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talkpoliticsSo, for my Health Law class I am writing a small paper about the debate over religious exemptions to certain provisions of the Affordable Care Act as set forth in administrative regulations (namely, requirements that employer insurance plans over contraceptives). While doing research for this paper, I have developed strong feelings about this topic.
Here in the United States, all states require a bevy of vaccinations before a child will be admitted to a public school. Almost all states, however, allow parents to opt their children out of vaccinations due to religious exemptions (it appears from this map that only Mississippi and West Virginia do not allow this), and some even allow "philosophical" exemptions.
Under the general cloud of specious "religious or moral" objections to vaccines, disguising irrational and, frankly, idiotic fears, thousands of parents have opted their children out from required vaccinations. The result has been outbreaks of the sort of childhood diseases that, only a few years ago, were largely controlled. Here is a measles outbreak in Indiana from earlier this year. Here is the worst whooping cough outbreak in California since 1955.
It's not a matter of a few nutjobs, either; there is a sizable subset of credulous parents fearing vaccines for a variety of idiotic reasons, who use religious exemptions as an easy way out. This is not a new story. There are whole websites devoted to teaching people how to claim a religious exemption. The most casual Google search brings up multiple hits on the first page. These sites openly flaunt the fact that most of these parents fraudulently claim religious exemptions. One such site helpfully states that "[y]ou do not have to prove membership in any religion to use a religious exemption."
So, now we are seeing another debate going on along similar lines. Under the Affordable Care Act, the Department of Health and Human Services was set the task of determining what preventative services the upcoming mandatory insurance coverage would provide, including reproductive health services for women. HHS (wisely, in my opinion) decided that contraceptives should be included, and even went so far as to require that such services be provided at no cost. There is a listed exception to "religious employers," but it was narrow, and left out, for example, Catholic universities, hospitals, and other Church-affiliated institutions.
This, unsurprisingly, royally pissed off the Catholic bishops, who are not only stuck in 1700s in terms of sexual doctrine, but are out of touch with upwards of 96% of the faithful on the issue of contraceptives. (Somewhat off-topic, but I think that at this point the sensus fidelium has very much spoken, and the Church has yet to catch up.) The argument is that such a requirement violates the Church's First Amendment rights of free exercise of religion; by requiring Church-affiliated institutions to, in effect, violate Church doctrine, the mean old government is seeking to stamp out religious freedom!
I would say that, to the contrary, a sweeping religious exemption to provisions of national healthcare law would violate the Establishment Clause because, basically, the government would be saying "here is one rule that applies to people of certain religious beliefs, and here is another rule that applies to everyone else." Sorry, but that doesn't work. When treating with religious organizations, the government is required to be neutral. I offer y'all a good summation of the law, as stated by Justice Hugo Black in Everson v. Board of Education (1947):
The application here being that, by setting up what amount to different rules for Catholic and non-Catholic institutions, the government would be, in effect, preferring one religion over another.
Frankly, I don't think that any moral or religious exemption should be allowed for vaccinations; religious freedom is not absolute (you cannot, for instance, sacrifice your neighbor's children to appease Taranis) and however much we rage against it, sometimes the public good really does trump individual freedom. Likewise, I think church-affiliated institutions that serve a varied community should be subject to the same regulations as their secular counterparts. It would be one thing if a Catholic institutions exclusively employed and served Catholics. But no, Catholic hospitals serve the community at large, and a majority of that community is not Catholic, does not hold with Catholic doctrine, and is not subject to Catholic religious obligations. A large portion of employees of Catholic institutions are also not Catholic. Why, then, should those non-Catholic employees be subjected to Catholic religious obligations?
While I generally dislike slippery-slope arguments, I think there is a genuine slippery slope here. Religious institutions are not separate from the civil law; they operate within its framework. For example, Catholic dioceses are, under state law, organized as corporations, and are treated as such (there was a case I read where a guy bought some dogs from an abbey in Switzerland, was unsatisfied, and sued the Vatican and his local diocese in federal court. The Court ruled that, under business associations law, he could not "pierce the corporate veil" because each diocese basically operated as an independent corporate entity, and the diocese was therefore not responsible for the actions of the abbey). In this case, the Catholic bishops and others are seeking broad exemptions from a federal regulation. They are basically arguing that they should be above the law. It might be different if they were arguing that the law as a whole was unconstitutional or immoral, and while others are making those very arguments, the bishops are instead saying that they merely want Catholic institutions to be exempt. They are acting as if the law was specifically targeting the Catholic Church when, in fact, it is intended to apply equally to everyone.
