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Should the Law Protect People from Being Viewed as Bigots?

photograph of statue in front of Supreme Court building

In a recent judicial statement, Supreme Court Justice Samuel Alito wrote that those who adhere “to traditional religious beliefs about homosexual conduct” are in danger of being “labeled as bigots” and “treated as such.” This kind of statement has become a familiar refrain for Alito, ever since the Supreme Court recognized the right to same-sex marriage in the 2015 decision Obergefell v. Hodges. In Alito’s dissenting opinion in Obergefell, he similarly worried that the Court’s decision would be used to “vilify Americans” who oppose same-sex marriage.

Part of Alito’s concern is that the Court’s recognition of same-sex marriage might influence how some people of faith will be treated (given that many who oppose same-sex marriage do so for religious reasons). He worries that some might take these rulings to suggest that certain religious beliefs are intolerant or hateful, and that this might threaten the religious freedom of those people as a result. I’ll return to the issue of religious freedom later.

But first, I think it is worth thinking through his concerns about people being vilified or treated as bigots – regardless of their particular religious beliefs – if they oppose same-sex marriage. Alito’s position seems to rest on an assumption that the law ought to protect people from being viewed as bigots, at least in this circumstance. This naturally leads to a question: is he right? Should courts, at least sometimes, interpret laws a certain way in order to protect people from being viewed as bigots?

The short answer, I think, is no. But this short answer deserves a longer explanation that involves some important philosophical considerations.

In thinking through this, it will be useful to try to get as clear as possible about what Alito’s complaint is and is not. Alito’s complaint is not that the Supreme Court is calling people who oppose same-sex marriage bigots. The Court hasn’t done that. Instead, Alito’s complaint seems to be that the Court has issued rulings that imply that people who oppose same-sex marriage are bigots, and that others will view and treat opponents of same-sex marriage as bigots as a result. Take, for example, a 2021 judicial statement from Justice Clarence Thomas that Alito joined. That statement claims that in Obergefell the Court suggested that those “who believe that marriage is a sacred institution between one man and one woman” were guilty of “espous[ing] a bigoted worldview.”

As evidence for this claim, Thomas cites several statements from the Court’s majority opinion in Obergefell where the Court stated, among other things, that excluding same-sex couples from the right to marry “demeans gays and lesbians,” and serves “to disrespect and subordinate” them. Thomas and Alito appear to implicitly assume that those who support actions that demean, disrespect, and subordinate LGBTQ people are behaving in a bigoted manner toward LGBTQ people.

Thus, part of Alito and Thomas’ reasoning seems to go like this:

1) If one supports a position that demeans, disrespects, and subordinates LGBTQ people, then one is a bigot.

2) The Supreme Court majority in Obergefell treats a position supported by those who oppose same-sex marriage as one that demeans, disrespects, and subordinates LGBTQ people.

3) Therefore, the Supreme Court implies that those who oppose same-sex marriage are bigots.

I use the word “implies” in the conclusion instead of “views” because it is not clear that Thomas and Alito think the Supreme Court majority in Obergefell accepts premise 1. On the contrary, the Court’s majority in Obergefell held that “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” But Alito and Thomas seem to think that this statement is insufficient to cancel the Court’s implication that those who oppose same-sex marriage are bigots.

For the sake of argument, let’s accept Alito and Thomas’ reasoning. This still leaves us with a question. How would the Court implying that those who oppose same-sex marriage are bigots lead other entities like “governments, employers, and schools” to view opponents of same-sex marriage as bigots? One reasonable answer is that Supreme Court decisions license certain views and actions by others. In other words, if the Supreme Court puts its stamp of approval on something, others are more likely to follow suit.

There is certainly something to this line of reasoning. For example, shortly after the Supreme Court held that a web designer had the right to refuse to make wedding websites for gay couples, a hairdresser announced that she would not serve transgender customers.

So let’s assume for the sake of argument that Alito and Thomas are right that the Court has implied that those who oppose same-sex marriage are bigots and that others are more likely to view those who oppose same-sex marriage as bigots as a result. Does this provide the Supreme Court with a reason to stop recognizing a right to same-sex marriage?

To answer this, consider an analogy. Imagine a court invalidates a law that allows employers to pay women less for the same work as men simply because they are women. Imagine the court does so on the grounds that such a law demeans, disrespects, and subordinates women. If we accept Alito and Thomas’ arguments, by analogy, this should lead us to conclude that those who oppose equal pay for women are bigoted against women. But that consequence seems irrelevant to whether courts should require equal pay for women.

I expect that Alito would agree that courts may prevent sex-based pay discrimination, and that he would reject an argument that courts should avoid doing this simply because it may imply that those who oppose equal pay for women are bigots. If he would, he must differentiate this analogy from the case of the right to same-sex marriage. How might he do that?

First, he might claim that a relevant difference is that those who oppose equal pay for women are bigots, while those who oppose same-sex marriage are not. This is, of course, a controversial premise. But even if we grant this premise for the sake of argument, such a response fails. This is because the response overlooks the fact that the risk that someone might be viewed as a bigot doesn’t outweigh the important moral, political, and legal value of ensuring equality based on sex or sexual orientation. Whether or not those who oppose such equality are viewed as bigots shouldn’t be the controlling issue. This gets priorities wrong.

Second, Alito might claim that there is a special concern about religious liberty in the case of those who oppose same-sex marriage for religious reasons. Indeed, in his recent statement he worries specifically about those with “traditional religious views on questions of sexual morality” being viewed as bigots.

Two points are worth making in response. First, it is important to distinguish viewing someone’s religious beliefs as bigoted versus discriminating against someone because of their religious beliefs. We have compelling moral and legal reasons to prevent discrimination based on religion. That includes preventing discrimination based on religious belief. But one can view someone’s religious beliefs as bigoted without discriminating against them, and it’s important to not conflate the former with the latter. Alito seems to have distinct worries about religious opponents of same-sex marriage being discriminated against. But that is a separate issue that would require its own examination.

