I argued in the preceding chapters that an interpretation of the Free Exercise Clause that is faithful to the principles and purposes that animated the First Amendment in the founding era will include a judicially enforceable right of exemption in cases of conflict between the demands of faith and the requirements of neutral, generally applicable state law. I have acknowledged that most Americans at the time of the founding did not see the need for a general right of exemption of this sort either as a matter of state or federal constitutional law. Those in the founding era shared a solicitude for religious conscience in cases of conflict with the state, and they envisioned accommodations even when laws were not designed to burden or discriminate against religious practice. However, what they usually had in mind was a piecemeal approach to relief as needs arose. Where conflicts were rare and rarely the result of moral pluralism, a case-by-case approach worked well. In the most common cases of conflict, states usually addressed the concerns of religious believers and provided for specific legislative or constitutional relief. Most Americans did not see the need for anything further. A case-by-case approach to accommodation that relied largely on the political process for remedies naturally seemed sufficient.

Today's environment, however, is very different. Government is much bigger and religious diversity much deeper. Divisions among religious believers include disagreements over moral values as well as doctrine and worship. In these circumstances, conflicts between the demands of religious conscience and the commands of the state are more frequent, and religious objectors are often less noticeable, understandable, or appealing than before. In such an environment, less popular religious groups are at a disadvantage, and so are those that are less powerful or less numerous. Bureaucratic inflexibility also grows with the size of the political community and its institutions.

Thus, a piecemeal approach to exemptions is no longer sufficient in modern American society. Our historic commitment to free exercise and the respect for conscience that underlies it require more. Indeed, as I have discussed in the preceding chapter, not long after the adoption of the federal Bill of Rights, the court in a prominent state case appreciated the insufficiency of such an approach even in early nineteenth-century America. The court in People v. Philips interpreted the protections for free exercise in the New York Constitution to include a right of exemption, and it did so because the absence of such relief in that case would have resulted in the “annihilate[ion]” of an important practice of the Roman Catholic faith.Footnote ²

However, in the last chapter, I also acknowledged the numerous challenges to defining a right of exemption in a way that is workable and fair. As I observed, many state court decisions after Philips did not follow the trajectory in that case, and indeed, by the end of the nineteenth century, the U.S. Supreme Court also rejected a right of exemption under the federal Free Exercise Clause.Footnote ³ Part of the explanation for some of these decisions was the prioritization of duties to the state above religious matters, and thus an erosion of founding era values. However, these courts also voiced concerns about the feasibility of a right of exemption that are echoed by the Supreme Court in Employment Division v. SmithFootnote ⁴ and again by scholars writing in the religion clause field today. I have discussed these concerns in the last chapter. An increasing number of scholars now defend Smith on the ground that designing a fair and workable right of exemption is impossible.

Some of the concerns that courts and scholars have identified are unfounded and many of them are overstated, but there are also real challenges that must be taken seriously and addressed successfully. It does not make sense to construe the Free Exercise Clause to include a right of exemption if it is not possible to define this right in a way that is fair and feasible. However, too often scholars jump to the conclusion that these challenges are insurmountable. Indeed, this is what the Supreme Court did in Smith. If we are to be faithful to founding era principles and the concerns that underlie them, we have to try harder to do better. As I have stated earlier in the book, too much is at stake to give up too quickly.

In the next several chapters I show that the problems that courts and scholars have identified can be successfully addressed with new ideas and creative thinking. What we need is a strongly protective right that is feasible and fair, and I develop such a proposal as I respond to the difficulties and challenges that I discussed in the previous chapter. Before I begin, I return in this chapter to the debates in the first Congress regarding protections for conscientious objection to military service. There is much that we can learn from these debates about how founding era principles should inform the construction of a right of exemption under the Free Exercise Clause and how this right can be designed in a way that is both workable and fair. There is also much that we can learn about how this right should fit within a broader framework of protections for religious conscience. I will return to these lessons as I further specify my proposals in the chapters that follow.

