Introduction
A central element of religious freedom is the government’s duty to accommodate generally applicable legal norms to the needs of religious believers. Assuming such a duty exists,Footnote 1 is there any normative significance in the relationship between a given believer’s religious conviction and the common understanding or practice of it in their affiliated religion? Normatively speaking, does it matter if their individual religious claim is inconsistent with their affiliated religious doctrine? For instance, if a prisoner demands accommodation of their diet on the grounds of a religious belief, should we be concerned with whether the religion they are affiliated with actually requires them to observe such dietary rules?
American legal tradition answers this question with a determined “No.”Footnote 2 The ‘hands off religion’ doctrine holds that courts are forbidden from inquiring what the ‘true’ religious doctrine is and should evaluate religious accommodation claims regardless of their social or religious acceptance.
In this paper, I argue that this doctrine requires substantial rectification. I show that it derives from the common explanation of religious freedom as a protection of conscience, which is an individualistic and subjective notion. However, the idea of freedom of conscience itself, and the view of it as the justification for religious accommodation, are problematic—both conceptually and practically. On this premise, I demonstrate the need for an objective external parameter by which conscientious claims could be evaluated.
In the context of religious accommodation, such a parameter is available. Religious conscience is usually produced and practiced in a communal setting. The phenomenon of communal conscientious behavior has epistemic and normative significance. Viewing religious conscience as a communal conscience provides legal tools for the process of evaluating religious accommodation claims that overcome (or mitigate) the challenges that the concept of freedom of conscience encounters. Simultaneously, however, focusing on this communal view should set the borders of religious-accommodation law. Accordingly, the relationship between the individual’s religious claim and the practice of their religious community is a relevant fact for the legal system’s response to that claim. Therefore, the hands-off doctrine, as some scholars suggest, should be revisited.
My argument is not essentialist; it does not categorically distinguish the religious from other contexts. First, I do not claim that religious activity is the only conscientious behavior that has a strong communal aspect. Second, my argument does not categorically give preference to communal conscientious settings over individualistic ones. I do not maintain that individualistic conscience should not be protected, nor that it deserves, by definition, less protection than communal conscience. My account is modest, as it comes down to the following: (a) there is a special communal aspect to religious activity that has epistemic and normative significance; and (b) the classic understanding of freedom of conscience faces difficulties that can be solved, or at least mitigated, if we focus on the communal aspect.Footnote 3
That said, even if I am correct in arguing for the need to rectify the existing hands-off doctrine, it is not obvious what the alternative is. We need a clear understanding of what it means, exactly, to ‘focus on the communal aspect’ of religious conscience: a nuanced doctrine is called-for. This should be done carefully, since appealing to communal practice can dangerously lead to discriminating against dissenters and stagnating religious practice, a danger that should not be underestimated.Footnote 4 While a comprehensive alternative is beyond the scope of this paper, I outline some fundamental issues to take into consideration and potential ingredients of such a doctrine.
In what follows, Section A presents the American ‘hands off religion’ doctrine. Section B sets out the conscience-based rationale for religious accommodation. Section C explores some of the key challenges faced by ‘religious accommodation as conscience protection’ theories. Section D returns to religious accommodation and develops the communal aspect of religious conscience and its epistemic and moral significance. Lastly, Section E discusses some possible elements of an alternative doctrine.Footnote 5
A. ‘Hands Off Religion’
The United States Constitution forbids Congress from making laws “prohibiting the free exercise” of religion.Footnote 6 For many decades, this clause was interpreted as containing an obligation to accommodate laws to the needs of religious people, in support of free exercise. In Employment Division v Smith,Footnote 7 the U.S. Supreme Court controversially narrowed this obligation—a decision that led to continual Federal and State legislative endeavors to reestablish and strengthen it.Footnote 8
Religious-accommodation doctrine contains several components. It requires the court to consider two primary issues: the sincerity of the plaintiff’s religious claim and the ‘substantial burden’ the general norm places on their free exercise.Footnote 9 But one optional component is absent: the ‘truth’ of the religious claim. In other words, does the religious community with which the plaintiff is affiliated—and in whose name they are claiming accommodation—actually hold such a belief or sustain such a practice? ‘Hands off religion’, the official doctrine of American law, frames this question as irrelevant for the decision and maintains that the court is prohibited from inquiring about it.Footnote 10
This position was established in several First Amendment cases.Footnote 11 It is well illustrated in Thomas v Review Board of the Indiana Employment Security Division, in which the petitioner, Eddie Thomas, opted to resign from his job in a weapons factory after interpreting Biblical prophecies condemning the production of weapons.Footnote 12 He argued for state compensation for a justified resignation, which the state of Indiana refused based on the fact that Thomas’ religious conviction was not shared by the church with which he was affiliated. Nor was it shared by several other adherents of the same church who continued to work at the factory. The court rejected the state’s argument, explaining that the free exercise clause was meant to protect the religious principles and practices of orthodox believers and dissenters alike, and that, therefore, the fact that an individual holds uncommon religious beliefs is irrelevant for protecting their free exercise. Furthermore, a judicial inquiry into the congruence between an individual’s religious claim and the official religious doctrine is a violation of the non-establishment clause, for it enhances orthodox religion in comparison to dissenting religious beliefs.Footnote 13 This conclusion is supported by history as well, since those who needed legal protection of their free exercise were usually minority religious groups, not mainstream believers.Footnote 14
Despite its appeal, the doctrine has faced some critiques. The main concern stems from its limitlessness. Many personal preferences can be formulated as ‘religious.’Footnote 15 Hence, if we fail to take into account the social acceptance of a religious claim, we should expect inflation of such claims.Footnote 16 A possible response to this pragmatic concern is to rely on the existing limitations on religious claims: the sincerity and substantial burden tests. These tests are arguably sufficient to block unjust religious claims. However, religious claims can be both sincere and substantially burdened by the government, yet implausibly unlimited in their scope.
Moreover, relying on sincerity and substantial burden raises the concern of a covert consideration of the place of orthodoxy within these tests. A court may suppose that the unorthodoxy of a religious claim is a proper indication of the individual’s sincerity or of the weight of the burden they suffer, although there is not necessarily any connection between the two. Indeed, scholars have described and criticized particular cases in which such a phenomenon arises.Footnote 17 Covert consideration of the official doctrine or its social acceptance is worrisome because it can lead to covert discrimination between religious claims.Footnote 18
B. Religious Accommodation as Protecting Conscience
The hands-off approach derives from the common justification of religious accommodation on the principle of freedom of conscience.Footnote 19 Since conscience is a “pluralistic, neutral and subjective”Footnote 20 notion, the content of one’s conscience is irrelevant to the law’s obligation to protect it. The content of a religious conviction, as well as its social acceptance, should be irrelevant to its respect.
