How	Should	Claims	For	Religious	Exemptions	Be	Weighed? Paul	Billingham Christ	Church,	University	of	Oxford,	UK This	is	an	Accepted	Manuscript	version	of	an	article	forthcoming	in	the	Oxford	Journal	of Law	and	Religion.	The	online	first	version	of	the	article	is	available	at http://ojlr.oxfordjournals.org/cgi/reprint/rww055?	ijkey=nZLVrzG9dzjhKUY&keytype =ref. Abstract Many	philosophers	and	jurists	believe	that	individuals	should	sometimes	be	granted	religiouslygrounded	exemptions	from	laws	or	rules.	To	determine	whether	an	exemption	is	merited	in	a particular	case,	the	religious	claim	must	be	weighed	against	the	countervailing	values	that favour	the	uniform	application	of	the	law	or	rule.	This	paper	develops	and	applies	a	framework for	assessing	the	weight	of	religious	claims	to	exemption,	across	two	dimensions.	First,	the importance	of	the	burdened	religious	practice,	which	is	determined	by	its	level	of	obligatoriness and	centrality,	according	to	the	beliefs	of	the	individual	claimant.	Second,	the	extent	of	the burden	on	the	practice,	which	depends	on	the	cost	the	individual	bears	if	she	both	undertakes the	religious	practice	and	obeys	the	law	or	rule,	where	costs	are	assessed	using	an	impartial account	of	individual	interests.	Exemptions	should	be	granted	when	claims	are	weighty	on either	of	these	dimensions	and	the	countervailing	value	is	relatively	weak.	The	final	section	of the	paper	responds	to	an	important	objection	to	this	approach,	which	concerns	administrability. 1.	INTRODUCTION Many	philosophers	and	jurists	endorse	an	approach	to	religious	exemptions	known	as 'reasonable	accommodation'.	On	this	view,	religious	individuals	have	a	pro	tanto	claim	to	the accommodation	of	(certain)	actions	that	they	desire	to	undertake	for	religious	reasons,	through their	being	given	an	exemption	from	a	rule	or	law	imposed	by	an	employer,	place	of	education, 2 or	the	state.	This	claim	is	weighed	against	the	interest	that	the	state	(or	employer	or	school)	has in	the	uniform	application	of	the	rule.	Exemptions	should	be	granted	whenever	the	religious claim	outweighs	these	countervailing	considerations. In	US	jurisprudence,	the	so-called	'Sherbert	test'	reflects	this	view.	This	test	derives	from the	Supreme	Court	decision	in	Sherbert	v.	Verner1	that	individuals	who	refuse	Saturday	work	on the	basis	of	a	religious	conviction	could	not	be	denied	unemployment	compensation.	The doctrinal	justification	given	for	this	decision	was	that	a	law	that	'substantially	burdens'	an individual's	exercise	of	religion	can	be	enforced	against	her	only	if	the	state	has	a	'compelling interest'	in	its	application	that	cannot	be	adequately	served	by	less	restrictive	means.	In	cases where	there	is	a	'substantial	burden'	and	no	'compelling	state	interest',	exemptions	should	be granted. This	approach	was	strongly	challenged	by	the	Supreme	Court's	ruling	in	Employment Division	v.	Smith,2	in	which	Justice	Scalia,	writing	for	the	majority,	declared	that	the	balancing test	derived	from	Sherbert	was	unworkable.	Nonetheless,	Sherbert-style	tests	still	apply	to	US federal	laws,	through	the	Religious	Freedom	Restoration	Act	(RFRA)	(1993)	and	the	Religious Land	Use	and	Institutionalised	Persons	Act	(2000),	and	such	tests	are	also	included	in	many state	constitutions.3 This	approach	can	also	be	seen	in	recent	European	jurisprudence.	For	example,	in January	2013	the	European	Court	of	Human	Rights	(ECtHR)	released	its	judgment	on	four religious	exemptions	cases	involving	UK	citizens.4	In	this	judgment,	the	Court	explicitly	adopted a	balancing	test,	talking	about	the	considerations	on	'each	side	of	the	scales'	that	it	took	into 1	374	U.S.	398	[1963]. 2	494	U.S.	872	[1990]. 3	For	a	detailed	account	of	this	history,	see	Kent	Greenawalt,	Religion	and	the	Constitution,	Volume	1:	Free Exercise	and	Fairness	(Princeton	UP	2006)	11-34. 4	Eweida	and	others	v.	United	Kingdom	[2013]	ECtHR	37. 3 account	in	reaching	its	verdicts.5	The	same	was	true	in	the	ECtHR's	July	2014	judgment	on France's	ban	on	face	coverings	in	public	places.6 One	important	question	for	the	reasonable	accommodation	approach	is	how	to determine	the	weight	of	a	religious	claim,	or	how	'substantial'	a	burden	is.	While	various accounts	have	been	offered	as	to	the	grounding	of	a	right	to	accommodation,	less	theoretical attention	has	been	paid	to	what	factors	determine	the	weight	of	particular	claims	to	exemption.7 Ernest	Lim	has	recently	highlighted	this	lacuna,	and	challenged	defenders	of	religious exemption	to	provide	a	principled	and	workable	theory	of	how	legislatures	and	courts	can establish	when	exemptions	ought	to	be	granted,	by	articulating	clearer	standards	for	use	within the	balancing	test.8	This	paper	responds	to	that	challenge	by	developing	an	account	of	how	the weight	of	a	claim	to	exemption	ought	to	be	determined.	The	legitimacy	of	religious accommodation	in	general	is	taken	as	given	here,	in	order	to	focus	on	this	question	of	weight.9 5	For	example,	see	para	94. 6	S.A.S.	v.	France	[2014]	ECtHR	695. 7	For	recent	accounts	of	grounding,	see	Paul	Bou-Habib,	'A	Theory	of	Religious	Accommodation'	(2006) 23(1)	Journal	of	Applied	Philosophy	109-126;	Jocelyn	Maclure	and	Charles	Taylor,	Secularism	and Freedom	of	Conscience	(Harvard	UP	2011);	Yossi	Nehushtan,	'What	Are	Conscientious	Objections	Really About?'	(2013)	2(2)	Oxford	Journal	of	Law	and	Religion	393-416;	Martha	Nussbaum,	Liberty	of Conscience:	In	Defense	of	America's	Tradition	of	Religious	Equality	(Basic	Books	2008);	Jonathan	Quong, 'Cultural	Exemptions,	Expensive	Tastes,	and	Equal	Opportunities'	(2006)	23(1)	Journal	of	Applied Philosophy	53-71;	Kevin	Vallier,	'The	Moral	Basis	of	Religious	Exemptions'	(2016)	35(1)	Law	and Philosophy	1-28. 8	Ernest	Lim,	'Religious	Exemptions	in	England'	(2014)	3(3)	Oxford	Journal	of	Law	and	Religion	440-461. 9	This	is	not	to	say	that	the	grounding	and	weighing	questions	are	entirely	distinct,	merely	that	we	can make	progress	on	the	latter	without	having	a	settled	view	on	the	former.	A	third	set	of	questions,	beyond grounding	and	weighing,	concern	who	should	actually	make	decisions	about	exemptions	(i.e.	legislatures or	courts)	and	how	the	regime	of	exemptions	should	be	structured.	These	questions	are	beyond	the	scope 4 Kent	Greenawalt	states	that	"a	test	of	'substantial	burden'	turns	on	the	importance	of	the burdened	practice	and	the	extent	to	which	it	is	burdened."10	Greenawalt	here	identifies	two distinct	dimensions	on	which	we	can	weigh	religious	claims.	This	paper	analyses	these dimensions	in	turn.	On	the	first	dimension,	I	argue	that	the	importance	of	a	burdened	practice	is determined	by	its	level	of	obligatoriness	and	centrality,	according	to	the	beliefs	and	values	of the	individual	claimant.	On	the	second	dimension,	I	argue	that	we	can	measure	the	extent	of	the burden	by	assessing	the	cost	that	the	individual	bears	if	she	both	undertakes	the	religious practice	and	obeys	the	law	or	rule	(assuming	that	such	a	combination	of	acts	is	possible),	where costs	are	assessed	using	an	impartial	account	of	individual	interests. These	arguments	establish	a	framework	for	judging	the	weight	of	religious accommodation	claims.	To	determine	whether	an	exemption	is	merited	in	a	particular	case,	the religious	claim	must	be	weighed	against	the	relevant	'state	interest',	or	countervailing	values. Considering	this	aspect	of	reasonable	accommodation	is	beyond	the	scope	of	this	paper.	I	will, however,	argue	that	if	a	burden	is	weighty	on	either	of	the	two	dimensions	and	the	competing value	is	relatively	weak,	then	an	exemption	should	be	granted. The	final	section	of	the	paper	responds	to	an	important	objection	to	the	approach developed	here:	that	it	could	not	be	fairly	administered	by	courts. 2.	PRELIMINARIES Before	turning	to	the	main	argument,	two	preliminary	comments	are	required. First,	this	paper	is	agnostic	on	the	question	of	whether	religion	is	in	some	way	'special', such	that	exemptions	are	warranted	in	light	of	individuals'	religious	beliefs	in	a	way	that	they of	this	paper.	For	helpful	discussion,	see	Yossi	Nehushtan,	'The	Case	for	a	General	Constitutional	Right	to be	Granted	Conscientious	Exemption'	(2016)	5(2)	Oxford	Journal	of	Law	and	Religion	230-254. 10	Greenawalt	(n	3)	205. 5 are	not	for	other	conscientious	moral	beliefs.11	A	growing	number	of	theorists	have	argued	that religion	is	not	special,	and	that	the	correct	account	of	reasonable	accommodation	will	apply	to non-religious	moral	beliefs	in	the	same	way	as	it	applies	to	religious	beliefs.12	This	might	well	be correct.	Many	of	the	most	plausible	groundings	of	reasonable	accommodation	–	such	as	appeals to	the	value	of	conscience	and	the	importance	of	ethical	integrity	–	naturally	extend	to	nonreligious	beliefs. This	paper	focuses	on	religion	because	this	is	also	the	focus	of	much	of	the	existing literature,	and	of	relevant	court	cases.	Some	of	the	considerations	that	determine	the	weight	of exemption	claims	are	more	easily	evaluated	for	religiously-based	claims,	so	the	extension	of reasonable	accommodation	to	non-religious	beliefs	might	raise	new	problems	and	questions. Nonetheless,	if	the	general	approach	defended	in	this	paper	is	sound	then	it	should	also	apply	to non-religious	exemption	claims,	even	if	some	modifications	are	required. Second,	it	is	possible	to	understand	Sherbert-style	tests	in	two	distinct	ways.	The	first	of these,	which	we	can	call	the	'threshold	approach',	sees	the	first	part	of	the	test	as	asking whether	a	religious	practice	faces	a	burden	that	reaches	the	level	of	being	'substantial'.	If	it	does, then	we	proceed	to	the	second	part	of	the	test	and	ask	whether	the	state	(or	employer)	interest in	the	uniform	application	of	the	law	(or	rule)	is	'compelling'.	If	it	is,	then	no	exemption	is granted;	if	it	is	not,	then	the	exemption	is	granted.	