Barclay on Religious Exemptions and Hate Speech

This past July, the Center co-hosted a conference in Rome, “Liberalism’s Limits: Religious Exemptions and Hate Speech.” The conference, which addressed the challenges that religious exemptions and hate-speech regulations pose for liberalism, was divided into three workshops, for which participants submitted short reflection papers. Professor Stephanie Barclay (Notre Dame) submitted the following paper for Workshop 2, on religious exemptions, which we are delighted to publish here:

One enduring question of liberal democracies is how to reconcile the tension between claims to authority by the rulers and claims to liberty by the governed. [1] Debates about the validity of religious exemptions often play out as a microcosm of this larger discussion. Some, such as the late Justice Antonin Scalia, have argued that a country would be “courting anarchy” if it too generously provided exemptions to legal rules based on religious objections.[2] At the other end of the spectrum, the United States Supreme Court has also recognized that “[t]hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”[3] I have argued elsewhere that a legal regime which never provides religious exemptions is primed to increase human suffering and decrease human dignity by penalizing (or making impossible) actions individuals feel they must (or must not) take to comply with higher divine mandates.[4]

One standard answer to the broader dilemma of reconciling authority and liberty is what some scholars term the consent proposition,[5] also reflected in social contract theory that pervades thinking by luminaries such as Locke, Hobbes, Rousseau, and Rawls. This proposition is embodied in the American Declaration of Independence as a “self-evident truth”—that “Governments . . . deriv[e] their just powers from the consent of the governed.” On this account, consent is often emphasized as the sole source of political legitimacy of a legal regime.  Steven Smith has surveyed problems with the consent proposition as an unpersuasive fiction if we are looking for consent on the level of an autonomous individual born into a legal community.[6] But that might be looking to the wrong unit of the populace (just one lone individual) to give consent. As Richard Ekins has explained in his work on joint action theory, groups can act in purposeful ways where a body like “the people” can consent to certain frameworks—like a constitution—for self-governance. To be a free people, the people in the singular is the ruler and agent, and the people in the plural are the ruled and the principals.[7] And for the consent of the group action to be legitimate, the people must have meaningful opportunities to change the legal rules they’ve put in place in the future.

Assuming consent by the people can resolve the tension between authority and liberty generally, how can religious exemptions be provided in a way that is consistent with this type of self-governance? One obvious answer is the use of legislative religious exemptions. Through this method, the people can act jointly in a deliberative manner to protect space for religious exercise where frequent conflicts (and often high-stakes conflicts) can arise between authority and the liberty of a religious objector. In Early American history, the United States offered exemptions from the draft to Quakers who objected on religious grounds to military service.[8] Religious exemptions can be offered in more mundane contexts, like tax exemptions for churches, when the people may judge that excluding some religious institutions from some obligations provides relevant goods to society in other important ways.

While critically important, legislative religious exemptions present some shortcomings. One is that they are usually more attuned to the needs of majoritarian religious groups (or at least large and well-known religious groups) than minority religious groups. For the conflict between authority and religious liberty to have been significant enough to have garnered legislative attention, it’s reasonable to assume that those sorts of conflicts are most obvious when a significant portion of the population shares the belief that gave rise to that conflict. For example, many prisons recognize religious exemptions for kosher dietary requirements. But few recognize exemptions for a Kemetic diet required by adherents of Shetaut Neter.[9] A second limitation is that some types of religious objections result from unexpected applications of a law. These conflicts are thus unlikely to involve a legislative compromise in advance that includes a religious exemption. Third, many government policies are promulgated by agencies, rather than legislatures. Scholars like Philip Hamburger have noted that these less politically accountable institutions are often less sympathetic to the need to craft religious exemptions that would apply to new policies.[10]

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Call for Papers: Australian Journal of Law & Religion

The Australian Journal of Law and Religion is requesting submissions for its February 2023 Symposium on Theology and Jurisprudence:

  • Paper Proposal: Paper proposals (up to 200 words) and a brief biography must be submitted no later than November 1, 2022
  • Paper Submission: Papers should be completed or at a work-in-progress stage suitable for distribution to other participants by February 1, 2023 and should not be published or currently under consideration elsewhere. Presenters will have twenty minutes to present their paper with time for comments and questions. 
  • Accepted Papers: Authors of accepted papers will have the opportunity to present them at the Symposium. Presented papers may also be considered for publication in a special edition of the Australian Journal of Law and Religion
  • Location: ALS will host the Symposium. Further details and a schedule will be provided.
  • Contact: Please email paper proposals and any questions to Dr. Constance Lee at c.y.lee@cqu.edu

A Writeup on This Month’s Conference in Rome

Here’s a writeup (with photos!) on our conference this month in Rome, co-hosted with LUMSA University, on liberalism, religious exemptions, and hate speech regulations. We’ll post papers from the conference in due course. Meanwhile, thanks to the participants: keynoters Cesare Mirabile and Chantal Delsol, and Professors Stephanie Barclay (Notre Dame); Paolo Cavana (LUMSA); Gayane Davidyan (Lomonosov); Richard Ekins (Oxford); Monica Lugato (LUMSA); Adelaide Madera (Messina); Javier Martínez-Torrón (Complutense); Marco Olivetti (LUMSA); Andrea Pin (Padua); Jeffrey Pojanowski (Notre Dame); Angelo Rinella (LUMSA); Steven Smith (San Diego); and Kevin Walsh (Catholic University of America).