Second, even if an employer wants to pay women less than men for religious reasons, the court still ought to prevent employers from doing this, even if it implies that the employer’s religious beliefs are bigoted. This is, in part, because people are not prevented from retaining religious belief, even if those beliefs are considered bigoted by others. This is also, in part, because religious freedom doesn’t require that others — including the government — accept or act in accordance with one’s religious beliefs.

At this point, one might raise the following objection: While it is true that forbidding same-sex marriage harms many LGBTQ people, isn’t it also the case that permitting same-sex marriage will harm many religious believers? The potential harms to religious believers are of two types. First, religious believers might be viewed as intolerant or bigoted. Second, religious believers might be forced to sanction same-sex marriages in various ways that violate their consciences (e.g., by being required to provide goods or services for same-sex weddings). Why aren’t the harms to LGBTQ people and religious opponents of same-sex marriage here symmetrical?

The appropriate response comes in two parts, to correlate with the two types of potential harms to religious opponents of same-sex marriage. First, the harm of being viewed as intolerant or bigoted generally is not the kind of harm that the government has good reason to prevent. (There are exceptions to this general rule, like legal protections against defamation.) On the other hand, the government often has good reason to prevent groups of people from suffering harm by not being given equal access to basic rights, like the right to marry.

Second, the question of whether religious believers should be given exemptions from certain laws due to their opposition to same-sex marriage is a question that can and should be treated separately from the question over whether we should recognize a right to same-sex marriage. The ongoing debates over whether such exemptions should be granted are a separate issue. One can decide that it’s appropriate to grant such exemptions, even if one thinks that opposing same-sex marriage is hateful or intolerant. This is because religious freedom should be extended even to views that we find hateful or intolerant.

Thus, in short, while it is understandable that many who oppose same-sex marriage don’t want others to view them as bigots, this is not a situation that the law should seek to shield them from.

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Education and Parental Control

photograph of parent walking son to schoolbus

In the United States, parents have a curious sort of authority over the education of their children. On the one hand, parents have quite extensive legal authority over whether to send their children to public schools. On the other hand, parents have extremely limited legal authority over what happens within a public school. For an extremely accessible introduction to the state of current law, see this overview, written by the conservative lawyer David French.

As a parent, then, the primary way you can direct what your child is taught is through the choice of school. Your primary three options are:

  1. Send your child to the public school.
  2. Send your child to a private school.
  3. Homeschool your child.

But there is an important complication. Options 2 and 3 are not widely available to all parents. Private school is extremely expensive, and homeschooling, generally, requires a parent be able to stay home from work. Both options, then, are restricted to the relatively privileged.

Should we care? Well that depends on whether we think it’s important that parents be able to exercise substantial legal control over their children’s education. If we think that it is important, then it’s a serious problem that that control is restricted to parents who are wealthy or well-off.

So is it important? This is a surprisingly difficult question to answer. But before we look at possible answers, let’s try to clarify the question.

Clarifying the Question

It is easy to confuse the object-level question “should a child be taught x?” from the meta-level question “who should get to decide whether a child will be taught x?”.

Consider two cases.

One case occurs in today’s Virginia. A school includes in its English curriculum Toni Morrison’s Beloved. A parent opposes their child being required to read sexually explicit material.

The second case occurs in Jim Crow south. A school includes in its biology curriculum a pseudo-scientific article explaining that heritable genetic differences explain why the Black population is poorer than the white population in the United States. A parent opposes their child being required to read racist propaganda.

The object level question is: should the child have to read the material. And here the object level question is easy to answer. In the first case, yes. It is totally reasonable to require that high school students read Beloved. In the second case, no. It is totally unreasonable to teach students racist propaganda as fact.

But what we face is not an object-level question: what does an ideal curriculum look like? Rather, we face a meta-level question: when a parent and school disagree, who should get final say over what the child is taught?

If you answer the school in the first case and the parent in the second case, you are not actually answering the meta-level question. Rather, what you are saying is that you should just be the final arbiter in all such conflicts. Or perhaps that ‘whoever is right’ should get the final say. But unfortunately neither of those are principles that we are able to implement.

So we are still left with a meta-level question. This is not the question of which answer is right, but what procedure should we use to reach an answer. In this case, the meta-level question is should parents be able to overrule a school’s curriculum when they have moral objections to the content of what is taught?

This is not a choice between authority or no authority. Rather, it is a question of which authority, where the main two options are parents or voters (where voters act indirectly through electing the school board or members of government).

This meta-level question is what we need to answer. I don’t have my own answer, but here are three approaches I find plausible.

Approach 1: Whatever is Most Likely to Help Children

Tucker Sechrest, in a separate Prindle Post, suggests that we should generally decide the meta-level question against parents. He suggests that “the belief that parents are best-positioned to judge the educational merits of scholastic programs disrespects the expertise of educators.”

He reaches this position because he thinks that the question of who should get to decide for children ultimately comes down to who is most likely to promote the interests of the child.

Parents merely act as stewards of a child’s future until that youth herself becomes capable of exercising an autonomous will. While we often defer to parents because we think that mother or father might know best, this should not be confused with universal permission; there are very real limits to freedom parents can exercise in determining what’s best for their child. … The state is obligated to protect vulnerable populations who cannot defend (or even express) their interests. It must oppose parental choices which threaten to constrain children’s future options or inhibit their growth and development.

This still leaves an important role for parents. School boards cannot micromanage policy for each student since they don’t know the particular details of each student’s life. Parents do know those details, and thus parents are often better positioned to decide questions like:

  • Should a child skip second grade?
  • What extracurriculars should the child do?
  • Would this child thrive in a Montessori environment?

However, parents should only get to make decisions about the sort of questions where parents are more likely to get the right answer. Because parents are not education experts, they should not decide what students should read in an English or Biology class.

Sure, sometimes a parent will be right and the school system wrong (as in the imagined racist pseudo-science case), but since in most cases of conflict parents will be wrong, Tucker thinks we decide the meta-level question in favor of schools.

The first answer has a lot going for it. But it is important to recognize that it likely entails a massive increase in the power of government over the raising of children.

