difference? Or do the two rights seek to do essentially the same thing? In short, does it matter whether an issue is presented as one of freedom of religion or one of religious discrimination? The second problem arises from concerns about the internal coherence of the protectorate included in antidiscrimination law. Antidiscrimination law frequently prohibits discrimination against an expanding list of protected categories. We might seek to explain the inclusion of religion as a protected category simply as the result of interest-group lobbying, political influence, and historical contingency, but whether or not that approach accounts for the development in a way that convinces historians and political scientists, it has not proven sufficient for lawyers and judges, who tend to assume that, if there is a list, then there is some principled connection between the grounds protected that goes beyond historical contingency and politics. 16.3.3 Relationship between “Freedom of Religion” and “Freedom from Discrimination” I’ll consider, first, the relationship between freedom of religion and freedom from discrimination, and suggest that the differences between these provisions are more fundamental than simply differences in drafting style, material scope, and legal source, however important these are in practice. The potential differences between the two rights also appear to have been recognized, at least to a limited extent. In both EU and UK antidiscrimination law, there are several exceptions from the religious antidiscrimination provisions aiming to ensure that freedom of religion is not

48

Scholarly discussion has frequently identified how little sustained jurisprudential analysis has been accorded to this approach in contrast to the massive scholarly attention accorded to freedom of religion. Little academic attention has been given to the inclusion of religion as one of the protected categories in antidiscrimination law.

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breached,49 thus indicating that the two rights are thought to incorporate different principles. Turning to the way in which these types of provisions have been judicially interpreted, we notice several differences between these provisions. First, the discrimination provisions are interpreted as essentially comparative.50 The approach adopted in the interpretation of the religious discrimination provision emphasizes the nature of discrimination as involving the less favorable treatment of one person in comparison with another person, based on the differences in their religion. We saw the Court adopting that approach in Ladele. Freedom of religion protections, on the other hand, are not seen as essentially comparative. There can be a breach of a provision guaranteeing freedom of religion, irrespective of the same treatment being accorded (or not accorded) to adherents of all other religions, or, indeed, everyone else. Freedom of religion, at least in theory, protects the holding of a belief of that religion and its manifestation on a non-comparative basis; someone complaining of a breach of freedom of religion does not need to complain that someone else has been treated more favorably. There is a way of thinking about a second possible difference between freedom of religion and religious antidiscrimination approaches by using an analogy drawn from sexual orientation. There has long been an important debate within the community of gay activists in Europe, as well as elsewhere, as to the appropriate strategy to adopt in addressing the treatment suffered by those who are gay. Essentially, the alternatives were to adopt a strategy based on an argument from privacy or one based on equality. In the early days of gay legal activism, the argument from privacy was highly successful in challenging the criminalization of sexual practices, particularly those associated with male homosexuality, such as sodomy. The essence of the argument from privacy was that the right protected activities within a zone of sexual intimacy from state regulation because what one did within that zone of sexual intimacy was, quite simply, not the law’s business. The advantage from an activist’s perspective was that (conservative) judges were not called on to approve what was done within that zone of privacy, but simply to tolerate it. This tolerance was based on the need to recognize the desirability of

49

50

Compare the exception in the case of employment by an organization that has a particular religious ethos to permit such organizations to discriminate on the basis of religion or belief, but only where the nature of those activities, or the context in which they are carried out, constitutes a genuine occupational qualification. With the notable exception of certain forms of gender discrimination, in some jurisdictions, such as pregnancy discrimination under EU antidiscrimination law.

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protecting the free choices of autonomous individuals within the zone of sexual intimacy. The perceived disadvantage of the argument from privacy for gay activists was that it appeared to provide very little opportunity to challenge other restrictions on homosexuals successfully (other than those on same-sex sexual conduct, that is). After the initial success of the privacy strategy in striking down criminal sodomy laws, the privacy strategy was considered by many to be too limited in what it could be used to achieve. Even more importantly, however, it was not just limited, but also limiting, in that it appeared to conceptualize the relationship between gays and the wider society only in terms of sexual intimacy, and only in terms of protecting conduct rather than status. Once gays came out of the closet, into the public domain, into the light, then the privacy argument had very little purchase: privacy did not protect homosexuals from being treated badly; it only protected particular actions associated with homosexuals from being penalized (provided they were in private).51 The alternative approach that came to dominate gay rights litigation was based on discrimination and equality rather than privacy. A shift to equality would mean that gay activists would no longer have to focus on the particular substantive right of privacy as the basis for challenging particular treatment, but instead would concentrate on the use of the “status” of sexual orientation, similar to the way in which the use of race or gender or disability came to be seen. This shift to equality was considered attractive, in short, because it provided an opportunity to focus on homosexual status rather than homosexual sexual practices alone; it protected gays in the public sphere (as opposed to only in the bedroom) and, because it was based on a conception of discrimination that was comparative, it emphasized, on every occasion, that the starting point for analysis was that homosexuals and non-homosexuals should be treated as equivalent.52 This opportunity to validate rather than just tolerate gays was taken up with enthusiasm by gay activists, leading to considerable advances in the perception of homosexuals, who were reclassified (as it were) to become a group worthy of protection, in ways very similar to women, racial minorities, and so 51

52

John Finnis described this position in 1994 as “the standard modern position.” He supported decriminalization of private homosexual conduct, while rejecting regarding homosexuality with heterosexuality as equivalent; see John M. Finnis, “Law, Morality and ‘Sexual Orientation,’” Notre Dame Law Review 69 (1994): 1049. See, for example, Larry Cata Backer, “Exposing the Perversion of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration,” Florida Law Review 45 (1993): 755.

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on. In this sense, Justice Scalia was correct in Romer v. Evans when he said, “Quite understandably, they [meaning gay activists] devote . . . political power to achieving . . . not merely a grudging social toleration, but full social acceptance, of homosexuality.”53 Quoting Andrew M. Jacobs, he considered “[t]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation.”54 Adopting equality as the basis for its legal strategy contributed to this goal. “Affirmation” means that these particular choices are not just accepted, but are also regarded as right, such that we cannot reject them, and the state (through the courts) is seen to prefer that view over a contesting view. How is this diversion relevant for an analysis of claims to religious discrimination? A significant part of the appeal for litigants in using an argument based in freedom from religious discrimination is the opportunity it offers to benefit from similar affirmation of their status as religious persons, particularly when they operate in the public sphere, broadly defined. The opportunity to secure affirmation is notoriously more limited using freedom of religion. Not only is there an ambiguity as to whether the courts will apply a narrow “autonomy” approach, significantly limiting religion to the private sphere, there is also a focus on particular conduct, namely the manifestation of a set of religious practices, rather than a protection of the status of being religious in the much broader range of circumstances covered by antidiscrimination law. 16.3.4 Grounds of Protection in Antidiscrimination Law While the benefits for conscientious-believer litigants appear to be clear, a significant problem remains, however. This is the problem of how far, if at all, courts are willing to see religion as truly analogous to other grounds that they regard as appropriately protected by antidiscrimination law, such as race, or gender, or sexual orientation. This requires us to consider the second problem in understanding the telos of freedom from religious discrimination. Trying to explain why some grounds are included within the protectorate of antidiscrimination law, while others are not, has generated a substantial debate in different jurisdictions, one that is by no means over. Initially, the predominant academic explanation in several jurisdictions outside the United States followed that adopted by the US Supreme Court: 53 54

Romer v. Evans, 517 U.S. 620, 646 (1996). Andrew M. Jacobs, “The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969–1991,” Nebraska Law Review 72 (1993): 723–24.

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the common element that linked those grounds that were protected by antidiscrimination law, and that distinguished these from other grounds that were not protected, was said to be that the grounds that were included in the protectorate were all “immutable characteristics,” meaning that these characteristics were not chosen and could not be altered by an individual. In 1969, the Harvard Law Review stated that “race and lineage are congenital and unalterable traits over which an individual has no control and for which he should not receive neither blame nor reward.”55 The immutability theory has important implications for how we are likely to view the inclusion of religion in the grounds of protection, because it radically distinguishes racial discrimination from much religious discrimination. Whereas the latter is thought to protect individuals because they act on the basis of freely made choices, the former protects individuals because they were acted upon on the basis of characteristics that were not freely chosen because immutable. It is this distinction that surfaced some years ago in the British courts, when Lord Justice Sedley in Eweida v. British Airways56 distinguished protection from discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, race, sex and sexual orientation, from protection from discrimination on grounds of religion or belief. He observed: “One cannot help observing that all of these apart from religion or belief are objective characteristics of individuals: religion and belief alone are matters of choice.”57 In the place of its birth, the immutability theory has, however, long been regarded skeptically, as being both under- and over-inclusive. Laurence Tribe’s comment demonstrates how it is over-inclusive: “Intelligence, height, and strength are all immutable for a particular individual but legislation that distinguishes on the basis of these criteria is not generally thought to be constitutionally suspect.”58 Jack Balkin’s analysis points to why it is underinclusive: “Discrimination against blacks . . . is not unjust simply because race is an immutable characteristic. Focusing on immutability per se confuses biological with sociological considerations. It confuses the physical existence of the trait with what the trait means in a social system . . . The question is not whether a trait is immutable, but whether there has been a history of using the 55

56 58

“Developments in the Law: Equal Protection,” Harvard Law Review 82, no. 5 (1969): 1065, 1126–27. [2010] EWCA Civ 80. 57 At [40]. Laurence H. Tribe, “The Puzzling Persistence of Process-Based Constitutional Theories,” Yale Law Journal 89, no. 6 (1980): 1063, note 51. Similarly, Owen M. Fiss, “Groups and the Equal Protection Clause,” Philosophy and Public Affairs 5 (1976): 125; and Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986), 394–95.

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trait to create a system of social meanings, or define a social hierarchy, that helps dominate and oppress people. Any conclusions about the importance of immutability already presuppose a view about background social structure.”59 Attempting to isolate a principled reason why some groups are protected from being discriminated against and others not, brings us face to face with a major unresolved issue in antidiscrimination law theory: what is it that antidiscrimination law is attempting to do? While the immutability theory has lost support, no single alternative has emerged as a commonly accepted replacement, at least in the European context. Instead, several major competing theories have attempted to answer this question. One theory is that the protected characteristics comprise a list of those characteristics that are irrelevant to the performance of a job, or to the distribution of a benefit, and that it is therefore the use of these characteristics that should be prohibited in these contexts. This approach focuses on the role of antidiscrimination law of eradicating irrational decision-making, and requiring decision makers to act on the basis of merit. This explanation has always carried a powerful punch, because protection from discrimination on this basis is not just for the benefit of the individual who is protected, but it is also in the general interest that only relevant criteria should be adopted. And in the context of religion, we can also see that this approach has considerable resonance – it is, in some contexts, simply irrelevant what a person’s beliefs (religious or not) are. To this extent, there is a clear overlap between the concern to protect freedom of religion and the concern to prohibit discrimination on religious grounds: both are concerned with preventing others (the state, an employer) from messing with a person’s set of beliefs unless this is absolutely necessary. In this theory, whether the protected characteristic was the result of free choice by the “victim” was not important; rather, what was important was the relevance of the criterion to the choice made by the decision maker. The argument from irrelevance is not, however, particularly convincing if it is presented as a complete explanation for the inclusion of the list of protected characteristics usually covered, not least because in some cases the use of a protected characteristic is highly relevant but is still prohibited (think of the prohibition of some actuarial calculations based on gender of pension contributions under EU law).60 In the context of the prohibition of religious discrimination, the “irrelevance” theory is also unconvincing as an all59

60

Jack M. Balkin, “The Constitution of Status,” Yale Law Journal 106, no. 8 (1997): 2313–75, 2365–66. Case 236/09, Test-Achats, judgment of March 1, 2011, [2011] 2 CMLR 38.

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encompassing explanation, because religious discrimination is prohibited in employment even where it is relevant, such as where an employer is prohibited from discriminating against a person on grounds of his or her religion even where the employer’s customers would strongly prefer not to have a person of that religion serving them. For the employer to take the employee’s religion into account in deciding whether to hire that person could not be described as irrational, or based on irrelevant considerations. We prohibit the employer from so acting in spite of it being relevant in some circumstances. Of the alternatives to the irrelevance theory, two others have proven of particular importance. Both of these involve, to some degree, a collective dimension. When the paradigmatic grounds of antidiscrimination law were race and gender, the most popular alternative theory was probably one based on “redistribution” to particular disadvantaged groups. This theory captured the idea that the function of antidiscrimination law was a modest redistribution of opportunities for employment, housing, and other benefits from advantaged to disadvantaged groups. The source of the disadvantage was clear – it was the race or the gender of the person – and therefore it was appropriate to prohibit the use of those characteristics that would result in these groups being even more disadvantaged. Owen Fiss termed this approach the “group disadvantaging principle.” This principle, and its similar cousins, concentrated on the disadvantage (often economic) that the group suffered or would suffer, and associated that disadvantage with the fact that the group was identified by its possession of the prohibited characteristic. The group disadvantaging principle explains the inclusion of religion in Europe only to a limited extent. So, in Northern Ireland, where religion plays a social role equivalent to ethnicity and there was a significant connection between being Catholic and being disadvantaged, the group disadvantaging principle explains and justifies the inclusion of religion in antidiscrimination law. So, too, where there is a strong connection elsewhere between ethnicity, religion, and economic disadvantage, such as we see as regards the position of Muslims in Britain, prohibiting religious discrimination seems to map neatly onto the group disadvantaging principle. Except in these contexts, however, the redistributive approach seems singularly ill suited to explain the inclusion of religion as a general category of prohibited characteristic. A more recent theory, and probably the most popular currently, is the theory of protection based on the desirability of protecting minority identity. Unlike the group disadvantaging principle, this seeks to explain the categories of protected characteristics by focusing on the importance of protecting social groups with which individuals self-identify and of which they behave as a part, adopting the shared attitudes and practices of the group to such an extent that

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their membership in the group becomes an important part of how they view themselves. These identities should be protected, it is said, because discrimination on the basis of this identity is an attack on a central aspect of the personality of those whose self-identity is tied up with the group. Not all identities are protected, of course, only those that are particularly associated with a minority group, with “minority” in this context often being a proxy for “those who are disadvantaged as a result of their minority status.” This theory seems particularly well suited to the inclusion of grounds such as sexual orientation within the protectorate of antidiscrimination law. The legal move from using privacy to using equality arguments in the context of sexual orientation coincided with a social movement that increasingly saw sexual orientation as an identity rather than simply as a description of sexual conduct. The development of sexual orientation as a mark of identity made it that much easier to incorporate it as a protected ground of discrimination. With that move, the issue ceased to be whether sexual orientation was chosen, or whether sexual orientation was an immutable characteristic.61 It was clear that the group was a minority, whose members were disadvantaged by being part of that group. And such an approach is not entirely absent from the jurisprudence of the ECtHR. We have seen earlier that the ECtHR, when considering freedom of religion, accepts the connection between religion and identity. Protecting religious choices is seen as important not only because we respect autonomy but also because these choices relate to an individual’s identity. So far, however, the identity-based approach has not been extensively tested in the ECtHR as an appropriate interpretation of Article 14’s prohibition of religious discrimination, and its likely adoption by the Court is uncertain. If the interpretation by British courts of prohibitions on religious discrimination is any basis for predicting future trends elsewhere, including in the ECtHR, equality norms in the context of religion will be seen, rather, as simply another way of putting the freedom of religion approach into practice, and therefore as something of an anomaly in the equality law sphere. So, in recent British cases, for example, the antidiscrimination provisions dealing with religion have been interpreted as encapsulating a choice-based approach borrowed directly from freedom of religion rather than an identity-based approach borrowed from race cases. So too the provisions are interpreted as encapsulating a view that religion is a private matter rather than a public matter, again borrowing directly from 61

Adopting either position would have been problematic for (some) gay rights advocates who were radically split on the issue; see Janet E. Halley, “The Politics of the Closet: Towards Equal Protection for Gay, Lesbian, and Bisexual Identity,” UCLA Law Review 36 (1989): 915.

