Rev. Joe: Religion Beyond Conscience

More from Andrew Koppelman on "religion," including that it should go beyond conscience:

Many and perhaps most people engage in religious practice out of habit, adherence to custom, a need to cope with misfortune, injustice, temptation, and guilt, curiosity about religious truth, a desire to feel connected to God, or happy religious enthusiasm, rather than a sense of duty prescribed by sacred texts or fear of divine punishment. Core religious practices often have nothing to do with conscience.

This is true enough though these things are probably "often have" something to do with conscience. "Religion" as the linked article notes is a somewhat imperfect means to handle a number of things, part of which is to address a basic aspect of humanity, matters of conscience. A means of doing this is to use specific doctrine or institutions, since doing so all by oneself is so hard, if even possible. This is an example of accepting basically what someone is saying while thinking it goes somewhat too far.

So, having a big enough meeting space (church) does have something to do with conscience though I would hope there was some way to protect some inner core of conscience more is possible even if Boerne is good law.* Giving local discretion to building standards is not quite the same thing as forcing individual people to do certain acts that violate their conscience or totally block some specific religious exercise. "Free exercise" might entail both, but ultimately, there is a "personal" core that we protect more.  So, there is something there.

Yet neither of the claimants in Smith was motivated to use peyote by religious conscience. Al Smith was motivated primarily by interest in exploring his Native American racial identity, and Galen Black was merely curious about the Church.

I read the in depth account of the case cited (entitled "To an Unknown God") and don't really agree.  One way to approach it is that "his Native American racial identity" here was expressed in a religious fashion, one closely entwined with the culture in question.  Justice Blackmun's dissent noted that the holding was particularly a problem in the context of Native American affairs, given federal policy protecting their rights.  But, Smith didn't "explore" his identity here in any old way.  He did so specifically via a religious ritual.  As to Black, "curiosity" about what?  Anyway, the fact that protection of religious freedom will entail some "penumbra" that goes beyond the express terms is a true as well. See, e.g., Justice Douglas' dissent here.

Also, appreciated that the article is against overly focusing on extreme cases here as well as how the path taken works as a whole. Some complaints of messiness in court opinions come to mind:

The meaning of any legal standard can only be understood by reviewing the actual cases in which it is applied. For that reason, I discount both Justice Scalia's comments on past descriptions of the standard, see post, at 11-12 (opinion of Scalia, J.), and the attempt to give it crystal clarity in the joint opinion.

The result might not be "a fully adequate framework" in all respects, but it is probably the best we can realistically accept. 

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* It is striking, to me at least, given where you usually think of her on federalism issues, that Justice Ginsburg joined the majority. Stevens had a special separatist concern; she concurred without comment.

Also, it is unclear that "no atheist or agnostic can obtain" the protections of RFRA, especially if "religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views” are included.  This goes back to a broad definition of "religion," which at least for legal and constitutional purposes, would entail things not defined "religious" by some.