Saturday, November 7, 2015

Hall on Religious Liberty Accomodations

Writing at The Daily Signal, Mark David Hall argues for religious accommodations. A taste:
In the midst of World War II, some schoolchildren refused to salute and pledge allegiance to the American flag for religious reasons. In spite of pleas that state laws requiring these practices were necessary to promote national unity, the United States Supreme Court ruled in 1943 that the First Amendment demanded an exemption for these students. America was still able to win the war.

During Prohibition, religious Americans were permitted to use wine for sacramental purposes. Today, Native Americans are allowed to use the narcotic peyote in religious ceremonies. The abuse of alcohol and drugs has caused great harm, but few would attribute this damage to these accommodations.

In Wisconsin v. Yoder (1972), the Supreme Court famously ruled that Amish families could not be forced to violate their religious convictions by sending their children to public schools. Quakers and others are permitted to affirm rather than swear oaths, in spite of concerns that allowing them to do so poses a risk to the integrity of the judicial system.
The short piece mainly argues for such accommodations on policy as opposed to constitutional grounds and that is good because whether the First Amendment's Free Exercise clause, properly understood, guarantees such is a complicated matter contested on grounds that transcend politics. Legal scholars on the Left and Right fall on both sides of this question.

Justice Scalia, Philip Hamburger and Marci Hamilton on the one side (that the Free Exercise Clause doesn't guarantee such accommodations) v.  Justice O'Connor, Douglas Laycock and Michael McConnell on the other (that the FEC does).

I endorse the notion in Smith that the FEC clause does NOT guarantee such accommodations on constitutional grounds. But on policy grounds (statutes, etc.), I support such. Likewise as a libertarian I believe every consenting adult should be able to do peyote regardless of the motivation behind the action.


Tom Van Dyke said...

I endorse the notion in Smith that the FEC clause does NOT guarantee such accommodations on constitutional grounds. But on policy grounds (statutes, etc.), I support such. Likewise as a libertarian I believe every consenting adult should be able to do peyote regardless of the motivation behind the action.

Precisely the intention of the Religious Freedom Restoration Act [RFRA], passed by the GOP Congress and signed by Bill Clinton. It directs agencies of the government to accommodate religious belief and infringe on it only when there is a compelling government interest that makes it necessary.

Ironically--or perhaps not ironically--that it was the famous "peyote" case Employment Division, Department of Human Resources of Oregon v. Smith 494 U.S. 872 (1990) that led the "religious Right"--the GOP--to enact the law in favor of religious freedom, in this case the use of peyote.

RFRA was the thread on which the Obama administration's 5-4 defeat in the Hobby Lobby case hung, not the Establishment Clause itself. It's my personal opinion that the administration bringing the contraception case before the Supreme Court was an unnecessary and brutish provocation against hundreds of years of American custom and practice of religious tolerance.

This isn't over yet. The Supreme Court will hear

Nuns against Obama, or rather, vice-versa. This is an ugly page in history. Not even the infidel Jefferson would have done this.

Ray Soller said...

Mark Hall wrote a similar piece, Accommodations and the Common Good, that was posted back on 10/26/2015.

Here's a snippet: Swearing Oaths
Historically, oaths have been seen as essential for ensuring the loyalty and fidelity of citizens and elected officials. They were also viewed as critically important for the effective functioning of judicial systems. In his famous Farewell Address, President George Washington wrote that:
Of all the dispositions and habits which lead to political prosperity, Religion and morality are indisputable supports…. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice?

JMS said...

The Smith decision (i.e., can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?) was a culturally ignorant travesty and a clear violation of the FEC. Scalia could not fathom according FEC rights to a minority religion like the Native American Church (in existence since around 1918), to which Al Smith belonged , and which uses peyote as a sacrament. As Professor Hall noted, communion wine used in Christian churches was exempted from Prohibition laws. There is no constitutional difference between these two “accommodations,” except Christianity is mainstream and the NAC is not.

