Not Established

I wrote in my last post about a brief recently submitted to the U.S. Supreme Court arguing that an act of Congress which exempts religious believers from the application of any law that interferes with their religious beliefs and practices unless the law is the least restrictive means to realize a compelling government objective is unconstitutional. In that post I criticized the brief’s claim that this statute, the Religious Freedom Restoration Act (RFRA), usurped the judiciary’s prerogative to define the scope of individual rights. In this one, I will address what I think is the most serious of its claims: that the RFRA’s wholesale religious exemption unduly favours religious belief (and thus amounts, in U.S. constitutional terms, to an “establishment” of religion prohibited by the First Amendment).

The brief argues that while it is permissible for religious individuals or groups to benefit from government assistance that is available on equal terms to non-religious ones, the government cannot favour religious believers exclusively. The RFRA violates this prohibition, because it “carves up every neutral, generally applicable federal law … for the benefit solely of religious actors” (27). The RFRA elevates the believers who benefit from the exemptions it mandates above other citizens: “Imposing this gauntlet on every federal law forces the needs of other believers and nonbelievers to be subservient to the believers invoking RFRA” (29). In cases where the legal requirement which the believers challenge is a financial one, granting them an exemption will amount to a subsidy for (a given form of) religious belief. And because of the RFRA’s breadth, all kinds of religious exemptions will be sought, and obtained, and people whom federal law attempts to protect will suffer as a result. In short, the “RFRA lets religious citizens rewrite any federal law they don’t like, to their benefit,” while others have not only to exert effort and expend money to pass that law, but then also to defend it in court.

The argument that religious exemptions are a form of preference for religious believers which is incompatible with a liberal state’s duty of neutrality is a common and, at first glance, a powerful one. However, it is not persuasive, once the nature and effect of exemptions are understood. Exemptions serve not to confer a special benefit, but to remove a special burden, and thus further  rather than undermine state neutrality.

The reason for religious exemptions is that rules of general application can have a disproportionate impact, impose a heavier burden, on people whose religious beliefs either require them to do something these rules prohibit or prohibit them from doing something the rules require. So, for example, a rule that prohibits schoolchildren from having weapons at school conflicts with the Sikh children’s religious duty to wear a kirpan. A regulation that requires a person obtaining a driving licence to be photographed conflicts with the Hutterites’ belief that they must not have pictures of them taken. Of course, such laws impose duties on all those subject to them, regardless of their religion. But, while for most people, complying with these duties is often little more than an inconvenience (if that, as with the picture requirement for a driver’s licence), for some religious believers the burden imposed by the law is much greater. Such believers are required not merely to do something unpleasant, but to go against their conscience, to breach what they consider to be a duty of the highest importance. The fact that the rule that imposes this obligation on them is not intended to trample on their conscience is scant consolation to them.

For this reason, there is nothing untoward in making exemptions for religious believers and not for all citizens, although in my view some forms of conscientious but not religious belief are entitled to the same consideration. Citizens for whom compliance with a rule is, however unpleasant, not something contrary to their conscience are simply not in the same situation as religious believers and conscientious objectors.

As for the claim that religious exemptions are a form of assistance to the religious, it is not always true. To be sure, an exemption can be designed in a way that goes beyond merely removing the special burden a rule places on some religious believers, and thus becomes a form of support to these believers which is at odds with the requirement of state neutrality, but it need not be. This problem will seldom occur so long as the exemption is tied to the special burden it is intended to remove. Allowing a Sikh child to wear a kirpan to school does not benefit him in any meaningful way. It simply removes a special burden which the rule prohibiting weapons places on him.

This is not to say that religious exemptions should always be granted. Some exemptions would burden other people in ways which are utterly unacceptable. (The traditional example in these debates is a hypothetical exemption from homicide laws to a religion that demands human sacrifice.) But many exemptions will result not in the violation of the rights of an identifiable person (such as the human sacrifice victim) but at most in marginal, and perhaps even insignificant, increases of a burden distributed among a vast number of people. For example, allowing Hutterites to use picture-less drivers licenses might marginally increase the risk of identity theft (as Alberta claimed when it abolished this exemption ― but the additional risk suffered by any one citizen as a result might be vanishingly small (though not small enough, in the view of the Supreme Court of Canada, to require the exemption). In such cases, an exemption does not make “the needs of other believers and nonbelievers to be subservient to” those of the believers asking for an exemption ― it does not meaningfully affect these “needs” at all.

Religious exemptions neither always confer tangible benefits on those to whom they are granted, nor always burden those to whom they are not. Thus, a commitment to avoiding imposing disproportionate burdens on religious believers and conscientious objectors by granting them, where possible, exemptions from laws of general application favours neither the particular religions whose adherents benefit from exemptions over the others nor religion generally. Such a commitment is not free from difficulties, both conceptual and practical, which I discuss at considerable length in a recent article. But it is not an “establishment of religion.”

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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