Compromise and religious freedom

Abstract

Compromise is surprisingly common in the context of religious freedom. In Holt v. Hobbs, for example, a Muslim prison inmate challenged his prison’s no-beards policy on religious freedom grounds. He proposed, and was eventually granted, a compromise that allowed him to grow a half-inch beard rather than the full beard normally required by his beliefs. Some have argued that such a compromise is inconsistent with the purpose of religious freedom, which is to guard against interference with an individual’s religious practices. Accepting a compromise, after all, may require a significant modification to one’s default practices. But this paper argues that compromise can be appropriate if the purpose of religious freedom is to foster the inclusion and acceptance of all people in a diverse political community. Moreover, the benefits of compromise may lend support to the inclusion-based conception of religious freedom as against the more traditional non-interference conception.

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Notes

  1. 1.

    Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___, 138 S. Ct. 1719 (2018).

  2. 2.

    Ibid. p. 1729.

  3. 3.

    Ibid.

  4. 4.

    For one prominent proponent of such an inclusion-based conception of religious freedom, see Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008).

  5. 5.

    Brian Leiter, Why Tolerate Religion? (Princeton, NJ: Princeton University Press, 2013).

  6. 6.

    For a discussion of whether religion is special in this way, see Micah Schwartzman, ‘What if Religion is not Special?’ University of Chicago Law Review 79(4) (2012): pp. 1351–1427.

  7. 7.

    For one development of such a theory, see e.g., Jocelyn Maclure and Charles Taylor, Secularism and Freedom of Conscience, (Cambridge, Mass.: Harvard University Press, 2011).

  8. 8.

    Holt v. Hobbs, 574 U.S. 352, 135 S. Ct. 853 (2015) (holding under the Religious Land Use and Institutionalized Persons Act that a prison must allow a Muslim inmate to grow a half-inch beard). For Holt’s own (handwritten) statement of his beliefs, see Brief for Petitioner, pp. 5–6.

  9. 9.

    This definition of ‘compromise’ draws on Simon Căbulea May, ‘Compromise’, in The International Encyclopedia of Ethics, ed. Hugh LaFollette (Hoboken, N.J.: Wiley-Blackwell, 2015).

  10. 10.

    Here I follow Simon May: ‘When parties reach consensus, they agree that a particular option is the best choice to make. When parties compromise with each other, they continue to regard other options as superior’. See Simon Căbulea May, ‘Moral Compromise, Civic Friendship, and Political Reconciliation’, Critical Review of International Social and Political Philosophy 14(5) (2011): pp. 581–602, at p. 583. Parties might reach consensus, I take it, either because they change their minds or because they accept the reason-giving force of a specified decision-procedure, such as flipping a coin.

  11. 11.

    See Avishai Margalit, On Compromise and Rotten Compromises (Princeton, N.J.: Princeton University Press, 2009).

  12. 12.

    Cf. Seana Shiffrin, ‘Paternalism, Unconscionability Doctrine, and Accommodation’, Philosophy & Public Affairs 29, no. 3 (2000): 205–250, and Seana Shiffrin, ‘Egalitarianism, Choice-Sensitivity, and Accommodation’ in Reason and Value: Themes from the Moral Philosophy of Joseph Raz, eds. Philip Pettit, et al. (Oxford: Oxford Clarendon, 2004): 270-302.

  13. 13.

    This example is borrowed from the facts of Sherbert v. Verner, 374 US 398 (1963).

  14. 14.

    This paper will focus on the United States, as legal protection for religious practices is often unavailable or takes a different form elsewhere in the world. But the US model of religious freedom may be spreading. Most notably, the Canadian Charter of Rights and Freedoms, Art. 2, includes a ‘freedom of conscience and religion’, which has been interpreted to provide legal protections for certain religious practices. The European Charter of Fundamental Rights, Art. 10, also includes the right ‘to manifest religion or belief, in worship, teaching, practice and observance’.

  15. 15.

    Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014).

  16. 16.

    The federal RFRA, for example, requires providing accommodation unless the government has a ‘compelling interest’ in enforcing the law at issue. 42 U.S. Code § 2000bb–1(b)(1). Note that there is ongoing debate about how weighty or significant the reasons in favor of enforcement must be in order to outweigh the reasons in favor of accommodation, but my argument here does not depend on taking sides in this debate.

  17. 17.

    Leiter, Why Tolerate Religion? (2013).

  18. 18.

