Anti-discrimination & Religious Freedom – easing the tensions

We might see less tension between religious freedom & anti-discrimination goals if we view neither as absolute & both as forms of equal protection (where the establishment clause forbids government prescription & the exercise clause – proscription).

We should remain mindful that today’s majority could well be tomorrow’s protected minority. Also, charitable accommodations & hospitable accompaniments don’t, a priori or in & of themselves, necessarily amount to formal agreement, material cooperation or compromised principles.

Public lawmakers should aspire to accommodate consciences to an extent that allows persons to avoid – not only formal, but – all material cooperation with evil, however im/mediate, non/necessary, proximate or remote.

This isn’t to say that neutral & generally applicable laws advancing a compelling government interest should never burden consciences, only that they should always employ the least restrictive means practicable (including even the avoidance of a licit remote cooperation).

In the application of ecclesiastical laws that govern various forms of participation, the pastoral has primacy over the legal; episcopal discernment jumps evidential & prudential hurdles, aspiring to foster conversion and to avoid scandal & sacrilege.

Various relationships have been described as public, objective situations of sin – not because those relationship per se are inherently sinful, but – because they, presumptively, have objectively sinful aspects. Those presumptions are rebuttable per certain evidential criteria & those subjective situations can be variously ex/culpable.

Conscience accommodations can include one’s desire to avoid formal expressions, explicit or implicit, of approval of such relationships as well as any type or degree of material cooperation that would be tantamount to same.

Sometimes, when conscience accommodations are placed in competition with antidiscrimination goals, there may be no practicable means to avoid discrimination without burdening certain consciences with material cooperation. Even then, lawmakers can generally ensure that such cooperation remains as remote as possible.

In discerning a given degree of material cooperation, one must assess how definite or tentative is the causal chain between it and the objective situation and/or its allegedly sinful aspect. This is to ask just how necessary or contingent that objective situation and/or its sinful aspect is as a result of such cooperation (thereby, for example, increasing or decreasing scandal).

Since, in the USA, there are sufficient examples of the kinds & degrees of remote material cooperation that make one’s participation in a pluralistic society defensible & licit, those can be used to calibrate the sincerity of one’s participatory objections.

The more tentative the causal chain & the more highly contingent an objective situation and/or its sinful aspects vis a vis one’s kind & degree of participatory cooperation with same, the greater the risk of exposing one’s cooperation matrix to parody & thereby subverting the time-honored moral calculus that is indispensable to norming our participation in social, economic & political spheres. Also, the less likely any material cooperation could be reasonably considered tantamout to a formal expression.

This is to suggest that one’s rationale to discriminate in a given circumstance could very well be inconsistent with and thereby seriously undercut one’s very own justifications (sincerity not reasoning) for participating in other life spheres & circumstances (paying taxes, selling goods & services, walking bioethical tightropes, etc).

The more seriously one thus undercuts one’s very own participatory justifications & renders one’s own cooperation with evil matrix susceptible to parody, the more presumptively disingenuous (vis a vis sincerity) one’s rationale for discriminating (rebuttably so, but I’d certainly like to hear such rebuttals).

As in other life spheres, political realities can present as prima facie true, prudent or virtuous. Such beliefs, of course, employ rebuttable presumptions (evidential, prudential or ethical).

Such stances provide helpful default positions that rely on principled biases. While such principles may be grounded in absolute values, those biases should not be taken as absolute political norms.

So, for any given political issue, it’s not one’s stance, per se (e.g. conservative, libertarian or progressive), that will indicate that one’s an ideologue. Rather, it’s one imagining that one’s presumptions are not open to rebuttal & that one’s biases are necessarily absolute norms.

Because values can compete and political goals can come into conflict, compromises & accommodations (political strategies often anathema to ideologues) must often be fashioned. In such conflict situations, even our most well justified political presumptions & biases will especially invite good faith evidential, prudential & ethical deliberations.

Whether styled proscriptively or prescriptively, the norms reflected in such default political stances must be subjected to appropriate levels of scrutiny when rights come into conflict. For example, this would include such cherished norms as, generally though not exclusively, for conservatives, nonestablishment & free exercise; for libertarians, noninterventionism & federalism; and for progressives, nondiscrimination & inclusivism.

When humans apply general precepts (as derived from even absolute values) in various concrete norms, because we are finite, seldom will we find such norms to be exceptionless. Even for those considered so, whether absolutely or virtually, prudential & political strategies to realize such values will still require deliberative processes.

Only a conservative ideologue would reflexively reject any and all curtailments of free exercise or gun restrictions, as if such rights were absolute.

Only a libertarian ideologue would reflexively reject any and all federal interventions or statist solutions, ignoring the rebuttable nature of subsidiarity’s presumptions.

Only a progressive ideologue would reflexively reject any and all discrimination or exclusion, treating inclusivity as an absolute norm.

Certainly, ideological postures present in a manner of degrees and to various extremes, but I’m guessing not nearly as often as we hear the pejorative, ideologue, thrown around?

While the identification and definition of axiological realities (both evaluative & moral) involve a different methodology than the political approaches discussed above, such stances can also be ideological in other ways and to various degrees, especially to the extent they fail to abide any ethical pluralism, whatsoever. Such failures often result from a lack of epistemic humility and is often manifested in the eschewals of metaphysical fallibilism & moral probabilism.

Note: I kept this discussion mostly abstract although concrete examples would greatly help explicate my points. I just don’t want to engage at that level for such a volatile issue, presently. I hope one take-away is that the issue is much more nuanced than those approaches that reflexively resort to name calling (e.g. shallow inclusivists vs rampant bigots).

Note 2:

All of the above considerations aside, regarding sincerely held beliefs that are variously burdened, when nondiscrimination laws are in tension with religious freedom, the least restrictive means standard is not a high hurdle to jump because public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.