pageok
pageok
pageok
"Specific Tenet of a Person's Religious Faith":

The Pennsylvania Religious Freedom Protection Act, 71 Penn Stats. §§ 2401 et seq., is pretty much a Religious Freedom Restoration Act, which mandates religious exemptions whenever a law substantially burdens a person's religious practice, unless applying the law to the person is narrowly tailored to a compelling government interest. But the law defines "substantial burden" -- which needs to be proved by "clear and convicing evidence" -- this way:

"Substantially burden." An agency action which does any of the following:
(1) Significantly constrains or inhibits conduct or expression mandated by a person's sincerely held religious beliefs.
(2) Significantly curtails a person's ability to express adherence to the person's religious faith.
(3) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion.
(4) Compels conduct or expression which violates a specific tenet of a person's religious faith.

But what does "specific tenet" mean, how does it differ from a nonspecific tenet, and can the specific tenet/nonspecific tenet distinction be applied without violating the Establishment Clause? The panel majority Combs v. Homer-Center School Dist. (3d Cir., decided last Thursday) leaves the state law question for state courts, concluding (correctly, I think) that there's no viable federal constitutional claim. But Judge Scirica's concurrence has an interesting discussion; I don't find it entirely persuasive, especially given the possible constitutional problems with this interpretation, but perhaps it's the best that can be done with the statutory language:

Parents rely exclusively upon the RFPA's fourth definition of “substantially burden” -- “an agency action which ... [c]ompels conduct or expression which violates a specific tenet of a person's religious faith.” Parents contend they are compelled, under threat of truancy charges, to submit the portfolio of their children's work product to the school districts for discretionary review. Parents describe the act of turning over the portfolio for discretionary review as “conduct or expression.” They point to the exercise of editorial judgment and creativity on the part of the home education supervisor as evidence of this expression. Moreover, Parents assert a “specific tenet” based upon certain religious beliefs.

First, Parents maintain their faith teaches that “education of their children, not merely the ‘religious education,’ is ‘religion.’” Parents cite, inter alia, Deuteronomy 6:5-7(NIV) (“Love the Lord your God with all your heart and with all your soul and with all your strength. These commandments that I give you today are to be upon your hearts. Impress them on your children. Talk about them when you sit at home and when you walk along the road, when you lie down and when you get up.”), Psalms 145:4(NIV) (“One generation will commend your works to another; they will tell of your mighty acts.”), Ephesians 6:4(NIV) (“Fathers, do not exasperate your children; instead, bring them up in the training and instruction of the Lord.”), and Proverbs 22:6 (“Train up a child in the way he should go and when he is old, he will not depart from it.”), for the proposition that God has directly called upon them to home educate their children.

Second, Parents contend God has assigned religious matters to the exclusive jurisdiction of the family, citing, inter alia, Luke 20:25 (“Then render to Caesar the things that are Caesar's, and to God the things that are God's.”), Pslams 127:3(NIV) (“Sons are a heritage from the Lord, children a reward from him.”), Matthew 7:6 (“Don't give what is holy to unholy people.”), 1 Corinthians 10:31 (“Whatever you do, do it all for the glory of God.”), 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), 1 Thessalonians 2:4 (“We are not trying to please men but God, who tests our hearts.”), and Acts 5:29 (“We must obey God rather than men.”). Parents contend Act 169 replaces the headship of Christ over the family, and their headship over their children, with the headship of the state over the family, citing, inter alia, 1 Corinthians 11:3(NIV) (“Now I want you to realize that the head of every man is Christ, and the head of the woman is man, and the head of Christ is God.”), Ephesians 5:23(NIV) (“For the husband is the head of the wife as Christ is the head of the church, his body, of which he is the Savior.”), and Ephesians 6:1(NIV) (“Children, obey your parents in the Lord, for this is right.”). As a result of this “specific tenet,” Parents assert a sincerely held religious belief that the school districts have no authority to compel reporting or to engage in discretionary review of their home education program.

The term “specific tenet” is not defined in the Religious Freedom Protection Act .... The Oxford English Dictionary defines “specific” as “precise or exact in respect of fulfilment, conditions, or terms; definite, explicit” and “exactly named or indicated, or capable of being so; precise, particular.” See also Merriam-Webster's Dictionary 1132 (9th ed.1990) (defining “specific” as “sharing or being those properties of something that allow it to be referred to a particular category” or as “free from ambiguity”). “Tenet” is defined as “[a] doctrine, dogma, principle, or opinion, in religion, philosophy, politics or the like, held by a school, sect, party, or person.” 2 Oxford English Dictionary 3260 (Compact ed.1971); see also Merriam-Webster's Dictionary 1215 (9th ed.1990) (defining “tenet” as “a principle, belief, or doctrine generally held to be true; especially: one held in common by members of an organization, group, movement, or profession”).

In the religious context, the term “specific tenet” is difficult to define.FN41 Even though a religious concept may be stated generally, it may, in the believer's mind, be a specific religious tenet. At one end of the spectrum, specificity may be relatively straightforward and easy to identify because the “specific tenet” is observed as an outward manifestation of a particular religious belief [for instance, a religious commandment to grow and wear a beard, a “prohibition against Saturday labor [that] is a basic tenet of the Seventh-day Adventist creed, based upon that religion's interpretation of the Holy Bible,” or religious dietary rules such as beliefs that one ought not aid others in the consumption of pork.]

