A Democratic Equality Approach to Religious Exemptions

A Democratic Equality Approach to Religious Exemptions Jon Mahoney In this paper I defend two claims. The first is that states should not favor religious over nonreligious values when citizens ask for a special accommodation or exemption from law or policy. The second is that a democratic equality approach to exemption claims is superior to those conceptions that support creating a special legal category for religious values. The position I support differs in some respects from other liberal positions in the exemption debate. For instance, both Martha Nussbaum and Kent Greenawalt claim that the state should create special legal categories for religious values. In Liberty of Conscience: In Defense of America’s Tradition of Religious Equality1 Nussbaum defends this position by purporting to show that religious convictions affirm intrinsic values. In Religion and the Constitution2 Greenawalt is neutral on the issue of whether religious values have intrinsic merit yet he argues that religious values should be given preferential treatment when exemption claims are made for legal reasons, including case law and prevailing interpretations of constitutional norms. These works are typical in that they combine claims about American constitutional law and legal interpretation with claims about liberal political theory. My approach to the issue will focus on political values, most importantly democratic equality, and reference to legal cases will stress features of these cases that bear on a view about egalitarian liberalism. The concept “democratic equality” is one that is widely shared within the liberal tradition. Thus it is important to be clear about which conception of “democratic equality” is motivating claims about political morality. In this paper I am applying a left-liberal or egalitarian conception of democratic equality to the topic of exemption claims. Here I state the main idea that will be used throughout the paper. On the egalitarian view, democratic equality imposes both formal and substantive requirements.3 The essential formal requirements include equality before the law and equal treatment. The essential substantive requirement is access to material resources (e.g., education, healthcare) that are essential to meaningful liberty. This way of qualifying “democratic equality” matters because, for instance, many libertarians will agree with the formal but not substantive features to the egalitarian position defended here. The egalitarian position emphasizes the claim that substantive requirements are just as important for justice as the formal requirements. The position I defend applies this conception of democratic equality to the topic of religious exemptions. Part I examines one of the most well-known exemption cases from American constitutional law, Wisconsin v. Yoder.4 In Yoder the Court affirmed a legal JOURNAL of SOCIAL PHILOSOPHY, Vol. 42 No. 3, Fall 2011, 305–320. © 2011 Wiley Periodicals, Inc. josp_1531 305..320 306 Jon Mahoney exemption from state education policy for Old Order Amish. I consider some claims in favor of Yoder. My own position is that the Court’s decision is not compatible with democratic equality. I also present an argument against the claim that religious exemptions are justified on the grounds that religious values have special properties which nonreligious values lack. I then propose an alternative way to frame the exemption issue that is consistent with democratic equality. In Part II I consider and respond to the claim that “liberal neutrality” is the primary political value that should guide exemption policies. I. Wisconsin v. Yoder and Democratic Equality Wisconsin v. Yoder is a paradigm example of a religious exemption case because the Court explicitly affirmed an exemption that was exclusively granted to a religious group. In the early 1970s Wisconsin law required that all residents receive an education up to the age of sixteen—or tenth grade in the American education system. However, common practice for Old Order Amish is for children to finish education at the age of fourteen, or the eighth grade. There are about ninety thousand Old Order Amish in the United States today.5 The Amish filed a suit against Wisconsin and won in the Supreme Court in a six to one (partial dissent) decision. The Majority argued on “free-exercise” grounds that the Amish have a constitutionally protected right to refrain from providing their children more than an eighth grade education. The Majority opinion is based on three claims. First, precedent favors the Amish. Among other instances of accommodation, granting conscientious objector status to Quakers and Mennonites has for many years been regarded as sound constitutional law. Second, the burden which education law imposes on Old Order Amish is too severe. Compliance with Wisconsin law will threaten the Amish way of life. In Justice Berger’s words, “the Old Order Amish daily life and religious practice stem from the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, ‘be not conformed to this world’.”6 A religious practice based upon convictions such as this one cannot flourish if the practice must conform to state education policy. Third, Amish educational practices are consistent with the state’s interest in securing access to education for each citizen. This claim is crucial to the argument, because if true, it would establish that the state can accommodate the Old Order Amish’s educational practices without compromising on requirements of justice, such as fair equality of opportunity. Justice Douglas emphasizes the impact of Yoder on children in his lone (partial)7 dissenting opinion. On his view, the Majority decision enables Amish parents to impose religious beliefs on their children to a far greater extent than can non-Amish parents. Children who are fourteen or younger do not have the capacity to make fully informed choices about what to believe, how to live, and so on. Therefore, a religious exemption in this case will have the following in-practice implication: Amish parents will be able to “impose [their] notions of religious A Democratic Equality Approach to Religious Exemptions 307 duty upon their children.”8 In some sense this is true in every family. But most children are exposed through education and other resources to alternative views about the good life and thus are more likely to be able to make up their own minds about how to live. In this respect, Douglas’s objection converges with an idea famously presented in Rawls’s liberty principle: “each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberties for all.”9 A child whose formal education ends at the eighth grade in order to increase the likelihood that she will adhere to her parent’s religious