Official Recognition and Special Rights

continued from Why We Ought to Eliminate the Free Exercise Clause.

This post explains why recognizing the free exercise of religion as a fundamental right requires both that the state grant official recognition to some groups as "religious" and that these groups be given special rights.

Official Recognition of Religion

In his essay "Let Them Eat Indicidentals: RFRA, The Rehnquist Court, and Freedom of Religion", H.N. Hirsch cites the Boerne case as an example of a law interfering with individuals' religious exercise. A Catholic archbishop wanted to expand a church in Boerne, Texas because it was not big enough to seat the entire congregation. During some Sunday masses, forty to sixty members had no seats. For zoning reasons concerning historical preservation, the archbishop was denied a building permit. According to Hirsch, this was a violation of the right to free exercise for the individuals who could not be seated at mass.

Accepting this as a violation first requires recognizing Catholicism as a religion. Even if the state does not always grant religious exemptions to remedy such violations (the court did not in Boerne), its very recognition of a violation gives the group in question the status of state-recognized religion. There could be no violation of an individual's right to free exercise of religion if religion was not involved to begin with. Questions involving individuals rather than groups require group recognition as well. A person's religious practice could only be protected as the exercise of religion if it was distinguished from non-religious and non-protected practices, which would require the recognition of a (presumably shared) belief system as a religion that could motivate religious practice.

Special Rights for State-Recognized Religions

Mere state recognition of religious groups is not the most important issue at hand. If the state kept a list of officially recognized religions but did not use it for anything, complaints from groups excluded from that list would be mostly superficial. There would be no real reason for the state to exclude groups from the list anyway; recognizing even the most obviously contrived "religions" would do no harm. State recognition of a fundamental right to free exercise of religion is problematic because it requires the state to give special rights to members of religious groups, which makes it necessary to exclude some groups from consideration. Members of excluded groups are afforded less rights than members of recognized groups.

The state cannot recognize a fundamental right to free exercise without granting new rights to members of recognized religious groups. These rights often take the form of religious groups being considered for exclusion from certain laws because they are religious groups. Non-religious groups would not be considered for exclusion in most cases. In the Boerne case, the possibility of making an exception to the zoning laws for the archbishop and the church was considered because not doing so would (it was claimed) violate the right to free exercise of people who could not sit in the church during mass.

If the state had made an exception to the zoning laws to protect some other right, it would not be a matter of the state protecting the right to free exercise. Fundamental rights must grant new rights - otherwise they are just derived rights. Although I might have the right to eat breakfast whenever I please, this is not a fundamental right. I only have this right insofar as I can derive it from true fundamental rights I have: the basic right to act freely without harming others and the right to dispose of my property (my food in this case) as I see fit, for example. Derived rights are no longer rights when a change in condition makes it the case that they can no longer be derived from fundamental rights. If my toaster is broken and I cannot afford a new one, for example, I cannot cite my right to eat breakfast whenever I please as justification for stealing my neighbor's toaster. Later, I will argue that the right to free exercise actually should be considered a derived right rather than a fundamental right. But for now, I will continue dealing with the claims of people like Hirsch who do consider free exercise a fundamental right.

next: Excluded Groups, Limited Exemptions and Limited Recognition, and Compelling Interest

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