Tucker illustrates his approach with examples like these:

We limit parental authority to refuse medical treatment for their child, school children are required to have MMR vaccinations, and most states set homeschooling requirements regarding assessment, parents’ qualifications, and curriculum approval.

But these are generally minimal requirements. Parents cannot refuse life-saving medication. But they don’t need to take other recommendations from doctors (even though it’s surely the case that doctors make more reliable medical decisions than parents).

Similarly, do I really need to think that parents are more likely to discern the true religion to think that parents should be able to decide on the religious education of their children? In Medieval Christendom, states did not require Jewish parents to baptize their children Catholic. This was not because the state thought that individual parents were more likely than the state to be correct about religion. Rather, it was because people thought that parents had the right to set the religious education of their children.

Medieval law did not say parents could do whatever to their children. Abandoning or killing a child was still murder. But these were limits on the natural rights of parents, not the result of thinking that the most qualified person always gets final say.

Similarly, our current law does not say that parents can only make decisions that they are more likely to get right. Rather, parents have authority over their children about most questions but there are limits to how far that authority goes. These limits are not placed where we think parents become less reliable than the state, but rather where we think parental mistakes would reach the point of child abuse (denying lifesaving treatment, not providing a minimally adequate education, etc.).

Approach 2: Family and Natural Rights

Our first approach treated the family as a construct, a useful organizational scheme for ensuring that children are treated well. Because of that, the rights of parents extend only as far as those rights are useful to the maximal well-being of children.

Another answer holds that parents have natural rights over their children. These rights have limits (such as concerning life-saving treatment), but parents have a default claim to raise their children as they think best.

The idea that parents have some natural rights over children is an old one. A version of this view was held by both John Locke and by Immanuel Kant. My favorite formulation, however, comes in Catholic Social Theology.

In the Charter of the Rights of the Family, the Catholic Church claims that “the family, a natural society, exists prior to the State or any other community, and possesses inherent rights which are inalienable.” Parental authority is not a construction for the public good, but is a natural institution that sets limits on the authority of the state.

Given such a view, it is unsurprising that the Charter goes on to argue that parents should have extensive control over education:

Since they have conferred life on their children, parents have the original, primary and inalienable right to educate them; hence they must be acknowledged as the first and foremost educators of their children.

… Parents have the right to freely choose schools or other means necessary to educate their children in keeping with their convictions. … Parents have the right to ensure that their children are not compelled to attend classes which are not in agreement with their own moral and religious convictions. In particular, sex education is a basic right of the parents and must always be carried out under their close supervision, whether at home or in educational centers chosen and controlled by them.

Of course many people are skeptical of these sorts of natural rights. And it’s perhaps unsurprising that the best articulation of them comes from the Catholic Church, natural rights fit more naturally within a religious moral universe.

So let’s consider one last secular perspective that might also answer the meta-level question in favor of parents.

Approach 3: Pluralism and Liberal Limits on the State

In political philosophy, there is an old conflict between democracy and liberalism. Democracy is simply rule by the people, but that can easily be a tyrannical rule. If we all vote for a state religion, that vote is democratic but it is not liberal. It is illiberal for the majority to enforce their religious values on the minority, even if doing so is dictated by the popular will.

Part of what we want in a liberal order, then, is space for a moral and religious pluralism. We don’t want the government to impose a set of values on people, rather we want the government to construct a fair, shared arena in which people are able to live their own lives in light of their own values.

Within this perspective, however, anytime the government takes on the role of moral education, we have reason to worry. It is one thing for a government to try and educate the citizenry in what they believe to be the right values, but it is another thing entirely if there is no way to opt-out of that education. The moment that moral education becomes compulsory, liberals worry that the state is well on its way to compulsory propaganda.

Even if it turns out that the government’s values are right, we don’t necessarily want the government to be able to use coercive power to impose those values on future generations. Doing so risks destroying the very pluralism and disagreement that secures many of the benefits of a political order.

Of course it might also be bad when parents impose mistaken values on children; but at least different parents impose different values. The government poses a unique danger of imposing a homogenized moral education through the power of legal coercion.

On the liberal view, the meta-level question is decided in favor of parents, not because parents are more likely to have the correct values, nor because parents have a natural right over children, but because broadly distributing educational authority provides a check against the state.

What About our Problem?

If we accept an answer to the meta-level question that says parental authority is important, then as a society we face a real moral problem.

Right now, parental authority over education is largely restricted to those who are well-off. And thus an important social good (maybe a natural right, maybe a check against the state) is denied to parents without many resources.

There are two possible solutions to this problem.

First, you could change the legal status quo. Right now parents have authority over whether their kids go to public school, but very little authority within public school. We could change that, we could create more parental transparency over school curriculum, and give parents the power to opt their children out of some portions.

This, however, could be logistically unfeasible.

Second, you might keep the legal status quo but empower parents with other schooling options. For example, you might increase the use of charter schools and educational vouchers. If it is an important public good that parents can direct the religious education of their children, then perhaps parents should be able to use state resources to send their children to religious private or charter schools.

(There are serious worries about educational vouchers, however. Though, working through those would require a much longer piece.)

Conclusion

Right now, parents have power over their children’s education, but most of that power is reserved to the privileged. If that parental power is important, then the current system is unjust. But it’s unclear what the best solution moving forward might be.

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Parents’ Rights and Public Education

There’s been no shortage of post-mortems detailing Terry McAuliffe’s defeat at the hands of Glenn Youngkin in Tuesday night’s gubernatorial contest. Most accounts target one issue in particular: education. They point to school lockdowns and curriculum complaints as having sealed McAuliffe’s political fate. More specifically, it was McAuliffe’s declaration that “I don’t think parents should be telling schools what they should teach” that was responsible for driving away white, suburban moms and flipping the state from blue to red. In the end, the governor’s race in Virginia was decided by a single concern: parents’ rights.

