Are Organizations’ Religious - Ricerca sull'intelligenza artificiale specializzata al MIT

Are Organizations’ Religious
Exemptions Democratically Defensible?

Stephanie Collins

Theorists of democratic multiculturalism have long defended individuals’ religious
exemptions from generally applicable laws. Examples include Sikhs being exempt
from motorcycle helmet laws, or Jews and Muslims being exempt from humane an-
imal slaughter laws. This essay investigates religious exemptions for organizations.
Should organizations ever be granted exemptions from generally applicable laws in
democratic societies, where those exemptions are justified by the organization’s reli-
gion? This essay considers four arguments for such exemptions, which respectively rely
on the “transferring up” to organizations of individuals’ claims to autonomy or rec-
ognition; organizations’ own claims to autonomy or recognition; organizations’ sta-
tus in the accountability community; and organizations’ procedural constraints. IL
essay concludes that only the last argument holds up–and then, only with caveats.

M any democratic societies are pluralistic: people from different cul-

tural, ethnic, and religious backgrounds live together, with different
plans and values, and they disagree strongly about the permissibility
of particular practices. Yet coordination and cooperation require that all citizens
are united under one set of laws. Sometimes, this tension between pluralism and
unity produces a religiously grounded exemption: there is a generally applicable law,
but some are granted an exemption from that law because of religious conviction.
Così, the United Kingdom’s Highway Code requires that “On all journeys, IL
rider and pillion passenger on a motorcycle, scooter or moped MUST wear a pro-
tective helmet.” Yet, “This does not apply to a follower of the Sikh religion while
wearing a turban.”1 In other cases, the exemption is granted for religious reasons,
but the exempt party is not an adherent of the religion: in the Australian state of
Victoria, local councils have successfully applied for exemptions from antidis-
crimination legislation so they can run women-only swimming classes targeted
at Muslim women.2 Here, the exempt parties are the councils, yet the exemption
is justified with reference to the religion of individuals (swimming pool users).

In the 1990s, there was heated philosophical debate over such exemptions.
Some viewed them as the proper response to individuals’ autonomy or need for
recognition.3 Others argued that exemptions are unnecessary if we have robust

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freedom of association or that the values underlying the general laws are sufficient
to reject exemptions (and if the values are not sufficient for this, then the general
law should be scrapped altogether, rather than exempting some from it).4

All this concerns individuals’ religious claims. But recently, organizations’ re-
ligions have loomed large in pluralistic democracies. In 2014, Ashers Bakery in
Northern Ireland refused to bake a cake with the slogan “Support Gay Marriage”
because the slogan was “inconsistent” with the company’s religious beliefs. IL
customer sued the company for discriminating against his sexual orientation and
political beliefs. In October 2018, the Supreme Court ruled in favor of the bak-
ery, stating that service providers may refuse to endorse messages they profoundly
disagree with.5

A legislative example comes from Australia, where the Sex Discrimination Act
allows an “educational institution that is conducted in accordance with the doc-
trines, tenets, beliefs or teachings of a particular religion or creed” to “discrimi-
nate against another person on the ground of the other person’s sex, sexual orien-
tazione, gender identity, marital or relationship status or pregnancy” if that person
is a potential staff member, contract worker, or student.6 Thus, religious educa-
tional institutions may refuse to accept gay or trans people as staff or students,
though such refusal would be unlawfully discriminatory if enacted by a non-
religious educational institution. Così, religious educational institutions are ex-
empt from generally applicable antidiscrimination laws.

This essay examines justifications for exemptions that protect the religious
convictions of organizations, including schools, hospitals, imprese, charities,
churches, and others. My aim is not to justify or reject particular exemptions, come
as those described above. My aim is more fundamental. I ask whether organiza-
tions’ religious convictions can give rise to claims at all, even before those claims
have been weighed against individuals’ competing claims. I argue that exemp-
tions should almost always be judged with reference to the religious convictions
of individuals, not organizations. I reach this conclusion by examining four argu-
ments for organizations’ religious exemptions, only one of which succeeds, E
then only rarely.