convictions does not enjoy the opportunities to develop a capacity for liberty that other citizens are provided. Moreover, individual political rights are not rights of authority over others;10 the right to religious freedom is limited by the reasonable idea that the effects of one’s religious practices on others can be limited to uphold other’s equal right to religious freedom. The democratic equality approach to religious exemptions will add some considerations that are not central to Douglas’s critique of the Majority argument. The conception of democratic equality that I favor is based on the idea that an egalitarian society is one where each citizen is—to quote Elizabeth Anderson— “guaranteed effective access to their social freedoms. . . .”11 Among other things, this requires “a community in which people stand in relations of equality to others.”12 Some implications of this understanding of democratic equality are that it “aims to abolish socially created oppression”; “it views equality as a social relationship”; and it “regards two people as equal when each accepts the obligation to justify their actions by principles acceptable to the other. . . .”13 These ideas can be assembled in favor of a democratic equality approach to religious exemptions. On this view exemptions will not be permissible if granting them will conflict with the formal and substantive requirements of democratic equality. Egalitarians argue that children have a right to an equal opportunity for success in life. The idea of a successful life is by itself rather vague and thus some qualifications are needed.14 From the standpoint of democratic equality there are two central ideas that are relevant to qualifying what is meant by an opportunity for a successful life. One is that citizens have a right to a range of options that can be pursued in ways that are compatible with liberal values. In other words, citizens have a right of access to opportunities compatible with others’ rights. This includes, of course, a right to choose for oneself a religious identity that falls outside the mainstream culture. Second, citizens cannot reasonably expect preferential treatment when such treatment would impose unfair burdens on others. As others have argued, this is how the egalitarian position addresses citizens with eccentric or “expensive tastes.”15 This way of framing a right to fair opportunities provides the egalitarian response to an Amish parent who claims that her conception of success in life is unfairly denigrated by official education policy. In the context of an affluent society an equal opportunity for success requires at least a high school education, one that adequately prepares citizens for university should they chose to pursue a secondary degree. From this perspective, the Majority affirms a parent’s right to religious freedom at the expense of a child’s 308 Jon Mahoney right to equal opportunity. By contemporary standards, to claim that an American citizen whose formal education ends at the eighth grade level has a reasonable opportunity to stand in a relation of equality to other citizens, both in terms of political influence and opportunities for meaningful labor, cannot be justified. Among other factors, “[a]ccess to elite status is largely governed by attainment of a four-year college degree, reflecting success in a curriculum demanding enough to prepare students for postgraduate (professional) education.”16 The egalitarian approach does not entail that citizens are entitled to a university education, let alone a postgraduate degree. Citizens are entitled to fair access to secondary education. This can only be secured by an education that will prepare students for a university education should they choose to pursue one. Access to adequate educational opportunities is one of the ways that a just society tries to honor the idea that citizens should be able to interact as citizens with equal status.17 To deny this in the contemporary American context is to ignore one significant way that the basic structure of society can undermine equality of opportunity. If a citizen is deprived of the education that is required to enter university then her ability to achieve a middle class status, let alone elite status, is seriously diminished. To summarize, the democratic equality approach entails that Yoder was wrongly decided for two reasons. One is that the Court affirms an implausible conception of religious liberty. The second is that the Court fails to affirm the right to fair equality of opportunity. These points are connected. Religious freedom for all requires a commitment by the state to ensure that individuals can make fully informed, free and uncoerced decisions about what to believe regarding religious matters, and more generally, conceptions of the good, religious or otherwise. Had the Court been guided by an egalitarian interpretation of liberal values it would have denied the argument in favor of an exemption from official state policy. In fact, the Court would have done a better job at defending religious freedom if it took more seriously the rights of children which in this case include the right of access to resources and opportunities the absence of which deprives citizens of meaningful liberty. The Amish exemption provides a legal basis for denying Amish children access to the all purpose means that are essential for cultivating meaningful religious liberty. One can claim without hyperbole that the Yoder Court unwittingly sanctioned a legal principle that results in some American citizens being subject to a form of cultural oppression. Had the Court denied the exemption from state education policy it could have affirmed a good means (i.e., a state policy designed to ensure equal access to a primary social good) to a good end (i.e., democratic equality). One might try to rebut these objections to Yoder by claiming that children growing up in an Old Order Amish community will have a fair opportunity to decide for themselves how to live. If this were true, and if other central liberal values were not violated, then Yoder would have been correctly decided but not for the reasons presented by the Court. To vindicate Yoder in this way requires an assessment of the basic structure of society which would entail that all parents have a right to take their children out of school at fourteen. This option, however, A Democratic Equality Approach to Religious Exemptions 309 is implausible. Granted some uncontroversial facts about what kinds of resources citizens require in an affluent modern society, the claim that a child whose formal education ends at fourteen really does have a fair opportunity cannot be justified. There is another aspect to the Yoder decision, one that raises a different set of issues. In Yoder the Court