On	this	interpretation,	there	is	no	weighing	of the	religious	claim	against	the	state	interest.	There	is	a	pro	tanto	case	for	an	exemption whenever	there	is	a	'substantial	burden',	and	that	case	is	then	overridden	if	there	is	a 'compelling	state	interest'.	This	is	true	no	matter	how	substantial	the	burden	is,	or	how compelling	the	state	interest	is. 11	For	an	excellent	overview	of	the	debate	on	this	question,	see	Gemma	Cornelissen,	'Belief-Based Exemptions:	Are	Religious	Beliefs	Special?'	(2012)	25(1)	Ratio	Juris	85-109. 12	See	Nussbaum	(n	7)	pp.	168-174;	Maclure	and	Taylor	(n	7)	89-91;	Michael	J.	Perry	'From	Religious Freedom	to	Moral	Freedom'	(2010)	47(4)	San	Diego	Law	Review	993-1013. 6 The	arguments	in	this	paper	assume	a	different	interpretation,	the	'weighing	approach'. According	to	this	view,	we	first	establish	how	substantial	a	burden	there	is	to	religious	practice, and	then	weigh	this	against	the	countervailing	considerations	in	favour	of	the	uniform application	of	the	law.	Thus,	even	if	there	is	a	somewhat	compelling	state	interest,	an	exemption might	still	be	merited	if	a	religious	practice	is	very	substantially	burdened. The	weighing	approach	is	much	more	plausible	than	the	threshold	approach.	Consider the	comparison	between	a	Sikh	claiming	an	exemption	based	on	the	religious	requirement	that he	wears	a	turban	at	all	times	and	a	Christian	claiming	an	exemption	based	on	her	religiouslymotivated	desire	to	wear	a	cross	necklace	as	a	witness	to	her	faith.	Intuitively,	the	former	claim appears	weightier.	Being	prevented	from	wearing	his	turban	is	a	more	substantial	burden	upon the	Sikh's	religious	practice	than	is	the	Christian	being	prevented	from	wearing	her	necklace. Nonetheless,	both	types	of	claim	could	be	substantial	enough	that	there	is	a	pro	tanto	case	for	an exemption.	The	threshold	approach	in	effect	considers	both	claims	to	have	the	same	weight, such	that	both	are	defeated	if	there	is	a	countervailing	compelling	state	interest.	Instead, however,	we	should	recognise	that	the	Sikh's	claim	is	weightier,	such	that	it	can	withstand stronger	countervailing	values.	The	weighing	approach	allows	us	to	do	this. The	threshold	approach	better	fits	with	the	phrasing	of	the	test	stated	in	the	Sherbert ruling,	and	of	subsequent	versions	of	the	test.	In	practice,	however,	courts	in	both	the	USA	and Europe	have	followed	the	weighing	approach.	As	Greenawalt	notes,	"in	reality,	courts	consider burden	in	light	of	government	interest	and	government	interest	in	light	of	burden,	striking	a kind	of	balance."13	Courts	take	into	account	the	weight	of	the	religious	claim	when	considering whether	the	burden	is	justified,	or	'proportional'.14	They	do	not	view	all	substantial	burdens	as equally	substantial. 13	Greenawalt	(n	3)	202.	See	also	214. 14	'Proportional'	is	the	term	used	by	the	ECtHR. 7 This	was	explicitly	acknowledged	by	Chief	Judge	Posner	in	his	opinion	in	Mack	v. O'Leary.15	Posner	stated	that	"the	less	central	an	observance	is	to	the	religion	in	question	the less	the	officials	must	do"16	to	accommodate	it.	In	cases	where	the	religious	claim	is	less weighty,	a	less	compelling	state	interest	is	needed	to	justify	the	lack	of	exemption.	When	the religious	claim	is	weightier,	stronger	countervailing	considerations	would	be	needed	to overcome	the	pro	tanto	claim	to	an	exemption.	This	is	something	that	the	threshold	approach cannot	accommodate. The	threshold	approach	still	raises	the	question	of	how	we	determine	whether	a religious	claim	is	'substantial'.	An	account	is	still	needed	of	what	criteria	a	claim	must	meet	in order	to	reach	this	threshold,	so	the	question	discussed	in	this	paper	is	still	relevant.	But	once the	threshold	is	met,	all	religious	claims	are	assigned	the	same	weight. In	my	view,	it	is	much	better	to	have	criteria	that	establish	not	just	whether	a	claim	is substantial,	but	also	how	substantial	it	is.	This	allows	us	to	weigh	religious	claims	against countervailing	state	interests.	It	is	also	worth	highlighting	that	the	weighing	approach	matches the	view	that	many	scholars	hold	concerning	constitutional	rights	adjudication	more	generally. As	Grégoire	Webber	has	noted,	the	discourse	and	practice	of	balancing,	or	proportionality,	is	the 'received	approach'	in	this	area.17	Theorists	such	as	Robert	Alexy	have	developed	sophisticated accounts	of	what	this	involves.	In	a	nutshell,	Alexy	holds	that	interference	with	a	constitutional rights	principle	must	be	shown	to	be	necessary	to	serve	a	constitutionally	valid	purpose,	and the	importance	of	serving	that	purpose	must	be	sufficient	to	justify	the	intensity	of	the 15	80	F.3d	1175	[7th	Cir.,	1996].	See	below	(p.	32)	for	further	discussion	of	this	case. 16	ibid	para	15. 17	Grégoire	C.N.	Webber,	'Proportionality,	Balancing,	and	the	Cult	of	Constitutional	Rights	Scholarship' (2010)	23(1)	Canadian	Journal	of	Law	and	Jurisprudence	179-202.	Webber	is	highly	critical	of	balancing, but	I	believe	that	the	approach	taken	in	this	paper,	which	makes	explicit	the	moral	judgments	involved	in weighing	religious	exemptions,	evades	his	most	telling	objections. 8 interference,	in	the	particular	circumstances	of	the	case.18	When	this	condition	is	not	satisfied, the	interference	is	disproportionate,	and	is	thus	prohibited.	The	weighing	approach	to reasonable	accommodation	applies	this	kind	of	account	to	the	specific	area	of	interferences	with freedom	of	religion. The	rest	of	this	paper	develops	and	defends	a	framework	for	determining	the	weight	of religious	claims,	across	the	two	dimensions	identified	by	Greenawalt.	In	Alexy's	terms,	it	offers an	approach	to	establishing	the	intensity	of	the	interference	with	freedom	of	religion.	19 3.	THE	FIRST	DIMENSION	–	THE	IMPORTANCE	OF	THE	BURDENED	PRACTICE A.	Obligatoriness	and	Centrality The	first	dimension	concerns	the	level	of	importance	that	the	restricted	practice	has	within	the individual's	faith.	As	John	Garvey	notes,	the	acts	relevant	to	religious	accommodation	"vary... greatly	in	their	importance	to	the	claimant...	Belief	or	conduct	may	be	commanded, recommended,	rewarded,	encouraged,	desired,	permitted,	discouraged,	forbidden,	or	punished within	a	claimant's	belief	system."20	This	makes	a	difference	to	the	weight	of	religious	claims. As	was	noted	above,	intuitively	a	Sikh's	claim	to	be	able	to	wear	a	turban,	which	is	a strict	obligation	within	orthodox	Sikhism,	seems	weightier	than	a	Christian's	claim	to	be	able	to wear	a	cross	necklace,	which	some	Christians	see	as	a	helpful	way	of	manifesting	their commitment	to	Christ,	but	none	see	as	a	requirement	of	the	faith.	One	obvious	and	important difference	here	is	that	the	former	religious	practice	is	obligatory,	while	the	latter	is	not.	The	Sikh would	consider	himself	to	be	violating	a	religiously-grounded	moral	obligation	if	he	did	not 18	See	Robert	Alexy,	A	Theory	of	Constitutional	Rights	(OUP	2010),	44-110,	388-425. 19	See	ibid	401-402. 20	John	H.	Garvey,	'Free	Exercise	and	the	Values	of	Religious	Liberty'	(1986)	18(4)	Connecticut	Law Review	789-802,	at	685.	Garvey	adds	that	"it	would	be	irrational	for	the	law	to	ignore	those	differences	in deciding	what	social	costs	to	tolerate	in	the	interest	of	accommodation,"	and	so	explicitly	endorses	the weighing	approach. 9 wear	the	turban.	To	not	wear	the	turban	would	be	to	act	wrongly.	This	is	not	the	case	for	the Christian.	She	might	well	feel	aggrieved	if	she	was	not	able	to	wear	the	necklace,	and	believe that	this	stops	her	from	fully	living	out	her	faith	and	weakens	her	public	witness.	But	she	would not	believe	that	she	is	acting	wrongly.	She	is	not	violating	a	moral	obligation,	even	if	she	is prevented	from	doing	what	she	believes	is	best. Some	theorists	have	argued	that	exemptions	can	only	be	warranted	when	a	religious obligation	is	at	stake.	It	is	only	in	such	cases	that	a	burden	is	'substantial'.21	Courts	have	also sometimes	appealed	to	this	idea,	such	as	in	the	case	of	Nancy	Eweida,	a	British	Airways employee	who	wanted	to	wear	a	small	silver	cross	over	her	uniform.	This	contravened	British Airways'	uniform	code,	which	required	that	employees	wore	no	visible	jewellery,22	and	led	to Eweida	being	sent	home	without	pay	until	she	agreed	to	comply	with	the	uniform	code.23	The Employment	Tribunal	rejected	her	claim	of	religious	discrimination,	and	explicitly	based	its decision,	in	part,	on	the	fact	that	wearing	a	cross	was	not	a	requirement	of	Christianity.24	It	was a	personal	preference	on	her	part,	rather	than	a	doctrine	of	her	faith.	The	Court	of	Appeal	also cited	this	fact,	in	upholding	the	Employment	Tribunal's	ruling.25	When	this	case	came	before	the ECtHR,	the	UK	Government	argued	that	the	wearing	of	a	visible	cross	"was	not	a	recognised religious	practice	or	requirement	of	Christianity,"26	and	therefore	was	not	covered	by	Article	9 of	the	European	Convention	of	Human	Rights,	which	concerns	freedom	of	religion. While	the	distinction	between	obligatory	and	non-obligatory	practices	is	important,	an exclusive	focus	upon	it	is	too	narrow.	Religious	practices	can	be	central	to	an	individual's	faith, 21	For	example,	Bou-Habib	(n	7).	This	is	due	to	his	overly-narrow	definition	of	'integrity'. 22	Religious	exceptions	to	this	were	permitted,	but	only	for	obligatory	religious	jewellery. 23	The	code	was	eventually	changed,	such	that	non-obligatory	religious	jewellery	was	permitted.	Eweida returned	to	work,	but	claimed	compensation	for	lost	earnings	during	the	time	of	her	suspension. 24	This	is	noted	by	Russell	Sandberg,	'Eweida	v	British	Airways'	(2008)	160	Law	and	Justice	56-59,	at	58. 25	Eweida	v.	British	Airways	PLC	[2010]	EWCA	Civ	80.	See	paras	34	and	37. 26	Eweida	and	others	(n	4)	para	58. 10 and	to	her	expression	of	that	faith,	without	being	obligatory.	Such	practices	give	rise	to	weighty claims	for	accommodation,	because	they	are	vital	to	the	individual's	moral	and	religious identity.	