The concept of conscience deserves a comprehensive inquiry, which I do not offer here; rather, I focus on its connection to the hands-off doctrine.Footnote 21 Our conscience can be described as our set of core inner moral beliefs, which constitute our moral integrity and identity. The concept of conscience is independent of any specific moral content. This is manifested in several ways, starting with its pluralistic character. Conscience is what a metaphorical inner voice tells each individual about their moral duties and obligations; hence, our respective consciences and the moral judgments they contain will differ from person to person, and will sometimes be in direct opposition to one another. Second, it is a morally neutral concept: the mere fact that one holds a moral conscientious conviction says nothing about its validity. Certainly, some people hold highly questionable moral positions to be conscientious. Third, conscience is subjective. It refers to what people believe to be morally binding, and not to what really is morally binding. Moreover, when a person claims that their conscience obligates them to do something, they are referring to what they believe to be morally binding to them. They might think that this moral conviction is true and should therefore bind everybody—but, in that case, they are no longer thinking about a conscientious obligation. Rather, they are justifying their conviction substantially, not by its conscientious character.Footnote 22
We usually become aware of our conscience when social or legal circumstances suppress our conscientious convictions. This kind of contradiction urges the idea of freedom of conscience. When our conscience instructs us to act in line with what society and law expect from us, there is no political-philosophical issue at stake. But when our conscience requires us to disobey societal orders or the legal system, then the question of freedom of conscience comes into view. As a political issue, conscience is therefore not only a subjective concept but also an antinomian one.Footnote 23 This feature of conscience was referenced by Martin Luther, who described his position against Catholic institutions as a struggle between positive law and his inner moral dictates: “My conscience is captive to the Word of God.… Here I stand; I cannot do otherwise.”Footnote 24 Luther describes himself as following a divine truth that is counter to a corrupt system. But, from the legal system’s point of view, the conscientious claim undermines legal stability and requires an unequal enforcement of the law.
Luther’s personal motivation to follow his conscience was religious; he saw his conscience as a revelation of the Word of God, which overrides earthly laws. But one does not need religious motivations to follow one’s conscience. Conscience “delimits a sphere of personal morality that is an essential part of our sense of personal identity, understood as our sense of who we are and of what characterizes qualitatively our individuality.”Footnote 25 The motivation to appeal to conscience is described in the literature using several concepts, such as integrity, identity, dignity, and autonomy.Footnote 26 Each of these terms requires close examination but, for the purpose of this paper, I will assume they largely converge in treating our core moral beliefs as a crucial aspect of how we understand ourselves and define who we are.Footnote 27
The fundamental importance of conscience to human beings raises the question of how governments are to accommodate it. The idea of freedom of conscience suggests that the state is required, to some extent, to provide exemptions from generally applicable laws or offer accommodations when they contradict one’s conscience. However, we need to justify why conscience differs from any other personal preference to disobey the law that does not require accommodation. One simple answer is that constitutional protection of a human activity is justified when that activity is essential to liberal values. So, if the values of identity, self-determination, integrity, autonomy, and so on, are essential to liberal values—and it is reasonable to assume that they are—then there is a consideration for the state to accommodate conscience.Footnote 28 The difference between conscientious convictions and other subjective preferences, then, lies in the importance of the former for liberal values.
Religious obligations are, inter alia, a conscientious matter. They derive from a person’s deepest beliefs. In Luther’s words, a religious observer hears the Word of God and is deeply committed to fulfilling it. Their identity, integrity, and autonomy are all at stake. It is therefore compelling to understand religious accommodation as a specific case of accommodating conscience. To protect the religious believer’s autonomy and identity, we should accommodate neutral general norms for them, so that they need not violate their conscientious dictates.Footnote 29
It is evident how this theory of religious accommodation formulates the hands-off doctrine. If it is conscience we are protecting, and if conscience is, indeed, a “pluralistic, neutral and subjective” phenomenon, then it should not matter if the religious claim is supported by a generalized communal practice or not. At most, this support might sometimes have evidential implications (as we will see later); but, as a matter of substance, it is irrelevant. Moreover, if it has any significance at all, it should operate vice-versa: dissenters need stronger protection of their freedom of conscience than do large mainstream religious groups.
C. Challenges to Freedom of (Religious) Conscience
Accommodating conscience is not an easy idea to defend. Nor is the convergence of religious accommodation with it. Both of these ideas have received recent critiques.Footnote 30 In this section, I provide a brief survey of three common challenges to the notion that religious accommodation equates to conscience accommodation. I do not present definite arguments against accommodating conscience or against explaining religious accommodation as a protection of conscience. Rather, my purpose is to demonstrate how these challenges derive from conscience’s neutral and subjective nature. This will lead me to search for objective parameters to evaluate conscience—the focus of the subsequent section.
a. The Uniqueness of Religion
If religious accommodation is a specific case of freedom of conscience, why do we need a special category for it? Why does a general category of the freedom of conscience not suffice? One possible response is that, theoretically speaking, freedom of religion is, indeed, redundant. The only reason we hold it to be a separate category is its historical development and social meaning: the concept of freedom of religion emerged before the general freedom of conscience, due to Europe’s particular history of religious wars.Footnote 31 In addition, the right to religious freedom is worthy of being explicitly mentioned for social reasons, because of religion’s importance to individuals.Footnote 32
This answer would suffice if we indeed treated religious and non-religious conscientious claims alike, but this is rarely the case. In reality, legal accommodation of religious claims is much broader than nonreligious conscience accommodation.Footnote 33 Of course, this does not provide any normative conclusions. It may well be that this unequal treatment is unjust—that our treatment of religion is too permissive or our treatment of nonreligious conscience is too narrow. But, if we try to explain the concept of religious freedom as practiced, conscience alone is not enough.
