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In the interim, Rose, do you think you could provide some background on, or links relevant to, the subject of compelling interest?

It's going to take me a while to catch up, but I'll definitely look into it. Thanks for the recommendation and link.

garicker: Can you cite an example of a particular religion whose practice has been made untenable by laws passed by the government?

Well, the case of Native American religion is the example that more or less started my involvement in this discussion. Post-Colonial legislation has had a huge impact on the practice of Native American religious practice. In some ways, they've changed the structure of their religion in an effort to protect aspects of it -- which is how I understand something as anomolous as the institutionalization of polyvalent Native American traditions into something like the Native American Church -- and in other ways they've simply been unable to accomodate their religions to the changing shape of American legal culture without sacraficing what they consider to be basic aspects of those traditions.

I've made suggestions along other lines as well. I haven't looked too deeply into the matter, but it strikes me as likely that Haitian Voodoo has few supporters within the American judicial system.

One can still practice the religion of Santeria without conducting animal sacrifices. One can still be a Rastafarian without smoking ganja (marijuana).

That depends, I suppose, on one's personal interpretation of both religion in general and the particular practical obligations of a particular religion. In theory, one can practice Judaism without observing Kosher laws, but Jews have historically felt Kosher laws to be so intrinsically linked to proper religious practice that it was practicable (if not particularly admirable) for the Inquisition in Spain to cast suspicion on anyone who wouldn't eat pork. I don't mean to draw an analogy between the Spanish Inquisition and American judicial practice -- there's an obvious intentional divide that goes to the heart of what we're discussing here -- but the point is that most religions aren't so uniform that broad qualifiers about what can and cannot be omitted from religious practice would apply across the board.

These things may be important to the religion, but the inability to indulge in them does not make the whole religion untenable.

I'm not sure we mean the same thing by "untenable". The plaintiffs in the Snowbowl case are arguing, in part, that what their culture considers the contamination of the mountain environment is making practitioners less enthusiastic about their traditions and escalating the degree to which they abandon their religion. The ability to practice one's religious traditions is, among other ways, a way of re-cementing your ties to that particular religious community. Where historical events have interrupted the religionist's access to their rituals and community, we can see again and again a rapid decline in both interest and affiliation. That's what I mean by "untenable".

Mormons insisted polygamy was an essential part of their religion---some still do---but the church hierarchy agreed to stop the practice because of pressure from the U.S. government. The Mormon church seems to be surviving nicely anyway.

I'm not saying that adaptation doesn't take place, but to treat it as the rule ignores a great number of examples to the contrary. And the fact that the Mormons have retained a preserve where they can practice polygamy may have softened whatever damage abandoning polygamy alltogether might have caused. Take away Utah, and I'm not sure that the adaptation would be quite so equivocal.

If you want to make the claim that government should not be able to pass any law that may, whether directly or indirectly, infringe on the free exercise of any practice of any religion, then that goes way beyond anything contemplated in our law to date. Is that where you want to take this?

No, as I've said, I don't think that's at all practicable, nor would I argue that America should serve as a game preserve for all possible religions. What I have suggested is that practical considerations necessitate that a state pick and choose the religions (if any) that it's willing to accomodate, and that, given the circumstances that an overwhelming majority of the U.S. population does subscribe to some religion or another, it would seem practical that the U.S. make some accomodation rather than risk accidentally running roughshod over all religious practices. In point of fact, I think that the U.S. does pick and choose, and does make some accomodation, but it has done so largely by accident, and mostly because it happens to share the cultural heritege of Western Christendom.

Rose: It seems to me he thinks, and correct me if I'm wrong, Mad, because he interprets the 1A to provide protections against generally applicable laws that infringe free religious exercise, that the 1A (at least the free exercise clause) itself is untenable.

I'm not arguing RFRA closely. I think the whole bill is pretty impractical. Rather, I'm arguing what looks to me like a pretty general perspective on how government does -- or ought -- to interact with religion. And some form of interaction seems inevitable.

Therefore, though compulsory state education may violate the free exercise of religion for some (Amish are one prime example), the law genuinely serves the state's interest and is therefore constitutional.

