Religious exemptions for the non-religious

[Berg, Thomas C.]

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 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/ <http://www.camlaw.rutgers.edu/bio/925/> 
www.ssrn.com/author=48596 <http://www.ssrn.com/author=48596> 
*******************************************************

-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: application/ms-tnef
Size: 11827 bytes
Desc: not available
Url : http://lists.ucla.edu/pipermail/religionlaw/attachments/20070301/e5c9e047/attachment.bin