Eisgruber and Sager’s Arguments Against Special Protection Of Religion and a Rebuttal

Christopher Eisgruber and Lawrence Sager present a concept they call “equal liberty” as the answer to their fear of society being “on the brink of abandoning our commitment to find and follow fair terms of cooperation for a religiously diverse people.”[1]  Religious freedom, they maintain, is about to be “submerged beneath angry contestation.”  They argue for “fair terms of cooperation for a religiously diverse people.”  This post will review Equal Liberty in depth as to what the argument consists of, how it articulates a position that denies religion any special legal status and briefly review the critical assessments it has received in the literature. I conclude that Equal Liberty does not answer our quest of why religion is treated as special in the law.

Simply stated, their position is that religiously motivated conduct deserves protection on the basis of equality. Such conduct is to be treated no better and no less than the way other “more familiar and mainstream interests” [2]. Or, stated in another way, government is to “treat the deep, religiously inspired concerns of minority religious believers with the same regard as that enjoyed by the deep concerns of citizens generally.”[3]

Eisgruber and Sager argue that it falls upon government to treat religious practices and institutions fairly guided by the following two principles:

“First, no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects.  And second, all members of our political community ought to enjoy rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow a broad range of religious beliefs and practices to flourish.” [4]

They understand their approach to be based on ethics rather than a historically defensible one.  Their goal is not to tie the interpretation of the constitutional meaning of religious freedom to the historical context of the founding.  For example, they are not interested in the letters written by the framers or the events that occurred around the time of the constitution’s founding.[5]  “The historical record is notoriously indeterminate and unclear….”[6]  Nevertheless they claim that their position has “a venerable constitutional pedigree.”[7] By that they mean the founders established abstract principles of religious freedom on purpose – to be applied to whatever new developments the future would bring.  Eisgruber and Sager take those constitutional statements to be “what we think they are and were intended to be, which is as abstract principles related to religion and religious freedom and to ask, ‘What is the best interpretation of those statements regarding them as abstract statements about religious freedom?’”[8]

They reject the idea that religion has distinctive virtues entitling it to a special constitutional status.  It is incoherent, in their view, that the “dominant way of thinking about religious freedom in the United States insists both that the Constitution should confer special benefits like regulatory immunity on religious practice and that the Constitution should impose special disabilities on that practice, like starving it of any public support.”[9]  There is both a push and pull that makes the current regime untenable in the long run.

“Equal liberty, in contrast,” they maintain, “denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions.”  Except for the concern of equality there is “no reason to confer special constitutional privileges or to impose special constitutional disabilities upon religion.” [10]

“The question is not whether the state should be permitted to affect religion or religion permitted to affect the state; the question is how they should be permitted to affect each other.” [11]  The separation metaphor (“separation of church and state”) is of little help.  At best it is a marker that no particular denomination is to be the state favorite.  Otherwise it has only confused the situation where there now exists a strange landscape of disagreements with unsatisfactory options “either we treat religion far better and/or far worse than other important human enterprises, or we must treat it as a constitutional orphan.”[12] Missing from this discussion is that the Constitution’s special concern for religion is that of opposing discrimination.

To allow a person to have a unique prerogative to disobey the law, as in the example of a lady who for religious conviction opens a soup kitchen, and is permitted by authorities to do so, in violation of zoning regulations (meanwhile a non-religious person is denied because she does not have a religious conviction) is “unjust on its face, plus it is at odds with the essence of religious freedom because it imposes a test of religious orthodoxy as a condition of constitutional entitlement.”[13] It also comes at the expense of other legitimate public values and purposes.

