A recent addition to Oxford University Press’s Debating Ethics series ought to interest everyone. Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, primarily addresses the subjects of its title. But in the course of the argument, the authors expose most of the moral, political, and jurisprudential rifts that divide Americans today. The implications of this well-argued debate reach far beyond the latest round in the culture wars. They go to the foundations of the American experiment in ordered liberty. The title could have been shortened to Debating Liberty without misleading.
The book is arranged in debate format. Corvino makes his affirmative case that non-discrimination laws of general application should presumptively control cases of conscientious objection. Anderson and Girgis then argue that religious and moral conscience should receive robust protection. Each side then replies to the other. The authors agree in the abstract that religious liberty is worth protecting and that unjust discrimination should be prohibited. Nevertheless, their divisions run very deep. They disagree, in civil terms and with clarity, about most contemporary controversies concerning religious liberty and discrimination.
Corvino advocates equal rights for LGBT persons. On this, he pushes an open door. Yet he would also extend the law to recognize rights to constitute one’s sexual identity in places of public accommodation. On this front, he leaves the impression that sexual-identity rights are inimical to ordered liberty as such. In his account, law consists of public rules prohibiting and prescribing conduct. Liberty is only what’s left over once lawmakers have settled those rules (for now). And lawmakers must in justice coerce everyone to participate in projects of LGBT self-realization.
Meanwhile, Anderson and Girgis offer an argument for pluralism and the subsidiarity of government to civil society. Their proposals promise to secure many liberties in addition to religious liberty. They argue for what they call an “ecosystem of liberties,” in which civil rights are secured so that individuals are free to cooperate in associations, “political and voluntary; civic, religious, and otherwise.”
Thus, this book is not meant only for Christian business owners and same-sex couples, nuns and women using contraceptives. This book ought to interest anyone who cares about the future of ordered liberty.
Because the book implicates so many political and jurisprudential issues, I use two essays to review it. In today’s essay, I compare and contrast the two visions of liberty on offer. In tomorrow’s essay, I will discuss the two conceptions of law revealed in the book and what they mean for the future of ordered liberty.
Liberty Recast as Privilege
Corvino adroitly recasts religious liberty claims as assertions of religious privilege, which offend his preferred principles of equality. This argument entails resetting the historic baseline presumption in favor of religious liberty to a presumption in favor of generally applicable laws that burden religious exercise. He quotes a dictum of Justice Scalia from a case involving public entitlements, that “when a state makes a public benefit available, that benefit becomes part of the baseline against which burdens on religion are measured,” and adds that those benefits must be distributed equally to religious and non-religious persons. Fine. But for Corvino, all rights seem to be benefits and privileges conferred by the government.
Corvino worries that the scope of religion is stretching in unprecedented ways, expanding its reach into private lives. Religion leaves “scarcely any facet of life untouched” and thus threatens the general applicability of laws. As evidence for this claim, he points to the growing number of conflicts between religious liberty and public law. It seems not to have occurred to him that religions have always governed every aspect of the lives of the faithful, and that it is government that is the intruder. Government today arrogates to itself unprecedented powers, and, as Anderson and Girgis observe, it “grows beyond the size and scope envisioned by the founders.”
Corvino proposes “three paths” to promote “both equality and liberty,” but all of them involve coercing someone’s speech, expressive conduct, or both. In their response, Anderson and Girgis point toward the “fixed star in our constitutional constellation” that Justice Jackson famously identified many decades ago, which forbids officials to coerce “citizens to confess by word or act” ideas they believe false. That star is erased from Corvino’s depiction of the firmament. It is up to John Corvino and his ideological allies to determine what ideas and expressions are out of bounds.
Corvino tries to mitigate his illiberality by insisting that, if he had discretion to enforce “the law” and to assign the label “bigot,” he would use those powers only to silence those who are truly “unworthy of dialogue,” a group that includes those who invoke Hebrew scriptures. Corvino would not enforce nondiscrimination laws against some, such as Baronelle Stutzman, who go out of their way to avoid causing offense to same-sex customers but cannot in conscience participate in celebrating what they understand to be a falsehood. He urges his fellow sexual-identity rights activists to dial back their use of “bigot” and other incendiary terms, which he recognizes are used to end dialogue.
Nevertheless, Corvino thinks that conscientious people have no cause to complain when they are driven out of well-earned positions in business and public institutions. Nor does he perceive any injustice in using the coercive force of law to deprive conscientious business owners of their businesses. His commitment to dialogue does not extend to cultural or legal toleration.
