When Arizona Governor Jan Brewer vetoed a bill that would have allowed businesses to deny services to gay and lesbian customers on the basis of religious belief, she waded into a longstanding legal and political battle. The Supreme Court took up these issues of religious authority and equal citizenship in Sebelius v. Hobby Lobby Stores, Inc., ruling that the religious convictions of the company’s owners permitted the company’s insurance plan to deny birth control coverage to employees (as, for instance, is permitted to Catholic hospitals and universities). Two recent works in political theory interrogate the proper power relationships among individuals, religious groups, civil society, and the state by skillfully combining liberal democratic theory with important case precedents regarding religion, reproductive freedom, education of children, and marriage equality. Whereas Abner Greene favors the authority of the individual or group, even in defiance of Federal or State law, James E. Fleming and Linda McClain would empower the government to insist on equal protection for citizens.

In Against Obligation, Greene argues that American citizens are not obliged automatically to follow the law or interpretations of the Supreme Court. He urges citizens to reject complete or plenary sovereignty in favor of permeable sovereignty in which the state explicitly justifies obligation for each law, executive action, or judicial decision (pp. 51, 118). Citizens should recognize multiple sources of authority that may complement or override state authority. Greene maintains that “only through viewing sovereignty as permeable, as partial rather than full, can we provide even a semblance of a remedy for the obligation/legitimation problem that otherwise exists” (p. 13; see also pp. 17, 19, 23, 20). Meaningful popular sovereignty requires vigilance in demanding justification rather than assuming obligation, yet the author dangerously displaces the fetishizing of state authority with increased religious authority that threatens equal protection of citizens—particularly women and lesbian, gay, bisexual, and transgender people, who are more likely to be discriminated against by religious authorities than civil ones.

Greene includes religion, philosophy, normative doctrines, comprehensive views, “nomic” claims, or family values as possible sources of authority (e.g., pp. 69, 116, 124–25, 127, 129, 131, 122, 149, 188), but his argument and examples rely on religion, and it is unclear that his rejection of state obligation extends any meaningful sovereignty to nonreligious sources of authority in civil society. The First Amendment explicitly privileges free exercise of religion and protects against establishment of religion. Greene prefers to see the free exercise clause as a “textual marker of a broader protection for freedom of conscience” (p. 116), but American courts have never given nonreligious doctrines comparable protection, and he neither provides a constitutional argument for how “nomic” claims will be protected nor offers robust examples of nonreligious permeable sovereignty. As the author shifts the burden of justification from challenging groups to the state, only religious groups have loud constitutional voices to demand sovereign control. In effect, he empowers religious groups to dissent broadly from laws they find in conflict with their faith.

Greene recognizes that religion is different from other forms of authority, but he fails to fully explore the effects of that asymmetry. Whereas science claims to rely on observable facts that can be shared and interpreted by humans, religion “self-consciously revels in the unsensible” (p. 154). He appropriately asks that “political and interpretive authorities” operate with “a healthy sense of self-doubt” (pp. 205, 121). Applying that caution to religious groups is fraught because spiritual faith claims cannot, by definition, be empirically tested or proven. If ritual (religious or secular) that is central or obligatory (pp. 131, 132) must be honored by the state, what happens when different groups collide? If reproductive control is a central and obligatory tenet of feminism, can a Catholic university refuse health coverage that includes birth control? What about Hobby Lobby’s religious owners? Greene envisions a “spectrum—from associational leadership opt-outs to antidiscrimination laws (to which we will defer) to physical violence (to which we will not defer)” (p. 158), yet he never provides an argument for the ways in which nonreligious sources of authority realistically compete with—or evaluate—religious ones, and he never directly interrogates gender and other categories that are traditionally more vulnerable to religious discrimination (e.g., empowering religious courts leaves women vulnerable to traditional rules for divorce and sexual abuse, or deprives same-sex couples of the legal advantages of marriage). Greene highlights state attempts to limit religion (e.g., Native American use of peyote) rather than competition among groups, and this is problematic given the tension between liberal creed and religious pluralism in the American political culture (e.g., Rogers Smith, Civic Ideals, 1999) that we see played out in the claim of a right to refusal to serve gays based on religious belief.

Permeable sovereignty relies upon adults making choices, and Greene acknowledges that there are vulnerable people within all groups (pp. 158–60) whose choices might be limited. Remaining agnostic on whether the state should insist upon “some education out from under the control of their parents” (p. 158) tempts him to set aside the relationship between education and realistic exit. If the state mandates best-available science education, Greene’s permeable sovereignty allows some religious parents to exempt their children (p. 156). As Justice William O. Douglas eloquently argued in Yoder, individual choice and exit rely on exposure to ideas. Related to issues of exit and choice, Greene writes, the Amish have a “welfare system of their own” (p. 124), but he does not acknowledge that many Amish must give up their right to national social security to remain in the community, preventing, in practical terms, adult Amish men and women from exiting the community. If permeable sovereignty requires individuals to choose authorities, it might require more robust protections for education and exit.

