Conscience in the Image of Religion

Abstract

Religious beliefs/practices are excluded and insulated from political contest not because they are intrinsically valuable but instead because they are aspects of a collective or cultural identity and markers of membership in the collective. If the state’s duty to accommodate religious practices is about the status of religious groups rather than the liberty of individuals (a matter of equality rather than liberty) then it may not extend to practices that are idiosyncratic and have no link to a religious or cultural group/tradition. The requirement that the state should accommodate religious beliefs or practices (and sometimes compromise its policies) is most often justified as necessary to ensure that the individual’s deepest values and commitments and more generally his/her autonomy in decision- making are respected. I argue, however, that reasonable accommodation is better understood as a form of equality right that is based on the importance of community or group membership to the individual. Understood in this way, the accommodation requirement may not extend to an individual’s deeply held non-religious practices, if they are not part of a shared belief system. The willingness of the courts to protect certain non- religious practices (to require their accommodation by the state) may rest simply on their formal similarity to familiar religious practices such as pacifism or vegetarianism – that are specific in content, peremptory in force and that diverge from mainstream practices. Yet, as a practical matter, practices of this kind are seldom sustained outside a religious or cultural community. It is not an accident then that the very few instances of non-religious, ‘conscientious’, practices that have been accommodated are similar in content and structure to familiar religious practices, and indeed may have arisen from these religious practices.