Over at the Washington Post, law professor (and non-religious believer) Eugene Volokh offers a lengthy post with a kind of argument for religious exemptions to certain laws, a kind of argument not often heard. When Americans demand such exemptions, they usually go right for the Constitution (the Free Exercise Clause) and demand them as a matter of right. In this post Volokh does not go into that kind of argument but instead makes a case, based on considerations of prudence and humanity, for government’s being willing in some instances to grant religious exemptions from generally applicable laws.
This kind of argument does something, I suspect, to illustrate part of the reaction of many Catholics to the HHS mandates, for example. Again, a common (and maybe the leading) reaction is: our constitutional rights are being violated! But an equally legitimate reaction, and one that does not require making broad claims of constitutional right, would be simply: why is our government treating us like this, when we have a good reason to not want to comply, and when the things the government wants to accomplish can be accomplished in other ways, without making us comply? As Volokh points out, regulations do not cause people equal pain. A regulation that requires you to provide health insurance that covers contraception inflicts only the pain of the monetary cost on a non-Catholic employer. But it inflicts a much greater cost on the faithful Catholic employer: the fear of cooperating in sin. A decent and humane government would want to find a way to spare law abiding citizens that problem, if it can.The Duke Chapel Bell Tower
Here is how Volokh puts it in an interesting part of his post. If a judge makes a rule not permitting hats to be worn in his courtroom, he might at some point be confronted with an orthodox Jew who believes he has an obligation to wear a yarmulke. Here’s Volokh:
The judge can say a bunch of things (assuming he has the power to change the rule, either in his courtroom or in the entire court system). He can say, “No, rules are rules.” He can say, “No, this rule is the result of a sound cost-benefit analysis.” He can say, “No, if I give you an exemption it would be unfair to all the people who want to wear baseball caps or stylish hats set at a rakish angle.” He can say, “No, if I give you an exemption all the people who want to wear baseball caps or stylish hats would be upset with the court system, whether or not it would be unfair to them.” And when the person says, “But your honor, this means that I basically can’t be a lawyer practicing in your court / I can’t be a litigant appearing in your court / I’ll have to go to jail for contempt if I’m subpoenaed as a witness, or summoned as a juror, because I won’t take off my yarmulke,” the judge can say, “Too bad.”
Or the judge can say,
Well, that’s interesting. When I made the rule I wasn’t thinking about Orthodox Jews or those Sikh fellows — I’d never even heard of them — or Muslim women who feel religiously obligated to wear headscarves; we don’t get a lot of them in these parts. I was thinking about the slovenly and the stylish, who would feel only a small cost if they had to take off their hats — and I thought there’d be some benefit in making people take the court more seriously by having them follow this sort of decorum rule. (Whether you like my cost-benefit analysis or not, that’s what I thought and still think.)
But now I realize that for a small group of people, to which you belong, the cost of the rule is much greater than for most other people. And because of this, imposing the rule on you would also cause harm to third parties, or to society generally (which really means to third parties). We might lose some great lawyers that way, or parties might find it much harder to get the witnesses they need, or we’ll have to lock up people and that costs tax money, or maybe you folks will even move away, and that will cost tax money, too. Plus there might be little lost to decorum if I let you wear this hat, especially since I think people will realize that you’re doing it out of a sense of solemn obligation rather than of fashion whim.