Freedom of Religion

Why the Best Arguments Against Religious Liberty Should Still Be Rejected

The Obama administration needs higher standards for violating the right to free exercise.

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The Little Sisters of the Poor
Courtesy: Little Sisters of the Poor

It's important to engage with your opponent's strongest argument, but not always easy to articulate something you don't agree with. So I was glad that, at a panel on religious liberty issues at the Federalist Society's annual convention yesterday, there was someone on stage to defend the Obama administration's actions in that area.

Listening to remarks from Bill Marshall, a distinguished professor at the University of North Carolina School of Law, helped clarify for me what many on the American left believe when it comes to conflicts between civil liberties (like the right not to be discriminated against) and religious liberties (like the right not to be forced into a behavior that you believe is sinful). I'm going to try to lay out what I took his argument to be—and then explain why I'm still not convinced by it.

The concern is that, since only an individual can decide what her faith requires of her, "religious liberty" could be used as a justification for any behavior whatsoever. "The problem with accommodating religious belief is religious belief is completely elastic," Marshall said. "People can believe anything they want to." Thus, the government needs a way to determine whether or not to grant an exemption to an otherwise applicable law, and for him, the answer can't be that claims of religious liberty always win out.

He's right on that. Clearly, there are some instances when no one would support an exception, as with laws against rape and murder. (That your religion requires you to make a human sacrifice does not obligate the rest of us to stand by while you kidnap virgins and burn them at the stake.) In Marshall's words, "At some point the Court has got to figure out a way to draw a line around a claim" that a law violates someone's religious liberty.

The Obama administration and its supporters would prefer to draw that line close in. As Marshall put it, they think the rule should be that personal expressions of religion must be protected but not actions "out in the marketplace" that affect the "interests of third parties." He cited as an example of the former situation the case Holt v. Hobbs, in which the Supreme Court unanimously ruled that a prison in Arkansas may not prohibit a Muslim inmate from growing a half-inch beard in accordance with the dictates of his faith. Marshall pointed out that the Obama administration defended the inmate in that case—and rightly so, since the growing of a beard is part of one's individual identity.

What doesn't fall within the narrow confines of religious liberty in Marshall's view (and, apparently, Obama's) is the baker who declines to provide the cake for a same-sex wedding, or the nonprofit hospital that opts not to offer abortifacient coverage to its employees. The administration's position is that "there is something wrong with accommodating one group when it causes harm to another," he said.

I strongly disagree, but I concede that he is at least outlining a coherent standard for deciding when religious liberty should trump and when it shouldn't. Personal behavior affects only the actor; public behavior has some measurable consequence for someone else; only the first should warrant an exemption from an otherwise applicable law. I think that's the wrong standard to use, but you can see why someone might think to draw the line there.

So why don't I agree? Because there are an infinite number of ways a person can be affected, and even harmed, by an action without their rights having been violated. If someone asks me for a dollar and I turn him down, that action has consequences for someone other than me. Before we let the government infringe on your religious liberty, it needs a better reason than just that you would otherwise act in a way that someone else would like you not to. 

But doesn't that leave unanswered the question of how to decide when to grant a religious exemption? Fortunately, there is another way out of the conundrum, and libertarianism lights us to it. The key is to differentiate between harm, which can be a nebulous concept, and aggression, which is much less so. In a world where the very specter of an offensive Halloween costume can push elite college students to emotional ruin, the reason for not allowing the law to turn on subjective perceptions should be obvious. But even more important is that harm to one side or the other is often impossible to avoid when humans come into conflict.

No doubt being turned away from your favorite bakery because of who you are is a painful experience. But it's surely just as true that forcing a cadre of Catholic nuns to violate their consciences by participating, even just a little, in the provision of contraception is also an act that would lead to mental anguish. In both cases, people are being harmed. But in only one are people having coercion used against them.

With respect to Professor Marshall, I submit that that should matter.

CORRECTION: The panel was yesterday, November 12.

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  1. Ms. Slade writes like St. Thomas Aquinas, in true Scholastic fashion – writing out the best possible defense of the wrong position, and only then defending the right position.

    Did she get a good Scholastic education?

    “In Marshall’s words, “At some point the Court has got to figure out a way to draw a line around a claim” that a law violates someone’s religious liberty.”

    Let’s see…how about that a burden on religious exercise must be the least restrictive means of carrying out a compelling government interest?

    That would empower the government to forbid human sacrifice, but not to force bakers to make gay cakes, since (a) where’s the compelling interest in gay cakes? and (b) there’s a less restrictive means of making such cakes available – permitting LGBT-affirming bakers to compete with the non-LGBT-afforming bakers.

    1. Wait, we already have that standard, thanks to the Religious Freedom Restoration Act (RFRA), signed by President Clinton in 1993 and emulated by many states.

      When debating RFRA, Congress decided that prisoners should be covered along with everyone else. The law ‘n order types tried to exclude prisoners, but in that case, law ‘n order lost. They included prisoners and the world didn’t collapse.

      Try and force a Muslim prisoner to eat pork, and see how soon they win their RFRA case. But try and force a butcher to *sell* pork (say, to a lesbian), and then it’s “how dare this…this *businessman* claim religious freedom!”

      Typical prog worldview – convicted rapists and thugs are entitled to religious freedom while honest shopkeepers have no rights.