So where does this end? Should a Catholic hospital be able to fire an employee if they get divorced? We have a system of Baptist Church-affiliated medical centers here in Little Rock; should they be allowed an exemption to emergency care statutes so they don't have to serve non-Christians? Should either be exempted from sexual harassment laws because their respective religious organizations teach that women are subservient to men? What about taxes, which go towards supporting a whole host of things that Catholics and Baptists find objectionable? Should these institutions be exempt from withholding federal income taxes because various federal appropriations violate their religious beliefs?
I'm sorry, but we can't have it both ways. I am a huge believer in religious freedom. I am also a huge believer in the strict separation of church and state. It is one thing to claim that a federal law violates religious freedom; that's a valid argument and although I think they'd lose, the offended churches are well able to pursue the matter in court. It is quite another thing to seek a special broad exemption from a law for religious reasons, an exemption that will impact people who are only affiliated with said institutions because they are employed or served by them. It is, essentially, a request that secular civil law give way to religious doctrine.
Refusing a blood transfusion for yourself, for religious reasons, may be ill-advised, but it is your right; it only affects you. Refusing to vaccinate your children affects not only their health, but the health of everyone around them, and that is not (or should not be) your right. Shenanigans involving insurance coverage are no different. One person's rights do not extend to trampling the rights of others.
Here in the United States, all states require a bevy of vaccinations before a child will be admitted to a public school. Almost all states, however, allow parents to opt their children out of vaccinations due to religious exemptions (it appears from this map that only Mississippi and West Virginia do not allow this), and some even allow "philosophical" exemptions.
Under the general cloud of specious "religious or moral" objections to vaccines, disguising irrational and, frankly, idiotic fears, thousands of parents have opted their children out from required vaccinations. The result has been outbreaks of the sort of childhood diseases that, only a few years ago, were largely controlled. Here is a measles outbreak in Indiana from earlier this year. Here is the worst whooping cough outbreak in California since 1955.
It's not a matter of a few nutjobs, either; there is a sizable subset of credulous parents fearing vaccines for a variety of idiotic reasons, who use religious exemptions as an easy way out. This is not a new story. There are whole websites devoted to teaching people how to claim a religious exemption. The most casual Google search brings up multiple hits on the first page. These sites openly flaunt the fact that most of these parents fraudulently claim religious exemptions. One such site helpfully states that "[y]ou do not have to prove membership in any religion to use a religious exemption."
So, now we are seeing another debate going on along similar lines. Under the Affordable Care Act, the Department of Health and Human Services was set the task of determining what preventative services the upcoming mandatory insurance coverage would provide, including reproductive health services for women. HHS (wisely, in my opinion) decided that contraceptives should be included, and even went so far as to require that such services be provided at no cost. There is a listed exception to "religious employers," but it was narrow, and left out, for example, Catholic universities, hospitals, and other Church-affiliated institutions.
This, unsurprisingly, royally pissed off the Catholic bishops, who are not only stuck in 1700s in terms of sexual doctrine, but are out of touch with upwards of 96% of the faithful on the issue of contraceptives. (Somewhat off-topic, but I think that at this point the sensus fidelium has very much spoken, and the Church has yet to catch up.) The argument is that such a requirement violates the Church's First Amendment rights of free exercise of religion; by requiring Church-affiliated institutions to, in effect, violate Church doctrine, the mean old government is seeking to stamp out religious freedom!
I would say that, to the contrary, a sweeping religious exemption to provisions of national healthcare law would violate the Establishment Clause because, basically, the government would be saying "here is one rule that applies to people of certain religious beliefs, and here is another rule that applies to everyone else." Sorry, but that doesn't work. When treating with religious organizations, the government is required to be neutral. I offer y'all a good summation of the law, as stated by Justice Hugo Black in Everson v. Board of Education (1947):
The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
The application here being that, by setting up what amount to different rules for Catholic and non-Catholic institutions, the government would be, in effect, preferring one religion over another.
