The Ironies of the - IA de Investigación especializada en el MIT

The Ironies of the
New Religious Liberty Litigation

Cathleen Kaveny

The plaintiffs in recent religious liberty litigation are very different from plaintiffs
in earlier cases. They are not marginalized or politically powerless. They seek to re-
turn the country to its conservative roots, rather than to escape the dominant liberal
mindset. But their success has come at a cost to their own deep commitments. Este
essay will proceed as follows. Primero, I describe key elements of recent religious liberty
casos, highlighting the ways in which they go beyond the older case law that ostensi-
bly served as precedent. Segundo, I argue that these decisions ironically fall prey to the
communitarian critiques of modern liberal democracy that have been prominent in
conservative religious circles for thirty years or more. Finalmente, I sketch a new way for-
ward, drawing on the notion of civic friendship and the Golden Rule, and suggest the
question religious believers should be asking now is not “What are our legal rights?"
but “What do we owe morally to fellow citizens who believe differently than we do?"

O bjecting to practices such as abortion, contraception, and same-sex

marriages, some religious believers have claimed that the First Amend-
ment’s guarantee of religious liberty should insulate them not only
from direct involvement in such activities, but also from more remote connec-
ción. And their claims have been quite successful. In Burwell v. Hobby Lobby Stores
(2014), the Supreme Court upheld the right of the defendant, a closely held cor-
poration owned by evangelical Protestants, to be relieved from the obligation to
provide certain contraceptives, which the owners believed to be abortifacient, en
the employee health insurance plan.1 In Masterpiece Cakeshop, Limitado. v. Colorado Civil
Rights Commission (2018), the Court decided (albeit on narrow grounds) in favor
of a Christian baker who refused to bake a wedding cake to celebrate the union
of a same-sex couple.2

Some people believe that these cases are victories for religious believers in the
United States. If they are victories, in my view, they are Pyrrhic ones. They will not
help move American society toward a more stable and mutually respectful plu-
ralism. Además, they will neither protect nor advance the Christian worldview
to which the religious litigants are most committed. In their quest for legal vic-
conservador, the lawyers for the plaintiffs have advanced a way of viewing human beings

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and human society that has been heavily (and persuasively) critiqued by Christian
philosophers and theologians over the past thirty years.

Using the image of “civic friendship” and the ideal of the Golden Rule, I pon-
der what might happen if religious communities began to ask themselves not
“What are our rights?” but “What do we owe our friends, neighbors, customers,
and employees who believe differently than we do?” and “What is the virtu-
ous way of dealing with conflicting moral beliefs, given our particular roles and
role-related obligations?"

B efore the culture wars, religious liberty cases were comparatively rare, y

most successful ones followed the same pattern. The plaintiffs were mem-
bers of small, marginalized, or isolated religious groups. They sought per-
sonal relief from a law of general applicability; they did not seek to change the
law for everyone else. Generally, such plaintiffs wanted to be left alone. Más-
encima, the exemptions they sought generally did not impose a burden on persons
outside their community. En breve, the exemptions they sought were narrow and
contained.3

Por ejemplo, the Amish plaintiffs in Wisconsin v. Yoder (1972) wanted the free-
dom to educate their children at home.4 They did not question the need to edu-
cate their children, but instead argued that Amish teenagers would benefit from
the home-based vocational training that would better equip them for the life most
would eventually lead. They did not attack the state’s authority to mandate sec-
ondary education for the majority of children. Similarmente, the Native American
plaintiffs in Employment Division v. Herrero (1990) sought relief from narcotics laws
that impeded them from smoking peyote as required in their religious rituals.5
They did not argue that their right to religious liberty gave them a license to con-
sume other illegal drugs, or even to ingest sacramental drugs outside of the ritual
configuración.

In Sherbert v. Verner (1963), the plaintiff, a Seventh-day Adventist, challenged
a South Carolina decision that rendered her ineligible to receive unemployment
compensation because she refused to work on Saturday, which was her Sabbath.
South Carolina law already accommodated those who refused to work on Sunday,
in accordance with the religious views of the majority of the population. Adell Sher-
bert did not want to take the Sunday exemption away from anyone else. She sim-
ply wanted to claim an analogous benefit for herself. Extending the same consider-
ation to Seventh-day Adventists, who constitute less than 1 percent of the popula-
ción, would not harm the majority or even significantly burden the public purse.6

The new religious liberty plaintiffs do not fit that pattern in three respects.
Primero, they are not politically powerless minorities. It is true that many religious
conservatives see themselves as marginalized and derided, particularly in elite
universidades. Al mismo tiempo, sin embargo, they wield significant political and cul-

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149 (3) Summer 2020Cathleen Kaveny

tural power, as the election of Donald Trump demonstrates. The shifting compo-
sition of the Supreme Court, and the dominance of the Federalist Society in the
selection of lower-court judges, testifies to the ability of conservatives, and partic-
ularly religious conservatives, to marshal political forces in a more or less evenly
divided public square. Not only do they have an agenda for society, they also have
a realistic chance of accomplishing it.