T o start, what are organizations? They are a type of collective agent. A col-

lective agent is constituted by agents that are united under a group-level,
rationally operated, distinct decision-making procedure. In general, UN
collective agent might be large or small, formal or informal, short-lived or long-
lasting, and so on, including families, sports teams, reading groups, and many
more. Organizations, Anche se, are specific: they have “(UN) criteria to establish their
boundaries and to distinguish their members from non-members, (B) principles
of sovereignty concerning who is in charge and (C) chains of command delineat-
ing responsibilities within the organization.”7

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Dædalus, the Journal of the American Academy of Arts & SciencesAre Organizations’ Religious Exemptions Democratically Defensible?

Collective agents–including organizations–can form irreducibly group-level
religious convictions. To see this, consider that a “decision-making procedure”
takes in reasons, beliefs, and preferences, and processes them to produce deci-
sions. Organizations’ procedures include voting, committees, meetings, E
so on, but their procedures are often informal and tacit, with the organization’s
true beliefs and preferences revealed by the on-the-ground behavior of members
(when acting within and because of their role), rather than by the “official par-
ty line.” Whether formal or informal, an organization’s procedure is “distinct”
in that 1) the reasons it takes in tend to differ in kind from the reasons any of
its members take in when deciding for themselves (consider: votes, proposals,
and so on); E 2) its method for processing those reasons is different from the
method of any one member when deciding for herself. Per esempio, an organi-
zation might take the meeting contributions of members and process these using
conversation-based consensus, thereby using a distinctive set of inputs and proce-
dures to arrive at organizational beliefs. Members are unlikely to use these inputs,
processed in this way, when settling the beliefs they hold themselves. If a proce-
dure is “rationally operated,” it is operated with the aim of ensuring that current
decisions follow from current beliefs and preferences, and that current beliefs and
preferences are consistent with past beliefs, preferences, and decisions, plus any
new evidence that has arisen since those were formed.8

The rational operation of a distinct procedure can mean a collective’s current
beliefs are determined by its past beliefs, rather than by members’ current beliefs.
Per esempio, if a school has a long-standing practice of focusing on Christianity
when teaching religion, then it might be rational for the school to continue this
practice (maintain this preference), even if some, many, most, or even all current
teachers and managers would prefer the school teach all religions equally. Questo
possibility of departure is crucial, since–as I will explain–it allows a collective to
have a religious conviction that no member has.

W ith this characterization of organizations in hand, how might we jus-

tify their religious exemptions? A first strategy emphasizes that orga-
nizations are intimately related to members. That intimacy inheres
in at least two strands. Primo, organizations largely supervene on members: many
ways of changing organizations require changing the members. Per esempio, one
natural way to alter an organization’s convictions is for enough members to al-
ter their inputs in the decision-making procedure. Secondo, organizations’ actions
are largely constituted by members’ actions: an organization usually cannot imple-
ment a policy, sign a contract, and so on, without members’ actions.

Given this intimate connection, perhaps organizations’ religious exemptions
are justified via the religious convictions of members. That would be convenient,
since we have well-established theories justifying religious exemptions for indi-

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149 (3) Summer 2020Stephanie Collins

viduals. Perhaps the religious convictions of bakery owners generate a claim of
the bakery itself. Perhaps the religious convictions of schools’ managers justify a
claim of the school itself.

To assess this, we must justify individuals’ religious exemptions, returning to
the 1990s debate. Philosopher Will Kymlicka has focused on “societal cultures”
rather than religions, but his points can be extended to religions. For Kymlicka,
a societal culture is “a culture which provides its members with meaningful ways
of life across the full range of human activities including social, educational, Rif-
ligious, recreational, and economic life, encompassing both public and private
spheres.”9 Kymlicka’s crucial premise is that “freedom involves making choices
among various options, and our societal culture not only provides these options,
but also makes them meaningful to us.”10 Kymlicka insists people do not need
“freedom to go beyond one’s language and identity, but rather the freedom to move
around within one’s societal culture.”11 Plausibly, this role–of providing options,
making options meaningful, and allowing us to choose among them–extends
to religious tenets, practices, and communities, rather than being restricted to so-
cietal cultures.

