First Amendment: Religion Book Review 127 Harv. L. Rev. 1395

The Case for Religious Exemptions — Whether Religion Is Special or Not

An exploration and defense of religious accommodation


WHY TOLERATE RELIGION? By Brian Leiter. Princeton, N.J.: Princeton University Press. 2013. Pp. xv, 187. $24.95.

DEFENDING AMERICAN RELIGIOUS NEUTRALITY. By Andrew Koppelman. Cambridge, Mass.: Harvard University Press. 2013. Pp. 243. $55.00.

The United States is a place of enormous religious diversity. How should a liberal and tolerant society respond to such religious diversity, particularly when this diversity means that society will include some people who are unable to comply with certain laws for religious reasons? That question is at the heart of two new books on religious liberty.

For centuries — indeed, even a full century before the adoption of the First Amendment — part of the American response to the nation’s religious diversity has been to grant exemptions from some laws that would force a religious believer to violate her faith. The exemptions approach takes religious diversity seriously by recognizing that people of different faiths have differ-ent rules for what they can and cannot do — for example, religious Quakers cannot fight in the military and religious Muslims cannot transport alcohol. Exemptions reflect the notion that our society is better and richer for this diversity, and that the law should not force people to violate their deeply held beliefs without a very good reason. The opposite path — allowing a variety of religious beliefs, but denying believers the room to act as if those beliefs are actually true — would be a hollow type of religious toleration, and it is a path that American law has largely rejected.

Yet for as long as the Supreme Court has been deciding religious liberty cases, Justices and commentators have been suggesting that religious exemptions also create something of an anomaly: a religious individual’s right to violate a law that others must obey. If this centuries-old practice is an anomaly — and there are good reasons to say it is not — it is a very persistent one, and one of increasing importance as the growth of the modern regulatory state creates ever more op-portunities for friction between legal and religious obligations. In the ongoing controversy over the federal requirement that all new health insurance plans include coverage for contraception, for example, the Obama Administration has granted religious exemptions to protect some religious objectors from having to violate their religion by being forced to “contract, arrange, pay, or refer for” contraceptives, sterilizations, and drugs and devices that can destroy a newly formed embryo. This exemption allows some religious objectors to engage in a behavior — failure to provide insurance coverage for the relevant services — for which other employers will face enormous fines. And where that exemption has been challenged as too narrow — chiefly by religious business owners who claim that their religions forbid them from directing their companies to purchase such products — most courts have sided with the religious business owners.

Two recent books address the practice of granting religious exemptions in very different ways. Professor Brian Leiter’s Why Tolerate Religion? asks whether there is any “moral reason to single out matters of religious conscience for special legal consideration and solicitude” (p. ix). Leiter argues that while there are compelling reasons to protect liberty of conscience generally (pp. 15–17), he sees no valid reason to give claims of religious conscience any greater protection than exemption claims based on deeply held secular belief (pp. 63–64). And because Leiter views the allowance of secular conscience exemptions as unworkable and a threat to the general welfare (pp. 97–100), he favors eliminating all religious exemptions except those that impose no burdens at all on society or on other individuals (pp. 100–01).

Professor Andrew Koppelman’s Defending American Religious Neutrality considers religious exemptions as part of a broader analysis of American religious liberty law. Koppelman aims to defend the First Amendment’s balancing of free exercise and establishment concerns against criticisms from two sides: “radical secularists,” who think the law is too generous to religion, and “religious traditionalists,” who think the law is too hostile to religion (p. 1). Koppelman argues that the religious neutrality each side criticizes is actually both “coherent and attractive” and has made the nation “unusually successful in dealing with religious diversity,” even as compared with other liberal democracies (p. 1). The key, according to Koppelman, is understanding the ideal of religious neutrality at the proper level of generality — which has shifted as the nation has grown more religiously diverse, and as the common ground between different religions has narrowed (p. 2).

Within this larger discussion of American religious liberty law, Koppelman argues that the practice of granting religious exemptions is part of the First Amendment’s approach to religion as a “distinctive human good” (p. 11). Unlike Leiter, Koppelman finds valid reasons for the government to single out religion for special treatment (p. 11). In fact, Koppelman argues that the only real controversy over religious exemptions concerns who should grant them (legislatures or judges) rather than whether they should exist (p. 11).

Both Why Tolerate Religion? and Defending American Religious Neutrality offer valuable insights for scholars seeking to understand, challenge, or defend the American system of religious exemptions. At one level, the two books demonstrate the unsurprising fact that one’s appraisal of the value of religion — Leiter’s is fairly negative, Koppelman’s is more positive — will influence one’s opinion of religious exemptions. But the broader lesson of the two books is this: regardless of the value one places on religion itself, there are strong reasons for a liberal and tolerant society to provide religious exemptions to many laws, at least as part of a broader system that generally protects citizens from being forced by the government to violate their most deeply held beliefs. This is because the moral arguments laid out by both authors for generally protecting conscience are far stronger than the mostly practical arguments Leiter offers for eliminating all exemptions.