Many	practices	that	are	not	mandatory	are	nonetheless	very	important	to	their practitioners,	who	would	consider	the	denial	of	them	a	grave	curtailment	of	their	religious liberty.27 This	could	be	the	case	for	a	Christian's	wearing	of	a	cross.	Indeed,	the	ECtHR	eventually found	in	Eweida's	favour.	They	considered	her	desire	to	manifest	her	religious	beliefs	and	to	be able	to	communicate	those	beliefs	to	others	to	be	central	to	her	religious	practice,	and recognised	that	visibly	wearing	a	cross	was	a	way	for	her	to	do	this.	As	Julie	Maher	writes,	this ECtHR	judgment	is	important	because	it	indicates	that	within	European	law	"the	question	of whether	an	act	qualifies	as	a	manifestation	cannot	be	interpreted	as	a	requirement	that	the applicant	establish	that	they	were	fulfilling	a	duty	mandated	by	their	religion."28 The	ECtHR	nonetheless	argued	that	"in	order	to	count	as	a	'manifestation'	within	the meaning	of	Article	9,	the	act	in	question	must	be	intimately	linked	to	the	religion	or	belief." There	must	be	"a	sufficiently	close	and	direct	nexus	between	the	act	and	the	underlying	belief." Thus,	acts	"which	do	not	directly	express	the	belief	concerned	or	which	are	only	remotely connected	to	a	precept	of	faith"	are	not	protected.29	In	other	words,	the	burdened	religious practice	does	need	to	be	somewhat	central	to	the	individual's	faith	in	order	to	ground	a	claim for	an	exemption,	but	it	need	not	be	mandatory. This	approach	can	also	be	seen	in	US	jurisprudence.	Greenawalt	notes	that	a	number	of US	courts	applying	the	'substantial	burden'	language	of	the	RFRA	"have	asked	whether	practices that	are	impaired	are	mandatory	or	optional,	or	are	central	or	not	central."30 27	As	Posner	notes	in	Mack	(n	15)	para	10. 28	Julie	Maher,	'Eweida	and	Others:	A	New	Era	for	Article	9?'	(2014)	63(1)	International	and	Comparative Law	Quarterly	213-233,	at	221. 29	All	the	foregoing	quotes	are	from	Eweida	and	others	(n	4)	para	82. 30	Greenawalt	(n	3)	204. 11 The	weightiest	claims,	on	this	first	dimension,	will	indeed	be	ones	based	on	a	religious obligation.	But	claims	based	on	a	practice	that	is	central	to	an	individual's	faith	can	also	be	very weighty.	Both	obligatoriness	and	centrality	should	be	taken	into	account	in	determining	the first-dimension	weight	of	a	religious	claim.	A	claim	is	weightier	the	more	obligatory	and/or central	the	relevant	practice	is. Greenawalt	rejects	this	focus	on	ideas	of	centrality	and	obligatoriness.31	He	argues	that there	are	some	cases	where	a	practice	is	neither	mandatory	nor	central	yet	weighty accommodation	claims	could	nonetheless	arise.	For	example,	hymn-singing	is	not	a	central	or mandatory	part	of	the	Christian	faith,	yet	a	ban	on	singing	would	be	a	substantial	burden	on religious	practice.	In	other	cases,	an	infringement	of	a	central	and	mandatory	practice	does	not impose	a	substantial	burden.	Practices	that	are	both	obligatory	and	central	can	be	restricted without	this	leading	to	weighty	exemption	claims.	For	example,	communion	is	mandatory	and central	within	Christianity,	but	a	ban	on	wine	is	not	a	substantial	burden,	because	grape	juice can	be	used	instead.	For	Greenawalt,	these	examples	show	that	ideas	of	centrality	and obligatoriness	do	not	adequately	capture	the	importance	of	a	religious	practice. Far	from	acting	as	counterexamples,	Greenawalt's	examples	actually	support	the	view defended	here.	Greenawalt	is	right	that	hymn-singing	is	not	mandatory	within	Christianity; Christians	do	not	believe	that	they	violate	moral	obligations	by	not	singing.	But	hymn-singing	is central	to	Christians'	practice	of	their	faith.	The	Bible	explicitly	exhorts	Christians	to	sing	praise to	God,32	and	singing	is	an	integral	part	of	corporate	worship	within	many	Christian	traditions. The	fact	that	Greenawalt	believes	Christians	would	have	weighty	claims	to	exemption	shows that	centrality	matters	in	determining	the	importance	of	a	religious	practice.	This	is	a	case where	a	burden	on	a	non-obligatory	but	central	practice	is	substantial. 31	ibid. 32	For	example,	see	Ephesians	5:19	and	Colossians	3:16.	Singing	was	also	central	to	the	worship	of	ancient Israel,	as	the	book	of	Psalms	shows	(e.g.	Psalm	95:2). 12 If	Greenawalt	was	right	about	the	status	of	hymn-singing,	however,	then	Christians would	not	have	weighty	claims	to	an	exemption	from	a	ban	on	singing.	Our	intuition	that	such	a ban	would	be	wrong	is	instead	being	driven	by	the	fact	that	we	can	see	no	government	interest being	served	by	it.	Even	if	religious	claims	against	the	ban	would	be	fairly	weak,	they	would	be strong	enough	to	defeat	the	ban	because	of	the	lack	of	a	government	interest.	Indeed,	in	this case	the	lack	of	government	interest	shows	that	there	simply	should	be	no	such	law.	In	some situations	where	there	seems	to	be	a	case	for	an	exemption,	this	really	shows	that	the	law	itself should	be	repealed.33	If	there	was	a	compelling	government	interest	here,	for	example	if	a	ban on	singing	was	somehow	important	for	national	security	reasons,	then	there	would	not	be	a strong	case	for	a	religious	exemption,	assuming	that	hymn-singing	is	neither	obligatory	nor central. With	regard	to	communion,	Greenawalt's	argument	works	by	misdescription.	He	argues that	a	ban	on	wine	would	not	substantially	burden	religious	exercise,	despite	communion	being central	and	mandatory,	because	grape	juice	can	be	used	instead.	But	this	simply	shows	that while	'communion'	is	central	and	mandatory,	'communion	using	wine'	is	not.	The	act	that	is actually	prohibited	–	drinking	wine	–	is	neither	central	nor	mandatory	and	that	is	why	the	ban would	not	give	rise	to	weighty	exemption	claims.	A	ban	on	communion	itself,	using	any	drink,	in contrast,	would	give	rise	to	such	claims,	precisely	because	communion	is	a	central	and mandatory	part	of	the	Christian	faith.	Similarly,	if	some	Christian	denominations	believed	that communion	must	in	fact	use	wine,	such	that	grape	juice	was	not	a	permissible	substitute,	then	a ban	on	wine	would	constitute	a	substantial	burden. While	some	theorists	would	see	the	account	defended	here	as	too	capacious,	and	want to	limit	legitimate	exemption	claims	to	cases	of	religious	obligation,	others	would	make	the opposite	objection.	According	to	Nick	Spencer,	we	should	not	investigate	the	importance	of religious	practices	at	all.	He	argues	that	what	matters	is	simply	good-faith	assertions	of	religious 33	See	Brian	Barry,	Culture	and	Equality:	An	Egalitarian	Critique	of	Multiculturalism	(Polity	Press	2011) 40-50;	Vallier	(n	7). 13 belief,	not	their	level	of	significance	to	the	believer.34	One	reason	for	this	is	that	a	focus	on	the importance	of	a	practice	can	lead	to	legal	imbalances.	Spencer	claims	that	this	can	be	seen	by comparing	the	cases	of	Lydia	Playfoot35	and	Sakira	Watkins-Singh,36	both	of	whom	requested exemptions	from	school	uniform	rules	in	order	to	wear	religious	jewellery	–	a	chastity	ring	in Playfoot's	case,	and	a	kara	bracelet	in	Watkins-Singh's	case.	Spencer	argues	that	these	cases	are substantially	similar.	Neither	piece	of	jewellery	is	especially	evident	on	the	wearer,	constitutes	a health	risk,	or	offends	public	opinion,	and	both	clearly	symbolise	something	of	real	importance to	the	wearer.	Yet	Playfoot	lost	her	case,	on	the	grounds	that	wearing	the	purity	ring	was neither	obligatory	nor	central	to	her	Christian	faith.	In	contrast,	Watkins-Singh	won,	because she	considered	the	kara	an	"extremely	important	indication	of	her	faith...	a	view	shared	for	good reason	by	very	many	other	Sikhs."37	While	wearing	the	kara	is	not	strictly	obligatory	for	Sikhs,	it is	one	of	the	five	outward	signs	of	faith	that	act	as	important	identifiers	of	the	religion.38	Spencer claims	that	the	courts'	insistence	on	judging	what	is	and	is	not	intimately	linked	to	religious belief	led	to	an	imbalance	of	justice.	The	cases	were	substantially	similar,	so	the	same	judgment should	have	been	reached	in	each. Contra	Spencer,	this	claimed	'legal	imbalance'	in	fact	shows	the	courts	being	rightly sensitive	to	the	importance	of	the	relevant	practice.	Watkins-Singh	had	a	stronger	claim	to	an exemption	precisely	because	the	burdened	practice	was	more	central	to	her	faith.	This	is	not	to say	that	the	ruling	in	Playfoot's	case	was	necessarily	correct.	The	fact	that	the	relevant	religious practice	was	less	important	to	her	does	not	in	itself	mean	that	she	should	have	lost	her	case, 34	Nick	Spencer,	How	to	Think	About	Religious	Freedom	(Theos	2014)	61.	Greenawalt	(n	3)	207	claims	that this	kind	of	'sincere	motivation'	view	clearly	sets	the	bar	too	low. 35	Playfoot	(a	minor),	R	(on	the	application	of)	v.	Millais	School	[2007]	EWHC	1698	(Admin). 36	R	(on	the	application	of	Sarika	Angel	Watkins-Singh)	v.	The	Governing	Body	of	Aberdare	Girls'	High	School [2008]	EWHC	1865	(Admin). 37	ibid	para	29. 38	The	'five	Ks',	which	also	include	the	kirpan,	discussed	below. 14 since	claims	that	are	relatively	weak	on	this	first	dimension	can	still	merit	exemptions	if	they are	strong	on	the	second	dimension	and	the	competing	value	is	weak.	But	her	claim	was certainly	weaker	than	Watkins-Singh's,	on	this	first	dimension,	precisely	because	the	practice concerned	was	less	central.	It	is	implausible	to	see	all	good-faith	assertions	of	religious	belief	as having	the	same	weight,	as	Spencer	demands. Further,	it	is	not	clear	that	Spencer's	approach	would	actually	lead	to	religious	exercise being	better	protected,	in	the	way	he	desires.	If	we	see	all	good-faith	assertions	of	religious belief	as	having	the	same	weight,	and	so	the	same	level	of	pro	tanto	claim	to	an	exemption,	then we	will	have	to	set	the	bar	for	a	'compelling	state	interest'	fairly	low,	in	order	to	avoid	a	huge proliferation	of	exemptions.	