In June, 2015 the United States Supreme Court ruled in favor of the legality of same-sex marriage. Many states had already legalized same-sex marriages and a majority of Americans think it should be legal. As such, the ruling seems to be consistent both with the constitution and with the democratic ideal of majority rule. There are, of course, those who object to the ruling.
Some claim that the court acted in a way contrary to the democratic rule by engaging in judicial activism. Not surprisingly, some of those who make this claim were fine when the court ruled in ways they liked, despite the general principles being the same (that is, the court ruling in ways contrary to what voters had decided). I certainly do see the appeal of principle and consistent arguments against the Supreme Court engaging in activism and overruling what the voters have decided and there is certainly some merit in certain arguments against the same-sex marriage decision. However, my concern here is with another avenue of dissent against the decision, namely that this ruling infringes on religious liberty.
The argument from religious liberty is certainly an interesting one. On intriguing aspect is that the argument is made in terms of religious liberty rather than the older tactic of openly attacking gay folks for alleged moral wickedness. This change of tactic seems to show a recognition that a majority of Americans accept their fellow gay Americans and that shouting “fags” at gays is no longer acceptable in polite society. As such, the tactic acknowledges a changed world. This change also represents clever rhetoric: the intent is not to deny gay folks their rights, but to protect religious liberty. Protecting liberty certainly sells better than denying rights. While protecting liberty is certainly commendable, the obvious question is whether or not the legalization of same-sex marriage infringes on religious liberty.
In general, there are two ways to infringe on a liberty. The first is by forbiddance. That is, preventing a person from exercising a freedom. For example, the liberty of free expression can be infringed by preventing a person from freely expressing her ideas. The second is by force. This is a matter of compelling a person to take action against their free choice. For example, having a law that require people to dress a certain way when they do not wish to do so. Since some people consider entitlements to fall under liberties, another way a person could have liberty infringed upon is to be denied her entitlements. For example, the liberty of education in the United States entitles children to a public education.
It is important to note that not all cases of forbidding or forcing are violations of liberties. This is because there are legitimate grounds for limiting liberties—the usual ground being the principle of harm. For example, it is not a violation of a person’s liberty to prevent him from texting death threats to his ex-wife. As another example, it is not a violation of a person’s liberty to require her to have a license to drive a car.
Given this discussion, for the legalization of same-sex marriage to impose on religious liberty would require that it wrongfully forbids religious people from engaging in religious activities, wrongfully forces religious people to engage in behavior contrary to their religion or wrongfully denies religious people entitlements connected to their religion.
The third one is the easiest and quickest to address: there does not seem to be any way that the legalization of same-sex marriage denies religious people entitlements connected to their religion. While I might have not considered all the possibilities, I will move on to the first two.
On the face of it, the legalization of same-sex marriage does not seem to wrongfully forbid religious people from engaging in religious activities. To give some examples, it does not forbid people from praying, attending religious services, saying religious things, or doing anything that they are not already free to do.
While some people have presented slippery slope “arguments” that this legalization will lead to such forbiddances, there is nothing in the ruling that indicates this or even mentions anything remotely like this. As with all such arguments, the burden of proof rests on those who claim that there will be this inevitable or probable slide. While inter-faith and inter-racial marriage are different matters, allowing these to occur was also supposed to lead to terrible things. None of these happened, which leads one to suspect that the doomsayers will be proven wrong yet again.
But, of course, if a rational case can be made linking the legalization of same-sex marriage to these violations of religious liberty, then it would be reasonable to be worried. However, the linkage seems to be a matter of psychological fear rather than logical support.
It also seems that the legalization of same-sex marriage does not force religious people to wrongfully engage in behavior contrary to their religion. While it is legal for same-sex couples to marry, this does not compel people to become gay and then gay-marry someone else who is (now) gay. Religious people are not compelled to like, approve of or even feel tolerant of same-sex marriage. They are free to dislike, disapprove, and condemn it. They are free to try to amend the Constitution to forbid same-sex marriage.
It might be argued that religious people are compelled to allow other people to engage in behavior that is against their professed religious beliefs and this is a violation of religious freedom. The easy and obvious reply is that allowing other people to engage in behavior that is against one’s religion is not a violation of one’s religious liberty. This is because religious liberty is not the liberty to impose one’s religion on others, but the liberty to practice one’s religion.
The fact that I am at liberty to eat pork and lobster is not a violation of the religious liberty of Jews and Muslims. The fact that women can go out in public with their faces exposed is not a violation of the religious liberty of Muslims. The fact that people can have religions other than Christianity is not a violation of the religious liberty of Christians. As such, the fact that same-sex couples can legally marry does not violate the religious liberty of anyone.
It might be objected that it will violate the religious liberty of some people. Some have argued that religious institutions will be compelled to perform same-sex weddings (as they might be compelled to perform inter-racial or inter-faith marriages). This, I would agree, would be a violation of their religious liberty and liberty of conscience. Private, non-commercial organizations have every right to discriminate and exclude—that is part of their right of freedom of non-association. Fortunately, the legalization of same-sex marriage does not compel such organizations to perform these marriages. If it did, I would certainly oppose that violation of religious liberty.
It might also be objected that people in government positions would be required to issue same-sex marriage licenses, perform the legal act of marrying a same-sex couple, or recognize the marriage of a same-sex couple. People at the IRS would even be compelled to process the tax forms of same-sex couples.
The conflict between conscience and authority is nothing new and philosophers have long addressed this matter. Thoreau, for example, argued that people should follow their conscience and disobey what they regard as unjust laws.
This does have considerable appeal and I certainly agree that morality trumps law in terms of what a person should do. That is, I should do what is right, even if the law requires that I do evil. This view is a necessary condition for accepting that laws can be unjust or immoral, which is certainly something I accept. Because of this, I do agree that a person whose conscience forbids her from accepting same-sex marriage has the moral right to refuse to follow the law. That said, the person should resign from her post in protest rather than simply refusing to follow the law—as an official of the state, the person does have an obligation to perform her job and must choose between keeping that job and following her conscience. Naturally, a person also has the right to try to change what she regards as an immoral law.