    The canonical text is James Madison, ‘Memorial and Remonstrance Against Religious Assessments’, The Papers of James Madison, vol. 8, edited by Robert A. Rutland and William M. E. Rachal (Chicago, Ill.: The University of Chicago Press, 1973): pp. 295–306. For an argument that this Madisonian idea informed the drafting of the Free Exercise Clause, see Michael W. McConnell, ‘The Origins and Historical Understanding of Free Exercise of Religion’, Harvard Law Review 103(7) (1990): pp. 1409–1517.

  19. 19.

    See e.g., Michael W. McConnell, ‘The Problem of Singling Out Religion’. DePaul Law Review 50(1) (2000): pp. 1–47.

  20. 20.

    Joshua Cohen ‘Democracy and Liberty’ in Deliberative Democracy, ed. Jon Elster (Cambridge: Cambridge University Press, 1998).

  21. 21.

    Kevin Vallier, ‘The Moral Basis of Religious Exemptions’, Law and Philosophy 35(1) (2016): pp. 1–28; Cécile Laborde, Liberalism’s Religion, (Cambridge, Mass.: Harvard University Press, 2017). Note that at least for Laborde, this argument may extend to beliefs that are based in secular morality as well as those that are more traditionally religious.

  22. 22.

    Laborde, Liberalism’s Religion, pp. 203–204 and 221.

  23. 23.

    Holt’s half-inch beard was protected under the Religious Land Use and Institutionalized Persons Act, which, like the federal RFRA, requires accommodation unless the government has a ‘compelling interest’ in enforcement. 42 U.S. Code § 2000cc–1(a)(1).

  24. 24.

    Laborde, Liberalism’s Religion, p. 223.

  25. 25.

    Nussbaum, Liberty of Conscience, esp. the discussion of Roger Williams in Ch. 2. Note that the two conceptions of religious freedom are not mutually exclusive, since one could argue that religious freedom has two purposes. At times, Nussbaum also appears to embrace the non-interference conception. For example, she defends some examples of religious accommodation on the grounds that ‘we ought to respect the space required by any activity that has the general shape of searching for the ultimate meaning of life’, (p. 169).

  26. 26.

    See Brief for Petitioner, at pp. 5-6, Holt v. Hobbs 574 U.S. 352 (2015). The Islamic texts cited by Holt suggest that when social or political conditions prevent wearing a full beard, a Muslim male may wear a trimmed beard instead.

  27. 27.

    A similar point is made by Shiffrin, ‘Egalitarianism, Choice-Sensitivity, and Accommodation’, pp. 292–3.

  28. 28.

    Cf. Peter H. Mann, ‘The Concept of Neighborliness’, American Journal of Sociology 60(2) (1954): pp. 163–168.

  29. 29.

    Here I follow Simon May in thinking that the public relationship between citizens differs significantly from close personal friendships—and I avoid the term ‘civic friendship’ for that reason. See May, ‘Moral Compromise, Civic Friendship, and Political Reconciliation’. I part ways with May, however, in arguing below that noninstrumental compromise is available between mere neighbors.

  30. 30.

    For a similar point, see Chiara Lepora, ‘On Compromise and Being Compromised’, Journal of Political Philosophy 20(1) (2012): pp. 1–22.

  31. 31.

    Multani v. Commission Scolaire Marguerite-Bourgeoys 1 S.C.R. 256, 2006 SCC 6 (holding that the school’s refusal to allow the kirpan violated Section 2(a) of the Canadian Charter of Rights and Freedoms).

  32. 32.

    Ibid. p. 296: ‘If some students consider it unfair that [the Sikh student] may wear his kirpan to school while they are not allowed to have knives in their possession, it is incumbent on the schools to discharge their obligation to instill in their students [the] value [of diversity] that is […] at the very foundation of our democracy’.

  33. 33.

    See Leiter, Why Tolerate Religion? pp. 64–66.

  34. 34.

    Here I draw on Arthur Kuflik’s suggestion that a fair compromise typically displays ‘end-state criteria’, e.g. that each party has conceded something of actual value or importance to her. Arthur Kuflick, ‘Morality and Compromise’, Nomos 21 (1979): pp. 38–65, at p. 40.

  35. 35.

    See Arvind-Pal Singh Mandair, Sikhism: A Guide for the Perplexed (London and New York: Bloomsbury Publishing, 2013), pp. 123–124.

  36. 36.

    Cheema v. Thompson, 67 F.3d 883 (9th Cir. 1995) (holding under RFRA that public school must devise a plan of accommodation for a Sikh student who sought to carry a kirpan).