The uniqueness of religious conscience has attracted vast attention in the literature, which I do not address here.Footnote 34 My point is simply that attempts to distinguish religion from other forms of conscientious behavior will remain problematic as long as we hold to the religion-as-conscience theory, precisely because of the neutral and subjective nature of conscience. Apparently, there is no reason for a core moral conviction with a religious source to be deemed more deserving of protection than the same moral conviction with no attribution to religion.
b. Evaluating the Content of Conscience
Arguably, conscience should be respected, regardless of its content. If this is so, we should treat all conscientious claims equally; but this can lead to “morally repugnant outcomes.”Footnote 35 For example, consider a racist doctor who refuses to treat certain patients due to their race. If their position is conscientious and genuine, a conscientious exemption should be granted. Yet, such a result seems intuitively undesirable.Footnote 36
Certainly, it is possible to impose limitations on a conscientious claim without evaluating its content, due to the existence of conflicting interests and considerations, such as the negative effect of the accommodation on society.Footnote 37 We can limit our racist doctor’s conscience not because of its content but because of the harm that will be caused by respecting it.Footnote 38 The doctor’s conscientious claim might be dismissed because their refusal to treat a patient could put the latter’s life at risk. This kind of consideration is indifferent to the content of the doctor’s conscience. However, I do not think our rejection of the racist doctor’s claim is based on such a limitation. We are not concerned merely with the direct harm their conscience can cause. Suppose, for instance, that the racist doctor (‘A’) suggests hiring another doctor (‘B’), with the same skills, who will treat all patients whom ‘A’ refuses to serve. We likely still think that A’s accommodation request should not be respected. Is that because of indirect damages and harms that this accommodation could cause? Perhaps. But it makes more sense to say that the harm we fear is the acceptance of moral wrongs. The harm that is potentially caused by respecting a racist conscience is the spread of an extremely immoral view. Such a harm principle is sensitive to the content of the conscientious belief.
There is no logical contradiction between a consideration to protect integrity and autonomy (via protecting conscience) and a consideration to limit the spread of extreme and specific moral wrongs. The fact that the latter requires us to investigate the content of conscience does not logically contradict the former. It is possible to rule that conscience should be respected regardless of its content—but to a certain limit.Footnote 39 This position requires another component to be incorporated into the concept of freedom of conscience: toleration.Footnote 40 But, as such, it is exposed to a basic challenge of toleration, which is where to draw the line between tolerable and intolerable moral views. My interest is not in a particular solution but rather in the notion that, by its very definition, toleration is “a normatively dependent concept.… [B]y itself it cannot provide the substantive reasons for objection, acceptance, and rejection. It needs further, independent normative resources in order to have a certain substance, content, and limits.”Footnote 41 And, therefore, as this discussion reveals, so does conscience.
The case of extremely immoral views does not exhaust the problem of evaluating content. There are cases in which the conscientious claim is just bizarre. Consider, to take Giubilini’s example, a doctor who believes that bacteria have moral status and therefore objects to using antibiotics.Footnote 42 Perhaps we intuitively feel that such a conscientious claim should not be accepted. But in what sense is that doctor’s claim any different from that of a doctor who refuses to perform abortions due to their belief in the moral status of a fetus?Footnote 43 An independent value is required to explain the difference.Footnote 44 This is especially problematic in the religious context because of its non-rational—that is, faith-based—foundations and practices. In what sense can we justifiably say that a religious obligation to dress up as a rooster is more bizarre or less reasonable than other commonly accepted religious practices?
c. Evaluating the Depth of Moral Beliefs
We hold many moral views. How should we define which of them are conscientious and therefore deserve protection? In the previous section, I briefly mentioned the values that freedom of conscience protects (mainly personal identity, integrity, and autonomy). Whatever these mean, exactly, the protection of conscience should be tailored specifically to the needs of their protection. If the protected interest is personal integrity or identity, protection of conscience should be limited only to the cases in which forcing one to act against one’s moral view violates one’s integrity or identity. These cases include only moral views that are an essential part of the individual’s self-understanding and self-determination. Only a portion of an individual’s moral beliefs should concern the freedom of conscience.
Such a limitation derives also from another point of view. Legal arrangements, at least to some extent, reflect moral values. Some legal arrangements are often controversial but, nevertheless, the legal system expects all citizens to obey them. We acknowledge the diversity of human perspectives and views but reconcile them with the need to arrange our lives cooperatively, despite social disagreements. We do so by constituting basic democratic procedural and substantial rules while subordinating ourselves to the outcomes these political procedures will arrive at. Taken seriously, this means that every one of us sometimes acts (including the act of refraining) against our moral views. Treating ‘moral views’ as equating to ‘conscience’ will inevitably collapse this political structure because it nullifies the basic commitment to “cooperation despite disagreement.”Footnote 45
How can social institutions distinguish, then, between plain moral views and conscientious ones? In other words, at what point does a moral view become more than simply that, such that violating it will cause a person to betray their integrity? The problem is both substantial and epistemic. Substantially, there is no good way to distinguish. Any moral view can become conscientious. Given the neutral-formal character of conscience, its ‘empty box’ feature can hold any moral view. Epistemically, given its subjective, individualistic character, there seems to be no external judgment that can evaluate the importance of an individual’s personal values to their integrity and identity. Since, as discussed above, a line must be drawn in order to justify conscience accommodation, here we face another challenge to the concept.
Social and legal institutions deal with this problem using evidential proxies, such as the claimer’s consistency. How does their request for accommodation fit into their general lifestyle? Were they devoted to this practice in the past? And so on. Sometimes, the mere fact of requesting (and, if needed, fighting for) an exemption, including the social costs the claimer has to bear in doing so, is a rough proxy of the relative importance of the issue to the claimer.Footnote 46
While such indications may suffice for social treatment of conscience, it is important to note that they might paint an inaccurate picture. In addition, even though evidential factors seem to be neutral to the content of conscience, this is not always the case. Evidential evaluation of conscience claims does not typically involve a strong judgment of their content but it may involve hidden assumptions about ‘reasonable’ conscientious views or how ‘reasonable’ conscientious people would behave. Think again about consistency: implementing such an evidential criterion assumes that coherence is a required condition of holding a moral view for it to be essential to human integrity. However, due to the neutral and subjective character of conscience, imposing this condition is, by itself, tricky to justify. The danger is that we will assume how valuable a moral view for an individual is, according to how ‘reasonable’ people generally treat moral views. And, while understandable, this tendency is subject to problematic biases.