I have the same view in regards to people who see interracial marriage as immoral: they should follow the dictates of their conscience and not take a job that would require them to, for example, issue marriage licenses. However, their right to their liberty of conscience does not override the rights of other citizens to marry. That is, their liberty does not morally warrant denying the liberty of others.
It could be argued that same-sex marriage should be opposed because it is objectively morally wrong and that even officials should do so on this ground. This line of reason does have a certain appeal—what is objectively wrong should be opposed, even if it is the law and even by officials. For example, when slavery was legal in the United States it should have been opposed by everyone, even officials of the state. But, arguing against same-sex marriage on moral grounds is a different matter from arguing against it on the grounds that it allegedly violates religious liberty.
It could be argued that the legalization of same-sex marriage will violate the religious liberty of people in businesses such as baking wedding cakes, planning weddings, photographing weddings and selling wedding flowers.
The legalization of same-sex marriage does not, by itself, forbid businesses from refusing to do business involving a same-sex marriage. Legal protection against that sort of discrimination is another, albeit related, matter. This sort of discrimination has also been defended on the grounds of freedom of expression, which I have addressed at length in other essays.
In regards to religious liberty, a business owner certainly has the right to not sell certain products or provide certain services that go against her religion. For example, a Jewish restaurant owner has the liberty to not serve pork. A devout Christian who owns a bookstore has the liberty to not stock the scriptures of other faiths or books praising same-sex marriage. An atheist t-shirt seller has the liberty to not stock any shirts displaying religious symbols. These are all matters of religious liberty.
I would also argue that religious liberty allows business owners to refuse to create certain products or perform certain services. For example, a Muslim free-lance cartoonist has the right to refuse to draw cartoons of Muhammad. As another example, an atheist baker has the right to refuse to create a cake with a cross and quotes from scripture.
That said, religious liberty does not seem to grant a business owner the right to discriminate based on her religion. For example, a Muslim who owns a car dealership has no right to refuse to sell cars to women (or women who refuse to fully cover themselves). As another example, a militant homosexual who owns a bakery has no right to refuse to sell cakes to straight people.
Thus, it would seem that the legalization of same-sex marriage does not violate religious liberty.
On May 3, 2015 the American Freedom Defense Initiative put on a contest in which cartoonists drew images of Muhammad for a cash prize. To most Muslims, such portrayals of Muhammad are deeply offensive—much in the way that many Americans find the burning of the American flag offensive. As such, it is reasonable to infer that the event was intended to be provocative—the event was certainly well protected with armed security forces. As such, it was hardly shocking when two gunmen attacked the event. These armored and heavily armed men were killed by a traffic officer armed only with a pistol. ISIS has claimed credit for the attack, although it is currently unclear if the terrorist group had a direct role.
As I have argued in previous essays, the use of violence in response to offensive artwork or other forms of expression is not warranted. As such, there is no need to re-hash those arguments to support the claim that the attack on the event was morally wrong. Outside of the realm of violent extremists, I doubt there is much dispute over this point. As such, I will proceed to the main matter I wish to focus on.
But a short while ago, Indiana was making headlines with its religious freedom act. There is also the recurring talking point that religious liberty and religion are under attack in America. One example given of the threat to religious liberty was the requirement that employers of a certain size provide insurance coverage that covered birth control for full-time employees. Another example of the threat is the steady march towards legalization in all 50 states by same sex-marriage. A third example is that many states have laws that forbid discrimination against people because of their sexual orientation. This is supposed to violate religious liberty by forbidding, for example, a Christian baker to discriminate against a same-sex couple that wants to buy a wedding cake.
Though I have written extensively about these specific matters, my general view is based on the principle that religious rights do not allow a person a right to violate the legitimate rights of others. To use an easy and obvious example, a faith that claimed human sacrifice as a basic tenet of its faith would justly be denied the right to engage in this practice. After all, the right to life trumps the right to practice one’s faith on others against their will.
In the case of discrimination against same-sex couples, I follow the same principle: the freedom of religion is bounded by the principle of harm. Since same-sex couples are members of the civil society and being able to engage in free commerce is a basic right in capitalism, to deny them the right to goods and services because of their sexual orientation would harm them. While it might be countered that selling a cake to a same-sex couple would harm the Christian baker, it is not clear what harm is being done. After all, she is making a sale and the sale of an item is not an endorsement of the purchaser. If, for example, Nazis are buying my books on Amazon, I am not thereby endorsing Nazism.
In the case of a company being required to provide coverage that covers birth control, the company does not seem to be harmed by this. The company is not required to use birth control, directly hand it to the employees, or endorse birth control. They are merely required to provide employees with the opportunity to have such coverage if they so desire it. It is, in fact, a form of compensation—it certainly does not violate the rights of an employer if employers spend their salaries as they wish—even on birth control.
While the laws that are purported to defend religious freedom do not, for obvious reasons, specify that they are aimed at defending a specific variety of Christianity, it does seem fairly evident that the concern is not about defending religion in general. If it were, the event in which people competed to draw cartoons of Muhammad would have been condemned by all the folks supporting the religious “freedom” laws and those who claim religion is under attack in America. After all, holding an event explicitly aimed at mocking a religion and provoking members of a faith would seem to be an attack on religion. This sort of event would certainly seem more of an attack on religion than forbidding bakers from discriminating against same-sex couples.
While I think people should not engage in such offensive behavior (I also believe that people should not burn American flags or piss on crosses), my consistency requires that I must accept the freedom of people to engage in such offensive behavior. This is, as with the case of the wedding cake, based on the principle of harm: restricting freedom of expression because the expression is offensive creates more harm than it prevents. Part of this is because while there is a right to freedom of expression and it can be wrong to offend people, there is no right to a freedom from being offended. That said, members of civil society do fall under moral expectations of polite behavior. So, while there is no right to forbid people from pissing on crosses, burning American flags or drawing cartoons of Muhammad, a decent human being will consider her actions and act with respect for the views of others. That is what good people do. I admit, I have not always lived up to that myself and that is a failing on my part.