Kymlicka argues that we need exemptions in order to preserve societal cultures,
which in turn are needed because of their value for individual autonomy, under-
stood as the capacity to make choices from among meaningful options. By “mean-
ingful” options, I take Kymlicka to mean options for which there are self-identity
connotations to choosing one way or another; an option is meaningful if it reflects
some core feature of a person’s identity. Kymlicka’s argument resonates with phi-
losopher Joseph Raz’s autonomy-based conception of well-being, according to
which “a person’s well-being depends to a large extent on success in socially de-
fined and determined pursuits and activities. . . . [People’s] comprehensive goals
are inevitably based on socially existing forms.”12 That is, our well-being depends
upon our ability to select from among options that are already well-established
within our society or, more important for present purposes, our religion.

A different argument for individuals’ exemptions draws on philosopher
Michael Sandel’s idea that humans’ constitutive ends define our personal iden-
tity, such that we are “thick with particular traits.”13 These ends and traits are
not chosen, as the autonomy argument asserts. Piuttosto, one’s religion (and cul-
ture more broadly) is “an attachment they discover, not merely an attribute but
a constituent of their identity.”14 Similarly, philosopher Robert Audi endorses “a
protection of identity principle: The deeper a set of commitments is in a person, E
the closer it comes to determining that person’s sense of identity, the stronger the
case for protecting the expression of those commitments.”15 Audi points out that
“as a matter of historical fact and perhaps of human psychology as well, religious
commitments tend to be important for people in both ways: in depth and in deter-
mining their sense of identity.”16 Thus we have the identity-based argument for

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Dædalus, the Journal of the American Academy of Arts & SciencesAre Organizations’ Religious Exemptions Democratically Defensible?

claims to religious exemptions: our religion is constitutive and/or determining of
our (sense of ) identity; our (sense of ) identity should be respected and protected;
Perciò, our religion should be respected and protected, which will sometimes
require that we are exempt from generally applicable laws.

How might humans’ autonomy-based or identity-based claims transfer to or-
ganizations? The idea is this: When Ashers Bakery endorses a message, this im-
plies that (some of ) its members endorse that message. But the option not to en-
dorse that message is crucial for members’ autonomy or identity. So, for mem-
bers’ autonomy or identity to be respected, the bakery must be granted a claim
to resist endorsing the message. The action transfers down (from organization to
member); so the claim not to perform that action transfers up (from member to
organization).

The problem is that the action does not transfer down. So there is no reason for
the claim to transfer up. Ashers Bakery endorsing a message does not imply that
any individual member endorses the message. Even if it is true that–to respect
and protect individuals’ autonomy or identity–individuals should be free not
to endorse messages they disagree with, this individual freedom is not infringed
upon when an organization of which they are a member endorses a message. IL
transferring-up strategy commits the fallacy of assuming that when a whole has
some property, some constituent part of the whole also has that property. If a wall
is eight feet tall, that does not imply that any brick constituting the wall is eight
feet tall. Likewise, when a bakery endorses a message, this does not imply that any
member endorses the message.

Nonetheless, sometimes some, most, or even all organization members will
feel (or be interpreted as) tainted by the behaviors of their organization. A school’s
hiring a gay teacher does not imply that any member hires the gay teacher. But the
school’s hiring might cause individuals on the hiring committee to do things in-
consistent with their autonomy or identity. If so, do members’ claims transfer up
to the organization, despite the action not transferring down?

No. Members claims might be real, in such cases. But members’ claims do not
generate a claim of the organization itself. To be clear: members’ claims need
to be balanced against the claim of the potential new hire, before an all-things-
considered judgment is made. If the former claims outweigh the latter, then mem-
bers are permitted not to be involved in the organization’s action. If there is no
other way for the organization to perform the action, then the organization is per-
mitted not to perform the action. But this does not mean that the organization
has a claim. Invece, it is akin to the Australian city councils being granted exemp-
tions to run women-only swimming classes. There, it was not that Muslim wom-
en’s rights were transferred up to the city council, such that we were respecting
the council’s claim and right to have its religious convictions respected. Invece,
granting the council an exemption was a means of respecting the women’s rights.

