Moral and religious convictions as categories for special treatment: the exemption strategy.

• Author: Greenawalt, Kent
• Position: The Relationship of Law and Morality in Respect to Constitutional Law

INTRODUCTION

My topic differs from the usual inquiries about morality and law, such as how far law should embody morality, whether legal interpretation (always or sometimes) includes moral judgment, and whether an immoral law really counts as law. Concentrating on exemptions from ordinary legal requirements, I am interested in instances when the law might make especially relevant the moral judgments of individual actors. I am particularly interested in whether the law should ever treat moral judgments based on religious conviction differently from moral judgments that lack such a basis.

A striking example for both questions is conscientious objection to military service. In the history of our country, objectors to military service have received exemptions from conscription; even in our present volunteer army, those who develop a conscientious objection to participation in any war are relieved from military duty they would otherwise have to perform as a consequence of their initial commitment to service. (1) The law as it is now written requires that an objection be based on "religious training and belief." (2) The Supreme Court has interpreted the law to include all genuine conscientious objectors. (3)

Before we tackle the difficult questions, I need to essay various distinctions and clarifications. In its broadest sense, morality may include all actions that are obligatory or, on balance, desirable. I mean to invoke a narrower sense that includes responsibilities to other people and to nonhuman animals, and responsibilities to conduct oneself with a kind of dignity. According to this crude division, morality does not include a sense of obligation to worship God or to obey dietary laws established by religious texts; it does include a responsibility to tell the truth, to avoid needless cruelty to animals, and to avoid self-destructive acts. This division is far from perfect. One might find responsibilities to others in acts that I am treating as other than moral. For example, a person's worship of God might be thought directly to enhance the welfare of her community or to help make her a more moral individual. And treating a failure to observe dietary laws (which I place outside the realm of morality) differently from extreme substance abuse may seem arbitrary. If one takes the dietary laws seriously, one might think God will somehow punish infractions, so violations could harm oneself as much as does serious drug abuse. A scholar might undertake a careful study of actual usage and then attempt to shape the term "morality" in a way that would be more coherent philosophically. I am settling for something much less ambitious that nevertheless allows us to recognize the following points.

First, as in the conscientious objector illustration, people may develop otherwise similar moral convictions with or without relying on religious sources, as those are ordinarily conceived. One pacifist may rely on a biblical passage about turning the other cheek, (4) another may develop his view based on a historical conclusion about the inevitable loss of innocent life in war. The connection between a person's religious affiliation or belief and his conviction about what he should be may be direct or somehow attenuated.

Second, whether a person's sense that he should (or may) do something is or is not based on religion, he may have a wide range of different attitudes about the matter--he may think he is obligated to do it, that doing it would be morally preferable but not obligatory, that doing it is morally permitted, and so on. (5)

Third, because not all perceived religious obligations fit within the category of perceived moral obligations, some demands or requests for privileging religious behavior will not involve claims of moral obligation and will not have any parallel in nonreligious moral convictions. A recent potential illustration has emerged in New York City. According to the practice of some ultra-Orthodox Jewish groups, a mohel sucks the blood from the cut of a circumcised infant. (6) On a few occasions, this practice has infected infants with herpes, and one infant died as a consequence. (7) Thus far, the health commissioner has issued an open letter indicating the danger of the procedures. (8) Some individuals want the practice to be forbidden. (9) The religious claim not to have the practice forbidden does not involve morality in my narrower sense. And, while we could fantasize about someone who believed on nonreligious health grounds that such a procedure would be morally desirable, in reality no such claim is conceivable. For cases such as this, there is no nonreligious moral parallel to the religious claim.

How do personal preferences fit my categorization of morality? If we take preferences broadly to include all the things a person prefers, that would include preferences for the welfare of others that might encompass moral duties. I prefer to be allowed to assist my children; I believe I have a moral duty to assist them. While I talk about personal preferences in this Essay, I am excluding preferences that involve moral duty in this way. Preferences can be relevant to moral evaluation, nevertheless, in at least two ways. If I have an extremely strong self-interested reason to do something, I may believe others have a moral responsibility to let me do it. I may think, that is, that I have a moral right to do it. Further, I may think that what would otherwise be a moral duty on my part can be overridden by some very powerful matter of self-interest; I may break a promise to meet a friend for lunch if the opportunity to win $100,000 presents itself. One of the questions that will engage us is whether strong preferences should sometimes be included with moral reasons as a basis for special treatment. I shall focus on one way in which moral judgments, or religious affiliations or convictions, may be afforded a special status under the law: exemptions from requirements that apply to other citizens.

1. THE EXEMPTION STRATEGY: A MATTER OF JUSTICE?

   Let us suppose that the government has some good reason to compel or forbid behavior, such as requiring people to serve on juries. Some citizens believe that participating in this way involves immoral cooperation with the coercive apparatus of legal enforcement. What should the legislature do?

   It has three options. One is to adopt the regulation without any exceptions. Another is to decide against requiring anyone to serve on juries. The third option is the exemption strategy. People, in general, are required to serve, but an exception is made for a limited class of persons. If the legislature pursues the exemption strategy, it must define the category of those who will receive the exemption.

   An exemption might be cast in terms of an activity, a belief, a status, or some combination of these. Thus, an exemption from combatant military service granted to all those who are conscientiously opposed to such service is phrased in terms of belief. (10) An exemption from a prohibition on the use of peyote given to members of religious congregations who standardly use peyote in worship services, is formulated in terms of activity (use in services) and status (membership in a group of this kind). (11)

   Any intuition we may have that the state should sometimes make concessions to strong moral and religious claims needs to be tested against arguments that exemptions are misguided, or at most are a subject of legislative grace. This exercise can help us to identify appropriate grounds for exemptions.

   It helps initially to draw two distinctions. The first is emphasized by Jeremy Waldron. (12) The instances for which an exemption is sought may or may not present the danger that underlies the regulation. (13) The extremely small amount of wine consumed during communion presents no danger of intoxication, the reason for forbidding consumption of alcohol. (14) By contrast, if the reason to prohibit peyote is to prevent hallucinatory effects, that reason does cover religious ceremonies during which these effects are understood to have deep religious significance. A claim for an exemption is strengthened if the instances to be exempted do not involve the harm that underlies a regulation.

   Drawing from a different dichotomy proposed by Christopher Eisgruber and Lawrence Sager, we can distinguish between claims that a belief or activity should be specially privileged and claims that a belief or activity should be protected against unfair treatment. (15) The idea underlying privilege is that religion or conscience deserves special consideration, because it is particularly valuable or important, or because many people care intensely about it.

   One argument based on privilege is that the state should aim to preserve a way of life that is intimately connected to the practice for which an exemption is sought. Reserving other claims of privilege for later consideration, we may dispose of the preservation argument, as far as religion is concerned. A liberal state cannot have the aim to preserve a religion, in the sense that some multiculturalists believe the state should try to preserve minority cultures. (16)

   A liberal state should be neutral among religious perspectives, not aiming to get citizens to adopt one particular religion or another. Barring past or present oppression by the government or other members of a society, the government should not try to preserve a religion that might otherwise disappear; doing so would be aiming to get some citizens to continue to adhere to that religion. It is true that in Wisconsin v. Yoder, the Supreme Court was apparently influenced by expert testimony that, were Amish children required to attend school until they were sixteen, this could threaten the existence of the Amish community. (17) But, insofar as a group's survival is relevant, it matters because it shows the group's intense concern about the practice it wants to maintain, and bears on...