Law, Religious Change, and Same-sex Marriage

We often talk about law and religion as though law is dynamic and religion is static. Religious believers are inclined to see their faith in terms of eternal and unchangeable truths. Non-believers have nothing invested in seeing religion in eternal or unchanging terms, but they often lack the interest and sophistication to understand how the mechanisms of religious change actually work. Hence, we get narratives in which law regulates religious believers or in which law accommodates religious believers and the like. Religion is taken as given, and we make deliberate choices about law.

In my own research one of the questions that has interested me is the way in which the law can drive religious change. Religious traditions are in a constant process of self-interpretation and adaptation to the world around them. The law is often an important part of that world and can drive religious change.

In an admirably irenic column in Sunday’s NYT, William Eskridge touches on this issue, highlighting the way in which a number of mainline Protestant religions have reinterpreted their theology to bless same-sex unions, suggesting that religion is not necessarily the implacable foe of LGBT rights. The Supreme Court will hear oral arguments on same-sex marriage on Tuesday, and if, as I think is very likely, the justices find a constitutional right to same-sex marriage, what will be the effect on religious beliefs?

Eskridge uses the example of race, pointing toward the way in which racist theologies were deployed to justify slavery and segregation. He gets some of the historical details wrong, but his basic point is valid. He then draws the analogy to teachings against miscegenation Continue reading

The Empirical Irony of the Conflict Between Antidiscrimination and Religious Freedom

I like markets. I think that on the whole commerce tends to make us better people, that trade is one of the best mechanisms of cooperation in a pluralistic society, and that participation in the market will generally increase our material well-being. Hence, insuring that everyone has the ability to participate in the market is important. Generally, the best way to insure such participation is to create institutions that keep markets competitive and remove barriers to entry. Contract and the search for new customers will do the rest.

I am not, however, a principled libertarian or anarcho-capitalist or the like. At times history, habits, and other institutions will result in a market from which some people are systematically excluded. I don’t think that this is an inevitable result of markets, and I think that contract and competition do a better job of insuring access than most folks (perhaps especially law professors) recognize. Still, no human institution or set of practices is perfect, and this is definitely true of commerce. When such systematic exclusion occurs, I think that antidiscrimination laws are justified to insure access. In a pluralistic society, however, I don’t think that the case for such laws is particularly strong if we justify them on grounds other than access. Living in a world in which others engage in acts that are an affront to one’s dignity or manifest unsavory thoughts strikes me as part and parcel of the liberal ideal, and I don’t think that such things should be made into legal wrongs, except in extreme cases like IIED torts.

Given my framework, I think that there is a deep irony in the current debates over religious exemptions and antidiscrimination laws covering homosexuality. First, I think that such antidiscrimination laws are justified where there are threats to the ability of gay citizens to participate fully and meaningfully in the market. The strength of that justification, however, is empirically contingent in my book. In places where there is widespread animosity towards homosexuality, the case for such laws is fairly strong. In places where animosity towards homosexuality is confined to a small subset of the population, the case for antidiscrimination laws is weaker.

I also think that antidiscrimination laws can burden religious exercise substantially. I actually don’t think that the wedding cake baker or the wedding photography facts are particularly hard cases. There are lots of people who believe that the celebration of gay marriage is wrong, sinful, and blasphemous. It is pretty understandable that they would regard participating in such a wedding as sinful. One may disagree with their moral or theological position (I do), but I don’t think that it is insincere, pretextual, or that the burden placed upon them is trivial. Hence, regardless of the doctrinal rout by which one gets there – RFRA, state constitutions, statutory carve outs, what have you – I think that exemptions in such cases make sense. Where granting such exemptions doesn’t meaningfully threaten access to the market, fining the baker or the photographer strikes me as needlessly punitive and vindictive.

