Summer 2020

Are Organizations’ Religious Exemptions Democratically Defensible?

Author
Stephanie Collins
Abstract

Theorists of democratic multiculturalism have long defended individuals’ religious exemptions from generally applicable laws. Examples include Sikhs being exempt from motorcycle helmet laws, or Jews and Muslims being exempt from humane animal slaughter laws. This essay investigates religious exemptions for organizations. Should organizations ever be granted exemptions from generally applicable laws in democratic societies, where those exemptions are justified by the organization’s religion? This essay considers four arguments for such exemptions, which respectively rely on the “transferring up” to organizations of individuals’ claims to autonomy or recognition; organizations’ own claims to autonomy or recognition; organizations’ status in the accountability community; and organizations’ procedural constraints. The essay concludes that only the last argument holds up–and then, only with caveats. 

Stephanie Collins is Associate Professor at the Dianoia Institute of Philosophy at the Australian Catholic University. She is the author of Group Duties: Their Existence and Their Implications for Individuals (2019) and The Core of Care Ethics (2015). She has published in such journals as Journal of Philosophy, Australasian Journal of Philosophy, Philosophical Quarterly, and Political Studies.

Many democratic societies are pluralistic: people from different cultural, ethnic, and religious backgrounds live together, with different plans and values, and they disagree strongly about the permissibility of particular practices. Yet coordination and cooperation require that all citizens are united under one set of laws. Sometimes, this tension between pluralism and unity produces a religiously grounded exemption: there is a generally applicable law, but some are granted an exemption from that law because of religious conviction.

Thus, the United Kingdom’s Highway Code requires that “On all journeys, the rider and pillion passenger on a motorcycle, scooter or moped MUST wear a protective helmet.” Yet, “This does not apply to a follower of the Sikh religion while wearing a turban.” In other cases, the exemption is granted for religious reasons, but the exempt party is not an adherent of the religion: in the Australian state of Victoria, local councils have successfully applied for exemptions from antidiscrimination legislation so they can run women-only swimming classes targeted at Muslim women. Here, the exempt parties are the councils, yet the exemption is justified with reference to the religion of individuals (swimming pool users).

In the 1990s, there was heated philosophical debate over such exemptions. Some viewed them as the proper response to individuals’ autonomy or need for recognition. Others argued that exemptions are unnecessary if we have robust freedom of association or that the values underlying the general laws are sufficient to reject exemptions (and if the values are not sufficient for this, then the general law should be scrapped altogether, rather than exempting some from it).

All this concerns individuals’ religious claims. But recently, organizations’ religions have loomed large in pluralistic democracies. In 2014, Ashers Bakery in Northern Ireland refused to bake a cake with the slogan “Support Gay Marriage” because the slogan was “inconsistent” with the company’s religious beliefs. The customer sued the company for discriminating against his sexual orientation and political beliefs. In October 2018, the Supreme Court ruled in favor of the bakery, stating that service providers may refuse to endorse messages they profoundly disagree with.

A legislative example comes from Australia, where the Sex Discrimination Act allows an “educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” to “discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy” if that person is a potential staff member, contract worker, or student. Thus, religious educational institutions may refuse to accept gay or trans people as staff or students, though such refusal would be unlawfully discriminatory if enacted by a non-religious educational institution. Thus, religious educational institutions are exempt from generally applicable antidiscrimination laws.

This essay examines justifications for exemptions that protect the religious convictions of organizations, including schools, hospitals, businesses, charities, churches, and others. My aim is not to justify or reject particular exemptions, such as those described above. My aim is more fundamental. I ask whether organizations’ religious convictions can give rise to claims at all, even before those claims have been weighed against individuals’ competing claims. I argue that exemptions should almost always be judged with reference to the religious convictions of individuals, not organizations. I reach this conclusion by examining four arguments for organizations’ religious exemptions, only one of which succeeds, and then only rarely.

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