It's important to engage with your opponent's strongest argument, but not always easy to articulate something you don't agree with. So I was glad that, at a panel on religious liberty issues at the Federalist Society's annual convention yesterday, there was someone on stage to defend the Obama administration's actions in that area.
Listening to remarks from Bill Marshall, a distinguished professor at the University of North Carolina School of Law, helped clarify for me what many on the American left believe when it comes to conflicts between civil liberties (like the right not to be discriminated against) and religious liberties (like the right not to be forced into a behavior that you believe is sinful). I'm going to try to lay out what I took his argument to be—and then explain why I'm still not convinced by it.
The concern is that, since only an individual can decide what her faith requires of her, "religious liberty" could be used as a justification for any behavior whatsoever. "The problem with accommodating religious belief is religious belief is completely elastic," Marshall said. "People can believe anything they want to." Thus, the government needs a way to determine whether or not to grant an exemption to an otherwise applicable law, and for him, the answer can't be that claims of religious liberty always win out.
He's right on that. Clearly, there are some instances when no one would support an exception, as with laws against rape and murder. (That your religion requires you to make a human sacrifice does not obligate the rest of us to stand by while you kidnap virgins and burn them at the stake.) In Marshall's words, "At some point the Court has got to figure out a way to draw a line around a claim" that a law violates someone's religious liberty.
The Obama administration and its supporters would prefer to draw that line close in. As Marshall put it, they think the rule should be that personal expressions of religion must be protected but not actions "out in the marketplace" that affect the "interests of third parties." He cited as an example of the former situation the case Holt v. Hobbs, in which the Supreme Court unanimously ruled that a prison in Arkansas may not prohibit a Muslim inmate from growing a half-inch beard in accordance with the dictates of his faith. Marshall pointed out that the Obama administration defended the inmate in that case—and rightly so, since the growing of a beard is part of one's individual identity.
What doesn't fall within the narrow confines of religious liberty in Marshall's view (and, apparently, Obama's) is the baker who declines to provide the cake for a same-sex wedding, or the nonprofit hospital that opts not to offer abortifacient coverage to its employees. The administration's position is that "there is something wrong with accommodating one group when it causes harm to another," he said.
I strongly disagree, but I concede that he is at least outlining a coherent standard for deciding when religious liberty should trump and when it shouldn't. Personal behavior affects only the actor; public behavior has some measurable consequence for someone else; only the first should warrant an exemption from an otherwise applicable law. I think that's the wrong standard to use, but you can see why someone might think to draw the line there.
So why don't I agree? Because there are an infinite number of ways a person can be affected, and even harmed, by an action without their rights having been violated. If someone asks me for a dollar and I turn him down, that action has consequences for someone other than me. Before we let the government infringe on your religious liberty, it needs a better reason than just that you would otherwise act in a way that someone else would like you not to.
But doesn't that leave unanswered the question of how to decide when to grant a religious exemption? Fortunately, there is another way out of the conundrum, and libertarianism lights us to it. The key is to differentiate between harm, which can be a nebulous concept, and aggression, which is much less so. In a world where the very specter of an offensive Halloween costume can push elite college students to emotional ruin, the reason for not allowing the law to turn on subjective perceptions should be obvious. But even more important is that harm to one side or the other is often impossible to avoid when humans come into conflict.
No doubt being turned away from your favorite bakery because of who you are is a painful experience. But it's surely just as true that forcing a cadre of Catholic nuns to violate their consciences by participating, even just a little, in the provision of contraception is also an act that would lead to mental anguish. In both cases, people are being harmed. But in only one are people having coercion used against them.
With respect to Professor Marshall, I submit that that should matter.
CORRECTION: The panel was yesterday, November 12.