The Cost of Conscience: Religious Exemptions and the Erosion of Women’s Rights
February 2, 2026
[Editor’s note: this is the fifth of six posts commenting on Gila Stopler’s new book, Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion, and the Chimera of Rights (Cambridge University Press, 2025)].
In Women’s Rights in Liberal States: Patriarchy, Liberalism, Religion and the Chimera of Rights, Gila Stopler offers a powerful feminist critique of liberal democracy by exposing how women’s rights are structurally undermined through the liberal state’s accommodation of majority religions. Her central claim is that religion functions as a deeply patriarchal institution whose authority is preserved—and constitutionally legitimized—by liberalism’s commitments to toleration, religious freedom, and the public–private divide. Rather than operating as a neutral framework, liberal constitutionalism enables the erosion of women’s rights from within the legal order by insulating religious practices from democratic scrutiny.
Stopler challenges the conventional Enlightenment narrative that portrays secularism as an emancipatory force that confined religion to the private sphere and thereby facilitated women’s liberation from religious authority. Drawing on feminist critiques of the social contract[1], she demonstrates that the designation of certain domains as “private” does not signify a withdrawal of power, but rather a mode of its reconfiguration and concealment. Within this framework, religion occupies a uniquely privileged position. Its ostensible privatization shields religious norms from democratic contestation while simultaneously allowing them to regulate gender relations, family structures, sexuality, and reproduction. Far from being politically neutral, the private sphere becomes a site in which patriarchal power is entrenched and normalized.
Crucially, moreover, Stopler shows that the liberal insistence on treating religion as private obscures the extent to which religious patriarchy extends well beyond the private sphere and profoundly shapes public life. One of the most significant mechanisms through which this occurs is the proliferation of religiously based exemptions from generally applicable laws. Across the United States, Europe, and Israel, claims for exemptions increasingly target women’s reproductive rights and the rights of sexual minorities—domains that, as Stopler observes, are central to the patriarchal sexual order and its linkage of sex, marriage, and gender hierarchy. In Israel, these dynamics are further intensified by conflicts over women’s presence in the public sphere itself, including practices of gender segregation and exclusion that restrict women’s freedom of movement and participation.
Stopler’s comparative analysis reveals striking similarities between constitutional systems that are often regarded as fundamentally different in their approach to religion–state relations. The United States, frequently idealized as a bastion of secularism, and Israel, which lacks a formal separation between law and religion, both exhibit a growing willingness to accommodate religious claims at the expense of women’s equality. This convergence underscores Stopler’s broader claim that the problem lies not in the absence of secularism, but in liberalism’s structural deference to religion as a protected sphere of authority.
Judicial decisions such as Burwell v. Hobby Lobby exemplify this tendency. In that case, the U.S. Supreme Court held that for-profit corporations controlled by religious owners could be exempted from providing contraceptive coverage mandated by law, on the ground that compliance would burden the owners’ religious freedom[2]. As Stopler argues, this reasoning is emblematic of a broader transformation in the concept of conscientious objection. Traditionally understood as a limited protective mechanism for marginal individuals holding exceptional beliefs—such as pacifists—conscientious objection has evolved into a collective, politically mobilized strategy aimed at undermining the general applicability of secular law. These claims increasingly amount to “jurisdictional objections” that challenge the state’s authority to regulate domains claimed by religion[3].
The cumulative effect of religious exemptions is the hollowing out of women’s rights without their formal repeal. Equality remains enshrined in constitutional texts, yet its realization becomes contingent and uneven, producing parallel legal regimes in which women disproportionately bear the costs of accommodation.
While Stopler’s analysis is largely persuasive, a comparative perspective reveals important regional variation. Europe, though not immune to the proliferation of conscientious objection claims, has demonstrated a relatively greater capacity to resist their corrosive effects. The jurisprudence of the European Court of Human Rights (ECtHR) reflects a nuanced approach that distinguishes between the protection of minority conscience and the accommodation of claims that undermine the rights of others. In Bayatyan v. Armenia, the Court robustly protected individual conscientious objection to military service under Article 9 of the EctHR[4]. By contrast, when religiously motivated exemptions have been invoked in the fields of sexual and reproductive rights, the Court has adopted a markedly more cautious stance, not privileging Christian majorities. In Ladele, the ECtHR upheld the dismissal of a registrar who refused to register same-sex unions on religious grounds, finding no violation of Article 9 and emphasizing the state’s duty to protect the rights of same-sex couples[5]. Similarly, in cases involving pharmacists who refused to dispense contraceptives, the Court held that freedom of religion does not entail an unconditional right to act in accordance with religious beliefs within the professional sphere[6]. The Court’s conclusion that the failure to provide for a right to conscientious objection does not constitute a violation of Article 9, if motivated by the protection of the right to health, further underscores its prioritization of women’s rights over claims of conscience[7].
Europe’s relative success in containing the assault of patriarchal religion on women’s rights can be attributed to the existence of common standards and the institutional role of the ECHR as a shared normative framework. Yet Stopler offers a sobering warning about the rise of illiberalism and populism and their strategic mobilization of religion. Across liberal democracies, religion is increasingly deployed within populist projects that frame gender equality as elitist, undemocratic, or culturally alien. Anti-gender discourse has emerged as a powerful unifying force—a “symbolic glue” that binds heterogeneous illiberal actors through a shared opposition to feminism, sexual minorities, and liberal human rights[8].
Within these discourses, gender becomes a proxy battleground for broader critiques of liberal democracy and globalization. Populist rhetoric relies on binary logics and moral panic, naturalizing gender hierarchy and sacralizing “the people” as a homogenous moral subject under threat from feminists and sexual minorities. In this context, rights themselves are appropriated and re-signified, stripped of their emancipatory content and redeployed to legitimate exclusion and inequality[9].
Ultimately, Stopler’s critique of the public–private divide exposes a foundational contradiction within liberalism. A state that claims neutrality toward religion cannot simultaneously guarantee women’s equality when religious institutions exercise entrenched patriarchal power. Her intervention calls for a feminist rethinking of toleration: without confronting religion as a patriarchal, public and political force, liberal democracies will continue to erode women’s rights in the name of religious freedom.
[1] C. Pateman, The Sexual Contract, Stanford University Press, 1988.
[2] Supreme Court of the United States, Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
[3] S. Mancini, “Global Religion in a Post-Westphalia World”, in A. F. Lang, A. Wiener, Handbook on Global Constitutionalism, Edwar Elgar Publishing Limited, 2023: 556 – 567
[4] ECtHR 7 July 2011, Application no. 23549/03, Bayatyan v. Armenia.
[5] ECtHR 15 January 2013, Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, Eweida and Others v.
the United Kingdom.
[6] ECtHR admissibility decision 2 October 2001, Application no. 49853/99, Pichon and Sajous v. France.
[7] ECtHR 11 February 2020, Application no. 43726/17, Ellinor Grimmark v. Sweden; ECtHR 11 February 2020, Application no. 62309/17, Linda Steen v. Sweden.
[8] W. Grzebalska, E. Kováts, A. Pető, Gender as Symbolic Glue: How ‘Gender’ Became an Umbrella Term for the Rejection of the (Neo)Liberal Order, in Breaking Feminism. LUX, 2018: 32-38.
[9] S. Mancini, M. Rosenfeld, Politicized Religion and the Reframing of Fundamental Rights, Oxford University Press, 2026.