Religious Exemptions from Generally Applicable Laws:

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.

Eugene Volokh (www):
Malthus: I don't have particularly informed views on circumcision. Some say that it doesn't materially interfere with sexual function (as opposed to female genital mutilation, which apparently does); others disagree. Some say that it materially decreases the risk of some sexually transmitted diseases, both minor ones (such as yeast infections) and very serious ones (such as HIV).

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.
3.19.2009 6:08pm
Bill Poser (mail) (www):
Lest anyone think that it is only nasty Middle Easterners who have such practices, many Australian Aboriginal cultures practice(d) not only circumcision but much more extreme mutilation of the male genitalia, such as subcision.
3.19.2009 6:21pm
Occasional Lurker:
Doesn't the RFRA compelling government interest test give the court the ability to distinguish among practices based on their effects on people?
3.19.2009 6:26pm
Eugene Volokh (www):
Occasional Lurker: Absolutely -- that's its whole point.
3.19.2009 6:41pm
FWB (mail):
Textually speaking, the First does not simply prohibit Congress from "establishing" a religion, it prohibits Congress from making ANY law respecting an establishment (i.e. a religion/religious enclave/religious group as in an "establishment") of religion. IMO, Committee on Style would not have used the language of the First to simply prohibit Congress from establishing a religion. Had the desire been to merely restrict Congress from making a government religion, the wording would have been "Congress shall make no law establishing a religion." The prohibition is much broader than most wish to accept and results in keeping the government conpletely out of the churches while leaving churches to maintain an active part in government. That is to say, it is separation of state from church NOT church from state.

Dominus providebit!
3.19.2009 6:46pm
ArthurKirkland:
The required balancing tests appear to be unworkable, even to those outside the 'avoid balancing tests -- we need standards!' school of jurisprudence.

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)
3.19.2009 6:51pm
TruePath (mail) (www):
While I agree with the results regarding ayahousca I'm somewhat skeptical that the RFPAs are themselves constitutional.

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.
3.19.2009 7:04pm
ShelbyC:

compelling government interest test


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?
3.19.2009 7:06pm
Bama 1L:
You don't break the law; you go to court to get an injunction against enforcement of the law.
3.19.2009 8:14pm
smitty1e:
I, for one, think that the Amish exemption from Social Security is a real tweak of the beard for Christians around the country.
3.19.2009 8:45pm
MCM (mail):
compelling government interest test
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.
3.19.2009 10:00pm
ReaderY:
particularly when nearly all religious arguments rely in part on the supernatural and consequently are naturally impervious to reason?

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.
3.19.2009 11:07pm
ReaderY:
My basic disagreement with Smith is textual. The Free Exercise Clause protects the excercise of religion. Excercise, today as in the 18th century, connotes practice and behavior, not just belief. If the Free Exercise clause isn't interpreted to subject some domain of practice and behavior to special constitutional protection, I don't see how such an interpretation can be squared with the text. Obviously any attempt to define the domain of behavior covered is subject to difficulties, but claiming the clause has no behavioral scope simply because characterizing that scope would be difficult strikes as constitutional escapism, not constitutional interpretation. Isn't dealing with the difficult stuff what judges are paid for?
3.19.2009 11:13pm
einhverfr (mail) (www):
The RFRA is an interesting law, but my understanding is it only binds Congress, not the States. In short it means that there are religious exemptions from federal laws for things like drug use, but not from state and local regulations (like zoning ordinances).

So while I favor the RFRA, we need equivalent acts at the State level.
3.19.2009 11:53pm
J. Aldridge:
Crazy to think there are some who think it is the duty of federal courts to declare religious exemptions! The long practice of criminalizing religious practices that had no basis in Christianity worked very well in all the states and territories.
3.20.2009 4:06am
David Schwartz (mail):
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.
That's flat out nonsense.

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.
3.20.2009 7:42am
Bama 1L:
einhverfr, something like half the states have passed their own RFRAs. Who knew Smith would be so unpopular? RLUIPA, another federal law passed after RFRA was found inapplicable to the states, should take care of the zoning problems.
3.20.2009 8:53am
mickel angelo (mail) (www):
MESSAGE
3.20.2009 10:39am
Clayton E. Cramer (mail) (www):

The long practice of criminalizing religious practices that had no basis in Christianity worked very well in all the states and territories.
The federal ban on polygamy, however, wasn't tied to a particular religious belief. If you were polygamous because you were Mormon, or because you were a secularist who liked having multiple wives, it didn't matter: you were still breaking the same law. Whether your motivation was religious or hedonistic, you broke the same law, and suffered the same penalty.

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.
3.20.2009 11:41am
ShelbyC:
MM:


Do you even know what it is?


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?
3.20.2009 12:30pm
Esquire:
Religious liberty should be as close as anything can get to an absolute. Short of actively and directly interfering with another's life, liberty, or property -- the government should have no power to restrict anything rooted in sincere religious conviction.

