Comments on: Religious practices, religious law, and the establishment clause.

By: JL

JL — Sat, 21 Nov 2009 22:57:36 +0000

The second try, well, I think you’re correct. People would try to enforce whatever religion-based laws they saw fit, at least in some places. I’ve seen people (non-lawyers, admittedly) say that it should ok under the 1st Amendment to force people to recite or perform religious credos because it’s not like people are forced to believe what they would be required to say.

There might be some limit to laws that would get passed though. The ultra-Orthodox Jews in Israel might assume that everyone they see is Jewish and is thus failing to abide by their own religious laws, or they may believe that Israel is supposed to be a Jewish state, complete with enforcement of Mosaic Laws. Enough people in this country believe the state is supposed to be non-sectarian that passing some religious laws would be difficult. But then, what’s the point of having an Establishment Clause or judicial review?

I’ll have to think more about the first one. I’m not sure I have a problem with courts ruling in ways that implicate religious beliefs. I think they do now, but they just don’t admit it (consider the contradiction between evangelical Christian belief that there is no source of morality independent from god with the implication in criminal law that breaking a law is immoral). I think courts probably aren’t the appropriate place to interpret religious doctrine, but once that doctrine is enacted text, the courts are probably capable of interpreting the text, legislative history, etc. without reference to particular sectarian beliefs. And if they can’t interpret a law (say, “No worshipping graven idols”) without referencing normative beliefs of certain groups, then the law probably shouldn’t exist.

By: Paul Gowder

Paul Gowder — Thu, 19 Nov 2009 18:11:27 +0000

Funny you should ask these questions. At some point last year, I wrote a seminar paper asking much the same questions, in the context of Rawls’s remarks on liberty of conscience. I wasn’t terribly satisfied with the paper at the time, but maybe there’s more to the idea than I thought after it was done. The key notion being that liberty to pursue one’s deeply-held conception of the good + the recognition that we can’t fairly limit that to religious and comprehensive philosophical conceptions can eat up basically everything else (including, e.g., distributive justice to the extent one’s conception of the good is that of an investment banker/big firm associate).

So I don’t know that I have any answer to this question. There may not be one. This is the sort of thing that liberals have to wrestle with. I’m working on a paper right now exploring the possibility of ruling certain kinds of desires (at least money-grubbing ones) out of order as the sorts of conceptions of the good that liberal states must coddle, basically on psychological grounds, but that only helps the worst of the problems…

By: Steve M.

Steve M. — Thu, 19 Nov 2009 02:52:13 +0000

Also, and I don’t mean this to be a cross-examination, because I don’t have any really convincing answers, but how do you decide which laws are the minor ones? I’m inclined to say that we should grant exemptions to minor laws for significant life projects, appropriately defined. The idea behind the “place of God” test the conscientious objector area is something at least roughly like that, and it’s something I’ve always found appealing, at least in its outlines (not in its specifics — I haven’t given it great thought, but at first reflection I think I’d write a very different conscientious objector rule). But the majority, or rather the dominant political coalition, is going to have its own ideas about which laws are the important ones. And people have genuine religious objections to all sorts of important laws.

By: Steve M.

Steve M. — Wed, 18 Nov 2009 21:31:49 +0000

Does everyone get an exemption from compliance with minor laws that interfere with her significant life projects? Or does the Establishment Clause make religion special? If so, doesn’t making religion special treat athiests unjustly and run afoul of the commitment to equal protection? One thing that troubles me about this area is thinking of a way to require the state to give religious people some elbow room that doesn’t treat the non-religious unfairly, or make the law a shapeless guide. Admittedly, this is all somewhat removed form the question whether and to what extent the state’s laws can be religiously-motivated, but as you say, prohibitions on religious motivation require the state (and, by extension, voters) to make judgments about the content and normative qualities of religions.

By: Paul Gowder

Paul Gowder — Wed, 18 Nov 2009 03:43:31 +0000

Hmm… I don’t know that I’d say that laws that touch on religious subjects have to be entirely categorical — in principle, it seems like it’s possible to acknowledge the role of religion in the abstract in people’s lives and legislate accordingly without doing so on the basis of religious reasons that constitute an establishment. Things like building code exemptions seem to fall into that category: we might reasonably decide that people ought to have the liberty to violate minor laws in the interest of satisfying their strong taste for complying with their religious duties, in virtue of our general liberal interest in permitting people to pursue their ends.

By: Steve M.

Steve M. — Tue, 17 Nov 2009 18:04:11 +0000

I’ll have to give this more serious thought. Question, though: What about cases in which you’re regulating what we might call the public aspects of religious institutions — e.g., writing the tax code in a way that recognizes that the institutions it regulates are in fact religious? Does the requirement that laws touching on religious subjects be entirely categorical, and (therefore?) not religiously-motivated, require a kind of religion-blindness from the state? The obvious concerns here are avoiding excessive entanglement (think of wealthy people using churches to store and transmit wealth the way they use charitable foundations) and overzealous prosecutors and bureaucrats applying facially neutral regulations to innocuous religious conduct (I’m looking at you, Employment Division v. Smith). One worry I have is that it might not be possible to write a rule that allows the government to recognize religion for entirely sensible reasons without opening the door to religious discrimination, especially if the discrimination comes in the form of failing to extend some benefit available to others. Historically, the Blaine Amendments come to mind, as do the facts of Locke v. Davey.

Or are you willing to run with the ball and argue that the Establishment Clause constitutionalizes a kind of comprehensive liberalism? I think that might be the implication of your post, in which case legislators had best catch up on their Joseph Raz. Also, what about cases in which local authorities prosecute supplicants of minority faiths for, e.g., failing to build their houses of worship to code or sacrificing animals in technical violation butchery laws? Do you want to make room for those cases? Or are your views there parasitic on your views on building codes and animal sacrifice (or, if you want to argue that the First Amendment constitutionalizes some sort of comprehensive liberalism, are they even separate issues)?