At the other end of the spectrum are claims similar to Parents'. These claims cite more general and less obviously manifested concepts. This is not to undervalue these tenets which, as revelations, may be fundamental to one's religious beliefs. In these situations, however, it may be difficult to determine whether a litigant's citations to scripture or to general religious concepts articulate a “specific tenet.” Also problematic in this analysis are religious tenets that may be viewed as both general and specific. See, e.g., Exodus 20:7 (“Thou shalt not take the name of the LORD thy God in vain, for the LORD will not hold him guiltless that taketh his name in vain.”); Exodus 20:12 (“Honor thy father and thy mother that thy days may be long upon the land which the LORD thy God giveth thee.”).

Furthermore, the RFPA definition of “substantially burden” appears to create some tension between state and federal law. The United States Supreme Court has cautioned against making religious interpretations in the First Amendment context. “Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.” “It is no more appropriate for judges to determine the ‘centrality’ of religious beliefs before applying a ‘compelling interest’ test in the free exercise field, than it would be for them to determine the ‘importance’ of ideas before applying the ‘compelling interest’ test in the free speech field.” “Courts should not undertake to dissect religious beliefs ... because [the believer's] beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.” “Courts are not arbiters of scriptural interpretation.” Additionally, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc to 2000cc-5, “does not permit a court to determine whether the belief or practice in question is ‘compelled by, or central to, a system of religious belief.’”

Nevertheless, the Pennsylvania General Assembly's statutory definition of “substantially burden” appears to require courts to inquire into, inter alia, whether an activity is fundamental to a person's religion or whether a person is compelled to violate a specific tenet of their religious faith. Arguably, a violation of a general tenet might substantially burden one's religious faith. But that was not what the Pennsylvania General Assembly proscribed. The statutory language shifts the burden of establishing a compelling interest and least restrictive means to the state actor only after the violation of a specific tenet, which must mean something different from a general tenet. As noted, the dilemma is especially striking because, in the view of the believer, the violation of a general tenet may very well substantially burden one's religious faith.

Nevertheless, given the normal usage of the term, it is difficult to see that Parents have cited a specific tenet that would prohibit reporting requirements and discretionary school district review of their children's educational progress. Instead, they reference general, but nonetheless important, religious tenets, see, e.g., Luke 20:25 (“Then render to Caesar the things that are Caesar's, and to God the things that are God's.”); 2 Timothy 2:15 (“Be diligent to present yourself approved to God.”), to assert that local school districts have no authority to conduct a limited review of their children's educational progress. In addition, under RFPA's fourth definition of “substantially burden,” a party must establish a nexus between the specific tenet and the compelled violation, a nexus that Parents have not established here.

Furthermore, the inconsistencies in Parents' complaints, depositions, briefs and appellate oral argument suggest the difficulty in identifying a specific tenet (as opposed to a general tenet) and its attendant consequences. In their complaints, briefs to the district court, and some deposition testimony, Parents asserted a “specific tenet” that the state “lacks the jurisdiction” over their children's education, i.e., that no level of state review would be permissible. [Footnote: Although it is not entirely clear, I understand Parents' argument to mean that the natural consequence of their asserted specific tenet is that the state has no jurisdiction over home-schooling.] But at oral argument, Parents implied that their asserted “tenet” might allow non-discretionary review of their home education programs. See also Parents Reply Br. at 8 (“Parents do not contend that the government may not establish any standards to govern home education. Rather, the Parents' core objection ... is that their religious beliefs forbid them from submitting their religious education of their children to the discretionary review of a governmental official.”). Yet it is problematic whether this interpretation of “non-discretionary” review would amount to any review at all.

Based upon the plain language of the RFPA, Parents have failed to prove by clear and convincing evidence that they have been compelled or will likely be compelled to violate a specific tenet of their religious faith. Accordingly, Parents cannot sustain their cause of action under the Pennsylvania RFPA.

See also the ACLU's amicus brief supporting the homeschoolers, cowritten by lawprof Christopher Lund, though that focuses on broader questions related to the definition of "substantial burden."

Frater Plotter:
One obvious possible definition of a "specific tenet" is one that is characteristic of a particular religion rather than being a general ethical principle.

So, for instance, many regard that their religion commands them to refrain from financially supporting evildoers. This is not, however, a specific tenet, since it is felt by many people of all faiths and of no faith at all.

Thus, the Pennsylvania RFPA does not excuse residents from paying their taxes on the grounds that the government of Pennsylvania sometimes does evil.
8.25.2008 8:51pm
Eugene Volokh (www):
Frater Plotter: I don't think that's a common meaning of "specific tenet" in such contexts. For instance, I take it that one would agree that the ban on eating pork, and the ban on working Saturdays, are specific tenets of Judaism. But the ban on eating pork is shared with Islam, and the ban on working Saturdays is shared with Seventh-Day Adventists (quite likely because of the shared roots of Judaism, Christianity, and Islam).

But beyond this, applying your definition would require courts to decide what constitutes a "particular religion." At what level of granularity would we define it: Christianity? Protestantism? Methodism? Does Christianity include Mormonism? Does Judaism include Jews for Jesus?

If "Protestantism" is "a particular religion," then many Christian tenets aren't characteristic of that particular religion, because they are shared with Catholicism and Orthodox Christianity. If "Christianity" is a "particular religion" that excludes Mormonism, then many Christian tenets aren't characteristic of that particular religion, either, because they are shared with Mormonism. On the other hand, if Christianity is viewed as just a form of Judaism (albeit, to some, a heretical one), then many more tenets would be characteristic of that particular religion. Yet there's no objective perspective from which a secular court can decide whether to define "a particular religion" narrowly or broadly.
8.25.2008 9:05pm
Lior:
I think the court takes an awfully narrow interpretation of "tenet" -- if it's not literally in the bible it doesn't count.

The bible prohibits cooking a kid goat in its monther's milk. This has been interpreted to prohibit eating dairy and meat together, including specific time intervals between such items (the intervals depend on the interpreter, of course). Does this make Kashrut not a "specific tenet" of Judaism?