Next Month in Rome: “Liberalism’s Limits”

Next month in Rome, we’ll celebrate 10 years of cooperation with our colleagues at Universita LUMSA with the latest in our conference series on comparative law and religion: “Liberalism’s Limits: Religious Exemption and Hate Speech.” (Hard to believe we’ve been doing this for 10 years)! The conference description is below and details are here: If you’re in Rome, please stop by and say hello!

Liberal democracies historically have prized autonomy and freedom as fundamental political commitments. In doing so, they also have emphasized the individual’s freedom of religion and freedom of speech as sitting at the core of their political systems. Yet in religious exemption — the right of individuals to receive an accommodation from complying with generally applicable law on the basis of religious scruple — and in what some in these polities call “hate speech” – speech conveying deeply insulting, vilifying, discriminatory views against a target group – liberal regimes face serious challenges to their own core principles. This conference will examine the problems posed by these issues for the continuing viability of liberalism in Western democracies.

Movsesian at BYU Next Month

I’m looking forward to participating and catching up with friends next month at the 2022 Religious Freedom Annual Review, sponsored by the international Center for law and religion studies at BYU law. I’ll be speaking about the future of religious exemptions after Fulton. Details are available here: https://religiousfreedom.byu.edu/presenters. CLR friends, stop by and say hello!

Call for Papers: “The Challenges of Law, Religion and State in Health Care and Mental Health”

The Journal of Law, Religion and State invites contributions for its upcoming online workshop, “The Challenges of Law, Religion and State in Health Care and Mental Health.” The workshop will take place on July 26 & 27, 2022, and will focus on examining the different interactions between health-related state law and policy and the regulation of medical treatment and care by religious laws and norms.

Researchers are invited to submit abstracts on topics including, but not limited to, (1) organ transplant; (2) abortion; (3) IVF and other reproductive procedures; (4) end-of-life care; (5) the use of drugs; (6) capacity to consent to treatment; (7) patient rights; and (8) deontology. 

Additionally, the Journal of Law, Religion and State encourages contributions that focus more specifically on mental health. These submissions can deal with questions such as: (1) Can religious clerics provide mental health care? (2) What is the appropriate regulation of such care? (3) Can professionals offer religiously-guided and/or religiously-adapted mental health care? and (4) What is the normative status of mental health definitions and professionally accepted norms and standards of care, which may be disrupted by some religious patients or staff? 

Abstracts submissions (between 250-500 words) are due before April 30, 2022, and should be sent to Amos Israel (aisrael@mail.sapir.ac.il). Acceptance decisions will be relayed to authors no later than May 5, 2022.  

Authors whose proposals are accepted must provide a rough first draft of their paper (8000-10,000 words) no later than July 5, 2022

Papers presented at the workshop will be peer-reviewed, and a selection of those accepted will be published in a special theme-issue of the Journal of Law, Religion and State (planned for December 2022).  

Thanks to the Loyola University Chicago Law Journal

Just a note to thank the organizers of last week’s conference on religious liberty at the Loyola University Chicago Law Journal for hosting me. The event brought together a diverse group of scholars with truly differing points of view–something for which the organizers deserve a lot of praise. I presented a paper on the 50th anniversary this year of Wisconsin v. Yoder and received some very helpful comments. I look forward to seeing my essay in print in a forthcoming symposium edition of the Law Journal, and to reading the other participants’ papers!

Upcoming Symposium on Religious Liberty at Loyola University Chicago

A programming note: I’m looking forward to participating in this upcoming symposium on religious liberty in Chicago later this spring. The editors of the Loyola University Chicago Law Journal have put together a great program and I’m honored to be among the contributors. Details below:

Webinar: “Churches: An Existence of their Own or Creatures of the Sovereign?”

Tomorrow, the James Wilson Institute and First Liberty Institute’s Center for Religion, Culture & Democracy will host a webinar analyzing the practical applications of moral reasoning in our legal system.

The event will be moderated by Hadley Arkes, Founder and Director of the James Wilson Institute and Edward N. Ney Professor of Jurisprudence Emeritus at Amherst College. The event will feature Adam MacLeod, Professor of Law at Faulkner University, Thomas Goode Jones School of Law and Research Fellow at the Center for Religion, Culture & Democracy and Robert Miller, Professor of Law at the University of Iowa, Affiliated Scholar of the James Wilson Institute, and a Fellow and Program Affiliated Scholar at the Classical Liberal Institute at New York University Law School.

The webinar will take place on October 14, 2021, from 2:00-4:00 pm EST. To register visit this link.

Webinar Next Week: Cultural Property in Law and Diplomacy

Next week, along with the Fletcher Initiative on Religion, Law, and Diplomacy at Tufts, the Centre for Religion and Culture at Oxford, and the Armenian Studies Program at Fresno State, the Center will co-sponsor a webinar on cultural property in law and diplomacy. The event will bring together a cross-disciplinary group of scholar-practitioners to discuss the challenges of and opportunities for preserving the rights of access to places of worship for religious groups in cases of contested spaces and in diverse conditions of active and non-active conflict. Speakers will include Narine Ghazaryan (Nottingham), Evanghelos Kyriakides (Kent), Peter Petkoff (Oxford), and Michalyn Steele (BYU). Center Co-Director Mark Movsesian will moderate, along with Sergio La Porta (Cal State-Fresno) and Elizabeth Prodromou (Tufts).

The webinar will take place on Thursday, October 14 at 12 pm EST. Posts from the participants will appear subsequently here on the Forum. Hope you can join us! For further information and a link to join the event, please see below: