Collateral Damage

Religious liberty is in danger; protections that were, not long ago, taken for granted, is now at risk of being swept away by a rising tide of hostility to the claims of believers not only to have a right to worship as they see fit, but also to live their lives in accordance with the teachings of their faiths. And this is a cause for great regret for those who value freedom, whether or not they actually subscribe to the religious doctrines which conflict with the ever-expanding regulations imposed by the state. This is the lament of Douglas Laycock, who, in a great article called “Religious Liberty and the Culture Wars,” seeks to explain this phenomenon and to push back against it.

Prof. Laycock argues that the current wave of hostility to religious liberty in the United States is the result of “culture wars” fought largely over matters of sexual morality ― access to contraception, abortion, and gay rights, including especially same-sex marriage. This is similar to what happened in France, where the Church’s prolonged hostility not only to the excesses but to the very core of the Revolution of 1789 produced a climate of hostility to religion which, in turn led to a very narrow conception of religious freedom. In America, the revolution to which (most) religious authorities have been unflinchingly hostile is the sexual revolution that started in the 1960s (and of which the gay rights movement is a development):

conservative churches in this country have persistently been on the losing side of this Revolution. They have opposed not just the Sexual Revolution’s excesses; they have opposed its core. Each of the remaining sexual issues — abortion, same-sex marriage, contraception, sterilization, emergency contraception — has the same fundamental structure: what one side views as a grave evil, the other side views as a fundamental human right. For tens of millions of Americans, conservative churches have made themselves the enemy of liberty. (29)

Others read at least some of these issues as matters of equality and discrimination, rather than liberty, but the bottom line is the same. Religion becomes the enemy, a danger, a sinister force that seeks to take away the most cherished rights of vulnerable citizens.

But on the other side too the claims are similar. For churches and for believers, the right to act on their religious views and duties are fundamental. For the pro-life movement in particular, the right to abortion (and some forms of contraception) is also an attack on the basic rights of the most vulnerable.

So both sides try to force the other to behave in ways they regard as morally right. On one side, there are “contraception mandates” and requirements that people who, for religious reasons, object to same-sex marriage, nevertheless provide their services for same-sex wedding ceremonies; on the other, attempts to ban abortion and same-sex marriage.

The conservative religious side is, to a greater or lesser extent, the loser in all of these fights. The danger is that not only its over-reaching claims, but all those of religious believers will be rejected. “Many disputes over the free exercise of religion involve unusual practices of small religions, unusual laws of little importance, or both” (32), but the arguments being developed to oppose religious claims on matters of sexual morality will make no distinctions. The weapons being forged for the culture wars are of such power that they will not allow the winners to take any prisoners even if they were inclined to do so. The conservative religious opponents of the sexual revolution will lose the war, but the liberty of all believers may well disappear as collateral damage.

Prof. Laycock urges both sides to stand down. They should defend their own freedom ― the freedom of same-sex couples to marry, the freedom of churches not to fund contraception ― but not require the other side to adopt their own standards of behaviour. Religious conservatives should not seek to ban same-sex marriage (just as they no longer seek, for example, to ban contraception); the secular side should not force service providers or professionals to do things they disapprove of, except in cases of local monopoly. In other words, live and let live. “We could still create a society in which both sides can live their own values, if we care enough about liberty to protect it for both sides” (41).

It will come as no surprise to those who have read my previous posts on the subject of law and religion that I share prof. Laycock’s worries and his normative conclusion. The attempts to force those who wish to live differently from us to live according to our standards rather than their own are a great danger to personal freedom. If they succeed in the religious realm, why not in some other? It is not only the religious or those whose views conflict with those of the religious who should be concerned here.

However, I wonder if prof. Laycock’s explanation for the recent hostility to religious freedom is not too narrow. The culture wars over sexual morality which he thinks to be cause of this hostility are mostly confined to the United States (because elsewhere religious conservatives are nowhere near powerful enough to make it a fight). The attacks on religious freedom are not. Prof. Laycock himself cites an op-ed by Doug Saunders in The Globe and Mail (which I have criticized here). In Québec, the freedoms of religious minorities are under threat from self-proclaimed secularists now governing the province, although the rearguard of religious conservatives remains free to conduct public prayers at town council meetings, and a crucifix still watches over the legislature’s deliberations. And in Europe too, freedom of religion is being curtailed, what with headscarf and burqa bans in France or the minaret ban in Switzerland. (Prof. Laycock links the French bans to the anti-religious climate which he traces to the Catholic church’s anti-revolutionary stance, but I don’t think it can explain the escalation of restrictions on religion in the last decade.)