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149 (3) Summer 2020Stephanie Collins

Allo stesso modo, sometimes an organization’s action would have detrimental effects
on members’ autonomy or identity. The members may have a claim not to be in-
volved in that action. But these are members’ claims, not the organization’s claims.
This is important for two reasons: 1) such member claims will likely change as
the composition of the organization changes–present members’ autonomy and
identity do not say anything about future members’ autonomy and identity, so
the organization’s exemption should not be projected into the future; E 2) if we
view the organization’s exemption as grounded in a claim of the organization rath-
er than of the member(S), then we may be misled into thinking the claim is undu-
ly weighty (because organizations are large, powerful, and subsume many mem-
bers). When we view the claim as held by the relevant member(S), it will be easier
to give it proper weight balanced against the competing claims of other individu-
COME (such as potential new staff of the school).

Additionally, there are practical upshots to viewing the claim as held by mem-
bers rather than by the organization. If members make a claim based on being
tainted by the organization’s action, then the first response should be to find other
members who do not mind such “taint.” The first response should not be to grant
the organization (as a whole) the permission not to perform the action. Further-
more, members’ claims must be treated on a case-by-case basis: in an instance in
which all members refuse to be involved in the organization’s action, this might
(pending consideration of competing claims) justify allowing the organization
not to perform that action in that instance. But it would not justify a general and on-
going exemption from the organization performing actions of that type.

In sum, we must not confuse an organization’s claims with its members’
claims. The latter do not give rise to the former, even if the latter can justify orga-
nizational noncompliance with laws in some instances. To believe otherwise is to
neglect the ontological distinctness of the organization and its members.

A second argument suggests organizations have their own claims to auton-

omy and/or identity-protection. Take a university with a religious char-
acter. The interests of the university are not merely a product of the inter-
ests of its members; its interests may run counter to their interests. So perhaps it
has its own right to autonomy or identity-protection.

Take autonomy first. The idea is that one’s religion provides one with options,
and choosing from among those options is highly valuable: “the sort of freedom
. . . Essi [questo è, people] most value, and can make most use of, is freedom . . . con-
in their own societal culture.”17 This argument is grounded in the liberal concep-
tion of the self: the self is a fundamentally free being. In philosopher John Rawls’s
parole, “the self is prior to the ends which are affirmed by it,” such that individuals
“do not think of themselves as inevitably bound to, or as identical with, the pur-
suit of any particular complex of fundamental interests that they may have at any

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Dædalus, the Journal of the American Academy of Arts & SciencesAre Organizations’ Religious Exemptions Democratically Defensible?

given time.”18 Instead, they choose from among the options their societal culture
gives them.

This conception of the self is not applicable to organizations. Organizations
cannot “step back” from their goals like individuals can. To see this, imagine what
it would take for a university to reflect upon whether to pursue the goals of teach-
ing and research. Its decision-making procedure is set up such that these goals are
built in. The university qua university cannot consider neglecting these goals. UN
university can decide among some options: it might decide to invest in human-
ities rather than sciences, Per esempio. But it does so against the background of
fundamental preexisting commitments, not from the position of being “prior to”
the ends it affirms. The autonomy-based argument is inapplicable.

The identity-based argument was grounded in the proposition that our sense
of self and our life’s meaning would be lost if we could not act in ways that express
the central aspects of that identity. Tuttavia, organizations do not have a sense
of self or life’s meaning, as individuals do. Such senses require phenomenal con-
sciousness: a subjective experience, an inner world, a creature with the sense. Or-
ganizations lack phenomenal consciousness.19 So it is false that the organization’s
sense of self and its life’s meaning would be lost, were it not permitted certain
practices. I have argued that organizations have beliefs, including beliefs that are
so unshakeable they amount to convictions. But a sense of self or sense of mean-
ing is a qualitatively different thing from beliefs, however unshakeable.

In this way, organizations do not fit within either the autonomy-based or iden-
tity-based defenses of religious exemptions. Organizations are mainly constituted
by persons, but they must not be equated with persons. Not all agents are persons.

