3 - The General Right to Conscientious Exemption in US Law: Beyond Religious Privilege?

Summary

This chapter argues that the general right to conscientious exemption should not be understood as a privilege of persons who object on the basis of religious beliefs. Three arguments are advanced for the right also being available on the basis of non-religious conscientious beliefs. The first argument, principally relying on the precedential force of Welsh, is to interpret the reference to ‘religion’ in the statutory grounds of the general right to include conscientious non-religious beliefs. The second, the Establishment Clause Argument, shows that the USSC has consistently held that exemptions that are reserved only to religious objectors violate the Establishment Clause which prohibits government from favouring religion over irreligion. The third argument, the Equal Protection Argument, shows that exemptions that are reserved only for religious objectors violate the Equal Protection Clause (including its application to the federal government through the Due Process Clause) which prohibits government from drawing arbitrary distinctions between persons. The chapter concludes by showing that under the constitutional doctrine of Church Autonomy, religious institutions enjoy exemptions which non-religious associations can also benefit from under the freedom of expressive association. All grounds of the general right are therefore shown to be available to non-religious objectors.