Right, and I would say that, to the degree that a given religious group, say the Amish, can't find some compromise between their own practices and the demands of compulsory state education, I'd say that the U.S. is simply incapable of accomodating for the Amish. Which leaves the Amish with a choice -- they can try to find a country whose laws do accomodate for their traditions, they can abandon their traditions, or they can continue to live with the emnity of the state. Not the best set of options, but if the U.S. government really see its own interest as bound up in the goal of having every citizen compelled to meet certain educational standards, where else does that leave Amish tradition?

But I don't think the goal should be to accommodate religious-based violations of these laws. The goal, rather, should be to eliminate all laws that are not necessary in order to serve the state's interests.

The point of departure may simply be that I think it's in the state's interest to preserve some form of religious liberty.

And it isn't privilege; it is the use of government-owned land, unhampered by religious accommodations as bastardized in RFRA.

Well, to get right down to it, that land was used for Native American religious practice long before there was a U.S. government to own it. And land usage was then governed by a different set of conceptions that those employed by the current government and dominant culture of the U.S.

I just don't think a proper solution is to accommodate them randomly on generally applicable laws that have the effect of violating religious practice.

Nor do I. I've adopted Snowbowl only as a particularly immediate example of the ways in which cultural assumptions and the close connection of Euroamerican religion and culture can have the effect of prejudicing seemingly secular legislation against a religious practice. Short of allowing Native American tribes to secede from the Union and create their own state, I don't see any practical solution to the continuing consequences of their exploitation. In large part, that's because I see no way to reconcile traditional Native American culture with the bedrock of Westernized American political thought. The concepts and assumptions that inform the survivals of pre-Colonial American culture are simply too alien to that European background. But as an example, it serves its purpose. It's hyperbolic in some ways, because nowhere near the same level of leverage effects traditional European religious practice, but that hyperbole makes it more effective as an illustration of how the unintended consequences of legislation can effectively tilt the legal system against religion.

I'll have to get to the rest of Garicker's points on another day.

Sorry it's taken me a while; time constraints and fatigue have held me back, but I do feel remiss in not having responded sooner.

garicker: The bedrock notion of American legal theory is that all citizens stand as equals before the law.

Perhaps; but I think that draws into question exactly what is implied -- both in original theory and in continuing practice -- by "citizen" in that context. The question of how our system conceives of the people it governs is at the heart of what I'm talking about here.

Laws that are passed to redress past injustices or to ensure that citizens are empowered to participate fully in their society are not aimed at creating privileges for one group of citizens over another but are aimed at ensuring that citizens are treated equally.

I'm not so sure. I am aware that rationalizations are put forward that argue that end -- eg. that reddressing historical wrongs by giving special consideration to contemporary individuals is necessary to ensure their treatment as equals -- but I don't entirely believe that the rationales being provided are really the reasons such policies have been adopted, nor that those programs have been established so as to meet that end. I don't have a hard and fast opinion when it comes to specific programs of this type, but I am skeptical whenever anyone attempts to defend them by citing them as ways of ensuring equality under the law -- skeptical not of the person making that claim, but of a rational that's received wide coinage without any real critical assessment as to how it fits into the real history of the program. How, I wonder, are the interests of equality served by providing incentives for employers to take race into consideration when considering new hires? That's not only a criticism of how the programs were implemented -- I don't think any of us would argue that the effect hasn't been, at least in some cases, to get minority applicants hired for positions when white candidates were equally well qualified -- but rather of the intention that lay behind such implementations in the first place. I certainly don't begrudge a minority worker his job, particularly when, without some sort of compensating pressure, racism might have prevented them from getting that job. But it doesn't seem clear to me that they were given the job in the interest of equality, nor that the program which created the compensating pressure was really so ideologically pure as to have only equality as its motivating principle.

As a matter of fact, in the eyes of the government, on the matter of the application of the law, we are treated, in the overwhelming majority of cases, as if we are interchangeable. That is to say, in the eyes of the government each of us, according to the prevailing legal theory at least, is equal in rights and equal in responsibilities.

And equal in capacity as well. But then, we make exceptions. The mentally impaired are not equal in capacity. Recent scientific studies have considered the possibility that certain individuals are genetically disposed towards certain forms of criminal behavior. My hope is that we'll ultimately abandon that idea, but if it does gain wide currency, the result, no doubt, will be some move to consider genetic disposition as a mitigating factor at trial.