This is especially important in the context of religion. Religious justifications, at least sometimes, are not evaluable in regular moral terms, and this fact renders the evidential process more difficult. Any preference can become religious if I attach the words ‘God said’ to it. If God said we must eat ice cream, this becomes sufficient to constitute a religious claim. Second, it is difficult to differentiate between religious obligations on the grounds of their relative importance to personal integrity. If the Word of God commands us not to murder, and to eat ice cream, how is it possible to distinguish between these acts in the sense of their centrality to one’s set of convictions?
We have seen, then, three challenges to the ‘religious accommodation as conscience accommodation’ idea. These challenges derive from the neutral and subjective character of conscience and the need to limit its protection, and therefore call on us to formulate some kind of external and objective criterion for the evaluation of conscientious claims. Leaving behind the general issue of freedom of conscience, I will argue in the next section that, in the religious context, such a criterion is available and that it is justifiable to rely on it in the evaluation of religious conscience.
D. Religion as a Communal Practice of Conscientious Commitments
Religion is a social phenomenon that is performed collectively and communally. This characteristic of religion and its importance for individuals are widely recognized. John Witte Jr. and others, for instance, remark that “religion is also … a unique form of public and social identity, involving a vast plurality of sanctuaries, schools, charities, missions, and other forms and forums of faith.”Footnote 47 As Ahdar and Leigh argue:
Religion is seldom if ever solely an individual matter.… [T]he vast majority of human beings only find it meaningful to pursue their religious objectives together with other like-minded individuals. There is an ineradicable collective or communal dimension to religion. Organizations or associations are formed to give effect to this communal aspiration. An individual’s religious life is very much tied to and dependent upon the health of the religious community to which that believer belongs.Footnote 48
However, the communal aspect of religion, by itself, provides no reason to distinguish it from other sorts of communal engagement. It is not clear what is ‘unique’ about the religious form of communal membership, in comparison with, for instance, being a Yankees fan. Communal membership might be valuable for individuals, but apparently it does not merit accommodation vis-à-vis legal obligations.Footnote 49
Yet, we should not be so quick to dismiss religion’s communal aspect, which should not be examined by itself but, rather, in relation to its conscientious dimension. To evaluate religious-accommodation claims, we should combine these elements: religion is a communal form of developing and practicing normative commitments. In other words, it is a communal function of conscience. In contrast to the communal value of religion by itself, which is widely recognized, the significance of the communal aspect to religious conscience is usually overlooked.Footnote 50
Before I continue, some qualifications are required. There is no categorical dichotomy between religious and non-religious conscience regarding the place of community. First of all, other conscientious acts can—and do—have communal aspects. Individuals who share conscientious moral views opposed to state policy, for instance, such as pacifism, may associate together and support each other. Moreover, it is arguable that such a communal or relational aspect is inherent to any kind of conscientious struggle.Footnote 51 Second, religions are not merely communal; they also embrace personal spiritual pursuits. The interrelations between communal and individualistic aspects of religious activity differ between religions and different historical periods, and are often in tension.Footnote 52 Religious experiences can definitely be totally individualistic, and that is especially true during the formative periods of new religions. As we saw above, one of the paradigmatic examples of an individualistic conscience claim is Luther’s dissent from the Catholic church. Therefore, it is inaccurate to speak of religion as a unique context of communal consciousness; rather, it is a matter of degree. Usually, however, religious activity does involve a central communal aspect.Footnote 53
In addition, I do not argue that, when a conscious dictate is developed and practiced in a communal setting, it is not attributed to the individual. I continue to attribute the personal conscience to the individual holding it. I also do not sustain that, categorically, communal conscience is more worthy of protection than non-communal conscience. Rather, the communal aspect of conscience enriches its importance for the individual; and, if we focus on protecting this enriched aspect, we can mitigate many of the problems protecting individualistic conscience confronts.
In what follows, I discuss the significance of the communal setting to the protection of individual conscience. At first sight, attributing such significance contrasts with the neutral and subjective feature of conscience, which I discussed earlier. Moreover, granting special weight to a communal practice of conscience might discriminate between conscientious claims. I will respond to these concerns by exploring three contexts in which this significance is highlighted. The first is the epistemic context. As noted, accommodating conscience raises epistemic problems that, sometimes, the communal aspect can mitigate. Recognizing an epistemic value of the communal setting does not mean, however, that there is a substantial significance to community. I argue that two aspects of the communal setting constitute such significance: the first is that communal conscience constitutes moral obligations toward others, and the second derives from its importance to one’s culture.
a. The Epistemic Role of Community
Accommodating conscience confronts evidential challenges. As we saw above, we should accommodate only core moral beliefs that are sincerely held, but how can we measure moral importance and ensure sincerity? The conscientious claimer’s membership in a community that shares the moral values the individual is arguing for gives us a good reason to believe the sincerity of the claim. It also provides a practical yardstick with which to evaluate the importance of the claim—by comparing it to its common value for other group members. This point was raised by Joseph Raz, who observed:
The right of conscientious objection, when recognized, was traditionally associated with religious objection to military service.… Membership in a socially recognized community served as a test of sincerity. People enjoyed the right only if they shared the style of life of a known social group.… Any genuinely individualistic conception of the right to conscientious objection encounters difficulties of establishing the genuineness of the objection which the traditionally communitarian approach to the right escaped.Footnote 54
Inferring sincerity from communal membership is not limited to the available comparison with other members. In many cases, the membership imposes serious costs on the participant. In so far as religions are a comprehensive way of life, devout membership requires innumerable changes to one’s lifestyle and perhaps even personal sacrifices. If we are concerned about people making claims for conscience accommodation to avoid general legal obligations, the price an individual has to pay for religious membership reduces this concern dramatically. As Raz points out (in his context), “[i]t was unlikely that people would change their whole way of life just in order to avoid service.”Footnote 55
The price one pays when deciding to join or stay in a religious community is not limited to matters of lifestyle. It bears a broader social cost. Entering religious communities (especially conservative ones) is often an act of demarcation from the liberal permissive society at large.Footnote 56 To different extents, participation in a religious community separates one from the general social culture, in practices, ideals, values, and interests. In a different context, Jeff Spinner-Halev has accurately illustrated these social costs and argued for their significance in framing religious people’s autonomy.Footnote 57 Accounting for these costs when evaluating sincerity is a crucial step. The communal setting of conscience can also assist in evaluating the importance or ‘depth’ of the issue at stake. Observing how the community treats the practice in question may help us evaluate its importance to the individual member. If the practice is central, in the community’s eyes, it is probably also highly valuable for the member.Footnote 58
It should be acknowledged that this external anchor does not solve the concerns discussed above regarding the use of evidential mechanisms. The appeal to communal practice allegedly discriminates against the dissenter or the unusual believer—the one who thinks that a peripheral religious custom is a main principle of faith and requires zealous observation—not to mention the alleged discrimination against non-religious conscientious claims.Footnote 59 Furthermore, some of the biases that derive from the use of evidential proxies, such as the consistency condition, take a new shape in the appeal to community but do not essentially change. If the use of a consistency condition imposes assumptions vis-à-vis the reasonable believer, here we impose a community-compliance condition on religious claimers, which might be equivalently problematic.
