Chapter 5 of Laborde’s incredibly rich analysis engages with the question of

religious group rights. Laborde argues that the politically liberal state should

grant (some) religious associations legal exemptions and protections, on the

basis of their freedom-of-association-related interests: first, their coherence interest in living “by their own standards, purposes and commitments,” and

second, their competence interest in being allowed to “interpret their own standards, purposes and commitments” (175). Accordingly, religious associations

may be exempt from gender discrimination laws, if compliance would

prevent them from acting as their religious doctrine requires them to (189).

I offer two critical comments on Laborde’s account. My first concerns her

treatment of ontological issues as irrelevant to group rights. The second concerns the scope of rights she is willing to grant religious associations

Pasternak, A

English

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the same degree of consideration tomany religious entities, even small religiouscolleges.21 The majority in Hobby Lobby may well have been mistaken in con-cluding that the law required granting Hobby Lobby an exemption, eitherbecause the complicity claimwas too attenuated or the harm to the public inter-est was too great. But they were not wrong to assume, just as statutes like theReligious FreedomRestorationAct and Title VII already do, that the category ofreligion is a reliable marker of instances where profound concerns weavetogether in genuinely uniqueways. And indeed, that is exactly why the draftersof the First Amendment chose to single out religion from the very beginning.Here, it is important to be clear. Seeing religion as a justifiable category impliesthat the law’s decision to treat it specially is neither regrettable nor morally ret-rograde. But that does not mean religious concerns ought to prevail in everycase. Nor does it mean the category of religion exhausts the universe of thingswe might want to protect. On the contrary, any one of the goods implicatedby religion might offer a sufficient justification for special legal treatment.What is more, religion can also be a benchmark for identifying other kinds ofconcerns—things like sexual orientation, for instance—where a similar stackingof goods makes the case for special legal rules even stronger than it otherwisemight be.22 Explaining all of that is a much longer essay. For now, it is enoughto begin where Laborde’s valuable book leaves off. When it comes to religion,the whole is more than the sum of its parts. And indeed, that might just bewhat makes it special.Group Rights in Liberalism’s ReligionAvia PasternakUniversity College LondonChapter 5 of Laborde’s incredibly rich analysis engages with the question ofreligious group rights. Laborde argues that the politically liberal state shouldgrant (some) religious associations legal exemptions and protections, on thebasis of their freedom-of-association-related interests: first, their coherence21SeeHobby Lobby, 134 S. Ct. at 2763–64 (explaining the differing regulatory regimes).22For a perceptive discussion of the affinities between religion and sexual orienta-tion, see William N. Eskridge Jr., “A Jurisprudence of ‘Coming Out’: Religion,Homosexuality, and Collisions of Liberty and Equality in America,” Yale Law Journal106 (1997): 2416–30.SYMPOSIUM 661https://doi.org/10.1017/S0034670519000561Downloaded from https://www.cambridge.org/core. University College London (UCL), on 17 Oct 2021 at 17:47:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.interest in living “by their own standards, purposes and commitments,” andsecond, their competence interest in being allowed to “interpret their own stan-dards, purposes and commitments” (175). Accordingly, religious associationsmay be exempt from gender discrimination laws, if compliance wouldprevent them from acting as their religious doctrine requires them to (189).I offer two critical comments on Laborde’s account. My first concerns hertreatment of ontological issues as irrelevant to group rights. The second con-cerns the scope of rights she is willing to grant religious associations.In making the case for associational rights, Laborde distances herself fromviews that grant independent moral value to religious groups. Like all polit-ical liberals, Laborde is committed to normative individualism, the view thatwhat morally matters, fundamentally, are the interests and well-being of indi-viduals. But she also distances herself from more neutral accounts of groupagency, which suggest that a group’s internal structure and decision-makingprocesses can render it ontologically independent from its members. On theseaccounts some groups are corporate agents in their own right, and—whenthey are capable of moral reasoning—are also moral persons. These accountshave predominantly been used to ground corporate groups’moral and legalresponsibilities.1 But recent work suggests that they might also be used toground some corporate moral rights.2 In contrast, Laborde suggests thatthe “ontological and metaphysical nature of groups is irrelevant to, or inde-terminate about, the justification and scope of their rights” (172). Ratherthan ask what the group is, we should ask “how would giving it specificlegal rights and duties affect our social relations” (173). To give oneexample, the practice of corporate limited liability need not be grounded incorporations’separate agency. It