Tuesday, August 26, 2003

Rights & Reason: Exempting Rationality

Nick Provenzo is on vacation this week, and I remain on blogging recess until after Labor Day, but I did want to share one brief observation regarding Eugene Volokh's post on the constitutional limits of government-school dress codes:
Exemptions for religious observers: This story about a public school dress code raises the perennial constitutional question: May the government exempt religious observers from a generally applicable rule (here, a dress code, though it could equally be military conscription, a high school biology vivisection requirement, or a variety of other rules) but not extend the same exemption to conscientious nonreligious observers? If you're interested in this general question, you might check out this summary in an article of mine -- I don't take a stand on the subject, but I outline the issues. (As a policy matter, I think that secular conscientious objectors should generally be treated the same as religious objectors, but it's not clear to me whether, and to what extent, the Establishment Clause requires this.)

Note, though, that the dress code case also includes a different twist: Not all religious objectors are entitled to an exemption, but only those who can get a note from their religious leader. This, I'm pretty sure, is unconstitutional, because it privileges those religions that have organized clergy over those that don't, and those people whose religious beliefs match their leader's and those whose beliefs are more idiosyncratic. The Supreme Court held, in Thomas v. Employment Division (1981), that constitutionally mandated religious accommodations (when the Free Exercise Clause was interpreted as mandating such accommodations) turn on a person's own sincere beliefs; and I think the same principle would apply to religious accommodations that the government voluntarily creates.
My observation: How would an Objectivist get exempt from the dress code? Would they need a note from the Ayn Rand Institute, or would they need only submit a note proving the irrationality of the dress code according to Objectivist ethics? Not that Objectivism is a religion, mind you, but it is an integrated philosophy. It surely is entitled to the same legal protections as Christianity, Judaism, Islam, etc.

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