Obligation, Anarchy, and Exemption
Schwartzman, Micah, Constitutional Commentary
AGAINST OBLIGATION: THE MULTIPLE SOURCES OF AUTHORITY IN A LIBERAL DEMOCRACY. By Abner S. Greene. (1) Cambridge, MA: Harvard University Press. 2012. Pp. ix + 333. $49.95 (cloth).
People embrace philosophical anarchism for different reasons. Sometimes anarchists adopt this view, which holds in part that there is no general moral duty to obey the law, (3) because they are disillusioned with or alienated from the modern state, which they may believe is oppressive, exploitative, or unjust. Others may be attracted by utopian ideals that have difficulty flourishing under existing political regimes. Sympathy for anarchism might also arise from confrontation with laws believed to be draconian, morally obtuse, or worse--for example, drug laws, prohibitions on homosexual conduct, or mandatory military conscription. In some cases, people become skeptical about the existence of political obligations because, despite the best efforts of generations of political philosophers, they have yet to encounter a persuasive argument for the proposition that states have a moral right to command their general obedience. (4)
Yet another path to philosophical anarchism might begin with reflection on the problem of religious exemptions from generally applicable laws. Twenty years ago, in the aftermath of Employment Division v. Smith, (5) Abner Greene proposed a novel theory for why the state ought to provide constitutional religious exemptions. (6) He argued that the two Religion Clauses of the First Amendment--the Establishment Clause and the Free Exercise Clause--were best interpreted as balancing against each other. Under the Establishment Clause, laws must be based primarily on secular purposes, rather than on religious convictions. The reason is that religious beliefs are not publicly accessible, and so relying expressly on such beliefs to justify laws would unfairly exclude nonbelievers. But at the same time, limiting the role of religious beliefs in the democratic process effectively excludes religious believers. Since their views are not represented in the process, they have no reason to obey the laws produced by it. To remedy this problem, the Free Exercise Clause provides religious exemptions from the law. If believers have no say in how the law is made, then at the very least, the law should account for their exclusion by accommodating them to the extent possible. (7)
Initially, this argument for religious exemptions might seem like a fairly straightforward application of a political process theory. Religious citizens are disadvantaged in the democratic process. As a result, courts should exercise judicial review in a manner that provides them with special protections in the form of constitutional exemptions from laws that substantially burden their beliefs and practices. But this theory can point toward more radical and anarchical possibilities. If citizens are owed legal exemptions because they have no reason to obey laws resulting from an exclusionary political process, perhaps they should receive exemptions whenever they conscientiously object to laws that they otherwise have no duty to obey. After all, political exclusion is only one reason why citizens might lack political obligations. If there are others, then perhaps the state should widen the scope of its legal exemptions to cover them as well.
In Against Obligation, Abner Greene develops this general line of argument. Without abandoning his earlier balancing theory of the Religion Clauses, he now argues for a broader and more ambitious set of claims focused on the idea of "permeable sovereignty," which holds that citizens have a plurality of obligations based on their religious and philosophical views, family responsibilities, ethnic and tribal affiliations, and so on (p. 20). These sources of obligation may conflict with the state's demands, and Greene argues that there is no reason to privilege the latter. Citizens should treat all of their obligations as having equal standing, rather than giving presumptive weight to their political obligations (pp. …