I’m inclined to conclude that the best solution is a mix of (1) and (2) — legislatures create exemptions when they think of them, but also authorize courts to do the same — but generally without the constitutional model (3). I discuss this in much more detail in my “A Common Law Model for Religious Exemptions” article, but here I just want to focus on part of that: why I think religious exemptions are often a good idea, even though I myself am not religious.
1. Governmental restrictions on conduct (whether laws, regulations, rules for employees) necessarily have benefits and costs. The benefits come in many varieties. A restriction could protect other people’s rights, or other people’s interests that fall short of rights. It could protect broader social interests (which indirectly comes down to protecting some people’s rights or interests). It could aim to protect the regulated person’s own interests.
The costs come in many varieties, too. A restriction generally burdens some people’s rights (whether or not constitutional rights) or interests. It can cost money, which is to say it will burden taxpayers’ interests. It can alienate the restricted parties to the point that they become less likely to cooperate with their fellow citizens, refuse to follow the law, leave the country, or do other things. Those too are costs to societal interests (which again indirectly become harms to some people’s rights or interests). Think about both the laws that you like and dislike — such as laws banning murder, theft, employment discrimination, fraud, drug use, or pollution, or laws mandating paying taxes, jury duty, military service, child support, or vaccination (mandates operate much the same as restrictions here). All of them have some such mix of costs and benefits, even if you disagree with how the legislature has assessed the costs and the benefits.
As a general matter, there’s no reason to expect government officials to be filled with self-doubt about any such rules. They may have gotten the cost-benefit conclusion wrong, but they get elected to make such choices. If a city council mandates that police officers not wear beards, it has concluded that the cost to (among other things) employee liberty is overcome by the benefit to (among other things) public confidence in the department, morale, or whatever else. If a court system mandates that people not wear hats in court, it has concluded that the cost to lawyer/litigant/witness liberty is overcome by the benefits created by the rule. When our political process produced alcohol Prohibition, it reached a similar conclusion.
You and I might dislike these rules. We might want them to be repealed, and all rules subjected to some supposedly objective libertarian principle. But say we’ve lost those battles (except as to alcohol, thankfully!). Our democratic process has made these choices, and we’re generally stuck with them until the democratic process repeals them.
2. But say that someone comes to the judge and says, “Your honor” — always a good way to start — “I’m an orthodox Jew, and my religious traditions tell me that I need to wear a small skullcap. Could you please excuse me from this rule?”
The judge can say a bunch of things (assuming he has the power to change the rule, either in his courtroom or in the entire court system). He can say, “No, rules are rules.” He can say, “No, this rule is the result of a sound cost-benefit analysis.” He can say, “No, if I give you an exemption it would be unfair to all the people who want to wear baseball caps or stylish hats set at a rakish angle.” He can say, “No, if I give you an exemption all the people who want to wear baseball caps or stylish hats would be upset with the court system, whether or not it would be unfair to them.” And when the person says, “But your honor, this means that I basically can’t be a lawyer practicing in your court / I can’t be a litigant appearing in your court / I’ll have to go to jail for contempt if I’m subpoenaed as a witness, or summoned as a juror, because I won’t take off my yarmulke,” the judge can say, “Too bad.”
Or the judge can say,
Well, that’s interesting. When I made the rule I wasn’t thinking about Orthodox Jews or those Sikh fellows — I’d never even heard of them — or Muslim women who feel religiously obligated to wear headscarves; we don’t get a lot of them in these parts. I was thinking about the slovenly and the stylish, who would feel only a small cost if they had to take off their hats — and I thought there’d be some benefit in making people take the court more seriously by having them follow this sort of decorum rule. (Whether you like my cost-benefit analysis or not, that’s what I thought and still think.)But now I realize that for a small group of people, to which you belong, the cost of the rule is much greater than for most other people. And because of this, imposing the rule on you would also cause harm to third parties, or to society generally (which really means to third parties). We might lose some great lawyers that way, or parties might find it much harder to get the witnesses they need, or we’ll have to lock up people and that costs tax money, or maybe you folks will even move away, and that will cost tax money, too. Plus there might be little lost to decorum if I let you wear this hat, especially since I think people will realize that you’re doing it out of a sense of solemn obligation rather than of fashion whim.
It is this answer, I think, that is at the heart of a sensible system of religious exemptions. We live in a society in which many people feel very strongly about their religious beliefs. In some situations, this means that laws that most of us bear with little pain would cause great pain indeed to some people. In some of those situations, exempting those people would relieve that pain, with minimal cost to third parties.
And such exemptions wouldn’t just be humanitarian gestures — they would also make it much easier for a multireligious society to function smoothly (which is to say that denying the exemptions would cause a huge amount of unnecessary friction). History suggests, I think, that as a general matter religious objections do tend to create unusually serious social tensions if they aren’t accommodated.