To respond to these caveats, first, the use of evidential tools to assess conscience is inevitable, despite its problems. Appealing to communal conscience does not aim to (and actually cannot) nullify these challenges. However, it does mitigate them by lessening the interest in the content of conscience. Second, the discrimination concern is, I believe, not a convincing one. Treating the community as an evidential proxy does not truly discriminate against dissenters or against non-religious claims. Indeed, those who truly belong to a normative community have gained by that an evidential advantage: it is easier for them to convince the state of the sincerity and seriousness of their conscientious claims. That is not to suggest that individualistic conscientious claims or dissenting claims will not succeed, providing they display sufficient evidential basis for accommodation; it merely suggests that, all things being equal, communal-based claims have an evidential advantage over others.Footnote 60 Third, my current standpoint is that, substantially, there is no difference between individualistic and communal functions of conscience. Indeed, under this assumption, the epistemic usage of communal conscience has disadvantages as well. However, I will argue that the communal functioning of conscience also bears substantial values. And, if this argument succeeds, it is important to notice that the existence of these values can be proved by evidence external to the content of conscience.Footnote 61
To conclude this point, I contend that conscientious claims that have a communal aspect hold epistemic advantages in terms of their sincerity and centrality. The advantage of using communal practice as a guideline lies not only in the addition of new indications but also in their neutral-to-content feature. This neutrality is not complete but it lessens the tension inherent in evaluating conscience.
b. Community and Moral Obligation to Others
Let me start with Walzer’s account of the moral obligation to perform conscientious objection.Footnote 62 It is important to point out that Walzer’s position does not provide straightforward support for my argument, since he argues that all conscientious objections are communal (in the relevant sense). Nevertheless, he illuminates the first example of the moral significance of communal conscience that I argue for: the collegial obligation of the member to their fellow community members.
Walzer holds that a person’s obligation to a moral-conscientious ideal is usually embedded within an obligation to other people who share this same ideal and who rely on the individual’s observance of it: obligation “begins with membership.”Footnote 63 Indeed, it relies heavily on voluntary membership; thus, the obligation is stronger in the context of small and unorthodox groups than in “established churches.”Footnote 64 A duty to disobey is constructed when the obligations felt among the minority group come into conflict with obligations incurred in a larger group—usually, the state—and override them.
Walzer provides a typology of social groups that conflict with state authority and concludes that the most typical one is that which calls for partial supremacy over the state: the group does not deny the state’s general authority but argues that, in a specific area or context, or regarding specific people, its own moral claims are superior to those of the state. Therefore, members of this group are “partial members” of society at large.Footnote 65 Members of groups with partial claims to primacy over the state create mutual obligations to each other. They have a prima facie obligation:
[T]o honor the engagements they have explicitly made, to defend the groups and uphold the ideals to which they have committed themselves, even against the state, so long as their disobedience of laws or legally authorized commands does not threaten the very existence of the larger society or endanger the lives of its citizens.Footnote 66
The focus on the sociology of disobedience is of great importance. For if we contribute a moral obligation to uphold shared ideals within social groups, then it is plausible to argue that the state should consider this kind of obligation within the process of recognition and evaluation of conscientious claims. However, the authority’s duty to consider such social obligations does not derive automatically from their mere existence. We need to justify why they are worthy of protection, or, in other words, what liberal values are infringed if we do not consider them. Yet, this does not seem difficult to fulfill. These obligations themselves constitute a new dimension to the original conscientious claim, thus their coerced breaching involves the violation of (yet another dimension of) personal dignity and integrity. A Muslim policeman’s refusal to shave off his beard, for instance, does not only rely on his deep commitment to a religious conviction obligating him to wear a beard; it also relies on his deep commitment to his family, friends, specific community, and the Muslim community worldwide. All of these factors, together, constitute his commitment to the specific objection to removing his beard, and its coerced violation hurts his integrity across all these dimensions.
Certainly, this does not suggest an a priori advantage to religious communities. Walzer assumes that all real-world conscientious objections are community-obligated. In fact, he lessens the weight of religious membership (as opposed to other forms of membership) in constituting collegial obligations. He treats membership in established churches, at least to some extent, as involuntary and, therefore, as holding less obligation-constitutive power.
I do not wish to assess Walzer’s general view of all conscientious objections as communal. It is clear, however, that the weight of communal obligation is a matter of degree, and it varies in different circumstances depending on the depth of social connection and commitment within a specific group. This is true also in the context of religion. Unlike Walzer’s latent contempt for religious membership as a source of collegial obligations, in many cases, religious affiliation unquestionably does create such obligations. Participation in a religious community requires the willingness to be separate, in some important senses, from the general public. Therefore, as I argued previously (following Spinner-Halev), such participation should be treated as an autonomous and meaningful act.Footnote 67 In these cases, the fellow members of the religious community share a mutual obligation to observe their shared values and commitments.Footnote 68 Moreover, it seems that the conservative religious context is a natural candidate for an obligation-constituting platform, due to its encompassing feature on the one hand, and its societal differentiation feature on the other.
c. Religious Community as Culture
Communal conscience is not only valuable due to its obligation-to-others nature. In some contexts, mainly religious ones, it has yet another substantive value. Conscientious claims that are developed within a community can be viewed as part of the individual’s culture, and the cultural aspect of the conscientious conviction constitutes another reason to protect it.
Let me clarify that I am not arguing that religious accommodation derives from a right to culture. Although such an argument has been presented in the literature, I find it unconvincing.Footnote 69 Cultural rights deal with declining cultures and are concerned about their potential disappearance. Therefore, the discourse addresses general policies meant to preserve cultures, such as language rights. It is almost impossible that a specific accommodation request can be justified on these grounds. It is also normatively implausible that the justification of religious accommodation is conditional on the existence of such circumstances. Having said that, we should acknowledge that religions typically constitute all-encompassing cultures. The scholarship defending and justifying cultural rights discusses the relevance of culture and its preservation to liberal values. I argue here that religions usually function as cultures and that the justifications of cultural protection influence the value of religious accommodation.
