We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 12 April 2017
Some arguments against the law’s special treatment of religion are adapted from Rawls. These overlook the ways in which the abstract rights agreed to in the original position are given specific institutional form at the constitutional stage. Because the rights established in the original position are vaguely specified, liberty of conscience can’t be implemented without reliance on contestable values such as religion. Public reason, when refracted through the four-stage sequence (where it becomes less constraining at each stage of the sequence), is far less constraining than the proponents of liberal neutrality hope. Fulfilling the commitments made in the original position, for people in the world here and now, requires taking account of the values that those people hold. A Rawlsian position thus can support the American regime of religious accommodation.
1 Koppelman, Andrew, Defending American Religious Neutrality (Cambridge, MA: Harvard University Press, 2013), 131–65Google Scholar; Koppelman, Andrew, “How Shall I Praise Thee? Brian Leiter on Respect for Religion,” San Diego L. Rev. 47 (2010): 961–86Google Scholar.
2 Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971; rev. ed., 1999)Google Scholar, 154/134 rev.
3 I express no view about whether it is appropriate to rely on “freedom of religion” outside the American context. This understanding of liberty may be misplaced and counterproductive elsewhere. See Hurd, Elizabeth Shakman, Beyond Religious Freedom: The New Global Politics of Religion (Princeton: Princeton University Press, 2015)Google Scholar. The task of the constitutional stage is to take account of such local variations.
4 See Koppelman, Andrew, “Justice Stevens, Religious Enthusiast,” Northwestern U. L. Rev. 106 (2012): 567–85Google Scholar; Koppelman, Andrew, “Corruption of Religion and the Establishment Clause,” Wm. & Mary L. Rev. 50 (2009): 1831–1935 Google Scholar.
5 Engel v. Vitale, 370 U.S. 421, 431–32 (1962), quoting Madison, “Memorial and Remonstrance against Religious Assessments.”
6 Welsh v. United States, 398 U.S. 333, 344 (1970).
7 Kaufman v. McCaughtry, 419 F.3d 678, 682 (7th Cir. 2005) (upholding as an exercise of religious liberty a prisoner's request to form an atheist study group).
8 See Koppelman, Andrew, “The Story of Welsh v. United States: Elliott Welsh's Two Religious Tests,” in First Amendment Stories, ed. Garnett, Richard and Koppelman, Andrew (New York: Foundation, 2012), 293Google Scholar.
9 Leiter, Brian, Why Tolerate Religion? (Princeton: Princeton University Press, 2013), 1–3 Google Scholar.
10 A Theory of Justice, 206/181 rev.
11 Ibid., 207/181 rev.
12 Why Tolerate Religion?, 17. Other prominent theorists likewise propose to substitute “conscience” for “religion,” though they do not rely on Rawls. See, e.g., Gutmann, Amy, Identity in Democracy (Princeton: Princeton University Press, 2003), 151–91CrossRefGoogle Scholar; Galston, William, The Practice of Liberal Pluralism (Cambridge: Cambridge University Press, 2005), 45–71 Google Scholar; Appiah, Kwame Anthony, The Ethics of Identity (Princeton: Princeton University Press, 2005), 98Google Scholar; Sandel, Michael J., Democracy's Discontent: America in Search of a Public Philosophy (Cambridge, MA: Harvard University Press, 1996), 65–71 Google Scholar; Nussbaum, Martha, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008)Google Scholar; Smith, Rogers M., “‘Equal’ Treatment? A Liberal Separationist View,” in Equal Treatment of Religion in a Pluralistic Society, ed. Monsma, Steven V. and Soper, J. Christopher (Grand Rapids, MI: Eerdmans, 1998), 190–94Google Scholar.
