Against Religious Exemptions
Tara Smith is a professor of philosophy here at the University of Texas (Austin) and also serves as the BB&T Chair for the Study of Objectivism. In this paper for the Journal of Law & Politics, she dissects the common justifications for allowing people to ignore the law because of a claim of religious belief.
From this synopsis from ARI ( https://ari.aynrand.org/blog/2017/05/... ) you can follow the links to the article and download the PDF. (You may need to register with the site, the Social Science Researcg Network. I downloaded directly the first time, but had to register when I wanted the article to quote here.) Synopsis and link: https://papers.ssrn.com/sol3/papers.c...
Smith argues that if the law is to have any meaning, it must apply to all. Her closely reasoned essay takes on four aspects of the claim to exception: "appeals to the First Amendment, to equality, to liberty, and to the significant role of religious identity in many people’s lives."
Prof. Smith opens "by laying out the fundamental case against exemptions, showing how they fracture the backbone of a proper, integrated legal system and sanction illegitimate uses of its power."
Understand that this is not a "libertarian" claim, but an objective one.
She writes:
"Before we can assess the merits of religious exemptions, I must make plain the framework of government that I am relying on. A government enjoys a unique kind of authority, namely, to make people do as it says regardless of whether or not they would like to.(14) This authority to coerce people’s compliance with its rules is justified only to achieve a specific mission: the protection of individual rights. While one can argue about whether that is the mission of government, any coherent approach to the question of exemptions must presuppose more basic beliefs about the role of government as such, so I am simply laying bare my premises."15)"
And cites in support:
"(14) This has become the widely accepted notion of a government, often attributed to Max Weber, who characterized a state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” Max Weber, Politics as a Vocation, reprinted in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77, 77 (H.H. Gerth & C. Wright Mills eds. & trans., 1946). See THE FEDERALIST NO. 15 (Alexander Hamilton), for evidence of the Founding Fathers employing the same basic idea. While “government” is a wider concept than a “legal system,” I will sometimes use the two interchangeably merely for convenience; it will not affect clarity or argument.
(15) Note that this is essentially the framework of the Founders, expressed in the Declaration of Independence, the Constitution, and much of the reasoning of the Federalist Papers. For a much fuller explanation and defense of the basic nature of a proper legal system, see SMITH, JUDICIAL REVIEW, supra note 12, at 45–66, 88–111; Smith, Objective Law, supra note 12, at 209–21."
Among very many points in this 50+ page work, Prof. Smith asks rhetorically, if a claim of religious exemption allows one person to ignore the law - for instance a Sikh child wishes to wear a large knife to school - why should the lack of religion deny the same right to another person?
From this synopsis from ARI ( https://ari.aynrand.org/blog/2017/05/... ) you can follow the links to the article and download the PDF. (You may need to register with the site, the Social Science Researcg Network. I downloaded directly the first time, but had to register when I wanted the article to quote here.) Synopsis and link: https://papers.ssrn.com/sol3/papers.c...
Smith argues that if the law is to have any meaning, it must apply to all. Her closely reasoned essay takes on four aspects of the claim to exception: "appeals to the First Amendment, to equality, to liberty, and to the significant role of religious identity in many people’s lives."
Prof. Smith opens "by laying out the fundamental case against exemptions, showing how they fracture the backbone of a proper, integrated legal system and sanction illegitimate uses of its power."
Understand that this is not a "libertarian" claim, but an objective one.
She writes:
"Before we can assess the merits of religious exemptions, I must make plain the framework of government that I am relying on. A government enjoys a unique kind of authority, namely, to make people do as it says regardless of whether or not they would like to.(14) This authority to coerce people’s compliance with its rules is justified only to achieve a specific mission: the protection of individual rights. While one can argue about whether that is the mission of government, any coherent approach to the question of exemptions must presuppose more basic beliefs about the role of government as such, so I am simply laying bare my premises."15)"
And cites in support:
"(14) This has become the widely accepted notion of a government, often attributed to Max Weber, who characterized a state as “a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.” Max Weber, Politics as a Vocation, reprinted in FROM MAX WEBER: ESSAYS IN SOCIOLOGY 77, 77 (H.H. Gerth & C. Wright Mills eds. & trans., 1946). See THE FEDERALIST NO. 15 (Alexander Hamilton), for evidence of the Founding Fathers employing the same basic idea. While “government” is a wider concept than a “legal system,” I will sometimes use the two interchangeably merely for convenience; it will not affect clarity or argument.
(15) Note that this is essentially the framework of the Founders, expressed in the Declaration of Independence, the Constitution, and much of the reasoning of the Federalist Papers. For a much fuller explanation and defense of the basic nature of a proper legal system, see SMITH, JUDICIAL REVIEW, supra note 12, at 45–66, 88–111; Smith, Objective Law, supra note 12, at 209–21."
Among very many points in this 50+ page work, Prof. Smith asks rhetorically, if a claim of religious exemption allows one person to ignore the law - for instance a Sikh child wishes to wear a large knife to school - why should the lack of religion deny the same right to another person?
I don't see why "service animals" have been brought up as if similar, though. They're not, and the law making businesses allow them is stupid.
It goes back to Antigone. In the wake of the Peloponnesian War, the people of Athens were open to asking some tough questions, questions for which they executed Socrates and exiled others.
The fact remains that Prof. Tara Smith stated her assumptions about the nature of government. Hers was an objective argument, not a "libertarian" one. To a libertarian, ignoring laws because you do not like them is a personal primary virtue.