The point that I'm getting towards is that we maintain this idea of interchangability by declaring certain traits non-essential to the individual, while maintaining, in theory, at least, some core of undifferentiated, essential citizen. If Jeffrey Dahmer had been certified mentally retarded then the law would have applied differently -- but then, he also would have been someone other than who he was. This idea that we are at least theoretically distinguishable from the traits that influence legally culpable behavior is a convenient fiction. Ultimately, I don't see how it does anything but mask the fact that we cannot -- and do not -- practically treat everyone according to the same standard.

The law does not apply equally to all citizens, and we're only capable of pretending that it does by behaving as though the things that distinguish one person from another are immaterial to that individuality.

re: animal sacrifice, But the underlying reality is that equity requires that the law be applied equally.

Does it? How does the act of animal sacrifice differ from the act of FDA approved slaughter for food production? It doesn't take much research to demonstrate that most cattle and poultry in this country suffer a great deal during both the process of raising and slaughter, so the point that differentiates sacrafice from food production obviously is not moral concern for the animal. What remains is the end to which the two forms of killing are put. Animals can be killed under controlled conditions so long as their intended use is food. For that matter, they can be made to suffer and ultimately killed so long as the intended use is research-oriented. But an exception is made when the intended end is ritual.

What those differences take into account is just as much a matter of what distinguishes one slaughterer from another as it is a matter of the act. The act, after all, cannot be neatly divorced from the actor. By saying that it is okay for the food producer or the scientist to kill an animal, but not the rabbi or the priest, it seems to me that the law is already abandoning the principle of equity.

Think about it: do we routinely make the same sort of exception when it comes to other criminal acts? Is theft illegal when it's for profit, but legal when it's meant to provide food for a starving family?

The differences between the two cases seem, to me, facilitated by the establishment of different categories of thought, but those categories don't have much to do with what is explicit in the Constitution, or even with what is logically derived from the underlying political philosophy. It doesn't seem to me that the rationale for not allowing animal sacrafice boils down to anything more sophisticated than, We don't approve of the ritual use of animals, even though that use in no practical way differs from other uses of which we do approve.

The native Americans petitioning in the Snowbowl case are not seeking to change a law, and their practice does not violate any law. They are seeking to apply a law to prevent someone else from doing something which they claim interferes with their ability to practice their religion...

My point in bringing Snowbowl into this discussion was that a major reason for the conflict between American law and some of the religious traditions governed by it is, that American law is based on assumptions that are foreign to the cultures that produced those religions. In that sense, the Snowbowl case is closely analogous to the case of animal sacrifice, as both traditions are under a great deal of stress by virtue of their variance with European-Christian values and ideal -- in the case of Snowbowl, it's the matter of land ownership and use; in the case of animal sacrifice, its the matter of accepted norms of animal use, with the European norms being established historically as a matter of hostility towards pagan traditions.

It is the creation of an exemption to commonly applied law that creates a privilege.

Why should the method behind its origin be so critical to the categorization of something as a privilege? If a law unintentionally makes it difficult for a religion to maintain its practices and membership, then doesn't that privilege any tradition not likewise effected? As I see it, privilege is just the flipside of disadvantage.

As I noted previously, our laws, obviously, are based on ethical priniciples and cultural norms that we generally accept as a society.

I'm not sure that's necessarily so. As a general rule, a law won't pass if it's in conflict with principles and norms held by people in a position to oppose that law. But that isn't the same as being based on those principles and norms.

The fact of the matter is, Native Americans are not numerous enough to form a voting majority, and hundreds of years of marginalization have made it difficult to broach the system in other ways (lobbying, etc.), so the fact that they haven't put up a successful defense against laws that disadvantage their traditions is due in part to the very aspects of their cultural identity which do not make them interchangeable with the rest of us. But those are aspects that the government only recognizes intermittently and under a great deal of pressure.

I fully recognize this is still a work in progress.

I wouldn't even call it that. There are a noble few who are working towards the ideal of equity, but the system itself -- as the aggregate of the majority of people working within that system, or on it from without -- do not seem to be working with progress towards an ideal in mind.

I quite agree with you that RFRA does attempt to address some issues that weren't a blip on the horizon. However, I think it does a bad job of it.

I'm not so equitable. I think RFRA probably was passed with the notion of unfairly privileging religion in mind. I think it's badly calculated to achieve equity, and I think the form of equity it seems to have in mind is impractical and poorly conceived anyway. Very few of my comments in this thread really have much to do with RFRA itself, and are concentrated instead on addressing the nexus of ideas that surround RFRA.

