I completely disagree
on how much John Stuart Mill adds to the discussion. His views are part
and parcel of a great deal of American law, including tort, criminal, and
regulatory law, and they are equally relevant in the Free Exercise
context. As to what question is on the table-- I don't think there is
any constitutional right to engage in any conduct that can harm another
person, religiously motivated or not. Some believers may believe
that their conduct should be immune from the law because they hold "rights" to
engage in that conduct regardless of harm, but they are misinformed on the
history of free exercise principles in the United States and insufficiently in
tune with the harm religious entities are capable of rendering.
I understand that there are plenty who disagree with Smith. I'm not
one of them, largely because I have documented so many victims of religious
entities, who have not received justice in the United States solely because
those oppressing them are religious.
Marci
But the
question on the table is whether there ARE rights to engage in certain
religious conduct. It is interesting that you should cite Locke.
His brand of âtolerationâ left out some people, Catholics and Jews, for
example. His brand of toleration left Anglicans in charge, left laws on
the books that hampered Nonconformity, and thus gave Nonconformity nothing
more than legislative grace. I hope that we could move a bit beyond his
pinched view of toleration. Jefferson and Mill donât add much to the
discussion that is particularly helpful.
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