A parking lot for synagogue is still a parking lot

A Volokh Conspirator opines very wisely:

I don't in principle oppose state statutes (as opposed to constitutional interpretations) that require governments to sometimes accommodate people who have religious or conscientious objections to generally applicable laws... But I do oppose such rules when they give special treatment to religious objectors and not to others who have equally deeply held secular philosophical views.

The issue is whether a parking lot owned by a religious institution -- let's say a Jewish synagogue -- (I'll use a synagogue as I don't want the trolls out there to get confused) -- should be subject to the same rules as a parking lot owned by anyone else. (Things like its location on the site, screening, number of speces etc etc) Proponents of laws which relieve a religious institution from compliance with codes -- should the Uniform Building Code apply? should a Temple be allowed in a spot where an Elks' Lodge would be prohibited? such as in a single-family zone?-- will tell you not to worry etc etc. that they are simply trying to make sure that the secular culture allows them room. I don't believe it. Impacts of human behavior are no different whether the source is a religious institution or a similar secular institution.

The sort of law discussed by Volokh (there is a Federal version too) are designed to nullify governmental land use regulations by
1. providing an advantage to "religious" institutions in their non-religious manifestation;
2. offering an incentive to make everything in society "religious" i.e. when one can be free of regulations by declaring one's activities to be a manifestation of one's religious beliefs, well then why not join up and claim the cover of "religion"? Cynical, of course. Human, just look around you. And therein lies the danger: distinguishing truly religious people from those who simply adapt the mantle so as to avoid some land use regulation. Well I've got an idea, let's have a panel to decide who is sincerely religious and who is not.

Of course, if you in fact do follow a faith, then please realize that the logical response is that government becomes the gate-keeper to decide what is "truly" and "sincerely" religious and what is not. Seems to me that a step backwards into the 17th century. Osama bin Laden would like it, I am sure.

There is a danger for people who follow a faith. When you get a special privilege you generally have to give up something. It's the normal trade-off. The trade-off here is that in return for the good deal you involve the government in deciding whether a "religion" is truly "religious." That seems to me to be a horrendous thing. Where would Luther be had his followers been required to get permission of some government body (much worse a panel of the established religion i.e. Roman Catholic at that time) in order to build a house of worship?

Any advantage gained by religion through these laws is a short-term one and will come back to haunt it. Special privilege laws logically require the determination by some body (outside the congregation itself) of what is a "real" religion and what is not. Bloody wars have been fought for less.

UPDATE: Here's a related post by Eugene Volokh.

Comments

[TM Lutas]

I would suggest you might reconsider your attitude. Imagine if Prohibition did not include a religious exception. There wouldn't be a Catholic priest or bishop out of jail inside a month, if you could get the Catholic policemen to enforce the law.

[back40]

"Excessive law is no law."
-- Cicero

The knife has two edges. Highly regulated systems are effectively unregulated since there are inevitably so many exemptions. They are granted based on power and influence and so exacerbate existing social and economic inequities.

There is a difference between highly regulated systems and well regulated systems.

[Ophelia Benson]

An example Ibn Warraq discusses in his book 'Why I Am Not a Muslim' is that of ritual slaughter. There are laws in the UK requiring that animals be slaughtered in a humane manner, i.e. be rendered unconscious before being killed. Some religious groups want exemptions from that law - in other words want to be allowed to slaughter animals in an inhumane manner for religious reasons. Lawmakers had decided on non-religious grounds that animals ought not to suffer more than necessary in the process of being turned into food; why should that decision be trumped by religious reasons? Ibn Warraq asks. I have yet to see a persuasive answer. (I've seen some non-persuasive ones.)

[Thomas]

As a matter of policy, I don't generally support the statutes in question.

But we shouldn't pretend there isn't an issue here. Many communities do discriminate against religious land uses.

And the test that would be applied under these statutes is the old Brennan test that the bad old Scalia worked to overturn (i.e., it is the liberal test).

