Compliance with the Law under Religion-based Normative Conflicts: A Behavioral Analysis and Preliminary Prescriptions

Conflicts between law and religion pose an enduring and acute problem for liberal democracies. I analyze an underexplored aspect of these conflicts: how individuals decide, from a behavioral perspective, to adhere to law or religion. I consider three common approaches to compliance in the literature — the economic analysis model, the legitimacy-fairness analysis model, and the conformity model — and argue that none of them suffices to explain behavior in religion-based normative conflicts. Instead, I suggest an identity-situation model that draws on all three models but reconstructs the analysis around the interplay of two identities: religious identity and civic identity. I argue that in situations that call for deliberation, the strength of religious identity relative to civic identity influences the mode of analysis — economic or legitimacy-based — deployed to decide whether to obey the law. And, in situations that call for conformity, the relative salience of each identity will impact how the individual settles the normative conflict. The paper discusses the new framework and considers some of its legal implications. I argue that little can be done about conformity situations, but more can be done about deliberative situations, where the interplay of identities divides normative conflicts into two cases: an easier case and a hard case. In the easier case individuals are committed both to religion and to the state. They may experience a normative conflict but their general identification with the state is still strong. According to psychological findings they are more inclined to deploy a legitimacy-fairness analysis, namely to be greatly influenced by procedural fairness when deciding normative conflicts. Thus, to encourage a compliant behavior the state should maintain procedures that are transparent, neutral, respectful and inclusive in terms of participation of the concerned individuals. Accordingly, I offer new instrumental justifications for maintaining existing fair procedures as well as creating new ones in order to encourage compliance with the law. The hard case is harder because individuals have uneven commitments to their religion and to the state. Their identification with the state is low, and they are more inclined to disobey the law under a normative conflict. Research suggests that low-identifiers are less responsive to procedural fairness and more responsive to considerations of utility when they experience conflicts with authorities. I extrapolate and argue that religious low-identifiers are more likely to decide normative conflicts based on a CBA analysis of obeying the law vs. obeying religion. I further argue that the law mostly holds a disadvantageous position in this comparison, as legal sanctions are often insufficient to counter religious sanctions and rewards. To successfully tackle the hard cases the law has a choice of two: to accommodate religious belief, or to offer positive incentives in addition to sanctions. Positive incentives will alter the CBA of specific conflicts by counteracting religious incentives for noncompliance and will gradually strengthen the law-abiding identity of low-identifiers. This in turn will enable the state to rely more on procedural fairness in the long run. I discuss two examples of such positive incentives in the paper.Harvard Law School 2013 Student Writing Prize: Roger Fisher and Frank E.A. Sander Priz

Religious Exemptions Increase Discrimination toward Same-Sex Couples: Evidence from Masterpiece Cakeshop

In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple because of his religious beliefs. This article examines the behavioral effect of this decision in an experiment that measured discrimination toward same-sex couples from 1,155 wedding businesses shortly before and after Masterpiece. I find that Masterpiece significantly reduced the willingness to serve same-sex couples as compared with opposite-sex couples, even among previously willing vendors. Considering the variety of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination after Masterpiece to be between 61 percent and 85 percent. These results show that even a narrowly construed exemption can have a significant and robust, even if inadvertent, impact on a market and its customers. I discuss the implications of these results for research on Supreme Court effects on the public

Does Antidiscrimination Law Influence Religious Behavior? An Empirical Examination

What role should the behavioral reality of conflicts regarding gender, sexuality, and religious convictions play in the theory and doctrine of antidiscrimination law? Although the past several decades have seen broadening tension between traditional beliefs and legal and societal norms—the most recent manifestation being Obergefell v. Hodges—almost no empirical work has been done to elucidate the behavioral reality of conflicts between religion and antidiscrimination law. This Article is the first empirical behavioral study on the decisions made by religious people under norm conflict. Drawing on two decision experiments with over 3500 religious individuals and in-depth interviews with senior religious managers, this Article examines the central theoretical explanations for why people (dis)obey the law. Is compliance more successfully achieved by improving the perceived fairness of judicial proceedings (as predicted by the procedural fairness theory) or by adjusting the outcomes of these proceedings (as predicted by the economic analysis theory)? Conventional wisdom assumes that greater fairness and milder outcomes would facilitate compliance. However, the data suggest that greater procedural fairness has little to no impact on compliance decisions, while milder outcomes that afford monetary penalties as substitutes for legal compliance are not perceived as more acceptable and actually erode adherence to legal norms rather than promoting it. This Article discusses the broader implications of my findings for religious accommodations, offering recommendations to lawmakers who wish to mitigate conflicts between law and religion without relinquishing fundamental legal commitments

Religious Exemptions Increase Discrimination toward Same-Sex Couples: Evidence from Masterpiece Cakeshop

In 2018, the Supreme Court decided Masterpiece Cakeshop v. Colorado Civil Rights Commission in favor of a baker who refused service to a same-sex couple because of his religious beliefs. This article examines the behavioral effect of this decision in an experiment that measured discrimination toward same-sex couples from 1,155 wedding businesses shortly before and after Masterpiece. I find that Masterpiece significantly reduced the willingness to serve same-sex couples as compared with opposite-sex couples, even among previously willing vendors. Considering the variety of vendors involved in a typical wedding, I estimate the odds that same-sex couples would experience discrimination after Masterpiece to be between 61 percent and 85 percent. These results show that even a narrowly construed exemption can have a significant and robust, even if inadvertent, impact on a market and its customers. I discuss the implications of these results for research on Supreme Court effects on the public

Majority Nationalism Laws and the Equal Citizenship of Minorities: Experimental, Panel, and Cross-Sectional Evidence from Israel

Western societies are increasingly enacting majority nationalism laws to strengthen majority culture. We propose that these laws may alter attitudes about minorities’ equal citizenship with varied impact on majorities and minorities. To explore this issue, we examine the impact of Israel’s recently enacted Nation Law on the Jewish majority and the Arab minority. Experimental evidence from before the law’s enactment reveals that both minority and majority respondents perceive the passage of the law as permitting discrimination against the minority in housing, employment, and voting, but the effect on minority respondents’ perceptions is larger. Panel and cross-sectional data from before and after the law’s enactment reveal that the effect on majority respondents was fleeting, whereas the negative impact on minority respondents was stronger and more durable. These findings expose the troubling effects of majority nationalism laws and suggest that law may operate as a prism, expressing different messages to different groups

Majority Nationalism Laws and the Equal Citizenship of Minorities: Experimental, Panel, and Cross-Sectional Evidence from Israel

Western societies are increasingly enacting majority nationalism laws to strengthen majority culture. We propose that these laws may alter attitudes about minorities’ equal citizenship with varied impact on majorities and minorities. To explore this issue, we examine the impact of Israel’s recently enacted Nation Law on the Jewish majority and the Arab minority. Experimental evidence from before the law’s enactment reveals that both minority and majority respondents perceive the passage of the law as permitting discrimination against the minority in housing, employment, and voting, but the effect on minority respondents’ perceptions is larger. Panel and cross-sectional data from before and after the law’s enactment reveal that the effect on majority respondents was fleeting, whereas the negative impact on minority respondents was stronger and more durable. These findings expose the troubling effects of majority nationalism laws and suggest that law may operate as a prism, expressing different messages to different groups