Perhaps the most basic lesson from this exchange is that an appreciation of what is at stake when the demands of faith conflict with the commands of the state will mean a commitment to respect conscience even when the costs to the state are high. All of those who spoke in this debate agreed that those with conscientious objections to military service should be protected, although they disagreed about whether this protection should be legislative or constitutional and about whether these protections are a matter of natural right. Exemptions for Quakers and other religious pacifists in the founding era were costly. The nation had just fought a war of independence with England, and Americans knew that exempting religious pacifists from military service implicated critical state interests. However, no one argued that these interests justified compelling Quakers and others to fight “when, according to their religious principles, they would rather die than [do so].”Footnote ⁵ Indeed, even in Pennsylvania, with its large population of Quakers and at a time when the outcome of the war was far from certain, inhabitants approved a state constitution that exempted pacifists from bearing arms if they paid a monetary equivalent.Footnote ⁶

Thus, for founding era Americans, the threshold for imposing legal duties that will compel believers to violate their conscience must be high. They resisted overblowing governmental interests even when they were clearly weighty. They resisted speculative fears about the cumulative effect of exemptions. They did not give in to bureaucratic inflexibility, and they did not demand uniformity for efficiency's sake or because they feared that making exceptions for pacifists in this case would lead to other demands for special treatment. To the contrary, they expected that respecting conscience will require special treatment in some cases even in situations where the collective costs to society are substantial, and they did so because they agreed with George Washington that “the Conscientious scruples of all men should be treated with great delicacy & tenderness.”Footnote ⁷

As I discussed in the previous chapter, our experience with the compelling state interest test demonstrates that designing a strongly protective right of exemption today will require more than simply setting the threshold for the imposition of burdens high. We cannot count on solicitude for religious conscience, especially the conscience of religious minorities, among judges just as we cannot count on it among legislators. We have seen that where there is significant room for judicial discretion or subjectivity, judges have tended to water down protections. This is because of judicial fears about the costs associated with exemptions in an increasingly pluralistic society. It is also because of unfamiliarity with and misunderstanding of faiths that are not one's own as well as hostility, even if only unconscious, to religious views that one considers strongly mistaken or destructive of public values. It is also because of the erosion of founding era principles and the concerns behind them.

Thus, we need a right of exemption that provides for strong protection for conscience in fact as well as theory, and this requires a solution that is multidimensional. We need a framework that will cabin judicial discretion and minimize the room for bias in judicial decision making. We also need an approach that adequately addresses legitimate concerns about the chaotic potential of mandatory exemptions. Developing a right that is strongly protective but also feasible is essential to combatting the tendency of judges to water down robust rules. So is managing the residual judicial anxieties that will surely remain even after this potential is addressed. Finally, our approach must not only reflect founding era values and the insights that animated them; it must also help renew and sustain them. If we do not value and respect conscience, we are unlikely to protect it strongly regardless of what our rules say.

As I have observed in the previous chapter, a number of scholars today are suggesting that we replace our traditional understanding of the compelling state interest test with a more moderate and nuanced approach.Footnote ⁸ We cannot afford true strict scrutiny in every case where the government imposes on religious conscience. What we need is some form of intermediate approach. For example, Douglas Laycock has argued that courts should calibrate the level of protection to the level of burden on religious exercise.Footnote ⁹ The question for Laycock is “whether the government interest compellingly outweighs the religious interest,”Footnote ¹⁰ and thus, “less weighty government interests can justify burdens on less weighty religious practices.”Footnote ¹¹ Thomas Berg has favored a “moderate” reading of the compelling state interest test that involves “case-by-case ‘close scrutiny’” of government action that burdens religion,Footnote ¹² and he expects the result to be significant protection but also “real limits on religious freedom.”Footnote ¹³ For Kent Greenawalt, our analysis should be less stringent than the compelling state interest test indicates,Footnote ¹⁴ and he also has argued that judges should consider the importance of religious practices to believers in relationship to the weight of the government's interest.Footnote ¹⁵ Alan Brownstein has advocated a nuanced balancing approach that involves the application of different standards of review in different circumstances.Footnote ¹⁶

I do not disagree with these scholars that applying a real compelling state interest test to every occasion where the government imposes a substantial burden on practices that are rooted, even primarily, in religion is unsustainable. However, the proposals these scholars make would replace the traditional compelling state interest test with vague standards or complex multifaceted frameworks that would increase the room for judicial discretion and subjectivity. More nuanced balancing approaches are attractive in theory, but in this context, our past experience with the compelling state interest test strongly suggests that what we will end up with is more judicial bias, greater inconsistency of results, and weak protection overall. Moreover, alternatives to the traditional compelling state interest test that are proposed as more moderate or intermediate approaches risk signaling judges to further water down protections that have already become significantly eviscerated. While we have a compelling state interest test in theory, we do not have one in fact. With a more moderate test in theory, we would probably have even less protection in fact.

