The Religious Freedom Restoration Act establishes religious privilege

In the United States, the Supreme Court tells us, corporations have the status of “people” and thus have attendant constitutional rights including freedom of religion. That allows corporations to decline to participate in aspects of Obamacare if it considers that doing so would be against the corporation’s religious beliefs.

This landmark “Hobby Lobby” ruling followed predictable lines, with five Catholic judges out-voting the Court’s four moderates. Much of the commentary has focused on the doctrine of awarding personhood to corporations. An equally important issue, however, is the role of the 1993 Religious Freedom Restoration Act, whose effects are seen for the first time.

That Act would have been better named the Religious Privilege Establishment Act. It requires that the:

“Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability”, with allowed exceptions only where the burden “furthers a compelling governmental interest”, and in addition “is the least restrictive means of furthering that compelling governmental interest”.

This privileges the religious since it grants greater import and status to a religious motivation for doing or not doing something than to a secular motivation for the same thing. Through this promotion of religious belief it is a law “respecting an establishment of religion” and thus it violates the First Amendment.

Since 1971 the Court has adopted the three-pronged “Lemon test” to judge establishment of religion. This requires that a statute must not: (1) result in an excessive government entanglement with religious affairs, nor (2) advance or inhibit religious practice, and (3) that the statute must have a secular legislative purpose.

Privileging religious motivations over secular motivations clearly advances religious practice, violating the second prong, and has no secular purpose, thus violating the third prong.

The Religious Freedom Restoration Act was passed as a reaction to the 1990 Employment Division v. Smith ruling, in which Scalia et al had held:

Although a State would be “prohibiting the free exercise [of religion]” in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections.

The Court had it right in 1990. Equality under the law and non-establishment of religion require that a religious belief or motivation should neither privilege nor disadvantage anyone. The Establishment Clause of the First Amendment equates to that lack of privilege, and the Free-Exercise Clause to the absence of disadvantage.

The 1990 Smith ruling was controversial since Christians had previously presumed that religious belief granted greater privilege, requiring the government to try hard to avoid burdening religious practice. The 1993 Act was passed to “Restore” that presumption.

Yet, while the Court, on occasion, had indeed considered the burden of secular laws on religious practice, this had always been very limited. As Scalia explained, such rulings had involved “… not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections”.

Take, for example, the much-cited Wisconsin v. Yoder ruling, which upheld the right of Amish families to home-school their children. The argument there was crucial: it was predicated on a general right of all parents to home-school children (the 1925 “Pierce” ruling), provided only that that education was sufficient and adequate to prepare them as future citizens. The state had not demonstrated any insufficiency of the Amish’s religious-flavoured home schooling, therefore it was wrong to demand attendance at state schools. So it was not that religious parents had a right to withdraw their children when non-religious parents did not, it was that all parents did, which thus included religious home-schooling.

Thus the “right” that was “restored” in the Religious Freedom Restoration Act had never actually existed. Previously, religious freedom was simply part of a more general package of rights that applied to everyone (as enunciated in the “hybrid rights” doctrine of Scalia’s Smith ruling). The Religious Freedom Restoration Act goes well beyond any previous constitutional provision for religious belief and establishes a privilege for religiously motivated desires that the non-religious do not have.

The Constitutionality of the Religious Freedom Restoration Act has never been tested, and was merely presumed in the Hobby Lobby ruling. Given the current Court’s highly-religious make up it is unlikely to be challenged, but the dissent by Justice Ginsberg is full of worry that “The Court, I fear, has ventured into a minefield” through its reading of the Act, saying:

There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative merits of differing religious claims,” or the sincerity with which an asserted religious belief is held. Indeed, approving some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude”.

Justice Ginsberg is right: the Religious Freedom Restoration Act is incompatible with the Establishment Clause of the First Amendment; it does not uphold religious freedom, it establishes religious privilege, and it will lead to ongoing trouble.

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21 thoughts on “The Religious Freedom Restoration Act establishes religious privilege

  1. James

    Out of interest, what would your thoughts be on a reframing of the principles behind RFRA that privileged any strongly held belief, be it religiously inspired or no? That would seem to sidestep the constitutionality problem (one could still argue that it was unfair on people who have no strongly held beliefs, but the constitution has nothing to say about them) while keeping the intent behind the act.

    Reply
    1. Coel Post author

      Hi James,
      I’d be against for two reasons: First, how do we word the “strongly held” part of the statute and how do courts decide on whether the belief is “strongly held”? I think that would be impossible to do sensibly and consistently, and is a whole area that the law should stay out of.

      Second, if we think that a “strongly held” belief that a law is wrong is an adequate reason for ignoring it then we really should not have the law in the first place. For example, having a law saying “speed limit of 50 mph, except for those who feel strongly that they should be allowed to drive at 110 mph”, sounds absurd. Or “you’re not allowed to be mildly racist, but if you’re rabidly and maliciously racist then that is fine”.

      One could reply that the “least restrictive means” of furthering a “compelling governmental interest” clauses would prevent such absurdities, but still I think that the concept of optional laws that you can ignore if you feel strongly about them is a very bad one, and that if we are willing to allow these opt-outs then it’s a sign that we should not have the law in the first place.

