In a recent column, I addressed the origin and importance of the American concept of religious freedom. Our American concept of religious freedom is different, in part, because our concept of government is different. We believe in a limited government — i.e., one that is not able to govern every aspect of our lives. The entire point of a constitution is to limit government, and we limit government in any number of ways, both menial and fundamental:
(1) we limit the government’s ability to be led by a president younger than thirty-five years of age (Article II, Section 1, Clause 5);
(2) we limit the Judiciary’s ability to hear cases to actual cases and controversies (Article III, Section 2, Clause 1);
(3) we vest legislative power only in the Congress (Article I, Section 1, Clause 1);
(4) we limit government’s ability to limit speech (Amendment I);
(5) we limit government’s ability to regulate free exercise of religion (Amendment I).
But why do we do this? Well, regarding the first three, because government works best when power is separated and competent people lead government. Regarding the last two, we do this because we know that government is not omnicompetent. In other words, government shouldn’t tell us how to talk or how to worship because it is, in a very real sense, incompetent.
This isn’t to ape the libertarian meme that government can’t do anything. It surely can, and it surely does. But it simply cannot do some things. One of the things it cannot do is determine religious truth and religious falsity — hence the First Amendment’s Establishment Clause.
Because of this inability, it follows that government cannot determine which religious behavior is warranted and which is not. And this is why government must treat all religious believers equally and protect all religious exercise equally. (Unless, of course, that exercise imminently threatens the common good — e.g., human sacrifice, physical violence, etc.) Thus, Jehovah’s Witnesses are protected from mandatory recitations of the pledge or allegiance the same as Catholics are protected in their doctrinally-founded decision not to ordain female priests.
Think about it this way, it makes perfect sense that each state has a Department of Motor Vehicles. States must regulate motor vehicle traffic and motor vehicle operators. To not do so would be silly and dangerous. What doesn’t make perfect sense is a state-run DMV that tries to divine whether driving is permitted or precluded according to Christian or Muslim scripture. No one would accept the DMV’s conclusion (or any laws or regulations stemming from it) because DMV personnel are not competent to make such conclusions. Setting standards for license renewals is one (rather simply) thing, but determining religious truth regarding driving is quite another.
Likewise, we have — for better or worse — an Internal Revenue Service. Collecting taxes is a perfectly acceptable function for the IRS to engage in. It is, however, far above the IRS’s pay grade to determine how much those of the Jewish and Buddhist faiths are religiously obligated to pay in tithing (if they are obligated to do so at all). We would never task bureaucrats with anything of eternal importance: they simply aren’t up to it.
Another reason government is not competent to regulate the free exercise of religion is because politicians are politicians. They are in the business of increasing their power and securing re-election. Thus, politicians are much more likely to suppress religious expression when it advances their political interests. This means, they are most likely to suppress the religious exercise of minority religions. Doing so increases the power of the majority religion, which makes it more likely for those of the majority religion to vote for the suppressing politician, thus increasing his or her power. It’s all very, well, political, which is why it needs to stay the hell away from religion.
Now, some may argue politicians must have wide-ranging authority to limit free exercise because free exercise can cause harm. (Note: everything can cause harm, but that doesn’t mean politicians can limit everything. For instance, words can hurt, but we don’t ban them (in all but the most extreme cases, that is) because we know the benefits of free speech outweigh the potential harm.) Let’s assume, for the sake of argument, that free exercise causes actual harm, and this harm is outweighed by any benefit. Even that set of circumstances doesn’t mean politicians will (1) correctly choose which free exercise to regulate, or (2) correctly choose how to regulate it. Again, politicians are politicians. They suppress free exercise when it will get them re-elected or increase their power, and this suppression usually has little or nothing to do with the suppression of free exercise that causes actual harm.
Honestly, do we want Governor Herbert or the Utah Legislature (no offense to either) regulating the most intimate part of our life: our relationship with our God(s)? Do we want politicians telling Santeríans they cannot sacrifice animals to their God, while allowing animal slaughter for culinary purposes? (This example might sound silly, but it was the subject of a United States Supreme Court case: Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993).) Do we want Utah politicians suppressing minority Muslim practices while allowing majority Mormon practices? The answer to all of these questions is “no.”
Government is incompetent to determine religious truth, and it is equally incompetent to regulate free religious expression.
(Much of my reasoning is analogized from Frederick Schauer’s arguments against free speech regulation because of governmental incompetence. Frederick Schauer, Free Speech: A Philosophical Enquiry (1982).)
Previously posted at Publius Online.