This is in response to Machiavellianman's post about Nebraska State Senator Lowen Kruse's really dumb idea: http://www.dailykos.com/...
I recommned reading his diary and its comments.
The well intentioned Nebraska State Senator proposed legislation that will make it illegal for minors or adults under 21 to consume alcohol in Nebraska under any circumstances. This will include alcohol consumed as part of a religious ceremony. Machiavellianman describes the effect of this proposed legislation as:
. . . a clear violation of [State] power from the get go. . . .
Although a bad idea for other reasons, this bill does not represent a constitutional violation of anyone's religious freedoms. This law will, if passed, represent another government intrusion affecting everyone regardless of whether they are at church or at the dining room table. It affects freedoms, just not inherently religious ones.
Let me explain. . .
I agree with Machiavellianman's general premise that Kruse's bill is a really bad idea. However, because my reasons for that agreement include total disagreement with the reasons set forth by Machiavellianman's diary, here is my defense of the legal merits of the good Senator's really stupid proposal.
The concern stems from:
State Sen. Lowen Kruse has introduced a bill that would eliminate two provisions to Nebraska's underage drinking law which allow minors to drink alcohol in their own homes or at places of worship during religious ceremonies.
To this boneheaded idea, Machiavellianman states:
I'm a firm believer in the barrier between religion and government in a fair balanced way, . . .
[and]
. . . I all too often fail to see those who believe in the barrier between the two criticize the action of the government when it interferes in religious practices.
Unless there is a backroom agenda, and there is no evidence of that of which I am aware, the only issue here is alcohol policy as opposed to religious freedom. The bill raises three big issues related to this, however, with considerations that will forever be in conflict
- whether government "allows" religious practices;
- religious behavior & lawbreaking vs. religious beliefs/behavior that is otherwise legal for everyone else; and
- underage drinking
- Government cannot, as Machiavellianman correctly explains, "allow or deny a religious practice." Religious freedom and freedom of expression are inherent rights not susceptible to government "grants" of privilege. To me there is no question about that. Kruse's bill, despite his poor explanations for it, does not "grant" or "deny" anything to religion.
- Illegal/legal behavoir: Government cannot make a special allowance to groups banding together and declaring that their lawbreaking is a "religious" activity protected by the first amendment. It does not matter whether these acts be be human sacrifice, drunk driving, underage drinking, giving date rape drugs to minors so that they can "get closer" to God in the presence of their minister etc. These are all expamples of criminal behaviors that we -- as a society -- have decided through a representative government must be illegal for all of our protection and from the potential harm any of will face if people are allowed to behave this way. These are public safety/protection statutes, not religious discrimination statutes.
Our elected representatives can make certain activities illegal, but our legislatures may never make anyone’s beliefs or assemblies illegal. Government cannot grant the authority to engage in, or not to engage in, religious practices. However, religious practices must be otherwise legal for everyone. Illegal activity does not become "protected activity" by sprinkling holy water on it or blessing it. Government cannot use religion to establish a special class of people exempt from the law.
- Underage drinking. In Nebraska, it appears from this story that consumption of alcohol by minors or adults under 21 is allowed in a home setting. It is therefore reasonable to argue that government has no compelling interest in prohibiting minors from imbibing in a worship setting when they can tip a glass at home after saying grace. There is therefore no "freedom of religion" or "freedom from government religious preference" if either A. all minors are allowed to consume alcohol, regardless of whether in worship context; or B. all minors are prohibited from consuming alcohol regardless of whether it is in a worship context.
As a matter of policy, I personally believe the existing law of allowing "alcohol consumption training" in the home is good. I also think it is parental malpractice to FAIL to teach children, in a responsible home setting, how to drink appropriately. The reasons for this are myriad and for another post.
The bottom line is that I do not fault State Sen. Lowen Kruse on his bill for legal reasons. His bill does NOT infringe on religious liberty as long as all minors are treated equally.
I do think, as a matter of secular policy, the good gentleman is misguided in his approach to the issue of alcohol consumption. To me, that is a big secular policy problem and I hope his bill stays in the hopper becoming really dusty by the end of their session. However, if this bill is rejected, it will not be to the salvation of an inherent right of religious liberty. That issue does not apply.
slainte,
cl