      1. That the document’s only purpose is to restore religious freedom/belief (at least by the title) is what bothers me.

        1. You mean the fact that the law didn’t enact the Libertarian Party platform in one fell swoop?

          1. That it seems to present religion as a special belief to be protected.

            Legal discrimination like that IS a violation of equal treatment under the law

            1. The First Amendment violates equal treatment?

              The people concerned about this “special privileges” situation should start enforcing the other amendments, especially #9 and #10. Then you will find very few clashes between government and religion requiring special treatment. There would still be issues of conscientious objection to military service (but there wouldn’t be a draft, would there?) and the sanctity of the confessional (but who would want to breach that anyway), and maybe a few others, but there would be no quarrels over contraceptive mandates since these would be recognized as outside federal cognizance.

              And bear in mind that purely nontheistic beliefs can often qualify as religious.

              1. “…and the sanctity of the confessional (but who would want to breach that anyway)…”

                I’d say there would be a compelling state interest if a confession included murdering or raping someone.

                1. And congratulations, you’ve made sure that fewer murderers and rapists will confess.

            2. In the same way that different tax brackets based on income violates equal protection under the law.

              Lots of laws treat different people differently, from billionaires to murderers. Apparently, that’s not enough to justify a ruling of unconstitutionality.

    2. but not to force bakers to make gay cakes

      But currently bakers are forced to make “religious cakes.” That is, if I say I won’t to business with you because I consider your religion to be immoral, I have committed a civil rights violation.

      Let’s see…how about that a burden on religious exercise must be the least restrictive means of carrying out a compelling government interest?

      If Congress stuck to its enumerated powers, instead of micromanaging who can bake cakes for who, then issues of “burden on religious exercise” simply won’t come up. Even the notion of a “compelling government interest” is itself idiotic; what possible “interests” could “the government” have?

      1. “if I say I won’t to business with you because I consider your religion to be immoral, I have committed a civil rights violation.”

        But can invoke RFRA just like the guy who’s asked to make a gay cake.

        Though the analogy isn’t exact because the cases in the news aren’t about Christian businesspeople refuring to do business with anyone. They simply won’t cater a specific type of event they disagree with – same sex “marriage.”

        “If Congress stuck to its enumerated powers, instead of micromanaging who can bake cakes for who, then issues of “burden on religious exercise” simply won’t come up. Even the notion of a “compelling government interest” is itself idiotic; what possible “interests” could “the government” have?”

        OK, well, while we’re waiting for the Millennium, let’s protect as much liberty as we can.

        1. But can invoke RFRA just like the guy who’s asked to make a gay cake.

          No, because I can’t make a good argument that my objections are religious in nature.

          OK, well, while we’re waiting for the Millennium, let’s protect as much liberty as we can.

          Giving exemptions to churches and religions is not “protecting liberty”, it is simply government favoritism and corruption.

          1. Here’s the comment I was responding to:

            “if I say I won’t to business with you because I consider your religion to be immoral, I have committed a civil rights violation.”

            Where does one get one’s ideas of another religion’s immorality, except from one’s own sense of morality? And there’s an overlapping (not *totally* overlapping, don’t misunderstand) Venn Diagram between religion and morality.

            1. “Where does one get one’s ideas of another religion’s immorality, except from one’s own sense of morality?”
              I’m atheist/agnostic?. I can be morally judgmental nine ways to Sunday and I’ll still never have a religious objection to anything.
              ________
              ?Depending on my mood and the operative definitions.

          2. “Giving exemptions to churches and religions is not “protecting liberty”, it is simply government favoritism and corruption.”

            The corrupt part is ignoring the Ninth and Tenth Amendments (and the Privileges and Immunities Clause in the 14th Amendment).

            Enforce these constitutional provisions, and there’s lots more business freedom, yes, even for secular people.

            But to abolish the First Amendment because it’s soooo unfair to enforce this one but not the others, is exactly the opposite of the right thing to do.

            1. Would you re-criminalize marijuana, in those states where it’s legal, on the grounds that the marijuana people are corrupt favoritists who haven’t legalized meth and crank?

            2. No, it’/s the government following the Constitution. Now maybe you are wiser than the framers, who knew full well that religion helped create a better society.

              But I doubt it.

    3. Baking a cake is not a free exercise action, unless you claim your religion mandates your business be mean and nasty to those you disapprove of.

      There is no infringement going on with public accommodation laws.

  2. Isn’t this the basic question of positive rights versus negative?

  3. The key is to differentiate between harm, which can be a nebulous concept, and aggression, which is much less so.

    Indeed, micro-agression is a crystal-clear concept.

    (Seriously, I’m still thinking over the essay.)

    1. Micro-aggression is just attempting to re-label a small harm as an aggression.

      1. Calling a micro-aggression “harm” gives it too much credence. At best, some of the instances of so-called micro-aggression constitute lack of courtesy or even basic rudeness. Most micro-aggressions are in reality, however, simply basic everyday interactions (“where are you from”) but treated as akin to Klan rallies and cross burnings. Its the ultimate case of turning molehills into mountains, but without even a molehill.

  4. I’m sure this will all be sorted out in the upcoming Hillary administration.

    *shudder*

  5. What doesn’t fall within the narrow confines of religious liberty in Marshall’s view (and, apparently, Obama’s) is the baker who declines to provide the cake for a same-sex wedding, or the nonprofit hospital that opts not to offer abortifacient coverage to its employees. The administration’s position is that “there is something wrong with accommodating one group when it causes harm to another,” he said.