There is a further problem.  The bark is bigger than the bite.  “Because the idea of a special immunity from laws that everyone is obliged to obey is so anomalous, and so potentially disruptive of legitimate public purposes,” the net result is that the idea of special protection of religion has been limited “to relatively innocuous cases in which the harm to third parties is minor…. As a result, the claimed immunity for religiously motivated conduct, which in principle sounds arrestingly bold, often turns out to be remarkably timid in practice.”[14]  Or, said another way, “strict in theory but feeble in fact.”[15]

At the heart of free exercise exemption struggles is fairness, “no members of our political community [are to] be disadvantaged in the pursuit of their important commitments and projects on account of the spiritual foundations of those commitments and projects.”[16]

Their approach focuses on the equal treatment of religious freedom rather than the value of that freedom.  The state is not to discriminate against religious practises as part of an overall anti-discrimination public policy rather than religious practise being unique requiring special treatment.  They argue that there is a distinction between privilege and protection which refers “not to the fact of constitutional (or judicial) priority, but to the grounds for such priority.  A claim for constitutional privilege requires a showing of virtue or precedence, while a claim for constitutional protection requires a showing of vulnerability or victimization.”[17]  Religious freedom gets protected solely because it is vulnerable to prejudice and ill-treatment not because it is somehow special.

In summary, Equal Liberty is concerned with finding the principles or rules that describe fair terms of cooperation for a religiously diverse people.  It respects the rights of both the religious and non-religious citizens to flourish in living out their beliefs and practices.  It calls upon government to treat all with fairness.  Religious minorities are to be treated no differently than mainstream religious communities.  The religious person has no greater constitutional claim than the non-religious person – they are equal – both have equal liberty.  The state takes no “ultimate truth” claim as to both religious and non-religious values and beliefs that are core to the citizen in question.[18] To gain an exemption the religious person must prove, a) that the law prevents him from exercising his religious belief or imposes an undue burden when he does; b) he must show that but for his religious views he would have been given the exemption.  That is to say his religious belief was not given the same consideration as those non-religious values that were granted an exemption from the law.[19]

Critical Reviews

Eisgruber and Sager’s Equal Liberty has been the subject of much critical thought and as Eisgruber notes such serious attention is “one of the pleasures of writing a book.”[20]  The engaged conversation on the benefits and pitfalls of Equal Liberty makes plain its boundaries but also opens new possibilities for the relationship between law and religion.

First, there is the problem of “levelling down” – i.e. “There is nothing in the equal regard approach that prevents government from suppressing religious and non-religious conscientious objectors alike, provided it does so even-handedly.”[21]  What is needed is some objective standard that assists in the evaluation of whether religion is in fact properly treated.  Marci Hamilton notes that one cannot get away from the fact that the prime motivating reason for enshrining religious freedom in the (U.S.) constitution was the flight of many immigrants from European religious persecution and not anti-discrimination.[22]

Hamilton’s point would be more applicable to the situation in Nazi Germany than in 16th and 17th Century Europe.  The Nazi Government persecuted all religions and the world would not be better off – with Equal Liberty there since government would be persecuting all religions equally.  However, in the 16th and 17th Century Europe religious persecution appeared to be confined to the religious minorities.  If Equal Liberty were the applied political philosophy in those countries then arguably it would have brought greater freedom as the religious minorities would be given the same privileges as the majority faith community.

Second, what if there is no secular equivalent to weigh the religious exemption sought? Equal Liberty requires the weight given to religious values and beliefs be equal to the weight given to non-religious values and beliefs in similar circumstances.  The problem is how to determine the right bases for consideration?  “[I]t is plausible, in some cases, we shall find no secular analogues to religious claims for conscientious exemptions.”[23]  This is the case, for example, with dress codes yet Eisgruber and Sager maintain that exemptions for religious dress codes should be given even if there is no secular analogue handy – one should “look for analogies that were further afield.”[24]   Webber astutely asks, “Are we not simply casting about for a comparison that will allow us to protect a practice valued because of its religious significance?  If so, we should just say that and act accordingly.”[25]  Perhaps, the only way to deal with a lack of an analogy is to determine whether the state’s interest in protecting liberal democratic values has a greater weight than the religious requirement. However, that would be against Eisgruber and Sager’s approach since it is a judgement made on values rather than equality which forms the fundamental premise of Equal Liberty.