Segundo, the plaintiffs in recent religious liberty cases are not isolated from the
broader society. Some plaintiffs are not individuals, but rather corporations that
are integrated into the life of communities across the nation and whose decisions
have an impact on many others. Hobby Lobby is not a small business tucked away
in the hillside. Its eight hundred stores grace malls and shopping plazas across
the country.7 Furthermore, by their own admission, the owners of Hobby Lobby
see their wealth as a gift from God, and as a means of evangelizing the culture.8
They have provided substantial support to the Museum of the Bible in Washing-
tonelada, CORRIENTE CONTINUA., which proffers a particular (and contestable) view of biblical history
to thousands of visitors each year.9 By contrast, the owner of Masterpiece Cake-
shop, who refused on religious grounds to serve same-sex wedding customers, era
a small businessman. Yet his was a public business, which attracted customers not
only through storefront sales, but also by Internet advertising.10

Tercero, the new religious liberty plaintiffs are not morally and politically quies-
centavo. The Little Sisters of the Poor believe that abortion and artificial contracep-
tion are morally wrong for everyone, not simply for Roman Catholics.11 Evangeli-
cal Protestants such as the owners of Masterpiece Cakeshop believe that the ex-
tension of the institution of marriage to include same-sex couples is premised on
a faulty understanding of the nature and purpose of sexual union–for everyone.
They do not seek merely to be left alone. En cambio, they wish to convince the coun-
try that their moral views describe the correct way to live, not only for Christians,
but for everyone. They do not avoid political engagement; they actively pursue it.
I do not mean to suggest, por supuesto, that the plaintiffs are acting alone. In many of
these high-profile cases, they are cooperating with the legal and moral program of
their attorneys and advisors, who often select them as the “face” of their cause for
strategic reasons.

The status of the new religious liberty plaintiffs shapes the litigation of their
claims. It alters the appropriate description of the relief they seek from the courts.
It also distorts the application of the four-pronged test applied to religious liberty
claims under the Religious Freedom Restoration Act (RFRA).12 That test asks the
plaintiff to show that it has a) a sincere religious belief on which the law impinges;
and b) that the impingement counts as a substantial burden upon that belief. Cor-
relatively, it asks the government to show that c) the objectionable law is justified
by a compelling state interest, which d) the government has pursued with the least
restrictive means.

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesThe Ironies of the New Religious Liberty Litigation

Exemptions and “As Ifs.” Religious liberty plaintiffs commonly say they are seek-
ing an “exemption” from prevailing law. The word “exemption” comes from the
Latin word exemire, which means to remove, take out, or take away. But the goal of
many contemporary religious liberty plaintiffs is not removal; it is reform. Within
their moral worldview, the positive law mandating contraceptive coverage, por-
mitting abortion, and enabling same-sex marriage is not legitimate, because it is
an unjust law. They want to be able to act as if that positive law has not been enact-
ed, because they do not believe it is fully binding as law.

What are the differences between an exemption and an “as if”? The concept
of exemption centrally applies in three cases: Primero, it applies in cases involving
activities that are physically and temporally set apart from day-to-day life, como
religious rituals. Participants in the ritual claim only that the laws they challenge
(such as laws against using narcotics) should not apply in this context. Ellos son
perfectly willing to follow it in other times and places. Segundo, the term exemp-
tion applies when a community (such as the Amish) sets itself entirely apart from
broader societal norms in whole or in part. Tercero, it makes sense to talk of an ex-
emption when religious communities seek to displace the secular law so that they
can follow their own norms on particular well-defined topics, such as divorce and
remarriage.

But the exemption concept does not work as well in cases in which the claim-
ant is making a general judgment about the injustice of the law as it applies to ev-
eryone. Martin Luther King Jr., Por ejemplo, would not have been satisfied with
a mere exemption to the Jim Crow regime. As his “Letter from Birmingham Jail”
testifies, he believed the laws mandating segregation were unjust laws in the eyes
of God. He acted as if they were not binding, because in his view, they were not.
And acting as if the positive law was not binding was part of a step to changing
that positive law to better conform to the moral law.

The same can be said about the plaintiffs in the new religious liberty cases. El
legal relief they seek is not best understood as an exemption. They do not want
to be exempted from modern society: they do not want to be carved out from it,
or set apart from it, in whole or in part. They want, en cambio, to transform it. Ellos
want to live as if the unjust law has not been enacted in order to invite others to
live that way as well, and eventually, to overturn the law that they believe to be un-
justo. In these religious liberty cases, the goals of exemption are transmuted into
the goals of civil disobedience, but without the personal costs.