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freedom of religion; and as focused on conduct rather than identity, again borrowing directly from freedom of religion. What seems to emerge from what is, admittedly, still a somewhat patchy jurisprudence is an approach that seeks to distance religious equality from all the other types of status equality, and to relegate religious equality to simply another variant of freedom of religion, and therefore subject to the same type of constraints as freedom of religion. This emerging approach, if such it is, seems to be due in part to the structure of Article 14 itself. As we have seen in the discussion of Ladele, Article 14 is parasitic on other Convention rights, meaning that the Court has determined that Article 14 does not come into play unless the case raises an issue that is at least “within the ambit” of another Convention right. The early jurisprudence of the Court generally viewed the function of Article 14 as peripheral and subsidiary to the other, substantive rights. Indeed, the Court in this early phase seems to have regarded the role of Article 14 as essentially a way of ensuring that the fundamental right in issue was more widely distributed, rather than as important in its own right. This is an important reason why, in so many early cases, an Article 14 claim was not decided on its merits after it was found that another substantive right had been breached – Article 14 was not thought to bring anything additional to the table. In the context of litigation involving a claim of religious discrimination, a classic move was to argue that the case raised issues within the ambit of Article 9 on freedom of religion, rather than some other Article, and thus the scene was set for Article 9 to become the dominant focus of attention, replacing the Article 14 discrimination issue. The approach that regards Article 14 as subsidiary and peripheral has more recently been significantly modified, and eradicating certain types of status inequality is often now seen as a worthy goal in itself. This approach has come to dominate the adjudication of claims based on race, gender, and sexual orientation. The Court considers these grounds (and some others) to merit a particularly high degree of protection because adverse treatment based on these grounds is thought to merit particular condemnation. In these cases, the function of Article 14 is not to act as merely ancillary to the other substantive rights but to take on a role in protecting individuals from particular types of status discrimination. When engaging with discrimination on these grounds, the Court now interprets Article 14 in ways much more similar to the classic statutory antidiscrimination law provisions in domestic law, such as those prohibiting racial and gender discrimination. In the ECtHR, when an Article 14 claim engages this set of grounds (race, gender, and so forth) there is a clear “restriction in the national margin of appreciation.”62 62

Fre´de´ric Edel, The Prohibition of Discrimination under the European Convention on Human Rights [Human Rights Files, No. 22] (Strasbourg: Council of Europe, 2010), 140.

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And, again, this approach is not absent from Article 14 jurisprudence engaging with religious discrimination. We have seen that in several cases the Court has interpreted Article 14 read with Article 9 in somewhat similar ways, in particular where it would appear from the facts of the case that the power of the state was being used to allow one religion to dominate another. Thus the well-known prejudice against non-Orthodox churches in Greece,63 and Jehovah’s Witnesses more generally,64 has led the Court to identify these religions as, effectively, minorities and thus subject to greater protection. In these contexts, where heightened scrutiny is required, the Court is also more likely to impose a positive obligation on the state to protect these minority religions from non-state actors,65 and to impose an obligation of reasonable accommodation on the state.66 Where the Court does not view the religious antidiscrimination claim as involving, in effect, a claim to disadvantaged minority group status, the Court does not appear willing to grant the claimant membership of a suspect category, and is anxious to allow to states a wide margin of appreciation. The Court’s approach, therefore, is very context driven. 16.3.5 Ladele: Confusing Freedom of Religion with Freedom from Religious Discrimination That is why we have cases such as Ladele, in which the Court appears to understand the telos of the religious discrimination provision as the same (or very similar) to that of freedom of religion and thus, crucially, bringing the same limitations into antidiscrimination law as occur in freedom of religion. This was the approach adopted in the English Court of Appeal in Ladele, and it will be remembered that the ECtHR essentially incorporated the English Court of Appeal’s justifications for refusing to uphold Ladele’s claim of discrimination in its judgment. First, the national court, it will be remembered, specifically stated that Ms. Ladele’s refusal to carry out same-sex partnership ceremonies “caused offence to [her] gay colleagues.” Second, the national court stated that the local authority’s requirement that she should carry out this duty “did not prevent 63 64

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Canea Catholic Church v. Greece, December 16, 1997, above. Hoffmann v. Austria, June 23, 1993, above; Palau-Martinez v. France, December 16, 2003, 41 EHRR 9; Religionsgemeinshaft de Zeugen Jehovas and others v. Austria, July 31, 2008, 48 EHRR 17; Gldani Congregation of Jehovah’s Witnesses and 4 Others v. Georgia, May 3, 2007, 46 EHRR 613. Gldani Congregation of Jehovah’s Witnesses, above. Thlimmenos v. Greece, Grand Chamber, April 6, 2000, above.

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her from worshipping as she wished.” In a freedom of religion context, both these justifications might (just) be acceptable (based on the avoidance of civil strife and the privacy rationales), but neither of them has hitherto been regarded as acceptable in an antidiscrimination law context insofar as discrimination on other grounds is concerned. We do not accept as a justification for indirect racial discrimination that the act or omission that the person of color wishes to do or not to do will cause “offence” to others. Nor, in the gender discrimination context, would we regard a woman’s ability to do other things as relevant to whether she was discriminated against in doing this thing. Third, the national court states that one of the reasons for regarding the discrimination as justified was that she was “working for a public authority.” This seems to imply that public authorities should be neutral workplaces in which religious values should remain excluded. And much freedom of religion jurisprudence seems to follow this line of thinking, viewing the protection as essentially guaranteeing the right to private religious practice, following a dominant stand of the “secularization” literature in doing so. As societies modernize, we are told, they should lose the vestiges of public religion and ultimately become committed to secularism. Religion becomes publicly marginalized – or, “privatized” – and “excluded from the public realm.”67 This approach may be consistent with a narrow freedom of religion approach, in which the state’s duty (and possibly the duty of its employees) is to remain neutral, but it seems a very strange approach to adopt in the antidiscrimination context. I have never encountered a judicial decision in any other antidiscrimination context that accepts that indirect discrimination can be justified by the fact that the employee is an employee of that state body. Fourth, it will be remembered that the ECtHR says that the Court “generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.”68 But the Court here again demonstrates a significant confusion. Remember that the Court accepted the applicant’s position that the issue that Ms. Ladele presented was a discrimination claim, not a freedom of religion claim. And recollect that the local authority’s policy was essentially grounded in the avoidance of discrimination. This means, therefore, that in Ladele there were no competing Convention rights (in the sense of a clash between Article 14 and Article 9), but rather competing aspects of the same Convention right, the Article 14 right not to be discriminated against. The Court avoids considering how best to deal with

67 68

Jeffrey Haynes, Religious Transnational Actors and Soft Power (London: Ashgate, 2012), 1. Eweida, para. 106.

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conflicts within the right to nondiscrimination, by lazily considering the issue as one of competing Convention rights. Fifth, the English Court of Appeal states that the duties that Ms. Ladele was required to perform involved “purely secular tasks,” and that her refusal to carry them out was “not based on a core part of her religion.” Both of these aspects of the justification also sound in freedom of religion jurisprudence, not in antidiscrimination jurisprudence. In both cases, their inclusion in the list that the national court brought forward to justify indirect discrimination, a list that we have seen the ECtHR appears to incorporate by reference into its own judgment, seems calculated to undermine the initial finding that there was a prima facie case of discrimination. Even assuming it is correct that Ms. Ladele was involved in purely secular tasks and that her refusal was not based on a core part of her religion, why are either of these points relevant in an antidiscrimination context, except at the stage of determining whether there is a prima facie case of discrimination? The ECtHR having, quite correctly, adopted a clear understanding of what it was necessary for Ms. Ladele to establish at the prima facie stage, then seems to row back, bringing back into consideration at the justification stage just those types of considerations that were rejected at the prima facie violation stage. The only plausible explanation seems to be that these types of considerations might be relevant at the justification stage of a freedom of religion claim, which would seem to illustrate either that the Court is hopelessly muddled in its approach, or that something more intriguing is going on. What that extra something may be is difficult to pin down, as nothing in the Court’s judgment in Ladele even hints at an explanation. Two possibilities come to mind, however. First, the unacceptability of some religious beliefs might be thought to be sufficient in itself to distinguish the ground of religion and belief from other protected characteristics, and this may lead courts to push religious discrimination claims back to the safer shores of freedom of religion where there is more experience of dealing with bigoted religions. Gwyneth Pitt, for example, argues that unlike other protected grounds, which “express a consensus about particular values of equality and the irrelevance of certain characteristics,” the protection of religion and belief “potentially provides protection for the holders of completely abhorrent, or irrational, or bigoted beliefs, including those which would certainly not accord equal rights to others if they were to prevail,” and that this “highlights a difference between the religion or belief ground compared with other protected grounds.”69 69

Gwyneth Pitt, “Religion or Belief: Aiming at the Right Target,” in Helen Meenan, ed., Equality Law in an Enlarged European Union: Understanding the Article 13 Directives (Cambridge: Cambridge University Press, 2007), 213.

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The Court may thus be interpreting the prohibitions on religious discrimination in what they consider to be a very different context from that in which they interpret the laws prohibiting racial or gender discrimination. Up to this point, they have become used to seeing religious discrimination primarily in an ethnic minority context, and seem to have considerable difficulty in accepting that religious identity is a status that is to be protected irrespective of whether that religious identity is connected with a minority ethnic identity. In addition, even when the religious discrimination claim does arise from a community that is a minority ethnic community, the claim to protection is met with a post-multicultural skepticism, particularly where any whiff of illiberalism in the religious practices of that group is perceived to be operating. If this is what is going on, then it would seem that, in the long run, the language and claims of nondiscrimination and equality may be of greater harm than help to religious claimants. Equality language and antidiscrimination claims bear the impression of certain core progressive commitments that do not sit at all easily with the views of some religious believers. But it is contrary to the state’s (and the Court’s) duty of neutrality and impartiality to allow the state (or the Court) to assess the legitimacy of a system of religious beliefs, or the way in which those beliefs are expressed, and the Court is more likely to prefer dealing with the problem in another way, such as viewing the claim through the narrower lens of freedom of religion. A second possible explanation for the unease in treating religious discrimination claims as on a par with claims of discrimination on other grounds (except where such claims are closely related to racial and ethnic discrimination) may be because of the wider implications of doing so. Perhaps sensing that they are likely to get into highly problematic water if religious discrimination litigation becomes widespread, the ECtHR has avoided these future problems by invoking the margin of appreciation, thus leaving the issue to the national authorities.70 The Grand Chamber adopted a similar approach in Lautsi, the case dealing with the display of the crucifix in Italian public school classrooms.71 One way of interpreting such decisions is to view the Court as according to European states considerable discretion to weigh religious values according to their own criteria of evaluation, thus giving discretion to states also as to how to deal with the problem, and allowing the Court in particular to avoid dealing with the highly sensitive issue of established (or quasi-established) religions in many states.

70

Eweida, para. 106.

71

Lautsi v. Italy, (2012) 54 EHRR 3.

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While this approach may satisfy those concerned with protecting national sovereignty,72 it does little to address other understandings of why religion should be protected since it places the state in the driver’s seat, allowing it to decide which, if any, religious values to uphold. It seems, if anything, a throwback to the original approach to freedom of religion adopted in the Treaty of Westphalia, in which princes got to determine the religion of the populace in their territories. So, for example, the ECtHR’s use of the margin of appreciation to address issues concerned with abortion,73 or the wearing of Islamic dress,74 or conscientious objection to same-sex relationships,75 recognizes the diversity of the values upheld in different national traditions. As the ECtHR stated in the Leyla S¸ahin case, concerning the wearing of Islamic dress: “Rules in this sphere will consequently vary from one country to another according to national traditions and the requirements imposed by the need to protect the rights and freedoms of others and so maintain public order . . . Accordingly, the choice of the extent and form such regulation should take must inevitably be left up to a point to the State concerned, as it will depend on the specific domestic context.”76 But this does little to ensure that human rights norms will protect religious values that a state does not value. And, with some notable exceptions, the theoretical literature emanating from antidiscrimination scholars has been unsympathetic to the dilemmas and inconsistencies this generates, distorted as it sometimes is by a lack of sympathy for religious thought in secular scholarship. This has led to a lack of theoretical progress, a kind of politico-theoretical deadlock, which has muddled our thinking on both antidiscrimination law and religion. 16.4 ADDRESSING THE TELEOLOGICAL PROBLEM IN RELIGIOUS ANTIDISCRIMINATION LAW

It is often said that it is easier to tear down than to build up. Having, I would like to think, deconstructed the Ladele decision, and successfully critiqued significant elements of the ECtHR’s religious discrimination jurisprudence,

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Although, even here, the extent of the Court’s discretion in choosing whether and how to allow this margin of appreciation renders it suspect. In the abortion context, for example, the ECtHR has become somewhat less generous in the extent of the margin appreciation allowed to states, e.g., A,B,C v. Ireland, (2011) 53 EHRR 13. Vo v. France, Application no. 5392/00, Grand Chamber, July 8, 2004, (2005) 40 EHRR 12, at 82. Leyla S¸ahin v. Turkey, (2007) 44 EHRR 5. 75 Eweida. Leyla S¸ahin v. Turkey, at 109 (emphasis added).

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prudence would suggest that I leave it at that.77 But that strategy, although attractive, seems somewhat cowardly, and in this final part, I suggest that there is an alternative approach that is both workable and attractive. We should aim to identify strategies that enable a true dialogue to take place over precisely these most contested questions in human rights law, including what to do in a Ladele-type situation, with practical implications for how dialogue is conceptualized and practiced by organized religion, the courts, and the academic community. The central questions that this section addresses are what true dialogue involves, and what the courts could do to encourage such a dialogue rather than close it down. 16.4.1 Dialogue Bradford Hinze contrasts two approaches to communication: “a dialogic mode . . . in which messages oscillate between participants, and discursive modes, in which a message flows from sender to receiver.”78 In the latter, “[s] peakers are not required to listen and listeners are not required to speak. There is no open-ended mutuality, no chance for all parties to learn, for participants to be influenced by each other leading to mutual growth.” However, Hinze also crucially distinguishes between two different ways in which dialogic communication has come to be understood. One mode of dialogue “draws on classical Platonic, Augustinian, and personalist theories of dialogue,” and is seen as “able to guarantee and safeguard the weight of truth in dialogue.”79 Another mode of dialogue is seen as “risk[ing] placing the truth of tradition in jeopardy.”80 The former, according to Hinze, is a “medium for transmitting and conveying the truth of tradition already established” as opposed to the latter, which advances “an approach to dialogue [that is] interested not only in handing on but also in generating, developing, or revising the truth of the living tradition.”81 Hinze does not regard the former as constituting true dialogue, and I am equally skeptical. The problem in engaging in a true dialogue in these terms is not confined to religious actors. We find a degree of fundamentalism on both sides. When both sides claim to speak the truth, but “the truths” appear to conflict, the stage 77

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At the conference where this chapter was presented, Stanley Fish urged me to stop thinking that a plan can be constructed, and suggested that the only approach possible was simply to “muddle through.” Bradford Hinze, Practices of Dialogue in the Roman Catholic Church: Aims and Obstacles, Lessons and Laments (New York: Continuum, 2006), 12. I am grateful to Timothy Radcliffe OP for bringing this to my attention. Ibid., 260. 80 Ibid., 260. 81 Ibid., 260–61.