Frankly, I don't think that any moral or religious exemption should be allowed for vaccinations; religious freedom is not absolute (you cannot, for instance, sacrifice your neighbor's children to appease Taranis) and however much we rage against it, sometimes the public good really does trump individual freedom. Likewise, I think church-affiliated institutions that serve a varied community should be subject to the same regulations as their secular counterparts. It would be one thing if a Catholic institutions exclusively employed and served Catholics. But no, Catholic hospitals serve the community at large, and a majority of that community is not Catholic, does not hold with Catholic doctrine, and is not subject to Catholic religious obligations. A large portion of employees of Catholic institutions are also not Catholic. Why, then, should those non-Catholic employees be subjected to Catholic religious obligations?
While I generally dislike slippery-slope arguments, I think there is a genuine slippery slope here. Religious institutions are not separate from the civil law; they operate within its framework. For example, Catholic dioceses are, under state law, organized as corporations, and are treated as such (there was a case I read where a guy bought some dogs from an abbey in Switzerland, was unsatisfied, and sued the Vatican and his local diocese in federal court. The Court ruled that, under business associations law, he could not "pierce the corporate veil" because each diocese basically operated as an independent corporate entity, and the diocese was therefore not responsible for the actions of the abbey). In this case, the Catholic bishops and others are seeking broad exemptions from a federal regulation. They are basically arguing that they should be above the law. It might be different if they were arguing that the law as a whole was unconstitutional or immoral, and while others are making those very arguments, the bishops are instead saying that they merely want Catholic institutions to be exempt. They are acting as if the law was specifically targeting the Catholic Church when, in fact, it is intended to apply equally to everyone.
So where does this end? Should a Catholic hospital be able to fire an employee if they get divorced? We have a system of Baptist Church-affiliated medical centers here in Little Rock; should they be allowed an exemption to emergency care statutes so they don't have to serve non-Christians? Should either be exempted from sexual harassment laws because their respective religious organizations teach that women are subservient to men? What about taxes, which go towards supporting a whole host of things that Catholics and Baptists find objectionable? Should these institutions be exempt from withholding federal income taxes because various federal appropriations violate their religious beliefs?
I'm sorry, but we can't have it both ways. I am a huge believer in religious freedom. I am also a huge believer in the strict separation of church and state. It is one thing to claim that a federal law violates religious freedom; that's a valid argument and although I think they'd lose, the offended churches are well able to pursue the matter in court. It is quite another thing to seek a special broad exemption from a law for religious reasons, an exemption that will impact people who are only affiliated with said institutions because they are employed or served by them. It is, essentially, a request that secular civil law give way to religious doctrine.
Refusing a blood transfusion for yourself, for religious reasons, may be ill-advised, but it is your right; it only affects you. Refusing to vaccinate your children affects not only their health, but the health of everyone around them, and that is not (or should not be) your right. Shenanigans involving insurance coverage are no different. One person's rights do not extend to trampling the rights of others.
(no subject)
Date: 26/11/11 02:47 (UTC)(Damn, I don't have a gun userpic....)
(no subject)
Date: 26/11/11 09:11 (UTC)(no subject)
Date: 25/11/11 20:30 (UTC)(no subject)
Date: 25/11/11 20:32 (UTC)(no subject)
Date: 25/11/11 20:37 (UTC)So, sadly, the local vets won't treat Fluffy. (He also once destroyed the vet's Hummer, but that's really beside the point).
(no subject)
Date: 25/11/11 21:31 (UTC)(no subject)
Date: 25/11/11 22:45 (UTC)If a non-Catholic is employed by a Catholic corporation, why should the opinions of the Pope prevent them getting free birth control that they would be entitled to from any other employer?
(no subject)
Date: 26/11/11 01:50 (UTC)(no subject)
Date: 26/11/11 02:07 (UTC)(no subject)
Date: 26/11/11 16:18 (UTC)(no subject)
Date: 26/11/11 01:13 (UTC)(no subject)
Date: 26/11/11 05:35 (UTC)(no subject)
Date: 26/11/11 05:39 (UTC)Sounds like a punishment to me.
