John Adenitire talks to us about his new book published by Cambridge University Press
The book documents the existence of a legal right to exemption from any legal obligation whatsoever available to a person who conscientiously objects on the basis of a religious or non-religious belief. The doctrinal analysis centres on US, Canadian and UK law. The book provides a liberal defence of this right and argues that it should be considered a defining feature of a liberal democracy. The book calls this right a general right to conscientious exemption. The general right defended in the book is not an absolute right. A court may refuse to grant an exemption if doing so would disproportionately impact the rights of others or the public interest. The book suggests how the general right should be balanced against other important rights, such as non-discrimination on the basis of sexual orientation.
The book is the result of my doctoral research. I was initially interested in the ways that respect for people’s foundational beliefs may undermine our commitment to the rule of law. Not only did I end up finding that respect for individual conscience does not undermine respect for the rule of law; in fact I found that the general right I document in the book increases the liberal credentials of a legal system.
Another issue that kept me interested in writing the book was the view that the right I was documenting could not be reserved only for those objecting on the basis of religious beliefs. A good chunk of my doctrinal and normative efforts was arguing against the idea of religious privilege in law. I confess that this fell within my larger commitment for political secularism and equality of opportunities for the non-religious. It is this commitment, itself fed by my own personal commitments to the superiority of non-religious and naturalistic views, that keep my research going. I was curious as to whether robust doctrinal and normative arguments could be advanced for the equal status of the non-religious. Although my arguments are contestable (especially the doctrinal ones in the US), I think that overall the book provides solid grounds for the view that the law in the jurisdictions I analyse is against the idea of undue privilege for the religious.
If the main claims of the book are correct, three important implications follow. If the first claim is correct then the existence of a general legal right to conscientious exemption belongs to the list of the various criteria to be used to assess whether a state is a liberal one. This may not be surprising to some as about four decades ago, in 1979, Joseph Raz tentatively suggested that ‘[r]eflection on the nature of liberalism, it seems, may suggest that […] the definition of the liberal state […] should be widened to include the institution of a general right of conscientious objection”. This book provides arguments for the validity of this suggestion and provides reasons to reject views contrary to it.
If the first and second claims are correct then a second implication is that the book leads to embracing the counter-intuitive idea that liberal states should and in fact do provide a legal right to escape legal obligations on the basis of an individual’s personal views about the morality of the law. This idea is counter-intuitive and even disturbing in at least two respects. First, it undermines the idea that, within the context of a reasonably just state, legal subjects ought to comply with all reasonably just laws which are mandatory for all. Recognising the general right to conscientious exemption seems to undermine one of the most obvious purposes of the law which is to solve for all subjects the moral problems which gave rise to the initial need for legal regulation. It seems self-defeating then that the law should recognise that its own solutions can be escaped by some individuals based on their own personal view that the law has reached a wrong moral solution.
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Furthermore, not only does the general right seem to undermine legal and democratic authority; it may allow individuals to seriously undermine hard-earned legal rights of third parties. Some US scholars have suggested that conscientious exemptions are being abused by those opposed to the expansion of rights for LGBTQ individuals, in particular the right not to be discriminated against in the receipt of services generally available to the public (e.g. wedding custom-made cakes), or as a way to circumvent the established right to access to abortion services. If the first and second claims are correct then these scholars may have underestimated the problem. Those opposed to these morally controversial legal rights need not await legislative grants of exemptions; they may seek to undermine those legal rights, if that is indeed their purpose, by seeking an exemption through a court of law by relying on the general right. It follows that those that want to maintain these legal rights have to fight the culture wars on two fronts: lobby legislatures to refuse to grant statutory exemptions and litigate in court against exemptions sought on the basis of the general right.
The book embraces the second implication of the main claims notwithstanding its very problematic aspects. The book shows that the idea that the general right seems to undermine legal and democratic authority is misplaced. Chapters 2, 4 and 6 show that the general right is indeed grounded in well-established legal doctrines which conscientious objectors are entitled to rely on and that most of those doctrines are based on democratically enacted legislation or democratically legitimate constitutional texts. Part 4 of this chapter and chapter 8 show that those legal doctrines reflect an underlying moral right to exemption justified by a plurality of values, including the demands of the state’s duty of neutral pluralism (the duty being grounded in the value of individual moral responsibility and respect for ethical pluralism), respect for personal autonomy, freedom of conscience and concern for individual well-being. The legal recognition of a general right to conscientious exemption enables the state, through judicial consideration, to respect these values especially for minority conscientious views which are unlikely to be taken note of in the political process.
Furthermore, despite the unavoidable consequence that individuals may seek exemptions under the general right which may undermine the rights of others, especially the right to be free from discriminatory treatment, courts are well empowered to refuse, and have in some cases rightly refused, granting exemptions in these circumstances. The book, in chapters 2, 4 and 6, sets out the limitations that courts have recognised to the general right in a wide variety of circumstances in order to protect the rights of others or the public interest. Chapter 9 then addresses the contemporary flurry of litigation on whether providers of goods and services to the general public, such as florists, hoteliers and bakers, can invoke the general right to refuse their services to those in a same-sex relationship or marriage. The main argument of that chapter is that conscientious exemptions should not be granted to the majority of these service-providers because doing so would cause unjustifiable dignitary harms to members of the lesbian, gay and bisexual (‘LGB’) community.