What difference does it make that plaintiffs in the new religious liberty cases
are asking for an “as if” form of relief rather than an exemption? Primero, y más
generally, the cases are conceived and litigated as part of a broader culture war.
Como consecuencia, they implicate both the stability and the pedagogical value of the
law in ways that the older cases did not. Segundo, the stakes of granting an exemp-
tion become higher for their opponents, because they cannot avoid the recogni-

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149 (3) Summer 2020Cathleen Kaveny

tion that they will not receive similar treatment when they become the minority
asking for accommodation for their beliefs.

Sincerity and Burdens. RFRA requires the plaintiff to show both that they have a
sincere religious belief and that the law they challenge imposes a substantial bur-
den on their ability to act on that belief. En la práctica, sin embargo, the courts limit their
inquiry to whether the plaintiff’s objections to the law are sincere. Quite under-
standably, the courts do not want to put themselves in the position of weighing
burdens on religious belief. Doing so would require judges to put themselves in
the religious framework of the plaintiffs, and thereby risk excessive entanglement
between church and state. Yet reducing “substantial burden” to “sincerity” also
has its dangers, which are exacerbated in the new religious liberty wars.

Qué, exactly, is a sincere objection to a burden? Does it need to be tied nar-
rowly to the legally required act itself, or can it relate to the broader consequences
of the act? Considerar, de nuevo, the Little Sisters of the Poor, who objected to sign-
ing a form saying that they refused to provide contraceptive coverage on religious
grounds. That act, viewed in isolation, was surely not burdensome. The burden
was being conscripted, no matter how tenuously, into a regulatory scheme that
could result in the provision of contraception to their employees.

What about objections that are sincerely strategic? The University of Notre
Dame joined the U.S. Catholic bishops and the Little Sisters of the Poor in vocif-
erously objecting to the contraceptive mandate. After they won the case, sin embargo,
Notre Dame voluntarily decided to cover contraceptives (but not abortifacients)
in its employee health plan. The University could not have sincerely objected to
the act required of them by the law, since they did so voluntarily. What they did ob-
ject to was the fact that it was required of them. Notre Dame sincerely feared that
if the government could impose a contraceptive mandate today, it might require
them to cover abortions tomorrow. Theirs was a strategic, slippery-slope sincerity.
Finalmente, my sincere objection may be keyed to my moral assessment of the law.
I may honestly experience each of its burdens as onerous, no matter how minimal
they may be in themselves, simply because I believe them all to be unjust. The sub-
jective weight of a burden, después de todo, is correlated to our sense of its meaning and
purpose. Is being sincerely upset at being slightly impinged upon by what I believe
to be an immoral law enough to qualify as substantially burdened? Or does the
demand of action or inaction need be onerous in itself?

Compelling State Interests and Competing Moral Perspectives. Once the plaintiff has
met its obligation to show a sincere religious belief that is substantially burdened
by the law in question, it is time to consider the government’s response. The gov-
ernment must show that the law furthers a compelling state interest, which is pur-
sued with the least restrictive means.

But this raises a question: whose perspective on the merits of the law should
the courts adopt? This question was not pressing in many older religious liberty

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesThe Ironies of the New Religious Liberty Litigation

cases because the plaintiffs were not interested in challenging the law’s general
applicability or undermining the legitimacy of the interests that it furthers. Pero
it does matter a great deal in the new cases, since competing views on the merits
of the law correspond to broader divisions in society, and even within the judicial
branch itself.

So how should judges decide whether the government interest is compelling?
That term involves a value judgment. To many people, por supuesto, birth control is
morally unproblematic. But others think differently: they hold that no govern-
mental interest furthered by the provision of cost-free birth control can be com-
pelling because no ends can justify morally objectionable means. I suspect that
judges in recent cases have sidestepped this issue by avoiding direct consideration
of the moral values animating a piece of legislation, particularly if it embodies
moral values to which they are hostile. En cambio, they bring their values to bear in-
directly, by second-guessing the legislators in considering whether the law could
have been designed in a less restrictive way.

Consider Justice Samuel Alito’s majority opinion in Hobby Lobby. He assumed,
quickly and grudgingly, that the government had a compelling interest in provid-
ing contraception. Además, he reduced the governmental objective to its nar-
rowest possible mechanical description: “guaranteeing cost-free access to the
four challenged contraceptive methods.” But that is rather like saying that the aim
of the civil rights acts was limited to ensuring that African Americans could sit
anywhere they wanted on the bus. Just as the interest served by the civil rights acts
was racial equality, the interest served by the U.S. Department of Health and Hu-
man Services regulations was to provide seamless, integrated preventive health
care for women.

The skepticism Alito signaled about the weight of the government’s interest
did not dissipate when he assumed without deciding that the interest was compel-
ling. En cambio, it was channeled into his stringent application of the fourth prong
of the test, which asks whether the government could have used less restrictive
means to achieve that interest. He toyed with the argument raised by the plain-
tiffs that the government might have provided free contraception by expanding
another program, such as Title X. In the end, Alito simply decided that the govern-
ment could have expanded the exemption already in place for nonprofit objectors
to accommodate for-profit closely held companies like Hobby Lobby. He paid no
attention to their pragmatic and strategic reasons for not doing so, including the
difficulty of defining a “closely held” for-profit company.

