Religious Liberty is a Farce

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There is an American tradition of political fuzzy-ism that my mental disposition and emotional sentiments are ill suited for. It is on display in many David Brooks columns, in most of President Obama’s “historic” speeches, and in just about every reference made inside the Beltway to “compromise.” It is also what animates this recent post by Michael Brendan Dougherty at The Week.

In it, Dougherty takes up the issue of religious liberty in the context of Arizona Gov. Jan Brewer’s vetoing of SB 1062, the bill which would have allowed businesses to “legally refuse service to anyone on ‘religious freedom’ grounds.”

The conflict, for liberals, is seen as one between “retrograde religion and the progressive state.” And yet, “in truth” explains Dougherty, the battle is really between two competing values within liberalism itself: pluralism and egalitarianism.

It’s worth noting two things at this point. First, Dougherty also asserts “administrative efficiency” as a particularly liberal virtue. This is not the case. Without here tracing out a lineage of the value many different people in many different positions at many different times have found in “getting things done,” I will simply suggest (uncontroversially I think) that efficiency is a virtue of any modern endeavor. Second, it’s not clear to me that egalitarianism and pluralism or tolerance are in direct conflict with one another. Indeed, respect for people’s idiosyncratic beliefs and preferences, and their right to pursue and or maintain them, seems like a necessary part of any egalitarian vision.

Already then, I’m not sure what to make of the idea that a “monocultural elite class” is inclined to resolve conflicts “in favor of its egalitarian goals” not only because I doubt the conflict truly exists, at least as Dougherty has framed it, but also because, to the degree that there is a “monocultural elite class,” one which presumably has the power to resolve disputes like the one that arose in Arizona, there is little evidence that it is truly committed to “egalitarian goals.”  The apparent equanimity with which “elite” liberals traverse the climate of extreme inequality of circumstance and disparity in opportunity that is the United States would seem to suggest otherwise.

Dougherty focuses on religious pluralism: the tolerated diversity of religious institutions and organizations, each with its own particular rules and norms regarding social interaction as well as the nature of cosmic existence. Apparent even to the casual observer, “religion” includes beliefs and practices which can both align with secular ones as well as directly contradict them. Thus claims regarding the rights of individuals to have control of their own bodies, which ultimately result in arguments in favor of free access to contraception, come into conflict with competing claims by religious communities that this is not the case.

To deal with this conflict, Dougherty claims that partisans of the “egalitarian project define pluralism down.” Or, in my words, resort to political fuzzy-ism. These partisans, having never really believed in the first place that these religious claims should be given special treatment, start walking back their celebratory rhetoric on pluralism.

And I agree with Dougherty on this. When the rubber hits the road, people’s proclaimed exuberance for the “free exercise of religion” is replaced with something much more benign: “You’re allowed to believe whatever you want.” While both of us see the hypocrisy of this though, we favor different ways of resolving it. Dougherty thinks a more robust liberalism should tolerate individuals or organizations with projects contrary to the mission of the state, while I believe that any practice which is deemed illegal shouldn’t be excepted simply because, in a given instance, those doing it do so for “religious” reasons.

Dougherty mentions the issue of peyote in Native American religious observance. People should be allowed to do with peyote what they want, not because they may happen to hold some idiosyncratic beliefs, but because certain commonly agreed to principles about human autonomy demand it.

And here it is important to note that I’m not trying to argue about whether certain forms of discrimination are constitutionally sound or not, or for the actual merits of regulating how wedding cake bakers manage their clientele. Instead, my beef is with political fuzzy-ism, i.e. the idea that certain foundational principles obtain in certain situations, or at certain times, but not in others, and not just because of some higher order rule, but rather because its simply politically expedient to bullshit in this way (compromises, for instance, are all well and good, but only so long as everyone is clear about what was compromised and why, and don’t go making claims after the fact that, somehow, the compromise is itself the logical result of principles which are contradicted within it).

Dougherty maintains that, “Real pluralism preserves the possibility of critique emerging within a liberal state.” Which is true, but also beside the point when it comes to religious liberty. Earlier on in the post Dougherty poises the rhetorical question, “Why even bother with a First Amendment if religion is such a trivial phenomenon?” The answer is: because with in it are contained both a right to speak as well as too freely associate. The possibility of emergent criticism originates there. Whether or not that criticism is religiously motivated, or predicated on religious dictates, doesn’t matter.

The piece ends with the suggestion that “Legislators and jurists would do best to retain these two essential liberal values, by finding solutions that deftly avoid setting them against each other.” But Dougherty never shows why either of these “essential” liberal values is actually in conflict, nor why emergent critique or personal belief and association are being sacrificed for “administrative efficiency” or a greater egalitarian project.

Rather, as seems much more plain and likely, beliefs and practices which are dressed up in religious justifications and traditions and are for that reason accommodated when benign are simply not acceptable when they actually conflict with secular values and principles. In other words the idea of “religious liberty” is a ruse, and one which is exists because of historical accident and is casually maintained because it’s politically expedient to let people continue to believe that morality is not something the state is interested in regulating.

As Dougherty notes, religious tolerance in the United States is predicated on the idea that “if the government were to burden the conscience of religious believers, it must show evidence of a compelling interest and a lack of alternatives for achieving its goal.” It is, of course, members of the government who determine what a “compelling interest” is, as well how to most optimally achieve it. Judges, many of whom are elected, the rest of which are appointed by other people who are elected, decide these matters by marshaling together legal precedent, statutory language, and pre-existing beliefs about how the universe should be. They are agents of the state, even if their professional ideology pre-disposes them to tread carefully and act conservatively.

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233 thoughts on “Religious Liberty is a Farce

  1. It is increasingly apparent that I no longer fit in ideologically with this site.

    [T]he idea of “religious liberty” is a rouse [sic], and one which is exists because of historical accident and is casually maintained because its politically expedient to let people continue to believe that morality is not something the state is interested in regulating.

    So whenever it’s expedient, take away the freedom of conscience? And do let’s stop feeling guilty about it? Is that really what you mean to say?

    If so, I have nothing but contempt for this. Descriptively, it may be what happens. Normatively, it is an abomination – one that belongs more in the mouths of the ayatollahs than in those of us who claim to be descendants of the Enlightenment. Consider that they would say it just as readily as you would, albeit for different purposes. And then consider that between the two of you, there will be nothing but constant warfare, hot or cold, until you both come around again to the principle of religious liberty.

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      • Given that the Reign of Terror very quickly devolved out of the Enlightenment, or co-opted it, or what have you, I have trouble believing that taking away freedom of conscience isn’t a fairly normative move for people who think they are descendants of the Enlightenment to make. It happened *like that*, it’s not some later weird thing we’ve just started doing now. Freedom for me but not for thee is the norm, not the exception (pace Nat Hentoff).

        [Jason, if the intellectual laziness of the statement above goads you into explaining exactly what DID happen to the French Revolution – like anyone could do that in a comment-sized box, but I would love to see you try – I will be pleased as all get-out, so feel free to explain/correct/school/chastise as necessary.)

        That said, even if only caring about one’s own freedom of conscience is the status quo, it’s still awful – quite possibly descriptive but absolutely not ok, as Jason says. I think the existing principle of religious liberty should (theoretically) cover individual choices about who a person will make wedding cakes for, but NOT sell gas to – because it’s a freedom that is balanced by compelling interests. Making new laws (as opposed to enforcing the principle in actual cases) – laws which protect *or* outlaw specific classes of religious bigotry*, on the other hand, is not a matter of religious liberty, it’s a matter of active legal discrimination.

        (And yes, I am quite comfortable calling refusing to sell someone a wedding cake religious bigotry, though I would not be comfortable at all calling refusing to marry someone religious bigotry, unless I was sure that specific instance was. I said I don’t want to make laws, not that I don’t judge those people harshly. Part of the reason I quit participating in Christianity is that the entire structure seems deeply corrupt to me. Doesn’t mean I wanna legislate against it.)

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      • (This is also a complete tangent, but despite being willing to allow individuals to be discriminatory assholes, I don’t think there is a compelling interest to allow a corporation or institution to as a matter of policy deny anyone anything based on discriminating among people by race, gender, ethnicity, etc etc etc. Corporate bodies do not have “a conscience”, only people do. I would accept “we don’t know of anyone who works for us who could in conscience to do this thing” (in the limited cases I refer to above), but not “by policy, our company does not do this thing”. Religious beliefs which compel you to make your employees act according to your religious beliefs? Yeah, we have a compelling interest against those.

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      • Rousseau was a significant outlier from the rest of the Enlightenment. He was also by far the one who influenced the French revolutionaries.

        Not Voltaire, Montesquieu, Bayle, or any other francophone, all of whom sided with greater religious toleration. And not the English or Scottish enlighteners, for whom theory and contemporary national practice were actually relatively close.

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      • If you hate, hate, hate “the legal conception of corporations as people,” it’s almost certainly because you don’t understand what it is. Corporate personhood is a metaphor for a limited set of ways in which corporations are treated as discrete entities rather than a collection of shareholders, mostly for reasons of legal convenience (e.g., you can sue a corporation, because going after all the shareholders individually would be a huge pain).

        It has nothing to do with Citizens United or what you’re complaining about above, both of which are based on the radical notion that shareholders are people who have Constitutional rights, as well as the right to dispose of their property as they see fit.

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      • Which makes it odd that Citizens United empowers corporate management rather than shareholders. It’s much like giving cabinet officers the right to kill people on the grounds that if the voters think they’re using that right incorrectly, they can recall the people who appointed them.

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      • Right. Because running advertising is much more like killing people than it is like the many, many things which government actually does and which people actually justify by saying the voters can vote in a new government if they don’t like the current one.

        And that argument is much weaker for democracy than it is for corporate governance, since shareholders have both the power of exit and of voice, being able to divest themselves of shares easily. Also, political elections are held at fixed intervals—as much as six years apart in the case of Senators—whereas shareholders can replace the board of directors whenever they want.

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    • “take away the freedom of conscience?”

      Could you elaborate on what you see as falling under this umbrella? For instance, I feel like, rightly or wrongly, it has been common practice for the state to sanction certain behaviors, e.g. through criminal charges, fines, etc.–are those the kinds of reductions to freedom of conscience you’re referring to? Or if not, what would be a good example?

      I certainly think what I wrote is an accurate description of how things actually operate. And my intention wasn’t to necessarily debate the rightness or wrongness of it, but first and foremost to point out that I think a lot of people, of many different political persuasions, are being incredibly disingenuous when they talk about finding a way to accommodate people’s individual beliefs/customs as well as the broader moral dictates which inform public policy and the courts.

      I agree that these debates are about competing values, but religious liberty isn’t one of them (though liberty in a much more general sense obviously is).

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      • “Could you elaborate on what you see as falling under this umbrella?”

        For the moment, the state aligns well with your values (and, honestly, with mine): It’s saying more and more that it’s wrong to discriminate against gay people. I agree that this is the case.

        But what about when the state says or does something that conflicts, not with the conscience of a bigot, but with your conscience?

        Will you be so hand-wavy then?

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      • In the example you lay out, I’m not sure how carving out little exceptions would help if I think something the government is doing on a much broader scale is wrong.

        I feel like this inevitably goes back to how each of us treats democratic majoritarianism. If my beliefs about individual liberty are not widely shared, what will keep the wolf from my door? I guess another way of saying this is, if things go in that direction, I’m not sure arbitrary norms which contradict them will be much use.

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      • “In the example you lay out, I’m not sure how carving out little exceptions would help if I think something the government is doing on a much broader scale is wrong.”

        Very simple. Sometimes, the government has a compelling case to stop a given behavior. Sometimes, the government just has a strong case.

        When there is merely a strong case, we allow an exception for people whose conscience commands them to perform the behavior.

        Why? Because — while the government as a strong case to prohibit the behavior, the government also has a compelling case to protect religious liberty.

        That’s not bullshit. That’s a balancing of interests. When both cases are compelling, note that a further restriction applies on state action here: The action in question must be narrowly tailored to meet the end in view, and there must be no other means at its disposal.

        You’ve stumbled into a very well-defined area of jurisprudence, and you’re proclaiming it to be a mess. What you’re making obvious, though, is that you haven’t even begun to grasp the basics of the matter.

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      • Jason, just take out the phrase “religious” and we’re good. All I’m saying is that what we actually care about is liberty. And to the degree that there is more preference given to religiously motivated personal action or behavior, that is inconsistent.

        It’s all a balancing act. Of course it is. No one denies that. What I’m rejecting though is that there is something essential to the category “religious liberty” such that it makes sense to elevate it beyond basic liberty, and have the state treat laws which curb religious liberty with more scrutiny than those which curb every other type of individual liberty.

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      • What I’m rejecting though is that there is something essential to the category “religious liberty” such that it makes sense to elevate it beyond basic liberty,

        There is, though. I don’t know if you, like me, don’t believe in God, but for people who do, religious liberty is far more than the right to be left alone, far more than the right to free speech, far more than the right to political participation. It’s about not being forced to offend God, not being forced to tear yourself apart from God, for many, it’s about not ending up in hell for eternity.

        The fact that I, and perhaps you (I don’t really know) think they’re dead wrong about those things is wholly irrelevant.

