Against Religious Exemptions

Posted by $ MikeMarotta 8 years 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?


All Comments


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  • Posted by Storo 7 years, 11 months ago in reply to this comment.
    Tell that to the US troops in Saudi Arabia who are prohibited from purchasing alcohol.
    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.
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  • Posted by $ jdg 7 years, 11 months ago
    Nearly all the laws to which religious exemptions have been made or proposed are unconstitutional laws in the first place. Therefore, opposing the exemptions is at best misguided.

    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.
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  • Posted by $ blarman 7 years, 11 months ago in reply to this comment.
    I completely agree. That the government passed the law (and was upheld by the Supreme Court) in the first place was an overreach IMO.
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  • Posted by $ blarman 7 years, 11 months ago in reply to this comment.
    I would also note that the Constitutionality of that law is also highly suspect, as Congress was never granted power to control marriage under the Constitution. Only by wresting the General Welfare Clause could they assert such a claim. The People were free to set their own rules for marriage for nearly 100 years prior to that. It was societal practice to practice monogamy, but far from law. I would also note that only after Congress asserted the power to control marriage did marriage licenses, resulting in the first kerfuffle over interracial marriages but now extending to homosexual marriages. If what constituted marriage had been properly left to the private sphere to maintain, it would have avoided all of those issues.
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  • Posted by $ blarman 7 years, 11 months ago in reply to this comment.
    "Your argument that "corporate taxes are almost always passed through to the consumer" - this is simply FALSE."

    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.
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  • Posted by zagros 7 years, 11 months ago in reply to this comment.
    Yes, but there is no "clear and compelling reason" to ban polygamy. After all, one can engage in de facto polygamy since adultery is no longer a criminal activity in most states.
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  • Posted by zagros 7 years, 11 months ago in reply to this comment.
    Legally, a store that tells someone not to bring in a service dog is liable for potential lawsuits. Unfortunately, "freedom" is often illusionary.
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  • Posted by Eyecu2 7 years, 11 months ago in reply to this comment.
    I completely agree with everything that you have said; however, I cannot envision even automated toll cameras on every corner. Not to mention how I would hate to have it that obvious that literally every place you drive would then be tracked. Yes I know that they are tracking EVERYTHING but I enjoy the bit of delusional privacy that we enjoy.
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  • Posted by zagros 7 years, 11 months ago in reply to this comment.
    However, if a Mormon (or Muslim) tries to marry more than one wife at the same time, that is prohibited. See Reynolds v. United States, 1878 -- religious duty is not a defense against criminal indictment.

    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).
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  • Posted by zagros 7 years, 11 months ago in reply to this comment.
    Your argument that "corporate taxes are almost always passed through to the consumer" - this is simply FALSE. By using the term "consumer", you conflated that argument with your genuinely true argument that it affects individuals. Individuals can be consumers, producers, shareholders, etc. Corporate income taxes simply do not affect consumer prices in any measurable way. Indeed, if companies COULD simply "pass on" corporate income taxes (like they do excise taxes) to consumers, there would be no legitimate difference between a sales tax and a corporate income tax. Notice that I am agreeing with your overall assessment. However, I just want you to be more clear in your statements.

    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.
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  • Posted by freedomforall 7 years, 11 months ago in reply to this comment.
    With today's technology toll roads do not have to be something that slows transportation significantly any more.
    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.
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  • Posted by Eyecu2 7 years, 12 months ago in reply to this comment.
    Oh I am Ok with some forms of taxation. I do not want to be bothered by toll roads everywhere; therefore, I am Ok with a sales tax on Gasoline and Diesel fuel. As long as those taxes are used for the roads infrastructure. Additionally, I would support the idea of a Flat tax per person to support the Military as I believe that our boarders should be defended. (I do not however support the idea of our forces going over seas at this time.)

    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.
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  • Posted by freedomforall 7 years, 12 months ago in reply to this comment.
    Finally, someone else gets the right approach. Taxes on production are an abomination and an insult to every individual who wants to live free and be responsible for himself.
    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.
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  • Posted by Eyecu2 7 years, 12 months ago
    Heck let's take an opposite tack on this and use the religious exemption to instead allow ALL to not pay taxes based on whatever they want to call their own personal religious beliefs.

    BTW, on the Sikh child example. I have personally seen Sikh children carry Rubber Knives while at school as a compromise to their religion.
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  • Posted by Herb7734 7 years, 12 months ago
    Over a rather long lifetime, I have seen religion be the cause of many horrid things and get away with it. To my thinking, a law should be a law with the only exemptions being put forth in a court of law and only for the most extreme circumstances.
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  • Posted by $ blarman 7 years, 12 months ago in reply to this comment.
    Yes, but the applicable standard is that Government may only supercede religion where there is a clear and compelling reason for doing so AND the infringement must be of the least level necessary to achieve the task. Primary deference is still given to the religious belief because the Government always carries the burden of proof in such cases.
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  • Posted by $ blarman 7 years, 12 months ago in reply to this comment.
    One note, however: the personal and corporate income taxes weren't made a part of American life until 1913 - more than 120 years after the adoption of the Constitution. To try to read into the First Amendment any kind of tax treatment is not supported to any degree. If anything, it should be noted that the Framers intentionally avoided any kind of personal or corporate taxes because they themselves had already fought the oppression of the Stamp Act, the Townsend/Intolerable Acts, and many others. The Stamp Act in particular was applicable to Free Speech because it covered newspapers.
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  • Posted by Storo 7 years, 12 months ago
    The Constitution, 1st Amendment, states that, with respect to religion, "Congress shall make no law.....prohibiting the free exercise thereof;".
    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.
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  • Posted by $ blarman 7 years, 12 months ago in reply to this comment.
    I'm not following the first part of your argument. Why does the argument fail?

    "...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.
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  • Posted by jimjamesjames 7 years, 12 months ago in reply to this comment.
    There's noting wrong with carrying a knife or gun or chainsaw. The societal assumption is that the carrier will use the tool for a nefarious purpose. That the impetus for carrying one or the other or all three might be religious in nature is also irrelevant. The issue is are the tools used to affect someone else's quality of life? In other words, what does the carrier DO?
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  • Posted by zagros 7 years, 12 months ago in reply to this comment.
    I absolutely agree that corporate taxes need to be eliminated but not for the reason you are giving. After all, if "corporate taxes are almost always passed through to the consumer anyway in the price of goods", there is no need to eliminate corporate taxes -- your argument fails as a result. Corporate taxes need to be eliminated because of much more insidious aspects.

    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.
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  • Posted by $ Thoritsu 7 years, 12 months ago in reply to this comment.
    My wife has a service dog (no, not a BS therapy thing). If someone doesn't want us to bring it to their house, we don't, or we don't go. If a store doesn't want us to bring it in, fine with me. Up to them. Just like it is up to them to make LGBT cakes if they want or not. Freedom.
    No one has denied us yet.
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  • Posted by zagros 7 years, 12 months ago
    I should point out that there is no allowance for religious exemption to skirt criminal law even from a Constitutionalist perspective and there hasn't been such a recognized exemption for 140 years. See the US Supreme Court case, Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878), religious duty is not a defense against criminal indictment.
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  • Posted by evlwhtguy 7 years, 12 months ago
    This would be a lot less of a problem if the federal government was only doing those things actually authorized by the constitution, instead of getting in to the minutia of our lives by regulating things like our toilets and light bulbs!
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