A third argument observes that we engage with organizations through what

philosopher Daniel Dennett has called “the intentional stance”: we take
a stance toward organizations that imputes to them beliefs, preferences,
intentions, and actions.20 One of the main reasons we do this is that organizations
“perform in a certain way”: specifically, they give explanations of their actions.21
Political theorists Christian List and Philip Pettit wrote: “Let the agent be a Mar-
tian, or a robot, or a chimp that has been trained or engineered to a higher level
of performance. If it proves capable of engaging us on the basis of commonly rec-
ognized obligations . . . we have every reason to incorporate it in the community
of persons.”22 Organizations can offer accounts of their actions, in which those
accounts acknowledge their obligations to others. They are therefore part of our
accountability-community.

Philosopher Leonie Smith has used this reasoning to argue for organizations’
rights.23 Crucially, Smith’s argument does not rely on substantive normative com-
mitments. In pluralistic democracies, citizens disagree about such commitments.
Così, a justification of organizations’ rights that relied on such commitments

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149 (3) Summer 2020Stephanie Collins

would enjoy scant support in pluralistic democracies. Invece, Smith has argued
for granting organizations only those rights that are reasonable preconditions for
them to offer accounts of their actions. If some rights are reasonable precondi-
tions for such account-giving, and if we have good reasons to bolster organiza-
tions’ account-giving abilities, then we have good reasons to grant organizations
some rights.

Infatti, we do have good reason to bolster organizations’ account-giving abil-
ities: such abilities allow us to demand explanations of their failures, to blame
them when they do wrong, and to bestow obligations on them. These are valuable
social-political practices. The question becomes: which rights must organiza-
tions enjoy if they are to perform in this way? Smith suggests that they need “the
right to free speech, to free association, and to be able to enter into legal contracts,
among others.”24 Yet she suggests that, Per esempio, “the right to a family private
life” might not be necessary for organizations, even if this is needed “in order to
be human.”25 And closer to our purposes, she asserts that a profit-driven organi-
zation “may not have a right to religious belief as it does not need this to perform
. . . in the particular social sphere within which it is capable of participating, E
in which it is structured to participate.”26

Smith is tentative in her endorsement of some rights and her rejection of oth-
ers. To build more certainty, we should consider what it takes to give an account of
one’s actions. In a pluralistic democratic society, I suggest, an organization’s pub-
lic explanations of its actions should refer only to public reasons, where a public
reason is, roughly, a reason that all sensible and informed citizens recognize as a
reason.27 For example, if an organization refuses to do business with a gay person
“because our holy book says homosexuality is wrong,” then it has given a non-
public reason for its action. By contrast, if it refuses to do business with someone
“because that person broke a contract with us in the past,” then this reason is pub-
lic: it is a reason all sensible and informed people would take to be a reason.

Ovviamente, the line between a public and a nonpublic reason is vague and con-
testable. But reasons that refer to substantive religious doctrines are clearly non-
public. If an organization owes society-at-large an account of its actions, then it is
not helpful if the organization appeals to a religious doctrine that other members
of the society do not endorse. Such an explanation is not intelligible to all reason-
able and informed members of society, so it is not the kind of explanation that we
should use organizations’ rights to facilitate. Religiously grounded exemptions to
generally applicable laws protect actions that are, in this way, not publicly justi-
fiable. By contrast, generally applicable laws are publicly justifiable. So claims to
such exemptions from generally applicable laws cannot be justified with reference
to organizations’ need to perform as accountable members of the moral commu-
nity: such exemptions do not bolster their ability to give public justifications of
their actions.

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T here is a fourth and final strategy. It starts from the fact that organiza-

tions are set up for a particular purpose, to be pursued in a particular way.
We saw this when discussing the second strategy. There, I noted that the
autonomy-based defense of religious exemptions is inapplicable to organizations,
because organizations lack the relevant autonomy. A university, Per esempio, can-
not consider giving up the goals of teaching and research. Those goals are funda-
mental to its decision-making. More generally, an organization cannot decide to
perform an action if its decision-making procedures, and fundamental goals, ren-
der it unable to decide to perform that action.

