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One Quote And Three Questions on Religious Liberty
On the Volokh Conspiracy, Eric Rassbach writes the following on the rise in religious liberty cases in the United States:
Imagine a…Venn diagram of fields of human activity, with the field of government regulation represented as a sphere, and the field of religious activity represented as another, intersecting sphere. Religious liberty conflicts arise within the overlap between the sphere of government regulation and the sphere of religious activity. When either sphere expands over time, the set of potential conflicts increases. When either sphere contracts, there is less overlap and less potential conflict.
He continues:
New conflicts most frequently arise when the sphere of government activity expands: government seeks to exercise more comprehensive control over a field of human endeavor where religious people have already long been active. For example, the recent rash of litigation over the contraception mandate arose because the federal government sought to expand its control over the healthcare plans of religious organizations in a way it had never done before.
Sometimes of course the sphere of government shrinks, reducing the amount of religious liberty conflict. For example, once the draft was ended, the number of conflicts surrounding religious conscientious objection to military service sank precipitously. However, in recent years government expansion, rather than contraction, has been the rule, resulting in more potential religious liberty conflicts.
It is also sometimes the case that the sphere of religious activity expands, resulting in more conflict. This happens most frequently when “new” minority religions begin to be active in the United States. Thus a significantly disproportionate share of religious liberty conflicts involve “new” religious minorities (see, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (Santeria plaintiffs seeking to engage in animal sacrifice); Gonzales v. O Centro Beneficente do Uniao do Vegetal (Brazilian spiritist church plaintiffs seeking to drink hallucinogenic tea); Cutter v. Wilkinson (Wiccan, Odinist, and “Christian Identity” prisoner plaintiffs seeking access to religious materials)).
Taking cue from our own Peter Robinson, I present the Ricochetti three questions:
- To what extent do religious exemptions — especially those that affect many people in perpetuity — undermine the principle that laws should be broadly applicable?
- Is there a conflict of interest between pursuing strong religious exemptions — which make conflicts between citizens and the state less painful and/or better resolved — and fighting for a smaller government?
- Given that it’s difficult to respect citizens’ religious liberty equally in a diverse society, is it reasonable to consider religion in immigration policy?
Image Credit: Flickr user Bev Skyes.
Published in General
1. What ever happened to laws being rational and based on granted authority? Answer that one the right way and your question goes away.
2. Religion seeks to govern the individual internally, government seeks to do so externally. We really only can have one or the other if we want to avoid conflict.
3. Along with the other questions this one assumes some rationality and validity to the amount of government we have and the amount some people want to add to it. I reject both as being rational, moral, or legitimate.
I have argued before that “religious liberty” is more a symbolic concept than a distinct realm of activity.
This is because religion is essentially shorthand for a fundamental and comprehensive worldview (regardless of whether or not those beliefs involve spirits or gods, as popular religions have historically preferred). It necessarily informs all or most other beliefs and activities, including political choices. It is impossible to make a political decision without any reference to one’s perceptions of nature (human and non), morality (both individual and communal), purpose, and possibility.
It is necessary for one general worldview to dominate a political order. That doesn’t mean all citizens should be forced to believe the same thing and worship the same ways. It means that without generally shared beliefs regarding facts and moral premises, debate is fruitless and cooperative action is unlikely.
Why do we not allow public animal sacrifices? Why do we not allow various forms of wife sacrifice? These are ancient religious practices found in cultures around the world. But they are not our customs. We demand that citizen behavior conforms to at least the most basic standards of Judeo-Christian heritage.
Consequently, claiming something as “a religious exemption” is silly. In the interest of harmony and respect for free will, we tolerate (a word which necessarily implies disapproval) as much deviation from the general consensus as possible. But we all demand enforcement of our most basic religious principles.
In light of what I’ve just said:
1) Religious exemptions are bunk if the idea is to treat all religions equally. A religious exemption can’t even be granted without a political authority determining what qualifies as religion.
Note that the tax exemption for traditional Christian churches makes sense even without reference to religion. Traditional churches provide services to the poor which otherwise would invite government expenses (granted the modern premise of political entitlements).
2) Until this past century, most needs were addressed by local communities with churches at the forefront. Again, religious exemptions are bunk. But recognizing the beneficial role of the traditional Western religions specifically (Judaism and Christianity) in care for the needy and the guidance of public standards helps to preserve limited government.
However, preserving limited government and establishing limited government are two very different endeavors. Historically, it seems the only time to establish limited government is after the previous government has crumbled.
3) Yes. There is plenty of room for disagreements among citizens. But basic perceptions of reality and basic goals should be shared.
A society can afford a minority of cultural deviants if the culture is self-confident. Modern European nations like France and Britain demonstrate the power a religious minority can exert in a society that is not self-confident. America’s own division between liberals and conservatives (leaving out groups only pragmatically aligned with these cultures) demonstrates the inability of fundamentally different worldviews to harmonize.
1- All laws affect some people and don’t affect others, which everyone generally accepts. It doesn’t seem like those that apply to religious people are different in this way, though perhaps secular people tend to notice it more.
2- If government is smaller, the religious and government circles are less likely to intersect and the need for exemptions is greatly reduced. This gives everyone, especially religious people, incentive to keep government small. From a small government perspective, it’s a reason to not allow exemptions. Since government isn’t small, however, we need to grant exceptions, especially when government vastly overreaches, as with Obamacare.
3- In the late 19th century Mormon immigration was restricted because it was deemed to feed polygamy. Realistically, this kind of thing happens, but care should be taken that it is not too discriminatory.
