Against Religious Exemptions

Posted by $ MikeMarotta 7 years, 12 months ago to Politics
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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?


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  • Posted by $ blarman 7 years, 12 months ago
    There are actually two separate and distinct arguments being made. The one refers to the power to tax and exemptions to that taxation. The other is for exemptions to other various laws where there is a conflict with the First Amendment. They should not be conflated as they have been here.

    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...)
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  • Posted by $ 7 years, 12 months ago
    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”26 Imagine an alternative First Amendment that included only one of these statements, without the other. Had it guaranteed free exercise without placing a bar on state establishment, that might have suggested that the government is to encourage religion, to positively smooth its path by especially favoring religious activities. If, instead, the Amendment had assured non-establishment without mentioning any commitment to protect free exercise, that might have suggested government’s active hostility to religion, the belief that religion poses a threat to be subdued. The combination of the two clauses, in short, wards off natural misinterpretations that either one of them, by itself, might have nourished.

    "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
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  • Posted by $ 7 years, 12 months ago in reply to this comment.
    The best way to discuss this is after we read the entire article through at least once. Otherwise, we are just discussing our own ideas, which might be fine and all, but I think that Prof. Smith's article is more informed, certainly as a starting place.
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  • Posted by CircuitGuy 7 years, 12 months ago
    What about a people not being allowed to bring a dog somewhere, unless it's a service animal, e.g. seeing eye dog? A religious person might feel like carrying a knife is necessary because of his experiences from an early age.

    This is a weak argument that likens a religious upbringing to a physical disability, but I can't think of any other arguments.
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