  2. James

    Hi Coel,

    Thanks for the reply.

    I’m a little ambiguous on both those cases. In your first counter, the law deals regularly with matters of thought, opinion and belief. The “irresistible impulse” of some insanity pleas or even the “defect of reason” (I think that’s the wording) of M’Naughten insanity. The difference, in some cases, between murder and manslaughter. Even the very concept of liability. The law daily rules on motivations for actions and a consideration of them – mens rea – is essential for the prosecution of many (most?) crimes. I don’t think it’s unreasonable to extend that line of thinking into “is the defendant’s belief in strong enough to merit protection under this law” with sufficient sensibility and consistency.

    Two, I’m with you a little more on, but still not all the way. Predicting your argument – which is bad form,. I know, and I apologise in advance for it – you would say that the likes of conscientious objectors show that compulsory drafts are a bad thing, not that some people shouldn’t have to obey that law. Sure, I can get behind that. But I think it fails when it comes to “assisted suicide” or whatever the au current terminology is. I’m (hypothetically) a doctor. My patient asks me to assist their suicide. Doing so relieves their pain but violates my Hippocratic oath. Now, doctors refusing to perform abortions or whatever because of religious beliefs can do one – that’s part of your job and if you don’t want to do it, don’t get a job that entails doing it. But in that case, assisted suicide, think there’s a stronger argument to be made that doctors should have a right to refuse. As such, I’d oppose any non-case-by-case law permitting it (although, woefully off topic, I’d strongly support a case-by-case judge-centred review of each request. But meh).

    I’ve waffled a little there, but my core is that if we expand “law” slightly to be more like “rules”, I certainly think there are cases where a law that can be voluntarily opted out of based on the dictates of you conscience has a place. Though I cheerfully and with minimal blubbering accept your counter holds true for the vast majority of cases.

    Hopefully that wasn’t too meandering to follow.

    Reply
    1. Coel Post author

      Hi James,

      On assisting suicide or participating in abortions and similar: Yes, I’d support a right of doctors to opt out (not with any “strongly held” qualification, but just a simple opt-out for anyone). That would be particular opt-outs in particular laws where we agree they are appropriate, which is very different from a generally worded opt-out applicable to a range of laws, along the lines of a RFRA.

      On mens rea, yes the court has to establish intentions and a “guilty mind”, but that’s different from a law distinguishing between “weakly held” beliefs and “strongly held” ones. That threshold would be very hard to codify.

    2. verbosestoic

      Coel,

      While I’m generally in favour of “conscience clauses” and similar opt-outs for procedures that are at least morally debatable, I can see the problem with them, and a general opt-out makes them worse: it provides for the possibility that people will just opt-out of doing them, and so no one will perform them. At that point, it’s hard to say, for example, that a woman has an effective right to choose an abortion when due to the opt-out clause no doctor will actually perform one.

  3. James

    Fair enough. Thanks for taking the time to respond and enjoy the remainder of your day and, if it’s the type of thing you enjoy, the rest of the World Cup.

    Reply
  4. verbosestoic

    I disagree; I think that that Act provides for freedom of religion in a way that it seems the Estabishment Clause generally doesn’t.

    The hallmark of freedom of religion is that I must be free to practice my religion as much as is reasonably possible. Taken as an absolute — which no rights are — this means that no one may restrict me in my religious practices. The key to the Establishment Clause rulings is that the government can’t restrict someone’s religious practices by making them illegal, but the intent of that Clause seems to be more than the government can’t impose a religious belief on the people rather than to preserve freedom of religion. Thus, while it recognizes ideas of explicit — your religion is now illegal — and implicit restriction — critical practices of your religion are now illegal, even though your religion itself isn’t — it focuses on intent: the government can make laws that restrict your religion as long as the intent is not to do so, which prevents the government from imposing one religion on everyone.

    Which is fine, as far as it goes, but the issue with freedom of religion, over and above simply imposing a state religion, is the impact, not the intent. If you make important religious practices illegal, then the effect at the end of the day is to make practicing my religion illegal, which takes away my freedom of religon: I cannot freely choose to participate fully in a religion where important practices are illegal, even if those laws are generally applicable. Thus, I’d argue, the effect still violates freedom of religion even if the intent is not.

    Thus, the Act, which says that even in those cases exceptions must be made in cases where a religious practice or the practice of a religion would be made illegal or restricted legally except when the state has a (more) compelling interest in the outcome and the method they’ve chosen is the most reasonable way to achieve that goal, given the rights of all involved. Adding exceptions is usually easier than other solutions and tends to be less restrictive.

    To me, then, this adds no more privilege to religion than freedom of religion should. And we do want that, don’t we?

    Reply
    1. Coel Post author

      Hi verbosestoic,

      I cannot freely choose to participate fully in a religion where important practices are illegal, even if those laws are generally applicable. Thus, I’d argue, the effect still violates freedom of religion even if the intent is not.

      But why should religious practices be privileged this way? One could make exactly the same argument about individual preferences in any other area of activity. One can say that the government should only infringe on religious practice given a “compelling interest” and in the “least restrictive” way, but then why not say the same about any other type of activity?

