Restricting Liberty in the Name of Equality

Robust equality is a relatively recent part of the American constitutional landscape, rooted in a limited way in the Declaration of Independence and then formally embraced in the Constitution’s 14th Amendment, ratified in 1868, though it took another near century to buttress that guarantee with meaningful legal force. By contrast, liberty—e.g., of religious exercise, of speech, and of the press—and its attendant guarantee of non-deprivation without due process of law, go back to the nation’s founding if not decades and in some cases centuries before.

In recent years, however, with great domestic and international dynamics at work, there has ascended into prominence and influence a norm of equality or nondiscrimination, or an unabashedly pursued equality of outcome, effectively supplanting the centrality of individual or group liberty as the citizen’s core constitutional guarantees.

Part of this has been achieved by legitimate historical and other academic research and theorizing, though it should be noted that at times the neutrality of those undertaking such efforts may rightly be questioned. Part of this sea change, though, has come from a public and university-sanctioned tolerance for the suppression of viewpoints that conflict with the modern ethos of equality, variously defined. Many of these developments, moreover, have resulted from outside pressures—from interest groups to like-minded accrediting organizations—that seemingly leave the institutions with little choice but to comply with their dictates.

As repeatedly documented by, among others groups, the Foundation for Individual Rights in Education and the Center for Campus Free Speech, colleges and universities ironically have sometimes been the most egregious censors of speech under the banner of equality (or of perceived equal treatment), which perversely betrays a subordination of the time-honored values of truth-seeking and knowledge propagation to relatively fleeting interest-group pressures and ideological expediency.

Of course, this would all be well and good were these institutions absolutely certain—as every generation has erroneously presupposed—that they possess complete knowledge and the ultimate truth about the nature and morality of human beings.  Yet, not only do history and comparative anthropology belie such certainty, but the quasi-relativism that pervades modern academic worldviews makes it a virtually nonsensical proposition at the outset.

In case of all this sounds a bit abstract, it might be useful to contemplate a handful of contemporary examples. The current U.S. health care legislation, even after much protest and quasi-negotiation, contains only a very limited exemption for contraception distribution by religious medical institutions, regardless of the depth of their theologically grounded and longstanding opposition to such distribution. The debate, at least in the mainstream media, appeared largely one of a right of women’s equality versus a claim of anachronistic and patriarchal religious beliefs, and the equality-driven arguments seem to garner the greatest media and public approval.

But it is, in fact, a fundamental clash between a relatively recent but au courant norm of equality and a time-honored right of religious freedom, albeit one that would not inevitably have secured legal success in the past. So it is also with the debate over recognition of same-sex marriages or civil unions, and the potential exemption for religious organizations to sanction such relationships. The suggestion here is that these conflicts are not necessarily amenable to easy resolution, but the tendency to discount the religious freedom assertions as nothing more than bigotry or prejudice or, more critically, secondary interests in the legal calculus is entirely unwarranted within our scheme of constitutional traditions.

The Constitution, as described by Chief Justice John Marshall, was “intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819). The crises to which he may be referring could rightly encompass the increasing demands for equality, but surely a key principle that was intended to endure for ages to come is that of liberty of the people, both individually and collectivity. In this regard, it would be a pity indeed for this generation, or the next, to sacrifice such an enduring principle merely to satisfy the crises of the time, no matter how viscerally and forcefully they may appeal for vindication in the present moment.

Further Reading:

Roger Trigg, Equality, Freedom, and Religion (Oxford Univ. Press, 2012).

Introduction, Roger Trigg, Equality, Freedom & Religion (Oxford Univ. Press, 2012)

Marc D. Stern, Liberty v. Equality; Equality v. Liberty, 5 Nw. J.L. & Soc. Pol’y 307 (2010).


This Post Has 7 Comments

  1. Nick Zales

    I am all for religious freedom. However, many religious groups want to have their cake and eat it too. They want to be free of many laws, based on religious values, while taking advantage of the law to pay no property taxes. When it comes to suppression of religious debate, tax exemptions for religious organizations is No. 1. No politician will touch that one with a ten-foot pole. The media will not deal with it either.

