I’m writing this post as a reference for future discussions about religious exemptions.
Conditions Sufficient to Morally Require a Religious Exemption
I think religious exemptions from a law morally ought granted whenever the following four conditions are met:
(1) The law is endorsed by the subset of the population whose support makes the law democratically legitimate (something like a majority).
(2) The law places a substantial burden on the integrity or conscience of religious citizens (or secular citizens), or considerably sets back their fundamental interests.
(3) The exemption is feasible. Government can detect burdened citizens, exempt them without enormous costs, and typically root out fraudulent exemption claims.
(4) The exemption economizes on third party harms.
Reasons for the Four Conditions
The case for (1) is simple: if, say, a majority supports the law, then that’s usually a good reason to have the law. If they don’t support it, then abolish the law. No exemption is necessary.
The case for (2) is also simple: all persons have dignity and worth, and part of respecting that worth is respecting their liberty to live their own lives in their own way, to integrate their lives and identities with core principles, projects, and values. Laws that require people to violate their integrity or conscience or that greatly restrict the liberties to live out their own lives in their own way are, for that reason, unjust and undesirable, and so should not be imposed on everyone. Also note that this point is not restricted to religious citizens, but covers secular citizens too.
The case for (3) is also pretty straightforward. If the exemption is infeasible, say because too many people want the exemption, or the people who want the exemption can’t be detected, then that’s a good reason not to have the exemption. In those cases, either abolish the law or restrict the exemption.
The argument for (4) is complicated. On the one hand, we shouldn’t grant exemptions that cause severe harm, like exemptions from laws banning child sacrifice (a go-to example of exemption opponents). But all exemptions have the potential for harm, just as all rights do, so the mere fact that an exemption harms a third party is not sufficient to deny the exemption. Instead, the exemption should be crafted to economize on third party harm, at least to a large extent. So exemptions can impose harms on third-parties, but should not cross a certain threshold of harm, at least once we subtract the harm that comes from denying the exemption (since total harm is what’s at issue). But it’s going to be hard to specify that threshold in any precise way.
A second problem arises when we try to decide what counts as a harm. Obviously physical harms should be counted, and many psychological harms as well. But sometimes people cite a third kind of harm – dignitary harm – that isn’t the same as a physical or psychological harm. The harmful act is harmful simply because it is an affront to the dignity of a person, regardless of whether the person feels hurt or degraded. However, some people (like me) deny that there are dignitary harms over and above physical harms, psychological harms, or simple rights violations. So that’s going to complicate matters.
The Draft: To illustrate how to apply the conditions, let’s begin by considering the classic case of exemption from the draft. In at least some wars, most people support the war. Second, participating in the war places a modest or substantial burden on the liberties and interests of some persons. Third, it is feasible to exempt a small number of people. Objectors are easy to detect and there are few enough people wanting exemptions that the exemptions can be granted without large costs. Finally, while having fewer soldiers may result in some harms, the numbers are small enough that draft exemptions don’t impose third-party harms, and may even reduce harm if the exempted become medics. If they heal rather than kill.
Note that secular citizens can secure draft exemptions, so I’m not limiting these standards to religious citizens. Religious citizens on my view possess no religious privilege in this domain of the law.
Sacred Drug Use: We can also assess the famous case of Employment Division v. Smith. A majority of people presumably supported restrictions on drug use, including peyote, but being forbidden from ingesting peyote placed a substantial burden on the integrity of two men employed by the State of Oregon, and when they were fired, they were denied unemployment benefits, a further harm added to losing their job. The exemption is feasible. Few people have an incentive to lie about whether their faith requires peyote use nor can they usually successfully deceive the courts. And there is no real third party harm from occasional peyote use. So again, the exemption is morally required.
Vaccine Exemptions: A case where exemptions plausibly should be denied are cases of vaccine exemptions, since too many exemptions impose a grave physical harm on children, such that the exemption does not economize on third-party harms. If the number of people who wanted the exemptions were very small, the exemption should be granted, but now that vaccine denialism is being mainstreamed (sigh), denying exemptions is appropriate in many cases. That said, there are better and worse ways to craft exemptions. I think the denials should simply lead to forbidding families with unvaccinated children from using public services. No one needs to go to jail, no doctors need to be sent to private homes, etc.
Serving Same-Sex Weddings: Here’s a harder case – Jack Phillips, owner of Masterpiece Cakeshop, wanted an exemption from providing same-sex couples with certain kinds of wedding cake or product. A sizeable majority of citizens in Colorado want restrictions on discrimination on the basis of sexual orientation. These restrictions arguably place a substantial burden on the integrity of Phillips. An exemption for Phillips is feasible as well. It isn’t hard to detect such citizens because very few people request exemptions, and few will ask for them insincerely, given how unpopular they are. Further, the exemptions can occur with very little cost. So conditions (1)-(3) are satisfied. But what about (4)?
Clearly those turned away aren’t physically harmed, nor are they even financially harmed, since the vast majority of cake shops provide cakes to same-sex weddings. And I seriously doubt there is any psychological harm in being turned away by a single cake-shop among dozens, even if being turned away is offensive. No, the question is whether there is a dignitary harm in this case because someone is denied a service solely because of their sexual orientation and desire to be married. As I said earlier, I don’t think there are dignitary harms. One reason is that I think it is basically a misleading way of characterizing an offense, and I agree with J.S. Mill that friends of free societies must insist that people distinguish between harm and offense. The law must regulate harm, but must not regulate offense.
But even if there are dignity harms, I doubt one denial of service can harm a person’s dignity. The refusal has to part of a broader social norm that degrades persons over time. But that’s not present here. So Phillips merits an exemption by my criteria and the way in which I’ve specified them.
My purpose here is not to prove that Phillips merits an exemption, but to examine how to apply the standards I’ve set out. Since my standards take no position on whether there are dignitary harms, however, most people should be able to get on board with the four conditions I outline.