The Christian bible says "Fathers, do not exasperate your children; instead, bring them up in the training and instruction of the Lord" and "Don't give what is holy to unholy people." Just like the verse I mentioned first, it is possible to interpret the combination of these two verses in many ways, and in particular to mean that Fathers are responsible for the education of their children, and that they are not answerable in this to anyone but God. That would be a specific tenet of these people's beliefs.

Probably this particular community is too small to spawn an industry of books setting out their interpretations and discussing and debating them, but this should not mean that these aren't "specific tenets".

The real problem are laws like the RFRA which grant extra rights to the religious, or place religiously-motivated preferences above other presonal choices. Beyond being unfair, they cannot be adjudicated by courts of law.
8.25.2008 9:10pm
anon.:
The real problem are laws like the RFRA which grant extra rights to the religious, or place religiously-motivated preferences above other presonal choices. Beyond being unfair, they cannot be adjudicated by courts of law.

Ding, ding, ding! Many atheists hold all sorts of beliefs about what actions they are philosophically compelled/prohibited from performing, and hold them just as sincerely as theists do their beliefs (don't believe me, have a conversation with an Objectivist). There's no reason to give one a get-out-of-legal-obligation-free card but not the other.
8.25.2008 9:29pm
darelf:
Isn't the problem that the Constitution itself sets religion aside with special preferences? In fact, Jefferson ( a pox upon him ) believed that was exactly what the First Amendment was for, protecting religion from the State. ( see his letter to the Danbury Baptists )

All in all, as I despise the public education system and am myself a Christian that homeschools, I have a certain bias.
8.25.2008 9:36pm
Lior:
The problem is that the state interferes today with many things the state didn't in the past. When the state didn't interfere with education, people's religiously motivated opinions on education didn't matter. The Constitution does set aside a special preference to religion, but it should have been pretty minor. The freedom of association clause pretty much already covers the "organized religion" part of the free exercize clause. The "personal religion" part was not something the federal government had the power to interfere with anyway.

As to state actions, the 1st by its terms only applies to Congress. At the time, the Constitution of New Jersey decalimed that
no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles;

This says nothing, for example, about the civil rights of Catholics, and was entirely consistent.

As I said above, though, the problem is not with the Constitution. The problem is that saying "God said I don't have to follow this law" can be a better excuse for not obeying the law than an intellectual argument why the law is bad. Such a legal regime is a clear indication that something has gone horribly wrong.
8.25.2008 10:02pm
Esquire:
NO WAY can lefties complain about giving "special" free exercise protection to theistic (vs. non-theistic) philosophies -- after years of insisting that the establishment clause restricts only "religious" worldviews. Christians have to let the state promote values they don't often share, but when they try to counter it's all about "separation of church and state."

I actually think the substance of RFRA is mandated by the free exercise clause.

If the establishment clause only targets theistic values, then the free exercise clause should be at least be some kind of special shield.
8.25.2008 10:21pm
David Schwartz (mail):
Denies a person a reasonable opportunity to engage in activities which are fundamental to the person's religion.
It will be interesting to see how State courts determine what is "fundamental" to a person's religion and what is not.
8.25.2008 10:31pm
Oren:
Christians have to let the state promote values they don't often share
What does that even mean? The State promotes all sorts of absurd nonsense that I disagree with and I've never considered it to be a reflection of me. My endorsement of a particular value and the state's endorsement of a particular value have absolutely nothing whatsoever to do with one another.
8.25.2008 10:32pm
Esquire:
I was referring to things like the "neutrality" rule (which is utterly impossible anyway, since there's no such thing as an absolutely neutral worldview), and the Lemmon test...

e.g., if hanging up the ten commandments is "establishing" a Judeo-Christian value system -- to the offense of secularists -- then the state recognizing SSM (for example) is "establishing" the opposite.
8.25.2008 10:41pm
Brian K (mail):
Esquire,

you can't have it both ways. either there is a separation of church of state or there isn't. if you want the right to discriminate against gays, for example, despite laws against it then don't be surprised when the government and people resist turning this country into a theocracy.

or, to grossly paraphrase oren, lay off the crack...it's rotting your brain.
8.25.2008 11:19pm
Oren:
Grossly indeed!
8.25.2008 11:29pm
Lior:
Esquire: does the state's recognition of Catholic marriage "establish" the Catholic religion? If not, then why does state recognition of a same-sex Reform-Jewish marriage "establish" Reform Judaism as a state religion?

The establishment clause, by its terms, restricts only reglious statements: it says that the United States does not have a national religion. It does not prohibit Congress from mandating Federal Agencies to use only Newtonian mechanics, for example, even if such policy would be the end of the GPS system.

If you asked me whether a display of the ten commandments rises to the leve of "establishment of religion" (or is, for that matter, a "law made by Congress") I would say that it isn't. But that is a different issue.
8.25.2008 11:55pm
Brian K (mail):
haha :)
8.25.2008 11:57pm
Esquire:
Umm...I think my point was that the secularists want it "both ways." They want the state to promote their values (and sometimes even impose them, to the appalling oppression of, say, Evangelical photographers or Catholic charities!) but scream bloody murder when the religious right does it (and much more mildly and less coercively at that).

So, they get to "establish" their worldview AND deny "free exercise" to their opponents all in one swoop!

