Winnifred Fallers Sullivan is arguably the premier scholar of law and religion in the United States. She brings to the field of law an unparalleled degree of sophistication and historical and anthropological knowledge. When she says that all religious freedom laws are rotten at the core, that claim has to be taken seriously.
The core of the problem, she writes, is the distorting effect of the demand that the state distinguish the religious from the nonreligious. The religious life of most Americans, “incredibly varied, creative, and entrepreneurial,” has become so disconnected from the law’s understanding of religion that the law should abandon the use of the category, “religion.”
As Sullivan notes, the Religious Freedom Restoration Act (RFRA)—the basis of the Burwell v. Hobby Lobby suit—was a reaction to the “notorious” Employment Division v. Smith decision, which limited the scope of the free exercise clause of the First Amendment. There are reasons for the notoriety and Smith was widely condemned. RFRA passed by overwhelming margins because most Americans thought that the tradition of specifically religious accommodation was valuable. Since Colonial times, Quakers have been exempted from oath-taking and military service. Catholics were permitted to use sacramental wine during Prohibition.
Our choices are clear: either we sometimes accommodate, or we never accommodate. The argument for the latter option relies precisely on the religious heterogeneity that Sullivan invokes. Thomas Hobbes thought that there could be no accommodation of “such diversity, as there is of private Consciences, which are but private opinions.”
All proposals for accommodation must answer Hobbes by showing how this diversity can be managed. Accommodation must take place under some description. That description must somehow pick out valid claims from among the universe of objections to legal regulation: if all such objections are honored, the law is nullified. Any such description will force together, under a single rubric, an enormous variety of human conduct. This is an inevitable effect of any possible legal category. Clifford Geertz observes that “the defining feature of legal process” is “the skeletonization of fact so as to narrow moral issues to the point where determinate rules can be employed to decide them.”
If not religion, then what? Many distinguished legal theorists and philosophers have endorsed the practice of accommodation, but have claimed that the proper object of the law’s solicitude is not religion, but something else. There are many candidates for the replacement position, including individual autonomy, a source of meaning inaccessible to other people, psychologically urgent needs (treating religion as analogous to a disability that needs accommodation), comprehensive views, deep and valuable human commitments, minority culture, and conscience. (See my book, Defending American Religious Neutrality.) Any of these categories will be homogenizing in just the way Sullivan complains about. The problem is not peculiar to “religion.”
None of the substitutes capture our settled intuitions about religious accommodation. Consider conscience. It focuses on those cases in which the agent feels impelled by a duty that she is capable of performing without depending on external contingencies. Quite a lot of religious activity doesn’t fit that description. One example. Lyng v. Northwest Indian Cemetery Protective Association was a widely criticized decision in which Native Americans objected to a proposed logging road that would pass through an ancient worship site sacred to their tribe. The logging road, the Court conceded, would “virtually destroy” the ability of the Native Americans “to practice their religion.” Nonetheless, the Court, evidently persuaded that exemptions had to be based on conscience, held that there was no constitutionally cognizable burden, because the logging road had “no tendency to coerce individuals into acting contrary to their religious beliefs.” This result was quickly reversed by Congress, which evidently was not in the grip of this particular theory.
Any single factor justification for singling out religion will be both overinclusive and underinclusive. Any invocation of any factor X as a justification will logically entail substituting X for religion as a basis for special treatment, making “religion” disappear as a category of analysis. This substitution will be unsatisfactory, as there will be settled intuitions about establishment and accommodation that it will be unable to account for. Any X will be an imperfect substitute for religion, but a theory of religious freedom that focuses on that X will not be able to say why religion, rather than X, should be the object of solicitude.
The moral case for moving beyond “religion” is perhaps best captured by Christopher Eisgruber and Lawrence Sager, who argue that “religion does not exhaust the commitments and passions that move human beings in deep and valuable ways.” That is obviously correct. But “deep” is not an administrable legal category. Not only is it too vague for that; it is not directly detectable. It is also not evident that recourse to it would ameliorate much actual unfairness in the world. The cases of manifest injustice that motivate prominent attacks on singling out “religion”—e.g. secular soup kitchens or secular equivalents of Sikh boys carrying kirpans—are hypothetical ones. Even if we know what we mean, we can’t know it when we see it.
We want to give licenses to “safe drivers,” but these are not directly detectible, so we use the somewhat overinclusive and underinclusive category of “those who have passed a driving test.” The justification for using “religion” is similar.
Religion is an adequate proxy for multiple goods, some of which are not ones that can directly be aimed at. “Religion” denotes salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and much else besides. Each of those goods is, at least, more likely to be salient in religious than in nonreligious contexts. The fact that there is so much contestation among religions as to which of these goods is most salient is itself a reason for the state to remain vague about this question. Because “religion”—or, at least, that subset of it that is likely to come before American courts—captures multiple goods, any substitute that aims at any one of them will be underinclusive.
The bewildering multiplicity connoted by “religion” is a chronic problem, and all of Sullivan’s books masterfully convey that multiplicity. But the question remains what to do about it. Hobbes understood the multiplicity as well. In order to cope with it, law must simplify.
In Burwell v. Hobby Lobby, the Court deemed the employer’s claim religious enough to warrant accommodation. Sullivan is right that some disputed whether a corporation could exercise religion. But even if (as the Court held) it could, the question remained whether there was a compelling interest in requiring that women receive contraception without copayment.
The Court assumed, without deciding, that the government’s interest was compelling. Doubtless some members of the five-judge majority disagreed with that, but Anthony Kennedy’s separate concurrence signaled pretty clearly that he thought so, and Ruth Ginsburg’s dissent, for four justices, was even clearer. That’s a majority of the Court.
The Court noted that the Obama administration had crafted a clever solution for religious nonprofits. Those companies’ insurers were required to provide contraception in separate policies, for free—something the insurers were happy to do, because even expensive contraception is cheaper than childbirth.
The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. This will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.
So what could have been a disaster for women’s equality suddenly became a victory. Justice Alito noted in his majority opinion that the burden of the required accommodation on the women involved “would be precisely zero.” They will get the same free contraception that the challenged rule would have provided. Religious objections such as Hobby Lobby’s will be accommodated if and only if that continues to be the case.
Under those circumstances, religious accommodation, even of their peculiar beliefs, does not seem too much to ask.