According to Scalia, traditional concerns for religious freedom, which were originally the basis for the "compelling interest" test, by 1990 had become a "luxury" which "we cannot afford" anymore. He certainly has changed his tune since then, and we all know the real reason why (which has nothing to do with First Amendment jurisprudence).

I highly recommend Peyote vs. The State, a reworked and updated 2009 version of Garret Epps’ earlier book, To an Unknown God: Religious Freedom on Trial, published in 2001.

Tom Van Dyke said...

The majority in Smith had a prudential point. The Constitution is not a suicide pact, whose abstractions and penumbras must be carried to the extreme, regardless of the destruction to the polity.

In rejecting the men's claim that Oregon's law barring peyote use under all circumstances violates their religious freedom, Justice Antonin Scalia, in writing for the majority, said that the First Amendment freedom of religion does not allow individuals t o break the law: "We have never held that an individual's beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate." He said it would be "courting anarchy" to create exceptions every time a religious group claims that a law infringes on its practices.

For example,

In the U.S. territory of Guam, lawyers for abortion rights groups have been preparing a "religious liberty" challenge to Guam's sweeping new criminal anti-abortion law. These lawyers will argue that some religious denominations hold that, in some circumstances, abortion maybe a religious duty. So, to criminalize abortion would infringe on the rights of those who consider abortion a religious duty. Following the Court's reasoning in the peyote case, Guam would not need a compelling interest before it enforces its criminal laws in a way that puts a burden on particular religious groups.

and less extreme,

The peyote ruling is also likely to strengthen the power of prosecutors to pursue criminal child abuse charges against parents who, for religious reasons, withhold medical care from their children or use severe physical punishment.

The razor here is "compelling." RFRA attempted to introduce some common sense as well as continue 250 years of American custom, that accommodation of religion should have first preference, and the government should have no other way to achieve its "compelling" goal before it restricts that freedom. Hence, since the Obama administration can successfully see to the distribution of contraceptives by other means than forcing the nuns of the Little Sisters of the Poor to be complicit in it against their religious beliefs, this current provocation is unnecessary and defies the common sense that RFRA attempts to codify.

The same is true of sacramental wine, of course. Were there a chance of widespread abuse and harm to society by giving it an exemption, a law restricting sacramental wine to say 1% alcohol would be entirely consistent with the spirit of the laws. [Tougher to do in the case of peyote.]

Unfortunately, these days there is only legalism, where the letter of the law must be taken to absurd abstract extremes ala the "pound of flesh" in The Merchant of Venice.

JMS said...

Tom, you avoided my FEC argument by resorting to the tired right-wing legal dicta from Justice Robert Jackson, "the Constitution is not a suicide pact." Whenever I hear that tired cliché, I consider sending some money to the ACLU because someone wants to restrict someone’s civil liberties in the name of _______ (fill in the blank of sham reasons).

If you want to quote Justice Jackson and defend religious liberty, try West Virginia State Board of Education v. Barnette, where he wrote:
“If there is any fixed star in our constitutional constellation it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us."

The Oregon Supreme Court first ruled correctly that Smith deserved the unemployment benefits because the state's interest in its compensation fund did not outweigh the burden that the decision placed on his FEC rights.

But, a “high or petty official” named Scalia prescribed what he considered to be “orthodox” in religion and denied Al Smith’s FEC rights. If you are going to defend Hobby Lobby or the Little Sisters of the Poor, why not defend Smith?

Tom Van Dyke said...

Anonymous JMS said...
Tom, you avoided my FEC argument by resorting to the tired right-wing legal dicta from Justice Robert Jackson, "the Constitution is not a suicide pact." Whenever I hear that tired cliché

You avoided the point, which is the prudential argument.

I like RFRA, and think Obama is way out of line forcing his amorality down the nuns' throat.

Tom Van Dyke said...