If, for example, anti-gay viewpoints, or supernaturalist metaphysical philosophies are religious, then so are their opposites.
8.26.2008 12:00am
Brian K (mail):
...then the state recognizing SSM (for example) is "establishing" the opposite.

this resumes that all judeo-christians are against SSM which most certainly not true. do you want the government choosing which sect of a religion is the "true" one for the purposes of determining when something is "establish[ed]"?

on another note, i didn't realize you were pro-polygamy. afterall, our anti-polygamy laws "offend" some religions by promoting beliefs that they don't share.
8.26.2008 12:04am
Brian K (mail):
i know what your point was, i was just pointing out how hypocritical it was.

(and much more mildly and less coercively at that)
this one most certainly tops my joke as most funniest thing said on this thread.
8.26.2008 12:07am
Esquire:
Lior, I think that it's dangerous to discriminate among equally subjective philosophical worldviews and value systems by classifying those one disagrees with as "religious."

Ontological naturalism, secular humanism, and even many approaches to agnosticism are all "religious" in the sense that they are all subjective value systems and worldviews. If my diagreement with an atheist is "religion," then so is his disagreement with me.

I suspect we may agree that the threshhold for "establishment" should be higher than the hair-trigger it's become today, but I mainly just resent the double-standard against theistic worldviews that's crept into the caselaw.

As for your initial point, I'd probably be willing to privatize marriage altogether to avert such controversies, but that's my libertarian streak.
8.26.2008 12:07am
Esquire:
Brian, my argument certainly doesn't require taking any position on who is "correct" about Christian theology; simply substitute "Evangelical" or "Conservative Christian" or whatever is sufficiently targeted...

BTW, I still cannot see any "hypocrisy," as I'm always willing to apply the same standard to all...but just asking for the double-standard against theists to be lifted. But if I'm missing someting, I'm always open to having my logic refined in an objectively analytical discourse (which may require detaching from the apparent normative disagreement you seem to have for my worldview).

Oh, and as for my point that the right is "less coercive" in it's agenda, there was actually a post on this blog (I forget which professor's) not too long ago about how the religious right is usually just asking for freedom to be "left alone" whereas the left is the side seeking to demand compliance (e.g., the photographer case).
8.26.2008 12:15am
ReaderY:
If I were a federal courts I would ask the state courts for clarification on the matter before passing judgment on the constitutionality of this aspect of the statute. The term "specific tenet" is somewhat vague. It might, perhaps in light of features of Pennsylvania law that might be obtuse to outsiders, be subject to a different construction than outsiders might give which might put the constitutional issues in a different light.
8.26.2008 12:28am
ReaderY:

The problem is that saying "God said I don't have to follow this law" can be a better excuse for not obeying the law than an intellectual argument why the law is bad. Such a legal regime is a clear indication that something has gone horribly wrong.


The problem is that the framers of the constitution intentionally set up such a "horribly wrong" legal regime by enacting a Free Exercise clause.

That said, I find myself inclined to draw lines which may have no other basis than historical tradition and my own preferences. In my view, it is reasonable for a state to inquire if a religious home school is teaching children how to read and write, but not reasonable if it requires that the curriculum include the works of Robert Mapplethorpe. But I'm not sure if I can find a strong basis for this view other than what I personally think reasonable.

I think a lot depends on what demands school districts make. I find myself disinclined to make sweeping statements about where in the broad middle between these extremes the boundary should be without the context of a specific as-applied case.
8.26.2008 12:42am
Brian K (mail):
Brian, my argument certainly doesn't require taking any position on who is "correct" about Christian theology; simply substitute "Evangelical" or "Conservative Christian" or whatever is sufficiently targeted
your examples in above posts and for what is substitutable implies that you have taken a position on what is "correct". how else can supporting SSM "establish" secularism? christians disagree on what is "christian". no matter what policy the government holds it will go against some groups belief of what christianity is...unless of course there is a correct type of christianity.

there was actually a post on this blog (I forget which professor's) not too long ago about how the religious right is usually just asking for freedom to be "left alone" whereas the left is the side seeking to demand compliance (e.g., the photographer case).

i remember that post. the photographer wanted the right to discriminate against a subset of the population. so far so good. but if you have the right to discriminate against someone else, then other people have the right to discriminate against you. which is where we run into trouble, because this latter half of the coin is what you appear to be arguing against. oh, and lets not forget the mandatory school prayer stuff or the mandatory teaching of creationism/ID stuff. oh and the rabid desire to prevent gays from marrying or even having sex, that's a big one. it's quite a stretch to call these "freedom to be left alone".
8.26.2008 12:49am
Oren:
Brian, just for reference, the "Elaine photographer case" still pends. Perhaps we should withhold judgment until a final ruling gets made?
8.26.2008 1:03am
Oren:
^^ addressed to the wrong person, strip out the first word and it's all good.
8.26.2008 1:04am
Brian K (mail):
might as well have been addressed to me...i was under the impression that it was ruled in the photographer's favor.
8.26.2008 1:18am
David Warner:
I think the phrase "religious faith" rather than "faith" alone implies that the tenet must be found in some creed shared by more than one person. One person's interpretation of one Bible passage would not suffice to establish the existence of said tenet. This reading would supply at least some barrier to capricious usage of the law.
8.26.2008 1:19am
Esquire:
I'm all for "letting people discriminate against me" in the private sphere, which is all the photographer was asking for. It's the secular left that gets the government involved with forcing people to violate their beliefs. I do think it would be equally tryrannical to force some anti-Christian person to associate with me against his beliefs (be they theistically-based or otherwise).

