The Oldest Trick in the Book Reviewer’s Book: On Misreading Conscience and Its Enemies

The ad hominem attack is the oldest trick in the debater’s manual. When you can’t—or for whatever reason won’t—engage your opponent’s actual arguments, you try to discredit him personally. Perhaps you mock his accent, or point out that his pants are too short or that his socks don’t match. Or you try to smear him as a shady character or a hypocrite. Or you try to show that whatever he is saying, right or wrong, is ill-motivated—perhaps a matter of sheer political expediency. The shrewdest way to buttress an argument ad hominem is to create an appearance of engaging an opponent’s arguments while so distorting his view that a caricature takes the place of the original.

Lewis and Clark University law professor James Oleske deploys the last of these stratagems in a review of my book Conscience and Its Enemies: Confronting the Dogmas of Liberal Secularism. He suggests that I have quietly, and all too conveniently, changed my tune about whether we should provide conduct exemptions from general, neutral laws that burden religious activity. Professor Ira Lupu, whom Oleske thanks in a note for helping with the review, circulated a link to it, touting it as “rigorously argued.” But a review cannot be rigorously argued if it falsifies key positions of the author whose work is being reviewed.

The falsifications in Oleske’s review don’t tarry in making an appearance—they begin in a summary headnote: “Robert George, once a skeptic of religious-exemption rights, now demands their unprecedented expansion.” This alleged switch, Oleske suggests, was unacknowledged and opportunistic: I supposedly started supporting conduct exemptions only when—and because—my fellow conservatives’ consciences were burdened by issues surrounding same-sex marriage and the implementation of the contraceptive mandate of the Affordable Care Act.

But this little tale has the very considerable disadvantage of being demonstrably false. I made no switch. Oleske maintains the contrary illusion, across several pages of commentary on my work, only by conflating—egregiously and at every turn—the Constitution with political morality. I have always supported religious conduct exemptions as a matter of good and just policy while denying that the Constitution’s Free Exercise Clause requires or authorizes judges to mandate them. Oleske’s review ignores or overlooks this simple but key distinction in a remarkable series of omissions (sometimes of a single word) and tendentious descriptions of my work.

Before turning to those, though, let me offer a single citation that by itself devastates Oleske’s charge that I was once “an opponent of religious exemption rights.” In a 1998 essay in the Loyola of Los Angeles Law Review—an essay that Oleske cites—I addressed the case of Employment Division v. Smith, in which the Supreme Court declined to grant members of the Native American Church a conduct exemption from a general law banning peyote, a hallucinogen used in the Church’s rituals. After endorsing the Court’s ruling that the Free Exercise Clause did not entitle the plaintiffs to a judicially mandated exemption, I said this (emphasis added):

If an exemption is to be granted, the decision as to whether to grant it is left by the Constitution in the hands of the Oregon legislature, not the federal courts. [I did not address the question later raised in City of Boerne v. Flores of whether Congress could grant such an exemption. Against Boerne, I believe that it could.] Someone could believe—in fact I do believe—both that the Court was constitutionally correct in refusing to mandate a conduct exemption and that a just and prudent public policy would grant such an exemption. Here it is worth mentioning that after its victory in the Smith case, the State of Oregon acted legislatively to create a conduct exemption for those who ingest peyote as part of a bona fide religious ritual.

What is there about “in fact I do believe” that is hard to understand? Could I possibly have made my position in favor of exemptions any clearer?

So much for Oleske’s claim that I was once an opponent of religious exemptions.

The “Old Robert George” and the “New”?

To put it schematically, here is what Oleske’s “old Robert George” actually believed regarding political morality:

1. It is unjust for the state:

A. to impose laws intended or tailored to suppress religious conduct as such, or

B. to tolerate significant but incidental burdens on religious conduct, unless accommodating it would seriously undermine justice or the common good.

2. It is prudent to keep the exemptions-granting power in lawmakers’ hands rather than entrusting it to judges (by amending the Constitution to require exemptions).

And regarding the Constitution:

3. The Free Exercise Clause by itself authorizes courts exercising the power of judicial review to protect only the moral right expressed in 1a.

4. That Clause does not authorize courts to protect the right in 1b, by granting conduct exemptions from neutral, general laws that happen to burden religion (even significantly).

