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Sexual Equality vs. Religion:
What Should the Law Do?

Cass R. Sunstein

Last year in these pages, Susan Moller Okin offered an original and illuminating set of reflections on feminism and multiculturalism (Boston Review, October/November 1997). Okin argued that sex equality often conflicts with a respect for minority cultures--in particular, the claims of minority cultures for special "group rights." Frequently such cultures do not permit girls and women to live as freely as boys and men, and the consequence is that general approval of "multiculturalism" can collide with the goal of achieving equal life prospects for men and women. Faced with such tensions, Okin argued, we ought to resist claims for group rights.

Okin's essay provoked wide-ranging response. The essay, many of the replies to it published in Boston Review, and several new responses, will be appearing next year as a book from Princeton University Press, edited by Joshua Cohen, Matthew Howard, and Martha Nussbaum. Among the new respondents is Cass Sunstein. Sunstein's response to Okin appears below.

In these remarks I seek to draw out some concrete implications from Susan Okin's general claim about tensions between sex equality and respect for minority cultures. My principal concern does involve feminism and multiculturalism, but it is somewhat narrower than Okin's--not minority cultures in general, but religious institutions in particular. As Okin shows, religious institutions are sometimes a source of discriminatory practices, and hence respect for the autonomy of religious institutions may undermine the goal of sex equality. Conflicts between sex equality and religious institutions create severe tensions in a liberal social order.1 They raise the obvious question: What is the appropriate domain of secular law insofar as government seeks to control discriminatory behavior by or within religious institutions?2

In addressing this question, I focus on an insufficiently explored puzzle. In the United States (and in many other nations), it is generally agreed that most ordinary law, both civil and criminal, is legitimately applied to religious organizations. Thus, for example, a secular government may prohibit members of a religious institution from engaging in murder, kidnapping, or assault, even if those acts are part of religious ceremony and guided by religious precepts. At the same time, it is generally agreed that there are important limits on the extent to which the law of sex discrimination is legitimately applied to religious organizations. The state does not, for example, require the Catholic Church to ordain women as priests, and religious institutions are plainly permitted to engage in acts that would be unacceptable discrimination if carried out by a secular entity.3 Interference with religious autonomy is usually prohibited if sex discrimination is the ground for the interference.

An important commonplace of liberal theory and practice might therefore be deemed the asymmetry thesis. According to the asymmetry thesis, it is unproblematic to apply ordinary civil and criminal law to religious institutions, but problematic to apply the law forbidding sex discrimination to those institutions. Thus it is uncontroversially acceptable to prevent priests from beating up women (or anyone else) as part of a religious ceremony, or to ban Orthodox Jews from assaulting Reform women rabbis (even if they are sincerely motivated by the religiously founded idea of male rabbinate); but it is often thought unacceptable to ban sex segregation in education,4 or to prohibit religious groups from excluding women from certain domains.

What is the source of this asymmetry? The answer bears on some of Okin's more abstract arguments (as well as abstract arguments made by others), and it may also help in specifying their content. If, for example, the asymmetry thesis holds, there are grounds to qualify or perhaps even to reject Okin's argument; if the thesis does not hold, it may be legitimate or even mandatory to implement a sex equality principle in some controversial ways, by interfering with widespread religious practices.

 

I.

Consider the following potential conflicts between sex equality and freedom of religion, conflicts that arise in one or another form in many nations:

1. Certain Jewish synagogues educate boys separately from girls, and certain Jewish schools refuse to admit girls. Some Jewish girls and their parents contend that this is a form of sex discrimination that contributes to sex-role stereotyping.

2. A Catholic university refuses to tenure several women teachers in its canon law department. A disappointed faculty member complains that this is a form of employment discrimination.5 The university responds that courts cannot intervene in a religious matter of this kind.

3. A young man trains and studies for ordination to the priesthood of the Society of Jesus. He is repeatedly subjected to sexual harassment by two ordained priests. The harassment takes the form of unwanted sexual comments, propositions, and pornographic mailings. He brings suit for employment discrimination.6

4. Mormon employers engage in various practices of sex discrimination in employment. They refuse to hire women for certain jobs; they claim that being male is a bona fide occupational qualification for certain positions. These practices are undertaken in the private sector, in institutions that both have and do not have explicitly religious functions.