Like Galt's Gulch itself, in the novel Atlas Shrugged Hank Rearden's speech at trial, or Ragnar Danneskjold's piracy are literary devices, not blueprints for personal action here and now in the real world.
In this case, if anyone can claim any mystical excuse for violating the rights of others, then society itself collapses into a war of all against all.
"Exemptions violate some people's rights for the benefits of those demanding the expemptions. [sic]"
Yes, they do. Which is why the Founders specifically crafted the First Amendment the way they did. They specifically placed the burden of proof on the government not to infringe on religious liberty because they considered the rights to Speech, Assembly, etc. of utmost importance. And they wrote that with the intent to prevent "bad law" - laws that violate conscience such as the ACA.
The country was not founded on violating some people's rights for the benefit of religion.
That's a strawman argument and you know it. The United States was founded on a whole litany of arguments as listed in the Declaration of Independence, but what came out of it was an explicit recognition of and protection for religion in addition to a host of other actions. Congress was also precluded from passing laws inhibiting the Press, inhibiting the possession of firearms, allowing for the quartering of soldiers, arbitrarily revoking the right of habeus corpus, etc. Those protections benefited everyone while preserving natural rights. I'm not sure where you are deriving this fictitious contention between religion and rights which clearly did not exist to the Founders.
It is not a "strawman" to observe that religious exemptions from valid laws are a threat to innocent people, and that religion is not an excuse for it. If a law protects the rights of the individual, then "exemptions" allow them to be violated. If a law violates the rights of individuals then it is wrong and wrong for everyone. Religious fervor has nothing to do with it. Laws that are wrong should be repealed for that reason -- because they are wrong in principle, not left in place for everyone but a privileged religion either imposing its religion or leaving everyone else subject to unjustified coercion. The Constitution only says that regarding a relation between religion and government, there should be none, neither imposing or outlawing religion. Government is to stay out. Religion has no special status or "exemptions" from law that properly applies to everyone and is justified without regard to religion.
The country and the nature of its government was not founded on the list of grievances against the King of England. The grievances were the public justification of the war separating from England, long before the Constitution, and not political philosophy establishing a new government. The country was founded on the Enlightenment principles of reason and the rights of the individual. It was not based on religion and It did not give privileged religious "exemptions" from law or any other status with religion as a supposed 'higher authority'. Regarding religion it only said to government: stay out.
"The Constitution only says that regarding a relation between religion and government, there should be none, neither imposing or outlawing religion."
The actual text of the First Amendment is very clear and unconditional in its directive towards Congress: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" I'm not sure where this insistence of reading something into the wording that is not present comes from. The directive is very clear: Congress is specifically enjoined from prohibiting the free exercise of religion AND it is enjoined from establishing a national religion. And "religion" includes philosophies such as atheism which don't want to associate themselves as "religions". It covers anyone no matter what their belief set is.
"The country and the nature of its government was not founded on the list of grievances against the King of England."
You confuse the cause for separation with the principles of the new governmental structure. The Founders spent decades prior to 1776 trying to persuade England to reform their tyrannical pronouncements which singled out the colonies for disparate treatment. They were very reluctant to part with England but felt that there was no other alternative or remedy than to do so. It's really pretty clear when one reads the text of the Declaration of Independence, and even more so when one reads the debates of the Continental Congress on the matter. Good grief, there were many who argued during the debates on the Constitution that since the Articles of Confederation failed that we should have gone back to England. America and England separated because the King of England refused to treat citizens in the American colonies the same way he treated Englishmen.
Did the Founders value natural rights? Absolutely. Let us keep in mind, however, that the Declaration was signed 15 years prior to the ratification of the Constitution. While the Founders revered natural rights, they had only a rudimentary idea of what self-government would look like and their first attempt as embodied in the Articles of Confederation left much to be desired. It took them a failure and a thorough and exhausting look at all the other models of government throughout the ages to narrow things down to specific proposals they thought could compensate for the failures evident in the past. The Founders didn't set out to form a new country, they were driven to it because all other courses of action had been exhausted. It was only after they had signed the Declaration of Independence that they began the task of trying to decide on a new structure of government.
Even granted the action of objective standards, how do you parse anyone's claim to conscience? See the discussion on Rand Fans who steal from the public library. Even in the most strictly limited government, there will be some public property - the courts and the legislature, even if there is no executive. My conscience tells me to set up housekeeping in the commons and read Atlas Shrugged to everyone every day. What are you going to do?
If your conscience tells you to disobey an unjust law, you still must accept the consequences of your choice. You do not get away with a crime.
A great question, actually. Justice always has to do with cause and effect, really. Justice says that if I hit my thumb with a hammer, it's going to hurt. Justice says that the rotational velocity of the Earth on its axis will result in a "day" of just over 24 hours in length. Cause -> effect. It is when people start attempting to deny causality and therefore justice that we get into trouble, is it not? Laws which declare a minimum wage lead to higher unemployment among the minimally skilled, yet the law is "intended" to provide more income for the minimally skilled. Obviously the law's cause->effect chain is invalid, therefore the law itself is not reflective of reality and is morally void.
"Even granted the action of objective standards, how do you parse anyone's claim to conscience?"
Another great question. You note the key to the answer yourself: that one's conscience must be rooted in objectivity or reality. Again: cause -> effect. If one is not rooted in the reality of justice, such a claim is morally void and unenforceable either by man or nature.
"If your conscience tells you to disobey an unjust law, you still must accept the consequences of your choice. You do not get away with a crime. "
Absolutely. That is because regardless whether we want it or not, justice (cause -> effect) is not ours to control. We can either recognize reality, or attempt to deny it.
