TY - JOUR
AU - Smith, Stephen, W
AB - Conscience has become an increasingly more important topic of discussion in legal and political circles. As societies become less and less homogenous and more diverse, there are increased chances that particular societal rules might interfere with the beliefs or principles of members of that society. These individuals might then seek the benefit of conscience-based exemptions in order to avoid having to act in ways that conflict with their principles or beliefs. While this used to be the case only in practices such as conscription into the armed forces and the termination of pregnancy, claims about conscientious exemptions are becoming more common in a broader range of subjects. As their use increases, this has led more academics to become interested in how the law can best regulate these kinds of conscientious claims. A new edited collection published by Hart Publishing in 2019 seeks to help answer those questions about legal regulation. The collection is edited by John Adenitire and contains a range of contributors from law, philosophy, and legal practice, who come from several jurisdictions including the UK, the USA, and Canada. This provides a broad scope to the contributions, both in terms of approach as well as jurisdictional questions. It also allows for a variety of topics to be considered. In order to deal with the breadth of subject matter, the collection is broken down into four sections plus an introduction. The first section, Part A, deals with theoretical issues around conscientious exemptions.1 Part B shifts the discussion to the courts and how they should judge cases of conscientious exemption.2 Part C focuses on comparative questions related to conscientious objections,3 and the final Part provides a conclusion which attempts to draw these various threads into a coherent whole.4 This is an ambitious remit and has the potential to become unworkable. However, one of the ways that the collection makes this more manageable is to focus on religious claims in relation to conscientious exemptions. This is the case for all three chapters in Part A, as well as several of the chapters in Parts B and C. While this provides some needed structure to the collection, it might also limit its readership because if you do not have interest in religious-based exemptions, you may find that the theoretical chapters, in particular, do not provide an incentive to seek out the book. Although there may still be something of interest in this collection even if religion is not the focus, the attention on religion may be limiting. A bigger issue with the collection, however, is that neither the chapters nor the book in general feels like they will do very much to move the needle in terms of the discussion about conscience. While the chapters are interesting enough on their own, whether you agree with the argument presented in each one will depend largely on if you agree with the initial premises outlined for each chapter. If you do, then they are likely to be persuasive. If, on the contrary, you object to one or more of the initial premises, very little of the subsequent discussion is likely to change your mind. As a consequence, there is a sense that the collection as a whole, while trying to present a multitude of views, ends up preaching to the converted. This is rather a shame because there is a range of interesting questions raised in the collection. For example, in the theoretical reflections chapters in Part A, questions are asked about whether religion ought to be seen as special or simply treated as any other belief, what ought to be done with ill-founded beliefs in relation to conscience, and what to do about the problems of internal dissent within religious groups. These are important questions, but the answers provided in the relevant chapters do not provide much illumination on those questions. To take but one example, the answer to the first question about whether religion is special forms the primary issue in John Corvino’s chapter.5 His answer is that religion is special because it can serve as a ‘corrective’ to mistreatment of minorities by the majority. As he states: The point is that majority-made policy often squeezes minorities in ways that even well-meaning people can miss. In my view, the best reason for contemplating specifically religious exemptions is that they serve as an antidote to this tendency. (p 27) Corvino immediately applies three caveats to this: that while religion is special on this basis, it is not unique and other categories might likewise be able to claim this special status (Corvino suggests disability as one); that allowing ‘greater scrutiny need not always result in an exemption’ (p 27), especially if more important values are at risk; and that exemptions should not remove burdens from one disadvantaged group to put it on another minority group. All of these claims, though, leave more questions than they answer. First, are religious groups really minorities in our society? There will be some for which this is true, but the Western World is still largely a Christian-based society and that Christianity permeates our culture—the UK National Anthem, for example, is still ‘God Save the Queen’. As the kinds of cases that Corvino is considering are the ‘gay wedding cake cases’6 (and the picture on the cover of the collection is a rainbow cake), this seems to be a presumption about an empirical claim which never really gets addressed. What Corvino could mean is that, even though Christianity is the majority religion in the West, what is really at issue is the subset for whom these issues are important. In what sense, though, is this group special in the way that Corvino seems to mean? It is not entirely clear. The idea seems to be that it is because their views are considered to be ‘religious’ and they are less than the majority, but these do not seem sufficient to claim ‘specialness’. How are these groups concerns more ‘special’ than other groups who cannot claim to be based on religious views? Corvino might respond to this query