Abstract
This chapter explains why granting conscientious exemptions is almost always the outcome of toleration – and always the outcome of toleration – in cases where the exemption is granted from a law that reflects or enforces moral values. The chapter explains why the principle of toleration better explains both the practice of granting conscientious exemptions and the attitude of those who grant the exemptions.
Much of the discomfort that this argument causes and much of the criticism of it, result from confusing the dominant descriptive aspect of toleration with its non-existent normative aspect; from mistakenly seeing toleration as a reason or justification; and from mistakenly perceiving it as a political or moral virtue. The chapter explains why toleration is a descriptive concept and never a reason or justification to act in a certain way, and why toleration is not a political or moral virtue, but rather either morally good, morally allowed, morally prohibited or a lesser evil – all according to the circumstances.
The chapter then continues to explain why the concepts of neutrality and respect fail to accurately describe the practice of granting conscientious exemptions and the attitude of those who grant the exemptions. As to neutrality, it fails to describe the practice of granting conscientious exemptions, both because the state is not and can never be neutral, and because the argument that granting conscientious exemptions results from state’s neutrality can never be coherent. As to respect, it either misses the nature of conscientious exemptions – or collapses into the definition of toleration. The chapter concludes with a conceptual note according to which the concepts of neutrality and toleration have some overlooked similarities, generally, and also within the context of granting conscientious exemptions.
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References
Adenitire J (2017) Conscientious exemptions: from toleration to neutrality; from neutrality to respect. Oxf J Law Relig 6(2):268–292
Adenitire J (2020) A general right to conscientious exemption: beyond religious privilege. Cambridge University Press, Cambridge
Ammori M (2009) Beyond content neutrality: understanding content-based promotion of democratic speech. Fed Commun Law J 61:273–324
Chemerinsky E (1994) The first amendment: when the government must make content-based choices. Cleve State Law Rev 42:199–214
Chemerinsky E (2000) Content neutrality as a central problem of freedom of speech: problems in the Supreme Court’s application. South Calif Law Rev 74:49–64
Jones P (2012) Toleration, religion and accommodation. Eur J Philos 23(3):542–563
Nehushtan Y (2013) What are conscientious exemptions really about? Oxf J Law Relig 2:393–416
Nehushtan Y (2015) Intolerant religion in a tolerant-liberal state. Hart Publishing, Oxford
Nehushtan Y (2019) Conscientious objection and equality laws: why the content of the conscience matters. Law Philos 38(3):227–266
Raz J (1988) The morality of freedom. Oxford University Press, Oxford
Schultz C (1999) Therapeutic jurisprudence: content-based restrictions on free expression: re-evaluating the high versus low value speech distinction (symposium). Ariz Law Rev 41:573
Smet S (2019) Conscientious objection through the contrasting lenses of tolerance and respect. Oxf J Law Relig 8(1):93–120
Stone G (1983) Content regulation and the first amendment. William Mary Law Rev 25(2):189–252
Wright RG (2006) Content-based and content-neutral regulation of speech: the limitations of a common distinction. Univ Miami Law Rev 60(3):333–364
Acknowledgments
My thanks are due to my muse who enabled me to complete writing this chapter simply by being my muse.
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Nehushtan, Y. (2022). Conscientious Exemptions: Between Toleration, Neutrality, and Respect. In: Sardoč, M. (eds) The Palgrave Handbook of Toleration. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-42121-2_54
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DOI: https://doi.org/10.1007/978-3-030-42121-2_54
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