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Secular law and religion - a constant struggle for balance

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 Thursday, 23 December 2004
Thursday, 23 December 2004 11:03:33 (Central Standard Time, UTC-06:00) ( )

In a previous post I brought up the issue of drug use in religious ceremony. Thomas commented

 

The Government concerns are valid in this case. What defines "serious" risk? What defines a "significant diversion to non-religious use"?

 

And this is absolutely correct. The government does have valid concerns here. But fortunately that doesn’t mean that the religious practice is automatically invalid. It means that the government has a responsibility to prove their case. And the courts have a responsibility to judge that case. The system is set up to answer the questions posed. What defines “serious” risk? A “significant diversion”? Our government and legal systems are specifically designed to answer these questions. That is their role.

 

The drug thing is a difficult question, but is really just the gateway to a much more important question.

 

If your religion is old, predating the current attitudes toward drug use, are you subject to changing your religion based on new-fangled and potentially transitory views on drugs?

 

Suppose various American Indian, Brazilian and other religions are right? Suppose the only way to really communicate with god, the goddess, the gods, spirits, forces of nature or the universe at large is through the use of a hallucinogenic?

 

We can’t know. Not objectively. Certainly some people have faith that this is not a requirement, but others have an equally solid faith that it is required. A third group has faith that neither is correct and that there is no higher power. There’s no way to objectively determine whether any of these people are right.

 

But taking a black and white stance that any and all secular laws automatically trump any and all religious practices could entirely destroy or prohibit the practice of certain, if not all, religions.

 

Former Speaker of the House and futurist Newt Gingrich, in his book To Renew America makes the case that the primary reason government has a bureaucracy is so laws and regulations can be managed in a human way, with judgement and wisdom. It is recognition that the real world isn’t just black and white, but rather is composed of many shades of gray.

 

I think there is some truth to that view of bureaucracy, and certainly it is true that the world is not black and white.

 

Is hoasca harmful to humans? It certainly appears to have an effect after long-term use according to this preliminary study. Assuming that further medical studies confirm negative effects it seems to me that the government has a good case here.

 

Thomas’ use of crack cocaine as a straw man isn’t overly valuable unfortunately. There is ample evidence that crack is directly harmful to humans. Thus it very obviously meets the test required by the court and the government wouldn’t find the burden “onerous” at all. The only reason the hoasca case is “onerous” is due to lack of scientific evidence one way or the other.

 

But the point really isn’t about this specific case or about drugs in general. Rather it is the broader and far more important issue of whether secular laws and views automatically trump religious practice. Certainly that’s the view held in China today, and was the prevalent view in the USSR. I don’t think this is the approach we want to take here in the US.

 

Secular law is based on a mishmash of mores, pseudo-science, real science, opinion and even religious views. But mostly it is based on economics, and supports the needs of those who hold power.

 

Religious practice isn’t pristine either. While in theory it is based on truth, or at least the search for truth, historically it has been subverted to serve the needs of those who hold power as well. The bigger and more successful the particular religious sect, the more corrupt it tends to become. Often only the non-mainstream, fringe groups are able to truly seek truth. Unfortunately some fringe groups are also just totally nuts and are sometimes dangerous to themselves or others.

 

Who are we to judge which are valid? Well, we are the government. It is our job to evaluate these things based on the system laid out by the founders. That pesky “we the people” thing means that it is our job. While we might delegate certain powers to elected officials, and they to bureaucrats, that certainly doesn’t mean that we are allowed to abdicate responsibility.

 

It is a Constitutional guarantee that we can practice religion as we see fit. At the same time, it is the government’s responsibility to care for its citizenry. These two requirements are sometimes in conflict, and that is to be expected and even welcomed.

 

This is why the whole issue is complex. This is why a one-size-fits-all answer is inappropriate, and why we have a bureaucracy and justice system to sort out the finer details.

 

Ultimately, this is why the burden of proof must rest with the government. In specific cases the government must establish that the danger to the citizenry is so great that some religious activities must be restricted. That the societal cost of the specific activity is so high that it overshadows the Constitutional guarantee of freedom.

 

And we surely don’t want the reverse. In such a case the burden would be on religions to justify any and all practices. By default, practices would be illegal or invalid, and any religious practice would have to be justified through the courts or through explicit laws.

 

Given the overwhelming majority of Christians (of various flavors) in the US, there’s little doubt that we’d be a mono-religious state at this point. All other religious practices would be underground and illegal. Much like life in Iran or China. And that’s a nightmarish thought!

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