Whatever answers harm radical Islam. I’ll pick those but of course so much harm is done in the name of safety.
These are hugely important questions. I would strongly recommend separating the three in our minds, though. Question three seems a polite way to open a what should not be a guised debate but an open one, to wit, whether America’s assimilative power is sufficient that there is no risk we’ll ever be hiding the front page of Charlie Hebdo.
Too late on that, so I’d say it’s not about immigration. It was once sufficient, for sure.
The other two questions are different, but that’s my reply to three.
The problem with religious liberty is that the presumption of religious liberty in all areas is endangered by the ever growing regulatory state. Of course, conceiving of “religious” liberty differently than any other liberty is deleterious since it makes religious into “hocus pocus” instead of something that needs to have a coherent reasonableness to it. Religion is not something you’re obliged to support, but peaceful practice and worship along the same lines as the laws that would apply equally on us all, should be something at the bedrock of the liberty that undergirds the republic
If you are talking about the conflict between religious liberty and government coercion, it can be argued along the same lines as Richard Epstein would have argued the HHS contraception mandate cases, using a combination of the takings clause as an unlawful transfer of assets from person A to person B. But convincing judges without statutory protections is much harder than doing it with statutory protections, which makes state-level RFRAs all the more important going forward. I think the logic is already woven in with the Constitution and the natural law, but that’s not the same as having something laid down for practicality’s sake.
For a judge to grant an exemption while at the same time upholding the law is a contradiction. If a law needs an exemption in order to protect someone’s legitimate religious liberty, then it seems clear that the need for the exemption is itself proof that the law violates religious liberty and is therefore invalid. If it didn’t violate religious liberty, the exemption wouldn’t be necessary. The law doesn’t cease to be invalid just because some of those who are negatively affected are granted exemptions. Especially since the only ones who end up exempted are those willing to spend large amounts of time an money fighting in court. Congratulations to Hobby Lobby but what about everyone else.
The interference into the practice of religion, I believe, has always been governed by the concept of “compelling state interest.”
The state has a compelling interest in protecting minor children from abuse and has in the past ignored religious practices that deny children life-saving medical care.
Which makes the baker of cakes case problematic. Discriminatory? Maybe. A compelling state interest? No. Physical harm vs emotional distress/political outrage is hardly on the same level.
So am I to take it you are not a fan of RFRA?
In the case of something like Hobby Lobby — or any RFRA case — the upshot is that some citizens objections are privileged over others on the basis of some have religious exemptions to a law while others lacking such.
Absolutely agreed.
This is where I have serious problems. On the one hand I’m really glad Hobby Lobby is exempted from doing something against their conscience. On the other, doing so has removed the most compelling reason to oppose the law and — frankly — leaves the rest of us out in the cold and makes it less likely that the mandate will be repealed.
Guilty as charged.
Islam seems to present a particular problem both in its propensity for violence and history of political dominance (i.e., whereas Christianity’s formative history was shaped by its persecution, Islam’s was shaped by its civil and military success).
I agree we’ve badly mucked this up already, but limiting Muslim immigration still strikes me as a decent idea. American Muslims are, of course, as American as anyone else.
I would vastly have preferred Epstein’s solution to Hobby Lobby’s.
The problem with Rassbach’s reasoning is that “Venn diagram” model. I get the contention that regulation and religion are more likely to conflict the more active either is. But this model of the two bumping together like balloons is dumb. The interaction of government and religion doesn’t merely occur at their boundaries.
Rassbach’s analogy is bollocks, but fortunately he doesn’t need it for his argument. (Lawyers shouldn’t attempt to borrow the stature of math, it just looks silly.)
That said,
I suppose I should say I see no conflict between religious preference in immigration decisions and evenhanded application of law for the citizenry. Immigration policy is part of the boundary that encloses a society, permitting it to function according to its internal logic.
It’s clear
I think I’d say this slightly differently, but you’re getting at what I was thinking was the answer to questions 1 and 2. We don’t provide blanket religious exemptions (see wife burning), we only provide religious exemptions where they seem reasonable (see Native American peyote ceremonies and exemptions from truancy laws for the Amish). But the very fact that an exemption seems reasonable implies that the legal mandate or prohibition exempted from is of, at most, modest urgency or importance, i.e. probably a product of government overreach. An exemption, then, is almost a canary in a coal mine to tell us that the law has gone where it shouldn’t have.
Regarding religious exemptions being bunk, let me take the con of what I just said. They are canaries in a coal mine, but they are also bunk in the sense that if a law is useless enough to justify a religious exemption, why should the rest of us be burdened by it? Why does a religious group alone get spared the burden? The exemptions may warn us of a law’s overreach, but at the same time, they give a safety valve to bad laws — permitting them to essentially buy off what might be their most sympathetic and effective opponents — to the detriment of the rest of us.
Hadley Arkes on the matter in First Things (June 2014): What I’m arguing here is that the strongest argument on the side of the Green family and other religious people would be found in appeals not to belief and sincerity, but to the principles that are bound up with a constitutional order. And the deeper point is that there is nothing in this approach that diminishes the dignity or standing of the religious life. This is not, in the moral scale of things, a lesser argument. The truth of the matter is that the religious tradition does not come into our law and our lives as a set of eccentric “beliefs,” merely begging for indulgence and exemptions to the laws laid down for others. Rather, our religious teaching has formed the deep moral reservoir on which the law has drawn.