13 Why Tolerate Religion?, 55.
14 Ibid.
15 Rawls, John, Political Liberalism (New York: Columbia University Press, 1993)Google Scholar, 49n2; 224.
16 For arguments that public reason entails state neutrality toward all contested conceptions of the good, such as the idea that religion is good, see Quong, Jonathan, Liberalism without Perfection (New York: Oxford University Press, 2011)Google Scholar; Gaus, Gerald F., The Order of Public Reason: A Theory of Freedom and Morality in a Diverse and Bounded World (Cambridge: Cambridge University Press, 2011)Google Scholar. Gerald Gaus and Kevin Vallier would not restrict the use of religious arguments in political discussion, but would nonetheless bar laws that cannot be defended without reference to contestable ideas of the good ( Vallier, Kevin, Liberal Politics and Public Faith: Beyond Separation [New York: Routledge, 2014]Google Scholar; Gaus, Gerald F. and Vallier, Kevin, “The Roles of Religious Conviction in a Publicly Justified Polity: The Implications of Convergence, Asymmetry, and Political Institutions,” Phil. & Soc. Criticism 35 [2009]: 51–76 CrossRefGoogle Scholar). Micah Schwartzman's case against special treatment of religion draws on Rawls's idea of public reason at many points in the argument (“What If Religion Is Not Special?,” U. Chi. L. Rev. 79 [2012]: 1351Google Scholar). For critical responses, see Koppelman, Andrew, “Does Respect Require Antiperfectionism? Gaus on Liberal Neutrality,” Harv. Rev. of Phil. 22 (2015): 53–67 Google Scholar; Koppelman, Andrew, “Religion's Specialized Specialness,” U. Chi. L. Rev. Dialogue 79 (2013): 71Google Scholar, lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/uploads/Dialogue/Koppelman%20Online.pdf.
17 Hill, Thomas E. Jr., “Four Conceptions of Conscience,” in Nomos XL: Integrity and Conscience, ed. Shapiro, Ian and Adams, Robert (New York: New York University Press, 1998), 14Google Scholar.
18 Bernard Williams spent much of his career showing the falsity of that notion. See, e.g., Williams, Bernard, Ethics and the Limits of Philosophy (Cambridge, MA: Harvard University Press, 1985)Google Scholar.
19 42 U.S.C. § 2000cc-5(7)(A).
20 Political Liberalism, 291.
21 Ibid., 310.
22 Ibid., 311–12.
23 That was Locke's conception of freedom of conscience. See Locke, John, A Letter concerning Toleration, ed. Tully, James H., trans. Popple, William (Indianapolis, IN: Hackett, 1983 [1689]), 48Google Scholar. It is also present in American constitutional law. See Employment Div. v. Smith, 494 U.S. 872 (1990). Rawls is ambiguous on this point: the Locke conception rules out only the use of state power “to persecute or to suppress,” but a concern for “the liberty to examine one's beliefs” is raised even when this liberty is abridged unintentionally. In that formulation, however, what is concretely at issue is freedom of speech and communication rather than conduct: “certain basic liberties are indispensable institutional conditions once other basic liberties are guaranteed; thus freedom of thought and freedom of association are necessary to give effect to liberty of conscience and the political liberties” (Political Liberalism, 309). The ambiguity of Rawls's understanding of conscience is explored in greater detail in Nathan Chapman, “Disentangling Conscience and Religion,” U. Ill. L. Rev. (2013): 1471–80Google Scholar.
24 A Theory of Justice, 377–82/331–35 rev.
25 Hobbes, Thomas, Leviathan, ed. Macpherson, C. B. (Harmondsworth: Penguin Books, 1968), 160Google Scholar.
26 Pfau, Thomas, Minding the Modern: Human Agency, Intellectual Traditions, and Responsible Knowledge (Notre Dame, IN: University of Notre Dame Press, 2013), 189Google Scholar.
27 Hobbes, Thomas, Man and Citizen (Garden City, NY: Anchor Books, 1972), 47Google Scholar.
28 Leviathan, 366.
29 See Pfau, Minding the Modern, 194–95.
30 A Theory of Justice 432–33/379–80 rev.
31 Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982), 172Google Scholar.
32 Ibid., 172–73.
33 A Theory of Justice 326/374 rev.
34 Political Liberalism, 103–7.
35 Ibid., 335.
36 A Theory of Justice, 197/172–73 rev.
37 Ibid., 198/174 rev., emphasis added.
38 Samuel Freeman, Rawls (London: Routledge, 2007), 203.
39 A Theory of Justice, 197/172 rev.
40 Ibid., 200/176 rev.
41 Ibid., 197/172 rev.
42 Ibid., 200/175 rev.
43 See Koppelman, Defending American Religious Neutrality 7, 120–21, 127–30.
44 Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (New York: Basic Books, 1983), 79Google Scholar.
45 Similar reasoning could support the personal autonomy protections by which the Supreme Court has established rights to contraception and abortion, and the Philosophers’ Brief that Rawls signed in the assisted suicide case. See Dworkin, Ronald et al. , “Assisted Suicide: The Philosophers’ Brief,” New York Review of Books, March 27, 1997, 41–47 Google ScholarPubMed.
