Religious exemptions for the non-religious
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 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions for the non-religious
I think Perry is correct that there are good, normatively compelling reasons for exempting only believers - but I wouldn't say of course this is so. I often respond to the argument that there is no reason to treat religion differently than secular beliefs for the purpose of creating conscience based exemptions by asking whether there is a reason for distinguishing between religious and secular beliefs for Establishment Clause purposes --- and whether we should look at the religion clauses holistically with regard to the distinctions they draw between religion and secular beliefs. But Doug's comment that it is encouraging for courts to treat atheism as a religion should not be so easily dismissed. First, when Perry notes that for certain purposes including rights of expression, religious and anti-religious views need to be treated equally, that may be a very large category. The exercise of religion often has a religious dimension to it - and the Court has consistently declined the opportunities presented to it to develop a working demarcation line between religious exercise and speech. Second, we have no working definition of religion for constitutional purposes that will help us to distinguish conscientiously held moral and ethical beliefs from conscientiously held religious beliefs. If a person seeking an exemption contends that the ethical commitments he adheres to are religious in nature - even though the person does not believe in G-d -- because these moral precepts are inherent in nature or history or whatever else the person uses as a foundation for his morality, does he receive an exemption? Also, and this is probably only a semantic point, one of my problems with talking about the judicial recognition of atheism as a religion is that the only core belief of an atheist that he or she shares with other atheists is that they do not believe in G-d. I am not sure that there are all that many situations where a person's commitment to that belief alone conflicts with law and requires special accommodation. The harder question for me is evaluating the moral basis for the conscientious decisions of atheists. I would probably call those beliefs a non theistic moral code or philosophy - but I'm not sure the choice of terminology makes much of a substantive difference. The argument would be that denying the existence of G-d is a religious belief - but the adherence to a non-theistic code of conduct is not religious. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Perry Dane Sent: Thursday, March 01, 2007 9:05 AM To: religionlaw@lists.ucla.edu Subject: Religious exemptions for the non-religious 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 *** ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Religious exemptions for the non-religious
I must admit having some sympathy for Perry's position. In my book FAITH ON TRIAL, I advanced the following argument supporting an expansive protection of religious exceptions that would justify attention to traditional religions: 1 Law regulates behavior based upon social utilitarian grounds (e.g taking drugs is bad for you and society.) 2 We reject pure claims of conscience as being anarchic (Scalia's each man a law unto himself) 3. Behavior that is compelled by a religious community not only reflects religious values, it includes a demonstrated social utility -- that is, the behavior is not only endorsed by a group (ergo not an idiosyncratic assessment of merit) it must have also contributed to the ongoing viability of that group (such as the fact that use of peyote by the NA Church in Smith contributed to a community in which there was far less drug abuse than prevalent in the general native American population.) 4. Therefore, the courts can and should incorporate an appreciation of this social endorsement under the First Amendment in considering objections. While I continue to believe in the merits of this argument, I cannot point to any court that has agreed with me (outside of the YODER outlier that predated by work.) David E. Guinn JD, PhD Recent Publications Available from SSRN at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608 - Original Message - From: Perry Dane To: religionlaw@lists.ucla.edu Sent: Thursday, March 01, 2007 11:05 AM Subject: Religious exemptions for the non-religious 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 *** -- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions for the non-religious
Atheism and agnosticism should be considered religions for free exercise purposes because, as Doug has argued in print, we would regard them as religions for establishment purpose -- if the government set up a Temple of Atheism or schools taught officially that God does not exist. If one takes the constitutional text seriously, its use of religion only once for both clauses demands this kind of symmetry -- and I think that in this case textualism performs a useful service in disciplining interpretation. I agree with Alan that often it will be hard to tie the atheist or agnostic's moral code to his or her non-belief in God. But not always. For example, I think that Seeger, Welsh, and others like them could quite plausibly ground their refusal to kill in their explicit non-belief or profound doubt about God and the afterlife. Believing that this life is all there is can easily generate the belief that it is the highest value and thus an absolute refusal to kill. But conversely, this kind of argument doesn't extend to all deeply held moral beliefs that might conflict with law. Following up on another of Alan's points: The broader claim that deeply held moral positions in general (not just non-theist religious positions like atheism or agnosticism) must be treated the same as religion has several problems. One is that proponents of this claim typically do not carry it through on the establishment side, where they advocate special limits on government promotion of religion that do not apply to promotion of non-religious moral positions. Chris Eisgruber and Larry Sager's new book is an example. They reiterate their influential case against treating freedom of religious exercise more favorably than freedom for deeply held non-religious moral positions. But