Furthermore, approaches that require judges to calibrate the level of protection to the level of burden on religious exercise also invite judicial entanglement in religious matters. It is certainly true that we cannot apply real strict scrutiny in every case where government laws or regulations impinge on religious practice. However, we have to make distinctions in a way that does not require judges to determine which religious practices are more or less important to religious individuals or groups.

The exchange in the first Congress regarding conscientious objection contains a second lesson that can help identify the types of situations that call for a strongly protective right of exemption. Founding era Americans went far to accommodate the demands of conscience when these demands came into conflict with the requirements of the state. Exemptions for Quakers and other Americans who objected to military service and to taking oaths involved costs to the larger community, and founding era Americans were, by and large, willing to bear these costs. However, founding era Americans did not envision exemptions every time government laws and policies place burdens on conduct rooted in religion even where the burdens are substantial and religion is the primary motivation for the conduct. Nor did religious believers demand such protection. As a number of scholars have observed, religious convictions can shape the lives and conduct of believers in all sorts of ways, and indeed, for some believers there is no aspect of decision making that is not in some way religiously imbued. Thus, government laws and regulations will affect and also limit the choices of religious believers in numerous ways, and so will other types of social structures as well. In most cases believers accept these limitations and make adjustments, often with little thought or complaint.

However, sometimes the conflicts involve more, and resistance becomes imperative for the believer. The situations in which states recognized exemptions from neutral, generally applicable laws in the founding era were like that. These were circumstances in which the conflict between religion and government had reached a crisis point for believers. The example of conscientious objection to military service is illustrative: as Representative Boudinot observed in the House debate, Quakers and other religious pacifists would rather die than fight.Footnote ¹⁷ The Continental Congress observed that forcing pacifists to fight would do “violence to their consciences.”Footnote ¹⁸ These were strong words. Where states exempted Quakers and others from compulsory military service and oath requirements, more than religiously motivated conduct was involved, and indeed, the matters at stake were not simply important to adherents in some generic sense. There was also something more involved than religious principles that pointed in a different direction, even strongly so. There are many circumstances like that in any religious believer's life if he or she takes his faith seriously. These were situations where conscience was making demands that believers felt compelled to follow notwithstanding weighty civic obligations and penalties, and this was the case because the divine-human connection at the heart of religious faith was at stake.

In Chapter 3, I described religion as a phenomenon that involves the relationship between persons and the divine. Religion, I explained, grows out of our capacity as humans to raise questions about our existence and about the source or ground of this existence, and the principal goal of the religious life in most religious belief systems is some form of union or communion with the divine. For the believer, salvation or liberation or fulfillment inheres in this divine-human connection. It is in and through the believer's relationship with the divine that humanity's deepest existential threats are overcome and the problems of guilt, meaninglessness, and death are resolved.

For Quakers and other religious pacifists in the founding era, being forced to bear arms endangered this connection. As I have discussed earlier, those in the founding era understood their connection to the divine largely in terms of obedience. In his Memorial and Remonstrance, James Madison spoke of religion as involving a “duty” to the Creator that takes precedence over the claims of civil society because allegiance to the Creator must come before allegiance to the state.Footnote ¹⁹ Religious pacifists opposed military service because they believed that participation in war violates the divine command that we love one another. Military service involves disobeying a divine injunction. Thus, for Quakers and other religious pacifists, their allegiance to the divine was at stake. Indeed, even more was at stake. For religious pacifists in the founding era, nonviolence also proceeded from the new life of Christ within the believer and from the believer's effort to imitate Christ.Footnote ²⁰ Military service was incompatible with this divine presence.

