I recently had the opportunity to comment upon Professor Roger Trigg’s Equality, Freedom, & Religion (2012), courtesy of Professor Thomas Farr’s Religious Freedom Project at the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. The book perfectly captures an essential dynamic of the current struggle for religious freedom not only around the world, but playing out in Washington, D.C., right now over the administration’s insistence that religious institutions buy insurance coverage for their employees covering abortion-inducing drugs, contraception, and sterilization.

The book’s thesis is deceptively simple: demands for legal “equality,” “human rights,” and “non-discrimination” are regularly permitted to trump religious freedom. This dynamic is widespread, and is proceeding without reflection upon any of the following: humans’ intrinsic need for religion, national religio-cultural heritages, and religion’s role in provoking a taste for human equality in the first place.

Trigg’s proposal, with which I wholeheartedly agree—and which provides a very fruitful path for addressing the current fight between religious institutions and the President—has several aspects. First: cease assuming that every claim for equality or non-discrimination trumps any claim for religious freedom. Religious freedom is at least worthy of equal regard. This is true not only on the grounds of the privileged place religious freedom holds in both national and international documents. Rather, it is even possible that human beings are hard-wired to search out the answers to their questions about transcendent things. Trigg’s material on the cognitive science of religion is a valuable addition to the proposition that religious freedom is important, given our commonsense understanding about how a search for ultimate meaning must be closely bound up with human flourishing.

Second: acknowledge that there have existed particular religious claims or practices which are problematic regarding human equality or flourishing. One here might think of genital mutilation or polygamy, or the burning of widows on their husbands’ funeral pyres.

Third: note, however, that there are also times when claims for equality are nothing more than special interest pleading about “wants” dressed up in the language of needs or even the lofty language of “human rights.” (John Witte has observed the phenomenon of “creeping” human rights as well, in his “A Short History of Western Rights” in God’s Joust, God’s Justice: Law and Religion in the Western Tradition, 2006). One can see this phenomenon at work, for example, in an opinion letter of the Equal Employment Opportunity Commission in 2000 claiming, ultimately unsuccessfully, that access to prescription contraceptives is a matter of gender equality under the Civil Rights Act. An employer refusing contraception and sterilization insurance coverage to employees of both sexes is clearly not engaged in gender discrimination. Nor is women’s equal dignity and access to education, work, or other opportunities grounded in her employer’s providing her with cheaper contraception.

Fourth and finally: lawmakers must look past  the “equality versus religious freedom” standoff, and into the substantive question in each particular case: whether the equality claim or the religious freedom claim better responds to what human nature and human flourishing require in the particular instance. Professor Trigg commented during a public forum that he had hoped to discover some universal principle which would allow him to suggest a line for every such case, but one could not be found; rather, a “case by case” approach appears necessary.

With this, I agree. Equality or nondiscrimination laws will need to take precedence where, for example, a claimed religious practice requires physical harm to a class of persons. It will often be possible to reach a not terribly controversial conclusion in such cases about where human flourishing lies. It is wrong, on the other hand and for example, for the claim “birth-control insurance mandates mean equality for women” to trump religious freedom. The evidence for the relationship between large-scale, government-driven birth control programs and women’s health and flourishing is highly contested. Support for this claim regularly comes from voices and groups with prior commitments to abortion as the sine qua non of sexual equality—a commitment that immediately suggests a lack of respect for logic, science, the human body, and women’s health. Furthermore, proponents of “birth control equals sexual equality” have steadily refused to grapple with the psychological or economic arguments about contraception’s possible role in women’s immiseration, given its obvious effects upon the dating, marriage, and sexual marketplaces. Such proponents won’t even speak of the published evidence of the harmful side effects of some commonly used contraceptives.

In an environment like this, therefore, not only is the “contraception equals equality” slogan unpersuasive—and unworthy to defeat religious freedom under the banner of “women’s equality”—but there is a strong case to be made that the witness provided by religious institutions plays a very important social role, a role even the government can understand and respect. As mediating institutions, religious schools, hospitals, and social services can present the empirical evidence ignored by birth control ideologues. They can also adopt policies and model approaches to sex, dating, and marriage that not only reflect good science, but also touch the hearts and minds of women and men wounded by casual sex, sexually transmitted diseases, and abortion, or who have become increasingly cynical about the goods of marriage and children. Citizens don’t have to agree with Catholic teaching about contraception in order to be sorry to see Catholic institutions chased out of the marketplace, or prevented from giving witness to their ideals about sex, marriage, and parenting.

Trigg also does a marvelous job of capturing and debunking the usual argument that secular reasons should trump religious freedom because the former are always objective while the latter are subjective, not to mention irrational and mean. He also makes a plea for agreeing that institutions have religious consciences. This is particularly important today. (The opposite claim has been made in every radio interview in which I have recently participated). In fact, the existence and implications of institutional conscience are the subject of a forthcoming scholarly anthology from the Witherspoon Institute Task Force on Conscience Protection.

Finally, Professor Trigg executes his book in the model of a “gentleman and a scholar.” He is fluent in both U.S. and international religious freedom documents and disputes. He is fair in his treatment of the strongest claims made by those solicitous first for equality, as well as those solicitous first for religious freedom. In our current situation here in the United States, I cannot recommend this book highly enough.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she chairs the Task Force on Conscience Protection.

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