Claims	that	should	be	recognised	as	very	weighty,	such	that	they outweigh	even	strong	countervailing	values,	would	not	be	seen	as	such,	and	would	thus	be rejected	even	when	the	countervailing	values	are	relatively	weak.	This	again	shows	that	the threshold	approach	fails	to	make	necessary	distinctions. B.	Measuring	Importance If	the	importance	of	a	religious	practice	is	determined	by	its	obligatoriness	and	centrality	then this	raises	the	question	of	how	we	judge	these	things.	On	what	basis	can	we	conclude	that	a particular	practice	is	(or	is	not)	obligatory	or	central	to	an	individual's	faith? One	option	is	to	examine	the	place	of	the	practice	within	the	canons	of	the	relevant	faith. We	could	consult	Scripture,	theologians,	and	religious	leaders,	in	order	to	identify	the	orthodox belief	about	the	obligatoriness	and	importance	of	the	practice,	and	to	ascertain	what	proportion of	adherents	engage	in	this	practice.	Courts	have	sometimes	done	this.39	For	example,	the Employment	Appeal	Tribunal	stated	that	Eweida's	appeal	failed	because	there	was	"no	evidence that	a	sufficient	number	of	persons	other	than	the	claimant	shared	her	strong	religious	view 39	For	further	discussion	of	the	approach	of	UK	courts	to	analysing	the	centrality	of	beliefs,	see	Lim	(n	8), 450-454. 15 that	she	should	be	allowed	visibly	to	wear	the	cross."40	Eweida's	claim	was	judged	to	be	weak because	most	Christians	do	not	consider	it	important	to	visibly	wear	a	cross.41	This	fact	was	also central	to	the	Court	of	Appeal's	ruling,	and	the	UK	Government	again	appealed	to	it	at	the ECtHR,	arguing	that	behaviour	that	"was	not	an	act	of	practice	of	a	religion	in	a	generally recognised	form,	fell	outside	the	protection	of	Article	9."42 Theorists	and	judges	have	articulated	two	good	reasons	to	be	wary	of	this	approach. First,	we	do	not	want	courts	to	adjudicate	on	complex	questions	of	theological	interpretation, especially	since	there	is	a	great	deal	of	disagreement	among	religious	communities.	It	is	not	up to	courts	to	resolve	disagreements	about	the	content	of	a	religion,	and	they	are	ill-placed	to	do so.	As	Greenawalt	argues,	courts	must	avoid	deciding	what	is	really	important	religiously	or judging	"which	among	competing	versions	of	a	practice	represents	a	correct	understanding	of	a religious	tradition.	Courts	must	take	claims	as	they	are	sincerely	presented	by	those	who	seek an	exemption."43 40	Eweida	v.	British	Airways	Plc	[2008]	UKEAT	0123_08_2011,	para	77. 41	There	is	slight	complication	here.	The	Tribunal	and	Court	of	Appeal	were	ruling	on	whether	Eweida	had suffered	indirect	discrimination,	rather	than	whether	her	Article	9	rights	had	been	infringed.	Both	courts ruled	that	indirect	discrimination	only	occurs	if	there	is	an	'identifiable	group'	that	suffers	it.	Hence	their appeal	to	the	beliefs	of	'most	Christians'.	However,	the	fact	that	Eweida	could	not	appeal	to	Article	9 directly	was	due	to	controversial	previous	jurisprudence	(in	particular	R	(on	the	application	of	Begum)	v. Denbigh	High	School	Governors	[2006]	UKHL	15),	which	meant	that	Article	9	rights	were	insufficiently protected	in	UK	law	–	as	the	ECtHR	ultimately	ruled.	Further,	the	claim	that	indirect	discrimination	only occurs	when	there	is	an	'identifiable	group'	suffering	it	is	itself	controversial,	as	is	the	identification	of	the relevant	group.	For	discussion,	see	Nicholas	Hatzis,	'Personal	Religious	Beliefs	in	the	Workplace:	How	Not to	Define	Indirect	Discrimination'	(2011)	7(2)	The	Modern	Law	Review	287-305. 42	Eweida	and	others	(n	4)	para	58. 43	Greenawalt	(n	3)	205.	See	also	Maclure	and	Taylor	(n	7)	81-84. 16 The	US	Supreme	Court	has	repeatedly	emphasised	this.44	For	example,	in	Thomas	v. Review	Board	of	the	Indiana	Employment	Security	Division,45	Chief	Justice	Burger	wrote	that	"it	is not	within	the	judicial	function	and	judicial	competence	to	inquire	whether	the	petitioner	or	his fellow	worker	more	correctly	perceived	the	commands	of	their	common	faith.	Courts	are	not arbiters	of	scriptural	interpretation."46 In	the	UK,	Lord	Nicholls	made	the	same	argument	in	his	judgment	in	R	(Williamson	and others)	v.	Secretary	of	State	for	Education	and	Employment.47	He	wrote	that "emphatically,	it	is	not	for	the	court	to	embark	on	an	inquiry	into	the	asserted	belief	and judge	its	'validity'	by	some	objective	standard	such	as	the	source	material	upon	which	the claimant	founds	his	belief	or	the	orthodox	teaching	of	the	religion	in	question	or	the extent	to	which	the	claimant's	belief	conforms	to	or	differs	from	the	views	of	others professing	the	same	religion."48 The	second,	and	more	important,	reason	to	be	wary	of	assessing	the	strength	of religious	claims	based	on	the	orthodox	teachings	of	the	relevant	religion	is	that	liberals	ground exemptions	in	individual	freedom	of	conscience	and	religion.	While	liberal	theorists	disagree	on the	precise	grounding	for	reasonable	accommodation,	they	all	agree	that	it	is	based	on	respect for	individuals.	As	Lord	Nicholls	puts	it,	"freedom	of	religion	protects	the	subjective	belief	of	an individual."49 Lord	Neuberger	stated	this	very	clearly	when	considering	a	Hindu's	claim	to	have	his body	burnt	on	an	open	air	funeral	pyre,	writing	that	"what	we	are	concerned	with	in	this	case	is, of	course,	what	Mr	Ghai's	belief	involves	when	it	comes	to	cremation,	and	it	matters	not	for present	purposes	whether	it	is	a	universal,	orthodox	or	unusual	belief	for	a	Hindu."50 44	Indeed,	Greenawalt	states	that	it	is	part	of	US	constitutional	law.	Greenawalt	(n	3)	28. 45	450	US	707	[1981]. 46	ibid	716. 47	[2005]	UKHL	15. 48	ibid	para	22. 49	ibid. 50	Ghai,	R	(on	the	application	of)	v.	Newcastle	City	Council	&	Ors	[2010]	EWCA	Civ	59,	para	19. 17 The	obligatoriness	and	centrality	of	a	burdened	religious	practice	should	therefore	be determined	by	examining	the	place	of	that	practice	within	the	claimant's	system	of	beliefs	and values,	or	belief-value	set.	As	Maclure	and	Taylor	put	it,	the	"special	legal	status	of	religious beliefs	is	derived	from	the	role	they	play	in	people's	moral	lives."51	What	matters	is	what	the claimant	believes	about	the	practice	(whether	it	is	religiously	obligatory,	recommended,	or merely	desirable),	how	central	it	is	to	her	religious	and	moral	identity,	and	the	place	that	it	has within	her	lifestyle	and	actions.	It	is	therefore	up	to	the	claimant	to	demonstrate	the	importance of	the	practice	to	her.	She	should	explain	her	beliefs	about	it,	and	the	reasons	that	she	holds those	beliefs,	and	show	that	she	puts	those	beliefs	into	practice	in	how	she	lives. Judgments	of	sincerity	are	important	here.	A	common	part	of	courts'	approach	to accommodation	cases	is	seeking	to	determine	whether	the	claimant's	expressed	views	about the	relevant	practice	are	sincere.52	For	example,	does	an	applicant	for	conscientious	objector status	honestly	believe	that	Jesus'	encouragement	to	turn	the	other	cheek	enjoins	Christians	to be	pacifists?	Searching	inquiries	into	sincerity	are	often	troubling	for	the	individual	concerned. It	is	unpleasant	to	have	one's	honesty	challenged	and	one's	claimed	beliefs	cross-examined. Nonetheless,	such	an	investigation	is	necessary	in	order	to	determine	the	weight	of	the	religious claim. One	obvious	part	of	investigating	sincerity	is	checking	whether	the	claimant	has	lived	by the	belief	they	profess.	If	a	case	is	based	on	a	Sabbatarian's	belief	that	they	must	not	work	on	the Sabbath	and	yet	there	is	clear	evidence	that	they	have	often	undertaken	such	work,	then	this counts	against	their	claim.53	Courts	should	also	consider	whether	the	claimant	would	gain	any 51	Maclure	and	Taylor	(n	7)	81. 52	For	discussion,	see	Greenawalt	(n	3)	109-123. 53	A	real-life	example	along	these	lines	involved	Hasanali	Khoja,	a	Muslim	chef	who	lost	a	discrimination case	against	the	Metropolitan	Police.	He	had	claimed	religious	discrimination	after	being	forced	to	cook pork	products,	but	a	witness	testified	that	she	had	recently	served	him	bacon	rolls.	See	Tom	Harper, 'Muslim	Police	Chef	Defeated	in	'Bacon	Roll'	Tribunal	Faces	£75,000	Legal	Bill',	Mail	Online,	20th 18 obvious	secular	benefit	from	being	granted	an	exemption.54	If	they	would	not,	then	less evidence	is	required	to	establish	sincerity	than	if	there	is	a	clear	motivation	for	dishonesty	due to	the	available	secular	gain. Another	vital	piece	of	evidence	for	determining	the	likely	place	of	the	practice	within	the claimant's	religious	beliefs,	and	for	judging	the	sincerity	of	her	claim,	is	the	views	and	practices of	her	co-religionists.55	The	'orthodox'	or	'common'	views	within	a	religion	do	not	determine	the weight	of	an	individual's	claim.	Nonetheless,	they	do	provide	helpful	evidence	as	to	both	its weight	and	sincerity.	If	I	claim	that	I	must	perform	action	X	because	I	am	a	Methodist,	then	the fact	that	no	other	Methodists	believe	X	to	be	obligatory	can	rightly	be	taken	to	cast	doubt	on	my claim.	On	the	other	hand,	if	a	Sikh	claims	that	he	is	obligated	to	wear	a	turban	or	to	carry	a kirpan	then	the	fact	that	these	are	religious	requirements	within	orthodox	Sikhism	provides strong	evidence	in	favour	of	his	claim	being	both	sincere	and	weighty.	Indeed,	in	this	case	the evidence	is	likely	decisive,	as	long	as	there	is	no	reason	to	doubt	that	the	claimant	is	a	practising Sikh. This	can	be	seen	in	the	ECtHR's	judgment	on	France's	ban	on	face	coverings	in	public places.	The	Court	noted	that	"there	is	no	doubt"	that	wearing	the	full-face	veil	"is,	for	certain Muslim	women,	a	form	of	practical	observance	of	their	religion."56	For	this	reason,	the	Court	felt no	need	to	examine	or	question	the	particular	claimant's	statements	about	the	importance	of the	full-face	veil	to	her.	The	fact	that	a	significant	minority	of	Muslim	women	considered	this	a December	2009,	available	at	http://www.dailymail.co.uk/news/article-1237184/Muslim-police-chefdefeated-bacon-roll-tribunal-faces-75-000-legal-bill.html. 54	This	point	is	taken	from	Greenawalt	(n	3)	122-123. 