However, I think that the case for religious exemptions from antidiscrimination laws is also empirically contingent. It is contingent in two ways. First, given the religious beliefs that command a following in society, are there a lot of belief systems that are going to label providing services to gay customers or employing gay workers as impermissibly sinful? Second, are there a lot of believers in these creeds? I think that there is a lot of mindless animosity towards homosexuality and some of that mindless animosity drives religious beliefs. There is less of this, however, than many secular liberals assume. I don’t think, for example, that most conservative religious believers think that serving gay customers or having gay employees is sinful, even if they believe that homosexuality is sinful. Rather, I think that the desire for exemptions is largely about marriages, weddings, and perhaps family formation (IVF or adoption). And even there, I don’t think that there are very many people – including conservative religious believers – that would actually use such exemptions.

I may be wrong about both of those conclusions, and in some places I am pretty confident that I am wrong. And this leads to the irony. In places where anti-discrimination laws are most justified we are the least likely to get them through the political process. Those are also the places where granting broad religious exemptions is most likely going to undermine antidiscrimination laws if they are enacted. On the other hand, those places where there is the strongest support for antidiscrimination laws are also the places where there is the least need for such laws and where the case against granting religious exemptions is the weakest. Yet these are also the places where we are least likely to see religious exemptions from those laws.

All of this makes me pretty depressed. The incentives, it seems to me, is for the politics to become the most toxic and destructive for both sides depending on the region. In crude terms, I think that in blue states conservative religious objectors will likely be dealt with harshly and punitively. In red states, I think that there is a real danger that in some places homosexuals will lack the ability to fully and meaningfully participate in the market.

There are, however, two things that give me hope. The first and greatest source of hope is commerce itself. I think that interactions and incentives in the market are likely to cool animosity and open opportunities. The fact that most people don’t care a great deal about these debates and would rather get on with making a living is deeply heartening. The other source of optimism for me is Utah, where the state recently expanded antidiscrimination protection for LGBT folks, while carving out surprisingly narrow exemptions for religion. Utah is not as encouraging as the market itself, however, because the law punted on most of the hardest issues. Still it suggests that the rhetorical and legal tailspin that seems most likely to me in ideologically homogenous spaces isn’t inevitable.

The (Hoped for) Shallowness of Progressive Skepticism Towards Religious Freedom

In his recent post, Mark writes:

Increasingly, secular liberals are losing patience with claims for religious liberty, particularly from traditionalists who dissent from progressive orthodoxy. Only fanatics could object to progressive goals like the Contraception Mandate and same-sex marriage, they believe, and it’s wrong to accommodate such people. Accommodation encourages backward and malevolent attitudes that cause innocent people grave harm.

I wonder to what extent this is true. On one level, I think that Mark is clearly correct that secular liberals have increasingly decided that “religious liberty” is a code word for various regressive social positions and behave reflexively when it is invoked. On the other hand, I think that some religious conservatives have been rather too glib about labeling every social development to which they object as a threat to religious freedom. To be clear, I am not trying to adopt a pox-on-both-your-houses-above-the-fray stance here. I think that secular liberals have tended to overreact more than religious conservatives, and I think that religious conservatives are right to be wary of the enthusiasm with which progressives have used the power and authority of the state to stamp out perceived social evils. To be sure, conservatives have defended stuff like Blue laws or the Ten Commandments on the courthouse lawn, while progressives have done stuff like create the New Deal regulatory state. The progressive response strikes me as rather more legally ambitious.

That said, I also think that most people – left and right – are pretty shallow and reactive in how they make political arguments. Just 20 years ago, RFRA enjoyed overwhelming bipartisan support. Today it makes many liberals apoplectic. Perhaps this reflects a deep shift in attitudes towards religious freedom, as Mark suggests. Perhaps not. I wonder if at the end of the day, all of this is about two things and two things only. The first is gay marriage, and the second is antidiscrimination law. Right now, progressives worry that granting the legitimacy of any religious freedom claim will rip massive holes in antidiscrimination laws and might threaten the onward march of gay marriage.