5. Still, nothing in the Constitution forbids legislators to grant such exemptions in an effort to promote our religious liberty (moral) rights more extensively.

And here is the thing to keep in mind in judging the credibility of Oleske’s review: All of these points I continue to hold today. I have discovered no reason to revise them. I have not changed my mind—or my tune. For better or worse, there is no “new Robert George” on this matter. In fact, I invite readers to go through Oleske’s review carefully—following the cited sources, where needed, to read the complete sentences or paragraphs from which he’s pulled my words to suggest inconsistency. You will not find an “old” me and a “new” me.

This much could suffice by way of reply. But it’s instructive to see how Oleske’s review misleads its readers. A few instances of its three most frequent delinquencies—selective critical omissions, misleading juxtapositions, and vagueness—will suffice.

Selective Omissions 

The “old Robert George,” Oleske writes,

was “doubtful” about the wisdom of supplementing the Free Exercise Clause with an “arrangement in which legislation that adversely affects anyone’s religious belief or practice is scrutinized by the judiciary to ensure that it is, from a public policy viewpoint, absolutely necessary.”

Reading this, you might think I would have staunchly opposed “arrangements” like the Religious Freedom Restoration Act, a federal statute granting religious conduct exemptions except where the (federal) law or regulation in question serves compelling interests by the least restrictive means.

But that is only because Oleske chooses to begin his quotation of my sentence one word too late. What I questioned in that sentence was the wisdom of “a constitutional” arrangement to require religious conduct exemptions from general laws. Indeed, the sentence appears in my discussion of whether we should (as I there wrote) “amend the Constitution” along these lines. The difference between doing that and passing something like RFRA, as I made clear in a discussion also cited by Oleske, is that constitutional measures would subject exemptions to “more or less free-wheeling judicial review.” Statutory arrangements, by contrast, subject judicial enforcement to congressional oversight and revision. Of course, this does not completely obviate legitimate concerns about a lack of sufficient legislative guidance for judges in applying the “compelling interest” and “least restrictive means” tests. But the costs and benefits of the options here are a matter of prudent practical judgment, not moral principle.

Again, from Oleske:

And while the old George identified the idea of judicially enforced exemption “rights” with the “mischievous” liberal theories of Professor Ronald Dworkin, and warned against an exemption regime administered by the “princes” of “law’s empire,” the new George treats RFRA rights as a “[k]ey element[] of our religious freedom.”

And again, there’s no contradiction. But to see that, you need the context that Oleske omits. As I had written:

The idea of courts exercising more or less free-wheeling judicial review as a check on legislative oppression both overestimates judicial wisdom and virtue and underestimates the capacity of the people and their elected representatives to act on the basis of principle, rather than prejudice or self-interest. No idea in contemporary constitutional theory is more mischievous, in my view, than Ronald Dworkin’s juxtaposition of courts, as “forums of principle” concerned with the protection of rights, with legislatures, as forums of policy charged to advance the general welfare—conceived in some utilitarian or other aggregative fashion—subject to the enforcement by judges of rights as trumps against “general utility”…. This idea teaches judges truly to think of themselves as “princes”… and teaches the people as a whole that democracy is merely about the clash of interests, rather than deliberation about justice and the common good… Courts are, to be sure, or should be, forums of legal principle; but legislatures are, or should be, forums of moral principle for the making of laws.

… It is a mistake … to suppose that a procedure which reserves high matters of moral principle to courts is more likely to generate correct decisions….

Moreover, I think it is time to acknowledge candidly that the reservation of such matters to the judiciary effectively vests vast power in the hands of an elite—indeed, an elite very likely to be responsive to elite interests and opinion when they are in conflict with popular opinion, as they often are today.

So on the broadest reading, what I called “mischievous” were: (a) lawmakers’ abdication of reasoning and deciding about moral rights and principles; (b) the exclusive relegation of such reasoning and deciding to judges; and (c) the consequent privileging of the legal elite’s opinions over the sovereign people’s judgments. We suffer none of these harms if Congress reasons about what morality requires by way of religious freedom protection and then enshrines its conclusions in statutes (like RFRA) whose judicial enforcement it can always revise or reverse. I’ve always preferred legislative to judicial control of conduct exemptions, but I do not suppose that Congress must exercise that control in issue-by-issue exemptions rather than general ones like RFRA, which remain subject to legislative control and adjustment over time. And obviously, support for any legislative protection of rights will always entail support for adjudication of claims pursuant to it.

