Tuesday, December 4, 2007

The intersect of law and religion

Check out this link:


I found the article to be very interesting. My immediate reaction was to agree with Justice O'Connor that “[o]ur Nation’s Founders conceived of a Republic receptive to voluntary religious expression, not a secular society in which religious expression is tolerated only when it does not conflict with generally applicable law.”

However, consider what that means: either everyone becomes a "law unto himself," or the courts must entangle themselves with religion to determine what the core beliefs of a particular religion might be. In the first situation, anyone could claim any religious belief they want, and most laws could be enforced only if the state could prove that the law furthers a compelling government interest and is the least restrictive means of doing that. Libertarians might be happy in such a scenario, but the ability of the government to act for the benefit of the community at large would be eviscerated.

In the second situation, there would be two problems: first, the courts would become tangled up in determining and interpreting the doctrines of various religions and denominations, something even church synods and assemblies have difficulty doing for themselves, much less having outsiders trying to do the same thing in the context of a court battle. Second, what about people who join a particular church, but don't hold to every view held by that church? For example, consider a pacifist who happens to be a member of the Christian Reformed Church, a denomination that has specifically stated that it holds to the "just war" theory, rather than pacifism. Would this person be forced to serve in the military in case of the draft, while his friend who attends the Brethren Church down the street would be exempt?

But of course, the problem with the Lockean view supported by Justice Scalia in the Smith case is the concern that a majority religion would probably be safe from limitation of their free exercise because , but a members of a minority religion could have their free expression limited very easily. Christians are beginning to realize that the majority religion today in America is not Christianity, but rather the American Civil Religion--a mish-mash of ideas (including some ideas that come from Judeo-Christian roots) that is becoming more and more opposed to orthodox Christianity. Under Scalia's view of the founders, America is simply "a secular society in which religious expression is tolerated only when it does not conflict with generally applicable law."

Frankly, I don't believe a simple appeal to the Founders' ideals is all that helpful. Some founders were secularists (despite their reference to the Almighty and natural law), while others fit Justice O'Connor's description. In the end, we may need to go beyond looking to the past and instead decide once and for all whether the pont of view expressed by the Reynolds and Smith decisions or that expressed in Yoder and Sherbert v. Verner is preferable.

Or maybe not. Perhaps the only way to keep the balance is to remain on a pendulum, with the legislative branch and the judicial branch each pulling one way or the other, and the nation remaining in an uncertain middle.

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