However true this tale may or may not be, it seems vital to investigate our convictions regarding paternalism, autonomy, and the conflict between state interests and parents’ rights. How far should these rights extend? What function does the state serve in providing public education? And who should get the final say over school curricula? While the story’s already been written, we should take a moment to consider whether McAuliffe’s remark really was the obvious gaffe it’s been made out to be.

Certainly there’s always been a presumption in favor of familial discretion; it’s commonly held that households should be free to handle their own affairs. Consider, for example, Wisconsin v. Yoder. State law mandated that all children attend public school until age 16. But three different Amish families challenged the state’s right to compel attendance. They argued that compulsory education precluded their children from meaningful participation in their religious faith. High school instruction only interfered with these young adults’ religious development and integration into communal culture. Ultimately, exposure to the alternative values and worldviews preached in secondary school constituted a threat to the Amish way of life. Whatever worldly knowledge they might be taught at school paled in comparison to the vocational training they would receive at home.

In a unanimous decision (7-0), the Supreme Court found that these families’ right to freedom of religion outweighed the state’s interest in seeing their children educated. While “some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system,” that imperative cannot justify trampling on other constitutional rights and liberties. This is true especially when a different, but commensurate, education remains on offer. As Chief Justice Burger explained,

The State’s claim that it is empowered, as parens patriae (parent of the people), to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained […], for the Amish have introduced convincing evidence that […] forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society.

On its face, the court’s decision in Yoder might seem to provide absolute license for parents to dictate all aspects of their child’s education. Contrary to McAullife’s insistence that parents butt out, Yoder seems to suggest that the buck stops with them.

In reality, however, the ruling is much more limited than it might first appear. First, it only applies to cases where public education runs up against very specific First Amendment religious protections. Second, much of the ruling hinges on the Amish’s unique way of life. As Burger notes,

It is one thing to say that compulsory education for a year or two beyond the eighth grade may be necessary when its goal is the preparation of the child for life in modern society as the majority live, but it is quite another if the goal of education be viewed as the preparation of the child for life in the separated agrarian community that is the keystone of the Amish faith.

Given the unique (and especially isolated) way of life the Amish practice, it’s easier to explain how these students’ withdrawal from public school wouldn’t “materially detract from the welfare of society.”

Still, we shouldn’t make assumptions about the inevitable shape a developing child’s life will take. Justice White was quick to point out that while it’s more than likely that an Amish child “will wish to continue living the rural life of their parents,” others “may wish to become nuclear physicists, ballet dancers, computer programmers, or historians, and for these occupations, formal training will be necessary.” As such, the state has a crucial role to play in helping “prepare them for the lifestyle that they may later choose, or at least to provide them with an option other than the life they have led in the past.”

But if this is so central to the purpose of public schooling, why let these students opt-out? The court decided that the difference between an eighth grade education and a tenth grade education was so slight that the state couldn’t justify interfering with the families’ (but, more importantly, the children’s) religiously-informed convictions.

This finding, then, is much more limited than what parents’ rights advocates would have us believe. There is no broad license granted. There exists no basis for parents’ expansive and inviolable rights. There is no precedent in favor of parents picking and choosing which educational line items to approve and which to discard. Growth and development are stunted in insular settings; learning is about confronting the unfamiliar. Our commitment to consumer choice and rugged individualism blinds us to the role the village plays in raising our child, but that doesn’t make the proverb any less true.

Apart from the obvious practical problems with imbuing every parent with a veto right over school curricula, the belief that parents are best-positioned to judge the educational merits of scholastic programs disrespects the expertise of educators. There’s reason to doubt that parents possess innate knowledge of the intellectual and psychological needs of students better than teachers.

Ultimately, the battle cry of “parents’ rights!” fails to appreciate the person whose interests are actually at stake in these confrontations: children. Parents merely act as stewards of a child’s future until that youth herself becomes capable of exercising an autonomous will. While we often defer to parents because we think that mother or father might know best, this should not be confused with universal permission; there are very real limits to freedom parents can exercise in determining what’s best for their child. Despite often acting as guardians of their child’s individual interests, there are all sorts of issues where we do not grant parents final say. We limit parental authority to refuse medical treatment for their child, school children are required to have MMR vaccinations, and most states set homeschooling requirements regarding assessment, parents’ qualifications, and curriculum approval. Why? Because the state is obligated to protect vulnerable populations who cannot defend (or even express) their interests. It must oppose parental choices which threaten to constrain children’s future options or inhibit their growth and development. State intervention isn’t about reducing parents’ freedom but ensuring its future conditions for the child. (Consider the battle being waged over sex education in schools.)

In the end, we must recognize that public schools don’t operate to serve parents’ whims; they exist to ensure that children have the necessary tools to develop into fully autonomous adults. Certainly, parents enjoy the ability to impact their child’s education through electing school board representatives, voicing their opinions, and supplementing their child’s education, but they don’t have the right to demand that school curricula accommodate their personal worldviews and private desires. While there are legitimate causes and complaints, a ban on Toni Morrison’s Beloved cannot qualify.

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Confirming Amy Coney Barrett: Against Secularism or For Religious Freedom?

photograph of Trump and Judge Barrett at nomination ceremony

On September 26, President Trump announced he would be nominating Amy Coney Barrett to fill the Supreme Court seat recently vacated by the departed Justice Ruth Bade Ginsburg. This decision is not only controversial considering the fact that recent political precedent would imply that the winner of the upcoming election should choose the next Justice, but also because of the perception that Barrett is not only under qualified to sit on the Court, but also potentially unfit considering her strong religious views. Barrett is a stout Catholic, member of the spiritual group People of Praise,  and has been vocal about the influence of faith on judicial ethos. Various politicians, activists, and even those with personal ties to Barrett have expressed staunch opposition to her nomination, most strongly on the basis of her perceived bias. However, in response to this criticism, many have come to her defense, arguing that not confirming Barrett on the basis of her religion is in fact religious discrimination.

Are these critics right to assert Barrett’s religious views are a conflict of interest? Are her defenders right to argue religious discrimination? And which is the correct interpretation of the First Amendment: secularism or religious freedom?