"My conscience tells me to set up housekeeping in the commons and read Atlas Shrugged to everyone every day. What are you going to do?"
Encourage you! ;)
Religious conscience is not "rooted in objectivity or reality". It is subjective by nature. You have missed the distinction between violating a law and taking the consequences versus exemptions from the law for "conscience", which is anarchy, and which no government can sanction. Religious "conscience" is not a "higher law".
Also known as the Golden Rule, that might be justice in terms of one individual toward another. I was referring to justice as a law of nature. Cause->Effect.
"Religious conscience is not "rooted in objectivity or reality". "
That's your opinion. I have evidence to the contrary and therefore I take an opposing stance. That is not to say that every belief is valid. It is merely a rebuke of the overly broad condemnation of everything not atheist.
"You have missed the distinction between violating a law and taking the consequences versus exemptions from the law for "conscience", which is anarchy, and which no government can sanction. Religious "conscience" is not a "higher law". "
Are the laws of man written in recognition of unchangeable, universal Truths or are they arbitrary opinions? You seem to act as if because a government scripts out a law that somehow that is all the "justification" they need. If so, then there are no need for morals at all - no need for universal absolutes and certainly no need for universality in law. Every moral law must be underpinned by valid principles or it violates the universal law of justice. Why do we take umbrage when a Communist government executes political dissidents? Because we experience a reaction - a recognition - that the universal right of life has just been violated. It doesn't matter that the Communist government is a government and that they passed a law saying it was okay to execute political dissidents. They violated a universal, moral principle in doing so. They violated justice.
From whence springs this most visceral and emotional reaction, however? Conscience. It is not a learned behavior, but rather an innate recognition of some of the simple Laws of the universe. I am not so quick to deny the reality of conscience.
When corp America was forced to see that barriers like steps as the only entrance to their stores or service animals be banned were allowed, they discovered a new market for their wares. They also came (kicking and screaming) to discover that not all gimps were poor and destitute. Some of us have money to spend and we enjoy shopping as much as the next person. Corp America just had to be forced to conform to new ideas.
I cannot express just how frustrating it is to sit in my wheelchair outside a shoe store while a clerk runs back and forth bring pairs of shoes to try on. Or trying to buy flowers for my wife? All that's not even thinking about curb cuts for sidewalk access, ramps into the courthouse, schools and other public building that a paralyzed Vet pays taxes for can be accessed.
If I've made ANY dent into your ignorance for these accommodations I'll consider it a good day, but I'm not holding my breath.
Penn & Teller: BS! did a great episode on service animals and another on handicapped parking. They were right on. Both laws are BS. Those who demand them are either snowflakes or parasitic lawyers.
Intrusive, obstructive laws are not the sole province of progressives. We still have too many law-and-order conservatives who think that the way to solve a problem is to enact a newer stronger law.
As entertaining as Penn & Teller's BS! has been, some of it also was BS.
As for being a snowflake, I left any such foolishness that might have ever existed in me in the jungles of Vietnam when your parents were most likely still in diapers.
You should gain some knowledge of the person you attempt insult. Like about the three the three businesses I've built from the ground up or the 4 earned degrees in both Arts and Sciences.
Perhaps you might read in the archives about how in protest of the Obama bastardization of all our rights and freedoms, of his use of the IRS as a weapon against us, I locked my doors of a very successful business, discharged my employees and did my own John Galt.
Over the past two years I've not been in here much because I've been working to see that some of wrong people didn't get elected.
So other than not having a clue what you are talking about, what have you been doing?
On the subject of service animal laws, I disagree with you -- a cultural change is one thing; legal requirements are another -- but your statement in reply deserved plusses.
I've restarted this post a couple times in a effort to remove myself from the equation, it's almost a impossible task. If we go back to 1987 when I first became aware of a group of folks trying to bring the ADA into existence, I can tell you that our world was a far different place for us in need of such accommodations.
I had just visited a local junior college where I had hoped to take a few classes. Sadly, I was not going to be able to attend because the only building on the entire campus that had curb-cuts, ramp for access into the building, or even a partially accessible bathroom was the admin building. That stuff was there because they had a couple people working there in power scooters. The only accessible parking was also at the admin building. Some of the classroom buildings were up to 2 miles apart but the only place I could park my van, open the lift and have enough room to depart the lift, was at the admin building.
The notion of "reasonable accommodation" was not even a concept. One person even informed me that they just didn't have students in wheelchairs. To whit I replied that I wondered if it was because nobody using a wheelchair could get into the classrooms (which were all two story buildings with no elevators). Please allow me to say that I found such lack astonishing. Had spent a year and a half at Walter Reed and was used to far better accommodations.
I had spent some time learning how most people saw a person in a wheelchair as disabled, handicapped or worse yet patronized me by asking my wife what it was I'd like for my order at a restaurant. Some might claim, of course You are disabled, you can't walk! To those I say just give me access to the starting line, I'll do the rest, but I must have access.
We I started my real estate business later that year we started by what is now known as flipping houses, while keeping a few as rentals. Every home we rehabbed was done with the idea of universal access in mind and one of the reasons the homes resold quickly with a good profit was the universal design concepts we incorporated. We carefully examined our cost to make these changes and our determination was that it cost us about $300-500 dollars per home, which was reflected in the resale price. Not much on a $120-250k home.
A couple years later we moved away from rehabbing residential and into building strip malls which was much more profitable, if not as personally as satisfying. I've always loved building places for people and children to live their whole lives.
For businesses operating a retail trade the cost to new construction much less with the biggest cost being the floor space that needs to be dedicated handicap bathrooms. The lost square footage, the cost of grab bars and tall toilet still should be less expensive than the price of rehabbing residential homes as I was doing.
