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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
You could be number five, you know.
Well played, sir. ;)
Let’s hope some Jihadi doesn’t convince the school district that carrying an RPG is an essential part of his kid’s religious values…
Aw, c’mon, Seawriter, read Quinn’s comment again, and you’ll see he’s ironically adopting the point of view of the government in that sentence. He makes the exact point you’re making lower down.
UPDATE: or not. Now I’m confused. Maybe I should let Quinn do his own defending/explaining in the future.
The Constitution prohibits laws that abridge freedom of religion. If it’s found that a law needs an exception, then isn’t that an admission that it abridges freedom of religion and thereby is unconstitutional? So it would seem that when the court made an exception for Hobby Lobby, for example, it should have declared the whole law unconstitutional.
I’m not sure it’s the administrators’ lack of common sense that’s the problem. More likely, it’s the principals’ bureaucratic superiors’ unwillingness to put the district’s welfare in the hands of the civil juries where these conflicts are often settled. Risk management trumps everything in school policy.
This disappearance of discretion for teachers and building administrators is, sadly, a product of the decades-long assault on the authority of many local institutions, an assault fueled largely by federal and judicial over-reach.
As was pointed out, this was a figure of speech. The point was that institutions are more comfortable with a set of rules that are predictable but unfair to leaving decisions to individuals that are unpredictable and sometimes, though not always wrong.
You have something similar in another field of discipline, criminal sentencing. A generation of left-wing judges with their lenient sentencing left us with a system of sentencing guidelines to reduce a judge’s discretion, which itself doesn’t always yield fair results. Some people ruin everything for everyone.
The entire topic of “one-size-fits-none” rules is a product of the legal philosophy known as the rationalist school of law. This school has been at work undermining individual liberty and discretion for a long time. It is the – usually unarticulated – basis of modern legal education and is fundamentally statist in outlook.
The goal of rationalist jurisprudence is to eliminate individual discretion in implementation of all law – whether statute or administrative rule. This requires creating a list of rules so extensive as to contemplate, a priori, every imaginable circumstance and have a rule in place to deal with it. The job of the so-called decision maker is to merely find and apply the correct rule. This philosophy has filtered down from the top – government – and has infected (and corroded) most every societal body. Judges, presented to sentencing guidelines, objected that they had been reduced to “ventriloquists’ dummies.” School boards give us incredibly stupid “zero tolerance” policies. I can’t speak for others, but I often have the sense that someone, somewhere wants to choreograph my every step and script my every utterance (and thought).
By way of further example, in medicine, we now have the ICD-10 (Int’l Classification of Disease) with 68,000 discrete codes. In order to be reimbursed for any service, one must find and enter the proper code. It includes one for “sucked into a jet engine, subsequent encounter.”
I can barely begin to imagine the list of possible exceptions.
The other part of this is that it is the image of a weapon that causes problems – forget about the rivet. What if the kid ate a pop tart in the shape of a kirpin?
I thought about that sometime after I posted. If a principal makes one decision in one case versus another decision in a different case, the parents are likely to lawyer up. Though I think we both agree on the net outcome, which is bad rule making.