55	This	observation	helps	to	defuse	some	of	the	worries	concerning	assessments	of	'subjective authenticity'	raised	by	Avigail	Eisenberg,	'What	is	Wrong	with	a	Liberal	Assessment	of	Religious Authenticity?',	in	Geoffrey	Brahm	Levey	(ed),	Authenticity,	Autonomy	and	Multiculturalism	(Routledge 2015)	145-162. 56	S.A.S.	(n	6)	para	56. 19 requirement	of	their	faith	was	sufficient	to	establish	that	the	particular	claimant	had	a	claim under	Article	9.	Similarly,	Lord	Nicholls,	immediately	after	he	argued	in	his	Williamson	ruling that	what	mattered	was	the	subjective	belief	of	individuals,	added	that	"objective	factors	such	as source	material"	may	"throw	light	on	whether	the	professed	belief	is	genuinely	held."57 Looking	to	the	views	of	the	claimant's	co-religionists	in	this	way	gives	proper recognition	to	the	communal	nature	of	faith.	Religion	is	usually	corporate	and	communitybased,	not	merely	an	individualistic	activity.	The	traditions	of	scriptural	interpretation,	belief, and	practice	within	a	religion	usually	matter	greatly	to	individual	adherents.	This	does	not mean	that	those	traditions	are	determinative	of	the	weight	of	an	individual's	claim;	they	are	not. But	it	does	mean	that	they	are	vital	evidence	as	to	the	likely	place	of	a	particular	practice	within the	claimant's	moral	life.	As	Greenawalt	puts	it,	"judges	may	look	to	standard	doctrines	in	order to	understand	the	individual	claims	or	to	test	their	sincerity,	but	the	claimants'	own	honest perceptions	should	usually	be	the	final	determinant."58	The	difference	between	the	view developed	here	and	that	of	Greenawalt	and	Nicholls	is	that	I	explicitly	hold	that	the	'standard doctrines'	of	the	relevant	religion	can	illuminate	the	weight	of	a	religious	claim,	on	the dimension	of	its	importance	to	the	claimant,	rather	than	merely	throwing	light	on	its	sincerity or	genuineness	as	a	religious	claim. Of	course,	this	means	that	courts	will	be	drawn	into	some	theological	adjudication	and interpretation.	This	is	unavoidable.59	It	is	better	to	accept	this	and	to	allow	it	to	a	limited	extent than	to	deprive	courts	of	a	major	way	of	assessing	the	place	of	the	claimant's	practice	and	the sincerity	of	their	claim.	Understanding	the	orthodox	position	within	the	claimant's	religion	does not	settle	the	weight	of	her	particular	claim,	but	it	is	an	essential	step	in	making	this determination.	It	is	objectionable	for	courts	to	judge	the	validity	of	a	claim	based	on	such theological	investigation,	or	to	dismiss	a	claim	simply	because	most	adherents	to	the	religion	in 57	Williamson	(n	47)	para	22. 58	Greenawalt	(n	3)	206. 59	On	this	point,	I	agree	with	Eisenberg	(n	55)	and	Lim	(n	8). 20 question	do	not	share	the	claimant's	view	of	the	practice.	But	such	factors	can	play	a	helpful evidential	role. This	approach	does	not	rule	out	unorthodox	theological	interpretations,	or	the	claims	of individualistic	or	idiosyncratic	religious	believers.	If	an	individual	can	demonstrate	the	central place	that	a	practice	has	within	her	beliefs	and	values,	and	the	role	that	it	plays	within	her	life, then	courts	should	consider	her	claim	to	be	weighty	even	if	it	is	idiosyncratic.	It	is	undoubtedly harder	to	show	that	an	idiosyncratic	claim	has	great	weight,	since	one	cannot	point	to	the traditions	of	belief	within	one's	religion	as	evidence.	But	this	does	not	make	is	impossible. To	summarise,	I	have	argued	that	the	first	dimension	that	determines	the	weight	of	a religious	claim	for	an	exemption	is	the	importance	of	the	relevant	practice	to	the	individual claimant.	This	importance	is	determined	by	how	obligatory	she	believes	the	practice	to	be,	and how	central	it	is	to	her	moral	life. 4.	THE	SECOND	DIMENSION	–	THE	EXTENT	OF	THE	BURDEN The	second	dimension	on	which	religious	exemption	claims	can	be	weighed	is	the	extent	of	the burden	placed	on	the	relevant	religious	practice.	In	other	words,	this	dimension	concerns	the extent	of	the	conflict	between	the	religious	practice	and	the	law	or	rule.	An	'outright	conflict' occurs	when	the	law	directly	proscribes	the	practice,	such	that	it	is	impossible	to	both	obey	the law	and	do	the	act	that	one	is	religiously	motivated	to	perform.	This	is	rare,	however.60	In	most cases,	the	individual	can	both	obey	the	law	or	rule	and	follow	their	religion,	but	the	relevant practice	is	'burdened'	because	the	law	or	rule	makes	it	in	some	way	costly	to	perform.	We should	determine	the	extent	of	the	conflict	(and	so	of	the	burden)	by	measuring	the	cost	that	the individual	bears	if	she	both	obeys	the	law	or	rule	and	follows	her	religious	practice. 60	A	ban	on	peyote	–	the	issue	in	the	Smith	case	–	is	an	example	of	an	outright	conflict,	since	members	of the	Native	American	Church	are	religiously	motivated	to	ingest	peyote. 21 Three	examples	will	help	to	illustrate	this.	First,	consider	a	law	requiring	everyone	to wear	helmets	when	riding	motorcycles.	The	(second-dimension)	cost	of	this	to	Sikhs	is	never riding	motorcycles,	since	they	believe	they	are	religiously	obligated	to	always	wear	a	turban, and	it	is	not	possible	to	wear	both	a	turban	and	a	motorcycle	helmet	(we	assume).	There	is	no outright	conflict	here,	because	neither	the	law	nor	their	religion	requires	Sikhs	to	ride motorcycles.	It	is	possible	for	Sikhs	to	fulfil	both	their	religious	and	legal	obligations.	But	the only	way	they	can	do	so	is	by	never	riding	motorcycles.	Second,	consider	a	law	banning	the carrying	of	all	daggers	in	public	places.	The	cost	that	this	law	imposes	upon	Sikhs	is	that	they can	never	be	in	public	places.	Sikhs	believe	that	they	must	always	carry	their	kirpan	–	a ceremonial	dagger.	Thus,	the	only	way	they	can	both	obey	this	law	and	follow	their	religious beliefs	is	by	never	being	in	public	places.	Third,	in	cases	involving	uniform	rules	or	rules	on	time of	work	imposed	by	an	employer,	the	cost	to	individuals	for	whom	the	rule	conflicts	with	a religious	practice	is	losing	their	jobs. This	second	dimension	thus	measures	the	'secular'	cost	that	the	individual	bears	if	the exemption	is	not	granted	and	the	individual	continues	to	follow	her	religious	practice, consistent	with	the	law	or	rule.	The	first	dimension,	in	contrast,	measured	the	'religious'	cost that	the	individual	bears	if	the	law	or	rule	causes	her	not	to	follow	the	religious	practice. Understanding	the	extent	of	the	burden	in	this	way	allows	us	to	weigh	religious	claims along	this	second	dimension.	The	weightiest	claims	will	be	those	involving	outright	conflicts.	In the	more	common	cases,	however,	we	can	make	judgments	about	the	strength	of	the	claim based	on	the	level	of	cost	borne	by	the	individual	if	they	obey	both	the	law	or	rule	and	their religion. The	question,	therefore,	is	how	we	measure	these	costs.	It	seems	intuitive	that	the	cost to	Sikhs	of	an	exceptionless	law	against	daggers	is	higher	than	the	cost	of	an	exceptionless	law requiring	that	riders	of	motorcycles	wear	helmets.	Not	being	able	to	be	in	public	places	is	a higher	cost	than	not	being	able	to	ride	motorcycles.	This	intuition	is	presumably	based	on	some (implicit)	account	of	individuals'	interests.	Riding	motorcycles	is	not	as	essential	a	human 22 interest	as	being	able	to	be	in	public	places.	This	suggests	an	'objective'	approach	to	the measurement	of	costs.	Costs	are	higher	when	more	basic	interests	are	at	stake,	according	to	an impartial	account	of	human	interests,	and	when	those	interests	are	more	affected.	The	more	an individual's	interests	are	set	back,	the	higher	the	burden	they	bear	from	being	denied	an exemption. Some	might	propose	that	the	claimant's	subjective	judgment	of	cost	should	also	be	taken into	account.	Some	Sikhs	might	really	enjoy	riding	motorcycles,	such	that	an	inability	to	do	so (without	acting	against	their	religious	beliefs)	appears	to	them	to	be	a	very	high	cost.	Whereas others	might	not	have	any	desire	to	ride,	such	that	they	do	not	consider	it	much	of	a	cost	at	all. This	subjective	approach	should	be	rejected.	While	the	claimant's	subjective	beliefs	and values	determine	the	weight	of	their	claim	on	the	first	dimension,	on	this	second	dimension what	matters	is	costs	to	their	interests	as	measured	by	an	impartial	theory.	The	cost	of	the	law against	riding	motorcycles	without	a	helmet	is	thus	the	same	for	two	orthodox	Sikhs	(all	other things	equal),61	even	if	one	has	a	much	greater	desire	to	ride.	There	are	several	reasons	to	reject the	subjective	approach	on	this	second	dimension. First,	the	subjective	approach	requires	courts	to	work	out	how	much	of	a	cost	the individual	feels	they	bear	from	both	obeying	the	law	and	acting	on	their	religious	beliefs.	This	is very	difficult	to	do.	It	is	unclear	how	courts	can	determine	the	strength	of	individuals'	feelings or	how	much	of	a	burden	they	feel	they	bear. A	critic	might	argue	that	the	same	is	true	with	regard	to	working	out	the	obligatoriness or	centrality	of	the	practice	for	the	individual.	But	this	does	not	seem	nearly	so	difficult. Individuals	can	state	their	beliefs	and	their	reasons	for	their	beliefs,	in	order	to	show	the	role the	practice	plays	within	their	belief-value	set	and	their	moral	life.	Ways	in	which	courts	can determine	the	importance	of	the	practice	to	the	individual	(including	their	sincerity)	were suggested	above.	It	is	much	less	clear	how	a	court	could	work	out	how	much	of	a	cost	someone 61	The	contextual	factors	noted	below	could	make	other	things	unequal. 23 feels	or	how	much	an	individual	is	upset	by	bearing	the	relevant	cost.	It	is	especially	unclear how	this	could	be	done	in	a	way	that	allows	for	comparisons	to	be	made	across	different	cases. Second,	the	individual's	perception	of	cost	is	not	relevant	here	anyway.	It	is	important	to remember	that	the	cost	we	are	seeking	to	measure	is	not	the	cost	of	failing	to	act	on	one's religious	beliefs.	