Religious Accommodation and its Limits
On what grounds should religious accommodation claims be limited? When do religious claims harm the autonomy of others? This book proposes an original model of religious accommodation which can be applied in secular liberal democracies where religious diversity has been a hotly contested issue. Addressing the complex question of limitations to the right to Freedom of Religion or Belief (FORB) and how these limitations might be determined, it examines how religious claims can harm the autonomy of others and emphasizes the need for an appropriate balancing of competing interests.
The adapted extract below is from Chapter Two of Religious Accommodation and its Limits, which addresses a key issue in the literature on law and religion, namely, the “exemptions debate”. Religious exemptions from generally applicable laws are a hotly contested issue across jurisdictions. On the one hand, religious exemptions are necessary to realizing the right to FORB in practice for religious believers and minorities. On the other hand, religious exemptions are considered to result in unequal and unfair treatment between those who benefit from such exemptions and those who do not. However, religious exemptions are only one form of religious accommodation, and a more nuanced approach is needed going forward. Religious exemptions pose a number of challenges for liberal states and institutions.
This article is part of our “The Religious Freedom Restoration Act at Thirty” series. If you’d like to explore other articles in this series, click here.
The right to FORB in liberal states is often fraught with tensions that require the resolution of conflicting interests. The expanding literature on the relationship between law and religion often frames the accommodation of religion in a way that predominantly focuses on the permissibility of religious exemptions from generally applicable laws.1The ‘exemptions debate’ continues to rage on ever since Brian Barry’s provocative book Culture & Equality made the case for limiting religious and cultural exemptions against the backdrop of anti-multiculturalist policies (B Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge, Polity Press, 2001). There has been an ongoing debate about both the legitimacy and scope of exemptions. A powerful critique of religious exemptions has been made by C Eisgruber and L Sager in their work Religious Freedom and the Constitution (Cambridge, MA, Harvard University Press, 2007). More accommodative accounts were subsequently developed by MC Nussbaum, The New Religious Intolerance (Cambridge, MA, Harvard University Press, 2012); J Maclure and C Taylor, Secularism and Freedom of Conscience (Cambridge, MA, Harvard University Press, 2011); and K Greenawalt, Exemptions (Cambridge, MA, Harvard University Press, 2016). More recent titles on exemptions include John Adenitire’s book A General Right to Conscientious Objection: Beyond Religious Privilege (Cambridge, Cambridge University Press, 2020) in which he comprehensively argues that a general right to conscientious objection is defensible and should apply to both religious and non- religious conscientious beliefs. Exemptions are a specific legal technique that allows individuals or groups not to comply with a specific law or rule, or disapplies it for those individuals/groups. Exemptions can be codified in statute or granted on a case-by-case basis. There are persuasive arguments on both sides of the so-called “exemptions debate”. This is a normative debate that concerns the nature of the distinction between religious and non-religious/secular beliefs. The ‘exemptions debate’ raises important questions for my proposed model of religious accommodation, as detailed in Part II of this book. This chapter has two aims: first, to critically engage with the arguments made by proponents on either side of the debate; and second, to highlight the limits of the ‘exemptions debate’ by showing that legal exemptions are only one form of religious claims made in liberal societies. In particular, I argue that the workability of exemptions is more appropriately understood within a general framework of religious accommodation. Finally, this chapter establishes that religion has a proper place in liberal states and that religious claims can be accommodated, subject to certain limitations. The chapter concludes by arguing that a legal duty or policy approach in favour of religious accommodation is defensible in light of a model that defines the limits of the right to FORB, as set out in Part II. Religion in liberal states belongs in a ‘special cage’. It is the boundary of that cage that needs to be properly defined.
I. Introducing the “Exemptions Debate”
Much of the ‘exemptions debate’ has been premised on the underlying assumption that it is necessary to establish that religion is ‘special’ in order to justify its accommodation. More specifically, the questions at stake are the following: is it justified to set apart religion as a distinct category for protection in law? What types of religious exemptions are there? Should only religious exemptions be permissible or should exemptions be extended to include other categories of secular and comparable beliefs? These questions touch on a set of complex issues for liberal states and the right to FORB. In the absence of a fixed, universal and satisfactory answer or approach to the question of ‘whether religion is special’, this chapter ultimately argues that the analysis should shift to focusing on the manifestations of harmful religious practices.