Third, despite the claim otherwise the fact remains that even Equal Liberty does not treat claims of religious and non-religious exemptions equally – it gives more deference to the religious claim.  For example, it claims that the sincerity of the non-religious claimant and the centrality of the values he holds is to be reviewed by the state unlike the religious claimant who gets a free ride from such state evaluation.[26]  Nehushtan argues it is always a challenge for the state to evaluate how central a value is to an individual (whether religious or non-religious) – it will vary from one individual to another.  To say the secular state can evaluate the non-religious claim is only to admit a common epistemic deference to the non-religious objector.  It does not necessarily mean the non-religious objector and the state will have the same epistemic foundation.

Fourth, while religious belief is irrational and based on faith it does not mean the non-religious beliefs are necessarily rational.

Fifth, a state may be politically non-religious but that does not mean the state or its leaders are   culturally non-religious.  Nehushtan notes that Eisgruber and Sager’s approach is situated in the American experience – a secular state within a deep religious culture.

Sixth, it would be a mistake to suggest that the difficulties, associated with the state evaluating the sincerity of the religious objections and the reasonableness of the claim that the objections are central to personhood, cannot be solved – at least in part.  The key to determining when the state ought to grant conscientious exemptions from a legal rule requires a proper understanding of tolerance.  A tolerant person is one who has made a judgement about the values motivating the religious objector and finds those values lacking but is still willing not to “harm” or interfere with the religious objector.  The state is of the view that the religious objector is wrong in his ordering of values that necessitates an exemption from the generally applicable rule.  However, when the state grants the exemption it is being tolerant, though it disagrees with the claimant.[27]

However, such state tolerance has a limit – it is intolerance.  That is to say the intolerant should not be tolerated.  Such limit is described through the principles of reciprocity and proportionality.  Reciprocity is summed up as “acting contrary to what X initially requires towards those who act contrary to what X requires.”  Therefore reciprocity would require the state to limit religious freedom of one who would curtail the religious freedom of others.  The basic philosophical position for tolerance is personal autonomy – the tolerant recognizes the right of another to be wrong.

Reciprocity is balanced by the principle of proportionality which “reminds us that the question is not just whether one is tolerant or not but also what kind and amount of intolerance justifies a specific kind and amount of intolerant response.”  This is done by matching “the nature and amount of one’s intolerant response to the nature and amount of the intolerance one is facing.”[28]  This requires first, “a rational, logical connection between the nature of the original intolerance and the nature of the intolerant response.”  It must be effective.  Second, we should find the least harmful intolerant response that is effective.  Third, it must be the least harmful response to intolerance – proportionate to the legitimate value, right or interest to be protected.

Nehushtan argues that such a position “rejects any approach to granting conscientious exemptions that disregards the content of the relevant conscience.”  It refuses to grant exemptions to those whose “conscience relies on intolerant values.”  The conclusion is that “neutral approaches to granting conscientious exemptions are clearly misguided.”  The state must take sides and take into account the content of one’s conscience.

Jeremy Webber maintains that “we are fooling ourselves if we think we can define a coherent conception of freedom of religion without recognizing that the freedom presupposes an affirmative valuing of religion.”[29] He rejects Eisgruber and Sager’s argument that equality and liberty alone accounts for freedom of religion by placing religious beliefs on par with other beliefs – with no distinctive value.

The formulation of religious freedom after the Reformation stemmed from the reality that one cannot compel another’s interior belief and thought.  It was a matter of internal integrity and also the realization that people were willing to die for their belief.  This tolerance for unconventional beliefs, as Webber points out, was consistent for other commitments to political and economic principles.  Religion happened to be the first principle in which the futility of forcing another’s beliefs was so blatant.  By allowing the freedom of belief one then allowed for the actions – including speech – that were carried out in congruence with that belief.  It was the beginning of the freedom of expression.

Nevertheless religion had something more to it than the other rights that soon developed.  Religion had a distinct value.  That distinctiveness remains.