For and Against Progressive Puritanism
For this and other reasons, Anderson and Girgis view Corvino’s “progressive Puritanism” as a rejection of liberal principles. They observe that American adults “are free to enter or refuse almost any relationship—personal, civic, commercial, romantic—without legal interference.” Nondiscrimination laws justly limit that freedom when economic and political power are used to deprive classes of persons access to basic human goods, as Jim Crow segregation did in the American South in the middle of the twentieth century. But there is a “difference in kind between the humiliation of being denied a seat at the table of public life and the pain of sitting by people who oppose decisions you prize.” Moral disagreement is a fact of life in a liberal society.
Anderson and Girgis argue for the preservation of pluralism both on principled grounds and for pragmatic reasons. They offer as one model the post-Roe settlement on abortion, in which the right to choose an abortion exists alongside individual and institutional rights to choose not to facilitate or participate in one. Similarly, they argue, American law can extend recognition to same-sex relationships as civil marriages while securing “a categorical accommodation” for those who cannot participate in celebrating such relationships for reasons of conscience.
By contrast, Corvino makes no effort to hide his totalizing ambitions for LGBT entitlements. He is clearly capable of loading his rhetorical dice in subtle ways. For example, he describes religious convictions in terms of feelings and his own judgments as grounded in reason. Yet he is not subtle in his opposition to liberalism. In a telling passage, he proposes to eliminate constitutional protections for both religious actions and expressive conduct.
Nor is Corvino’s antipathy to constitutional liberties the product of a simplistic understanding of liberty. He offers some potentially powerful critiques of liberty of conscience. For example, he replies to an argument by Anderson and Girgis that moral and religious integrity is a basic human good, and therefore provides a reason (though not always a conclusive reason) for accommodating conscience, even when conscience is badly formed. Corvino argues that when one’s moral convictions are false and acting on them harms others, acting with integrity not only has no value to the person harmed but also no value to the person acting. Integrity is not a reason for acting when conscience is badly defective.
Corvino’s claim would suggest that law protects badly formed conscience only for reasons of prudence. This could be a fruitful branch of argument, but Corvino immediately saws it off. Conceding for the sake of argument that integrity always has some value, Corvino contends that law and society still have no principled reason to refrain from burdening conscience. He insists on a separation between the conscientious objector’s reasons for acting and the reasons that “the rest of us” have for accommodating her. “Some views are truly bad enough that they deserve repudiation rather than accommodation.”
Corvino is unqualifiedly confident in the rightness of his own judgments about which views qualify for accommodation and which for repudiation. Despite this confidence, he is never entirely clear on what harm a same-sex couple suffers when the state accommodates conscience, and at times he argues against himself. He tells conscientious bakers that “the cakes manifest their customers’ sexual orientation.” Yet just a few pages later he explains away the bakers’ concerns about moral complicity by asserting, “Marriage happens with or without the cake.” He shows similar confusion concerning distinctions between status and conduct, especially when grounded in realities apart from positive law.
Religious Liberty as the Starting Point of Pluralism
Anderson and Girgis would protect moral and religious conscience on the ground that religion and moral integrity are basic goods, reasons for action in their own right. Because those goods can be realized only if freely chosen, the state has a duty not to attack or coerce their exercise directly, and has strong reasons to avoid indirect burdens on them. Religion and integrity are more fragile than other human goods, though equally basic, and so require stronger legal protection.
This is the starting point for ordered liberty. For, as they put it, “when cultures accept these limits on the state, they come to see its jurisdiction—the field of activities it can justly coerce—as limited in principle.” Religious liberty “gave rise to the idea of civil society as something separate from the state that matters in itself and limits the law’s claims to power.” The state is bound to respect a higher law. As a result, “the state has no natural general mandate to coerce us.”
Following that recognition, societies can also realize the instrumental value of religion and conscience, the space for people to constitute their communities freely through “commerce, custom, and culture.” From religious liberty flow legal protections for the “character-forming associations of civil-society . . . and for other civil rights and liberties.” Religious liberty makes possible, in theory and practice, “private associations and self-determination, the rights and liberties on which both depend, and the social and economic vitality that flows from all of these.” Limited government and the liberties of private ordering begin with religious liberty and end, in Anderson’s and Girgis’ vision, with a free and flourishing society.