It is, of course, possible to cross from mere offense to actual harm. This boundary is, unfortunately, not always sharp and admits of many gray zones. Fortunately, though, the principle is clear: mere offensiveness does not warrant forbiddance and religious freedom does not warrant unjustly imposing on the rights of others.
Indiana’s version of the Religious Freedom Restoration Act set off a firestorm of controversy. Opponents of the law contended that it would legalize discrimination while some proponents argued that it would do no such thing. Some proponents contended that it would allow people and businesses to refuse certain services to homosexuals, but that this should not be considered discrimination but a matter of freedom of expression. This approach is both interesting and well worth considering.
In the United States, freedom of expression is a legally protected right. More importantly, from a philosophical perspective, it is also a well-supported moral right. As such, an appeal to freedom of expression can be a useful defense.
In the case of the Religious Freedom Restoration Act, the argument from freedom of expression would certainly not work in regards to justifying general discrimination in regards to goods and services. For example, the owner of a pizzeria would be hard pressed to claim that not being allowed to refuse service to a person just because she is gay violates his freedom of expression. However, freedom of expression might be applicable in certain cases.
While the freedom of expression is typically presented as a right against being silenced, it also provides the right not to be compelled to express views (specifically views that one does not hold or that one opposes). The right to not be compelled in one’s expression would thus seem to give a person a moral (and a legal) right to refuse certain services.
This line of reasoning does have considerable appeal. For example, I operate a writing business—I write books to be sold and I do freelance work. I obviously have no moral right to refuse business from someone just because she is gay, Jewish, Christian, or a non-runner. However, my writing is clearly an act of expression. As such, my freedom of expression grants me a clear moral right to refuse to write a tract endorsing Nazism or one advocating hatred of Christians. I also design book covers and do some graphic work (graphic as in visual, not as in adult content). Since these are clearly expressions, I would have the moral right to refuse to do a book cover for book expressing ideas I regard as morally wrong, such as eliminating religious freedom in favor of enforced atheism. This is because the creation of such work entails a clear endorsement and expression of the ideas. If I write a tract in favor of white supremacy, I am unambiguously expressing my support of the idea. If I knowingly do a cover for a book on white supremacy, then it would be reasonable to infer I agreed with the ideas. In such cases, an appeal to freedom of expression would seem quite relevant and reasonable.
Obviously, an author or cover designer who believes that her religion condemns same-sex marriage as wickedness would also be protected by the freedom of expression from being required to express views she does not hold. If a LGBT group approached her and offered her a fat stack of cash to pen a piece in favor of gay marriage, she would have the moral right to reject their offer. After all, they have no moral right to expect her to express views she does not hold, even for fat stacks of cash.
In contrast, I could not use freedom of expression as a reason to not sell one of my books or works to a person. For example, freedom of expression does not grant me the right to forbid Amazon from selling my books to Nazis, racists, intolerant atheists, or non-runners. After all, selling a book to a person is not an endorsement of that person’s ideas. I do not endorse intolerant atheism just because an intolerant atheist can buy my book.
Likewise, the author who believes her religion condemns same-sex marriage as wickedness could not use freedom of expression to demand that Amazon not sell her books to homosexuals. While buying a book might suggest agreement with the author (but it obviously does not entail it—I have plenty of philosophy books whose contents I regard as being in error), it does not suggest that the author is endorsing the purchaser. So, if a gay person buys the author’s anti-same-sex marriage book, it does not mean that the author is endorsing same-sex marriage.
Not surprisingly, no one has claimed that religious freedom acts are needed to protect Christian writers from being forced to write pro-gay works. However, it has been argued that the acts are needed to protect the freedom of expression for people such as caterers, bakers, and photographers.
The argument is that catering a wedding, baking a wedding cake, doing a wedding or engagement photo shoot and similar things are expressions and are thus covered by the right to freedom of expression.
Obviously enough, if these activities are expressions analogous to the paradigm cases of speech and writing, then the freedom of expression does protect them. As such, the key question is whether or not such actions are acts of expression such that engaging in them in relation to a same-sex wedding would express an endorsement of same-sex marriage.
To get the obvious out of the way, refusing to cater, photograph or bake a cake for a wedding because the people involved were Jewish, black, Christian, white, or Canadian would clearly be discrimination. If the person refusing to do so said that baking a cake for a Jew endorsed Judaism, that catering a black wedding endorsed blackness, or that photographing Canadians being married was an endorsement of Canada, she would be regarded as either joking or crazy. But perhaps a case could be made that catering, baking and photographing are expressions of agreement or endorsement.
On the face of it, catering food for a wedding would not seem to be expressing approval or agreement with the wedding, regardless of what sort of wedding it might be. Selling someone food would seem to be like selling them a book—their buying it says nothing about what I endorse or believe. When the pizza delivery person arrives with a pizza when I am playing Pathfinder, I do not say “aha, Dominoes endorses role-playing games!” After all, they are just selling me pizza.
In the case of the wedding cake, it could be argued that it is a specific sort of cake and creating one does express an endorsement. By this reasoning, a birthday cake would entail an endorsement of the person’s birth and continued existence, a congratulations cake would entail an endorsement of that person’s achievement and so on for all the various cakes. This, obviously enough, seems implausible. Making me a birthday cake does not show that Publix endorses my birth or continued existence. They are just selling me a cake. Likewise, selling a person a wedding cake does not entail approval of the wedding. Obviously enough, if a baker sells a wedding cake to a person who has committed adultery, this does not entail her approval of adultery.
It could be argued that bakers have the right to refuse a specific design or message on the cake. For example, a Jewish baker could claim that he has the right to refuse to create a Nazi cake with swastikas and Nazi slogans. This seems reasonable—a baker, like a writer, should not be compelled to create content she does not wish to express. Given this principle, a baker could refuse to bake a sexually explicit wedding cake or one festooned with gay pride slogans and condemnations of straight “breeders.” However, creating a plain wedding cake is not the expression of ideas and would be on par with selling a person a book rather than being forced to write specific content. By analogy, I cannot refuse to sell a book to a person because he is an intolerant atheist, but I can refuse contract to write in support of that view.
