I take your point about “our current state where many non-libertarian laws do exist,” and addressing the 3 aspects of your point separately, I would say:

1) Yes indeed, truly maximizing religious freedom admittedly may require adopting libertarianism across the board as a concomitant, and my hope would be that presupposing the former would help to drive the latter.

2) Similarly, it presupposes a libertarian definition of the “rights of others,” which although “famously contested” on ideological grounds, is nonetheless fairly definable (as I’m sure you’re familiar…).

3) That leaves us with my qualifiers like “direct” and “imminent.” This may indeed be the most challenging prong of my position, and I’m open to trying to find a more rigid formulation. However, I still submit that such a standard is far less subjective than “compelling interest,” etc.

I realize we differ in our ideological premises; I merely suggest that it’s not somehow a logical or logistical impossibility to remove (most if not all) current subjectivity from these analyses.

John D: Where are all the people from this thread?How is this case different from that of Habibo Jama? So many commenters felt that her complaints were not the slightest bit frivolous.

One difference is that we have heard of Ms. Jama’s religious beliefs before, and the number of people who follow or claim to follow them (not just Islam, but the particular modesty restrictions within Islam that Ms. Jama claimed to follow) is in the millions.

By contrast, the “Christian Prurient” plaintiff’s religion raises suspicions that it is more likely to have been made up by the plaintiff for self-serving purposes than to be a sincere religious belief.

How is this case different from that of Habibo Jama? So many commenters felt that her complaints were not the slightest bit frivolous.

On the other hand, “direct and imminent danger to the rights of others” hardly avoids “gray areas” or “subjective, discretionary calls.” What constitutes the rights of others is famously contested. (What about the right, recognized by many state laws but not by most libertarians, not to be discriminated against by private entities in various commercial transactions? The right not to be defamed through knowing lies? The right not to have one’s copyrights infringed? The right not to be subject to “nuisances” that unduly interfere with one’s enjoyment of one’s property?) Likewise, what is “direct” and “imminent” is often quite subjective and discretionary.

It’s no accident, I think, that some people take a “no discrimination against religious practices” view of the Free Exercise Clause (see Smith) and others adopt some sort of “balancing test” or common-law development process for developing religious exemptions from nondiscriminatory laws (which is what “strict scrutiny” under Sherbert and Yoder ended up being), but nearly no-one takes an “absolutist” view or even a particularly bright-line view: I don’t think such a view is tenable when it comes to religious exemptions, at least in our current state where many non-libertarian laws do exist and will continue to exist.

To answer your question, I would first note that many of the sorts of issues you raise (e.g. minimum wage) would automatically become moot if libertarian ideology were adopted across the board. In other words, the more the government gets involved in our lives in the first place, the more clashes like this will arise. [To whatever limited extent that taxes would still be legitimately needed even in a libertarian system, I don't think I could support actually prosecuting somebody for failure to pay due to a sincere religious conviction; any remedy fashioned would have to avoid coercing somebody to participate in violating his own faith...e.g. perhaps simply seizing one's assets could effectively get around this.]

As for my use of the term “absolute,” what I meant by it is that I oppose leaving unnecessary “gray areas” or room for subjective, discretionary calls. (I call myself an “absolute” right-to-lifer for instance, even though I believe in the life-of-the-mother abortion exception, on the rationale that there there’s a direct clash between two unalienable/absolute rights.) I suppose the engineer in me is willing to call something an “absolute” as long as it’s objectively definable to the extent that it cannot vary by time, context, or perception.

Various libertarian thinkers have posited different formulations and constructs for approaching these issues, but no, I don’t think that any have ever been fully implemented anywhere as of yet.

Arthur,

I would include any sincere matter of conscience (to be phrased more carefully perhaps, but that’s the general idea). I believe the definition of religion should *not* require a deity, and indeed such as bias leads to privileging non-theistic worldviews in our establishment clause analyses.

In this case it would appear the person has an addiction to child porn and is inventing a religion couched in usual religious terms to attempt to gain access to their addiction.