As for ID/creationism, those are just worldviews, just like the ontological naturalism that secularists often seek to impose via evolution (which many theists do believe in as well, but again that's moot because I'm not speaking to who is "correct" here but only what people's legal rights are). I'd really be happy just saying all such positions are dependent upon subscribing to some particular metaphysical presupposition. (I certainly don't think public schools should be able to teach that Christ didn't multiply the loaves and fishes just because it violates the scientific naturalistic principle of conservation of mass...notwithstanding the e=mc^2 caveat of course...)
8.26.2008 1:25am
Esquire:
David, by that standard some of the initial protestant reformers may not have fared too much better under our system...LOL...
8.26.2008 1:32am
Brian K (mail):
I'm all for "letting people discriminate against me" in the private sphere,
so why is it okay for the government to discriminate against gays? or did i read you incorrectly and you really are in favor of allowing the government to grant marriage licenses to gays?

It's the secular left that gets the government involved with forcing people to violate their beliefs.
so public schools don't count as the government anymore? i'm also fairly certain constitution amendments blocking SSM involve the government. you seem to be ignoring examples that don't reinforce you "worldview" about the "secular left" and religious groups.

As for ID/creationism, those are just worldviews
try telling that to the people who believe in them...it most definitely is a religious belief.

just like the ontological naturalism that secularists often seek to impose via evolution
i think bringing this statement into the realm of reality will solve your problem, at least in this specific case. evolution is the scientific explanation for how we came to be. this is why it is taught in science class. creationism/ID is the christian reason for how we came to be. this is why it is taught in church. only one can be taught in science class because only one is science. no one is attempting to impose anything on anyone. (and i would have no problem with the other one being taught in school as part of a comparative religion course).
8.26.2008 2:05am
Esquire:
I think some confusion is coming from my use of the term worldview...I'm saying "religion" is a kind/subset of worldview equivalent (and equally subjective) to the various secular worldviews.

In ALL cases, I want no government discrimination and unlimited private discrimination in ALL directions. (Gays, polygamists, and other folks I may happen to disagree with should still be totally free in the private sector to live however they wish as long as they're not asking for any more government endorsement than, say, the ACLU will allow the ten commandments.) But, if the establishment clause is going to be read to arbitrarily restrict only one side in the culture war, then at the very least the compensatory free exercise clause should slant the same way.

I'm fine with teaching evolution as "science," as long as then in philosophy class you define it clearly and say it has many assumptions for which various theologies posit intellectually legitimate alternatives. As another example, science teaches gravity, but schools may not teach that Moses thus never parted the sea. ("Science" comes from philosophy anyway, as Francis Bacon was a philosopher -- and until a couple hundred years ago the natural sciences explicitly a subset of philosophy.)
8.26.2008 2:37am
David Warner:
Esquire,

Tell me about it. Oh the tangled webs it weaves when the state takes upon itself more than it can handle. I would have been well satisfied had the separation of church and state been quickly followed by the separation of education and state as well. To answer the objection sure to follow: yep, vouchers. Call me crazy.

Still, those Protestant reformers gave pride of place to the Apostle's Creed in their worship. I doubt they would have had much difficulty distinguishing between the dictates of the individual conscience and the shared confession of the religious faith. Zwingli and Luther argued about something, after all.
8.26.2008 2:53am
justareader (mail):
You folks have all missed the real issue here: insurance.

The government wishes for us to purchase insurance (see Massachusetts, where insurance purchase is compulsary for Jews and Christians, but not Muslims).

Of course, as everyone knows, buying insurance is a legal way of gambling, and thus is against the tenets of Islam.

The question isn't whether the government can "establish" a religion. The question is whether it can kill one by forcing Muslims to pay for health insurance.

The question then is: Can the government compel its citizens to abandon tenets of their religion by forcing them to participate in gambling schemes?
8.26.2008 7:16am
David Schwartz (mail):
If, for example, anti-gay viewpoints, or supernaturalist metaphysical philosophies are religious, then so are their opposites.
Not necessarily. Two religious views can certainly oppose each other, but a religious view can oppose a non-religious view.

For example, if you think the Federal government shouldn't be allowed to compel people to work on Christmas because it's of special religious significant to you, I can take the opposite view in a non-religious way. Christmas is objectively just a day like any other, your religious views notwithstanding.

If one responds to a view based on faith with a view not based on faith, one can respond to a religious view with a non-religious view.

If you have a religious belief that the rapture will arrive in 2012 and therefore the government should not be allowed to make any plans that extend beyond that year and should run the coffers dry, I can respond with a non-religious view. Specifically that your religious views are not a sensible reason for the government to plan as if the world will end in 2012.
8.26.2008 7:32am
Brian K (mail):
In ALL cases, I want no government discrimination and unlimited private discrimination in ALL directions.
you seem to be defining discrimination in an odd way. how does not teaching something in public schools discriminate against anyone? is the government forcing you to not learn something ever? why don't constitutional amendments banning SSM discriminate against gays?

But, if the establishment clause is going to be read to arbitrarily restrict only one side in the culture war, then at the very least the compensatory free exercise clause should slant the same way.
the two are not mutually exclusive. you're free to exercise your religion anyway you want provided it does not harm me. the free exercise clause cannot be used to strip non-religious people or people of other faiths of their basic civil liberties.

it is not obvious why the two clauses should be read that way. the constitution was written for a reason to protect certain rights from governmental actions...we should respect what the constitution says, or so i've been told by quite a lot lately. there are no a la carte options to the constitution.

I'm fine with teaching evolution as "science," as long as then in philosophy class you define it clearly and say it has many assumptions for which various theologies posit intellectually legitimate alternatives.
sounds good to me...it would make for a very easy class since i have yet to see an intellectually legitimate alternative. that is the whole point behind faith and belief. when was the last time you saw a zombie walking down the street, excluding halloween of course?