Conversely, when Oleske writes that I “cast doubt on the advisability of judicial review … [b]ut welcome[]” the likelihood that the Court would “require exemptions for religious employers” objecting to the ACA’s contraceptive mandate, he points out no embarrassment. I welcomed the prospect that the Court would correctly enforce a statute (RFRA) that protected important moral rights (not judicially enforceable constitutional ones) and expressed the popular will. What I doubted and still doubt is the wisdom of creating exemptions by constitutional means that give judges, not lawmakers, the last word.

Misleading Juxtapositions

Oleske’s review also misleads by juxtaposing legal and moral concepts to suggest a tension in my work where none exists. For example:

George describes RFRA as “one way of capturing” the “broad presumption in favor of religious liberty” and the “heavy burden” that political authority must overcome to rebut the presumption (p. 125). But he treats the underlying presumption and burden, not RFRA itself, as defining the “substantive matter of what religious freedom demands from those who exercise the levers of state power” (p. 125) … A lot seems to have changed since 1998, when George wrote that “the restraints [the Free Exercise clause] places upon legislatures are modest”…

But what I regard as the “underlying presumption” to protect religion is moral, not constitutional. That moral limit on policy reflects the “substantive matter” of what I think “religious freedom” (as a moral right) “demands” from those wielding “state power” (not just American state power). So I haven’t at all contradicted my 1998 claim about the Free Exercise Clause.

Likewise, Oleske asks:

Is there any way to reconcile George’s past assertion that “[t]here is no free exercise ‘right’ to conduct exemptions” with his new insistence that those opposing the extension of such rights to commercial businesses are “enemies of conscience” (p. 156)?

The answer is that there is nothing to reconcile. The first claim is about the Constitution; the second, about political morality. But by pulling two statements from different contexts (an essay about constitutional law, and another on political morality) and laying them side-by-side, Oleske created the illusion of a tension.

So, pace Oleske, there is nothing “richly ironic” in the fact that Justice O’Connor and Professor Michael McConnell (citing Madison) relied on a duty-based conception of conscience rights that I also hold, “only to have their case for presumptive exemption rights dismissed by George.” For, as by now you can guess, I supported the duty-based conception of a moral right to follow one’s conscience (as consequent on the moral duty to obey one’s conscience), while denying that the Constitution—even as glossed by Madison as protecting the “sacred rights of conscience” against (direct) attack—required judicially mandated conduct exemptions from neutral laws.

On the other hand, when Oleske complains that I cite

… absolutely no authority for the novel proposition that legislatures might be obligated to apply the heretofore exclusively judicial standard of “strict scrutiny” to protect conscience rights …

he is asking me to cite legal sources to support my moral and prudential judgments (that conduct exemptions are morally obligatory where they don’t work serious social harms; and that it’s wisest to leave them within legislative control). Again, Oleske has created the illusion of inconsistency by juxtaposing my moral account of conscience rights with my rejection of a constitutional argument for their judicial protection.

Indeed, at one point this sort of move diverts readers’ attention from the otherwise obvious and decisive response to Oleske’s whole thesis. He admits that “it is entirely possible to support laws like RFRA without believing religious exemptions are constitutionally required”—in short, that my precise position, which I affirm on pages he cites and nowhere deny, is perfectly coherent. But he quickly pivots to saying that the “new George” couldn’t possibly think this, because I recently said that the Hobby Lobby decision protected “key elements” of our “religious liberty”—by which I meant, of course, key elements of our moral rights against coercion in religious matters. Oleske’s quick rejection of this reading of my view is a simple non sequitur.

Vagueness

Finally, Oleske often switches abruptly to a level of vagueness or generality where even a bit more precision would have undermined his whole argument.

First, he says that despite my “old” opposition to a constitutional right to exemptions, my book is “full of references to the ‘rights’ of conscience,” which “the new George” views as “having a constitutional dimension” (emphasis added).

