Commentary Magazine

Our Tragic Constitution

Fifteen years ago, when Hobby Lobby was still merely a chain store and not yet a Supreme Court case, the Clinton White House grappled with the question of how to balance religious liberty and democratic authority. But even in those days, Elena Kagan—who was still just a White House staffer, not yet a Supreme Court Justice—saw an imminent collision between religious liberty and the gay-rights movement.

In 1999, Kagan and others in the White House debated a legislative proposal to extend once again the protections of the Religious Freedom Restoration Act (RFRA) to apply to the states, in the aftermath of a Supreme Court case paring back RFRA’s coverage. And that debate was severely complicated by “a new wrinkle,” as professor William Galston explained in a memo for Vice President Al Gore. “I am told that some groups—mainly gay and lesbian rights organizations—have raised objections to” the RFRA reform bill, he reported, “on the grounds that it could enhance the ability of individuals citing religious convictions to discriminate against them and other minorities.”Nevertheless, Galston urged Gore to give a speech reaffirming the administration’s commitment to religious liberty.

Kagan disagreed vigorously. “I’m the biggest fan of RFRA…in this building,” she told her White House colleagues. “But you should not take this advice right now.” She urged the administration to stay out of the debate until the political conflict between religion and gay rights could be tamped down. If the White House were to endorse religious liberty, she warned, “you [would] have a gay/lesbian firestorm on your hands.” But “if you [were] to come out for a version of RFRA that has a civil rights carve-out, you [would] have a religious groups firestorm on your hands.” Kagan had met with “the religious groups” and soon would meet with “the gay groups.” “We’ll let you know,” she promised her colleagues, “as soon as it’s safe to go back in the water.”

But a decade and a half later, the water still is not safe—far from it. After Supreme Court decisions a year ago accelerated the nationwide legalization of same-sex marriage, followed promptly by decisions this year reaffirming the religious liberty protected by RFRA, the Court may soon need to weigh the two causes against each other. A baker’s refusal to bake a cake for a same-sex wedding, or a photographer’s refusal to photograph one—these are the archetypical lawsuits hypothesized by activists on all sides of the debate. “On one side are people who say a refusal to do business with gay couples should be every bit as illegal as racial discrimination,” Bloomberg News put it recently. “On the other are those who argue that business owners shouldn’t be forced to violate their consciences as the price of pursuing their profession.”

Indeed, such conflicts are emphasized by some of the justices themselves. Dissenting from the Court’s protection of employers’ religious liberty in Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg and three colleagues (including now-Justice Elena Kagan) pointed to a recent New Mexico case involving photographers whose religious beliefs caused them to refuse to work at a same-sex wedding. The justices asked, ominously, “Would RFRA require exemptions in cases of this ilk?” Their question is purely rhetorical, for their vision of religious freedom largely requires, when religion and other societal interests conflict, that religion relent: “No tradition, and no prior decision under RFRA, allows a religion-based exemption,” they wrote, “when the accommodation would be harmful to others.”

This is a starkly straightforward approach to questions of religious liberty: that when one’s exercise of religion is harmful to others, it must yield. Of course, an equally stark approach can be adopted on the other side: When government power burdens the exercise of religion, then government must yield. From either direction, this approach sees the task of judges and scholars as identifying a rule or principle that trumps all other interests.

This approach may claim the virtue of simplicity. But is religious liberty really this simple? Should it be? An important new book answers, emphatically, no.

Professor of law at St. John’s University and associate director of its Center for Law and Religion, Marc DeGirolami knows the competing theories of religious liberty, their insights and their blind spots, as well as anyone in his field. But the challenge of religious liberty, he argues, is not in crafting the perfect theory. Rather, as he writes in his latest book, The Tragedy of Religious Freedom, the “true impediment faced by those who study the law of religious liberty” is the fact that theory simply cannot accomplish what scholars demand of it. Religious liberty implicates myriad conflicting values that cannot be reconciled. “Any legal theory that reduces religious liberty to a set of supreme principles, let alone a single all-important imperative, is demanding far too much.”

