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I have to ask Professor West whether it would have been OK with him if during National Prohibition no exemption had been allowed for the religious use of wine. His answer to *that* question will be most revealing. A second question deserving a response is what conclusions should one draw if it turns out that the meaning(s) of the Religion Clauses are contestable or contingent. (His answer to the first question should have some bearing on his answer to the second question.) A third question is when did I say that I favored “across the board” exemptions. I still don’t know, however, what that term means, as Professor West uses it. As I said before the exemption in the Volstead Act is probably not “across the board.”)
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Doug, I sense that my previous comments upset you in a way that I certainly did not anticipate. I, therefore, hesitate to respond publicly to what you said, but feel obliged to, because you have publicly accused me of wrong-doing, i.e., of being the kind of person that Prof. Brownstein condemned in his e-mail. When I earlier asked whether anyone could make a good argument for across-the-board religion-based exemptions, I certainly did not intend to be expressing hostility to religion nor did it ever occur to me that I would be accused of expressing such hostility. I assumed that what was at stake here were principles of morality and political theory and that asking for someone to justify across-the-board exemptions on the basis of one or more such principles was a perfectly appropriate sort of thing to be done in this forum. Moreover, although I am opposed, at least until I can be shown the error of my ways, to across-the-board exemptions for religious persons/groups, I deny as strongly as I can that my opposition is based on any animus toward religion, and I reject the notion that anyone else who is so opposed must be hostile to religion. For what it is worth, I am a committed, practicing Christian and am completely comfortable with religion's playing a major role in the public square, and it is precisely because I am a Christian, that I do not believe that I or my church should seek favors from the government purely on the grounds of the self-interest of my religion. I believe that I ought to provide principled, public reasons for my requests, and because such reasons for across-the-board religion-based exemptions appear to be lacking, I am opposed to them. In this respect, I am in the company of other good Christians who opposed them, e.g., Roger Williams and John Leland. Surely you would not say that were motivated by hostility to religion.
You also misstated what I said in my previous e-mail to Macy. First, I did not say that Marcy's position was "too moderate." I simply said that she failed to provide a reason for concluding that religion "deserves to be given as much latitude as possible." Second, when I said that "it goes without saying" that sometimes religious persons/groups will be harmed by laws, I was not suggesting or even implying that that harm should not be a matter of concern. I used that pharse simply to emphasis that saying that religious persons/groups are harmed does not, by itself, constitute a reason for giving them, and not other persons/groups harmed by laws, exemptions from valid, secular laws. Third, I do not "reject on principle any effort to ameliorate that harm." Previously, I stated that I had no problems with religious persons/groups seeking ad hoc exemptions from legislatures on the basis of undue hardship, because secular persons/groups often do that sort of thing.
Finally, I will respond to the two substantive points you made. First, you imply that if one is opposed to protecting religious persons/groups from indirect harm caused by valid, secular laws that one should also be opposed to protecting them from direct harm, i.e., laws that discriminate against religion, particular religions, or persons/groups because of their religion. This, however, does not follow. Laws discriminating on the basis of religion are obviously not the same as laws that do not discriminate on the basis of religion. The former clearly violate the principle of equality or neutrality, whereas the latter do not. In fact, it is exemptions from non-discriminatory laws that violate the principle of equality or neutrality. Moreover, although a constitutional prohibition against laws that discriminate on the basis of religion is certainly needed to prevent religious wars and enable persons to live together in peace, it is not obvious that across-the-board religion-based exemptions are needed for that same reason. After all, we did not have such exemptions until 1963 and then only marginally, and the granting of such exemptions has the potential to produce conflict just as much as not granting them. Second, like Professor Newsome, you seem to think that the free exercise clause was originally meant to guarantee across-the-board religion-based exemptions, but as you know this is certainly a matter of debate. Mike McConnell labored excessively long and hard in his HRL article to show it, but concluded at best that it was a possibility. Others of us who have studied the evidence in great detail have concluded that it was not even a possibility, which, by the way, is another principled reason--not hostility toward religion--that I am opposed to such exemptions.
Ellis
M. West
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