    I’m sorry, but I fail to see how saying “No, I’m not going to do that for you” causes harm. OK, it might hurt someone’s feelings, but that’s the problem of the person who let their feelings be hurt, not the person who said “No.”

    1. The general principle of freedom of belief is what doesn’t fall within the confines !

    2. That’s just the kind of thing I’d expect a cisnormative hetero melanin deficient Y chromosome enabled person to say.

      1. Lol, another insult from someone who knows they already lost the argument perhaps.. like some left-wing fascist would do 🙂

        1. You need to recalibrate your sarcometer.

          1. Heh, I will tell you here an now that I have decided to define fascism as someone who prefers state-mandated association over freedom of association. Whether they are left or right is not relevant unless you want to say Fascism with a capital F to refer to Italy.

            A libertarian, by contrast, is someone who supports freedom of association as the basic social right of a free society. ( it is also an individual right too )

            1. Austria:Australia::Fasicsm:Sarcasm

  6. Y’all are wasting your breath. Obumbles and his ilk don’t give half a shit about religious liberty, or any liberty for that matter.

    “…we are going to punish our enemies and reward our friends…” – Barry Obumbles.

    As I recall this despicable administration asked the SC not to hear the case on the Nuns because it would make them look bad. They aren’t going to let up, they just want the court to ignore the case.

    These shitheels can’t be gone fast enough.

  7. The problem with the “religious liberty” arguments is that none are truly based on an idea of freedom of religious belief freedom; that is just a subset of freedom of belief !!

    As long as conservative or libertarians, for that matter, fail to argue for freedom of belief as the real issue, the left wi;ll continue to attack religious freedom as some sort of discrimination for religious beliefs over others !!!

    Perhaps conservatives even believe that religious belief has protections that other beliefs don’t ! (apart from being mentioned in the constitution … a failure of that document perhaps).

    “Take my word”, the left’s goal is to discredit religious freedom by presenting it as a discrimination !! Don’t let the left pull this trick or ALL your freedom of belief will be gone !

    1. I wasn’t convinced until I saw your exclamation marks.

      1. I don’t know. The extra spaces prior to the exclamation marks still give me pause.

        1. No smiley faces. How can we be assured of non-threatening sincerity without smiley faces?

          😀

          1. Stop your microaggressing!

    2. I use the ! and BOLD to try to argue that the libertarian failure to argue at the basic level to support freedom of belief and freedom to discriminate will provide the left what it needs to validate the opposite position.

      1. That’s not bold, that’s CAPS. Also, “Take my word” doesn’t benefit from the quotation marks.

        1. Maybe not …. but I am very confident of my statement seeing everthying else that is going on in the world.. almost all is tied to some view that “evil” discrimination is involved or must be resolved.

          I could say I don’t really know but please pay attention to what I say? 😀

          1. Ah, I believe now you are talking about the right to be an asshole, which I support wholeheartedly.

            1. More insults for the idiot who doesn’t believe or understand that freedom to discriminate is a civil right ? 🙂 Maybe you don’t believe in freedom of belief either. Very illiberal.

              1. 😐

                *goes for more coffee*

            2. “the right to be an asshole, which I support wholeheartedly.”

              As everyone should. Otherwise we’re going to need a lot more prisons. Maybe just build a prison wall around the whole country.

              1. “Maybe just build a prison wall around the whole country.”

                Nativist Racist!!!! /SD

          2. Are you still trying at this? C’mon, buddy, go take some remedial troll-derp classes, read the Jezebel comment sections for a while, and come back when you can troll competently. This is just embarrassing for everyone here.

    3. Excellent point. While I think people who claim GMOs are dangerous are borderline retarded, I wouldn’t begrudge their decision not to serve them at a restaurant. Belief, regardless of its source is something those in a free society must tolerate of one another.

    4. Perhaps conservatives even believe that religious belief has protections that other beliefs don’t ! (apart from being mentioned in the constitution …

      Wouldn’t that fact that religious beliefs are protected in the constitution mean that they in fact do have protections that other beliefs do not?

      1. No, it wouldn’t. First of all, the First Amendment doesn’t grant any new rights, it simply lists a bunch of things that the Constitution already prohibits but that people thought legislators might be tempted to circumvent.

        Furthermore, the Constitution doesn’t “protect” religions, it simply says that “Congress shall make no law respecting an establishment of religion [or] impeding the free exercise of religion”. Non-profit status, anti-discrimination laws, and other religion-related civil rights laws arguably amount to “an establishment of religion”, since the government ends up deciding which religions are valid and which ones are not, so there is a good argument to be made that they are unconstitutional to begin with.

        Churches ought to be treated no different from any other private association, that is, like private clubs (golf clubs, chess clubs, etc.) or private businesses. And religious belief ought to be treated no different from any other belief.

        1. No, it wouldn’t. First of all, the First Amendment doesn’t grant any new rights

          I never said it did.

          Furthermore, the Constitution doesn’t “protect” religions, it simply says that “Congress shall make no law respecting an establishment of religion [or] impeding the free exercise of religion”.

          That sounds like “protecting” to me.