grants special weight to the fact that the Old Order Amish way of life is jeopardized by the state’s official education policy. As other critics of Yoder have pointed out, this aspect of the argument in favor of the exemption runs counter to the value individualism that is among the fixed points in liberal theory.18 I do not want to repeat this well-known objection here, but the democratic equality approach to exemptions should consider a recent attempt to defend religious exemptions on the grounds that there is something unique to religious values. This argument in favor of religious exemptions has recently been defended by Nussbaum. Nussbaum endorses the legal conclusion in Yoder yet she adds some additional considerations in favor of religious exemptions that are not directly considered by the Court. In defense of Yoder, Nussbaum insists that On balance, the case was probably rightly decided, because the burden [imposed on the Amish] . . . was an extremely severe one, and the State certainly did not show a compelling interest that would be served by denying the exemption and that could not be served in some other non-burden-inflicted way. . . . At the margins, however, even an extremely strong public interest in education must yield before the overwhelming importance of religious free exercise.19 Nussbaum’s position is an interesting one. However, I will present three reasons to reject the claim that the political value of “religious free exercise” enjoys “overwhelming importance.” First, “religious free exercise” should be understood in light of other political values. An approach to religious exemptions will have illiberal implications if it ignores potential conflicts with fundamental liberal values and religious convictions. Second, a right of access to education is essential to an egalitarian society. In this respect, democratic equality provides a moral basis for limiting claims to religious freedom when accommodating such claims amounts to a state-sanctioned denial of fair equality of opportunity. A third reason is centered on the idea that religious exemption claims deserve preferential treatment because of the special nature of religious values. After defending the first two objections I will consider in more detail the idea that there is some special feature to religious values in virtue of which religious exemption claims deserve special treatment. One reason we should reject Nussbaum’s claim is because of its transparently illiberal implications. Liberty of conscience or the entitlement to religious freedom is not a right to forgo having to live by terms that others are morally obligated to follow. We might disagree about what these terms should be. Yet Nussbaum’s claim is formulated in a way that implies a presumption against having to live by terms that others are morally obligated to follow if one has a religious basis for rejecting these terms. The political values that justify state power also justify limits on practices and ways of life that some citizens affirm, 310 Jon Mahoney religious or otherwise. On the topic of justification for state power Nussbaum’s position has nonliberal implications because it gives a presumption in favor of religious convictions when they conflict with liberal values. Many liberals do accept the claim that when there is a conflict between a citizen’s convictions and state policy the burden should be on the state. We should accept this claim if we are liberals, egalitarian or otherwise. Yet there is more than one way to construe this claim. From one point of view, conflicts between religious convictions and liberal values place a greater burden on the state than conflicts between the state and other kinds of convictions. This is one problematic feature to the current status quo in American law. Moreover, as I try to show shortly, we can agree that liberty of conscience is a central political value without having to claim that religious values deserve special treatment when evaluating an exemption claim. Second, egalitarian liberals should insist that when a religious practice conflicts with a right of access to an essential resource, access to that resource should be secured by the state, even if doing so conflicts with a religious belief or practice.20 Yoder is incompatible with democratic equality because of its impact on children. This consideration rebuts Nussbaum’s contention that Yoder did not undermine a compelling state interest. Access to educational resources, especially when such resources are required to enable citizens to pursue a conception of the good under fair conditions, qualifies as a compelling state interest. According to the democratic equality conception states should be committed to avoiding a preventable kind of inequality that is permitted by Nussbaum’s position. The inequality in this case consists of the fact that children of Old Order Amish lack access to educational resources and the many opportunities associated with such resources. A democratic equality approach will insist that exemption claims be examined in light of liberal values, most especially, democratic equality. The Yoder decision is an example of how liberal values can be compromised if one grants special status to religious values, simply because they are religious values. On my view, this is a reason to deny that states should treat religious-based exemption claims as a special case. However, to fully make the case for this position we need to address the thesis that religious values are a unique kind of value and that this justifies preferential treatment for religious exemption claims. One might defend the view that exemption claims that appeal to religious values are a special case. Here I consider some problems with this position. Establishing that religious values are not entitled to preferential treatment in the context of evaluating exemption claims does not require showing that religious values lack intrinsic merit. The following three considerations are sufficient. First, that a conviction affirms an intrinsic value is not sufficient to justify creating a special category for religious exemption claims. A second is that we should be skeptical of attempts by government to provide a standard for what counts as a religious conviction. Third, an approach to the exemption debate that highlights conflicts between moral claims by citizens and the purported authority of government is preferable to one that favors creating a special legal category for religious values.21 A Democratic Equality Approach to Religious Exemptions 311 Egalitarians will support interpretations of state policy which seek to accommodate religious practices in the most generous manner possible, provided of course that such practices do not undermine citizens’ entitlement to equal treatment