[back40]

"Lawmakers had decided on non-religious grounds that animals ought not to suffer more than necessary in the process of being turned into food; why should that decision be trumped by religious reasons? Ibn Warraq asks. I have yet to see a persuasive answer."

Kosher and Halal ritual slaughter and dietary laws are among the first attempts by humans to impose humane laws. They are a combination of sensible sanitary practices of great importance to ancient peoples for public health reasons and the social desire to channel rude impulses into more respectful and less socially destructive paths. See this article by pioneering animal handling specialist Dr. Temple Grandin for a fuller accounting.

The point of conflict between current "humane" slaughter practice and Kosher/Halal is that the animals are stunned in a way that corrupts them; their skulls are penetrated by a blow. Curiously, there are current concerns that this "humane" practice may contaminate carcasses with prions and increase the spread of TSEs.

Kosher and Halal slaughter laws weren't documented in the pentateuch but were referred to as being the proper procedures developed by trial and error over the preceding centuries. The practices were detailed in the Talmud and Quran. Believers and others who simply wish to benefit from that body of accumulated practical wisdom are skeptical of more recent practices that are comparatively untested and seemingly prone to error. Those such as Warraq that are so massively ignorant of the history and significance of dietary laws have difficulty comprehending these doubts.

[David Sucher]

Back40, you may very well be correct that the practices detailed in Talmud and Quran are superior. I have no opinion. But that seems to be besides the point of which law should apply. If in fact the Talmud and Quran rules are MORE humane than the prevailing ones, then I suspect that they would be allowed...as they indeed are....but within the general framework of majority law not outside it i.e. they exceed the minimum standards of majority law but are not exempt from that law. Big difference.

[back40]

There is a highly emotional movement to make Kosher/Halal slaughter practices illegal since they are characterized as inhumane. I was pointing out that the origin of these laws is in the very things they are currently criticized for and that they may be superior, both more humane and more sanitary than the practices advocated by critics.

These are important issues for those working in the specialty foods area where concerns about safety, nutrition, the environment and ethics combine to create a premium market. Humane treatment isn't just a slaughter issue, it's as important during the lives of livestock as it is at death. It isn't just an ethical issue, it affects the flavor, texture and nutritional value of meat and dairy products. Stress of all kinds, both physical and emotional, changes blood chemistry and so tissue composition. Kosher/Halal practices are among the very best in all these areas. It's an interesting body of tacit wisdom made explicit through religious laws that is threatened by a coarse politics insensitive to the subtleties of these practices evolved over eons through intimate relationships between humans and their food sources.

"... that seems to be besides the point of which law should apply."

Our science in these issues is still quite primitive, as it is in so many areas. A useful way to approach uncertainty is to have multiple standards and accurate labelling. An example of this is with organic foods which have different standards than other foods but are well labelled. GM foods might also be approached in this way.

[JRoth]

Stepping away from the abbatoire for a moment, these exemption laws are a great example of how the Republicans have managed to bridge their two incompatible bases (warning: generalizations to follow). Libertarians hate regulation, especially of private property, and so will cheer any law that harms the ability of people to regulate their world. Christian rightists hate any limits on themselves at all, and so love the opportunity to ignore the law. Thus, the worst imaginable kind of law - one that explicitly creates two classes of Americans - is applauded by enough people to overwhelm opposition.

What amazes me about these laws is that they harken back to the earliest days of the English legal heritage that we share and cherish: the battle between Henry II and Thomas a Becket over whether the state has oversight of religious life. Becket (dubiously hailed as a hero) supported the idea that a priest who murdered could be neither arrested nor tried by civil courts, but instead must appear before the Church's court. Henry insisted that the King's Justice (and he really was incredibly effective at providing pretty fair justice throughout his kingdom in the late 12th C.) must apply to all his subjects.

Would anyone find it offensive to point out that the same Church has displayed the same attitude towards government intervention in America today, whether it regard land use or child abuse?