I've been privileged to speak at several dinners, forums and such like on the subject of building accessibility and the most basic point I try to make is that anybody can use a ramp, but only people who can walk can use steps. Anybody can use a elevator, but only those who can walk can use stairs.
I agree with you about cultural changes being the best to have handled access in the private sector, but the public sector was entrenched in the notion that they could and would not spend tax dollars on what most considered unnecessary items like curb-cuts and accessible parking.
I'll never forget the day that we asked a certain senator to sit in my vans driver seat while it was parked inside what was then accepted as an accessible parking spot next to his own car, both legally parked according to DC's parking laws as existed then. He was instructed how to operate the drivers seat to position it to transfer into my wheelchair. As he then pressed the button to open the side doors of the van and deploying the lift. The lift is about 4.5 feet long when extended, so as he sat in my chair he could clearly see that the lift would drop down across the roof of his car. He finally understood why we were demanding 8' access zone on the right side.
I could go on and on about this but the point is that in order to make the cultural change that we both agree needed to have been made the choices are to sit back and trust that mans unerring desire for doing the right thing (sure) they will to solve this social problem to fix itself OR as we were forced after years of begging businesses to just build a ramp so that we could just get into their stores to spend. our money. Sometimes the status quo is just too comfortable a place to be, we need a kick in the butt to make the societal change that was needed was the ADA, where it could be laid out as a pathway to equal accessibility, as promised in the constitution.
And I have seen wheelchairs capable of climbing stairs. Handing out those would have been far cheaper than what has already been spent to make buildings compatible with ADA.
While having amenities feels nice, ADA is symptomatic of what makes it outrageously more expensive to do business in the US than in many other parts of the world -- the notion that just because some service is nice, everyone in business should be forced to provide it to the public as a condition of staying in business. Once that bad principle gets admitted into government, we all get nibbled to death by parasites.
If you manage to somehow grow old enough to see how absolutely how foolish your views are I hope you are not in need of the things so many of us are required to use, just to survive. Yes, there are countries that have nothing like the ADA, mostly they 3rd world holes where Hobbesian rule and everybody who has any power could care less about the people they crush in order to maintain their power. If you know anything about Atlas Shrugged, you can find their like in charge of the government consumed with hate against those who can make and do things.
Oh, those wheelchairs that can climb steps are $35,000 to $50,000 and since they are considered experimental, there''s no financial help from insurance to pay for one, the VA will not issue one, it's a cash deal and then there are big limits on the size and shapes of stairs they climb. Three years ago I got to take one for a ride, it took 25 minutes to climb 12 steps. Coming down steps requires you to back down the steps, you backing backwards down steps by rocking the chair back and forth by shifting your weight. And not worth risking my life on more than once.
They are not ready for prime time.
One last point before I quit this, I drive two specially adapted vehicles these days. One is a new Chrysler town and country that cost $33K to buy and $38k to adapt the other is a Dodge Ram 3500 Dully diesel powered truck that cost $65k to buy and I spent another $40K to modify it to be able to drive it myself. No governmental help, no insurance paid for it. I also live on a 146 acre estate with a modest 3800sf home, a 25 acre lake, 600 yd rifle range. As I said, I have been very successful in business. If I'm a parasite, I guess being a parasite has it's perks.
You say "amenities feels good" like the wheelchair I sit in is optional? It's comfortable, or so I'm told. I've not been able to feel my legs, butt or lower waist since 1985 when I fell off the top of a missile launcher I was working on, while on active duty in Germany. Amenities??? Like the little perk of only being able to urinate with a catheter? Or do you mean how my shoes last a long time since I don't actually walk on them?
Here's how I see it, I spent 16 years of protecting everybody back home, did so of my own free will and would do so again. I became paralyzed and lost the use of my legs as a direct result of that service. Being able to access sidewalks, street signal light switches and the courthouse, and other buildings in order that any grievances I may have may be addressed is not too much to expect.And I do believe you'll find that right as a citizen in the constitution, unless this current generation has given that up too.
I think that the ADA just recognized an undeniable fact.
Thanks, also, for the insights into the low cost of conformance to the ADA.
I remember it so clearly because of how shocked I was after Dad explained it to me. I played with the kids in our well mixed rural area and drank from their faucets as often as they drank from ours and nobody thought a thing about it. I just wasn't raised to see color or race and could not believe that anybody did.
Thanks again Mike. I look forward to being around more now.
Be well my friend.
I note with all seriousness that the Founding Fathers rejected all personal taxes, opting instead for import taxes (tariffs). They rebelled against the Stamp Tax, the Townsend/Intolerable Acts, and many others as serious threats to freedom of speech. Taxation holds the power of coercion and stifling of free speech. As such, I fully support the exclusions given to tax-exempt organizations. The penultimate goal is to eliminate corporate taxes altogether.
(As a secondary note, corporate taxes are almost always passed through to the consumer anyway in the price of the goods, so corporate income taxes end up getting paid by individuals anyway...)
I would also point out that for your argument to hold any water the First Amendment would have to be declared null and void. You have the legal argument completely backwards - holding that any common law can disregard an Amendment to the Constitution and set its own fulfillment of higher priority. Good luck using that logic in any court. When a judge agrees with you it will mean the end of free speech and the end of the Constitution.
Laws granting privileges to religion violate the prohibition on supporting religion. The other side of preventing supporting religion was to prevent laws specifically against religion, not to provide exemptions of laws that apply to everyone. There is no rational excuse for that and is not what was meant by prohibiting freedom of religion. Religion is not an excuse to be exempt from law by claiming religion says so.