Secularism is informed by secular ethics, which derives morality from the human experience and rationale, rather than perceived higher powers or specific religious text or tradition. Secular states are countries guided by secular values in the political and governance process, neither favoring nor discriminating against any specific religion. The majority of countries in the world are considered secular states, including the United States.

The majority of the arguments over Barrett concern different interpretations of the principle of secularism. The principle of secularism aims to separate the state from any religious guidance or influence. In the United States, this concept is often boiled down to the “religious freedom” communicated in the First Amendment of the United States Constitution. Republicans, and others defending Barrett argue that to use her faith, or its influence on her, as a ground for not approving her is in itself religious discrimination. Critics, though not Senate Democrats specifically, are wary of Barrett because of their concern that her entire judicial philosophy is anti-secular if it is influenced by her faith.

This is not the first time that Barrett’s religious views have been brought up in the context of her judicial discretion. In 2017, Barrett was nominated for a federal judicial appointment by President Trump. During her confirmation hearing, Democratic Senator Barbara Feinstein expressed the concern that “The dogma lives loudly” within Barrett. Feinstein’s comment was simultaneously blasted as an expression of religious discrimination and rebranded by Catholics across the internet proudly. After Barrett’s nomination, this interaction has been visited again by Democrats and Republicans alike, by the former to reassert concern for her religious bias and by the latter to imply that much of the criticism of Barrett results from religious intolerance. Both of these concerns can be backed up by evidence. On the one hand, the current Supreme Court hosts 5 Catholics, by far more than any other religion. Despite this newfound domination of the bench, historically only 13 Catholics have ever sat on the Supreme Court, despite making up roughly 20% of the United States population. Some, such as law professor Cathleen Kaveny argue that the recent appointment of so many Catholics to the Supreme Court is a “victory over historic prejudice.” While Catholics do not face much modern day social persecution in the United States, that has not always been the case. Between the late 19th century and early 20th century, Catholicism in America was associated mainly with immigrants from Northern and Eastern Europe. These groups were discriminated against not only due to their immigrant and ethnic status, but also on the basis that Catholicism was morally perverse. Historically, Catholics were one of the groups targeted by the Ku Klux Klan, though this is not necessarily the case in modern times.

On the other hand, a Supreme Court made up of staunchly religious Justices, or too many from a certain religious faith, arguably stands in direct opposition to the principle of secularism. This guiding principle, most commonly associated with the separation of church and state, has been highly regarded since the formation of the United States. While the separation of church and state is often brought up in reference to legislative attempts to favor or discriminate on the basis of religion, the Supreme Court’s role in consistent affirmation of secularism is paramount to its existence. The Court regularly makes judicial decisions which involve the First Amendment, for example, recently in American Legion et al. v. American Humanist Assn. et al. Having a court made up with even a few deeply religious justices could impact the judicial philosophy of the most powerful court in this country. This alone a cause for concern considering the fact that certain religious traditions take hard, and sometimes unpopular stances on highly debatable moral issues. This is especially true of the religious group that Barrett identifies with, the People of Praise, which has been criticized for its reinforcement of gender roles and female subordination.

Outside of her possible beliefs, Barrett has been vocal about how her faith guides her stance on abortion, despite the fact that the majority of Americans support a woman’s right to choose. While the popularity of a certain legal stance does not necessarily speak to its morality, there is certainly an ethical value in having a judicial system which is fairly representative of the moral inclinations of the majority of the population. While the Supreme Court is not meant to be a political or moral institution, there are certainly righteous ethical concerns about our Justices sitting on the extreme end of the moral spectrum and serving to guide the legal interpretation and judicial discretion in every courtroom in America.

Barrett’s faith is not the only aspect about her which could guide one’s moral stance on her fitness to serve on the Supreme Court. Her age, gender, and even personal life might also be taken into account when deciding how one feels about her nomination. However, as long as discussions about her faith dominate political and media debate, our moral inclinations about her religious views will likely guide whether or not we believe she should be confirmed.

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Freedom of Religion Is Not Absolute

photograph of empty church pews

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

On April 7, 2020, prior to the Easter Holiday on Sunday April 12, 2020, Kansas Governor Laura Kelly issued an executive order which, among other things, had the effect of limiting the size of religious gatherings to fewer than ten people. Gov. Kelly’s order differed from similar stay-at-home orders issued by the governors of other states during the COVID-19 pandemic, like Florida’s Gov. Rick DeSantis, in that it did not include an exception for religious services. Subsequently the Legislative Coordinating Council of the Kansas State Legislature voted to revoke nearly all of Gov. Kelly’s emergency powers asserted in her executive order. Gov. Kelly then sued the Legislative Coordinating Council (LCC) for attempting to impede her constitutional powers as the executive of Kansas. Subsequently the Kansas Supreme Court upheld Gov. Kelly’s order, thus overturning the vote of the LCC.

The reporting on this case frames it as a decision between public health and religious liberty. This was, in fact, one of the stated concerns of the Kansas State Legislature’s LCC. However, the Kansas Supreme Court’s decision did not directly touch on issues of religious liberty. Instead the court reached its decision on procedural grounds, arguing that the Kansas State Legislature in general could not be a party to this lawsuit and that further the LCC did not have the authority in this instance to revoke Gov. Kelly’s executive order. That is, the LCC’s vote was null and void, as if it had never occurred.

Let us suppose, however, that the court had deigned to examine the constitutionality of Gov. Kelly’s order with respect to freedom of religion. Would they inevitably have found that the freedom of religion of the citizens of Kansas has been impaired? After all, the First Amendment in the US Bill of Rights says that Congress shall make no law restricting the free exercise of religion. Further the Kansas Constitution’s Bill of Rights says something similar in its seventh section, stating that its citizens will never have their right to worship God according to their conscience infringed. Despite this uncompromising rhetoric, it is not a forgone conclusion that the court would have found in favor of the LCC.