T he four-pronged test for considering religious liberty claims has been re-

duced to one functional prong. Courts assume that religious believers sin-
cerely experience a significant burden, and that the government interest
furthered by the burdensome law is compelling. They consider only whether the

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149 (3) Summer 2020Cathleen Kaveny

law is as narrowly tailored as possible. Judges then become the equivalent of Mon-
day-morning quarterbacks, considering whether the state hypothetically could
have structured the requirement differently. For the new religious liberty plain-
tiffs, this contraction of the test is doubly ironic. Primero, and most important, it fur-
ther removes straightforward political and moral discourse from judicial reason-
En g. Segundo, it reduces the judicial task to second-guessing legislative strategy, Alabama-
though many of the plaintiffs adopt a judicial philosophy that rejects “legislating
from the bench.”

There are other ironies in the new religious liberty litigation. The new religious
liberty plaintiffs tend to be religiously and socially conservative, lamenting the
changes that have occurred in American society over the past half-century. Yet in
order to achieve victory in the courts, religious plaintiffs have reinforced aspects
of American life that they find deeply objectionable. Many of these features were
identified in philosopher Alasdair MacIntyre’s After Virtue, whose diagnosis of the
problems of contemporary liberalism has captured the imagination of many reli-
gious conservatives.13

MacIntyre contends that many denizens of contemporary liberal democracies
treat moral discourse in an emotivist manner: eso es, they hold the expression of
a moral judgment to be nothing more than an individual’s expression of a strong
feeling of attraction or aversion to a particular action.14 He maintains that the ap-
peal of emotivism is correlated with the continuing failure to make progress on
controversial moral issues such as abortion after the breakdown of a unified ac-
count of human flourishing and moral reasoning indebted to medieval Christen-
dominación. Most religious conservatives believe that their moral judgments are support-
ed by reason; they strive to refurbish the broader Christian view of flourishing
that would make those judgments intelligible. But their litigation strategy under-
cuts their ultimate aims. Precisely because “sincerity” has been the standard ap-
plied to plaintiffs, they have an incentive to highlight the emotional component of
their moral objection, rather than explicate its inner logic.

Por ejemplo, the decision of the Beckett Fund to have the Little Sisters of the
Poor serve as lead plaintiffs made sense strategically. They are not only nuns; ellos
are little sisters: their name invokes resonances of pious childhood innocence. De
course they would be viscerally repulsed by contraception, and only a moral mon-
ster would make them have anything to do with it. In this context, belaboring
the hard-headed analysis of Catholic moral theology would only muddy the wa-
ters. While Catholic teaching prohibits abortion, its views on complicity are far
more complicated.15 It is highly doubtful that the Little Sisters would have violat-
ed Catholic teaching on “cooperation with evil” if they had signed a government
form declaring their conscientious objection to providing contraception. Esto es
not to say, por supuesto, that the plaintiffs could not have tried to make such a case.
But given the applicable legal framework’s emphasis on “sincerity,” and the ten-

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesThe Ironies of the New Religious Liberty Litigation

dency of American culture to equate sincerity with honest and emotionally fueled
reaction, it would have been counterproductive for them to do so.

Many conservative Christians have also endorsed MacIntyre’s judgment that
liberal society encourages a corrosive and morally solipsistic individualism. Ellos
have lambasted the dominance of the language of individual rights in secular
liberal culture and lamented the concomitant occlusion of the language of duty
and obligation.16 Yet the legal strategy adopted by the plaintiffs in the new reli-
gious liberty cases has entrenched the individualistic, self-centered orientation of
rights language so often complained about by religious and social conservatives.
This charge may seem misplaced. Después de todo, organizations such as the Little Sis-
ters of the Poor, Catholic Charities, and the University of Notre Dame have rightly
claimed that their religious mission requires them to serve others. They ask only
to serve in a manner that is consistent with their own normative vision. Doesn’t
this make them altruistic, not morally self-centered?

They are altruistic, but on their own moral terms. And that is the key. We may
helpfully distinguish between the ground and the object of their activities. Mientras
the object is other-regarding, the ground is entirely self-regarding. In framing
their cases for legal consumption, the new religious liberty plaintiffs focused ex-
clusively on their own rights, understood in a narrow sense: their rights to fol-
low their own moral code in employing and providing services to others. Más-
más, they claim the right to act as if they had no duties to others who in good
conscience did not view matters such as same-sex marriage, contraception, o
abortion in the same manner.