46 A Theory of Justice, 19/17 rev.
47 With apologies to W. S. Gilbert. The song in Ruddigore, act 2, actually refers to the removal of a veil of ignorance: “My eyes are fully open to my awful situation.”
48 A Theory of Justice, 154/134 rev.
49 Political Liberalism, xxxviii. See also “The Idea of Public Reason Revisited,” in Collected Papers, ed. Freeman, Samuel (Cambridge, MA: Harvard University Press, 1999), 582Google Scholar.
50 Rawls, John, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), 133Google Scholar.
51 Freeman, Rawls, xiii.
52 Waldron, Jeremy, The Right to Private Property (Oxford: Clarendon, 1988), 273Google Scholar. He cites examples from Locke: “No rational Creature can be supposed to change his condition with an intention to be worse” and “A Man… cannot subject himself to the Arbitrary Power of another”; and from Kant: “if the law is such that a whole people could not possibly agree to it (for example, if it stated that a certain class of subjects must be privileged as a hereditary ruling class), it is unjust” (ibid.). Rawls agrees, cites this passage from Kant with approval ( Rawls, John, Lectures on the History of Moral Philosophy [Cambridge, MA: Harvard University Press, 2000], 364Google Scholar), and sometimes makes a similar move: “what reasons can both satisfy the criterion of reciprocity and justify denying to some persons religious liberty, holding others as slaves, imposing a property qualification on the right to vote, or denying the right of suffrage to women?” (Rawls, “The Idea of Public Reason Revisited,” 579).
53 Rawls, Restatement, 129.
54 See Political Liberalism, 228–29.
55 The term is the inverse of the familiar “utility monster”: “Utilitarian theory is embarrassed by the possibility of utility monsters who get enormously greater sums of utility from any sacrifice of others than these others lose… . The theory seems to require that we all be sacrificed in the monster's maw, in order to increase total utility” ( Nozick, Robert, Anarchy, State, and Utopia [New York: Basic Books, 1974], 41Google Scholar). A similarly repugnant result could be produced by a hypothetical being that required massive sacrifices from others in order to prevent it from experiencing intense disutility.
56 Taylor, Charles, The Ethics of Authenticity (Cambridge, MA: Harvard University Press, 1991), 31–41 Google Scholar.
57 A Theory of Justice, 206/181 rev.
58 Williams, Ethics and the Limits of Philosophy.
59 It is a commonplace among scholars of religion that “religion” is a bundle of goods with no common essence. In American law, this category, precisely because it doesn't correspond to any real category of morally salient thought or conduct, is flexible enough to capture intuitions about accommodation while keeping the state neutral about theological questions. See Andrew Koppelman, “Nonexistent and Irreplaceable: Keep the Religion in Religious Freedom,” Commonweal, Apr. 10, 2015, 16–19, https://www.commonwealmagazine.org/nonexistent-irreplaceable; Koppelman, Andrew, “‘Religion’ as a Bundle of Legal Proxies: Reply to Micah Schwartzman,” San Diego L. Rev. 51 (2014): 1079Google Scholar.
60 Political Liberalism, 311–12.
61 Koppelman, Andrew, “Conscience, Volitional Necessity, and Religious Exemptions,” Legal Theory 15 (2009): 240Google Scholar.
62 Choper, Jesse, Securing Religious Liberty (Chicago: University of Chicago Press, 1995), 74–80 Google Scholar; Garvey, John H., What Are Freedoms For? (Cambridge, MA: Harvard University Press, 1996), 52–54 Google Scholar. For criticism of this idea, see Kent Greenawalt, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton: Princeton University Press, 2006), 130–32Google Scholar; Greenawalt, Kent, “Religion as a Concept in Constitutional Law,” Cal. L. Rev. 72 (1984): 803–4Google Scholar.
63 This point is in some ways the mirror image of Kent Greenawalt's criticism of Rawls, that it does not make sense to exclude religious views from deliberation about the basic structure while permitting those views to influence ordinary political decisions ( Greenawalt, Kent, Private Consciences and Public Reasons [New York: Oxford University Press, 1995], 106–20Google Scholar). The basic problem is that “interpretation of constitutional essentials infects ordinary political argument” (ibid., 119).
64 National Prohibition Act of 1919, ch. 85, tit. 2, § 3, 41 Stat. 305, 308–09 (repealed 1935) (“Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, [and] sold… but only as herein provided…”).
