Should the Religious Be Exempt? Questions of Justice, Character, and the Maintenance of Norms

Criminal Justice Ethics, Volume 37, 2018 - Issue 1

Cornell Legal Studies Research Paper No. 20-11

27 Pages Posted: 29 Feb 2020

Date Written: February 26, 2018

Abstract

Under the traditional theory of religious exemptions In American law, individuals and organizations whose actions violate civil and criminal laws are exempt from those laws if their actions are for religious reasons. This idea, although enjoying a long doctrinal presence, is increasingly contested in contemporary American society. In this article, the author takes particular issue with the common (although often unarticulated) assumption that religious exemptions are justified by the idea that religion is “good in itself,” or that the religious objector has a sympathetic – “personally sincere” – character. The uncomplicated assumption that religious exemptions are amply supported by the idea that religion is a “good in itself” no longer describes what the broad swath of American society believes. Nor does the idea that religious adherents are “sincere” or “of good character” justify their exemption from the foundational norms that society otherwise establishes. As cases involving religious exemptions from same-sex marriage laws, land-use laws, employer-mandate laws, vaccination laws, and others are litigated, the costs of religious exemptions for the rights of others are becoming increasingly apparent. The inquiry must be one of achieving justice, and justice is an inquiry in which the interests of all must be equally and seriously considered.

Keywords: free exercise of religion, religious exemptions, same-sex marriage laws, religion and land-use laws, religion and vaccination laws, religion and employer-mandate laws, religion as a good in itself, role of sincerity in religious exemption cases

Suggested Citation

Underkuffler, Laura, Should the Religious Be Exempt? Questions of Justice, Character, and the Maintenance of Norms (February 26, 2018). Criminal Justice Ethics, Volume 37, 2018 - Issue 1, Cornell Legal Studies Research Paper No. 20-11, Available at SSRN: https://ssrn.com/abstract=3544881

Laura Underkuffler (Contact Author)

Cornell University - Law School ( email )

322 Myron Taylor Hall
Ithaca, NY 14853
United States
(607) 255-1245 (Phone)
(607) 255-7193 (Fax)

HOME PAGE: http://ww3.lawschool.cornell.edu/faculty/faculty_cvs/Underkuffler.pdf

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
34
Abstract Views
216
PlumX Metrics