Building on this, I suggest we conceive of religiously grounded exemptions as
liberty-rights, rather than claim-rights: religiously grounded exemptions amount
to the lifting of a legal duty to perform some action (the action of abiding by the gen-
erally applicable law), rather than amounting to the presence of a legal duty (held by
an entity other than the right-bearer) to respect the content of the right.28 Most
members of society have a duty to abide by the generally applicable law. Any en-
tity that has an exemption lacks that duty. When exemptions are thus framed as
absences of duties, it is easy to see how they might be justified. Simply, a duty to
perform an action implies that the duty-bearing entity has the ability to perform
that action: “ought” implies “can.” By contraposition, if an entity lacks the abil-
ità, then it lacks the duty. Così, if an organization’s fundamental goals or deci-
sion-making procedures render it unable to abide by a generally applicable law,
then it cannot have a duty to abide by that law. Così, it must be granted a liberty-
right (an absence of a duty) regarding that law: an exemption from the duty to
abide by it.

The question is under what conditions an organization’s procedures and goals
render it constitutionally unable to abide by a law. When assessing this, we should
not simply take organizations at their word. After all, a school with a religious
character might suddenly find itself able to abide by antidiscrimination laws if its
funding becomes conditional on its doing so.29 In this way, organizations might
misunderstand their own constitutional inabilities.

This suggests a test for organizational abilities: would the organization abide
by the general law if it were given an incentive for doing so? If yes, then we should
reject any assertion that it is constitutionally incapable of abiding. This follows
political theorist Zofia Stemplowska’s account of feasibility, according to which
“motivational failure is an instance of mere unwillingness when there exists a
conceivable incentive that would bring the agent’s motivational state in line with
what is needed to perform the action in question.”30 By contrast, if there is no in-
centive that could induce an organization to abide by the generally applicable law,
then we should take seriously its claim to be unable to abide.

Morally speaking, it is important that the incentives are not threats.31 To en-
sure this, the offered incentive must not infringe upon the organization’s rights

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149 (3) Summer 2020Stephanie Collins

(here referring to rights other than the right to religious exemptions). I assume
these other rights are antecedently given, Per esempio, via Smith’s strategy dis-
cussed earlier. Così, I assume organizations do have some rights, including claim-
rights and liberty-rights. My argument takes no stand on how these nonreligious
rights are justified or what their content is. The argument so far has concerned
rights to religious exemptions only. When deciding whether an organization has
the specific liberty-right to a religious exemption, we should offer the organiza-
tion an incentive that does not infringe its rights that are not religious exemptions.
This introduces a temporal dimension to organizations’ religious exemptions.
After all, an organization may be unable now to abide by some law, while being
able now to take steps to make itself able at a later time. Questo è, it might have
the “diachronic ability” to abide by the law, while lacking the “synchronic abili-
ty.”32 Regarding antidiscrimination laws, Per esempio, one might think of Chris-
tian churches’ shifting perceptions of women and LGBT+ people: while it might
be plausible now for an educational institution with a religious character to claim
that it is constitutionally incapable of making the decision to employ a trans per-
figlio, any such claim will become less plausible as more churches slowly liberalize
their attitudes toward homosexuality. What’s more, such changes often happen in
an unofficial way: not through decrees of leaders, but through changing practices
and norms among the foot soldiers of the organization, as I mentioned when char-
acterizing organizations’ agency. If an organization can render itself able to abide
by some law, then its exemption might legitimately be temporally constrained.
Such organizations might be required to review their approach to the generally
applicable law, with the exemption in turn being reviewed every five or ten years.
This prevents “perverse incentives” whereby organizations are given license to
avoid the law by constituting themselves unable to abide by the law.

Another constraint on this strategy derives from individuals’ moral duties. As
emphasized above, an organization’s procedures and fundamental goals are con-
ceptually–and often substantively–different from members’ procedures and
goals. If a collective’s duty is ruled out due to its constitutional constraints, Poi
members may have moral obligations to act upon the collective from the outside
with the aim of revising the constitution. By from the outside I mean acting beyond
what is mandated by their role within the organization. Of course, members
might also have moral obligations to act within their role to change the constitu-
zione. But such internal actions are best construed as constituting actions of the or-
ganization itself, and therefore conceived of as the exercise of the organization’s
diachronic ability to abide by the law. By contrast, actions from the outside may
become morally necessary when the organization is both synchronically and dia-
chronically unable to abide by the law. Neither the internal nor the external ac-
tions of members are likely to be strictly enforceable by law, due to their demand-
ingness and potential infringement of individuals’ basic liberties. Ma, notably,

