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Most Downloaded Articles
- The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review by Kumm, Mattias
- Border Regimes and Human Rights by Miller, David
- Proportionality and Principled Balancing by Barak, Aharon
- Proportionality in International Law by Franck, Thomas M.
Religious Exemptions: An Egalitarian Demand?
Citation Information: The Law & Ethics of Human Rights. Volume 6, Issue 1, Pages 97–118, ISSN (Online) 1938-2545, DOI: 10.1515/1938-2545.1069, December 2012
- Published Online:
To what extent does the case for exemptions from laws to accommodate religious (and perhaps other conscientious) commitments rest specifically on egalitarian arguments? To what extent should specifically egalitarian or anti-discrimination concerns be used to determine when such exemptions should be granted? This Article considers both of these questions. It argues that while egalitarian considerations have a role to play in both the general justification and case-by-case evaluation of exemption claims, neither the justification, nor the evaluation of exemptions, properly rests solely on specifically egalitarian considerations. At the level of justification, there is an important, independent role for something akin to the principle of respect for conscience recently put forward by Martha Nussbaum; and, when citizens come to evaluate particular claims for exemptions, the anti-discrimination approach put forward by Christopher Eisgruber and Lawrence Sager in the context of the U.S. and its constitutional tradition is more plausibly seen as a complement to the “balancing test” which has been used historically rather than as an alternative to it.