No person’s rights exist in a vacuum. Each right that one person bears creates corresponding obligations on the part of other people, groups, or institutions. Your right to the free exercise of religion creates an obligation on the part of various levels of government, at the very least, to refrain from interfering in how you choose to worship. However, that doesn’t allow you to do anything you please to me under the auspices of your religion. My own right to religious freedom, among the others I bear, must also be safeguarded by the government. Should your freedom of religion come into conflict with some right of mine, some form of adjudication would be needed. In other words, which have been attributed to numerous writers, “Your rights end where my nose begins.”

Here we can make sense of an important concept in arguments about constitutional law—the idea of a strict scrutiny. A case in which it is alleged that a fundamental right has been infringed, or in which a law is alleged to be enacted or enforced selectively against a “suspect classification” (e.g., religion or nationality) compels the court to review that case under standards of strict scrutiny. Among other things the government must demonstrate that its actions, where they infringe upon a fundamental right or disproportionately affect a protected group, do so for a compelling interest. What might such an interest be? For example, protecting another group’s fundamental rights. Hence the government may restrict your freedom of religion, to the minimum extent possible, if doing so is an effective and direct way to protect other citizens’ right to life. (That is, in judicial jargon, the government’s actions are “narrowly tailored” to achieve its compelling interest.)

Do orders like Gov. Kelly’s satisfy a strict scrutiny test? They clearly do. The state has a compelling interest to protect the lives of its citizens. Moreover, the restrictions laid out by stay-at-home orders are narrowly tailored; they prohibit physical gatherings of more than ten people, except for essential activities. This is narrow tailoring because it limits the breadth of the restrictions as much as possible. The restrictions would fail to be narrow if they, for example, forbade any people from coming within ten feet of each other for any purpose whatsoever. Nor are virtual gatherings forbidden. (Many worshipers are taking advantage of various teleconferencing technologies to observe their religious holidays responsibly.) Further, any gatherings that do occur should involve significant physical distance between each participant. These requirements are in line with epidemiological guidelines for minimizing the likelihood of viral spread by bodily contact and aerial exchange. Hence the restrictions are also directly linked to the achievement of the compelling interest to protect the lives of citizens.

Is all of the grand rhetoric about inviolable and inalienable rights just so much hot air, then? What can it mean that Congress shall make no law limiting the free expression of religion if it is acceptable that people should sometime be limited in the expression of their religion? It means simply that the government—or at least parts of it, occasionally—realizes that rights are things held in common by all citizens at once. The adjudication of conflicting rights claims ought not be interpreted as a decision that some kind of right, or some particular person’s right, has mysteriously evaporated for a time. Rather it ought to be interpreted as courts figuring out exactly how all citizens can bear all fundamental rights at all times. Only a narrow and selfish view of your rights can lead you to insist that you can indulge yourself at the cost of other citizens’ life and liberty.

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Religious Liberty and Science Education

photograph of empty science classroom

In November, the Ohio House of Representatives passed “The Ohio Student Religious Liberty Act of 2019.” The law quickly garnered media attention because it seems to allow students to get answers wrong without penalty if the reason they get those answers wrong is because of their religious beliefs. The language of the new law is the following:

Sec. 3320.03. No school district board of education, governing authority of a community school […], or board of trustees of a college-preparatory boarding school […] shall prohibit a student from engaging in religious expression in the completion of homework, artwork, or other written or oral assignments. Assignment grades and scores shall be calculated using ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and shall not penalize or reward a student based on the religious content of a student’s work.

Sponsors of the bill claim that students will be required to learn the material they are being taught, and to answer questions in the way that the curriculum supports regardless of whether they agree with it. Opponents of the law disagree. The language of the legislation prohibits teachers from penalizing the work of a student when that work is expressive of religious belief. This seems to entail that a teacher cannot give a student a bad grade if that student gets an answer wrong for religious reasons. In any event, the vagueness of the law may affect the actions of teachers. They might be reluctant to grade assignments correctly if they think doing so may put them at odds with the law.

Ohio is not the only state in which bills like this are being considered, though most have failed to pass for one reason or another. Some states, such as Arizona, Florida, Maine, and Virginia have attempted to pass “controversial issues” bills. The bills take various forms. Arizona Bill 202, for example, attempted to prohibit teachers from advocating any positions on issues that are mentioned in the platform of any major political party (a similar bill was proposed in Maine). This has implications for teaching evolution and anthropogenic climate change in science classes. Other controversial issue bills prohibit schools from punishing teachers who teach evolution or climate change as if they are scientifically controversial.

Much of the recent action is motivated by attitudes about Next Generation Science Standards, a science education program developed by 26 states in conjunction with the National Science Teachers Association, the American Association for the Advancement of Science, and the National Research Council. The program aims to teach science in active ways that emphasize the important role that scientific knowledge plays in innovation, the development of new technologies, and in responsible stewardship of the natural environment. NGSS has encountered some resistance in state legislatures because the curriculum includes education on the topics of evolution and anthropogenic climate change.

Advocates of these laws make a number of different arguments. First, all things being equal, there is value in freedom of conscience. We should set up our public spaces in such a way that respects the fact that people can believe what they want to believe. The U.S. Constitution was intentionally written in a way that provides protections for citizens to form beliefs independently of the will of governments. In response, an opponent of this legislation might say that imposing a set of standards for curriculum based on the best available evidence is not the same thing as forcing citizens to endorse a particular set of beliefs. A student can learn about evolution or anthropogenic climate change, all the while disagreeing with what they are learning.

A second, related argument might be that school curriculum and grading policies should respect the role that religion plays in people’s lives. For many, religion provides life with meaning, peace, and hope. Given the importance of these values, our public institutions shouldn’t be taking steps that might undermine religion.

A third argument concerns parental rights to raise children in the way that they see fit. This concern is content-neutral. It might be a principle that everyone should respect. Parents have significant interests in the way that their children turn out, and as a result they have interests in avoiding what they might view as indoctrination of their children by the government. Attendance at school is mandatory for children. If the government is going to force them to attend, they shouldn’t be forced to “learn” things that their parents might not want them to hear.