  37. 37.

    Ibid. p. 886, Wiggins J. dissenting.

  38. 38.

    Transcript of Oral Argument, p. 5:17-25, Holt v. Hobbs, 574 U.S. 352 (2015).

  39. 39.

    See, for example, the discussion of tithing offered by the Billy Graham Evangelical Association, ‘Answers: Does a Christian have to tithe?’ (June 1, 2004), available at: https://billygraham.org/answer/does-a-christian-have-to-tithe/.

  40. 40.

    U.S. Military Selective Service Act, 50 U.S.C. 3806(j).

  41. 41.

    George Sher, ‘Subsidized Abortion: Moral Rights and Moral Compromise’, Philosophy & Public Affairs 10(4) (1981): pp. 361–372.

  42. 42.

    Simon Căbulea May, ‘Principled Compromise and the Abortion Controversy’, Philosophy & Public Affairs 33(4) (2005): pp. 317–348.

  43. 43.

    Health and Human Services ‘Final Rule’ promulgated July 2, 2013, 78 FR 39869 (providing exemptions to the mandate for some religious employers).

  44. 44.

    See Robert Pear, ‘Bishops Reject Birth Control Compromise’, New York Times, February 7, 2013, available at: https://www.nytimes.com/2013/02/08/health/bishops-reject-white-house-proposal-on-contraceptive-coverage.html.

  45. 45.

    See the Kaiser Family Foundation report ‘Coverage of Contraceptive Services: A Review of Health Insurance Plans in Five States’ by Laurie Sobel, Alina Salganicoff, and Nisha Kurani, April 16, 2015, available at: http://kff.org/report-section/coverage-of-contraceptive-services-introduction/.

  46. 46.

    See Andrew Lister, who uses the term ‘principled compromise’ to describe compromises that achieve this sort of reconciliation or integration of moral values. ‘Public Reason and Moral Compromise’, Canadian Journal of Philosophy 37(1) (2007): pp. 1–34. See also Jonathan Allen, ‘Balancing Justice and Social Unity: Political Theory and the Idea of a Truth and Reconciliation Commission’ University of Toronto Law Journal 49(3) (1999): pp. 315–354, at p. 338. According to Allen, a compromise can retain ‘elements’ of the values at stake on both sides, ‘although the form and scope of both values will be altered as a result of their association’. See also Daniel Weinstock, ‘On the Possibility of Principled Moral Compromise’, Critical Review of International Social and Political Philosophy 16(4) (2013): pp. 537–556.

  47. 47.

    Cf. Barbara Herman, ‘Contingency at Ground Level’ in Moral Universalism and Pluralism, eds. Henry S. Richardson and Melissa S. Williams (New York: New York University Press, 2009), at pp. 85–86: ‘moral front-runners or innovators can determine the structure of obligations for the rest of us by making some [moral principle] that is generally not regarded as a real possibility appear viable or even compelling’.

  48. 48.

    The idea that the parties may be motivated to agree to a compromise by their belief that the terms to be fair and reasonable captures what is also sometimes called the ‘spirit of compromise’. See e.g., Martin Benjamin, Splitting the Difference: Compromise and Integrity in Ethics and Politics (Lawrence, Kan.: University Press of Kansas, 1990), pp. 5–7.

  49. 49.

    For example, the federal RFRA provides a right against the federal government to an exemption from a law or policy that ‘substantially’ burdens a claimant’s religious practice unless the law is the ‘least restrictive means’ of furthering a ‘compelling governmental interest’. (42 U.S.C. § 2000bb–1.)

  50. 50.

    Cf. Mathews v. Eldridge, 424 U.S. 319, (1976), at p. 333 (procedural due process requires that a claimant have an ‘opportunity to be heard at a meaningful time and in a meaningful manner’).

Acknowledgements

For helpful comments and suggestions, I would like to thank: Netta Barak-Corren, John Carriero, Lee-Ann Chae, Rick Garnett, Mark Greenberg, Robert Goldstein, L.P. Hodgson, Paul Horwitz, A.J. Julius, John Oberdiek, George Rudebusch, Larry Sager, Steven Shiffrin, Ronit Stahl, Nelson Tebbe, and especially Barbara Herman and Seana Shiffrin. I also received valuable feedback from the participants of the American Law and Religion Roundtable hosted by the Notre Dame School of Law (2017).

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Hutler, B. Compromise and religious freedom. Law and Philos 39, 177–202 (2020). https://doi.org/10.1007/s10982-019-09365-3

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