A new article by Tara Smith, professor of philosophy at the University of Texas at Austin and BB&T Chair for the Study of Objectivism, highlights her recent interest in the subject of religious exemptions in the law. “Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions,” published in the Journal of Law & Politics, “seeks to demonstrate that religious exemptions are unjustified in theory and corrosive, in practice,” according to the article’s abstract.

Smith’s interest in religious exemptions was sparked while writing her most recent book. “I was in the midst of working on my judicial review book [Judicial Review in an Objective Legal System],” Smith recalled, “working particularly on the importance of integrity of a legal system, when a Supreme Court decision concerning ‘the ministerial exception’ caught my eye (the Hosanna-Tabor case). A few weeks later, ‘religious exemptions’ hit the front pages, as pushback against some of Obamacare’s mandates. I had never really considered exemptions, but clearly, these raised questions from the perspective of a steady Rule of Law. So shortly after finishing the book, I began to investigate more carefully.”

The new article argues that “by splintering the ultimate sovereignty of a legal system, [religious exemptions] fracture its integrity and undermine its ability to fulfill its mission.” The abstract continues:

My analysis proceeds from the function of the legal system — which is the basis of the system’s authority — to show how the practice of granting standing permission for some people to violate generally applicable laws is inimical to that system’s efficacy and an abuse of its authority. The injection of conflicting directives to the officials charged to enforce the law (Go by the law; Go by those people’s consciences) necessarily subjectivizes the use of the government’s coercive power, since those officials have no principled means of deciding between the two directives. The tremendous proliferation of exemptions over the years testifies to the absence of an objective standard for governing this.

After establishing the central failings of exemptions, the paper takes up four specific arguments that are frequently offered in their defense: appeals to First Amendment text, the ideal of equality, the ideal of personal liberty, and the profound value of religious identity for many individuals. Careful examination demonstrates that none of these successfully justifies exemptions. 

Finally, the paper considers the grounds on which differential application of generally sound law might ever be appropriate, finding an important difference between religiously based exemptions and other legitimately exceptional treatment.

Founded in 1983 under the guidance of Justice Antonin Scalia, the Journal of Law & Politics is a student-run publication at the University of Virginia designed to “provide a forum through which to analyze, discuss and debate the role of law in the political process and the role of politics in the legal system.”

The article is available in full here.