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21 - Religion, Conscience, and the Law

Reasons, Bases, and Limits for Exemptions

from Part III - Applied Topics in Law and Conscience

Published online by Cambridge University Press:  12 June 2021

Jeffrey B. Hammond
Affiliation:
Faulkner University
Helen M. Alvare
Affiliation:
George Mason University, Virginia
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Summary

Kent Greenawalt discusses the permissibility, scope, and rationale for law to provide exemptions to protect religious and nonreligious conscience in the United States. It may be difficult for the law to determine which sentiments amount to conscience given differences in individuals’ perception and the strength of their convictions. Even the notion of a religious conscience is complex. Religious citizens’ conclusions about matters of interest to religion may proceed from both religion and reason, or only from reason. It is not clear what should count as religious, given differences between denominations and their ideas over time. There are a host of factors bearing on the permissibility and wisdom of granting exemptions, determining their scope, and deciding whether to extend protections to nonreligious conscience. A first principle is the importance of respect for others and for tolerance in a democracy. These questions about exemptions can be considered by looking closely at contested issues, like objection to the military draft, laws governing the manner of killing animals, ingestion of banned substances, abortion, and objection to insurance mandates concerning contraceptives.

Type
Chapter
Information
Christianity and the Laws of Conscience
An Introduction
, pp. 414 - 434
Publisher: Cambridge University Press
Print publication year: 2021

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References

Recommended Reading

Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).Google Scholar
Gedicks, Frederick Mark. “An Unfirm Foundation: The Regrettable Indefensibility of Religious Exemptions.” University of Arkansas at Little Rock Law Journal 20 (1998): 555–74.Google Scholar
Greenawalt, Kent. When Free Exercise and Nonestablisment Conflict. Cambridge, ma: Harvard University Press, 2017.Google Scholar
Greenawalt, Kent. Exemptions: Necessary, Justified or Misguided? Cambridge, ma: Harvard University Press, 2016.Google Scholar
Greenawalt, Kent. “Religious Toleration and Claims of Conscience.” Journal of Contemporary Legal Issues 21 (2013): 449–86.Google Scholar
Hamilton, Marci A., and Seligsohn, Lana. “Religion Governed by the Rule of Law.” Human Rights 39, no. 2 (Jan. 2013): 7, 10.Google Scholar
Koppelman, Andrew. “You Can’t Hurry Love: Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions.” Brooklyn Law Review 72, no. 1 (Fall 2006): 125–46.Google Scholar
Laycock, Douglas. “Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause.” Notre Dame Law Review 81, no. 5 (June 2006): 17931842.Google Scholar
Laycock, Douglas. Religious Liberty, 5 vols. Grand Rapids, mi: Eerdmans, 2018.Google Scholar
Laycock, Douglas, Picarello, Anthony R. Jr., and Wilson, Robin Fretwell, eds. Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Lanham, md: Rowman & Littlefield, 2008.Google Scholar
Lund, Christopher. “Religion Is Special Enough,” Virginia Law Review 103 (May 2017): 481524.Google Scholar
McConnell, Michael W.Accommodation of Religion: An Update and a Response to the Critics.” George Washington Law Review 60 (1992): 642–85.Google Scholar
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Schwartzman, Micah. “What if Religion Is Not Special?The University of Chicago Law Review 79, no. 4 (Fall 2012): 13511427.Google Scholar
Schwartzman, Micah, Tebbe, Nelson, and Schragger, Richard. “The Costs of Conscience.” Kentucky Law Journal 106, no. 4 (2017–18): 781812.Google Scholar
Seeger v. U.S., 380 U.S. 163 (1965).Google Scholar
Welsh v. U.S., 398 U.S. 333 (1970).Google Scholar

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