As another example, science teaches gravity, but schools may not teach that Moses thus never parted the sea.
schools already don't teach this. they don't teach that he did part the sea either.
8.26.2008 9:03am
Eli08 (mail):
Re:


As I said above, though, the problem is not with the Constitution. The problem is that saying "God said I don't have to follow this law" can be a better excuse for not obeying the law than an intellectual argument why the law is bad. Such a legal regime is a clear indication that something has gone horribly wrong.

let's clarify the differences. A legislature is generally expected to take all valid opinions into account, before "expressing the will of the people". Your opinion was heard, and a majority decided otherwise. That obligates you to the law, and generally, the greater good of society would be for you to obey laws which are not your favorites, as a price of democracy. If your arguments are compelling enough to you and convincing enough to others, you may get an exemption anyway. I'm not a lawyer. What happened to the conscientious objectors when there was a draft?
Theology is something else. There's no room for compromise, it's either do this or burn in hell. Instead of giving them a voice in a debate, which will only work with the premise of compromise, Goverment accomodated its religious citizens by saying they would not pass laws that infinge on their religion, and that those that do won't be applicable to that subgroup barring a compelling goverment interest.
Also, religious oblications are quantifiable, definable. Allowing every Tom, Dick and Harry to claim a moral obligation not to get out of bed before 9:00Am, for instance, is much less so.
Third
The founders of the constitution, and possibly America today, has a a vested interest in accomodating the large number of citizens who are religious in one form or another.
I think it has less of one to the ideologues and malcontents who will always be at the fringes of every issue.
8.26.2008 9:27am
Sarcastro (www):
Esquire doesn't seem very originalist...in fact, it seems like he wants to legislate public school's curriculum from the bench!

Though he does get bonus points for using "Culture War" and for his uncompromising idealism.

Down with anti-discrimination laws! Bring back Jim Crow!
8.26.2008 9:31am
darelf:
I think the point is, these cases are so convoluted precisely because the State has become entangled in something that it has no business in. I have been on both sides, publicly educated myself and homeschooling my own children. Clearly, the State does a much poorer job altogether and in every aspect than does individual instruction by one's own parents. I mean this from any perspective, whether from a purely utilitarian one (i.e. knowledge gained) or from a religious one or from a philosophical one.

Sure, you can say that the State has an interest in having an educated populace, you can also say that the State has an equal interest in the populace having a single Religion. The benefits are approximately the same, and the drawbacks are also roughly equal.
8.26.2008 9:43am
Sarcastro (www):
darelf Great point about the benefits of a single state Religion. I think the Constitution mentions that somewhere.
8.26.2008 10:00am
Esquire:
David S. and Brian,

A key premise of mine is that I define any affirmative disbelief in any "religious tenet" as itself being per se a "religious tenet" -- in the sense that both sides ultimately rest on non-objectively-provable premises.

Arguably, even agnostic indifference towards some religious tenet could even seem to have an element of such subjectivity as well (to the extent it applies some kind of presumptive default in favor of secularism).

Secularist often have the notion that their worldview should be privileged because it's somehow more "objectively" true, even though billions of theists disagree with it (even if they simultaneously disagree among each other!).
8.26.2008 10:35am
JosephSlater (mail):
Esquire:

If I don't believe in astrology, is that a "religious belief"?
8.26.2008 10:40am
Esquire:
Sarcastro,

I believe I'm culturally conservative, politically libertarian, and judicially originalist. (Sometimes the latter two get into tension, admittedly...but I believe I'm quite consistent that the state should neither impose/promote my theology nor any "secularist" views.)

Jim Crow was an abomination by any libertarian OR originalist standard: it allowed STATE discrimination. Michael McConnell has written nicely about how Brown v. Board of Education was indeed consistent with libertarian-originalism.

(Moreover, I consider most references to such charged issues as generally attempts to evade rational discourse by silencing/intimidating other voices.)
8.26.2008 10:41am
Esquire:
Jospeh,

While astrology is certainly false by the standards of many religions (including mine) as well as by the philosphical methodology of the modern western scientific method (which some philosophers do legitimately critique as excessively reductionistic and epistomologically underinclusive), such presuppositions are all equally subjective assumptions -- which at the very least need to be disclosed accordingly. (Sorry about the run-on sentence.)

Then as for whether all non-objectively-provable assumptions are "religious," I think for 1st amendment purposes they have to be, lest the state be permitted to effectively take sides against unpopular theologies.
8.26.2008 10:52am
Sarcastro (www):
Esquire I know whenever private discrimination is brought up, I try best as I can to never mention race, since that might inhibit discussion, just like Hitler would have wanted!

And where do those liberal secularists get off controlling like the whole curriculum? Health, history, science - all of them have alternative religious formulations not taught in school! You'd think most of life has nothing to do with Religious matters!

[That being said, I am all for home schooling, if you can swing it. Though the snobbery associated with it ticks me off]
8.26.2008 10:54am
David Warner:
[That being said, I am all for home schooling, if you can swing it. Though the snobbery associated with it ticks me off]

Ever consider any snobbery running in any other direction? The satire of hobgoblins is seldom of sustained interest.
8.26.2008 11:11am
Ken Arromdee:
I'm fine with teaching evolution as "science," as long as then in philosophy class you define it clearly and say it has many assumptions for which various theologies posit intellectually legitimate alternatives. As another example, science teaches gravity, but schools may not teach that Moses thus never parted the sea.

Moses parting the sea was a one time event that is not supposed to be how gravity normally works, so any scientific investigations into gravity don't negate it. Creationism is more like a Biblically-based belief that the world is flat. Schools certainly may teach that the world isn't flat, despite contradicting religion on this point.
8.26.2008 11:12am
Sarcastro (www):
[David Warner: Private school snobbery perhaps, but I don't see a lot of snobbery about sending one's kids to public school.

