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INDIVIDUAL CONSCIENCE AND HOW IT SHOULD BE TREATED

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The Rise and Decline of American Religious Freedom. By Steven D.Smith. Cambridge, MA: Harvard University Press, 2014. Pp. 240. $42.00 (cloth). ISBN: 978-0674724754.
Free to Believe: Rethinking Religious Freedom and Conscience in Canada. By Mary AnneWaldron. Toronto: University of Toronto Press, 2013. Pp. 312. $30.95 (Canadian) (paper). ISBN: 978-1442613843.
The Crisis of Religious Liberty: Reflections from Law, Liberty, and Catholic Social Thought. Edited by Stephen M.Krason. Lanham: Rowman & Littlefield, 2014. Pp. 210. $85.00 (cloth). ISBN: 978-1442242531.

Published online by Cambridge University Press:  02 February 2017

Kent Greenawalt
Kent Greenawalt*
Affiliation:
University Professor, Columbia Law School
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Extract

This essay summarizes crucial ways that society—in particular, the United States—has treated claims by individuals to be free of generally required duties because their convictions tell them that performing the duties is deeply wrong. Among the topics I address are how the Supreme Court decisions involving constitutional rights and organizational claims relate to this treatment, but my main focus is on what I see as the critical issues and what I believe to be the wise choices for addressing such claims. Without attempting an extensive account of all that has been written on claims of exemptions, I refer to some relatively recent books that can help one to understand what is at stake and what can be said in favor of competing positions. I also provide references to recent and forthcoming work of my own that explores claims of exemptions in greater depth.

Type
STATE OF THE FIELD ESSAYS
Information
Journal of Law and Religion , Volume 31 , Issue 3 , November 2016 , pp. 306 - 320
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2017 

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References

1 Greenawalt, Kent, Exemptions: Necessary, Justified, or Misguided? (Cambridge, MA: Harvard University Press, 2016)CrossRefGoogle Scholar; Greenawalt, Kent, When Free Exercise and Nonestablishment Conflict (Cambridge, MA: Harvard University Press, forthcoming)Google Scholar.

2 Roe v. Wade, 410 U.S. 113 (1973).

3 Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

4 See Berman, Harold J., Faith and Order: The Reconciliation of Law and Religion (Atlanta: Scholars Press, 1993), 223, 224, 229Google Scholar.

5 See Laurie Goodstein, “Utah Passes Antidiscrimination Bill Backed by Mormon Leaders,” New York Times, March 12, 2015, http://www.nytimes.com/2015/03/12/us/politics/utah-passes-antidiscrimination-bill-backed-by-mormon-leaders.html.

6 See Oleske, James M. Jr., “‘State Inaction,’ Equal Protection, and Religious Resistance to LGBT Rights,” University of Colorado Law Review 87, no. 1 (2016): 1–63 Google Scholar.

7 Greenawalt, When Free Exercise and Nonestablishment Conflict.

8 Waldron's book would have a similar value to non-American readers engaged with other constitutional democracies wrestling with these issues, as I hope this essay will also have.

9 Section 6(j) of the Selective Service Act of 1948, 62 Stat. 604, 613.

10 United States v. Seeger, 380 U.S. 163 (1965); Welsh v. United States, 398 U.S. 333 (1970).

11 Welsh, 398 U.S. at 341.

12 See Id. at 367–68 (White, J., dissenting) (Justice White was joined in his dissent by Chief Justice Burger and Justice Stewart); Id. at 345–56 (Harlan, J., concurring in the result).

13 Id. at 342–43. The plurality opinion was authored by Justice Black and joined by Justices Douglas, Brennan, and Marshall. Justice Blackmun did not take part in the case.

14 Id. at 356–67 (Harlan, J. concurring in the result). Given that courts often construe statutory language to avoid constitutional difficulties, it is likely that some of those in the plurality of four were influenced by the constitutional concern expressed by Harlan, although they did not explicitly say so.

15 Religious Freedom Restoration Act of 1993, 42 U.S.C.A. §§ 2000bb–2000bb-4.

16 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.A. §§ 2000cc–2000cc-5.

17 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

18 The Supreme Court did decide that Congress lacked constitutional authority to impose RFRA standards on state governments. See City of Boerne v. Flores, 521 U.S. 507 (1997).

19 Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014).

20 A fuller critique is found in Greenawalt, Exemptions, chapter 6.

21 Hobby Lobby Stores Inc., 134 S. Ct. at 62–63.

22 See note 1.

23 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012).

24 Given a general decline in energies and capacity, compelled retirement at a certain age is different from most forms of negative treatment.

25 Krason writes that “there is no firm evidence that their condition is innate” and that it is “behavior that primarily evokes opposition to them” (161).

26 United States v. Lee, 455 U.S. 252 (1982). The Court relied explicitly on the strength of the government interest, but one might well see the case as also representing a likely rejection of the notion that paying taxes is a powerful enough burden to generate a plausible free exercise argument.

27 This is explained in some greater detail in Greenawalt, Exemptions, 127–28.

28 The Church Amendment supplemented by the Hyde Amendment, 42 U.S.C. § 300–7(b)(1) (2012).

29 Elane Photography, L.L.C. v. Willock, 309 P.3d 53 (N.M. 2013).

30 Zahira Torres, “Civil Rights Commission Says Lakewood Baker Discriminated against Gay Couple,” Denver Post, May 30, 2014, http://www.denverpost.com/2014/05/30/civil-rights-commission-says-lakewood-baker-discriminated-against-gay-couple/.

31 Sohail Ahmed, interview by Rachel Maddow, The Rachel Maddow Show, MSNBC, June 17, 2016, http://www.msnbc.com/rachel-maddow/watch/how-an-islamic-extremist-found-a-new-path-708008515745.

32 A general preference in respect to race would be inappropriate, but agencies may think a relevant consideration is having some correlation between the race of adoptive parents and their children.

33 A range of these cases are explored in Greenawalt, Kent, Religion and the Constitution, vol. 1, Free Exercise and Fairness (Princeton: Princeton University Press, 2006)Google Scholar. To take a case previously mentioned, the Supreme Court found the government's interest powerful enough to refuse an exemption for an Amish employer who objected to paying Social Security taxes. Lee, 455 U.S. at 252.