Much of the ‘exemptions debate’ has been premised on the underlying assumption that it is necessary to establish that religion is ‘special’ in order to justify its accommodation. More specifically, the questions at stake are the following: is it justified to set apart religion as a distinct category for protection in law?
The expansion of laws, case law and public discourse on religious exemptions and conscience claims across jurisdictions are evidence of the importance of this debate. Since the US Supreme Court’s decision in Burwell v Hobby Lobby Stores in 2014, the “exemptions debate” has been violently re-ignited in the context of increasing pluralism and the escalating “culture wars”. Whilst religious exemptions are not a recent phenomenon, Susanna Mancini and Michel Rosenfeld argue that the new generation of conscience claims are ‘interventionist, intrusive, and represent attempts to withdraw from mainstream collective undertakings’. This concern was voiced by Justice Ginsburg in Hobby Lobby: “The Court, I fear, has ventured into a minefield.” She added: “I would confine religious exemptions [under that Act] to organizations formed ‘for a religious purpose,’ ‘engage[d] primarily in carrying out that religious purpose,’ and not ‘engaged … substantially in the exchange of goods or services for money beyond nominal amounts.’’ In other words, Justice Ginsburg adopted a narrow approach to exemptions, limiting the field in which they ought to apply. Key controversial examples of religious exemptions include permission for Jews and Muslims to conduct religious slaughter of animals in the European context and the controversial case of religious male circumcision in Germany, as well as exemptions from wearing a motorcycle helmet for Sikh men. In addition, exemptions for non-religious beliefs include, among others, exemption from military service on conscientious grounds and exemptions for doctors and healthcare professionals to allow them to refuse to perform an abortion. The central importance of one’s conscience was recognised by Lady Hale in the UK case of Doogan v NHS Greater Glasgow & Clyde Health Board: “The exercise of conscience is an internal matter which each person must work out for herself. It is bound to be subjective”. It is no surprise then that the scope of these conscience-based exemptions is subject to complex litigation.
Given the deeply contested nature of religious and non-religious claims for accommodation, a range of views on the question of exemptions, and the “special treatment” they allegedly afford to religion, have emerged in recent years. The importance of religious beliefs has been placed into doubt. The broad contours of the debate can be mapped in the following way: there is a clear division between positions that hold that religious beliefs should be treated with less deference and those that urge that religious beliefs should be afforded more deference. There is another position that occupies some sort of middle ground insofar as it makes a case for religious reasons to be treated with the same deference as secular reasons. Ultimately, these divergent positions on the question of religious exemptions create irreconcilable conflicts and disagreements.
The combination of a number of complex and interrelated arguments against religious exemptions amount to a significant challenge to the legitimacy of granting such exemptions and, by extension, to religious accommodation more generally. These arguments encompass claims that religious exemptions are unnecessary, unfair, and unmanageable. They are considered unnecessary where religious individuals voluntarily choose to manifest their religious beliefs or where there are alternative options available to them.
Religious exemptions are unfair to non-believers or those with similarly “intensely held” beliefs because they unduly privilege religious believers. Some commentators argue that religious beliefs could be characterised as mere habits or preferences. Therefore, treating religious beliefs as unique or special results in unequal outcomes for religious and non-religious individuals. Accordingly, religious exemptions are deemed to breach the rule of law. Finally, religious exemptions are difficult to manage in practice due to institutional and resource constraints. This argument has found favour in some of the case law. In the ECHR case Francesco Sessa v Italy, the government argued that non-accommodation of a request made to reschedule court hearings in order to avoid a conflict with a religious holiday was justified. It was argued that, by refusing accommodation, the authorities “had simply sought to ensure that the applicant did not hamper the smooth operation of essential State services in exercising his right to request that the hearing be adjourned” and that “The administration of justice was an essential State service which had to take priority”. In other words, institutions and employers are not bound to accommodate religious practices at any costs and not where legitimate concerns about the effective administration of justice are undermined. In short, the objections against religious exemptions are collectively weighty and worthy of consideration.