3. Now of course there are all sorts of reasons why you might categorically reject such exemptions, for instance:
a. You might think that these exemptions always impose an unacceptable cost in inequality of rights, as the baseball-cap-wearers are denied something that the yarmulke-wearers (and turban-wearers and others) are given — the right to wear a hat in court.
b. You might think that the exemptions always impose an unacceptable cost in social tension, as the baseball-cap-wearers bristle at being treated unequally, even if you don’t think their bristling actually reflects real moral injury.
c. You might think that granting exemptions might produce unfair inequality, or at least cause resentment, among other religious observers whose similar (but different) requests are denied — for instance, if granting an exemption for peyote to religious peyotists but denying an exemption for marijuana to Rastafarians (and others) would be unfair, or would be seen as unfair.
d. You might be skeptical that yarmulke-wearers care that much about their yarmulkes, or (more generally) that religious observers really are hurt that much by these rules.
e. You might be skeptical that baseball-cap-wearers care so little about their caps — and, more generally, that everyone feels (or should feel) any loss of liberty as keenly as the religious people feel the loss of their ability to follow what they see as God’s will.
f. You might think the benefits of the various rules from which people seek exemptions are so great, in every instance, that any exemptions would undermine those benefits (and thus unduly harm those people for whose benefit the rules were created).
g. You might think that granting any exemptions would involve too much time, effort, and therefore money.
h. You might think that lots of people would fake religious beliefs, which will cause its own problems (loss of respect for the legal system, further decline in honesty as others see people getting away with lying, costly and lengthy hearings aimed at figuring out who’s telling the truth, and so on).
i. You might think that requiring government officials to treat religious objectors the same as others will usually lead to eliminating unnecessarily liberty-restraining rules, as the objectors lobby for a total repeal of the rule given that they can’t get a preferential exemption.
j. You might think that even if these objections won’t always be apt, they will be apt very often, and government decisionmakers who decide whether to create exemption schemes will do a poor job of sorting the beneficial exemptions from the harmful ones.
But I’m inclined to say that while those reasons are good reasons for rejecting some proposed exemptions or classes of exemptions — e.g., exemptions that many nonreligious people would find very valuable as well — I don’t think they categorically overcome the pro-exemption arguments. Of course not all exemption requests should be granted. And in deciding which exemption requests to grant, courts ought to think about the magnitude of the inequality or resentment that exemptions may create, the burden the exemptions impose on others, the risk and cost of insincere requests, and similar matters. In particular, I think there are good equality reasons to generally exempt all conscientious objectors (people who can sincerely say they feel a strong moral obligation to do something) alongside religious objectors; that’s what the Court did for the conscientious objector draft exemption. And keeping these considerations on mind, the benefits of granting some exemptions would, I think, on balance exceed the costs.
4. Of course, the yarmulke example involved an unusually low-cost exemption, likely because — at least to most of us today — the rule involved (no hats in the courtroom) is not a terribly important rule.
Other exemptions may involve considerably greater burdens on others: consider, for instance, the conscientious objector exemption from the draft and the clergy-penitent privilege (which may deny litigants evidence to which they would normally be entitled). They may involve greater burdens on more diffuse social interests as well. Again, consider the clergy-penitent privilege, or religious exemptions from Prohibition or from drug laws (from the perspective of those who think Prohibition and drug laws are good ideas, and who worry that alcohol and drugs distributed for ostensibly “sacramental” purposes may nonetheless be abused). They may involve greater risk of dishonest claims of religiosity; consider the draft exemption and drug law exemptions. They may involve greater worries about inequality, especially when the burden they lift is one that even secular people view as very great; again, consider the draft exemption.
Still, quite a few exemption requests do come at a relatively low cost. Dress rules, facial hair rules, hair length rules, and other such rules are quite common — especially when the government is running workplaces, schools, prisons, the military, and so on — and religious exemptions from them can be quite useful.
And some of the costlier exemptions help resolve what would otherwise be huge social tensions. If the American legal system hadn’t adopted a clergy-penitent privilege in the 1800s, I suspect Catholic-Protestant disputes would have been even more bitter than they were. If there were no conscientious objector exemptions to the draft (and again accepting that, rightly or wrongly, Congress can enact the draft), then, yes, we could try to send devoutly pacifist Quakers to fight, so many Quakers would end up either on the front lines or in prison — would that really help the war effort?
So that’s a long explanation of why I think that,
- It’s often good for the legal system to grant religious exemptions (especially if they also apply to people with deeply held nonreligious moral beliefs), as our legal system has long done.
- Government officials who think the cost-benefit balance of a rule is generally sound may still want to carve out exemptions for religious objectors, for whom the felt costs of the rule are much greater than for the rest of us.
- Religious and conscientious objections to doing what the law tells you to do differ from people just saying “I think this law is unwise or evil, and I don’t want to have to comply with it.”
This still doesn’t discuss whether the exemptions should be done on a statute-by-statute basis, or through a general statutory regime such as the Religious Freedom Restoration Act, which leaves these decisions in the first instance to judges. And it doesn’t deal with the question of whether there should be a presumptive constitutional mandate for such exemptions. I hope to deal with that in later posts.