The Vietnam Draft Cases and the Pro-Religion Equality Project
60 Pages Posted: 10 May 2013 Last revised: 18 Jul 2013
Date Written: May 6, 2013
There is currently unfolding among secularists and liberal religious believers an equality project that argues that secular commitments of conscience are as worthy of protection as are the commitments of traditional religion. This movement is symbolized by Brian Leiter’s recent book, "Why Tolerate Religion?" but it has many other adherents today as well. This movement seeks either to substitute conscience provisions for existing religious exemptions from law or at least to add conscience exemptions to them. As religious believers have pointed out, the likely consequence, and perhaps even the goal, of this effort is the weakening of exemptions for religion rather than the strengthening of conscience exemptions for all. That is why I call this movement the Anti-Religion Equality Project. The State is the ultimate beneficiary of the Anti-Religion Equality Project.
This paper proposes an opposing equality project, the Pro-Religion Equality Project, which would expand the meaning of religion in existing religious exemptions to include many, and certainly the most passionately held, commitments of secular conscience. There is nothing new in this Pro-Religion Equality Project. The Supreme Court already expanded religious exemptions in the Vietnam draft cases, Seeger, Welsh, and Gillette, which held that conscience commitments occupying a place in the life of the nonbeliever parallel to the place of God for the traditional religious believer deserve exemption from law as religious. While Leiter aims to subsume religion under the mantle of conscience, the Pro-Religion Equality Project subsumes conscience under the rubric of religion.
Expansively interpreting religion exemptions is a better path than creating conscience provisions for a number of reasons. Because conscience is so easily invoked, conscience protection can only be weakly enforced, thus undercutting liberty for all. That result not only fails to protect religious liberty, it understates the significance of conscience claims that share the depth and breadth of traditional religious commitments and are of equal significance. Such secular conscience claims should be robustly protected and including them in existing religious exemptions helps ensure that result. In contrast, conscience claims that are idiosyncratic and lightly held should be excluded from exemptions from general law altogether and the expansion of religion exemptions tends to accomplish that.
As in the Vietnam era, nonreligious exemption claimants today will resist inclusion in religious exemptions because they do not consider themselves to be religious. But even this objection shows the advantage of the Pro-Religion Equality Project over its competitor. For conscience is understood to be an individual judgment and the promotion of conscience exemptions supports the view that deeply held moral commitments are personal and subjective. In contrast, religion sounds in truth and the expansion of religious exemptions will ignite a needed societal debate about religion, reason, relativism and nihilism.
Keywords: church and state, wall of separation, establishment, free exercise, religious exemptions, conscience clauses
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