I greatly appreciate Maggie Garrett’s position in the religion and politics debate. I am particularly impressed by her work with many religious organizations and individuals and her commitment “to inviting people of faith and non-theists to the table on equal footing.”
However, Garrett’s view does not seem to me a fifth way, but rather a moderation of standard secular progressive views. That is, Garrett both supports the preeminence of secular justifications in politics and emphasizes many of the harms purportedly associated with extensive religious exemptions. Let me address both points in turn.
The Secular Justification Requirement
One position frequently found in the religion and politics literature is the liberal ideal of justifying laws and policies in terms of shared reasons, and in some cases, secular reasons. (There are probably no shared religious reasons, but there are unshared secular reasons, so the categories are different.) The secular progressive position is distinguished by its embrace of a shared reason requirement. And it appears that Garrett affirms a version of this requirement: “the government should not pass laws that are justified by religion but that lack legitimate secular justifications as well.”
Now, to be fair, this statement is a bit ambiguous. Garrett could mean that in a society with many secular people any justifiable law must be at least partly based on secular reasons. If so, then I agree. But if Garrett means that each person or group should have both secular and religious justifications for laws, the much more common position in the literature, then I dissent. It seems to me sufficient for respect for others and good citizenship that each person have reason, religious or secular, from her own perspective to endorse a law. Religious citizens do not need to generate secular reasons in addition to their religious reasons. So Garrett and I may well disagree here, but I’m not sure.
Garrett on Limiting Religious Exemptions (Gay Marriage)
Garrett also displays the standard secular progressive tendency to worry about the abuse of religious reasons as an excuse to impose harms on others. So while Garrett and I agree about same-sex marriage, we disagree about the scope of religious exemptions. Garrett worries that I turn religion into a “trump card” that “ignores the harm such exemptions inflict on others.” Her concern is that extending religious exemptions regarding same-sex marriage threatens to “disrespect, demean and deny rights” to gay couples. This is because gay couples have rights to “which they are entitled.”
Garrett’s language implies that affording religious exemptions to groups who do not wish to extend benefits to same-sex couples leads to their being harmed and demeaned. But this cannot be right. Are the rights of same-sex attracted persons violated by the fact that churches are exempt from providing them benefits? I don’t think so. Same-sex couples, like any couples, would be unreasonable to insist that everyone morally agree with their lifestyles. Allowing people to strongly, institutionally disagree does not generally harm them.
This argument is obvious in the case of churches, and it seems to me to extend naturally to religious non-profits and even closely held religious businesses (not publicly held businesses, which arguably have no conscience to be violated). So if some wedding cake makers do not want to provide wedding cakes to gay couples, gay couples are not thereby harmed or demeaned. They are not being rejected on the grounds that they are inferior or unequal, but rather because someone has a deeply held, conscientious objection to their union.
However, I admit an exception to this point. If, say, all wedding cake makers in some region of the country declined to sell to same-sex couples, this could have a stigmatizing effect. However, those requesting religious exemptions from extending benefits to gays are a sufficiently small portion of the population that the risk of stigmatization seems to me limited.
Garrett on Limiting Religious Exemptions (The Contraception Mandate)
Garrett also disagrees with my objections to the contraception mandate. She is obviously right that the mandate largely exempts religious nonprofits, though I disagree that there is no substantial burden on groups like Little Sisters of the Poor, who deny that they can in good conscience authorize others to provide contraception.
But even if the burden on the Little Sisters was not substantial, a classical liberal approach places the burden of justifying coercion on the coercer, in this case, the government. The core question is where the government gets its authority to insist that the Little Sisters of the Poor sign any paperwork at all. Progressives like Garrett wonder why the Little Sisters are making such a big deal out of signing a piece of paper. But classical liberals wonder why the government is making such a big deal out of signing a piece of paper. The burden of proof is on them. They have a thousand ways to fully exempt the Little Sisters without forcing them to comply, which seems to me arbitrary, authoritarian, and cruel.
I also reject Garrett’s argument that providing healthcare benefits “is no different from providing a paycheck.” For me, the key question is rather in whose view is providing healthcare benefits no different from providing a paycheck. When it comes to preserving religious liberty, we must appeal to how people understand their situation, rather than how it appears to us. And this seems obvious if the government proposed to force religious businesses to directly pay for abortion. Even if abortion is morally permissible, even if it is not a killing, what matters is that these businesses sincerely, reasonably believe otherwise, such that forcing them to comply would unacceptably violates their deeply held convictions. And if the argument works for abortion, then it seems to me to work for contraception as well.
I’m not sure why Garrett thinks that my view implies that “millions of women” will not have contraception coverage, however. The question for the classical liberal is whether there is a way to provide adequate contraception access without violating the religious liberty of non-profits and businesses. And there are obviously other ways. Two of them would be to directly subsidize the cost of contraception or to limit patent laws so that the market price of contraception falls. Or we could remove healthcare provision from employers entirely, either by moving toward a market-based system of healthcare or even toward single-payer. In the meanwhile, the government has no right to make religious institutions their proxies for advancing reasonably contestable values.
Finally, I think it is simply wrong to claim that my classical liberal approach allows religious citizens to deny the rights of others. The question I proposed to answer in my essay is argumentatively prior to Garrett’s: liberalism is a theory that helps us determine the contours of rights and the specification of harms that we should be protected against. On my view, religious reasoning plays a strong role in shaping the contours of those rights and conceptions of harms, such that no one counts as having their rights violated if someone refuses to bake them a cake or provide them with birth control.
Garrett Embodies the Spirit of Secular Progressivism
In sum, Garrett appears to have merely taken some of the edge off the standard secular progressive approach, partly restricting the use of religious reasons in public life, especially when it comes to religious exemptions. While I respect her appeals to neutrality and equality, it seems to me that she has misapplied these ideas in ways that effectively establish certain secular values as public values. This is especially obvious in her insistence that many citizens of faith be forced to recognize gay marriage and provide contraception coverage in their business practices. Such restrictions cannot be justified by appeal to the values of equality and neutrality alone. It requires diminishing the scope of religious liberty and, to a limited extent, it requires making secularism the law of the land.