65 Pfau, Minding the Modern, 90, contrasts Hobbes's chaotic conception of agency with that of Aristotle, for whom “judgment and choice… are rational only because they unfold in an ontological framework of things and purposes hierarchically and teleologically ordered.” Similarly in Aquinas, our ability to choose rationally depends on a vision of the ultimate end that “transcends the realm of finite, empirical praxis and cannot itself be chosen” (ibid., 138). This aspect of Aristotle is absent from what Rawls labels his “Aristotelian principle.”
66 Taylor, Charles, Sources of the Self: The Making of the Modern Identity (Cambridge, MA: Harvard University Press, 1989), 63Google Scholar.
67 If this is Thomistic, it is a mutated Thomism that must scandalize proponents of more orthodox variants: “the multiplication of goods, and of the alternative possibilities of realizing different sets of goods in different kinds of life, gradually frees the self from commitment to any one such set or type of life and leaves it bereft of criteria, confronting a choice of type of life from an initial standpoint in which the self seems to be very much what Sartre took it to be” ( MacIntyre, Alasdair, “Critical Remarks on The Sources of the Self by Charles Taylor,” Phil. & Phenom. Res. 44 [1994]: 189Google Scholar). This accurately describes the choices that confront individuals in a liberal society. It is however a familiar fact of life in a liberal society that those individuals sometimes discern more determinate bases for choice that the state is incompetent to evaluate. MacIntyre himself is an example.
68 Rawls, John, Lectures on the History of Political Philosophy, ed. Freeman, Samuel (Cambridge, MA: Harvard University Press, 2007), 321Google Scholar.
69 On this basis, a Rawlsian constitutional convention (or legislature, or court) could recognize the specific exigency of sexual freedom, given what sexuality means in our culture. That could answer the objection I raised in “The Limits of Constructivism: Can Rawls Condemn Female Genital Mutilation?,” Rev. Pol. 71 (2009): 459–482 Google Scholar. Whether that resolution has cross-cultural power (and so could legitimately be the basis of an international human rights claim) would depend on what one finds when one examines the values of the natives in each of the different localities in question—including the values of the women in question, who have limited opportunities to tell the world what they really think. Local defenders of FGM typically claim that the women who are cut do not care very much about their capacity for sexual response. I am unconvinced.
70 MacCallum, Gerald, “Negative and Positive Freedom,” Phil. Rev. 76 (1967): 314Google Scholar.
71 Rawls acknowledges his debt to MacCallum in A Theory of Justice, 202/177 rev.
72 Political Liberalism, 219.
73 Lupu, Ira and Tuttle, Robert, Secular Government, Religious People (Grand Rapids, MI: Eerdmans, 2014), 177–210 Google Scholar; Nickel, James, “Who Needs Freedom of Religion?,” U. Colo. L. Rev. 76 (2005): 941–64Google Scholar.
74 Cécile Laborde, “Three Approaches to the Study of Religion,” The Immanent Frame, Feb. 5, 2014, http://blogs.ssrc.org/tif/2014/02/05/three-approaches-to-the-study-of-religion/.
75 Shapiro, Ian, The Evolution of Rights in Liberal Theory (Cambridge: Cambridge University Press, 1986), 29–40 Google Scholar.
76 Nickel argues that individual exemptions can be created without using the category of “religion,” for example when it is decided “to give scientific researchers exemptions from drug laws in order to allow them to study controlled substances” (“Who Needs Freedom of Religion?,” 958). It is not obvious, however, and Nickel does not explain, how one could justify classic religious accommodations, such as sacramental wine, under a nonreligious description.
77 This is what has happened in the United States. See Koppelman, Defending American Religious Neutrality, 15–45.
78 See Ibid., 46–77; Koppelman, Andrew, “Corruption of Religion and the Establishment Clause,” Wm. & Mary L. Rev. 50 (2009): 1831–1935 Google Scholar.
79 Eberle, Christopher J., Religious Conviction in Liberal Politics (Cambridge: Cambridge University Press, 2002)Google Scholar.
80 For this point I am indebted to conversations with Russell Sherman.
81 Stout, Jeffrey, Democracy and Tradition (Princeton: Princeton University Press, 2004), 72–73 Google Scholar, 92–117.
82 Kwame Anthony Appiah similarly suggests that “Rawlsian structures about the ideal of public reason are perhaps best interpreted as debating tips: as rhetorical advice about how best, within a plural polity, to win adherents and influence policies” ( The Ethics of Identity [Princeton: Princeton University Press, 2007], 81)Google Scholar. Rawls sometimes endorses a similar view (“The Idea of Public Reason Revisited,” 592).
