Mark Twain once stated “it is the difference of opinion that makes horse races.” Professor Norman Tebbe has published a new book that focuses on one of the most divisive contemporary clashes of constitutional opinion: egalitarian laws protecting LGBT citizens and women’s reproductive freedom versus religious traditionalists asserting rights to accommodation and dissent. It is a useful book that should serve as a valuable resource to lawyers, politicians, and judges who, faced with intractable battles between competing values, seek principled ways to achieve acceptable constitutional results.
The author’s main proposition is that the “method of social coherence” should be employed to resolve these disputes. Inspired by the philosopher, John Rawls, the method advocates a search for “reflective equilibrium,” making “it possible to manage areas of law that involve multiple values.”
The method entails a three-part deliberation. First, a person recognizes a secure set of convictions on justice (i.e., sexual harassment is unjust).
Second, a person identifies the principles that support these convictions. This search for principles “promotes examination, [requiring] people to evaluate their judgments and identify which aspects or dimensions are most important or compelling.”
Third, a person critically examines the lack of fit between the principles and their own convictions on justice. The author notes that the “objective is not only to describe what [a person] actually believes…but also to discover what [a person] should believe.”
The author then identifies four principles that “should guide our thinking about conflicts between religious freedom and equality law.”
The first principle is “avoiding harm to others.” When government “accommodates religion by granting an exemption from general law,” resulting costs are typically transferred to the government or the public at large. The author observes that, while this transfer “presents no special constitutional difficulty,” it does work a “basic injustice” when government shifts the costs and burdens of accommodating the religion from one private citizen to another.
The second principle is ensuring “fairness to others.” In Texas Monthly, Inc. v. Bullock (1989), the Supreme Court voided a Texas law that exempted religious publications from sales taxes. The accommodation was deemed to be unfair because it forced secular publications to bear the costs of accommodating religious ones.
The third principle is “freedom of association,” wherein religious and secular values groups are protected in their formation of relationships with each other, even when their actions clash with equality laws. The author notes that forming “intimate relationships should be protected” because it is “basic to personhood, to being fully human.” For example, religious and secular groups can discriminate in choosing their leaders. Section 702 of the Civil Rights Act of 1964 permits religious organizations to discriminate in favor of co-religionists. Moreover, houses of worship can deny membership on virtually any ground.
The fourth principle is “government non-endorsement,” which ensures that: (a) all “citizens stand as equals before their government”; and (b) there are “no second-class citizens or subordinated castes within the polity.” The author states this “principle holds that when the government lends its imprimatur to a particular religion,” it impairs the citizenship of others. As such, government officials, speaking as officials, are prohibited from “telegraphing messages that violate guarantees of full and equal citizenship rooted in equal protection, non-endorsement of religion, freedom of speech, and due process.”
The book applies these principles to two recent Supreme Court cases that featured clashes between egalitarian protections and government accommodation of religious beliefs.
In Burwell v. Hobby Lobby Stores, Inc. (2014), the Supreme Court ruled that a business corporation could “refuse to provide contraception coverage for its employees, as required under the Affordable Care Act regulations, [based on] the religious objections of its owners and managers.”
The author argues that the Hobby Lobby religious accommodation unfairly shifted the cost of contraception coverage from the company to its employees and their female dependents. The “harm to others” was palpable, he notes, because “scientific and medical evidence” shows that providing “contraceptives at no cost to the user” both increases contraceptive use and reduces the number of unintended pregnancies and abortions. He also argues that the religious accommodation violated a rule of public morality because the “costs of accommodating the faith of some citizens should not be imposed on citizens of other faiths or no faith.”
In Obergefell v. Hodges (2015), the Supreme Court struck down marriage exclusion for same-sex couples. The author contends that, implicitly, the court ruled “the only conceivable reasons” for marriage exclusion are “religious and moral,” and such reasons are “insufficient to limit an important right.” Accommodation to religion is thus untenable, because “excluding same sex couples from civil marriage expresse[s] government disapproval,” which impermissibly “serve[s] to subordinate members of these couples.”
The book also applies the core principles to four areas that will, in the years to come, pit religious freedom against egalitarianism: public accommodations, employment discrimination, public officials, and government subsidy and support.
Of these four, public accommodations protection for LGBT citizens receives the most prominent treatment in the book. Civil rights law posits that a business open to the public cannot refuse to serve people on protected grounds. While acknowledging that LGBT citizens are, as yet, protected in only half of the states, the author argues that the method of social coherence “points toward limited religion exemptions” because “allowing economic actors to exclude people in systematic ways can lead to inequality of economic opportunity” and subjugate LGBT citizens politically and socially.
In this divisive time, the tension between religious freedom and equality law is high. Consensus will be elusive, particularly at the federal level. But there is an alternative to poisonous rancor. Refreshingly, this book demonstrates that “the power of [reasoned] arguments can provide a stable [and] defensible foundation for the future of both free exercise and antidiscrimination law.”