The Separation of Church and Market?
posted by Nate Oman
Over at the NYT’s Think Again blog Stanley Fish has a post on the Obama Administration’s contemplated reversal of the so-called conscience clause, which allows medical professionals to refuse to provide otherwise legal procedure when they have religious objections. Fish presents the issue as pitting the demands of a neutrally applicable law against the demands of personal conscience. He writes:
In a series of cases stretching from Reynolds v. United States (1878) to Employment Division v. Smith (1990), the Supreme Court has ruled that when the personal imperatives of one’s religion or morality lead to actions in violation of generally applicable laws laws not promulgated with the intention of affronting anyone’s conscience the violations will not be allowed and will certainly not be celebrated; for, says the court in Reynolds, “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Of course Fish doesn’t quite get the law right. While he is correct that generally claims that the constitution requires the exemption of religious believers from neutrally applicable laws has been a loser in court, the Justices have also been quite clear of late that despite this hostility, it is fine for law makers to create such exemptions as a matter of non-constitutional law. This is my understanding what the Bush Administration did. No matter. We don’t read Fish for the constitutional law anyway. Far more interesting is his connection of the debate to the broader issue of religion in a liberal democracy:
But should patients be asked to add to the problems they already have the problem of having to figure out (if they have the time) which providers will be willing to treat them? When a professional hangs out his shingle doesn’t he offer his services and skills to the public and not just to members of it who share his morality? Isn’t it a matter of conscience (in Hobbes’s sense) to abide by the rules that define the profession you’ve signed up for?
The force of these questions depends on assumptions the proponents of the conscience clause do not share, chiefly the assumption that obligations vary with different contexts and that one can (and should) relax the obligations of faith when one is not in church. This sequestering of religion in a private space is a cornerstone of enlightenment liberalism which only works as a political system if everyone agrees to comport himself or herself as a citizen and not as a sectarian, at least for the purposes of public transactions.
Now for the record, I support the conscience clause. Provided that there are competitive markets that can provide legal services to those that demand them, I am not particularly outraged about the claims of this or that person’s conscience. There are, it seems to me, two ways of situating my position within the liberal framework that Fish alludes to. The first is to situate the marketplace within the private sphere where Fish thinks that religion may still legitimately make its claims. The second is to suggest that while there is a kind of public citizenship of the market place, it is different than the political citizenship upon which Fish models his liberalism.
The first approach is essentially that taken by market-oriented libertarians and is likely the most common response. The second approach, however, strikes me as much more interesting. It suggests that the market ought to be understood as a kind of intermediate public space between the political agora and the privacy of the household, a public space where liberal norms are important but not all important. I suspect that even the most ardent privatizers of religion would not want to insist that all the norms of political liberalism apply to the marketplace. Consider, for example, the question of consumption. I assume that no one objects to the orthodox Jew who patronizes only kosher butcher shops, even those who would argue that it would violate the ideals of liberal citizenship for the same orthodox Jew to refuse to vote for a Christian candidate. In other words, religion may be a criterion for butcher shops in a way that it ought not to be a criterion for political candidates. This suggests, however, that the separation of church and market is not as absolute as the separation of church and state.
Notice that in order to get his argument off the ground, Fish appeals to two extra concepts to work up the outrage against the non-comforming doctors. The first is consent — they signed up for the rules of profession. Of course, the problem with this kind of consent argument is that it would justify ANY set of rules that were announced ex ante. Don’t like them, don’t sign up for that particular activity. The second is the idea of a profession, that as a doctor one has a set of special obligations. The irony here, of course, is that there is a sense in which invoking the notion of a profession runs counter to precisely the ideal of equal citizenship that Fish invokes. To be a professional is to have certain non-disclaimable duties by virtue of one’s status. Another way of putting this is that the appeal to the profession is in a sense a negation of equal citizenship. Their duties are different than ours because they are different kinds of people. I would assume, however, that Fish would not see liberalism as requiring that doctors have a different set of political rights and duties, say an obligation not to vote in elections or to refrain from political speech. In the political agora they ought to be treated just like everyone else. Here liberalism abhors the notion of status.
The real problem, of course, is that we have a set of political philosophies that center on the state. The result is that they have a hard time telling us a great deal about the market, which must always operate by analogy to something — the state or the household — about which the philosophers have thought. There are, however, more things in heaven and earth than are dreamt of in liberal philosophy.