Debating Religious Liberty and Discrimination, by John Corvino, Ryan T. Anderson, and Sherif Girgis, Oxford University Press, 352 pages, $21.95
Steve Tennes, an orchard owner in Michigan, recently refused to host a same-sex wedding on his property, instead referring the couple to another orchard.
Business owners have profound incentives to serve customers. It is a rare proprietor who will turn away a paying customer because of a religious conviction.
Yet over the past few years, several business owners like Tennes have done just that. These men and women believe their faith prohibits them from participating in same-sex wedding ceremonies.
Contrary to popular belief, what Tennes did is perfectly legal in Michigan. The Great Lakes State, like about half of the states, has no law prohibiting discrimination on the basis of sexual orientation.
But the Michigan town of East Lansing, where Tennes brings his produce to the farmers’ market, has a local ordinance prohibiting such conduct. Because Tennes will not host same-sex weddings at his orchard, the city banned him from selling fruit at its market. He responded by suing the town for violating his religious freedom. Litigation is ongoing.
Such cases are at the heart of Debating Religious Liberty and Discrimination, a new point-counterpoint book by John Corvino, Ryan T. Anderson, and Sheriff Girgis. All three authors value religious liberty and oppose unjust discrimination. But as they point out in their joint introduction, “The devil is in the details.”
The Case for Limiting Religious Exemptions
Corvino begins the debate by providing a reasonable case for severely limiting religious exemptions. In good libertarian fashion, he contends that laws restrict liberty and so they shouldn’t be passed unless there are very good reasons to do so. If such reasons exist, all citizens should have to follow the laws regardless of their religious convictions.
So, for instance, his solution to the problem of Native Americans who feel compelled to use peyote in religious ceremonies is not to exempt them from laws banning its use but to eliminate the law altogether. Then anyone, religious or not, can use peyote for whatever reasons they desire.
Corvino doesn’t like religious exemptions, but he doesn’t reject them altogether. He concedes, for instance, that the state should not compel citizens to kill. If the nation is conscripting soldiers, pacifists should be offered an alternative to military service. Similarly, medical professionals should not be forced to participate in abortions or euthanasia. These accommodations should be available to religious and nonreligious citizens alike.
Other than in issues of life and death, most accommodations would disappear in Corvino’s ideal world. This is not to say he is entirely unsympathetic to florists, bakers, orchard owners, and others who believe they should not participate in same-sex wedding ceremonies. He suggests three different ways in which they could be protected without religious accommodations. His preferred method is to revise antidiscrimination laws to exclude small firms that offer expressive or wedding-related services.
The Case for Religion as a Basic Human Good
Anderson and Girgis, by way of contrast, make a robust but accessible philosophical argument for the importance of religious liberty. Drawing from the philosopher John Finnis’s work, they contend that religion is a “basic human good” and that the purpose of the state is to “protect the ability of people to pursue all the basic goods.”
Anderson and Girgis recognize that no right is absolute. If the state has a compelling reason to prevent a religiously motivated action, it may do so. With respect to discrimination, they propose that antidiscrimination laws should trump religiously motivated actions only when private treatment of a particular group imposes material and/or social harms that the law can best cure, and the particular proposed antidiscrimination provision is drawn narrowly enough to (1) suppress interactions that inflict those material and social harms, (2) avoid banning too many legitimate or harmless interactions, and (3) avoid treading too far onto other interests like conscience, religion, and speech.
Applying this test would protect the orchard owners, bakers, and florists who have been sued or prosecuted under antidiscrimination laws. But it would not exempt every religiously motivated action; for example, racial discrimination could still be prohibited.
There is much, much more to this book. Collectively, the essays provide an excellent overview of the main issues in cases involving religious liberty and antidiscrimination statutes. Both sides offer reasonable and well-articulated arguments to support their positions.
Far too often, debates about these matters degenerate quickly into impugning motives and calling names. A critically important contribution of the book is that Corvino, Anderson, and Girgis show that people with deeply held convictions can have a rational argument about controversial issues.