A fourth argument has to do with the value of free speech and the expression of alternative positions. It is always valuable to hear opposing positions, even those that are in opposition to received scientific knowledge, so that science doesn’t just become another form of dogma. In response, opponents would likely argue that we get closer to the truth when we assess the validity of opposing viewpoints, but not all opposing viewpoints are created equal. Students only have so much time dedicated to learning science in school, so if opposing positions are considered in the classroom, perhaps it is best if they are positions advocated by scientists. Moreover, if a particular view reflects only the opinion of a small segment of the scientific community, perhaps it is a waste of valuable time to discuss those positions at all.

Opponents of this kind of legislation would insist that those in charge of the education of our children must value best epistemic practices. Some belief-forming practices contribute to the formation of true beliefs more reliably than others. The scientific method and the peer review process are examples of these kinds of reliable practices. It is irresponsible to treat positions that are not supported by evidence as if they are equally deserving of acceptance as beliefs that are supported by evidence. Legislation of this type presents tribalism and various forms of pernicious cognitive bias as adequate evidence for belief.

Furthermore, opponents argue, the passage of these bills is nothing more than political grandstanding—attempts to solve non-existent problems. The United States Constitution already protects the religious liberty of students. Additional legislation is not necessary.

Education, in part, is the creation of responsible, productive, autonomous citizens. What’s more, the issues at stake are crucially important. Denying the existence of anthropogenic climate change has powerful, and even deadly, consequences for millions of current living beings, as well as future generations of beings. Our best hope is to create citizens who are well-informed on this issue and who are therefore in a good position to mitigate the effects and to construct meaningful climate policy in the future. This will be impossible if future generations are essentially climate illiterate.

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Conscientious Exemption, Reasonable Accommodation, and Dianne Hensley

On December 2nd, McLennan County Justice of the Peace Dianne Hensley was issued a public warning for refusing to perform same-sex marriages. She continued to perform marriages for heterosexual couples, but claimed that she was following her “conscience and religion” by abstaining from performing the non-straight marriages.

Hensley has been open about her policy and claimed in 2017 that she qualified for a “religious exemption” from performing this service for non-straight couples. She sees her position as grounded in her Christian faith, and therefore considers herself to be “entitled to accommodations just as much as anyone else.”

For the past several years Hensley’s office has refused to officiate same-sex marriages. In response to requests, Hensely and her staff offer a document explaining her reasoning and indicating other local qualified and willing alternative substitutes.

Hensley would not be the first public official to be reprimanded for not participating in the administration of same-sex marriages. In 2018, an Oregon Supreme Court judge was suspended for three years for refusing to conduct same-sex marriages. In 2015, in a case that garnered a great deal of national attention, Kimberly Davis, now a former county clerk in Kentucky, refused to issue marriage licenses to same-sex couples and was fired (this year she was declared vulnerable to lawsuits).

Hensley’s case is unique, however, because it is not a required part of her job to perform marriages at all. Officiating marriages is a way to earn “thousands of dollars in personal income,” but is optional for justices of the peace. Because officiating is optional, many of Hensley’s like-minded colleagues simply stopped performing them after the Supreme Court granted rights to gay couples.

The right to reasonable accommodation can be murky in cases like these. Roughly speaking, unreasonable accommodations are those that:

Typically accommodations are seen to be unreasonable because of the first or third consideration listed; if, in order to accommodate the needs or conscience of the employee, the job itself must be fundamentally altered, then the employer is not required to make such accommodation. Perhaps relatedly, if making such an accommodation is sufficiently burdensome for the employer, they need not provide it. For instance, a business would not be required to lower production standards or create a new position in order to accommodate an employee.

The justification for exemptions of conscience constitute a difficult area of labor ethics and fit uncomfortably with the right to reasonable accommodation. First, it is intuitive that we would not want a system to be in place where individuals could not live according to their values. However, this is not an unrestricted value, and there are intuitive constraints on when appeals to moral integrity would be reasonable: norms of professions and their role in our society will limit when individuals can conscientiously refuse.

Consider the case of a health care provider who finds it morally objectionable to provide some medical intervention. The context of the role of medical professionals in society plays an important part in determining the extent to which it makes sense to allow for such professionals to selectively abstain from providing services based on their conscience. Here, the particular social value that the training and care involved in health care providers make the professional standards especially pertinent. They possess both knowledge and skills that the public does not generally have and therefore the public must rely on them for part of their lives (health maintenance) that is particularly significant.

Thus, while moral integrity is deeply important, appropriate refusals must not run afoul of the role that professionals play in our society. In this, health care providers are likely in a similar category as justices of the peace: specialized training and skills that the general public relies on for unique and irreplaceable services.

One of the motivations behind the Texas commission’s complaint against Hensley is that, due to her discriminatory practices regarding officiating marriages, she is displaying a lack of ability to be impartial, which is certainly a requirement of a justice of the peace. This again might mirror concerns for health care providers that select which interventions to provide – such practices may indicate a provider is not being guided by norms of the profession and make decisions regarding medical interventions on medical grounds.

Some professions allow for personal conscience to guide professional decisions, but for most, the decision-making process for what to do is grounded in the professional aims, so one’s individual values are given sway only when the profession itself allows for leeway in making the decision. For example, a teacher who assigns grades randomly instead of according to some system grounded in pedagogy is flouting the professional norms of teaching. Teachers can assign grades on a number of bases, as long as they are pedagogical grounds – as long as they are serving recognizable pedagogical purposes. An instructor’s normative attitudes may be able to play some role in how they make teaching choices, but only in spaces that the profession allows for some leeway.

Similarly, in the healthcare profession, providers can adopt different degrees of risk aversion and styles of patient rapport, different philosophies of patient care and approaches to remaining up to date with treatment standards, but it is hard to see where any extra-medical leeway would come in: in controversial or difficult decision scenarios, health care providers are still expected to make decisions on medical grounds. Similar standards would apply for justices of the peace regarding the performance of their duties.

The particularly significant role that justices, teachers, and health care providers play in our society may be underlying the difficulty in motivating an exemption of conscience. That such professionals have special skills that provide critical services for public welfare means that it is important they not arbitrarily practice their professional role.

