What Are Freedoms for?

• Author: Pomfret, Scott D.

What Are Freedoms For? By John H. Garvey. Cambridge, Mass.: Harvard University Press. 1996. Pp. viii, 312. $35.

In 1988, Jeffrey Kendall and Barbara Zeitler Kendall were married.(1) Though Jeffrey was Catholic at the time and Barbara was Jewish, the couple agreed to raise their children in Barbara's faith. In 1991, Jeffrey joined Boston Church of Christ, a fundamentalist Christian church. The tenets of that faith include a belief that those who do not accept Jesus Christ are damned to Hell, where there will be "weeping and gnashing of teeth." Barbara's faith also underwent a change during the marriage: she became an Orthodox Jew. Citing irreconcilable differences, the Kendalls sought a divorce in November, 1994.

Before their marriage dissolved, the Kendalls had three children, all of whom were under ten at the time of the divorce. In the divorce petition, Barbara sought to restrict Jeffrey's ability to expose the children to his fundamentalist faith. The probate court was then faced with a choice: it could deny this aspect of Barbara's petition or it could order such a restriction and thereby appear to endorse one religion over the other. Reasoning that it was acting in the best interests of the children, the divorce court prohibited Jeffrey from taking his children to church, exposing them to Bible study, or otherwise expressing to them his religious views, if such activities alienated the children from their Jewish self-identity or from their mother, or if the activities caused the children emotional harm. Though it had no evidence that any present harm had come to the children, the court nevertheless found that the likelihood of future substantial psychological harm was sufficient to justify the restriction. The Supreme Judicial Court of Massachusetts upheld the order.

Reflecting the increasing number of interfaith marriages(2) -- and subsequent interfaith divorces that potentially put courts in the position of deciding between allegedly irreconcilable but abstractly "good" religious practices -- the Kendall case provides fertile ground for examining John H. Garvey's new study of constitutional freedom, What Are Freedoms For? In most of this book, Garvey aims to debunk the most common conception of freedoms: that they are "rights to make choices" (p. 1). In philosophical terms, this conception is expressed by the phrase "the right is prior to the good," where the right in question is the right to make a choice (p. 1). Under this approach, the Constitution's guarantees of freedom are intended to permit each person to decide for himself what is the good and how to achieve it.

In opposition to this conception of freedom, Garvey argues that the good is prior to the right. He envisions freedom "as a right to act [in particular ways], not a right to choose" (p. 2). He thus distinguishes autonomy from freedom. He also believes that some actions are better than others, and that the Constitution gives freedom to perform such actions without government interference because they are better.

Garvey recognizes the difficult task he has set for himself: he acknowledges that the first view of freedom has become orthodox. His strategy therefore is patient and meticulous. In chapter after chapter, he acknowledges the now-conventional view, often admitting its prima facie merits. He then offers his competing conception, attempting to demonstrate that it is a superior explanation of the law of constitutional freedoms.

Using Kendall v. Kendall(3) -- a case in which two religions came into conflict -- as a foil, this Notice examines Garvey's theory of freedom particularly as it relates to religion.(4) Part I sets forth Garvey's general argument in regard to freedom of religion. Part II describes Garvey's views on the freedom children achieve through their representatives. Part III analyzes Kendall on Garvey's terms and concludes that while Garvey's theory does have some explanatory power, it may not perfectly capture the dynamic at stake in cases like Kendall.

1. FREEDOM

   Garvey largely rejects the idea that constitutional freedom has the purpose of allowing choice, or a zone of autonomy.(5) Because "autonomy is a moral ideal, [and] freedom is a legal rule" (p. 6), Garvey concedes that freedom might conceivably be a way of setting up the legal rules to ensure autonomy. Such a concept of freedom, however, would need to be extremely broad(6) and both bilateral and universal in character.(7) Without such a broad conception of freedom, autonomy would not be possible, because it would be impossible to achieve unanimous and voluntary consent to the legal rules. If choice or autonomy were the ultimate value, dissent would arise from legal rules informed by a narrower conception of freedom because these rules would protect some choices but not others.