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Dædalus, the Journal of the American Academy of Arts & SciencesAre Organizations’ Religious Exemptions Democratically Defensible?

the nonenforceability of such obligations does not derive from the organization’s
claim to have its religious convictions respected. And if members face moral-
political pressure to fulfill such obligations, then the organization may well find
itself able to abide by the law after all, thus dissolving its liberty-right not to abide.
This fourth strategy might appear overly permissive, insofar as its rationale ex-
tends beyond religious organizations. Per esempio, can a white supremacist or-
ganization assert its inability to abide by antiracism laws because its constitution
is racist? I make two points in response. Primo, I have sought to find a plausible
justification for existing laws that provide religiously grounded exemptions to or-
ganizations. If that justification extends beyond religious organizations to other
(more sinister) organizations, this does not show that the law should be changed
to allow exemptions to the latter organizations. Second and more important, even
if the fourth strategy does apply beyond religious organizations, some procedures
and fundamental goals are beyond the democratic pale. Plausibly, religiously
grounded exemptions apply only to those that are within the pale. The pale might
be set in various ways, such as with reference to a harm principle or to basic lib-
eral rights. But it will rule out certain organizations as impermissible, even before
those organizations’ exemptions can arise as a political question.

W here does this leave us? Consider again the Australian law: religious

educational institutions may discriminate against potential staff
members, contract workers, or students on the basis of sex, sexual
orientation, gender identity, marital or relationship status, or pregnancy. This is
not justified by an organization having a claim of its own that is transferred up
from the claims of members (the first strategy). Nor should we view the exemp-
tion as protecting the autonomy or identity of the organization itself (the second
strategy). Neither is the exemption necessary for the accountability of the orga-
nization (the third strategy). Perhaps members have claims not to be involved in
the hiring or teaching of people, because of those people’s sex, sexual orientation,
gender identity, marital or relationship status, or pregnancy. This essay has not
sought to assess that idea. By looking directly to that possibility, we avoid giving
members’ claims more weight than they deserve, by imbuing them with the size,
power, and longevity of the organizational entity. When members’ claims are bal-
anced against those of potential staff members, contract workers, or students, IL
latter may well win. But this is a matter of balancing individuals’ claims: it is not a
matter of a claim held by the organization itself.

That said, there may be some cases in which religiously grounded exemptions
are justified with reference to the organization itself. These cases fall under the
fourth strategy, in which an organization’s procedures or foundational goals pre-
vent it from being able to abide by the generally applicable law, thus preventing
it from having a duty to so abide. To test whether this strategy can legitimately

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149 (3) Summer 2020Stephanie Collins

be taken by Australia’s religious educational institutions, I proposed an incentive
test: would sticks and/or carrots suffice to induce compliance with nondiscrimi-
nation laws? Even when the answer is no, such that the fourth strategy can be tak-
en, that strategy is unlikely to last: organizations will often have the long-term (if
not short-term) ability to abide by the general law, and members will often have
a moral duty to bring such an ability into existence if it does not yet exist. The re-
sult is that religious exemptions for organizations should be few and far between.

author’s note

For helpful feedback, I thank all participants at the “Religion and Democracy” sem-
inar funded and hosted by the Australian Catholic University, and particularly Clive
Cookson for his commentary at that seminar. I also thank participants at the 2019
Australasian Workshop in Moral Philosophy (Australian National University) E
IL 2019 Australasian Political Theory and Philosophy Conference (University of
Canberra).

about the author

Stephanie Collins is Associate Professor at the Dianoia Institute of Philosophy
at the Australian Catholic University. She is the author of Group Duties: Their Exis-
tence and Their Implications for Individuals (2019) and The Core of Care Ethics (2015). She
has published in such journals as Journal of Philosophy, Australasian Journal of Philosophy,
Philosophical Quarterly, and Political Studies.

endnotes

1 United Kingdom Government, Department for Transport, “The Highway Code: Regole
for Motorcyclists,” updated August 20, 2019, https://www.gov.uk/guidance/the-highway
-code/rules-for-motorcyclists-83-to-88.

