A commenter on the hoasca exemption thread writes:
So if my religious precept is that all infidels should be killed or thrown in jail and all girls should be given clitorectomies the government should not be compelling me to violate these precepts? Obviously there are all kinds of limits on the things people can do in the name of religion. I don't see the logic in excluding drugs from this if society has determined that drug use is harmful and is subject to a general prohibition.
Here's the thing: Society, as represented by the aggregate judgment of Congress, did not determine that drug use is subject to a general prohibition. Rather, Congress has determined that drug laws -- alongside pretty much all federal laws -- should be subject to religious exemptions when courts determine that the law (1) substantially burdens people's religious exercise, and (2) granting the exemption doesn't sufficiently undermine any compelling government interest. That's the Religious Freedom Restoration Act, passed by such a broad bipartisan coalition that the vote was unanimous in the House and 97-3 in the Senate.
So the "limits on the things people can do in the name of religion" are (as to federal laws) supposed to be set by courts, at least in the first instance. Congress could, if it wants to, carve out some statutory field -- such as drug law -- from the scope of the Religious Freedom Restoration Act, and keep courts from carving out exemptions. But it hasn't. (I discuss all this in very great detail in my A Common-Law Model for Religious Exemptions article, which argues both that jurisdiction-by-jurisdiction RFRAs are generally a good statutory rule, and that Employment Division v. Smith was right in generally rejecting religious exemptions as a constitutional rule.)
Now some might well think that RFRA shouldn't have been enacted. But now that it has been, they can't appeal to "societ[al] determin[ation]" that federal laws should be uniformly enforced, including against religious objectors -- no such determination has been made.
I don't think that there's any strong principle of bodily integrity that should categorically forbid this regardless of the facts. Nor do I think that there's any strong principle of parental rights (religious or otherwise) that should categorically protect this regardless of the facts. So before making an informed public policy judgment on this, I'd have to try to figure out the facts.
Dominus providebit!
To validate a claim of religious belief, the government would be required to determine first whether a belief system constitutes a religion, and then to assess the legitimacy of an individual's claim to religious belief.
The problems associated with the first point are enormous; how is anyone to distinguish "legitimate" or "real" religions from unworthy pretenders (particularly when nearly all religious arguments rely in part on the supernatural and consequently are naturally impervious to reason)? Every religion started with a few people sharing a system of belief most of their contemporaries would not share and most of the unconverted would find peculiar or worse. Today's handful of people with strange ideas -- likely to be ridiculed by fellow citizens or dismissed by a judge or at odds with current law -- are a past century's Mormons or Scientologists, an earlier century's Quakers or Shakers, or a past millennium's Muslims or Christians or Jews.
The problems associated with the second point are similarly severe: Who is a believer? What about a guy who never attends church but is on the membership roster and periodically sends a check? Are the contributions suspect if he regularly lands the church's construction contracts? What if someone plainly and daily flouts the religion's teachings but attends weekly services? What about a woman who never attends, never contributes, but claims that she studies and prays privately? The prickly points in this thicket seem endless.
I have not thought or studied this problem through to reliable conclusion, but I find it hard to justify allowing one person to wear a yarmulke while denying another that privilege, or allowing one inmate a meatless Friday menu while refusing another person that privilege, or enabling one person to drink a particular tea while banning its use by others, or enabling a person to determine which of an employer's customers he is willing to serve without extending that privilege to the next employee? I also do not believe it appropriate to distinguish heartfelt points of conscience on the basis of whether one claimant can point to elaborate robes, opulent mansions, or similar trappings. Perhaps this point will be illustrated more vividly when gays, marijuana advocates, antiwar groups and others recognize and claim the legal and tax benefits associated with an assertion that their beliefs constitute a religion.
P.S. Does anyone know how the "use" of "sacramental wine" during Prohibition -- which, I have been told by reliable sources, was a booming business for vintners and certain churches -- was handled from a legal perspective?
(most of this transplanted from another thread)
Ultimately the problem is that, as the prior comment suggests, require that judges make determinations about whether something is a valid religion/religious belief.
I mean if I claim that I have a religious belief requiring I get high on Ayahusca 4 times a year but show no other outward signs of religious devotion judges aren't going to protect my use under the RFPA. Or to put the point differently I can't avoid drug laws just by claiming it's a religious belief. Moreover, it's doubtful that merely being a hippy and thinking that this kind of psychedlic usage is vital to one's spiritual development isn't going to fly either.
So my question is how this fails to be a law respecting an establishment of religion. The government here is accrediting certain groups/practices as "real religions" and granting them special rights as a result while other practices are deemed not to be real religions. I fail to see how this is any different than a law which granted special rights only to individuals who believe a supreme being demands they rest on sunday but not to those who believe a polythesitic pantheon demands sunday rest.
I don't have a problem with the legislature carving out specific exemptions to laws with the motivation of avoiding placing a burden on religious belief, e.g., Ayahusca can be consumed under such and such conditions, but I find it troubling that RFPA type laws effectively require the government to rule on what's a "real" religion that I find troubling.
How is this not unconstitutionally vague? If I'm looking to practice my religion, how do I determine if the law I'm breaking furthers a compelling governmental interest?
Do you even know what it is?
This will get you started.
