Nervous Victors, Illiberal Measures: A Response to Douglas Nejaime and Reva Siegel

Douglas NeJaime and Reva B. Siegel’s “Conscience Wars” is an exemplar of a dying breed: a progressive piece that takes religious freedom seriously for political foes in the sex-and-reproduction culture wars. In just one generation, those battles have turned religious liberty, that consensus ideal of American public life, into a source of the fiercest divisions. The conflict now clusters around clashes between religious believers’ refusals to provide services they find sinful and others’ entitlements to those services. Though the progressive side has made gains, NeJaime and Siegel’s aim is ecumenical: to offer shared terms for a peace. Their article is therefore generous, charitable, and restrained. It gives conscience claims real weight, never doubts their sincerity, and holds back from judging cases, happier to win wider approval of a framework for deciding them. It is also scrupulously fair-minded, rehearsing opponents’ views in the words of articulate advocates. An analysis with these virtues, in this debate, is an enormous contribution. Here, though, I focus on what I see as two of the article’s errors — which I think expose surprising roots of our conscience wars. First, for NeJaime and Siegel, a conscience claim’s power to help overturn progressive policies on sex, marriage, or reproduction should count against granting it. Second, so should its risk of sending the message that others are acting immorally. In truth, these effects — the “material” harm of shaping policy, and the “dignitary” harm of expressing moral opposition — are features, not bugs, of a healthy regime of civil liberties. A claimant’s moral or religious integrity matters in itself. But the corresponding liberties also make room for civil society: for private associations that shape our loyalties, check the state, and provide resources for its reform. For these social benefits, potential for political impact is crucial. Moral stigma, too, can stoke moral reform, by forcing us to reexamine our complacent assumptions. We shrink these fruits of freedom by treating the spread of political dissent as a reason to prune civil liberties; by winnowing conscience claims for upsetting mainstream sensibilities.In a way, then, NeJaime and Siegel’s missteps betray not too little focus on believers’ interests, but too much. For NeJaime and Siegel, freedoms of religion and conscience are only for the claimants’ sake. Their social effects — stirring up political and moral dissent — are only perils. Likewise, civil society’s diverse associations, which these liberties empower, are threats to liberal order, to be tolerated only at the state’s pleasure, when they bear its image. My surface objections to NeJaime and Siegel’s proposal thus point to bedrock differences over the meaning of liberalism, not just religion. NeJaime and Siegel’s vision of liberal order makes them anxious victors in the culture wars, eager to secure gains against dissent of any social consequence. Classical liberalism, I suggest, offers a superior vision, and more repose.Part I sketches NeJaime and Siegel’s analysis, and Part II rejects two of its features. Part III expands on the reasons to reject these, and Part IV answers objections. The Conclusion sketches the fault lines within the liberal tradition here laid bare — fissures that might explain how our nation’s apparent consensus on the scope of religious liberty crumbled so utterly, so fast.