5. A Western nation allows immigrant men to bring in multiple wives. It recognizes their polygamous marriages and various discriminatory practices (including "assigning" teenage girls to older men for marriage) that accompany certain religious convictions.7

Freedom of religion has a central place in the liberal tradition, and in the United States, as elsewhere, the law forbidding sex discrimination contains important exemptions for religious institutions. The law itself permits bona fide occupational qualifications based on sex, and courts have said that the free exercise clause of the Constitution requires courts to refrain from adjudicating sex discrimination suits by ministers against the church or religious institution employing them--even though ministers could certainly complain of assault or rape.8 This principle has been read quite broadly, to apply to lay employees of institutions (including high schools and universities) whose primary duties consist of spreading the faith or supervising religious rituals.9

As I have suggested, the resulting doctrine is a puzzle in light of the fact that almost no one believes that in general, such organizations can be exempted from most of the law forbidding civil and criminal wrongs. The puzzle is not only obvious but also important, for there is good reason to believe, as Okin shows, that some of the most pernicious forms of sex discrimination are a result of the practices of religious institutions, which can produce internalized norms of subordination.10 The remedy of "exit"--the right of women to leave a religious order--is crucial, but it will not be sufficient when girls have been taught in such a way as to be unable to scrutinize the practices with which they have grown up. People's "preferences"--itself an ambiguous term11 --need not be respected when they are adaptive to unjust background conditions; in such circumstances it is not even clear whether the relevant preferences are authentically "theirs."

There is a further problem. Seemingly isolated decisions of individual women to subordinate themselves may help establish and reproduce norms of inequality that are injurious to other women. Women interested in sex equality therefore face a collective action problem; rational acts by individual women can help sustain discriminatory norms. To say the least, it is not obvious how a liberal society should respond to this problem. But some measures prohibiting sex discrimination may make things a bit better.

 

II.

To answer the underlying question, to understand the asymmetry principle, and to obtain something of a legal perspective on Okin's claims, we have to step back a bit and say a few more general words about the relationship between liberal law and religious institutions. In the United States, there is a sharp and continuing debate about whether a state may apply "facially neutral" laws to religious institutions. A law is facially neutral if it does not specifically aim at religious practices or belief; thus a law banning the burning of animals or the use of peyote is facially neutral, whereas a law banning the Lord's Prayer is facially discriminatory.

Under current law in the United States, any facially neutral law is presumed to be constitutionally acceptable.12 The validity of all facially neutral laws may be deemed "the Smith principle," after the highly controversial Supreme Court decision that established it.

The Smith principle seems to be undergirded by two distinct ideas. The first involves an understanding of the relationship between liberty and democracy: A secular law that is neutral on its face does not interfere with religious liberty, properly conceived. On this view, the democratic process is a sufficient safeguard against laws that are facially neutral but oppressive; the very neutrality (and hence generality) of such laws guarantees against oppressiveness, for when a number of groups are subject to law, they are likely to mobilize against them and to prevent their enactment (unless there are very good reasons for them).

The second basis for the Smith principle is one of administrability: Even if some facially neutral laws raise serious questions in principle, it is very hard to administer a test for constitutionality (or political legitimacy) that would require a kind of balancing of the opposing interests. The best defense of the Smith principle is that even if it protects religious liberty too little, it comes close to protecting religious liberty enough--and it does so with the only principle that real-world institutions can apply fairly and easily. The best challenge to current law is that many facially neutral laws do impose substantial burdens on religion; that they lack sufficient liberal justification; and that institutions, including judicial institutions, are perfectly capable of drawing the appropriate lines.

 

III.

Let us now turn to the reasons why a state might be permitted to apply the ordinary civil and criminal law to religious institutions, but be proscribed from applying the law of sex discrimination to such institutions.

1. The first possibility is that a state may interfere with religious practices only when it has an especially strong reason for doing so (sometimes described as a "compelling interest"). The ordinary criminal and civil law provides that reason; the law that forbids sex discrimination does not. On this view, it is one thing for a state to prohibit murder or assault. It is quite another thing for a state to forbid discriminatory practices.

There can be no doubt that an intuition of this kind helps explain current practice; indeed, I believe that it plays a large role in establishing the conventional wisdom and the asymmetry thesis itself. And the idea would have some force if the ordinary criminal and civil law always directed itself against extremely serious harms. But it does not. The ordinary law prohibits torts that are often relatively modest (intentional infliction of emotional distress, little libels, minor assaults even without physical contact). And the state is not forbidden from applying the tort law when the underlying torts are modest. Under the Smith principle--and before that case there was little doubt about the basic idea as applied to ordinary tort law-there is no weighing of the state's interest to assess its magnitude. Thus, for example, state law that the intentional infliction of emotional distress is entirely applicable to religious institutions; like everyone else, priests and rabbis are not permitted to tell people that their children have just been run over by trucks, even if those people are religious enemies.