That	cost	is	covered	by	the	first	dimension,	since	it	will	vary	depending	on	how important	the	practice	is.	On	this	second	dimension,	we	are	measuring	the	cost	that	individuals bear	when	they	do	act	on	their	religious	beliefs,	but	consistent	with	the	law.	The	fact	that	some Sikhs	really	like	riding	motorcycles	is	simply	not	relevant	to	how	much	the	law	burdens	their religious	exercise,	since	riding	motorcycles	is	not	the	thing	that	is	religiously	mandated	– wearing	a	turban	is.	We	are	measuring	the	cost	of	following	the	law	consistently	with	one's religious	beliefs	because	it	serves	as	a	proxy	for	the	extent	to	which	the	law	conflicts	with	one's religion.	How	one	feels	about	that	cost	is	not	the	relevant	thing	here;	the	relevant	thing	is	an objective	judgment	of	the	importance	of	the	interests	involved	and	the	extent	to	which	they	are set	back. Third,	in	cases	where	it	does	seem	like	the	individual's	perception	of	cost	is	relevant, this	relevance	will	already	have	been	taken	into	account	on	the	first	dimension.	For	example, Watkins-Singh	might	well	have	felt	more	upset	by	her	school's	uniform	rules	than	Playfoot	did about	hers.	But	that	is	because	of	a	difference	on	the	first	dimension	–	the	fact	that	the	rules conflicted	with	a	more	important	religious	practice	in	Watkins-Singh's	case.	This	makes	her claim	weightier	on	the	first	dimension,	and	means	that	she	bears	a	greater	cost	if	she	does	not follow	her	religious	practice.	On	the	second	dimension,	they	both	faced	a	similar	cost.	If	they wished	to	wear	their	religious	jewellery	then	they	would	have	to	find	an	alternative	school	that permitted	them	to	do	so.	It	is	this	cost	of	leaving	their	current	school	and	finding	a	different school	that	matters	on	the	second	dimension,	and	this	cost	should	be	judged	based	on	an impartial	account	of	individuals'	interests,	not	based	on	their	feelings	about	it. Finally,	this	also	means	that	we	are	not	under	any	pressure	to	cater	for	every	individual who	feels	put	out	by	a	law.	Some	individuals	might	very	much	enjoy	feeling	the	wind	blowing 24 through	their	hair	when	they	ride	their	motorcycles,	such	that	they	dislike	the	law	requiring that	they	wear	motorcycle	helmets.62	This	alone	should	not	be	the	basis	for	an	exemption,	and my	approach	does	not	count	it	as	one,	since	the	individual	does	not	have	a	religiously	(or morally)	motivated	objection.	If	we	weighed	costs	on	this	second	dimension	based	on	the individuals'	perception	of	cost,	however,	then	this	would	make	it	harder	to	resist	the	claim	of those	who	love	to	feel	the	wind	in	their	hair,	since	they	can	claim	a	similar	feeling	of	frustration from	the	law. Overall,	then,	courts	should	determine	the	extent	of	the	burden	on	a	religious	practice by	using	an	impartial	theory	of	individual	interests	to	determine	the	cost	that	the	individual bears	if	they	both	obey	the	law	and	act	on	their	religious	beliefs.	Clearly	there	are	going	to	be some	difficult	cases	here.	I	have	not	offered	a	fully	specified	theory	of	individual	interests,	and nor	do	I	have	one	to	offer.	Nonetheless,	we	have	a	fairly	good	sense	of	which	interests	are	basic, such	that	damage	to	them	makes	individuals'	lives	go	significantly	worse,	and	which	interests are	less	basic.	Many	of	the	judgments	involved	here	are	relatively	uncontroversial,	such	as observing	that	not	being	able	to	be	in	public	places	is	a	greater	cost	to	individual	interests	than not	being	able	to	ride	motorcycles.	More	generally,	we	can	follow	Jonathan	Quong	in	identifying a	set	of	basic	civic	opportunities,	such	as	employment	in	education,	and	hold	that	costs	are higher	when	individuals	are	burdened	in	their	pursuit	and	enjoyment	of	these	opportunities.63 There	is	one	further	complication	here,	concerning	contextual	factors.64	A	useful example	of	the	relevance	of	such	factors	is	laws	requiring	that	hard	hats	be	worn	in	building 62	This	example	is	from	Barry	(n	33)	47. 63	Quong	(n	7).	As	Quong	notes	(71,	fns.	45	and	54),	this	approach	has	similarities	with	the	capabilities approach	developed	by	Amartya	Sen	and	Martha	Nussbaum. 64	The	importance	of	a	range	of	contextual	factors	is	rightly	emphasised	by	Jonathan	Seglow,	'Theories	of Religious	Exemptions',	in	Gideon	Calder	and	Emanuela	Ceva	(eds),	Diversity	in	Europe:	Dilemmas	of Differential	Treatment	in	Theory	and	Practice	(Routledge	2010)	52-64. 25 sites.65	The	second-dimension	cost	to	Sikhs	from	this	law	is	that	they	cannot	be	builders.	At	first glance,	this	might	not	seem	like	a	particularly	high	cost.	In	reality,	however,	the	construction trade	is	the	largest	single	source	of	employment	for	Sikhs,	for	historical	reasons,	so	this	is	a	high cost.	To	say	this	is	not	to	move	to	a	subjective	approach.	The	relevant	factor	is	that	given	the context,	Sikhs	not	being	able	to	work	in	construction	puts	many	livelihoods	at	risk.	This	is	an objectively	high	cost	to	their	interests,	rather	than	being	anything	to	do	with	what	Sikhs	feel about	construction. Contextual	factors	can	also	matter	at	a	more	individualised	level.	If	a	motorcycle	was	the only	possible	form	of	transportation	for	an	individual,	or	she	had	to	use	motorcycles	as	part	of her	job,	then	not	being	able	to	ride	motorcycles	consistent	with	her	religious	beliefs	would	be	a higher	cost	than	it	is	for	someone	with	easy	alternatives. This	final	point	relates	to	what	is	known	as	the	'free-contract	doctrine'.	This	is	the	idea that	there	can	be	no	interference	with	religious	freedom	in	cases	where	employees	have voluntarily	accepted	a	role	that	does	not	accommodate	their	religious	practice.66	Religious freedom	is	protected	by	the	'right	to	resign'.	Until	recently	this	was	a	part	of	ECtHR jurisprudence.	Rulings	in	a	series	of	cases	suggested	that	"no	interference	with	Article	9	arises where	an	employee	is	dismissed	or	faces	work-related	detriment	because	of	their	desire	to	act in	accordance	with	their	religion	during	working	hours."67 This	doctrine	can	be	understood	as	saying	that	exemption	claims	by	employees	to	rules imposed	by	their	employers	can	be	rejected	because	they	have	no	weight	on	the	second dimension.	No	matter	how	important	the	religious	practice,	the	individual	has	voluntarily accepted	the	burdens	to	it,	so	we	should	consider	there	to	be	no	conflict	between	that	practice and	the	rule. 65	This	example	is	from	Barry	(n	33)	49. 66	This	doctrine	has	also	been	applied	to	cases	involving	students	at	schools	and	universities. 67	Maher	(n	28)	224.	See	the	summary	in	Begum	(n	41)	para	23. 26 This	doctrine	was	rejected	by	the	ECtHR	in	its	judgment	on	the	case	of	Eweida	and others,	in	the	following	terms: "Given	the	importance	in	a	democratic	society	of	freedom	of	religion,	the	Court	considers that,	where	an	individual	complains	of	a	restriction	on	freedom	of	religion	in	the workplace,	rather	than	holding	that	the	possibility	of	changing	job	would	negate	any interference	with	the	right,	the	better	approach	would	be	to	weigh	that	possibility	in	the overall	balance	when	considering	whether	or	not	the	restriction	was	proportionate."68 This	is	the	correct	judgment.	The	fact	that	an	individual	has	voluntarily	taken	a	job,	and could	resign,	should	not	mean	that	their	claim	is	automatically	rejected.	Changing	jobs,	and	most likely	accepting	a	period	of	unemployment,	is	not	a	trivial	matter.	Indeed,	in	many	cases,	the	fact that	an	individual	can	only	act	consistent	with	their	religious	beliefs	by	leaving	their	jobs	should mean	that	we	consider	their	claim	to	be	weighty	on	this	second	dimension. The	grain	of	truth	in	the	free-contract	doctrine	is	that	contextual	factors	regarding	the individual's	situation	in	relation	to	their	employment	should	be	taken	into	account	when measuring	their	claim	on	this	second	dimension.	For	example,	there	might	be	cases	where	an individual	could	fairly	easily	and	costlessly	change	jobs,	and	this	would	make	their	claim	less weighty.	As	Maher	argues,	we	should	also	distinguish	between	"situations	where	an	employee was	aware	of	the	restrictions	upon	religious	manifestation	prior	to	agreeing	to	undertake	a particular	job	role	and	situations	where	this	was	not	the	case."69	This	is	relevant	in	two	of	the other	cases	that	the	ECtHR	considered	alongside	Eweida's.70	Lillian	Ladele	was	a	registrar	at Islington	Council	who	did	not	want	to	conduct	civil	partnerships,	due	to	her	religious	objections to	same-sex	relationships.	A	relevant	feature	of	her	case	was	that	she	had	worked	as	a	registrar before	the	law	concerning	civil	partnerships	was	enacted.	Thus,	as	Spencer	puts	it,	"the employment	goalposts	were	moved	around	her."71	This	is	in	contrast	to	Gary	McFarlane,	who was	a	relationship	counsellor	working	for	the	charity	Relate.	He	voluntarily	undertook	Relate's 68	Eweida	and	others	(n	4)	para	83. 69	Maher	(n	28)	225. 70	For	details	on	these	cases,	see	Eweida	and	others	(n	4)	paras	23-40. 71	Spencer	(n	34)	66. 27 postgraduate	diploma	in	psycho-sexual	therapy,	knowing	that	he	would	be	required	to	provide therapy	to	both	same-sex	and	opposite-sex	couples,	despite	his	religiously-grounded	discomfort with	working	on	sexual	issues	with	homosexual	couples.	The	fact	that	McFarlane	knowingly	and voluntarily	placed	himself	in	a	position	where	his	religious	beliefs	would	conflict	with	the requirements	of	his	employment	made	his	case	much	weaker	than	Ladele's,	on	this	second dimension.	While	their	employers'	rules	meant	both	would	have	to	leave	their	jobs	if	they	were to	act	consistently	with	their	religious	beliefs,	this	cost	should	be	judged	lower	for	McFarlane given	the	circumstances	of	the	case. 5.	PUTTING	IT	TOGETHER Thus	far,	this	paper	has	sketched	a	framework	that	I	contend	should	be	used	to	assess	the weight	of	religious	exemption	claims,	across	two	dimensions:	the	obligatoriness	and	centrality of	the	religious	practice,	and	the	cost	to	the	individual's	interests	if	they	follow	that	practice consistent	with	the	relevant	exemption-less	law	or	rule.	