      To me equality under the law prevails, and it should not be that the religious get privileges for their particular practices that the rest of us do not have. As I argued, the doctrine that “religious freedom” grants the religious extra rights is not how the concept of religious freedom originated and not how it has traditionally been interpreted. The RFRA thus goes into new terrority.

    2. verbosestoic

      But why should religious practices be privileged this way?

      Because we have an explicit right to freedom of religion, or at least in my opinion we should. This also includes the right to not practice any religion at all, which means that atheists get protection from any case where their right to NOT practice a specific religion is infringed. So, in order to debate this, it seems to me that you need to argue that the right to freedom of religion does not exist and/or is not necessary. If you don’t, then it gets treated like any other right, and thus I think the Act describes that implication.

    3. Coel Post author

      Hi verbosestoic,

      Because we have an explicit right to freedom of religion, or at least in my opinion we should.

      Yes, agreed. But IMO it is a misunderstanding of “religious freedom” to suppose that it grants *extra* rights owing to religious content.

      Thus, suppose Jack wants to walk his dog in the local park, and Fred wants to walk his dog in the local park, but can also point to a holy book and a letter from his priest telling him to talk his dog in the park.

      To my mind Fred does not have any greater right to walk in the park than Jack. It would be a whole minefield for the courts to ever get into the business of ruling on what is or is not a religion and what is or is not required by a religion.

      The whole point of the Church–State separation is to avoid the state getting involved with and ruling upon religious doctrine, and the only way to do that is to have equality under the law regardless of religious doctrine.

      So what does “freedom of religion” mean then? It doesn’t mean that you are advantaged owing to religious content, it means that you cannot be disadvantaged owing to religious content.

      So if you are allowed to meet with friends in the local park to play chess, or to recite poems, or to have a picnic, then you must equally be allowed to do so for a Bible study.

      In Saudi Arabia you could do the first three of those but not the fourth.

      Doctrines of religious freedom arose exactly that way, in societies where you could meet for Protestant worship but not for Catholic worship, or vice versa.

      That’s what “religious freedom” means, it means you cannot be restricted more than normal owing to religious content. But it doesn’t give you extra exemptions from secular rules.

      That is the only interpretation consistent with equality under the law and with the state keeping out of religious matters.

      I wrote an earlier post on this also, see: Christians don’t understand religious freedom.

    4. verbosestoic

      Well, recall what I’m saying the right to freedom of religion entails, as stated in the first comment: no one may unduly restrict your ability to fully practice your preferred religion. Anything that needs to be done to achieve that, even if it can be considered “advantage” or “extra” has to be done, within the reasonable limits implied by “unduly”.

      So let’s take the park example. Imagine that a specific city decides to close all public parks at night in order to fight homelessness (this is, in fact, an actual policy in at least one city). However, the local chapter of the Druids has an annual ritual that they perform at midnight in the “Holy Oak Park”, so named because of an ancient oak tree that they find sacred. The law is general and not aimed at religion, and yet I’d say that the city would be obligated to allow the ritual to continue and allow them into the park, because otherwise they’d be unduly restricting their religious observances. Because stopping that ceremony is not the intent of the law — or else it would be illegal even by your view — and because allowing that case wouldn’t impede their efforts to achieve what the law is intended to achieve, there is no reason for the city to not provide this exception and so it must be allowed, in my view. Otherwise, you run the risk of doing exactly what I said you can’t do: effectively making practicing that religion illegal.

      The issue with the “advantage/disadvantage” distinction you try to make, in my view, beyond my idea of freedom of religion and what that really means is that in many cases not providing exceptions effectively results in disadvantaging religious people who want to practice their religion. Take the turban example you’ve used. The argument might be that only allowing them to not wear helmets is giving them an advantage, but the counter-argument is that for those who do want to follow their religion you’d be effectively saying that they can’t ride bikes. That’s a clear disadvantage due to their religious beliefs. The only way out is to say that they could, in fact, not follow their religious beliefs and still get to ride bikes … but surely expecting people to abandon their religious beliefs to be able to do what everyone else can do is not respecting freedom of religion …

      … unless, of course, you have a compelling societal interest. In the turban case, the state could argue that bike riding is far too dangerous to allow anyone to ride without a helmet, which might trump the religious exception. Additionally, a compromise might be reached with a helmet that satisfies both the religious requirement and the safety concern. But it is difficult to argue that you are not disadvantaging a relgious person if you put a restriction on a common activity that forces them to choose between their religious practices and participating in that activity just because the restriction is general. It’s already been pretty much determined that a restriction that impacts one protected group more than other groups is, indeed, still an unacceptable discrimination against them, and that also applies to the law. That’s what you have when you force people to choose between their specific religious practices and a common activity, as for most people it’s not any kind of burden but for them it’s an onerous one.

      Note that I don’t see the separation of Church and State as being what freedom of religion is, but instead as a possible consequence of it. There are a number of nations that have an official state religion but feel that that is compatible with freedom of religion, as long as no one is actually discriminated against for not being a member of the state religion. That’s debatable, but does suggest that they aren’t simply the same thing.

    5. Coel Post author

      Hi verbosestoic,

      I’m saying the right to freedom of religion entails, as stated in the first comment: no one may unduly restrict your ability to fully practice your preferred religion.