For deeply and devoutly Roman Catholic plaintiffs, this constricted and de-
contextualized understanding of rights language is ironic, por tres razones. Primero,
the Roman Catholic tradition has not understood rights in a way that is abstracted
from a more holistic understanding of the good of the entire community. Segundo,
in the Catholic moral tradition, rights are not to be defined separately and set off
against duties. Tercero, since the Second Vatican Council, official Catholic teaching
has acknowledged the need for all people in pluralistic societies to recognize the
dignity of those who do not understand moral claims in the same way they do. En
hecho, granting recognition is a moral duty of a Catholic institution. Recognizing
the dignity of others with different moral views requires developing a set of hab-
es, including imaginative empathy, compassion, and a lively sense of fairness. Él
may be within my legal rights to take a particular action, but is it morally right to
hazlo? Will it build up admirable qualities of character, enabling me to more ful-
ly flourish as a member of the community? Asking these questions, por supuesto, es
not good litigation strategy. The exclusive focus on protecting and defending our
rights consumes all the moral air in the room.

In MacIntyre’s view, moral obligations are deeply tied to one’s social role.17
Roles not only empower the individuals who inhabit them, they also create legiti-

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mate expectations (and to that extent moral obligations) on the part of those who
interact with the role-holder. Desafortunadamente, recent religious liberty litigation has
not encouraged plaintiffs to reflect critically on their variegated social and insti-
tutional roles, the practices associated with those roles, or the legitimate expecta-
tions that can be associated with those roles on the part of third parties.

Recent religious liberty plaintiffs tend to highlight two roles, both of which
pertain to the divine-human relationship. Primero, they present themselves as chil-
dren of God, who are obliged to follow the moral rules that God has imparted to
His children. Segundo, they present themselves as a prophetic witness to God’s
palabra, to provide the secular world with a clear model of upright behavior. Pero
divine child and prophetic witness are not the only roles that these plaintiffs oc-
cupy. They also occupy roles that deeply embed them within society, roles which
(as MacIntyre pointed out) generate a rich set of obligations, some of which are
reciprocal.

The Little Sisters of the Poor are an employer, and some of their employees
are not conservative Roman Catholics. Masterpiece Cakeshop holds itself out not
only as a specialty bakery, but also as a participant in the stream of commerce,
which is open to all comers. Hobby Lobby may be a closely held corporation–the
number of people who own it is small–but it is also a very large enterprise, em-
ploying thirty-eight thousand people. What shape does the moral obligation to
respect the conscience of others take for those who inhabit these roles? Someone
might object that the stylized combat of constitutional litigation is not the appro-
priate place for such self-reflection on the part of religious plaintiffs. That is true
suficiente. Yet it is also true that litigation should not supplant or distort such reflec-
tion within religious communities themselves.

T he plaintiffs in the new religious liberty cases have been largely victorious.

They have likely won the legal right to refuse to include contraception,
gender transition measures, and abortion in their health care packages.
They may have won, at least under certain conditions, the legal right to refuse ser-
vice to same-sex couples. But under what conditions should they exercise these
legal rights? The question is important because it is not always morally justified
to exercise a legal right.

We might find the necessary insight to address these questions by exploring
the convergences of two concepts: civic friendship, drawn on by Western philos-
ophers from Aristotle to Rawls, and the Golden Rule, which many religious tradi-
tions view as incorporating their core moral insights. Both concepts ask the plain-
tiffs to reflect on their obligations, not only their rights, as members of a broader,
pluralistic community. They ask the plaintiffs to view themselves in a complex
web of relationships, in which they are not only vulnerable, but also powerful.
Además, they invite the plaintiffs to see these relationships not as comprising a

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series of fleeting transactions, but as extending over time, and partially constitu-
tive of their own character. They encourage the plaintiffs to see their moral flour-
ishing, por lo tanto, as connected to acting with integrity in the society in which they
live: a pluralistic liberal democracy. Some think that these concepts are too gener-
al and even vacuous to provide much guidance. I am not quite so skeptical about
their usefulness. While they may not provide a fully developed moral charter of
rights and obligations, they do channel our attention in a fruitful direction, asking
us to look away from our own interest and to step into the shoes of other people in
the community.

Civic Friendship and Reciprocity. The ideal of civic friendship is an old one. It is dif-
ficult to apply to our geographically dispersed and pluralistic society. Consequent-
ly, it is beyond the scope of this essay to work out fully the implications of civ-
ic friendship for our current controversies over religious liberty; I can only point
to key issues. Brevemente, I think civic friendship requires a) equal political standing;
b) prima facie regard for the determinations of one another’s conscience; and c)
a certain reciprocity with respect to d) the common project of maintaining our
liberal representative democracy. Working out what each term means with re-
spect to the task of religious liberty is a complicated undertaking. I can only begin
it here by focusing on the criterion of reciprocity. The challenges it poses for reli-
gious liberty exemptions help explain the social tensions we face over the granting
de ellos.