can easily be grounded in the benefits of eco-nomic prosperity and innovation it (allegedly) generates.But can ontological questions about the nature of the group be entirelyignored when we determine what rights and duties it might have? Noticethere is quite a gap between deeming such questions irrelevant to the scopeof group’s rights and duties, and deeming them indeterminate about theseissues. While I agree with the latter, I remain sceptical about the former.To see why, it is useful to consider two distinct ways in which a group’sagency might be related to its rights.3 The first is conceptual and concernswhether, given the group’s status as an agent (or other related features),certain rights and duties can attach to it. The second is substantive, and1E.g., Christian List and Philip Pettit, Group Agency (Oxford: Oxford UniversityPress, 2005).2Frank Hindriks, “How Autonomous Are Collective Agents? Corporate Rights andNormative Individualism,” Erkenntnis 79, no. 9 (2014): 1656–85; Avia Pasternak, “FromCorporate Moral Agency to Corporate Moral Rights,” Law and Ethics of Human Rights11, no. 1 (2017): 135–59.3Adina Preda “Group Rights and Group Agency”, Journal of Moral Philosophy, 9,no. 2 (2013).662 THE REVIEW OF POLITICShttps://doi.org/10.1017/S0034670519000561Downloaded from https://www.cambridge.org/core. University College London (UCL), on 17 Oct 2021 at 17:47:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.concerns whether the group’s agential status offers a sufficiently strong nor-mative argument in favor of granting the group that right. While we mightthink that the group’s agency in itself does not give a strong moral argument(or even any moral argument at all) in favor of granting it rights, clearly theconceptual stage is necessary in order to even reach that normative discus-sion. Indeed, much of the recent work on corporate moral agency engagesprecisely with the conceptual stage. Laborde might be right to point outthat, for example, the practice of corporate strict liability need not begrounded in business corporations’ agency (indeed, it need not be groundedin agency even in the case of individual actors). But can the same be saidabout, for example, corporate criminal accountability? Leading accounts ofpunishment defend it as a form of communicative moral engagement withthe perpetrator. If groups are not moral agents, then it follows that they aresimply not the type of thing that can be punished in any meaningful sense.But if they are, then quite possibly we ought to engage in moral communica-tion with them.Similar conclusions apply to the case of group rights. Consider the right tofree speech. Granting free speech rights to corporations raises deep concernsabout their undermining of individuals’ political rights. But before we candiscuss and assess these substantive issues, we need to examine whichgroups can even exercise a right of free speech. Given corporations’ abilityto form beliefs and values, it makes conceptual sense to grant them such aright. But it would make no sense, I think, to discuss the right of freespeech for disorganized groups that lack a unitary common voice (e.g., theJewish Nation). In fact, Laborde seems to recognize the importance of suchquestions when she restricts the discussion of freedom of association togroups that “surmount a threshold of unity and identity,” which is necessaryin order to “be potentially capable of bearing rights” (174). And it is worthnoting that the groups to which she ends up granting association rights—churches, religious hospitals, and business corporations—are indeed corpo-rate agents, given their internal structures and decision-making processes.That they are group agents is relevant to the discussion of whether specificrights might attach to them. But, as Laborde suggests, these considerationsdo not determine the scope of their rights, and concerns about the well-beingof individuals will be crucial for the substantive argument.My second point concerns the scope of freedom-of-association rights thatLaborde allows for. As she explains, given the assumptions of normative indi-vidualism, religious groups may have legal rights only when they protect suf-ficiently important interests of their members. More specifically, whatgrounds religious group exemptions is their members’ interest in theirgroup’s coherence and competence. But here one might ask why coherenceand competence are valuable. For example, why is it valuable for Catholicbelievers that their church is permitted to appoint only male priests? Theanswer must be the value of integrity, which Laborde elaborates on anddefends mostly in chapter 6. There she suggests that “integrity protectingSYMPOSIUM 663https://doi.org/10.1017/S0034670519000561Downloaded from https://www.cambridge.org/core. University College London (UCL), on 17 Oct 2021 at 17:47:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.commitments” (IPCs) may justify individual exemptions from general laws(provided they comply with certain conditions). It follows that freedom ofassociation is not valuable in itself, but rather is an extension of individuals’right to a life of integrity, for which they might require to associate with like-minded people by a common set of rules.But once we notice the unified nature of Laborde’s account of individualand collective rights—both being grounded in the right to integrity—wealso notice a tension between her treatment of these two sets of rights. Inthe individual