"Justice means treating people as they deserve to be treated."

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.

No one said everyone gets to write their own laws. You conflate two principles: the rule of law and personal freedom. In a limited government, people are free to pursue their own desires - whatever they may be - so long as these do not conflict with the rules of an organized society. And when there is a conflict, government must make its case that the law should override the religious observance, with government bearing the burden of proof.

"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.

No, it is actually quite a valid, relevant and simple question: Do you advocate overturning the First Amendment?

"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 entire origin and premise of the argument, however, is false. It takes the stance that deference to religion is an exception and according to the First Amendment it is the rule. Where a law created by Congress conflicts with religious observance, it is the government which bears the burden of proof in demonstrating that the law is specifically tailored, infringes no more than necessary, and fulfills a legitimate government purpose. The government can create exceptions to the directives in the First Amendment - resulting on infringements to certain religious beliefs - only upon this premise and in no other way. The author reverses this and this is why her argument utterly fails - again, not because of the claim of universality, but because she argues exceptions as if religious deference is the exception rather than the rule as declared in the First Amendment.

"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.

Your insinuation is nonsense. It is not a valid question at all; it is a false accusation insinuating that anyone who rejects your rationalizations of revisionist history and false philosophical premises must be against the Constitution -- as you try to wrap a militant religious fervor in "the First Amendment". Their is no excuse for religious exemptions from valid laws, which apply to everyone. There is no basis in the Constitution or anywhere else for exemptions for religion as a higher authority of subjectivist "conscience". Rejecting religious anarchy for its "exemptions" means protecting and strengthening the First Amendment, not repealing it.

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..

Your assertion that "The stance both the author and you are trying to take is that the law is an end in and of itself which further justifies itself axiomatically" is false. No one said that. No one. On the contrary Tara Smith and I have both emphasized that the proper purpose of law is to protect the rights of the individual.

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.

"is nonsense."

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.

"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.

You wrote that "corporate taxes are almost always passed through to the consumer anyway in the price of the goods". That isn't true. We all pay, in different degrees, for costs of taxation burdening the economy, but it isn't in the simplistic form of a direct addition to the price simply "passed on".

Everyone deciding for himself what constitutes pursuit of happiness without regard to protecting the rights of the individual under objective law is anarchy. The founders of the country did not support anarchy and did not build it into "exemptions" for religion. There is no special exemption for religion from valid laws. You are very confused. Not passing laws that interfere with a persons ideas is not an "exemption".

"So you would advocate to overturn the First Amendment" is nonsense. The Constitution did not and should not be interpreted to set up a system of religious exemptions from the law any more than supporting religion. Either a law is proper or it isn't. Either it is an objective law protecting the rights of the individual or it is not.

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.

I believe that's what I said, yes.

The Founders very much disagree with both you and the author.

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?

So you would advocate to overturn the First Amendment? That is the only way that religious deference becomes an "exemption". As I have stated and will continue to state: the exemptions are the times when religious beliefs must give way to secular law - not the other way around.

"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.

The only reason government taxes inheritance is obedience to Marx. See number three from his Manifesto...

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?

You are stabbing in the dark with confused arguments. You cannot even begin to discuss the principles the rest of us are talking about without knowing what the article is about.

The country was not founded on violating some people's rights for the benefit of religion.

Please read the article. Your posts are very confused. Your religion is not a privileged position.

Please read the article for the discussion of knives in school. School rules may or may not be "merely rules created by control freaks" and knives and guns have in fact been used as weapons in "incidents". But you don't have to read the article to know that much.

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.

Justice means treating people as they deserve to be treated. It has nothing to do with hammers and the rotational velocity of the earth. It a moral concept pertaining to relations between people. The principles of political philosophy and the validity of laws are based on a lot more understanding than "justice" alone as a starting point and require concepts like the rights of the individual. Free floating references to "justice" in discussing the validity of laws with no standards is hopeless.

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".

We are discussing what should be, not selected government confirmation of its control over "exemptions". The reason why the Hobby Lobby case was wrong are explained in the article. Citing parts of the Constitution as "subordinate" for some purposes but not others is rationalization of an indefensible position. The discussion is about exemptions in principle.

The registration required for reading the article is free. SSRN is a site for academic and other research papers.

That married people can and usually do own property jointly does not mean "marriage is about property rights". It is personal, with no justification whatsoever for government intervention. Deeds and wills specify ownership, it does not require a "complete restructuring society".

"What is an unjust law?"

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! ;)

The universality which should be applied in this case is the very simple and straightforward rule "Congress shall pass no law" regarding the freedom of religion. The stance both the author and you are trying to take is that the law is an end in and of itself which further justifies itself axiomatically. That is not a supported argument in any way, shape, or form. Laws recognize universal truths such as natural rights, but can neither invent any such nor obviate any such while retaining either moral or legal validity. The desire that all laws should apply to everyone is laudable, but speaks not one word to the law itself, which must be verified first. The First Amendment clearly lays out that the "exemption" lies not on the side of religion, but on the side of government to override religion.

"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 Supreme Court has already ruled that legal deference must fall on the side of religion and they established a three-pronged test regarding the Constitutionality of any law that infringes on religious freedom. First, the law must serve a compelling government interest. Second, the law must be broad-based - it may not target any single religion. Third, the law must be "narrowly tailored" to serve that compelling interest. The burden of proof falls with the Legislature to argue that it has successfully negotiated all three.

"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?

Actually, you have it completely backwards. The Constitution and its Amendments take precedence in resolving legal conflicts - not the other way around. Any new law must first comply with the requirements of the Constitution and its Amendments before being valid for enforcement.

"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.