Tuesday, May 10, 2005

Cheeseburgers and Church/State Jurisprudence

Prawfs Blawg was kind enough to link to my non-thoughts on so-called "practicing non-believers," so I'll actually give him some real thoughts this time around.

The question, for those of you with short attention span, is how the free exercise clause treats/ought to treat persons who engage in religious practices without holding corresponding religious beliefs. PB did some research and concludes the following:
Generally speaking, it seems that mainstream religious practices (read: Judeo-Christian) are protected as a matter of course, and courts do not even question the sincerity of the belief behind it. (Query, as I did to start this discussion, what courts would do if the practitioner openly broadcasts that she has no sincere religious beliefs.) By contrast, in the case of non-mainstream religious practices, courts do look to the sincerity of the practitioner's belief.

In Thomas v. Review Bd. of Indiana Employment Sec. Division, 450 U.S. 707, 715 (1981), the Court states that "[o]ne can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause[.]"

Refusing to eat a burger in order to avoid the wrath of the schver and schvigger (father- and mother-in-law) seems to me to be a "clearly nonreligious motivation" if there ever was one, unless one's inlaws generally provoke the fear of God. Which is possible, I suppose, at least in some families...

Obviously, Courts have, in the past, inquired into the "sincerity" of religious belief (see United States v. Ballard, 322 U.S. 78 (1944)). In my last post, a commenter told me that Courts can't act as mind-readers and can only go off the basis of actions. This strikes me as a wholly unworkable standard. Taking a day off on Saturday or Sunday is often a religiously motivated action. It also is often entirely secular. In that case, the motivation seems absolutely critical in determining whether or not one is deserving of free exercise protection (surely not everyone who wants a break on Sunday is entitled to a First Amendment claim!). There are many actions that might be mundane or even commonplace for most people, but have deep religious significance for particular practictioners. Beyond taking a day of rest on the Sabbath, consider drinking wine--an action that is quite normal and secular for most people but critical, at times, to the religious practices of, among others, Catholics and Jews. If Congress was going to reinstate the ban on drinking alcohol, it seems it could make an exception for religious purposes, even if that required inquiring into "thoughts" and distinguishing between nominally equal practices.

PB notes that these sort of "sincerity" inquiries seem to happen only in the cases of non-mainstream religions. This probably is true, but I think we also have a problem of small sample size--in most religion cases the "sincerity of belief" is not even in question, and for most "mainstream religions" the practice in question is recognizable to the general populace as "religious" and thus needs not to be questioned.

As in most dilemmas of this sort, line drawing is difficult. The "cheeseburger" example might be somewhat simple to resolve, it seems nearly impossible to say that a person refusing to eat a cheeseburger because his in-laws would be upset is acting within the boundaries protected by the first amendment. But what if he didn't eat a cheeseburger because he wanted to keep a kosher house so his in-laws could eat there (IE, in order to accommodate religion)? I think that might change the decision.

My gut feeling is that the first amendment applies to "potentially" religious practices where religion is implicated in the act. The fact that some religions do not eat cheeseburgers does not mean that every refusal of a cheeseburger is a religious act. However, where it is a religious root that motivates the action, even if the actor him/herself is not religious, then I think the First Amendment comes back into play. So if the actor does not eat a Cheeseburger to keep his house Kosher for relatives, I would say this is within First Amendment boundaries. (this standard might also cause us to re-examine the above "no cheeseburgers ever" case, but I don't think so--it seems that the root motivation there was to placate relatives, not to affirm or enable religion).

Now, here is the situation that I think is the toughest: What happens if a person undertakes a religious action based on a communal, but not at all religious, affiliation with that religion? For example, take a very secular Jew, who no longer believes in the religion at all. He might, however, continue to follow some of the practices based on being "part of the community" (I believe most Reconstructionist Jews fall into this category). In theory, of course, identifying with a community is not at all religious--a German going to Oktoberfest is not engaging in a religious ritual. Yet it seems very counter-intuitive to me that someone born Jewish, practices Jewish rituals, could be denied free exercise protection. Does it matter that he was born Jewish? What if someone decides that the Jewish community (as a community, but not as a religion) is appealing and decides to "join"?

An alternative way to get us out of this dilemma might be semantic--if we can pin down what exactly religion means, we can perhaps articulate clearer standards than the mishmash of Lemon, Lynch, Lee, and their pals that currently stalks the landscape of our First Amendment jurisprudence. Howard M. Friedman is probably correct to note that much of the problem is definitional--what exactly is a religion? This is a question that Court's have struggled with, really to no avail. United States v. Kauten made a noble effort at it:
"It is unnecessary to attempt a definition of religion; the content of the term is found in the history of the human race and is incapable of compression into a few words. Religious belief arises from a sense of the inadequacy of reason as a means of relating the individual to his fellow-men and to his universe - a sense common to men in the most primitive and in the most highly civilized societies. It accepts the aid of logic but refuses to be limited by it. It is a belief finding expression in a conscience which categorically requires the believer to disregard elementary self-interest and to accept martyrdom in preference to transgressing its tenets." [Kauten, United States v., 133 F.2d 703 (2d Cir. 1943), 708]

Others have argued that there is no principled way to differentiate between religion and "secular" thought:
"On the level of epistemology, [reason and faith] are the same. [Both] begin alike from a point of ignorance...the direction each takes from this acknowledged limitation follows with equal logic or illogic...In both cases, something is missing, a first premise, and in both cases reasoning can’t get started until a first premise is put in place. What’s more, since the first premise is what is missing, it cannot be derived from anything in the visible scene; it...must be imported--on no evidentiary basis whatsoever." [Fish, Stanley. "Why We Can’t All Just Get Along." First Things 60, Feb 1996: 18-26.]

Merits of the argument notwithstanding, this cannot be accepted as a matter of law, for it would define the first amendment out of existence. It is well-settled that statutes should not be interpreted in a way that makes them redundant or meaningless. And if "anything" can be considered religious because it all takes a leap of faith, then the Establishment Clause precludes government from taking any action on the grounds that it would be acting "religiously" (I can hear the Libertarians cheering from here). The Kauten definition would also probably exclude certain things we believe are "religious" and include others that are not, if we thought carefully enough.

If nothing else, the religion clause is far less amenable to objectivity and set in stone rules than other clauses of the constitution. Religion is a very elusive beast to tame, and defining it poses unavoidable pitfalls, for "[A]ny definition of religion would seem to violate religious freedom in that it would dictate to religions, past and future, what they must be..." [Jonathan Weiss, Privilege, Posture, and Protection: "Religion" in the Law, 73 Yale L.J. 593, 604 (1964)]. Because of this, a "definitional" approach, already difficult in normal constitutional interpretation, becomes next to impossible when dealing with religious issues. Regretfully, then, Friedman's logical path, though promising, cannot bear fruit.

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