The Significance of Conscience in Community: Rethinking the 'Hands off Religion' Doctrine

Chagai Schlesinger*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

When evaluating religious accommodation claims, courts refrain from examining the relationship between the specific claim and the common religious practice of the relevant religion. This paper rethinks this doctrine. I argue that it stems from understanding religious accommodation as a protection of conscience. This idea itself suffers from conceptual and practical challenges, which can be mitigated if we understand religion as a communal function of conscientious actions. The communal aspect bears practical and moral significance, and I explore three dimensions of it: the epistemic implications; its effect on constituting moral obligations toward others; and its importance as part of one's culture. A communal-conscientious approach to religion can mitigate many challenges that confront conscience accommodation. This suggests that the relationship between the individual's claim and their communal practice is crucial and should be evaluated by courts. I conclude by outlining the main considerations for creating a new, nuanced doctrine.

Original languageEnglish
Pages (from-to)463-490
Number of pages28
JournalCanadian Journal of Law and Jurisprudence
Volume36
Issue number2
DOIs
StatePublished - 18 Aug 2023

Keywords

  • conscience
  • law and religion
  • religious accommodation

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