Should laws apply equally to everyone, or should some individuals and organizations be granted exemptions because of conflicting religious or moral convictions? This question has become intensely controversial in America, as sharp debates about legal exemptions have followed Supreme Court rulings on same-sex marriage in 2015 and on insurance coverage of contraceptives in 2014 in the Court's Hobby Lobby case. These debates seem to put basic values of equality and non-discrimination at odds with liberty and the right to live according to one's religious beliefs.

In this book, Kent Greenawalt, University Professor of Law at Columbia University and a known authority on religious freedom and church-state issues, draws on legal history to create a framework for deciding when exemptions should or should not be allowed. This thoughtful, comprehensive study is written for legislators, judges, administrators, scholars of religion and politics, and — yes — ordinary citizens. He argues that our debates oversimplify the issues and fail to balance competing claims and harms. He contends that some exemptions should be granted; above all, he urges greater mutual respect and sensitivity to the claims of others in such debates.

Greenawalt provides a richly detailed survey of exemptions — including long-accepted exemptions from military service for pacifists, tax allowances for churches and non-profits, government concessions for Native Americans who use peyote in worship services, privileges for doctors and nurses who in conscience will not perform abortions, and exemptions for photographers and bakers from participation in legal same-sex weddings which they oppose on religious grounds. He concludes that “No single theory covers everything,” that context matters a great deal, that many factors are often relevant, and that “serious reflection on what should be done requires recognition of actual competing considerations and genuine concern for fellow citizens who differ from ourselves in significant ways” (224). This is a plea for deep tolerance and profound respect for differences.

Greenawalt is clearly concerned about polarization of values in the United States and about the loss of civic respect and trust. “We have in our present society a deep division of opinion about what is true and morally correct … What I want strongly to urge is that even when one sees a belief as badly misguided, that itself does not determine what respect should be given to those who maintain that conviction” (3).

Greenawalt discusses abortion, contraceptives, and same-sex marriage — hard cases where granting of exemptions may involve others who may be practically harmed. If doctors and nurses are given a right to refuse to participate in abortions, women seeking them may suffer. A similar worry can exist if employers are freed from providing insurance for contraceptives. He distinguishes these cases from exemptions that do not directly harm others, such as granting prisoners the right to wear beards longer than general regulations allow. Regarding abortion, Greenawalt describes the religious/moral convictions of physicians who refuse to participate in such procedures. Should individual doctors and nurses have rights vis-à-vis their hospital employers? Individual rights can include both a privilege of doctors and nurses not to participate in abortions although their hospital-employers provide them, and the right to actually perform abortions when that occurs away from hospital-employers who oppose them (for example, in another clinic). In other words, “What a protective law can do is to forbid an employer from disciplining or dismissing a doctor or nurse who chooses to act or not act in a way that is contrary to institutional policy.”

For organizations, Greenawalt concludes that there are good reasons both to provide some institutional exemptions and to limit them to religious institutions. Here he refers specifically to hospitals affiliated with the Roman Catholic Church, which has a long history of providing medical services and a long tradition of opposition to abortion. He argues that a Catholic hospital may be exempt from providing abortions for three reasons: (1) respect for the basic concept of liberty of religious denominations; (2) the long history of this institution and its provision of medical services (excluding abortion); and (3) a fear that if an exemption is denied to such religiously-affiliated hospitals, a real danger exists that the Catholic Church will close its hospitals. Greenawalt cites examples of such cessation of services by church-related adoption agencies. For example, Catholic Charities of Massachusetts terminated its adoption service once state government forbade discrimination based on sexual orientation and the Catholic Archdiocese of Washington stopped foster care placement rather than treat same-sex and opposite-sex couples equally. Greenawalt notes that Catholic hospitals in 2000 admitted 17% of all patients nationally, and writes, “We cannot be sure what would replace the existence or control of these facilities if the Church withdrew because abortions were required, but the possibility of such a withdrawal is a serious concern” (103).

While Greenawalt defends carefully crafted statutory exemptions for doctors and hospitals that oppose abortion on religious grounds, he also insists that any such privilege or exemption must be qualified by the competing needs of those seeking medical services. An absolute, unqualified exemption for a doctor is obviously troubling if a woman's life is actually at stake or if nonparticipation will make it very hard to get an abortion anywhere near the locality in which she lives. He concludes that a doctor's exemption is not absolute but must be qualified by the proviso that a hospital may require a physician to provide temporary assistance if no one else is available to ensure that a woman can obtain an abortion.

Greenawalt brings a similar sense of pragmatism to his discussion of exemptions, religious convictions, and same-sex marriage. He recognizes that exemptions were a crucial part of the decades-long campaign which led to the 2015 Supreme Court decision establishing a constitutional right to same-sex marriage. As he notes, “In the early stages of the marriage equality movement, the granting of exemptions proved absolutely necessary within many states to accomplish the extension of marriage rights to same-sex couples” (18). He considers carefully the granting of such exemptions to those — bakers, florists, and photographers — who, for reasons of conscience, refuse to participate in same-sex weddings. He argues that this is in truth a genuine conflict, not to be dismissed or trivialized, and urges understanding and concern for fellow citizens who differ from ourselves (212). Through thoughtful analysis of existing cases, he concludes that exemptions may be granted to photographers who provide a historical record of a marriage ceremony, but that a baker's participation is too marginal, indirect, and remote to justify an exemption from compliance with nondiscrimination laws.

Greenawalt's theories in Exemptions are about to be tested, as the Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission during its 2017–2018 term. The case is an appeal from a Colorado baker with religious objections to same-sex marriage who lost a discrimination case for refusing to create a cake to celebrate such a union. Greenawalt's excellent guide to exemptions is both timely and a valuable resource as American society struggles to come to terms with these controversies.