Consider the question of whether yamulkas should be allowed when headgear is banned by a dress code.  Larry Sager argues that since eyeglasses are permitted equality (rather than special value attributed to religion) requires yamulkas also to be permitted.  However, Webber asks whether we would weigh the yamulka the same as other headgear.  We would not and “The reason clearly is our special respect for individuals’ religious obligations….  The religious nature of the practice accounts directly for the weight we attach to the wearing of the yarmulka.”[30]

Brian Barry‘s position is that once a request is made for a religious exemption one should consider the rule to determine whether “it can be amended to accommodate the religious obligation without establishing a special exemption.”[31] Webber notes the advantages of this approach includes the ease of enforcement, it limits inquiry into other’s religious belief, and holds back the intolerant from the recriminations thrown at those who appear to be getting special treatment.  However the fact still remains that “the revision of the rule is prompted by our concern with its impact on religious believers.”  Further to change the rule would mean that you actually make a greater imposition on the majority than you would otherwise if you simply made the religious accommodation for the individual in question.

Once protection is extended, Webber argues, to the “outward manifestations of belief…the special value of religion begins to play a role in our reasoning.”[32]

What of the idiosyncratic and minority character of beliefs which expose them to disregard?  Eisgruber and Sager argue that such vulnerability of religious practises to prohibition raise an equality claim not dependent on any value of religious practise.  Yet legislation always chooses some practise at the expense of another.  But with religious practise we raise concern – why? Because it is unique.  “They need to show that equality is sufficient to address the moral concerns that arise in the context of religious freedom.  In that they fail.  Many of their own examples quietly attach special value to religious belief and practice.”[33]

What of seeing religious practise as one example of a larger category which is defined in secular terms?  The eyeglasses on the basketball court would be permitted therefore so too the yamulka.  But there is no attempt to compare the anxiety of a yamulka-wearer to the wearer of eyeglasses.  We impute prejudice because it is religious.

It all comes back to the reality that “we must find some way to live together despite our disagreements.  That recognition need not be grounded in noble and refined sentiments.  It may be founded on little more than necessity:  a realisation that the cost of all-out rejection is ruinous and that we had better find some way to get along.  This was, in fact, the spur for freedom of religion in the modern era.  Governments realised – after murderous religious warfare – that the cost of imposing religious conformity was very high, perhaps not even possible let alone desirable.”[34]

Here are more quotes of Webber’s analysis:

It was precisely the readiness of people to stick fast to their religious beliefs and defend them to the death that resulted in their religious commitments being recognised as significant.  People might consider their own beliefs to be important because they were true; they considered others’ beliefs to be important because others manifestly and obstinately took them to be true.  This reveals the great truth that respect for others’ beliefs need not be founded on full substantive acceptance of the beliefs’ validity.  Indeed, in any diverse society, it cannot be.  Instead during the Reformation it took the form of toleration, prompted by the simple fact that peace was better than strife, and peace was only attainable if people put up with each others’ beliefs.”

It has become common to denigrate toleration, seeing it as ungenerous and mean-spirited:  one should not just tolerate beliefs, some would say, one should embrace them.  But we should not underestimate toleration.  In contrast to stronger types of acceptance, toleration takes belief seriously:  by taking one thing to be true, people inevitably reject the truth of other things.  And yet it allows people to live together despite their divergent beliefs:  you do not need to agree; you can even consider others to be badly mistaken, and yet still live in peace.

Over time a number of principles emerged out of the effort to make toleration work.  These included the inviolability of the person against reprisals due to their religious beliefs; the individual’s entitlement to the sanctity of their thoughts; the toleration of rites and practices that others claimed to be central to their beliefs.  And although this was a much harder lesson (one at which we still routinely fail), some people began to recognise the reciprocity between their own demands and those of others, parity between what mattered to themselves and what mattered to others, the integrity of others as moral agents.”[35]

Finally, this quote of Webber is particularly telling:

The only way to understand if values worthy of respect are present is to engage with them, trying to understand them in their own terms and by analogy to one’s own….  A genuine commitment to freedom of religion requires a stance entirely different from a Rawlsian retreat into an artificially constrained public reason.  It requires engagement.  And, paradoxically, it simultaneously requires a measure of reticence, of holding back, of giving others the benefit of the doubt.  The mystery of others’ beliefs remains inexhaustible.  Just as in the first stages of toleration, so today, we continually confront the fact that we will never completely understand, much less accept.  Our effort to evaluate importance and kind, which is essential to any accommodation, must always be tempered by a reticence to judge.[36]

