Cobranza

Bedi continues that “much contemporary theory rejects the primordial view and

explicitly moves towards the paradigm of choice and contestability.”321 _{As noted above, he}

thinks that by moving “in the direction of anti-primordialism…we undercut the ability to grant an exemption, to treat religion as special or different from a mere preference or

voluntary association.”322 _{Justifiably granting an exemption gets so undermined because –}

according to Bedi’s second, key claim – “the only way to effectively justify [an] exemption is

321 _{Sonu Bedi (2007), 237} 322 _{Sonu Bedi (2007), 237}

to treat the affiliation or practice as non-voluntary, as anything but contestable or fluid.”323 Is it true that the only justifiable grounds for granting a legal exemption that the belief in question be non-voluntary? Why think that non-voluntary, primordial beliefs are the only sorts of beliefs worthy of legal exemptions?

I find Bedi’s second, key claim to be problematic for at least three reasons. First, it seems as though non-voluntariness should not be classified as a necessary condition for obtaining a legal exemption – a view that Bedi clearly posits insofar as he thinks that justifying a religious exemption requires that the religious belief be non-voluntary. To see why I think non-voluntariness fails as a necessary condition, let’s look again at the Seeger case. The reason that a legal accommodation was afforded to the conscientious objector had nothing to do with whether or not his belief was freely chosen. What was centrally in question was whether the objector’s belief, freely chosen or not, occupied “in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition.” So, the pacifist who freely chooses not to serve in the war after carefully considering the nonreligious arguments for pacifism would still qualify for a legal exemption in Seeger because of their belief’s functional equivalence to traditional religious beliefs – not because of its non-voluntariness. The legal conclusion in Seeger seems like the acceptable moral conclusion as well, for we seem morally justified in granting a legal exemption to the pacifist who voluntarily acquired their beliefs, thus demonstrating the non-necessity of non-voluntariness.

Second, it seems that non-voluntariness should not be understood as a sufficient condition for obtaining a legal exemption either. Remember that Bedi claims that the only

way to justify an exemption is that the belief in question be non-voluntary. This implies that Bedi understands non-voluntariness as, at the very least, sufficient for warranting a legal exemption. To see why non-voluntariness remains insufficient for warranting a legal exemption, however, just consider the real or imagined unjust discriminator whose beliefs are unchosen and primordial and who requests a legal exemption from some law in order to unjustly discriminate to an unacceptable level. The unjust discriminator would satisfy Bedi’s necessary and sufficient condition of possessing a non-voluntary belief – yet, intuitively, it seems like we are not morally justified in granting the unjust discriminator a legal exemption. Other interests (e.g., third-party harms) may be sufficient for blocking a legal exemption in such a case. Thus, this counterexample shows that non-voluntariness is insufficient to justify granting the requested legal exemption.

Third, it seems that, even if we grant non-voluntariness as a sufficient condition, it should nevertheless not be understood as the only sufficient condition for obtaining a legal exemption. Interestingly, Bedi not only takes non-voluntariness as merely sufficient for warranting a legal exemption; he actually takes non-voluntariness as the only sufficient ground for warranting a legal exemption. Contrary to Bedi’s position, there seem to be other sufficient grounds for justifying legal exemptions – grounds that are likely more important and overriding, in fact. Again, we can look to Seeger to illustrate this point. What really seems to be doing the justificatory work in cases like Seeger is that the belief is perceived to be an obligation to its possessor – voluntarily chosen or not. That is, what seems central in these cases is that the belief in question places heavy demands on an individual’s action that “must be satisfied no matter what an individual’s antecedent

desires and no matter what incentives or disincentives the world offers up.”324 _Accordingly, it seems as though what more centrally and sufficiently justifies granting legal exemptions are considerations related to obligation such as one’s moral identity, moral integrity, and the like – or some combination of these and related features. After all, requiring someone to act against their perceived obligations, freely chosen or not, would in some sense cause them to undermine their moral identity or moral integrity such that may not be able to “live

with themselves.”325 _{Bedi rhetorically asks if something “is a choice that some have decided}

to take, why should it receive an exemption?”326 _{We can respond: for a multitude of other}

sufficient and possibly more important non-volitional reasons including protecting one’s moral identity, moral integrity, and the like.

IV. Unjustified Intolerance and Prejudice

The last feature that I will look at in this chapter is whether or not religious conscience beliefs enjoy a unique link to unjustified intolerance and prejudice such that

negative differential treatment before the law is justified. To illustrate what I have in mind

with this feature, consider John Corvino’s discussion about the intrinsic value of religion. He notes “that religion – like health, education, family, and so on – is a fundamental good worth promoting” insofar as it “engages the distinctively human capacity for grappling with basic questions about meaning and existence,” “binds people together, often for charitable purposes that promote the general welfare,” “provides a way to mark major life events, and

324 _{Brian Leiter (2013), 34} 325 _{James Childress (1979), 321} 326 _{Sonu Bedi (2007), 239}

it offers solace in times of grief and despair.”327 _{Though he agrees that religion doubtlessly} “does all of these things, and does them well,” Corvino also thinks that religion doubtlessly

“does great evil” as well.328

If that’s true, then perhaps we’ve identified a reason to treat religious conscience unequally before the law: religious conscience beliefs might have a comparatively greater propensity for conflict insofar as they enjoy a unique link to unjustified intolerance and prejudice. In response to this idea, I will argue that religious and nonreligious claims of conscience arguably have similar propensities for conflict such that unequal treatment before the law would be unjustified.