then they defend the distinctive establishment clause limits on government religious symbolism by arguing that for government to endorse a religious view or views is especially damaging to others because religious affiliation typically implicates an expansive web of belief and conduct, individuals often feel and are seen as either 'in' or 'out' of such webs, and the perceived and actual stakes of being [in or out] can be very high, including being fulfilled and redeemed or eternally damned. It seems plain to me that every single one of these rationales also supports special concern for freedom of religious exercise and thus undercuts their position on the free exercise side. . Tom Berg, University of St. Thomas (Minnesota) +++ I think Perry is correct that there are good, normatively compelling reasons for exempting only believers - but I wouldn't say of course this is so. I often respond to the argument that there is no reason to treat religion differently than secular beliefs for the purpose of creating conscience based exemptions by asking whether there is a reason for distinguishing between religious and secular beliefs for Establishment Clause purposes --- and whether we should look at the religion clauses holistically with regard to the distinctions they draw between religion and secular beliefs. But Doug's comment that it is encouraging for courts to treat atheism as a religion should not be so easily dismissed. First, when Perry notes that for certain purposes including rights of expression, religious and anti-religious views need to be treated equally, that may be a very large category. The exercise of religion often has a religious dimension to it - and the Court has consistently declined the opportunities presented to it to develop a working demarcation line between religious exercise and speech. Second, we have no working definition of religion for constitutional purposes that will help us to distinguish conscientiously held moral and ethical beliefs from conscientiously held religious beliefs. If a person seeking an exemption contends that the ethical commitments he adheres to are religious in nature - even though the person does not believe in G-d -- because these moral precepts are inherent in nature or history or whatever else the person uses as a foundation for his morality, does he receive an exemption? Also, and this is probably only a semantic point, one of my problems with talking about the judicial recognition of atheism as a religion is that the only core belief of an atheist that he or she shares with other atheists is that they do not believe in G-d. I am not sure that there are all that many situations where a person's commitment to that belief alone conflicts with law and requires special accommodation. The harder question for me is evaluating the moral basis for the conscientious decisions of atheists. I would probably call those beliefs a non theistic moral code or philosophy - but I'm not sure the choice of terminology makes much of a substantive difference. The argument would be that denying the existence of G-d is a religious belief - but the adherence to a
Re: Religious exemptions for the non-religious
In a message dated 3/1/2007 4:06:41 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Atheism and agnosticism should be considered religions for free exercise purposes because, as Doug has argued in print, we would regard them as religions for establishment purpose It might be the right approach to consider atheism a religion for FE and EC purposes, just as long as we make it clear that, in fact, atheism is no more a religion than the denial of physics is physics. Constitutional necessities might require distorting ontology for important reasons, but it does not change ontology by doing so. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris, Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) Essentially Contested America, Editor: _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) BRBRBR**BR AOL now offers free email to everyone. Find out more about what's free from AOL at http://www.aol.com. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Religious exemptions for the non-religious
Sure, one denies certain propositions in physics, but as with any science--for that matter any field of study--conceptual, paradigmatic propositions when denied eviscerate that field either to replace it with another paradigm and field or to let it drift asunder as in the case of alchemy. Suppose an Alien comes to Earth and tells us that his/her/its/? founding story is that the universe came into being spontaneously. The founding story ends there with regard to ethics, personal salvation, the meaning of life, and all those things sometimes associated with earthly religions. The Alien doesn't view his founding story as a negative answer to the religious questions we ask. It never occurred to Alien civilization to ask these religious questions. Impoverished civilization, some might say. Others might argue it beats ours. I'm not sure why negative answers must qualify as answers at all. Indeed, it seems question-begging to insist that they must. Common usage? Maybe some people use religion this way, but others do not. If you mean that any deeply felt perspective answering certain kinds of question is a religion, then what happens to the secular? Indeed, as I have argued before I don't believe the religion-secular dichotomy captures the view that some perspectives occupy a fundamental place in human imagination and some don't. I would replace this dichotomy with the dedicated-deliberative dichotomy. Some belief-systems--whether religious or secular--are virtually closed, answering all (or most) questions we ask about society and its origins. Marx's materialism seems a good candidate for this type of dedicated perspective as does orthodox Judaism--I would argue--and, of course, fundamentalism generally. By contrast, certain kinds of pragmatism require deliberative debate as do certain Protestant religions that friends have described to me. But perhaps we're getting to far from the List's raisin d'etre. Bobby Robert Justin Lipkin. Professor of Law Widener University School of Law Delaware Ratio Juris , Contributor: _ http://ratiojuris.blogspot.com/_ (http://ratiojuris.blogspot.com/) Essentially Contested America, Editor: _http://www.essentiallycontestedamerica.org/_ (http://www.essentiallycontestedamerica.org/) BRBRBR**BR AOL now offers free email to everyone. Find out more about what's free from AOL at http://www.aol.com. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions for the non-religious
