Wednesday, January 15, 2014

Should Mental Illness Count As Religion?

By Mike Dorf

My latest Verdict column uses the Little Sisters case as a jumping-off point to discuss religious exemptions. I argue that religious objections to "participating" in other people's activities are, other things being equal, more difficult to accommodate than objections to actions (or omissions) that one must take (or refrain from taking) oneself.  Spoiler Alert: Near the end of the column, I make the provocative comparison of the Little Sisters plaintiffs' view of participation to objections to living in a society that tolerates blasphemous cartoons. Now, just in case any readers aren't already offended, I want to compare religion to mental illness--albeit in a limited sense.

The column grapples with the following question: Is there anything special about religion that warrants giving people exemptions from general laws when they have religiously-based objections but not when they have non-religiously-based objections?  Let me begin by bracketing one reason that is sometimes offered in the relevant literature: that religion is especially valuable because it teaches morality, it creates social bonds, etc. Whether or not this is empirically true (a question about which I express no view), this rationale seems to me at war with itself, because religious freedom in a liberal society includes the freedom to practice no religion.

In the column, I offer (but don't endorse) a more-commonly expressed ground for treating religious obligations as special: A legally mandated violation of a religious commandment is, to a person of faith, a more serious burden on liberty than is violation of a mere obligation of non-religious conscience to a non-religious person (or to a person who is religious but whose particular view on some matter is rooted in her conscience rather than her religion).  Someone who thinks that God has commanded her not to X may experience being forced by the state to X as condemning her to eternal damnation, whereas someone who has a non-religious objection will be unhappy about mandatory X'ing but will feel less tormented.

I think that there is something to this point, at least in some contexts, but that it is both under-inclusive and over-inclusive as a ground for privileging religious grounds for exemptions.  It is under-inclusive because we protect religious practices even when their practitioners do not think that violation of religious obligations results in damnation. Some religions have no concept of Hell.  In others, salvation does not depend on acts.  Meanwhile, if the belief that X'ing will bring enormous suffering (as experienced in Hell) is what creates an entitlement to an exemption, then certain forms of mental illness also ought to qualify one for exemptions.

Suppose that Tom has a delusional belief that he must attend each of the home games of the Green Bay Packers or else he will experience hellfire here on Earth.  Tom does not hold this belief for any religious reason.  It's the product of a refractory mental illness. Now Tom's government employer tells him he has to work on Sundays, meaning he can't attend Packers' home games.  Under RFRA, if Tom had to be at church, he would be entitled to an exemption (unless the government could satisfy the compelling interest test), but there is no MIFA (Mental Illness Freedom Act), and so Tom has no claim--even though his beliefs mean that he will suffer a much greater burden than is suffered by a religious person who needs to go to church but whose theology does not condemn him to Hell if he fails to do so.

Accordingly, I don't think that the seriousness of the consequences to religious believers is a sufficient justification for treating religious grounds for exemptions as stronger than other grounds.  Instead, it strikes me that--at least for purposes of Free Exercise and RFRA, though not for Establishment Clause purposes--people with non-religious claims of conscience ought to be entitled to exemptions to the same degree as people with religious claims of conscience.  (This view can be found in the academic literature, too.)

Interestingly, that result would have been easier to achieve under the pre-Employment Div v. Smith Free Exercise Clause than it is under RFRA.  For while the First Amendment singles out religion for free exercise protection, a general right of conscience is sufficiently closely related that it could be extrapolated as an unenumerated right as a matter of substantive due process or the Ninth Amendment.  But there is no SDP or Ninth Amendment for RFRA.  To find that RFRA protects non-religious rights of conscience, one would need to construe "exercise of religion" to mean exercise of conscience.  That's more or less what the Court did with respect to conscientious objection to military service (as I explain in the column), and so I'm okay with going there, but it's a tougher linguistic move than the parallel move under the pre-Smith Free Exercise Clause.


egarber said...

Related to your comment in the column about the risk that democracy can become theocracy:

One thing I always come back to is the potential that something done in the name of free exercise is actually an establishment of religion, and hence a violation of the First Amendment in the other direction.

By carving out exceptions, the government is giving believers -- and inevitably certain believers -- preferential status in our nation of laws. And that elevated stature invokes Madison to me, who said something like, "religion is beyond the cognizance of government." With exemptions, we see the opposite, where government is entangled with it.

In fact, that leads me to a question: is it not possible that this whole thing invokes the Lemon "entanglement" test on some level?

To me, it would be cleaner if the free exercise clause was about animus, or maybe some form of disparate impact. Treat it straightforward as a constitutional standard related to limits on power, like it works elsewhere.

