Doug
Laycock writes that "the willingness to treat atheism as a religion
is very encouraging."
I agree
that, for certain purposes, including rights of _expression_, religious
views and anti-religious views need to be treated equally.
On the
other hand, it has always seemed to me that to extend the idea of
religion-based exemptions beyond the realm of specifically religious
norms conflicting with secular law would, in effect, create a universal
libertarian presumption that no law can be applied against a dissenting
individual unless that law is supported by a compelling governmental
interest. And that sort of universal libertarian presumption just
strikes me as implausible and inconsistent with our constitutional and
legal structure.
Doug is
right that some opponents of religion-based exemptions make something
like the following argument:
1. We can't exempt only believers, because that would
discriminate against nonbelievers.
2. But we can't exempt nonbelievers, because nonbelief is
not a religion.
3. Therefore, we can't exempt anybody.
But I
think that we should be equally concerned about the following
argument:
1. We can't exempt non-believers, because that would create
a universal libertarian presumption in the law, which is
implausible.
2. But we can't exempt only believers, because that would
discriminate against nonbelievers.
3. Therefore, we can't exempt anybody.
In both
cases, the flaw in the reasoning (which Doug agrees is a flaw) is the
notion that "we can't exempt only believers." Of course
we can exempt only believers, and there are good, normatively compelling,
reasons to do so.
Perry
*******************************************************
Perry Dane
Professor of Law
Rutgers University
School of Law --
Camden
[EMAIL PROTECTED]
www.camlaw.rutgers.edu/bio/925/
www.ssrn.com/author=48596
*******************************************************
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