and secure access to social primary goods. It is important to be clear on why this is the correct way to frame the issue. In claiming that democratic equality is central to a liberal position on religious accommodation one can avoid difficulties that arise from a position that gives special weight to religious values. For example, on my view, whether religious values have intrinsic worth is beside the point in the following sense: there may be lots of kinds of intrinsic value ranging from aesthetic, to play, to eudaimonia. If these values have intrinsic merit these values should be considered in our deliberation about policies that affect those who want to pursue them. We should respect others’ right to pursue activities that are based on a commitment to intrinsic values, provided that engaging in such activities does not violate others’ right to the same or undermine others’ entitlement to fair equality of opportunity. Yet “respect for intrinsic values” is not the only consideration here. State policies that attempts to “respect intrinsic values” may in doing so compromise other political values. For instance, if the state affirms that some kinds of intrinsic value (such as religious value) are to be given preferential treatment over other kinds of intrinsic value (such as nonreligious moral values) then it takes unfair sides against some of its citizens. By giving preferential treatment to citizens who make exemption claims on religious grounds the state imposes a special burden on citizens who make exemption claims on grounds of nonreligious yet intrinsic value. Not all burdens are unfair, of course, yet those that distribute burdens in this way are unfair. For example, two citizens can present two different kinds of exemption claims against the same policy. If one exemption claim is religious and the other is not then a state that gives preferential treatment to the religious exemption claim is not treating both citizens as equals. So a fair assessment of exemption claims must rest on something other than an appeal to the intrinsic value of religious convictions. One might offer an argument for ranking types of intrinsic value and then try to show that religious value should be ranked higher than the other kinds of intrinsic values such as happiness or human flourishing. Yet this requires a more fine-grained distinction than one that sorts values into intrinsic and non-intrinsic values. Below I address this point by showing how an approach to the exemption debate should give preferential treatment to moral values rather than religious values. There is a second problem with the view that states should develop a special legal category for religious values. In order to defend the claim that religious value is a special case of intrinsic value we need to answer the question, “what is a religious conviction?” which in turn presupposes that we know that religious convictions have properties which nonreligious convictions lack.22 Neither courts nor philosophers have provided a clear answer to this question.23 To illustrate this concern, here is an example of what can go wrong when courts do try to provide criteria for religious belief. In Smith v. Board of Education of Mobile,24 the State Supreme Court of Alabama argued that secular humanism 312 Jon Mahoney qualifies as a religion because the beliefs of its proponents satisfy reasonable criteria for deciding whether a belief is religious or not. One criterion is, “makes a statement about supernatural existence.”25 An obvious problem with this criterion is that some religious citizens can reasonably resent having their convictions classified as religious in this way. The Alabama Court might respond by stating that in so far as the Buddhist, for instance, “makes a statement about supernatural existence” she qualifies as holding a religious belief even if her belief consists of the claim that as a Buddhist she denies the existence of a deity. This is one way to try to classify beliefs as religious yet there is little doubt that many people who construe their own beliefs as religious will take exception to having their convictions classified by the state in this manner. Moreover, someone who wants to defend this approach will face some additional problems that are considered presently. The Alabama Court conflates the difference between a belief that expresses an attitude about religion such as “the claim that there is a supernatural being is unjustified” with a belief that expresses a religious conviction in the colloquial sense such as “there is a supernatural being.”26 In other words, the Alabama Court seems to be committed to claiming that a broader conception of “belief”—beliefs that express attitudes about religion—are from a legal point of view equivalent to a narrower conception—beliefs that endorse specific religious propositions. Notice that if we accept the Alabama Court’s view, then it follows that an atheist has a religious conviction simply because she denies the existence of a supernatural being. There is a big irony here. Were this to become the legal standard for what counts as a religious conviction an atheist would now be entitled to make religious-based exemption claims on First Amendment grounds! Atheists and many non-atheists will rightly reject any such proposal, in part on the grounds that there is a difference in kind between someone who affirms what she takes to be a religious conviction and someone who denies what she takes to be a religious proposition.27 Nussbaum is not as careless as the Alabama Court. In her discussion of the question, “Should religion be special?”28 Nussbaum makes an interesting proposal. On her view, rather than trying to define religious values in terms of the content of someone’s beliefs we should instead focus on the attitude of the agent and her faculty of conscience . . . religion concerns what we might call ultimate questions, questions of life and death, the meaning of life, life’s ethical foundation, and so forth. This goes in the right direction, proposing at least one of the central criteria we ought to consider; my own approach will follow this line.29 Nussbaum claims that the faculty of conscience demands our moral respect in the same way that, for example, a Kantian claims the capacity for autonomy demands our moral respect.30 She also claims that by resting the case for religious toleration on this thesis, her own liberal position can explain why “nonreligious” convictions do not carry the same moral weight when they conflict with state power. On her view, the “overwhelming importance of religious free exercise”31 is warranted by the fact that religious belief is deeply personal, riveted to the core of an agent’s A Democratic Equality Approach to Religious Exemptions 313 identity; as an expression