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      • But the argument for religious freedom plays a role in the debate, and often wins, in a way that a generalized right of conscience or liberty won’t. It also provides a specific hook for the Supreme Court to hang an argument vetoing the populace’s decision, in a way that a generalized right of conscience might not.

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      • I don’t know if you, like me, don’t believe in God, but for people who do, religious liberty is far more than the right to be left alone, far more than the right to free speech, far more than the right to political participation. It’s about not being forced to offend God, not being forced to tear yourself apart from God, for many, it’s about not ending up in hell for eternity.

        For them it might, but Ethan is asking why that should mean that particular liberty of theirs, which they care about, should be elevated over other liberties of Ethan’s, which he cares about. Are you claiming to have offered him one of those other than, “They really care about it.”?

        One would just be, “It’s a central legacy of the history of how this nation was made possible.” But that’s not rally a deontological justification. Another would be, “It’s a subject over which people are uncommonly willing to resort to violence in order to settle dispute, and one where normal value balancing ends up not working very well (i.e., it’s not like figuring out the value of the harm you did to me when you libeled me – it’s much more abstract than that),” but that, too is not really a deontological justification, but rather a practical one.

        Basically, it’s something that our history teaches us we want to take completely off the table for practical reasons because people are irrational and volatile about it. I think Ethan should be satisfied enough with that as a practical justification, but there’s no reason to expect him to be satisfied with it as a moral or deontological justification of why this should be a special kind of liberty above others.

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      • If you want this argument to run, James, you’re going to have to get it started walking. Make the argument, or don’t.

        Start at the beginning. Mostly I was asking about your first assertion. Protect these matters of conscience relating to deities and the like (whether against the right not to be shunned or whatever other interest; that’s a red herring, not at all what I’m asking about) not because they’re strongly held, but because they might be substantively correct? If it’s simply how compelling it would be if whatever outlandish non-disprovable thing anyone can come up with could possibly be true that determines whether we protect a matter of conscience, I think that would lead us to some strange places.

        Moreover, I don’t think that’s why we protect them. We protect them because people hold the beliefs very sincerely and frequently put them before whatever public considerations we might ask them to make, whatever the basis on which we ask them to do that. It’s a concession to sincerity and reverence, not the substantive awesomeness of whatever god they worship.

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      • No. I think the concept should be pondered. I’m not going to make an argument on this just so there can be an argument and folks can be looking for points of critique. Suffice it to say that while I’m no longer religious, I grew up deeply enmeshed in a religious milieu, and I think to understand what I’m saying you have to try to view it from the religious person’s perspective. Unless you’re willing to do that, it’s not something I want to fight about. And the only way to do that is to ponder it, rather than gear up to combat it.

        And if you’d prefer not to ponder it, that’s ok, too. I’m not trying to impose a duty on you.

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      • So… do you mean because of how it would feel to them to do (or not do) the thing in question given that they think there’s a chance they’re right about their beliefs (even though the premise is that they’re much more convicted on the point)?

        Again, we grant the space because of how they feel about what they believe – their sincerity and reverence. Not because they might actually be right, but because of how they feel about that.

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      • I don’t think you really mean it when you write, “Because they might be right.” I think it’s just something that gives you pleasure to say to me. You could say what you mean; you’re just frustrated with me.

        So no, I’m not going to ponder only that, because I don’t think you’re serious about it. Not really. If you were, you’d be more willing to describe the view you want me to consider and less satisfied with putting yourself in the position of giving instructions.

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      • I don’t think you really mean it when you write, “Because they might be right.”

        I do. What is your religious background? I suspect Tim Kowal would understand what I’m saying, but I think it would be harder for a person not raised in a very devout milieu to grasp, and very hard to make clear to them. At least hard for me to do so.

        I think it’s just something that gives you pleasure to say to me. You could say what you mean; you’re just frustrated with me.

        I’m frequently frustrated with you, but that’s not the case this time. I’m aware that I’m frustrating you. It’s not giving me pleasure to do so.

        So no, I’m not going to ponder only that, because I don’t think you’re serious about it.

        Again, you have no duty to ponder it. But please don’t use me–or more precisely, your misconceptions about me–as the excuse.

        less satisfied with putting yourself in the position of giving instructions.

        Where’s Stillwater when I need him, anyway? ;)

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      • I think the problem for you is that you know that I do grasp what you are saying, and that I have from the start been stating it more accurately than this bit of glibness from you does. I have, after all, been doing nothing but emphasizing sincerity and reverence.

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      • Where’s Stillwater when I need him, anyway? ;)

        You rang? (Pulls out stethoscope, BP cuff, little light-thingy for the ears, … begins examination).

        Yes, yes. The patient is dead. Killed by an incurable case of belief attribution and circular analysis. Time of death 5:25 pm.

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      • you know that I do grasp what you are saying, and that I have from the start been stating it more accurately than this bit of glibness from you does.

        Is there any way that telling me what I really think is not an asshole move?

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      • “I think you know X” is not “You know X.” I didn’t tell you what you really think, I told you what I think you really think. And since your whole shtick here is to make vague, oracular statements and ask me to ponder their meaning while declining the invitation to please say more, I think it’s pretty entertaining for you to object to my forming my own thoughts as to what you think.

        All that said, I’m not remotely denying that either of us has been an asshole in this thread. ;)

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    • It is increasingly apparent that I no longer fit in ideologically with this site.

      Well, I’m going to give a total +1 to your comment, so maybe you still fit in a bit.

      I think the beginning of the paragraph you quoted is pertinent, also:

      Rather, as seems much more plain and likely, beliefs and practices which are dressed up in religious justifications and traditions…

      I don’t think Ethan fully supports his assertion that these beliefs are merely “dressed up in religious justifications”. Perhaps I’m mis-reading, but that seems to say that they are not sincerely held religious beliefs, but that religion is just used as a cover.

      I’m on record as saying that I believe that most (or, likely, all) religious objections to SSM are rooted in bigotry (I haven’t encountered one that isn’t), but that doesn’t mean that the objections aren’t religious in nature. Religion can certainly be bigoted. I don’t think this is really in dispute.

      I think it’s interesting/odd that all these pixels are being spilled when both Ethan and Dougherty clearly illustrate the crux of the matter:

      “if the government were to burden the conscience of religious believers, it must show evidence of a compelling interest and a lack of alternatives for achieving its goal.”

      This is really the whole thing right here. Personally, I think the government does have a compelling interest in fighting homophobia (to overly simplify the matter) and that it will, at times, necessitate limiting religious freedom.

      But I don’t think either Ethan or Dougherty are willing to acknowledge that this debate is going on, and so we have these roundabout discussions that allude to, but strenuously avoid, the meat of the issue.

      (Also, though I disagree with you, this was an enjoyable post, Ethan. I had just been thinking the we needed a good ardent liberal/progressive/whatever post.)

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      • I had just been thinking the we needed a good ardent liberal/progressive/whatever post

        I was actually wondering recently where all the Commotion was as well. Shawn never really posted a lot, and Elias is I assume busy with Salon stuff (was there ever any formal announcement of that here? I just happened to notice his name over there).

        Ethan, it’s all on you now!

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      • As is coming out clearer in the comments, my sticking point is that any argument for protecting someone’s right to do or believe something in accordance with their religion, can be defended based on claims about “liberty” alone, without recourse to “religious” liberty.

        Or perhaps there is a reason why religiously motivated beliefs should be given special privilege?

        The phrasing you call out wasn’t meant to indicate that there is deceit or fraud on the part of religious adherents, but rather that whatever there arguments are, they can be boiled down into non-religious terms, and the argument will succeed or fail based on how it gets hashed out in a secular framework (i.e. courts/legislature/etc.)

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      • Ethan,

        If your argument boils down to ‘there’s no need for religious liberty since we have, simply, liberty”, well, I guess there’s merit there. I don’t see why you want to scrub the acknowledgement of religious liberty from discourse, though. Should we stop talking about freedom of speech, freedom of the press, freedom of association, etc. because, instead, we should just talk about freedom?

        It seems to me these sub-categories are quite useful in defending our overall freedom and liberty. Further, many of these things are different, if only slightly, so it’s useful to talk about all of them.

        Freedom of religion is similar to, but still different than, freedom of belief. It serves a useful purpose in political discussions to have these varying terms and discussion points.

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    • the idea of “religious liberty” … exists because of historical accident

      In one sense, everything is a historical accident, so that’s not necessarily saying much.

      From another perspective “historical accident” is a hell of an odd descriptor for something that people began fighting for about 5 centuries ago and are still fighting for in quite a few countries around the world.

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    • It is increasingly apparent that I no longer fit in ideologically with this site.

      I think this post is more of an outlier than you are.

      I suppose it’s also good to have such outliers, even though I can’t agree with the post.

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      • I frankly didn’t understand the post, and don’t understand the comments (at least up to this point, which is all I’ve read). I didn’t read Ethan criticizing religious liberty so much as criticizing what (to him is) the fact that the state ignores religious liberty when it’s inconvenient to recognize it. His comments don’t really clear up on that point, so perhaps I was misreading the post to begin with.

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      • It’s easy to imagine the scenario.

        Woman of slightly lower than average intelligence gets sterilized. She sues the state, citing her religious belief that she should try to be fruitful.

        Along comes Ethan Gach, who calls her belief “idiosyncratic.” He proclaims the liberty interest protecting it to be “bullshit.”

        Riding roughshod over centuries of political theory and experience that vindicate the separation of powers, he then shrugs: “It is, of course, members of the government who determine what a “compelling interest” is, as well how to most optimally achieve it.”

        No need to quibble that judges are independent, and that they commonly overrule executives. Oh no, it’s all the government, so their interests all align.

        And — best of all — he adds: “Any practice which is deemed illegal shouldn’t be excepted simply because, in a given instance, those doing it do so for ‘religious’ reasons.”

        Too bad about having kids, ma’am. We’ve deemed it illegal.

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      • Right. And as I sort of implied above, if things get to that place, where no one has regard for personal autonomy/liberty, than religious liberty is still beside the point.

        I would say to her, your reasoning is bullshit. But I would then also say, because of commonly held beliefs X, Y, and Z about the rights of individuals to do A, B, and C with their life, you should get to do that and that state is wrong so lets fight it.

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      • Ethan,
        Those laws Jason is citing are on the books now, for retarded people. The justification is that those people aren’t able to take care of the kids (weak, when they’re often able to take care of themselves) and that we don’t want their genes polluting the gene pool.

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  2. Something I think is true: wedding cakes are a very poor example of anti-discrimination laws.

    Say it’s 2 AM and my car is nearly out of gas. I’m on a lonely highway, and what looked liked a built up area when I glanced at Google maps turned out to have not much. So I passed through. In the distance I see lights. A gas station! Yay. I pull in, drive to the pump, get out to pump my gas. The pre-pay seems to accept my credit card. However, when I lift the handle, the pump displays “see cashier.” I see him through the window, watching me. I approach. He sneers. “We don’t serve your kind, faggot.”

    Another good Christian filled with the light of Christ. Or something.

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    • And the Arizona law would have gone faaaaaaaaaaaaaaaaaaaaaaar beyond that:

      1) An employee of a national chain could tell you to f— off, and not be liable to their employer, no matter what the employer’s policy was.

      2) Any healthcare worker could refuse to serve you, and not be liable.

      3) Any government employee could refuse to ‘serve’ you, and not be liable. If you’re getting beaten, the local cop would be 100% legally in the right to say ‘my religion says that blacks deserve that’. Oh – did I say ‘blacks’? It’s all the same, so long as one can credibly claim religious belief.

      I know that they’re also supposed to get another worker to serve you, but (1) in many cases, time is important, (2) I don’t believe that that would be enforced equally, anymore than SYG laws are unbiased in practice, and (3) the fact that somebody gets to say ‘f— you, [insert religious, ethnic, racial, political group insult here] isn’t something that we should be encouraging.

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  3. “I will simply suggest (uncontroversially I think) that efficiency is a virtue of any modern endeavor”

    Only if you think the McRib is superior to a low country pulled pork sandwich.

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  4. Religious Liberty is not a farce. As someone who is Jewish and whose ancestors and people were the victims of progrorms in Czarist Russia, I can tell you that the First Amendment has been a God send for Jews. This is not to say that the United States was free of anti-Semitism, there was plenty of anti-Semitism in the US and still is* but Jews have been allowed more civil and economic rights in the US than in any other country.

    That being said, many Jewish publications and Jews are nervous and non-supportive of the Hobby Lobby case and the “religious liberty” bills because they think such actions will lead to a backlash against the religious liberty parts of the First Amendment. I can’t find the links now, google-fu is failing me.

    I disagree with Hobby Lobby and the so-called “religious liberty” bills but unless I can assure you that religious liberty is no-joke to Jews.

    *I think that anti-Semitism has become the most verboten bigotry in the United States though and this largely seems to be because of the Holocaust. European guilt over Shoah went to form a kind of secondary anti-Semitism (there is a classic observation that “The Germans will never forgive the Jews for Auschwitz.”) but the opposite seems to have happened in the US.

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  5. Judges, many of whom are elected, the rest of which are appointed by other people who are elected, decide these matters by marshaling together legal precedent, statutory language, and pre-existing beliefs about how the universe should be.

    One can believe that religious liberty is a fiction, but if those people that set the boundaries don’t believe it’s a fiction, then it’s really not a fiction for all practical purposes.