And yet, “culture wars” are not a bad explanation for what is going on. Both in Québec and in Europe, hostility to religious liberty has a lot to do with a secular majority’s reluctance to accept within its midst religious minorities whose habits and appearance are different from its own. I’m not sure if something like that could be a fair description of what goes on in the United States. The problems prof. Laycock describes have nothing to do with immigration, though perhaps the increasing distance between the more-or-less-secular and the religious conservative parts of the American society is creating a somewhat similar dynamic.

Of course, it may be that the growth of the opposition to religious claims in the United States is quite unrelated to the same process elsewhere, and the two just happen to coincide. At most, the two movements exchange ideas and arguments, but each applies them for its own peculiar purposes. If so, prof. Laycock’s explanation may well be correct so far as the United States are concerned. But in today’s globalized and inter-connected world that would be somewhat surprising.

Be that as it may, prof. Laycock’s call to live and let live should be heeded everywhere, regardless of the precise local causes of anti-religious sentiment. Freedom is too important to let it be the victim of collateral damage of transient controversies. And though many people on both sides in debates about religious liberty regard themselves as really forcing their opponents to be genuinely free, they should realize that, not only will they not make them free by oppressing them, but they risk also losing their own liberty in the process.

Freedom of Corporate Religion?

A number of cases now working their way through the US court system and attracting a great deal of commentary, some of which Josh Blackman summarizes and/or links to in this post, ask an interesting question: can a corporation challenge a requirement that it provide its employees with health insurance covering, among a great many other things, contraception, on the basis that this infringes its (owners’) religious freedom (the so-called “contraception mandate”)? A corporation, of course, does not worship, or believe anything. So can it be entitled to exercise a religious right? I am not qualified to answer this question as a matter of US law, but I thought I’d say a few words about how it might play out in Canada.

Could a Canadian corporation challenge a law on the basis that it infringed religious freedom? The answer seems to be sometimes yes, and sometimes maybe. The foundational case on freedom of religion, and indeed one of very the first Charter cases, was  R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. As the style of clause makes clear, the respondent was a corporation. It was accused of operating a store on a Sunday, contrary to the Lord’s Day Act, R.S.C. 1970, c. L‑13. It claimed that the statute was contrary to the Charter’s guarantee of freedom of religion because it enforced a Christian religious observance. And sure enough, the government said that that didn’t matter, because as a corporation, Big M could not possibly have a right to freedom of religion. Justice Dickson (as he then was) rejected this argument:

Any accused, whether corporate or individual, may defend a criminal charge by arguing that the law under which the charge is brought is constitutionally invalid. Big M is urging that the law under which it has been charged is inconsistent with s. 2(a) of the Charter and by reason of s. 52 of the Constitution Act, 1982, it is of no force or effect.

The argument that the respondent, by reason of being a corporation, is incapable of holding religious belief and therefore incapable of claiming rights under s. 2(a) of the Charter, confuses the nature of this appeal. A law which itself infringes religious freedom is, by that reason alone, inconsistent with s. 2(a) of the Charter and it matters not whether the accused is a Christian, Jew, Muslim, Hindu, Buddhist, atheist, agnostic or whether an individual or a corporation. It is the nature of the law, not the status of the accused, that is in issue. (Emphasis mine)

But there is a very important qualification:

 As the respondent submits, if the legislation under review had a secular purpose and the accused was claiming that it interfered with his religious freedom, the status of the accused and the nature of his belief might be relevant: it is one thing to claim that the legislation is itself unconstitutional, it is quite another to claim a “constitutional exemption” from otherwise valid legislation, which offends one’s religious tenets.

This possible exception―possible, because Justice Dickson is not deciding that the status of the claimant is relevant to, much less dispositive of, exemption claims―might actually be much more important than the rule in Big M.  That case was probably unique; Canada is not about to re-enact the Lord’s Day Act, or any other law enforcing or prohibiting religious observances. Claims for religious exemptions, by contrast, have arisen in the last few years, and will continue to arise.