I base my argument on a rather general definition of culture, as “a comprehensive way of life,”Footnote 70 which determines a large range of human activity.Footnote 71 “It affects everything people do: cooking, architectural style, common language, literary and artistic traditions, music, customs, dress, festivals, ceremonies.”Footnote 72 Although neither of these aspects is necessarily required to define culture, they illustrate its comprehensiveness. Notwithstanding, cultures do not actually determine how individuals act. The notion of personal autonomy is not mutually exclusive with acknowledging the dominance of our cultural background in our autonomous decision-making process. Moreover, acknowledging culture’s role in this process has led some liberal thinkers to emphasize the need to protect cultures to render this autonomous process possible. Culture, according to these accounts, is a necessary mediator of the meanings of our choices. Without any cultural reference, our evaluation of possibilities is restricted. Therefore, some sort of cultural affiliation must be protected by the state.Footnote 73
However, this does not justify protecting a particular culture. Members of declining cultures do require some alternative to their lost culture, but this can be achieved by helping them to adjust and assimilate into the general culture. Referring to culture as a prerequisite for evaluating choices may constitute a right to a culture but not to one’s specific culture. An alternative approach draws on the importance of the specific culture in which the individual was raised, in terms of their personality and identity. As Margalit and Halbertal put it:
The right to culture is … the right to secure one’s personality identity.… [I]t is clear that all persons are supremely interested in their personality identity—that is, in their ability to preserve the attributes that are seen as central by them and the members of their group.Footnote 74
The importance of one’s specific culture to the realization of liberal values can be understood in various ways. Alan Patten explains that it is a “recognizable phenomenon” that “many people value their culture intrinsically;” they feel an attachment to their culture, a special bond to other members of that culture, and share with them “many common points of reference that [certain] institutions and practices make salient.”Footnote 75 They may come to value these institutions and practices themselves, be proud of their cultural heritage, and make an effort to preserve it. As a result of this attachment, “for people who identify with their culture, it is difficult … to distinguish disrespectful treatment of the culture from disrespectful treatment of them as individuals.”Footnote 76
Religions, generally speaking, function as all-encompassing cultural systems.Footnote 77 They involve a shared set of narratives, beliefs, and traditions, bound up in a particular lexicon, all of which compose social practices and institutions.Footnote 78 The corpus constituted by these components creates the lens through which religious people—at least, the devout—examine and evaluate the options they encounter. And, as with other forms of culture, they cherish and feel attached to this corpus. These characteristics certainly do not apply to all religious people, just as they do not apply to all members of various cultures; but, for many religious groups, and many of their members, these traits constitute a recognizable phenomenon, in Alan Patten’s terms.
If religions function as cultures, then the justifications of cultural rights should apply also to preserving religions. Sometimes this is termed ‘religious accommodation’ as well, but in a different sense to that applied in this paper. This duality is apparent in Patten’s comparison of the two. He recognizes the dual meaning of a religious conviction for the religious member—the conscientious and the cultural—and frames them as two elements of the same personal interest:
It is true that religion has certain special features that mark it out for unusually strong protection. A person may feel that she has committed an absolute wrong, or sin, if she is unable to fulfill certain of her religious convictions. And religion involves an exercise of judgment about ethical and metaphysical questions that seems particularly deserving of protection. But attachments to a culture can be of crucial importance to individuals too in ways that track, if at some distance, the importance of religious convictions. Violating a cultural attachment may not produce a feeling of having sinned, but it may lead to a sense of having betrayed or compromised a relationship of community that is of central importance in an individual’s life. Likewise, attachments to culture may not be worthy of autonomous protection because they represent ethical or metaphysical judgments, but they may represent judgments about the basic social relationships that a person wants to be part of which are also worthy of protection.Footnote 79
Here, Patten describes vividly how religious norms are important to the believer’s identity or integrity in two ways. First, note the conscientious aspect—a believer’s feeling of having sinned if they are prevented from acting according to the religious norm, and the ethical, metaphysical questions involved. Second, the conscientious aspect is accompanied by cultural or communal considerations, such as a feeling of being guilty of compromising community relationships that the person needs and values in their life,Footnote 80 or cherishing these norms for the implicit judgments they make about our social relationships.
The importance of culture to choice or identity does not suffice when it comes to justifying cultural rights; the obligation of the state to protect it needs to be established. This is complicated, since cultures change, decline, and disappear naturally through social processes that are not directly a result of state conduct. As Patten observes, a person’s preference for the preservation of their specific culture is a subjective one, and the loss of that culture may, indeed, cause them disadvantages. But even though a liberal state might have reasons to prevent these disadvantages, the individual has no moral claim with which to demand that the state do so, since such an act imposes costs of different kinds on third parties.Footnote 81
Notice that the ‘subjective preference’ objection threatens the whole idea of conscience accommodation. If a legal norm was accepted following a fair procedural process, why should we not treat the conscientious claimer as someone merely presenting a subjective preference? Why should we impose the price of their exemption on others? But, as I argued above, we tend to view our conscientious beliefs differently from mere subjective preferences, due to their impact on our integrity and self-identity. On this premise, and assuming culture is vital to many people’s integrity as well, why do cultural rights differ?
The answer relies on the role of coercion. Conscientious convictions are not regular subjective preferences, and this poses negative duties on the state. The state can coerce someone to act against their subjective preference but not against their conscience. However, it is not required to actively assist people to perform their conscientious convictions. If my conscience commands me to travel to Africa to help the poor, I have no grounds to demand that the state fund my trip. The state does have a negative requirement to not hurt my integrity (that is, to not coerce me to act against it); but, if I feel my integrity is hurt because I must help the poor in Africa but cannot afford it—well, that’s my problem. And that is precisely the difference between freedom of conscience and cultural rights.
On this basis, we can differentiate between specific treatments of culture according to the amount of governmental coercion involved in them. Coercion, of course, is an ambiguous term.Footnote 82 But, I think, it is evident that when a specific practice is disturbed by the state to the extent that the individual feels compelled to raise a conscientious claim against this disturbance, and the practice in question is also an important part of that person’s culture, then this is a case in which a state obligation to accommodate can be based not only on the violation of conscience-based integrity but on the violation of culture-based integrity as well.