In actual fact, I think that religious freedom exemptions such as RFRA present basically zero threat to either movement. Given the shift in attitudes and demographics along with Anthony Kennedy’s ambitions for immortality, gay marriage is already happening in the United States, and religious conservatives are not going to stop it. As for antidiscrimination laws, to my knowledge no court has ever found the application of the compelling state interest test to a law burdening religious exercise creates an exemption from the application of antidiscrimination laws outside of a church setting. Give that some Continue reading

From the Fuggers to Justice Ginsburg

One of the things that the law has always done is order the relationship between religion and the market. For example, the prohibition on usury, which for a long time was one of the central issues in commercial law, has religious roots. In the Bible, charging interest on debt is condemned. In the ancient world, debt was less a way of raising capital for new ventures than a response to misfortune. The money lender was less a financier than a predator who extended credit to the unfortunate to tide them over and extracted high interest, often as a way of enslaving the debtor or his children.  Hence the prohibition.

By the high Middle Ages, however, bankers such as the Fuggers were seeking to extend credit to merchants to finance commercial ventures. They developed what became known as the German Contract. The banker would from a partnership with the merchant in which the banker would contribute capital and share in the profits of the venture. Such investments did not run afoul of the prohibition on usury because, to use modern terminology, they took the form of equity rather than debt. The banker would then purchase from the merchant an insurance contract on the venture, in which the merchant agreed to accept the risk of the venture’s failure, promising – in return for a nominal fee – to pay the banker the expected profits in the event of failure. Insurance, not being a loan, did not come within the prohibition on usury. Taken together, of course, the partnership agreement and the insurance contract were the economic equivalent of a loan for interest. The papacy’s willingness to bless the German Contract is what launched the beginnings of modern finance.

Notice that in this legal world, commerce is supposed to be infused with religious values and the law is supposed to structure markets so that they reflect these godly concerns. Usury is a sin, one that cannot be allowed to stain honest commerce. The debate over the German Contract was a theological debate, one about whether or not the law could bless an arrangement that seemed to skirt the edges of what revelation defined as legitimate commercial activity.

The law continues to structure the relationship between commerce and religion. Consider Justice Ginsburg’s dissent in the Hobby Lobby case. Rejecting the idea that for-profit corporations could exercise religion, Justice Ginsburg’s argument was embarrassed by the Continue reading

Religious Tests and the British Monarchy

Last month the Succession to the Crown Act of 2013 formally went into effect in the United Kingdom. It made a number of tweaks to the British monarchy, in large part to make it a rather more liberal institution. Most notably, succession now follows a rule of primogeniture rather than male primogeniture, so the eldest child – male or female – of the monarch is next in line. Under previous law, women were only in the line of succession when there were no male heirs.

The law also touched on marriage and religion. From 1689 to the present, marriage to a Catholic kicked one out of the succession, a response to the marital choices of the Stuarts. British royals may now marry Catholics without losing their place in the succession. They may not, however, be Catholics themselves (more on this anon). Also, the Royal Marriages Act of 1772 has at long last been repealed. Under that law, all of the descendents of George II, regardless of how remote they were from the succession had to obtain royal approval before getting married.   In theory, thousands of marriages by remote descendents of George II were legally questionable. The requirement of royal approval now applies only to the first six in line to the succession.

The king or queen, however, still may not be a Catholic and must be in communion with the Church of England, which would disqualify everyone from Jews to atheists from ascending the throne. The justification for this rule is that the King or Queen is the titular Continue reading

Thoughts on Religious Discrimination from the Cairo Geniza

For nearly a thousand years the geniza (manuscripts storage room) of the main Cairo synagogue housed hundreds of pages of manuscripts. These were not records of Talmudic scholars or religious rituals. Rather, they documented the commercial activities of Jewish merchants within the medieval Islamic world. They reveal large scale, long distance trade managed by a tightly knit group of co-religionists. The Cairo Geniza, as it is called, has long been recognized as a treasure trove for economic historians. It also, however, raises very contemporary questions about the relationship between religion, the market, and the law.

The Cairo Geniza merchants were successful in large part because they were Jewish. The bonds of faith and the ability of their religious community to monitor and punish its members generated high levels of trust. Trust, in turn, allowed the Jewish merchants of Cairo to create far more complex economic organizations than would have been possible in the absence of that trust.

