Some egalitarian theories of religious freedom allow for the possibility of religious exemptions. Theories of equal value hold that when the government allows secular exemptions that undermine the purpose of a law, then it must also grant religious exemptions that have the same effect. To allow secular but not religious exemptions would be to show disregard toward, or to devalue, religion. But recent cases involving public health regulations during the pandemic have shown that this theory of exemptions is vulnerable to confusion in how claims of disvalue are articulated. Such claims can focus on (1) whether secular and religious exemptions have similar effects in undermining secular governmental purposes, or (2) whether those governmental purposes privilege secular over religious commitments. Slippage between these two levels of analysis can threaten to undermine the secular foundations of egalitarian theories. We survey some possible responses to show that an equal value approach to exemptions can be made consistent with a commitment to secular governmental purpose.
Richard C. Schragger & Micah J. Schwartzman, Slipping from Secularism, Virginia Public Law and Legal Theory Research Paper (2022).