Apologies for the delay in posting my reply to Chad’s really rich comments on Chapter 6 of my book. I decided to delay until after Thanksgiving, as I thought people might be more likely to read the post. But Chad’s arguments were also sufficiently challenging that it took me awhile to figure out how to respond, and I’m not entirely happy with my responses at the moment.
I’ll address Chad’s concerns about judicial restraint, legislative restraint, my general approach to religious accommodation and my take on key accommodation-related court cases in that order.
I. On Judicial Restraint
Chad, in contrast to almost everyone in the public reason literature, worries that I impose too many restraints on judges and legislators. For instance, I think a consensus requirement applies to judges, in part because their reasoning becomes the explicit basis for future law, such that the reasoning itself should be mutually acceptable. But Chad has concerns:
It seems to me that the best Kevin could get is that judges should not appeal to reasons in their decisions if they justifiably believe that such appeal will lead to unjustified laws in the future. Such a restriction, it seems, would not systematically call for or restrict shareable or unshared reasons.
Chad suggests that judges might be permitted to support laws for unshared reasons as long as they reasonably believe their reasoning won’t be the basis for future law. I’m willing to admit that exception in principle, but given how judicial reasoning can be revived decades and even centuries after the fact, I think it is hard for judges to reasonably believe their arguments will not be misused (though they can be misused even if they’re shared). At least if the reasons are shared, they are more likely to support publicly justified law in the future, given that many diverse reasons are unlikely to become shared reasons over time.
However, Chad has led me to see something I missed before, namely that if judges worry enough about the future, the shared reasons they appeal to today might not be shared in the future. You might think about the shared reasoning supporting freedom of contract in Lochner that became extremely controversial a few decades later as an example. So perhaps judges should only be concerned about the use of their reasoning within the foreseeable future. So perhaps there is less reason for judges to hew to shared reasoning than I thought, though it still seems to me plausible that sticking to shared reasoning is a better long-term strategy for judges to promote publicly justified law. But I lack an argument for this hunch.
II. On Legislative Restraint
I argue that legislators can act on whatever reasons they like so long as they believe the proposals they support can be publicly justified to multiple points of view. Chad worries that this excessively restricts the flexibility politicians need to support some proposals in order to promote others. Chad writes,
I wonder if Kevin has reason to think politicians must be more uncompromising than voters or if he would amend his principle to allow these tradeoffs.
I think legislators do need to fairly uncompromising in not promoting publicly unjustifed laws, but I could probably build in a clearer condition where a politicians could support publicly defeated law X in order to promote publicly justified law Y that is more important to members of the public.
Chad also worries that legislators might be entitled to promote bills that they know will never pass:
What objection could Kevin have to, say, Bernie Sanders introducing and voting for a bill, presumably unjustified if passed, to implement socialism knowing that he is the only avowed socialist in Congress and that the bill is doomed to fail?
I didn’t specify this in the book, but I think that legislative restraint applies to politicians if they have a non-trivial chance of affecting legal outcomes, not merely if the probability is low. Perhaps, for instance, legislative restriant kicks in when an unjustified bill has a 1/1000 chance of passing. But there are surely some laws whose chance of passing is much lower, so perhaps Sanders’ socialism bill could pass through.
III. On Accommodation Generally
Chad raises some very important questions about how to conceive of religious exemptions due to the complex nature of defeater reasons. A law is defeated when a suitably idealized member of the public prefers no law to the law in question, but in some cases where it appears that the member of the public prefers no law to the law in question, she in fact just finds the law very, very sub-optimal – just barely better than nothing. A few times in the chapter I don’t draw this distinction clearly enough. In fact, when the book was going to press, Chad and Jerry Gaus convinced me that I needed to make this distinction clearer, so I wrote an additional paper called “How to Publicly Justify Religious Exemptions” that I could share with readers, if you like. I like to think I’ve addressed Chad’s worries there.
IV. On the Cases
In Chapter 6, I apply my approach to religious exemptions to three famous cases of religious accommodation: Yoder, Smith and Mozert. Chad has some reasonable concerns about my approach. In general Chad worries that I’m not clear enough about which law the objectors have defeaters for. I think my implicit thought in the chapter is that they’re exempted even from fine-grained characterizations of the law and so exempt from more coarse-grained characterizations of the same law. But I now realize this isn’t quite right: objections to coarse-grained characterizations of a law might be less effective, as they’d undermine more potentially positive aspects of the more coarse-grained law. Things get complicated fast in this area, I think!
With respect to Mozert, I think more needs to be said about how to individuate laws in that case. In Mozert, the question was whether they would be excused from class, so the exemption request was in fact very narrow. What part of the law did the Mozert parents have defeaters for? The unit of coercion characterized as “the power of the schoolboard to require that all children in their school district be educated in accord with textbook X” or perhaps the unit of coercion characterized as “the power of the schoolboard to require that all children in their school district be educated in accord with some reasonable range of textbooks” or perhaps even “the power of the schoolboard to set the terms of public education.”
But here’s another tricky issue: the Mozert parents don’t have defeaters that undermine the justification of the law for everyone to whom the law applies. They may merely have defeaters for the application of the law to themselves, in which case their defeaters for more coarse-grained characterizations of the law would not undermine the potential benefits of the coarse-grained version of the law that accrue to non-objectors.
So perhaps I can say this: the Mozert parents have defeaters for fine-grained characterization of the law in question, and for all the more coarse-grained characterizations, so long as their defeaters are understood as defeaters that exempt them from the law rather than defeating the law for everyone. Does that work? Perhaps.
With respect to my Smith discussion, Chad can’t see which law Smith and Black have defeaters for. In my view, they have publicly justified entitlement to unemployment compensation because they did not break a publicly justified law (namely the law prohibiting narcotic use in religious ceremonies, but perhaps that’s only part of a law). And the entitlement, by assumption, is based in a publicly justified law. So I could have been clearer that the defeaters relevant to assessing the Smith case are a bit more complicated than in Yoder or Mozert.