I'm not sure what the denial of physics means. Doesn't one deny (or affirm) a particular proposition or set of propositions about physics? Similarly, it seems to me that there is a recognizable usage of religion that includes varying positions on the ultimate questions such as the existence of a deity (deities) or the afterlife -- including the negative answers -- although there's also a commonly used sense in which religion includes only the positive answers of various sorts. So I guess I'd say that the first usage, in addition to being a better fit for the logic of the two religion provisions, is also more than just a usage made up for that purpose. I agree that one is far less likely to exercise the negative-answer beliefs, but as I said in the previous post I think there are instances in which they too are exercised. Tom Berg __ In a message dated 3/1/2007 4:06:41 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Atheism and agnosticism should be considered religions for free exercise purposes because, as Doug has argued in print, we would regard them as religions for establishment purpose It might be the right approach to consider atheism a religion for FE and EC purposes, just as long as we make it clear that, in fact, atheism is no more a religion than the denial of physics is physics. Constitutional necessities might require distorting ontology for important reasons, but it does not change ontology by doing so. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ http://ratiojuris.blogspot.com/ Essentially Contested America, Editor: http://www.essentiallycontestedamerica.org/ http://www.essentiallycontestedamerica.org/ _ AOL now offers free email to everyone. Find out more about what's free from AOL at http://pr.atwola.com/promoclk/1615326657x4311227241x4298082137/aol?redir=ht tp%3A%2F%2Fwww%2Eaol%2Ecom AOL.com. application/ms-tnef___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions for the non-religious
I am sitting out this discussion because I have an oral argument tomorrow (on a remedies case of no interest to this list). I don't think that plausible claims to exemption by nonbelievers arise very often, and objections to killing may comprise all or most of the list. But neither do I think that one forfeits protection for his most deeply held moral commitments when he crosses a certain line in the evolution of theological views. And I think that one role of the Religion Clauses is to mediate religious conflict in the society, and that today they must mediate the religious-secular conflict just as in the past they mediated the Protestant-Catholic conflict and the Anglican-Baptist conflict. It is very hard for the Clauses to perform that function if one side of the conflict is outside the Clauses. Back to silence. Quoting Berg, Thomas C. [EMAIL PROTECTED]: I'm not sure what the denial of physics means. Doesn't one deny (or affirm) a particular proposition or set of propositions about physics? Similarly, it seems to me that there is a recognizable usage of religion that includes varying positions on the ultimate questions such as the existence of a deity (deities) or the afterlife -- including the negative answers -- although there's also a commonly used sense in which religion includes only the positive answers of various sorts. So I guess I'd say that the first usage, in addition to being a better fit for the logic of the two religion provisions, is also more than just a usage made up for that purpose. I agree that one is far less likely to exercise the negative-answer beliefs, but as I said in the previous post I think there are instances in which they too are exercised. Tom Berg __ In a message dated 3/1/2007 4:06:41 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: Atheism and agnosticism should be considered religions for free exercise purposes because, as Doug has argued in print, we would regard them as religions for establishment purpose It might be the right approach to consider atheism a religion for FE and EC purposes, just as long as we make it clear that, in fact, atheism is no more a religion than the denial of physics is physics. Constitutional necessities might require distorting ontology for important reasons, but it does not change ontology by doing so. Bobby Robert Justin Lipkin Professor of Law Widener University School of Law Delaware Ratio Juris, Contributor: http://ratiojuris.blogspot.com/ http://ratiojuris.blogspot.com/ Essentially Contested America, Editor: http://www.essentiallycontestedamerica.org/ http://www.essentiallycontestedamerica.org/ _ AOL now offers free email to everyone. Find out more about what's free from AOL at http://pr.atwola.com/promoclk/1615326657x4311227241x4298082137/aol?redir=ht tp%3A%2F%2Fwww%2Eaol%2Ecom AOL.com. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Religious exemptions for the non-religious
Doug Laycock writes: I am sitting out this discussion because I have an oral argument tomorrow (on a remedies case of no interest to this list). I don't think that plausible claims to exemption by nonbelievers arise very often, and objections to killing may comprise all or most of the list. I'm wondering why this would be so. I take it that conscientious vegetarians may raise objections much like those of people with religious dietary preferences, no? (Perhaps that is an indirect objection to killing, but quite indirect.) Likewise, secular as well as religious people may have conscientious objections to sitting in judgment on others, conscientious objections to testifying against family members, and so on, no? But neither do I think that one forfeits protection for his most deeply held moral commitments when he crosses a certain line in the evolution of theological views. And I think that one role of the Religion Clauses is to mediate religious conflict in the society, and that today they must mediate the religious-secular conflict just as in the past they mediated the Protestant-Catholic conflict and the Anglican-Baptist conflict. It is very hard for the Clauses to perform that function if one side of the conflict is outside the Clauses. Back to silence. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