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    • *it* being a fiction is certainly hyperbole. More accurate to say that the special aura which seems to encircle claims related to religious liberty is a fiction if it ultimately much always be justified in secular terms and according to norms which are codified democratically.

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  6. Maybe I’ve just horribly miscalculated. I thought the implied claim that secular reason/logic is the final arbiter of the “compelling-ness” of various religious claims and or the value in protecting people who act on them, would be somewhat banal.

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    • I dunno Ethan, religion is sticky stuff even now. When you factor in the horrific oceans of blood that have been spilled over it in the past and are being spilled over it right now the special carve out strikes me as apropriate.

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      • I’m… not sure about this.

        I had several disagreements with Tom back when he was around, and the special case of religion was usually central. New Dealer offers a left perspective that follows Tom’s right perspective, so it’s not clearly right- v. left.

        So, I’m not sure if “religion” qualifies as a special pleading version of freedom pleading, or if it’s just a regular version of freedom pleading with some window dressing for marketing sake, or if it’s just freedom pleading.

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      • I’m not to certain about a special carve out for religion either. I had those same arguments with Tom, which seemed to lead that in practice it led to carve out for certain peoples religion. Effectively it was a status quo bias that said, “we’ve done it this way for year and its based on religion, so that is good enough to avoid any change.” If a carve out for religion just said anyone can pray to whatever menagerie of deities they wish, follow any customs that don’t effect anyone else and to their own personal heaven or hell, then i’m fine with that. But now what we have is people wanting to say their religion trumps laws they don’t like or other people lives. Those are quite a bit different then preventing all the various bloodbaths that have occurred due to religion.

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      • I’ll back Ethan up on this. Suppose a religion refused to allow girls to attend school, gain employment for wages, or pursue their own interests outside of what’s determined for her by either her father or husband. The tension here between religious and secular values would be obvious, and those practices would be permitted in our society under a general claim to religious liberty only if (it seems to me) a compelling argument was made defeating standard conceptions of secular liberty. Simply appealing to religious norms and values in and of itself wouldn’t get the job done, I don’t think. Just as Ethan suggested.

        Certain types of benign religious practices are certainly tolerated in our society, not because they’re justified by religious liberty but because they aren’t inconsistent with secular liberty. At least, that’s the way I think Ethan is approaching this issue and I’m inclined to agree with him.

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      • Perhaps it would be more illustrative to take a specific example of a claimed religious exemption that has been turned down.

        Well, let’s take the peyote thing. Do we think of this as an acceptable intrusion on religious liberty or an unacceptable one?

        I don’t think the state made a sufficient case. The state may have a general, broad interest in regulating hallucinogens under a bunch of different possible frameworks, but generally speaking those are all tied to potential costs that aren’t relevant to the consumption of peyote for a religious ceremony.

        And yet we ban peyote for that purpose.

        Generally speaking, the state may have a general, broad interest in regulating alcohol consumption. But generally speaking, sippin’ some wine at Catholic communion by an underage person isn’t tied to the potential costs that come with making alcohol use by 12 year olds legal.

        (you can argue that alcohol use by 12 year olds doesn’t have sufficient costs to warrant intrusion in the first place, to be sure, but that’s an aside).

        And yet while the consumption by underage folks for religious purposes is allowed in the case of wine/Catholic communion, there are no similar exemptions for peyote.

        (This says to me that in practice, Ethan’s certainly right in one descriptive sense; the issue of religious liberty is much more often a marketing tool than it is an actual principled objection… but that doesn’t mean that there *shouldn’t* be such a principle).

        Religions have their own context. A lot of the issues of religious freedoms tie into the fact that religions come with an arbiter built-in. We don’t really need to worry about a church getting a bunch of kids shlotzkied on sacramental wine, while there’s an argument to be made that the local 7-11 might unload cases of beer to obviously intoxicated teenagers if we didn’t fine the crap out of them for it.

        Tom’s principle, if I can paraphrase it indirectly, was that the historical and sociological construct of the organized religion gives it an accepted level of deference that we wouldn’t necessarily grant otherwise.

        Now, you look at say, the Catholic church scandal here in the U.S. or worse in the state-sponsored orphanage bit in Ireland and you can see that there are still exception scenarios that need to be guarded against, but that doesn’t mean that there aren’t still cases where giving leeway to a religious organization isn’t unwarranted.

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    • I will be less snarky than North but he has the point. You don’t see the need for the First Amendment because you grew up with the full advantages of the First Amendment after it was in power for nearly 200 years.

      When the First Amendment was enacted it was a radically liberal notion and some states still did not give full civil rights to Jews until the mid-19th century. The idea that a Jewish person could get elected to political office was radical in the 19th century. Oliver Cromwell let the Jews back into England but when the first Jew was elected to Parliament in the 1800s, he was denied his seat because he would not swear an allegiance to the church. Jews got their civil rights in Europe very very slowly and there were still numerous instances of anti-Semitic backlash and forgery like the Dreyfus Affair and the Protocalls of the Elders of Zion.

      I would suggest studying about Jewish history and anti-Semitism to see why the First Amendment is needed. Anti-Semitism was present in European history since the Crusades if not earlier. There were expulsions, show trials, the Inquisition, forced conversions, the original ghetto in Venice (Jews couldn’t leave until the Napoleonic Wars or later), and ultimately the Holocaust. Reading recommendation is David Vital’s “A People Apart: The Jews in Europe 1789-1939”

      Religious factionalism and attack has long been part of human history. It seems to me that the First Amendment and gaurantees of free exercise and no establishment have been the best remedies against state religious wars.

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      • Do you know the story of Mary Dyer?

        She was the first woman executed in Massachusetts (when it was a colony.) Her crime? She was a Quaker. The Saints (the Puritans name for themselves,) hung her for the very thing they left England for — religious freedom.

        There’s good reason for first amendment protection; it was radical. But it cuts two ways; while it protects you to practice your religion, it also protects others from the practices of their religion if there’s conflict. A hundred years later, and Mary Dyer would be welcomed, at least legally, in the Commonwealth of Massachusetts. Her neighbors may well have refused to sell her bread, but they wouldn’t have so easily hung her to death.

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      • Definitely because of the first amendment; in Massachusetts Bay Colony, they passed a law outlawing anyone who was a Quaker from living there.

        And when she moved there, when she preached in the public square, and refused to leave, they accused her of violating that law and hung her for it.

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      • Where did I say I don’t see the need for the First Amendment?

        As fore why it is the way it is, I fully understand it’s political necessity at the time. Perhaps even now.

        But when you look at how the protection afforded under “religious liberty” has been rolled back over the decades, I think at some point maintaining the notion of “freedom of religion” when really all we actually mean is, the freedom to do what you want to do as long as it doesn’t conflict with the state in a “non-compelling” way, is useless and leads to much confusion.

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      • FWIW, I actually think both.

        Which is to say that I agree that much of why she wouldn’t be hung today have to do with rather large cultural shifts that have taken place over the past 400 years. But I also believe that the first amendment was a primary driver of those shifts.

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      • New Dealer’s comment helped crystallize something in my mind that I think Ethan may have overlooked, which is that broad liberty claims don’t sufficiently specify all their implied applications.

        For example, while we now agree that SSM is a part of equal protection, the equal protection clause was in effect for over a century before we began to think, Oh, equal protection also means SSM.” We had to specify the particular application and demand it by name before equal protection actually incorporated it in fact, as opposed to merely in theory.

        So with a broad “liberty of conscience,” there’s not enough specificity to necessarily protect religious freedom as well. It’s easy enough to say “we only tolerate rational scientific conscience, because of course all religion is mere superstition,” or to say we only tolerate liberty of conscience for people who believe in the same broad framework we do,” which excludes Jews and Muslims, because their framework is a bit too broad.

        There are folks out there who think the First Amendment applies only to Christians, so it protects Baptists as well as Presbyterians. Catholics, I suppose so. Mormons…we’ll get back to you on that. In American legal history it was not always applied to Jehovah’s witnesses, who only wanted to not be forced to salute the flag. If even something as apparently specific as the First Amendment can sometimes be read less broadly than what its proper application ought to be, how much more so will that be a problem for something as broad as “rights of conscience?”

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      • What Tod said: we would not be where we are today (discussing the lack of need for religious freedom) without the history of religious intolerance and the first amendment.

        I am atheist, and without first-amendment protections, I can easily imagine a world where my lack of belief, if I professed it, would cause all sorts of legal problems for me; a world where atheists would have to live in a closet.

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      • I am not familiar with Mary Dyer but I am familiar with Anne Hutchinson (and her namesake parkway in NY) and Roger Williams. Pennsylvania was of course founded as a colony for Quakers, Stuyvesant was famously told by his superiors that he needed to let Jews into New Amsterdam and they could serve on the militia, Maryland was for Catholics, etc.

        I concur with Tod. The cultural shifts that we have today were started by the Englightenment idea of freedom of religion and speech and also by the First Amendment.

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      • James brings up a good point that there are still a lot of people who talk about how the US is a “Christian nation” and the First Amendment only applies to the Federal Government and/or possibly Christianity. So there are lots of Jews, Muslims, Hindus, Shiks, Buddhists, Pagans, Wiccans, Unitarians, Agnostics, Aethists, and probably even Catholics who need the First Amendment.

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      • The problem with saying that religious liberty is just a subset of broader liberties of conscience that we recognize – that religious liberty is a potentially forgotten cousin of a general class of liberty of conscience – is that in fact it’s not a subset thereof, but special class of liberty in the way we treat it. We in fact don’t extend as many or as extensive or as freely exemptions to laws to people who claim a general conscientious objection to following them as we do for those claiming a religious objection. There is an entire infrastructure of law, and we as a people have a whole mental category of allowance for people whose religious faith prevents them from being able to follow laws of general application.

        We can say this is an artifact of the First Amendment and our nation’s particular history – of precisely the need to not let religious liberty be protected by a general protection of liberty of conscience. But then we’re just restating the facts that Ethan is reciting. Perhaps it’s not possible to both specifically name religious liberty and have it not take a special place among liberties of conscience, and perhaps it’s a good answer to Ethan to say that without singling it out, history shows it would be trampled. But if in fact it has a special status among liberties of conscience and there are protections from law for religious conscience that don’t exist for other kinds of conscience, then if the justification for the specific protection is only that religious conscience shouldn’t be left behind but remain in parity with other liberties of conscience, there is a gap in justification that it’s fair for Ethan to pursue.

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      • I think Ethan established it as just a subset, in his argument that the broader conception of liberty of conscience incorporated it.

        But your point that this wouldn’t explain religion’s privileged place as having a stronger liberty claim in U.S. law seems worth thinking about.

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      • I think Ethan established it as just a subset, in his argument that the broader conception of liberty of conscience incorporated it.

        I think Ethan was slightly less clear than he could have been that he meant that bringing these into accord and right-sizing them would mean a very real paring back of the material protections we give to religious conscience from where they currently stand – not that a general conscience protections currently exist that give the same protections as religious conscience protections do. I.e., that perhaps general conscience protections from laws of general application would expand somewhat from where they currently are (which is pretty much not anywhere except on selective service and then rigorously interrogated), but that religious exemptions would be rolled back more significantly to bring these into alignment. (Though perhaps slightly less than it would seem materially and more rhetorically, since his I think his view is that in practice lately the religious, to say nothing of the general, conscience exemption actually does mostly give way when it confronts a government objective of much importance at all lately.) But I could be wrong about that.

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      • Nowadays we could probably do OK without the Establishment Clause: see the UK, the Netherlands, and Norway as countries with state churches that don’t place any burdens on people of other faiths (or none.) That’s hardly an argument that it wasn’t vital at the time.

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      • Nowadays we could probably do OK without the Establishment Clause:

        Maybe federally…maybe…but not at the state and local level, where de facto establishment efforts are still too common.

        On the other hand, it’s an open question whether it’s just EuroCulture in general or the very fact of an official state church that has driven religious belief so low. If in fact it’s an effect of a state church, I might be talked into favoring one here in the U.S. Preferably some non-evangelical predestinationists, so they won’t feel obligated to proselytize me.

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      • Nowadays we could probably do OK without the Establishment Clause

        Here in the US, may I draw your attention to the Park 51 controversy, that whole “No Ground Zero Mosque” thing indicates a significant current of religious intolerance in the US. As does the wave of sharia law ban efforts/attempts in several states. There’s definitely the impulse to (further) privilege Christianity in significant strands of US politics.

        countries with state churches that don’t place any burdens on people of other faiths

        And in the UK (I’m less familiar with how this plays out in the Netherlands and Norway), the established church has Lords Spiritual sitting in the House of Lords as of right. No other religion gets these legislative seats, and no other religion is thus represented. It isn’t like there’s an Atheist Lord Spiritual, a Jewish Lord Spiritual, and so on; they are all Church of England Bishops. If I recall correctly, the UK is the only democracy that has specifically allocated seats for church figures constitutionally. There aren’t many Lords Spiritual, but they get to vote on legislation, propose amendments, and all the other rights of members of the House.

        Elevating the established religion in that way does impose a burden on everyone else.

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      • Park 51 isn’t about Christianity. There are (unfortunately) Jews on that side too, and the battle line are drawn up along exactly the axes you’d expect from any GWOT-related fight.