      I don’t agree with that conception of religious freedom, and I don’t see why we should grant that to a greater extent than the same but ending “… to fully practice your preferred {whatever activity}”.

      Why should a person wanting to walk their dog in the park at midnight have fewer rights to do so than the person wanting to worship the oak tree at midnight?

      I’d say that the city would be obligated to allow the ritual to continue and allow them into the park, because otherwise they’d be unduly restricting their religious observances.

      I would disagree with that. In my opinion it is entirely ok to go ahead and close the park, so long as the reasons for doing so are secular and apply to all. The fact that someone can’t worship the oak is to me no more of a problem than the fact that someone can’t walk their dog.

      Otherwise, you run the risk of doing exactly what I said you can’t do: effectively making practicing that religion illegal.

      Agreed, but then that is routinely done, and has been ever since we prohibited the kidnapping of virgins from the next village and sacrificing them at midnight on a full moon.

      The idea that the government must find the “least restrictive” way of doing anything at all, whenever a religious person objects, is way too broad and gives way too much privilege to anyone waving a “religious veto” card.

      Why on earth should we privilege the religious?

  5. verbosestoic

    Agreed, but then that is routinely done, and has been ever since we prohibited the kidnapping of virgins from the next village and sacrificing them at midnight on a full moon.

    But we don’t do it routinely; we do it when there is a compelling state interest and the result cannot be achieved any other way. In the case you describe, that’s actually restricted BY freedom of religion: just as you are free to practice your own religious practices, everyone else is free to not participate in any religious practice, and since the virgins are unwilling, freedom of religion restricts that practice (if the people were willing, it becomes another question entirely). Allowing them into the park for their ritual has no compelling state interest in and of itself AND the only state interest can be easily achieved while allow the exception, thus freedom of religion would obligate it.

    Why should a person wanting to walk their dog in the park at midnight have fewer rights to do so than the person wanting to worship the oak tree at midnight?

    Because no one has a right to walk their dog where they please, but people DO have the right to practice their religion, or else you don’t have freedom of religion, religious freedom, or anything like that. As stated in both my “disproportionate burden” point AND my point about it still being a disadvantage on their religion with the turban example, this follows from normal equal protection rights unless you refuse to see religion as a protected group, which means that you, as an atheist, would not be able to claim discrimination on the basis of your (lack of) religious beliefs since one would be able to discriminate on the basis of one’s religion. Thus, even starting from the minimum position you advance, it seems to me that we still get to my point and interpretation.

    Reply
    1. Coel Post author

      But we don’t do it routinely; we do it when there is a compelling state interest and the result cannot be achieved any other way.

      That is a relatively new doctrine, espoused by the RFRA, which is not the traditional understanding of “religious freedom”.

      Allowing them into the park for their ritual has no compelling state interest in and of itself AND the only state interest can be easily achieved while allow the exception, thus freedom of religion would obligate it.

      Only under your (and the RFRA’s) interpretation of “religious freedom”, which is not traditional and which many do not accept (and which violates the First Amendment by giving special privilege to religion).

      Because no one has a right to walk their dog where they please, but people DO have the right to practice their religion …

      But not “as they please”, only within the confines of general secular law established for proper secular reasons.

      which means that you, as an atheist, would not be able to claim discrimination on the basis of your (lack of) religious beliefs since one would be able to discriminate on the basis of one’s religion.

      No, one cannot discriminate “on the basis of religion” but only for secular reasons that are unrelated to religion (which, though, might incidentally have some implications for religion).

  6. verbosestoic

    Only under your (and the RFRA’s) interpretation of “religious freedom”, which is not traditional and which many do not accept (and which violates the First Amendment by giving special privilege to religion).

    You rely heavily on American case law and the American constitution to argue for this, and the problem is that I’m not going to accept that as an argument, for two reasons:

    1) I’m not American.

    2) I think that you need to make a general argument here, not one that applies only to the American constitution. This is because supporters of the RFRA will argue that the RFRA provides for REAL freedom of religion, which the phrasing, at least, in the American constituion does not, and so is required so that Americans will have actual freedom of religion. For my part, I think that freedom of religion HAS always included that, and so would agree with them. You disagree, but that disagreement has to be based on what freedom of religion REALLY is, and not on what the American Constitution has interpreted it as.

    Thus, we need to start from the beginning: why is freedom of religion, by whatever definition, an important right to have? Why do we have it in the first place? Why do we care? And it seems to me that the reason is that based on both abstract philosophical reasoning and based on what we’ve learned from history, we’ve learned that it is important for to be able to practice their religious beliefs as they choose. Even taking your quote from Jefferson:

    The legitimate powers of government extend to such acts only as are injurious to others. It does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg.

    I’d argue that it does no injury to allow someone to practice their religion, but history and reasoning both show that it does injury to someone to deny them that ability, to deny them the ability to form a relationship with a god, many gods, or no god as they see fit. Now, you CAN limit practices of religion where that practice causes injury to others … but you can do that with ANY right you want to name, including right to life, right to bodily autonomy, etc, etc.

