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]