Steven Smith has described conscience as “a kind of compulsion” with the “classic expression” that of Martin Luther: “Here I stand, I can do no other.”Footnote ²¹ I have observed that religious faith can involve a range of normative claims, not just those that have this strongly imperative character. However, Smith accurately captures the crisis that was involved for religious pacifists who objected to compulsory military service and believers who refused to swear an oath. In these cases, conscience was making demands that could not be ignored because the believer's relationship with the divine was at stake. Those in the founding era understood that, and they were willing to make accommodations even at high cost to themselves and the larger society.

Not all religious believers understand the divine theistically, and not all envision the divine-human connection in terms of obedience. As I have discussed earlier in the book, different religious belief systems involve different conceptions of the divine and different ideas about how persons connect with the divine. Founding era Americans sought a relationship with the divine that was at once a matter of obedience and love. Believers from other faiths may seek a very different form of connection. For example, for Eastern faiths, the divine is often understood impersonally, and the connection is envisioned as a union rather than communion. Nevertheless, the divine-human connection, however understood, is at the heart of most religious belief systems today, and it makes sense to follow those in the founding era and target our strongest free exercise protections to situations where this connection is at stake. It is when the state's rules infringe on practices that are integral to the believer's connection with the divine that conscience makes demands that cannot yield to the state, and it is in these situations that we must make the greatest sacrifices to protect conscience.

Of course, practices can be integral to the believer's connection with the divine without involving the type of religious obligation that was present for religious pacifists in the founding era. As I have just recalled, not all religions envision the divine-human connection in terms of duties to a Creator. For non-Western faiths that understand the divine in impersonal terms, communion or union with the divine does not involve obedience to divine injunctions. Faith involves demands but not commands.

Nor should we confuse practices that have this function with those that are central or mandatory within a religious belief system. As I have discussed earlier, examination of the role that religious practices play within belief systems would mire courts in religious questions.Footnote ²² Courts lack the expertise to make accurate interpretations of religious doctrine, and hostility or prejudice may also distort their judgments. Nor should the question be whether a religious practice is especially important to the believer. This question is too vague. It provides little specific guidance for judges and would be highly manipulable. Moreover, to the extent that the inquiry becomes about the importance of the practice within the claimant's belief system, it will involve the same sort of religious entanglement that an inquiry into the centrality of the practice would.

Rather, the question that courts should ask is whether the religious practice at issue is essential to the claimant's connection to the divine however the claimant understands the divine and however they envision this connection. The inquiry is not about the role of their practice within their belief system. The inquiry is about how the practice functions in the spiritual life of the claimant, and the claimant is the one who defines this function. Practices that meet this threshold are the ones that have the imperative character that pacifism did for founding era Quakers.

Judges applying this standard must be sensitive to the different ways that believers might describe the divine and the significance of their religious practice. They need not, however, be experts in any particular religious tradition or in the study of religion more broadly. They need only ask whether the object of the believer's faith is some understanding of a greater or ultimate reality or power or powers grounding our world and whether the practice they wish to engage in is essential to the connection that they seek with the divine.

Supreme Court decisions in the field contain examples from a variety of religious traditions. For example, in Bowen v. Roy, Native American parents who had applied for welfare benefits objected to the government's requirement that they provide a social security number for their daughter because they believed that the use of this unique identifier would “‘rob the spirit’ of [their] daughter and prevent her from attaining greater spiritual power.”Footnote ²³ The claimants believed that “technology is ‘robbing the spirit of man’” because it undermines the “control over one's life [that] is essential to spiritual purity and indispensable to ‘becoming a holy person.’”Footnote ²⁴ The ability of the claimants’ daughter to connect with a greater spiritual reality was at stake in this case. In Goldman v. Weinberger, a Jewish officer in the Air Force sought to wear his yarmulke while on duty, and he described the wearing of a yarmulke as “silent devotion akin to prayer.”Footnote ²⁵ In the Third Circuit's opinion in Africa v. Pennsylvania, which I have discussed earlier, a prisoner who was a member of the MOVE organization demanded a special diet consisting of raw foods because he wanted to live “in harmony” with what is pure, natural, and untainted, “which is the same as God.”Footnote ²⁶ In all of these cases, the plaintiff sought some form of connection with the divine, and they viewed the practice at issue as essential to this connection.

