If Not Exemptions, Then What?

This week it’s the Hobby Lobby decision and the “contraception mandate” that are provoking discussion. But beyond the specific facts and carefully narrow decision in Hobby Lobby runs a more general and perennial question: Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from otherwise applicable laws– a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? At least according to the conventional wisdom, the Supreme Court’s answer to that question for many decades was “no.” Then, from about 1963 till about 1990, the Court’s answer (officially, if not in practice) seemed to be “yes.” After that, the answer shifted back to “no,” although a law passed by Congress in 1993 with overwhelming support (the Religious Freedom Restoration Act, or RFRA) gave a “yes” answer as a statutory matter. But although RFRA is still in place (and was enforced in Hobby Lobby), opinion has shifted dramatically until the “no” answer again seems to predominate, at least in some elite legal and cultural neighborhoods.

So, what’s going on? In several insightful articles, Doug Laycock argues that two developments have undermined support for free exercise exemptions. First, the exemption approach came to be viewed as an obstacle to the gay rights agenda. Second, the percentage of atheistic or agnostic or religiously unaffiliated citizens has risen, so that what once seemed like a mutually beneficial non-aggression pact now looks to many like special interest pandering.

Laycock’s explanation is convincing as far as it goes, I think, but there may be other factors as well. I’ve argued, for example, that our commitment to religious freedom was justified, historically, by theological rationales that are now deemed inadmissible on the ironic ground that they violate religious freedom, which is said to restrict government to the realm of the secular. (More on that, maybe, in a later post.) So Jefferson’s celebrated and seminal Virginia Statute for Religious Freedom, with its resounding affirmations that “Almighty God hath created the mind free” and that coercion in religion is “a departure from the plan of the holy Author of our religion,” is in principle unconstitutional today– as a violation of religious freedom! And it’s not clear whether excluded theological rationales like Jefferson’s can be successfully replaced by secular justifications.

Beyond these factors, though, and even for people (like myself) who are not swayed by them, there are reasons to doubt the continuing viability of the exemption strategy. Think of it this way: ever since the breakup of Christendom in the sixteenth and seventeenth centuries, a (or perhaps the) fundamental political challenge has been to find ways to maintain a relatively peaceful, stable, and hopefully even just society under conditions of diversity– religious diversity in particular. The exemptions strategy has been one response to that challenge, and in some contexts the strategy has worked tolerably well. But two things have changed to make the strategy less functional. Those two things are, first, the growth of government and, second, the intensification and hardening of cultural division.

Thus, as government has expanded the scope of its ambitions and responsibilities, and as legal requirements and regulations accordingly proliferate, the occasions of conflict between law and religion multiply. To illustrate: in past generations, the contentious issue of late– namely, the conflict between some employers’ religious convictions and a “contraception mandate”– would not have arisen. The conflict would not have arisen because it would not have been considered the federal government’s business in the first place to tell employers they have to include contraception in their benefits packages.

Moreover, as cultural divisions widen, the people who find themselves at odds with legal requirements are not limited to small outlier groups like the Amish, or Quakers, or devout Native Americans, but instead more numerous and mainstream groups . . . like serious Catholics, and evangelicals, and devout Jews. Today the clash between law and conscience occurs not at the margins of society but rather at its core. And this shift makes exemptions problematic as a strategy for dealing with diversity. It is one thing to excuse a few isolated folks from complying with a law; it is quite another to exempt scores of employers responsible for thousands of employees.

For myself, therefore, although I continue to support the idea of free exercise exemptions for the time being, I also have serious doubts about the overall efficacy of this strategy. So then, is there any alternative?