At its basic level, reciprocity means that over time, I hold myself ready to ex-
tend to you considerations analogous to the ones that I expect from you. En el
context of private friendship, it requires each friend to cultivate the dispositions
to give and to receive. Civic friendship also requires reciprocity. Contemporary
political and legal theorists have argued that reciprocity is at the basis of the rule of
law: each of us promises to give up our freedom to advance our own self-interest
in the way we view best in exchange for the promise of everyone else to do the
same thing. Breaking the law, on this view, is a violation of reciprocity because one
takes for oneself a liberty that has not been accorded to everyone else.

How might the claim of reciprocity operate in the case of religious liberty
claims in our constitutional democracy? We might begin with a simple observa-
ción: generally, in the United States, the majority gets to make the laws. At first
glance, reciprocity could mean that I promise that if I am in the majority, I will
make an exception (as best I can) to my generally applicable laws in order to ac-
commodate your deeply held religious/moral beliefs. You promise to do the same
if you are in the majority. Working out what this promise and expectation of reci-
procity means in concrete cases is very challenging. We run into problems of both
form and substance.

Let’s look first at prohibitions. Say that the law prohibits action X, and I want
an exemption so that I can perform action X for religiously infused moral reasons.

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149 (3) Summer 2020Cathleen Kaveny

Let us suppose, también, that the prohibition is controversial. In deciding whether
to grant an exemption, the defenders of the prohibition are doubtless considering
their own status if the prohibition is repealed. But what would reciprocity look
like if this were to transpire?

If the prohibition is lifted, por supuesto, those opposed to the act are not obliged to
engage it. En algunos casos, that may be enough to protect their sphere of moral ac-
ción, if the prohibition relates to a ritual requirement they understand as binding
only on members of a particular social group. So, if the Utah legislature repealed a
law banning restaurants from serving coffee, Latter Day Saints would arguably be
fine. But prohibitions and restrictions that encode widely applicable judgments
about common morality and the common good raise different questions.

Por ejemplo, religious conservatives opposed repealing laws stringently re-
stricting divorce. They reacted with frustration to remarks like: “If you don’t like
divorce, just don’t get one.” They think the law against divorce is an important
piece of the common morality. It is not dissimilar to the reaction of post-repeal
Prohibitionists to the retort, “If you don’t approve of drinking alcohol, just don’t
drink.” The problem, in their view, was not the actual act of taking a sip of alcohol.
The problem was the moral climate created when many people drink many sips of
alcohol. When Prohibition was repealed, the idea of an exemption for its propo-
nents was nonsensical, for two reasons. Primero, an exemption from a permission is
logically impossible. Segundo, and more important, the real problem was that the
religiously infused moral and political worldview of the Prohibitionists was de-
feated. From that sort of defeat, there is no exemption. And there is no reciprocity.
What about the potential for reciprocity in the case of exemptions from legal
requirements? In these situations, the law requires me to perform act Y, and I do not
want to perform act Y. De nuevo, assume I think the requirement is based on the im-
position of false and alien morality. Por ejemplo, consider the situation of a reli-
giously based social service agency that refuses to place children for adoption with
same-sex couples. It would be possible to grant the agency an exemption, allow-
ing it to place children only with opposite-sex couples. In many cases, sin embargo,
the exemption is only a second-best option. Some such agencies are run by reli-
gious traditions that do not believe any agency should place children with same-
sex couples. In their ideal world, such placements would be prohibited, porque
they are bad for the children and bad for the community. So those who consider
whether to grant or deny the exemption will recognize that reciprocity is not like-
ly to be forthcoming if same-sex marriage is someday abolished.

In addition to prohibitions and requiring certain actions, the law also compris-
es enablements, which empower patterns of activities and relationships. Enable-
ments are not requirements and prohibitions. Yet to be effective, an enablement
often needs to be buttressed by both. Consider the new institution of same-sex
marriage. A baker who refuses to make a cake for a same-sex wedding does not

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesThe Ironies of the New Religious Liberty Litigation

“disobey” the enablement, but he does thwart it. Should he be granted an exemp-
ción? In considering this question, the proponents of same-sex marriage must be
mindful of the fact that claims for religious liberty are not isolated pleas for ac-
commodation, but instead function as loci of political-moral contestation. Those
who object to same-sex marriage would eradicate it for everyone. Como consecuencia,
the challenge of the requirement of reciprocity bleeds into the challenge of the
“as if” that I discussed earlier. It is one thing to give an exemption to a discrete re-
ligious or moral group that a) does not think the norm they follow applies to those
who do not belong to their group; and/or b) is not engaged in a viable struggle to
legally (re)establish that norm in the broader community. But it is another thing
entirely to grant an exemption to a group that sees the exemption not as an article
of peace with the dominant culture, but as a staging area to wage a culture war. En
the latter type of situation, an exemption may be politically wise; it may function
as a political-moral “escape valve.” But given the concerns about reciprocity, es
difficult to justify in principle.

