Why I support some religious exemptions (though I myself am not religious)

By Eugene Volokh
January 22 at 1:28 PM 

Should the law sometimes exempt religious objectors from generally applicable laws? And, if so, should it be done (1) only on a statute-by-statute basis — where the legislature decides, when it passes or revises a statute, whether there ought to be an exemption from that statute — (2) through a broad exemption law, which calls on courts to decide when to carve out religious exemptions from a statute and when not to, or (3) as a matter of constitutional command, interpreting the Free Exercise Clause as presumptively (but not categorically) mandating religious exemptions?

I’m inclined to conclude that the best solution is a mix of (1) and (2) — legislatures create exemptions when they think of them, but also authorize courts to do the same — but generally without the constitutional model (3). I discuss this in much more detail in my “A Common Law Model for Religious Exemptions” article, but here I just want to focus on part of that: why I think religious exemptions are often a good idea, even though I myself am not religious.

1. Governmental restrictions on conduct (whether laws, regulations, rules for employees) necessarily have benefits and costs. The benefits come in many varieties. A restriction could protect other people’s rights, or other people’s interests that fall short of rights. It could protect broader social interests (which indirectly comes down to protecting some people’s rights or interests). It could aim to protect the regulated person’s own interests.

The costs come in many varieties, too. A restriction generally burdens some people’s rights (whether or not constitutional rights) or interests. It can cost money, which is to say it will burden taxpayers’ interests. It can alienate the restricted parties to the point that they become less likely to cooperate with their fellow citizens, refuse to follow the law, leave the country, or do other things. Those too are costs to societal interests (which again indirectly become harms to some people’s rights or interests). Think about both the laws that you like and dislike — such as laws banning murder, theft, employment discrimination, fraud, drug use, or pollution, or laws mandating paying taxes, jury duty, military service, child support, or vaccination (mandates operate much the same as restrictions here). All of them have some such mix of costs and benefits, even if you disagree with how the legislature has assessed the costs and the benefits.

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/01/22/why-i-support-some-religious-exemptions-though-i-myself-am-not-religious/