  2. Scott C. Idleman

    Nick — Thanks for your comment. You are correct that some religious organizations (and especially some purportedly religious organizations) seek to exploit the constitutional and statutory provisions. Tax exemptions (or other tax preferred statutes) can pose a particularly difficult issue. On the one hand, they have a relatively longstanding historical basis. In addition, by statute they are extended to a wide variety of organizations — charitable, educational, etc. — and to deny them to religious organizations (particularly those that have charitable and educational dimensions) could be seen as unfairly targeting religious organizations for disadvantageous treatment. On the flip side, there are religious organizations that primarily serve the socially beneficially purposes normally associated with tax-preferred statutes but which then seek to extend that status to activities having only a tangential relation to their primary mission, in which case courts have been much more skeptical, and perhaps rightly so. Regarding the “ten-foot-pole” problem, you are correct that by and large efforts deny tax-preferred status to religious organizations (particularly at the local level in the form of property tax exemptions) have generally not gone over well with the public. An overarching question, of course, is whether one wishes to view a tax exemption for religious organizations (be it income or property) as a governmentally bestowed benefit, to be allowed or disallowed by legislative grace, or instead as a means of leaving religious organizations alone to fulfill their mission without having to expend a portion of their mission-focused budget not on direct social and congregational services but instead on increasing the revenue of the government. In all events, you raise an interesting and sometimes quite contested point, and I thank you for your input.

  3. Tom Kamenick

    Great post, Professor Idleman! A lot to think about here. I can see this idea at work in a lot of places, now that you’ve got me thinking about it. Campus speech codes (as you mentioned with FIRE), workplace harassment laws, anti-discrimination laws in general, etc.

  4. Scott C. Idleman

    Thanks, Tom, for your reply. The issue of religiously inspired conflicts, highlighted by Nick Zales, is is but one of the starkest illustrations of the conflict, perhaps because of the deeply embedded views of the participants in the various debates, but as you suggest it is merely one manifestation of the tension between the contemporary friction between liberty and a seemingly unyielding and growing commitment to equal treatment, accompanied by easily asserted and not easily rebutted allegations of bigotry, insensitivity, and the like. Freedom of discourse, classically embodied in academic settings, is of course one of the most tragic casualties from this movement, and a real concern should be the capacity of citizens (many of them current students) to think deeply about the history, causes, and consequences of elevating an uncritical embrace of a norm of equality (or, really, equality-of-outcome) at all costs. Thanks again for your post — I’d glad it was thought-provoking.

  5. David Papke

    Justice Thurgood Marshall ruffled a few feathers at the time of the Constitutional Bicentennial in 1987 when he argued that the greatest feature of our Constitution was that it had been amended. Marshall was thinking primarily of the Civil War Amendments and also the Nineteenth Amendment. In his mind these amendments spoke to equality for people of color and for women. In his opinion, the amendments were important steps toward making equality a primary constitutional commitment.

    Marshall’s argument was not that equality should replace liberty as a constitutional value but rather that two commitments needed to be coordinated. My view of things is that there is still much to be done on that score. Rather than worrying about the preservation of liberty, which seems to me alive and well, I would like to see equal protection doctrine developed further to fully respect the equality of gay men and lesbians and also to end discrimination against those of humbler socio-economic standing.

    1. Scott C. Idleman

      David — Thanks for your response and your insights.

      In the abstract, of course, we likely agree to a great extent: equality–by tradition, by amendment, and if not by necessity–has become an indelible part of our constitutional culture. Perhaps where we part ways (and I’m not thinking in particular of your example of gay and lesbian citizens) is over the relative priority of the sometimes-competing values of liberty and equality. There are no doubt instances where we find examples of essentially “equal liberty,” shared by virtually all if not all of the citizenry. Then there are other situations where the assertions of equality (or perhaps asserted liberty) are likely if not definitely to run afoul of others’ perceptions of equal treatment (e.g., affirmative action or so-called reverse discrimination) or the liberty to act unhindered by law (e.g., the landlord that doesn’t wish to rent to an unmarried couple).

      Thus, while it probably true that some forms of liberty are well protected by the law–either by virtue of their judicially defined breadth or by virtue of the influence of their possessors–such is not the case for all liberties, and equality mandates, being sometimes written in sweeping and unyielding terms, may have a tendency to override plausible liberty interests without regard to their historical pedigree, objective significance, and let alone of the subjective valuation of their proponents.

      Again, David, I thank you for your insightful (and needless to say civil) remarks.

  6. Sean Stoker

    Great job. I think it is important that religious liberties and equality require a delicate balance. If you stifle someone too much, they have no freedom, and that’s what America is based on. On the other hand, if you give too much leeway, you run the risk of stepping on the toes of other people’s freedoms, and it’s shallow to just discount that as pettiness and bigotry. You make some great points, and I commend you for your insights.

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