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is set for a stand-off, which may prove difficult to resolve. Lest it be thought that fundamentalism is restricted to religious believers, there is also a human rights law tradition that sees human rights as advancing a “comprehensive ideology,” as Michael McConnell has called it, in which there are “right answers” to be found.82 This approach is the basis for what some have seen as justification for calling human rights the new civil religion. Giorgio Sacerdoti has described how, in his view, “[t]he ‘religion’ of human rights and fundamental freedoms has replaced other religions and beliefs as the underpinning of social life in contemporary societies.”83 Unfortunately, the British parliamentary debates on the same-sex marriage legislation, following Ladele, demonstrated this fundamentalist approach to human rights. The position of the ECtHR in Ladele – that the question of whether registrars in her position should be permitted not to conduct such ceremonies was an issue for the national authorities to consider – was seen, effectively, as giving an imprimatur to those who sought to put claims such as hers beyond the pale of acceptable debate. Rather than Ladele being seen as encouraging true dialogue, it came to be seen as not requiring any serious dialogue at all. How should human rights be practiced, if we are to take seriously the idea of a true dialogue between secular and religious understandings of human rights? In particular, as Michael Ignatieff suggests, how can we best “stop thinking of human rights as trumps and begin thinking of them as a language that creates the basis for deliberation”?84 If we aim to engage in a genuine dialogue in human rights practice in Ladele-type situations, what are the practical implications for the courts’ role? I suggest that taking three concepts more seriously would be an important starting point: pluralism, secularity, and accommodation. 16.4.2 Pluralism Revisited We have seen earlier that the ECtHR has viewed the collective aspect of freedom of religion as going beyond safeguarding the particular religious community in question, considering that “it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from 82

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Michael McConnell, “Liberalism and People of Faith,” in Michael W. McConnell, Robert F. Cochran, and Angela C. Carmella, eds., Christian Perspectives on Legal Thought (New Haven, CT: Yale University Press, 2001), 18. Giorgio Sacerdoti, “The European Charter of Fundamental Rights: From a Nation-State Europe to a Citizens’ Europe,” Columbia Journal of European Law 8 (2002): 37, 52. Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton, NJ: Princeton University Press, 2003), 95.

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a democratic society, which has been dearly won over the centuries, depends on it.”85 For the Court, this pluralism, we saw, is built “on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identities, religious beliefs, artistic, literary and socio-economic ideas and concepts.”86 Although adopted in the context of freedom of religion, this aspect also seems particularly well suited to becoming the appropriate telos of Article 14’s prohibition of religious discrimination, and it would not require too significant a shift of perspective to be fit for that purpose. In particular, the idea of “diversity” is one that has found a home also in the antidiscrimination context, as we have seen. Taken seriously, viewing the telos of religious antidiscrimination law as one of pluralism in this sense could have significant effects in reorienting the interpretation of religious antidiscrimination law. Without attempting to be complete, there are two particular elements of a revised approach that we should follow. 16.4.3 Secularity The first involves replacing secularism with what I call “secularity” as the appropriate aim for the relationship between state authority and religion in the public sphere. We saw earlier that recent theorizing on the future of religion suggested that modernization leads inevitably to secularization, but this is clearly false. Several developing countries that have modernized have deepened, rather than ditched, their commitments to religious identification (think of Malaysia). Societies in the West have seen a growth of religious diversification, where a plethora of new religious groups compete with each other and with older established world religions. And religion has increasingly been deeply embedded in what has been described as the clash of civilizations. Instead of the expulsion of religion from the public space, there has been a resurgence of a particular type of religious sensibility, one that seeks, as Jeffrey Haynes puts it, “the generalized ‘return’ of religion to the public realm,” what he terms “[r]eligious deprivatisation.”87 Theories of secularization were, however, correct in at least one major respect. The continuing role of religion in public life does give rise to tensions with key aspects of modernity, not least with some aspects of human rights. However, the tensions arising between resurgent religion and human rights cannot be considered a transitional issue. On the contrary, they are likely to increase and fester if not addressed. Religions are a problem for human rights, 85 86

Moscow Branch of the Salvation Army v. Russia (2007) 44 EHRR 46, para. 57. Ibid., para. 61. 87 Haynes, Religious Transnational Actors, 1 (emphasis added).

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and human rights are a problem for religions. And both, separately and together, are problems for courts. The issue, of course, is what to do about these trends. There is a critical distinction between two different conceptions of what a secular state should aspire to look like. One possibility is what we might call secularity, and the other is a more comprehensive substantive viewpoint, which we can term “secularism.”88 Brett Scharffs has explained this distinction in detail elsewhere,89 but (in summary) “secularism” refers to an ideological position that is committed to promoting a secular order. Secularism is itself a positive ideology that the state may be committed to promoting, an ideology that may manifest itself as opposition to religiously based or motivated reasoning by political actors, hostility to religion in public life, an insistence that religious manifestation should be relegated to an evershrinking sphere of private life, or even an aggressive proselytizing atheism – what has been called “secular fundamentalism.”90 By contrast, “secularity” means an approach to religion–state relations that avoids identification of the state with any particular religion or ideology (including secularism itself) and endeavors to provide a framework capable of accommodating a broad range of religions and ideological beliefs. Secularity is a more modest concept, committed to creating what might be called a broad realm of “constitutional and legal space” in which competing conceptions of the good (some religious, some not) may be worked out in theory and lived in practice by their proponents, adherents, and critics. Those committed to secularity consider it preferable to secularism as a guide to the right relationship between religion and the state because we should be skeptical of utopian visions, and distrust those who seek to compel the implementation of an all-embracing vision of the good or right. Secularism, in other words, should not become the state religion – explicitly or implicitly. The state should not attempt to promote a pristine secular order where the public realm is scrubbed clean of all religious residue. This is not only a dystopian vision of neutrality, which is often defined in terms of what is excluded rather than by what is included; it is not really neutrality at all, at least in any satisfying sense of the term. The reason secularity is a more attractive ideal is because it is not an ideology, but rather a framework for 88

89 90

See Brett G. Scharffs, “Four Views of the Citadel: The Consequential Distinction between Secularity and Secularism, Religion and Human Rights,” Religion and Human Rights 6 (2011): 109–26. Ibid., 110–11. Richard Ekins, “Secular Fundamentalism and Democracy,” Journal of Markets and Morality 8, no. 1 (2005): 82.

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pluralism. If it is a conception of the good, it is a thin one. It does not say there is no truth, but rather that it is not the state’s job either to identify and promote a particular comprehensive truth, or to oppose it. Secularity, in my view, better describes the current theory of the ECtHR than does secularism, however imperfectly it puts that theory in practice. 16.4.4 Accommodation More practically still, how can human rights courts begin to develop techniques to help stimulate a genuine dialogue that encourages secularity and furthers a pluralistic vision of the public space? Let’s return to the ECtHR’s decision in Ladele. The Court, in my view, was misguided in not developing the tool of proportionality in such a way as to enable it to deal with these claims. In this respect, the German, Canadian, and South African courts provide a considerably better model of how to address these difficult cases, not least because they have identified human dignity as underpinning the claims of both those who are seeking to restrict religious practices, and those who are seeking to manifest their religious beliefs. As Judge Albie Sachs said in giving the judgment of the South African Constitutional Court in Christian Education South Africa v. Minister of Education, “The right to believe or not to believe, and to act or not to act according to his or her beliefs or non-beliefs, is one of the key ingredients of any person’s dignity . . . [R]eligious belief has the capacity to awake concepts of self-worth and human dignity which form the cornerstone of human rights.”91 This use of “dignity” thus enables a degree of commensurability to be identified between the values to be balanced in situations where there is an apparent clash of the rights protected. The solution adopted should be that which is most compatible with advancing human dignity. Neither side of the debate is ruled out of court, there are no outlaws, and respectful attention is given to the claims of both parties. The Canadian and South African courts approach the interpretation of rights and interests in ways that attempt to create the maximum space for rights by, seemly paradoxically, requiring both sides in the dispute not to push their rights or interests to the limit. This way of thinking about the role of rights in true dialogue has been taken up, for example, by Judge Sachs when he sought to inject aspects of mediation into resolving rights disputes involving the ejection of squatters, because it was vital for all those involved in the dispute to recognize that they were involved in a community with each 91

Christian Education South Africa v. Minister of Education 2000 (4) SA 757 (CC) at [36].

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other.92 It is akin, also, to what the German Constitutional Court has termed the principle of “practical concordance.” “This conflict among various bearers of a fundamental right guaranteed without reservation, and between that fundamental right and other constitutionally protected objects,” the Court held in the famous Classroom Crucifix case, “is to be resolved on the principle of practical concordance, which requires that no one of the conflicting legal positions be preferred and maximally asserted, but all given as protective as possible an arrangement.”93 Both rights, or in the case of disputes within the antidiscrimination principle itself, both aspects of equality, carry significant weight. They should therefore both be protected to the greatest extent possible, and this requires that each be accommodated to the greatest extent possible by the other. Only by each side “backing off” from making claims that assert its interests to the limit can this be accomplished. 16.4.5 What Difference Would It Make? What difference would an approach based on pluralism, secularity, and accommodation make to the way in which the Ladele situation would be adjudicated? Several judgments in which this approach plays a central role illustrate how this could work in practice, and is suitable for adoption in the context of antidiscrimination law. In Multani, for example, the Canadian Supreme Court struck down the order of a Quebec school authority that had prohibited a Sikh child from wearing a kirpan to school; the Court considered that the “minimal impairment” element of proportionality required the state to satisfy the court on the basis of evidence that a reasonable accommodation of the religious practice could not be achieved.94 In Christian Education South Africa,95 Justice Sachs stated: The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities 92

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Port Elizabeth Municipality v. Various Occupiers, 2004 (12) BCLR 1268 (CC), Sachs J: “one potentially dignified and effective mode of achieving sustainable reconciliations of the different interests involved is to encourage and require the parties to engage with each other in a proactive and honest endeavour to find mutually acceptable solutions. Wherever possible, respectful face-to-face engagement or mediation through a third party should replace armslength combat by intransigent opponents.” Classroom Crucifix Case, BverfGE 93 1; 1 BvR 1087/91, May 12, 1987 (German Constitutional Court), C.II.3a. Multani v. Marguerite-Bourgeoys 264 DLR (4th) 577, 2006 SCC 6, at paras [51] to [53]. Christian Education South Africa v. Minister of Education 2000 (4) SA 757 (CC).

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to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding. Accordingly, believers cannot claim an automatic right to be exempted by their beliefs from the laws of the land. At the same time, the state should, wherever reasonably possible, seek to avoid putting believers to extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.96

Significantly, it was this approach that led Justice Sachs, in Minister of Home Affairs v. Fourie,97 the South African Constitutional Court’s decision upholding a claim that the constitution obliged the state to provide a means of recognizing same-sex unions, to require that state registrars who objected on religious grounds should be permitted not to be involved in granting such recognition. Justice Sachs, giving the judgment of the Court, stated: “The principle of reasonable accommodation could98 be applied by the state to ensure that civil marriage officers who had sincere religious objections to officiating at same-sex marriages would not themselves be obliged to do so if this resulted in a violation of their conscience.” In Ladele-type situations, such an approach seems particularly apposite, where the tension is between the right to nondiscrimination on grounds of religion and the right to nondiscrimination on grounds of sexual orientation, and there is no principled basis for deciding which should have priority. There was no indication in the national Court’s decision, nor in the ECtHR, why one is less worthy of the strongest protection than the other. Indeed, the local authority’s own policy, “Dignity for All,” under which the domestic court considered that the local authority was acting, protected employees from both religious discrimination and discrimination on grounds of sexual orientation, without ranking them in importance. The appropriate solution would have been for the national authorities to consider whether Ms. Ladele’s conscientious objection could be reasonably accommodated, along the lines suggested by Justice Sachs. It might be argued that asking the Court to require the local authority to reasonably accommodate Ms. Ladele involves it examining whether a domestic authority’s refusal to grant an exemption or exception from a general policy for religious reasons 96 98

At [35]. 97 Minister of Home Affairs v. Fourie, above. In the context of the case, “could” meant, in practice, “should.” The South African legislature took the strong hint offered by the South African Constitutional Court, and introduced a provision accommodating the conscientious objections of registrars in the same-sex marriage legislation that was introduced to implement the Constitutional Court’s decision. See further Henriet de Ru, MA thesis, November 2009 (“The Recognition of Same-Sex Unions in South Africa”).

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is compatible with the Convention, and that this is a matter that falls within the margin of appreciation. But this way of framing the reasonable accommodation claim is seriously misleading. To view the failure to accommodate as the creation of an exemption distorts a long jurisprudence on discrimination in which reasonable accommodation is seen as a way of avoiding unlawful discrimination, rather than as creating an “exception or exemption.” Viewing reasonable accommodation as creating privileges for one group appears to demonstrate a misunderstanding of this long antidiscrimination jurisprudence,99 or a desire to see the religious discrimination claim as really a freedom of religion claim (where the language of special exemption is prevalent). Applying an antidiscrimination approach, properly understood, the Court could have sought to preserve to the maximum extent possible both the right to sexual orientation equality and the right to religious equality, where they are or may be in conflict. And had this approach been adopted, the Ladele case itself might have seemed a relatively easy one, because in that case, there was in fact no conflict between the rights of Ms. Ladele and those of actual same-sex couples seeking civil partnerships. As we have seen, her conscientious objection could have been accommodated without any adverse effects on actual same-sex couples. Ms. Ladele was disciplined not to protect any actual samesex couple (whose rights were not, therefore, impeded in practice) but to use the disciplining of a public servant to “send a message” to the wider community. In such a situation, the court ought to have held that there could be no proportionate justification for refusing to accommodate her conscientious objection. And the subsequent debate in Parliament might even have been more of a true dialogue, and less a dialogue of the deaf. 16.5 THREE TROUBLESOME PROBLEMS

These preliminary suggestions undoubtedly need to be further refined. In this section, I address three particular questions that may indicate underlying problems. The first question is whether the fact that marriage registrars are state officials trumps any claims to conscience that such officials might assert. 99

We did not say after Brown v. Board of Education, 347 U.S. 483 (1954) that the US Supreme Court had created a special exemption for African American children from the legal requirement to maintain segregated schools. We did not say after Defrenne v. Sabena, Case 43/75, [1976] ECR 455, that the European Court of Justice (as it then was) created a special exemption for female flight attendants faced with gender discrimination. Nor, in the Ladele case, should we regard a requirement to act in such a way as to avoid discriminating against her on religious grounds as creating a special exception.

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The second question is what, if any, limits on the approach recommended could or should be specified? In this section, I aim not only to describe these objections but also to try to rebut them. The third question I address, whether the approach I’ve suggested is consistent with the underlying theory of antidiscrimination law, is the most difficult. 16.5.1 Special Position of Civil Servants and Public Officials? Ms. Ladele was an employee of a local authority council and was, effectively, equivalent to a public servant. From this, several different arguments are frequently made. First, it is argued that public servants are in a different situation from other people, in terms of exercising their claims of conscience. The public servant is an instrument of the state. It is not the public servant, in the case of marriage registrars, that “marries” the couple, it is the state that does that. The public servant who seeks to exercise his conscientious beliefs and refuses to officiate claims a role that he simply doesn’t have. A second, rather different argument against public servants being able to exercise their claims of conscience is that unless they come into line on issues, they will be seen as representing the public authority. Where the public body has stated its policy but the public servant goes against it, there is then the danger that the public authorities’ policy message will be blurred and confusion will enter the mind of the public as to what the policy of the public body actually is. Worse, it may lead to the public servant’s view of what is correct being wrongly attributed to the public body. The objection is that to permit her to refuse at best weakens the message that her employer wants to send; at worst, it has a communicative impact opposite to that the government seeks to convey. There are various ways of addressing these arguments. The first response is that if the fear is (and it is a genuine and well-founded fear, I agree) that civil servants will be seen as representing the public body in adopting their conscientious approach, there is nothing to stop the public body making clear that although it permitted its employee to act on the basis of conscience, the authority in fact disagreed with the position its employee took, but it was prepared to allow it out of a commitment to tolerance. Indeed, the authority could use this opportunity to teach about the difference between tolerating something we disapprove of, and accepting it as one’s own position. This type of approach has been adopted in several cases in Canada and South Africa, in other contexts.100 100

In MEC for Education: Kwazulu-Natal and Others v. Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC) (October 5, 2007); Multani v. Commission scolaire MargueriteBourgeoys, [2006] 1 SCR 256, 2006 SCC 6.

