Religion as a Special Category in Law and Policy: Religious Exemptions and First Freedoms

Abstract

Advocates of religious exemptions and religious priority often stake their case on the belief that religion occupies a special political category discrete from other ethical frameworks. Yet there remains a significant gap in the literature regarding the conceptual status of religion among moral systems within a liberal democratic state. Surprisingly, little work has been done in justifying why religion, as opposed to other ethical frameworks, should be seen as distinctive or prioritized. What is it about religion that would demand this level of protection? What conception of religion are we to use when thinking about how to order society? What, if anything, makes religion different from a legal perspective? Although many scholars have addressed related issues, most contributions have glossed over the logically prior question of how we are to understand religion theoretically. On the other hand, those who deny religious distinctiveness and priority have done little to systematically justify their dismissal.

In order to fill this gap, I extract both from politics and from academic literature on liberal democratic theory the assumptions that underlie these debates, focusing on theoretical accounts of what exactly religion is from a political perspective. I find that there are insufficient grounds for demanding categorically distinctive or priority treatment for religion on the level of politics. Arguments for such treatment are often circular and fail to accomplish their original aim of justifying why one subset of the population merits privilege. I do not argue that ethical exemptions themselves are always inappropriate but rather that religious believers cannot be granted such exemptions to the absolute exclusion of nonreligious citizens. In examining public rhetoric and constitutional history of the United States, I show that the priority placed on religion often results from a misunderstanding of the relationships between religious liberty and both national history and contemporary political practice. Finally, undertaking a case study from contemporary liberal theory, I show that there are other theoretical resources for defending religion without resorting to an arbitrary category.