    So, with this in mind, let’s return to the park example. It does no one any injury to allow the Druids to use the tree in their ceremony. When the law I mentioned comes into effect, we note that the law is not intended to restrict the Druid ceremony, so there is still no argument that allowing the practice would cause injury; again, it was to prevent homeless people from using the park to sleep in, which these people not doing. So, there is no injury caused by allowing the exception, and injury caused to the Druids if we don’t allow the exception. Thus, by that reasoning, we have to allow the exception.

    You can’t claim that the person who cannot walk their dog in the park at night is injured by the exception, because with or without the exception they still couldn’t walk their dog in the park at night. You can try to claim that they are injured by not having equal protection under the law, but the counter is that they DO; under the same conditions, their religious practices will be equally protected. They just don’t have a conflict with religious practices in this case, but there may well be other cases where THEIR religious practices conflict with the law where the Druids’ won’t, and it would not make sense for the Druids to complain about a lack of equal protection under the law because they aren’t being allowed an exemption that they do not need. I’ll deal with this being given to religions specfically a little later.

    Note, of course, that if allowing the exception would impede the goal that the law was written to address and if that goal is sufficient to overcome freedom of religion, then it would be reasonable to not allow the exception, because presumably the law is meant to either redress or prevent injury in that case and so we’d have an “injury vs injury” case, where in general the more serious injury wins. It’s from this that I derive the “compelling state interest” and “no other reasonable option” qualifiers: if you need the law to redress or avoid injury, and there is no way to do that without causing injury to that religious group, then again the more serious injury wins. That’s how we balance rights.

    Have you read Russell Blackford’s “Freedom of Religion and the Secular State”? If you have and agree with his formulation of what separation of Church and State means, my review of his book accepts his formulation but disagrees with his conclusion from it on the same issues: http://verbosestoic.wordpress.com/2012/05/21/freedom-of-religion-and-the-secular-state-religious-accommodation/

    No, one cannot discriminate “on the basis of religion” but only for secular reasons that are unrelated to religion (which, though, might incidentally have some implications for religion).

    The points here were about disproportionate burden and disadvantaging a protected group. I argue that even if we don’t look at freedom of religion specifically, equal protection under the law requires that ANY protected group be given this sort of accomodation, and since religion is a protected attribute it gets it too. Why? Because you can’t make a law that incidentally disproportionately negatively impacts a protected group without that risking, at least, violating equal protection under the law. If, for example, you want to add extra taxes to, say, nurses, it can be pointed out that since nurses are predominantly female that doing so risks discriminating against women. Thus, in order for the law to be valid the state would have to show a compelling societal reason for enacting the law, and that that goal can’t be achieved any other way. Which would be difficult to do for my example, granted.

    This works for religion as well, and also works in cases where a minority of the people impacted are of that religion or other protected group, like in the park example. The test is whether the members of a specific group are specially burdened, not that most of the people impacted are of that group. Essentially, if a law provides a minor restriction for most people but is a major burden or restriction for a large number of members of a specific group BECAUSE they belong to that group, the law violates equal protection. This can apply to religion as well unless you want to claim that they aren’t that kind of protected group, which, as I pointed out, NO atheist wants to do, for good reason.

    Reply
  7. verbosestoic

    Thinking about this, I can predict your objection to it: why should religion be considered so important as to get a right as opposed to anything else? Other than the fact that it is a protected attribute, let me argue it this way:

    If you have to argue that we need separation of Church and State, and that the State needs to stay out of Religion and Religion needs to stay out of the State, but DON’T feel the need to say that about Humanism or Stoicism or Philosophy or Dog-Walking, you have to accept that religion is in some way different than simple desires or fundamental personal philosophies. And once you argue for that separation, then it simply follows that you can’t make laws that restrict religious practices for no good reason even IF you won’t allow exceptions for non-religious activities, as doing so risks the State, even inadvertently, messing with Religion when it’s really not supposed to.

    (I’d say this is one of the reasons to exempt religions from paying taxes, as anyone or any organization that pays taxes has to have the right to influence how those taxes are spent — no taxation without representation — and so if you make them pay taxes then they must be able to influence the State … and you don’t have separation of Church and State anymore).

    Reply
    1. Coel Post author

      Hi verbosestoic,
      I appreciate your thoughtful commentaries on this, but I fear I must disagree with your approach to religious freedom. I do agree, though, that the concept is much wider than American law.

      This is because supporters of the RFRA will argue that the RFRA provides for REAL freedom of religion, […] I think that freedom of religion HAS always included that, and so would agree with them.

      Can you give cites for this concept of religious freedom, from non-American or pre-RFRA contexts? As I’ve said, I don’t agree with it and consider that it very much establishes religious privilege.

      … why is freedom of religion, by whatever definition, an important right to have?

      To me it is part of a more general right to freedom of speech and action. The “speech” bit is fairly unlimited. The “action” bit is only to the extent that we generally have freedom of action. In a nutshell, to me “freedom of religion” means that government cannot limit your speech or your actions for religious reasons and owing to the religious content of your speech/action.

      So, there is no injury caused by allowing the exception, and injury caused to the Druids if we don’t allow the exception. Thus, by that reasoning, we have to allow the exception.

