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Against Exemptions
In Washington State, an elementary school decided to relax its “zero tolerance” knife policy to allow a Sikh student to carry a small kirpin — a symbolic dagger all Sikhs are required to carry at all times — to class. Kirpins have been a legal headache for similar prohibitions for some time, and Sikh groups have successfully lobbied and litigated for legal exemption to these rules on the grounds that they impede their religious practices.
But, as noted in Reason, this unfortunately leaves all the other students in the district at the mercy of an absurd rule that treats anyone caught carrying a pocketknife as a nascent mass-murderer. If all religious Sikh students can be trusted to carry a small knife safely and responsibly, why can’t other students?
When the law admits that an entire class of people can be permanently exempted from a general rule, it invites the question of whether a general rule was an appropriate remedy in the first place. The problems are further compounded when the exemption is based on matters of conscience and religious conviction, both areas where the state is ill-equipped to make fair judgments without either attempting to scrutinize citizens’ beliefs or allowing any specious claim to pass. As Justice Scalia put it in his 1990 majority opinion in the case that spawned the Religious Freedom Restoration Act, “To permit [general laws to be exempted on grounds of religion] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Moreover, such exemptions allow unjust laws to stay on the books by exempting those for whom the law is most egregiously harmful and offensive, leaving everyone else stuck with the consequences, but not quite fired-up enough to do much about it. As abhorrent as I find having to pay for Sandra Fluke’s contraceptives, I’ve no doubt that the owners of Hobby Lobby found it more offensive yet. Now that they have their exemption, however, I and the millions of other Americans who aren’t employed by a closely-owned Christian corporation are stuck paying the bills, while Hobby Lobby is safe and therefore less motivated.
I can’t begrudge individuals too much when they sue for exemption from laws that would force them to violate their closest and most sacred convictions, but I do wish there’d be a few more voices speaking out for the citizenry at large, rather than just their own interests. “Women and children first” is an honorable tradition, but it’s easy to be cynical when those shouting the loudest are the women and children furthest from the lifeboats.
Image credit: “Kirpan small” by Hari Singh – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons.
Published in General
Like. Really like. A lot.
The most common defense of the kirpan is that, being strictly ceremonial, they aren’t actually used as weapons in the same way that things like switchblades are.
The problem with that argument is that it isn’t true:
From what I understand, Sikhs were willing to make accommodations to the extent of riveting the kirpin blade to the sheath, so it cannot be pulled. That allowed them to adhere to their beliefs without having a weapon others viewed as dangerous. (Although you could clout someone over the head with the sheathed knife — but then you could also clout someone with a spare battery from a PC.)
This compromise was unacceptable in many school districts due to the belief of school administrators in sympathetic magic — the view the image of a thing was the thing. Kind of like the kid who got jugged for chewing a pop-tart into the shape of a gun, because that magically turned the pop-tart into a gun. As long as superstition and political correctness rule our schools this type of nonsense will continue.
Seawriter
A better analogy to the Hobby Lobby case would be a school district which required Jewish or Muslim students to eat pork chops for lunch.
The problem today is that we cannot trust people to exercise intelligent discretion on anything so we have to defer to bureaucratic rule making to free us from that responsibility. We end up treating the kid with the kirpin, the kid who accidentally brings a knife to school and the kid threatens other kids all the same, much the same way the girl who gives her friend an aspirin is treated like kid who deals drugs. A little common sense would go a long way.
The trouble is that too many school administrators so lack common sense that they would be a menace if left to their own decision making.
Really? Really? We cannot or we choose not to?
Be careful how you answer my question. Because if we really cannot trust people to exercise intelligent discretion on anything we really cannot trust them to choose their lawmakers. Best to return to anointed leaders.
Seawriter
I agree entirely, but there are a lot of people including conservatives who truly believe that exemptions for the religious are an essential part of America’s heritage. I can’t think of any law or other legal requirement which requires a religious exemption which is a good idea in the first place. Conscientious objection is the most egregious example of this type of thing but there are plenty of others.
Yes, indeed, it is indeed easy to be cynical nowadays when zero tolerance extends to pop-tart Rorschach tests interpreted as “gun.” My own faith, Civil Westmania, requires that I have in my possession, at all times and in all places a semi automatic pop tart, caliber no less than 9mm containing one magazine holding 13 rounds JHP, and one spare full magazine. Amen. Tax Vobiscum. Go in peace.
I don’t think that religious exemptions are driving our government’s descent into an all-encompassing regulatory state. Left-wing ideology is doing that.
So, while I appreciate what you’re saying, and I’ve never heard the thought expressed before, religious exemptions aren’t the problem. Conservatives and libertarians need to get better at forthrightly and persuasively arguing that the purpose of government is not to provide free false teeth.
Possibly, but that doesn’t really change my point: in both instances, someone is claiming an exemption to a broadly applicable law that requires people to either do or abstain from doing an activity central to their practice of their religion.
Again, if it’s okay for a class of people to be permanently exempted from a law based solely on their religious convictions, doesn’t that beg the question of whether such a slaw should exist in the first place?
This: “When the law admits that an entire class of people can be permanently exempted from a general rule, it invites the question of whether a general rule was an appropriate remedy in the first place.”
(Repeated from Tom’s OP just because it’s really important.)
I was typing my “echo” of Tom’s point just when Tom echoed himself: too funny!
I agree; my point is that they’re a terrible attempt to solve the problem.
