Ius & Iustitium is happy to present this guest post by Gregory Caridi. Mr. Caridi, a civil and canon lawyer, is chancellor for the Diocese of Dallas.
While most conservative commentary on the Bostock decision has focused on the possibly severe ramifications to religious liberty, a much more serious implication lies buried in the opinion. Justice Gorsuch writes:
We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations…This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” … And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA)…That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.
Some are perhaps relieved that the Court at least recognized this free exercise concern by providing a possible road map for how someone might bring a defense. But there is an important and subtle shift here. By relegating the issue to free exercise, the Court has effectively ended significant portions of legal debate concerning sexual morality and how it might relate to the common good.
In our society, the most effective way to end a political or legal debate is to turn it into an issue of religious liberty. Religious liberty is, at least in American law, a private negative right to non-interference when practicing religion. The right has little to do with questions of the common good, except in that it benefits the public generally when people can practice religion. But under modern American jurisprudence, the content of the exercise—the stated ideas or beliefs of a religion—are broadly irrelevant to law or policy.
Justice Kennedy’s description of religious liberty in Hobby Lobby is especially apt here: “In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.”
The right is pointed inward to the individual’s “self-definition,” and it protects against others controlling that self-definition. While the public will not consider a particular idea of a religion in law or policy, out of a sense of respect for your dignity, you can keep it for yourself. Put another way, an individual’s claim that he has a right to believe something is indicative of defeat of that belief in the public space, which creates a need to protect it in the private space.
Modern American law is effectively just a balancing act of how large or how small that private exercise space is allowed to be. When the balance does not seem appropriate to the public, religious exercise claims can be seen as frustrating technicalities used to justify unjust discrimination, restrict rights and illegitimately influence legal decisions. Once an idea or belief is entirely cordoned off in “free exercise of religion” and the underlying philosophical claims no longer resonate in society, it will be condemned. The courts can only provide a bulwark for so long on generic rights-balancing grounds, and the particular belief or exercise will inevitably shrink or disappear.
Take the Hobby Lobby case. Is it difficult to imagine a later Court with a similar issue placing formulations of equality, liberty and social welfare higher than some particular religious exercise, especially if that exercise is seen as especially obscure, strange or intolerable to public sensibilities? It seems unlikely that procedural, textual or precedential arguments will convince in light of positions that might come across as morally odious or incoherent to society. Abortion is still broadly a live philosophical question in our society (though that continually appears to be fading), and that’s no doubt why the Hobby Lobby case was so focused on employers being required to provide abortifacients. Had it been just about contraception, which is accepted by the vast majority of citizens and considered for the most part a dead philosophical question, one wonders if the case would have landed the other way.
Conservative justices and legislatures have consistently refused to engage in actual debates concerning the underlying moral questions raised by religious groups, instead retreating into free exercise, often because of alleged standards of neutrality to which they have unnecessarily bound themselves. This has only served to obscure these questions in the public, allowing opponents of the positions to frame the debates and, as a result, control public opinion.
Out of a need to protect themselves, religious groups have followed suit, turning historically philosophical questions about the common good into questions about protecting religious beliefs. Not only has this caused the underlying positions to be seen as irrational vestiges of religion instead of complex philosophical questions, it has also pushed religious leaders to modify or temper teachings in order to avoid secular condemnation, for fear of lost rights. This unquestionably chills preaching and evangelization, especially on moral questions.
While some questions are in fact purely religious (scripture, theology, ecclesiology, etc.) and should not be touched by secular judges, core questions of the natural law and the common good must be engaged by all of society, particularly by lawmakers and judges. Calls for religious leaders to take the lead in doing this will ultimately undermine the goal if they are the only voices. Once the issue is seen as primarily religious, it will eventually fall out as legally irrelevant, except insofar as it needs to be protected in private religious exercises.
Legal doctrines like the ministerial exception and laws like RFRA are genuinely good and helpful, but framing moral questions primarily in the context of free exercise is ultimately a losing strategy. The more often moral questions are consigned to religious space without argument from non-religious leaders on philosophical (and not merely technical) grounds, the less likely those moral teachings will permeate society, and the smaller that religious space becomes.
Gregory Caridi