"Laws granting privileges to religion violate the prohibition on supporting religion."
Laws must do everything possible to accommodate religion - not the other way around. If a law runs afoul of the First Amendment, the Supreme Court has already ruled that such laws must prove 1) that there exists a legitimate government interest, 2) that the restrictions apply to everyone generally, and 3) that the restrictions were crafted so as to have as little impact as possible. And the burden of proof rests with the Legislature - not the Plaintiff. Freedom of religion is the law - not the other way around.
For more than 100 years following the ratification of the Constitution, religious services were held on Sundays in the Capitol building. And there was no perceived conflict or governmental "institution" of religion associated with that action until the last 70 years. Until only recently, monuments of the Ten Commandments had been a staple of every courthouse and even the Supreme Court for 200+ years. Why is it that those who were present at the signing of the Constitution had such a different view of "establishment of religion" than those of today? I would submit that what is being called "separation of church and state" is actually misplaced hostility towards religion.
Every individual has the ability to decide for themselves what constitutes their Pursuit of Happiness. To restrict or abridge the right to pursue one's own happiness according to one's own belief set is to promulgate tyranny. There are no two ways about it. Without freedom of thought, Speech, and Assembly, there is no freedom in society at all. One can not say to one group that the government allows them to pursue happiness according to their consciences and deny another group the same right. That would violate the very universality the author argues and which I agree with. That would work if an atheist government attempted to outlaw or restrict Christianity every bit as much as the other way around.
Government's primary role is to protect rights - not pass laws. You have argued this yourself. As soon as one acknowledges that the aforementioned Speech, Assembly and Press are natural rights, the rest is ancillary. So there is the question: do you acknowledge that Speech, Assembly, and the Press are natural rights?
"The founders of the country did not support anarchy"
I agree. They supported a limited government that wasn't constantly trying to tell people what to do or how to live their lives.
" and did not build it into "exemptions" for religion."
They built religious tolerance as the rule, with government intervention as the exception. For the umpteenth time, see the First Amendment. It is very literal and very straightforward.
And what if your religion requires human sacrifice?
"And what if your religion requires human sacrifice?"
Any religious act which violates the Declaration of Independence is not granted protection under the Constitution. Since the affirmation of life as a fundamental human right is specifically mentioned (and its protection guaranteed under the Second Amendment), the First Amendment's protections become subordinate to the basic human right of life. Thus Congress' duty is first to protecting life and second to protecting religion. In the case where those two provisions are in conflict, the precedence is clear: the duty to protect life is paramount.
I would also note that a religious claim for the use of peyote among certain American Indian tribes was also struck down as "unprotected" under the First Amendment, though the legal rationale for that one is certainly less clear cut than one on human sacrifice.
A third example which was successfully argued in favor of restriction but which is of even more dubious merit (see point one and point two of the three-pronged test) was the government's interference in marriage by outlawing polygamy.
As for cases in the affirmative, the recent cases of Hobby Lobby and Little Sisters of the Poor illustrate examples where government restrictions on religion were thrown out because they didn't meet the three-pronged test.
Please remember that the First Amendment IS a law in and of itself - it is a law that gives preference in all cases to freedom of religion. You have the argument completely backwards: it is the exception that is allowed to override religion - not the rule.
PS - is there a way you can find a link that doesn't require registration?
The registration required for reading the article is free. SSRN is a site for academic and other research papers.
"Citing parts of the Constitution as "subordinate" for some purposes but not others is rationalization of an indefensible position."
There always exist an order of supremacy in laws. The Founders made their order of supremacy quite clear. You are welcome to disagree with it, but until it is revoked, it is the active rule of Law. "Congress shall make no law" is very clear: religious tolerance is specifically given higher priority over any other law. The Constitution is the Supreme law of the land and its articles supercede - as in take precedence over - ANY other law. Period. And I have never stated otherwise.
The entire problem with this opinion is that it turns the First Amendment on its head and attempts to argue that religious institutions must justify themselves rather than that government to justify its interference in religion. The author fundamentally misunderstands which side bears the burden of proof.
Laws persecuting people for religious beliefs, not protecting people's rights from those claiming a religious motivation, are improper, not an "exemption" for religion. The same holds for any convictions on any topic. Laws using the force of government to promote religious ideas or any other ideas are equally wrong. Religious arguments have nothing to do with deciding on proper laws. It is irrelevant.
The wording in the First Amendment was too narrow in focusing on religion in contrast to any philosophical convictions, which are among the right of freedom of speech and otherwise recognized unenumerated rights. It does not mean "exemptions" from law. Either a law is proper or it isn't. Religion has nothing to do with it. Persecuting people for religious beliefs is not better or worse than persecuting anyone for his ideas.
The unfortunate original emphasizing, for historical reasons, of religion in the First Amendment has served as an invalid hook for rationalizing religious exploitation of law and government power as if religion had a special status above everyone else. It does not.
You didn't answer the question. Do you advocate overturning the First Amendment?
"The wording in the First Amendment was too narrow in focusing on religion in contrast to any philosophical convictions..."
Oh, so because your going to quibble on whether or not to consider atheism a "religion" that you don't feel you are protected by the First Amendment? I don't see any judges singling out atheists as not applicable under the First Amendment. I think you're safe.
"Laws using the force of government to promote religious ideas or any other ideas are equally wrong. Religious arguments have nothing to do with deciding on proper laws."
