Is religion special such that the law should give religious commitments special/preferential treatment over other claims of conscience? And if they are not special, how should the law deal with religious-based claims for exemptions from otherwise applicable laws?
Here’s the hypothetical Brian uses at the start to illustrate the question: Imagine you have two fourteen year old boys starting middle school (NB: may the gods help them). Both are wearing daggers around their necks. Boy One is wearing a dagger because he’s a devout Sikh and in that religion, male believers must wear this sort of dagger as a symbol of religious devotion. Boy Two is wearing a dagger because for generations upon generations his family has been part of a culture where, when a male enters manhood, his father passes the dagger that his father gave him (and his father him etc.) and the boy/new man is then expected to wear it at all times. That is, the boy’s whole identity as a man in his community is wrapped up in wearing this dagger. Now imagine the school has a policy against bringing weapons on campus. What should happen?
Option One: The school should grant Boy One but not Two an exemption
Option Two: The school should grant Boy Two but not One an exemption
Option Three: Boy One and Two both get exemptions
Option Four: Neither One nor Two get an exemption.
Today, the most likely answer outcome is Option One. Boy One gets an exemption because his desire for an exemption is rooted in religion while Boy Two’s request stems from a non-religious conscientious objection. Brian more or less assumes that toleration is the underlying motivating force for why we feel compelled to make exemptions generally but then asks why we should “tolerate” (and by that he means make special exceptions for) religious-based claims over non-religious ones. After arguing that the answer is no (no, there is no reason to treat religion requests for exemption differently than other non-religious conscientious objections), he proceeds to argue that instead we should generally not create exemptions from these sorts of laws.
Unlike many readers (judging by other reviews I’ve seen), I find Brian’s first claim persuasive. I can see no good reason to privilege the Sikh boy’s request for an exemption from the weapon ban over that of the boy whose identity as a man is wrapped up in wearing the same dagger. My intuition, though, is to take much more seriously Option Three (i.e. giving both boys an exemption). Brian mostly dismisses this option out of hand by saying it would basically lead to anarchy. I don’t find that persuasive for two reasons: (1) we need some account of why anarchy is not an option (this is a philosophic argument, so it’s a bit like cheating to just assume that anarchy is off the table) and (2) we need some reason to think that allowing for exemptions for all claims of consciousness would actually lead to anarchy. I’m skeptical. Just think about the power of default rules, for starters.
I think I’ll save a full review of this book for when I’m guest posting on PrawfsBlawg later this summer, I’ll just mention a few other questions I’m left with:
- The argument seems to be that toleration is what is required to show proper respect (meaning appropriate recognition) for other people’s faculty of conscience. (p. 69) But why? It seems true that we should give appropriate consideration to the ends and objects other people are aiming for but why is toleration appropriate? It’s not so clear to me that letting you be plainly wrong about something, without making at least an attempt at showing you what I think to be true, is the morally required stance I take. Or maybe the idea has to be that there’s no such thing as being wrong (or right) in the moral space? But I certainly don’t take that position. Knowing what is “right” and “good” is extraordinarily difficult but that doesn’t mean I don’t know when one thing is better than another. And, I take that to mean I think there’s some truth in there.
- He says the state may not directly target or coercively burden claims of conscience generally, unless those claims violate the Harm principle (Mill’s principle – the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. (p.115) If we take the Harm principle seriously, why the focus on direct targeting? Who cares if you target me directly or not if you exercise your power over me, against my will, for a reason other than the prevention of harm to others? In other places Brian says the state has the right to push its own conception of the good. Ok… (1) why and (2) if that’s right, then it seems the state can target or coercively burden my claims of conscience. (maybe the pushback is to define “coercive” narrowly — to cover only super forceful coercing. But that seems like cheating)
In short, a quick and thought-provoking read!