At times, religious-liberty questions that come before courts involve claims of discrimination, but other cases involve believers’ desire for exemptions from generally applicable laws. Perry Dane explores the philosophic underpinnings behind such exemptions:
Historically . . . exemption claims have been controversial across the ideological spectrum. The fact is that such claims, in their paradigmatic form, are, as Justice Antonin Scalia argued in 1990, constitutionally anomalous. They simply do not have the look and feel of other constitutional or even other legal rights. . . . [I]t is easy to see why the Supreme Court in 1879 would have declared that religion-based exemptions threaten “in effect to permit every citizen to become a law unto himself.” That objection is still the most powerful argument against the very idea of exemptions.
This radical . . . objection requires a radical solution. To begin with, we need to understand religion as a sovereign realm distinct from the state, its government, and its claims. In James Madison’s words, “Before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the Universe.” When a religious person claims an exemption from the law of the state, he is not arguing that he is a law unto himself, but rather that he is subject to another sovereign. This idea is consistent with a larger commitment to legal pluralism, a jurisprudential position that denies that law is a phenomenon limited to the state.
The U.S., Dane notes, currently is witnessing a number of struggles over freedom of religion, exacerbated by their entanglement with the culture wars. He believes the result to be a “crisis” that can be solved as much by better understanding as by good jurisprudence:
The current crisis has seen way too little understanding and empathy in some of the pushback to recent religious-liberty claims. For example, some reactions to claims seeking exemption from contraceptive coverage mandates have been stubbornly oblivious to basic religious complexities: the religious life is not limited to what goes on in churches or even in religious institutions. It can also be manifest in commerce and mundane employer-employee relations. Religion can, and in some traditions must, involve itself in every department of life. To demand the privatization of religion, as some have for centuries, should be a non-starter.
Yet the failure of genuine encounter has come from the religious side of the encounter too. In the current political atmosphere, religious convictions have too often become subsumed into tribal allegiances and political identities.
Read more on Marginalia: https://marginalia.lareviewofbooks.org/when-secular-laws-and-religious-convictions-collide/