I was a moderator for a panel celebrating Nelson Tebbe’s sweeping and carefully argued new book, Religious Freedom in an Egalitarian Age. The panel members were Douglas NeJaime, Micah Swartzman, Reva Siegel, and, of course, Nelson. There were many interesting issues provoked, but I was especially interested in the extent to which religious liberty claims can survive when their accommodation would harm third parties. In a co-authored Yale Law Journal article, Reva and Doug take the position that dignitary harms should prevail over religious liberty claims even if no material harm is caused. So a photographer who religiously objects to providing services for a same-sex wedding would lose because of the infliction of dignitary harm on a lesbian couple even if many other photographers were willing to provide services.
At the panel, Doug provided a thick description of the nature of dignitary harm, and certainly the unfairness of being denied services on the basis of whom you love with its accompanying embarrassment, humiliation, anger, and stigma is serious and substantial. At the same time, one should at least pause to recognize that a tragic choice is presented in this context. It is also a serious matter when the state forces persons to violate their conscience (whether or not religiously based) by compelling them to take actions that violate deep beliefs. Freedom of conscience rightly has a long pedigree in our history and violating that conscience is also a serious and substantial matter. Moreover, the photographer, if she adheres to her beliefs would not be able to stay in business.
For their part, Micah and Nelson basically argue that religious freedom claims causing third party harms that are more than negligible need not be accommodated. In his book, Nelson claims that this is in fact the law. One of several counterexamples Nelson discusses in the book is the provision that exempted, for example, the Quakers from killing people in wars. The result, of course, is that someone else had to do it, and that is a serious material harm. Michael Dorf asked whether it would make a difference if the person could be identified who was drafted in the Quaker’s place. In the discussion that followed, Micah took the position that the conscientious objector provision imposed a serious moral harm on others and should not have been adopted. Words escape me (except to note that the exemption honors the peace lovers who warn us against war, that the failure to accommodate is unduly harsh, and that abandoning the exemption too easily dispenses with a long history of respecting religious freedom). I jumped ship when I was told that instead of balancing the degree of harm imposed against the seriousness of violating conscience, and considering the alternative possibilities, and whether the law enforcement model would prove productive, we would stop the analysis when more than negligible harm was produced.
Reva concluded this with an interesting suggestion. Thinking aloud, she wondered whether those who refused to fight in wars on religious grounds might be subject to insubstantial penalties compared to those who just violate the law.
I would keep the exemption, but I think the point has a lot of merit in the context of civil resistance. I have in mind a serious of demonstrations in Syracuse at a military base where military personnel manually directed the firing of drones into Afghanistan and Pakistan. Scores of protestors in a series of demonstrations were arrested for trespass, disorderly conduct, and, just to show that prosecutors know how to overreach, obstruction of governmental administration. The judge thought heavy sentences were appropriate because these were acts of civil disobedience and Martin Luther King had willingly gone to jail. My argument was that these acts were acts of civil resistance and that they were public regarding. Heavy sentences should be reserved for serious violations through self-regarding conduct. If I am not mistaken, Bill Quigley has argued that acts of civil resistance causing only negligible third party harm should be considered a defense because of the public education associated with the conduct. I think Bill is right.