A Proposal: Remove All Privileges of Religious Organizations that Exceed

[Jim Lane]

8. You're oversimplifying a complex issue.

The First Amendment includes two provisions relating to religion: the Free Exercise Clause and the Establishment Clause. The complexity is that sometimes there is no way to accommodate one of those clauses without violating the other.

Here's a simple example. When Social Security was expanded to include agricultural workers, some Amish farmers refused to pay FICA taxes, on religious grounds. (I think the theological point was that Social Security is a form of insurance, which is true, and that insurance is contrary to God's will because it seeks to counter the divinely ordained consequences of whatever happened.) At least one Amish defendant was convicted and imprisoned.

Congress responded by amending the law to carve out an exemption tailored to the Amish.

Without the exemption, hard-working Amish farmers go to jail because they followed their religious beliefs, which would violate the Free Exercise Clause. With the exemption now in place, the Amish have a privilege that's not extended to libertarians and others who, on purely secular grounds, don't like Social Security; that privileged status for a religion violates the Establishment Clause.

On the other hand, the concern for the Free Exercise Clause wouldn't extend to allowing, for example, human sacrifice, if a group claiming to be reincarnated Aztecs were to say it's required by their religion.

In short, sometimes we violate one clause and sometimes we violate the other, depending on the circumstances. That's why it gets complicated.

If you want a nice, simple solution, you can get it by always prioritizing one Constitutional provision over the other. Just explain which of the above results you would change.