          Non-profit status, anti-discrimination laws, and other religion-related civil rights laws arguably amount to “an establishment of religion”, since the government ends up deciding which religions are valid and which ones are not, so there is a good argument to be made that they are unconstitutional to begin with.

          You could argue that, and have a good case for being correct. But that all follows from religion being protected by the 1st.

          Churches ought to be treated no different from any other private association, that is, like private clubs (golf clubs, chess clubs, etc.) or private businesses. And religious belief ought to be treated no different from any other belief.

          I agree with you, but there is a difference between “ought” and “is.” The question is, how do we get to “ought” from where we are now? I think the thing that people forget that the constitution is a limit on what government can do, not on what people can do.

          1. I think Win Bear on the right track when you say “the First Amendment doesn’t grant any new rights, it simply lists a bunch of things that the Constitution already prohibits but that people thought legislators might be tempted to circumvent.”

            I can’t remember specifics (haven’t brushed up on my early American history in a while) but there were a few State Assemblies/Legislatures at the time that required members to swear an oath of allegiance to a certain denomination (almost like a statement of faith). Perhaps the language of the 1st Amendment reflects the desire to do away with that and prevent more of the same. (I also haven’t read Madison’s notes on the convention in a while, but I think there is some commentary somewhere about that specific issue)

          2. You could argue that, and have a good case for being correct. But that all follows from religion being protected by the 1st.

            The First Amendment simply says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. It’s a really simple instruction: “don’t make any laws”. It does not say “protect religion” or “protect the free exercise of religion”.

            No, it wouldn’t. First of all, the First Amendment doesn’t grant any new rights

            I never said it did.

            You asked the question “Wouldn’t that fact that religious beliefs are protected in the constitution mean that they in fact do have protections that other beliefs do not?” And the answer is: no, religious beliefs do not have protections that other beliefs do not.

            The Constitution says: “Government shall have theses 30 enumerated powers and no other.”

            The First Amendment says: “By the way, ‘no other’ particularly means that the US government doesn’t have the following powers; we just thought we should make that clear because people tend to get confused about it.”

            All the First Amendment is is an explicit limit on government power. But that limit merely explicitly restates an implicit limit in the original Constitution. And neither the First Amendment or the Constitution create any form of protection beyond a prohibition on government to act.

            1. ” And the answer is: no, religious beliefs do not have protections that other beliefs do not.”

              Yes they do.

              “”Congress shall make no law respecting an establishment of religion [or] impeding the free exercise of religion”.”

              That is exactly what you’re claiming doesn’t exist, special protection.

              You either can’t read or are profoundly fucking stupid and dishonest.

      2. NO ! What if the constitution said you had a right to kill Jews ! It only means that the law may protect them better …. which it has, unfortunately.

        By doing so it has helped provide fuel for the argument of religious freedom as discrimination

        1. What if the constitution said you had a right to kill Jews

          Oh dear, what amendment is that?

          It only means that the law may protect them better …. which it has, unfortunately.

          So it does protect religion?

          1. I said “what if”… would you then believe it had extra protection over the general rights violation of murder ?

            Historically it has protected religion but not other beliefs in the same way as the 1st amendment mostly talks about religion.

            You could go through that amendment and perhaps never conclude there was an actual freedom of belief involved to cover all beliefs — which is what naive conservatives have done.

            1. Ivan Pike|11.13.15 @ 8:53AM| block | mute | #

              Wouldn’t that fact that religious beliefs are protected in the constitution mean that they in fact do have protections that other beliefs do not?

              hpearce|11.13.15 @ 9:04AM| block | mute | #

              NO ! What if the constitution said you had a right to kill Jews ! It only means that the law may protect them better …. which it has, unfortunately.

              hpearce|11.13.15 @ 9:55AM| block | mute | #

              Historically it has protected religion but not other beliefs in the same way as the 1st amendment mostly talks about religion.

              So which is it? Does the 1st amendment protect religion or doesn’t it? Your 9:04 post has you writing “NO !” but your 9:55 post has you writing “it has protected religion.” So which argument are you going with?

    5. As long as conservative or libertarians, for that matter, fail to argue for freedom of belief as the real issue, the left wi;ll continue to attack religious freedom as some sort of discrimination for religious beliefs over others !!!

      But the reason conservatives don’t argue for general freedom of belief is because they generally actually don’t want to protect it; conservatives generally do view religious belief as something deserving special support from government.

      1. exactly

        And the left will exploit that in their arguments with conservatives till it becomes accepted that freedom FROM discrimination over-rides religious freedom

  8. Where does the religion of the left – statism – fall into this? Because I sure as heck would like some protections from that particular brand of faith.

    1. Statism isn’t covered by civil rights legislation, so you can discriminate against statists as much as you want, unless those statists happen to be statists due to their Christian beliefs, in which case they are a protected class and the state compels you to associate with them at their leisure.

      1. The Civil Rights Laws by presenting certain classes as protected from discrimination provide the actual legal discrimination which does violate the concept to treat people equally under the law.

        1. True, but while sarcasmic referred to “statism” as the “religion of the left”, I pointed out that statism or progressivism are not actually protected classes under civil rights legislation. So, in effect, he is “protected” from that “brand of faith” because he is free to choose not to associate with statists or leftists if he so chooses.

          That is a better situation than people are in with respect to Christian conservatives, because Christian religion is actually protected under civil rights legislation.

