The other day I was sitting at my computer, writing an abstruse philosophy paper on an abstruse topic, when suddenly the very issue that I was discussing found its way into the headlines. The new leader of the NDP, Jagmeet Singh, was accused of failing to respect the boundary between religion and politics, on the grounds that, while in the Ontario legislature, he introduced a private member’s bill that would have granted an exemption for Sikhs from motorcycle helmet laws. (There was a lot of grousing coming from Quebec about the “ostentatious” religious symbolism of Singh’s mode of dress.) The example, I thought, was ill-chosen, because one need not appeal to any exotic religious concerns in order to support such accommodations, they follow rather straightforwardly from the liberal norm of equality. Or so I argue. This is what I was writing:
The impression that exemptions necessarily involve some violation of equality is, of course, encouraged by the popular view that treating people equally involves treating them all the same. Few philosophers are tempted by such a simplistic analysis. Perhaps the most sustained philosophical defence of the view that exemptions conflict with equality was put forward by Brian Barry, who developed what he called a “pincer argument” against the granting of religious-based exemptions. He claims that, if the rule is in fact justified, then it should be applied to all. If, however, there is a good case to be made for an exemption, then that is actually an argument against having any rule at all. “Either the case for the law (or some version of it) is strong enough to rule out exemptions, or the case that can be made for exemptions is strong enough to suggest that there should be no law anyway.” He gives multiple examples, but perhaps the most useful is that of Sikhs requesting exemption from various safety regulations – such as the wearing of hardhats on constructions sites – in order to permit them to wear turbans. Barry’s argument is that, either safety is important, in which case hardhats should be mandatory, or else it isn’t that important, in which case everyone should be free to choose.
This argument is puzzling, for several reasons, not least because it seems to involve an overly simplistic view of how most rules and regulations function, and how many exemptions are already built into existing arrangements (many having nothing to do with religion). Consider, for instance, something as simple as the speed limit on an urban street. Like most norms, this represents a compromise between the interests of different groups. Residents and pedestrians typically would like vehicular traffic to move slowly, reducing both noise and accident risk. Drivers, on the other hand, would like to be able to move through as quickly as possible. Speed limits are set by weighing the interests of these two (primary) parties against one another. This generates the usual pattern, in which speed limits are lower in residential neighborhoods and areas with significant pedestrian traffic (e.g. near schools), higher in low-density areas or designated thoroughfare streets. The weighing of interests is governed by a norm of equality, specifying that everyone’s interests are given roughly equal weight – so that, for instance, the rules do not arbitrarily privilege the interests of drivers over pedestrians. (And to the extent that this norm is violated, opposition to the rules is typically based on precisely that point.)
At the same time, we recognize that the “interest” groups in question are not entirely homogeneous. Most drivers, for instance, may be commuters, who want to get home sooner rather than later, but do not have any particularly vital interest at stake. Some drivers, by contrast, may have much more important reasons for wanting to get to their destination quickly – perhaps they are bringing someone to the hospital, or rushing to put out a fire. Instead of just averaging across these different groups, in order to determine what weight to assign to the interests of drivers on the whole, what we do instead is create a rule that reflects the weight assigned to the majority of drivers, in this case the commuters, but then allow for certain exceptions. In particular, we allow a designated set of emergency vehicles the right to exceed the speed limit with impunity. Rather than averaging everything together, then raising speed limits everywhere by 2 km/h, in recognition of the fact that a small number of drivers have very urgent business, it makes more sense to keep the speed limits low, to reflect the importance of the typical driver’s business, and then allow an exemption for those who happen to have urgent business.
If one considers Barry’s examples, such as the issue of Sikh workers wanting exemption from hard-hat regulations, one can see that they have the same structure. Worker safety regulations in general reflect a compromise between a range of competing interests. For instance, the reason that workers must be forced to wear hardhats is partly that workers do not like them, since headgear can be uncomfortable, hot, and easily misplaced. If comfort were not an issue, workplace injuries could no doubt be reduced by requiring construction workers to wear kevlar vests. The question is where one should draw the line. The answer is typically determined by balancing worker interests against the prudential and paternalistic interests of the firm and the state (i.e. the worker’s compensation insurance system). Thus hardhats and steel-toed boots are considered reasonable, as are safety-harnesses in certain jobs, but kevlar vests are not. Part of the reason that hardhats are a “no-brainer” is that the discomfort workers experience from wearing them is not very great, and so the “interest” that is being overruled by the regulation is not particularly weighty. This is not true with respect to Sikh workers, however, who have, in addition to the “weak” reason of comfort, a very strong reason, grounded in religious observance, not to wear hardhats. Given the exceptional nature of this group, it does not make sense to average everything together and change the rule slightly for everyone, the natural response is just to keep the rule for the typical cases and to allow an exception for the one group. This is an application of, not a violation of, the norm of equality. The exemption does not mean that one person’s interests are being assigned greater weight than anyone else’s, it is simply a reflection of the fact that different people have significantly different interests at stake, none of which may be disregarded.