Pluralism & Stability: A New Approach to Religious Accommodation

398 Pages·2016·2.12 MB·English

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

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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.

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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.
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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.
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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
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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
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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

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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).
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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.
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