  9. a distinguished professor

    Is there any other kind?

    1. They all think and derp the same. Pretty indistinguishable to me.

  10. According to this ACLU leaflet (pp. 2-3), the federal courts have used RFRA* to protect prisoners’ right to meals complying with their religions’ dietary rules.

    In the 10th Circuit, prisoners may not even have to pay for their special diets.

    So guess who *does* pay?

    Would Marshall give this as an example of religious freedom harming others – taxpayers? Or does “harm” only mean the psychic wounds of having to go to a different bakery for your gay cake?

    *and another federal law called RLUIPA – the Religious Land Use and Institutionalized persons Act – which specifically applies RFRA principles to prisons, mental hospitals and zoning proceedings.

  11. The administration’s position is that “there is something wrong with accommodating one group when it causes harm to another,” he said.

    I missed when “not giving someone everything they demand from you” became synonymous with “harm.”

    1. It affects interstate commerce via the market price for grievance.

      1. [Jots notes for new Grievance Exchange. Ponders pricing for Grievance Futures.]

        1. Golf clap for your wit…

    2. “there is something wrong with accommodating one group when it causes harm to another,”

      I forget, tell me again what the basic premise behind Obumblecare is?

      1. Probably that the state has the right to control your associations or your beliefs for the greater good of society.
        State-mandated control over people always sounds like fascism to me.

  12. My problem with their “best argument” is that they act as if it’s some new dilemma that no one has ever considered before. The federal RFRA addresses the “they could claim anything as a religious belief” issue with its “substantial burden on a sincerely held belief” test. There’s mountains of case law demonstrating that I can’t wake up one day and say paying taxes is sinful so I’m not going to do it anymore. Therefore I find their objections intellectually dishonest.

    1. Exactly. There are numerous cases where the sincerity of the claimed belief is challenged and, if it is demonstrated that the person does not actually believe it, he does not get the religious exemption. That’s a factual question, not a legal one.

      The fear that suddenly, say, Wal-Mart would claim to not believe in birth control is either stupid or dishonest (as so many other progtard arguments tend to be). If the multi-billion-dollar international corporation with millions of shareholders suddenly found Jesus overnight to get out of a new law, there’s no way that would stand up in Court. If, however, a strictly devout Catholic bought a controlling interest in the company and declared at the first board meeting that he was changing the bylaws of the company to follow Catholic doctrine, that’d be a very different scenario.

      1. Right. The funny part is that when large corporations actually do take these sorts of moral stances, 9 times out of 10 they’re of the “socially conscious” variety, in which confederate paraphernalia goes the way of Hobby Lobby’s abortifacients. But you know what? I’m fine with it. Sell whatever your ethical standards dictate. Ironic that one of the main criticisms of capitalism is that it lacks a moral underpinning yet the very same people that lob that criticism are the ones trying to strip morality from the decisions of business owners. At least morality they disagree with.

        1. It’s not irony when it produces the exact outcome you want.

          1. True. But I’m sure the rank and file leftist doesn’t understand the end game. Actually, I’m not convinced the puppet masters have a clear end game either. The problem with utopia is that no one has any idea what a functional one looks like (mainly because it doesn’t exist, but meh, trite John Lennon lyrics are good enough to suppress individual thought)

    2. “…intellectually dishonest.”

      That sums up the Obumbles administration nicely.

      1. Indeed. If his term were manifested in physical form it would be one giant straw man.

    3. And yet about ten years ago suddenly Christians woke up and *did* decide that long-standing laws? were sinful and was something they weren’t going to comply with anymore.

      So it’s not like Christians haven’t given us reason to expect sudden “revelations” on the permissibly of sin before.
      ________
      ?State and local non-discrimination laws/ordinances that included sexual orientation.

      1. Mind referencing what specifically you’re referring to? Which denomination? Which law? And why you’re certain the shift in belief isn’t sincere?

        1. I did reference. Those little “?” symbols indicate a footnote, which is included at the bottom of the post.

          And frankly I don’t care about denomination. It’s really not relevant as sincerity of belief isn’t measured by whether or not it’s included in your denominations teachings, just whether you say it is.

          As to your last question… I didn’t make that claim. I was just pointing out that your claim, that people can’t suddenly develop new objections to long-standing laws and be treated seriously, is not true.

          Whether you think that’s right or wrong is for you to decide, but it is what it is.

  13. Just here to see if anyone will post “Would”

  14. Churches and conservative Christians have no trouble violating other people’s right to free association, while they demand the right to free association themselves.

    As long as churches and religion are treated as special, privileged group under civil rights legislation, and receive tax breaks to boot, they should be required to comply with the same civil rights legislation, with no exceptions. If it’s OK for a Catholic or Mormon organization to compel service or association from an atheist or homosexual-run business or non-profit, the reverse should be OK as well.

    1. The answer is to nullify all “public accommodation” discrimination laws. Not double down on them. One could make the argument that they were necessary in the Jim Crow South. Even then, it was the state governments REQUIRING descrimination that necessitated federal action. Fact is, the free market can handle it with ease now. One Twitter mention of an African American denied service somewhere and holy hell gets rained down on the offending parties. Wouldn’t we want to know when a company doesn’t want our business based on who we are? So we can take our business elsewhere?