Note that this kind of phenomenon—a convergence of conscientious and cultural importance—is extremely common in (if not unique to) religions. This is because many religious cultures share a special feature that is less common in other cultural settings: a strong normative order that derives its authority from a shared set of beliefs, values, narratives, and so on. We owe a lot of our understanding of the entangled relationship between these norms and the narratives that ground them to Robert Cover’s “Nomos and Narrative.”Footnote 83 Cover illustrates the reciprocal connections between our concept of the normative and the narratives that constitute our understanding of the universe and that stem from our culture. He does not refer specifically to religions but to normative communities in general, but it seems that conservative religious communities provide the strongest example of his theory.
Cover reveals how religious norms bear meaning far beyond the obvious ‘God said to do x’ frame. Religious norms, as part of a religious culture, reflect (and encounter) greater narratives, beliefs, and traditions. The normative aspect of a religion is the field in which believers execute these components of their religious culture in practice. Therefore, religious norms function as an important aspect of the cultural corpus. Such a norm obligates the devout not only because they have to obey God’s will but also because their comprehensive worldview depends upon it. The normative aspect of a religion is therefore one of the main expressions of a devout person’s system of beliefs and narratives in reality.
The central place of the normative within religious cultures is the primary source of tension between religion and state. Like religions, the modern state speaks mainly in normative language. And the norms of the two systems often contradict each other.Footnote 84 When the state uses coercive power against religious norms, it is pressing violently on religious culture (expressed via the norms) and not only on religious conscience. Here as well, it is useful to draw on Cover’s conceptualization of the state’s “jurispathic” violence.Footnote 85 Cover describes our universe as composed of innumerable normative worlds (which can simply be described as normative cultures) engaged in a process of “jurisgenesis”—the creation of new normative meanings.Footnote 86 The state’s monopoly on violence grants it the power to ‘kill’ these alternative normative worlds and to subordinate all normative communities to one statist legal system.Footnote 87 Cover’s attitude toward this phenomenon is not unequivocal, but he at least recognizes the violent dimension of state supremacy in this context and the need to properly justify it. In other words, his theory recognizes that coercion against religious norms hurts religions not only in a conscientious sense but also in a cultural one. From the perspective of the individual, this means that, in cases of cultural conscience, an individual’s claim against the coercion of the state is twofold: conscientious and cultural alike.
In sum, when a conscientious claim has a cultural origin, state coercion violates enriched aspects of the integrity and identity of the claimer, and, therefore, accommodation can be demanded on two grounds. These two grounds not only make the claim stronger but, moreover, they also enable a separate focus on the communal aspects of the conscientious claim.
To conclude this section, then, a liberal state has strong motivations to accommodate conscientious claims when they arise in a communal context; and it presumably has an easier job doing so than when it accommodates individualistic conscience. This is for various intertwined reasons. The first is that a communal context provides important epistemic information. The second is that communal conscience holds specific value for the community member’s identity and integrity, such that coercing them to act against this kind of conscience is especially problematic. This value has been explained through two prisms: (a) communal development of conscience constitutes obligations to other members; and (b) given the function of communal conscience within the structure of cultures, it carries additional importance for the personal integrity and identity of the individuals who are members of those cultures.
I should emphasize that I do not argue that the communal or cultural performance of conscience is worthy of protection to a greater degree than individualistic conscientious claims. This might have been true in a hypothetical setting, in which two conscientious claimers are identical in every relevant parameter except for the fact that one created their conscientious belief individualistically while the other created it within a conscientious community. This setting, however, is extremely theoretical. In reality, individuals develop their conscience in a given social setting,Footnote 88 and the members of a community do not shed their individuality just because of their membership.Footnote 89 Furthermore, such a hypothetical example assumes full epistemic knowledge, which is not available. And lastly, such a conclusion requires that we discuss considerations that might favor individualistic over communal conscience. While such considerations probably exist, I do not attempt to discuss them here. Nor do I seek to compare communal conscience with the individualistic version. Rather, I aim to show that the communal function of conscience enriches its importance for the individual and, hence, increases the justifications for accommodating it—and that focusing on these justifications mitigates the serious problems that accommodating conscience confronts. Therefore, as a legal policy, when conscience-accommodation claims are presented as a derivation of communal practices (which is the case in most religious contexts), it is plausible that focusing on the communal considerations will help in deciding whether to accommodate them—and, if so, how.Footnote 90
E. Alternatives to Hands-Off: A Preliminary Outline
In the previous section, I argued that religious-accommodation claims should be treated as communal and cultural forms of conscience. What exactly does that mean in practice? First of all, it means that the hands-off approach is inadequate for evaluating religious-accommodation claims. This statement, however, requires clarification. I argued that the communal and cultural aspects of religious conscience do not substitute the individualistic aspect of it but enrich it as an additional personal interest. But any practical suggestion to replace the hands-off doctrine will presumably narrow the scope of religious accommodation. The current legal attitude ignores the communal context—that is, it does not require any communal component for a religious-accommodation claim to succeed. Any alternative suggestion will presumably impose such a requirement. So how do I get from enriching the value of religious conscience to reducing accommodation for it? The answer lies in the theoretical and practical problems of the current doctrine outlined in this paper. It is necessary to limit individualistic conscientious claims, but this necessity encounters conceptual, epistemic, and practical problems. The result is that, as a matter of practice, courts do evaluate factors such as communal participation but do not typically say that they do. To restate my first conclusion: as long as we fail to produce a comprehensive and satisfying theory for the treatment of individualistic religious conscience, it is desirable for legal systems to focus on the communal and cultural aspects of religious-accommodation claims. If a claim fails on these communal grounds, it can still, theoretically, succeed on individualistic grounds—albeit it then faces the problems of such a claim, as explored above.
So what might this much-needed alternative look like? Obviously, the features that constitute the value of communal conscience (creating obligations toward others and functioning as a normative factor of culture) should be foregrounded. However, their evaluation is a complex task, and a comprehensive answer is beyond the scope of this paper. Here, it suffices to distinguish between two types of inquiry: to examine the official doctrine of the relevant religion, and to examine how religious communities function in reality. In other words, the distinction is between religious law or theology vs. sociology or psychology of religion.
