Line Drawing

The same sex marriage debate repeatedly brings up people who flag line drawing, at times saying they really do not care, but figure we should be consistent. Since you know it is merely happenstance same sex couples are not treated like brothers having sex with sisters. Oh shut up.  Others do it as a parade of horribles. Again, they manage to understand the logic of line drawing in various contexts, including as a matter of policy.  Lines are drawn.  They are not always totally logical, but we still manage them. So, what is an "unreasonable" search?  "Excessive" bail? 

The same applies in the First Amendment area. Some of these lines are questionable but traditional categories are given special protection though over time that tradition (e.g., commercial speech used to get little protected) changed.  One area that we draw lines here is between sex and violence, which is handled differently in different places such as France being more open about sexual relations among minors. Thus, teen nudity is more prevalent in certain European films.  I do not think obscenity should be unprotected but even there I can manage to see some difference between children or non-consenting viewers in public places being protected from watching live sex shows in the park and "Fuck the Draft" t-shirts. 

Lyng v. Northwest Indian Cemetery Protective Association involves use of federal land by certain Native Americans for their rituals. This is the core of "free exercise" like use of peyote or alcohol for sacramental rituals or not denying someone unemployment benefits for not working on their Sabbath.  The Supreme Court has noted that trying to find a "core" part of a religious faith is not somewhat they could reasonably do but "substantial burden" is a test that is cited.*  And, as with discretion over religious education being particularly respected, realistically I do think something like that matters. But, use of federal land (or in another case, how the government uses social security numbers) is an internal governmental matter.  The government can respect such practice (and other cultural concerns) but they have discretion.

Some are against special protection of religion (e.g., why not give parents the right to take a day off for family reasons? cultural reasons?)  and there are other things we should protect (parents have the right to send children to private and parochial schools in general).  But, the First Amendment does protect "religion" in particular, including with a ban on governmental establishment.  We can define the term broadly and respect parallel matters involving conscience, but bottom line, it's there.  And, there are sound reasons, again if the idea is broadly defined, to do so.  Both given practical realities and given its basic importance.

It isn't the only thing out there and there are balancing to do when protecting religious liberty.  So, some care can be done when assigning homework in public school, but mere exposure to certain teachings (including evolution; there certain requirements -- like creationism -- would amount to religious education, putting aside the bad science) is basic to public school.  Ditto to the public market place.  The basic set-up there is equally serving the public, even if you do not agree with their beliefs or find it immoral to do things like serving unveiled women. 

Recognizing this will help when setting up line drawing and sometimes can very well lead to some voluntary actions (e.g., you really do not have to go to that shop if it upsets the owner most of the time, even if legally they have to serve you).  This includes more willingness to respect certain actions that some on the left, let's say, are not that happy about. For instance, it is pretty much clear that even though they might get paid, the Catholic Church can have only male priests.  Putting aside federal funding issues, people also realize some private college can discriminate in various ways in setting rules for their students. OTOH, even there, denying a woman dishwasher health benefits could be a problem. 

It's tricky, but the some need to do a better job doing it. It is reassuring the governor of Arkansas and the Indiana legislature appear to have seriously taken this to heart. This doesn't take them off the hook and the devil will be in the details, but it does show a serious concern about balancing various interests even in conservative areas. And, like some significant corruption prosecutions, it shows that protests and public pressure has some real results.  It's hard to see sometimes, but change does happen.

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* I noted that some people do not have a "Sunday only" sort of philosophy here regarding proper religious exercise, sometimes your every day actions have religious significance. Certain things like the religious role in marriage results in special dispensations in that area while clergy involvement in some other area might not get as much attention. Our respect of religious acts here tend to result in some favoritism, which was blatantly seen when Orthodox Jews had to take two days off given Sunday closing laws. This is going to happen somehow, probably, given the reality of things. For instance, special concern is given to conscientious objection and also other  "life" concerns (see the problematic Hyde Amendment, which favors some beliefs over others as applied).

Not fighting in a war (or even working at a plant making bombs) is a life and death matter. But, when this is taken so far that IUDs cannot be part of your employee health coverage, things are being taken too far.  I flagged this at a Catholic leaning religious liberty blog, but that you need (at least prudentially) to realize you need to have some perspective here was ignored by some people.  Some examples from opponents of religious exemptions (or "religion" in general) going too far also can be cited. 

"Religion" as Witte noted is a broad open-ended thing, but as applied, if applied too broadly, it would be so open-ended to be unworkable in practice. The other approach -- treat religious acts the same way as other acts -- does not work well either.  So, line drawing.  No one promised you a rose garden.