Snowbowl and the sacred mountains

MadArchitect

Rose: You think the First Amendment rendering it unconstitutional for Congress to make laws that prohibit free religious exercise equates to a presumption for the free exercise of religion across the board.

So what precisely does the First Amendment protect? What assumption underlies any particular decision determining whether or not a law violates that clause by prohibiting religion? If it is still possible to raise laws that do, in effect, prohibit religious exercise, then I suppose the big problem here is that I fail to see the value of that particular clause. If anything, it looks to me as though it functions to implicitly condone some forms of religion while implicitly outlawing others. How that squares with either the intent or the normative interpretations of the First Amendment is beyond me, and I'm not sure, in retrospect, that I at all understand the point of the clause in the first place.

What I’m saying, Mad, is that your interpretation of the free religious exercise clause is not supported by the caselaw and not supported by history.

And what I'm now asking is, what interpetations, if any, are supported by history and caselaw? (And then, as a follow up, are those interpretations that we feel ought to be maintained?)

In the instant case, Congress did not make any law prohibiting free religious exercise—it, in fact, did not make any law at all.

That may seem to be the case from the specific vantage of modern American judicial practice, but the contrast between American governmental practice and pre-colonial Native American governmental practice illustrates that the differences in those laws are pretty central to the case. Native American social and political practice likely would not have made it possible for a commercial interest to endanger the religious claim. But so many of the post-colonial American legal system is set up in defence of a brand of ownership that was never really recognized by the culture responsible for developing Native American religious practice. I'm not talking about any one specific law that has been passed in recent memory, the effect of which has been to discourage Native American religious practice. What I'm talking about is a entire network of laws that, for reasons of cultural difference, presupposes a distinct set of values. Those values stand in contradiction to both the political and religious values of the Native American plaintiffs, so they're almost predistined to lose out on this.

Whether or not the framers of the Constitution supposed it was possible to structure American government such that it could tolerate every contemporary form of religion is beside the point in this specific instance. What I'm trying to point out is that the judicial structure of this country was (both intentionally and unintentionally) built in such a way that it excluded a set of religious traditions that already inhabited the American landscape. If 18th century Zen Buddhists were to find that their religious practice was unconformable with American law, they had the luxury of not immigrating to America. That the Native American tribes found themselves being increasingly subjected to laws that either disposed of their right to exercise their previously existing religious traditions, or which made likely forms of society that would inevitably marginalize those traditions until they were entirely impracticable, seems to me a pretty specific challenge to the idea that the United States government didn't favor some religions over others.

That, ultimately, is the problem I have with the way the First Amendment is being interpretted in instances like this. It isn't that I think the Constitution could, or even should, protect all forms of religious exercise -- even in theory. It's that the clause fails to recognize the ways in which laws that presumably are not about religion in any explicit way serve to structure American society so as to favor particular religions, specifically religions that share or can accomodate the values and presuppositions that undergird those laws -- such as private ownership, usufruct, etc. That the Constitution cannot guarantee freedom of religious exercise to all traditions probably would not have bothered the Framers or most people involved in caselaw all that much, but I suspect that the idea that it failed to ensure against implicit favortism towards specific religious traditions probably would have.

The issue, it seems to me, is that we are working from two enormously different assumptions of what the free religious exercise clause entails.

It's probably a mistake to reflect what I'm saying here back on your perception of how I interpret that clause entails. What I'm worried about is not so much what the significance of that particular clause is or ought to be, but rather on the ways in which American political philosophy is grounded in the ideals and concepts generated by Western Christian thought, and the ways in which that relationship limits the degree to which American government can function as a distinctly secular agent.

But for me to join this discussion would require us to look at the caselaw, which I’m not sure you are interested in doing.

Actually, I'd like to look at specific caselaw. But I'd like to prep by reading something that would prepare me to evaluate the genre of caselaw. If you could suggest some other source I can go to, just so that I avoid making all of the most basic mistakes, I'd be more apt to comment on any particular caselaw you set before me.

me: I know so little about the RFRA that I couldn't say either way.
Rose: Seriously read it.

I'm afraid it's going to have to wait until later on in the week. I only have about a quarter of an hour left before I need to log off.

irishrosem

Mad: Voodoo religious ceremony involves animal sacrifice…

Heh heh heh…I know you had no intention in starting a sidetrack discussion on animal sacrifice, but this is an interesting, relatively recent, SCOTUS decision on animal sacrifice within the Santeria faith. Thought you might enjoy it. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Sorry for the delay, it took me a couple extra tries to find the case. I first read a little while ago.

Edited by: irishrosem at: 7/17/07 6:16 pm

irishrosem

Mad: So what precisely does the First Amendment protect?

