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Monday, July 13, 2015

The "Limits of Religious Liberty": Complicity and Dignity

A few days ago, in the NYT Magazine, Emily Bazelon had this pieceWhat Are the Limits of "Religious Liberty"?  Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars:  Complicity-Based Conscience Claims in Religion in Politics."  I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read.  I also think, though, that some of its primary claims are unconvincing.  I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.  

The Siegel & NeJaime article covers a lot of ground.  Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . .  Complicity claims focus on the conduct of others outside the faith community.  Their accommodation therefore has potential to harm those whom the claimants view as sinning."  (The quoted language is from the SSRN abstract.)  

It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided.  Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way.  And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" could raise, I think, the concerns NeJaime and Siegel raise.  The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor.  This sweeping claim seems hard to square with our practices and policies.  (Marc DeGirolami has more on this point, here.)

Relatedly, it strikes me as misguided to insist that the law necessarily demeans or insults B by accommodating (to the extent it is reasonably possible) A's religiously-based desire not to be complicit in what A believes to be B's wrong.  Even if A's moral judgment is, we think, itself wrong or unattractive, the government's accommodation of A's religiously based conclusion is not an endorsement of that conclusion, but only of the general desirability of accommodating, to the extent possible, religious commitments and exercise.  What's more, if a law demeans when it allows an exemption for religious complicity-claimants, then why does it not demean when it mandates, without exemption, the cooperation to which the claimants object?  That is, why shouldn't the law from which the exemption is, for complicity-avoiding reasons, being sought (say, a law requiring pharmacists to provide an abortion-causing drug) be regarded by the exemption-seeker as imposing on her a "dignitary harm", i.e., the harm of having one's moral commitments and reasoning not only rejected-on-balance, but also disapproved and found wanting?   

I question the premise that inquiring into one's moral responsibility for -- or, one's complicity in -- another's act and, as part of that inquiry, evaluating the morality of that act, involves any "demeaning" of the other.  Again, if it amounts to "demeaning" -- and, more specifically, if it amounts to causing a "dignitary harm" that triggers, as some have argued, Establishment Clause limits -- another person to conclude that that other person has engaged in an act that is wrong and so to decide to avoid complicity with that act then we'll have to reexamine a whole lot more than particular applications of RFRA-type laws.  

In addition, I don't think it's entirely right to say that "complicity claims focus on the conduct of others outside the faith community."  As I see it, when we talk about "complicity" (see, for example, the Model Penal Code's treatment) we are asking about the extent to which one person is morally responsible, or morally blameworthy, by virtue of her own conduct and state-of-mind,  for the conduct of another.  The accomplice's responsibility -- her state of mind and her assistance, encouragement, or facilitation -- is, I think, at least as much the "focus" of the inquiry as the action done or the harm caused by the other.  (And, again, it seems to me that the character, worth, dignity, or identity of the other need not be part of the inquiry at all.)  True, the reason we care about the accomplice's responsibility is usually because we have identified someone else's wrong -- or, more precisely, a harm caused or wrong done or wrong attempted by someone else -- but the focus remains, I think, is on the accomplice.   (Sometimes, we even conclude that an actor is morally responsible for another's wrongful act or harm caused although the other is, for one reason or another, not blameworthy for that act or harm.

In any event, read Siegel and NeJaime, and also read DeGirolami.  I remain, for what it's worth, concerned that the emerging focus on the "third-party harms" and "dignitary harms" said to be caused by legislative accommodations of religion threatens to excessively constrain our ability to vindicate the fundamental right to religious liberty in our context of increasing regulatory activity, dissensus, and diversity.

Posted by Rick Garnett on July 13, 2015 at 02:53 PM in Rick Garnett | Permalink


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