Religious organizations are thus subject to relatively trivial civil and criminal law. Nor is it easy to explain why the interest in being free from sex discrimination is, in principle, so modest as to be weaker than the interests underlying various aspects of the ordinary civil and criminal law. Often the interest in eliminating sex discrimination appears to be far stronger than the particular interest involved in ordinary law.

Now perhaps it will be responded that the Smith principle is wrong and that religious institutions should not be subject to ordinary civil and criminal law when the state lacks an especially strong reason for invoking its ordinary law. This idea lay behind the 1996 Religious Freedom Restoration Act, invalidated by the Supreme Court in 1997 as beyond Congress' power, but exemplifying a widely shared view about the nature of religious liberty. We have seen the direction in which an argument to the effect might go, and I will return to the question shortly. For present purposes what is important is that a rejection of the Smith principle does not entail approval of the asymmetry between the law banning sex discrimination and ordinary law. If the Smith principle is wrong, some ordinary law cannot legitimately be applied to religious institutions; whether the law of sex discrimination can be so applied depends on the nature of the relevant "balancing," an issue to which I now turn.

2. It might be thought that a prohibition on sex discrimination would impose a substantial burden on religious beliefs and practices, or even strike at their heart, whereas the ordinary civil and criminal law does not. On this view, the Smith principle is wrong; some exemptions are necessary.13 But the reason for any religious exemptions is respect for religious autonomy, respect that can coexist with ordinary civil and criminal law, but not with the law forbidding sex discrimination. For some religious institutions, a secular mandate of a (controversial conception of) sex equality would be intolerable, whereas application for ordinary law fits comfortably, in general, with their beliefs and practices. The asymmetry thesis might be defended on this ground.

The argument is not entirely without force. Sometimes ordinary civil or criminal law is entirely consistent with the norms of religious institutions; indeed, such law often grows directly or indirectly out of religious norms. And it is also possible to imagine requirements of sex equality that would go toward the heart of religious convictions. But in its broadest form, the argument is quite fragile. Some aspects of ordinary civil and criminal law do strike against practices and beliefs that are central to some religions. Consider, for example, the law forbidding animal sacrifice or the use of drugs, or even laws forbidding certain kinds of assault and imprisonment. And some aspects of the law of sex discrimination interfere not at all with some religious beliefs and practices.

Now it is possible that as a class, ordinary civil laws coexist easily with most religious practices and beliefs, whereas the law of sex discrimination does not. But to the extent that this is so, it is a contingent, time-bound, highly empirical fact, one that bears little on the question of principle from the liberal point of view. If, for example, it were thought that the state could interfere with religious practices only when the interference was not serious, we could not justify a sharp asymmetry between ordinary law and the law of sex discrimination. We would have to proceed in a more fine-grained way; we would not endorse the asymmetry thesis.

3. It might be possible to defend the asymmetry thesis with the suggestion that an appropriate test depends on both the strength and nature of the state's interest and on the extent of the adverse effect on religion. A weak interest (in preventing, let us suppose, merely technical libels) might be insufficient to justify any intrusion at all; an illegitimate interest (in, say, preventing the strengthening of a religion hostile to the political status quo) would be ruled entirely off-limits; an "overriding" interest (in, for example, preventing murder) would justify any intrusion no matter how severe; a strong or "compelling" interest would justify most intrusions. Most cases would therefore be easy. The hardest problems would arise where a strong or "compelling" interest were matched by a plausible claim that the interference would seriously jeopardize the continuing functioning of the relevant religion.

In principle, a standard of this sort seems the best one for a liberal social order to adopt, though to adopt it we would have to have a high degree of confidence in those who would administer it. Such a standard would require courts (or other institutions) to decide which aspects of the civil and criminal law were sufficiently justified. Thus we could imagine reasonable judgments in favor of a legal ban on killing and torturing animals, but against a legal ban on peyote, on the ground that the former created a risk to third parties. The legitimacy of applying principles against sex discrimination to religious institutions would depend on an assessment of the strength of the interest in those principles and the extent of the interference with religious institutions.

Doubtless different outcomes would be imaginable in different contexts, and I do not mean to sort out all of the conceivable dilemmas. My basic point is that the asymmetry between most civil and criminal law and the law banning sex discrimination could not be sustained. Under the standard I am proposing, some ordinary law would not legitimately be applied to religious institutions, and some of the law banning sex discrimination could be so applied. The legal standard would force a candid assessment of the nature of the intrusion and the strength of the underlying interest, and not rest content with homilies (by no means followed with most civil and criminal law) about the legitimate autonomy of religious institutions.

