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Why We Ought to Do Away with the 'Free Exercise' Clause

I don't like the 'Free Exercise' clause - the one granting Americans the right to freedom of religion. In fact, I would prefer that it be done away with. My reason for this is not that I dislike religion, or that I think (generally) anyone's religious practices should be prohibited. Those of you who regularly read my postings know that I'm generally against government prohibition of most everything that doesn't involve one individual harming another.

The problem with the 'Free Exercise' clause is that it is interpreted as giving people a fundamental (though not absolute) right to practice their religion - fundamental meaning a right from which other rights are derived. The right to free exercise has been claimed by some groups as reason to make them excempt from certain laws - Native Americans and laws prohibiting peyote use, for example.

In the next few posts, I'm going to lay out a fuller version of my basic argument, which is as follows:

The free exercise of religion should be considered, at best, a right derived from fundamental rights. Only fundamental rights confer new rights upon individuals, so free exercise as a derived right would not involve rights individuals do not already have.

State recognition of free exercise as a fundamental right requires state recognition of religious groups, as well as the granting of special rights (such as possible exemptions from certain laws) to these groups. This requires that other groups not be granted these rights (including non-religious groups and groups simply denied the 'religious' classification). These groups now have less rights than officially recognized religious groups. This is problematic because the classification of certain belief systems as religious rather than non-religious is ultimately arbitrary, so granting special rights to 'religious' groups is itself ultimately arbitrary and unjust.


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