I have elsewhere suggested that granting religious exemptions to otherwise generally applicable laws is a bad idea because, of the two ideas in conflict—the religious idea of the exempted person and the legal idea of the society, the legal idea of the society should be granted more weight. E.g.:
If you want to have a moral principle, if you want to exercise your conscience, then why can’t you do it in a way that can be grounded in reality, in what we experience?
And:
You want to have an opinion? You state it, and you fight for it, and you back it up with solid reasoning—but the laws will have to apply to you just the same as they apply to everybody else.
In other words, I have suggested that religious exemptions rooted in the exercise of conscience are objectionable because there is no solid ground for such religious ideas: they are wholly imaginary. An easy criticism of my view might be that the legal ideas of society are no more connected to “solid ground” than religious ones. Aren’t laws arbitrary and imaginary, too?
Professor Stanley Fish, reading Thomas Hobbes, suggests otherwise in his blog “Think Again” at the New York Times.
Hobbes begins with the etymology of “conscience” — conscire, to know in concert with another — and proceeds to a definition of conscience that turns the one we know upside down. Since conscience, correctly understood, refers to those occasions “when two or more men know of one and the same fact . . . which is as much to know it together,” it is a violation of conscience — of knowing together — to prefer their “secret thoughts” to what has been publicly established.
. . .
[I]f one gets to prefer one’s own internal judgments to the judgments of authorized external bodies (legislatures, courts, professional associations), the result will be the undermining of public order and the substitution of personal whim for general decorums: “. . . because the Law is the public Conscience . . . in such diversity as there is of private Consciences, which are but private opinions, the Commonwealth must needs be distracted, and no man dare to obey the Sovereign Power farther than it shall seem good in his own eyes.”
Interestingly, this reminds me of Heidegger, whose Being and Time I was reading over the weekend. One of the ideas I reap from Heidegger is that everything is grounded in its relation to everything else. To make a bastardized summary in Heideggerian form: what gives our being solidity is its being in relation all the rest of being. In other words, turning back to Hobbes, whose work is much easier to grasp from the get-go, conscience, as something created relationally, has much greater heft than something asserted individually; something that arises from “two or more” who “know it together” is much more trustworthy than something that arises from one—perhaps a prophet or other self-appointed apocalyptic messenger of the alleged divine?
And the easy critique of that view is that religion is also created relationally. Doesn’t that put it on an equal footing with “authorized external bodies” like legislatures, courts, and professional associations? Probably not—at least not in my opinion. That takes me to another philosopher, John Rawls, and his idea of the “overlapping consensus.” We can’t all agree on everything, but we can all agree on something, and that something should be at the core of our system of governance. Call the overlapping consensus our Hobbesian conscience with a Heideggerian pedigree. (Or not, if you you don’t enjoy the philosophical name-dropping, Bruce.)
In short, the religious conscience is “softer” than the force of generally applicable laws because when we’re in the public sphere, where we have little choice in the fact that our neighbors may take different moral or religious views than we do, we still must relate to those neighbors as the face—or the mirror—of the society that enables our social existence. Granting people the ability to undercut the basic structure of human society because their moral or religious views are different from those we’ve elevated to the level of law is not substantially different from advocating a structureless society, which is an oxymoron.