Transforming Religious Liberties

In Transforming Religious Liberties, S.I. Strong attempts to frame a comprehensive theory of religious freedom. She builds her account from first principles of liberal political philosophy and she applies it to a wide range of free exercise and nonestablishment issues, not only in one country but in several, as well as in international law. The result is a detailed analysis that will prove interesting and valuable for scholars working on religious freedom in many parts of the world.

Strong starts with Rawls’s theory of political liberalism, but she modifies it to develop an approach that she calls the “religiously oriented original position” (6, 94). In particular, Strong proposes three changes to political liberalism. First, she argues that religious practice ought to receive the same level of protection as religious belief (104). Second, religious liberty should be given “utmost precedence” or “absolute precedence” over all other freedoms and interests (105). Third, the original position should be altered so that parties know the content of their religious beliefs, though not anything else about their conceptions of the good, their preferences, or their social locations (109; cf. John Rawls, Political Liberalism, Columbia University Press, 2005, 24).

Strong’s impetus for proposing these alterations seems to be dissatisfaction with Rawls’s political liberalism among religious believers. Specifically, “religious persons” complain that Rawls separates religious belief and practice, protecting the former absolutely but the latter only conditionally; that his political liberalism reinforces the public/private distinction rejected by many believers; and that he fails to fully appreciate the primacy that religious people give to their beliefs and practices (99-100). Altering political liberalism to answer these objections makes the theory more acceptable to believers, who have come to view the state and society as “anti-religious” (103, 107).

Even though religious beliefs are known to parties in the original position in Strong’s proposal, and even though those beliefs and associated practices are given absolute priority, Strong argues that the result will be a legal system that guarantees equality among religious and nonreligious individuals (111). After all, parties in the original position will appreciate the fact of religious diversity among the populace, and they will refuse to accept a system that coerces or denigrates anyone’s faith (115-16).

But why wouldn’t religious representatives decide to elevate belief in general over nonbelief? One answer Strong gives is that parties to the original position will include nonbelievers who will refuse to accept religious favoritism as part of an overlapping consensus (112). Another answer is that the term “religion” should be defined broadly, so that it includes any “‘sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by God’” for traditional believers—a definition that includes many nonbelievers (133, quoting United States v. Seeger, 30 U.S. 163, 176 [1965]). Her conclusion is that parties to the religiously oriented original position “reach the same conclusion that Rawls does” on the importance of religious equality, but they do so using reasoning that will be more persuasive to adherents (116).

Strong recognizes that some people will understand her theory to “destroy the very basis for political liberalism,” since it directs parties to give absolute priority to religious freedom (106). For many, the whole point of political liberalism is to develop a political conception of justice that does not depend on contested comprehensive doctrines, including religious ones (see Rawls, 9-10, 47-48). Not only is her theory perfectionist, but the value it seeks to perfect is not free and equal citizenship itself but a guarantee of maximum latitude for religious beliefs and practices (106). She also understands that her argument “departs from both classical and Rawlsian liberalism and moves toward a non-liberal system of justice,” but she accepts that evaluation, observing that even a nonliberal conception of political justice “can be acceptable under the rule of law if it respects structural and conceptual boundaries” (106).

This admission generates an interesting tension. On the one hand, Strong believes that her theory will generate a basic framework for equal freedom of conscience that is virtually indistinguishable from Rawls’s (116). On the other hand, however, she is happy to jettison the liberal tradition (106). What results from this paradox seems to be a theory that must be evaluated on its own terms, without reference to either political theology or political liberalism.

Transforming Religious Liberties then proposes a comprehensive approach to conflicts over the relationship between religion and government. Strong divides these conflicts into four categories: (1) where religious persons seek to engage in activities that have no effect on others, such as wearing religious clothing in violation of workplace rules (her example); (2) where religious people seek to engage in activities that do affect others, such as refusing to work on the Sabbath and requiring other employees to cover for them; (3) where religious people forbid others to engage in activities that have no effect on those others, such as forcing individuals not to use contraception (her perplexing example); and (4) where religious people forbid others to engage in activities that do harm others, such as prohibiting same-sex couples from sexual intimacy (119-20). Within each of these categories, she further distinguishes between acts and refusals to act. Chapters 4 through 7 address these four types of conflicts, taking them in turn and proposing solutions.

In the course of this analysis, Strong confronts an issue that has become newly prominent in the United States and elsewhere, namely whether religious exemptions can be granted when they entail harm to others. Religious practitioners have argued for exemptions from civil rights laws in cases like Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 137 S.Ct. 2290 (2017) (granting cert.). In such cases, granting a religious exemption harms the individuals who are protected by antidiscrimination laws. Scholars and lawyers have responded by arguing for a constitutional principle against harm to others (see for example my recent book Religious Freedom in an Egalitarian Age, Harvard University Press, 2017, 49-80 and sources cited there). According to that principle, also known as the “third-party harm” doctrine, government may not grant religious exemptions if that means imposing undue hardship on other private citizens. Strong confronts this issue, especially where she addresses cases in her category two, where religious people seek to engage in activities that have effects on others (208).

Strong’s solution is novel. She argues for a “tort theory of religious precedence,” under which religious actors would have a right to an exemption but they would be required to compensate third parties for any accompanying harm (204). Parties to the religiously oriented original position would agree to this regime because it would allow claimants to adhere to their faith while “minimiz[ing] hostility among non-religious people” (204). An advantage of Strong’s proposal is that it recognizes the seriousness of harms to third parties. “Forcing people to pay the price of another’s religious obligations,” she says, “threatens civil order and violates principles of personal autonomy and self-definition” (208). Shifting the burden back to the religious actor is therefore appropriate, in Strong’s view. For example, a religious employee who wanted to take off the Sabbath day could simply compensate the employer for overtime costs (cf. Trans World Airlines v. Hardison, 432 U.S. 63 [1977]). This resolution of the conflict in Hardison “epitomizes the religiously oriented original position’s tort theory” (221).

Strong’s tort theory raises many fascinating questions. For example, how would Hobby Lobby be decided under the approach she advocates? That case has been central to debates in the United States over third-party harm because the Supreme Court did not condition its ruling for the company on the absence of harm to employees. And because the Obama administration required some time to provide them with replacement coverage, employees went without coverage for more than a year, suffering irreparable damage (Tebbe, 51). One answer Strong gives is that Hobby Lobby would not be protected because it is a business corporation (121, 129). Another, more puzzling answer is that Hobby Lobby’s employees could not complain because their injury differed “only in degree, rather than in kind, from the sorts of … losses [they] might otherwise experience” (205). Strong herself does not apply that rule to Hobby Lobby, but it seems to require that the company’s employees could not protest because they lost only compensation. Why, on Strong’s own account, does this type of harm to third parties not raise exactly the same kinds of concerns as different-in-kind injuries? (Here I am assuming that contraception coverage differs only in degree, rather than in kind, from other forms of compensation for workers. But even if I am wrong about that, I could ask the same question about employees’ loss of minimum wages in Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 [1985], 148.) Unless I missed something in my several readings of the book, Strong does not say.

All in all, Strong’s book is well worth reading. It presents a full vision of religious freedom from the perspective of a knowledgeable theorist, and it does so in a detailed, inclusive manner. Specialists in these subjects will profit from engaging with that vision.

Nelson Tebbe is Professor of Law at Cornell University Law School.

Nelson Tebbe

Date Of Review:

February 19, 2018