        I didn’t know that about the UK (I’d assumed that the CoE functionaries went away with the hereditary peers.) So take it off the list.

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    • I thought the implied claim that secular reason/logic is the final arbiter of the “compelling-ness”

      Oh sure, let’s not worry about religious liberty when your religion is in control. :)

      More seriously, this helps explain the need to name-check religious liberty. The government (courts and other institutions) are secular in nature (which is a good thing) but, by definition, matters of faith fall outside of such “reason/logic”. An unwillingness to consider matters of religious liberty within a religious framework will result in flawed and under-developed decisions.

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    • It seems to me that this part of what you’re saying is obviously true.

      There is and should be general freedom of speech and thought (and the right to assemble and interact with others consensually) for the religious and non-religious.

      What is sometimes called “Freedom of religion” is just a subset of these more general rights. And all these rights must be curtailed and balanced in small ways. (A la Rawls) For example, we don’t allow animal torture, whether you believe it is good for religious on secular reasons. We require Hutterites to send their children to school. On and on.

      There is nothing special about freedom of religion as a species of freedom of thought, speech, and consensual behavior.

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  7. My simple answer is that providers of commercial goods and services should generally allowed by allowed to deny service on account of a person not being able to pay or because a customer is causing a disturbance of some sort. The 1964 Civil Rights Act should apply to sexuality and gender identify as it does to race.

    However, religious liberty is an important value if only because its listed in the Constittution. Saying that religious liberty isn’t important gives them government the power to do things like ban kosher or halal slaughter as the rule in certain European countries. It also leads to some real absurd decisions. In Sweden, halal slaughter is permitted but kosher slaughter is not because the latter is more “barbaric” or something like that.

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  8. Already then, I’m not sure what to make of the idea that a “monocultural elite class” is inclined to resolve conflicts “in favor of its egalitarian goals” not only because I doubt the conflict truly exists, at least as Dougherty has framed it, but also because, to the degree that there is a “monocultural elite class,” one which presumably has the power to resolve disputes like the one that arose in Arizona, there is little evidence that it is truly committed to “egalitarian goals.”

    It is fairly simple to see what this is. Lots of conservatives have convinced themselves that progressive elites have seized academia, the media and other organs of influence and are using their power to push a progressive agenda. And they see religion a means of resistance and of enforcing the traditional social norms that they prefer.

    There is some truth to this conservative position. Social norms are becoming more liberal and academia and the media reflect that. The objectionable thing about the conservative position is that it is attempting to co-opt the idea of religious liberty to fight a rearguard action against all the things that they don’t like. And what makes it really interesting is that this somewhat of a new phenomenon. Fifty years ago the evangelical movement had a decidedly apolitical stance; give unto Caesar and all that.

    This religious switch is part of a larger switch within the conservative movement in how it engages on these sorts of cultural issues. This should be noticeable to anyone who remembers the early PC culture wars of the 80s and 90s. At that point, the conservative critique of progressives and of political correctness was that it was moral relativism and that the best way to help people wasn’t to tear down the structures of liberal democracy and capitalism, but to expand those structures slowly to encompass those who are presently marginalized.

    Fast forward to now and you see how most conservative intellectuals have simply abandoned trying to advocate for an increasingly inclusive center. They have chosen to become moral relativists themselves, just in support of the reactionary position as opposed to the progressive one.

    To sum it all up, you would do better to title this post “The Movement Conservative Notion of Religious Liberty is a Farce.” As Jason point out above, the idea that we ought to just sweep aside the freedom of conscience, because we now find it inconvenient to fully implementing our preferred social norms is the exact opposite of liberal.

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  9. Because not enough people are yelling at me these days, I’ll throw this in here:

    The Dougherty piece is good example of why I tend to think most instances of using “philosophy” to make public policy decisions is just a long, pointless, self-important exercise in backing into whatever position you were going to be taking anyway and pretending it somehow means something more.

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  10. Ethan, good post. Thoughtful, well written. And deep!

    You wrote: Rather, as seems much more plain and likely, beliefs and practices which are dressed up in religious justifications and traditions and are for that reason accommodated when benign are simply not acceptable when they actually conflict with secular values and principles.

    I agree with the general point you’re making here, tho if it were me I’d drop the “dressed up in religious justifications” since I think that fundamentally begs the question at issue. The general point, however – that conflicts between religious practices and other values often are resolved in favor of secular values – stands, and doing so can certainly be defended (or meet the burden of justification, or whatnot).

    In other words the idea of “religious liberty” is a ruse, and one which is exists because of historical accident and is casually maintained because it’s politically expedient to let people continue to believe that morality is not something the state is interested in regulating.

    This I think I dis agree with as fully general view of things, but maybe I’m confused and you could elaborate on it a bit.

    First, it seems to me that whether or not religion’s privileged place in our constitution and social fabric derives from accident or not is besides the point. That is, the reasons why religion holds this place don’t really matter. Fact is, it does. And given that, tensions between various conceptions of acceptable practices arise, as well as tensions regarding what the role of the state might or might not be in resolving those conflicts.

    Second, insofar as a person claims that religious liberty leads to the conclusion that the state has no business regulating morality, then I think you’re on firm ground. But I don’t think that’s what the argument is. I think the argument is narrower, and focuses more on what you referred to as tolerance of “benign practices” and disagreements about what that means. For example, does a wedding photographer’s refusal to serve gay clients constitute a benign expression of religious liberty? Arriving at an answer may require some context, but the presumption held by religious liberty advocates is that it isn’t. As a result, they conclude that the state has no role to play in imposing a secular conception of morality on them.

    That said, I don’t want to go too far in defending this type of argument since apparently prohibiting gay marriage is also viewed by some folks as the expression of a benign religious liberty and along precisely the same lines as the wedding photographer. Personally speaking, tho, I think the two things are dissimilar enough that even a secular-morality kinda guy could see it and if religious liberty folks don’t, that’s all the worse for them.

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  11. Also, let’s not oversimplify what enlightenment philosophers thought about freedom of religion or justifiable restrictions on freedom of conscience. They might have argued on Ethan’s side. Certainly Spinoza would’ve. Hobbes suggests the state should have religious authority which is weird, but there it is.

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  12. I think you’ve fundamentally mis-stated the issue here, Ethan. Religious “beliefs” do not, in fact, receive special protection, nor by and large do we conceptualize the “beliefs” themselves as having special protection. “Beliefs,” and specifically the expression thereof, whether or not tied to a concept of a god or gods, are given damn near absolute protection – we call this freedom of speech and, to an only slightly lesser extent, freedom of association.

    The First Amendment does provide religion with an additional separate protection – specifically, the protection to “exercise” those beliefs; in other words, actions based on religious beliefs are given special protection – the beliefs themselves are no more and no less protected than other beliefs.

    And there’s excellent reason for providing religious actions with special protection – religion is in many ways the original “protected class.” That religion began to receive its “protected class” status at a time when race was being introduced as a justification for slavery is deeply saddening, but does not alter the fact that religious-based oppression was (and to no small extent, still is) a very real thing. The question isn’t “why do religious beliefs deserve special protection,” it’s “why don’t religious groups deserve to be treated as a protected class just like other groups?” Or, if you want to ask it from the perspective of the era before anti-discrimination laws, “why don’t other groups with innate characteristics deserve the protection offered to religion?”

    Religion is historically very closely tied to ethnicity, and in many instances, membership in a religion is something individuals are essentially born into. Oppression of religious practices is historically one of the easiest ways for governments to oppress minority groups, to suppress dissent, and assert dominance over the conquered. Religious practices are thus also an outstanding way for groups in power to distinguish between “us” and “them.”

    The fact is that it’s not possible to truly ban “beliefs,” which exist solely in the head of a given individual. It’s possible to ban certain speech, and certain assocations that those in power regard as a threat, and thus liberalism requires strong protections of freedom of speech and association. But even with those protections, it’s still quite easy to undermine them by targeting religious practices – want to prevent your largely-Catholic opposition from organizing? Ban the act of communion. Want to force the Jews you just conquered to assimilate into your empire? Ban circumcision and feasts. Want to curb Muslim immigration? Ban the hijab. Etc., etc. (some of this is oversimplification of actual events, but you get the point).

    None of which is to say that the Arizona-style laws are a good idea, nor that I support Hobby Lobby – they aren’t, and I don’t. In the former case, there are no religious “practices” being prevented by anti-discrimination laws,* and in both cases, corporate entities cannot, by definition, “exercise religion,” because only individuals can have “beliefs,” and particularly religious beliefs.

    *Here’s an interesting thought, though – what if the objection to anti-discrimination laws as applied to SSM specifically was based in the establishment clause? This seems a much stronger case to me. In essence, the argument would be that applying anti-discrimination laws to certain types of wedding services violates the establishment clause by requiring participation in a religious ceremony. I don’t think that my objection to allowing corporate entities to take advantage of a free exercise exception to anti-discrimination laws would apply to an establishment clause exception.

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    • Am I failing to think of conduct that is exempted from statutory proscription/sanction on the basis of the actor being identified as a member of a protected class defined by innate characteristics?

      The analogy works where the issue is preventing the denial of equal treatment on the basis of religion (or any other protected class). But religious liberty frequently extends, or at least is argued to extend, to carving out nonuniform exemptions from sanctions of law that would apply equally if not for the exemption. (Here it’s critical to distinguish laws that are found to be in fact denials of equal treatment – i.e. that ostensibly apply to all equally but in fact are aimed specifically at restricting the religious liberty of a particular monority – from laws that are found to be truly of general application, passed pursuant to interests entirely unrelated to religion.) Am I completely missing ways in which this occurs for other protected classes?

      So I think the question really is “why do religious beliefs deserve special protection,” not “why don’t religious groups deserve to be treated as a protected class just like other groups?” The latter is entirely clear. The former needs justification. I think the best way to frame the question is, “Why do actions taken (o not taken) pursuant to religious beliefs deserve special affirmative protection from laws of truly general and nondiscriminatory application, rather than merely treating religious groups as a protected class just like others?”

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      • This is a fair point, but keep in mind that I don’t personally think exceptions to laws of general applicability should be so easily found. So I disagree with the breadth of the special treatment that is often demanded – that is why I am fully in agreement with ‘s point that the issue is more properly stated as “The Movement Conservative Notion of Religious Liberty Is A Farce.”

        What I’m advocating here is something akin to a “disparate impact” doctrine for religious practices, which from your comment it seems you wholly support, though I’d probably expand it a bit from there. I don’t have a problem with the so-called “Sherbet Test” insofar as it places an emphasis on protecting actual religious “practices.”** In other words, I think there’s good reason to be suspicious of the application of any law that has the effect of preventing an actual religious action, where action can include anything that can reasonably be claimed to be a ritual, like staying indoors on the Sabbath. That kind of burden is, to me, prima facie evidence of discriminatory intent, at least as-applied. So, in the Sherbert case itself, where the plaintiff was denied unemployment benefits because she was unwilling to accept work on the Sabbath, an as-applied exemption was wholly warranted – there, the law actually had a good cause exemption allowing workers to retain benefits if they had “good cause” for declining employment. Under those circumstances, it’s hard to avoid the prima facie conclusion that discrimination against the plaintiff’s religion was the real reason she was denied benefits – the law allowed for a degree of selective enforcement and somehow her religious practices didn’t prevent her from being selected.

        In the Employment Division v. Smith case, the Sherbert test also should have been applied – again, what was being burdened was an actual “practice,” the sacrament of taking a particular substance.*** While selective enforcement was probably less of an issue there, applying the Sherbert “compelling interest” test is a really good proxy for getting at whether a given case is one of selective enforcement – in other words, it’s a good parallel to the “disparate impact” test that exists under anti-discrimination laws. I’d probably have sided with Brennan’s opinion there, but at the time I would have had a hard time objecting to O’Connor’s concurrence with more than mild criticism.

        This type of exemption is not all that dissimilar analytically from, say, a conclusion that a given law should be overturned because of its disparate impact on people of color. The difference – and it’s admittedly substantial – is that in the latter case, the law itself winds up overturned, while in the free exercise case, it’s only being overturned insofar as it’s applied to a particular group. However, if you could find a way to tailor the overturned law in a way where it did not have that kind of disparate impact, it would wind up functioning in a manner analogous to a religious exemption from burdens on particular actions.

        Where I draw the line, though, is when we start talking about people demanding that they be exempt from requirements that they engage in secular action, not because it burdens an actual “practice” but because they claim performing the action would violate their religiously inspired moral beliefs. As I’ve been saying the last few weeks, the free exercise clause protects religious actions, not moral beliefs that you claim have a religious basis. Your options at that point are the other parts of the First Amendment, or the 14th Amendment.

        **The Arizona legislation, including the law as it already exists in Arizona, protects any action or inaction that is “substantially motivated by a religious belief,” which is a far broader definition of “exercise” than is at all justified.

        ***By the way, I find the manner in which most conservatives have distanced themselves from Scalia’s opinion in Smith and some liberals have distanced themselves from Brennan’s fairly amusing.

