Equal Treatment and Exemptions

Abstract

Religious and cultural minorities are today often exempted from rules that continue to bind their fellow citizens, particularly when these rules directly burden minorities' freedom of religion—for example, restric tions on the carrying of knives in public that prevent Sikhs from carrying one of their five articles of faith, the kirpan (a metal dagger)1—but also when the universal enforcement of rules, such as crash helmet laws, would prevent minorities from accessing opportunities more readily available to members of more dominant groups. While multiculturalists celebrate the provision of cultural exemptions as realizing a more sub stantive equality than that achieved under a difference-blind model of citizenship,2 critics argue that cultural exemptions are unwarranted in theory and discriminatory in practice. The fairness of the law, it is ar gued, is not a function of the size of the burden that it imposes upon mi norities and majorities alike but of its facial neutrality. This requirement is met insofar as no individual or group is explicitly discriminated against and all enjoy formally equivalent opportunity sets.3 Indeed, crit ics claim that the provision of exemptions is here not only unnecessary, it is unfair. As Jeremy Waldron puts it, [i]t would be quite repugnant if there were one law for the rich and another for the poor; so why should there be one law for religious minorities and another for the rest of the citizenry? 4 After all, cultural minorities are not the only groups who are