of one’s conscience, one’s religious beliefs enjoy a special status which both the state and citizens have a moral obligation to acknowledge.32 Nussbaum’s proposal is clearly preferable to the Alabama Court’s proposal. For one thing, her conception of religious belief is not objectionably narrow. Moreover, Nussbaum presents a clear statement for why she thinks a religious conviction merits respect; namely, we respect the capacity for religious conviction without having to take sides on the content of the religious beliefs that people affirm. Yet a serious problem remains. If “religious conviction” rather than “moral conviction” is the crucial designation, then an unfair slant is built into the model of accommodation. When Nussbaum struggles with this point, her proposal is needlessly cumbersome. In a well-known Supreme Court decision, U.S. v. Seeger, the Court granted an exemption from military service even though the plaintiff explicitly claimed he did not have religious reasons for his exemption claim.33 In this case Seeger argued that he should be granted conscientious objector status during the Vietnam War for his moral convictions, convictions that were explicitly presented as nonreligious. The Court granted Seeger an exemption, noting that his beliefs, though not religious in any familiar sense, were important to his moral self-understanding in ways that are sufficiently similar to the convictions of those who make religiously motivated claims in favor of exemption from military service. Nussbaum claims that the Court made the right decision in Seeger.34 One way to develop an argument in favor of Seeger is to claim that exemption claims that rest upon moral convictions deserve careful consideration. This is promising. This proposal for why we should agree with Seeger, in contrast to the view that religious values deserve special treatment, need not impose an unfair burden on nonreligious citizens who have moral grounds for an exemption claim. Yet this approach is also not consistent with a view that insists on the “overwhelming importance of religious free exercise.” For this reason Nussbaum’s endorsement of Seeger illustrates an ambiguity in her position on the exemption issue. At times she claims that secular reasons are entitled to exemption status. At other times, however, Nussbaum goes to great lengths to defend the claim that there is something special about religious convictions because they are religious convictions. In her defense, Nussbaum does claim that “[t]he messy way seems the best way, all things considered, although we should grant that it is a pragmatic solution and not ideal theory.”35 It is correct to claim that the exemption issue is one that must be conducted from the standpoint of nonideal theory. However, an exercise in nonideal theory does not preclude clarity on such questions as, “should states give preferential treatment to religious exemption claims?” Nor does it require substituting pragmatic for moral solutions to difficult problems. The history of American constitutional law is replete with examples of arguments and positions that cannot be defended by moral principles. There is a better way for liberals to approach the exemption issue. 314 Jon Mahoney Nussbaum defends one more claim that is supposed to bolster the case for creating a special legal category for religious convictions. In addition to claims about the faculty of conscience, there are, in her words, “pragmatic and historical arguments for giving religion a special place.”36 The most important of these arguments is that religious minorities have been singled out for oppression and discrimination. This is true. Yet this fact by itself does not provide support for the claim that religious exemption claims are entitled to preferential treatment. People have been targeted for oppression and discrimination for lots of types of belief, including beliefs about politics, science, sexual orientation, and art. One can easily make a depressing list of folks who have been tormented by states because of their nonreligious beliefs. More importantly, however, the moral basis for wanting to protect persons from unjust treatment because they face a threat of oppression for their beliefs is that each citizens has a moral claim against such treatment; and this moral claim does not depend upon having to show that there is something special about religious convictions. Moral claims, unlike claims that appeal to nonmoral values, make an especially strong demand on how government exercises its power. Some religious values are also moral values and thus these religious values should be taken seriously in the exemption debate. Equally important is the qualification that not all intrinsic values can serve as grounds for legitimate claims for a legal exemption. A street puppeteer might be engaged in a practice that has intrinsic aesthetic value. Yet we do not want to say that when his decision to exercise his craft conflicts with state policy, for example a noise ordinance, his demand for an exemption should be taken just as seriously as Seeger’s exemption claim. The focus should be on purported conflicts between moral values and official state policy. This is more inclusive than an approach that gives preferential treatment to religious values; and this is the right kind of inclusiveness because exemption standards that track moral beliefs will focus on the right kind of value while doing so in a way that is not objectionably exclusive, which is one consequence of an approach that favors preferential treatment for religious exemption claims. If we reject the claim that religious convictions should be given preferential treatment when they conflict with state policy, it is possible to defend a principled position regarding exemptions that does not require circumlocution to defend Seeger. The democratic equality approach is fair; it is also immune to the problems that beset Nussbaum and the Alabama Court; and it shows how we can defend a liberal view about exemptions that does not invite the state to adopt policies that will undermine some citizens’ equal political status. At this point someone might claim that the democratic equality approach to exemptions is just as unfair as an approach that gives preferential treatment to religious values.37 Why, she might ask, should nonmoral claims not qualify as reasonable exemption claims? This is an important question. One response that will be important for a liberal position is that when there is a conflict between a moral and a nonmoral claim, the moral claim will enjoy priority. To deny this would be akin to claiming that the reasonable and the rational or categorical and A Democratic Equality Approach to Religious Exemptions 315 hypothetical imperatives have equal authority. There