Ay, there’s the rub, eh Mad? And now we are left with constitutional interpretation—hardly an exact science. I imagine my interpretation of the Constitution is likely to be very different than yours, and probably not very helpful to you, but since you asked…

The purpose of the First Amendment is to eradicate the government’s hand in religion altogether. I read the religion clauses as flip sides of the same coin, as the religion clauses are often described within First Amendment discussions. But I do so in a very literal way—meaning that the First Amendment religion clauses have one core purpose, which is expressed in two restrictions on the government (Congress). The clauses’ purpose is to eradicate government’s role in religion altogether; the clauses achieve this purpose by stating that Congress cannot establish religion, nor can it prohibit religious exercise. The amendment specifically articulates that Congress shall make no law prohibiting the free exercise of religion. The amendment does not articulate these restrictions by stating that Congress shall make no law that has the effect of prohibiting the free exercise of religion.

Mad: If it is still possible to raise laws that do, in effect, prohibit religious exercise, then I suppose the big problem here is that I fail to see the value of that particular clause.

And this is how the above interpretation of the First Amendment is criticized. And you are in good company, Mad, as Justice O’Connor stated in her concurring Opinion in Employment Division v. Smith, “If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice.”

I’ll ignore O’Connor’s misplaced accusation that a literal interpretation of the First Amendment is actually a “construed” interpretation. The real sin in her denouncing the religion clauses, when directly and literally interpreted, as not having “any vitality,” ignores the very history in which the First Amendment was penned. The Framers did not take for granted, as O’Connor now evidently does, that a State “directly target[ing] a religious practice” is an “extreme and hypothetical situation.” In fact, the Framers had daily reminders from within their own colonies, now states, and from Europe, that governments normally directly target, and attack, free religious exercise. To assume that the amendment has no value, or “vitality,” today, merely because it has successfully accomplished its purpose over the past 200+ years, and therefore must be read with a different intent seems like preposterous logic to me. Apply the same reasoning to the Third Amendment. Should we read further into the quartering amendment just because it is an “extreme and hypothetical situation” to imagine the State forcing soldiers to be quartered in citizens’ private homes? A federal government that could establish a state religion, or make laws that prohibit the free exercise of religion, was a very real threat to the Framers. That threat was therefore addressed by the religion clauses of the First Amendment. But I think it’s irresponsible to presume the clauses intended to grant religious accommodation to generally applicable laws made in the state’s interest. Consider Thomas Jefferson’s own perspective on the matter as quoted in Reynolds v. United States, 98 U.S. 145:

Quote:
Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,-I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties. [Emphasis mine]

Mad: That the Constitution cannot guarantee freedom of religious exercise to all traditions probably would not have bothered the Framers or most people involved in caselaw all that much, but I suspect that the idea that it failed to ensure against implicit favortism towards specific religious traditions probably would have.

I don’t think the Constitution failed us in that respect; I would say that the pandering, largely Congress’s pandering, to the religious majority—something from which the First Amendment was surely meant to protect—would be a problem for the Framers. At least, it’s certainly a problem for me. Mad, I don’t disagree with your argument that the U.S. government, in many ways, has come to both implicitly and explicitly favor certain religions—largely Christian religions and, to a lesser degree, Judeo-Christian religions. It does. But the favoring of Judeo-Christian traditions violates the establishment clause—the other side of that same coin. Recognizing that violation does not make me amenable to accommodations for other lesser-established, or non-established, religions. That would only be compounding the problem. The religion clauses serve us well. Government should not be in the business of directing any kind of special attention—good or bad—at religion. In recognizing that many U.S. laws—particularly laws directed at victimless crimes—establish religion, I assert that, rather than accommodating other religions who violate such laws, we work at eliminating the laws altogether.

Now I know that this last part does not, at all, address your issue with American Indian use of sacred land. And that’s because I don’t think the U.S. land use laws, the “brand of ownership” set up by the “post-colonial American legal system” violates the establishment clause. U.S. land use laws serve the state (and though I recognize those laws serve a state that benefited from the genocide of the native peoples and cultures in America—not to be heartless—that’s not at issue in the First Amendment clauses we are discusses). The laws, which serve a legitimate state interest, are also equally applicable. To accommodate when those laws affect the religious practices of certain groups violates the establishment clause. As does RFRA and most of its efforts.

Incidentally, Mad, my direct reading of the religion clauses is part of the reason why I hesitate to get behind judicial restrictions on state taxes to private schools—even though personally I don’t want any state money going to private schools. The establishment clause states, “Congress shall make no law respecting an establishment of religion.” I’ve never been convinced that taxes to private sectarian schools is necessarily an act respecting the establishment of religion (i.e. with the express purpose of establishing religion). I think it can be well-argued that money to these private schools serves the state interest in financially supporting the education of its minors. And that’s not to say that I don’t think there is a different argument to be made regarding state money to private schools; I just think the argument is misplaced in the establishment clause. So, at least, I’m consistent on those literal interpretations, even when they don’t serve my personal interest.


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