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    • I should think that’s rather obvious and also quite clear from my comment (as well as points made by others above). Religious practices allow for what might call “marked identities” (and veronica, thank you for introducing that phrase here – it’s incredibly descriptive). What’s more, those trappings closely correspond to traits that may not be so easily “marked,” such as ethnicity, and further those trappings are acts around which cultural identities are formed and exist. Simply put, religion is and always has been amongst the most central and important group identities, both for purposes of organizing dissent and for crushing it, as well as for purposes of creating permanent underclasses. While it’s possible to convert your religion in a way that it is not possible to convert your race or sexuality, it’s still mostly something that people are born into and, because they are so closely intertwined, is also a wonderful proxy for ethnicity (and, to a lesser extent, race). At bare minimum, providing special protection for the exercise of religion denies those who would seek to oppress other ethnic groups the most useful pretext by which to do so.

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      • Mark, I’m reading this comment of yours as distinguishing between “protection of” and “protection from” certain types of practices. Paraphrasing, it seems to me you’re saying that a protected class is where the “markers” are intrinsic to individuals; that there is an observable historical pattern (or whatever) of harmful discrimination against individuals based on those markers; and that anti-discrimination laws are justified to protect those classed from certain types of practices.

        It seems somewhat obvious, maybe, to say that all of those protections *from* entail protections *to* individuals in the relevant classes. That is, the law is justified as granting protections to certain classes of people: the protection to not be discriminated against in certain market-oriented, say.

        Consider the argument, now, from a religious liberty pov. Religious liberty advocates are arguing for protections to not be discriminated against in certain types of market-oriented transactions. For example, they want to be protected from discrimination legislation for failing to serve prospective clients based on certain religious beliefs. And given the prevailing winds of political change, they see legislative restrictions being imposed on practices that from their pov (and maybe from other povs) as being relatively benign. (Eg, the right to refuse service.)

        Why does that conclusion not follow from the argument you gave above? (Standard disclaimer of potential/likely confusion applies.)

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      • Actually re-reading that I bungled where I was going with the distinction between “protection from” and “protection to”. That it’s in there will confuse things a bit, but the point isn’t particularly relevant anyway and clearing *that* up will only confuse things more.

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      • Religion definitely forms marked identities, although you have to remember that a marked identity is only half the picture, since you also have to look at how that identity interacts with social power structures.

        For example, “Hollywood star” is probably a marked identity, but no one would claim they are oppressed.

        The marked identity lets the stereotypes and stigma attach. It creates the double standards and double binds. But it alone does not cause the oppression. That requires other social forces.

        “Christian in the USA” == marked identity, not oppressed

        “Muslim in the USA” == marked identity, oppressed

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      • By the way, if you want to dig deeper into the theoretic model behind “marking,” I learned about it in Julia Serano’s newish book, Excluded.

        The book focuses on the experiences of minority groups within queer spaces — for instance trans women trying to get by in the lesbian scene — and thus will likely have a limited audience. Which is a shame because it is a brilliant book. I would love to see some writer take the ideas and expand them to a larger social justice framework.

        (I think the book falls short regarding economic analysis. Which I call work to be done.)

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      • veronica,

        although you have to remember that a marked identity is only half the picture, since you also have to look at how that identity interacts with social power structures.

        Exactly. I think that’s a really important point, myself. Which gets back to the bungled “protection from/protection to”, distinction I was getting at earlier. Part of Mark’s argument is that the concept of “protection from” makes sense given a power structure such that certain types of what we now view as discriminatory practices are entrenched cultural norms (or whatever). Given that, it’s easy to confuse the argument for religious liberty as a protection to engage in a bunch of otherwise objectionable practices.

        But – and it’s a big but – if Christians (or whoever) can establish that that cultural norms and practices have shifted so far in the other direction that prevailing power structures now discriminate against them, then the same type of reasoning and logic which justifies other protected classes ought to extend to them.

        Again, I’m not arguing for their inclusion, but it seems to me that Mark’s argument would entail that it should if the case can be made that Christian’s are being “marked” in discriminatory ways.

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      • I completely agree and was not trying to imply otherwise. I’m just arguing about why it’s important that members of religious groups in general have special protection as to their practices in addition to the protections that all people are supposed to have for their speech and association.

        Uniform application of the First Amendment is supposed to protect those with the least power and those who are least popular – those who are in power and are popular generally don’t need to worry much about having their rights trampled upon. Whether it lives up to those expectations of uniform application is a different issue.

        Huh?

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      • That’s more or less right, with this caveat – true instances of reverse discrimination, particularly reverse discrimination by state actors, are exceedingly rare; however, when they occur, they are at least theoretically just as worthy of correction. On the other hand, they’re also no more worthy of correction, either, and as a practical matter, they’re far more likely to be corrected, so I have to emphasize that this is primarily a theoretical point.

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      • — Well, social norms are changing. However, I see no evidence that Evangelicals are being oppressed the way minorities are. And evidence is needed — keep in mind the MRAs claim that men are oppressed. (They also claim that we trans gals are jumping to the women’s team because we sense this. About which, ha!) So, yeah, we need evidence. When challenged on this, evangelicals usually point to some anecdote where a Christian was asked not to wear a cross to work (about which, on this point I agree with them; outside of safety concerns, religious jewelry should be protected) or crying that anti-bullying legislation unfairly silences their religious expression.

        And on the latter point, their preoccupation with this issue reveals much.

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      • It’s not terribly hard to imagine anti-bullying statutes having some First Amendment problems. Whether the ones on the books do or not I am not sure, but it’s not necessarily a concept to be dismissed out of hand. I’d be more concerned with Speech than Religion, but the latter doesn’t strike me as necessarily ridiculous (if it’s poorly drafted, anyway, and anti-bullying statutes strike me as something hard to draft well).

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      • As the saying goes, “just because you’re paranoid…”

        It is almost never a good idea to judge an idea by the worst of that idea’s proponents. You get the idea?

        That is my biggest problem with this post. Religious liberty is about much more than the twisted version of it being put forth by some conservatives. And the same goes for a whole lot of things that fall broadly under the rubric of what I would call identity politics.

        White people complaining about reverse discrimination are generally full of it. That don’t mean that there aren’t problems with affirmative action. MRAs need to grow up and get over themselves. That don’t make progressive feminism correct.

        You can’t prove your point by disproving the other team’s points, not unless you buy into that false duality in the first place.

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  13. I want to say something in support of what I believe Ethan to be getting at, but I simultaneously want to say that I very much disagree with the main thrust of his point. I am not sure that I am going to be successful in doing both at the same time, but here goes.

    I’ve long thought it vexing that we excuse people from serving in a war if they are part of some established religion that espouses pacifism, but not if they just happen to think that war is stupid. In a way, that is a historical accident, but as points out, history itself is a series of accidents. And religious freedom has, historically, been a net plus. So, while I would like to see us get to the point where we respect individual conscience to the same extent that we respect the collective conscience of organized religions, we ought to get there by increasing the consideration that we give to individual freedom and not by eroding religious freedoms. Case in point, we were able to end the draft without having to roll back conscientious objector status.

    The really troubling thing about this post is the idea that, if religious liberty is standing in the way of our secular goals, then it’s time to sweep aside religious liberty. Not only is this ahistorical, but it is illiberal.The point of individual freedom is that it often gets in the way of our secular political goals, in the same way that the point of a speed bump is to keep you from doing 60 mph down a residential block.

    Our commitment to individual liberty is imperfect. And expanding the full franchise of citizenship to gays is a move towards a more perfect world. You are not, however, going to get there by dog-piling on religious freedoms at a moment when you’re winning anyway. The conservative reaction is just that, a reaction. See the forest for the trees.

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    • Your on fire .

      So, while I would like to see us get to the point where we respect individual conscience to the same extent that we respect the collective conscience of organized religions, we ought to get there by increasing the consideration that we give to individual freedom and not by eroding religious freedoms.

      I agree with this.

      Part of the conundrum may be that we put to much emphasis on our own freedoms, and not enough of the freedom of others; something that can be particularly nettlesome when it comes to matters of conscience and what you should or should not do. Conscientious objector status is a good example (and now, something that would not be a unless there is once again a draft.)

      Employers paying for health care plans that include contraception is a more recent debate. Obviously, I as both a woman and a liberal, I come down on the side of a woman’s right to control what happens to her body; and know from personal experience that most women’s #1 health concern and health-care cost is the function of their reproductive systems.

      But the freedom to practice your religion, to express your conscience, also has to include the freedom of others to do the same; even if it means you are in some way taking some action you, personally, find immoral — like paying for an insurance plan that covers contraceptive costs. Every woman should have the right to control her reproductive life as she sees fit and in accordance with her religious beliefs. I have trouble with this when someone else’s belief flows outside their own personal choices and applying rules to others; making this decision for them.

      The rights of individual freedom require responsibility and commitment to other’s right to individual freedoms. It’s not just something you have, it’s something you owe.

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      • “But the freedom to practice your religion, to express your conscience, also has to include the freedom of others to do the same; even if it means you are in some way taking some action you, personally, find immoral — like paying for an insurance plan that covers contraceptive costs. Every woman should have the right to control her reproductive life as she sees fit and in accordance with her religious beliefs. I have trouble with this when someone else’s belief flows outside their own personal choices and applying rules to others; making this decision for them. ”

        , This is an excellent, and much more generally applicable, way to put a point I was flailing in the direction of. Thank you.

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  14. Ethan, first of all, thought-provoking post. Post more often!

    Second, inasmuch as I understand where you are coming from (and I think I do, as Michael and Jonathan have paraphrased/summed it up) I largely agree with you, and this kind of goes back to an old thread JL Wall had about Peter Singer that I think you were part of.

    I think the peyote example makes it quite clear: whether I need it because my religion prescribes it (and of course, in today’s world, the govt. will decide if my religion is valid or not), or because it alleviates my depression/back pain, or because I really really like staring at my hand for 5 hours, should make no difference. It’s sort of conceptual nonsense to pretend otherwise, barring any other considerations (such as if peyote is highly likely to send me into addiction, a coma, or a killing spree). The liberty to do what I want, as long as I am harming no one else, should be the societal baseline, and it should not matter if my motivation is religious in nature.

    Or as Brandon was saying the other day, if it’s really important, like child sacrifice/murder, we’ll have a law against it anyway, religious motivation or no; otherwise, we probably shouldn’t have a law at all.

    Third, to my mind that is a VERY libertarian principle, and I am A.) reminded that I was surprised to find you consider yourself more ‘left’ than ‘libertarian’ and B.) surprised that some of the strongest pushback here is coming from Jason and James.

    Last, those arguing that an exception/protected class has to be carved out for religion, due to real-world history and political considerations, may have a valid point; but such arguments are made against new ideas/proposals/conceptual frameworks all the time and I don’t consider them necessarily dispositive. We never had a world where plain old “freedom of conscience” (versus “freedom of the prevailing culture’s Catholic/Christian/Muslim/etc. conscience”) was the baseline; but that’s not to say that’s not how it should be, or that it’s not where it is going.

    It may be the case that we truly can’t get there from here, or it may not be. I would say that if we ever reach a point of a majority atheist/agnostic populace, it’s quite possible.

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    • FWIW, my initial impression of much of the pushback is that it proceeded from a subtle but nevertheless quite basic misapprehension of Ethan’s fundamental intention in the post, though, given the variety of strong claims he made in pursuing it, I didn’t find that to be at all unreasonable. I couldn’t really put my finger on it, but that was my impression.

      I agree on 3 other things:

      1) Ethan was one of the best thinkers the site had when he first got here, and he was a quite good writer; since then he’s improved as a writer more than any writer I’ve seen come through here do

      2) Therefore he should post more, but everyone posts the right amount for them;

      3) Ethan perhaps unintentionally pulls off left-libertarianism with as much discipline and success as anyone else I’ve seen on the internet do it as an intentional, self-described pursuit.

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    • and
      I’d like to present two scenarios which put me firmly on the fence in some of these considerations of how to regard religious liberty. And the latter two, I think, may run counter to the suggestion Brandon offered.

      First scenario. Setting aside one’s views on conscription, is there a difference between saying (1) I’m a Quaker, don’t conscript me; (2) I’m a pacifist, don’t conscript me; (3) I oppose this war, don’t conscript me. Are 1 and 2 really the same thing? Are 1, 2, and 3, really the same thing? Should the Quaker’s objection get extra deference merely by being grounded in being a Quaker?

      Second scenario – state as employer. There’s an employee in government service whose religion says they need to wear particular religious item. To what extent, if at all, should the state make an accommodation? For the military captain who wants to wear a yarmulke while on duty? For the public school teacher who wants to wear a turban to class? (In the case of the Oregon school teacher, it was a lose your license to teach level offense.)

      Now, supposing the state makes an accommodation fo the religious employee, so yes, Captain Goldman can wear his yarmulke when in uniform, does that mean the military has to also further open up to whatever headgear someone wants to wear? Does Goldman v. Weinberger, decided in Captain Goldman’s favor, therefore mean that another captain gets to wear a fez or a fedora while on duty because it is fashionable?

      To me, there’s some force in ‘s urging you to consider it from the religious believers’ perspective and what “shunned by God” really means.

      tl;dr Re-read Antigone, there’s some difficult liberty interests being measured against one another in this domain that doesn’t just extend from considerations of liberty writ large.