(no subject)
Date: 26/11/11 05:41 (UTC)(no subject)
Date: 26/11/11 15:09 (UTC)Think for a minute, though. Say a class has one immunocompromised kid and her body just can't use vaccines; she's had her shots, but she's not covered. All the other kids have had vaccines, until one more joins the class.
Suddenly she survives one case of measles, let's be generous and say without side effects (which can include brain damage.) Great! And the parents of the new kid are taking him to a pox party next week so he gets chicken pox. They don't have a clue when he successfully catches it and they'll let him attend school until he really comes down with it. At this point the parents of the immunocompromised kid are going to have to homeschool her to be sure of her safety. And since this could be a variety passed around for a while, it's possible it's evolved into a new strain and some vaccinated kids will get it.
The right of the other kids to a healthy environment overrules the parent's right to let Typhoid Mary loose on the school.
(no subject)
Date: 26/11/11 20:03 (UTC)(no subject)
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Date: 26/11/11 15:42 (UTC)(no subject)
Date: 26/11/11 16:10 (UTC)The fun part is that the shingles vaccine can be hard to get, depending on what area you live in.
(no subject)
Date: 26/11/11 16:38 (UTC)I've also seen it claimed (on the internet) that the vaccine leads to shingles and the live virus is safe. Maybe she just likes that version.
(no subject)
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Date: 26/11/11 16:11 (UTC)(no subject)
Date: 26/11/11 04:06 (UTC)Story time: When I lived in Big City, I picked the girl in the pic's pediatrician based on, among other things, his refusal to accept patients who were not vaccinated for non-medical reasons.
I think you could set this in either the realm of the War on Science or the War on Women. Either way, is sucks.
(no subject)
Date: 26/11/11 13:23 (UTC)I would disagree, however, with your application of Black's ruling to this specific situation - a law like this does violate the idea of the "wall of separation," but the so-called wall is not the only piece, there's also the "free exercise" portion. Christian Scientists obviously come to mind in this, but when the law is a) not actively violating rights of the whole but b) is violating the "free exercise" of religion, I think that's where the issue lies. The disagreement may, in fact, be less about b but more about a.
(no subject)
Date: 26/11/11 16:25 (UTC)What do you mean by this? Not quite sure I'm reading you right.
(no subject)
Date: 26/11/11 17:35 (UTC)(no subject)
Date: 26/11/11 17:41 (UTC)And the flu shot isn't designed to protect against all strains of the flu. Researchers pick the one that's going to be the Year's Problem Flu and vaccinate against that. So you can theoretically get the flu shot and then get the flu multiple times, each time a different strain and none the one you were vaccinated against.
So I get what you're saying, but between the two points above, it would be hard to mandate that. And if the researchers get the wrong most virulent strain, the protection wouldn't be worth much. (I do not know how they do it, but they do have a good record.)
(no subject)
Date: 26/11/11 18:08 (UTC)(no subject)
Date: 26/11/11 18:16 (UTC)I think it's also that the flu is lumped in people's minds with the common cold. (But slightly more easy to make vaccines for!) It's common enough, kills few enough people out of the pool people expect to live, and is similar enough at onset that I'd guess people see it as a part of life.
(no subject)
Date: 27/11/11 03:20 (UTC)The only recent plague-level epidemic I've seen is AIDs, and there's not much point quarantining people with that. It's not spread by air or casual contact with an HIV-positive person.
I checked out wiki (http://en.wikipedia.org/wiki/Quarantine) for a quick-and-dirty look at recent quarantines and it looks like the US had two this past decade, both of which seemed to be people who wouldn't accept precautions with a stealthy and deadly disease. I don't like prolonged quarantine because it's arrest without trial, you're right. But it is a certain way to control the spread of disease that's difficult to prevent or treat.
(no subject)
Date: 27/11/11 04:39 (UTC)(no subject)
Date: 26/11/11 18:07 (UTC)(no subject)
Date: 26/11/11 18:07 (UTC)(no subject)
Date: 26/11/11 22:08 (UTC)You don't seem to think that's the right result, but I might ask, then, why not?
Part of the problem here is that we can think of all kinds of putative claims for religiously-inspired and constitutionally-based exceptions from generally applicable laws. Do we take them all seriously? If not, how do we distinguish between the ones we ought to take seriously and those we shouldn't?