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...)
3.20.2009 5:44pm
Joshua House (mail) (www):
Wasn't the RFRA struck down in Flores, at least in so much as it applies to local and state governments? Is there any question lingering as to its constitutionality on the federal level?
3.20.2009 5:54pm
Esquire:
The plain text of the free exercise clause is the best RFRA there is -- at least at the federal level (I won't get into incorporation).

How can a law that merely reiterates a portion of a consitutional mandate be unconstitutional?
3.20.2009 6:01pm
ShelbyC:

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:

(1) substantially burdens people's religious exercise, and (2) granting the exemption doesn't sufficiently undermine any compelling government interest.


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.
3.20.2009 6:57pm
Esquire:
My point was that the plain text of the free exercise clause automatically allows you to "drink your wacky tea" regardless of any "compelling governmental interests." (The RFRA doesn't even go as far as the free exercise clause already goes!)
3.20.2009 7:15pm
einhverfr (mail) (www):
Esquire:

How can a law that merely reiterates a portion of a consitutional mandate be unconstitutional?


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.
3.20.2009 7:52pm
Benjam (mail):
My primary concern with Smith is also textual. Justice Scalia's interpretation of the Free Exercise clause renders it a mere redundancy to the Equal Protection clause. Granted, this is not an a priori constitutional infirmity since the EP clause followed the Constitution by nearly a century. Yet it seems somehow hollow to imagine that the special protection afforded to religious exercise under the First Amendment can be reduced to a simple subset of the protected classes which the government may not target under EP.

Male circumcision is BAD.
3.20.2009 8:43pm
BlelpexSenkip (mail) (www):
[b]Just a test.[/b]
good a test. on bumf on newborn babe nourish, cradle caps, mollycoddle flay foster and other parenthood and training resources from . test
3.21.2009 12:37am
ReaderY:

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".


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.
3.22.2009 1:59am
ReaderY:
I should mention that, while the above assumes lions exist and that I've seen a lion, I actually have no evidence of this either. The only reason I have to believe I've seen a lion is that people tell me the thing is a lion. I have only their say-so. And of course the only reason I have to believe that human words are different in character from other noises is that (1) people tell me they are and (2) it seems to work, especially when I want to reproduce. People who believe human noises are not different from natural ones seem to have such difficulty reproducing, it seems the only ones who survive are those with a certain type of faith. But it's true or not I don't know.

I suspect the main reason people believe scientists is that they think it will help them reproduce - nothing to do with evidence at all.
3.22.2009 2:04am
ReaderY:
In other words, are actual life is utterly full of amulets we would be foolish to risk our lives or fortunes testing. Only in a world where propositions can be tested at no risk -- a fantasy world -- could be belief in amulets be thought nonsense rather than an inevitable correlary of life's inherent risk and uncertainty.
3.22.2009 2:10am
Joshua Coffman (mail):
As a fortunate bystander of the conversation may I say that I would have to agree with ReaderY. While on the outside one may see a shell called truth, the only real truth that we can "see" is the one that we believe in. As an unlearned but curious "watcher" it has become apparent that the only way that our country is going to pull itself together will be the implementation of a/the Biblical authority. As a general whole our country has tried to adapt to other religions and mindsets and we have corroded the foundations that were established in the beginning of our country. If we were to follow one standard and only one, we wouldn't have to make extra excuses, laws, or exceptions to the laws that we already have.

As I said, I am still observing, learning, and of course seeking for answers.
3.22.2009 3:17am
ReaderY:
My point is in no way that the Bible is correct. My point for Due Process purposes is that courts should be hesitant to overturn longstanding norms, based on claims that judges possess superior reason not available to ordinary people and this superior reason enables them to be certain that long-standing laws serve no purpose. It's not all that long ago doctors believed many organs of the human body served no purpose and thought there would be no consequences if they were taken out. We now know better, and a number of surgeries are much rarer today than they used to be. Norms may be similar. When the organ is taken out it is too late for the patient. Doctors and scientists will get new patients to observe and learn from, and don't personally suffer if a mistake is made. But we ourselves have only one life, and one country, and we suffer all the consequences of our mistakes. As the saying goes, the chicken is involved in the ham and eggs but the pig is committed. Like the difference between the chicken and the pig, the perspective of doctors may sometimes be different from that of patients. When this occurs, patients' say may be worth something and bring in a perspective that's important, despite less academic expertise. So with law professors and the citizens of a democracy. There is value in accountability to those who actually feel the pain when one turns out to be wrong. Independence, particularly indepence from from consequences is a virtue in people who judge individuals, but not necessarily a virtue in those entrusted to decide the course and fate of society as a whole.

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.
3.22.2009 10:50pm
ReaderY:
Under Smith, all the Free Exercise Clause seems to say is "suppressing religion (or a religion) is not a legitimate state interest." Such a meaning makes the Free Excercise Clause completely redundant, because the Supreme Court reached the same conclusion under the Due Process Clause.

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.
3.22.2009 11:06pm