Religious Freedom, Integrity, and Smith

By: John Corvino

December 7, 2020

Responding to: Rethinking U.S. Domestic Religious Freedom

Religious Freedom, Integrity, and Smith

It is difficult for me to reflect on the presidential transition and religious freedom without thinking about integrity. But integrity is a peculiar virtue.

According to standard definitions, integrity consists in coherence between conviction, speech, and action. People with integrity say what they believe and do what they say they are going to do. They are principled, living according to their moral convictions.

People with integrity say what they believe and do what they say they are going to do.

On the other hand, some people have lousy moral convictions. In that case, we’d be better off if they didn’t manifest them. The standard, “coherence” model of integrity means that avaricious people show integrity by stealing, that racist people show integrity by expressing racism, and so on. 

Now consider Trump and Trumpism.

When Trump insists that he won the 2020 election, does he show integrity? Maybe so, if he deeply believes that there’s nothing more important—not truth, not fairness, not the rule of law—than his own power. He’s aligning his outward behavior with his deepest convictions.

Ditto for Senators Mitch McConnell and Lindsey Graham, when they insist that Supreme Court vacancies should not be filled in an election year...unless their party happens to control both the presidency and the Senate. On the surface, their behavior appears to be the very definition of hypocrisy—but only because we are assuming decent underlying convictions. Again, those with lousy convictions show integrity by doing lousy things. 

What does all this have to do with religious liberty? One important rationale for respecting religious liberty is that it preserves the believer’s integrity, allowing them to live as they believe God commands. And on the surface, this sounds like a good thing: It respects autonomy; it expresses humility in the face of the big questions; it promotes peaceful coexistence. From the believer’s perspective, it might even save souls.

One important rationale for respecting religious liberty is that it preserves the believer’s integrity, allowing them to live as they believe God commands.

But what happens when people have lousy religious convictions? What if someone believes that God commands him to bomb abortion clinics or to fly planes into buildings or to take child brides? More generally and less dramatically, what should we do when religious belief prompts behavior that runs afoul of the law?

The U.S. Supreme Court’s answer to this question has varied in its details, but certain general themes are clear. First, there’s an important difference between belief and behavior; the law may restrain the latter. Second, while the First Amendment provides considerable latitude even for religious behavior, religion is not a “get out of the law free” card. Religious practice may be constrained for the common good.

Both themes were forcefully expressed in the landmark 1990 case Employment Division vs. Smith. Alfred Smith and Galen Black used peyote—an illegal hallucinogenic drug—as part of their Native American sacramental rituals. After subsequently failing a workplace drug test, they lost their jobs and were denied unemployment benefits. 

The Supreme Court upheld the denial. Writing for the majority, Justice Antonin Scalia declared that “to make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State's interest is ‘compelling’—permitting him, by virtue of his beliefs, ‘to become a law unto himself’—contradicts both constitutional tradition and common sense.”

Of course, one can question whether peyote use ought to be illegal for anyone. And one can object to the inconsistency with which the law treats religious minorities (note that communion wine was exempted from Prohibition-era alcohol bans). Still, the underlying point is sound: If peyote is dangerous enough to criminalize, religious conviction doesn’t change its potency.

Smith is now under attack by religious conservatives, many of whom would like to see it overruled. Trump’s transformation of the Supreme Court may make that outcome more likely.

Smith is now under attack by religious conservatives, many of whom would like to see it overruled.

Not surprisingly, the cases motivating Smith’s critics today are quite different from the peyote case. Today’s plaintiffs are typically Christian conservatives who run afoul of anti-discrimination ordinances, such as bakers who refuse to provide cakes for same-sex weddings or state-contracted adoption agencies who refuse to place children with same-sex couples. They do not involve a long-overlooked religious minority, but a recent religious majority whose discriminatory treatment of LGBTQ people has fallen out of favor. They do not involve self-regarding behavior, but actions that directly affect others. Finally, they do not involve private religious rituals, but exchanges in the public square—which are properly governed by laws aimed toward the common good.

It is easy to look at the wedding cases and think, “What’s the big deal? If Jack Phillips’ religious convictions prohibit him from making cakes for same-sex weddings, let him be. The couple can find another bakery.” I understand the sentiment; it’s just cake, after all.

But then on what principled ground do we deny the same freedom to the baker whose sincere religious convictions prohibit her from making cakes for interracial weddings? Do we still say, “It’s just cake”?

On what principled ground do we deny the same freedom to the baker whose sincere religious convictions prohibit her from making cakes for interracial weddings?

Slippery-slope arguments aren’t fallacious when the slopes are demonstrably slippery. Among the ugly truths made clear in the last four years is that racism is alive and well in the United States. Our outgoing president launched his political career with birther lies, tried to ban Muslims from entering the United States, and recognized “very fine people on both sides” of a white supremacist rally. 

All of which is to say that integrity—religious or otherwise—is a thin reed on which to ground exemptions to anti-discrimination law. Justice Scalia was right: “to make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs...contradicts both constitutional tradition and common sense.” It also betrays religious liberty’s great legacy as a force for inclusion. 

I hope the Biden administration will bring much-needed thoughtfulness to these topics. At the very least, it should bring a more robust and recognizable integrity.

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