One possibility favored by many– we might call it the “zero tolerance” or “no accommodation” position– is simply to deny any legal recognition to people’s religious or conscientious scruples. Just enforce the law (or rather the laws, and the regulations, in all of their sprawling and ponderous multiplicity): religious objectors be damned! (As some of them may believe they will be, if they comply.) In this spirit, the political philosopher Brian Barry compares the denial of exemptions to “a course of chemotherapy” that “holds out the hope of destroying the malignant features of religion.” Barry acknowledges that this treatment will be “experienced as debilitating by believers.” Brian Barry, Culture and Equality 25 (2001). Given his disdain for the sort of “malignant” religion that will be thus burdened and “destroy[ed],” Barry evidently regards this consequence not as a problem but rather as a point in the “zero tolerance” policy’s favor.

Barry’s position seems increasingly popular these days. In my view, there are two main problems with this position. First, it is deeply unjust, and disrespectful of the deepest concerns of millions of citizens. And, second, the policy is unlikely to succeed. That is because although “true believers” (as opposed to “check the box” religionists) may now be a minority, they are still a large enough and committed enough minority that they are unlikely just to acquiesce in the sort of intrusive “chemotherapy” that Barry and others advocate. And so the consequences of this policy could get ugly.

But then if the exemption strategy is losing its efficacy, and if uniform enforcement of laws even against religious objectors will produce unacceptable costs and resistance (and on the further assumption that government is not about to shrink or back off, thereby relieving the pressure), then what is the solution? How are we– we variously devout and indifferent and aggressively secular people– supposed to live together in peace?

I admit it: I don’t know the answer to that question. I worry– seriously– that there isn’t any good answer.

Here’s one modest and tentative suggestion, though: I wonder whether we might do well to shift our thinking and efforts away from exemptions and focus on the possibilities for reviving a different but old strategy– namely, federalism. I admit it: this is not an especially promising strategy. For traditional believers, though, what other long-term hope is there?

Steven D. Smith

Steven D. Smith is the Warren Distinguished Professor of Law, University of San Diego and Co-Executive Director of the USD Institute for Law and Religion.

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  1. gabe says

    These two sentences cover it all quite well!

    “Thus, as government has expanded the scope of its ambitions and responsibilities, and as legal requirements and regulations accordingly proliferate, the occasions of conflict between law and religion multiply.”

    “Today the clash between law and conscience occurs not at the margins of society but rather at its core.”

    Along with educating the public regarding religious liberty as Peter Lawler advances in todays LLB, perhaps the better strategy would be to educate the people on the proper role of government AND its’ limits.

  2. R Richard Schweitzer says

    “Does freedom of religion mean that sincere religious objectors have a qualified (not categorical) right to be exempted from
    **otherwise applicable laws– **
    a draft law, a compulsory schooling law, a regulation requiring employers to provide insurance coverage that includes contraceptives and some abortifacients? [**and scaling supplied, for emphasis]

    That form of framing this issue is an imprecation of the freedoms which constitute individual liberty.

    The “applicable laws” referred to are Rules of Policy – Legislation, Regulations, Ordinances, Directives and other excrescences purportedly “necessary” (or convenient?) in the quests for objectives of a “desired” (or designed) social order and the relationships necessary for it.

    Such Rules of Policy may be given the force of Law.

    There was a time in history when individual liberty and the freedoms which comprise it were regarded as paramount objectives in our social order. In order to reflect that priority of individual liberty and those freedoms it was ordained that Rules of Policy should not adversely impact that liberty and those freedoms.

    That political philosophy required that the Rules of Policy could only be “applicable” if they did not adversely impact individual liberty and those freedoms.

    That philosophy did not, and does not, call for any determination that the Rules of Policy are paramount and that “exceptions” must be established for the objectives of individual liberty and the preservation of those freedoms.

    A better approach to understanding the underlying issues would be to state the question as:

    Should all such “laws” and the regulations promulgated pursuant to them be applicable only to the extent that they do not adversely impact those freedoms which constitute individual liberty?

    What are we to have freedoms which are qualified exemptions from Rules of Policy; or, freedoms which limit the impacts of Rules of Policy?