 

IV.

I offer three simple conclusions:

1. There is a plausible rationale for the view that a liberal social order should accept all laws that do not discriminate "on their face" against religious institutions and practices. This principle would authorize the application to those institutions of most civil and criminal law and also of law forbidding sex discrimination. Though plausible, this principle is not in the end acceptable, because it would allow the state to subject religious institutions to laws that substantially burden those institutions, or even strike at their heart, without at the same time serving a sufficiently important governmental purpose.

2. It is not only plausible but also correct to say that a liberal social order should disallow facially neutral laws if they (a) interfere in a significant way with religious practices, or impose a substantial burden on religious institutions, and (b) are not supported by a legitimate and sufficiently strong justification. But this idea does not support a categorical distinction between ordinary civil and criminal law and laws forbidding sex discrimination. In many cases, the idea would allow religious institutions to immunize themselves from ordinary law, but forbid them from immunizing themselves from the law prohibiting discrimination on the basis of sex.

3. There is no plausible rationale for the view, embodied in the practice of many liberal cultures, that it is unproblematic to apply ordinary civil and criminal law to religious institutions, but that it is problematic to apply, to those institutions, laws forbidding sex discrimination.

This conclusion means that there is no general barrier to applying such laws to religious institutions. Whether it is legitimate to do so depends on the extent of the interference with religious convictions and the strength of the state's justification. Reasonable people can reach different conclusions about particular cases; but it would follow that in at least some of the cases traced in part I above, the religious practice would have to yield.

I conclude that the implicit conflict between the asymmetry thesis and Okin's essay poses no problem for Okin, and that one specification of her argument shows why the asymmetry thesis cannot be sustained.

 


1 Of course there can be tensions between minority cultures and other equality concerns, for example the interest in racial equality; I restrict my discussion to sex equality here.

2 The term "religious institutions" can cover many things--from churches and temples themselves, to religious schools, to private sphere employers who act on their religious convictions. I am deliberately leaving the term vague here.

3 American law makes the basic prohibitions on employment discrimination inapplicable where religion, sex, or national origin is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 USC 2000e-2(e). The prohibition is generally inapplicable "to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." 42 USC 2000e-1.

4 Of course the US Constitution applies only to the state, and not to private institutions; hence the asymmetry thesis has its force when government goes beyond the Constitution to apply a prohibition on sex discrimination to most private institutions but not to religion.

5 See EEOC v. Catholic University of America, 856 F. Supp. 1 (DDC 1994), affirmed, 83 F.2d 455 (DC Cir. 1994).

6 Bollard v. California Province of the Society of Jesus, 1998 US Dist. LEXIS 7563 (May 15, 1998).

7 See the discussion in Okin, "Is Multiculturalism Bad for Women?" Boston Review 22, no. 5 (October/November 1997).

8 See, for example, Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184 (7th Cir. 1994)

9 EEOC v. Catholic University of America, 83 F.3d 455 (DC Cir. 1994).

10 To say this is not to deny that norms of sex equality are often an outgrowth of religious beliefs as well, nor is it to offer a general view about whether the world's religions promote or deny sex equality; it is doubtful that any general view would make much sense.

11 See Cass R. Sunstein, Free Markets and Social Justice (Chicago: University of Chicago Press, 1997), chaps. 1 and 2.

12 Employment Division, Department of Human Services v. Smith, 494 U.S. 872 (1990). Technically, Smith holds that a facially neutral law will be upheld so long as it has a "rational basis," unless it is discriminatorily motivated. The Court did not overrule Sherbert v. Verner, 374 U.S. 398 (1963)--holding that a state may not deny unemployment benefits to a Seventh-Day Adventist who was fired because she would not work on Saturday--or Wisconsin v. Yoder, 406 U.S. 205 (1972)--allowing Amish teenagers to be exempted from a requirement of school attendance until the age of 16. But it did read those cases extremely narrowly. It should be noted that the Smith decision was surprising as well as controversial and that it remains an object of continuing debate, not only in political and academic circles but also within the Supreme Court itself.

13 In EEOC v. Catholic University of America, 83 F.3d 455 (DC Cir. 1994), the court held, without much explanation, that Smith did not undermine previous holdings that there was an exception for ministers from the general sex discrimination law.

Originally published in the October/November 1998 issue of Boston Review

 



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