In yesterday’s essay, I began a review of Debating Religious Liberty and Discrimination by examining the implications of the authors’ debate for ordered liberty. Today I will examine the implications for law, especially common and private law, without which ordered liberty desists.
Ignoring Fundamental Liberties
In making his case for the triumph of generally applicable laws over religious liberty, co-author John Corvino makes heavy use of the US Supreme Court’s 1879 decision in Reynolds v. United States. In that case, the Court upheld a bigamy conviction against a professing Mormon in the Utah territory. Corvino lifts a dictum out of the Court’s opinion to assert that religious belief but not religious practice is exempt from generally applicable laws.
Despite the weight Corvino places on the Reynolds dictum, he omits almost all of the law in the Court’s opinion. The case was decided at a time when judges and legislators still understood their first duty to be to declare the existing, unwritten law and to assess novel enactments and claims in light of fundamental rights and duties arising out of custom, natural law, and private ordering. An essential premise of the reasoning in Reynolds was the common law of marriage, which takes marriage according to its nature as the union of one man and one woman.
The Court explained that marriage is the pre-political institution that produces new generations of people and thus sustains society. Far from being incompatible, man-woman monogamy and religious exercise are both essential to ordered liberty. Law is concerned with marriage because, the Court explained, “Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal.” For these reasons, “At common law, the second marriage was always void, and from the earliest history of England, polygamy has been treated as an offence against society.”
It is not difficult to see why Corvino ignores all this. The common law that the Court invoked in Reynolds does not support the idea of “same-sex marriage,” a concept that Corvino requires for the success of his argument. It does recognize the ancient right of religious liberty and the rights and duties of natural marriage and biological parentage as mutually reinforcing and foundational laws, as the Reynolds Court observed.
Corvino is not content to brush aside the fundamental rights and duties of the church, marriage, and natural parentage. His seems eager to dispense with all fundamental, pre-political rights. He would have the law “give” to conservatives some “freedom to express their views,” even as it “guarantees access to same-sex couples” to make use of others’ resources and talents. In place of the basic liberties of property ownership, he writes of narrow “exceptions” to nondiscrimination laws, which might be “allowed” on certain conditions (i.e., those that he finds persuasive). And he denies that using the power of the state to destroy the hard-earned assets of a conscientious business owner amounts to coercion; it is simply to withdraw “the business benefits of incorporation.” Corvino’s account has no place for pre-political rights, only concessions of privilege from the ruling sovereign. The exception seems to be sexual-identity claims, which he suggests are requirements of justice.
A fundamental right that goes entirely unmentioned in the book is the right to trial by jury, that most ancient common-law guarantee of ordered liberty. This is a striking omission from Corvino’s account, for he pours out a deluge of hypotheticals (Corvino’s interlocutors in the book call it a “parade of horribles”) designed to force religious liberty proponents to take ownership of some unjust, religiously motivated action, or to exclude from protection some patently meritorious claim of conscience. These fictions are pulled down from the realm of metaphysical abstraction. But even if they were real cases, few of them would trouble the law, as they involve questions within the province of a jury. Corvino betrays no knowledge that such an institution exists, and so supposes that any defense of religious liberty must have a one-size-fits-all answer to all of the fanciful yarns a philosopher can spin.
For example, he argues that a conscientious business owner’s refusal to contribute to a same-sex wedding is discrimination because of the customers’ sexual orientation, just as “it would be religious discrimination if [bakers] said that they would sell cakes to Jews, but not for bar mitzvahs, or that they would sell cakes to Catholics, but not for First Holy Communion.” That’s not a generalization anyone would make who understands the difference between questions of law and questions of fact. The owner’s actual motivations and intentions, whether her stated reasons are pretextual, and (except where reasons are ruled out as a matter of law by established precedent or positive enactment) whether her explanation is reasonable under the circumstances, are all questions for a jury to decide.
Corvino asserts that the question whether a religious group is substantially burdened by a law “requires judicial inquiry.” But that too is a fact question for a jury to resolve. Different cases present different facts. Different juries reach different judgments. And the nuances of real life often frustrate the hopes of philosophers who are eager to steamroll over reasoned judgments to achieve their desired equality of result, an equality that Corvino would nevertheless deny to conscientious Christians, Muslims, and Orthodox Jews.
Perhaps it is Corvino’s impoverished understanding of law that accounts for the misleading statements and obvious falsehoods that permeate his essays. For example, he asserts that “the law requires that businesses open to the public must be open to the entire public.” Unless he is deliberately fibbing, he must be unaware that the public’s license to enter a non-monopoly place of public accommodation is a license, extended to customers by the owner or operator for its own purposes and on terms set by the owner.