  3. gabe says


    A question, if I may.
    As I suspect you know, I agree with you on this issue. However, (and I am not trying to quibble here), “Should all such “laws” and the regulations promulgated pursuant to them be applicable only to the extent that they do not adversely impact those freedoms which constitute individual liberty?” – how does one square this with, say, military conscription? (Being a beneficiary of such a law, I have no problem). In some sense, I am thinking of a comment by our friend Libertarian Jerry who derides ANY imposition upon personal liberty and is unwilling to accept the confluence of freedom and obligation(s). A properly drafted Legislative action / law, to my mind is sufficient to establish or codify such an obligation, while some administrative edict is not (think exemptions, etc.). Clearly, military service is a restriction on liberty but to my mind it is also a discharge of an obligation.
    How do we convince others that this is acceptable?

    • R Richard Schweitzer says

      Of course, we have to accept that all things and all ideas do not “square.” (See, Amendment XIII).

      In many varying degrees there are constant conflicts in objectives, obligations and requirements for their performance. All the various energies that make up the existence we perceive are not necessarily in harmony.

      But, from philosophy to conscription, the rationalization turns upon the fact that individual liberty requires particular conditions for its existence. In order to attain or preserve those conditions a social order may of necessity adopt Rules of Policy which for a time may adversely impact individual liberty of some for the objective of attaining or preserving the conditions of individual liberty as an objective of that social order. Having conditions for individual liberty can require compromises with adverse impacts on individual liberty.

      Universal conscription is basically an answer to the problem of distribution of performance of obligations necessary in the compromise for the preservation of conditions required for individual liberty.

      However, In Western Civilization, those obligations have arisen with the decrease in costs of the weapons of violence (which once limited the obligations of preservation of the social order to a particular class) and the advent of mass forces (principally infantry), which are only now beginning to be reformulated into a more specialized class. This has not taken effect yet in much of the periphery of Western Civilization. But then, there is not there so much concern for individual liberty (or individual life, for that matter).

      The distribution of the “burdens” or impositions of the performance of many, many obligations required to obtain or maintain a particular form of social order, such as one of individual liberty and freedoms creates issues requiring constant adjustments of relationships and resolutions of conflicts. At optimum the result is cooperation and reciprocity, but the results are usually only degrees of the optimum.

      “Convincing” others requires overcoming something in their predilections. There is probably no single way to deal effectively with all of the predilections that lead individuals to avoid recognition, acknowledgment, acceptance and performance of obligations. If there were, on that rock we might build a church.

  4. R Richard Schweitzer says

    Perhaps another way of grasping this nettle of crucial needs of a social order conflicting with individual liberty and freedoms:

    There must be a determination of “exceptions” of circumstances, conditions or relationships, before Rules of Policy, which result in adverse impacts on individual liberty and freedoms, can be made applicable.

    Thus, traffic rules which might be deemed to impact some concepts of absolute freedom, may be given valid application, not because they are “generally applicable,” but because the circumstances or conditions (safety and common usage) create an exception for their application.

    The circumstances for the defense of conditions that make individual liberty sustainable can create an exception for the application of a Rule of Policy that results in the “involuntary servitude” of universal conscription.

    Amongst the errors in the 35 page dissent of Justice Ginsburg, is the concept that Rules of Policy (“laws”) of “general application” should be uniformly applied, without exceptions (of course, she ignored the “exceptions” established by Executive fiat). “Laws of general application” (Rules of Policy) should not be applicable to the extent they may adversely impact individual liberty and freedoms *unless* specific circumstances (which may include preservation of the social order), conditions, and relationships exist as the basis for exemptions from those possible results of such application.

    • gabe says

      So you have learned the same life lesson as have I:

      That the world more closely reflects Burke rather than Paine!

  5. Ralph Hancock says

    Excellent, Steve — as usual you go to the heart of the matter. I agree with you that the “exemption” strategy has its present uses, but is inherently fragile. Further: I sympathize with the federalism strategy — but that really won’t stand up against the twin forces of cultural disintegration and expansion in the scope of government. There’s really not alternative to addressing those two fundamentals. Doesn’t sound hopeful, does it?

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