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I do not think, however, that this really gets to the nub of the objection I’ve tried to articulate, nor to the reason why a pluralistic approach is, to me, more attractive. There is something deeply worrying in the assertion that a public employee leaves behind their individuality and, more importantly, their conscience, when they accept public employment. It is true that certain parts of the European civil law tradition appear to espouse that position, coming close to the position that the state and the individual public servant are one and the same, indivisible. But that seems to reflect a rather totalitarian mind-set. Indeed, in other contexts, such as conscientious objection to serving in the military, or objecting to military orders in certain scenarios, we often regard the person objecting as serving a valuable function. We protect the person on human rights grounds. We sometimes go beyond this, however, not just accepting that such people have a right to object, but that they have a duty to. At Nuremberg, the person was held to be under a duty to resist such orders. And a pluralistic approach would go one step further still, arguing that permitting such conscientious objection can have a value to the organization itself, in providing an alternative normative perspective that demands to be heard and acts as a challenge to received wisdom. We need to be wary, not just because of the effect on the conscientious individual but also for the effect on the public sphere, of restricting the ability of individuals to bear witness, simply because of the message that it sends. 16.5.2 Are There More General Limits to the Acceptability of Pluralism? Conversations about the Ladele case, in my experience, almost always involve a battle of analogies. Would I be prepared to allow judges to claim to exercise their conscience in deciding whether to grant divorces, or whether to impose the death penalty where it was required by law? How do we distinguish between Ms. Ladele’s position and a refusal by a state official to officiate at mixed-race marriages, or marriages between Jews and Christians? The implication of all these questions is that, of course, we should not allow judges to exercise their consciences, or racist and anti-Semitic registrars to claim a religiously based exemption. On the other hand, supporters of Ms. Ladele’s position fire back: we allow doctors and nurses not to carry out abortions, and we allow pharmacists not to stock the morning-after pill, so why not Ms. Ladele? I have two responses to the battle of analogies, which bring out the limits that I would impose on the pluralism argument I suggested earlier. The first limit concerns the availability of the public service in issue. I would limit the extent to which those claiming a conscientious objection should be allowed to

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refuse to provide a service where the effect of refusing to provide that service is to prevent access to the service. It is clear, for example, that in Poland, where limited abortions are permitted by law, the conscientious objections by many Polish doctors are such that Polish women in certain areas of the country have little or no access to what is a lawfully provided service. So too, were access to same-sex marriage in jurisdictions that permitted it to be effectively denied to same-sex couples because of the conscientious objections of marriage registrars, then I would be prepared to limit a registrar’s ability to claim a conscientious objection. I recognize, of course, that this is an essentially empirical limit, and in such cases we will find it difficult to know ex ante the effects of permitting such claims to conscience. In any event, this response is generally not what motivates those who object to Ms. Ladele being permitted to claim a conscientious objection, using the analogies that I’ve mentioned. The limit I would impose is one based in human dignity. Certain types of conscientious objection are so inconsistent with basic understandings of human dignity that we should not permit them, irrespective of the religious sincerity of that person. I would suggest that what distinguishes a refusal by a state official to officiate at mixed-race marriages, or marriages between Jews and Christians, based on religiously sanctioned racism or anti-Semitism, from objecting to conducting same-sex marriages is that the former, but not the latter, constitute fundamental breaches of human dignity. In the European human rights context, that is an easier argument to make than in the United States, given that the ECtHR has yet to hold that there is a human right to same-sex marriage, let alone one that is underpinned by human dignity. Technically, there are two ways in which such an argument may play out in the ECHR context. The first is that it is open to the Court to hold that Article 14 is not engaged because the claim to conscientious objection is not within the ambit of Article 9, because the religious belief that the claimant seeks to rely on is contrary to human dignity. There is another approach, however, which is less politically appealing but may be equally effective. The Court might say that requiring a marriage registrar with the religiously based racist or anti-Semitic beliefs to carry out a marriage between Jews and Christians, or between blacks and whites does constitute prima facie discrimination, as in Ladele, but the Court should be prepared to say that the state interest in not allowing the registrar to refuse is of considerable weight, given that the registrar’s views strike at the heart of human dignity.

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16.5.3 Consistency with the Telos of Antidiscrimination Law? Those who are committed to antidiscrimination law where the grounds protected are race, gender, disability, or sexual orientation are likely to be deeply skeptical of the approach suggested in the previous section, even to the extent of regarding it as “extremely dangerous and pernicious.”101 There appear to be several different, if overlapping, concerns. The first argument against pluralism is that, leaving aside the acceptability of the use of pluralism as a rationale for religious antidiscrimination law, it is unacceptable if it is seen as underpinning all the different grounds that are encompassed within the protectorate. Wouldn’t seeing a claim of racial discrimination through the lens of pluralism undermine such claims, leaving antidiscrimination law unable to achieve its emancipatory aim? The basic complaint here is one of uncertainty: where, exactly, would pluralism take equality law and what is its vision for racial equality and gender equality? But underlying these questions is a deep suspicion that pluralism would, indeed, have highly detrimental effects. The second ground for skepticism overlaps with this first complaint: that the use of the language of pluralism is often associated with a political strategy that aims to enable those who fundamentally disagree to live together, while continuing to disagree. The pluralism that results is one that is expected to be permanent, or at least long term – we don’t expect ever to agree about abortion, or euthanasia, or capital punishment, and so we say that the best solution is political pluralism. Antidiscrimination law aims to change perceptions and beliefs about those discriminated against; it is not content simply with reflecting the status quo of an existing deeply divided political culture. It aims rather to bring about a changed political culture in which certain principles, assumptions, and beliefs are no longer accepted or acceptable. Accepting pluralism undermines this aim. The third ground for skepticism is deeper still. The argument here is that the pluralism approach, particularly one that would allow accommodation of conscientious religious beliefs, is fundamentally contrary to the origins of antidiscrimination law. The origins of antidiscrimination law (at least in the United States and Canada) are seen as based in the nineteenth-century common law that aimed to open up access to property affected by the public interest. These modest beginnings are seen as having been consistently expanded since then to espouse the more general principle that everyone should have equal access to the public space without discrimination, such that 101

The comment of Michel Rosenfeld at the Cardozo conference.

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everyone should be able to access the goods of public life available in the public space. As a result, to allow those who control access to the public space to refuse to permit such access on the grounds of upholding pluralism is so fundamentally contrary to the origins of antidiscrimination law and its current rationale as to be unacceptable. To understand these complaints, we need to step back a little.102 There has long been intense theoretical debate in the United States as to why antidiscrimination law is an appropriate response to certain types of inequalities, with several competing explanations being advanced. In the United States, this debate has been conceptualized in several influential articles by Reva Siegel103 focusing particularly on constitutional equality guarantees as involving two overlapping but conflicting principles: the anti-classification principle and the anti-subordination principle. The anti-classification principle “holds that the government may not classify people either overtly or surreptitiously on the basis of a forbidden category, for example, their race.”104 Those committed to the anti-subordination theory “contend that guarantees of equal citizenship cannot be realized under conditions of pervasive social stratification and argue that law should reform institutions and practices that enforce the secondary social status of historically oppressed groups.”105 To put the difference somewhat more pithily, if also somewhat more simplistically, the anti-classification theory views any classification on the basis of certain characteristics as a problem to be addressed, whereas the anti-subordination theory views such classification as impermissible only where it is combined with an underlying structure of subordination. Debates between proponents of these alternative theories have focused on which contending theory best captures evolving judicial interpretation of antidiscrimination guarantees, as well as on which is the better normative approach. The main legal issues that have been drawn on in these debates involve the meaning of “discrimination” itself (in particular the acceptability of what we, in Europe, would call indirect discrimination), the grounds that should be included within the coverage of antidiscrimination law (age, 102

103

104

This paragraph and the next are drawn from Christopher McCrudden, “Two Views of Subordination: The Personal Scope of Employment Discrimination Law in Jivraj v. Haswani,” Industrial Law Journal 41, no. 1 (March 2012): 30. See Reva B. Siegel, “Discrimination in the Eyes of the Law: How Color Blindness Discourse Disrupts and Rationalizes Social Stratification,” California Law Review 88, no. 1 (January 2000): 77; Reva B. Siegel, “Equality Talk: Anti-Subordination and Anti-Classification Values in Constitutional Struggles over Brown,” Harvard Law Review 117 (2004): 1470; Jack M Balkin and Reva B Siegel, “The American Civil Rights Tradition: Anti-Classification or Anti-Subordination?,” University of Miami Law Review 58 (2003): 9. Balkin and Siegel, “American Civil Rights,” 10. 105 Ibid., 9 (emphasis added).

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genetic inheritance, beauty), and the permissibility of affirmative action.106 The anti-subordination approach is sometimes thought to be more sympathetic to an asymmetrical approach to antidiscrimination law, where protections are afforded to women as opposed to men, or to disabled workers rather than to the able-bodied.107 The three reasons for skepticism I’ve identified come together as an attack on a pluralistic approach as being uncertain at best, and at worst an approach that cuts the feet from under the emancipatory, change-driven, and historically based aims of current antidiscrimination law. The fundamental skepticism, I suggest, that links these three criticisms is that a pluralistic approach is likely to prove more sympathetic to a theory of antidiscrimination law that is based in the anti-classification principle rather than one based in the anti-subordination principle. If that were the case, I would be concerned, as I am in general committed to something close to an anti-subordination approach. But I do not think that the pluralism approach I advocate does necessarily lead to support for an anticlassification approach. In order to explain why, however, it is necessary to point to a problem within the anti-subordination approach more generally. Crudely (and I admit that it is a crude description), the anti-subordination approach is built on a view that in any dispute invoking antidiscrimination law, it is possible to identify which of the two parties comes from a group that is most subordinated, and where the action of the other leads to that person becoming more subordinated, antidiscrimination law should step in and add its weight to that person’s claim. The problem is that, increasingly, particularly where there is an antidiscrimination claim on both side of the dispute, it is difficult easily to identify the most disadvantaged, the most subordinated. So, in a Ladele-type situation, on one level of analysis, we might say that it is clear that Christians in England are much less subordinated than those who are gay, and therefore that a marriage registrar refusing to marry homosexuals should lose. But the reality is, of course, a lot more complex than that. Ms. Ladele was a Christian, but she was also black, a member of a small evangelical church, working in Islington Council, which is among the most LGBT-friendly local authorities in 106

107

Areheart has observed that most US scholars writing about anti-subordination have done so in the context of US constitutional law and that the application of the anti-subordination and anti-classification debate to US employment discrimination law is an “undertheorized nexus.” Bradley A. Areheart, “The Anti-Classification Turn in Employment Discrimination Law,” Alabama Law Review 63, no. 5 (2012): 955. Cf. Sandra Fredman, Discrimination Law, 2nd edn. (Oxford: Oxford University Press, 2011), 26.

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London, a city that is among the most secular areas in the world. In this context, who is the most subordinated? 16.6 CONCLUSION

Using the Ladele case, but ranging well beyond it, I have attempted to explore some of the more important implications of using a religious discrimination claim in the context of refusals by public employers to permit their employees to exercise a religiously based conscientious objection to the provision of a service provided by that employer, particularly the refusal by a public marriage registrar to officiate at ceremonies that involve the state recognizing a same-sex couple’s legal status as civil partners or married. I have sought to explore the differences between a claim for protection based on a freedom of religion argument, from one based on a claim of religious discrimination. Doing so has provided the opportunity to explore what, exactly, a claim of religious discrimination involves, and how it relates to the theory of antidiscrimination law more generally, although this exploration should be seen as the beginning rather than the end of such an inquiry.

part v

concluding perspectives on the conscience wars

17 Mission Still Impossible Stanley Fish

Back in 1997, I wrote an essay titled “Mission Impossible: Settling the Just Bounds between Church and State.”1 The title telegraphs the argument: adjudicating the competing claims of church and state (and by “state” I mean the liberal state) in a rational, stable manner is a perennial project and one that will never succeed. John Locke announced the urgency of the project in his 1689 A Letter Concerning Toleration: “I esteem it above all things necessary to distinguish exactly the business of civil government from that of religion, and to settle the just bounds between the one and the other.”2 “Just” means both precise and conforming to what is right. What we are after, Locke is saying, is a way of doing justice to religious imperatives without allowing them to overwhelm and undermine the secular imperatives of the state. The way Locke finds is brilliant and has proved durable. It is an expansion of the biblical precept “Render unto Caesar what is Caesar’s.” Just divide the world into two realms, the private and the public; in the private realm – the spaces of the home, church, and heart – one practices the rituals of piety, the acts that signify a devotion to deity; in the public realm – the spaces of commerce and civic affairs – one is obedient to procedural rules, which because they lack substantive content can (and should) be followed by every citizen, no matter what one believes or does not believe in the recesses of one’s heart. “He jumbles heaven and earth together . . . who mixes these societies which are in their original, end, business, and in every thing perfectly distinct.”3 It’s a grand bargain: the magistrate does not interfere with the individual’s efforts to align his soul with the will of God; the 1

2

3

Stanley Fish, “Mission Impossible: Settling the Just Bounds between Church and State,” Columbia Law Review 97 (1997): 2255–333. John Locke, A Letter Concerning Toleration, ed. John Horton and Susan Mendus (Abingdon: Routledge, 1991), 17. Ibid., 26.

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individual agrees to leave his spiritual commitments at home and abide by the norms and protocols that ensure cooperation between equally enfranchised citizens. “Neither single persons nor churches . . . have any just title to invade the civil rights of each other upon pretense of religion.”4 It’s all very neat as long as the religion citizens are committed to does not demand from them an involvement in worldly concerns of the kind prohibited by the private/public distinction. Suppose your religion forbids you to restrict its practice to safely sequestered precincts and insists that you enact its precepts in whatever place you happen to find yourself, in the office, or the boardroom, or the committee room, or the clerk’s office. And suppose further that the acts you perform under what you take to be an ultimate obligation do in fact “invade the civil rights” of another. What then? Well, then you are faced with the problem addressed by the contributors to this volume: you must figure out a way to grant accommodations to these practitioners of a strong religiosity without transferring costs and burdens to innocent third parties and thus undermining the principle of equal respect that sits at the heart of liberal society. As I put it in 1997, the task is to “identify a baseline level of obligation that leaves believers free to live out their faiths within limits and provides the magistrate with a measure for determining when those limits are breached.” But what are these limits and who is to determine them? Locke offers a number of formulas including a distinction between “the truly fundamental part of religion” and “what is but a circumstance.” The idea is if the accommodation or exemption requested touches only a circumstantial aspect of the petitioner’s religion, it is unlikely to be granted; if it touches “the fundamental part,” there is a better chance that it will be. This formula however only produces a new version of the problem it was brought in to resolve. Who is to say what is a fundamental part of someone else’s religion? Antonin Scalia makes the point with his usual force: “What principle can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?”5 The answer is “no principle,” and the moral is that settling the just bounds between civil government and religion is something that will never be done because every formula offered reproduces the tensions and animosities it was supposed to ameliorate if not eliminate. Bernhard Schlink6 articulates the dilemma: “If the conscience serves as the final authority for social behavior, the legal order is undermined; if the legal order is taken as the final authority for social behavior, the conscience is threatened. This paradox cannot be resolved.” 4 6

Ibid., 26. 5 Employment Division v. Smith, 494 U.S. 872 (1990). See Chapter 3 of this volume.