In my book, I group the various key claims about whether religious beliefs “deserve special treatment’ into the following three broad categories of arguments: (i) “the preference-choice” argument; (ii) the “intensity-cost” argument; and (iii) the “equality/rule of law” argument. This grouping best captures the very rich range of arguments found in the literature on exemptions. In this extract I focus on the “preference-choice” argument as set out below because it illustrates the importance of the role of individual choice in deciding whether or not to grant an exemption.
II. The ‘Preference-Choice’ Argument
Characterising religious beliefs as merely another kind of personal preference or choice has been a powerful argumentative strategy against religious exemptions. According to this view, religious beliefs do not constitute a distinctive set of preferences that would justify specific accommodation in law. The core of the preference-choice argument rests on the claim that religious believers have the ability or the option to choose their beliefs. Alternatively, it is maintained that even if religious beliefs or conscience claims are the kinds of beliefs that some individuals consider themselves to be morally bound by, acting upon these beliefs in practice is ultimately a choice. It follows that the manifestation of a particular belief in a particular context constitutes a choice. Accordingly, actions that are motivated by religious reasons are not in and of themselves unique. This is because individuals typically have different sets of preferences based on various important motivations and reasons. They might or might not be motivated by religion. Religious reasons are only one set of reasons. For example, an individual might wear particular headgear because of a religious belief, whilst another individual might wear headgear because they are simply a “hat lover”. In both cases, the individuals choose to wear a particular type of headgear even if their motivations are different. Religious rules, like other norms, leave room for religious believers to make choices about how and when they should adhere to religious obligations.
“Voluntarist” accounts of religious freedom argue that religious practice is a choice, thus demoting religious choices and preferences by claiming that they are neither distinct nor special as compared to other preferences. In the leading US case of Employment Division v Smith, the respondents were fired by a private drug rehabilitation organisation because they consumed peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. They then applied for employment benefits. However, the relevant law of the State of Oregon disqualified employees who had been discharged for work-related “misconduct”. The consumption of the drug in question had been, however, for religious reasons. The issue that the Supreme Court had to consider was whether the Free Exercise Clause of the First Amendment permitted the State of Oregon to include religiously inspired peyote use within the scope of its general criminal prohibition on use of drugs, and whether it permitted the State to refuse unemployment benefits to persons dismissed from their jobs because of such religiously inspired use. The Supreme Court held that it was lawful for the State to prohibit sacramental peyote use and thus to deny unemployment benefits to employees who had consumed it.The First Amendment did not require an exemption to be granted. Justice Scalia delivered the majority verdict of the Court. The reasoning of the Court ran as follows: “we have never held that an individual’s religious beliefs excuse him from compliance with an other- wise valid law prohibiting conduct that the State is free to regulate”;[ “the only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections”; and “It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” The Court held that the respondents sought “to carry the meaning of ‘prohibiting the free exercise [of religion]’ one large step further”. The retreat of the Supreme Court from an earlier more generous reading of the First Amendment to narrowing the scope of religious exemptions was both significant and marked, as it meant that a religious adherent might not benefit from wide protection.
Brian Barry draws on a sophisticated account of choice in order to develop his thesis against religious exemptions. He uses the specific example of ritual slaughter to illustrate his argument against religious and cultural exemptions. The practice of ritual slaughter is relevant to a sizable number of Jews and Muslims who follow dietary laws that require animals to be slaughtered in accordance with specified religious rites. Ritual slaughter is, however, in conflict with the general laws on animal slaughter in most European states. Barry argues that Jews and Muslims are not required to eat meat, and therefore, eating meat is a preference like any other. He concludes that religious preferences are ‘expensive tastes’ since most laws, inevitably, have the effect of burdening some groups more than others. Barry develops his argument along the following lines:
If we consider virtually any law, we shall find that it is much more burdensome to some people than to others. Speed limits inhibit only those who like to drive fast … Only smokers are stopped by prohibitions on smoking in public spaces … this is not, of course, to deny that the unequal impact of a law may in some cases be an indication of its unfairness. It is simply to say that the charge will have to be substantiated in each case by showing exactly how the law is unfair. It is never enough to show no more than that it has a different impact on different people.