Referring to the former Chief Justice of Alabama, Corvino writes that United States Senate candidate Roy Moore was removed from judicial office for “ordering the state’s probate judges to ignore the Supreme Court’s same-sex marriage decision [in Obergefell v. Hodges].” That false statement presupposes that courts have power over persons not appearing before them. Alabama was not a party in the Obergefell case, and the US Supreme Court’s orders were not issued to Alabama officials. Moore ordered the probate judges to wait until the Alabama Supreme Court had adjudicated the implications of Obergefell for Alabama’s laws. Far from ordering the judges to flout or ignore Obergefell, Moore stated in that order, “I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell on the existing orders of the Alabama Supreme Court.” Corvino seems to have restated uncritically a calumny promoted by Moore’s political opponents.
Corvino writes that the Supreme Court’s decision in Burwell v. Hobby Lobby, which affirmed the conscience rights of religious owners of closely held businesses, was “the first case ever to treat a for-profit corporation as a person capable of practicing religion.” This is technically true but misleading in respect of what matters. Most groups and religious assemblies that prevail in legal disputes over religious liberty appear as incorporated entities. Many of them carry on activities in the marketplace, either directly or through auxiliaries, and those activities are entitled to just as much protection as activities of worship. Whether they are incorporated as for-profit or non-profit entities is simply irrelevant to their personal status under the law.
Corvino asserts that the “general rule, at least until recently, was that the government may restrict religious practices as long as doing so is an incidental effect of an otherwise neutral, generally applicable law.” That is more false than true. The foundational place of Christian teachings in the common law predates “neutral” laws and anti-establishment in the states by several centuries. Until recent decades, all of the great and influential common law jurists made quite clear that the common law is Christian, and that the fully determined rights and duties of natural law and Hebrew and Christian revelation are part of it. The secularization of law, not the accommodation of Christian convictions, is a recent innovation. And the Supreme Court’s incorporation of the Establishment Clause against the states is even more recent.
Corvino’s statements about “law” reveal an impoverished understanding of common law and private law, and a corresponding ignorance of the limits of public law. Where the fundamental law declares and secures pre-political rights and liberties such as the freedom to do business on private property, Corvino perceives narrow privileges. Where the law enforces narrow, discrete duties not to discriminate with a culpable intention, Corvino perceives sweeping obligations to use one’s resources and talents to help LGBT people manifest their identities. Where the law secures the hard-earned property of small business owners, Corvino only sees owners escaping personal responsibility.
Corvino portrays law as it might be viewed through the eyes of a child—or a tyrant. In his account, law only prohibits, requires, and grants exceptions. No laws exist that do not owe their existence to government, and none are justified that do not achieve his narrow set of goals. Corvino makes bare assertions about “law” that logically exclude private rights, common law, matters of determination . . . in short, all the law that is essential to a free and flourishing society.
The Reasons for Pre-Political Rights
Against that account, Anderson and Girgis propose that common-law and private-law liberties be protected against future incursion. They advocate passage of First Amendment Defense Acts (FADAs), the Mississippi version of which codified the ancient rights of religious schools and assemblies, non- and for-profit businesses, and other associations of civil society to make their own policies as they go about doing good things in the public square. FADAs “coerce no one, and could only prevent government from coercing citizens.”
Of course, that is why Corvino opposes FADAs. He favors using coercive, generally applicable laws to achieve his goals. Anderson and Girgis see a place for such laws, but they also lay down criteria for evaluating when such laws are just and necessary.
Anderson and Girgis offer reasoned arguments in favor of the pre-political rights they defend. They point out that the ancient freedom of the church—the libertas ecclesiae—has deep roots in law and is explicable in light of the value and fragility of religious exercise. And they show that the law’s ancient commitment to man-woman marriage is grounded in right reason about the well-being of children, not in bigotry. Along the way, they show the important instrumental value of liberties of property and contract, and of the domain of private law and private ordering generally. Without these, a virtuous society has no space in which to constitute itself.
The Presumption of Liberty
Corvino’s argument for reversing the presumption of religious liberty is really an argument for reversing the presumption of liberty, full stop. In their reply, Anderson and Girgis observe, “Prior to 2012, no one thought employers duty-bound to provide cost-free coverage of potentially life-ending contraceptives.” To this observation, the informed reader can add a growing list of coercive invasions by government into the domain of civil society.
In sum, Anderson and Girgis make a strong case for pluralism and ordered liberty, while Corvino drafts a blueprint for a comprehensive despotism that would consume the preconditions and legal safeguards for ordered liberty. It happens that the particular topics proposed for discussion in the book are religious liberty and nondiscrimination laws. But the implications of the debate reach far beyond those controversies. Whatever one thinks about sexual identity rights and the uses and abuses of religious liberty, anyone who values the fruits of ordered liberty and self-government should take careful note.