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Indeed, it cannot be, but the odd thing is that while many of the participants in our conference seem at times to acknowledge the impossibility of their project, they persist in it nevertheless. Christopher McCrudden is a case in point. McCrudden’s chapter in this volume7 focuses on a British case that parallels the US case of Kim Davis. Like Davis, Lillian Ladele was a public servant (a marriage registrar) who claimed that her religious beliefs prevented her from performing civil partnership ceremonies for same-sex couples. In a detailed, nuanced analysis, McCrudden elaborates a distinction between a “freedom of religion” argument and an “antidiscrimination” argument that might be applied to Ladele’s case. The former argument grants protection for religious exercise; the latter subsumes religion in a larger category of groups or persons whose protection is grounded in some quality or attribute they all share (minority status, historically disadvantaged, integral to human dignity, and so forth). One argument is unilateral (religion shall be protected); the other is comparative (religion shall receive the same protection as other projects or associations that are “similarly situated”). Neither argument, however (and this is I not McCrudden speaking), directly confronts the “religion problem” but deflects it in different ways. When freedom of religion is invoked it is usually assumed, as McCrudden acknowledges, that what is being protected is a “zone of privacy”;8 that is, the freedom affirmed is the freedom to follow the dictates of one’s faith in the realms of thought, expression, and private ritual. This approach, McCrudden explains, follows a dominant strand of the “secularization” literature in which “[r]eligion becomes publicly marginalized – or privatized” – and therefore “excluded from the public realm.”9 Privatization as a strategy depends upon religion being willing to confine itself to private spaces; a religion willing to be thus confined (as Locke’s is) will be no threat to the civil order; it knows its place. But a religion whose imperatives spill over into public spaces will be received as a threat to the civil order – it wants to be master – and this the state will not allow. The liberal state will be particularly nervous, McCrudden observes, when the religion seeking protection in the form of an accommodation or exception displays “any whiff of illiberalism”;10 that is when its free exercise involves producing a material or dignitary harm to some group or interest – people of color, same-sex couples – that has been designated as the object of state solicitude. What this means, as McCrudden points out (he is admirable in forthrightly confronting the difficulties inherent in the approaches he surveys), is that when it comes to determining which religious 7 9

See Chapter 16 of this volume. 8 Ibid., Section 16.3.1 (internal quotes omitted). Ibid., Section 16.3.5. 10 Ibid., Section 16.3.5.

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practices will be granted exemptions from generally applicable laws, “the state is in the driver’s seat” because it has arrogated to itself the power “to decide which, if any, religious values to uphold.”11 You can bet that it will uphold those religions that mirror its secular norms and that it will not protect “religious values that [the] state does not value,”12 values that refuse to be cabined. Religion will be protected, but only in a thin version, a version that does not upset the secular applecart. The same result is achieved when the antidiscrimination argument rather than the freedom of religion argument is invoked. If religion is valued because of a quality or status it shares with other projects deemed “similarly situated,” it is valued for that quality or status and not for its own core tenets. The liberal state safeguards the right of citizens to choose their religious beliefs, but it has no regard for the beliefs chosen; rather it equalizes them as instances of a more inclusive category in relation to which particular beliefs – or allegiances or commitments – are authorized, but indifferently so; the specific content of each is of no matter. What is given to those beliefs is, in McCrudden’s words, “respectful attention,”13 where “respectful” means we’ll be nice to them and not make fun of them or send them out of the room, but we’ll not take them seriously in their own terms. In turn (and in recompense) the beliefs and those who hold them will agree not to put themselves forward too strenuously; they will not “push their rights or interests to the limit”;14 instead “each side” will “back off” at the moment when asserting its interests would interfere with the rights of others who affirm different interests. That is, each side will relax its deepest commitments and it is a question (to which we return) why any truly committed person or group would agree to do that. McCrudden calls this “a pluralistic vision of the public space” where “competing conceptions of the good (some religious, some not) may be worked out in theory and lived in practice.”15 The parenthetical “some religious, some not” is crucial, for it makes plain what pluralism always does: it deprives religion of its claims to be special and totalizing – commanding obedience at any and all times – and reduces it to just one more discourse allowed to occupy a place (but not every place) in the public sphere. McCrudden says that pluralism – which he calls “secularity” to distinguish it from a militant secularism that scrubs the public realm “clean of all religious residue” – is “not an ideology.”16 Yes it is; it is the ideology of denying to any comprehensive doctrine, and especially to religion, the right to fully live out its

11 14

Ibid., Section 16.3.5. Ibid., Section 16.4.4.

12 15

Ibid., Section 16.3.5. Ibid., Section 16.4.3.

13 16

Ibid., Section 16.4.4. Ibid., Section 16.4.3.

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core values. You don’t banish it or scrub it away; you invite it in but cut the heart out of it. Secularity is secularism with a kinder face. Pluralism – in the form of a political scheme in which everyone gets to play but nobody gets to win – is the default position adopted by the contributors to this volume. Schlink says that of course the conscience must be protected, but “only up to a certain point, the point where other people would be put in serious danger.”17 Michel Rosenfeld advocates “democratic pluralism,” defined as the political arrangement that includes “as many and diverse and competing conceptions of the good as possible,” but he limits exceptions to generally applicable laws to those “designed to enhance rather than to restrict the spread of pluralism.”18 Douglas NeJaime and Reva Siegel announce that they support accommodating claims for religious exemption on the condition that their accommodation does not impair attainment of major societal goals or inflict targeted material or dignitary harms on other citizens . . . Only when conscience exemption regimes are deigned to mediate the impact of accommodation on third parties do they provide for the welfare of a normatively heterogeneous citizenry and serve genuinely pluralist ends.19

That is, only when fidelity to religious imperatives is relatively costless can we allow it to occur. In her version of pluralism, Cecile Laborde lists religion as one of the practices that should be protected because they are “expressive of individual ethical integrity”; but while she is willing to say that as a member of this category religion may be properly called “special,” she immediately adds “but not uniquely so.”20 (Uniqueness is always what pluralism denies.) As something not unique, religion can be asked to bear “an incidental burden”21 without meriting an accommodation. The determination of what is incidental and what is essential is then given not to the religion’s adherents, but to a four-part test that reflects a Rawlsian commitment to “a fair framework for the . . . pursuit of different and conflicting life plans.”22 And so it goes, always the same move: either keep religion in the closet (privatize it) or let it out on the condition that it claim no more than the other life plans with which it shares a space very much like the space accorded to items in a display case (that is, “pluralist” it). The appearance of the word “fair” in Laborde’s analysis is a sure sign that religious concerns have been demoted in favor of the liberal value of equal 17 19 20 21

See Chapter 3 of this volume. 18 See Chapter 2 of this volume, introduction. See Chapter 7 of this volume, introductory remarks. See Chapter 4 of this volume, introductory remarks (emphasis in original). Ibid., introductory remarks. 22 Ibid., introductory remarks.

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protection. Fairness – equal treatment – is not what religion wants; it wants precedence. Shai Lavi sees this clearly when he observes that both freedom of conscience and autonomy claims “belong to the same political framework of the modern liberal state” and “fail to respond to the demands of religious groups not for liberty, but for authority.”23 In the analyses offered by commentators in this volume, the question of authority – the question raised by religion’s claim to rule everywhere – is never confronted, in part because, as McCrudden acknowledges, “the theoretical literature has been distorted by a lack of sympathy for religious thought in secular scholarship,”24 a scholarship that regards religion’s imperial ambitions as obviously ridiculous and without ground. “Lack of sympathy” is an understatement. The prevalent view is pretty much represented by Brian Leiter’s characterization of religions as “systems of belief” that combine a “categorical” insistence on the obedience of believers and a refusal to answer to the demands of evidence and reason.25 If you think that religions are at once imperial and detached from rational processes, no wonder you don’t take their claims seriously and believe that you are doing them a great favor by accommodating them at all. The one claim that might weigh heavily in religion’s favor – that there is a God whose dictates are true and unchallengeable – never gets on the table. Without it, as Michael Stokes Paulsen explains, there is no reason (aside from the fact of the religion clause of the First Amendment) to be sympathetic to the invocation of religious freedom: “Religious liberty simply does not make much sense on purely secular grounds that start from the premise that sincere religious conviction does not correspond to anything real . . . The only reason to tolerate religion is the conviction that there is, or may be, such a thing as ultimate religious truth, that such truth is in principle the most important thing there is.”26 That is not a reason you are likely encounter in these pages or in the many law review symposia on this subject. After surveying that literature, Nomi Stolzenberg reports that the articles and books produced by legal academics “are, to a one, distinctly liberal – and rationalist – in both tone and substance. Each proposes only a slightly different variation on the classical liberty themes of liberty of conscience and religious toleration in an effort to . . . resist the attacks that religious conservatives have been mounting on the liberal 23 24 25 26

Prospectus summary made available at the conference. See Chapter 16 of this volume, Section 16.3.5. Brian Leiter, Why Tolerate Religion? (Princeton, NJ: Princeton University Press, 2012), 84. Michael Stokes Paulsen, “Is Religious Freedom Irrational?,” Michigan Law Review 112, no. 6 (2014): 1043–44.

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doctrines of legal secularism and pluralism.”27 So what we have, in Paulsen’s words, are “two competing philosophical systems.” One, religious, regards “secularism as failing to provide any explanation for existence itself, other than a circular one”; the other, liberal and rationalist, regards “religious systems as simply positing unverifiable answers to this problem.” Each is “coherent on its own premises,” but “neither is demonstrably correct or incorrect according to some objective standard external to both.”28 McCrudden laments “a lack of theoretical progress”29 in the effort to adjudicate the competing claims of church and state. That is because no theoretical progress is possible. If both sides make their case within first premises that exclude the perspective of the other, only a measure by which both would be willing to be judged could move the debate forward theoretically. Despite theorists’ Herculean efforts to come up with such a measure – or formula or four-part test or perspicuous distinction – it has not been discovered and never will be. Thirty years ago, Thomas Nagel articulated the relevant requirement: “Liberalism should provide the devout with a reason for tolerance.”30 But only reasons that are reasons for the devout – reasons rooted in their nonnegotiable beliefs – will move them (why should they listen to reasons attached to a system of belief they reject?), and those are the very reasons that liberalism considers inadmissible. So here we are just where we were more than 300 years ago when Locke said – and this declaration tells the whole story – “every church is orthodox to itself, to others heretical. Whatsoever any church believes, it believes to be true; and the contrary thereupon, it pronounces to be error.”31 That’s it. There’s really nothing more to say. There are, however, things to do, and, moreover, they can be done with the very formulas, tests, and distinctions whose theoretical ambitions cannot be cashed out. With the help of these devices and the arguments they generate, it is possible to fashion makeshift solutions – solutions that are rhetorical and ad hoc – that do an end run around the theoretical impasse. These solutions will not withstand scrutiny (remember the Lemon test, dumped on even as it was being invoked) and they will not satisfy the army of legal academics in search

27

28 29 30

31

Nomi Stolzenberg, “The Return of Religion: The Rise, Decline, and Possible Resurrection of Legal Secularism,” in The Handbook of Law and Society, ed. Austin Sarat and Patricia Ewick (Hoboken, NJ: Wiley-Blackwell, 2015), 284. Paulsen, “Is Religious Freedom Irrational?,” 1043–44. See Chapter 16 of this volume, Section 16.3.5. Thomas Nagel, “Moral Conflict and Moral Legitimacy,” Philosophy and Public Affairs 16, no. 3 (1987): 229. Locke, Toleration.

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of the holy grail of a principled settling of the just bounds. But they at least allow us to negotiate temporary truces that forestall, but do not finally rule out, the outbreak of total war between religion and secularism, a war that, as we know, is raging elsewhere to disastrous effect. The liberal state may not be able to do justice to religion without undoing itself (without allowing procedure to be overwhelmed by substance), but it can labor to keep all-out conflict at bay. And if it can do that with the help of a religion-clause jurisprudence that is spectacularly incoherent but full of jerry-built tools for the using, it will have done all we have any right to hope for.

18 The Politics of Religion Democracy and The Conscience Wars Robert Post

This noteworthy volume offers an illuminating and at times lapidary survey of the rapidly changing landscape of legal protections for religious belief and practice. In the past half-century, constitutional law and international human rights have each embraced the essential project of safeguarding religious freedom, but in recent decades that freedom seems suddenly to have become the flashpoint of intense political controversy. The chapters in this volume focus sharply on the blistering tensions that have arisen over claims of conscientious exemption with regard to matters of sex and sexual orientation. Although these controversies have distinctively national characteristics, this volume also illuminates their remarkable transnational dimensions. The case for religious exemptions leaps from nation to nation, from continent to continent. It is nothing short of jaw dropping to learn of the dense legal exchanges between conservative American evangelical churches and Russian Orthodox adherents to a “third Rome.” Underlying the resurgent conflict over religious prerogatives is what Michel Rosenfeld in Chapter 2 of this volume aptly labels the “dramatic repoliticization of religion.” Throughout Europe and North America, people of faith are now energetically mobilizing to reshape government policy to express distinctively religious values and principles. This may be surprising to those who believe the world has been irretrievably disenchanted. But politics in the public sphere is always answerable to the identities and values of those who make it, and the consolations of religion evidently seem now more attractive than ever. Whatever a modern secularized state might mean, it cannot be that government action is entirely divorced from the fierce religious beliefs of its sovereign citizens. That having been said, it is nevertheless common ground that governments cannot now deliberately seek to suppress minority religious practices. The modern state cannot proclaim, as did Oliver Cromwell in Ireland, that 473

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“[a]s to freedom of conscience, I meddle with no man’s conscience; but if you mean by that, liberty to celebrate the Mass: I would have you understand that in no place where the power of the Parliament of England prevails, shall that be permitted.”1 Modern constitutional law and international human rights demand this specific kind of tolerance from contemporary governments. If such tolerance is secular, if it is in fact inconsistent with certain particular religious beliefs, so be it. Politics in the modern state is secular in yet another sense. It transpires within a public sphere that includes all citizens, including many who do not support traditional or dominant religious values. This means that valid laws of general application that serve proper purposes may offend or displease persons of faith. Such laws may even interfere with important religiously based practices. This conflict between legal and religious obligations can produce painful and difficult tensions. One way to sidestep such tensions is to offer persons of faith conscientious exemptions from the general operation of laws that burden their religious practices. This volume explores the volatile geography of such exemptions in a world where religious adherents vehemently object to otherwise ordinary legislation they view as hostile to essential values involving sex and sexual orientation. The essence of the conflict is well articulated in the masterful “Manhattan Declaration: A Call of Christian Conscience,” issued on behalf of “Orthodox, Catholic and Evangelical Christians.”2 The Declaration affirms that marriage is “the first institution of human society – indeed it is the institution on which all other human institutions have their foundation.” The point of marriage is to constrain human sexuality by channeling it into procreative outcomes. Marriage cannot be “truly marital” unless it consists of “the sexual complementarity of man and woman” founded on the “bodily unity of the sort that unites husband and wife biologically as a reproductive unit.” The Declaration speaks for multitudes of evangelical and fundamentalist Christians who intensely dissent from laws that separate sexuality from marriage. They believe that the disintegration of marriage as a procreative unit will permit nonmarital sexuality to flourish, contrary to the commandments of God. They therefore object on grounds of faith to laws liberalizing contraception and abortion, because such laws allow women to control their own sexuality outside the procreative bounds of marriage. They also object on grounds of faith to laws that legitimate same-sex marriage, because such laws 1 2

Quoted in McDaniel v. Paty. 435 U.S. 618, 631 n.2 (1978) (Brennan, J., concurring). Available at http://manhattandeclaration.org/man_dec_resources/Manhattan_Declaration_ full_text.pdf.