(no subject)
Date: 26/11/11 22:15 (UTC)Mainly because not vaccinating increases people's risks, yes, but does not overly harm them. Furthermore, as I noted before, we do not quarantine people with diseases - this at least implies that we are at least somewhat okay with the risk of getting sick in the real world regardless. Truly, I simply cannot find a reasonably good reason to deprive the minority their religious rights to make the majority more comfortable given that information.
Part of the problem here is that we can think of all kinds of putative claims for religiously-inspired and constitutionally-based exceptions from generally applicable laws. Do we take them all seriously? If not, how do we distinguish between the ones we ought to take seriously and those we shouldn't?
Does it overtly infringe on someone else's rights. That really should be the line we use. So human sacrifice is a no, but smoking pot a yes. Banning all other "untrue religions" no, allowing people to opt out of vaccinations for religious reasons yes.
This is one of those areas that I'm truly very libertarian on.
(no subject)
Date: 26/11/11 23:47 (UTC)The question I was trying to ask was not why, in your view, mandatory vaccination presents a genuine free exercise issue, but why, generally speaking, people shouldn't have to follow generally applicable laws if they have some kind of private religious objection to doing so. Here, you've clarified that you seem to think there is some kind of balance that always comes out in the religious observer's favor when their religious-motivated behavior doesn't "overtly harm" someone else or "overtly infringe" upon their rights. But why is that the balance?
Consider the way we "balance" individual freedom in most cases where a law is proposed - we weigh not the rights of people to do what is proposed to be forbidden (or not to do what is proposed to be mandated) against other people's rights but against the statutory purposes and benefits to be gained by the law. Why is the matter of religion different, in your view? Or is it?
But as to the more specific assertion you've been defending, that people shouldn't be required to vaccinate their own children if they have a religious objection to doing so - you point to the fact that the failure to vaccinate does not "overtly harm" anyone else. But what happens when the non-vaccinated child becomes ill and causes another person's child (prior to their own vaccination, or with a compromised immune system, or with a medical condition that prevents them from being vaccinated themselves, or who would have been vaccinated if their parents could afford it, etc.) to become ill? Would there be a cause of action, in your view? Or does the latter child just have to live with the consequences of the former child's parents' decision?
Truly, I simply cannot find a reasonably good reason to deprive the minority their religious rights to make the majority more comfortable given that information.
But we're not really talking just about the "peace of mind" of the majority. We're also talking about the kids who can't opt into immunization without their parents' consent and assistance. If some kid becomes disabled because of a disease he contracted only because his parents wouldn't immunize him, and he grows up to not share their religious views (or if they convert while he's an adolescent, even!), what do you think he'll say about his parents' decision? Is it clear that he would commend the state for respecting his parents' rights to "exercise their religion" with respect to his health?
Does it overtly infringe on someone else's rights. That really should be the line we use. So human sacrifice is a no, but smoking pot a yes. Banning all other "untrue religions" no, allowing people to opt out of vaccinations for religious reasons yes.
There are a few issues with this "line." First is the obvious - how do you determine what "rights" we have? Can the state create rights that someone else's religious observation would tend to violate (say, for example, the right to be free of calls to prayer at certain times of day, as violations of a noise ordinance)?
Second - again, I wonder what makes religion different? We have all kinds of laws that regulate behavior that doesn't necessarily "infringe" on anyone else's rights, but you don't seem to be presenting this standard for determining what principles laws ought to follow - just what forms of religious exercise ought to be carved out of generally applicable laws.
Finally - I'm not sure this standard will work quite the way you want it to. For example, it would seem quite easily to permit laws banning male circumcision, compelling pharmacists to distribute birth control and emergency contraception, and Catholic Charities to place adopted children with same-sex parents, while it would require exceptions from laws so that people carrying ritual daggers or wearing opaque face veils or headware can carry or wear such items onto planes or into secure areas without examination (if that's what their religious views require). Is that really what you're signing up for?
(no subject)
Date: 27/11/11 02:11 (UTC)As a society, we hold religious freedom in such high regard that we enshrined it as one of the first protected rights in the Bill of Rights. The balance has traditionally been to protect people's freedom of religion, both in belief and exercise. I see no reason to abandon that practice.