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      • I think I do consider it sufficiently from their perspective when I say that the reason we give them the protection from otherwise general strictures of law is because their beliefs are extremely sincere (they really believe it) and reverential (the need to obey is very compelling for whatever faith-specific reason [“and shunned by God” can’t be a salient part of that, because we grant (and I’m for granting!) religious exemptions for all kinds of beliefs about what the consequences would be – not just ones that are in some way like the consequence of being shunned by God]).

        I think it’s arrogant to think I can get inside of their faith-world any more than that without extensive, explicit guidance from them about how. (Hence my prodding of james to offer more than what he did if he’s sincere in wanting me to come to understand one particular faith-world’s perspective.) But given that all I think is necessary is to just grant that when someone claims a religious exemption, they do so because they are very sincere and reverential in their faith and that being faithful for them means that they cannot obey the law in this way, it really doesn’t much matter whether I get inside their faith-world at all (nor does it matter that they might be right – all that matters is their sincerity in thinking they are (or even might be).)

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      • – it’s been a long-ass day and I don’t intend to do any research of legal precedent here, but as is my wont (it’s the internet after all!) I am going to give some quick, glib, knee-jerk answers about how I think things OUGHT to be in an ideal world.

        Scenario 1: In my mind, there should be no difference. All claims are equally valid.

        Scenario 2: In the military, I don’t think ANY accommodations need be made, beyond some generic one-size-fits-all one, for ex. all soldiers can have 1 tchotchke, of any type they choose, on their dogtag chain.

        In the US military, I don’t want there to be blacks, whites, Christians, Muslims, Jews, gays, straights: I want there to be American killing machines. I think in the military, of all places, there is ample justification for requiring all soldiers to set aside *any* symbol other than those of rank and country. So no yarmulkes, or turbans, or fezzes, or fedoras. And if you’re not cool with that, don’t join up. (Bear in mind that if we had conscription, my calculus might change).

        W/R/T the teacher however, I would expect them to be allowed to wear a turban, or a yarmulke, or a hijab, or a dashiki, or a Disco-Stu-style suit and afro, so long as they maintain a clean and professional demeanor, and so long as the outfits are not unduly distracting from the learning process (so in this sense, a bikini might be just as out as a burka might be).

        My general take is that I am against giving people passes under the law for religious reasons (not as a matter of custom or courtesy, which I am totally fine with) just because they really, really, really really believe their god says they must get a pass from the law. I don’t see how that claim can be justified in a secular society in any way other than political/practical (as people have said, if doing otherwise might lead to sectarian strife or whatever). I’m very uncomfortable with the way that privileges the beliefs and actions of members of established religions over the beliefs and actions of an atheist or a follower of Glyphentology, which harnesses the POWER of your MIND.

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      • reading my comment I realized this may not be clear:

        (not as a matter of custom or courtesy, which I am totally fine with)

        What I mean here is not to give people passes from the law out of custom or courtesy; I mean that in scenarios where no law is being broken but they are not meeting some local standard, I am fine with giving them passes out of custom or courtesy.

        But the law should be the law should be the law, for everybody in a secular society, IMO.

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      • In the military, I don’t think ANY accommodations need be made, beyond some generic one-size-fits-all one, for ex. all soldiers can have 1 tchotchke, of any type they choose, on their dogtag chain…. And if you’re not cool with that, don’t join up.

        So here’s the problem that emerges for me. As other commenters have noted in this thread, religious affiliation (e.g. as expressed through headgear) can closely be bound up with ethnicity. The lack of accommodation has far reaching consequences. It means no yarmulke wearing Jews in the military, no Sihks who wear turbans, and so on for certain religious identifiers.

        But very conveniently for Christians, who can discreetly wear a cross, they get a pass. Structurally, the majority religion tends to get a pass when such theoretically evenhanded regulations are put in place; the people in the places of power determining what “evenhanded” looks like tend to have a familiarity with Christianity from the outset. Thus the rules are structured to accommodate Christians – so for instance, December 25th being a federal holiday. While every minority religion comes up against this extra hurdle of not getting the special deference the majority religion tends to get.

        Furthermore, this unaccommodating position puts a powerful tool in the hands of those with pretty nefarious motives. Essentially, it gives a backdoor into establishing a religious test for various government positions. So for instance, members of the police force also wear uniforms. A potential cadet wants to sign up and is told, actually you can’t wear your turban or your yarmulke. Without some extra scrutiny regarding religion, those in power have a capability of screening out Jews, Sikhs, and others, with the really flimsy (in my estimation) justification that we want uniformity. As I mentioned before, a rule posited as evenhanded can operate in essence as a plus factor for the Christians who need not concern themselves with whether they’ll be put in a conscience conflict in such situations, like joining the police or the military.

        To me, I want those making the case for uniformity to additionally have to provide additional affirmative justifications as well. So, the military has to make the further showing that a turban or yarmulke presents some kind of hazard; and by way of contrast, I don’t think this extra showing is needed for fezes and fedoras. The liberty writ large perspective, and Brandon’s suggestion, have this blindspot in acknowledging what else religious liberty brings to the table.

        (Also, I’m not sure I understand your 9:21pm comment, if in the end we’re closer to agreement or not. So the law overrides custom and courtesy, but where there is not law then custom and courtesy can be more accommodating to the religious liberty claim?)

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      • – as I have tried to make clear, I consider the military a special case. A soldier is the closest thing to a slave our society can, or should, ever have. A soldier is essentially government property, and this ‘identity’ supersedes almost all else – if he is duly ordered “go on suicide mission X to achieve military objective Y” he is expected to do it. In the course of combat, his own life may be forfeit, he may be ordered to take actions arguably contrary to his religion’s usual rules on killing and suicide, contra his First Amendment rights he certainly can’t say what he wants to when he wants to – what’s some headgear or whiskers, next to that?

        Most US sects of Christianity don’t require special headgear or beards, but there are some that do. These sects could be just as SOL as Sikhs or (some) Jews or (some) Muslims could be in my hypothetical version of the military.* So it’s more accurate to say that the extant dominant culture may structurally advantage some types of Christians to the disadvantage of other types of Christians (as well as some non-Christians).

        When it comes to the police (or teachers, etc.) the rules should be different. They are civilians, and their rights, simply as human beings and regardless of religion (per the OP, actually), should permit them to express themselves through dress.

        Now, exceptions to this may be required for uniformity/identification/safety, or in the case of the teachers, a desire not to provide undue distraction in a learning environment; but theoretically, you don’t need “religion” to do this work.

        A Sikh should ideally be able to say, “the blue uniform and badge sufficiently identifies me as a police officer”, and so as long as swapping a hat out for a turban causes no safety issues, done and done.

        *I should make clear that I use “could” very intentionally here: I have no inherent issue with the military making exceptions either, *so long as* it appears to be making those exceptions in a neutral, fair-handed manner (which is maybe impossible – I can safely say they will probably not allow Pastafarian strainer headgear anytime soon, even if it’s made from Kevlar); this is why, IMO, some generic one-size-fits-all policy strikes me as probably better, and certainly defensible.

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  15. Seems to me that the only difference between a liberty based on one’s freedom of religion and a liberty based on one’s deeply held conviction, is that the one based on religion more reliably signals that you are part of a relatively less-marginalized or harder-to-marginalize group. Kind of thinking out loud, but if your deeply held belief or religious conviction (the requirement to slaughter animals, or smoke peyote) conflicted with legal prohibitions thereof, and you were trying to gain an exemption, who would you rather be. In order from least-rather-be to most-rather-be, in this country, I’d go with 1) member of non (or less) respected religion like Satanism, 2) atheist with deeply held conviction, 3) member of growing, yet still relatively regional religion, like mormonism, or 4) a christian. I think that is unfortunate.

    Maybe I want to arrive at the destination without going on the journey, but what I think after reading Ethan’s post, is that a freedom of conscience approach, while practically more difficult or problematic and perhaps less effective, is the preferred approach.

    And while a specific freedom of religion certainly did a lot of good and maybe on net still will, it also works for many as an un- or less-challenged place of privilege (here we go again). A place where the bigots and the haters retreat to when their beliefs are no longer defendable. Where magically, they become so again.

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  16. I consider a fair number of my beliefs to be religious despite the fact that I’m an atheist. Equality of people in the eyes of atheist god, for example.

    For the most part, I see most appeals to God or Religion as appeals to some kind of Authority on behalf of some fairly deeply held belief. The fact that I don’t believe in the Authority in question doesn’t make the belief any less deeply held than mine. Hell, it makes it a hell of a lot like mine.

    I find it fairly easy to hold the consciences of stupid and evil people in contempt, but I still prefer a society where it’s expected that they need to make concessions for the consciences of others rather than one that says “WE WON, DOUCHEBAGS” and lets them govern however they see fit.

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  17. Normatively speaking, the reason why we privilege religious conscience is because duties imposed by organised religion and other similar institutions have particular sociological and psychological features which make their enforced violation far less acceptable than they would otherwise be.

    Under any sort of golden rule/ reciprocity/ original position type of reasoning, if we try to consider whether we should violate some particular liberty, we would ordinarily try to consider how we would feel (or perhaps some typical person would feel) if that liberty was violated. Now, it just so happens that due to the particular sociological and psychological features of duties imposed by such institutions, we are, typically, far less willing to be forced to violate religious duties than other non-institutional ones. Consequently, the duties to respect religious conscience are that much more stringent, allowing far fewer exceptions than general liberty claims ordinarily would.

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  18. Damn, I was busy all day and missed out on a lot of this. and I are very much of a mind here, FTR. A couple things to add.

    The government does not “legislate morality” and never has. It legislates behavior. Some such legislation cannot be rationally justified but rather reflects prevailing but ultimately malleable cultural norms. But morality, like religious faith, is a completely internal thing.

    Corporations are incapable of morality. This is why laws, and only laws, can limit their behavior. Note too that corporations lack the capacity to have religious faith. Corporate officers, directors, shareholders, and employees are human beings, possessed of a kaleidoscope of faiths, moralities, virtues, inconsistencies in behavior, cultural mores, and flaws.

    There is no principled way to permit “small” corporations to exempt themselves from laws regulating the conduct of “large” corporations. We might do so arbitrarily. Title VII does not apply to most employers or public accommodations with 15 or fewer employees, for instance. There is no philosophical reason for this — it was the result of a political compromise, pure and simple.

    And as I’ve pointed out elsewhere, a freedom-of-conscience law based strictly on a person’s self-described religious beliefs means anyone can exempt themselves from any anti discrimination law on what amounts to the honor system. “I really, sincerely, and wholeheartedly believe that I cannot transact with a son or daughter of the Tribe of Ham, who were marked for their sins in perpetuity by The Lord with dark skins.” And boom, no black people at that lunch counter. This renders a mockery out of the civil rights laws.

    You can bake and sell a wedding cake to a same-sex couple while still believing that homosexual behavior is sinful. Just like you could sell them steak dinners or rent them a hotel room. No one, including your customers, will kick you out of church for it. If your church won’t have you because you refused to discriminate insidiously on behalf of a business, then let me respectfully suggest you may have selected the wrong church.

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    • I don’t know, if particular states or governments can be said to act unjustly then some corporations can be said to act immorally. In particular, it may be that some times, one may need to act jointly with others in order to perform one’s natural duties and thus be obligated to form a corporation, in particular one under which its constituent agents are forbidden from taking certain actions or required to take some other ones.

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      • I suppose that we may credit a corporation’s actions with moral gravity, as when it donates money to charity or endangers the health of people. We are largely evaluating the effects of its actions in so doing, though, rather than its intent.

        Let me try it this way: there seems little doubt that My gun is not a moral agent. It is neither morally good nor morally bad. I might use the gun in a morally bad way, or perhaps I use it in a morally good way. But the gun itself lacks moral agency. How is my corporation any different than that?

        And back to the point of the OP, my gun also is not an atheist. Nor is it Catholic or Muslim or Sikh. It is not capable of being any of those things; it lacks the mental capacity to have faith (or disbelief, in my case) and it lacks the ability to worship. How is my corporation different than my gun in that respect?

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      • Burt:
        It seems to me that this is true insofar as it goes, but that that’s not very far. When you say “corporation” here, you’re talking about the legal entity as distinct from its owners. But when we talk about the government compelling or forbidding a “corporation” to do something, it’s also compelling the owners of the corporation to operate that corporation in a certain way.

        That is, the shareholders of the corporation have a vested interest in how the corporation is operated. Generally, especially for large, publicly traded corporations, shareholders don’t really care about the specifics, as long as it’s being operated. But sometimes shareholders have other concerns, and by compelling the corporation to do something the owners don’t want it to do, you impose a burden on the owners by forcing them to operate their corporation in a way that violates their personal beliefs.

        And maybe you think that’s just fine, or if not just fine, than at least worth the cost. But you should at least acknowledge that incorporation doesn’t magically make that burden go away.

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      • I understand your point, , and I’ll acknowledge the price in autonomy with one’s property that I’m espousing. I fail to see why this burden is substantively different, or even all that different as a matter of degree, than the restrictions the government imposes on other kinds of property, like cars, fertilizer, and rental real estate.

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      • Even if a corporation is itself merely a tool of persons (and not the association itself), general rules against the use of a particular tool can be narrowly rebutted when the user of the tool has a religious claim. For example, suppose there was no second amendment and there was a rule against daggers. I could get an exception to wear the kirpan if I were Sikh.

