We are grateful for the historical and constitutional perspective that William Galston brings to his stimulating response. He does not dispute our charge that the present regime of religious accommodation rests on philosophically unsound arguments. Instead, he says this is irrelevant because “a philosophical question is not the same as a constitutional question.” But surely we should prefer a constitutional order based on defensible assumptions to one based on indefensible assumptions. If something like Eisgruber and Sager’s Equal Liberty approach is justified, then such an understanding of our constitutional order is available to us.
We argued against accommodation not just on philosophical grounds, but on the legal and moral grounds that it conflicts with the Establishment Clause, treats citizens unfairly, and violates individual rights. Equal Liberty insists that the treatment of religious practice under the law must be guided by principles of nondiscrimination, neutrality, and general liberty that apply to all citizens. By putting equal rights first, it interprets the Free Exercise norm in a way that protects the legitimate freedoms of the religious without privileging any claims of conscience simply because they are associated with “religion.” Thus, Equal Liberty brings greater coherence to the constitutional treatment of religion.
Galston fails to offer an alternative that addresses the problems of fairness and individual rights. He sees the wisdom in extending the zone of accommodation to secular moral claims in the Seeger and Welsh cases, citing the (suspiciously philosophical) rationale that in these cases, the convictions of conscience impose “binding obligations” that “shape individual identity.” Why won’t he follow us to the conclusion that the law should reflect the non-religious rationale for accommodation? Because, he says, “religion provides the paradigm for that zone.” This is not unlike saying that combat roles in the military should be denied to women—instead of being denied to anyone who is not combat-ready—because men provide the paradigm of combat-readiness. We well recognize that religion has a traditional monopoly on claims of conscience. That is precisely the problem.
There is little comfort in the assurance that the courts have been “perfectly capable of distinguishing legitimate and counterfeit conscientious claims.” With so many blanket, presumptive exemptions for those who claim affiliation with a mainstream religion, there is not nearly enough distinguishing going on. There is no reason to think that equality-based alternatives must run afoul of Scalia’s anarchy of conscience. The genuine worry over anarchy is that the “compelling state interest” standard is too high, not that we cannot distinguish between those citizens who deserve some relief from a burdensome law and those who do not. We do distinguish, and we must. But we must not do so merely in virt...
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