Kent Greenawalt, Defender of the Faith

Abstract

Kent Greenawalt, Defender of the Faith Exemptions: Necessary, Justified, or Misguided? By Kent Greenawalt. Cambridge, Massachusetts: Harvard University Press, 2016. 288 pages. $49.95.IntroductionNot long ago almost everybody loved the idea of exempting religious objectors from generally applicable laws. In 1993, after the Supreme Court, abandoning a decades-old rule, noted that exemptions weren't constitutionally required,1 Congress was nearly unanimous in reversing that result by statute.2Two controversies have splintered that coalition. The 1993 law, the Religious Freedom Restoration Act (RFRA), has been deployed to challenge the so-called "contraception mandate," which requires employee and student health insurance plans to cover the costs of most forms of contraception.3 Litigants have sought, and some state legislatures have attempted to provide, religious exemptions from laws banning discrimination on the basis of sexual orientation.4More fundamental than either of these flashpoints is a growing sense that it is unfair to single out religion in this way-that religion is not distinctive enough to deserve special treatment by the law.5So Kent Greenawalt's defense of exemptions is well timed. For many years, Greenawalt has been a giant in the field of law and religion. His twovolume treatise, Religion and the Constitution,6 is the most comprehensive treatment of the law of the religion clauses. This new book takes on the specific issue of exemptions in shorter compass, centered on these newer controversies that have arisen since the earlier volumes were published. He has an easy mastery of this complex area. He writes beautifully.The book is a careful defense of exemptions against the new challenges. It does not offer any general theory of exemptions, instead focusing closely on the details of specific types of situations. The general lesson is that "no sensible person can suggest that all claims of exemption should be granted or refused."7The book ranges over a wide range of issues, though it is not quite as comprehensive as the first volume of his treatise.8 Its aim is "to explore the complexity of many concerns about exemptions and implicitly encourage those on opposite sides of particular controversies to recognize, and perhaps even acknowledge, that competing considerations do carry some weight."9 Greenawalt selects his cases with that in mind.10A large literature of general theories of religious accommodation is on offer.11 He resists them all.No single theory covers everything; multiple reasons typically support a practice and carry varying weights in different contexts. This reality applies to many particular issues about government concessions not to perform general duties. Once this is recognized, people should not expect matters to reduce to a single justification that clearly warrants some exemptions and does not warrant others . . . .12If the book has a general thesis, it is that exemptions should not be rejected wholesale.Exemptions is, however, deliberately unhelpful with respect to broader questions that weigh on the minds of many. Why is it fair, as a general matter, to single out religion for special treatment? And what general principles should legislatures or courts follow if they are going to devise exemptions on an ad hoc basis?An intervention tailored to contemporary debates ought to address these questions, which have become so salient.The overall pattern of special treatment is what has generated a sense of unfairness. Even if the details can be shown to cumulate intelligibly, a defense of exemptions needs to say something about what the cumulation amounts to. The book is thus an important but incomplete defense of exemptions.This Review will offer an account of the missing principles inferred from what Greenawalt does say.Whatever is valuable about religion is not directly detectable by law. People are too opaque to one another for the state to assess the value of each person's attachments. …