Uh, I hate to break this to you but every single law is an authorization to use force in pursuit of an idea - an end. What you're really arguing is that a law pursuing an end you view to be "religious" is immoral in your eyes. That's your perspective on the matter. That's your definition of how to pursue happiness. And it is your right to pursue that and that right should be protected from government interference as far as that pursuit does not violate other natural rights. But that very same protection offered to you is also offered to others who believe differently - in many cases very differently. That is the crux of the First Amendment: that every single person should be unfettered by the coercion of government to pursue happiness as they see fit and to join with those of like mind.
Rejecting nonsensical notions that atheism is just another religion is not a "quibble". Laws routinely violate the rights of individuals. They should be repealed for that reason, not left in place with exemptions for the religious. That was the flaw in the Hobby Lobby case. It shows how the wording of the First Amendment was too narrow, putting an emphasis on religion that should have explicitly pertained to everyone's freedoms. It shows how religionists demanding "exemptions" are willing to violate others' rights as they try to exempt themselves from a bad law instead of "overturning" it.
"Every single law" is not "an authorization to use force in pursuit of an idea". That is subjectivism. Valid laws must be formulated to protect the rights of individuals, objectively validated. That understanding, and the application, of the concept of rights requires rational "ideas"; "ideas" does not mean that any idea is ripe for being imposed by the force of law.
"Pursuit of happiness" by the individual in living his own life is not a subjectivist, open-ended justification for whatever anyone feels like doing to others out of religious fervor. The notion of religious zealots that they have a "right" to try and impose their religion is subjectivism leading to tyranny. You do not have a "right" to "join with those of like mind", i.e., a gang, to impose your religion by the force of law in the name of a stolen concept of "pursuit of happiness" That is not what either the Enlightenment or what Ayn Rand held by the "pursuit of happiness".
The subjectivism behind it is the same religious subjectivism clamoring for religious "exemptions" based on its appeals to an open ended religious "conscience" as a supposed "higher authority". It is the same subjectivism of religious faith seeking an "exemption" from reason, objectivity and reality -- the biggest religious "exemption" of them all. It illustrates how religion is fundamentally antithetical to a society based on the rights of the individual protected by limited government.
Ayn Rand emphasized the importance of the role of ideas in setting the course of any culture and nation. She emphasized the necessity of a philosophical base of reason and objectivity in acquiring knowledge of a knowable world by valid means, in discovering the principles of the proper course of action of individuals in their personal lives, and applying that to identify the requirements of how to organize society and form a proper government. It isn't arbitrary, with no distinction between rational philosophy and anti-intellectual religious subjectivists rationalizing and imposing their faith in the name of a stolen notion of "pursuit of happiness" while pretending to be in accordance with the founding of this country..
"It shows how the wording of the First Amendment was too narrow, putting an emphasis on religion that should have explicitly pertained to everyone's freedoms."
Ah, so you do support overturning the First Amendment and re-writing it to be your version. So let's hear it. Propose your version of the First Amendment and let's discuss it.
"Valid laws must be formulated to protect the rights of individuals, objectively validated."
Ah, but you don't view the right to religious belief as a right, do you? In your "objectively validated" view, religions don't fall under the protections of a "proper" First Amendment because in your opinion they are all nonsense. In your world, only one viewpoint is protected and dissent from that is not tolerated.
""Every single law" is not "an authorization to use force in pursuit of an idea". That is subjectivism."
The only reason we create governments is to instill in it authorization to use force. Laws are nothing more than pronouncements which state what the expected behaviors are of the members of society and what government will do (force/coercion) upon violation. Laws absolutely are authorizations of force in pursuit of particular expectations.
If we create a law such that "anyone who murders will be hung", we are pronouncing an expectation (don't murder) based on a principle (right to life) and authorizing force (you will die) for violators. One can argue whether or not the expectation is based on a correct moral principle certainly, but one can not deny that the use of force is explicitly stated and granted.
In the case of the Hobby Lobby case, the "law" that was created said that everyone had to provide contraceptives in their medical plans or face fines from the government. While it was universal and threatened the use of force duly granted to the Government, the law itself was based on two invalid principles. The first was that the government has the power to compel people to purchase a specific product, in this case health insurance. That this was upheld by John Roberts is a travesty of justice as demonstrated in the tortured and openly contradictory language of his ruling. The second, however, and the one on which the Government failed to prove its case lay in the mandate for coverage of abortive devices. The fundamental principle here is the protection of life, so it seems quite contradictory that the government would be taking a stand opposed to the protection of life, nevertheless that is the position they took. Moreover, they were attempting to mandate religious observance in violation of the First Amendment, and this is where they properly ran afoul. They would be establishing a national religious observance - universal no doubt - but it would specifically exclude those who believe differently (a majority I might add) from their free exercise of religion. Under the First Amendment, this was a violation not only of the Establishment Clause but also a violation of the Free Exercise Clause - thus that infringement upon religious liberty was struck down.
"It illustrates how religion is fundamentally antithetical to a society based on the rights of the individual protected by limited government."
Well, you're welcome to your viewpoint but there is zero support for such in the American Founding. And if you feel so strongly that the American Founders got it wrong, you're welcome to start your own country and do it the way you want. I've heard that it wouldn't cost much to buy a number of African nations, and they could certainly use a change from the warlords and tribal conflicts. You could get your nation started and then show to all the rest of us just how ridiculous we are in promoting religious freedom and tolerance.
