Religious exemptions for the non-religious

[David E. Guinn]

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 at 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                 

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





------------------------------------------------------------------------------


  _______________________________________________
  To post, send message to Religionlaw at 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.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20070301/dc5350e1/attachment.html