Greenawalt, Exemptions: Necessary, Justified, or Misguided? (Review)



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Charles McCrary

Kent Greenawalt, Exemptions: Necessary Justified, or Misguided? (Harvard University Press, 2016)

With his multiple-choice question subtitle Kent Greenawalt is not wondering if religious exemptions in general are necessary, justified, or misguided. Rather, he acknowledges that in a given case any three of these might be an apt descriptor. The hard part is figuring out which one applies and, perhaps harder still, the criteria by which we should decide. These criteria and tests can be murky and debatable, but Greenawalt’s book expertly guides the reader through the various arguments and counterarguments before explaining and defending his own view. For this reason, Exemptions is valuable not only for its arguments but for how clearly Greenawalt explains the history and debates and considerations surrounding a range of issues, from military service to drug use to same-sex marriage.

Religious exemptions are fairly straightforward in theory and complicated in practice (what isn’t?). The basic problem is as follows. The law demands and prohibits certain actions. Religions do too. Sometimes, the law requires something a religion forbids. Sometimes, religions require something that the law generally forbids. So, sometimes the state grants an exemption from the law, lest people be compelled to break their religious commitments or violate their sincerely held religious beliefs. But, of course, not just any religious belief entails an exemption from just any law. You can see where this is going…

Before examining specific types of exemptions, Greenawalt identifies a few key issues (13–17). Who should qualify? Individuals? Organizations? Corporations? What about the “exact content of a person’s objection” (14)? Is it really religious? Does that matter? How essential to one’s doctrine is this belief? To what, precisely, does this person object (e.g. war, or this war)? Who has to accommodate religion, and are the standards and requirements different for, say, the military, a public school, a small business, and a large corporation? And, of course, what are the practical implications of a given accommodation or exemption? Whom will be affected? If third parties are affected, what about them? And so on. Many of these questions involve two kinds of tests: “sincerity and administrability” (15). The first one asks, does the claimant really believe this? (And then all the attendant questions about whether the belief is really religious, how central it is, etc.) The second one asks, how is this actually going to work?

Through a number of case studies, both real and hypothetical, Greenawalt explains the different types of exemptions, the questions one might ask, and what the reasonable solution might be. The work is meticulous, thorough, and thoughtful. For instance, in the introduction he offers a numbered list of five basic types of exemptions. The first type: “Benefits that others would like to have, that do not do direct harm to anyone, that serve broad social purposes, and for which it does not make sense to impose any alternative burden on those who benefit. Typical tax exemptions fall into this category” (20). This can be contrasted with the second: “Privileges that others would have no significant self-interested reason to wish be granted and that do not disadvantage other people. The desire of Orthodox Jewish groups to kill animals in ways that may be generally forbidden fits basically in this category” (20). The different variables here are very clear. Is this benefit a generally desirable one? Lots of people, regardless of belief, might like to avoid paying taxes. Likely no one wants to slaughter animals in a certain ritual way absent a religious belief. Does this benefit harm others? Discrimination against employees or potential clients is one harm that might arise from a religious exemption. Once we have identified the type of exemption we’re dealing with, it is easy to consider whether it is just and prudent to grant it, how it might be granted, and/or what the alternatives could be.

Exemptions is especially valuable because it weaves together history, case law, and lawyerly questions in an ordered and organized but still lively way. It would work well in a classroom, providing lodes of information and debate fodder. Many of Greenawalt’s suggestions are thought-provoking and could spark discussion in a range of undergraduate classrooms or weird parties. Greenawalt’s chapter on exemptions for military service was of particular interest for me, as I was on a roundtable at last November’s AAR meeting—with Isaac Weiner, Ronit Stahl, and Finbarr Curtis, expertly moderated by RiAH blogmeister Cara Burnidge—on U.S. v. Seeger (1965) and its consequences and legacies. Daniel Seeger, a pacifist, sought an exemption because of his “religious faith in a purely ethical creed.” Initially he was denied, since he neither belonged to a historic peace church nor professed belief in a “Supreme Being.” However, the Supreme Court opted to grant Seeger the exemption. Other cases followed a similar trend of expanding the definition of “religion” and/or finding it inessential to “ethical” beliefs. Standards and limits are hard to enforce, and they prompt difficult or impossible questions. Is the believer sincere? If we’re worried about fraudulent belief, is membership in a group really a good way to measure sincerity? How do we know what counts as “religious”? What about someone who might be religious but is mostly just scared of going to war? Should selective objectors (i.e., not pacifists but opponents of particular wars) be treated similarly? Practically, if objectors are granted an exemption, should some other service, like civil service, be required? Should those alternative conscriptions be longer or in some other way balance out the desirability of the various options? These questions are messy, and Greenawalt carefully weighs the pros and cons not only of each answer but of the feasibility of the question itself.

Throughout, an issue familiar to readers of this blog, the defensibility of the category “religion,” persists. In what cases should religion be an adequate reason for an exemption when a belief or group or person determined to be not-religious would not? In some cases, it matters; in others, probably not so much. For instance, with respect to the use of drugs and other forbidden substances, “for reasons of overall enforcement and prevention of fraud, it makes sense here to limit exemptions, at least those apart from medical procedures, to use within groups that are actually religious. This is in stark contrast with draft exemptions, which properly depend on individual convictions and, despite actual statutory language, do not require that these convictions be religious in any ordinary sense” (75). This comparison, Greenawalt argues, shows why any blanket answer about whether exemptions are a good or bad idea—or, necessary, justified, or misguided—would be, well, “misguided” (75).

These questions are serious, difficult, and pertinent. Consider the myriad issues surrounding same-sex marriage, which Greenawalt calls the “most controversial modern issue about exemptions” (154). Does ministerial exception entail a right to violate anti-discrimination laws? Should it? If so, how exactly is “minister” defined? How directly does one have to be affected by a same-sex marriage to which one objects? Should what Steven Smith has called the “equality doctrine” take precedent over religious liberty, and if so, when? Or is that an unhelpful way to frame the question? In recent years, religious exemptions have been the subject of much academic and popular discussion. Some people have argued that religious exemptions are widening in scope, threatening to allow a dangerous “right to discriminate.” Others worry that religious liberty itself is under threat and must be restored and protected. Sometimes the basic structure of these narratives is quite similar, with the perspectives reversed. Whatever the case, the stakes are real and significant. Land use and rights, prison life, medical procedures, workplace accommodations, housing discrimination. These matters affect the subjects of American religious history every day. Kent Greenawalt is one of the ablest guides we have to these issues, and Exemptions is a vital guidebook.

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