Rawls and the Participation of Religion in the Public Sphere

[James G. Dwyer]

              I don't think the reasoning for allowing a religious exemption
        while not allowing an exemption for a "deeply held belief" that is
based
        on reason instead of faith is because the state can justifiably say
that
        religion is a primary good.  Instead, as previously pointed out to
me on
        this list, religion gets special treatment because it gets special
        treatment in the constitution.  It specifically says "free exercise
of
        religion", and not "free exercise of deeply held beliefs".  The
question
        remains, however, as to how we define "religion" for these purposes.
Is
        vegetarianism a religion?  How about a rationally derived belief
that one
        should not kill others, and thus should not participate in a war?
One
        who comes to this conclusion through religion gets an exemption, but
how
        about one who gets to the same conclusion through reason?



        The distinction I was drawing was not between religious faith and
other deeply held beliefs, but rather between preferences grounded in
religious belief and preferences grounded in anything else, including
self-interest (I wouldn't characterize a preference not to die in war as a
matter of deeply held beliefs) (and I might add that much religious
motivation is self-interested -  desire for God's favor, for personal
salvation, etc.).  Why should a belief's being deeply held make a
difference?  We condemn and try to eradicate deeply-held racist beliefs.
And other "noble" and powerful motivations do not involve deeply held
beliefs.  Why is it that my love for my children and concern for their
well-being is not sufficient reason to claim an exemption from state law
requirements that they receive polio vaccines (which from an individual
perspective provide virtually no benefit to someone living in this country
and create a risk of serious harm), yet a Christian Scientist's religious
opposition to vaccination is sufficient reason for an exemption?

        I assume someone has also previously pointed out on this list that
reference to what the First Amendment says is question-begging.  The text
doesn't say the government shall allow exemptions from generally applicable
laws for people with religious objections.  Apart from disallowing a law
that says the free exercise of religion is hereby prohibited, what the
Amendment does is a matter of interpretation.  If Philip Hamburger is right,
the founders did not think the Amendment would entitle anyone to exemptions
from generally applicable laws.  And the Supreme Court now says that it
doesn't have that effect (except when it's children's welfare that's at
stake).  So the argument for exemptions must rest on some moral or political
theory, backed by verified empirical assumptions, that the state can
legitimately adopt as a reason for creating religious exemptions.  What's
the theory and what are the assumptions?


Jim Dwyer
University of Wyoming College of Law
P.O. Box 3035
Laramie, Wyoming 82071-3035
(307) 766-2395
jdwyer at uwyo.edu