      1. Um, yeah…

        If the articles and comment sections of Reason are any indication, that’s not acceptable either. People boycotting places and people that discriminate are “attacks on the First Amendment”, “bullying” and “censorship”.

    2. Churches and conservative Christians have no trouble violating other people’s right to free association

      How so? Nothing comes to mind, where Christians have tried to force other people to associate with them, or prohibit other people from associating with each other. And, no, opposing the issuance of a state license is not prohibiting people from associating with each other.

      1. Nothing comes to mind, where Christians have tried to force other people to associate with them, or prohibit other people from associating with each other.

        There are plenty of non-discrimination cases Christians have brought in the past; you’ll have to do your own search.

    3. “Churches and conservative Christians have no trouble violating other people’s right to free association”

      That’s a problem that should be addressed on a case by case basis.

      “As long as churches and religion are treated as special, privileged group under civil rights legislation, and receive tax breaks to boot, they should be required to comply with the same civil rights legislation, with no exceptions.”

      Hmm, you’re not really making a compelling case for the overturning of the Bill or Rights and over 2 centuries of case law supporting it.

      1. Hmm, you’re not really making a compelling case for the overturning of the Bill or Rights

        The Bill of Rights doesn’t grant religious institutions or beliefs any special status. Furthermore, the Bill of Rights only prohibits government from acting, it does not compel government to act.

        and over 2 centuries of case law supporting it.

        If court decisions are your argument, well, then you should have no problem with the fact that courts are increasingly forcing religious organizations to comply with civil rights and non-discrimination laws, because that’s the new case law that’s being established.

        I think my point is a little more consistent, namely that both the old and the new case law are getting it wrong because they are simply catering to public sentiment instead of Constitutional principle.

      2. Wait, so non-discrimination laws that include sexual orientation should be thrown out whole-sale, but non-discrimination laws that include religion (that is, all of them) should be addressed on a “case by case basis”?

        Yeah, that sounds fair.

        Second, the Bill of Rights doesn’t cover non-discrimination laws or tax-exemption. Per the constitution, “Irish Need Not Apply”, “No Jews”, “Blacks Only” are perfectly permissible as acts of private entitties, just not by the government. And tax-exemptions, tax-breaks and so-on? Again, the constitution doesn’t mandate that non-profits (religious or otherwise) should be exempt or receive any of those. That’s entirely an after-the-fact matter of law, not the constitution.

  15. …personal expressions of religion must be protected but not actions “out in the marketplace” that affect the “interests of third parties.”

    In my opinion, those feeling aggrieved have a duty to retreat. If you can remove yourself from the offending situation (e.g. find new employment, contract with another baker) then you must do so before calling for the state for a remedy.

    You can claim offense just as well as the faithful can claim it, and it’s no more easily quantified by government.

    1. You can claim offense just as well as the faithful can claim it, and it’s no more easily quantified by government.

      Pointing out the holes in progderp logic is triggering, Fist. Tread carefully

    2. Of course, that assumes that “personal expressions of religion” cannot be “actions out in the marketplace that affect the interests of third parties”.

      But its trivially easy to think of examples where these are one and the same.

    3. Based on the Kim Davis case (recently) and the pharmacists case (in the mid 2000s) I think that most certainly is *your* opinion, and not a common one in the “religious liberty” crowd.

  16. “Listening to remarks from Bill Marshall, a distinguished professor at the University of North Carolina School of Law, helped clarify for me what many on the American left believe when it comes to conflicts between civil liberties (like the right not to be discriminated against) and religious liberties (like the right not to be forced into a behavior that you believe is sinful). ”

    The only REAL clarification that is necessary is to clarify that there is actually no such thing as affirmative rights or affirmative duties.

    No one has a “right” to require anyone else to interact with them in any way whatsoever.

    And there is no need to focus on religious freedom regarding the issue.

    The real issue is that the federal government is unconstitutionally interfering in the individual rights of freedom of contract, private property rights and freedom of association in the pursuit of enforcing an affirmative right that never legitimately existed in the first place.

    1. The real issue is that the federal government is unconstitutionally interfering in the individual rights of freedom of contract, private property rights and freedom of association in the pursuit of enforcing an affirmative right that never legitimately existed in the first place.

      ^This. So very much this

      1. I agree 100%. The problem is that the general public doesn’t care about such things. They really don’t even care to think or hear about such things. They want what they want and if they have the power to force you to do (or not do) some behavior they approve (or disapprove) of even mildly they have no problem with doing it. FYTW.

    2. Yes, the problem is that the Obama administration has aspirations of micromanaging every marketplace interaction and especially those in health care. While general freedom of belief and association is what is in danger, because of the more explicit protections for religious belief it is the easier argument to make. Essentially, what the administration wants is burden of proof on the individual that laws and regulations should not apply rather than the burden of proof on the government that it has any authority or business sticking its nose into how people conduct themselves.

  17. If you kneel at any political altar please chisel the term ‘freedom’ from your cranial word cache. Liberty isn’t scrum juice blanched from your political collisions and penned from your shit-puking legislators who practice steely-gazes and tender grins in the mirror before a breakfast of babies and puppy legs.

    Fuck the abuse of the word ‘freedom’. Fucking world has never moved past the iron cages of penciled privilege.

    1. “the iron cages of penciled privilege”

      Good name for a novel, or a treatise.

      1. i’m seeing a graphic novel, followed by a hit anime series.

