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Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions
Posted by Michael E. Marotta on 5/16, 4:08am

This was a post on the "Voices for Reason" blog of the Ayn Rand Institute.  (See here.)  That summary provided links to the journal article cited here.  You may need to register to download the PDF, but no other subscription is required.  

 

"My aim here, again, is to demonstrate how thoroughly misguided the notion of religious exemptions is. The practice of granting select groups of people wholesale permission to violate perfectly good law directly collides with the mission of a proper legal system and thus undermines its efficacy." --  Page 46 Paragraph 1

 

"I will present the four strongest arguments made on behalf of religious exemptions: appeals to the First Amendment, to equality, to liberty, and to the significant role of religious identity in many people’s lives. In Part IV, I will respond to these arguments, exposing the logical infirmities that undermine each. Finally, I will consider whether differential legal treatment of individuals might ever be justified." --  Pg 46 pr 3


"Bear in mind that in a proper legal system, all government actions—all laws, policies, decisions, etc. — are ultimately justified by the sole purpose of protecting individual rights. The government’s use of its coercive power has no other valid foundation. Correspondingly, the First Amendment does not bestow on religious people the freedom to obstruct the legal system’s efficient execution of its mission. That would jeopardize others’ rights. […] For when a legal official confronts competing injunctions from a rights-guided standard pointing to one action and a religion-guided standard pointing to another, he is left to choose between them on the basis of . . . whatever he likes. The law can no longer serve as his guide." -- Pg 49 pr 2-3

 

"Note that our courts have sometimes recognized this problem. In a 19th century case concerning Mormon marriage, Justice Waite wrote that to permit laws’ violation because of religious belief “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”50 In Chandler v. James, the United States District Court for the Middle District of Alabama reasoned that “if the Free Exercise Clause protected all religious activity, it would not be possible to maintain a civil, pluralistic society.”51 And in Employment Division v. Smith, the peyote case that propelled Congress’s adoption of the Religious Freedom Restoration Act,52 Justice Scalia’s majority opinion observed that “[to] make an individual's obligation to obey . . . a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is ‘compelling’ . . . contradicts both constitutional tradition and common sense.”53
Pg 55 pr 4 - 56 pr 0

 

"On the surface, the grant of religious exemptions can seem benevolent, even generous; the language of “accommodation” is warm and welcoming. And claims of exemptions are sometimes motivated by the desire to escape laws that are unjustifiably restrictive. Many non-religious people who recognize the injustice may sympathize with the desire for relief, even if they do not themselves stand to benefit from the sought exemption. Further, exemptions’ appeal rests heavily on apparently benign cases where it seems harmless to grant them—surely, people suppose, another clerk can issue the marriage license or another party can pay for the medical insurance.


Beneath the surface, however, the damage from a regime of exemptions is grave. Hobby Lobby54 is a tragic illustration. At one level, the court’s ruling to protect the company owners’ “religious freedom” seems a victory for individual rights. Yet the ruling did not liberate all business owners to operate on the conditions that they, with willing partners, choose.55 Hobby Lobby was actually a setback for individual liberty insofar as it entrenches the insidious belief that rights are a privilege, to be enjoyed by the select, rather than the entitlement of all. Under Hobby Lobby’s premises, a person is free to run his business as he likes only if he qualifies as religious (according to the criteria that happen to be adopted by incumbents of the relevant government offices).56 Individual rights are reduced to “freedom favors”—gifts granted by our governors, contingent on a person’s standing in their good graces.
Pg 56 pr 3 - Pg 57 pr 0

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