On Mar 30, 6:38 am, Wayne Mitchell <gwmitchell...@pobox.com> wrote:
> Stuart A. Bronstein <spamt...@lexregia.com> wrote:
> >>The First Amendment says, "Congress
> >>shall make no law respecting an establishment of religion, or
> >>prohibiting the free exercise thereof;..." If you can't prohibit the
> >>free exercise of religion, you have to respect religion. Where do
> >>you draw the line?
> s...@panix.com (Seth Breidbart) wrote:
> >You don't have to respect *any establishment of* religion. It's
> >generally taken to mean "any particular establishment of religion"
I disagree with Seth; SCOTUS has consistently held that the Establishment Clause means government can't favor religiousity over irreligiousness, not just that they can't favor one religion over another. Where Stu wrote "you have to respect religion" I think he was trying to paraphrase the Free Exercise clause, not the Establishment Clause. To that extent I agree with Stu, but interpret that (and the Free Exercise Clause) to mean "governent has to respect everyone's individual choices about religious belief, and can't make it illegal to hold any particular belief or to be an unbeliever in any religion." The government can, however, regulate or forbid certain _conduct_ that a defendant might claim was motivated by religious belief, so long as the regulation is based on a permissible secular purpose and not on an intent to restrict religion. For instance, human sacrifice is illegal, not because the government is allowed to disparage or discourage belief in religions that promote or require the practice, but because murder is illegal, -period, whether perpetrated for religious or other reasons.
> >that (e.g.) churches being tax-exempt isn't a violation, providing
> >that no religion gets special treatment.
>
> But as Stuart suggests, the mere act of drawing a line -- any line -- is
> a breach of the Establishment Clause.
I disagree. Seth is right that the courts are not allowed to draw any line that requires them to look into or rule upon doctrinal or liturgical issues at all, but they can and must rule upon the bona fides of a claim of exemption from some otherwise-general requirement or entitlement to some benefit even if that claim is based on religion, the same as they must in any other legal case when determining whether any other claim or defense is brought in good faith by the person asserting it. They cannot say "that belief doesn't make any sense", but they can look at whether the purported believer's conduct is consistent with his claimed belief. For instance, back when we had a military draft, the courts could and did ask persons claiming to be Conscientious Objectors whether they would kill someone else if their own family was being attacked, etc. Note that they did not inquire into whether the claimant's religion required them to forswear violence, they only asked whether the purported believer actually went along with that 100% Only those persons whose actions were consistent with their purported beliefs were granted CO status.
> All agencies of federal, state
> and local government are expressly forbidden to treat any religious
> entity as more established or deserving of official recognition than any
> other religious entity.
I agree with Wayne on this.
> If tax-exemption is available to religious
> entities, then the mere claim of religious status must be sufficient to
> establish the right to tax-exemption.
No, that's where the IRS and the courts are permitted to inquire into the good faith of the claim. IMO it's important to note in this context that the tax exemption laws, which Seth uses as an example, apply to ANY legitimate non-profit charitable institution, not just to churches. Churches' claims are tested for legitimacy of their charitable purpose on the same, non-discriminatory secular basis as are claims for tax-exemption by other, non-religious charities. That is what obviates any potential conflict between the Establishment Clause and the Free Exercise Clause.
> Any further requirement thrusts
> some official into the forbidden territory of discriminating among
> religious claims.
Which they can do, only to the extent of determining whether a claim is made in good faith, or not, according to generally applied secular standards of the law applicable to all, whether religious or non-religious.
> I would go even further and assert that no claim of religious status is
> actually necessary to assert the right to tax-exemption.
That's where I think our beliefs diverge, Wayne, and your statement wanders dangerously close to the kind of arguments that courts have consistently rejected as being in far tax-loony territory.
> If my neighbor
> (or my neighboring church) is allowed to withhold payment of tax on his
> property because he is religious, then I may withhold payment of tax on
> my property, even though I claim no religious status.
Yes, you can, if you, like your neighboring church, are running a legitimate eleemosynary organization (for qualified charitible, educational, scientific, etc. purposes) that owns your property. Societies looking for cures for dread diseases, and private universities (whether sectarian or non-religious) don't pay taxes either.
> The state is
> still forbidden to discriminate against me on religious grounds.
Why do you think it would be religious discrimination to require you to prove that your claim of tax exemption is based on your having a legitimate, qualified tax-exempt purpose? Whether that claim is religious or non-religious has nothing to do with it.
> That I
> make no claim to religious status matters not at all, because religious
> status is something the state is not allowed to consider.
OK, I'm with you there, but they _are_ allowed to consider whether you are a legitimate charity, regardless of whether or not it has a religious basis.
> My reading of the Establishment Clause and consideration of its
> necessary corollaries persuades me to the view that the full and proper
> statement of its effect is, "As far as the state is concerned, anyone
> (individual or institution) may do for religious reasons all that, and
> only that, which his neighbor may do for non-religious reasons."
Assuming we agree with you there, why does that lead you to the conclusion that an ordinary, in-business-to-make-a-profit-for-himself individual or company should be entitled to a tax exemption as a charitable institution?
> The exemption of church properties from taxation is one of those things
> which survives despite being clearly illegal.
It's not illegal if they allow other, non-religiously-based charitable institutions to claim the same type of exemption upon proof that they are a bona fide charity.
> Differential treatment of
> prison inmates or public school students on religious grounds is
> similarly illegal.
I'll agree with you there, but what examples are you thinking of as revealing discriminatory treatment in such contexts? And what would you have the government do instead?
> Even Amerind claims for special consideration must
> be disallowed if the claim is based solely upon religion.
Um, what are you thinking about specifically? Peyote use? I'm not aware of the specific language and reasoning of court cases that may have dealt with the practice, and you are right that it is problematic for government to allow members of a certain group to perform acts that are forbidden to everybody else if the claim of exemption from a general prohibition is based solely on religion. If that's the case, why not permit polygamy, or human sacrifice, if a person's religion requires it?
My guess is, the courts that have addressed the issue have looked at the laws prohibiting peyote use as "malum prohibitum", something that is wrong just because the law says it is so as part of some regulatory scheme, rather than "malum in se", something any reasonable person would regard as wrong in itself whether or not the law says anything specific prohibiting it. For instance, there is nothing inherenty wrong with driving on the left side of a 2-way roadway, but as part of the overall scheme of traffic regulation, a legislative decision was made to prohibit it and require driving on the right. At the same time, murder, rape, etc. are common-law malum in se crimes whether or not the legislature has codified any written law in that area.
Hard as it may be to imagine in this 21st century where government demonizes such conduct, drug crimes (their actual possession and consumption, not the murder and stuff that is an inevitable consequence of their prohibition) are not malum in se, but were originally enacted as progressive public health regulatory measures around the turn of the previous century, before which the laws did not regulate who could obtain what pharmaceuticals from their friendly local chemist or soda fountain (Coke used to really have coke in it). The courts might therefore be more willing to carve an exemption from the law for continuation of a traditional aboriginal practice that is not malum in se, just as they have carved exemptions for Native Amerindians permitting continuation of other traditional practices that are forbidden to non-aboriginals, such as whale hunting. In that case it is the government's obligation (as guardians of the rights of native peoples) to permit continuation of traditional practices by the peoples who were on this continent first, regardless of whether those practices are religious or non-religious in origin, that led to the decision. The same distinction between malum prohibitum and malum in se would allow the courts to be logically and legally consistent in carving such exemptions from what are merely regulatory crimes, while continuing to forbid polygamy and human sacrifice as malum in se. So if you were thinking of re-starting an Aztec cult, it ain't gonna work.
--
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