The Volokh Conspiracy

In yesterday’s post, when exploring the reasons why traditionalist Christians are significantly less likely to succeed with religious liberty claims, compared to other religious groupings including members of minority religions, I turned aside the possibility of old-fashioned bigotry and questioned the assertion that supposedly mainstream believers do not need or deserve judicial protection for religious conscience.

In today’s post, I suggest that because Catholic and Baptist claimants tend to assert controversial claims of conscience that conflict directly with the social policy-initiatives of liberal secular governments, judges that are disproportionately drawn from the cultural elite may (at the margin) react more skeptically or hostilely to such claims, even aside from the legal merits (and there'll be much more on the merits issue tomorrow).

During the course of American history, both the political left and the right at different times and in different ways have posed threats to our most cherished liberties, whether freedom of speech, procedural protections against government action, or free exercise of religion. In the past, the greatest threats to religious liberty were posed by patriotic sentiments and a law and order agenda typically advanced by the right. Today, the greater threat may come from the left through imposition of anti-discrimination and social welfare requirements even against private associational groups, such as religious believers and communities.

What Catholics and evangelical Protestants tend to hold in common today is a general adherence to traditional or conservative social values that may conflict with the commands of liberal governments. Thus, when traditionalist Catholics and Baptists resist governmental regulation by seeking exemptions from, for example, anti-discrimination or licensing laws, they run against the grain of mainstream secular society in certain regions of the country.

William Marshall has argued that “[a] court is more likely to find against a claimant ... when the religion is bizarre, relative to the cultural norm.” I submit that the opposite may be more common, given the natural human tendency to respond more vigorously to the perceived threat next door than to the peculiarity on the far side of town.

Thus, when we hear stories of strange (to us) religious beliefs and practices, our reaction tends to be one not of antipathy or disagreement, but of detached curiosity. Because such unconventional thinking or conduct is so distant from our own, we are less likely to compare those attitudes and actions against our own beliefs and practices.

By contrast, the typical American may be more threatened by that which is familiar and close at hand, but regarded as morally reprehensible, than by that which is foreign and remote (culturally if not geographically). We may react more defensively to the neighbor who is in almost all aspects similar to ourselves but who departs markedly on some essential point that is crucial to our own sense of values or identity. Consider our response toward someone who looks much like us, grew up in similar ways, lives in the same neighborhoods, attended the same schools, holds the same kinds of jobs, but who then holds what we see as peculiar and abhorrent views on human sexuality or abortion and reproduction or relations between the genders or responsibility for the community and social welfare.

Accordingly, when a judge encounters a religious practice that departs so radically from the conventional as to appear wholly other, the judge may be more willing to tolerate it as harmless for that very reason. However, when the follower of a traditional religious group presses a claim of conscience that folds into one of the conventional, if controversial, perspectives within American public life, a judge may pass the religious claim across the metric of his or her own worldview.

Thus, for example, when an evangelical Christian school challenges the application of employment discrimination laws when discharging an unmarried pregnant school teacher or a Catholic hospital resists accreditation requirements for providing abortion-related training or services, a judge may find it more difficult not to think of how those claims stand against the judge’s own religious or political viewpoints. Accordingly, orthodox Christians who seek accommodations that reflect traditional religious values may not be at all well-positioned for litigative success in the modern era—especially before a judiciary that is drawn largely from the cultural elite.