83 “The Idea of Public Reason Revisited,” 582.
84 Ibid., 574.
85 Thus Rawls writes: “Fundamental justice must be achieved first. After that a democratic electorate may devote large resources to grand projects in art and science if it so chooses” (Justice as Fairness: A Restatement, 152). Thus political liberalism “does not rule out as a reason the beauty of nature as such or the good of wildlife achieved by protecting its habitat” (ibid., 152n26; see also Political Liberalism, 214–15). As Freeman puts it, “it may well be that majority democratic decision by itself is sufficient ‘public reason’ for restricting conduct.” Thus, for example, the legislature could act to “protect a dwindling and endangered species of moles that live in unspoiled prairie land that Old MacDonald plans to sow in wheat” (Freeman, Rawls, 80; see also 396–97; Scanlon, T. M., “Rawls on Justification,” in The Cambridge Companion to Rawls, ed. Freeman, Samuel [Cambridge: Cambridge University Press, 2003], 162–63Google Scholar).
86 This paper grows out of an exchange of ideas in correspondence with Frank Michelman. I think that the argument as stated here depends upon several claims that do not appear anywhere in Rawls (and so my earlier critique of Rawls, “The Limits of Constructivism,” is valid, because he never considered these modifications). If the argument is sound, Rawls's failure to confront the Hobbesian objection creates an embarrassing gap in his argument, and “liberty of conscience” is such a misleading label that it is appropriately placed in scare quotes. The reconstruction that I have offered also does not rely on Rawls's idea—I think, an incoherent idea, see “The Limits of Constructivism,” 474–75—of a “comprehensive view.” I believe, therefore, that the argument developed in this section is a revision—call it a friendly amendment—rather than an interpretation of Rawls. Prof. Michelman disagrees with me on these points. See his “The Priority of Liberty: Rawls and ‘Tiers of Scrutiny,’” in Rawls's “Political Liberalism,” ed. Brooks, Thom and Nussbaum, Martha (New York: Columbia University Press, 2015)Google Scholar (critiquing “The Limits of Constructivism”).
87 A Theory of Justice, 137/119 rev.
88 Conscience itself, as a legal category, is in practice an imperfect proxy for conscience in its ordinary semantic meaning. Even when the law specifically tries to accommodate conscience as such, it unfairly will “reward articulate people and penalize those, equally sincere, who cannot give a good account of themselves” (Nussbaum, Liberty of Conscience, 172). Any singling out of conscience as such will also require intense interrogation of individual cases, which might be workable in some cases, such as a selective draft, but would be silly in others, such as an exemption for sacramental wine in a regime of alcohol prohibition. The opacity of conscience can only be diminished, not eliminated.
89 See the survey in Defending American Religious Neutrality at 124–65.
90 Eisgruber, Christopher L. and Sager, Lawrence G., “The Vulnerability of Conscience: The Constitutional Basis for Protecting Religious Conduct,” U. Chi. L. Rev. 61 (1994)CrossRefGoogle Scholar: 1245 n. ++. They use “deep” repeatedly to describe the claims that should be treated equally with religious ones (Eisgruber and Sager, Religious Freedom and the Constitution, 87, 89, 95, 101, 197, 241, 246, 252).
91 “The Vulnerability of Conscience,” 1285. I am here using “deep” in its commonsensical connotation, as pointing toward objects of strong evaluation. I thus ignore the difficulties in the formulation that are exposed in Laborde, Cécile, “Equal Liberty, Nonestablishment, and Religious Freedom,” Legal Theory 20 (2014): 52–77 Google Scholar.
92 Marcuse, Herbert, Eros and Civilization: A Philosophical Inquiry into Freud, 2nd ed. (Boston: Beacon, 1966)Google Scholar.
93 Freud, Sigmund, Civilization and Its Discontents, trans. Strachey, James (New York: Norton, 1961)Google Scholar.
94 Rawls thought that some injustice may be tolerable because “a certain degree of injustice sometimes cannot be avoided, that social necessity requires it, there would be greater injustice otherwise, and so on” (“Legal Obligation and the Duty of Fair Play,” in Collected Papers, 125).
95 It should be clear at this point that Rawls was not among them.