      If you have to allow the exemption you need some mechanism for controlling entry and checking exemption eligibility and that would mean paying an employee, and that is sufficient reason for not allowing it. To me the state is under no obligation to concern itself with *incidental* effects on religion of rules that are there for a secular purpose.

      You can’t claim that the person who cannot walk their dog in the park at night is injured by the exception, …

      But they are injured by the original rule in exactly the same way that the druids are injured by it (neither can do what they want to do when and where they want to do it). I see no reason why “religious practice” then trumps the rule to a greater extent than “dog-walking practice”. That would be religious privilege, not religious freedom.

      … under the same conditions, their religious practices will be equally protected.

      And I do not agree with “religious practices” being privileged over {whatever} practices”.

      I argue that even if we don’t look at freedom of religion specifically, equal protection under the law requires that ANY protected group be given this sort of accomodation, and since religion is a protected attribute it gets it too.

      But all of these other protections amount to “you cannot treat this group *worse* than anyone else”, they are not “you have to treat this group as privileged compared to everyone else”.

      If, for example, you want to add extra taxes to, say, nurses, it can be pointed out that since nurses are predominantly female that doing so risks discriminating against women.

      True, it risks treating them *worse* since it risks them paying more tax overall. Thus principles of equality under the law mandate not having rules like “extra taxes for nurses”. That is not a request for extra privilege for nurses.

      Essentially, if a law provides a minor restriction for most people but is a major burden or restriction for a large number of members of a specific group BECAUSE they belong to that group, the law violates equal protection.

      If the extra burden comes from the *law* then yes I agree. Thus “extra taxes” is an imposed burden and thus not allowable. However, if the extra burden comes from *their* *religion* then that is not an issue for the state to concern itself with.

      Again, same rules for all is fine. There’s a big difference between extra tax for nurses (treating one group differently) and closing the park for all (same rules for all), regardless of incidental effects on insomniac dog-walkers or whoever.

      If you have to argue that we need separation of Church and State, and that the State needs to stay out of Religion and Religion needs to stay out of the State, but DON’T feel the need to say that about Humanism or Stoicism or Philosophy or Dog-Walking, you have to accept that religion is in some way different than simple desires or fundamental personal philosophies.

      But we do say the same about humanism, stoicism and philosophy as regards speech, since freedom of religion is part of a more general right to freedom of speech.

      The reason we have “freedom of religion” and church–state separation is that otherwise religious groups tend to *disadvantage* other religious groups. For example, in Saudi Arabia, meeting in the park for a picnic or reciting poems is fine, but meeting for public Bible reading and worship is not. Similarly in Elizabeathan England you could meet in the park for worship in the Protestant fashion but not in the Catholic fashion.

      Thus religious freedom means you cannot be *disadvantaged* owing to your religious beliefs and the religious content of your actions. You have the same rights of thought, speech and action as you do for anything with no religious content.

      And once you argue for that separation, then it simply follows that you can’t make laws that restrict religious practices for no good reason …

      Absolutely, but a secular rule applying to everyone and there for secular reasons *is* a good reason. Why else would the rule be there unless people in society thought there was a good reason for it? If society does not think there is a good reason for it then it should not be there for anyone.

      … as doing so risks the State, even inadvertently, messing with Religion when it’s really not supposed to.

      No! The state is not supposed to *advertently* mess with religion! It cannot mess with religion owing to religious content or from a religious motive. But *inadvertently* messing with religion is entirely fine.

      Further, you cannot have church–state separation with your rule, since it requires that the state determine what is or is not required by someone’s religion. For example, suppose the dog-walker scribbles on a bit of paper “I need to walk in the park at midnight” and then shows it to an official declaring it to be his holy scripture. Do you then say, “well since it’s your *religion* then of course you may enter the park along with the druids”. If you don’t then on what basis do you reject his request? Indeed the offical rejecting his request *would* be a denial of the dog-walker’s religious freedom! Who are you to declare what is or is not required by someone else’s religion?

      Thus the whole point of church–state separation is that the state stays out of ruling on religious matters! There is no other sensible way of doing things, unless the state convenes an official religious panel to pronounce on matters of religion, stating what religious doctrine is or is not? Do you really want that?

      That is why the RFRA is incompatible with church-state separation and incompatible with equality under the law and not in accord with all sensible interpretations of “religious freedom”.

    2. Coel Post author

      I forgot to reply to this bit:

      I’d say this is one of the reasons to exempt religions from paying taxes, as anyone or any organization that pays taxes has to have the right to influence how those taxes are spent — no taxation without representation — and so if you make them pay taxes then they must be able to influence the State … and you don’t have separation of Church and State anymore.

      I’m opposed to tax exemption for churches. The rationale for that is generally not about “religious freedom” but rather the presumption that religion is a good thing and a boon to society, and thus churches gets tax exemption as charities.

      Church-state separation still allows religious people to vote and influence government, it’s just that the government cannot give them special privilege. As equal citizens the religious should pay the same taxes as everyone else.

    3. verbosestoic

      Can you give cites for this concept of religious freedom, from non-American or pre-RFRA contexts? As I’ve said, I don’t agree with it and consider that it very much establishes religious privilege.

