Is It Fair to Give Religion Special Treatment?
Andrew Koppelman | 2006 U. Ill. L. Rev. 571
It is widely believed that the First Amendment puts courts and legis-latures of the United States in a double bind when it comes to religion: requiring them to remain neutral with respect to religious concerns, while simultaneously protecting these same concerns. Many areas of law cur-rently recognize religious exemptions from generally applicable laws, but there has been persistent uncertainty as to whether it is fair or appropri-ate for government actors to single out religious objectors for this type of special treatment.
This article offers a way to resolve the difficulty. Government may privi-lege religion, but the First Amendment requires that it do so at a very high level of abstraction. It is possible to treat all ultimate human con-cerns with equal respect. It is, however, impossible to formulate a rule that will guarantee that religion be treated precisely no better or worse than other, equally valuable human concerns. As soon as one sets aside crude utilitarianism and begins to decide which human concerns ought to receive special weight and dignity in political decision making, some amount of discretion is unavoidable. All we can do is enumerate ultimate goods, such as religion, and honor them as best we can. But we can only accommodate them one at a time. Because religion is a distinctive human good, accommodation of religion as such is not unfair.
Professor Koppelman begins with a critique of Christopher Eisgruber and Lawrence Sager’s fairness objection to the singling out of religion. Eisgruber and Sager argue that religion should not be privileged over other deep and valuable concerns, but should be protected from discrimi-nation, due to the particular vulnerability of religious minorities. Professor Koppelman observes that protection and privilege are logically continuous with one another, and that Eisgruber and Sager’s approach still calls for the special treatment of religion. If religion cannot be treated with indifference, the question remains why religion should be given special consideration over other human concerns.
After considering various approaches to determining which values should be privileged, Professor Koppelman concludes that the most defensible approach relies upon what Charles Taylor calls “strong evaluation.” Taylor argues that ordinary practical reasoning involves discriminations of better and worse that are independent of our desires and offer stand-ards by which those desires are to be judged. Professor Koppelman notes that religion is only one of many objects of strong evaluation, and that other objects of strong evaluation, such as the desire to protect the envi-ronment and the need to accommodate persons with disabilities, are cur-rently under the protection of the government. Because religion in its broadest sense—humanity’s various efforts to address what is fundamen-tally problematic in the human condition—is an object of strong evalua-tion that is not reducible to any other good, it should be accorded gov-ernment protection as well.