   Garvey points out that we do not have such a broad conception of freedom. Freedom is particular and not universal (p. 12). The Constitution protects only certain kinds of freedom. "[T]he law does not give us any special freedom to hunt, fish, drink whiskey, shoot pool, or work for Toyota" (p. 13).

   Freedom is also not necessarily bilateral. Not every act has an opposing act that people might choose (p. 17). Reproductive freedom(8) might include the right to abortion and the right to childbearing. But it might not. Abortion, Garvey points out, might also not be considered a reproductive choice at all, but rather its antithesis. Thus, a right to childbearing would not necessarily entail a right to an abortion (p. 18). Similarly, a right to religion does not entail a right to atheism (p. 40). Each action requires its own justification. Freedoms do not come in pairs a priori; they must be paired (p. 39).

   Because our concept of freedom is so limited, autonomy cannot be its sole purpose. Instead, Garvey argues, freedom's purpose is to protect particular ways of acting that we deem good: "[F]reedoms allow us to engage in certain kinds of actions that are particularly valuable. The law leaves us free to do x because it is a good thing to do x" (p. 19).

   Garvey uses freedom of religion to illustrate his point about the purpose of freedom. He contrasts two approaches to religious freedom, the Agnostic Viewpoint and the Believer's Viewpoint. The former posits autonomy as the underlying purpose of freedom of religion (pp. 42-49). Under this view, religious decisions are one way -- but only one way -- in which, we shape our lives and express our individual humanity and identity. For this purpose, the truth and value of particular religious decisions are unimportant. Particular outcomes are unimportant. The value lies in the choice. For this reason, one religious choice is accepting God. Choosing to reject Him, however, is as good a choice as acceptance.

   Garvey rejects the Agnostic Viewpoint on several grounds, including the mistaken conception of personhood that it assumes (p. 44), its inconsistency with the experience of believers (p. 46), and its inconsistency with existing legal doctrine.(9) First, the Agnostic Viewpoint posits an essential self unburdened by "habitual convictions and desires" (p. 44). This self can examine its convictions and desires, rejecting those that conflict with the self's idea of what life should be like and accepting those that are congruent. Garvey questions both whether this examination is possible and whether it is desirable.(10) Second, the viewpoint does not match the experience of many believers. They do not experience belief as a choice: "[F]aith is a gift" (p. 51). Furthermore, at least some would contest the definition of freedom: "[I]t is accurate to say that Christian freedom consists not in making our own [value] choices but in obeying the law of God" (p. 46). The believer does not cherish his freedom because it allows him to make value choices, but rather because it permits him to obey God. Lastly, Garvey points out that the viewpoint does not match existing legal doctrine.(11) While believers and nonbelievers are sometimes accorded equal protection, this is not always true.(12) In some cases, believers get special protection.

   Garvey's alternative to the Agnostic Viewpoint is the Believer's Viewpoint. The value underlying freedom of religion here is the shared moral belief that religion and the acts associated with it are good things (p. 49). Freedom permits a person to achieve these goods and to do these good acts without governmental interference. Presumably, by contrast, the government could freely interfere with the vast range of activities constituting nonbelief and nonreligion.

   The Believer's Viewpoint also recognizes that religion, as a general matter, requires freedom (pp. 50-54). One cannot, after all, coerce faith, and interference with the acquisition and dissemination of religious knowledge would inhibit the search for truth. From the perspective of the individual believer, religion also requires freedom because it is particularly cruel for a government to subject a person to dire otherworldly spiritual consequences by interfering with religious practice (p. 52.) and because it is offensive to God to do so (p. 53).

   Garvey acknowledges that only some people will find such reasons convincing and that these people will tend to be believers (p. 54). He has several answers to this charge. First, he notes that everybody -- believers and nonbelievers alike -- benefits from freedom from coercion and from noninterference with truth-seeking. The government may not prevent believers from engaging in their religious observances, but it may not compel an agnostic to participate in any such observances either (p. 53). Second, Garvey reiterates his criticism that the Agnostic Viewpoint is no more neutral than the Believer's Viewpoint, because it, too, rests on assumptions that only some people can accept.(13) Finally, he argues that the Believer's Viewpoint has more explanatory power. The Agnostic...