  18. Congratulations to Stephanie Slade for writing the best Reason post I’ve read in a long, long time.

    “Because there are an infinite number of ways a person can be affected, and even harmed, by an action without their rights having been violated.”

    John Stuart Mill is so dangerous because he almost got it right. If a person can [only] do whatever he wants as long as his actions do not [harm] others, then he can’t do anything because everything we do is harmful to someone else in some way. According to the Supreme Court in Wickard v. Filburn, the Commerce Clause means the government can stop a farmer from growing wheat on his own property for his own consumption–because if he had to buy it on the open market, the price of wheat might be higher, and that adversely effects other wheat farmers.

    https://en.wikipedia.org/wiki/Wickard_v._Filburn

    In other words, everything we do–and maybe everything we don’t do–harms someone else in some way.

    If the government claims the ability to violate the rights of anyone who is harming someone else in some way, then the problem is bigger than individuals claiming anything is justified by religion. Then, the problem is that the government can violate anybody’s rights at any time–because everything we choose to do (or not do) is harmful to someone else in some way.

  19. The second thing that’s bothersome about this isn’t mentioned by Ms. Slade.

    “The Obama administration and its supporters would prefer to draw that line close in. As Marshall put it, they think the rule should be that personal expressions of religion must be protected but not actions “out in the marketplace” that affect the “interests of third parties.”

    The Obama administration and its supporters are getting it completely backwards here because they’re ignoring the first part of the First Amendment.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”

    Congress shall make no law! This is a prohibition against government interference in an individual’s religious freedom. It is not a prohibition against individuals exercising their free exercise rights “out in the marketplace”.

    It should be noted that the marketplace is a bunch of individuals making choices, and a right is the right of individuals to make choices for themselves. Market forces are individuals making choices, and the First Amendment not only guarantees the right of individuals to do that–in the private sphere–it specifically prohibits the government from interfering with those religious choices in the private sphere.

  20. The reason the government cannot stop a Muslim from growing a beard in jail is because the government is prohibited by the First Amendment from prohibiting the free exercise of an individual’s religion. The reason a baker can refuse to bake a cake for a gay wedding on religious grounds is because the baker is not the government.

    Can you imagine if Obama administration applied this principle to other parts of the First Amendment? What if our right to free speech were okay to exercise against the government, but we weren’t allowed to criticize third parties? What if the press were allowed to criticize the government, but not private companies, private charities, or wealthy individuals–because public criticism might harm them in some way?

    1. The reason a baker can refuse to bake a cake for a gay wedding on religious grounds is because the baker is not the government.

      Except that baker can’t, any more.

      1. Well, not to put it in Clintonian terms, but it depends on what the meaning of “can” is.

        A baker can do it in compliance with the principles of the Constitution.

        They just can’t do it according to some horribly misguided interpretations that have been wrongly blessed by the courts.

      2. They can in over half the states.

  21. I think I would like to re-assert that conservative and it seems many libertarians have accepted the leftist view that discrimination is a violation of your civil rights.

    I want to re-assert that based upon freedom of belief and freedom of association, people have a civil right to discriminate.

    1. Indeed. We discriminate all the time in the choices we make be they personal or business related. To not be able to discriminate is to not be able to function as every decision must be baggaged with considerations of the possible ramifications to every possible affected party.

      The political problem with your (true) statement, is that invariably invites the question as to whether the Civil Rights Act was warranted. Whenever it comes up politicians trip all over themselves in abject defenstration walking back claims that free association trumps hurt feelings. The answer is that the Civil Rights Act was necessary because of state government ENFORCED discrimination. If discrimination is codified and legally mandated then it needs to be addressed, not before.

      1. I should have added the modifier “explicitly” to codified, to avoid the de facto loophole HUD recently took advantage of last SCOTUS session.

      2. The answer is that the Civil Rights Act was necessary because of state government ENFORCED discrimination.

        I don’t see how the Civil Rights Act could have legally fixed that.

        If the state laws were unconstitutional (e.g., by violating Equal Protection), SCOTUS could have just thrown them out.

        If the state laws were constitutional, then it raises the question under which enumerated power the Civil Rights Act was legitimately passed to begin with.

        1. I wasn’t clear, apologies. My point was that saying the Civil Rights Act was a mistake is political suicide, and so to differentiate it one could point out that the state governments were complicit. SCOTUS incorrectly upheld Jim Crow (separate but equal). Legislation was necessary to correct the mistake. Again, not saying I agree with this but people need to have an answer as to why the overreach of the CRA was in a substantively different environment.

          1. The un-amended CRA includes race, color, religion, sex or national origin. Only two of those have anything to do with Jim Crow. If the CRA was just about Jim Crow, why does it enumerate three additional categories?

  22. Eighty-one comments (thus far) and not ONE about a ten-way?

    “And be sure to bring your rulers…… oh baby….”

  23. Double-posting from the Friday Funnies:

    Free exercise works only when you don’t have a Total State that attempts to micromanage big chunks of your life.

    When the only laws are against mala in se (fraud, theft, assault, etc.) under a night watchman state, the free exercise clause will rarely if ever bump up against an exercise of state power. The state won’t order you to do things that are against your religion, except in vanishingly rare instances where your religion requires that you violate the rights of others by assaulting, stealing, etc.

