Should the Religious Be Exempt? Questions of Justice, Character, and the Maintenance of Norms

Abstract

Under the traditional theory of religious exemptions In American law, individuals and organizations whose actions violate civil and criminal laws are exempt from those laws if their actions are for religious reasons. This idea, although enjoying a long doctrinal presence, is increasingly contested in contemporary American society. In this article, the author takes particular issue with the common (although often unarticulated) assumption that religious exemptions are justified by the idea that religion is “good in itself,” or that the religious objector has a sympathetic – “personally sincere” – character. The uncomplicated assumption that religious exemptions are amply supported by the idea that religion is a “good in itself” no longer describes what the broad swath of American society believes. Nor does the idea that religious adherents are “sincere” or “of good character” justify their exemption from the foundational norms that society otherwise establishes. As cases involving religious exemptions from same-sex marriage laws, land-use laws, employer-mandate laws, vaccination laws, and others are litigated, the costs of religious exemptions for the rights of others are becoming increasingly apparent. The inquiry must be one of achieving justice, and justice is an inquiry in which the interests of all must be equally and seriously considered.