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obscure the true procreative meaning of marriage and create “sexual partnerships that . . . are intrinsically non-marital and immoral.” The Declaration concludes with an eloquent and ringing proclamation: [W]e will not comply with any edict that purports to compel our institutions to participate in abortions . . . ; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships [or] treat them as marriages . . . We will fully and ungrudgingly render to Caesar what is Caesar’s. But under no circumstances will we render to Caesar what is God’s.

It is not unusual for religious persons to berate the immorality of positive law. But the conclusion to the Declaration escalates this moral disapproval into a clarion appeal for action. The appeal is ambiguous, however, because it is situated awkwardly between a call for civil disobedience and a demand for the creation of conscientious exemptions. It is essential to understand the difference between these two kinds of appeal. Civil disobedience is a method of political dissent. It requires those who are unwilling to obey a law publicly to declare their defiance and to accept prescribed penalties. Civil disobedience has traditionally been used to force an indifferent public to confront the intolerable consequences of positive law on those whom the law oppresses. From his cell in a Birmingham jail, for example, Martin Luther King analyzed the function of nonviolent civil disobedience as the creation of “such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored.”3 King, following Gandhi, believed that civil disobedience could jump-start the political dialogue “necessary for growth.” He described participants in civil disobedience as “gadflies” who created “the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.” Claims of conscientious exemption, by contrast, do not call for political actions that function outside law. Conscientious exemptions are instead legal immunities granted by law itself. Claims of conscientious exemption ask that law be interpreted according to principles that respect individual conscience and integrity. Arguments for conscientious exemptions are made within the technical discourse of law, while arguments for civil disobedience are made within the political vocabulary of action. Or at least so it would appear.

3

Martin Luther King, “Letter from a Birmingham Jail,” 1963, www.africa.upenn.edu/Articles_ Gen/Letter_Birmingham.html.

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An important contribution of this volume is to illustrate that the world is not so neatly divided. The chapters in this book convincingly demonstrate that the recent flood of claims for conscientious exemptions with regard to laws about sex and sexual orientation are very much conceived and implemented as vehicles for political mobilization. We can learn from this volume that legal claims within law and political claims about law are deeply interdependent. One can discern these connections within the Declaration itself, which is carefully and deliberately oriented in the ambiguous space between civil disobedience and conscientious exemption. The Declaration sits equivocally between a call for resistance and a claim of legal right. It is ironic that those who today assert a right to kill the unborn, aged and disabled and also a right to engage in immoral sexual practices, and even a right to have relationships integrated around these practices be recognized and blessed by law – such persons claiming these “rights” are very often in the vanguard of those who would trample upon the freedom of others to express their religious and moral commitments to the sanctity of life and to the dignity of marriage as the conjugal union of husband and wife. We see this, for example, in the effort to weaken or eliminate conscience clauses, and therefore to compel pro-life institutions (including religiously affiliated hospitals and clinics), and pro-life physicians, surgeons, nurses, and other health care professionals, to refer for abortions and, in certain cases, even to perform or participate in abortions. We see it in the use of antidiscrimination statutes to force religious institutions, businesses, and service providers of various sorts to comply with activities they judge to be deeply immoral or go out of business.

The chapters in this volume do not focus on civil disobedience. They instead discuss disputes about how legal claims of conscientious exemption should be formulated. The source of these claims lies in the long history of conscience in the West, a history nicely and succinctly captured in the first chapter by Julie Saada and Mark Antaki, which sketches the development of the “particular status that allows [conscience] to be an authority and an autonomous source of obligation.” Although this special status emerged from distinctively religious understandings, it is good to keep in mind, as Lorenzo Zucca explains in Chapter 5, that in modern times, “[f]reedom of conscience should not be equated to freedom of religion,” because “it is clearly possible for a nonreligious person to raise a conscientious objection.” Claims for conscientious exemptions must now be advanced in a world where many do not accept what Stanley Fish, in his relentless and pithy chapter (see Chapter 17), describes as religion’s “special and totalizing”

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demand to be obeyed “at any and all times.” Conscientious exemptions are necessary only if an otherwise valid law of general application unduly burdens specific religious practices. By hypothesis, any such law would not be enacted by a public that accepted religion’s own peremptory self-understanding. Because conscientious exemptions are also legal provisions that require endorsement by the public, exemptions must also be based on principles that do not accept religion’s own demands for pride of place. Arguments for conscientious exemptions cannot be based on specific religious doctrine, like that invoked by the Declaration. If we ask why the public is receptive to arguments for conscientious exemptions, it is most likely because of a widely shared commitment to respecting the integrity of persons to fashion their own essential identities. Religious claims for conscientious exemption are a particular and historically salient case of the need to protect such integrity. Oddly, therefore, when persons of faith make claims for conscientious exemptions to a public that has already enacted laws burdening religious practices, they must ultimately do so in terms of the very liberalism that the Declaration despises. The important implications of this fact are carefully explicated in the excellent chapter by Ce´cile Laborde (see Chapter 4). Laborde argues that rights to conscientious exemption cannot be confined to religiously motivated claims, but must extend “to practices that are expressive of individual ethical integrity,” which can include “identity claims.” Laborde writes that whenever an individual advances an “integrity-protecting claim” (IPC), their core “moral freedom,” which inheres in “the projects, beliefs and commitments that [they] happen to identify with,” are at stake. She argues that before circumscribing that moral freedom, the state should be required to demonstrate both that any burden inflicted by an otherwise legitimate law is proportional to the public good at issue, and that the “opportunity set” of persons with analogous IPCs is not significantly less than that of the majority of persons who do not share the relevant IPCs. Underlying Laborde’s argument is the spirit of a Millian liberalism that aspires to “experiments in living” so that “free scope should be given to varieties of character . . . and . . . different modes of life.”4 Laborde believes that the possibility of living a life in compliance with one’s own IPCs is a fundamental good that should be distributed according to a fair structure of justice. When the law cannot justify abrogating an individual’s IPC, society ought to provide fair accommodation, as, for example, employers are required to do under the Americans with Disabilities Act in the United States. 4

John Stuart Mill, On Liberty (London: Walter Scott, 1901), 105.

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Laborde sketches her argument from the perspective of a sophisticated political theorist. There is much to be said about this perspective, but I do not engage it in this chapter. Instead I speak from the narrower perspective of a practical lawyer. In the analytically abstract world sketched by Laborde, there is room neither for transaction costs nor for dynamic incentives. It would consume vast and unsustainable resources for the state to make the demonstrations Laborde requires in response to claims that IPCs have been burdened by the operation of general laws. The scheme she proposes would also create powerful incentives for persons to proclaim IPCs that contradict laws they otherwise do not wish to obey. These practical difficulties are so apparent that it is hard for me to imagine how the system she proposes might actually work in the real world of law enforcement. Almost all general laws would soon be pervasively riddled with exceptions almost all the time. The idea of a law of general application, an idea essential to the legitimacy of the modern state, would fade from view. Laborde’s theory is subject to a more fundamental practical objection, as can be seen if we focus sharply on the relationship between conscience and politics. In ordinary politics, persons disagree and debate; eventually a law is enacted resolving the controversy. When political disagreement is about matters of conscience, however, Laborde’s theory would award persons two bites at the apple. Not only could persons engage in ordinary political struggle, but they could also lodge legal objections to the outcome of that struggle by claiming rights of conscientious exemption. This seems to me incompatible with the ordinary operation of democratic politics. We are not dealing here with the commonplace situation where losers in democratic politics find independent constitutional grounds on which to object to democratic legislation. In Laborde’s theory, losers can constitutionally object precisely because they have lost and because this loss matters deeply to their identity. Yet all democratic politics requires winners and losers. Laborde’s theory invites losers to suppress politics by pressing claims of conscience. The key question is the alignment of IPCs and the political issues that arise within democratic politics. If IPCs and political beliefs are perfectly aligned, which is not such a farfetched possibility in a world where politics and political parties are becoming increasingly identitarian, conscientious exemptions of the kind defended by Laborde would essentially bring self-governance to a standstill. Democratic majorities could not govern. Or, to put the matter more concretely, if the application of every law requires the adjudication of IPCs, the operation of government must substantially shift to judicial determinations of proportionality and the disparity of opportunity sets.

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The chapters in this volume illustrate that under such circumstances, claims for religious conscientious exemptions are subject to the same objections as the IPCs theorized by Laborde. The traditional law of religious exemptions assumed that the twin problems of transaction costs and improper incentives could be avoided because religion was a system of commitments orthogonal to political controversy. Transaction costs could be diminished because political outcomes would only occasionally impinge on religious practices that were politically irrelevant, like polygamy (among Mormons) or the use of peyote (among members of the Native American Church). Claims for conscientious exemptions would be filed only sparingly and infrequently. Dynamic incentives for strategic dissembling would also be minimized, because law would exempt religious practices that were defined in ways that had nothing to do with contemporary political controversies. The situation is entirely different, however, when demands of religious conscience arise precisely out of and against the outcomes of democratic will formation. When politics and conscience are recursively connected, “appeals to conscience,” as Pasquale Annicchino writes in Chapter 9 of this volume, can come to seem “a strategy to . . . signal a revival of religious laws.” In the modern landscape of conscientious exemption, as Reva Siegel and Douglas NeJaime perceptively observe in Chapter 7, religious believers who initially opposed laws liberalizing matters of sex and sexual orientation have “shifted from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that depart from traditional morality.” Claims of conscientious exemption challenge the essentials of democratic self-determination to the extent that they depend upon beliefs that that arise out of, and are aligned with, salient and controversial political beliefs. If ordinary political opposition can transform itself into a matter of identitarian conscience, conscientious objections can render irrelevant the outcomes of democratic politics. What Bernhard Schlink calls the “rebellious, anarchic nature of the conscience” (see Chapter 3 of this volume) can bring the very operation of self-government to a standstill. There are also stakes apart from political self-determination. As Marinos Diamantides observes in Chapter 6, the capacity of modern societies to achieve social control through “diffuse biopolitical administration/management” is also at risk. The consequences of conscientious exemptions can be very concrete and very real. They can undercut the baseline of protections otherwise guaranteed as minima of civil peace. Claims of religious conscience can be used to deflect government protections for children, as Marci A. Hamilton contends, or state guarantees for women’s health, as Susanna

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Mancini and Kristina Stoeckl maintain (see Chapters 13 and 8 of this volume, respectively). Because demands of religious conscience are theoretically limitless in their scope, and because legal immunity can be claimed despite the infliction of serious third-party harms or the frustration of significant government objectives, demands for accommodation can very rapidly come to seem unreasonable. It follows that however much society may respect the integrity of personal beliefs, claims for conscientious exemptions must at some point be denied. At that precise point, the conscientious objections of the faithful must pass from legally sanctioned exemptions into the distinct domain of civil disobedience. The faithful can continue politics by becoming gadflies. They cannot require law to undermine itself. Since conscientious exemptions are legal privileges granted by law, their metes and bounds must be set by law itself. This volume embraces several efforts to define these boundaries. Nelson Tebbe, Micah Schwartzman, and Richard Schragger advance the constitutional “principle that religious accommodations should not shift harm to others” (see Chapter 12 of this volume). Douglas NeJaime and Reva Siegel illustrate the especially pernicious effects of complicity claims, where the religious do not seek to themselves avoid directly sinful actions but instead to avoid complicity in the sinful actions of others. The point is illustrated by the Declaration, which calls for the faithful to refuse to obey antidiscrimination statutes because such statutes will force complicity “with activities” religious believers “judge to be deeply immoral.” The Declaration thus claims for the faithful the right to stigmatize LGBT persons, yet the very purpose of antidiscrimination laws, as Eva Brems emphasizes, is to transform social meanings around matters of sexual orientation by altering “discriminatory practices and attitudes” (see Chapter 10 of this volume). Some, like Helen Keller and Corina Heri, regard this tension as a “conflict of rights,” as, for example, between Articles 9 and 14 of the European Convention of Human Rights (see Chapter 11 of this volume). Different legal systems will of course resolve such conflicts in different ways, depending upon relevant texts and traditions of interpretation. The typical move, exemplified in Eva Brems’s chapter, is to maximize the scope of religious freedom while at the same time minimizing the harm suffered by those whose legal rights are objectionable to persons of faith. In aspiring to square this circle, the chapters in this volume stress the importance of measuring relevant harms not merely in a material sense, not merely in terms of the number of same-sex weddings performed, but also in the dignitary sense of what Louise Melling calls “the humiliation, frustration,

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and embarrassment” of those whom the law would otherwise seek to protect (see Chapter 14). Melling strikingly contrasts the powerful public reaffirmation of the dignity of LGBT persons with seeming public indifference to the degradation suffered by a woman who “is turned away” from emergency contraception by those exercising rights of conscientious objection because they view the woman as sinful “for not embracing the role of mother, for not putting aside her needs and desires, for being selfish.” The elimination of such dignitary harms is an important purpose of laws protecting reproductive rights and laws protecting LGBT persons from discrimination. Yet the infliction of such dignitary harms is exactly the point of many forms of conscientious objection, as the Declaration makes explicit. The effort to reconcile two such opposing worldviews must not only be theoretically justifiable, it must also work in practice. The complications of this requirement are explored in the fascinating chapter of Emmanuelle Bribosia and Isabella Rorive (see Chapter 15). They discuss the dramatically unsuccessful efforts of Italian law to provide health care workers with a right of conscientious objection to the performance of abortions and yet simultaneously to guarantee women effective “access to services to which they are entitled under . . . applicable legislation.” The “extreme difficulty of monitoring refusal clauses” and the persistent failure to operationalize rights of access demonstrate that we are dealing with a “conflict of rights” that cannot be resolved through merely abstract legal formulae. Seeking to sidestep these manifold difficulties, Christopher McCrudden hypothesizes that we might shift our conceptualization of the issue from one of “religious freedom versus discrimination” to one of “discrimination against religious groups versus discrimination against other groups,” like women and LGBT persons. McCrudden, who was involved in the litigation of the important case of Ladele v. United Kingdom, in which a government marriage registrar, forced to resign for refusing to perform same-sex marriages due to her religious beliefs, sought redress from the European Court of Human Rights.5 McCrudden emphasizes that the case had been brought under Article 14 of the European Convention; that is, Ladele claimed that the British government had discriminated against her because of her religion. McCrudden observes that the European Court of Human Rights seemed incapable of conceptualizing a discrimination against religion claim except in terms of a traditional freedom of religion claim (see Chapter 16 of this volume).

5

Eweida and others v. United Kingdom, (2015) 57 EHRR 8.