      I don’t really want to get into citing case law or the like, or deep philosophical arguments, because this isn’t an issue that I do a lot of research in AND I think trying to appeal to traditional precedent is the wrong way to go about answering the question anyway. But your own article on Christians getting it wrong cites British case law interpreting it the opposite way, which is non-American and obviously not RFRA. My understanding of Canadian case law is that accommodation is indeed the law of the land. We have a case where the Legion had a general rule that no one could wear hats — Alberta chapters had a general exception for cowboy hats — and the court ruled that even though it was general that they had to allow turbans. Also, there were rules about not bringing weapons to schools and the court ruled, if I recall correctly, that one group that had a specific ceremonial knife that they had to wear were allowed to bring it anyway. So accommodation, at least where it doesn’t defeat the purpose of the general rule, seems to be the rule here.

      But the right way to approach this, I think, is to look at what religious freedom is in general and then determine if this sort of accommodation is required. So the link I put in the other post is a good source to Russell Blackford’s definition — and he starts from Locke, so you aren’t going to get more traditional than that — which I agree with. Blackford, and I think Locke, argued your side, but I think that using that definition inadvertent restrictions still need to be accommodated, as to me logically allowing inadvertent interference is like allowing injuries from negligence. There are cases where you have no choice or couldn’t know, but when you do know and do have a choice it still has to apply.

      But more on that as I go along.

      Further, you cannot have church–state separation with your rule, since it requires that the state determine what is or is not required by someone’s religion. For example, suppose the dog-walker scribbles on a bit of paper “I need to walk in the park at midnight” and then shows it to an official declaring it to be his holy scripture. Do you then say, “well since it’s your *religion* then of course you may enter the park along with the druids”. If you don’t then on what basis do you reject his request? Indeed the offical rejecting his request *would* be a denial of the dog-walker’s religious freedom! Who are you to declare what is or is not required by someone else’s religion?

      Thus the whole point of church–state separation is that the state stays out of ruling on religious matters! There is no other sensible way of doing things, unless the state convenes an official religious panel to pronounce on matters of religion, stating what religious doctrine is or is not? Do you really want that?

      This seems to be a self-defeating point, not the least of which is the idea I espoused earlier of church-state separation requiring, at least, treating religion differently from simple philosophies. But the key here is this:

      1) I argue for a position that treats religion differently than other things, which freedom of religion as its own right and not just as something derived from other rights.

      2) You argue that that isn’t the case, and argue that to do so would violate church-state separation because the state would have to have an idea of what a religion is legally, and no one wants that.

      3) But if religion is to be treated as no different than anything else, then that’s absolutely what we should want; the state already defines what it means for anything ELSE in terms of legal consequences, and so it should do that for religion as well. For example, immigration law defines what is a valid educational credential for doctors and the like.

      4) So to argue this you have to argue that religion must be treated DIFFERENTLY, and that there is a different implication of the state defining what a religion is legally than there is for anything else, which is why we wouldn’t want the state doing that.

      5) But then you advocate for treating religion differently, which a) proves my general if not specific point and b) requires that you know what a religion is so that you can treat it differently, which is what you insist we ought not want.

      This ties back to my comments about separation of church and state: we advocate for separation of church and state but NOT for separate of humanism and state and stoicism and state. Those are seen to be compatible, in the sense that the state can use stoic/humanist values as justifications for its decisions and can potentially even ban them if it finds them harmful. That isn’t the case for religion …

      To me it is part of a more general right to freedom of speech and action. The “speech” bit is fairly unlimited. The “action” bit is only to the extent that we generally have freedom of action. In a nutshell, to me “freedom of religion” means that government cannot limit your speech or your actions for religious reasons and owing to the religious content of your speech/action.

      Except … separation of church and state actually implies and insists that you CAN, in some cases. For example, restricting religious leaders from advocating for candidates, or not allowing religious politicians to invoke religious reasons for putting forward laws. No one says that a humanist or a Stoic can’t advocate for a law based on their Stoicism, and in fact assume that in those cases the people will decide what works best for them. But religion is generally considered different in that regard. I’m not sure where you stand on that, but I’m sure you’ve seen these exact debates and so do know that it’s an open question.

      Now, you can reply that the difference is that the Stoic/Humanist values would be secular ones, and a secular state needs to act for secular values/reasons … but since “secular” basically means “non-religious” you’d still be separating religion from everything else, which requires you to know what a religion is. So the only way to get past that is to really, really treat religion like everything else, and so lose all distinctions … including separation of church and state.

      True, it risks treating them *worse* since it risks them paying more tax overall. Thus principles of equality under the law mandate not having rules like “extra taxes for nurses”. That is not a request for extra privilege for nurses.

      Except it is indeed actually perfectly acceptable, in most cases, to potentially treat an occupation differently than other occupations, even to the detriment of those in that occupation. At least in Canada, they aren’t a protected group, and we know that, for example, we can demand that higher income levels pay higher tax rates, so a specific occupation could get that as well, if there was a reason. That’s why I argued on the basis of gender, because that IS a protected group, but the damage is incidental; we have no reason to think that it was done BECAUSE most nurses are women. Thus, disproportionate burden.