Some	claims	are	weighty	on	both dimensions.	The	Sikh	kirpan	case	is	an	example.	Carrying	the	kirpan	is	a	religious	obligation, and	a	law	against	daggers	in	public	places	would	mean	that	Sikhs	cannot	be	in	such	places (consistent	with	their	religious	beliefs).	Claims	can	also	be	weighty	on	one	dimension	and comparatively	weak	on	the	other.	For	example,	the	Sikh	motorcycle	case	is	strong	on	the	first dimension	but	fairly	weak	on	the	second.	A	Christian's	desire	to	wear	a	cross,	meanwhile,	is weaker	on	the	first	dimension	but	potentially	strong	on	the	second. In	order	to	determine	whether	an	exemption	should	be	granted,	the	weight	of	the religious	claim	on	these	two	dimensions	must	be	compared	with	the	weight	of	the countervailing	interest	or	value.	The	stronger	the	state	or	employer's	interest	in	having	the	law or	rule	without	granting	the	exemption,	the	weightier	the	religious	claim	needs	to	be	in	order for	an	exemption	to	be	merited.	These	countervailing	factors	include	both	whatever	values	or interests	are	being	served	by	the	law	or	rule	and	the	costs	that	granting	the	exemption	would impose	on	third	parties.	In	some	cases,	the	countervailing	value	is	so	strong	that	it	can	never	be 28 outweighed.	An	obvious	example	is	the	law	against	child	sacrifice.	The	law	against	corporal punishment	in	schools,	which	was	at	issue	in	the	Williamson	case,	is	also	in	this	category	–	as Lord	Nicholls	rightly	concluded.72	Usually,	however,	some	weighing	of	the	two	sides	is	needed, in	order	to	determine	whether	the	religious	claim	outweighs	the	countervailing	interests. Considering	this	stage	in	detail	is	beyond	the	scope	of	this	paper.	This	section	will	make four	brief	claims,	however.	First,	and	most	obviously,	the	weaker	a	claim	is	on	one	dimension the	stronger	it	will	need	to	be	on	the	other	dimension	in	order	to	merit	an	exemption. Second,	religious	exemptions	are	never	warranted	if	the	claim	is	not	reasonably	weighty on	the	first	dimension.	There	must	be	some	genuine	religious	practice,	which	is	either obligatory	or	somewhat	central	to	the	claimant's	faith,	before	claims	for	exemptions	can	get	off the	ground.	The	threshold	level	of	importance	that	a	practice	must	meet	should	not	be	set particularly	high,	however.	Especially	in	cases	of	outright	conflict,	exemptions	can	be	warranted even	when	the	relevant	practice	is	religiously	motivated	without	being	based	on	a	central	tenet of	the	claimant's	beliefs.	Nonetheless,	the	practice	must	be	"intimately	linked	to	the	religion	or belief,"	in	the	ECtHR's	words.73	Acts	that	are	"only	remotely	connected	to	a	precept	of	faith"	fail to	reach	the	level	of	importance	required	for	an	exemption	to	ever	be	warranted. Third,	there	is	also	a	threshold	on	the	second	dimension,	but	it	is	at	a	low	level.	An individual	has	a	claim	for	an	exemption	as	long	as	there	is	some	conflict	between	the	law	or	rule and	her	religious	practice,	such	that	she	bears	some	(secular)	cost	by	complying	with	the	former consistent	with	the	latter.	The	interest	implicated	here	need	not	be	particularly	important	for her	to	have	a	claim,	although	obviously	her	claim	is	stronger	the	more	important	this	interest	is. Finally,	and	more	controversially,	if	a	religious	claim	is	strong	on	either	dimension	and the	competing	interest	is	relatively	weak	then	the	exemption	should	be	granted.	This	is	the	case even	if	the	claim	is	relatively	weak	on	the	other	dimension,	assuming	the	threshold	is	reached. 72	Williamson	(n	47)	paras	49-52. 73	Eweida	and	others	(n	4)	para	82. 29 In	my	view,	this	final	point	is	fulfilled	in	both	the	Sikh	motorcycle	case	and	Eweida's case.74	Sikhs	are	religiously	obligated	to	wear	the	turban,	so	their	claim	is	weighty	on	the	first dimension.	It	also	reaches	the	second	dimension	threshold,	since	Sikhs	can	comply	only	by	not riding	motorcycles.	This	clearly	isn't	a	vital	interest,	but	it	is	nonetheless	sufficient	for	there	to be	a	conflict	between	the	law	and	the	religious	practice.	The	competing	state	interest, meanwhile,	is	not	hugely	strong.	Even	if	laws	requiring	motorcycle	helmets	are	generally justified,	there	is	no	great	cost	to	granting	an	exemption	to	them.	This	is	particularly	the	case	if the	terms	of	the	exemption	include	Sikhs	bearing	responsibility	for	the	costs	of	any	injuries sustained	that	are	greater	than	they	would	have	been	were	they	wearing	a	helmet. Eweida	faced	the	loss	of	her	job	due	to	British	Airways'	uniform	code,	so	her	claim	was weighty	on	the	second	dimension.	Her	claim	was	also	weighty	enough	on	the	first	dimension	to make	it	legitimate:	while	wearing	the	necklace	was	not	an	obligation,	it	was	something	she believed	important	to	her	manifestation	of	her	faith.	The	cross	is	the	central	symbol	of Christianity,	and	Eweida	considered	wearing	it	to	be	important	to	her	Christian	witness.	The competing	interest	in	this	case	was	British	Airways'	corporate	image.	While	this	is	not unimportant,	it	is	not	strong	enough	to	outweigh	Eweida's	claim.	This	is	particularly	the	case given	that	it	is	unclear	whether	BA's	image	would	be	particularly	damaged	by	allowing	its employees	to	visibly	wear	religious	jewellery.	Indeed,	BA	changed	its	uniform	policy	to	allow this,	suggesting	that	it	was	not	essential	to	their	image. Eweida's	case	can	be	helpfully	contrasted	with	that	of	Shirley	Chaplin.	Chaplin	was	an NHS	nurse	who	wanted	to	wear	a	crucifix	at	work.	This	was	not	allowed	under	NHS	uniform 74	And	also	in	Ghai's	case,	as	it	was	understood	by	the	High	Court	in	Ghai	v	Newcastle	City	Council	[2009] EWHC	978	(Admin).	The	Court	ruled	against	Ghai,	but	in	my	view	gave	too	much	weight	to	the	offence that	would	be	caused	by	'open	air'	cremation.	The	Court	of	Appeal	(n	50)	argued	that	the	structures	in which	Ghai	was	willing	to	be	cremated	counted	as	buildings	under	the	Cremation	Act	1902,	so	there	was in	fact	no	conflict	between	the	law	and	Ghai's	religious	practice	–	his	claim	had	no	second-dimension weight,	so	there	was	no	need	for	an	exemption. 30 rules.	Her	claim	for	an	exemption	has	a	similar	weight	to	Eweida's	on	both	dimensions.	But	the countervailing	interest	here	is	much	stronger:	a	reasonable	judgment	that	the	crucifix	would	be a	threat	to	the	safety	of	Chaplin's	patients	and	colleagues.	This	weightier	countervailing	interest means	that	the	exemption	was	rightly	denied.	My	judgment	here	matches	that	of	the	ECtHR, who	found	in	Eweida's	favour	but	rejected	Chaplin's	claim.75 In	many	cases,	of	course,	an	exemption	claim	is	weighty	on	one	or	both	dimensions	and the	countervailing	interests	are	also	strong.	Consider	individuals	who	refuse	to	work	on	holy days.	The	claim	for	accommodation	here	might	well	be	based	on	an	obligatory	and/or	central religious	practice,	and	the	cost	of	not	being	accommodated	might	be	that	the	claimant	loses their	job.	This	claim	is	thus	weighty	on	both	dimensions.	Granting	an	exemption,	however, might	be	costly	and	inconvenient	for	the	employer,	and	unfair	to	other	workers.	How	strong these	countervailing	interests	are	will	depend	on	whether	the	claimant	can	make	up	their	hours at	another	time	and	whether	the	employer	has	sufficient	employees	that	others	can	cover	the work	on	holy	days.	76	Exemptions	are	more	likely	to	be	justified	if	arrangements	can	be	made that	minimise	costs	to	third	parties.	Similar	comments	apply	to	other	cases	where	the	religious claim	is	weighty	on	both	dimensions	but	the	countervailing	interests	are	also	strong,	such	as Catholic	midwives	refusing	to	manage	abortion	wards	and	the	question	of	whether	a	sacred	bull infected	with	bovine	tuberculosis	can	be	spared	from	slaughter.77	The	correct	decision	in	cases like	these	will	depend	upon	a	context-sensitive	judgment	of	the	balance	of	interests,	and	the 75	ibid	paras	89-101. 76	It	is	also	significant	in	these	cases	that	the	structure	of	the	working	week	is	shaped	by	the	beliefs	of	the majority,	who	can	therefore	more	easily	combine	full-time	work	with	religious	practices.	It	might	thus	be seen	as	inegalitarian	to	deny	the	exemption.	See	Bhikhu	Parekh,	'Equality	in	a	Multicultural	Society',	in Jane	Franklin	(ed),	Equality	(IPPR	1997)	123-154. 77	For	the	midwives	case,	see	Greater	Glasgow	Health	Board	v.	Doogan	&	Anor	[2014]	UKSC	68.	For	the	bull case,	see	Surayanda	v.	The	Welsh	Ministers	[2007]	EWCA	Civ	893. 31 extent	to	which	the	costs	to	third	parties	can	be	minimised.78	The	framework	developed	in	this paper	still	provides	essential	guidance	in	these	cases,	however,	since	it	shows	how	the	vital	first step	–	evaluating	the	weight	of	the	religious	claim	–	should	be	undertaken. 6.	THE	ADMINISTRABILITY	OBJECTION A	desideratum	for	theories	of	religious	accommodation	is	that	they	can	be	fairly	and consistently	applied	by	both	legislators	and	courts.	This	was	Justice	Scalia's	main	concern	in	his rejection	of	the	Sherbert	test.	Scalia	argued	that	courts	could	not	manageably	decide	questions of	sincerity	or	assess	the	strength	of	religious	claims	and	government	interests.	He	"was unwilling	to	countenance	the	uncertainties	and	contextual	judgments	of	any	approach	that required	courts	to	weigh	religious	claims	against	state	interests."79	While	highly	critical	of Scalia's	view,	Greenawalt	also	emphasises	the	importance	of	administrability.	He	argues	that	we should	reject	the	approach	that	would	be	best	in	a	world	of	ideal	knowledge	and	assessment,	if it	is	not	administrable	in	the	real	world.80	Greenawalt	endorses	the	'weighing	approach',	but	is clear	that	administrability	constrains	its	content. Some	might	object	to	the	account	defended	in	this	paper	on	this	basis,	arguing	that	it fails	this	administrability	test.	The	account	calls	for	complicated	judgments	across	several dimensions.	