PLURALISM AND STABILITY: A NEW APPROACH TO RELIGIOUS ACCOMMODATION A Dissertation submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown University in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Government By David Golemboski, M.T.S. Washington, D.C. June 22, 2016 Copyright 2016 by David Golemboski All Rights Reserved ii PLURALISM & STABILITY: A NEW APPROACH TO RELIGIOUS ACCOMMODATION David Golemboski, M.T.S. Thesis Advisor: Richard A. Boyd, Ph.D. ABSTRACT Freedom to hold and act on one’s deepest commitments is a basic liberal commitment, but religious beliefs routinely conflict with the requirements of the law. The question then arises: when (if ever) do sincerely-held religious beliefs warrant a dispensation from legal obligations? Legal and political philosophers alike have struggled to formulate a coherent and satisfactory resolution to this challenge presented by pluralism, generally theorizing exemptions as a matter of equality. I explore an alternative approach that has not been extensively theorized, despite the centrality of its basic concern: stability. I argue that the political goal of stability can shed light on both the challenges and opportunities presented by pluralism, and can provide normative guidance for addressing conflicts in practice. Moreover, the stability-based framework I defend is largely consistent with core liberal commitments. I argue that stability supports some exemptions to relieve citizens of religious burdens and to support the flourishing of diverse moral communities, which, I argue, are indirectly supportive of stability. I engage with legal scholarship and American jurisprudence on religious accommodation to provide novel takes on past and present cases. iii ACKNOWLEDGEMENTS The first people who deserve thanks upon the completion of this project are the four members of my dissertation committee. Richard Boyd has supplied precisely the right mix of encouragement, advice, and latitude as I’ve written. I have learned from Richard a great deal about what it means to be a political theorist, and I will do well to imitate his example as a scholar, teacher, and mentor. Bruce Douglass has been helpful and encouraging since the moment I arrived at Georgetown. He has been a perceptive reader and a lively conversation partner. Henry Richardson has been more than generous in joining this committee and in applying his keen critical eye to successive drafts of each chapter. He has helped me improve crucial components of the argument, and his imprint on the text as a whole is deep. Finally, Michael Kessler has as much to do with the genesis of this project as anyone, for it was in a seminar of his that I first wrestled seriously with the problem of religious accommodation. He has been gracious in supporting this effort, and I take inspiration from his example of multidisciplinary training and scholarship. The Government Department at Georgetown has been an eminently satisfying setting in which to carry out this work. I am grateful for a generous department fellowship, as well as other funding, including a summer research grant to support this dissertation in 2015. Faculty apart from my committee have been encouraging and supportive, and a few graduate student colleagues deserve mention as well: Sean Coleman was a much-appreciated companion as we stumbled into the world of political science five years ago – and he has been much missed since he left for other things; Gianna Englert has been a model colleague and a friendly, refreshing presence in the department. iv This dissertation is unquestionably better for my friendships with Nick McDaniel and Dan Horan, even though I don’t think I have discussed its contents at length with either of them. They have each contributed immensely to the sharpening of my mind through countless arguments – always well-populated with laughter. With apologies for lumping them together, I am deeply grateful for each of them. My final and most exuberant thanks go to my wife, Brianna Copley. For supporting me – materially and otherwise – while I’ve indulged myself in this degree, she has earned my profound gratitude. For doing so while engaged daily in the genuinely heroic work of educating young people who are among the most disadvantaged in the country, she has earned my sincere admiration. Her enthusiasm and encouragement on this dissertation, while invaluable, account for but a drop of water in the comprehensive ocean of gladness that she has brought to my life. v TABLE OF CONTENTS Introduction: Liberalism, Pluralism, and the Search for Stability .................................................. 1 0.1 Pluralism: Peril or Promise for Liberalism ........................................................................... 1 0.2 The Problem of Religious Exemptions ................................................................................. 7 0.3 Motivating Ends: The Search for Stability ......................................................................... 11 0.4 Liberal Impartiality: Between Pluralism and Principles ..................................................... 15 0.5 Methodological Notes ......................................................................................................... 18 0.6 Plan of the Dissertation ....................................................................................................... 25 0.7 What is Impartiality?........................................................................................................... 29 Chapter One: The Egalitarian Basis of Impartiality ..................................................................... 44 1.1 Moral Sentiments: Smith’s Impartial Spectator .................................................................. 46 1.2 Utilitarianism: Equal Regard for Interest ............................................................................ 51 1.3 Liberal Rationalism: Rawls’s Original Position and the Idea of Public Reason ................ 55 1.4 A Generic Argument from Equality to Impartiality ........................................................... 62 1.5 The Indeterminacy of Equality: Religious Exemptions ...................................................... 74 1.6 Conclusion .......................................................................................................................... 91 Chapter Two: Stability for the Right Reasons .............................................................................. 94 2.1 The Case for a Modus Vivendi ........................................................................................... 97 2.2 Two Problems: Free-Riding and Mutual Assurance ......................................................... 100 2.3 Stability for the Right Reasons ......................................................................................... 104 2.4 Pluralism and the Reasonableness of SFRR ..................................................................... 112 2.5 Stability and Coercion....................................................................................................... 121 vi 2.6 The Politics of Stability .................................................................................................... 125 2.7 Why Stability in the First Place? ...................................................................................... 128 2.8 Situating Stability in Ideal and Non-Ideal Theory ............................................................ 134 2.9 Approximating Justice ...................................................................................................... 138 Chapter Three: From Stability to Impartiality: A Hobbesian Account....................................... 