Religion is a pervasive force that entangles the fibers of our daily experiences and the institutional pillars of a democratic system of government. It is an undeniable force for good and for ill, guided by the whims and structural defaults of a transcendent design, drawing mankind toward a process of creation and decay. As Paul Tillich remarked, religion is, in its most basic sense, a bridge between the grounded reality in life and the “all-determining” future “ground and substance of man's spiritual life” after death.Footnote 1
As such, religion is a force to be reckoned with: it can neither be shut out nor restrained from its baser tendencies toward dominion. It is a force that permeates Western legal institutions and goes to “the heart of [a] pluralistic society.”Footnote 2 The conscience, which often serves as the rudder that pilots the tension for religion in public life, must be confronted and understood as best we can. Edited by Susanna Mancini and Michel Rosenfeld, The Conscience Wars provides the reader just that: an opportunity to engage the topic through sixteen chapters contributed by noteworthy academics in the pursuit of finding a semblance of poise in the mental chaos that comes with any effort to balance a global discussion on something so endemic to the human fabric as religion. The book provides a methodology, as Stanley Fish notes, for moving toward a momentary détente (471–72). As Mancini and Rosenfeld note in their introduction, it gives the reader an opportunity for an intellectual confrontation with a dynamic system where “repoliticization and revival of strong religion” take center stage and the preservation of dignity and political liberty becomes increasingly difficult (5–8).
In this review, I engage with the text by considering the jurisprudential rubric laid out in the earlier chapters, the European context described throughout, and the American system rooted in a discussion of third-party harms. I set this discussion within wider questions concerning the Western modus vivendi—way of life—where limits on conscience, the standards of proportionality, and the necessary balance between governance and jurisdiction undergird the normative convictions of varying communities.
A Jurisprudential Rubric
Any discussion on conscience must include a jurisprudential framework, and The Conscience Wars does just that in part 1. Outlining the animating forces that create the “autonomization” of conscience through the movements of intellectual history, the first chapter sets the framework for all subsequent discussions within the purview of governing norms.
Beginning with the institutionalized measures of the Catholic Church centered on ecclesiastical authority, Julie Saada and Mark Antaki provide a wonderful backdrop for the reforming works of Martin Luther in his deinstitutionalizing pronouncements that set the conscience free and made of it a “sacred interior” (33). From then on, the conscience would be subject to its own rules and methods, second only to divine felicity. Correspondingly, this new freedom had its problems. Generating normative goals based on subjectivism and radicalization, and no longer wholly subject to the instrument of reason, individual conscience began to dictate the limits of legislative measures by creating new spheres of sovereignty that evaded most efforts to question its veracity (38–40).
This intellectual history spilled over into the discussion of contractarian voices like Thomas Hobbes and John Locke. With Hobbes, foreshadowing the modern schemes of privatized religion by those who fail to see its qualities of distinction, we find the creation of a limited forum internum, where the conscience enjoys a modicum of autonomy, always subject to the threat of revocation by the sovereign “public conscience” of the state (43). With Locke, while retaining concerns over the “anarchical consequences” of men who seek to conform their lives to the whims of conscience, a better theory emerged that embraced a tension between the market for revolt and the prerogative of the magistrate to taper the enthusiasm of men for the sake of social peace (46–47).
Saada and Antaki close their history by looking at the ideals of civil disobedience as the outpouring of conscience in the form of collective action toward a “transformation of the political community” (49). Here, we have an embrace of a collective dimension, distinct from the relegation of conscience to a forum internum, and an appeal to a transcendent purpose rooted in “one's collective responsibility” (49, 54–55).
Saada and Antaki lay out the spectrum for modern debates concerning the demands of religion and the burden that should be absorbed by the wider public, which Rosenfeld then takes up in his articulate discussion of competing standards based on his framework for comprehensive pluralism, which seeks to limit the corresponding harms that come with religious-based exemptions and facilitate the lessening of strife that emerges from public religion (101). Based on his linguistic components (such as self-regarding versus other-regarding, matters of principle versus matters of policy) for the consideration of competing claims ranging from abortion to LGBT equality, Rosenfeld argues for a “pluralist ethos” toward a “peaceful mutual accommodation of all represented religious and nonreligious conceptions of the good” (101).
While Rosenfeld's pluralistic ideal is tantalizing in its aspirational goals to overcome the “systematic privileging of liberalism,” his bent toward “equality among actual conceptions of the good” and his mental “trading places” ideal (akin to the veil of ignorance exercise from John Rawls) may prove difficult for those who aspire to a model of “religion as distinctive.”Footnote 3 By placing religious and nonreligious conceptions of the good ex ante on equal footing (66–69), Rosenfeld seemingly rejects the primacy of religion as the rudder for competing interests and undermines the security of secondary values that depend on the freedom of religion. This tension is discussed throughout the next few chapters, providing further tools for resolving disputes between competing fundamental interests.