Since photography is a form of art (at least in some cases), it is certainly reasonable to regard it is a form of artistic expression. On this ground it is reasonable to accept that photography is protected by the freedom of expression. The key issue here is whether taking pictures commercially is like writing words—that is, photographing something is an endorsement of the activity or if it is like selling a book, which is merely selling a product and not an endorsement.
On the face of it, commercial photography would seem to be like selling a book. A person who is paid to cover a war or a disaster is not taken to be endorsing the war or the disaster. One would not say that because a person took a photo of a soldier shooting a civilian that he endorse that activity. Likewise, a person photographing a wedding is not endorsing the wedding—she is merely recording the event. For money.
It might be countered that a wedding photographer is different from other commercial photographers—she is involved in the process and her involvement is an expression of approval. But, of course, commercial photographers who take photos at sports events, political events, protests and such are also involved in the process—they are there, taking pictures. However, a photographer hired to take pictures of Hilary Clinton does not thus express her support (or vote) for Hilary. She is just taking pictures. Fox News, after all, takes video and photos of Hilary Clinton, but they do not thereby endorse Hilary. As such, the freedom of expression would not seem to grant a commercial photographer the right to refuse to photograph a same-sex wedding on the basis of an appeal to freedom of expression since taking photos does not involve endorsing the subject.
That said, another approach would be to argue that while taking a photo of an event does not entail endorsement of the event, an artist cannot be compelled to create a work of art that she does not wish to create. Since a photograph is art, a wedding photographer cannot be compelled to create an image of a same-sex wedding, just as a writer cannot be justly compelled to write a certain sort of book. This certainly has considerable appeal. After all, a photographer would seem to have every right to refuse to take photos of a wedding orgy or even of a tastefully nude wedding on the basis of the content.
Of course, this would also seem to allow commercial wedding photographers to refuse to take photos of blacks, Christians, Jews, or anything on the grounds that she does not want to create, for example, a photographic work including crosses or black people. So, consistency would seem to require that if wedding photographers can refuse to serve gay clients on the basis of artistic content, then a wedding photographer could refuse anyone on the same grounds. Thus, wedding photographers should be permitted to have “whites only”, “straights only” or “gays only” signs on their business. For artistic reasons, of course. This does seem a bit problematic in regards to commercial wedding photographers.
The scene is a bakery in a small town in Indiana. Ralph and Sally, a married couple, run the Straight Bakery with the aid of the pretty young Ruth. Dr. Janet and her fiancé Andrea enter the shop, looking to buy a cake.
Sally greets them with a pleasant smile, which quickly fades when she finds out that Janet and Andrea are a lesbian couple. Pointing at the door, she says “baking you a wedding cake would violate my religious beliefs. Go find Satan’s baker! Leave now!” The couple leave the shop, planning to drive to the next town—their small town has but one bakery.
At the end of the day, Sally leaves the shop. Ralph says he will help Ruth close up the shop. After Sally leaves, Ralph and Ruth indulge in some adultery.
Indiana has recently gotten nation attention for its version of the Religious Freedom Restoration Act. The bill would prevent state and local governments in Indiana from “substantially burdening” the exercise of religion unless it can be proven the state has a compelling interest and is using the least restrictive means for acting on that interest.
Proponents of the bill claim that it is aimed to protect people, such as business owners, with strong religious beliefs from the intrusion of the state. Those who oppose the bill note that it would legalize discrimination and that it is aimed at gays and lesbians. Many other states have similar laws, but some of them have laws that protect people from discrimination based on sexual orientation.
Since the law cannot specify individual religions for protection, it is likely to lead to some interesting consequences, possibly involving Satanism—as happened in my adopted state of Florida. While the legal aspects of this matter are rather important, as a philosopher my main concern is with the ethics of the matter.
On the face of it, religious freedom seems to be good—after all, it would seem to fall under the broader liberty of thought and belief (which is ably supported by Mill in his work on liberty). As such, the bill initially seems to be a morally reasonable defense of a well-established right.
The bill, as opponents argue, would certainly seem to allow people to discriminate against others, provided that they can justify their discrimination on religious grounds. The law cannot, obviously, require that a religion be true, rational, consistent, sensible or even sane—all religions are equally protected. This, of course, could lead to some serious consequences.
Driving home, Sally’s car is struck by a delivery van and she is badly injured. Luckily, Dr. Janet and Andrea (a trained nurse) are right behind the van. As Dr. Janet and Andrea rush to help, they see it is Sally. Dr. Janet, a devout member of the Lesbian Church, has sworn to God that she will not treat any straight bigots. Looking down at the dying Sally, Dr. Janet says “saving you would violate my sincerely held religious beliefs. Sorry. Perhaps you can find another doctor.” Sally dies.
The obvious counter to this sort of scenario is that religious freedom does not grant a person the liberty to deny a person an essential service, such as medical treatment. Using the standard principle of harm as a limit on liberty, the freedom of religion ends when it would cause unwarranted harm to another person. It could also be argued that the moral obligation to others would override the religious freedom of a person, compelling her to act even against her religious beliefs. If so, it would be wrong of Dr. Janet and Andrea to let Sally die. This, of course, rests on either the assumption that harm overrides liberty or the assumption that obligations override liberty. There are well-established and reasonable arguments against both of these assumptions. That said, it would certainly seem that the state would have a compelling interest in not allowing doctors, pharmacists, and others to allow people to die or suffer harm because of their religious beliefs. But, perhaps, religious freedom trumps all these considerations.
After having a good time with Ruth, Ralph showers off the evidence of his sins and then heads for home. Ruth helps herself to some of the money from the register and adjusts the spreadsheet on the business PC to cover up her theft.
Ralph is horrified to learn that Sally has been killed. He takes her to the only funeral home in town, run by the Marsh family (who moved there from Innsmouth). Unfortunately for Ralph, the Marsh family members are devoted worshippers of Dagon and their religious beliefs forbid them from providing their services to Christians. After being ejected from the property, Ralph tries to drive Sally’s body to the next town, but his truck breaks down.