    But a state that can order you to do pretty much anything is going to order people to do things that are against your religion. And so we have the current kerfuffle, where many laws violate someone’s religious observance, so we have to struggle with horseshit like “what’s a real religion” and “are you really a believer” and “does this law really violate your religion.”

    So, to answer those questions in order to protect free exercise, we essentially have to “establish” religions that are recognized by the state, evaluate the sincerity of religious belief, and establish, by law, the doctrinal requirements of established religions that cannot be interfered with by the state.

    1. I agree up to a point, but the fact is that the term “religion” has been in the First Amendment from Day One, and even a night watchman state deals with things like militia service, compulsory testimony, even (braces self) vaccination.

      1. Non-discrimination is based in the Civil Rights Act (1964), not the First Amendment.

        To suggest otherwise is pretty weird.

  24. I’d like to point out two things.

    People that bring up butchers, bakers and candle-stick makers when it comes to gays and non-discrimination laws, but don’t bring up the CRA itself, aren’t *really* in favor of Freedom of Association. After all, the status quo they’re defending is that the butcher/baker/candle-stick maker can kick me to the curb because of their religion, but when that same person walks into my (hypothetical) comic book shop I’m prohibited from kicking them to the curb because of their religion.

    So unless you’re against the CRA as well? Then you’re not *really* for Freedom of Association. You’re just for discriminating against gay people.

    Second, the Obamacare case that’s going to the SCOTUS this term? The objection is to filling out a form. Not to providing contraception. Not to paying for contraception. But to filling out a form to the Fed saying “we’re not going to provide/pay for contraception.” *That* is the sin that’s too grievous for the petitioners to stand. Not even a detailed form, just a letter.

  25. He’s right on that. Clearly, there are some instances when no one would support an exception, as with laws against rape and murder. (That your religion requires you to make a human sacrifice does not obligate the rest of us to stand by while you kidnap virgins and burn them at the stake.) In Marshall’s words, “At some point the Court has got to figure out a way to draw a line around a claim” that a law violates someone’s religious liberty.

    And in a self-consistent system of individual negative rights, this is fairly straightforward. You can believe and practice anything you want as long as it doesn’t infringe on the rights of others.

    The conflict here is between competing rights, but between competing powers.

  26. personal expressions of religion must be protected but not actions “out in the marketplace” that affect the “interests of third parties.”

    That’s nothing but a recipe for expanding the definition of “the marketplace” and when third parties have an interest. Since it is almost impossible to act in a way that doesn’t have at least second order effects on others, you can use this reasoning to regulate pretty much any human activity. Funny how that works…

    1. I concede that he is at least outlining a coherent standard for deciding when religious liberty should trump and when it shouldn’t. Personal behavior affects only the actor; public behavior has some measurable consequence for someone else

      I don’t concede that for the reason above. It might be coherent in tidy theoretical world but in the real world there is very little space for personal behavior, so defined. This is Wickard v. Filburn rehashed.

  27. Im making over $9k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life. This is what I do,

    ———- http://www.onlinejobs100.com

  28. Your religious liberty ends when it infringes on my legal freedoms.

    The county official who refused to issue marriage licences to same-sex couples was wrong. Those people were legally entitled to those licences. If that official believed issuing those licences was “sinful” (a word I don’t really understand), too bad. She deserved no accommodation. If she can’t do the job she’s being paid to do because of her religion, she needs to find either another job or another religion.

    People who decline to bake a wedding cake for a same-sex wedding have every right to make that decision. No one is legally entitled to a wedding cake.

    It’s really not that tough.

  29. the best argument against “religious liberty” is not that presented by Stephanie Slade but rather that espoused by Penn GIllette, i.e., that we should not be so concerned with religious liberty, but rather liberty in general. Religion grants neither more nor less liberty not based on religion.

  30. As regards “religion,” I agree with Justice Hugo L. Black’s opinion: “Anything that one believes in so strongly that it influences their behavior is deemed a ‘religion’.” Religion IS liberty.

  31. The premise of Ms. Siade’s position is that marketplace regulations of the type she contemplates infringe on religious liberty. That premise is false. Though one may not agree with the policies, nothing about the labor regulations or civil rights laws she discusses infringes on a person’s religious exercise because they don’t *require* a person to do anything against her religion at all. In contrast with, to use an example Ms. Siade references, a person in prison–who was forcefully put there by the state and is coerced to do what the state says–a person who wants to enter the labor (or bakery) market does so volitionally. She is not forced to be an employer or a baker. Rather, she chooses to do those things and, concomitantly, to abide by any rules society sets as a condition for doing so. The person is still free to observe her religion as much as she wants. She simply doesn’t get to invoke it as a trump card to avoid the obligations of the marketplace she enters. (This is, of course, the rationale of the Supreme Court’s Employment Division v. Smith case, and it seems particularly to inform this debate.)

    1. So, theoretically, let’s say someone passes a law saying “Anyone who makes over $40,000 a year must eat a pound of bacon every month” is totally fine, because no one is /forced/ to take a job that offers $40,000 a year.

  32. I had someone tell me today that “if religious organizations are going to be so politically active as they are, then they should pay the same taxes as other political organizations.”

    I told him “I agree. In fact, the whole COUNTRY agrees with you. In fact, it’s currently codified into law!! Political organizations are also a tax exempt group, so both pay the exact same taxes as you wanted. Which is zero.”

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