The Volokh Conspiracy
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Here, I will take a step back from my prior post, and address a much broader question: why should society provide special protections for religious conscience, as opposed to secular beliefs? For example, why should the state exempt from mandatory military service a religious person who adheres to a Pacifist faith, but not exempt a non-religious person who holds a Pacifist philosophy? Why does religion get preferential treatment, but philosophy does not? This question predates Fulton or RFRA or Smith or Sherbert or even the Free Exercise Clause. Why is religion special–so special, that it requires exemptions from civil laws?
To be sure, people today and in the past argue that religion is not special, and that it ought not receive any special protections. Religious groups, they contend, should be treated like any other faction–political, social, or philosophical. But under the contrary view, religious groups do stand in a different position than those who hold beliefs based on politics, social theory, or philosophy. Consider a hypothetical. Person A refuses to work on Saturday because that is the day she volunteers at a homeless shelter to feed the poor. That work is very meaningful to her on a moral level, but it is no way required, or even encouraged by religion. Person B follows a faith that prohibits working on Saturday, the Sabbath. Now, the state denies both people unemployment benefits because of their unwillingness to work on Saturday.
This hypothetical, of course, is based on the facts of Sherbert v. Verner. And in Sherbert, Person B was granted an exemption. But I doubt under the reasoning of Sherbert that Person A would have received an exemption. Why? Because Person B faced an intractable choice between violating her faith or violating civil law. Person A, by contrast, only faced a choice between violating her personal preferences or violating civil law. Sherbert v. Verner recognized Person B's dilemma. Justice Brennan wrote that South Carolina's policy "forces [the Seventh-day Adventist] to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand." Sherbert faced a conflict between Church and State. The State told her to work on the Sabbath, her Church said she could not.
Underlying Brennan's opinion is an important, but seldom-recognized principle: society provides protections for religious conscience to alleviate people from having to make this choice. The government should not force them to choose between God and Country, because for many believers, the former will often prevail. Indeed, throughout history, many martyrs have faced death rather than follow the government over their faith. Others have practiced their faith in secret to avoid conforming to the state's orthodoxies. By contrast, Person A, who follows her own beliefs, without regard to some higher power, stands in a different position. We all should develop our own moral, philosophical, and political beliefs. But if we are forced to choose between our own morality and the state, the sort of conflict that faced Sherbert and others simply is not present.
This background, I think, illustrates the basis of my thinking on a Jewish right to abortion. Even assuming that Jewish law requires an abortion in certain circumstances (my colleagues Howie Slugh and Tal Fortgang address this point), as a matter of first principles, society ought to provide an exemption for those who actually face that intractable choice between a higher power and civil law. Those who do not actually think a higher power imposes some obligations on their lives–that religion is only internal, aspirational, cultural, or traditional–do not fit within the paradigm that has historically justified granting exemptions from civil laws.