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Tuesday, January 17, 2006

Commentary: Religious Exemptions to Generally Applicable Laws

In responding to a recent court ruling that "Wayne State University police should not have arrested a student for carrying knives that were part of his Sikh religious beliefs" [see previous post here], columnist Erik Gable argues that 1) "There's no real reason to prevent [the Sikh student] from wearing a kirpan [a ceremonial Sikh dagger]; doing so would be denying him the right to follow a tenet of his religion that harms nobody," 2) while "[t]he judge's intent clearly was to protect the Sikh student's freedom to practice his religion..., he also granted followers of Sikhism a privilege that members of no other religion can enjoy [a]nd that can be seen as its own form of religious discrimination," and 3) "The law should be applied equally to everyone, regardless of their religion [because] nobody is harmed by failure to obey a law...."

In short, Gable argues that religious exemptions are in effect forms of religious discrimination and, as an alternative to this unacceptable result, anyone should be permitted to disobey the law in question so long as "nobody is harmed by failure to obey" it.

Gable is thus advocating a legal system that adheres to the Harm Principle - that the only laws which should be enforced are those which prevent harm to others. This libertarian viewpoint extends beyond laws implicating religious beliefs and can negate many laws on the books, particularly those based on a moral code (i.e., harm to moral sensibilities, or mere offense).

To the extent that Gable contends that religious exemptions amount to religious discrimination, Sikhs are not given "preferential treatment." Members of other faiths who have a similar sincerely held belief can be granted the same exemption.

Moreover, Gable may want to read the Supreme Court's opinion in Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905). There, the Court noted that:
[T]he liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
Jacobson, 197 U.S. at 25. In other words, religious exemptions are permitted because they are based on sincerely held beliefs, not a capricious decision by an individual to disobey the law because he does not find it to be wise or because adherence would be inconvenient. For the state to sanction disobedience based on simple objection, rather than religious belief, would be for the state to invite all individuals to disobey the law whenever they please (perhaps unless the law in question prevents harm). Allowing religious exemptions to generally applicable laws thus strikes a balance between an individual's religious freedoms along with concern for the common good and general welfare.

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