There need to be additional reasons, then, for supporting religious exemptions. Thus, since religious adherents choose to practise their religion, it follows that they choose to place themselves in situations of conflict, and therefore, any burden of the religious practice should be borne by the individual rather than the general public. In other words, the public should not bear the cost of another’s religious beliefs and preferences. Barry’s argument against religious exemptions is powerful and is part and parcel of a more general critique of multiculturalist policies.
However, the choice to eat ritually slaughtered meat is not all-or-nothing. First and foremost, there are various methods of animal slaughter; moreover, the methods of stunning animals prior to slaughter also differ. For example, common methods of stunning either involve the use of captive bolt, electrical shock, water-bathing or the administration of certain gases.Though there is reasonable disagreement about the best method of stunning animals prior to slaughter, some religious communities do in fact permit some forms of stunning. Since there are a range of methods used to stun and slaughter animals, ritual slaughter also includes a range of methods. This means that the different methods of religious slaughter are not necessarily an ‘expensive taste’ as compared to other methods of animal slaughter. There exists a spectrum of views on the ethics of various methods of animal slaughter, which makes ritual slaughter a complex issue and not ‘an all or nothing’ choice. Therefore, the choice is not between choosing to eat meat or not, the choice concerns a more complex debate about the correct balancing of ethical considerations including animal welfare, hygiene standards within the meat industry, and the right to FORB. As I have argued elsewhere:
While it might be the case that, at one level, Jews and Muslims do make the choice to (a) eat meat and (b) eat religiously slaughtered meat, for many religious adherents meat is a necessary part of their diet. Once the choice/need to eat meat is established, many Jews and Muslims consider themselves bound by their legal religious obligations. In this way, choices pertaining to food are not merely part of a particular lifestyle but form a central aspect of a thicker conception of the good in the Rawlsian sense.
The preference-choice argument is limited in the following ways: first, even if religious believers are free to choose to practise their beliefs and therefore are fully autonomous, the case for religious accommodation is not necessarily undermined. For example, if a religious believer is free to choose whether or not to eat ritually slaughtered meat or wear an Islamic headscarf, the choice to follow that practice might still be worthy of protection, just as a range of other preferences and choices are protected as part of individual autonomy and/or the right to FORB.
Secondly, the importance of the embodiment of religious beliefs highlights the complexity of the right to FORB, as Cécile Laborde and others have argued, who point out that religion relates to a range of human goods and values that are necessary to lead a fulfilling life. Laborde suggests moving beyond the reference to “the good” or “religion” and instead refers to the various dimensions of religion. To put it another way, precisely because religion refers to a range of goods and has a number of dimensions, its complexity is not fully understood by asking ‘whether religion is special” or a “choice.” For example, religion can relate to a set of beliefs, rituals or ceremonies that can cover everything from birth and marriage to diet and death. Religion clearly encompasses a range of human goods relevant in different contexts. More specifically, the preference-choice argument does not provide an adequate account of the role of choice in the context of religious freedom – a strict “outsiders”or external viewpoint does not appreciate that the role of choice in religious life is multifaceted and can depend on the “internal” viewpoint of the religious adherent or community. Yet, it is also arguable that even if religious belief is a choice, religious practice falls within an “exceptional category of behavioural choice.” In other words, religious practice constitutes a special choice/set of preferences. In sum, “choice” in the context of the right to FORB turns out to be complex, contested, and not an appropriate method for deciding limitations, as will be argued in chapter three [of the book].
Farrah Raza is a Stipendiary Lecturer in Public Law at Pembroke College, University of Oxford. She was awarded the Minerva Fast Track Fellowship in January 2020 and leads the Minerva Research Group at the Max Planck Institute for Social Anthropology, Department of Law and Anthropology, in Halle (Saale), Germany.
Raza, Farrah. “Religious Accommodation and its Limits.” Canopy Forum, November 28, 2023. https://canopyforum.org/2023/11/28/religious-accommodation-and-its-limits/.