Another interesting example which I didn’t end up writing about and wouldn’t fit into a libertarian solution, though, is Kosher Laws. New York had laws regulating the sale of foods as “kosher” (to prevent fraud) for nearly a century. They were struck down as establishment clause violations only quite recently. There are bona fide problems with the state declaring what is “kosher” (har har) in a religious sense, but even still Jews understandably might like the state to intervene and protect them so that they know their products really are kosher, and they aren’t being scammed. So that would be a case where strict separation also hurts Jews and a more flexible arrangement might serve them better off (but probably couldn’t be dealt with just by deregulation–almost everyone agrees that fraud is something the state should be involved in).

In other words, if laws are constraining the right to free expression of religion, shouldn’t we first look to remedy by examining whether or not the law that provoked the complaint is constitutionally valid and whether or not there’s really sufficient interest for the state to infringe on freedoms of the population as a whole (not just in the way that the law is specifically infringing on freedom of religious expression)?

To use your wine/grape juice example (which I realize is just a hypothetical), my suggestion would be to challenge the law of prohibition itself. What was the state’s interest there that trumped freedom to sell and consume these beverages? If it’s not valid, then overturn the law.

I guess one problem with this approach though, is that we’ve gotten to the point where we take such restrictions of our freedoms for granted. We assume that if the majority wants to cede these rights, then it must be OK (well, on most issues anyway; that’s curiously not the case when it comes to abortion even if certain localities want to restrict or prohibit it.)

I don’t really think this is a serious objection. The easiest response would be to refer back to weighing claims of religious liberty against the structures necessary to sustain a liberal, democratic society. Insofar as Islamic norms (or those of any religion) cannot be reconciled with these principles, my theory still would allow democratic values to trump. However, since not every (or even most–but we don’t have to resolve quantitative issues here) aspect of Islam does so clash, in the cases where it doesn’t they should be granted the maximum possible amount of reigious freedom, same as all other faiths. A regulation which said, say, “no headgear in school” should come with an exemption for a Jewish Kippah–and a Muslim hijab as well. That doesn’t clash with any foundation of liberal society, and is an integral part of many people’s faiths. I don’t shy away from that conclusion, because I think equal treatment among diverse citizens is a really basic principle of liberal society.

What’s ironic about your critique is that it really pushes–if not forces–me (a Jew) into opposition to Christianity as you conceptualize it. Your argument was rather explicitly “we can’t give Jews true religious liberties because it would mean giving Muslims the same.” From a Jewish perspective, if the choice is religious liberty in a system that grants it to Muslims as well, or one that does not guarantee such liberty due to fear of Islam, what side do you think I’ll come down on?

Moreover, the premise of your justification for discriminatory treatment–that America is a “Christian” nation and the religion clauses were founded to do the same–is barely a step away from the theocracy you facially condemn. As I wrote in a prior post, Christian Supremacy and Democratic Pluralism”, in addition to standing on shaky historiy, the notion of a “Christian” nation is inherently in conflict with democratic norms, because it substitutes the inherent undecidability of democracy with a concrete desired end-result. Even if I were to assume that a truly “Christian” American polity would continue to be the best place on earth for Jews (historically unlikely), I shouldn’t have to settle–Jews should be able to be full and equal members of American society on their own terms, not be content with scraps and crumbs for how ever long Christian overlords decide to tolerate them. Hence, even stepping out from my article’s framework or a Jewish framework, I’d oppose your conceptualization of America from basic small-l liberal and small-d democratic standpoints as well. You pretty much admit that I ought to be a second-class citizen in your desired polity–I’m not sure why you expect me to support this vision of society.

That comes later (reverse discrimination, excuse me, affirmative action).

So far as we know, reparations aren’t included as well.

“… a new, more egalitarian religion clause jurisprudence, based on the principle of anti-subordination. … inspired by similar critiques of neutral principles made by the legal feminist and critical race theory movements, would articulate .. the equalization of status between majority and minority faiths in America.”

Combatting the demon “hierarchy-patriarchy” with liberal politics as law again, eh?

Christianity itself becomes a minority when compared to secularism

Thanks for all y’all’s kind words, and I’ll have a full post up later today.

CStanley, I can’t quite agree with your phrasing when you say that the state’s “obligation is to remove barriers to religious practice”.

The government’s obligation is not to enact barriers rather than to actively seek to remove them. That certain incidental biases may be part of the system may be unfortunate but is at best a secondary concern.

The Constitution says….ANY RELIGION.

So if there is some perceived unfairness for the UNPOPULARITY of one religion or others…..its irrelevant to the Constitution.

I’m being deliberately glib and hope that doesn’t offend. The point is, think about this: one of the most egregious ways that the state could violate individual freedom would be to interfere with an individuals’ beliefs about his/her immortal soul. Increasingly in our modern world, that seems quaint or anachronistic, but the truth is that for many of us, the worst violation that the govt could make would be to interfere with our ability to practice our religion. You, and many others, may feel that there is only this life (and nothing inscribed in law should prevent you from making that choice), but the state has to remain completely neutral on that subject and its obligation is to remove barriers to religious practice (otherwise it is not remaining neutral on the question of whether or not its citizens should choose to concentrate on the material world or the spiritual one). The state doesn’t have a similar obligation to remove barriers for people who choose to practice vegetarianism (or at least our Constitution doesn’t say so).