Targeting a right of exemption to those practices that are essential to the believer's relationship to the divine enables us to construct protections that are strong but also feasible. Religion clause scholars are correct that we cannot provide strong protection every time the government impinges, even substantially, on a practice with religious significance. Nor, I have suggested, would it make sense to do so. Some practices are more critical than others, and oftentimes the believer is prepared to tolerate burdens on religious exercise. I have also argued that calibrating the level of protection to the level of burden on religious exercise would be unworkable. It would entangle courts in religious questions, and it would lead to weak protections overall. A better approach is to target robust protection to situations where the believer's relationship to the divine is at stake and to look to believers to define the function of religious practices in their spiritual lives.

Of course, if the believer is the one who defines how a religious practice functions in their spiritual life, the limits I have described may seem more apparent than real. An individual can simply claim that any practice is part and parcel of their relationship with the divine, and judges will not be able to second-guess their claim. It is certainly true that courts cannot challenge a claimant's understanding of their faith or the role of religious practice in this faith. These are matters for the believer to define. If a claimant argues that a particular practice is essential to their relationship with the divine, the court cannot question the claimant's understanding of religious truth. However, courts can examine the sincerity of free exercise claims. In the previous chapter, I have discussed the challenges associated with developing an approach to sincerity inquires that is meaningful but also fair and properly limited. Sincerity determinations must not entangle courts in religious questions, and they must not turn into judgments about the reasonability or plausibility of the plaintiff's religious claims or otherwise disadvantage unorthodox beliefs. Addressing these difficulties successfully is essential to the feasibility of the right I am proposing here, and I return to these challenges in a later chapter. As I will elaborate further there, if courts focus on the fit between the claimant's conduct during the period of the dispute and their assertions about the role of the practice at issue in their spiritual life and the effect of the government's rules on this practice, courts will be able to make meaningful, fair, and properly limited determinations about sincerity.

Furthermore, as I have discussed in the previous chapter, we must also not overstate the incentives for individuals to mischaracterize their practices. There are costs and hassles associated with free exercise litigation, and thus, believers will be unlikely to characterize relatively unimportant practices as essential to their relationship with the divine. In most cases, free exercise claims will involve practices that matter greatly to believers. The threshold for relief that I envision matches the type of litigation that we tend to see. When there are significant secular benefits associated with an exemption, the incentives to misrepresent the significance of a religious practice will be greater. However, as I have already observed, it is often possible to come up with accommodations that minimize these benefits or offset the costs of the exemption to society. Indeed, as I will discuss later, a well-structured right of exemption will encourage legislators and administrators to work with religious believers to develop such solutions extrajudicially and in this way head off litigation.

A third important lesson from the exchange in the first Congress regarding protections for conscientious objectors is the reminder that conflicts between believers and the state can often be worked out through extrajudicial compromises that meet the needs of both parties even when critical government interests are involved. As I have observed earlier, conscientious objection to military service in the founding era involved such critical interests. Exemptions for religious pacifists reduce the human resources available to the military, and these resources can be of great importance in time of war, especially if conscientious objectors form a significant percentage of the population, as they did in Pennsylvania. Moreover, because exemptions from military service are desirable to pacifists and nonpacifists alike and the secular benefits associated with exemption are great, there is a real risk that granting exemptions to religious pacifists will induce others to feign conscientious objection or possibly even change their actual beliefs. However, most states in the early republic exempted religious pacifists from military service, and they addressed these problems by requiring conscientious objectors to pay a financial equivalent, provide a substitute, or, less commonly, perform alternative service of some sort.Footnote ²⁷ Each of these compromises exempts conscientious objectors from the duty to fight but also requires some kind of contribution to the defense of the state that will reduce the collective costs of accommodation as well as the secular benefits associated with it. The protection for conscientious objection that the House of Representatives approved in 1789 left room for these arrangements. While the proposal considered by the House initially stated simply that “no person religiously scrupulous shall be compelled to bear arms,” the version adopted by the House included the words “in person” at the end of the provision.Footnote ²⁸ Thus, conscientious objectors need not fight, but they can be required to make a contribution in lieu of personal service.