by highlighting his first caveat—that the religious group in question is not unique and that other groups can, likewise, claim to be special in a similar way. But this also creates more problems than it solves. If other groups can claim to be special in a similar way, then the real claim seems to be based on being a minority group. All individuals, though, are likely to be part of some minority group (be it based upon race, colour, creed, gender, social–economic status, cultural heritage, etc), which would reduce if not eliminate any claim to specialness. Even if one gets beyond this matter of what exactly constitutes a group entitled to claim specialness, there are additional problems. It is not especially clear how religion acts as ‘an antidote’ to this tendency of majoritarian rule at all, and Corvino does not really provide a rationale for that view. Again, it is possible to make claims that certain religious groups have been disadvantaged by majority rule, but that is a function of being in a minority group rather than being in a religious one. For example, Corvino uses the example of students with different religious holidays being adversely affected by a University calendar which prioritises Christian ones. The problem with this example, though, is that the religious bit is not doing the heavy lifting, it is the fact that the individual in question is a member of a minority group. If we take being in a minority group to be the effective claim, though, we need a way to determine which minority group memberships are to be protected. Dedicated racists are, I hope, a minority group, but I see no reason to give them rights of conscience because of their beliefs. What makes religious groups different from racists ones? There are, of course, some easy answers to that question, but the rub of that is that not everyone would accept them. Richard Dawkins, for example, is unlikely to accept any claims that religion provides benefits that dedicated racists do not. It is worth bringing up Richard Dawkins here because Corvino uses dedicated atheists elsewhere in his chapter to explain why other justifications for religious exemptions work. When positing his own views, though, the challenging views of atheists and agnostics are not explored. To be fair to Corvino, his ultimate conclusion on the issue of gay wedding cakes is to say that religious groups should not be entitled to protection because of his third caveat—allowing rights of conscience for the bakers in question puts the detriment of those rights on a minority subject to even greater discrimination—to wit, LGBTQ individuals. That response seems to neuter the conscience claims at issue though. Religious groups often discriminate against other groups who they do not see as being part of their protected group, and thus these clashes would be quite frequent. Corvino’s response is to prioritise those other groups over religious groups, meaning that the actual ability of religious groups to claim conscience is going to be reasonably minimal. For example, it is not just cases involving gay wedding cakes but also wedding registrars, housing (such as owners of a hotel refusing gay couples a shared bed), adoption agencies, and a host of other battleground issues. Corvino’s argument, then, seems to both protect too much, in that all minority groups are protected because they act as an antidote to majority rule, but also too little as many serious claims are simply not protected at all. While I have focused here on only one chapter in the collection, my concern with the collection is not exclusively with Corvino’s argument. Rather, the problem is that an analysis such as the one above can be performed in relation to most, if not all,7 of the chapters. There are good questions raised throughout, but the answers provided have significant holes such that the arguments are never particularly persuasive. As such, the analysis is ineffective and the collection suffers as a result. That does not mean that it has no worth whatsoever. As I have said, it does raise interesting questions and those could provoke debate and discussion. Ultimately, the collection might be best used as an introduction to the field or as a student text. In that niche, it can be used to illustrate the important questions and issues that arise in the subject, and act as an impetus for further discussion. It also provides a range of topics for students or those entering the field to consider, as well as different perspectives to begin to explore. From there, these readers can begin to explore works which further develop their expertise. For those within the field, however, this collection probably would not challenge their existing ideas or drive forth greater insights, but if readers are those who are seeking to explore the topic, this collection will be valuable to them. Footnotes 1 ‘Theoretical Reflections on Conscientious Exemptions’. 2 ‘How Should Courts Adjudicate Conscientious Exemptions?’ 3 ‘Comparative Questions in the Law of Conscientious Exemption’. 4 ‘Conclusion’. 5 ‘Is Religion Special? Exemptions, Conscience and the Culture Wars’, ch 2. 6 See, for example, Lee v Ashers Baking Company Ltd and others [2018] UKSC 49. 7 In my view, P Billingham, ‘Exemptions for Religious Groups and the Problem of Internal Dissent’, ch 4, and M Neal, ‘Conscientious Objection, “Proper Medical Treatment” and Professionalism: The Limits of Accommodation for Conscience in Healthcare’, ch 8, do not suffer from this problem. Disclaimer: I am a Co-investigator on a project relating to conscience with the author of the latter chapter. © The Author(s) 2020. Published by Oxford University Press; All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - John Adenitire (ed), Religious Beliefs and Conscientious Exemptions in a Liberal State
JO - Medical Law Review
DO - 10.1093/medlaw/fwaa022
DA - 0031-01-10
UR - https://www.deepdyve.com/lp/oxford-university-press/john-adenitire-ed-religious-beliefs-and-conscientious-exemptions-in-a-TIlAIFIW0s
SP - 1
EP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -