The article mentions RFRA as being noncontroversial. That’s the problem. It should have been very controversial. The reason is because of what this article also says. The author writes that RFRA “requires the government to meet a higher-than-normal standard in regulating religious organizations.” That is the problem with it. The religion clauses of the Constitution are meant to make sure that believers and nonbelievers are equal. Any law that privileges only religious objectors but no one else violates this equality principle.
There are two students in a public high school, which is a government institution so the First Amendment applies. They are both taking a biology class. There is an assignment to dissect frogs. One student objects to doing so because of a religious based objection. The other objects to doing so based on a secular philosophical objection. If only the student with the religious concern is granted an exemption, there is a constitutional violation of the rights of the other objecting student.
The trouble is that many religious advocates want special legal privileging of only the religious. If we are to have a truly equal society in keeping with the true intent of the Establishment Clause and the Free Exercise Clause, atheists must have no fewer rights than religious believers. Any law like RFRA that gives special exemptions, privileges, and protections to only the religious, in a way not enjoyed by anyone else, violates this principle of government neutrality in matters of religion.
I'm not so sure that the first amendment was intended to make religious and non-religious people equal in the regard you suggest. I think it was intended to ensure that the government does not impinge upon religious freedoms -- that it cannot require citizens to participate in any religious rites or memberships. It also was intended to stop the government from explicitly supporting any particular specific religion. Religious exceptions seem very much in line with these ideas.
If the government can’t pressure anyone to participate in any religious rites or memberships, it follows that the government can’t simultaneously provide only religious adherents with special rights unavailable to the nonreligious. For the government to say that we don’t have to be part of or participate in any religion, but that same government will allow only those who do participate to be exempt from otherwise universally applicable laws, is applying pressure on the nonreligious because it is formally depriving them of exemption rights available to only religious believers.
The intent of the religion clauses is quite clear. Madison, the principle author of them, was always concerned about the equal rights of conscience of everyone, including “infidels.” Three and a half years before he introduced into Congress what was to become the First Amendment, and the entire Bill of Rights, Madison secured the passage of his and Jefferson’s Statute for Religious Freedom in the Virginia legislature. This measure protected the rights of conscience of everyone.
Thirty five years later, Jefferson, writing in his autobiography, celebrated the fact that this law protected the rights of conscience of everyone, including the “infidel.”
The notion that the Establishment Clause only stops government from favoring any specific religious beliefs but may still provide certain benefits to only religious adherents, such as exemptions from otherwise generally applicable laws, is specifically refuted by the history of the composition of the Clause. In September of 1789, when what was to become the First Amendment was being deliberated in the Senate, two proposed wordings that would have done no more than that were considered and rejected. One such wording read that there shall be “no law establishing one religious sect or society in preference to any other.” The other rejected proposal would have provided that there shall be “no law establishing any particular denomination or religion in preference to any other.”
Either one of these two proposals could be interpreted as only preventing the government from favoring one religion over another, but not stopping the government from favoring religion, generally. Yet, they were both rejected and never brought back, even by the joint House and Senate Conference Committee, that Madison chaired, to work out the final language.
Madison, the principle author of the First Amendment, opposed chaplains in the military and in Congress. He didn’t even want religious institutions to be able to hold property and opposed special tax breaks for any religious entity.
So, the actual crafting of the First Amendment shows that believers and nonbelievers were specifically intended to be equal before the law. Also, fundamental fairness would dictate that nonbelievers should not suffer any greater deprivation of legal privileges than believers. Such a principle would be nullified if the legal system provided special privileges to only religious adherents, such as exemptions from laws that are otherwise binding on everyone else.
Bills like this are a model we should use more frequently. I'd love to trade conservatives, say, increased immigration enforcement and border security for a national abortion law (to pick one crude example). As Mr. Rauch noted, our system was designed to require compromise.
Between this and infrastructure, the Biden Administration had done surprisingly well at bipartisan bills. Maybe there's something to be said for Washington experience.
It doesn't appear the administration played much of a role in drafting the bill or in getting it through the Senate. The credit goes to senators Baldwin and Collins. Once the bill passed, the White House did put out a statement in its favor and promising to sign it once passed by the House. That wasn't assured, given that the administration is all in on the most extreme version of radical trans ideology. Nor will I rest easy until the bill actually passes the House. I expect unanimous opposition from the GOP along with full displays of all the anti-gay fabrications and superstitions on the Trumpists' current talking points. What gives me pause is the possiblity of opposition from the so-called Progressives to the bill's crucial compromises on churches and charities. I'm keeping my fingers crossed they don't follow the precedent of O'Rourke's grandstanding on this point in the 2020 debates.
