Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, June 24, 2013

Religious freedom is not a 'second-class right'

Speaking of Mary Ann Glendon . . . here is her recent Washington Post op-ed, "Religious freedom is not a 'second-class right'".  A bit:

Instead of fostering discord in the body politic or attempting to make everyone think in lockstep, our policy makers would do well to be more respectful of the American tradition of pluralism. At the most fundamental level, those wielding governmental power must recognize that disagreement is not discrimination. Disagreement is an essential part of any democratic system. Conflicting ideas and diverging worldviews are signs of a healthy society.



Garnett, Rick | Permalink


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That's a good bland statement but on the merits, as shown in the past, we disagree in various cases.

I do not see a threat of "religious freedom itself is in danger of becoming a second-class right" particularly, e.g., policies where individuals have more freedom to make religious decisions. For instance, to have same sex marriage protections pursuant to their religious beliefs. Now, in most states, the religions of some are favored. In NY, those who are married in religious ceremonies to members of the same sex can obtain secular marriage benefits. In NJ, they can obtain civil union benefits. In other states, none at all.

As to 'religious providers of health, educational and social services cooperate with government’s ideological programs threatens a death blow to the diversity,' they already do in various respects. If the government provides money, those who take it have certain obligations. Racial discrimination is barred in various cases. The debate is where lines are to be drawn.

The rhetoric of such op-eds to me are of limited assistance to hard questions.

Posted by: Joe | Jun 24, 2013 1:48:59 PM

Well said Joe.

sean s.

Posted by: sean samis | Jun 24, 2013 3:54:53 PM

Joe -- I am happy to agree that op-ed pieces (even good and correct ones, like this one) are not the ideal vehicle for exploring and resolving fully difficult line-drawing questions. But, your view that religious freedom is not in danger of being down-graded is not mine.

As for the line-drawing problem, I think it is important to push back (as Glendon does) on the simplistic notion that cooperation with government should translate into a right on government's part to require those who cooperate to act just like the government. Glendon is right: This notion threatens pluralism and diversity.

Posted by: Rick Garnett | Jun 24, 2013 3:58:29 PM

It is always difficult to back up claims within an op-ed, but Glendon's principle claim about that religious freedom is in danger of becoming a second-class right is one that would resonate as true with many of us. Take a look, for example, at the hostile comments posted in response to her piece. Of course, comboxes are not objective measures of opinion, but does anyone really think that such hostile comments would have been made in such large numbers twenty or thirty years ago (assuming that it was technologically possible)?

I work with policy makers in what is considered one of the most religious and most politically conservative states and even here the notion that religious freedom is a lesser right than the right to speech, guns, travel, etc. is becoming common. The increasingly more prevalent view is that religious freedom is right more akin to a person's right to choose whether to buy a blue car or a red car. The right exists, but its a personal preference and not more.

Posted by: ctd | Jun 24, 2013 5:24:40 PM

"a right on government's part to require those who cooperate to act just like the government"

This isn't actually taking place. If it did, there would be female priests and various other things. The concern is about line drawing. And, repeatedly, the lines involve things -- I've been down this road before -- that FURTHER religious liberty of individuals.

The true debate seems to be what exactly "religious liberty" entails, including conflict with individual religious liberty and organizational choices. Like what "equality" means in affirmative action debates, the true argument is not that one side doesn't respect "equality" (here religious liberty). It is that they understand it differently. That is my core problem with the op-ed. Merely saying we disagree w/o looking at the details, we can do so politely, just allows us to politely talk past each other.

I can't tell much about negative responses to an op-ed that is pretty visceral. The comments can be in part against the tone or the person, a person who is a strong voice on one side of the debate. I still don't see this increased threat to religious liberty. The Supreme Court -- as compared to decades ago -- gives religious institutions more discretion, including as to vouchers. Congress passed RFRA. There is no "blue car" RFRA law that I know of.

The op-ed clearly concerns various arguments found on this blog regarding SSM, the health care law and other issues. The threads repeatedly showed a divided view of what "religious liberty" meant. Those who disagreed with Prof. Garnett repeatedly showed respect for religious liberty in various respects. The debate was over what it entailed, e.g., how an individual uses health benefits to make religious decisions or if sexual orientation should be treated like race.

Anyway, others can add their .02 as I await to see if the USSC will help same sex couples make moral choices with deep religious significance on an equal basis for which supporters deeply care about because they respect the depth of such choices. More than a color of a car.

Posted by: Joe | Jun 25, 2013 1:04:31 AM

Joe, there are not constitutionally cognizable religious liberty interests when a person voluntarily enters into an employment contract with a private employer.

No state action. No violation of religious liberty.

Posted by: CLS | Jun 25, 2013 10:08:33 AM

The "cognizable religious liberty interests" arise in two ways.

(1) "Religious liberty" is not just a matter of "state action" any more than (as discussed on this blog) corporations do not threaten privacy rights (sic) because of lack of state action.

(2) The state is regulating the field. It is not purely "private." The public aspect includes certain things like minimum wage requirements, barriers to racial discrimination, etc., that affect "liberty," including religiously liberty. Thus, e.g., laws mandate certain religious accommodations at work places. I would think many here think such laws are important to protect individual religious liberty.

I and others have pointed this out already. I'm repeating myself here, perhaps inadvisedly, but it underlines my point. The ultimate debate here seems to be a major split over what "religious liberty" means. A minority might not respect it at all, but overall, that is not the case. As with affirmative action et. al., some of the shouting is a missing the point variety.

Posted by: Joe | Jun 25, 2013 12:49:01 PM

CLS wrote, “there are not constitutionally cognizable religious liberty interests when a person voluntarily enters into an employment contract with a private employer. No state action. No violation of religious liberty.”

There are several flaws in this reasoning.

The first is that employment is not voluntary; everyone has to be employed to support themselves. They may be self-employed or employed by others, but employment is not optional. Not everyone can or should be self-employed.

The second is that CLS probably meant that employment with any particular private employer is voluntary: “if you don’t like working for A, then work for B”. This assumes that A and B are competing for employees or that their employment practices are likely to be different. Worst is that it assumes there is a B whose hiring. In the real world, none of these assumptions are certain; sometimes there is only one employer with an opening, or only one paying a livable wage, or several employers all with undesirable work rules.

The third is that CLS might want to reply to the previous with the assertion that employees take their chances, and have some options (however undesirable) other than working for any particular private employer. However, the converse is true also. Any private employer entering into a regulated business has chosen to be subject to those regulations. If an employee must live with what they can get, or go elsewhere; the same applies to employers: accept the regulatory scheme or go elsewhere. Fair is fair.

State action doctrine might prevent an employee from suing an employer, but that does not mean that a private employer is unable to violate employee religious liberty, it only means employees are unable or unlikely to be able to vindicate their interests in court. That is what “no constitutionally cognizable interests” means; the courts cannot act. State action doctrine does not erase the employee’s religious liberty interests.

The State has the power and the authority to protect employee religious liberty interests by the enforcement of reasonable business regulations. These regulations must balance the legitimate interests of the employER against the legitimate interests of the employEE; such balancing does not interfere with religious liberty; it protects it. As far as State Action doctrine fails to protect the employees’ interests, the State has a legitimate if not compelling interest to act; protecting rights by regulation which the courts are unable to protect by litigation.

sean s.

Posted by: sean samis | Jun 25, 2013 3:28:17 PM