Consider the way we "balance" individual freedom in most cases where a law is proposed - we weigh not the rights of people to do what is proposed to be forbidden (or not to do what is proposed to be mandated) against other people's rights but against the statutory purposes and benefits to be gained by the law. Why is the matter of religion different, in your view? Or is it?
I'm not sure that I find it different. I'd have to think about that a bit. With that said, I don't think religion is "different" - even if we're balancing said rights, the right to exercise your religion freely is paramount.
Would there be a cause of action, in your view? Or does the latter child just have to live with the consequences of the former child's parents' decision?
I mean, I come back to the flu, to chickenpox, to whatever other communicable diseases that are out there. Is there a "cause of action" for a child who hasn't learned to wash his hands properly? For the child who doesn't sneeze into her elbow? Part of living in a civil, democratic society that protects the rights of the people to exercise their religious beliefs, that allows a diverse amount of viewpoints, is that people will make decisions that you will not like and that may inconvenience you.
First is the obvious - how do you determine what "rights" we have? Can the state create rights that someone else's religious observation would tend to violate (say, for example, the right to be free of calls to prayer at certain times of day, as violations of a noise ordinance)?
Our system assumes that rights are inherent, so we don't need to really determine it. The government cannot infringe on them, and our personal rights are wide-ranging. The right of religious freedom is important enough that it's specifically highlighted. There cannot be a conflict, per se, in the way you're claiming in your example, and in a situation such as today's, one technology can solve. Obviously, any perceived conflicts are resolvable with effort.
Is that really what you're signing up for?
I'm not sure how you're making these dividing lines, to be honest. It's quite simple - put the laws in place that you want that don't otherwise violate people's rights, and offer religious exemptions where appropriate.
(no subject)
Date: 27/11/11 05:29 (UTC)If you want to have a discussion about what the Constitution or established law interpreting it requires, we can. I guess I thought I was asking a normative question, prompted by your own normative assertion that didn't seem to track established law.
Anyway, that the free exercise of religion is important doesn't necessarily compel any particular balancing test. Your assertion was that one person's right to practice their religion freely ought to be respected to the extent their practice doesn't harm others. An alternative way of striking that balance is to weigh the interests of individuals in their religious practices against social ends and permitting the social ends to outweigh individual practices only when the social ends are very, very important. The latter is a more familiar approach in our legal system. What justifies taking the former approach?
Is there a "cause of action" for a child who hasn't learned to wash his hands properly? For the child who doesn't sneeze into her elbow?
For a person who drives while talking on their cell phone? For a person who doesn't shovel their sidewalk in the winter?
The point here is that - well, there could be. Conceivably you might argue that the parent failing to vaccinate their child was acting recklessly with respect to individuals that they knew, or should have known, were likely to be harmed by their recklessness.
Part of living in a civil, democratic society that protects the rights of the people to exercise their religious beliefs, that allows a diverse amount of viewpoints, is that people will make decisions that you will not like and that may inconvenience you.
In what sense is a permanent disability (say) caused by another person's failure to take reasonable measures to prevent the communication of disease a mere "inconvenience?"
There's nothing about living in a "civil, democratic society" that requires us to suffer harms caused by other people's unreasonable actions, religiously inspired or not, just because they're better off causing you that harm. That kind of society would be, in fact, manifestly unjust and just inefficient.
Our system assumes that rights are inherent, so we don't need to really determine it.
What? No, I don't think so. First, our system makes no such assumption. Second, we can have rights that are not "inherent," which is why I asked the question about statutory rights.
The government cannot infringe on them, and our personal rights are wide-ranging.
No, it can, and does. And what are our "personal rights?" Supposing that we have such rights, how do you determine what they are?
The right of religious freedom is important enough that it's specifically highlighted. There cannot be a conflict, per se, in the way you're claiming in your example, and in a situation such as today's, one technology can solve.
This is a very strange theory of rights, I think. You're saying that I can't infringe upon your right, say, to enjoy your property, by enjoying my own property next door?
(no subject)
Date: 27/11/11 14:21 (UTC)I'll put it this way if it didn't come across clearly before - I see the right of religious exercise as an important one regardless of the Constitution's position on it, and that the Constitution is so clear on it provides a good guiding point policy-wise, I think.