The article mentions RFRA as being noncontroversial. That’s the problem. It should have been very controversial. The reason is because of what this article also says. The author writes that RFRA “requires the government to meet a higher-than-normal standard in regulating religious organizations.” That is the problem with it. The religion clauses of the Constitution are meant to make sure that believers and nonbelievers are equal. Any law that privileges only religious objectors but no one else violates this equality principle.
There are two students in a public high school, which is a government institution so the First Amendment applies. They are both taking a biology class. There is an assignment to dissect frogs. One student objects to doing so because of a religious based objection. The other objects to doing so based on a secular philosophical objection. If only the student with the religious concern is granted an exemption, there is a constitutional violation of the rights of the other objecting student.
The trouble is that many religious advocates want special legal privileging of only the religious. If we are to have a truly equal society in keeping with the true intent of the Establishment Clause and the Free Exercise Clause, atheists must have no fewer rights than religious believers. Any law like RFRA that gives special exemptions, privileges, and protections to only the religious, in a way not enjoyed by anyone else, violates this principle of government neutrality in matters of religion.
I'm not so sure that the first amendment was intended to make religious and non-religious people equal in the regard you suggest. I think it was intended to ensure that the government does not impinge upon religious freedoms -- that it cannot require citizens to participate in any religious rites or memberships. It also was intended to stop the government from explicitly supporting any particular specific religion. Religious exceptions seem very much in line with these ideas.
If it wasn't intended to make religious/non religious equal then, it should now.
If the government can’t pressure anyone to participate in any religious rites or memberships, it follows that the government can’t simultaneously provide only religious adherents with special rights unavailable to the nonreligious. For the government to say that we don’t have to be part of or participate in any religion, but that same government will allow only those who do participate to be exempt from otherwise universally applicable laws, is applying pressure on the nonreligious because it is formally depriving them of exemption rights available to only religious believers.
The intent of the religion clauses is quite clear. Madison, the principle author of them, was always concerned about the equal rights of conscience of everyone, including “infidels.” Three and a half years before he introduced into Congress what was to become the First Amendment, and the entire Bill of Rights, Madison secured the passage of his and Jefferson’s Statute for Religious Freedom in the Virginia legislature. This measure protected the rights of conscience of everyone.
Thirty five years later, Jefferson, writing in his autobiography, celebrated the fact that this law protected the rights of conscience of everyone, including the “infidel.”
The notion that the Establishment Clause only stops government from favoring any specific religious beliefs but may still provide certain benefits to only religious adherents, such as exemptions from otherwise generally applicable laws, is specifically refuted by the history of the composition of the Clause. In September of 1789, when what was to become the First Amendment was being deliberated in the Senate, two proposed wordings that would have done no more than that were considered and rejected. One such wording read that there shall be “no law establishing one religious sect or society in preference to any other.” The other rejected proposal would have provided that there shall be “no law establishing any particular denomination or religion in preference to any other.”
Either one of these two proposals could be interpreted as only preventing the government from favoring one religion over another, but not stopping the government from favoring religion, generally. Yet, they were both rejected and never brought back, even by the joint House and Senate Conference Committee, that Madison chaired, to work out the final language.
Madison, the principle author of the First Amendment, opposed chaplains in the military and in Congress. He didn’t even want religious institutions to be able to hold property and opposed special tax breaks for any religious entity.
So, the actual crafting of the First Amendment shows that believers and nonbelievers were specifically intended to be equal before the law. Also, fundamental fairness would dictate that nonbelievers should not suffer any greater deprivation of legal privileges than believers. Such a principle would be nullified if the legal system provided special privileges to only religious adherents, such as exemptions from laws that are otherwise binding on everyone else.
Bills like this are a model we should use more frequently. I'd love to trade conservatives, say, increased immigration enforcement and border security for a national abortion law (to pick one crude example). As Mr. Rauch noted, our system was designed to require compromise.
Between this and infrastructure, the Biden Administration had done surprisingly well at bipartisan bills. Maybe there's something to be said for Washington experience.
It doesn't appear the administration played much of a role in drafting the bill or in getting it through the Senate. The credit goes to senators Baldwin and Collins. Once the bill passed, the White House did put out a statement in its favor and promising to sign it once passed by the House. That wasn't assured, given that the administration is all in on the most extreme version of radical trans ideology. Nor will I rest easy until the bill actually passes the House. I expect unanimous opposition from the GOP along with full displays of all the anti-gay fabrications and superstitions on the Trumpists' current talking points. What gives me pause is the possiblity of opposition from the so-called Progressives to the bill's crucial compromises on churches and charities. I'm keeping my fingers crossed they don't follow the precedent of O'Rourke's grandstanding on this point in the 2020 debates.
Outstanding article in every way!