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We may ask what difference it might make to reformulate these issues in the language of antidiscrimination rather than in that of religious freedom. At times, McCrudden seems to aspire to the transformative dimensions of antidiscrimination law, as when he writes that antidiscrimination law ought to endow the religious, conceived as a group, with an “affirmation of their status as religious persons, particularly when they operate in the public sphere.” McCrudden glimpses in the possibilities of antidiscrimination law not only the same recuperation of dignity that he observes in the status of LGBT persons, but also the dismantling of liberalism’s tendency to relegate religion to the private sphere. It is noteworthy, however, that when he calculates the potential harm to LGBT persons of allowing government officials to claim conscientious objections to performing same-sex marriages, McCrudden counts only the number of marriage licenses that might not be issued. He does not add up the dignitary harms that he is so anxious to avoid on behalf of religious minorities. McCrudden grounds his claim to the protection of antidiscrimination law in the assertion that the religious are an identity group made up of “shared attitudes and practices” that have become so internalized as to have created a common identity; “discrimination on the basis of this identity is an attack on a central aspect of the personality of those whose self-identity is tied up with the group.” In the end, therefore, McCrudden advances a conception of antidiscrimination law that echoes the same structure of fairness that Laborde so carefully elaborates in her chapter. Conceived in the identitarian manner of McCrudden, the antidiscrimination claim for religious conscientious exemption is for all practical purposes equivalent to an IPC. Just like Laborde, therefore, McCrudden must confront the difficulties that arise when IPCs emerge from the contingencies of political conflict. It is one thing to apply the benefit of antidiscrimination law to traditional status groups like racial minorities, who are not defined by their political beliefs. It quite another thing to apply antidiscrimination law to groups defined by the very beliefs that form the cauldron of political controversy. The latter raises questions not only of very large transactions costs, but also of dynamic incentives to evade the law. It also poses fundamental issues about the relationship between identity and politics. The outcomes of ordinary politics cannot be called into legal question every time a minority stakes its identity on a controversy. Nor can the losers in ordinary democratic politics be entitled legally to set aside political outcomes on the ground that conscientious exemptions will enhance the “political potency” of their dissent, as some defenders of

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conscientious exemptions seem to argue.6 That would be the end of democratic self-governance. In the end, therefore, claims of conscientious exemption, whether conceived as matters of religious liberty or as rights of antidiscrimination, turn on the alignment between religious beliefs and political controversy. This is essential because, as Bernhard Schlink trenchantly observes, conscientious exemption must be “a privilege.” Only “a relatively small number of people can avail themselves of this freedom,” and they can do so only in circumstances where “most people do not exercise this right” (see Chapter 3 of this volume). Exceptions to the law can become neither routine nor commonplace without undermining the law’s own force and authority. It is the essential contribution of this volume to demonstrate that contemporary claims for conscientious exemption are in this sense far weaker than those made in the past, precisely because these claims derive so directly and obviously from the contemporary political arena. Believers have narrowly lost political battles about the role of sex and sexual orientation, but they refuse to abandon the field. They now seek to use claims for conscientious exemptions to mobilize supporters to reengage these questions. It is one thing for the faithful to pursue political struggle through acts of civil disobedience that prick the conscience of the nation and demonstrate the existential depth of religious convictions. Civil disobedience is a continuation of politics by other means. But it is quite a different thing for the faithful to expect the law to disable itself by creating conscientious exemptions to the very statutes that believers opposed in politics. Such exemptions could be rendered compatible with democratic law-making processes only if they were fashioned within the same framework of political compromises by which the provisions of the relevant statutes of identical formal rank were formulated. Failing that, democratic processes ought not to be displaced by using constitutional provisions for freedom of religion or antidiscrimination, or by using relevant texts from international human rights treaties. In the United States, where legislatures have enacted general statutes creating conscientious exemptions for religious freedom, this same conflict has played itself out in terms of the need to reconcile statutes of the same formal rank. The question, for example, is whether the federal Religious Freedom Restoration Act creates exemptions from the enforcement of the 6

Sherif Girgis, “Nervous Victors, Illiberal Measures: A Response to Douglas NeJaime and Reva Siegel,” Yale Law Journal Forum 125 (2016): 399, www.yalelawjournal.org/forum/nervousvictors-illiberal-measures.

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federal antidiscrimination law. In such circumstances, courts are put to a choice. They can interpret a religious freedom statute in the same spirit as relevant constitutional provisions – that is, as creating exemptions sparingly granted to the few rather than to the many – or they can take sides in current political controversies by using religious freedom statutes to assist those who wish to use exemptions to undo laws to which they object. No one can read the chapters in this volume without immediately grasping these stakes in our contemporary conscience wars. In the past, law would grant conscientious exemptions either out of a liberal respect for the integrity of personality or out of a healthy appreciation of the unholy capacity of religious convictions to undermine civil peace. But it would do so sparingly and capriciously. Negotiations around such exemptions are notoriously difficult to theorize. Stanley Fish may well be correct to observe that the jurisprudence of religious freedom “is spectacularly incoherent but full of jerry-built tools” for creating “temporary truces that forestall, but do not finally rule out, the outbreak of total war between religion and secularism” (see Chapter 17). Deploying law to create conscientious exemptions in such circumstances requires a firmly grounded sense of strategic stakes. Conscientious exemptions become a legal question only when the public has enacted laws to which religious believers object. Such exemptions are legally created not because the faithful are convinced about the righteousness of their demands, but because the polity is better off with the exemptions than without them. When the faithful claim the right to exemptions as a means to undo in law what they have failed to achieve in politics, the stakes are the democratic process itself. That is a very high price, even to protect religious freedom.

Index

Abeysakara, Ananda, 179 Affordable Care Act (ACA), 188, 328, 377 RFRA incorporation, 330 Agamben, Giorgio, 13, 150, 155, 157, 159, 169, 179 Alvare, Helen, 234 Ames, William, 38 Anagnostou, Dia, 262 Anderson, Ryan, 194 Andorra, 319, 393 antidiscrimination, 202, 317, 329, 335, 376, 414 group disadvantaging principle, 440 homophobia, 5, 95, 96, 324 immutable characteristics, 438 legislative feedback loop, 164, 293 objections, 59, 426, 454 secular employment, 125, 194, 407, 421 specific situation rule, 114, 118 Areheart, Bradley, 461 Arendt, Hannah, 50, 55, 149, 183 Arthur, Joyce H., 404, 412 Asad, Talal, 174 Austria, 220, 223 Badiou, Alain, 179, 182 Balkin, Jack, 438 baseline, 110 balancing test, 16, 112, 331, 405 burdens component, 109, 328 construction difficulties, 65, 293, 334 criteria, 114 disproportionate burden, 112 doubling, 93 libertarian skewing, 336, 337, 344 normative values, 136, 340 purpose, 337

statutory baseline, 334, 335, 344 substantive values, 332, 336, 339, 340 values component, 270, 346 weight, 281, 417 Basnage de Beauval, Henri, 36 Bayle, Pierre, 37 Berman, Harold, 29, 153, 183 Bhandar, Brenna, 175 Bilson, Thomas, 39 Bodin, Jean, 175 Boetie, de la, Etienne, 53 Bromberger, Brian, 98 Brown, Wendy, 166, 179 Buber, Martin, 169 Buddhism, 90 Bulgaria, 394 Butler, Joseph, 134, 135 Butler, Judith, 53 California Superior Court Chamorro v. Dignity Health, 380 Calvinist doctrine, 34–35 Canada, 6, 63, 119, 196, 406–7 British Columbia Human Rights Tribunal Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2), 323, 408 Ontario Human Rights Commission (OHRC), 405 Ontario Superior Court Ontario Human Rights Commission v. Brockie (No. 2), 321, 409 Canadian Supreme Court, 404 Law v. Canada, 404 Multani v. Marguerite-Bourgeoys, 453 Carlson, Allan, 236 Casanova, Jose, 77

485

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Index

Castellion, Sebastien, 35 Catholicism, 26 bad conscience, 32, 70 eastern apophatic theology, 172, 174 government law economics, 156, 172 Greek inheritance, 155, 170 institutionalism, 24, 132 modern jurisprudence, 44, 129, 150, 151, 152 natural theology, 172, 174 Roman inheritance, 153, 168, 169 salvation, 26, 27, 30, 173 social co-existence ethos, 70, 154, 176 western democracy, 32, 159, 164, 171, 173 Charles, J. Daryl, 28 Childress, James F., 28 civil disobedience, 35, 47, 49, 60, 144 Antigone, 52 idolatry, 33 justification, 257 Socrates, 51 theorists, 60 civil rights, 40, 259 affirmation, 437, 481 anatomy-based marriage, 279, 382 Civil Rights Act of 1964, 380, 381 disability, 323 employment, 91, 100 fundamental liberties, 47, 60 identity, 433, 440 LGBT, 267, 268, 315, 329, 366, 480 marriage, 384 marriage redefinition, 96, 196, 199, 391 movement, 380, 441 organizations, 358, 370 President Clinton, 353 religious freedom defense, 41, 330, 354, 416, 418 societal norms, 65, 113, 184, 380 violation accommodation, 472 waiving, 102 Colombia, 217 Colorado Court of Appeals Mullins v. Masterpiece Cakeshop, 1, 86, 380, 409 communication, 448 Connecticut Superior Court Thopsey v. Bridgeport Roman Catholic Diocesan Corp., 355 conscience, 130, 187 autonomization, 25, 33, 40, 131, 140, 416 Catholic Church authority, 27, 31, 32, 132

freedom, 113, 147, 330 injustice, 35, 37, 133 moral experience, 135 rebellion, 38 secular origin, 29, 136 subjectivism, 38, 41 synderesis, 31 conscientious objection, 60, 61, 462 abortion, 83, 193, 398 background unfairness, 112, 154, 429 Baudouin I (king of Belgium), 392 case law, 281 catechism, 202 Catholic Church, 77, 78 collective conscience, 47, 135, 138, 141, 167, 431 complicity argument, 85, 192, 202, 204, 296 conscience clause, 394 constitutional norms, 61, 138 contraceptive coverage, 58, 89 decriminalization, 393, 398 expansionism, 82, 98, 190, 196, 198 health right, 397, 402 ideological secularism, 84, 169 institutional secularism, 4, 74 liberal bias, 66, 68, 76, 182, 446 limits, 103, 137, 207, 218, 428 Manhattan Declaration, 196 medical procedures, 61, 117 monitoring, 412 nonreligious conscientious objection, 76, 77, 139 plausibility, 61 political motives, 61, 404 stigma, 404, 409 subjective morality, 67, 80, 179, 312 Conseil Constitutionel (French Supreme Court) M. Frank M. et autres, 3 Corey, David D., 28 Council of Europe, 209, 262, 394, 395 Member States, 198, 221, 304, 316, 322 Parliamentary Assembly (PACE) Resolution no. 1607, 397 Resolution no. 1763, 209, 395 Social Health and Family Affairs Committee McCafferty Report, 395, 399, 400, 404 Critchley, Simon, 155, 181

Index culture, 168 affect, 167 chauvinism, 80, 159, 169, 178 icons, 167 identification, 101, 162, 179 nonwestern affect, 123, 160, 170, 272 overestimation, 160 peripheral manifestation, 167, 172, 177 qualified right, 429 race, 10, 97 religion, 174, 174, 355, 429 western affect, 160, 162, 166 Czech Republic, 324, 394 Denisov, Boris P., 244 Derrida, Jacques, 155 Dhotan, Shai, 262 direct discrimination, 296, See antidiscrimination discriminatory impact, 98, See indirect discrimination Dugin, Aleksandr, 272 Durkheim, Emile, 174 Dworkin, Ronald, 11, 60, 61, 158, 325 Dwyer, James, 359 Eisgruber, Chris, 119 Ekins, Richard, 451 Emerson, Ralph Waldo, 51 Esmeir, Samera, 159 European Committee on Social Rights (ECSR), 2, 212, 402 Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, 250, 402 Federation of Catholic Families in Europe (FAFCE) v. Sweden, 212, 400 International Planned Parenthood Federation European Network (IPPFEN) v. Italy, 2, 213, 250, 401 European Convention on Human Rights (ECHR), 6, 13, 15, 152 European Court of Human Rights (ECtHR), 15, 18, 136, 167, 178, 303 case law, 304, 307, 402, 422 case tools, 317 conflict avoidance, 312 court cases A., B. and C. v. Ireland, 213, 398, 447 A.D.T. v. U.K., 310 Alajo Kiss v. Hungary, 324 Annen v. Germany, 308

487 Associated Society of Locomotive Engineers & Firemen v. U.K., 425 Bayatyan v. Armenia, 136, 303, 312, 399 Canea Catholic Church v. Greece, 431, 443 Cha’are Shalom Ve Tsedek v. France, 307 Christine Goodwin v. U.K., 315 Church of Scientology Moscow v. Russia, 307 D. H. and Others v. the Czech Republic, 324 Dahlab v. Switzerland, 171, 309 Defrenne v. Sabena, 455 Dudgeon v. U.K., 311 E. B. v. France, 426 Ebrahimian v. France, 312 Enver Aydemir v. Turkey, 303 Ercep v. Turkey, 303 Eweida and Others v. U.K., 91, 118, 127, 189, 214, 303, 408 Fernandez Martinez v. Spain, 321 Francesco Sessa v. Italy, 322 Frette v. France, 310 Hasan and Chaush v. Bulgaria, 431 Hoffmann v. Austria, 422, 443 I. B. v. Greece, 320 Identoba and Others v. Georgia, 311 Izzettin Dogan and Others v. Turkey, 307 Jakobski v. Poland, 307 Kasymakhunov and Saybatalov v. Russia, 313 Kokkinakis v. Greece, 171, 216, 431 Konttinen v. Finland, 309 Kosteski v. “the former Yugoslav Republic of Macedonia,” 309 Ladele v. U.K., 1, 15, 117, 146, 215, 407, 415, 420 Lautsi and Others v. Italy, 179, 312, 446 Leyla Sahin v. Turkey, 288, 447 Mata Estevez v. Spain, 311 M’Bala M’Bala v. France, 313 Members of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia, 319, 443 Metropolitan Church of Bessarabia and Others v. Moldova, 307, 431 Moscow Branch of the Salvation Army v. Russia, 314, 432, 450 Norris v. Ireland, 311 Obst v. Germany, 321 Oliari and Others v. Italy, 214, 305

488

Index

European Court of Human Rights (cont.) P. and S. v. Poland, 213, 394 Palau-Martinez v. France, 443 Perincek v. Switzerland, 313 Pichon and Sajous v. France, 214, 218, 303, 312, 399 Pla and Puncernau v. Andorra, 319 Pretty v. U.K., 307 R. R. v. Poland, 213, 303, 394, 399 Redfearn v. U.K., 422 Religionsgemeinschaft der Zeugen Jehovas v. Austria, 310, 443 S. H. and Others v. Austria, 316 S.A.S. v. France, 155, 168, 171, 312, 326 Salgueiro da Silva Mouta v. Portugal, 310 Savda v. Turkey, 303 Schalk and Kopf v. Austria, 214 SGP v. the Netherlands, 298, 310 Siebenhaar v. Germany, 321 Sindicatul ‘Pastorul cel Bun’ v. Romania, 316 Smith and Grady v. U.K., 310 Stedman v. U.K., 309 Thlimmenos v. Greece, 303, 419 Tysiac v. Poland, 394 Van Den Dungen v. the Netherlands, 303, 308 Verein “Kontakt-Information-Therapie,” 307 Vo v. France, 398, 447 Vojnity v. Hungary, 423 Von Hannover (No. 2) v. Germany, 314 W. B. v. Germany, 311 W. v. U.K., 307 Wingrove v. U.K., 314 X. and Church of Scientology v. Sweden, 307 Drittwirkung, 318–22 framing effect, 262 freedom of religion, 312, 433 freedom of thought, 139, 428 intra-individual conflict balance, 293, 318, 325 limitations, 315, 398, 402 margin of appreciation, 215, 322, 408 minorities, 309, 443 neutrality, 307, 446 pragmatism, 322 private economic sector, 315, 326 private sphere, 286, 316 proportionality, 315, 321, 429

European Union (EU), 395 Estrela Report, 395 European Parliament, 395 exemptions, 69, 166, 359 benefits, 81, 106, 343, 346 consistency, 459 core mission, 295, 381 limits, 95, 141, 205, 407, 414 pacifism, 23, 80, 105 reasonable accommodation, 87, 92, 205, 288, 317, 328 rights, 128, 163, 430 strategy, 109, 435 sunset, 290 suspect categories, 310, 438 Feldblum, Chai R., 323 feminism, 223 equal rights, 83, 381, 387, 390 feminist movements, 223 gender stereotypes, 233, 376, 387 health, 234, 409, 410 inclusion, 92, 279 indirect harm, 409 pregnancy, 112, 408 religion, 87, 90 reproductive rights, 85, 89, 393, 404, 411 underreported sexual violence, 367 Fiala, Christian, 404, 412 Finland, 394 First Amendment, 82, 470 ante-RFRA cases, 353 children’s rights protection, 368 diversity doctrine, 354 Do No Harm Act, 358 generally applicable laws, 59, 117, 205, 376, 377 post-RFRA cases, 361 religious burden shifting, 333 religious practices, 355, 414 Fiss, Owen, 440 Fokas, Effie, 262 Forst, Rainer, 33 Foucault, Paul-Michel, 161, 161, 180 France, 37, 171, 177, 198, 216, 223, 230, 406 Gauchet, Marcel, 181 gender, 4 biology, 279, 376, 438 conduct, 219, 386 identity, 382