Thus he writes first and foremost against the “monists,” who attempt to define religious liberty, and the limits of that liberty, in terms of a single value such as equality or neutrality. But he also writes against skeptics who doubt that religious liberty ought to be theorized at all.

Against all of these, DeGirolami expounds a theory of religious liberty as tragedy. By that word, he does not mean calamity or misfortune; he is using it in a classical sense. While comedy, he observes, “moves from sorrow to joy” and ends in conciliation, tragedy is “a study in opposition” that “proceeds not from joy to sorrow, but from struggle to unresolved struggle,” wherein each choice, however noble, requires the sacrifice of other goods. “Whatever leads the tragic hero to choose one course of action, elevating one conception of the good, also does irreparable damage to other viable conceptions and ultimately to his own ethical worldview. The roads not taken are also permanently closed down.”

So it is on matters of religious liberty: “The essence of the plural values contained in ideas of religious liberty” is that “they resist the incursion and domination of other rival values,” DeGirolami writes. “Each value struggles in perpetuity”—sometimes prevailing over other values, sometimes yielding to them.

DeGirolami explores this by presenting five theses, the first three diagnosing religious freedom’s tragic nature and the last two counseling how best to grapple with it. His first thesis is that the conflicting values of religious freedom are “incompatible and incommensurable”—that is, the values are to at least some extent mutually exclusive, and they cannot appropriately be weighed against one another according to a single common rubric. Thus, in the seminal case of Wisconsin v. Yoder (1972), Amish families’ interest in removing their children from public schools after the eighth grade was incompatible with society’s interest in educating children. Nor could the two conflicting interests be resolved by reference to a common underlying value, because each embodied a variety of underlying values, including the intrinsic value of allowing parents a substantial degree of control over the upbringing of their children, wholly distinct from society’s interest in using the educational system to inculcate values of citizenship.(One might say, to borrow a line from Walt Whitman, that in a liberal democracy each citizen “contains multitudes.”) Thus, when we face difficult questions of religious freedom, our failure to fully appreciate the complexity of the values at issue—or our deliberate effort to mask over that complexity—does not solve the conflict; it exacerbates it.

DeGirolami’s second thesis is that the “true values of religious liberty” ultimately must be derived from the conflicts themselves. We may start with abstract notions of value, but “it is only in the value’s embodiment in a particular, real-world struggle that one can make judgments about how strong it is by comparison with another value.”Instead of announcing broad rules that purport to settle conflict decisively, courts must allow for conflict precisely because it is the opportunity for wisdom.

From these two theses follows a third: that when we face a real-world conflict requiring a choice between incompatible and incommensurate values, that choice inherently will entail a sense of profound loss, a necessary sacrifice of one good for another.DeGirolami’s example: When the Court ruled in Goldman v. Weinberger (1986) that the First Amendment did not require the Air Force to allow Orthodox Jewish servicemen to wear yarmulkes while in uniform, the Court’s deference to such military virtues as obedience and esprit de corps required the sacrifice of Goldman’s own religious obligations. Because such cases necessarily require the sacrifice of values on one side or the other, DeGirolami suggests that adherents to the tragic view of religious freedom will tend to be predisposed toward custom—that is, to prefer known goods over unknown ones—in order to minimize such losses.

Having set forth these three premises, DeGirolami offers two prescriptions. His fourth thesis is a call for “modest movement.” In each conflict, judges should tend toward deciding cases narrowly. Here he applauds Justice Breyer’s approach in a pair of 2005 cases involving statutes of the Ten Commandments, approving one display at the Texas capitol but disapproving another display at a Kentucky courthouse, based on each display’s respective history and context. (DeGirolami’s favorable view of Breyer’s “measured concurrence” stands in marked contrast to that of Justice Thomas, whose own concurring opinion urged that “the outcome of constitutional cases ought to rest on firmer grounds than the personal preferences of judges.”) But DeGirolami stresses that to prefer “modest movement” must not be an excuse for obstructing social change altogether; rather, “the need for modest movement is just as much about movement as modesty.”