are some philosophers who hold this view yet their position cannot be reconciled to a liberalism based upon a set of moral values. However, it does not follow from this that exemption claims that invoke nonmoral values should never be accommodated. Here we can draw a distinction between an exemption claim that should be accommodated as a matter of justice and an exemption claim that it is permissible to accommodate. In this paper I am focusing on exemption claims that should be accommodated as a matter of justice. Seeger’s position is an example of this kind of exemption claim. The democratic equality approach as I am presenting it is compatible with the claim that some exemptions for citizens who wish to pursue nonmoral values is permissible, provided of course the pursuit of such values does not violate principles of justice. On this point I agree with Quong who states that some exemptions are permissible but not required because “the laws in question do not concern basic principles of justice. . . .”38 Yet only claims that invoke moral values can support the judgment that an exemption is morally required. There is a lot more to say about conflicts between the state and the convictions held by citizens, but the main claim I defend here is this one: equal standing between citizens will be undermined if exemption claims that appeal to religious values are given preferential treatment over claims that appeal to moral yet nonreligious values. In defending this claim I have tried to show that sometimes equality will require that citizens make compromises on their religious values. For example, an affluent society like the United States can more than afford to provide each of its citizens with access to a primary education adequate to pursue a university degree.39 Some Old Order Amish children are denied this opportunity. For the state to accommodate the religious convictions of parents who wish to prevent their children from having access to the education required for the pursuit of a secondary education is unjust in the contemporary American context. Unequal access to education, among other resources, erodes the bases for self-respect and the fair opportunity that is enabled by meaningful liberty. Barriers to equality usually correlate with a range of factors—for example race, class, and gender. I am not claiming here that unequal access to education as a result of Yoder is the most egregious example of injustice imposed by the Supreme Court; it is just one example. Egalitarian liberalism tells us that political society falls short of justice when the well-off benefit while the less well-off face burdens which diminish their prospects. No contemporary egalitarian liberal philosopher claims to be in favor of public policies that are complicit in causing inequalities that track race, class, or gender. In this paper I have argued for a position that tries to extend this commitment to democratic equality to the topic of state policy on religious exemptions. II. An Objection to the Democratic Equality Approach to Exemption Claims In this section I briefly consider an objection to the view defended above. Many readers will raise questions about the democratic equality approach by 316 Jon Mahoney appealing to the idea of liberal neutrality. I consider two ways that liberal neutrality might be used to argue against the democratic equality approach to exemptions. The first is based on a classical rather than egalitarian conception of liberalism. The second is the claim that states should adopt neutrality standards to adjudicate conflicts between citizens and the state because this is a fair way to handle exemption claims. I cannot fully address the debate between classical and egalitarian forms of liberalism in this paper. Yet one way to evaluate two competing conceptions of a tradition in political philosophy is to consider the practical implications for each. In this limited sense, a response to the classical liberal conception of neutrality will be offered. The second objection can be met by showing that neutrality standards are consistent with the democratic equality approach, provided such standards are subordinate to democratic equality. Some liberals defend the claim that political power should be based upon liberal neutrality. This is required by the Lockean thesis that each citizen has a liberty right against unjustified coercion.40 On this view, instead of evaluating an exemption claim from the standpoint of democratic equality, we could ask, can a citizen reasonably reject the policy in question on the basis of an inalienable liberty right? Liberals of this persuasion emphasize the idea that liberalism stands for limited government and that liberal neutrality is the best way to evaluate policies in light of this idea.41 If one leans toward libertarianism, one will argue that Yoder is problematic because it affirms the value of a way of life and because it does not sufficiently recognize the right to freedom of conscience enjoyed by children. On this important but narrow point, there will be agreement between the democratic equality and classical liberal positions. Nevertheless, there will be a fundamental disagreement on other points that are also fundamental to the two positions. For instance, the libertarian leaning classical liberal will emphasize that liberal neutrality prohibits government from imposing the education policies that are challenged in Yoder. The democratic equality conception and the classical liberal view will differ over whether justice authorizes states to enforce policies that promote goods such as education. The democratic equality view claims that access to educational resources is essential to meaningful liberty and thus that the state has the moral authority to require of all parents that children receive an adequate education. Some liberals will deny this because they believe that states do not have the moral authority to secure access to education, among other goods, by coercive means. The classical liberal who appeals to liberal neutrality in this debate will affirm a position on state policy that is consistent with a range of inequalities, including inequalities in access to educational resources. By contrast, the egalitarian position claims that states have the authority to actively dismantle sources of inequality when doing so can be achieved in ways that are consistent with fair equality of opportunity. This is a compelling reason to reject the idea that liberal neutrality is the fundamental value that liberals should appeal to in their proposal on how to handle exemption claims. The democratic equality approach to the exemption debate tries to show that an egalitarian position is well-suited for dealing with the A Democratic Equality Approach to Religious Exemptions 