An alternative way of striking that balance is to weigh the interests of individuals in their religious practices against social ends and permitting the social ends to outweigh individual practices only when the social ends are very, very important. The latter is a more familiar approach in our legal system. What justifies taking the former approach?
Mainly because the social ends of denying people the right to practice their own religious viewpoints, to me, is worse. I understand that the slippery slope is considered a logical fallacy, but the dangers involved in saying "We'll permit X religious expression, but not Y" when both expressions have the same basic impact on society creates a rather troubling precedent.
Conceivably you might argue that the parent failing to vaccinate their child was acting recklessly with respect to individuals that they knew, or should have known, were likely to be harmed by their recklessness.
Which ultimately raises the question as to where such a line sits, which falls way, way outside this topic. Part of the reason why such opting out can be tolerated beyond the basic risk portion is that most people are happy to vaccinate. The problems lately have been more about the antivax lunatics motivated by bad science than the religious people who have an established position against certain medical practices. Those who opt out for religious reasons are then able to benefit from the herd immunity, and aren't generally putting anyone else at risk who isn't taking the risk on themselves. Exceptions to the rule, etc etc, but it's part of why it works.
In what sense is a permanent disability (say) caused by another person's failure to take reasonable measures to prevent the communication of disease a mere "inconvenience?"
Or death from the flu? The same reason we allow risks to let people drive, to let people consume alcohol, to let people smoke.
That kind of society would be, in fact, manifestly unjust and just inefficient.
Second point first, are you saying we should put efficiency ahead of freedom? To what ends?
Regarding justice, I'm not sure it's just to trample on the rights of a minority group for the sake of majority comfort. I'm not sure it's just to restrict large groups of people for the sake of comfort.
What? No, I don't think so. First, our system makes no such assumption. Second, we can have rights that are not "inherent," which is why I asked the question about statutory rights.
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
Not only was it understood that the rights are inherent, but it's part of the basis as to why this country was established.
As for non-inherent rights, perhaps. I'd argue, at least in our system, such rights are essentially inherent the same way, it's just that the government finally decided to recognize them.
No, it can, and does. And what are our "personal rights?" Supposing that we have such rights, how do you determine what they are?
I'm using a straight reading of the 9th Amendment in this case.
You're saying that I can't infringe upon your right, say, to enjoy your property, by enjoying my own property next door?
Many places are trying to go down this road already (http://blogs.laweekly.com/informer/2011/05/apartment_smoking_ban.php). Generally speaking, no, I don't believe you can. Wherein there is such a conflict - say, for instance, your conflict between noise ordinances and calls to prayer - it's ultimately in our interest to try and solve the problems.
(no subject)
Date: 27/11/11 05:29 (UTC)I'm just trying to apply the principle you've articulated - people should be able to practice their religion to the extent doing so doesn't harm other people or infringe upon their rights. So take something like male circumcision - a male child is harmed in a way that would in any other circumstance would be a violation of the child's right to bodily sanctity. Take the pharmacist denying BC or EC - the pharmacist is violating his customers' right to equal treatment and is abusing a state-granted monopoly in contravention of an implicit covenant of good faith. Take Catholic Charities - they're denying access to a program that the same-sex parents have every right under the law to access. In each of these cases, you have a putative claim to a religious "right" that cannot be reconciled with the rights of others. On your characterization, then, it would seem that we shouldn't worry about laws that omit exceptions for such forms of religious "expression."
(no subject)
Date: 27/11/11 14:25 (UTC)In this case, a child cannot make an informed decision, thus it's, to me, clearly a violation of that person's (the child's) right to exercise his religion freely.
Take the pharmacist denying BC or EC - the pharmacist is violating his customers' right to equal treatment and is abusing a state-granted monopoly in contravention of an implicit covenant of good faith.
In that people do not necessarily have a right to other people's goods, I'm not convinced there's a conflict here. That the state is granting a monopoly is a separate issue that may be creating/irritating the conflict.
Take Catholic Charities - they're denying access to a program that the same-sex parents have every right under the law to access. In each of these cases, you have a putative claim to a religious "right" that cannot be reconciled with the rights of others.
Do people have a right to adopt from a private agency? Do people have a right to demand that X group offer any service to Y group, regardless of more or religious observations? I don't believe so.