In most Western democracies, religions are exempt from certain rules and regulations that most other organizations have to follow.
The First Amendment to the US Constitution protects our right to say and publish whatever we think, but doesn’t in general guarantee the right to do any more than that. I can believe that people shouldn’t wear fedoras, and I can publish my view. But I can’t go around knocking fedoras off the heads of those that wear them, and I may get in trouble if I fire employees for wearing fedoras. But it seems to go further with respect to religion. In addition to ruling out the establishment of a state religion, it also guarantees “the right to the free exercise of [religion].” You cannot only preach what you believe, you can practice what you preach. But just what does this mean? Do we really treat religion in a special way? Should we?
When I was young and the draft was in effect, if you practiced a religion that endorsed pacifism, you could be declared a conscientious objector and avoid the draft. But if you endorsed pacifism only on secular moral grounds, you couldn’t. So religious scruples were treated differently than scruples based on other conscientious principles. Our guest, Brian Leiter, cites the fact that Sikh students in Canada are allowed to wear ceremonial knives in class, against the rules that pertain to others. Students wouldn’t be allowed to wear knives simply because they come from families with a deeply held conviction, not based on religion, that having such protection available is a moral mandate. Leiter, a lawyer as well as a philosopher, sees the same distinction at work in U.S. law, and most other Western democracies.
Historically, I suspect that the special treatment of religion in the U.S. Constitution reflects the dominant views of the founders: there is a God, historically He or She communicates to us through conscience and organized religion, and God is a higher power than the state, and so religion deserves special recognition. But if that were made explicit, it would build an endorsement of religion -- theism, if not full blown Christianity -- right into the fundamental law of the land. And that directly violates the anti-establishment clause of the first amendment. From a more modern perspective, it would make the first amendment self-contradictory.
On the other hand, recognition that the state is not the ultimate moral authority seems like a good idea. Could we do that, if someone asked us to rewrite the Bill of Rights, without giving undue weight to religion, and without making every person the judge of which laws they should obey and which they shouldn’t obey?