The corporate income tax is absolutely NOT passed on the price of goods (though other taxes are sometimes passed on -- it depends on the elasticity of demand and supply of the good in question). That is because the corporate income tax is paid only on actual income rather than the price of the good itself and will differ from company to company. The corporate income tax ends up harming shareholders (who are individuals) and ends up reducing retirement income as a result (since pension funds make up a sizable portion of corporate shareholding). It will also end up harming investment because it lowers the rate of return on such investment. Lowering investment harms individuals because it reduces the productivity of both labor and capital, ultimately reducing personal income.
"...depends on the elasticity of demand and supply of the good in question)."
To some degree, yes, but most goods are very elastic and taxes are one of the components to your costing structures in cost accounting (basic business course). My point is that a corporate tax in reality is just another tax on the individual that is being cloaked as a tax on someone else. That's the way it gets sold to the People and is precisely the way the 18th Amendment was sold (that it would only be a tax on the rich 1%). It's a bait-and-switch.
The other part of your argument similarly runs into some accounting nuances. Dividends are decreased due to corporate taxes - there is no question about that - because dividends are paid from after-tax income. Salaries always come out pre-tax, however, and retirement accounts are a mixed bag of pre- (Roth IRA) and post-tax (conventional IRA).
"it lowers the rate of return on such investment."
Sure. It will lower sales because of the higher product/service costs and because it decreases the money available to be used by the business (re-invested) or paid to shareholders.
As to your statement, "most goods are very elastic" -- it depends on the definition of the good. If we are discussing an individual company's product (for example, gasoline), it is highly elastic. If one gas station reduces its price, other gas stations in the immediate area must price match. Thus if we tried to place a tax on only ONE of the stations (similar to what would happen if we impose a tax on Chevron but not on BP -- this incidentally is what happens with corporate income taxes when they are imposed on our companies but not on foreign companies, but I digress), Chevron will not be able to "pass on" the price increase because BP isn't paying it as well and thus must match BP's price to stay competitive. On the other hand, if we impose the tax on ALL gasoline, every gasoline station can raise prices (which is exactly what happens when we place an excise tax on gasoline).
In other words, my entire issue is with the statement that "corporate taxes are almost always passed through to the consumer anyway in the price of goods, so corporate income taxes end up getting paid by individuals anyway." This not only isn't true but it harms the overall argument that you have carefully (and otherwise correctly) stated.
Please take a cost accounting class. Companies take into account the taxes they will pay when computing the prices they will charge for goods and services. Depending on the elasticity of demand for the goods/services and other market conditions, the company may or may not be able to incorporate the full tax burden into the cost of the item, but nevertheless, taxes absolutely do get taken into account.
"Corporate income taxes simply do not affect consumer prices in any measurable way."
This is patently false. Please see any of the following links:
http://www.finweb.com/taxes/are-most-...
"Generally speaking all of the costs incurred by a company to offer a product or service are included in the pricing of a company's products or services."
https://en.wikipedia.org/wiki/Effect_...
Note the shifting of the supply/demand curve as the result of incorporation of taxes. Fewer products/services are being purchased as a direct result of the higher prices of those services due to tax burden.
http://www.heritage.org/taxes/report/...
This was a paper outlining in detail the effects of lowering the corporate tax rate from 35% to 25%. It goes into great detail.
The last article is particularly interesting because it highlights the fact that a lower corporate tax affects not only corporations, but individuals as well. This was my point when I noted that corporate taxes are effectively a hidden tax on the consumer. It also directly refutes your assertion in detail.
"Note that under an overly robust interpretation of “free exercise,” the two clauses would work at cross-purposes. If one believes that “free exercise” entails favored legal treatment (including privileges that the nonreligious do not enjoy), then it would seem that by respecting individuals’ free exercise of religion, the government is “establishing” a religion, insofar as it is extending additional forms of support to the religious. And by that measure of what respect for “free exercise” demands, to the extent that the government refrains from “establishing” religion, it would be failing to respect free exercise. So in this way, the two clauses would work against one another. Pg 50 pr 4 Pg 51 pr 4
BB&T flooding college campuses with Ayn Rand books, in 2012 we asked Harold Bloom, Sterling Professor of the Humanities and English at Yale University in an email to assess Rands writing talent. Bloom responded: “Ayn Rand was a writer of no value whatsoever, whether aesthetic or intellectual. The Tea Party deserves her, but the rest of us do not. It is not less than obscene that any educational institution that relies even in part on public funds should ask students to consider her work. We are threatened these days by vicious mindlessness and this is one of its manifestations.”
Sterling Professor Harold Bloom at Yale is mindless.
BTW, on the Sikh child example. I have personally seen Sikh children carry Rubber Knives while at school as a compromise to their religion.
The only answer is to stop all income taxation and let the federal government learn to produce services that people voluntarily buy, or let the federal government die if it can't compete in a free martket.
There are a VERY LIMITED few things that them being tax funded makes sense. Things that are unreasonable to have handled on a private basis. Likely there would not be more than could be counted on 1 hand, I offered 2 of them here.
Taxation is an excuse for government to grow beyond any stated reason for existence. The free market will provide solutions in record time if we are smart enough not to allow government to take our scarce resources. Government has proven repeatedly throughout history that no government can be trusted to serve limited purposes. If we continue to allow government to tax us, history will just repeat itself yet again. Enough is enough. Government is not the solution; it is the problem.
Either way you would pay and the gas tax maintains more of an illusion of privacy.
So, if a baker refuses to bake a cake for an LGBT wedding citing his religious belief that homosexuality is "an abomination in the sight of God", he is within his right as an exercise of his religious belief. The LGBT bride and groom can go elsewhere to get their cake.