The experience of the Cairo Geniza merchants has been repeated many times over. Religious identity has frequently formed the basis for commercial relations by fostering trust and concern between those that might otherwise have been strangers to one another. Examples include the crypto-Jewish “conversos” of early modern Iberia, Quaker merchants in the eighteenth century, and Catholic and Jewish immigrants to the United States in the late nineteenth and early twentieth centuries. Similar networks exist today among groups as diverse as Korean immigrant churches and Mormon lawyers in Washington, D.C.

While the Cairo Geniza manuscripts reveal a commercial world in which religious identity is crucial, modern anti-discrimination law is premised on a vision of the marketplace in Continue reading

Religion and For-Profit Corporations: A Real Issue Hidden by Flimsy Arguments

I was recently talking with a well-regarded scholar about the argument advanced in Hobby Lobby by the Administration that for-profit corporations should not be able to claim protections for religious freedom. His response was that the argument was always a makeweight and didn’t really raise serious questions one way or the other. Since my interlocutor is a smarter and more learned man that I, I have thought quite about his claim. Here is why I think he’s wrong.

He’s right that the arguments advanced in the Hobby Lobby debates about corporations were pretty shallow. There was the claim that a corporation – as opposed to an individual – cannot practice religion. This, of course, cannot be right as it would lead to the absurd position that churches (which are corporate persons) cannot exercise religion. One might respond that it is not the corporateness per se that is at issue but the exercise of religon by for-profit corporations. The problem here is that this would suggest that individuals that pursue profits also cannot be exercising religion. This is less absurd, but still pretty flimsy. One might imagine trying to say this with a straight face about businesses organized as sole proprietorships, but what of employees or other individuals pursuing economic gain, i.e. essentially all adults? Does their “for profit” status preclude them exercising religion? Certainly not. Then there is the claim that in exchange for the “subsidy” of limited liability, for-profit corporations give up the right to pursue religious ends. This claim flies in the face state corporate law, which generally provides that a corporation may be formed for “any lawful purpose.” It’s also worth noting that state exempt property statutes provide “limited liability” for individuals, performing precisely the same economic function – asset partitioning – as limited corporate liability. In return for the “subsidy” provided by homestead exemptions does anyone think that individuals give up the right to practice religion?

Despite the flimsiness of these arguments, however, I think that the debates about corporations in Hobby Lobby get at a deeper issue, one that at the very least justifies a blog post on the topic even after the case has been decided.

Far from being a makeweight, I think that the intuition that many folks have that corporations should not exercise religion actually has pretty deep roots in our law, albeit one’s that I don’t find terribly attractive. One could object to the exercise of religion by for-profit corporations for the same reason that one might generally be suspicious of for- Continue reading

Markets, Religion, and the Limits of Privacy

In modern, Western societies religion is tied up with the idea of privacy. In the wake of the Wars of Religion, religious and political thinkers invented the idea of a private sphere in which one could practice one’s religion separately from the public sphere of political action. The idea of privatizing religion has proven powerful and on the whole hugely beneficial. It allows for religious toleration and religious pluralism without suppressing religious belief and practice. Believers must simply keep their religion private, or perhaps more precisely we define as private the religious behavior that we are willing to tolerate.

The same seventeenth- and eighteenth-century world that used the idea of privacy to manage religion also employed the idea of private activity to make sense of the increasingly important role of markets in society. Aristotle thought of economic activity as part of the government of the household, which of course was seen as a private (and therefore not particularly important) realm as opposed to the public space of the agora, were the important aspects of life occurred.

By the time the Wars of Religion were winding down in the mid-seventeenth-century, however, commerce had become politically important. At the same time, the relocation of religion (and with it the ultimate questions of the good life) to the private sphere had rendered what went on there of far greater importance than it had been for Aristotle and his successors. By the eighteenth-century we had a whole new field – economics – that was focused on thinking about commercial life as a distinct sphere, and with the rise of nineteenth-century liberalism, this commercial activity – like religion – was conceptualized as a private matter, one where the collective decision-making of politics was to hold limited sway.