The argument that because the mountain is sacred in some native American traditions, those tribes should get a veto over what everyone else can do there is dubious at best.

Take a quick scan over everything I've written in this thread and find for me where I've argued for that position.

irishrosem: I recognize that the formulation or the structure of U.S. government, though it is meant to serve the people, can, in fact, be used to serve the interest of the U.S. government or the establishment, against the interest of the state.

I'd take it a step further (in the direction of Machiavelli) and say that it's in the nature of any political body to preserve itself at the expense of the people it governs, and that the United States government is no different in that regard. In part, that's the result of the structural form our government has taken, and reform is unlikely to ever take place unless we begin by examining that structure with an eye towards ways that it encourages self-preservation.

And incidentally, I'm still not sure that I'm entirely comfortable with this identification of the state with the people that inhabit it. Among other things, it implies a unity that seems to be a secondary characteristic at best. Functionally, it's probably used as a way of minimizing individual concern and interest by identifying a group according to its assumed interest in maintaining some membership within that community. And that leads to complications in the way that treatment of that population is reconciled with the needs of individuals within the group.

If we accept that the system, vulnerable though it may be to imprudence, is meant to create generally applicable laws in service of the state's interest, how do we rationalize exceptions for groups with specific ideologies?

First of all, we can accept that the system is meant to create such generally applicable laws without meanwhile supposing that such a goal would really serve our interests. That's pretty clear in the case of a person whose interests are entirely selfish, but I think it's also potentially true if we claim an interest in the good of the constituency. That's a roundabout way of saying that, even if I accept that such was how the system was intended, I don't necessarily support it.

Secondly, if I were to present a major line of criticism of that system, it would probably focus in large part on how the state's interest is determined. This is not merely a matter of whether or not the laws being drafted are genuinely generally applicable, but more so a matter of what their intended effect might be. In a case like that of Snowbowl, for example, I can't see any potential threat to the state that is mitigated by allowing Snowbowl to use recycled sewage as snow. The state may hope to profit from that allowance, but I'm resistant to the idea that what profits the state should always be considered its best interests, or even that those interests should trump the private interests of individuals within the state. Which isn't to claim that the Snowbowl case should go one way or the other; rather, I just don't think the "state's interest" argument really justifies any particular position applying thereto.

And thirdly, I haven't been arguing for exceptions for specific ideological groups. I think we both take it for granted that the law must allow space for some ideological diversity, but I think that can be -- and, in fact, is -- achieved by the way in which laws are normally drafted. That is to say, lawmakers rountinely, and often without much reflection, draft laws in such a way as to avoid obstructing practices and ideologies that they take for granted as part of the cultural landscape. But I think we have to be honest with ourselves when we talk about how that effects equity. Laws that indirectly effect Native American religious traditions will, of course, apply differently with respect to Native Americans than they do to anyone else, because Native American identities are not interchangeable with the identities of affluent WASPs or inner city blacks. If we can pass laws that leave minority traditions unharmed, but which still serve the interests of the state, then we should go out of our way to do so.

That some cultures will fit into that structure while others won't is inevitable when considering all the world's myriad traditions.

And, again, I think that's pertinent to the question of equity. I wouldn't argue that we should try to be equitable to all forms of cultural identities, but rather that we should revise our attitudes concerning equity as a "bedrock" ideal.

I, however, don't foresee any good coming from trying to accommodate specific groups against generally applicable laws, because we fear those laws do not serve the state's interest, or violate other constitutional requirements. Patchwork accommodation will not lead to any useful solutions; of this I am as certain as I can be.

Nor do I. It's an ongoing frustration here that you guys keep bringing that up as though I had been arguing for it. Obviously I have some trouble expressing myself, as it happens elsewhere as well. Garicker and Mr. P seem to think that I'm arguing in another thread that there is no external reality and that all beliefs are therefore valid. I don't recall even having entertained that idea after highschool.

me: The point of departure may simply be that I think it's in the state's interest to preserve some form of religious liberty.
Rose: I think the accusation was unwarranted.

It wasn't meant as an accusation, so much as an attempt to understand why we can't seem to reach some form of agreement. Hence the "may". I'm sorry if it came across as as a more definite appraisal of your position.