Why not say outright that I view them as “constitutionally required”? Why use the looser phrase and then tuck the supposedly embarrassing passages of mine in a footnote? The fact is that they were, after all, perfectly benign: my point (citing Madison) that the Constitution protects “rights of conscience,” and my view that “standing up for conscience means defending the principles on which our nation was founded.” No one could take either to mean that I think the Bill of Rights specifically requires judicially mandated conduct exemptions. But that was papered over in Oleske’s vague statement that I see “a constitutional dimension” to conscience rights.

Second, Oleske selectively quotes a talk I recently gave at the University of Pennsylvania, to give the general impression that I’ve lately switched to opposing Smith. As he recounts it, I said that after Smith “‘everybody was on the same side’ in declaring the decision ‘an outrage’ because it ‘read religious freedom, free exercise of religion, out of the Constitution.’” If you’re tempted to accept the vague insinuation that I included myself in that consensus, just watch the cited video for a few minutes of context. What is clear is that I was not reporting my own opinion.

Indeed, just moments before the quoted sentence, I had expressly set aside “the debate” between O’Connor and Scalia in Smith over the “American constitutional law” question of “whether it is or should be up to the courts or the legislatures” to provide exemptions. I then said that even if we disagreed on that constitutional question, I thought we could all agree on the substantive (moral) standard of when conduct exemptions were appropriate, and I noted that nearly everyone did agree about that when RFRA was passed. I then returned to Smith to explain how that wide pro-RFRA coalition had emerged since, as I remarked, most of the people in the audience were too young to have any personal memory of that post-Smith firestorm. I told them how opposition to Smith had united “everyone” from “the Moral Majority” to “People for the American Way”; from “the Christian Coalition” to the ACLU. It was then that I spoke in the voice of that coalition, expressly quoting one prominent member of it, Fr. Richard John Neuhaus, to the effect that Smith had read religious freedom out of the Constitution.

I wasn’t expressing a view on the very constitutional question I had just said we would not try to settle that day—and on which I’ve been consistent throughout my career (from the days when, as it happens, I debated the matter with Fr. Neuhaus). But Oleske omitted all the specifics that would have shown that.

Third, Oleske writes that

just like the Becket Fund did in advocating for the owners of Hobby Lobby and other businesses, George invokes the language of constitutional rights when making the case for presumptive exemptions.

Here, again, it should tip us off that Oleske resorts to the vague “invoke[s] the language of constitutional rights [in defending] exemptions,” rather than saying outright that I invoke the Constitution. And here again we must follow the footnote, where Oleske cites my statement that “freedom of religion” is our “first freedom,” being listed first in the Bill of Rights. That clearly doesn’t suggest that I think the Bill of Rights requires judicially mandated conduct exemptions.

Not a Review—A Hit Piece

Truth be told, Oleske’s “review” of Conscience and Its Enemies is no review at all. It’s a discrediting project—a hit piece designed to suggest that I was against religious-exemption rights before I was for them and that I reversed course when it served my partisan purposes. But his argument trips on a confusion of moral and constitutional rights so elementary—at least for anyone who has been to law school, and especially for someone who teaches at one—that one labors to credit it as an honest mistake.

Of course, many liberals think judges should apply the Constitution in line with the community’s (or the best, or some combination of the community’s and the best) moral judgments—that there shouldn’t be a real gap between, say, our political-moral view of a just religious-liberty regime, and the regime we’re willing to impose in applying the First Amendment. Maybe Oleske has so internalized this view that he can’t help projecting it onto me.

Or perhaps he knows that I distinguish political morality from the Constitution as originally understood, but has his own political motives for obscuring this fact. Since that hypothesis would explain his review’s systematic distortions quite well—and since he has offered no argument on these moral and constitutional matters, to which I might offer a substantive reply—I suppose it’s fair to note here that Oleske and I have deep political differences. He is a liberal Democrat who worked for Tom Daschle when he was Senate Majority Leader, and later for President Obama. I’m on the other team. Perhaps this also explains why Oleske began his review with a string of quotations in which I criticize social liberalism, presenting them as if they made for a stand-alone indictment of my work. (He is writing for our fellow academics, most of whom he can count on to share his views rather than mine, especially on social issues.) But instead of challenging my positions and taking on my arguments, he opted for the old debater’s trick.

Unfortunately for him, it only works when you cover your tracks well enough not to get caught.