For example, adding to the comprehensive pluralism design, Cécile Laborde offers her ideal balance within the metric of equality (109). Within this egalitarian theory of justice framework, questions emerge regarding the appropriate extent to which religious commitments can be allowed to govern themselves, instead of being forced to make the necessary adjustments toward a common framework (113–14). In essence, asking, in the words of Judge Bosson, what is the price of citizenshipFootnote 4 for religious conviction and to what extent does society owe these individuals a privileged place among equals.
For those like Lorenzo Zucca, the answer is easy: “outside the fortress of individual conscience reigns law” (136). While objecting to the law may have its prudential benefits in forcing the legislative body to justify its restrictions, any deviation from the “collective conscience” remains a privilege granted by the state, subject to revocation (129, 143–48). For Laborde, the question remains more nuanced. In her effort to resolve the tension, Laborde offers what she considers to be a “fair framework” based on considerations surrounding disproportionate burden and majority bias. The former requires a balance between the concepts of directness, severity, legal aim, and shifting costs—each meant as a system to coordinate the rightful place for conscientious exemptions (113–20). The latter deals with the context of bias and “the pervasive role played by the majority religion in shaping seemingly neutral institutions” toward their own benefit (125). Where the Rosenfeld system of analysis beckons factions across party lines to empathize with the respective aims of their opponents, Laborde adds a much-needed process for contextual awareness within a system often designed to advance the interest of a majority class.
The European Context
Having been provided with an introduction to the jurisprudential rubric, the reader is plunged into the global scale of this war with chapters on the European context.
Pasquale Annicchino spearheads this discussion by moving from a focus on individual convictions to the “transnational culture wars,” where countries and religious entities (such as the Russian Orthodox Church) vie to impose their version of human rights through international judicial systems. This strategy has the benefit of commandeering the legal process to frame the wider discussion on political issues by advancing geopolitical conceptions of rights and limiting public deliberation once courts impose their frameworks across nations (263, 266–67). The example of same-sex marriage is one Annicchino returns to frequently, showing the power of transnational advocacy networks to promote their normative human rights framework in order to influence ideas and policies in other societies (261). This discussion is fascinating: because international courts are unable to isolate themselves from the currents of cultural affairs, instances occur where a geopolitical understanding creates a new constitutive framework, which then creates “new conception[s] of normativity” driven largely by claims of dignity and social science (260).
In that same vein, no discussion regarding the European context can be had without discussing the role of the European Court of Human Rights and the guarantees for conscientious objectors under the Charter. Questions surrounding the treatment of LGBT individuals remain central, as Hellen Keller and Corina Heri seek to lay a foundation for the scope of, for example, Article 8 (respect for one's private and family life), Article 9 (freedom of thought, belief, and religion), and Article 14 (freedom from discrimination). Importantly, Keller and Heri discuss tools for proportionality review, ensuring that the Court is able to balance the values within the Charter, while mindful of the margin of appreciation afforded to Member States in their ongoing process of self-definition (314–17). They ask a pivotal question that echoes the sentiments of others and certainly the role of the US Supreme Court: whether the European Court of Human Rights's role is understood as a “conveyor of individual justice or a settler of general rules” (318). Answering that question will determine whether certain groups will remain marginalized until a European consensus emerges or whether the Court is tasked with setting the standard “as an instrument for cultural change” (277). This echoes what Andrew Koppelman meant when he compared the underlying policy goals for antidiscrimination laws to social transformation.Footnote 5 In this vein, the question remains: To what extent can any court justify the errand of reengineering culture in the image of a prevailing norm?
Eva Brems picks up this topic by discussing a three-part framework that has the semblance of utility, although only in method, for want of defining principles that adequately help distill the hierarchy for prioritizing fundamental rights (that is, third option). Her first two options are ideal, based on an effort to eliminate the conflict or find a preferred compromise where both sides come away with tepid appreciation (283–84). It is her third option for resolving disputes between fundamental rights that proves most problematic. Namely, in Brems's distillation of her approach, she mentions several factors that prove far too difficult for a court to discern in matters of religion. For example, problems with disentangling “the core” and “the periphery” aspects of a belief, which remains the prerogative of the religious individual (285). No court or high official is competent to make such distinctions, let alone construct a legal opinion based on discerning religious doctrine. Second, problems with the severity of “interference caused by the exercise of one right in the exercise of the other” (285), and the method for assessing these infringements in order to formulate governing norms. Third, problems with the indirect involvement of third-party interests (discussed below) and gauging the stigmatizing influence that may come with allowing religious exemptions (285, 287). All these factors discussed by Brems are further complicated in light of differences between the European and American legal system and the role of any legal system in navigating between the powers of individual States and the horizontal fraught relationships among citizens.
Adding to this complication is the chapter from Christopher McCrudden. In his analysis, McCrudden points out that by framing the issue through the lens of antidiscrimination instead of freedom of religion, certain justifications deemed sufficient for one context may no longer be viable in the other. This is relevant to the conversation in the United States surrounding public accommodation statutes, where, oftentimes, affirmative defenses based on religion or speech could not survive the scrutiny of judicial framing if the issue is connected to a claim akin to historical race discrimination.
