Two responses: 1. The passage from Madison's M&R quoted below does not support
the proposition that he believed that religious freedom entails a right to
religion-based exemptions from valid, civil laws. What Madison is saying (and
what most other early American advocates of religious freedom said) is that
there is no need for government and religion to conflict with one another ("in
matters of religion no man's right is abridged by the institution of civil
society") provided government does not claim jurisdiction over and legislate
intentionally and directly on religious matters (provided "religion is wholly
exempt from its cognizance"). In contrast to JM's position, the proposition
that persons have a right to religion-based exemptions is based on the
assumption that conflict between government and religion is unavoidable. In
other words, if one accepts Brad Pardee's understanding of religious liberty
(see below) as not forcing persons to choose between obeying their God and
obeying civil laws, and those laws include purely secular laws as well as laws
dealing with religion, then conflict is inevitable--not because the government
intends or creates it, but because religious individuals and groups, for
reasons peculiar to their religion, object to obeying the laws. I could also
give you other evidence from JM's writings to support my argument, but will not
do so here, unless I am asked for it.
2. That religious freedom meant freedom from laws dealing directly and
primarily with religion, and did not entail a right to religion-based
exemptions, was not only the original understanding of religious freedom, but
the understanding of the Supreme Court (and most of the people?) until 1963
(Sherbert v. Verner), and even then it was rejected only in theory and not in
reality, and thus Oregon v. Smith (1990) decided to "call a spade a spade" and
restored the original and historical understanding of religious freedom.
Ellis West
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
on behalf of Richard Dougherty [dou...@udallas.edu]
Sent: Sunday, August 18, 2013 6:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge
to ACA Contraceptive Mandate)
I would think that this would be a matter of significance only for
those who afford some degree of significance to a jurisprudence of
original intent.
But if one does take such matters seriously, I would suggest that it
is hard, indeed impossible, to read James Madison's Memorial and
Remonstrance as not protecting the free exercise of religion, and not
simply against the interference of what one might consider
liberty-denying religion. Just one passage, from the first paragraph:
"We maintain therefore that in matters of Religion, no man's right is
abridged by the institution of Civil Society and that Religion is
wholly exempt from its cognizance."
Richard Dougherty
On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis <ew...@richmond.edu> wrote:
>
> I fear that many of you will think I am pompous, if not arrogant, in saying
> what follows, but I feel compelled to respond to Brad Pardee's post. For
> years now, I have been reading all the posts on this blog, most of which have
> dealt with the issue of when, on the basis of religious liberty, persons have
> a right to be exempt from having to obey valid secular that persons generally
> have to obey. Recently, I find myself just shaking my head, because the
> debate goes on and on, and will continue to do so, because there is simply no
> clear answer to the question. The sad thing about the debate is that as it
> has been structured, it is so unnecessary. Of course, if legislatures want
> to exempt certain persons from certain laws on the basis of certain criteria,
> that is their prerogative. The debate on this blog, however, has been based
> on the assumption that religious freedom, at least under certain
> circumstances, gives persons a right to be exempt from obeying valid civil
> laws. More specifically, too many entries assume, along with Brad, that "the
> essence of religious freedom is that a person is not forced to choose between
> obeying their God and obeying their government" and "[t]hat's certainly at
> the heart of free exercise."
>
> If, however, Brad is referring to the free exercise of religion guaranteed in
> the First Amendment, then his understanding of religious freedom is way off
> base. Based on a thorough review of the historical evidence, I am finishing
> a book on the original meaning of the free exercise clause, and I have yet to
> find any early American advocate of religious liberty, except for some
> Quakers, who understood it as meaning that persons could not be forced to
> choose between obeying their God and obeying their government. (There may be
> such persons, but I have not found them.) The issue of religion-based
> exemptions from valid laws was simply not on their minds, and they did not
> address it explicitly. Rather the all-consuming issue was that of
> establishments of religion, and freedom of religion meant freedom from such
> establishments and all laws associated with them, i.e., freedom from laws
> whose primary purpose was to favor one religion, religious belief or
> practice, over another or to discriminate for and against persons because of
> their religion. Stated differently, the no establishment and free exercise
> clauses were simply two different ways of saying the same thing. To the
> extent that early Americans implicitly addressed the issue, they emphasized
> that religion could not be used as an excuse for obeying valid civil laws.
> Only some Quakers would have agreed with Brad's understanding of religious
> freedom, but as I showed years ago in an article in the Journal of Law and
> Religion, when they attempted to get Pennsylvania to add a provision to its
> constitution that would reflect their understanding, it was rejected.
> Finally, contrary to what Brad says, the philosophy behind religious freedom
> is not the same as the philosophy behind conscientious objection. The former
> pertains to what the government should not do, whereas the latter pertains to
> whether an individual should follow his conscience regardless of what others,
> including the government, may do to him or her.
>
> Ellis M. West
> Emeritus Professor of Political Science
> University of Richmond, VA 23173
> 804-289-8536
> ew...@richmond.edu
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee
> Sent: Friday, August 16, 2013 2:36 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to
> ACA Contraceptive Mandate)
>
> I'm not certain that this is a correct understanding of the purpose of
> freedom of religion. It's always been my understanding that the essence of
> religious freedom is that a person is not forced to choose between obeying
> their God and obeying their government. That's certainly at the heart of
> free exercise, where the government ought not to have a blank check to
> command what God prohibits or to prohibit what God commands. (It’s the same
> philosophy behind conscientious object legislation, where it's a matter of
> personal conscience rather than God that is involved.)
>
> It has its limitations, just as freedom of speech does not protect slander,
> libel, or the proverbial "yelling fire in a crowded theater". There are
> certainly instances where it is truly necessary to compel a person to act in
> a certain way, even if it is in violation of the tenets of their faith, but
> that won't be the case in every instance just because the legislature wants
> it to be so. At any rate, though, I believe that this is the purpose of
> religious freedom. Ideally, people who disagree with one another can choose
> to live in harmony with each other, whether the disagreement is a matter of
> religion, economics, foreign policy, or whose team is best positioned to win
> the Super Bowl, but I don't think that harmony is the driving purpose behind
> religious freedom.
>
> Brad
>
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