There are many conflicts between believers and the state that can be resolved through compromises of this sort. Even when important state interests are involved, it is often possible to make accommodations in a way that minimizes the burdens on the state. One way to do this is to follow the example suggested by founding era protections for conscientious objection: provide believers with the exemption that they seek but require them to offset the costs associated with the exemption in a way that is consistent with conscience. Given the availability of solutions like this in many cases, a well-constructed right of exemption under the Free Exercise Clause will create incentives for believers and government officials to work out mutually acceptable resolutions to conflicts outside of the courts.

Resolving as many conflicts as possible extrajudicially has a number of benefits. One obvious benefit is reduced litigation costs, but there are many more. If conflicts are resolved outside the courts, the problems associated with judicial decision making in this area can be reduced. Judicial bias and other forms of distorted decision making are less of a problem when conflicts are resolved by the parties themselves. So is the risk of courts becoming entangled in religious matters. To the extent that we can push conflicts outside of the courts and resolve them legislatively or administratively in ways that take both religious and government interests into account, we also reduce the concerns about chaos and anarchy that many courts and scholars have associated with a right of exemption. Channeling conflicts outside of the courts and into mutually acceptable compromises means fewer lawsuits and fewer exemptions that seem truly unsustainable. Moreover, where the parties work out their own compromises extrajudicially, they will often come up with more creative and more responsive solutions than courts can envision themselves.

Of course, extrajudicial compromises that can meet the needs of both believers and the state are not always possible. Indeed, as Representative Sherman observed in the debate about protections for conscientious objectors in the first Congress, religious pacifists in the founding era typically objected not only to personal service in the military but also to paying an equivalent or providing a substitute.Footnote ²⁹ Most states were not willing to go without such requirements, and, as I just noted, the provision approved by the House of Representatives left room for them. While solutions that are fully satisfactory to both parties are not always possible, a right of exemption that is well designed will encourage believers and government officials to come as close as they can and to reach compromises whenever possible. The impasses that are reached should truly represent the limits of what is tolerable to the believer and manageable by the state. These are the situations in which judicial decision making becomes inevitable and appropriate.

Arguably, protections for conscientious objectors in many states in the founding era did not go far enough. During the Revolutionary War, the Continental Congress recommended neither a substitute nor a commutation fee but called on Quakers and other pacifists to contribute to the relief of their countrymen in whatever way they could consistently with their religious principles.Footnote ³⁰ In Rhode Island, the earliest colonial provision exempting conscientious objectors from military service had provided for something similar. According to the Rhode Island statute, in times of war conscientious objectors can be required to perform alternative forms of service such as helping remove elderly and disabled persons, women and children, and goods out of danger and warning the community about threats.Footnote ³¹ Indeed, today's federal exemption for conscientious objectors contains a similar compromise and provides for “noncombatant service” or other acceptable civilian work for the common good.Footnote ³² Thus, legislatures in the founding era probably could have done better than many of them did. They probably could have worked with religious pacifists to identify alternative forms of service that were acceptable to them and that would also have contributed to the defense of the community and, at the same time, discouraged fraudulent claims.

A right of exemption that is well constructed will push religious believers and government officials to go as far as they possibly can before refusing further compromise. This is what George Washington had in mind when he wrote that “it is my wish and desire that the Laws may always be as extensively accommodated to [the conscientious scruples of all men], as a due regard to the Protection and essential Interests of the Nation may Justify, and permit.”Footnote ³³ A framework that pushes both religious believers and government representatives to explore all possible solutions to conflicts and to do all they can to work out mutually acceptable compromises is critical if we want a political community that respects conscience and also successfully manages the costs associated with this value.

Some scholars have argued that accommodations for religious believers should require those who receive exemptions to disgorge any secular benefits that go beyond what conscience strictly demands.Footnote ³⁴ Alan Brownstein refers to these benefits as “surplus” secular benefits.Footnote ³⁵ Others have argued that where an exemption allows a believer to escape a secular burden, we should consider imposing alternate burdens on those who receive the exemption in order to discourage fraudulent claims.Footnote ³⁶ Neither is what I have in mind. It is fair to ask religious believers to absorb or otherwise offset the costs of exemptions to the larger community to the extent that they can do so consistently with the demands of conscience. This includes requiring believers to disgorge surplus secular benefits when such disgorgement is necessary to manage real risks of multiple fraudulent claims that would heavily burden the community. Requirements like this can be the key to mutually acceptable solutions to conflicts.

