The literature on this question, as a legal question. Is of course growing like
Topsy. But I am not sure that you are asking the same question. Because this
country does not tend to privilege conscience qua conscience to the same degree
as religion, the question usually asked is why religion is special as against
ostensibly similar conscience claims. But your question seems to apply equally
to either--and may, indeed, amount to asking why any and every individual
claim, say of autonomy or dignity, is not subjected to some form of
consequential analysis and balancing.
A few other observations:
1) Along one relevant axis we do treat, eg., medical claims to accommodation in
the same way as we treat religious accommodation claims. Both raise questions
of the epistemic ability or legitimacy of legal decision-makers, and involve
substantial deference to the decisions of outside experts, although in the case
of medicine a) we are, or more often pretend we are, able to second-guess those
claims to a greater degree, and b) those questions involve a less plural
interpretive community.
2) In both cases, there are underlying normative issues that cannot be fully
answered by the expert community. Even under strict scrutiny regimes we may,
for normatively charged reasons, prefer compelling state interests to religious
claims. Even where there is medical or other expert consensus--on, say, the
capacity of a fetus to live outside the womb or of an individual to decide
whether to end his life, or the environmental risks presented by nuclear
power--that consensus does not tell us what we ought to do. At best, we can
more or less carefully separate the two kinds of questions and argue about who
ought to have the authority to decide each of them. That, to refer back to the
earlier discussion, is probably the core academic responsibility in this area.
3) There are arguably some core conscience claims outside of religion that we
do treat essentially as black box decisions, at least in individual cases,
including many equality and speech claims. Having decided to privilege artistic
or political speech, for instance, we don't ask why Andres Serrano needed Piss
Christ not to be Waterlogged Christ, or rank his artistic impulses against
those of other artists, or do much by way of balancing Serrano's artistic needs
against the needs of the community.
4) Having started down the normative road, we might (and sometimes do, but we
could always do so) just as well ask why we privilege community needs over
individual claims, the state over other normative or interpretive communities,
equality over liberty, ostensibly secular reasons over religious ones, etc.
> On Feb 15, 2014, at 7:41 PM, "Hillel Y. Levin" <hillelle...@gmail.com> wrote:
>
> I have found the posts about the HL and ND cases quite fascinating and
> illuminating. Thank you all.
>
> It strikes me that the question many of us are debating is really a normative
> one rather than a descriptive one. Why should law and legal culture privilege
> religious needs over other needs? It is plain to me that the law does
> privilege religion in ways both formal (see: Sherbert-version of the Free
> Exercise clause, RFRA, and the myriad state and federal laws that have
> religious accommodations built in to them) and informal. By informal, I mean
> the reluctance that many of us have in questioning the sincerity of ND's
> claims.
>
> But why should law give wider berth to religious needs than to others? Here's
> a simple example: many laws accommodate sabbath and religious holiday
> observance; but what about the person who simply says, "for my own mental
> health, emotional well-being, and feeling of centered-ness, I can't work on
> Tuesdays." Such a person would suffer both formally (the law does not protect
> this person's psychic needs) and informally (many people, even in polite
> society, would scoff at this person's claim and express doubt about its
> sincerity, or perhaps even question the sanity of the person who asserts a
> need for accommodation on this basis).
>
> In a sense, the law treats religion as a black box. We can't really claim to
> understand what compels a person's religious needs, but the law demands that
> we accept whatever that black box produces as a bona fide reason to provide
> the accommodation.
>
> No other accommodation demanded by the law that I am aware of operates this
> way. If a medical accommodation is requested, we want to understand why the
> person needs the accommodation; we want an expert to certify the need; we
> want to know the science behind it. Nothing else gets the black box
> treatment. A person's (sincere!) psychic and emotional needs, let alone
> aesthetic preferences, will never be enough to get special treatment.
>
> Those who think that there is something special about religion are more
> likely, of course, to side with the NDs and HLs of the world. Those who don't
> are less likely to do so. I think that's what we're all really arguing about.
>
> So: why is religion special?
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