case Laborde restricts the type of IPCs that could justify indi-vidual exemptions. One of the conditions she sets is that the IPC must pass athreshold of thin moral acceptability. By that she means that it must not be“incompatible with any reasonable conception of justice and morality,” asare the claims of the Nazi or the fundamentalist terrorist (207). However,Laborde does not seem to set similar restrictions on the doctrines on behalfof which religious associations may demand collective exemptions. As longas the demand for discrimination is grounded in a religious doctrine,“however objectionable the doctrine is,” it may be treated as a case of permis-sible discrimination. For example, a white-supremacist church cannot beforced to admit blacks (180). But were we to apply the thin moral acceptabilitytest to this case, we are likely to reach a different conclusion: white supremacyis not compatible with any reasonable conception of morality, so cannotground permissible discrimination. To ensure consistency, Laborde musteither tighten the restrictions on associational rights, or loosen the restrictionson individual exemption rights, and given her liberal commitments, it seemsthat she should do the former.A possible reply is that my objection confuses reasons for action and theactions themselves. In the case of the white-supremacist church, its doctrinefails the test of moral acceptability. But what it ends up doing, in light of itsobnoxious doctrine, is merely to refuse to admit racial minorities. Thisaction is not a very serious violation of basic rights, and perhaps could becompatible (when disassociated from its obnoxious reasoning) with some rea-sonable conception of morality. In contrast, violent practices (e.g., infant sac-rifice or stoning [209]) are prohibited but—the response goes—not becausethey are grounded in an unacceptable doctrine, but because these acts inthemselves are impermissible violations of basic rights on any reasonable con-ception of morality.But I am not sure we can divorce reasons and actions in this way. After all,actions are what we do under some intentional description,4 and these inten-tions define and color the moral meaning of those acts, both for actors andtheir audience. What the supremacist church does, given its intentions, isnot merely to refuse to admit some people. Rather, it communicates deep4Donald Davidson, Essays on Actions and Events, 2nd ed. (New York: OxfordUniversity Press, 2001).664 THE REVIEW OF POLITICShttps://doi.org/10.1017/S0034670519000561Downloaded from https://www.cambridge.org/core. University College London (UCL), on 17 Oct 2021 at 17:47:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.contempt to people merely for their skin color. This act, under that description,undermines its victims’ (and perhaps other people’s as well) social bases ofself-respect. Those who are subjected to this wrong can reasonably arguethat no liberal conception of justice ought to allow it. This does not implythat there is no room for group exemptions from general discriminationlaws. But as in the case of individual exemptions, the relevant groups mustbe able to justify the exclusion by appeal to some reasonable conception ofjustice.Reply: Disagreement, Equal Respect, and theBoundaries of LiberalismCécile LabordeUniversity of OxfordAs indicated in my Introduction, the minimal secularism I defend disaggre-gates the notion of religion and places reasonable disagreement aboutjustice (not only the good) at the heart of its theory of public reason andexemptions. The aim is to defend a liberalism that takes a middle coursebetween the antireligious proclivities of political liberalism, on the onehand, and the relativist pluralism of critics of secularism, on the other. Myinterlocutors in this symposium challenge this account of minimal secularismfrom two opposite perspectives. The first group (Micah Schwartzman, LoriWatson, Avia Pasternak) thinks my liberalism is too permissive towards reli-gious claims The second group (Melissa Williams, Mark Storslee) argues thatmy liberalism is, on the contrary, too exclusive or ungenerous towards reli-gious claims. In this reply, I attempt to defend minimal secularism fromboth charges, emphasizing the role that different conceptions of equalrespect play in identifying the boundaries of reasonable disagreementabout justice.Micah Schwartzman pointedly asks about the political import of themodesty of Liberalism’s Religion. I began thinking about its themes as thehopes triggered by the Arab spring and the early reforms of Erdogan inTurkey suggested the possibility of religious liberal states. At that time, schol-ars in various disciplines began exploring the contours of “multiple secular-isms” as alternatives to the Western model of church-state separation. Whatwas missing, I felt, was a systematic exploration of whether these alternativeSYMPOSIUM 665https://doi.org/10.1017/S0034670519000561Downloaded from https://www.cambridge.org/core. University College London (UCL), on 17 Oct 2021 at 17:47:14, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms.

Group Rights in Liberalism's Religion - Cécile Laborde: Liberalism's Religion (Cambridge, MA: Harvard University Press, 2017. Pp. 344)

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Group Rights in Liberalism's Religion - Cécile Laborde: Liberalism's Religion (Cambridge, MA: Harvard University Press, 2017. Pp. 344)

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