Compare these cases to the role conscience might play in other professions where the role is less integral to society’s well-functioning. Imagine a concierge is an ethical vegetarian, believing that consuming and purchasing meat products is against the dictates of morality. On the surface, this wouldn’t have a significant impact on her ability to be a good concierge. However, part of the job of a concierge is to give visitors information in order to guide them in the foreign city. Say this concierge considers it to be morally wrong to eat at steakhouses and that she would be morally complicit in the wrong of eating at steakhouses were she to direct patrons in their direction. Of course we wouldn’t want to make the vegetarian do things that make her uncomfortable, or lead an inauthentic life – and this is what grounds the value of moral integrity and the push to find grounds for conscientious refusals.

However, if the concierge makes decisions about how to treat visitors, or about how to go about her job based on non-concierg-ing reasons, it seems she is not meeting this standard for the profession; she is being a bad concierge. Concierges should guide visitors, and if the vegetarian concierge doesn’t do that, she is failing at conceirg-ing. It seems like this is similar in structure to other scenarios we could imagine as a matter of philosophical fiction, such as a Christian Scientist HCP or an Amish Apple store Genius. For such individuals, they have sincere moral grounds to refuse to engage with patients or clients in the way their profession dictates. So are these individuals’ moral attitudes consistent with their performance of their job or candidates for reasonable accommodation?

As for Hensley, she has support to “practice her religion” from members of conservative religious groups. They do not engage with the question of whether or to what extent some careers may simply be incompatible with the free practice of some religions. Since 2015, the Texas Justice Court Training Center has said that permitting a justice of the peace to perform only straight marriages lacked legal authority.

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Separating the Freedom of Religion from the Right to Discriminate

photograph of Israel Folau playing rugby

This week, GoFundMe shut down the campaign of Israel Folau, a top Australian rugby player who had set up an account up in an attempt to raise Aus $3 million to take legal action against Rugby Australia for terminating his contract. Folau’s contract was terminated last month for a high-level breach of the Professional Players’ Code of Conduct over his controversial social media posts. In many recent posts Folau had expressed his belief that, among others, homosexuals, adulterers, and atheists would go to hell unless they repented.

Folau is challenging his dismissal in the Fair Work Commission, arguing Rugby Australia violated his religious freedom. He is an evangelical Christian, and he claims that it is his responsibility to preach his religion. “I am… a Christian. My faith is the most important thing in my life. I try to live my life according to the Bible and I believe it is my duty to share the word of the Bible,” he said. GoFundMe’s manager Nicola Britton said in a statement “as a company, we are absolutely committed to the fight for equality for LGBTIQ+ people and fostering an environment of inclusivity.” 

The Fair Work Commission’s decision regarding Folau’s claim to have had his right to freedom of religion violated may have important ramifications for future challenges in workplaces and religious institutions both for religious people who want to exercise their right to carry out the tenets and responsibilities of their religious worship, and also for those against whom such freedoms may discriminate.

The Folau case is another iteration of an issue that has been widely problematized following Australia’s new same-sex marriage laws which came into effect in 2018; after which religious people’s concerns that they would not be allowed to refuse services to, or would be forced to teach the legitimacy of, same-sex couples led to the government conducting a review into religious freedom and to canvassing the possibility of legislating extra protections as well as instituting a commission to oversee protection of freedom of religion. 

“Unfortunately, GoFundMe has buckled to demands against the freedom of Australians to donate to his cause,” a spokesman for Folau said. “There appears to be a continuing campaign of discrimination against Israel and his supporters.”

Following GoFundMe’s closing of Folau’s funding campaign, he has received a $100,000 donation from the Australian Christian lobby. ACL managing director, Martyn Iles said “They [quiet Australians] feel the pinch of political correctness and the erosion of their basic freedoms.” Setting aside the point that Folau is anything but a ‘quiet Australian’, the salient point in these responses by Folau and his supporters is that they portray him as a victim of discrimination whose freedoms are being eroded. 

Freedom is at the core of many of our ethical principles and moral and political values. The UN Universal Declaration of Human Rights, adopted by the general assembly in 1948, specifies many types of freedom – such as freedom of speech, assembly, religion – that are enshrined as universal moral rights. 

These liberties serve as the fundamental lynchpin of democracy. In the Folau case, more than one fundamental democratic principle is at stake, and they appear to be at odds with one another. The first is the right to believe in, practice, and undertake religious activities. This right is enshrined in Article 18 of the international covenant on civil and political rights (ICCPR), to which Australia was an original signatory. The second is the right to freedom from discrimination, and according to Article 18 governments can limit religious freedom if it is “necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

Either those principles clash because they are fundamentally incompatible, or they clash in practice because of disagreements about how to apply them. This therefore raises the question of what exactly freedom of religion entails, and whether it includes the right to discriminate against those who do not share such beliefs. In short: how far does a person’s right of religious expression extend? 

The limitations placed on freedom of religion in Article 18(3) of the ICCPR provide an essential qualification on the capacity of one right to disproportionately impinge upon the exercise of other rights. Any concessions for freedom of religion must be balanced against rights to equality and non-discrimination. Freedom of religion is a right designed to protect religious persons from discrimination, it is not a free pass to allow the religiously-sanctioned discrimination against others, and those who try to co-opt it as such are being disingenuous. 

In a statement in defense of his claim that his religious freedom was being violated, Israel Folau said: “What makes our country so wonderful is that we have such a diverse community made up of so many different cultures and values.” It is hard to read this remark as anything other than stunning hypocrisy, given that his mission appears to be nothing short of homogenization of the culture into a salvific vision of Christianity.

It is also worth remembering that freedom of religion is not traditionally a core tenet of the Christian religion – a fact to which the centuries of zealous missionary efforts to convert non-Christians the world over is testament. Freedom of religion, as enshrined in the UN Universal Declaration of Human Rights, article 18, is a core secular principle. It is only when laws are no longer determined by religious beliefs that people’s freedom to worship in their own way becomes possible.