Saturday, December 8, 2012

Another Challenge From Religious Conscience

12/8/2012—It seems that not a day passes without a new religious challenge to the requirements of law. The latest one concerns an application for citizenship for children of American citizens. The details do not really matter here. The parents object to the DNA testing that would ensure the parentage of the parents and hence the right of the child to be recognized as a citizen. The matter is being discussed today on a variety of law professor blogs.

This example is a good one because the DNA requirement is noncontroversial and not aimed at the suppressing of any religious tradition. On the other hand, there is no reason to doubt the sincerity of the parents either in their genuine parentage or in their religious objections to the procedure.

This example brings to mind Justice Scalia’s warning in Employment Division v. Smith that general recognition of a right to religious exemption from neutral laws threatens “anarchy.” The State’s demand for proof of a right to citizenship before granting it is not only reasonable but necessary. This example is a reminder that well intentioned protections of religious liberty are going to present problems.

At the risk of banality, I do not know of any response to issues such as these better than empathy born of the recognition of common humanity. If religion is really a separate realm, there is little reason for the nonbelievers to respond with sympathy to a plight such as that of the parents here. It is only when we recognize the burdens of conscience that apply to all of us that the will to accommodate will be vindicated.

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