He finds that the nearest shop is Mohamed’s Motors, a Muslim owned business. Bob, the tow truck driver, says that while he is generally fine with Christians, he is unwilling to tow a Christian’s truck. He does recommend his friend Charlie, a Jewish tow truck driver who is willing to tow Christians, provided that it is not on the Sabbath and the Christian is not a bigot. Ralph cries out to God at the injustices he has suffered, forgetting that he has reaped what he has sown.
In the case of these sorts of important, but not essential, services it could be argued that people would have the right to discriminate. After all, while the person would be inconvenienced (perhaps extremely so), the harm would not be large enough to make the refusal morally wrong. That is, while it would be nice of Bob to tow Ralph’s truck, it would not be wrong for him to refuse and he is under no obligation to do so. It might, of course, be a bad business decision—but that is another matter entirely.
If appeals to harm and obligations fail, then another option is to argue from the social contract. The idea is that people who have businesses or provide services do not exist in a social vacuum: they operate within society. In return for the various goods of society (police protection, protection of the laws, social rights and so on) they are required to render their services and provide their goods to all the members of the civil society without discrimination. This does not require that they like their customers or approve of them. Rather, it requires that they honor the tactic contract: in return for the goods of society that allow one to operate a business, one must provide goods and services to all members of the society. That is the deal one makes when one operates a business in a democratic society that professes liberty and justice for all.
Obviously, people do have the right to refuse goods and services under certain conditions. For example, if a customer went into Ralph & Ruth’s Bakery (Ralph moved on quickly) and insulted Ruth, urinated on the floor and demanded they give him a half price discount, Ruth would be justified in refusing to make him a cake. After all, his behavior would warrant such treatment. However, refusing a well-behaved customer because she is gay, black, Christian, or a woman would not be justified. This is because those qualities are not morally relevant to refusing services. Most importantly, freedom of religion is not a freedom to discriminate.
It might be countered that the government has no right to force a Christian to bake a wedding cake for a gay couple. This is true, in that the person can elect to close his business rather than bake the cake. However, he does not have the moral right to operate a business within civil society if he is going to unjustly discriminate against members of that society. So, in that sense, the state does have the right to force a Christian to bake a wedding cake for a gay couple, just as it can force him to bake a cake for a mixed-race couple, a Jewish couple, or an atheist couple.
While the murders of twelve people at Charlie Hebdo are unjustifiable, one of the killers did attempt, in advance, to justify the attack. The main justification offered was that the attack was in accord with Islamic law. Since I am not a scholar of Islam, I will not address the issue of whether this is true or not. As an ethicist, I will address the matter of moral justification for the killings.
From the standpoint of the killers, the attack on Charlie Hebdo was presumably punishment for the actions of those they killed. In general, punishment is aimed at retaliation for wrongs done, redemption of the wrongdoer or deterrence (this is the RRD model). Presumably the killers were aiming at both retaliation and deterrence and not redemption. From a moral standpoint, both retaliation and deterrence are supposed to be limited by a principle of proportionality.
In the case of retaliation, the punishment should correspond to the alleged crime. The reason for this is that disproportionate retaliation would not “balance the books”, but instead create another wrong that would justify retaliation in response. This, of course, assumes that retaliation is justifiable in general, which can certainly be questioned.
In the case of deterrence, there is also a general presumption in favor of proportionality. The main reason is the same as in retaliation: excessive punishment would seem to, by definition, create another wrong. A standard counter to this is to argue that excessive punishment is acceptable on the grounds of its deterrence value—the greater the punishment, the greater the deterrence.
While this does have a certain appeal, it also runs counter to common moral intuitions. For example, blowing up a student’s car for parking in a faculty parking space at university would certainly deter students, but would be excessive. As another example, having the death penalty for traffic violations would tend to deter such violations, but this certainly seems unacceptable.
There is also the standard utilitarian argument that excessive punishment used for deterrence would create more harm than good. For example, allowing police to execute anyone who resisted arrest would deter resistance, but the harms to citizens and society would certainly seem to outweigh the benefits gained. As such, it seems reasonable to accept that punishment for the purpose of deterrence should be proportional to the offense. There is, of course, still the concern about the deterrence factor. A good guiding principle is that the punishment that aims at deterrence should be sufficient to deter, yet proportional to the offense. Roughly put, deterring the misdeed should not be worse than the misdeed.
In the case of the people at Charlie Hebdo, their alleged offense was their satire of Mohammad and Islam via cartoons. On the face of it, death certainly seems to be a disproportionate punishment. After all, killing someone is certainly vastly more harmful than insulting or offending someone.
A proportional response would have been something along the lines of creating a satirical cartoon of the staff, publishing an article critical of their cartoons or protesting these cartoons. That is, a proportional response to the non-violent expression of a view would be the non-violent expression of an opposing view. Murder would obviously be a vastly disproportionate response.
It could be replied that the punishment was proportional because of the severity of the offense. The challenge is, obviously enough, arguing that the offense was severe enough to warrant death. On the face of it, no cartoon would seem to merit death. After all, no matter how bad a cartoon might be, the worst it can do is offend a person and this would not seem to warrant death. However, it could be argued that the offense is not against just any person, but against God. That is, the crime is blasphemy or something similar. This would provide a potential avenue for justifying a penalty of death. It is to this that I now turn.
Religious thinkers who believe in Hell have long faced the challenge of justifying eternal damnation. After all, as David Hume noted, an infinite punishment for what must be finite offenses is contrary to our principles of justice. That is, even if a person sinned for every second of her life, she could not do enough evil to warrant an infinitely bad, infinitely long punishment. However, there is a clever reply to this claim.
In his classic sermon “Sinners in the Hands of an Angry God”, Jonathan Edwards says of sinners that “justice calls aloud for an infinite punishment of their sins.” Roughly put, he justifies the infinite punishment of sin on the grounds that since God is infinitely good, any sin against God is infinitely bad. As such, the punishment is proportional to the offense: infinite punishment for an infinitely bad crime.