      Part of the problem here is that I think you are too attached to the “privilege/detriment” analysis of this. From differing viewpoints, things can be seen as a privilege or a detriment. Taking the park example, you argue that allowing them in would be a privilege if no one else could. I might even agree with that, but argue that not letting them in is too much of a detriment to let that stop you from giving the exception. By that logic, we have a conflict, and you saying that rights are about granting privileges doesn’t work as a counter against my comment — and your agreement — that they are about not disadvantaging people on the basis of their protected rights. Especially since I’ll counter that if the only problem with that “privilege” is that people who don’t need that accommodation will feel disadvantaged that that’s a problem with the perceptions, not the means used to remove or alleviate actual disadvantage.

      I’m opposed to tax exemption for churches. The rationale for that is generally not about “religious freedom” but rather the presumption that religion is a good thing and a boon to society, and thus churches gets tax exemption as charities.

      I think, historically, it was the other way around: charities get tax exemptions like churches do, because churches have had tax exemptions for almost as long as there have been taxes, and certainly from the time “religious freedom” became an issue. But that’s neither here nor there. My point was that if you want to tax churches, then churches as churches have to have the right to advocate politically for their desires and ends, and for how that money is spent … and almost everyone thinks the second part would violate church-state separation. Thus, regardless of whether churches are a good thing or a boon, separation of church and state and no taxation without representation demand that religions be apolitical … and tax-free.

    4. Coel Post author

      Hi verbosestoic,

      I still think that your approach to religious freedom grants privileges to anyone claiming a religious motive and thus is incompatible with equality under the law. To me equality is the more fundamental principle that we should aim for. Traditionally, many countries have granted privileges to religion — certainly they have in the UK, which doesn’t pretend to have church/state separation — but worldwide we seem to be gradually moving towards a more equality-based doctrine, with the RFRA being an exception to that.

      I confess that I know little about Canadian law on this, but after googling I did find this on the Quebec Charter of human rights and freedoms ( http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html )

      “Chapter 1.1: 10 “Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on … religion … 10.1 Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. … 15 No one may, through discrimination, inhibit the access of another to … a public place, such as a … park …”

      That, to me, says that if you allow the druids access to the park then you need to allow the dog-walker to the park on the same terms.

      I think that your doctrine of extra rights for the religious is wrong in principle but also unworkable. If you have a few hundred or more possible religions then the government can hardly do anything if it always has to find the “least restrictive” means of doing anything at all where “least restrictive” requires the consideration of hundreds of different religions.

      Furthermore, it requires ways of deciding what is a religion and what is a religious doctrine. Traditionally this would have been easy enough, you just ask the religious leaders of the few major religions, but I don’t think that that approach is acceptable today.

      In contrast, my approach is simply that the government needs to be religion-blind, not acting with any religious motive either for or against religion. You are right that that might still require the courts to decide what is a “religious motive”, but it’s a much easier distinction to make to just say that the government must have a secular motive for all rules that it makes and must apply them in a religion-blind way.

      …. we advocate for separation of church and state but NOT for separate of humanism and state and stoicism and state.

      I think that it would be wrong for governments to over-promote particular philosophies such as Stoicism. I guess the reason we don’t have specific rules about this is that there is no history of governments doing that, whereas in the West there is a long history of harm caused by religious governments promoting particular religions. If that had not been the case then we wouldn’t need and likely would not have the specific concept of religious freedom.

      My point was that if you want to tax churches, then churches as churches have to have the right to advocate politically for their desires and ends, and for how that money is spent … and almost everyone thinks the second part would violate church-state separation.

      I don’t! I think it entirely proper that religious voters and churches may lobby the government. However, the religious should not get special priviliges in so-doing, nor may the government adopt rules that promote or favour religion or the religious. But I don’t see that religious people lose their right to vote or lobby government through being religious.

      Except … separation of church and state actually implies and insists that you CAN, in some cases. For example, restricting religious leaders from advocating for candidates, ….

      In the UK, at least, it is *charities* that are prohibited from this sort of political activity, not religious groups. To me church/state separation should mean that churches get treated just like any other organisation — they get taxed and they can lobby the government if they wish.

      No one says that a humanist or a Stoic can’t advocate for a law based on their Stoicism, …

      To me, anyone can advocate for any law on any ground they like, including religious ones. However, the government should only be able to pass laws with a secular purpose (i.e. laws that pass the Lemon test).

  8. John Crossett

    Good work. Whether RFRA is challenged in the future on Constitutional Equal Protection grounds will largely depend, I think, upon how far businesses seek to extend it. If a business invokes RFRA as a justification for sex or sexual orientation discrimination in employment or in the provision of public accommodations (e.g., a wedding photographer refusing to photograph same-sex couples or a restaurateur refusing to hire women who have not received their husbands’ permission to work outside the home) then it will certainly be challenged. It is also not inconceivable that an Equal Protection challenge could be advanced by a business (perhaps owned by a litigious atheist Libertarian – of whom there are a non-trivial number hereabouts) whose owners object to the Obamacare mandates on principled, yet non-religious, grounds and yet are required to provide expensive insurance coverage to their employees – coverage from which “pious” businesses are excused — solely by virtue of the fact that their objections do not have a supernatural origin.

    Reply

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