143 3.1 Fear and Hope ................................................................................................................... 145 3.2 Hobbesian Stability ........................................................................................................... 150 3.3 Stability and the “Perils of Pluralism” .............................................................................. 156 3.4 Impartiality in Hobbes ...................................................................................................... 169 3.5 Stability and Distributive Impartiality .............................................................................. 181 3.6 Stability and Justificatory Impartiality.............................................................................. 194 Chapter Four: Overcoming Impartiality’s Motivational Deficit: Some Approaches ................. 202 4.1 Impartiality’s Motivational Deficit: The Problem of Ineffective Endorsement ............... 203 4.2 Civic Identity .................................................................................................................... 211 4.3 Political Emotions ............................................................................................................. 229 4.4 Harmonization of Loyalties .............................................................................................. 240 4.5 The Promise of Pluralism.................................................................................................. 249 4.6 Moral Communities as a Source of Stability .................................................................... 258 Chapter Five: Stability and the Accommodation of Religious Belief ........................................ 264 5.1 The Ambivalence of Stability ........................................................................................... 266 5.2 Some Guiding Principles .................................................................................................. 279 5.3 U.S. History and the RFRA Balancing Test ..................................................................... 307 5.4 The Case of Hobby Lobby ................................................................................................ 312 vii 5.5 A New Test: Comparing the Stability and RFRA Frameworks ....................................... 326 5.6 Some Challenges ............................................................................................................... 330 Conclusion: Assessing the Stability Approach ........................................................................... 344 6.1 Recapitulation ................................................................................................................... 344 6.2 Some Elements of Significance ........................................................................................ 348 6.3 Caveats and Limitations .................................................................................................... 352 6.4 Future Trajectories ............................................................................................................ 356 6.5 Religion and Liberal Politics ............................................................................................ 363 Bibliography ............................................................................................................................... 369 viii INTRODUCTION: LIBERALISM, PLURALISM, AND THE SEARCH FOR STABILITY 0.1 Pluralism: Peril or Promise for Liberalism The principal commitment of liberal politics is the guarantee of wide latitude for individuals to live as they wish. From Mill’s harm principle to Rawls’s lexical prioritizing of maximum individual liberty, the hallmark of liberalism has been the freedom of citizens to live as they wish. Though, this guarantee also entails reciprocal limitations: an individual’s liberty extends only so far as is consistent with the interests of others (Mill) or the enjoyment of a similar scheme of liberties by other (Rawls). The exercise of liberty is always bounded by the legitimate claims of one’s fellows, and the project of liberal political philosophy has been to identify these bounds conceptually. This project is complicated by the fact of pluralism, by which I refer to the proliferation of different conceptions of the good within a single political society. It is worth taking a moment to distinguish this usage from some others. Consider three different ways in which the term ‘pluralism’ may be invoked. The first describes a normative political view that calls for the recognition and maintenance of diverse social entities (of which the state is but one), each possessing their own distinctive dignity and authority, within a single political society. Proponents of this kind of normative pluralism include British thinkers such as John Neville Figgis, G.D.H. Cole, and Harold Laski.1 They take the “foundational autonomy”2 of diverse associations as a starting 1 Paul Q. Hirst, ed., The Pluralist Theory of the State: Selected Writings of G.D.H. Cole, J.N. Figgis, and H.J. Laski (London: Routledge, 1989). More recently, see David Runciman, Pluralism and the Personality of the State (New York: Cambridge University Press, 1997); Victor M. Muñiz-Fraticelli, The Structure of Pluralism: On the Authority of Associations (New York, 2014). 1 point, and call for political institutions that defer appropriately to these associations under a common legal order. A second variety of pluralism is the value pluralism associated with authors such as Isaiah Berlin, Joseph Raz, and William Galston.3 This view takes off from the premise that there are multiple irreducible goods which cannot be definitively ranked against one another. Value pluralism is opposed to value monism; these are meta-ethical positions, not strictly political ones. Proponents of value pluralism do, however, tend to favor political arrangements that grant significant latitude for individuals to affirm and live in accordance with diverse value systems. A third usage of ‘pluralism’ is strictly descriptive: it signifies the fact that persons affirm many diverse beliefs, maintain many diverse commitments, and pursue many diverse ways of life. We might call this sociological pluralism, in that it merely denotes the variety present in some given set of people. It is in this sense that a great many authors talk of pluralism. Rawls is one example, though he further specifies that liberal societies give rise not only to pluralism, but to reasonable pluralism, by which he refers to pluralism arising from the free exercise of human reason, as opposed to class interests or individuals’ limited political imaginations.4 This distinction noted, it remains that what Rawls means by pluralism is the simple descriptive fact of disagreement. My project here has something to do with each of these usages. Most basically, when I say that the fact of pluralism complicates the determination of liberty’s proper bounds, I am referring to pluralism in the sociological sense. Specifically, I am focused on the fact that individuals affirm and pursue diverse conceptions of the good. Unless I indicate otherwise, the 2 Muñiz-Fraticelli, The Structure of Pluralism, 4. 3 Isaiah Berlin, “Two Concepts of Liberty,” in Four Essays on Liberty (Oxford: Oxford University Press, 1969), 118–72; Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); William A. Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (New York: Cambridge University Press, 2002). 4 John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 36–37. 2
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