It could be contended that creating cartoons mocking Mohammed and Islam are sins against an infinitely good God, thus warranting an infinite punishment and presumably justifying killing (which is less than infinite punishment). Interestingly, the infinite punishment for sins would seem to render the punishing of sinners here on earth pointless for two reasons. First, if the sinner will be punished infinitely, then punishing him here would not increase his punishment. So, there is no point to it. Second, if the sinner is going to be punished divinely, then punishment here would also be pointless. To use an analogy, imagine if someone proposed having a pre-legal system in which alleged criminals would be tried and, if found guilty, be given pointless and miniscule sentences (such as being mildly scolded for one second). The alleged criminals would then go on to the real legal system for their real punishment. This pre-legal system would obviously be a pointless waste of time and resources. Likewise, if there is divine justice for sins, then punishing them here would be a pointless waste of time.
This, obviously enough, assumes that God is real, that He punishes and that He would punish people for something as minor as a cartoon. It would certainly seem to be a rather petty and insecure God that would be overly concerned about snarky cartoons—people are usually most likely to react to mockery when they are strong enough to punish, but weak enough to be insecure. God, I would think, is far too big to be enraged by cartoons. But, I could be wrong. If I am, though, God will take care of matters and there is thus no reason to kill cartoonists.
If God does not exist, then the cartoons obviously cannot have offended God. In this case, the offense would be against people who believe in a make-believe faith. While such people might be very offended or angry at being mocked, killing the cartoonists would be like enraged Harry Potter fans killing a cartoonist for mocking Daniel Radcliffe with a snarky cartoon. While they might be devoted to the make believe world of Harry Potter and be very protective of Daniel Radcliffe, offensive cartoons mocking a real person and a make believe system would not warrant killing the cartoonist.
As such, if God is real, then He will deal with the offense against Him. As such, there would be no justification for people seeking revenge in His name. If He is not real, then the offense is against the make-believe and this does not warrant killing. Either way, the killings would be completely unjustified.
After the murders in France, people were once again discussing the matter of group responsibility. In the case of these murders, some contend that all Muslims are responsible for the actions of the few who committed murder. In most cases people do not claim that all Muslims support the killings, but there is a tendency to still put a special burden of responsibility upon Muslims as a group.
Some people do take the killings and other terrible events as evidence that Islam itself is radical and violent. This sort of “reasoning” is, obviously enough, the same sort used when certain critics of the Tea Party drew the conclusion that the movement was racist because some individuals in the Tea Party engaged in racist behavior. It is also the same “reasoning” used to condemn all Christians or Republicans based on the actions of a very few.
To infer that an entire group has a certain characteristic (such as being violent or prone to terrorism) based on the actions of a few would generally involve committing the fallacy of hasty generalization. It can also be seen as the fallacy of suppressed evidence in that evidence contrary to the claim is simply ignored. For example, to condemn Islam as violent based on the actions of terrorists would be to ignore the fact that the vast majority of Muslims are as peaceful as people of other faiths, such as Christians and Jews.
It might be objected that a group can be held accountable for the misdeeds of its members even when those misdeeds are committed by a few and even when these misdeeds are supposed to not be in accord with the real beliefs of the group. For example, if I were to engage in sexual harassment while on the job, Florida A&M University can be held accountable for my actions. Thus, it could be argued, all Muslims are accountable for the killings in France and these killings provide just more evidence that Islam itself is a violent and murderous religion.
In reply, Islam (like Christianity) is not a monolithic faith with a single hierarchy over all Muslims. After all, there are various sects of Islam and a multitude of diverse Muslim hierarchies. For example, the Moslems of Saudi Arabia do not fall under the hierarchy of the Moslems of Iran.
As such, treating all of Islam as an organization with a chain of command and a chain of responsibility that extends throughout the entire faith would be rather problematic. To use an analogy, sports fans sometimes go on violent rampages after events. While the actions of the violent fans should be condemned, the peaceful fans are not accountable for those actions. After all, while the fans are connected by their being fans of a specific team this is not enough to form a basis for accountability. So, if some fans of a team set fire to cars, this does not make all the fans of that team responsible. Also, if people unassociated with the fans decide to jump into action and destroy things, it would be even more absurd to claim that the peaceful fans are accountable for their actions. As such, to condemn all of Islam based on what happened in France would be both unfair and unreasonable. As such, the people who murdered in France are accountable but Islam cannot have these incidents laid at its collective doorstep.
This, of course, raises the question of the extent to which even an organized group is accountable for its members. One intuitive guide is that the accountability of the group is proportional to the authority the group has over the individuals. For example, while I am a philosopher and belong to the American Philosophical Association, other philosophers have no authority over me. As such, they have no accountability for my actions. In contrast, my university has considerable authority over my work life as a professional philosopher and hence can be held accountable should I, for example, sexually harass a student or co-worker.
The same principle should be applied to Islam (and any faith). Being a Moslem is analogous to being a philosopher in that there is a recognizable group. As with being a philosopher, merely being a Moslem does not make a person accountable for all other Moslems.
But, just as I belong to an organization with a hierarchy, a Moslem can belong to an analogous organization, such as a mosque or ISIS. To the degree that the group has authority over the individual, the group is accountable. So, if the killers in France were acting as members of ISIS or Al-Qaeda, then the group would be accountable. However, while groups like ISIS and Al-Qaeda might delude themselves into thinking they have legitimate authority over all Moslems, they obviously do not. After all, they are opposed by most Moslems.
So, with a religion as vast and varied as Islam, it cannot be reasonably be claimed that there is a central earthly authority over its members and this would serve to limit the collective responsibility of the faith. Naturally, the same would apply to other groups with a similar lack of overall authority, such as Christians, conservatives, liberals, Buddhists, Jews, philosophers, runners, and satirists.
The Hobby Lobby decision by the Supreme Court of the United States raised numerous issues including a rather interesting one regarding beliefs and facts. Oversimplifying things for the sake of brevity, the owners of Hobby Lobby claim to be opposed to abortion on religious grounds and they claim to believe that certain forms of birth control involve abortion. As such, they contended that providing insurance to their employees that covered what they regard as abortion would violate their religious beliefs and impose an unreasonable burden on them.