I guess my question is what if the “religious” freedom the person is demanding is illegal (eg. demanding the right to slay whomever one feels has insulted one’s gods).

OrenWithAnE: BLG, it’s unfortunate that you will concede that a warden can confiscate a prisoner’s bible despite allowing books in general. I hope whatever you gain on the ‘other end’ is well worth this price.

Worse, if the first amendment doesn’t apply “at all,” then the warden can force the prisoner to convert to Islam.

Failing that, the judge could have used the security-related rational-basis test. Commentators on this blog may disagree, but it’s at least arguable (there is at least a rational basis for the view) that pornography tends to create security problems, particularly under prison conditions.

However, i don’t think the “it’s no big deal” standard holds any water under existing first amendment precedent. Most religious rules don’t seem like a big deal to people who aren’t members of the religion. Requiring Jews to turn the lights off on Friday night, Insisting Christians eat the standard cracker rather than a special one on Sunday, and requiring Moslems to eat the pork or go hungry, all seem like no big deal to those outside the religion. Yet a belief that others’ religious requirements are no big deal has never been considered enough to justify a refusal to accommodate them under First Amendment precedent.

The same statute is used by individuals who want ‘sweat lodges’ and pagan / satanic / viking etc. religious materials in prison, and grants relatively broad protection for freedom to exercise religion in prison.

the hardships of which he complains are relatively insignificant, are typical of prison life, and are of his own making.

Which could be said of the “hardship” of not being able to eat crackers and drink wine the “hardship” of not being able to pray 5 times a day while facing in a certain direction.

You know, depending on your point of view and all…

Biolawguy: Eugene, At the very least, I’d say restrictions on religion (or speech content BTW) should be subject to the strictest of all imaginable scrutiny — something objectively definable with minimal wiggle-room — perhaps only in cases of a direct and imminent danger to the rights of others, for example.

Does the sweep of religion you would protect require a claim of belief in a supernatural being, or would any intensely held belief suffice?

Say that someone sincerely believes that his religion forbids him from paying taxes. Exemption required, yes?

Or say that someone sincerely believes that he needs to hire people for $5/hour. Even if minimum wage laws are a bad idea, wouldn’t exempting this person from minimum wage laws either give him an unfair advantage over the nonreligious, or lead to many more claims from his competitors that really aren’t sincere at all?

I just wonder exactly how an “absolutist” model of religious freedom, or even one that’s very strongly protective, would actually work. Has any jurisdiction anywhere adopted it? What has its track record been?

I read your posts fairly frequently, and readily acknowledged that you do indeed go pretty far for religious freedom…I’d prefer you to most sitting justices for sure! But I think I go further than you, and the peyote case is probably a good example. (I also recall from your book that you use that case as a good example for a “test suite,” and while that’s a helpful exercise, it doesn’t necessarily lead to conceding that such religious restrictions are acceptable.)

I may even go farther than Blackmun’s dissent in that case, because I’ve never been comfortable with the idea that some generic and manipulable notion like “compelling interest” justifies religious suppression (which Blackmun conceded in principle, but then merely disagreed that the particular facts there rose to that level). It’s just too subjective, and I think the essence of the first amendment is indeed to avoid the dangers of rationalizing or “balancing tests” via its use of such broadly sweeping pronouncements. At the very least, I’d say restrictions on religion (or speech content BTW) should be subject to the strictest of all imaginable scrutiny — something objectively definable with minimal wiggle-room — perhaps only in cases of a direct and imminent danger to the rights of others, for example.

I know most people wouldn’t go that far, and I realize it comes at a cost. I guess I just fear the proverbial slippery slope of not holding a so-called “bright red line.”

Other than by sheer judicial fiat, I can fathom no textual rationale for “gradations” of first amendment freedoms. Thus, those of us who decry slippery slopes and say that liberty is “all or nothing” have to recognize that sometimes it will be “nothing.”

Clarification: If you’re not a prisoner, even an “incidental effect” hardship shouldn’t be accepted.