However, requiring believers to disgorge any additional surplus secular benefits associated with an exemption regardless of whether such disgorgement alleviates burdens on others goes too far. Such disgorgements can have real, and sometimes very significant, costs for believers. For example, Brownstein describes the case of a public employee who seeks a weekend day off for Sabbath observance.Footnote ³⁷ This day off has religious value for the employee as well as secular value: most employees prize weekend days off over weekdays.Footnote ³⁸ Brownstein favors an accommodation in this situation as long as the employee disgorges the secular benefit associated with having a weekend day off, and he suggests requiring the employee to make a payment that reflects the additional value of this day as compared with a weekday off.Footnote ³⁹ Such a payment will be a real cost for the weekend Sabbath observer, and it will function like a reduction in salary. The effect will be to place a financial burden on believers whose consciences require that they take a weekend day off. If a payment like this is not necessary to offset costs that others will incur as a result of the accommodation, there is no state interest that justifies it aside from leveling the position of believers and nonbelievers. (In this case, there may be such costs if weekend days are harder for other employees to get as a result of the accommodation.) Extracting the surplus secular value associated with an exemption where no one else is disadvantaged by the benefit is not consistent with the solicitude for conscience that underlies the principle of free exercise. It may equalize the treatment of religious and nonreligious individuals as Brownstein envisions, but my argument in this book has been that equal treatment between religion and nonreligion is not the primary religion clause value. The Free Exercise Clause protects freedom of conscience. A political community that values freedom of conscience will make exceptions when the demands of conscience conflict with the requirements of the state. It may also require that believers receiving these benefits mitigate the costs that such exemptions place on others. However, extracting any additional secular value associated with these accommodations is not consistent with respect for conscience where it will mean extra costs and thus burdens for believers without alleviating impositions upon others.

Indeed, if the disgorgement of surplus secular value is required as a condition for mandatory exemptions under the Free Exercise Clause as Brownstein envisions,Footnote ⁴⁰ the judicial bias and other forms of distorted judicial decision making that we see in this area could easily result in additional burdens on believers. Depending on the situation, the calculation of the surplus secular benefit associated with an exemption may not be clear, and where this is the case, judges might overvalue this secular benefit. This is more likely when there is conscious or unconscious hostility to the practices at issue. Where judges overvalue the surplus secular benefit associated with an exemption, the effect will be to penalize religious practice, perhaps very substantially. A political community that respects religious conscience will not go down this path.

Nor will such a community use the imposition of alternative burdens as a way to discourage fraudulent claims where exemptions relieve claimants of secular obligations. Adam Kolber has advocated the imposition of such alternative burdens as a mechanism for avoiding difficult determinations about claimant sincerity, and he has also argued that solving sincerity problems in this way will allow us to broaden the reach of exemptions to include nonreligious as well as religious individuals. If we make the alternative burdens associated with an exemption onerous enough, we can filter out those who lack conscientious objection or other deep-seated aversions to legal requirements and ensure that those who receive the exemption are sincere.Footnote ⁴¹ Where an alternative burden also benefits those adversely affected by an exemption, we can, at the same time, reduce the collective costs associated with claims of conscience.Footnote ⁴²

As I have just discussed, I agree that we can ask those who receive exemptions to mitigate the costs associated with these accommodations when they can do so consistently with conscience. Doing so may mean reducing the secular value associated with an exemption and thus the incentives for fraudulent claims. However, what Kolber has in mind is using alternative burdens as a sort of penalty that will sort genuine from insincere claims by increasing the costs of exempted conduct. This can be a very effective filter, but it is effective because it burdens religious exercise. Indeed, as Kolber recognizes, it becomes more effective the more onerous the burdens become. A political community that respects conscience will not place burdens on conscience as a way of solving the difficulties associated with inquiries into claimant sincerity. Doing so would be inconsistent with the very reason that we make accommodations to begin with.