As I tell my students in my ethics class, a moral issue often involves three main components. The first consists of the relevant facts. Put very simply, a factual matter is such that the claim being made is true or false regardless of how we think or feel about its truth. For example, the mass of an object is a factual matter. Factual matters can become rather complicated by the fact that one might need to sort out the key concepts before determining the truth of a factual claim. As such, it should be no surprise that the second consists of the relevant concepts. Sorting out this aspect of a moral dispute involves arguing in defense of the concepts—that is, presenting and defending definitions of the key terms. In the Hobby Lobby case, one of the key concepts is that of abortion. As noted above, the owners of Hobby Lobby claim that certain birth control methods are actually methods of abortion. This seems to be because the Hobby Lobby owners believe that life begins at conception and they seem to reject the notion that pregnancy begins at implantation. This is, obviously enough, a rather important matter in regards to these methods being abortion or birth control.
If pregnancy begins at implantation (which is the scientific consensus), then the methods in question (specifically those which prevent implantation) do not involve abortion. As such, the owners of Hobby Lobby would hold factual incorrect beliefs regarding these methods of birth control and this would undercut their moral position. After all, if those methods are not abortion and their moral opposition is based on a factual error, their moral opposition would thus be unfounded.
However, if pregnancy begins at conception (which is not the scientific consensus), then these methods do involve abortion. In this case, the owners of Hobby Lobby would be factually correct. This still leaves open the question of whether their moral claims are correct or not. After all, a person can be right about the facts but be wrong about the morality, which leads to the third component, that of morality.
Obviously enough, a moral issue has a moral component. In this case, the moral issue is whether or not abortion is morally wrong. The owners of Hobby Lobby claim to believe this—but belief does not entail that a claim is true. After all, people sincerely believe false claims quite often. Fortunately for the owners of Hobby Lobby, they did not have to even argue that their moral beliefs are correct or even plausible—all that was required was establishing that their religious beliefs are sincere—that is, they believe what they claim to believe. Given the context, this is not unreasonable—after all, the issue addressed by the court was not whether abortion is morally wrong or not.
The owners of Hobby Lobby did not even need to argue in defense of their factual claims and their concepts—that is, they did not need to make the case that pregnancy occurs at conception and that the methods in question cause abortions rather than serving as birth control (of the non-abortion sort). Apparently, they merely needed to establish that they believe what they claim to believe. This raises an interesting general issue that goes beyond the specific Hobby Lobby case: should facts matter when considering cases involving value beliefs (such as religious or moral beliefs)?
On the one hand, it can be argued that the facts should not matter—at least in the sense of requiring that the beliefs in question be proven. This can be based on practicality: religious beliefs would be extremely difficult to prove and this would impose too great a burden on those bringing legal cases involving their values. Also, cases about belief are (as others have argued) not about the truth of the beliefs but about the right to hold said beliefs.
On the other hand, it can be argued that facts do matter—especially when the beliefs have an impact on other people. Returning to the case of Hobby Lobby, the idea is that the owners should not be required to follow the law because they are opposed to abortion and they believe that the birth control methods cause abortions. If it is claimed that it does not matter whether the owners are right or wrong about their factual claims, this establishes the general principle that the truth of the claims does not matter. This raises the question of how far this principle should extend.
In the Hobby Lobby case, to say that the facts are not relevant might not seem so serious. After all, the question of when life begins is one that is disputed and the Hobby Lobby owners could engage in a conceptual dispute over the definition of “abortion” in a plausible way. But, suppose that the principle that the facts do not matter, only the sincerity. This would entail that if the owners of Hobby Lobby claimed that paying women the same as men caused abortions, then all that would matter would be the sincerity of their beliefs. The fact that such a claim would be obviously false and absurd would not matter—after all, once the principle that truth is irrelevant is accepted, then truth is irrelevant. As long as the owners could show they sincerely believed that equal pay for women would cause abortions, then the actual facts would not matter. This certainly seems to set a problematic precedent.
The Supreme Court has continued along its “corporations are people that are more important than you” march with its recent ruling about the right of corporations to impose religious values on its employees. Beyond condemning the ruling, I have nothing new to say, but will re-post two posts I wrote earlier about the matter:
In the case of Hobby Lobby, CEO David Green and his family claimed that their and Hobby Lobby’s freedom of religion is being “substantially burdened” by being compelled to provide insurance that would cover “morning-after pills” and IUDs for employees who wanted such them. The Greens claim that these specific types of contraception prevent implantation of fertilized eggs and are thus equivalent to abortion, which they regard as being against their religious beliefs. There are also those who oppose contraception regardless of the type on religious grounds.
The legal foundation for this challenge is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.
From a moral standpoint, this exemption does seem acceptable if it is assumed that freedom of religion is a moral right. After all, there should be a presumption in favor of freedom and the state would need to warrant such an intrusion. However, if it can do so properly, then the imposition would be morally acceptable. The stock example here is, of course, limitations on the right of free speech.
From both a moral and legal standpoint, there seem to be two main points of concern. The first is whether or not a for-profit corporation is an entity that can be justly ascribed a right to freedom of religion. The second is whether or not such the contraceptive coverage imposes a substantial burden on the free exercise of religion. Obviously, if a corporation cannot be justly ascribed this right, then the second concern becomes irrelevant in this context. However, since it is a simpler matter, I will address the second concern first and then move on to the main point of interest regarding corporations and religious freedom.
For the sake of the discussion, I will assume that those bringing the lawsuit are sincere in their claim that contraception is against their religion and that this is not merely cover for an attack on Obamacare. I will also assume that their religious belief is about the use of contraception.
On the face of it, being compelled to follow the law would seem to not impose any substantial burden in regards to such a belief. After all, those impacted by the law are not required to use contraception. This would, of course, be a clear imposition on their freedom (religious and otherwise). They are also not required to directly give their employees contraception. This could be seen as an imposition by giving them a somewhat direct role in the use of contraception. However, they are merely required to provide a health plan that covers contraception for those who are exercising their freedom to choose to use said contraception. As such, the burden seems minimal—if it exists at all.
It might be objected that to be forced to have any connection to a means by which employees could get contraceptives would be a significant imposition on the corporation. The rather obvious reply to this is that the corporations pay employees with money that can be used to buy contraceptives. So, if an employee would use contraception, then she would most likely just purchase it if it were not covered by her insurance. In cases where the contraceptive medicine is being used for medical reasons (as opposed to being used as contraception) the employee would probably be even more likely to purchase it (which raises the question of whether such use counts as using contraception in a way that would violate these religious beliefs).