One such case was Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, in which Hutterites tried to obtain an exemption from the requirement that their drivers’ licences bear their pictures, which contradicted their interpretation of the Second Commandment. Unfortunately, it is not entirely clear what sort of entity the colony is, legally speaking―is it a corporation or something else? I am guessing though that it is a corporation of some sort, since it sued in its own name. Indeed, it is remarkable enough that no individual Hutterite was a party in the case, considering that it is individuals who applied for drivers’ licences and were required to submit to picture-taking contrary to their faith. Still, that was not at all an issue in the case. Perhaps this is simply because a violation individuals’ religious freedom was so obvious (though the majority held that it was justified under s. 1 of the Charter). Perhaps the Colony had a sort of implicit public interest standing, if such a thing can exist. Perhaps the key is that even if the Colony is, legally, a corporation, it is an obviously religious one, in a way that most ordinary commercial corporations are not. The most we can say with confidence is that this case does not confirm Justice Dickson’s caveat about corporations seeking religious exemptions; but nor does it conclusively put that caveat to rest.

So much for the law, as best I understand it. I will try to have some more theoretical comments on the issue in the coming days.

The Good of Religion

Yesterday I attended a discussion with Robert P. George, the Professor of Jurisprudence at Princeton (which of course does not have a law school!) and one of the leading religious conservative public intellectuals in the United States. The topic was “Religious Liberty and the Human Good.” David Blankenhorn – perhaps best known recently as a failed would-be expert in the trial on the constitutionality of Proposition 8, which attempted to change California’s constitution to prohibit same-sex marriage – was the host. He is clearly smarting from the Prop 8 experience, and took some shots at President Obama along the way, but it was quite interesting nonetheless, so here’s a recap.

According to prof. George, freedom of religion is valuable for two reasons.

The less important one is that it allows the existence of organizations that provide all sorts of important social services and are authority structures that act as a buffer between the state and the individual, so that the state does not become the only source of authority. Religious organizations help prevent tyranny, which the judiciary alone is not able to do. For my part, I do not find this persuasive. There are many alternative power centres (the press and NGOs for example) and networks (online social networks for example). Religious structures are, at most, some of many, and perhaps not the best candidates as oppression-resisters (the Catholic church, for example, has a long record of collaboration with temporal powers, as well as one of resistance to them). And of course religious structures can be oppressive in their own right – though they need not be.

The more important reason why freedom of religion is important is that it serves what prof. George called “the good of religion” – that is the human ability to ask, and answer for oneself, fundamental questions about human nature, life, mortality, free will, etc. A life spent without thinking about these questions is impoverished; and it is important to have one’s own answers to them, and to live with integrity in light of the answers one comes up with. Even if these answers are not “religious” as the term is usually understood – even if they are atheistic for instance – they are worthy of protection, because it is the questioning that constitutes “the good of religion.” That seems exactly right to me, whether or not “the good of religion” is the best name for what prof. George is getting at.

A related term (which I might be more inclined to use instead) is “conscience”. Prof. George defines it as “one’s last best judgment informed by reason, belief, or faith as to what one is required to do or not to do.” Referring to Cardinal Newman’s take on the subject, he insists that it is not “in the business of permissions.”

Mr. Blakenhorn brought up the subject of “reason” in religious belief. He is mad at Judge Vaughn Walker, who presided over the trial in the Prop. 8 case, Perry v. Schwarzenegger, for finding that religious motivation could not constitute a “rational basis” for prohibiting same-sex marriage.  Prof. George agrees that religion has an element of reason – we can understand someone acting on his answers to “ultimate questions,” for instance – and argues that Judge Walker has an impoverished, “fideistic” view of religion as consisting only of faith, without a rational element. But it seems to me that the important question here, which he did not get into at all, is whether religious reason can count as a valid one for public law purposes. Even if we agree – as I do – that a person acting on religious (or conscientious) beliefs is not acting irrationally, it is a different matter whether the state (and thus voters) are entitled to act on such reasons – and still a different matter whether they are entitled to act on such reasons only – in making public policy. This is the Rawlsian public reason conundrum, which I cannot possibly get into here (and don’t have firm views about anyway).

Finally, prof. George spoke about religious exemptions – cases where a law that is generally not meant to punish or impede religious belief or practice has that effect on some believers. He thinks that these believers should be exempted from the application of such laws, unless the state can show that not granting the exemption is the least restrictive means of furthering a compelling state objective. There is, however, an interesting question about who – courts or legislatures – should be deciding whether any given case comes satisfies these criteria. That is roughly what I argued in my LL.M. thesis, which was about religious exemptions, so I am glad to have my thoughts confirmed. Now why don’t the law reviews to which I submitted the paper seem interested to publish it?