Finally, DeGirolami’s fifth thesis urges us to heed the value of history. “The history of the conflicts of religious liberty is the sum of its conciliations”—that is, mankind’s stock of wisdom hard-won from experience, embodied in both social history and doctrinal history. Thus, “because these clashes reflect a foundational and often ultimately irreconcilable pluralism, rather than merely the appearance of conflict,” the “tragic conciliations of the past deserve particular regard.”

In all of this, he stresses that this approach focuses not merely on the outcome, but also on “the method”:

Hard cases should be marked by historical nuance, by alertness to the particular circumstances, by a careful excavation and weighing of the competing interests and values at stake, by close attention to the statements and perspectives of the litigants, and by dicta that acknowledge frankly and openly the sacrifices and losses that the negotiation of conflict demands.”

Degirolami writes against the mainstream of religious-freedom theory, but he does identify at least one Supreme Court decision reflecting his approach. Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012) arose from a Lutheran church and school’s decision to fire a “called” teacher (as distinguished from a “lay” teacher), after that teacher sought to have her health-related employment dispute resolved outside the church’s mandatory mediation procedures. The church argued that its action was protected by the traditional First Amendment “ministerial exception” to federal employment laws; the federal government argued that no such exception should exist at all, and furthermore that no such exception could cover this particular dispute. The Court unanimously rejected both of the government’s claims; it recognized the ministerial exception, and it held that the exception covered the church’s action in this case. Chief Justice Roberts’s opinion for the Court traced the exception’s social history back to the Magna Carta as well as to its doctrinal history in federal courts. But instead of adopting a rigid formula to clearly define and limit the exception in all future cases, the nine justices decided the case very narrowly, within the contours of the particular dispute, so that future cases might be decided in light of (in DeGirolami’s words) “the complete panoply of clashing values” in each case—the values underlying church autonomy and those underlying the government’s interest in enforcing neutral laws without exception. “Perhaps as much as any opinion in its history,” DeGirolami urges, “the Supreme Court’s unanimous decision” in Hosanna-Tabor “reflects an approach closely aligned with the method of tragedy and history.”

Had he written The Tragedy of Religious Freedom a year later, perhaps DeGirolami would have offered similar praise for Burwell v. Hobby Lobby. Justice Alito’s opinion for the bare five-justice majority embodies much of DeGirolami’s method of tragedy and history. The Court’s opinion required three holdings: that closely held corporations can be “persons” for purposes of RFRA; that the Health and Human Services Department’s “contraceptive mandate” placed a “substantial burden” on the corporations’ and owners’ exercise of religion; and that HHS’s mandate was not the “least restrictive” means for achieving the government’s assumedly compelling interest. For each of those holdings, the Court rooted its analysis in social and doctrinal history; it strictly limited its holding to the precise matters at hand (for example, by declining to preemptively decide whether non-closely held corporations are also “persons”); and it took care to acknowledge the distinct costs of its decision, in that its holding ultimately requires the government to allow employers to opt out of the mandate. Indeed, the Court acknowledged that RFRA might ultimately require the government to pursue its contraception entitlement either through direct public funding or not at all.

If the majority’s discussion of this final point was too brief, Justice Kennedy’s solo concurrence exemplified DeGirolami’s call for candor, stressing not only that “no person may be restricted or demeaned by government in exercising his or her religion,” but also that “neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.” The Court’s majority, Kennedy stressed, “reconcile[d] those two priorities” by requiring the government to at least accommodate the employers’ objections.

