Monday, June 4, 2018

Tara Smith on Religious Exemptions to ‘Generally Applicable Laws’

I believe, and have argued, that carving out religious exemptions to laws is wrong on both constitutional and fairness grounds. (See my links below.) I’m pleased to say that my position has validation from an important legal scholar, Tara A. Smith of the University of Texas at Austin.

In a 2016 paper, Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions, Smith distinguishes between valid exemptions to specific laws, such as for minors and felons, and invalid exemptions such as regarding specific beliefs of selected groups, like religious groups. Here are selected excerpts from Smith’s conclusion:

I hope to have shown that the notion of religious exemptions is profoundly misguided—confused in concept and destructive in practice to the objective Rule of Law. A legal system holds the authority to coerce compliance with its rules strictly as a means of accomplishing a specific mission: the protection of individual rights. That is its reason for being. Accordingly, this singular function is the ultimate standard by which to measure the propriety of all of a legal system’s actions and policies. Because a person’s religion does not alter his rights and does not alter his responsibilities to others’ rights, however, it should have no bearing on how the legal system applies its rules. Belief in a god gives a person no more rights than the atheist next door. Correspondingly, it warrants no “accommodation” from the legal system.

Such Janus-faced instruction—Do not discriminate on the basis of sex, unless you are a Catholic organization; Do not carry weapons, unless you are a Sikh; Do not disobey the law, unless it happens to be a law that we do not actually care about very much—fractures the legal system’s integrity and cripples its ability to fulfill its function. For when a legal system bends its rules to cater to consciences, it is not catering to rights. It is no longer serving its mandate. When the enforcement of law is customized to fit different citizens differently like carefully tailored suits, we no longer have the Rule of Law and we no longer gain the protection that it provides.

Related Reading:

On Mandatory Vaccinations, Protect Everyone’s Right to Object, Not Just Religionists’ Rights

Arizona Governor's "Religious Freedom" Veto Was the Right Move

Two Views on Religious Exemptions from Anti-Discrimination Laws

Vaccine Exemption Bill Violates the First and Fourteenth Amendments, Fairness

Is RFRA [Religious Freedom Restoration Act of 1993] unconstitutional? By Sasha Volokh

[A]s a first-principles matter, I’m not wild about the idea of religious exemptions, and find them to be in strong tension with my Establishment Clause sympathies.

[I]f I’m right, the solution isn’t necessarily to invalidate RFRA. It could be to extend RFRA to apply to deeply held secular convictions.


Mike Kevitt said...

I am, of course with Tara Smith, totally, on her overall case here. But, in three specifics she cites, I question two of them, assuming I'm interpreting them right. She seems to condone outlawing private discrimination, no exemptions. She seems to condone outlawing carrying of weapons, no exemptions. The principle of no exemptions is right, but she's applying this principle to two types of legislation which shouldn't even exist or be condoned in the first place, if I'm interpreting her statement right. Her third specific, that we should obey all laws, I certainly have no problem with. Again, I'm totally with her on her overall case, that carving out religious exemptions is misguided, confusing and destructive to the rule of law.

Mike Kevitt said...

I must admit confusion, here. If the principle of no exemptions is right, then a baker of wedding cakes who is religious must bake them for same-sex weddings. Why should he be exempt on religious grounds, or on any other grounds? My answer is the legislation involved, which forbids private discrimination, shouldn't even exist in the first place. That would leave the baker free to not bake a cake, for any reason.

steve jackson said...

I don't support anti-discrimination laws, but since we have them it's better to have exemptions (religious or otherwise) rather than not.

So I support the exemption of Christians not to bake cakes. I suppose I wouldn't support an exemption for say Muslims not to pay taxes, but that's an unlikely scenario.

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