Why protect religious conscience?
Here, I will take a step back from my previous Publishand address a much larger question: why should society give special protections to religious conscience, as opposed to secular beliefs? For example, why should the state exempt from compulsory military service a religious person who adheres to a pacifist faith, but not exempt a non-religious person who adheres to a pacifist philosophy? Why does religion get preferential treatment, but not philosophy? This question is older Fulton or RFRA or Black-smith Where Sherbert or the free exercise clause. Why is religion special – so special that it requires exemptions from civil laws?
Certainly people now and then argue that religion is not special and should not be given any special protection. Religious groups, they argue, should be treated like any other faction – political, social or philosophical. But according to the opposite view, religious groups stand in a different position from those who have beliefs based on politics, social theory or philosophy. Let’s take a hypothesis. Person A refuses to work on Saturdays because that is the day she volunteers at a homeless shelter to feed the poor. This work is very meaningful to her on a moral level, but it is in no way required or even encouraged by religion. Person B follows a faith that forbids working on Saturday, the Sabbath. Now the state is denying the two people unemployment benefits because of their refusal to work on Saturdays.
This assumption, 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 was faced with an insoluble choice between violating their faith or violating civil law. Person A, on the other hand, had no choice but to violate personal preferences or violate civil law. Sherbert v. Verner recognized Person B’s dilemma. Judge Brennan wrote that the South Carolina policy “forces [the Seventh-day Adventist] at Choose between following the precepts of his religion and giving up benefits, on the one hand, and abandoning one of the precepts of his religion to accept work, on the other hand. Sherbert faced a conflict between church and state. work on the Sabbath, her church said she couldn’t.
Brennan’s view rests on an important but rarely recognized principle: society provides protections for religious conscience to prevent people from having to make that 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 because of their faith. Others practiced their faith in secret to avoid conforming to state orthodoxies. In contrast, Person A, who follows his own beliefs, regardless of a higher power, stands in a different position. We should all develop our own moral, philosophical and political beliefs. But if we are forced to choose between our own morality and the state, the kind of conflict that Sherbert and others have faced simply does not exist.
This context, I think, illustrates the basis of my thinking about a Jewish right to abortion. Even assuming that Jewish law requires an abortion in certain circumstances (my colleagues Howie Slugh and Tal Fortgang discuss this indicate), as a matter of principle, society should provide an exemption for those who are effectively faced with this intractable choice between a higher power and the civil law. Those who do not actually believe that a higher power imposes certain obligations on their lives – that religion is only internal, ambitious, cultural or traditional – do not fit the paradigm that has historically justified the granting of exemptions to civil laws.