Wednesday, December 13, 2017

What Religious Liberty Is

In recent weeks there has been much discussion in the American media about what religious liberty entails. What I have not seen is anyone taking a stab at the question of what religious liberty is. In this essay, I will attempt to define what religious liberty is, and then look how that might apply to a current dilemma.

I take religious liberty to be the right to withdraw from meaningful participation in an otherwise mandatory custom—whether a practice or an abstention—based on the transcendent claims of a community of believers with which one has a good faith association. This definition does not reduce religious liberty to a mere mode in which freedom of speech, freedom of assembly, property rights, etc are expressed, though it may entail those other rights. It also only kicks in when religious minorities have a different way of relating to the transcendent than the larger political community in which they live.

"Meaningful participation" is an expression intended to exclude second order involvement with other responsible parties from religious liberty exemptions. So once money changes hands, I'm no longer responsible for what happens to the good or service provided. Or, going the other way, what the business does with the money I provide them in exchange for their good or service, I'm not longer responsible for.

In concrete terms, a Jehovah's Witness can't try to stop a hospital they patronize from providing blood transfusions to other patients. A conscientious objector can't sue to stop the whole nation from going to war. A Catholic gynecologist can't object to their medical society licensing doctors who perform abortions. And so on.

Crucially, "meaningful participation" doesn't prejudge what ways of relating to the claims of the transcendent are legitimate. I only assumes the the final responsibility for the way one relates to the transcendent, as far as a free society is concerned, is personal (though typically sustained through associations of like-minded individuals). Hence, it is to be expected, for example, that some traditionalists are okay with going to same-sex weddings and others not.

But what "meaningful participation" does do is limit the extent to which exemptions for those who recognize such claims must be extended across social relationships. It does so based on the assumption that other parties are responsible for their relation (or not) to the transcendent as they best understand it. Therefore, the participation for which an exemption is granted has to be meaningful with reference to a network of relationships in which each individual is responsible for their own relationship to transcendence.

So on this definition of religious liberty, an third century Christian may withdraw from the incense offering to the Roman emperor—a mandatory practice reinforcing state solidarity that the empire takes the gods to be indifferent to—because Christians have a good faith association with a community of believers in a resurrected God who requires they not have meaningful participation idolatry.

And on this definition, an nineteenth century Seventh-day Adventist has the right to withdraw from Sunday rest—a mandatory abstention that America takes the Christian God to be in favor of—because Adventists have a good faith association with a community of believers in a God who created in six days and rested on the seventh and requires they not have meaningful participation in observing Sunday as a day of rest.

But, as with all rights, your right to religious liberty ends at my nose. To take two extreme examples, if your god demands human sacrifice, you don't get to kill me. Likewise, if your God demands race-based discrimination, you don't get to organize to broadly exclude historically discriminated against racial/ethnic minority groups from goods and services offered to the public.

Now, to briefly apply this framework to the specific case of the Colorado baker:

The assumption of American capitalism is that God (if a Supreme Being exists) doesn't hold us responsible for the transcendent moral implications of what we know people will do with the goods and services we provide to the public. The baker belongs to a community of believers who dissent from that view of the relationship between transcendence and free markets. They can't have meaningful participation in gay marriages due to the meaning they see in the institution of marriage as it relates to their God.
The Colorado baker isn't suing to stop everyone from using any of his cakes in a same-sex wedding. He isn't screening every customer based on their beliefs about same-sex weddings or asking about the intended use for every product sold. But he does object to making specific cakes that he has good reason to believe would be used to celebrate a same-sex wedding. Thus, this is a request for exemption based on meaningful participation. And the Colorado baker has also turned down business making cakes for Halloween and divorce celebrations, evidence that his appeal to a transcendent claim is in good faith.

But the custom from which he is requesting exemption provides a social good that must be weighted against his religious liberty. Sexual minorities are a historically discriminated against group that is even today targeted for violence and needs protection from being broadly excluded from goods and services offered to the public. So whether the Colorado baker can be granted an exemption does not simply turn on whether his claim of meaningful participation is in good faith and simply not cover for an anti-minority animus. The extent of the exemption he is requesting would determine whether this baker is trying to push his rights past the minority group's nose.

In this case, the Colorado baker requested a narrow exemption to the non-discrimination mandate from providing a select good and service. So it is not part of a broad attempt to exclude sexual minorities from his business dealings all together. The baker is willing to provide sexual minorities cakes in general with the exception of those that entail meaningful participation in practices his God prohibits, including, but not limited to, cakes that entail his meaningful participation in a same-sex marriage.

We have no reason to doubt the harm to dignity wrought by the experience of being discriminated against on the part of the gay couple. We should be especially sensitive to it given the high rates of suicide found among sexual minorities, and require those who claim to religiously object to meaningful participation in same-sex marriages do so without expressing of animus toward sexual minorities as a sign of good faith.

On the other hand, the Colorado baker's conscientious objection was not part of a broad social exclusion of sexual minorities from the wedding cake market. The gay couple was able to get their wedding cake from another local goods and services provider.

In a free society, while there is a right for minority groups not to be excluded from public life, including the marketplace, there is no right to be shielded from every indignity. We recognize that the rights of others, such as freedom of speech, will expose everyone, including historically discriminated against minorities, to certain indignities. We minimize our exposure to indignities through free associations, which also reinforce the sense of self by which we are able to bear those indignities we must in order to maintain our freedom.

Because the extent of the meaningful participation to which the Colorado baker objects is narrow, because his objection is good faith and not primarily motivated by animus, and because Coloradans in general disagree with the Colorado baker's understanding of what God expects of him, having enacted civil rights legislation to that effect; religious liberty requires that we allow for this narrow exposure to indignity on the part of sexual minorities in order to maintain the religious liberty on which a free society is predicated.

I have previously treated this issue in greater length: "A Framework for Balancing Competing Concerns: RFRAs and Adventists in the Public Square."