Freedom of Religion and the Secular State by Russell Blackford

Author:Russell Blackford
Language: eng
Format: epub, pdf
Publisher: Wiley
Published: 2011-11-23T16:00:00+00:00

Barry’s Fork

Brian Barry is critical of the practice of granting legislative exemptions from neutral laws of general application, and I believe that he somewhat overstates his position. Nonetheless, he is on strong ground when he argues that many laws should either have no exemptions or should not be enacted in the first place. We might refer to this argument as “Barry’s Fork.”

Barry acknowledges that a law may bear on some people with special harshness, and that this “is at least a reason for examining it to see if it might be modified so as to accommodate those who are affected by it in some special way.” Such an examination might be prompted by considerations of prudence or generosity.21 It is well to add that there could be issues of fairness or justice. Consider Greenawalt’s argument from the experience with Prohibition in the US – a time when alcohol was prohibited, but an exemption was given for communion wine in Christian church services. For Greenawalt, this shows an “obvious point”: “allowing people to participate in acts of worship that are at the center of their religious practice is a very strong reason to create an exemption.”22 The issue of justice is this: if the state is prepared, even counterfactually, to tailor its laws to provide for the religious requirements of large Christian denominations such as Roman Catholicism, why not also for the followers of Native American religions?

Of course, there is something to this argument. As I’ve already suggested, the state has good secular reasons to avoid acts that suppress religions, even if that is not the intention or the principal legislative effect. Moreover, it has good reasons to act fairly, treating analogous cases in ways that are relevantly similar. But here’s where Barry’s Fork becomes relevant. Surely the most obvious point that emerges from reflection on the Prohibition era is the foolishness of sweeping bans on activities that give people pleasure and are not directly harmful to others. While carefully tailored regulation of alcohol consumption may well be justified (I have no desire to argue against it), the Prohibition experiment was disastrous. Once again, the crucial point to be gleaned is not that religious exemptions from sweeping laws may sometimes be a good idea, even though that is true; rather, it is that governments should pay more attention to the harm principle. That would result in some laws not being enacted in anything like their actual form.

Barry suggests that we can always ask whether it is better to find a less restrictive version of the law that would satisfy everyone and avoid invidious distinctions among the rights of citizens, rather than retain the law, unchanged, while exempting a group from it. In practice, he suggests, the rule-and-exemption approach is followed as a way of buying off the most articulate objectors while gaining most of what was sought. Although he does not rule out this approach in all cases, he suggests that there will usually be two possibilities: either the case for

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