2 John Masanauskas, “Muslim Women Thrive with Pool Man Ban,” news.com.au, Luglio
23, 2012, http://www.news.com.au/national/victoria/muslim-women-thrive-with-pool
-man-ban/story-fndo4cq1-1226432213878.

3 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Claren-
don Press, 1995); and Charles Taylor, “The Politics of Recognition,” in Multiculturalism:
Examining the Politics of Recognition, ed. Amy Gutmann (Princeton, N.J.: Princeton Uni-
versity Press, 1994).

4 Chandran Kukathas, The Liberal Archipelago (Oxford: Oxford University Press, 2003);
and Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism (Cambridge,
Massa.: Stampa dell'Università di Harvard, 2001), esp. 39, 167.

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5 Lee (Respondent) v. Ashers Baking Company Ltd and Others (Appellants) (Northern Ireland) [2018]
UKSC 49, https://www.supremecourt.uk/cases/docs/uksc-2017-0020-judgment.pdf.
6 Australian Legal Information Institute, “Sex Discrimination Act 1984–Sect 38: Educa-
tional Institutions Established for Religious Purposes,” http://classic.austlii.edu.au/
au/legis/cth/consol_act/sda1984209/s38.html.

7 Geoffrey M. Hodgson, “Institutions and Individuals: Interaction and Evolution,” Organi-

zation Studies 28 (1) (2007): 97–116.

8 Stephanie Collins, Group Duties: Their Existence and Their Implications for Individuals (Oxford:

Oxford University Press, 2019).
9 Kymlicka, Multicultural Citizenship, 76.
10 Ibid., 83.
11 Ibid., 90.
12 Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1988), 309.
13 Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University

Press, 1982), 150–165, 100.

14 Ibid., 226. See also Alastair MacIntyre, After Virtue (Notre Dame, Ind.: University of

Notre Dame Press, 1981).

15 Robert Audi, “Church-State Separation, Healthcare Policy, and Religious Liberty,” Journal

of Practical Ethics 2 (1) (2014): 1–23, 5.

16 Ibid., 5.
17 Kymlicka, Multicultural Citizenship, 93.
18 John Rawls, A Theory of Justice, rev. ed. (Cambridge, Massa.: Belknap, 1999), 491, 131.
19 Eric Schwitzgebel has argued that organizations are phenomenally conscious; see Eric
Schwitzgebel, “If Materialism Is True, the United States is Probably Conscious,” Phil-
osophical Studies 172 (2015): 1697–1721. But Christian List provides a compelling rejoin-
der; see Christian List, “What Is It like to Be a Group Agent?” Nous 52 (2) (2018):
295–319.

20 Daniel Dennett, The Intentional Stance (Cambridge, Massa.: The MIT Press, 1996).
21 Christian List and Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate

Agents (Oxford: Oxford University Press, 2011), 171.

22 Ibid., 174.
23 Leonie Smith, “The Curious Case of Ronald McDonald’s Claim to Rights: An Ontologi-
cal Account of Differences in Group and Individual Person Rights,” Journal of Social On-
tology 4 (1) (2018): 1–28.

24 Ibid., 17.
25 Ibid., 24.
26 Ibid., 26.
27 This term was made most famous by Rawls, though he claims the duty to give justifica-
tions in terms of public reasons applies only in the public political forum of courts and

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149 (3) Summer 2020Stephanie Collins

legislatures, not in the “background culture” of a society. John Rawls, Political Liberalism
(New York: Columbia University Press, 1996), esp. 220.

28 That distinction was conceptualized in Wesley Hohfeld, Fundamental Legal Conceptions

(Nuovo paradiso, Conn.: Stampa dell'Università di Yale, 1919).

29 I thank Jeanette Kennett for this point.
30 Zofia Stemplowska, “Feasibility: Individual and Collective,” Social Philosophy and Policy

33 (1–2) (2016): 273–291, 280.

31 I thank Robert Audi, Colleen Murphy, and Paul Weithman for pressing this.
32 This terminology comes from Mark Jensen, “The Limits of Practical Possibility,” Journal

of Political Philosophy 17 (2) (2009): 168–184.

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