Strengthening Constitutional Self-Government

No Left Turns

Religious exemptions

I was going to blog about this NYT series over at my personal site, but it was being balky, so I’ll inflict my thoughts directly on NLT readers. (My comments on the first installment are here.)

The series, whose intent seems to be to raise questions about the "special favors" religious organizations are getting from government, purports to look at both sides of the issue, but Rick Garnett is, I think, right when he observes:

It strikes me that, in these first two pieces, there is inadequate attention paid to the distinction between accommodations and exemptions that are thought to be, or that could plausibly be said to be, required by the relevant constitutional text, structure, and history, on the one hand, and -- on the other -- those exemptions that are the permissible, but not required, result of legislative decisions to accommodate.

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The first two installments, though, leave me with a sense of "they just don’t get it" unease. The storyline owes too much, so far, to the "religion is getting special treatment and is treating people unfairly" narrative, and not enough to the "religious organizations are not the state, and -- if we take religious liberty and limited government seriously -- must have the freedom to organize themselves, select ministers, etc., without being second-guessed by government" account.

The NYT reporter notes in today’s story that religious groups are expanding their missions to include retirement communities, gymnasia, bookstores, and even theme parks, raising the question if these activities are authentically religious. Interesting: she wouldn’t be likely to raise an analogous question if the state were undertaking them. We don’t worry about the limits of the state. But the more religious organizations (and other non-profits, which often also receive the benefits she describes) do, the less the state "has to do." A good thing, no?

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