Religious exemptions for the non-religious

[Brownstein, Alan]

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: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Perry Dane
Sent: Thursday, March 01, 2007 9:05 AM
To: religionlaw at 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                 

dane at crab.rutgers.edu
www.camlaw.rutgers.edu/bio/925/
www.ssrn.com/author=48596
*******************************************************

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