As such, if a corporation can insist that health care plans not cover contraception on the grounds that they would be forced to play a role in situation in which an employee might get contraception by means connected to the corporation, it would seem that they could make the same claim in regards to the paychecks they issue. After all, paychecks might be used to acquire all manner of things that are against the religious views of the corporation’s owner(s). This is, of course, absurd and would be a clear violation of the rights and freedoms of the employees.
As such, the second issue is easily settled: being compelled to offer insurance that covers contraception is not a substantial burden on the religious beliefs of corporations.
As noted above, the corporations that are challenging Obamacare on the matter of contraception are doing so on the legal basis of the is the Religious Freedom Restoration Act (RFRA) which allows a person to seek exemption from a law if it substantially burdens her free exercise of religion. The government can deny this exemption if it can prove both a compelling reason to impose the burden and evidence that the law is narrow enough in scope.
Since the act applies to person who hold religious beliefs, it is tempting to simply assert that corporations are not people and hence not covered by the act. However, in the United States corporations are taken to be people in regards to the law.
In fact, the status of corporations as people was critical in the Citizens United ruling that banned restrictions on corporate spending in politics. The general idea is that since a corporation is a person and a person has a right to free speech, then a corporation has the right to free speech.
Given this precedent (and argument), it would certainly seem to follow that a corporation has the right to freedom of religion: Since a corporation is a person and a person has a right to freedom of religion, then a corporation has the right to freedom of religion. This would thus seem to settle the legal matter.
There is an easy and obvious way to reduce this sort of “corporations are people” reasoning to absurdity:
Premise 1: A corporation is a person (assumed).
Premise 2: Slavery is the ownership of one person by another.
Premise 3: The 13th Amendment to the United States Constitution forbids slavery.
Conclusion: The ownership of a corporation is forbidden by the constitution.
This seems completely airtight. After all, if corporations get the right to free speech and the right to religious freedom because they are persons, then they also get the right not to be owned because they are persons. Naturally, this will seem silly or absurd to the very people who easily embrace the notion of corporation personhood in the case of unlimited campaign spending. However, this absurdity is exactly the point: it is okay to own corporations because they are not, in fact, people. They also do not get the right to free speech or religious freedom because they are not, in fact, people.
It could be countered that corporations are very special sorts of people that get certain rights but can be denied other rights in a principled way. Obviously enough, those who own corporations and their defenders might be inclined to hold that corporations get the rights that are useful to the owners (like the right to free speech) but do not get a right that would be a serious problem—like the right not to be owned. However, there is a serious challenge in regards to doing this in a principled manner (and the principle of what is good for me is not a principled principle). That is, the problem is to show that corporations are entities that can justly be ascribed freedom of speech and freedom of religion, but not freedom from ownership. Ironically, as I will endeavor to argue, claiming that corporations are such that they can be justly ascribed the qualities needed to ground a right to freedom of religion would also seem to involve claiming that they have the qualities that would forbid ownership.
In order to exercise religion and thus be entitled to freedom of religion, an entity would seem to require the capacity for religious belief. Belief is, of course, an intentional mental state—a belief is about something and it is mental in nature (although the mental might be grounded in the physical, such as in a nervous system). Being legal fictions, corporations have no mental states and no intentional states. That is, a corporation has no beliefs—religious or otherwise. As such, a corporation is not entitled to freedom of religion—since it has no capacity for religious belief.
This could be countered by claiming that the owner of the corporation provides the intentional states of the corporation. In the case of religion, the religious beliefs of the owner are the religious beliefs of the corporation. Thus, the personhood of the corporation rests on the personhood of the owner. However, if the corporation has the identical mental states as the owner, then it is the owner and vice-versa. While this would handle the freedom of religion matter, it would entail that the corporation is not a separate person in regards to freedom of speech and that ownership of the corporation would be ownership of the owner. If the owner is the sole owner, this would be fine (a person can self-own)—but if the corporation is owned by stockholders, then there would be a problem here since owning people is unconstitutional.
It could be replied that the above is mere philosophical cleverness (as opposed to the legal cleverness that makes a corporation a person) and that the beliefs of a corporation are simply those of the owner.
The obvious problem is that this would entail that the corporation does not have a religious belief that it can exercise. To use an analogy, if the Supreme Court ruled that my left running shoe is a person that I own like a corporation and that thus has my religious beliefs as its own, this would obviously be madness. My shoe, like a corporation, does not itself have any beliefs—religious or otherwise. The mere fact that I own it and it is legally a person does not grant it the capabilities needed to actually possess the foundation for the right to religious freedom. Or speech, for that matter—thus also showing that the idea that corporations have the capability to engage in free speech is absurd. What they do is, in effect, serve as legal puppet “people” manipulated by the hands of actual people. Obviously, if I put an actual puppet on my hand, it is not a person. Likewise, if I create a legal entity as my puppet, it is still not an actual person—its beliefs are just my beliefs and its words are just my words.
The actual person who owns a corporation has the rights of a person—because she is a person. Thus, the owner of a corporation can contend that her religious freedom has been violated. But it is absurd to claim that a for-profit, secular corporation can have its religious freedom violated—it is simply not an entity that can have its own religious beliefs. This distinction between the owner and the corporation certainly seems fair. First, the owner still has all her rights. Second, having a distinction between the owner and the corporation is exactly the point of many of the laws government corporations (such as finances).
If someone insists on claiming that the corporation is not a legal puppet and that it has the capabilities that provide a foundation for these freedoms, then they would run afoul of the argument regarding the ownership of persons. After all, an entity that can hold religious beliefs would thus seem to be a person in a meaningful sense that would forbid ownership.
Thus, the dilemma seems to be this: if a corporation is a person and thus gains the rights of being a person, then it is unconstitutional to own a corporation. If a corporation is not really a person, then it is legal to own it but it is not entitled to the rights of a person, such as freedom of speech and freedom of religion.