In a universe where secularisation has been accompanied by religious pluralisation and increasingly ambitious equality legislation, new problems of adjudication arise where the boundaries of religious freedom – guaranteed in all democratic states – have to be defined. In the US, the Supreme Court has had to wrestle with interpreting demands for religious exemptions case by case against Delphic constitutional clauses and the Religious Freedom Restoration Act 1993 (and its state replicants), itself inspired by judicial refusal to exempt Native American usage of peyote from drug laws. This volume records (together with two contributions from Canada) the attempts by American legal and political philosophers to develop theories of general applicability and guidance. If at times the 14 chapters seem occasionally to exude – albeit with a Rawlsian edge and Leiter dressing – the musty odour of ancient scholasticism, the issues are by no means academic and, indeed, are sometimes urgent. The most frequently granted religious exemption in the US is from public vaccination programmes, the effect of which – for example, in New York – has been to endanger herd immunity from measles.
Most contributions stem from a 2015 conference on the scope of religious exemptions held at the Philosophy Department of Bowling Green University, Ohio. Unsurprisingly, they display a range of views. On the one hand, Jocelyn Maclure (Chapter 1) – Charles Taylor's co-author of Secularism and Freedom of Conscience (2011) – argues that ‘there is a special category of interests that humans have that has more normative weight and that deserve special legal treatment’ (p 11), defending his position against Cécile Laborde's criticism that it involves collapsing religion into a lesser concept of conscience. On the other hand, Andrew Koppelman (Chapter 9) thinks that the American tradition of freedom of religion rests on a controversial conception of the good: namely that religion is valuable and that legal rules ‘should be crafted to protect that value’ (p 165), adding that ‘Free expression and disestablishment, at least in the US, are both devices for promoting religion’ (p 168). Other contributions explore, for example, aspects of how far religion can be regarded as deserving special consideration; the extent to which religious schooling should be permitted to opt out of common public socialisation; judicial sincerity testing; vaccination; and criticism of a Canadian Supreme Court split-majority decision to refuse a sexual assault accuser the anonymity of wearing a niqab, contrary to the expectation that a trial should be able to access witnesses’ demeanour.
There is no discussion of European or European Court of Human Rights jurisprudence though there is awareness that the religious protection afforded by the 1951 European Convention is virtually identical with that of the UN International Convention on Civil and Political Rights, and there is a passing reference to the 2000 UK Terrorism Act. While the legal environment may at first sight seem alien, the problems discussed are not – even bakers are mentioned – and it is not difficult to discern the shared common law roots.
Ultimately, the collection does not settle on agreed common positions, though – to this reader at least – there seems a mind to be critical of exclusively religious claims for exemption within a debate attempting to find ways of accommodating religious exemptions which do not subvert the principles of liberal democracy itself. The collection is recommended as an accessible and thoughtful contribution to that debate.