Hashim said...

Has anyone ever tried to justify religious accommodations based on the Govt's necessary agnosticism as to whether the religion is "correct"?

In other words, perhaps the reason the Govt doesn't want to force people to violate their religion is *not* because the Govt cares about their individual conscience, but because the Govt doesn't want to have forced an individual to have violated what the individual perceives to be God's law if in fact there really is a God and that really is his law -- something that the Govt obviously can't be sure of one way or the other. In short, religious accommodation is the Govt's version of Pascal's wager (w/ strict scrutiny being the limit to which the Govt is willing to bet on the probability of God's laws).

If that's the theory for religious accommodations, then it perfectly explains why the Govt doesn't accommodate the mentally ill or even individuals with sincerely held non-religious ideological beliefs. The Govt is capable of deeming those beliefs "false" and refusing to accommodate them. But, as to religion, the Govt is in the same boat as everyone else -- it's a non-falsifiable leap of faith.

Joe said...

egarber's comment as applied to RFRA (given its scope) matches Stevens' concurring opinion in Boerne v. Flores.

But, to a less degree, there was always exemptions specifically for believers. The 1A specifically says the gov't cannot 'prohibit' free exercise. Certain gov't regulations for some people in effect do that.

The 1A is the place where religion is singled out (in both directions). The mentally ill example is off to me because ON THE WHOLE it is seen that religion is important in various respects.

It also has to be determined what "religion" means. The term is and should be defined broadly these days. An ethical vegan, e.g., is likely to have a basic overall view of life etc. that has religious content even if not based on god. See, e.g., Ronald Dworkin's "Religion Without God."

I do support the idea of supporting the right to conscience, both as a necessary aspect of freedom of religion in the first place,* and as an independent matter. As noted, there is academic literature on this matter.

This would in part be an equal protection right for those who do not practice what is seen as "religion" and an important liberty as a whole. This broader view, even a broad view of 'religion,' does require as suggested by the column some sense of perceptive on proper accommodations.

What is repeatedly done here is to selectively accommodate. It is seen, e.g., as wrong to force people to pay for abortions even by Medicaid taxes. But, what of those who think abortion is moral in certain contexts? They are burdened by being denied Medicaid, even in some desperate cases. Making Plan B out to be 'abortion' is an extreme case of this.

In the long run, it is Prof. Dorf's side that is more respecting of a full-fledged freedom of belief here.

* As Justice Douglas noted in a separate opinion in Gillette v. U.S.: "It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingredients of First Amendment rights. They are the bedrock of free speech, as well as religion."

Joe said...

It is also noted that repeatedly the Supreme Court supported some right of "conscience" or ability to make decisions based on one's one "moral code." See, e.g., Planned Parenthood v. Casey and Wallace v. Jaffree.

David Ricardo said...

Mr. Dorf here and in his Verdict column is to be commended for attempting to provide a policy/legal/regulatory generalization to the issue of accommodating religion in the United States when the issue of accommodation is by its nature not subject to generalization. That he fails is no reflection on Mr. Dorf, he is attempting to do the impossible.

The problem is that while everyone agrees that government should, to the maximum extent possible, accommodate the religious and conscience beliefs of its citizens, it is impossible to develop a set of standards that separates out what must be accommodated from what will not be accommodated. Furthermore, as we have seen in the debate over contraception and ACA, there are a number of unscrupulous individuals who will take advantage of this issue for political purposes.

Comparing the issues of contraception and abortion rights illustrates the problem of defining accommodation in general. With respect to abortion rights, both those who support those rights and those who oppose them have general agreement that abortion is a terrible thing, and something that should be prevented to the maximum extent. The difference is that those labeled ‘pro life’ would use the power of government to reduce abortions, those labeled ‘pro choice’ would use other means, namely education, counseling, contraception etc. But there is no disagreement about abortion itself not being desirable.

But with respect to contraception, the issue here, there is a fundamental difference. Those who oppose contraception believe it is a terrible evil and that practicing it will doom those who do so everlasting damnation. Hence in their minds they have an obligation not only to not practice contraception themselves but to also prevent others from doing so. But those of us who support the right to contraception believe the opposite, that it is a tremendous benefit to the population, that it is the source of a huge improvement in the quality of life of families throughout the world. And of course it is a major method for preventing abortions.

In fact, those of us who support the right to contraception cannot understand or fathom the opposition; we do not comprehend the religious significance of the opposition or even know where it came from. It seems truly in violation of the idea that God provided us with intelligence so that we could develop practices that would reduce suffering and improve lives. We follow Maimonides, not Bill O’Reilly.

