Monday, April 20, 2015

What is Neutrality With Respect to Religion?

by Michael Dorf

With Religious Freedom Restoration Acts (RFRAs) much in the news lately, it may be worth recalling the piece of religious freedom that did not need to be restored, even after the SCOTUS weakened protection for religious freedom in the 1990 case of Employment Division v. Smith. There the Court held that a law that does not single out religion does not implicate the Free Exercise of Religion, even if, in particular cases, it substantially burdens the exercise of religion by particular people--as Oregon's general ban on peyote burdened the exercise of religion by Native Americans wishing to participate in the peyote ritual.

But even after Smith and before the enactment of the federal RFRA, the Supreme Court made clear that a law that actually targets a religious practice because it is a religious practice does implicate--and presumptively violates--the free exercise of religion. The case so holding was Church of Lukumi v. Hialeah, which unanimously invalidated a local ordinance forbidding ritual animal sacrifice even though, as Justice Blackmun emphasized in a concurrence joined by Justice O'Connor, a general law forbidding cruelty to animals might well be sufficiently compelling to overcome any religious objections to complying with it under the pre-Smith law, which Justices Blackmun and O'Connor would have continued to apply.

Whereas RFRA enjoyed widespread support when enacted, it has now become controversial, as religious conservatives increasingly turn to RFRAs to resist liberal legislation (such as mandating contraceptive health insurance and antidiscrimination laws). However, Lukumi apparently remains uncontroversial. Politicians, judges, and scholars across the ideological spectrum seem to agree that laws may not single out religion or any particular religion for adverse treatment.

But a recent controversy from India may indicate that the consensus that Lukumi is correct trades on an ambiguity concerning what it means to say that a law serves a religion-neutral purpose. Writing in yesterday's NY Times, Manil Suri explores the motivation behind the Indian State of Maharashtra's expansion of its ban on slaughter of cows to cover bulls and oxen, and the adoption of a law banning the sale of beef.

Suri portrays the new law as motivated by something like either Hindu supremacy or anti-Muslim animus. Either way, it seems of a piece with the broader ethno-religio-nationalist policies of Indian Prime Minister Narendra Modi.

But note that, unlike the Hialeah ordinance, which singled out ritual animal sacrifice for prohibition while permitting more or less the same practices when conducted for other purposes, such as to obtain animal-based food and clothing, the Maharashtra law is general. It forbids the sale of beef and the slaughtering of cows, bulls, and oxen, regardless of the religious or nonreligious purpose for which such sale or slaughter occurs. In that sense, the law is neutral.

Except that in another sense it isn’t. The motivation is pretty clearly religious. The law cannot reasonably be understood as advancing a religion-neutral purpose, such as preventing cruelty to animals. It applies only to cows, bulls, and oxen, which are holy to (many) Hindus. Even then, it does not target cruelty or even the killing of these animals. Traditional Hinduism permits the drinking of cows’ milk; indeed, it even celebrates drinking cows’ milk. (The god Krishna was fostered by cowherds and later cavorted with milk maids). Yet to produce milk, cows must be repeatedly impregnated, their calves taken away and slaughtered, and they themselves slaughtered when their production drops.

To be sure, some Hindus, Hare Krishnas, Jains, and others attempt to consume only “ahimsa milk,” taken from cows who are permitted to retire rather than be slaughtered, and whose male offspring are put to work rather than turned into veal. But this practice is extraordinarily costly and has a greater adverse impact on the environment than even the very substantial adverse impact of conventional dairy farming. Moreover, India—the world’s leading producer of dairy—obtains the vast majority of its dairy products using conventional (i.e., cruel) means. The Maharashtra law does not forbid the consumption of all non-ahimsa dairy products.

But suppose that it did or, better yet, suppose that a state of India forbade the purchase and consumption of all or nearly all animal products. Would that law serve a secular purpose? It is easy to imagine how such a law could have a secular purpose in a U.S. state, a majority of whose citizens had come to see veganism as a moral obligation independent of any religious belief. But in a majority-Hindu state of India, things would not be so straightforward. Perhaps the (hypothetical) legal prohibition on the consumption of animal products would be traceable to the belief that all sentient beings are or could be the vessels for the reincarnated souls of human beings. If the voters’ concern for animal wellbeing were the product of this prophylactic concern for the souls of humans rather than for the wellbeing of the animals for their own sake, would that render the motivation impermissibly religious under Lukumi or the Establishment Clause? Obviously, Smith, Lukumi, and RFRA do not apply in India, but the Maharashtra law nonetheless sheds light on how we might want to think about such questions.

My inclination would be to distinguish between, on the one hand, laws that facially draw distinctions based on religion (as in Lukumi itself) or are motivated by animus against members (or non-members) of some religious group and, on the other hand, what we might call second-order religious motivation—i.e., circumstances in which people have religious views that motivate them to hold moral views that they in turn translate into law, where the moral views could nonetheless be supported on secular grounds alone.

Even if the only reason that a majority of some political community supports a law banning murder is that their holy book proscribes murder, the law banning murder should be regarded as religion-neutral. Likewise, I would want to say that in the hypothetical world in which a majority-Hindu political community supports legally mandated veganism on ultimately religious grounds (relating to reincarnation), they should be entitled to impose that law on religious dissenters, so long as the secular reasons for such a law are sufficiently compelling, as I believe they are but as most people apparently do not (yet) believe, to override the dissenters' objections.

Finally, it is worth emphasizing that even in my highly stylized hypothetical case, and especially in the real case, the problem is in some sense intractable, because of the tendency of religious views to overlap with moral views. The minority of Muslim, low-caste Hindu, and other citizens of Maharashtra who want to eat, buy, or sell beef or to slaughter cows, bulls, or oxen will not see any moral imperative behind the law that forbids them from doing so, and would not see the imperative in my hypothetical. They will see the law as simply imposing the majority’s religious beliefs on them (and in the actual case they will almost certainly be right about that). To bring the point home to the U.S., whether under Lukumi or RFRA, it will not be the people seeking to practice their religion in the face of a legal prohibition who judge whether the prohibition is justified. Whether there is a "compelling" interest sufficient to override the religious objection will almost invariably be determined by judges who hold views that align with the religiously influenced moral views of the majority.