Friday, December 4, 2009

Question: Limits On Religious Freedom?

Americans believe they have freedom of religion. But we do allow the government to impose some limits. Sometimes these make sense. For example, if we allowed anything, you could bet religion would become an excuse for drug use or child abuse or even pay-per-view human sacrifice. But sometimes these go too far, like when holidays are taken off the calendar. Where would you draw the line?

17 comments:

CrispyRice said...

Well, I'm hardly a religious scholar, and I'm guessing anywhere you try to draw a hard and fast rule will create problems. But I can see a couple starting points.

For example, any "religion" that hurts its practitioners - physical abuse, mental abuse, required excessive financial donations, "here, drink this KoolAid." Those wouldn't get recognition in my world.

AndrewPrice said...

CrispyRice, That's a good start. I don't know how easy that would be to define -- especially the financial or mental abuse -- but it certainly makes sense.

What do you think about the use of drugs like peyote?

CrispyRice said...

But it's all a slippery slope. Where does tithing end and financial abuse begin? Ask someone who signed all their worldly good over to a religion and I doubt they'd tell you they were coerced into it, no matter the circumstances as outsiders see it.

Re the drugs, again, it would get too easy for 10 of my friends to start a church saying, hey we need to use heroin for it! Perhaps you could make a historical / cultural / tradition argument for things like peyote that have long been used in certain religions.

AndrewPrice said...

CrispyRice, The slippery slope is the problem -- in either direction. On the one hand, people will form churches merely to get away with doing things like using drugs. On the other hand, you will get people who start complaining about harmless practices that they find offensive -- like the use of wine.

Your solution is the same one Congress chose. They made it legal in the American Indian Religious Freedom Act for certain tribes to use peyote.

But that creates the problem that your religious beliefs could depend on whether or not Congress chooses to allow your practices.

It's an interesting dilema.

ScottDS said...

The only thing that really gets me (and I assume it doesn't happen that often) is when I hear a story on the news about a couple whose child got sick and, instead of taking said child to the hospital, the parents simply prayed instead, and the child died.

But in cases like this, I have to image justice is done and the parents get some kind of punishment (or counseling, etc.).

AndrewPrice said...

So Scott, do you think the law should punish parents who do this or should we allow them to claim a "religious practice" defense?

ScottDS said...

Oh, a question. :-)

I don't know and I certainly don't mean to imply there's an easy answer. But faced with a dead child on one hand and two parents on the other hand who, despite good intentions, were negligent ... how could I not advocate some kind of punishment?

BevfromNYC said...

Perhaps child abuse can really be the only legitimate reason for the secular world to interfere with religious freedom and practice. Children do not generally have the opportunity to choose their religious practice.

CrispyRice said...

Bev, that's where I often draw the line on many of our laws that are supposed to protect from ourselves. For example, I don't think the gov't really has any business mandating that adults wear seatbelts or motorcycle helmets. If we want to be stupid and die, that's our business. BUT, I don't have a problem with mandating that children be buckled up and wear helmets. They don't necessarily know better and deserve some extra protection from stupid parents.

LawHawkSF said...

Andrew: This is one of the thorniest problems presented by the Constitution. At some point, the practice of religion is inevitably going to clash with the constitutional mandates of the law. Our history is replete with those conflicts. Although I would emotionally rather have the Supreme Court come down on the side of punishing egregiously non-religious practices by cuckoos claiming religious protection (Wiccans, peyote-ingesting Native Americans), my love for the First Amendment overrides that emotion, and says "we're just going to have to put up with this to avoid overreaching by the civil authorities."

So our courts have avoided meddling with religions, however kooky and however contrived in order to avoid real interference in traditional religion. First they came for the Wiccans, and I said nothing because I am not a Wiccan. You get the point.

ScottDS's example has been the most common example where there are two "rights." Strict Christian Scientists and certain fundementalist sects forbid the application of modern medicine (and even that's a matter of personal theological conscience). I grant them that right. But when it comes to children incapable of making that decision for themselves, I have no problem with the state intervening and removing the decision from the parents. The real constitutional/secular problem in that case is whether the parents, who would otherwise be guilty of child abuse and/or neglect and possible homicide, should be held criminally liable for exercising their religious beliefs. At that point, the state has to decide if the parents have correctly interpreted their own religion. There's your slippery slope.

The courts must decide if the state has exercised "undue inteference" with the practice of religion," and those cases are all over the place.

I can think of one religion which shall remain nameless that so completely interweaves theological hatred for all other religions with physical actions and conspiracies to overthrow the civil governments which protect freedom of religion that the government can properly claim that investigations into their activities are required to provide for the common defense and not worry that their religious beliefs are so inextricably interwoven with their plans to commit violence that the usual rules don't apply.

In other words, preach the downfall of the great Satan: OK. Store weapons and explosives in your basement in furtherance of your plan to kill the great Satan: Not OK.

Sorry this comment was so long, but I spent three weeks on this subject when I was teaching con law, so this is definitely the short version.

AndrewPrice said...

Interesting comments. As you can all tell, there are no easy answers here. There clearly need to be some limits, but once you start placing limits, it gets difficult.

StanH said...

Sorry I’m late! My Libertarianism says do what you like, including praying to what or whom you wish. Everybody’s business, is nobody’s business, if it happens on private property, and between adults, I don’t care.

freedom21 said...

I'm with StanH. Do and think what you want but be sure not to break any of the laws on the books. For instance, if the treatment of the child doesnt amount to child abuse (as on the books) or if financial abuse isnt induced by fraud, then a religion should be allowed to stand.

I suppose the real problem comes with the Tax Code and its specific treatment of religious organizations and not for profits. This basically demands that the government declare what is and what is not a religious organization.

AndrewPrice said...

But Freedom21, That's the problem -- when you say that they need to follow the law, that's where the question of interefence begins. For example, it's illegal to serve alcohol to minors, should a church be allowed to claim that a religious defense to that law? And if we accept that, how far will we go? What if a church says it believes children should snort cocaine? What about adults?

AndrewPrice said...

Stan, While I agree with the sentiment, what if they started practicing cannibalism or torturing animals? Or what if they started rendering animal hides? Would you say the law could not stop the first or that the neighbors could not get a nuisance injunction against the second?

StanH said...

As long as they, being in a cult that cannibalizes, and they are having each other for dinner, cool! It’s a kind of self imposed Darwinism taking place, if you will. Define torture of animals. To a vegan sitting down to a beautiful rare fillet mignon, is torture, and if you say a short prayer, wa…la…. A draconian Home Owners association would take care of hide rendering.

AndrewPrice said...

Stan, You are a true libertarian! LOL!

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