If a Muslim gets an invitation to a wedding where alcohol is served at the reception, he has a choice to go or not go because of his religious belief regarding the religious prohibition against alcohol. What's the Muslim going to do? Demand that the wedding party not allow adult beverages? Yet that is precisely what is being done to the baker who is exercising his religious beliefs.
I disagree strongly with Dr. Smith's assertion that the government has the authority "....to make people do as it says regardless of whether or not they would like to." This is NOT in any respect the kind of government that's the Founding Fathers were establishing. In fact, it is just the opposite. They had lived under a government that had forced them to do things whether or not they wanted to, and wanted no more of such a government.
Our government was founded on the principle of personal freedom which allowed for the individual to speak freely, believe as he chooses, assemble peacefully, carry weapons, and pursue his own interests as he sees fit, to name only a few. In today's PC world these rights and others are under attack as "not fair", when the reality is that forcing someone to do something against his will is the only true unfairness.
Dr. Smith has everything bass-ackward, and has obviously drunk the PC Kool-aid of equal outcomes over equal rights.
Incidentally, I am a Muslim and there is nothing in my religion that suggests that other people can't drink alcohol. I just cannot be compelled to do so (nor has anyone suggested that one would).
But you miss the point. Because you have a religious belief you can't force it on others; however, you can exercise it by not participating in things that go against your religious beliefs. That's called freedom of choice.
This has been discussed on this forum many times. We frequently see religionists claiming to exempt from the law for no other reason than there religions says so. That is not a valid argument.
Taxes, however, can be used to stifle or eliminate certain behaviors. Take President Obama's threat against coal-fired power plants. Through both regulations and taxes, he openly declared that they could continue to operate, they'd just eventually go out of business as a direct result of his policies. This same tack could be taken with regard to any industry or private organization and would be outright tyranny. To support it's application just because it targets a group you despise without consideration for the larger ramifications is the path to enslavement by that very same tyrant. Remember, the income tax amendment was sold as a tax on the rich - the 1% who could afford it. Within a couple of decades it had been expanded to include everyone. Beware the dangers of precedent.
I consider all actions of corporations and private assemblies to be expressions of personal belief systems - whether they be centered around profit or some other principle. I consider all taxation of group entities to be a violation of the First Amendment.
Spot on.
Marriage defines inheritance.
And it determines who can speak for whom with power of attorney implicit in the laws, not otherwise specified.
In order to define objective property rights, the government has a compelling interest in marriage.
Anticipating your objections, I agree that there are other ways to achieve all of those by specific contracts. But that is not how things are now. Of course as "radicals for capitalism" Objectivists advocate a complete restructuring of society. But all of that is probably best addressed in a separate discussion or two.
1. Abolition of property in land and application of all rents of land to public purposes.
2. A heavy progressive or graduated income tax.
3. Abolition of all rights of inheritance.
4. Confiscation of the property of all emigrants and rebels.
5. Centralization of credit in the banks of the state, by means of a national bank with state capital and an exclusive monopoly.
6. Centralization of the means of communication and transport in the hands of the state.
7. Extension of factories and instruments of production owned by the state; the bringing into cultivation of waste lands, and the improvement of the soil generally in accordance with a common plan.
8. Equal obligation of all to work. Establishment of industrial armies, especially for agriculture.
9. Combination of agriculture with manufacturing industries; gradual abolition of all the distinction between town and country by a more equable distribution of the populace over the country.
10. Free education for all children in public schools. Abolition of children's factory labor in its present form. Combination of education with industrial production, etc.
Doesn't America look like this today?
A doctor in Detroit was arrested for performing genital mutilations on children which the parents of the children wanted. But the state intervened to protect the children from their (religious) parents.
The general argument remains in every case: does your claim to "conscience" relieve you of an obligation to obey the law?
(Prof. Tara Smith has not "drunk the PC Kool-aid of equal outcomes over equal rights." The questions she raises are specifically about equal rights, with some people claiming that their religion gives them more rights than other people.)
If you read the article, you will see that she explains the two halves of the First Amendment clauses on religion. You are considering only one of them.
Government is over reaching and incapable.
Churches are on every street corner (in my case 4 in less than a mile) and strategically suited to help the indigent.
Tax exemptions for Churches, again my opinion, should be maintained PROVIDED the church is using that exemption to help its local community. There should be no homeless problem in America. There should be no food stamps.
I know this from asking two churches (one catholic and another Presbyterian) why they didn't do more. Both said LIABILITY. Imagine that.
Government regulation stopped a local church from using a property they own from setting up 20 beds last summer. When its 100+ degrees for 100+ days who cares if your sleeping on a sleeping bag in air conditioning and getting a meal.
Seriously, Government need remove itself from a great many social issues and let people and the myriad of churches step up locally for their exemption, rather then ship their money and give their time overseas.
My 2 bits.
The congress should address the excesses of litigation by these groups but they won't because they believe that they have to cater to them for votes. They are only 1% or less of the voting electorate.
Personally, I detest such life styles.
This is a weak argument that likens a religious upbringing to a physical disability, but I can't think of any other arguments.
No one has denied us yet.
I could agree if you wish to make the case that in the good ole days kids did bring weapons to school, and moreover, that anyone who works for a living should be able to sign a contract, get married, etc. But those are not the topic of Prof. Smith's article.
The question is whether any claim of "conscience" exempts you from the law.
"The question is whether any claim of "conscience" exempts you from the law."
Your "conscience" is not an excuse to hurt anyone.
Most students are not allowed to drive anywhere, including to school. There is an age limit. Concern with safety does not mean controlling everything in the hopeless attempt to prevent anything bad from ever happening.
Oh, service animals are welcome too.