Index role, 17, 387 status, 324, 376, 382, 388, 439 Georgia, 199, 311, 443 German Constitutional Court Classroom Crucifix Case, 453 Germany, 198, 223, 311 grandfathering, 290, See exemptions: sunset Greece, 184 Grimm, Dieter, 169 Habermas, Jurgen, 165, 182 Hague, the, 298 harm, 208 affirmative obligations, 337, 338 dignity, 223, 250, 289, 323, 390 equivalent harms, 84, 338 expressive harm, 287, 290, 386, 407 legal boundaries, 75, 128 rule, 354 third-party harm, 203, 330, 332, 345 Hart, Herbert Lionel Adolphus, 158 Haynes, Jeffrey, 444, 450 Herman, Judith, 363 Hinze, Bradford, 448 Hirschl, Ran, 262 Hobbes’s conception of conscience, 43–44, 134 Hobby Lobby, 89 “Footnote 37,” 340–45 motives, 342 public policy values, 337 regulations entitlements, 343 religious freedom advocates, 330 shifting cost burdens, 118, 332 homosexuality, 5 Christian and Moslem condemnation, 311 equality argument, 386, 436, 441 ethical independence, 140, 325, 405 privacy argument, 386, 435 Hooker, Richard, 39 human rights, 290, 295 children, 349 conflicts, 280 institutions, 114, 369 Internet, 368 investigations, 362, 363 legal processes, 367 perpetrators of abuses, 367 presumptions, 349 regulations, 381

religious organizations, 352, 371 resolution exercise, 283 sexual reproductive rights, 401, 410 violations, 350, 373 weighty reasons, 65, 293 Hungary, 177, 198, 232, 324, 400 Huntington, Samuel, 14, 264 Iceland, 394 Ignatieff, Michael, 449 indirect discrimination, 98, 320, 460 integrity-protecting claims (IPCs), 110 egalitarian theory, 110 ethical status, 112 justice rights, 112 majority bias, 60, 113 non-obligatory religious practices, 116 personal responsibility, 111 self-regard, 63, 128, 140 International Network of Civil Liberties Organizations (INCLO), 404, 405 international regimes, 411 American NGOs, 198 National Organization for Marriage (NOM), 199 civil rights challenge, 221, 261 European Centre for Law and Justice, 268 European Dignity Watch, 198 European NGOs, 199 CitizenGO, 199 geopolitics, 259 judicialization, 262 NGOs, 267 traditionalists, 245, 272, 411 World Congress of Families (WCF), 199, 237 Iraq, 180 Ireland, 220, 291, 394, 398, 440, 473 Islam, 123–25, 160, 167, 257, 271, 308, 313 Israel, 160, 180 Italy, 1, 145, 223, 249, 401 Jacobs, Andrew M., 437 Jastrow, Morris, 370 Jones, Peter, 112 Judaism, 70, 90, 96, 158, 180, 313, 427 Kantorowicz, Ernst, 172 Koppelman, Andrew, 323

489

490

Index

Lanning, Kenneth, 364, 368 Lavi, Shai, 470 Laycock, Douglas, 361 Lecler, Joseph, 72 Lee, Ellie, 227 legal scholarship, 259 blind spot, 363 Journal of Law and Religion, 361 science, 362, 370 Leiter, Brian, 470 Levi-Strauss, Claude, 25 Locke, John, 465 Lockean conception of conscience, 44–48, 73 Lombroso, Cesare, 233 Loraux, Nicole, 53 Loughlin, Martin, 179 Luehrmann, Sonja, 238, 254 MacKinnon, Catharine, 367 Mahmood, Saba, 170 Malta, 393 Manhattan Declaration, 474–76 Maputo Protocol, 396 Margel, Serge, 161 Massachusetts Superior Court Barrett v. Fontbonne Acad., 381 McConnell, Michael, 449 McIlwain, Charles Howard, 153 Mill, John Stuart, 63, 74 Moldova, 307, 431 Moon, Richard, 196 Motha, Suhanthie, 168 Moyn, Samuel, 155, 181 Nagel, Thomas, 471 Nancy, Jean-Luc, 181 Nebraska Supreme Court Douglas v. Faith Baptist Church of Louisville, 374 Netherlands, 218, 406 Nevada Supreme Court Ramani v. Chabad of Southern Nev., Inc., 351 New Jersey Division on Civil Rights Court Bernstein v. Ocean Grove Camp Meeting Ass’n., 391 New Mexico Supreme Court, 380 Elane Photography, LLC v. Willock, 86, 202, 380, 409 New York Division of Human Rights Court

McCarthy v. Liberty Ridge Farm, 204 Northern Ireland Court of Appeal Lee v. McArthur and Ashers Baking Comp., Ltd., 409 Norway, 394 Oakley, Francis, 153 Ohio Court of Common Pleas State v. Miskimens, 368 Overton, Richard, 40 Patten, Alan, 121 Pauline doctrine, 27–28, 31, 35, 70, 131–32, 149 Paulsen, Michael Stokes, 470 Pitt, Gwyneth, 445 pluralism, 80, 326, 416 antimajoritarian standards, 62, 216 communal relationships, 68 comprehensive pluralism, 66, 101 conception, 72 critique, 416 cross-cultural fertilization, 174 equality, 62, 327, 380, 413 functional considerations, 62, 215 internalization, 101, 482 regime, 9, 110 secularity, 18, 416 Poland, 198, 213, 216, 400 political theology, 153, 154, 158 ad hoc paradigm, 163 consensus making, 174 dualism, 150 oikonomia, 13, 151 reflexive constitutionalism, 164 utilitarianism, 179 Potikha, Vladimir, 253 Proast, Jonas, 45 procedural fairness, 277 criteria, 282 critique, 470 outcomes, 162, 282 perceptions, 281 Protestantism, 25 anarchy, 132 autonomy tenet, 26, 132 civil wars, 43 de-institutionalism, 24 heresy, 35 norms, 164 obedience, 53 reason, 44

Index Reformers, 35 transcendence, 33 truth, 35 Quong, Jonathan, 121 Rappaport, Roy, 169 Rawls, John, 11, 60, 134, 158 Raz, Joseph, 60 Reardon, David, 226 Religious Freedom Restoration Act of 1993 (RFRA), 352 at-risk children, 355 collateral legal damage, 356 compelling interest, 206, 333, 352 constitutional limits, 205, 330 empowerment, 194, 358 hidden agenda, 193, 353 parents’ rights, 366 religious accommodation, 201, 330 values vs. religious freedom, 352 Rittgers, Ronald K., 33 Rivkin-Fish, Michele, 246 Robertson, Roland, 177 Romania, 316 Rousseau, Jean-Jacques, 48, 49 Russia, 220–57 Russian Orthodox Church (ROC), 238–43 Rutherford, Samuel, 40 Sacerdoti, Giorgio, 449 Sager, Larry, 119 San Marino, 393 Sartre, Jean-Paul, 53 Scharffs, Brett, 451 Schmitt, Carl, 25, 154, 174 Schutz, Alfred, 158 Shakespeare, William, 133 Slovakia, 198, 216, 220, 400 Smismans, Stijn, 164 Smith, Priscilla, 252 Sorabji, Richard, 27, 69 Sorokin, Pitirim, 236 South Africa, 404 South African Constitutional Court, 63 Christian Education South Africa v. Minister of Education, 452, 454 Minister of Home Affairs v. Fourie, 63, 454 Port Elizabeth Municipality v. Various Occupiers, 453

Spain, 232 state RFRAs, 356 Alabama, 355 Arizona, 357, 377 Arkansas, 329, 355 civil rights, 330 Connecticut, 355 Georgia, 357 Indiana, 329, 356, 357, 375, 376 Mississippi, 192, 195, 352 New Jersey, 355 South Dakota, 235 Texas, 355 Utah, 334 wedding vendors, 330 West Virginia, 357 Stolzenberg, Nomi, 470 Supiot, Alain, 160 Sweden, 177, 394 Switzerland, 177, 394 Taylor, Charles, 30, 68 Teubner, Gunther, 165 Texas Court of Appeals Jeffs v. State, 355 theology, 11 anticlericalism, 416 Christian ascendancy, 71, 158 duty, 36, 162 endo-civilizational war, 159 freedom rights, 414 government immanence, 163, 177 nonwestern, 159 personal identity, 288, 312, 435 religious conviction, 82, 309, 417 secularism, 268, 444 trinitarianism, 155 xenophobia, 253 Thoreau, Henry David, 23, 51, 53, 74 Tierney, Brian, 153 Tribe, Laurence, 438 Turkey, 163 Tyler, Tom, 282 U.K. Court of Appeal Black and another v. Wilkinson, 1, 408 R. (S. B.) v. Governors of Denbigh High School, 430 R. (Williamson) v. Secretary of State for Education and Employment, 429

491

492

Index

U.K. Employment Appeal Tribunal Ahmad v. Inner London Education Authority, 121 U.S. Federal Court (10th Cir.) Little Sisters of the Poor Home for the Aged v. Burwell, 89, 204 (3rd Cir.) Fraternal Order of Police Newark Lodge v. City of Newark, 119 (4th Cir.) Dole v. Shenandoah Baptist Church, 381 (5th Cir.) Betenbaugh v. Needville Indep. Sch. Dist., 355 East Texas Baptist Univ. v. Burwell, 204 (6th Cir.) April Miller et al v. Kim Davis, 1, 91, 146, 187, 329 Means v. U.S. Conference of Catholic Bishops, 380 (7th Cir.) Listecki v. Official Comm. of Unsecured Creditors, 356 Noesen v. Med. Staffing Network, Inc., 205 Univ. of Notre Dame v. Burwell, 337 (8th Cir.) U.S. v. Brown, 355 (9th Cir.) EEOC v. Fremont Christian Sch., 381 EEOC v. Pac. Press Publ’g. Ass’n., 380 Storman’s, Inc. v. Weisman, 380 U.S. v. Dee, 355 (D.C. Cir.) Priests for Life v. U.S. Dept. of Health & Human Servs., 91, 207, 337 (Dist. Alaska) Valley Hosp. Ass’n. v. Mat-Su Coalition for Choice, 388 (Dist. Ill.) Morr-Fitz, Inc. v. Blagojevich, 380 (Dist. Iowa) Odgaard v. Iowa Civil Rights Comm’n., 202 (Dist. Mich.) EEOC v. R. G. & G. R. Harris Funeral Homes, Inc., 391 (Dist. Miss.) Barber v. Bryant, 382 Brown v. Stone, 368 Clemons v. U.S., 374 (Dist. N.J.) Danquah v. Univ. of Med. & Dentistry of N.J., 85, 390 Doe v. Bridgeton Hosp. Ass’n., 388 (Dist. S.C.) Newman v. Piggie Park Enters., Inc., 380 (Dist. Texas)

Franciscan Alliance v. Burwell, 380, 381, 385 Hernandez v. Northside Indep. Sch. Dist., 355 (Dist. Utah) Perez v. Paragon Contrs., Corp., 355 (Dist. Wash.) Arlene’s Flowers, Inc. v. Ferguson, 202, 380 United Kingdom, 2, 10, 175, 180, 184, 216, 406 United Kingdom Supreme Court, 18, 87, 324 Bull v. Hall, 86, 189, 323, 408 Greater Glascow Health Board (Appellant) v. Doogan and another (Respondents), 2, 211, 249, 250, 396 United Nations (UN), 221 UN Committee on Economic, Social, and Cultural Rights (CECSR) General Comment no. 22, 397, 400 UN Committee on the Elimination of Discrimination against Women (CEDAW) Concluding comments on Poland, 37th sess., 400 Concluding observations on Hungary, 54th sess., 400 Concluding observations on Slovakia, 41st sess., 400 General Recommendation no. 24, 216, 400 UN Human Rights Committee (UNCCPR) Mellet v. Ireland, 394, 398 World Health Organization (WHO), 393, 402 United States, 2, 180, 223, 404, 406 United States Supreme Court, 92, 308, 377 Bob Jones Univ. v. U.S., 380 Bowen v. Roy, 308, 353 Bowers v. Hardwick, 386 Bradwell v. State, 384 Bray v. Alexandria Women’s Health Clinic, 386 Brown v. Bd. of Ed., 455 Burwell v. Hobby Lobby, 1, 15, 62, 89, 188, 328, 333, 358, 377, 409 Cantwell v. State of Connecticut, 353 Christian Legal Soc’y. v. Martinez, 386 City of Akron v. Akron Center for Reproductive Health, 228 City of Boerne v. Flores, 376 Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 338 Cutter v. Wilkinson, 205, 333, 338, 342

Index Employment Div. v. Smith, 166, 201, 353, 376 Estate of Thornton v. Caldor, 205, 337, 343 Gillette v. U.S., 6 Goldman v. Weinberger, 353, 355 Gonzales v. Carhart, 231 Griswold v. Connecticut, 62, 384 Harris v. McRae, 389 Heart of Atlanta Motel, Inc. v. U.S., 383 Holt v. Hobbs, 200, 334 Hosanna Tabor Evangelical Lutheran Church & Sch. v. EEOC, 205, 369 Hoyt v. Florida, 384 Jacobson v. Commonwealth of Massachusetts, 368 Lamb’s Chapel v. Center Moriches Sch. Dist., 433 Lawrence v. Texas, 386 Lemon v. Kurtzman, 339 Lochner v. New York, 340 Lukumi Babalu Aye, Inc. v. Hialeah, 99, 341, 354 Maher v. Roe, 389 McDaniel v. Paty, 433 Minersville Sch. Dist. v. Gobitis, 82 Obergefell v. Hodges, 92, 187, 194, 305, 329, 382 Parisi v. Davidson, 6 Planned Parenthood of SE Pa. v. Casey, 192, 233, 384 Pricewaterhouse v. Hopkins, 387 Prince v. Massachusetts, 355 Roe v. Wade, 191, 226, 250, 384, 388 Romer v. Evans, 437 Sherbert v. Verner, 120, 166, 201, 341

493

Tony and Susan Alamo Found’n. v. Sec’y. of Labor, 343 Trans World Airlines, Inc. v. Hardison, 379 U.S. v. Lee, 205, 343, 353, 355 U.S. v. Seeger, 76 Webster v. Reproductive Health Servs., 389 Welsh v. U.S., 76 West Coast Hotel Co. v. Parrish, 340 West Virginia Bd. of Ed. v. Barnett, 82 Wheaton Coll. v. Burwell, 377 Whole Woman’s Health v. Hellerstedt, 247, 384 Widmar v. Vincent, 433 Wisconsin v. Yoder, 166, 201, 308, 366, 368, 371 Zubik v. Burwell, 90, 188, 207, 329, 331, 333, 380 Zucht v. King, 368 Uruguay, 217 Uruguay Supreme Administrative Court, 217 Alonso Justo y otros contra Poder Ejecutivo, 217 Volokh, Eugene, 337 Walwyn, William, 40 Weber, Max, 24, 25 Werner, Udo, 224 Williams, Rowan, 8 Willke, John C., 253 Wintemute, Robert, 215, 405 Wittgenstein, Ludwig, 161 Zimmerman, Carle, 236 Zizek, Slavoj, 179, 182