The Golden Rule and Role Relations. “Do unto others as you would have them do
unto you.” As many philosophers have noted, the Golden Rule is a formal require-
mento. It is not hard to imagine a ruthlessly consistent Nazi saying, “If I were a Jew,
I should be killed too.” At the same time, the Golden Rule is not without substan-
tive ethical import. Primero, it has epistemological implications; it encourages agents
to gather more information about the impact of their actions through an imagina-
tive exercise. Segundo, it has arêtic implications. It encourages agents to exercise
the virtue of empathy with those who will be most affected by their actions.

The most significant impact of the Golden Rule, I think, will be encouraging
religious liberty plaintiffs to consider the obligations incumbent upon them by
virtue of their role relationships. In the Hobby Lobby case, the majority held that
closely held for-profit corporations are eligible to make religious liberty claims.
The Golden Rule invites employers to ask themselves how they would respond to
the imposition of an alien morality as a condition of their own employment. Cómo
would they feel if the shoe were on the other foot? Answering this question in a
noncircular way requires thinking more systematically about the role relationship
between employers and employees. The new religious liberty plaintiffs need to
address the question: what are the characteristics of a virtuous employer?

An employer is not a parent, nor an overlord, nor a teacher. In my view, es
best to see employers as engaged in a limited common project with their employ-
ees, which limits what can justly be expected of the employees. Hobby Lobby’s
owners may be evangelical Christians, but its purposes as set forth in its articles
of incorporation in effect at the time of the lawsuit are thoroughly secular. Within
limits, an employer is entitled to control an employee’s behavior on the job. Todavía
restrictions that extend to their personal lives require a heavy justification. Para
ejemplo, a counselor at an addiction treatment center can legitimately be prohib-

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149 (3) Summer 2020Cathleen Kaveny

ited from using drugs or alcohol, and the spokesperson for a vegan diet/lifestyle
brand can legitimately be contractually prohibited from eating meat. In these sit-
uations, the objectives of the enterprise legitimately extend into the employees’
personal lives.

A heavy burden falls on employers that want to constrict what employees can
do with their compensation. It would be possible for Hobby Lobby to enter into
a contract with its employees which prohibited them from purchasing pornog-
raphy, contraceptives, and abortions with their wages. But to do so would be to
step far beyond the rightful bounds of its role as an employer. I believe the same
can be said of health care benefits, which are part of an employee’s compensation
package. The federal government has developed a basic benefits package that was
designed to maintain the health of the covered individual and the whole popu-
lación. Employers who consider psychiatry or contraception morally illegitimate
can certainly make their views known to their employees. They can petition the
government to revise the standard benefits package. Yet they ought not overstep
the boundaries of their role, to rewrite the benefits package according to their own
medical-moral lights.

Recent religious liberty litigation may have provided a successful tactic for so-
cial conservatives fighting the culture war. In using that tactic, sin embargo, social
conservatives may have blunted their own most powerful critique of Western lib-
eral society: its atomistic individualism, its reduction of morality to feelings, y
its inability to think in terms of the common good rather than the contestation of
interés. If the litigation sorts out largely in their favor, perhaps religious entities
will move beyond the categories of First Amendment cases and retrieve their own
moral commitments. They may ask themselves two questions: what do we owe
others as a matter of civic friendship in a pluralistic society, and how should we
exercise the power we have, given our own role-related obligations and the Gold-
en Rule? The answers they develop may put us all on a more stable path for living
together peacefully and with mutual regard.

nota del autor

A draft of this essay was presented at a research seminar on “Religion and Democ-
racy” in Rome in March 2019, which was sponsored by the Institute of Religion
and Critical Inquiry of the Australian Catholic University. I would like to thank
the seminar’s organizers, Robert Audi (Nuestra dama) and James McLaren (Austra-
lian Catholic University) for their hospitality, and them and all the participants for
their insightful comments. I am particularly grateful for the reflections of Marta
Soniewicka (Jagiellonian University), who served as my respondent at the semi-

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Dédalo, la Revista de la Academia Estadounidense de las Artes & SciencesThe Ironies of the New Religious Liberty Litigation

nar. I also benefited from the comments of Mark Silk (Trinity College) and Steven
Herrero (University of San Diego); I appreciate their insight even as I honor their
continuing disagreements with my approach.