Isn't that a bit of of an oxymoron? After all, reason is supernatural. It has no natural existence. It's a human belief. We accept the whole idea that there is some sort of innate correspondence between the way human thought processes work and the way the world around us works essentially on faith, and because our lives seem to work OK if we believe, essentially the same reasons religious people have for theistic propositions. We can't prove it. Same with propositions of logic. We can't prove them either -- any method of proof would require reliance on precisely the things we're trying to prove. And it's not clear it's warranted faith -- the world often behaves unreasonably, and what we observe in the world around us often as impervious to reason as what we observe through our minds.
So while I favor the RFRA, we need equivalent acts at the State level.
Suppose I choose to believe the amulet around my neck protects me from lion attacks. It seems to work, I haven't been attacked by lions. That's how beliefs accepted essentially on faith "seem to work".
On the other hand, suppose those around me are regularly attacked by lions. When I have my amulet on, the lions run away. When I don't, my life is noticeably in more danger. That's how innate correspondence between thought and the world "seem to work".
The difference is that in one case, the evidence does not disprove the proposition, and in the other case the evidence supports the proposition and demonstrates its predictive validity.
One is fath, the other is science. And they are *completely* different.
Now, this criticism of Idaho Territory's ban on office holding by those who subscribed to the doctrine of celestial marriage (not removed from Idaho's Constitution until 1984, I believe) would hold more weight. But the Supreme Court upheld that.
Your link is out of context. According to the post, the RFRA makes not undermining a compelling governmental interest an element of a defense to generally applicible laws. This is different from strict scruitiny.
How am I supposed to know if I'm entitled to the defense before I engage in my religious practice?
I do concede the need for some kind of "sincerity test," only because there are traditional civic duties like taxes and military conscription that could be excessively evaded otherwise. (I guess I can thank Eugene's infamous "test suite" for making me add that...)
How can a law that merely reiterates a portion of a consitutional mandate be unconstitutional?
Well, according to the post the RFRA creates exemptions from laws when the law:
This is different from what the free exercise clause does.
From what I understand about unconstitutional vaguness, a law has to make clear what conduct is allowed and what conduct is illegal.
So in order to decide whether or not it's safe to practice my religion and drink my wacky tea, I have to determine whether or not the law criminalizing my tea undermines a compelling governmental interest. That's kind of a tall order.
The RFRA was enacted to tell the courts what Congress thought the Free Exercise clause meant, after the Smith case (when Congress adopted a rational means analysis to religious exemptions).
Due to fun cases that followed, the court struck down the RFRA as applied to the States, but upheld it as applied to federal legislation.
Congress can restrict their own activity however they feel fit. They can't interpret the Constitution for the States however. Hence the RFRA did not accomplish exactly what it was intended to (overturn Smith v. Employment Division using the legislative process), but it did ensure that the federal government could not end up in the same position.
Male circumcision is BAD.
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Do you really have any evidence that lions people?
I certainly don't. I've never personally been attacked by a lion or seen a lion attack anyone. So I have no evidence at all that lions attack people. My only basis for believing lions attack people is authority. Certainly not evidence. My basis for believing that lions attack people isn't really stronger than my basis for believing the zoo fence keeps lions from attacking people. I'm told the zoo fence keeps lions from attacking people, but I don't have any evidence that this is true.
I could, of course, obtain evidence about whether lions attack people by jumping the zoo fence and seeing if the lions will attack me. But I don't want to, and for a very simple reason: the risks involved in finding out the truth by means of evidence would be very high. So I don't let evidence influence my thinking.
Instead, I rely on faith and authority. The zoo fence might as well be an amulet for all the evidence I have that I need protection, or that it gives it. I accept the proposition "lions attack people" on faith, and I accept the proposition "the zoo fence provides protection" on faith.
I have millions of amulets in my possession. From human diseases to computer viruses, I've never personally seen most of the things I pay money to protect me from and I don't have any direct evidence the protection works. I rely on trust, not evidence.
The difference is that I'm conscious of what I'm doing, and I don't pretend that I have actual evidence when in fact all I have is someone else's claim to have evidence.
I suspect the main reason people believe scientists is that they think it will help them reproduce - nothing to do with evidence at all.
As I said, I am still observing, learning, and of course seeking for answers.
This is a classic Burkean view. It happens that, in our society, the norms involved are often traced to the Bible (whether or not they originated there). But this is essentially a cultural coincidence. I'd say the same thing about norms arising in Moslem or Hindu culture. And I try to make the same point, for constitutional purposes, whether or not I happen to agree with the viewpoint involved as a political matter.
I acknowledge this is an aside from this thread about the Free Exercise Clause. My principle reason for a robust free exercise clause is that (1) it's a textual individual constititutional right, and (2) textual individual constitutional rights should be interpreted robustly, and (3) at the very least, there shouldn't be a different standard for rights judges of the day happen to like and those they don't.
For this reason, the idea that religious people are irrational and therefore wrong/bad strikes me as a particularly inappropriate reason for arguing that the Free Exercise Clause should be construed narrowly. One might as well argue that black people are irrational and therefore wrong/bad as grounds for a narrow construction of the Equal Protection Clause. The problem is identical in both cases. Both clauses were designed as bulworks specifically to protect religious/black people from exactly these very sorts of attitudes. And in both cases, people who don't think the protection is deserved can always lobby for repeal. The amendment clause of the constitution provides recourse for those who think a mistake has been made.
But how can an interpretation that makes a constitutional clause utterly superfluous have any legitimacy? Surely if there is any sure canon of constitutional construction that has any claim to being text-based, it's the canon that constitutional clauses cannot be presumed to be superfluous.