Slate's Dopey Religious Freedom Diatribe
I just read this article written by two attorneys in the New York Attorney General's office about how courts treat religious freedom claims. They focus on two cases which, they claim, illustrate the judiciary's assault on God and the Constitution. In one, a New York village argued that a "Shabbos House" located near a hospital (a facility providing free lodging to observant Jews who want to visit their loved ones on the Sabbath but can't travel) was being operated in violation of local zoning laws and needed to be shut down. At the time the article was written the hearing had just taken place before in a U.S. District Court, so the court hasn't reached the merits of the arguments yet. Another case involved a Jewish day school that wanted to expand its facilities, and attempted to exploit a federal law proscribing zoning decisions that substantially burden religious practice. The Second Circuit "expressed doubt that the law's prohibitions could extend to any facilities that would be used for secular purposes" such as computer, music and art classes.
The article's authors argue that these cases illustrate the improper tendency on the part of courts to treat religious practices as secular activities. The authors argue that this tendency leads courts to improperly hold that state regulations directed toward secular activities are valid despite the fact that they infringe on religious practices. The authors interpret the prevailing jurisprudence as this: "If the conduct is susceptible to any secular justification, it is not entitled to religious liberty protection."
While attacking this approach as overly constrained the authors nonetheless appear to propose the bizzaro version of the same rule: If the conduct is susceptible to any religious justification, it is entitled to full religious liberty protection.
This is inconsistent with the long-standing (and, I would argue, doctrinally sound) principles that (1) a generally applicable regulation that creates an incidental burden on religious practice is valid so long as the regulation is not motivated by hostility toward a particular religious group and (2) a secular activity does not become a religious activity simply because a religious group chooses to engage in it. If a religious organization chooses to operate a school it must do so in compliance with state restrictions on the operation of schools. The Shabbos house is a closer call -- it isn't clear that the Shabbos house is actually a "transient motel" as argued by the village -- but since the court hasn't reached that issue yet it seems premature for the authors to be attacking it as part of a judicial trend. But if the Shabbos house is indeed a "motel" within the applicable statutory definition, and the state has decided that it doesn't want motels next to hospitals, the religious group isn't entitled to put it there. Put another way, two individuals who decide to engage in the same activity should not be treated differently under applicable regulations simply because one of them engages in the activity because they believe God says they should and the other one doesn't.
The authors blame the framers of the First Amendment for "our dysfunctional religion jurisprudence," claiming that "the twin mandates of permitting free exercise of religion while prohibiting its establishment by government are often on a collision course that puts the justices in the constitutional equivalent of swerving into oncoming traffic to avoid hitting a dog." If one takes the view that the Free Exercise clause creates an affirmative duty on the part of the government to facilitate religious practices, this analysis is correct. However, another view (and one supported by decades of Supreme Court precedent) is that the two religion clauses of the First Amendment are consistent and complimentary. The Establishment Clause prohibits the government from affirmatively sponsoring and supporting religion; the Free Exercise clause prohibits the government from affirmatively attacking or restraining religion. When the government acts in the secular sphere and its secular laws have either positive or negative effects on religious life (as is often the case, given our highly regulatory system of government), neither clause is implicated.
Finally, in bemoaning the difficulty of categorizing activities as either religious or secular, the authors suggest that all morality is religious in origin. It isn't a great leap from this questionable premise to the idea that, because all law is driven by values, all law is morally driven and therefore inherently religious. This, of course, is exactly the notion that the First Amendment was specifically designed to exclude from American government.
The article's authors argue that these cases illustrate the improper tendency on the part of courts to treat religious practices as secular activities. The authors argue that this tendency leads courts to improperly hold that state regulations directed toward secular activities are valid despite the fact that they infringe on religious practices. The authors interpret the prevailing jurisprudence as this: "If the conduct is susceptible to any secular justification, it is not entitled to religious liberty protection."
While attacking this approach as overly constrained the authors nonetheless appear to propose the bizzaro version of the same rule: If the conduct is susceptible to any religious justification, it is entitled to full religious liberty protection.
This is inconsistent with the long-standing (and, I would argue, doctrinally sound) principles that (1) a generally applicable regulation that creates an incidental burden on religious practice is valid so long as the regulation is not motivated by hostility toward a particular religious group and (2) a secular activity does not become a religious activity simply because a religious group chooses to engage in it. If a religious organization chooses to operate a school it must do so in compliance with state restrictions on the operation of schools. The Shabbos house is a closer call -- it isn't clear that the Shabbos house is actually a "transient motel" as argued by the village -- but since the court hasn't reached that issue yet it seems premature for the authors to be attacking it as part of a judicial trend. But if the Shabbos house is indeed a "motel" within the applicable statutory definition, and the state has decided that it doesn't want motels next to hospitals, the religious group isn't entitled to put it there. Put another way, two individuals who decide to engage in the same activity should not be treated differently under applicable regulations simply because one of them engages in the activity because they believe God says they should and the other one doesn't.
The authors blame the framers of the First Amendment for "our dysfunctional religion jurisprudence," claiming that "the twin mandates of permitting free exercise of religion while prohibiting its establishment by government are often on a collision course that puts the justices in the constitutional equivalent of swerving into oncoming traffic to avoid hitting a dog." If one takes the view that the Free Exercise clause creates an affirmative duty on the part of the government to facilitate religious practices, this analysis is correct. However, another view (and one supported by decades of Supreme Court precedent) is that the two religion clauses of the First Amendment are consistent and complimentary. The Establishment Clause prohibits the government from affirmatively sponsoring and supporting religion; the Free Exercise clause prohibits the government from affirmatively attacking or restraining religion. When the government acts in the secular sphere and its secular laws have either positive or negative effects on religious life (as is often the case, given our highly regulatory system of government), neither clause is implicated.
Finally, in bemoaning the difficulty of categorizing activities as either religious or secular, the authors suggest that all morality is religious in origin. It isn't a great leap from this questionable premise to the idea that, because all law is driven by values, all law is morally driven and therefore inherently religious. This, of course, is exactly the notion that the First Amendment was specifically designed to exclude from American government.
posted by aj at 11:53 AM
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