DeGirolami, like Kennedy, recognizes that this approach is at the heart of RFRA and the Religious Land Use and Institutionalized Persons Act—i.e., the legislation that President Clinton ultimately signed in 2000, a year after Elena Kagan sent her email. Those statutes “reinstated a regime in which courts are routinely required to evaluate competing religious and state interests.”As seen in Hobby Lobby, they require courts to “determine whether the claimant has alleged a substantial burden to religious belief or practice that can be overcome only by a compelling state interest achieved by the least restrictive means,”a framework that recognizes the competing interests on both sides of each case.

Of course, the need for balance and moderation has been urged before, especially by Edmund Burke. In a passage quoted by DeGirolami, from Reflections on the Revolution in France, Burke distinguished the true rights of men from “the pretended rights of…theorists,” a set of “metaphysically true” but “morally and politically false” extremes. The former “are in a sort of middle, incapable of definition, but not impossible to be discerned,” found often “in balances between differences of good, in compromises sometimes between good and evil, and sometimes between evil and evil.” For Burke, “political reason is a computing principle: adding, subtracting, multiplying, and dividing, morally and not metaphysically or mathematically, true moral denominations.”

In such extended discussions of Burke, and of Michael Oakeshott’s writings on “custom,” DeGirolami’s Tragedy is perhaps the single best exposition of “Burkean constitutionalism” in decades, at least back to when Alexander Bickel, first in Commentary*and then in The Morality of Consent, extolled Burke’s approach as “my own model.”Better still, DeGirolami deftly examines what some scholars (particularly on the left) have defined as “Burkean minimalism,” before he thoroughly dismantles this “ersatz Burkeanism.”What we need, he urges, is “less Burkeanism, more Burke.”

Another intellectual giant resonates implicitly through DeGirolami’s analysis: Oliver Wendell Holmes. This may seem rather ironic, since DeGirolami pauses at one point to criticize Justice Holmes’s dim view of the inherent value of custom.But the virtues that DeGirolami sees in the use of individual cases, as society’s opportunity to weigh and balance abstract principles,are the virtues that Holmes saw when he famously wrote, nearly 150 years ago, that “it is the merit of the common law that it decides the case first and determines the principle afterwards,” and that only after not just one but many cases can we, “by a true induction[,] state the principle which has until then been obscurely felt.”Holmes, like DeGirolami, recognized the gulf between abstract principle and practical judgment:

To know what you want and why you think that such a measure will help it is the first but by no means the last step towards intelligent legal reform. The other and more difficult one is to realize what you must give up to get it, and to consider whether you are ready to pay the price.

Degirolami takes care to limit his book to matters of religious freedom. While he recognizes that this method of tragedy and history may be well suited in other areas of constitutional interpretation (though not in all, exceptions including cases on racial segregation), he sees religious freedom as a subject particularly well suited to this approach.

His self-imposed limit is understandable, but it, too, does not come without cost. By limiting the book to this particular subject, he risks undermining the book’s broader readership among students and scholars of constitutional law more generally. That would itself be a tragedy. Once every decade or so, a constitutional scholar produces a book that fundamentally shifts the terms of debate in the academy and therefore, in the long run, in the courts. For example, John Hart Ely’s Democracy and Distrust (1980) reverse-engineered a coherent intellectual framework to the Warren Court’s mixed defense of individual liberty and majority rule. Robert Bork’s The Tempting of America (1990) became the foundational text of conservative “textualism.” Larry Kramer’s The People Themselves (2004) pushed back against decades of counter-majoritarian rights jurisprudence with a full-throated defense of democratic “popular constitutionalism.”

Marc DeGirolami’s The Tragedy of Religious Freedom deserves to join this line of great books. It is the most nuanced, thoughtful, and effective explanation of “Burkean” jurisprudence in a generation, and it deserves the widest possible audience. As the causes of same-sex marriage and religious liberty intensify the conflict that Kagan warned of 15 years ago, the inevitable litigation and broader national debate would benefit immeasurably from DeGirolami’s thoughtful approach.

About the Author

Adam J. White is a lawyer in Washington, D.C. He has written for Commentary on the jurisprudential legacies of Alexander Bickel and Robert Bork.

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