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      • Well, for one, many regulations are designed to restrict actions with negative externalities, and in general I take a pretty dim view of the ones that don’t.

        But this is qualitatively different from most other regulations, because the government is effectively compelling people to perform. They can’t even get out of it by paying a fine or legal damages, because there will be an effectively endless supply of gay couples eager to sue them or file complaints, until they give in or are driven out of business. And in the case of a corporation consisting of one person, or of a handful with the same beliefs, not only will they have to use their resources to provide a cake for a gay wedding, but one of them will be compelled to bake the cake personally.

        Look, this sounds stupid, because it is. But it really matters to these people. If I were a freelance web developer, I would be outraged if an organization dedicated to the promotion of socialism filed a complaint after I refused to develop a web site for them, and the government ruled in their favor. I’m not sure what it is for you, but I imagine there must be some cases you’d refuse to take. How would you feel if the government compelled you to take those?

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      • Might I suggest, BB, that in a pluralistic democracy the government has a greater responsibly to protect minorities from people punching down than it does protecting the majority from minorities punching up. Which is why, say, a freelance web designer being allowed to say no to a political web site whose views they find abhorrent (let’s say Stormfront) is not seen as equal to, say, a restaurant that has a “No Negros Allowed” policy.

        If you accept that, then the place where we’re really at is where do gays who are trying to integrate openly into mainstream society fall on the spectrum?

        It doesn’t have to be “if gays you can’t discriminate against gays, you have to work for nazis.”

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      • The problem resolves itself if we take a more expansive view of religion. While disapproval of SSM within different parts of Christianity ranges from nonexistent to complete, refusal to be told what I can do with my property is one of the central tenets of the Church of FYIGM.

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      • I can’t think of anything special about my own profession, BB, which would justify exempting it from anti-discrimination laws generally applicable across the economy. Nor yours, although of course that’s nothing personal. If you’re a sole proprietor, you’re probably already exempt from them.

        Note, apropos to the OP, that religious entities (e.g., churches) are so exempt.

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      • Might I suggest, BB, that in a pluralistic democracy the government has a greater responsibly to protect minorities from people punching down than it does protecting the majority from minorities punching up. Which is why, say, a freelance web designer being allowed to say no to a political web site whose views they find abhorrent (let’s say Stormfront) is not seen as equal to, say, a restaurant that has a “No Negros Allowed” policy.

        If you accept that, then the place where we’re really at is where do gays who are trying to integrate openly into mainstream society fall on the spectrum?

        It doesn’t have to be “if gays you can’t discriminate against gays, you have to work for nazis.”

        Sorry to quote at length, but I am not seeing anything in your hypo that provides a principle that cuts against what is saying.

        In the end, individuals want the ability to discriminate against those who they find abhorrent. Stormfront and neo-nazis are very much a minority whom the majority is interested in marginalizing (and good, because screw nazis); but if a neo-nazi family moves into town, and the local restaurant refuses to serve them, and the local mechanic refuses to fix their car, etc., I guarantee no one is going to bat for the neo-nazis.

        And that isn’t because of some majority/minority punch up/down dynamic like you are proposing, it’s because neo-nazis suck and gay people don’t – to you and to me.

        If democracy is solely interested in protecting the minority from being abused (or neglected, or whatever) by the majority like you posit, then it would force me to serve the neo-nazi, because he’s the minority and I am the majority.

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      • Might I suggest, BB, that in a pluralistic democracy the government has a greater responsibly to protect minorities from people punching down than it does protecting the majority from minorities punching up.

        I have serious doubts about this. If it is permissible to force a person to serve gay people, it is permissible to force a person to serve Nazis or communists or whoever. Liberal neutrality means that the state cannot take a position on whether pro Nazi or pro gay-rights views are intrinsically correct, it just shouldn’t violate a gay person’s rights or for that matter anyone else’s.

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      • Does it say anything about refusing to serve homosexuals?

        The obvious counterargument is that being a Nazi is a choice and being gay isn’t, but this isn’t at all clear to me. We don’t actively choose what to believe; something either makes sense to you or it doesn’t. While beliefs may be more malleable than sexual orientation, that doesn’t make them any more of a choice.

        Anyway, I chose the example of being compelled to develop a web site that would be used to promote socialism very deliberately. I wouldn’t have any problem with doing work for a socialist customer, whether he was a national socialist or some other kind. My objection is specifically to doing work that will be used to promote socialism, much as some Christian bakers don’t want to bake cakes for a ceremony that they see as promoting or glorifying homosexuality, even though they (for all we know) would have no problem selling a birthday cake to a gay person.

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      • Gays are a protected class in some states (and some localities), but not in others, Nazis are not, as far as I know, protected anywhere, nor are socialists. There’s no logic that proceeds from according some sorts of groups legal protections to needing to award it to every kind of group you can think of.

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      • There is what the law is, and what the law should be. The CRA doesn’t cover discrimination on the basis of sexual orientation either, but that doesn’t mean that there shouldn’t be a law preventing discrimination against gay people. The rightness of not discriminating against people belonging to some category cannot depend on whether there was anything objectively wrong with that group. Liberalism cannot just be another imposition of values on disagreeing others. At least, if liberalism is to be a solution to intractable disagreement about fundamental values, it should not, in justifying coercive policies, make assumptions about the truth or falsity of any particular comprehensive doctrine.

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      • There is no good politically liberal argument that justifies protections for one sort of minority (e.g gays and various people of colour) which also does not justify protections (against discrimination) for communists and nazis

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      • – let’s de-Godwin and (mostly) remove the Nazis then (always a good idea).

        CRA DOES cover religion. Now we’ve got to deal with World Church of the Creator members (arguably a Nazi-like ideology perhaps described as a religion for the express purpose of taking CRA cover), or a religion like the pre-1978 Mormon Church, who believe that black people are cursed by God and therefore not to be made priests or married to white people (actually Mormon history is complicated on this topic, and in some ways and at some times they were far more progressive on race than their neighbors, but roll with it for this example).

        If I encounter a religion that has odious (to me) beliefs, I want to be able to deny them my services. Satanism is a real religion. If I find Satanism abhorrent, should I be forced to bake them a cake? Where am I going to get all that black icing anyway?

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      • Political beliefs is an interesting one. Suppose the blacklist had been, not just odious, but illegal? But it would be next to impossible to draw a line between unpopular between protected political beliefs (say, having opposed fascism in 1936) and unprotected ones (say, having been a fascist in 1936). You have to pick extreme cases to find religions that are genuinely objectionable to a reasonable person. (“What, cater a Greek Orthodox wedding? They don’t believe in filioque!”), and I presume it’s still legal to object to specific content, like baking a cake that says “the Roman Church is The Beast.”

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      • This falls into the same trap as the OP – beliefs themselves are protected, full stop – freedom of speech isn’t qualified with the word “religious.” What receives special protection is religious action – ie, rituals. We don’t protect actions based on political beliefs because then nothing would ever be illegal – it would be a defense to any law that the person violating it disagreed with the law. In other words, you’d only be liable for breaking a law if you felt you should be liable for breaking the law.

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      • Depending on which part of the conversation you’re referring to, the talk about the religious being protected is (I think) about being protected by anti-discrimination law. In many contexts, you can discriminate against Democrats, but not Catholics.

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    • There is no principled way to permit “small” corporations to exempt themselves from laws regulating the conduct of “large” corporations. We might do so arbitrarily. Title VII does not apply to most employers or public accommodations with 15 or fewer employees, for instance. There is no philosophical reason for this — it was the result of a political compromise, pure and simple.

      This is an interesting point, and one worth exploring. The notion that there’s no difference based on size is certainly useful; it seems commonly used as a way for large corporations to create regulatory capture that overburdens small competitors, hobbling small competition before it ever gets out of the gate. Examples might include HR requirements, to start-up costs in equipment, accounting standards. Suggesting there’s no principled way is very troublesome to me; because sometimes, failure to do so is failure to recognize regulatory capture and rent seeking.

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      • Aren’t small businesses usually sole proprietorships? IIRC, there are certain size requirements for incorporating as a limited liability corporation. Or that may just be the rules where I live.

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      • It doesn’t matter for a lot of the things I’m talking about. The small coffee shop that has a stove to heat soup has to have the same fire suppressant system that McDonald’s has over their friers (this will be state law) is one example I encountered.

        Unemployment and workmen’s comp insurance rules that are charged by the employee instead of total hours worked is another; it seems to create barriers to hiring several people part time. (And yes, I know the flip side here is health insurance). A large company like WalMart can easily hire 300 people part time to avoid offering health insurance to most; the small retail store down the street might need two or three more part time people to have coverage flexibility, but can’t afford the additional costs.

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      • A sole proprietorship is a different beast, in the position I’m staking out here. That’s precisely because it is the individual personally, rather than a discrete entity, doing business. This is a more intimate sort of transaction.

        Here in the States, the LLC can be a small entity indeed. I’ve created many for my clients that are owned entirely by a single person or a married couple, and whose purpose in existence is to hold title to a single-family home let out as income property. Other nations use this form of entity differently. An LLC is a different kind of entity than a corporation (here), the way a jaguar is not a lion.

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  19. Barry

    “Insomuch as I could understand Ethan’s point – well, frankly I don’t understand what point he was trying to understand.”

    Ethan, I apologize for being harsh (and snotty) there. I do honestly not understand what your point is, or why.

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  20. Glyph: “In the end, individuals want the ability to discriminate against those who they find abhorrent. Stormfront and neo-nazis are very much a minority whom the majority is interested in marginalizing (and good, because screw nazis); but if a neo-nazi family moves into town, and the local restaurant refuses to serve them, and the local mechanic refuses to fix their car, etc., I guarantee no one is going to bat for the neo-nazis. ”

    https://www.aclu.org/

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      • No, and I’d bet they wouldn’t. The ACLU will help them march in Skokie (and so would I…well, not “help”, but “decline to hinder”), but allowing them to speak in a public square is a different beast than forcing me to serve them at my restaurant, because (IMO) my refusing to serve them would in itself be a form of speech.

        Look at it this way…let’s say I, or someone I knew, was subjected to abuse by a Catholic priest which was subsequently covered up by the Church hierarchy, and I decided that the Catholic Church was a deeply corrupt organization responsible for much of the world’s ills, and I put up a sign in my restaurant window explaining that I no longer wished to serve anyone who supports the Catholic Church.

        Shouldn’t I be within my rights to do so?

        Let’s further stipulate that I believe these things about the Catholic Church for no personal reason – I don’t know any victims personally, but I still have heard/read the stories, and decided the same way – aren’t I within my rights to say “I don’t want men of the cloth (or even laypeople who support the church financially and ideologically) in my restaurant”?

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      • Actually, my last sentence should read shouldn’t I be within my rights to say “I don’t want men of the cloth (or even laypeople who support the church financially and ideologically) in my restaurant”?, since in my understanding I’d likely be in trouble since I’d be discriminating on basis of religion.

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  21. Let me get a bit radical here. When politicians decide to make us use our property to achieve a public purpose, there’s a very fuzzy line where once crossed it’s treated as a “regulatory taking” of property in violation of the 5th Amendment. See, for example, Lucas v. South Carolina Coastal Council or Dolan v. City of Tigard,.

    I think it’s well-established that a lot of folks see bans on private discrimination as achieving a public purpose. It it possible to see them as a regulatory taking?

    The Supreme Court wouldn’t, I am certain. So the question here is more theoretical than a question of current constitutional law. But is there a sense in which telling a virulent racist “you may not have a license to run your business unless you use your property to satisfy our public purpose of making sure nobody faces private discrimination (and you can’t run your business without a license)” could reasonably be viewed as a regulatory taking?

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      • We can justify imposing anti-discrimination laws on sole proprietorships, too, if their services are offered to the general public, using the aggregative effects of what individually would be trivial and probably tolerable acts. So one white plumber gives one black guy a hard time. That sucks, but so what? There’s other plumbers the black guy can call to fix his toilet. Until it gets to the point that no plumber will serve the black families. Will the market resolve this on its own? History tells us, “not necessarily.” And so the aggregation of individual free choices creates a racially tiered economic system.

        This is different than telling a businessperson, “if you avail yourself of certain ways of using the law to conduct your business, that comes with strings and anti-discrimination laws are one of them.” That’s actually a pretty easy case to make.

        A regulatory taking occurs when the regulation becomes so stringent that there is no viable way to use one’s own property. To suggest that anti-discrimination laws cross that line seems perverse at best — in order for it to stand up to practical scrutiny, it means that submitting to the law will drive the entire market away from the complying business, a kind of a “heckler’s veto” writ large on marketplace behavior. History again is instructive: Ollie’s Barbeque did not fail because it started serving black people.

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      • What makes me uncomfortable about argument #2 is that it is too easy an argument to make. Which is to say that it’s an argument you can make about an endless number of things. While I am prepared to say that forming an independent entity like an LLC can philosophically or morally justify anti-discrimination law, I’m not prepared to say that it strips said business-owner(s) of the right to a moral or political conscience. And I think the wind of that argument could blow down the wall of distinction. It reminds me a bit of using public provision of health care (and the costs thereof) as a justification to intervene in personal behavior pertaining to health.