I turn to this American system in more detail.
Third-Party Harms
While the chapters dealing with the conscience wars in America touch on a number of issues revolving around sexual ethics and public accommodation, the issue of third-party harm is a unique contribution to the above-mentioned discussion.
The chapter by Douglas NeJaime and Reva Siegel that begins part 2 of the book stresses the importance of third-party harm as a guide for determining the proper balance for accommodation that keeps in line with the aims of pluralism (190–91). For them, religious exemptions should be recognized, so long as they do not obstruct the achievement of major social goals or inflict targeted material or dignitary harms on other citizens (200). If those aims cannot be achieved, no accommodation should be provided, requiring the religious adherent to absorb the cost of noncompliance.
The third-party harm theory has not gone unnoticed among legal scholars; however, the volume provides little room for these voices. Some attempt is made by Nelson Tebbe, Micah Schwartzman, and Richard Schragger to offer a working framework in their chapter, seeking a balanced solution between accommodating religion while avoiding substantial harms to third parties. Where their solution has resonance is in the ad hoc approach based on particular cases: “[o]nly by carefully examining the values pulling in both directions can we determine the appropriate measure of third-party harms in a manner that is realistic and normatively attractive” (336). This seems a lot more sensible than the acerbic opprobrium from Marci Hamilton, who in her chapter adds little to advance the discussion by focusing primarily on her discontent that too few legal scholars have committed to working on the dangers of religious liberty to children. The same for Louise Melling, who advocates for the wholesale rejection of conscience claims related to reproductive services as a form of sex discrimination. From a European context, the same goes for the chapter by Emmanuelle Bribosia and Isabelle Rorive, who not only advocate for the end of conscience claims in matters of abortion, but demand that medical experts stop expressing their “moral judgment” regarding the woman's decision (410). Taken together, the arguments by these authors leave little room for conscience claims to limit a woman's decision to seek reproductive services.
Finally, without a richer chapter that tries to deal with these issues from the pro-accommodationist perspective, the volume is deeply unsatisfying. While it remains important to ensure that historically oppressed groups are able to enjoy their privileges of citizenship on an equal basis, the question for defining “dignitary harms” is prone to abuse by social engineers who seek to transform society into their own image. Specific to the third-party harms, Douglas Laycock, responding to a 2015 article by NeJaime and Siegel, notes that the communicative harm that comes with being rejected by “members of a shrinking minority” is simply not enough to “override protections for religious conduct.”Footnote 6 As Laycock notes elsewhere, “[r]eciprocal moral disapproval is inherent in a pluralistic society; the desire of same-sex couples never to encounter such disapproval is not a sufficient reason to deprive others of religious liberty.”Footnote 7 To say nothing about a discussion regarding “bilateral reciprocal externalities” and the harm that befalls religious adherents when they are made to violate their conscience through a state-mandated system of compliance.Footnote 8
The creation of third-party harm doctrines, without a working framework, will tend to ignore the ubiquitous “costs on third parties” incidental to most claims for accommodation, which will suddenly come to seem intolerable.Footnote 9 Religious liberty laws, like the Religious Freedom Restoration Act, will be drastically neutered because the narrowly tailored prong will, as NeJaime and Siegel observe, have an implied “societal interest” element (that is, prevent third-party harm) that would largely be defined by subjective sentiment (207). This is made more difficult given what NeJaime and Siegel correctly note as an entanglement between the strictly legal question of accommodation and the broader “society-wide conflict” that may engender individuals to be more susceptible to slights on their dignity (218). These are all issues that deserve more attention.
Conclusion
Running close to five hundred pages, The Conscience Wars is an introduction worthy of academic praise. The topic is vast, and surely many more volumes will be designed to match the pressing needs of the moment. But there is an aspect of this debate missing, namely a discussion regarding the theological dimensions of conscience.
No volume on the topic can ignore the contribution of Christian thinkers who joined the lineage of scholars that paved the way for the intellectual history of conscience at the root of today's religious liberty disputes.Footnote 10 Nor can it ignore an exegetical focus on the doctrines of conscience through the letters of the Apostle Paul, who set the pattern of self-renunciation for the sake of his brother's conscience and the corresponding effect this has on today's multifaceted complicity claims.Footnote 11 And it cannot ignore how this all connects to a larger debate preempted by Steven D. Smith's Pagans and Christians in the City Footnote 12 as it relates to Marinos Diamantides's chapter discussing the “post-sovereign era in which neither transcendent nor immanent visions can prevail and the perennial tension generated between them must, thus, be managed” (151, Diamantides's emphasis).
If we ever hope to mend the fractured divide in what Bernhard Schlink calls the “social games” of our democratic societies (102), we must begin to create a new remedial framework for discussion and participation. Those who seek to find a substantive balance must begin by listening to the opposition and engaging with their ideas. To this end, The Conscience Wars provides a path.