By contrast, I often read in homeschooling forums stuff like:

"I can spot homeschooled kids from afar - they're the well behaved ones"

and "Oh, you work instead of home schooling? It's sad you don't care enough about your kids"]
8.26.2008 11:15am
Ken Arromdee:
Esquire I know whenever private discrimination is brought up, I try best as I can to never mention race, since that might inhibit discussion, just like Hitler would have wanted!

Jim Crow isn't private discrimination.

Besides, you probably think we should allow some forms of private discrimination. I doubt, for instance, that you think people should be forced to buy groceries from store owners whose race they don't like, or marry people whose race they don't like.
8.26.2008 11:15am
Sarcastro (www):
Ken Arromdee Jim Crow was only public, that's why Congress didn't bother to pass all those civil rights legislation that effected private institutions.

And if I aprove of some private discrimination, I must aprove of all! Thank goodness I dodged that bullet.
8.26.2008 11:20am
darelf:
I think I found a rare(?) instance of Sarcastro missing the point... weird.
8.26.2008 11:27am
David Schwartz (mail):
A key premise of mine is that I define any affirmative disbelief in any "religious tenet" as itself being per se a "religious tenet" -- in the sense that both sides ultimately rest on non-objectively-provable premises.
This will either be absolute nonsense in many cases or you will have to tell people that things that they consider "religious tenets" are in fact not religious tenets under your narrow view.

I believe what will happen if you stick to this is that every belief of every kind will have to be considered a religious tenet, since it possible to construct a religious tenet with which it is incompatible.

Give me an example of any claim or belief that would not be a religious tenet. Remember that there are religions that hold as a tenet that matter is unreal. (So even my belief that I am typing a post to a blog right now would have to be a religious tenet since it affirmatively disbelieves the tenet that keyboards are unreal.)
8.26.2008 12:22pm
David Schwartz (mail):
Essentially, your argument is effectively equivalent to saying that since all arguments are just something someone says, they're all equally good. Except you do this by calling them all "religious tenets" and, of course, there's no rational way to compare religious tenets.

I could simply respond that your belief (that any affirmative disbelief of a religious tenet is itself a religious tenet) is itself a religious tenet. I hold, as a religious tenet, then one can affirmatively disbelieve religious tenets on a scientific, non-religious basis.

Of course, there is no way to sort out our conflicting religious tenets.

So what does your argument by you? Only that reasoning between human beings is fundamentally impossible, since all they do is discuss the relative merits of their conflicting religious tenets.

Talk about lowering the level of discourse!
8.26.2008 12:27pm
Esquire:
David S.,

You have indeed fairly extrapolated the logic of my position, but I'm afraid I simply view it as the "lesser evil" to just acknowledge that all knowledge in fundamentally conditional in an absolute sense. It doesn't meant we cannot assert matter exists (or even that logic is valid, for that matter!), as most will readily stipulate to such concessions. But we at least need to admit our presuppositions/assumptions, lest the state effectively be allowed to teach that various non-falsifiable "religious tenets" are somehow objectively false.

Ken,

I find this distinction intriguing, but I'm not quite clear I can see the rigid line between "one-time events" vs. more extreme departures from empirical evidence. Isn't it just a matter of degree? Shouldn't secularists believe that I'm equally delusional for believing the sea was even parted once?
8.26.2008 2:05pm
loki13 (mail):
Esquire,

I think it is interesting that the new conservative position is absolute relatavism (how ya like those jumbo shrimp).

Somewhere, you have a PhD dissertation at a leading Marxist institution ahead of you.
8.26.2008 2:10pm
Esquire:
I still very much believe in absolute truth; there's a difference between believing something to be "false," and asserting that it's objectively falsifiable so as to seek state imposition of such a view. I actually think it's a rather principled libertarian approach for cultural conservatves to take.
8.26.2008 2:25pm
David Warner:
"the new conservative position"

What's the inverse of "pigeonhole"?

"I often read in homeschooling forums"

Who knew? Good thing the VC has someone on that beat. I'll leave it your capable hands.
8.26.2008 2:28pm
David Schwartz (mail):
But we at least need to admit our presuppositions/assumptions, lest the state effectively be allowed to teach that various non-falsifiable "religious tenets" are somehow objectively false.
I think you're now at the point where the State can't do anything. (Maybe that was your goal all along.)

In your view, what could be taught at a government-operate school? Remember, there are religions that hold that matter is unreal. Can you teach history at all?

Can you convict a person of battery in a government court? Remember, there are religions that hold that matter is unreal.

I think there are any number of religious tenets that are also objectively falsifiable. Your claim that they are "non-falsifiable" is simply false. You are welcome to hold onto it as a religious tenet if you wish, but that doesn't change the fact that it can be objectively falsified.

You are welcome to believe that life is an illusion and that it is a religious requirement that you eat a baby a day. However, the State may still punish you if you do so, even if doing so requires the State to (at least implicitly) conclude that your religious tenets are false.
8.26.2008 2:37pm
loki13 (mail):

What's the inverse of "pigeonhole"?


Condorfill?

Esquire- I'm not sure you understand what the issue is here; I think the point was brought out in the astrology discussion. Given that the state *is* involved in society (and even the most radical libertarians short of anarchists can't completely disentangle it), the question becomes: is it religion-based or religion-neutral?

You attempt to argue that being neutral towards religion means being ignorant of reality, which the state cannot do.

In education, you shouldn't be taught all possible science and non-science; there wouldn't be time. Imagine if you spent a semester learning that the planets and stars didn't affect your future, and then a semester (equal time) learning it was just a viewpoint, and now you get to hear from the astrology teacher.

How about physics, where we get equal time for all life is an illusion, so why bother with Newton and Einstein and Bohr?