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      • But do we in fact justify anti-discrimination law only where it protects against discrimination that would exclude willing clients from a whole category of service in a p[articular geographic unit? i.e., are plumbers in big cities less subject to anti-discrimination law than are plumbers who are one of maybe two, or perhaps just one, ina town that’s the only town with a plumber at all for fifty miles in any direction?

        Don’t we, in fact, treat plumbers in the city under the principle of, “We can’t look just at the effect of you doing it(discriminating) in isolation, but we have to look at the effect if all your fellow plumbers had the same liberty (even though only a very few would actually exercise this execrable one)?” I.e., don’t we act to forestall the situation from even potentially being able to arise?

        The principle is at work, but it works in a way where there’s no situation it doesn’t cover (for protected classes of people/kinds of discrimination, at least). (Or I could just be mistaken about this.)

        Which I guess is just more good reason for to prefer to lean on it.

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      • As a practical matter, we don’t want to hold the only plumber in town to a different standard should he decide to move to where there are three more plumbers. So it’s logical to make these rules uniform, even if it’s more necessary over here than over there. Also, generally speaking ruralians have less of a reasonable expectations to convenient access to various goods and services to begin with and somewhere in there that matters.

        I’d also say that the bar of “can’t find a plumber” is too high. Instead, the mere having to call place after place to find a plumber is a significant hardship (because it’s not just plumbers, most likely, it’s most likely other goods and services as well). At some point it becomes widespread enough that it’s de-facto second-class citizenship.

        This is complicated and hard to sort out, with quite a bit of subjective value judgment along the way. I’m fine with that. What I think disturbs me about #2 is that it suggests that there is no tension here if you’re an LLC because LLC’s aren’t people with people values and people beliefs. Which is why I see this as having a long range of implications that I am comfortable with far above and beyond a requirement to serve fix a Catholic’s leaky faucet just as you would a protestant’s.

        (If someone is of the view that the history of customer discrimination in this country is so great that not only do we have to redress specific wrongs but should be pro-active before significant damage is done, right now I find that argument less problematic than #2.)

        It also overlooks potential alternatives to solve various problems. Like required referral or public notice.

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      • I should add that this is a reversal for me from when I first heard the argument. At that time, I liked it a great deal because it alleviated complex tensions. It was only when I started thinking through the ramifications that I became uncomfortable with it. Another distinction – that between a business that operates as a publicly advertised business or storefront in public spaces and one that operates by appointment – still holds some appeal, though I am still thinking through the ramifications there. And I haven’t completely given up on the LLC vs sole-proprietorship distinction as being significant, though I view it as less significant as I did before.

        Or put another way, I’m still thinking through a lot of these issues.

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      • Until it gets to the point that no plumber will serve the black families.

        That’s always the assumption, even as it becomes less and less likely. I question it.

        A regulatory taking occurs when the regulation becomes so stringent that there is no viable way to use one’s own property.

        In Lucas, yes. But not in Loretto, Nollan, and Dolan.

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      • LLCs aren’t people, , they’re non-corporeal entities vested by the state with some legal aspects of personhood (specifically, the abilities to enter in to contracts, appear as litigants in court, and own property). They can’t do things natural humans can do like eat food, play with a pet, fall in love, drink too much tequila, commit adultery, grow despondent, die, or (if you believe in this sort of thing) get forgiven anyway and go to heaven after they die. They lack things like sexual preference, appreciation of beauty, and (important for this discussion) religious faith.

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      • Right they are not people, but they are the mechanism by which people pursue their happiness. They are the product of people or the entity we’ve recognized so that people can work together. If we’ve made the LLC the primary mechanism for people to pursue their business dreams then it’s not just regulating LLCs but it’s regulating people that go into business. That has to be done but the philosophical argument for doing that in any specific case should not be easy. The harm needs to be stacked against the right of business owners to act in accordance with their own consciences (while pursuing their dreams).

        The LLC argument may make something constitutionally permissible but doesn’t provide much of an argument towards philosophical justification. It shouldn’t settle the issue in a general sense towards a (non-absolute) right of a business owner to operate in accordance to his or her beliefs. LLC or no, preventing that shouldn’t be easy.

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    • IMO, no. Most people that would view bans on private discrimination as regulatory taking rather than a way to achieve a valid public good are the least likely to suffer from private discrimination. That is they tend to be heterosexual whites. Maybe some businesses owned by minorities would exclude heterosexual white people but the number of those businesses are going to be tiny anyway. Millions of people or color or LGBT people are going to be harmed by bans on private discrimination and forced into second-class status and potentially poverty by it. The amount of harm inflicted by private discrimination exceeds any theoretical good that exists by supporting it.

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      • Most people that would view bans on private discrimination as regulatory taking rather than a way to achieve a valid public good are the least likely to suffer from private discrimination.

        So the argument is rebutted via reference to the speaker’s identify?

        Millions of people or color or LGBT people are going to be harmed by bans on private discrimination and forced into second-class status and potentially poverty by it.

        Millions? Can we be serious? Because I don’t think that’s serious.

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      • James, its very easy to support policies like “I think white business owners should be allowed to exclude people of color from their establishments because of regulatory taking and a violation of freedom of association.” When your dealing with institutions like bakeries, amusement parks, and other local establishments than you create feelings of second class status among the excluded. It gets worse when the exclusive institutions are those that possess power or provide access to power like banks, elite universities, and certain country clubs. If people of color can not live in many neighborhoods, can’t get loans, and are not allowed to get the best educations than they are stuck in at best lower-middle class status but most likely poverty.

        So yes, the argument is at least partly rebutted by reference to the speaker’s identity because the speaker is most likely not going to suffer the negative effects of the argument.

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      • When your dealing with institutions like bakeries, amusement parks, and other local establishments than you create feelings of second class status among the excluded. It gets worse when the exclusive institutions are those that possess power or provide access to power like banks, elite universities, and certain country clubs. If people of color can not live in many neighborhoods, can’t get loans, and are not allowed to get the best educations than they are stuck in at best lower-middle class status but most likely poverty.

        Can one say that the first half of that problem is perhaps different in both kind and degree from the second half of that problem?

        Look, when it comes to refusing minorities loans, or identification, or access to education or medical care, or something like that, I’d consider that a grievous problem worthy of some heavy-hitter type interventions.

        When it comes to making people feel bad, I’d consider that a different sort of problem worthy of an entirely different class of interventions.

        Not just because the problem is different both in kind and degree, but because the solution of heavy-hitter type interventions comes with its own burdens.

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      • I firmly reject the argument that today people of color would be so excluded that they would have no opportunity at all. You’re assuming a universal virulent racism, but I think you have to demonstrate it, not just assume it. Because if that assumption crumbles, so does your whole argument.

        There’s also a very disturbing irony in your comment, which is its implicit suggestion that people of color could not succeed without white people deigning to educate and hire them.

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    • Using your business to discriminate creates a negative externality. (Even those not directly affected are worse off in a less civil society.) I have no problem saying it should be regulated, or at least taxed.

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      • That’s a big “maybe” on the negative externality. An argument can be made to that effect, to be sure. But while on the one hand hard-core libertarians tend to assume negative externalities are nonexistent, or at least rare and inconsiderable, people to the left tend to see them in every action.

        In a sense, they’re right. If I paint my house orange, there’s a negative externality. If my kids are playing down the street and I go out and shout for them, loud enough for my neighbors to hear, that’s a negative externality. We live as social beings, so a great many of our actions affect some other people.

        But that illustrates why we can’t just throw the term out as a trump card for everything we don’t like, because then we’ll need tight regulation of all human behavior.

        You’ve made an assertion, but how strong an argument really supports it? Can you make that argument?

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      • Using your business to discriminate creates a negative externality. (Even those not directly affected are worse off in a less civil society.)

        This sounds good, but I just don’t think you can make this into a blanket statement. It depends how many discriminators there are relative to total population (1 racist restaurant in NYC is probably insignificant; 1 in Podunk, ND is probably not) and relative to the number and kind of the discriminated-against – discriminating against members of a religion with abhorrent beliefs/practices could arguably potentially result in a positive externality for society, if they move on, or change their beliefs/practices to better comport with what we consider “civil society”; whereas discriminating against people who are otherwise “civil” results in negative externalities for civil society overall, as you say.

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      • We know, from many experiments, that black people (and even people with black-sounding names) face discrimination in housing, employment, and financial services, even though that’s largely illegal. I suppose that if you want to argue that that proves that anti-discrimination laws are ineffectual I’d have a hard time disproving that. But it does show that these laws address a genuine problem. Allowing (say) banks that won’t give loans to minorities to say “Sure. What’s your point?” would just exacerbate it.

        We’re a much better, saner, more just and moral society than we were in 1964. The CRA and VRA were a statement that that getting there was a national goal. Even if much of the work was done by non-state actors, they were a vital part of it.

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      • There’s the whole “racism without racists” phenomenon as well. Should people with credit scores below a certain number be denied mortgages because giving them mortgages would be predatory?

        Because there is disparate impact when you base mortgage rates on stuff like credit scores.

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      • Let’s install a quota system for businesses that want to work with the government. Businesses must have X% of their workforce be people of color (or people of gender) to be eligible for government business or government contracts. We should also reduce the barriers to entry for starting a new business as well (allowing LaShonda to start her own) and get into the mix to fight for government business or government contracts.

        I imagine that banks that know that they’ll be financing new businesses that will be guaranteed government business and contract income would be happy to give business loans at good rates.

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      • Mike,

        I agree with your comment. But the problem you’re pointing to I’m not sure is an externality. If you call me a poopoo head and I feel hurt, you’re a bad person, but it’s not an externality per se. If I discriminate against you in hiring because you’re a 49ers fan, I’m (not a) bad person, but it’s not really an externality.

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      • It’s not the classic monetary-cost-shifting externality, like dumping pollutants in the river to make the people downstream pay for disposing of my waste. But if a group is discriminated against to the point where their participation in the economy is severely limited, that’s a huge cost to them and a significant loss to the economy as a whole. The bigots are presumably getting what they want (even if it’s not in cash), and they’ve shifted its cost to others.

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      • We can call anything anything we want, so long as we’re not worried about sticking to words’ actual definitions.

        You’ve pointed to a real problem, but calling it something it’s really not weakens your argument by introducing an unnecessary element of error into it.

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    • But is there a sense in which telling a virulent racist “you may not have a license to run your business unless you use your property to satisfy our public purpose of making sure nobody faces private discrimination (and you can’t run your business without a license)” could reasonably be viewed as a regulatory taking?

      I’d say, and quite emphatically, the answer is yes. I don’t think the argument is all that difficult to make, either. If individuals have a fundamental (natural) right to property which exists conceptually prior to the Constitution and upon which constitutional provisions are logically constructed, then any governmental regulation infringing on the expression of that individual right is unconstitutional (because it’s inconsistent with natural rights). It’d be no different, it seems to me, than standard property-rights arguments against the imposition of (unconstitutional) environmental regulations.

      These types of arguments are pretty common, no? Whether the SC or other courts view them favorably is another matter, of course, as you say in the initial question.

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  22. One thing that I kinda notice is the attitude that most people have is “when people like me are in power, it’d be ideal to treat religious folks like X” rather than “when those people are in power, I would hope that they’d make the following allowances (X, Xsub1, Xsub2, etc) for people like me.”

    And I can’t help but think that this would change the value of X.

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    • Well, yes.

      I’ll say quite bluntly I have nothing but contempt for bigotry and bigots. I quite explicitly don’t want a government that sees no difference between me and them. I reject entirely some kind of “value neutral” rules.

      Fuck that. We and they are in conflict, and we are fighting for our lives. We want to shape our government, with all its power, to further our ends, that of equality and justice, that of human flourishing, while diminishing their ends, that of pain, sickness, and hate.

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  23. Just a random thought that plays off much of what I have read here: I see much of my public life as a place of conflict. For me, it is conflict regarding my gender and how the world sees me. Fundamentally, it is a conflict of identity. I assume that others with marked identities have comparable (but not identical) experiences.

    To me, government is just one of many places where that conflict plays out, and while there are many theories of government one might deploy, which come from this or that intellectual tradition, and which privileges this or that group of people, in the end I prefer to strip away all of that and see the naked operations of power.

    And there is no doubt government has much power, that in fact it is a power amplifier. I understand (at least roughly) why libertarians are distrustful of government, why concepts like the rule of law are critical. I’ve read the same history books they have.

    That said, many of my sisters experience lives that are virtually unlivable, and this is a normal condition for many people. It has always been thus. And the powers that oppress them go far beyond government, spread throughout the broad society.

    And somehow last century some of these oppressed groups acquired just enough social power to steer the government by tiny degrees. And thus they began to ease their oppression.

    Some of these government actions, such as women’s suffrage, are an easy sell. Others, such as the Civil Rights Act, remain controversial.

    And it is easy to find theories of government that show how the CRA is just the most terrible thing. But as a matter of practical truth, it is not. It forced this oppressive society, the individuals therein, to sit side by side at the counter with those they hate. It forced, in small ways, here and there, these people to interact as equals. I believe the positive effects of this are immeasurable. They spread through everything.

    In today’s world, you may not actively exclude blacks. Now, some folks still find ways to effectively exclude them. Hate did not disappear. But things happen on the margins, that small change on that one day that makes a small difference. They add and add.

    I want a world where folks may not exclude my sisters.

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