Sobre el Autor

Cathleen Kaveny is the Darald and Juliet Libby Professor of Law and Theology
at Boston College. She is the author of over one hundred articles and Ethics at the Edges of
Law: Christian Moralists and American Legal Thought (2018), A Culture of Engagement: Law,
Religión, and Morality (2016), and Prophecy without Contempt: Religious Discourse in the Pub-
lic Square (2016). She served as a law clerk for the Hon. Juan T.. Noonan Jr. on the Unit-
ed States Court of Appeals for the Ninth Circuit. In 2018–2019, she was the Cary and
Ann Maguire Chair in Ethics and American History in the Kluge Center at the Library
of Congress. She is currently writing a book on complicity with wrongdoing from an in-
terdisciplinary perspective.

notas finales

1 Burwell v. Hobby Lobby Stores, Cª, 573 A NOSOTROS. 682 (2014).

2 Masterpiece Cakeshop, Limitado. v. Colorado Civil Rights Commission, 584 A NOSOTROS. ___, 138 S. Ct. 1719

(2018).

3 In United States v. Seeger, 380 A NOSOTROS. 163 (1965), the Supreme Court held that the religion-based
exemption in the Universal Military Training and Service Act of 1948 must be extended
to “sincere and meaningful belief which occupies in the life of its possessor a place par-
allel” to the place occupied by God in the lives of those who generally seek the exemp-
ción. But the Court upheld the requirement that successful applicants for the exemp-
tion object to all war, not merely to a particular war in Gillette v. United States, 401 A NOSOTROS. 437
(1971). It is true that successful conscientious objectors oppose war for everyone, no
merely themselves. But there is little chance that they will succeed in convincing the
nation to lay down its arms in all cases.

4 Wisconsin v. Yoder, 406 A NOSOTROS. 205 (1972).

5 Employment Division v. Herrero, 494 A NOSOTROS. 872 (1990).

6 Sherbert v. Verner, 374 A NOSOTROS. 398 (1963), was essentially overruled by Employment Division v.
Smith as a matter of constitutional interpretation. Its force was partially restored (en
least with respect to federal regulation) by the Religious Freedom Restoration Act of
1993 (RFRA).

7 Hobby Lobby, “Our Story,” https://www.hobbylobby.com/about-us/our-story.

8 David Solomon, “Meet David Green: Hobby Lobby’s Biblical Millionaire,” Forbes,
Octubre 8, 2012, https://www.forbes.com/sites/briansolomon/2012/09/18/david-green
-the-biblical-billionaire-backing-the-evangelical-movement/#2757a8e35807.

9 Elizabeth Dias, “The Family Behind a $500 Million Bible Museum Hopes to Change
Washington,” Time, Noviembre 17, 2017, http://time.com/5029473/bible-museum-steve
-green-hobby-lobby/.

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149 (3) Summer 2020Cathleen Kaveny

10 Julie Compton, “Meet the Couple Behind the Masterpiece Cakeshop Case,” NBC
Noticias, December 6, 2017, https://www.nbcnews.com/feature/nbc-out/meet-couple
-behind-masterpiece-cakeshop-supreme-court-case-n826976.

11 De hecho, the United States Conference of Catholic Bishops strongly urged that the man-
date be repealed in its entirety. “Only rescission will eliminate all of the serious mor-
al problems the mandate creates; only rescission will correct HHS’s legally flawed in-
terpretation of the term ‘preventive services.’” Office of the General Counsel, United
States Conference of Catholic Bishops, Letter to Centers for Medicare & Medicaid Ser-
vicios, Department of Health and Human Services, Agosto 31, 2011, http://www.usccb
.org/issues-and-action/religious-liberty/hhs-mandate/upload/Interim-Final
-Rules-on-Preventive-Services.pdf.

12 The Religious Freedom Restoration Act of 1993 (RFRA), Pub. l. No. 103-141, 107 Stat. 1488
(Noviembre 16, 1993), codified at 42 USC. § 2000bb through 42 USC. § 2000bb-4.
RFRA represented widespread rejection of Justice Scalia’s majority opinion in Employ-
ment Division v. Herrero, which relaxed the protections given to free exercise. RFRA re-
established the more stringent test to evaluate governmental actions that interfered
with free exercise that was articulated in Sherbert v. Verner. In City of Boerne v. Flores, 521
A NOSOTROS. 507 (1997), the Supreme Court held that RFRA was unconstitutional as applied to
the states. Because the issue in Hobby Lobby revolved around federal regulation, RFRA
applied in that case.

13 Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 3rd ed. (Nuestra dama, Ind.: Uni-

versity of Notre Dame Press, 2007).

14 Ibídem., cap. 1.
15 Traditional manuals of moral theology have not condemned nurses who handed a doc-
tor the instrument with which to perform an abortion. The rationale is that they are
performing their routine work, albeit in a morally illicit procedure. Ver, Por ejemplo,
Gerald Kelly, Medico-Moral Problems (Calle. luis, Mo.: Catholic Health Association, 1958),
332–333.

16 Ver, Por ejemplo, Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse

(Nueva York: Free Press, 1993).

17 MacIntyre connects virtues to character, and character to social role and role-related ob-
ligations. See chapter 3 of After Virtue. The argument is clearest in Alasdair MacIntyre,
Whose Justice? Which Rationality? (Notre Dame, Ind.: University of Notre Dame Press,
1988).

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