As for Jesus; sure, teach the kids E=MC(squared), then teach them the IE (intelligent energy theory) that supposes that some beings can create energy and matter where there is none, like multiple loaves of bread.

How about the military? Tell them that half the time, they can use uranium depleted shells, and half the time they can't, because uranium couldn't exist according to some worldviews. And then the third half of the time (time is such a western construct) not to fight illusions!
8.26.2008 2:38pm
Esquire:
As Descartes would say (today), one can't even truly "prove" that we're not all in the matrix, for example, so really nothing is objectively falsifiable to the utmost.

Of course I do admit that reasonable people can't live this way as a practical matter. But the fact that such extreme hypotheticals can even be posited shows that religions who go say only 1% that far do have a logical foundation (albeit not an empirical one, but rigidly unyielding Humain empiricism is just yet another philosophical worldview).

Public schools don't need to go so far as teaching everything that could conceivably be true under any presuppositional belief system; they just need to admit their assumptions along the way, thereby affording dissenters the intellectual room to differ.
8.26.2008 3:00pm
JosephSlater (mail):
Esquire writes: Then as for whether all non-objectively-provable assumptions are "religious," I think for 1st amendment purposes they have to be,

So my opinion that Jimi Hendrix was a better and more influential guitar player than Jimmy Page is a "religious" belief? I really do believe that claim about Hendrix, although I don't pretend it can be proven objectively. Is a belief that one political candidate is better than the other for the country (or state or town) a "religious" belief? It can't be proven objectively, at least in the vast majority of cases. Is my belief that the orginal Olympic "dream" basketball team, in their prime, could have beaten the 2008 team in their prime "religious"?
8.26.2008 3:27pm
Esquire:
I think a problem is that we both want to use the "slippery slope" argument in opposite directions.

You'll say we can't defer to various absurd religious tenets because it's logistically unworkable, and I'll say we can't NOT defer to everyone to some extent because any religious tenet could seem "absurd" to some committed secularist. (I've had many atheists assert that no "rational" person could believe in things like the resurrection, virgin birth, etc. There was actually a blog post on this a while ago, about Sam Brownback and other GOP candidates who don't believe in evolution...)

I'm not a young-earth creationist, but if I go along with schools teaching that it's untrue, then the next thing I know they'll be coming after some other tenet that I do care about...
8.26.2008 3:28pm
loki13 (mail):
Esquire,

The difference is whether we should allow schools to teach science (evolution, e=mc2 etc.) unfettered. If you want to teach kids your kids, privately, that irregardless of science that Jesus did make the loaves, that Moses did part the Red Sea, and that God did create the earth, so be it. I think it's always healthy to challenge preconceptions; but we have enough trouble in schools just teaching basic science (and math, and reading) let alone teaching kids that every subject could be right or wrong depending on thousands of points of view that are't empirically testable and aren't mirrored by reality.
8.26.2008 3:50pm
Lior:
The following is written crassly intentionally. There is simply no other way to respond.

@Eli08:
[principled arguments are one thing] Theology is something else ... it's either do this or burn in hell.


This is not a response. What you are basically saying is: those people whose personable preferences are backed by the irrational belief "God said so" deserve more consideration than people whose personal preferences are backed by the irrational belief "I said so" even though this putative "God" does not exist (objectively) outside the head of the person making the statement. If you were making an argument that religious people suffer from some kind of "diminished capacity" that, like children, limits their ability to tell right from wrong, we might go somewhere. But your argument is rather more discriminatory: the religious and the freethinking get to vote based on their preferences. But only those who think for themselves are required to actually accept the resulting vote -- their principles are somehow less sacred.

In specific terms, you seem to say that the person who says "my children will burn in hell unless I home-school them" does not have to follow a law that the person who says "my children will not be educated unless I home-school them". Both of the statements are personal beliefs.

If we should distinguish between them then certainly the person who bases his child-rearing decisions on irrational fears, old superstitions, and has demonstrated considerable credulity and tendency to appeal to mythical external authorities should be deemed far less capable as an educator than the person who is going to impart to his children the principle thinking for themselves.
8.26.2008 5:09pm
David Warner:
"What's the inverse of "pigeonhole"?

Condorfill?"

Doh! Finally a response worthy of your namesake.

Ad fontes:

"I think it is interesting that the new conservative position is absolute relatavism"

Might want to try a larger sample size than one....
8.26.2008 9:29pm
Eli08 (mail):
Lior

In specific terms, you seem to say that the person who says "my children will burn in hell unless I home-school them" does not have to follow a law that the person who says "my children will not be educated unless I home-school them". Both of the statements are personal beliefs.


In a word, yes. I'm saying that the law deems the legislature and majority goverment qualified to assess your rational opinion, and disagree with it. If there is a law against home schooling, the majority opinion is that you can educate your kids in a school. The law does not grant the goverment the right to determine which beliefs are superstition or credulous. In the eyes of the law they all have an equal (limited?) validity. There is no rational argument that can be made against an irrational belief. The only option you have is either force someone to violate it, or accomodate it. Barring a compelling state interest, Americans have chosen to accomodate it.
8.28.2008 5:53am
David Schwartz (mail):
The law does not grant the goverment the right to determine which beliefs are superstition or credulous. In the eyes of the law they all have an equal (limited?) validity. There is no rational argument that can be made against an irrational belief. The only option you have is either force someone to violate it, or accomodate it. Barring a compelling state interest, Americans have chosen to accomodate it.
You have an internal contradiction. You have said:

1) The government doesn't have the right to decide which beliefs are rational and which are based on superstition.

2) The government must invoke accommodation for beliefs based on superstition but not beliefs based on reason.

Do you not see a slight inconsistency here?
8.28.2008 1:59pm