What should the government do about people who have strong and sincere conscientious scruples against obeying generally applicable and democratically enacted laws?
The problem has become more salient in recent years because some religious conservatives have objected to providing health insurance that pays for contraceptive protection and to participating in same-sex marriages. But the problem has been with us since the beginning of the Republic, and it knows no ideological boundaries.
Although there is sharp dispute about a solution, my sense is that there is general agreement about two starting points for the analysis.
First, conscientious objectors are entitled to some recognition of their beliefs. Obeying ordinary law that one opposes is part of the price we pay for democratic rule, but laws that infringe our deepest commitments are in a different category.
Second, our government could not function if everyone were entitled to disobey every law that they opposed on conscientious grounds. Familiar examples are murder laws applied to people who believe in child sacrifice or statutory rape laws as applied to sex rituals, but there are many less extreme examples. The government could not fund itself if everyone had a right to withhold taxes supporting any program that they conscientiously opposed. An employee at the department of motor vehicles should not be permitted to withhold driver’s licenses from women even if he thinks that the Koran prohibits women from driving.
It follows from these starting propositions that any solution we come up with is bound to be a messy and unsatisfying compromise. I don’t pretend to have a fully worked-out proposal that resolves every case, but I do want to offer two additional principles and an historical example that might point us toward a solution.
The first principle is that, to the extent possible, we want to avoid having the government decide on the strength, legitimacy, and sincerity of religious or other conscientiously held beliefs. The problem arises in the first place because sometimes government and religion are in deep conflict. Giving government unilateral power to resolve the conflict tends to disadvantage religious beliefs in the very situations where they most need protection.
The second principle is that conscientious objectors are entitled not to violate their religious beliefs, but they are not entitled to a free ride. They have no special right to avoid the costs that everyone else must bear as citizens. Put differently, they have a right to be free from certain burdens, but they are not entitled to have their beliefs subsidized by giving them benefits not available to others.
As it happens, we have a long-established and relatively uncontroversial model that embodies both of these principles the recognition of claims of conscientious objection to the military draft coupled with a requirement of alternative service.
We have long recognized that it is wrong to force people to fight in wars when doing so violates their religious beliefs. True, this system has been administered by government officials who made decisions about the strength and sincerity of those beliefs. My own view is that this official involvement has been problematic, but the requirement of alternative service has produced less government administration than there would be otherwise. Because conscientious objectors are not given a free ride because they must bear costs that are roughly equivalent to those of people who submit to the draft the system at least partially administers itself.
Alternative service also serves another function: It ensures that the burdens of democratic citizenship are borne relatively equally. Objectors are freed from service that is not consistent with their strongly held beliefs but they must substitute service that is.
How might this model apply to other sorts of religious objectors? It does not apply perfectly, and there are some cases that it does not resolve. Still, thinking of the problem in this way does resolve some cases and points us in the right direction for others. To take a single example, it is easy to see how the same principles might be applied to objectors to contraceptive coverage and same sex marriage. These objectors should not be required to pay for contraception or participate in marriages that they oppose, but they, like military objectors, are not entitled to special exemptions unavailable to anyone else. Their “alternative service” could be in the form of a substitute tax that roughly compensates for the social cost that their beliefs impose on others. The tax should not be punitive or excessive. The point of it is not to deter the behavior, but to compensate for its cost. As with all taxes, the money would be paid to the Treasury although, of course, the government might use the funds to benefit those harmed by the religious practice.
Obviously, everyone will not be happy with this compromise. But solutions to problems like this must be compromises. If there is any hope for resolving our deepest conflicts, we must live with compromises like this that are bound to leave those on both sides disappointed but that, perhaps, everyone can also live with.
Mike Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University.
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