My Concluding Thoughts

Ultimately, it seems to me, it is the acceptance of difference that paves the way for a group of people to grow into a civilized community.  A community where both individuals and different groups of individuals united in a common worldview have the opportunity to live their conception of the “Good Life.”  Religion is a fact.  Despite the secularist optimism of the 1960’s that it would wither away it has remained a major sociological phenomena, not only in our Western liberal democracies but in the world.  Human beings are predisposed to religion – our laws have recognized that reality and have treated it as special.  Despite Eisgruber and Sager’s attempt to explain away religion’s constitutional significance as a special item needing to be specifically protected, our quest remains – why does the law treat religion as special?  To Be Continued!

[1] Christopher L. Eisgruber and Lawrence G. Sager, Religious Freedom and the Constitution (Cambridge: Harvard University Press, 2007),  p. 4.

[2] Eisgruber and Sager, Religious Freedom and the Constitution,  p. 12.

[3]C.L. Eisgruber and L.G. Sager, “Meditating Institutions:  Beyond the Public/Private Distinction: The Vulnerability of Conscience:  The Constitutional Basis for Protecting Religious Conduct,” 61 University of Chicago Law Review (1994), p. 1283.

[4] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 4.

[5] See UChannel October 4, 2010 found at http://www.youtube.com/watch?v=PECGXiEzQJ4

[6] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 1.

[7] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 5.

[8] See UChannel October 4, 2010 found at http://www.youtube.com/watch?v=PECGXiEzQJ4

[9] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 5.

[10] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 6.

[11] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 7.

[12] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 9.

[13] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 11.

[14] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 12.

[15] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 43.  The reference was made with respect to the “compelling state interest test” in US constitutional jurisprudence that originated in the US Supreme Court decision Sherbert v. Verner, 374 US. 398 (1963).

[16] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 15.

[17]    C.L. Eisgruber and L.G. Sager, “Meditating Institutions,” p. 1251.

[18]      C.L. Eisgruber and L.G. Sager, “Meditating Institutions,” p. 1292-1293.

[19]      C.L. Eisgruber and L.G. Sager, “Meditating Institutions,” p. 1285.

[20] Christopher Eisgruber at http://www.youtube.com/watch?v=PECGXiEzQJ4 at 1:03:08.

[21]      Yossi Nehushtan, “Granting Conscientious Exemptions: The Need to Take Sides,” Religion and Human Rights7 (2012) 31-58, at p. 48.

[22] Marci Hamilton at http://www.youtube.com/watch?v=PECGXiEzQJ4 at 52:00.

[23]    Yossi Nehushtan, p. 49.

[24] Eisgruber and Sager, Religious Freedom and the Constitution),  p. 105.

[25] Jeremy Webber, “Understanding the religion in freedom of religion,” in Peter Cane, Carolyn Evans, Zoë Robinson, Law and Religion in Theoretical and Historical Context (Cambridge:  Cambridge University Press, 2008), p. 35.

[26] Nehushtan, p. 50.

[27]      Nehushtan, p. 54-58.

[28]    Nehushtan, p. 56.

[29]    Jeremy Webber, “Understanding the religion in freedom of religion,” p. 27.

[30]    Jeremy Webber, “Understanding the religion in freedom of religion,” p. 32.

[31]    Jeremy Webber, “Understanding the religion in freedom of religion,” p. 33 referring to Brian Barry, Culture and Equality:  An Egalitarian Critique of Multiculturalism (Cambridge, MA:  Harvard University Press, 2001) at 38-40.

[32] Jeremy Webber, “Understanding the religion in freedom of religion,” p. 34.

[33]    Jeremy Webber, “Understanding the religion in freedom of religion,” p. 37.

[34]    Jeremy Webber, “Understanding the religion in freedom of religion,” p. 39-40, referencing Diarmaid MacCulloch, Reformation:  Europe’s House Divided 1490-1700 (London: Penguin, 2004).

[35]    Jeremy Webber, “Understanding the religion in freedom of religion,” p. 41.

[36]    Jeremy Webber, “Understanding the religion in freedom of religion,” p. 42.

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