Two Ways of Conceptualizing the Relationship between Equality and Religious Freedom

In: Journal of Law, Religion and State

There are two possible ways to conceptualize the relationship between equality and religious freedom. The first is that both equality and religious freedom are derivative of some single, conceptually prior Master Value, such as dignity or self-determination: Monism. The second is that equality and religious freedom are independent, irreducibly distinct values: Pluralism. According to Monism, the Master Value’s conceptual unity means its derivative values cannot conflict. Pluralism understands rights to be susceptible of intractable conflict because they are incommensurable.

Though Monism may sound more attractive than Pluralism, the Essay identifies two difficult-to-satisfy prerequisites of Monism. First, each derivative value must be Fully Translatable to the Master Value. For if Full Translatability is not satisfied – that is to say, if a derivative value encompasses normative considerations not captured by the Master Value – then the Master Value alone cannot reliably determine how the derivative values should be reconciled or integrated, because exclusive reliance on the Master Value would omit normatively relevant considerations. Second, Monism is normatively attractive only if the Master Value also encompasses all normatively relevant political values not contained within the derivative constitutional values: the Exhaustiveness Requirement. It might be thought that the Exhaustiveness Requirement is a null set – that only considerations of constitutional status properly play a role in resolving conflicts among constitutional interests. But there are strong reasons to think otherwise: because constitutional jurisprudence in all liberal democracies allows sub-constitutional considerations of sufficient importance to restrict constitutional rights, some sub-constitutional considerations also appropriately play a role in sorting out conflicts among constitutional rights.

The difficulty of satisfying the Full Translatability and Exhaustiveness requirements is evidence in favor of Pluralism. The Essay then argues that Pluralism’s world of intractable conflict among rights is not as problematic as it may sound at first. Although resolving such conflicts is not a matter of cold logic, conceptual intractability does not rule out the possibility of principled, consistent resolutions.

The Essay then provides substantial guidance as to how rights-conflicts are best approached. Building on the work of Robert Alexy, the Essay argues there is no a priori ordinal or cardinal ranking of constitutional rights; religious freedom will not always trump equality, nor will equality always trump religious freedom. Rather, the strength of each right will be a function of facts – context matters. But the Essay also identifies an important deficiency of Alexy’s metaphor that rights-conflicts are resolved through a process of balancing, and proposes an alternative conceptualization for resolving rights-conflicts that it calls orchestration. Orchestration captures the subjective, identity-reflecting and identify-informing process of resolving rights-conflicts better than does the metaphor of balancing. Determining how the array of rights is to be orchestrated is best understood as being continuous with, rather than subsequent to, the process of constitutional decisionmaking.

  • 3

     See e.g. Ronald DworkinJustice for Hedgehogs330–331.

  • 4

     Cf. Isaiah BerlinThe Crooked Timber of Humanity 83.

  • 18

     See generally Rosensupra note 7 at 1538–1539 (identifying the “sufficiency question” as to when a sub-constitutional interest is sufficiently important to permit regulation of a constitutional interest).

  • 19

     See Rosensupra note 7 at 1558; see also ibid. at 1543–1553.

  • 45

     See Heymansupra note 45 at 87.

  • 50

     See Rosensupra note 1 at 1543–1572.

  • 51

     See Rosensupra note 7 at 1579–1592.

  • 53

    Robert AlexyA Theory of Constitutional Rights 57. Tom Scanlon’s account of normative reasoning which applies to constitutional reasoning similarly understands normative reasons to be non-absolute. See generally T.M. Scanlon Being Realistic About Reasons 31–33.

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  • 58

     See Rosensupra note 7 at 1542; 1549–1551.

  • 60

     See Rosensupra note 7 at 1582.

  • 67

     See Rosensupra note 7 at 1584. To be more precise Alexy is unclear about how frequently he believes balancing generates inter-subjectively binding results. See ibid. The argument I provide in favor of orchestration and against balancing applies regardless of the particularities of Alexy’s views on this issue.

  • 69

     See e.g. Scanlonsupra note 55 at 112 (arguing that the “strength” of a reason “is fundamentally a matter of relations of outweighing…” (emphasis supplied); Allan Gibbard Wise Choices Apt Feelings: A Theory of Normative Judgment 86 (“A person’s normative judgments all told on a given matter will typically depend on his acceptance of more than one norm and the norms he accepts may weigh in opposing directions”); see also ibid. at 83 (arguing that one norm may “outweigh” a competing norm).

  • 81

     See e.g. Tim Cook“Pro-Discrimination ‘religious freedom’ laws are dangerous”The Washington Post (March 29 2015) (equating refusal of services to same-sex couples with the Jim Crow era).

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