Religious-accommodation law should, generally, focus on the latter. Religious law and theology carry important information, but it is only instrumental to the understanding of religious social groups. Focusing on religious law per se as a parameter for evaluation of religious-accommodation claims does not achieve the adequate protection of communal conscience. Ultimately, we are interested in the individual’s conscientious convictions. Relying on official religious law binds the individual’s identity and integrity to the official understanding of the religious institutions. Taking into account the communal element of religion means framing how this element actually influences the individual’s religious self-determination—not how the individual should have felt about their religious convictions if they had devoutly followed the official doctrine of their religion.Footnote 91 In addition, adjudicating religious-accommodation claims according to official religious doctrine will obstruct the natural social processes that religions experience and discriminate against dissenters.Footnote 92 To return to the concepts developed by Robert Cover, adhering to official religious doctrine will unjustifiably grant the religious institutions ‘jurispathic’ power within the community.Footnote 93
To shape a justifiable alternative to the hands-off doctrine, we need not only to understand the official doctrine of religions but also to internalize how communal participation affects individuals’ self-determination and identity. In this context, several components are available, some of which I will mention here. First, what matters is not how the official doctrine of a given religion relates to a particular conviction but, rather, the social meaning of its practice or violation. Social meaning can derive from various sources, such as a common history regarding it, spiritual or mystical content attributed to its observance, or its current social symbolization.
Second, attention must be paid to religious subgroups and the borderlines that arise between them. Religions, even centralistic ones, are not homogeneous. Hence, the ways in which the relationships between subgroups are regulated, and the social processes of subgroup development, vary between religions. Paying attention to subgroups is a necessary aspect of evaluating the importance of religious claims to the individual. A person’s membership in a religious subgroup is often a central part of their identity, maybe even more than their affiliation to the official religion itself. Therefore, the boundaries defining these groups likely hold a high value for their members.
The third component is the issue of religious dissenters. One of the main advantages of the hands-off approach, or so it is commonly said, is that it treats orthodox opinions and dissenting opinions alike. An approach such as that suggested here can discriminate against unorthodox dissenters’ religious conscience. However, if we focus on communities rather than religious doctrines, this concern is mitigated. Religious dissenting is, itself, a communal process, as it is rarely performed solitarily. It is historically common for a phenomenon that was once considered an expression of religious dissent to eventually turn into a new religious subgroup. In such cases, the dissent itself has an important (sometimes, crucial) communal dimension to it. When dissenters pay a social price, they need their internal communal support—which, in its own right, constitutes separate narratives for the dissenter-group members. Being aware of such nuances should produce strong legal protection for dissenting subgroups.
Fourth, turning to religious doctrine when required should not be limited to the specific accommodation in question. No less important is a religion’s meta-attitude to the issues concerning unorthodox practices, such as the regulation of controversy and dispute; the relationship between subgroups within the religion; the place for personal interpretation and practice; and so on. Understanding the dynamic of a specific religion vis-à-vis these issues can illuminate our understanding of what ‘communal conscience’ actually means in a given context.
I am mindful that the communal proposition demands that we take into account numerous factors and delve into nuanced details of religious doctrine. Possible objections to my proposed account on these grounds can include the questionable capability of courts to implement it, on the basis that judges cannot be expected to be experts in theology or sociology. This objection, I think, is weak. Courts deal with complex materials of various kinds every day, from economics to climate change, from cyber protection to archeology. They do so using their best judgment, with the assistance of expert opinion submitted by the parties involved. The matter of religious accommodation is no different in that sense.Footnote 94
A second possible version of this objection is that any kind of decision about how religions operate, what the religious doctrine is, or how central a religious practice is constitutes prohibited state interference in religion. Indeed, this is one reason given in the literature in favor of the hands-off doctrine. Targeting our inquiry at sociology of religion rather than theology weakens this objection. The focus on the social role of communal conscience makes the courts’ decisions external to religious doctrine, by definition. Even when the court has to deal with the content of religious practice, it is not interfering in religion. Its convictions about a religious practice and doctrine cannot reasonably be considered a decision for the religion on an internal dispute; rather, they constitute an external decision, the motive of which is limited to the state’s needs to accommodate religion properly.
Conclusion
The ‘hands off religion’ doctrine framed within the American Constitution requires courts to ignore any evidential knowledge about the practices of the religious community and about the official religious doctrine of the accommodation-claimer’s affiliated religion. I explained this doctrine and its rationale by highlighting its reliance on freedom of conscience. However, conscience’s individualistic nature triggers complex difficulties in setting the borders of conscience accommodation, and the reliance on it for the sake of religious freedom raises questions of redundancy and equality.
I suggest that courts should focus on the communal significance of the religious activity when evaluating religious conscience. I argue that the fact that conscience is produced and practiced in a communal setting should affect how we treat it. This is because of its epistemic value—required evidence that it can provide us. More importantly, the communal aspect carries substantial significance in terms of the essential values that we protect when we accommodate conscience. As we have seen, this is relevant to two aspects of communal relationships: creating mutual obligations, and the cultural meaning of communal conscientious obligations. While neither of these aspects is unique to religion, they are prominent within most religious activities (and the latter is probably almost exclusive to the religious sphere).
This proposed approach primarily has implications for how the law should treat religious-accommodation claims. I am careful not to argue for an effect on other kinds of conscientious claims, nor to compare the two categories, as this requires elaboration on many topics worthy of a separate paper. Moreover, the implications for the religious context itself are yet unclear. In general terms, I call for the rejection of a religious-doctrine-based approach, in favor of a more sociological one.
There remains much more work to be done in terms of basing and concretizing the argument presented in this paper. I have relied here on many assumptions about the nature of conscience, on the values justifying its protection, and on religious activity. These assumptions need further discussion to provide fine-tuning of the theory and its implications. Nevertheless, the paper provides a comprehensive baseline argument for the necessity and possibility of a communal theory and, respectively, a new legal doctrine.
Acknowledgments
I wish to thank Shmuel Baron, Hanoch Dagan, Leora Dahan-Katz, Adi Goldiner, Ben Ohavi, Daniel Statman, the participants of the Junior Scholar Workshop at the Hebrew University of Jerusalem Law Faculty, the participants of the Judaism and Human Rights Program at the Israel Democracy Institute, and the participants of the Safra Center colloquium, for many thoughtful insights. I thank the Heshin Center for Advanced Legal Studies at the Hebrew University of Jerusalem, for its generous support of this research.
Open access