Greene argues that there should not be one “repository of the people’s power” (p. 253). While each person may derive values from multiple authorities, I cannot help wondering whether “the people” collectively need one repository for there to be equal protection of the law, rather than a moral pluralism that favors religion over other forms of civil society. In Ordered Liberty, Fleming and McClain frame the issue in terms of congruence between civil society and the state (p. 90): issues arise when, inevitably, there is a clash between freedom of association and/or freedom of religious exercise and equal citizenship. They agree with Greene that law is not coterminous with morality (pp. 3, 45) and they reject the state as the sole authority (pp. 119, 140). but they insist on an autonomy-based liberalism that would likely support the Arizona governor’s veto and would overturn Hobby Lobby’s claims.

Fleming and McClain claim that their restatement of Rawlsian liberalism leads individuals to take responsibilities, virtues, and the common good—as well as rights—seriously. They emphasize the distinction between responsibility as self-rule or autonomy (pp. 18–49) and responsibility as accountability to community (pp. 53, 61–68). Government may encourage responsibility—by fostering capacities and promoting public virtues and values (pp. 10, 113, 125, 178–89, and 183 and Chapter 5)—but it may not insist on conformity through coercion, endorsement, or indoctrination (pp. 34, 52, 64–65, 132, 165–66). Distinguishing between tolerating, subsidizing, and suppressing, the authors believe that the government will not prohibit behaviors but will condition beliefs through regulation or withhold tax exemptions (pp. 146–68).

Given his concerns regarding plenary sovereignty, Greene might ask Fleming and McClain to distinguish between inculcating virtue/values and fostering capacities for democratic and personal self-government (pp. 1–3, 10, 14, 91, 111–20, 124–45, 140–41, 178–79, 183). Fleming and McClain insist that rights are compatible with virtues (p. 2 and Chapters 4 and 5), but while the term virtue may be rhetorically valuable to ward off the criticisms of those who prefer thick conceptions of the good, why would legal theorists rely on a gender-fraught term with no constitutional context? Like Greene, they believe that the law is not coterminous with morality (pp. 3, 45) and they seek to distinguish between moral worth and equal citizenship (pp. 189–90), but their emphasis on virtue (and autonomy as the agreed-upon value that may be inculcated) makes them appear too perfectionist and statist to accomplish the balance they seek.

Protecting equal citizenship does not requires republican claims grounded in morality, however (e.g., p. 151). Fleming and McClain’s capacity approach might offer more state neutrality than virtue, and it might enable Greene’s notion of permeable sovereignty by shoring up the resources that individuals have for making choices—especially those that are not given extra protection by the free exercise of religion clause. Examples might include education that offers the best-available science and other information required for choice and robust exit. Whereas liberalism based on virtue empowers the plenary state, liberalism based on capacities might be more neutral (though what type of capacities are encouraged will never be truly neutral). Fleming and McClain’s title directs readers to Justice John Marshall Harlan’s famous defense of those rights that are fundamental or “implicit in the concept of ordered liberty” (Poe v. Ullman), but their book does not sufficiently clarify how this defense of unenumerated rights applies to their version of liberalism—as a value, virtue, or means of determining what capacities will be necessary to encourage in citizens.

Impressively, Fleming and McClain treat gender as necessary rather than auxiliary to any argument regarding democratic theory. Neither book interrogates race in an extended or deeply meaningful manner. Both books agree that liberalism needs civil society to create independent locations of power that guard against government orthodoxy because they generate their own values. Greene grants authority to these groups to develop their values even if they conflict with those of the state. Fleming and McClain understand that liberalism requires civil society to secure autonomy and promote deliberative democracy by creating the “seedbeds of virtues of values” that underwrite constitutional stability (pp. 146, 113, 83, 136), but they do not adequately demonstrate how these groups remain viable alternatives if antidiscrimination law must be used to secure the equal citizenship (p. 147). Read together, these two books are invaluable to all citizens because whereas Greene underestimates the authority of religious minorities, Fleming and Greene fail to see how outright prohibition of discrimination (e.g., race, sex, or sexual orientation) imposes values rather than encouraging groups that could independently challenge liberal orthodoxy. It might be possible to empower Greene’s permeable sovereignty while preserving equal protection by adopting Fleming and McClain’s capacities approach

American law in this field changes rapidly. Remarkably, these two books—without knowledge of the decisions that have been made (e.g., Windsor, Hobby Lobby)—provide insights into the clash between religious exercise and equal citizenship that are relevant and essential to political theorists, policymakers, and citizens.