317 debate over legal exemptions. The analysis of Yoder offered above is an illustration of this idea. Many contemporary discussions of democratic equality focus on such topics as the regulation of markets, the distribution of primary goods, access to essential resources such as healthcare and education, and race.42 Those persuaded, as I am, that we should reject the claim that liberal neutrality limits state power to affirming a formal but not substantive conception of equality in each of these areas should reject a classical liberal approach to exemptions on the same grounds. There is of course an ongoing debate within liberalism about which conception, the egalitarian or the classical liberal, represents the best version of liberalism. In this paper I have addressed only a small part of this debate by focusing on one problem for liberal theory, namely, legal exemptions for citizens with moral convictions that conflict with state policy. There is a second way that liberal neutrality can be defended. On this view, liberal neutrality is said to serve the dual aims of conflict avoidance, a necessary condition for political stability, and the fair accommodation of reasonable beliefs and practices, a necessary condition for justice and stability for the right reasons. Provided one is clear about the moral basis for neutrality standards, this way of defending liberal neutrality is consistent with the democratic equality approach. On this view, policies based upon the idea of “neutrality” are justified when they are means to realizing democratic equality. Here are some examples. A democratic equality conception can claim that a neutrality test for interpreting the Establishment Clause of the American First Amendment or for construing legal principles such as the Lemon Test for religious endorsement or for evaluating reasons citizens present in political argument, is justified on egalitarian grounds.43 For example, one prong of the Lemon Test from American Constitutional law is that a law or policy must advance a secular purpose.44 On the egalitarian view, we say that securing equal status for citizens is essential and that one means to achieving this is to protect citizens from being coerced by public policies that promote religious convictions. Policies that amount to a public endorsement of a nonpublic reason—where “nonpublic” includes value claims that cannot serve as a shared basis for fair moral terms for cooperation—violate neutrality tests such as Lemon. This way of defending neutrality standards can be illustrated by considering another, more recent example. In Kitzmiller v. Dover45 Judge Jones II argued that an official state policy that requires public schools to inform students in biology class that there is a scientific alternative to evolutionary theory is unconstitutional. One way to defend this claim is to show that the policy under judicial review fails the neutrality test as articulated in Lemon. Earlier I tried to show that Yoder was wrongly decided because it violates the ideal of democratic equality. Some liberals will wonder why the objection was not presented by invoking the idea of neutrality. On the democratic equality view liberal neutrality does not support Yoder because the state should not be neutral toward the claim that a child whose education ends at the eighth grade level is sufficient. Egalitarians claim that government can legitimately make some value judgments 318 Jon Mahoney about goods such as education. Enforcing policies that reflect these judgments is justified when they conflict with citizens’ judgments to the contrary. As with the examples just mentioned, the democratic equality approach will emphasize what it regards as a value that is more important than neutrality; namely, that even when neutrality standards are relevant to assessing exemption claims and policies that impact religious convictions, these standards should be understood as designed to protect citizens’ entitlement to equal standing in the political community. On this view, neutrality is not to be valued for its own sake, but rather, neutrality standards are appropriate when they serve the aim of democratic equality. III. Conclusion In this paper I have argued that Yoder is illustrative of an approach to the exemption issue that should be rejected by egalitarian liberals. I have also defended the claim that the exemption issue should be construed in a way that focuses on conflicts between moral convictions affirmed by citizens and the purported moral basis for political power. Giving preferential treatment to religious values when exemption claims are made is unfair toward nonreligious citizens and results in state policies that are illiberal. The exemption debate should be focused on the issue of whether we should favor limiting state power when it conflicts with the moral beliefs of a citizen; this conflict and not the religious (or nonreligious) nature of the belief is what matters. One promising feature of this approach is that it does not distort liberal values by holding them hostage to a parochial tradition of First Amendment interpretation and the case law that is rooted in this tradition. Instead it begins by asking, “how should a state that professes a commitment to democratic equality evaluate exemption claims?” This of course is a political philosopher’s and not a lawyer’s question. I hope I have made some progress in exploring some dimensions of this question. Finally, notice that none of my claims presuppose that religious values do not have intrinsic value. This is important to stress because we all know that liberals are sometimes accused of being anti-religious. Some liberals are anti-religious but liberalism is not. Liberal values do not need to be rescued from an anti-religious bias. Nevertheless, liberals should ensure that in their presentation of political values they do not lend credence to the misguided judgment that liberalism is somehow intrinsically hostile to religious values. I have tried to show in this paper that democratic equality requires an approach to the topic of accommodation and exemption that is more inclusive than one that gives a special place to religious convictions. The claim that moral convictions are what matter in this context cannot be construed as for this reason anti-religious. I thank two reviewers for this journal along with John Edxell, Amy Lara, and Jim McBain for very helpful comments and suggestions. Earlier versions of this paper were at presented at the Second International Peace Conference, Bogazici University, Istanbul, June 2009; the 24th World Congress on Law and Social A Democratic Equality Approach to Religious Exemptions 319 Philosophy, Beijing, September 2009; Pittsburg State University, Pittsburg, Kansas, November 2009; and at the 29th Kansas Philosophical Society meeting, University of Kansas, Lawrence, Kansas, February 2010. I thank each audience for helpful comments. Several talks for students on topics directly connected to the position defended in this paper also resulted in helpful comments and discussions. For their informative input I thank students at the International University of Central Asia, Tokmuk, Kyrgyzstan, March 2011; the American University of Central Asia, Bishkek, Kyrgyzstan, March 2011; and al-Farabi Kazakh National University, Almaty, Kazakhstan, April 2011. Final revisions on this paper were made during a Fulbright grant period in Bishkek, Kyrgyzstan. I am grateful to the Fulbright Program for this support. None of the claims I defend here represent those of the U.S. Department of State. Notes 1 Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2007). 