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?