Many of the current skirmishes over law and religion are less about the relationship of God and Caesar than they are about the law regulating the relationship between God and Mammon. Cases like Hobby Lobby or the debates over anti-discrimination law and state Continue reading

Indiana and Doux Commerce

Amidst the often disappointingly vacuous cacophony over Indiana’s recently passed RFRA legislation, Jacob Levy, a political philosopher at McGill, raised the fascinating question of how we ought to think about the relationship between religious freedom and commerce.

Levy raises two sets of concerns with Indiana’s law, one of which is largely illusory and one of which merits serious thought. The illusory concern is that the Indiana RFRA is a radical innovation that by applying the compelling state interest test to private causes of action threatens to undermine the basic legal infrastructure – property, contract, and tort – of the market.

It’s important to remember that we have decades of experience applying some version of the compelling state interest test to religious claims. We have the nearly three decades from Sherbert to Smith as a matter of constitutional law, and then the more than two decades from the passage of RFRA to the present as a matter of federal statutory law. Beginning in the mid-1990s some states began passing their own RFRAs, and during this entire period numerous states applied some version of the compelling state interest test as a matter of state constitutional law. If antinomian chaos were going to break forth one would think that after a half century it already would have happened.

In terms of concrete conflicts between RFRAs and basic private law, it seems to me that the most dangerous ones would be cases involving bodily harm or the invasion or destruction of property. I think that in cases involving bodily integrity, courts would have no problem saying that the state had a compelling government interest in protecting bodily integrity and in providing recourse to those suffering bodily injury. I think that for most property cases, we can dispose of them by saying that property law places no substantial burden on religious exercise. Saying that you have to build your sukkah on in your yard rather than my yard is not a substantial burden. There might be issues if we have a property owner who for some reason owned religiously significant land, as has been the case with some Native American claims against the federal government. Depending on the facts, I am not convinced that chaos would result if we granted an exemption from certain rules of property law. To give an analogy, lots of private property owners have land that contains graves. In many states there is a common law doctrine granting descendants an easement on the land to visit the graves. The market has not been threatened.

His rather fanciful legal concerns aside, however, Levy raises a deeper issue, one that deserve far more attention that it has received. His concern is with the way in which allowing religious believers to claim exemptions from otherwise applicable laws might inject the question of religious identity into commerce.  He quotes Voltaire’s famous statement of the doux commerce argument:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

Voltaire’s insight – one he shared with thinkers such as Montesquieu and Adam Smith – was that markets are more than simply a mechanism for organizing economic production. They are also moral and political institutions that structure relationships and inculcate certain moral habits. For the eighteenth-century apologists for commerce, the effect of markets in this area was largely beneficent. They allowed those of very differing religious convictions to peacefully cooperate and tended to inculcate habits of tolerance and, if not respect, at least peaceful co-existence.

Levy suggests that by allowing religious people to claim exemptions from the demands of contract or property, RFRA statutes might undermine this order. As explained above, I think that this is the wrong thing to worry about. The scope of anti-discrimination laws, however, does raise this issue. As near as I can tell, Levy himself favors rather narrow antidiscrimination laws on largely libertarian grounds. What happens, however, when we apply the doux commerce argument itself to the question of antidiscrimination laws?

Normally we think of contract as structuring relationships in the market. Antidiscrimination laws, however, deprive certain market participants of the ability to avoid contracting. This raises two questions. First, does such forced contracting undermine doux commerce by replacing contractual norms with non-contractual equality norms, or does it enhance doux commerce by requiring people to trade across tribal and religious boundaries? Second, when thinking about religion in our society, how desirable is the Royal Exchange of Voltaire? On one hand it tends to promote tolerance and peacefully mediate religious pluralism. At the end of the day, however, Voltaire was no great friend of religious faith and for him one of the great attractions of commerce was the corrosive effect he hoped that it would have on religious communities, which he wished to see submerged in the universal, secular identity of citizenship.

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