The exemptions are not the initial problem, as you note. But they make it much harder to roll back the left-wing regulatory impositions. Exemptions remove the direct constituency that suffers the most, they remove the urgency to undo the rule, and they implicitly endorse the fact that the rule still applies to everyone else. So the left-wing state takes more and more power (not only the power inherent in the law or regulation, but also the power to select whom it applies to), building on the last incursion, while we are left on the defensive, arguing against the next one without hope of undoing the last one.
I am opposed to ‘zero tolerance’ policies because they are an excuse to not make reasonable distinctions.
I have no problem with a general rule prohibiting children from having a knife at school but the administrators of the school should have the discretion to treat a ceremonial dagger and a Swiss Army knife differently than an 8 inch Bowie knife and a 5 year old differently than a 15 year old.
The free exercise of religion is explicitly protected in the Bill of Rights and it should be considered when making such distinctions.
The fact that an exemption can be granted without negative consequences just proves the law is unnecessary. If Sikh kids can bring small knives without a massacre happening, then why can’t others bring pocket knives or butter knives without a massacre happening? If the rule is truly necessary to prevent a murder, then it should apply to everyone without exception. If not, it shouldn’t exist at all.
I agree, but the easiest way to assure the free exercise of religion in a pluralistic society is to pass as few laws as possible, rather than to pass a lot of laws and then make exemptions for the most egregious violations of conscience.
No: it invites and then provides the answer–of course it is not an appropriate remedy. And that answer is spelled out in depth and at length in books like Hamburger’s Is Administrative Law Constitutional?; and in Howard’s The Rule of Nobody.
We who are not enjoying this rapid ride down the Progressive’s slippery slope might as well yell “WHEEEE” ’cause there’s no stopping ’til we’ve hit bottom. And the “brakes” offered up in 2014 and suggested for 2016 are well-worn and worn out.
I know it’s somewhat illogical, but I see a positive requirement to do something as more intrusive than a prohibition against doing something. But I also don’t think it’s reasonable to try to arrive at an all-or-nothing rule. Conflicting interests are always subject to some balancing test or other. Does the fact that we granted conscientious objector status to some religious citizens during wartime raise the question of whether conscription laws should have existed in the first place? I don’t really think so. And the argument that people asserting their rights make matters worse for the rest of us strikes me as a bit too similar to the argument that kids in public school shouldn’t be allowed to leave because doing so makes life harder for those who remain in the public schools. But that’s another post.
I am glad to read Tom’s comments and responses to comments because a bit of his emphasis seemed to get lost by the end of the OP. I doubt he is arguing that the the Sikh’s can just go pound sand, he is arguing that the exemption is what disproves the rule. If it is important to keep students from carrying knives in school, either the Sikh’s (and the school district) have to agree to a compromise like Seawriter’s (effectively making the knife unoperable) or they shouldn’t get an exemption.
Fundamentally, as in contraception mandate, I don’t think the government has any business telling businesses what their medical plans must or must not cover. The question is: Do religious exemptions hurt or help liberty? In the short run the help liberty, but in the long run they may hurt liberty by removing the most strenuous objections rather than all objections.
In the case of conscientious objectors, the inoperable dagger compromise is the requirement that the person serve in some non-combat (possibly even non-military role). What is the inoperable dagger compromise for the contraception mandate? It is NOT the requiring the insurance company to provide contraception for “free”.
I agree, but the easiest way to assure the free exercise of religion in a pluralistic society is to pass as few laws as possible, rather than to pass a lot of laws and then make exemptions for the most egregious violations of conscience.
I am with you on this generally but not necessarily on this specific instance. As I mentioned, I am sympathetic to a general rule against children carrying knives or other weapons to school. This may be because I want those in charge of the school to have the discretion to preemptivly deal with threats to safety. It is easier, IMO for a principal to take action against a student he credibly believes is a danger if he can point to a general policy than it is for him to make a specific case as to why that student is being singled out.
It certainly doesn’t help the case for them, IMHO.
YES!
Ok, I don’t think I fully appreciated the point without a bit more explanation. I agree with you more heartily now, but what are we supposed to do, just ignore the First Amendment problems with these laws? Or use the First Amendment problems as a way to make a broader argument about the undesirability of certain laws because they restrict liberty?
But does it obviate the need for them?
So when they pass out the class photo, a SWAT team will be standing by to take out all the non-Sikhs for possessing an image of a knife in violation of the school zero tolerance policy.
If there is a first amendment problem with the law the law should be invalidated in its entirety. You should not carve out special exemptions for specially protected constituents.
I think the latter would be much better in the long-run.
If this is true, then our kids should be able to carry a gun to school as long as the barrel is plugged.
Okay, I was just being a bit silly, but my point is that as long as something is tied to a non-Christian religion, it’s okay. Ceremonial knife? No problem. Tee shirt with a cross on it? Cover it, or go home and change clothes.
Well, I’m really not a fan of conscription laws in general. If the war’s worth fighting, it should be fightable with a volunteer force, which is what we’ve had for most of our country’s history.
That’s sort of an independent argument.
BTW, I gather you served in Korea, Mr. Fawlty. Thank you for your service and sorry about the leg. ;)
Unfortunately Stad you are right. The “separation of Church and State” is literally the separation of “Christian Churches” and State. In our society it is deemed fairer to oppress the majority to please a minority than it is to protect the rights of the minority against the majority.