It is in that spirit that government does have a role in making certain that contraception is readily available, which ACA does to its great credit. Those individuals and organizations fighting this provision of the law are not doing so because the law forces them to engage in practices that they find objectionable, it is because (1) they wish to impose their own beliefs on those who do not share them and (2) they see the opportunity for political gain. (Mr. Obama is against nuns, he is against religion, he wants to deny freedom etc.).

So as much as legalists would like a generalized principle (after all that is what the laws and regulations are) each issue can only be decided on a case by case basis. And in the case of contraception the decision would seem to be rather straight forward. No one can be required to use contraception but no one should be able take any action to prevent others from doing so. It does not matter how strong and sincere your beliefs are that contraception is a grave moral sin, you cannot impose that belief on others who just as strongly and just as sincerely believe the opposite.

Paul Scott said...

Given that religion is a mental illness, it seems only fair to count mental illness as a religion.

ok, that snark complete, I will now go read the post. ;)

Michael C. Dorf said...

So many excellent comments here. Let me just take a quick crack at some of these points:

1) As Joe points out, Eric's point was made by Justice Stevens in Boerne, although he appeared to take it back later, insofar as he joined the Court in enforcing RFRA against the federal government. For what it's worth, I think there's a baseline issue that makes many religious accommodations unproblematic. E.g., if Jews and Seventh Day Adventists are accommodated by being given Saturdays off from work, and Muslims are accommodated by being given Fridays off, you can say that Seventh Day Adventists, Jews and Muslims are being given special treatment--or you can say that they are just being brought to the level of most Christians in virtue of the fact that the laws (giving everyone Sunday off) generally reflect the majority's preferences.

2) Hashim's suggestion is intriguing and I want to think it through some more. It's somewhat reminiscent of John Garvey's argument for religious freedom based on the assumption that there is religious truth. (For a short version of Garvey's argument, check out ). Garvey does not rely on the proposition that government should not take a position on religious truth, though. Indeed, he seems to take something like the opposite view.

3) TDPE's comment is reminiscent of the point made by Justice Scalia in Employment Div v. Smith: He thought that courts are ill-suited to fashion exemptions from religion-neutral laws because of the inherently ad hoc nature of the enterprise but that political actors therefore could grant such exemptions. (I'll have a piece on SCOTUSblog next month discussing the implications of that view for RFRA.)

John Q. Barrett said...

Can we turn to the fundamental problem here, which is MD's utter failure to understand that Packer fandom IS a religion, that WI is the Promised Land, that GBP fans are the chosen people, etc.? Maybe he, affected by the end of the NFL season earlier this month, just is not recalling those matters of divine revelation and devout practice... And ____ [insert Jets joke here].

Michael C. Dorf said...

Thanks John. I actually chose the GBP BECAUSE of the way their fans feel about their team. I might have used the Red Sox as an illustration, but as a Yankee fan, I couldn't bring myself to do that. (Insert ARod joke here.)

Anonymous said...

I have two thoughts. First, on the larger issue of the Little Sisters case I think they should lose. I think they have standing and I think they have a legitimate compliant. But as a Catholic myself I cannot possibly comprehend how their claim /substantially/ burdens their free exercise of religion. Signing a piece of paper while having legal weight is a nominal excise of one's religious beliefs. This is especially so because the net effect of the signature is actually to affirm rather than to deny a specific doctrinal matter.

As to whether mental illness can be a religion, that all depends on /who/ is defining religion. Certainly we know that religion is not a mental illness. Whether the converse is true is going to depend on who is doing the defining. I know for a fact that in the eyes of Catholics mental illness is not the same thing as religious belief. Pope Francis just made some statements to that effect recently. But I cannot say that what is true for Catholics on that question is true for other religions.

tat-2whatever said...

Yeah, mentally religion, is good thoughts but I was in a mental institution and want to hang out with a mentally but he punched me out

Joe said...

'religion is not a mental illness'

Some might think so, but I agree as a whole, but in certain cases, religious practice might be exercised by those with a mental illness.

Unknown said...
This comment has been removed by the author.
tat-2whatever said...

Mental illness religion, is religion because one could believe in mentally ill. The mental illness religion is the belief acting crazy can get pity

Unknown said...

something that the Govt obviously can't be sure of one way or the other. In short, religious accommodation is the Govt's version of Pascal's wager (w/ strict scrutiny being the limit to which the Govt is willing to bet on the probability of God's laws). |

Unknown said...


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