2 Kent Greenawalt, Religion and the Constitution, Vol. 1: Free Exercise and Fairness (Princeton, NJ: Princeton University Press, 2006); Religion and the Constitution, Vol 2: Establishment and Fairness (Princeton, NJ: Princeton University Press, 2008). 3 This conception of equality has recently been defended by Elizabeth Anderson, The Imperative of Integration (Princeton, NJ: Princeton University Press, 2010) and Deborah Satz, Why Some Things Should Not Be For Sale: The Moral Limits of Markets (New York: Oxford University Press, 2010). 4 Wisconsin v. Yoder 406 US 205 (1972). 5 Nussbaum, Liberty of Conscience, 141. 6 Ibid. 7 Douglas agreed with the Majority that state education policy is at odds with religious convictions that are central to Old Order Amish yet thinks the Majority goes too far in giving parents authority over their children’s educational opportunities. 8 Wisconsin v. Yoder. 9 John Rawls, A Theory of Justice, Rev. Ed. (Cambridge, MA: Harvard University Press, 1971/1999), 266. 10 This claim has a long history in liberal thought. For example Locke famously claimed that all persons are equal “in respect of jurisdiction or dominion one over another. . . .” (quoted in Joshua Cohen, “Structure, Choice and Legitimacy: Locke’s Theory of the State,” in The Social Contract Theorists, ed. Christopher Morris (Lanham, MD: Rowman and Littlefield, 1999), 152. 11 Elizabeth Anderson, “What Is the Point of Equality?” Ethics 109, no. 2 (1999): 287–337, 289. 12 Ibid., 289. 13 Ibid., 313. 14 I thank an anonymous reviewer for helpful suggestions on this point. 15 Jonathan Quong provides a clear statement of this point when he claims, “. . . liberal rights and principles of justice are designed to give you a fair chance to pursue your conception of the good without denying that same chance to anyone else” (“Cultural Exemptions, Expensive Tastes, and Equal Opportunities,” Journal of Applied Philosophy 23, no. 1 [2006]: 54–71, 58). 16 This is arguably too weak a requirement in today’s context. See, for instance, Elizabeth Anderson’s “Fair Opportunity in Education: A Democratic Equality Perspective,” Ethics 117, no. 4 (2007): 595–622, 620. 17 Samuel Scheffler defends this idea of equality in “What is Egalitarianism?” Equality and Tradition (New York: Oxford University Press, 2010), 175–207. 320 18 Jon Mahoney Brian Barry, Culture and the Claims of Equality (Cambridge, MA: Harvard University Press, 2001), 176–93. Rawls defend the idea of value individualism in his argument that utilitarianism should be rejected because it does not take seriously the separateness of individuals. Rawls, A Theory of Justice, 19–24. 19 Nussbaum, Liberty of Conscience, 145. 20 Anderson, “What Is the Point of Equality?” 21 I thank an anonymous reviewer for helpful suggestions on how to present this claim. 22 For a good discussion of this problem see Brian Leiter, “Why Tolerate Religion?” Constitutional Commentary 25, no. 1 (2008): 1–28. 23 Greenawalt provides an excellent overview of attempts by American courts to define religious value in Religion and the Constitution, Vol. 1, 124–56. 24 655 F. Supp. 939 (S. D. Alabama. 1987). 25 Ibid. 26 Thanks to Amy Lara and Jim McBain for helpful suggestions on how to formulate this point. 27 Though not central to the main argument in the paper we should acknowledge that the problem of vagueness is a problem in many areas of law. Unless we want to reject the use of other widely accepted concepts such as “political speech” or “due care” or “cruel and unusual,” we should resist the temptation to embrace skepticism about legal concepts simply because they are hard to define. The case against skepticism in this context is most famously presented by H.L.A. Hart. Noting that concepts in natural languages have an open texture, Hart claimed that “uncertainty at the borderline is the price to be paid for the use of general classifying terms . . .” H.L.A. Hart, The Concept of Law, 2nd ed. (New York: Oxford University Press, 1961/64), 127. 28 Nussbaum, Liberty of Conscience, 164–74. 29 Ibid., 168. 30 Ibid., 164–72. 31 Ibid., 151. 32 For an argument against the strategy of linking the claim that religion is special to personal identity, see Sonu Bedi, “What Is So Special About Religion? The Dilemma of the Religious Exemption,” The Journal of Political Philosophy 15, no. 2 (2007): 235–49. I am taking a different approach here by focusing on the question, “what counts as a religious conviction?” 33 United States v. Seeger, 380 U.S. (1965). This case is discussed by Nussbaum, Liberty of Conscience, 171–72. 34 Nussbaum, Liberty of Conscience, 172. 35 Nussbaum, Liberty of Conscience, 173. 36 Ibid., 173. 37 I thank an anonymous reviewer for clarifying this point. 38 Quong, “Cultural Exemptions, Expensive Tastes, and Equal Opportunities,” 60. 39 Deborah Satz defends a view regarding educational resources that is consistent with the idea of democratic equality in her paper “Equality, Adequacy, and Education for Citizenship,” Ethics 117 ( July 2007): 623–48. 40 Gerald Gaus, “Liberal Neutrality: A Radical and Compelling Principle,” Perfectionism and Neutrality: Essays in Liberal Theory, ed. Steven Wall and George Klosko (Lanham, MD: Rowman and Littlefield, 2003), 137–65. 41 I thank an anonymous reviewer for suggestions on how to present the ideas in this section. 42 See for instance, Anderson, “What is the Point of Equality?”; Anderson, The Imperative of Integration; Satz, “Equality, Adequacy, and Education for Citizenship;” and Satz, Moral Limits of Markets. 43 For a good overview of this and related topics see Greenawalt, Religion and the Constitution, Vols. 1 and 2. 44 The two other criteria are that a law is void “if its primary effect is to advance or inhibit religion, or if it creates an excessive government entanglement with religion.” Greenawalt, Religion and the Constitution, Vol. 1, 33. 45 Kitzmiller v Dover, 400 F. Supp. 2d 2007, Case No. 04cv2688 (M.D. Pa. 2005).