There	is	always	going	to	be	vagueness	and	uncertainty	in	determining	how	'central' a	religious	practice	is,	or	how	the	weight	of	a	religious	claim	measures	up	against	the	weight	of 78	The	judgment	in	Surayanda (ibid)	exemplifies	this	point.	The	exemption	was	denied	because	the alternatives	to	slaughtering	the	sacred	bull	did	not	adequately	eliminate	the	risks	to	third	parties	posed by	the	spread	of	bovine	tuberculosis	(bTB).	The	court	recognized	that	the	exemption	claim	was	weighty, however,	since	the	claimants	believed	they	had	a	strong	religious	obligation	not	to	allow	the	bull	to	be slaughtered	and	this	obligation	was	in	outright	conflict	with	the	policy	of	slaughtering	cattle	with	a suspected	bTB	infection. 79	Greenawalt	(n	3)	31. 80	ibid	9-10. 32 the	countervailing	interests.	The	four	claims	in	the	previous	section	were	also	rather	vague. Different	judges	could	look	at	the	same,	or	very	similar,	cases	and	reasonably	reach	different conclusions	based	on	the	test	proposed	here.	Ultimately,	one	might	claim,	this	could	undermine the	rule	of	law,	since	cases	would	be	dealt	with	in	inconsistent	ways. This	is	an	important	objection,	but	it	is	not	decisive.	I	will	offer	three	replies	to	it	here. First,	the	law	in	this	area	is	already	shifting,	as	our	understanding	of	what	constitutes reasonable	accommodation	changes.	The	approach	defended	in	this	paper	does	not	radically differ	from	the	one	that	appears	to	be	implicit	in	many	rulings	in	both	the	USA	and	Europe,	but rather	seeks	a	fuller	and	richer	understanding	of	what	this	approach	involves. There	are	worrying	inconsistencies	in	the	present	case	law.	Different	courts	seem	to	use somewhat	different	reasonable	accommodation	tests,	seeing	different	factors	and	arguments	as relevant	to	determining	whether	exemptions	should	be	granted.	This	is	clear	from	the	range	of US	cases	surveyed	by	Greenawalt.	Courts	tend	to	employ	a	weighing	approach	and	to	draw	on the	kinds	of	factors	highlighted	by	my	view,	but	use	different	and	inconsistent	tests.	For example,	in	Mack	v.	O'Leary	the	court	stated	that	a	Moorish	prisoner	who	wanted	a	different 'feast	day'	to	those	currently	permitted	by	his	prison	faced	a	substantial	burden	despite	this being	a	non-mandatory	part	of	his	faith.81	This	contrasts	with	the	ruling	in	Bryant	v.	Gomez.82 Bryant	sought	'full	Pentecostal	services',	many	elements	of	which	were	missing	from	the	interdenominational	Christian	services	permitted	at	his	prison.	The	Court	ruled	that	he	had	not established	a	substantial	burden	on	his	religious	exercise	because	he	had	not	shown	that	those missing	elements	were	mandated	by	his	faith.	The	fact	that	his	claim	was	based	on	nonobligatory	parts	of	his	faith	was	judged	to	mean	that	the	burden	he	faced	was	not	substantial, despite	Pentecostal	worship	services	being	central	to	his	religious	practice.	This	directly contradicts	the	ruling	in	Mack	v.	O'Leary	that	restrictions	on	non-mandatory	practices	can constitute	substantial	burdens. 81	This	prisoner	still	lost	his	case.	The	burden	was	judged	to	be	outweighed	by	the	countervailing	interest. 82	46F.3d	948	[9th	Cir.	1995]. 33 European	law	on	religious	accommodation	is	developing	fast.	In	its	2010	judgment	on Eweida,	the	UK	Court	of	Appeal	argued	that	ECtHR	jurisprudence	on	Article	9	did	"nothing	to advance	the	claimant's	case."83	This	was	perhaps	true	at	the	time,	given	the	ECtHR's	previous endorsement	of	the	free-contract	doctrine.84	As	we	have	seen,	however,	the	ECtHR	ultimately ruled	in	Eweida's	favour,	and	judged	that	her	Article	9	rights	were	insufficiently	protected within	UK	law.	It	is	not	yet	clear	how	this	ruling,	along	with	that	on	Chaplin,	Ladele	and McFarlane,	will	shape	future	judgments.85 The	key	point	is	that	this	paper's	account	fits	with	the	general	approach	taken	by	both European	and	US	courts,	while	seeking	to	provide	much-needed	clarity	as	to	precisely	what	this approach	should	involve.	There	is	certainly	room	for	reasonable	disagreement	in	applying	the account,	but	it	makes	clearer	which	factors	should	and	should	not	count	in	determining	the weight	of	religious	claims,	and	helps	to	show	how	those	factors	interact	in	establishing	that weight.	Given	that	courts	already	apply	similar	tests,	there	is	no	reason	to	think	that	the	account is	not	administrable.	Indeed,	it	provides	the	guidance	needed	for	the	rulings	of	courts	to	become more	consistent,	rather	than	undermining	consistency	in	the	way	that	the	administrability objection	claims.	Further,	if	this	approach	was	adopted	then	precedents	would	develop	over 83	Eweida	(n	25)	para	22. 84	See	Maher	(n	28)	223-227,	and	the	summary	of	ECtHR	jurisprudence	on	religious	freedom	up	to	2010 in	Julie	Ringelheim,	'Rights,	Religion	and	the	Public	Sphere:	The	European	Court	of	Human	Rights	in Search	of	a	Theory?',	in	Lorenzo	Zucca	and	Camil	Ungureanu	(eds),	Law,	State	and	Religion	in	the	New Europe:	Debates	and	Dilemmas	(CUP	2012)	283-306. 85	For	helpful	analysis	of	the	significance	of	the	ruling	and	how	it	fits	into	ECtHR's	evolving	jurisprudence, see	Ian	Leigh	and	Andrew	Hambler,	'Religious	Symbols,	Conscience,	and	the	Rights	of	Others'	(2013)	3(1) Oxford	Journal	of	Law	and	Religion	2-24. 34 time,	which	would	help	to	clarify	points	of	ambiguity	and	provide	a	body	of	case	law	guiding	the future	application	of	the	test.	This	would	again	allow	for	a	greater	consistency	in	rulings.86 A	second	reply	to	the	administrability	objection	is	that	this	is	an	area	of	law	where	there will	always	be	difficult	judgments	and	grey	areas,	unless	an	implausibly	restrictive	approach	is adopted.	The	only	way	to	reduce	the	scope	for	reasonable	disagreement	would	be	to	say	that exemptions	should	only	ever	be	granted	in	a	very	specific	set	of	cases,	such	as	when	the religious	claim	is	based	on	a	strictly	obligatory	practice	that	is	directly	prohibited	by	law.	Such an	approach	would	rule	out	many	of	the	exemptions	that	are	currently	granted,	including	Sikhs' exemption	from	wearing	motorcycle	helmets	and	carrying	kirpans,	and	the	exemptions	granted in	the	landmark	Sherbert	case	and	other	cases	that	have	followed	Sherbert's	lead.	For	those	who endorse	reasonable	accommodation,	this	should	show	this	narrow	approach	to	be	unpalatable. As	Greenawalt	writes,	"this	is	one	of	those	domains	of	law	where	messiness	at	the	edges, and	uneven	application,	are	the	regrettable	costs	of	a	legal	standard	that	is	minimally responsive	to	the	underlying	values	that	matter."87	If	we	are	to	develop	an	account	of reasonable	accommodation	that	adequately	protects	religious	freedom	then	some	room	for reasonable	disagreement	about	the	correct	judgment	in	particular	cases	is	inevitable. Third,	the	account	developed	here	provides	much	more	guidance	to	courts	than	existing weighing	approaches,	and	so	is	superior	to	them	in	terms	of	administrability.	For	example, Greenawalt	ultimately	insists	that	we	cannot	move	beyond	the	phrase	'substantial	burden'	in determining	the	weight	of	religious	claims.	He	claims	that	"judges	follow	a	cleaner,	more coherent	approach	if	they	rely	exclusively	on	the	language	of	'substantial	burden,'	recognising that	other,	more	complicated	formulations	do	not	aid	in	resolving	the	crucial	question	about	the weight	of	interference	with	religious	exercise."88	As	we	have	seen,	however,	simply	relying	on 86	This	point	is	also	made	by	Nehushtan	(n	9)	243.	For	general	discussion	of	the	role	of	precedent	in constitutional	rights	adjudication,	see	Alexy	(n	18)	373-377. 87	Greenawalt	(n	3)	214. 88	ibid	210. 35 the	vague	notion	of	'substantial	burden'	has	not	led	to	a	clean	or	coherent	approach.	Greenawalt is	ultimately	left	relying	on	his	vague	intuitive	judgments	about	particular	cases,	without providing	any	unified	explanation	of	the	way	in	which	he	is	determining	when	a	burden	is 'substantial'.	This	paper's	formulation	is	certainly	more	complicated	than	Greenawalt's,	but	also aids	us	in	resolving	the	question	of	the	weight	of	particular	religious	claims,	contra	Greenawalt's assertion. Those	who	favour	reasonable	accommodation	should	reject	blunt	approaches	that	only recognise	a	'substantial	burden'	when	a	very	high	threshold	is	met,	and	should	also	reject 'anything	goes'	approaches	that	permit	any	'good-faith	religious	claim'	to	potentially	lead	to	an exemption.	We	should	adopt	a	'weighing	approach',	and	thus	need	guidance	as	to	how	to	weigh religious	claims.	Greenawalt	acknowledges	all	of	this,	but	ultimately	provides	little	guidance. This	paper	has	sought	to	provide	such	guidance,	and	this	makes	its	account	more	easily administrable	by	lawmakers	and	courts	than	Greenawalt's	appeal	to	an	apparently unanalysable	notion	of	'substantial	burden'. There	is	much	room	for	further	philosophical	work	to	specify	and	clarify	my	account. The	explanation	offered	in	this	paper	has	been	sketchy	and	underdeveloped	in	places.	Further analysis	of	several	of	the	central	concepts,	both	in	the	abstract	and	in	relation	to	concrete	cases, is	needed	in	order	to	sharpen	the	account.	Such	work	would	make	the	account	both	more philosophically	defensible	and	easier	for	legislators	and	judges	to	apply. We	should	also	acknowledge,	however,	that	there	might	well	be	a	gap	between	the	ideal application	of	the	approach	defended	here	and	what	can	be	institutionalised	in	practice. Constraints	of	time	and	information	will	clearly	affect	how	a	regime	of	reasonable accommodation	operates.	Sometimes	this	will	mean	that	judgments	about	the	weight	of religious	claims,	on	both	of	the	dimensions	discussed	in	this	paper,	will	be	tentative,	uncertain, and	disputable. 36 Nonetheless,	the	account	developed	here	both	formalises	ideas	implicit	in	current	legal practices	and	can	direct	future	practices	in	ways	that	lead	to	a	more	coherent	and	clear	regime of	reasonable	accommodation.	It	can	thus	reinforce	the	rule	of	law,	rather	than	undermining	it.