Thursday, November 21, 2013

Leiter's Theocracy

Brian Leiter is right. Rule of law means equality under the law, meaning there should not be special exceptions and exemptions for any given group. This includes religion.

But that point is as far as Leiter is right. And he is right that America is not a theocracy. And that last point he makes is why he could not be more wrong in the rest of his piece.

If rule of law means no one can be exempt, then if there is a case where law violates someone's religious liberty (which I do believe is law in this country), then that means the law itself should not be in place, as it inherently violates the rule of law. Any law that forces someone to choose between it and their conscience is no law.

Now, we are not talking about those laws that are protective in nature. You should not be allowed to murder, rape, steal, or assault in the name of God(s). What we are talking about are those laws that are not inherently protective in nature, but simply reflect someone's particular moral code. That would include laws against drugs and prostitution, many of the provisions in the ACA -- in fact, many of the laws currently on the books. Each of those laws are expressions of some group or groups' moral code. It is thus fundamentally theocratic, since the point of theocracy is to impose one particular moral code (God's, of course) on everyone. Thus, every single example Leiter gave is a theocratic law intended to impose one set of morals on everyone else, even those who do not subscribe to that religion.

A great example of this is the law against polygamy, which members of other Christian religions imposed on Mormons through the power of the federal government. The impetus behind prohibiting polygamy was purely religious, and was used to violate the consciences of those in another religion. If Leiter wants a good example of theocracy, that law would be it.

In fact, if we do not want a theocratic government, we would get rid of all laws that violate the consciences of all religious believers, and do not impose any one religion's views on the rest. That would in fact be rule of law -- not what Leiter supports, which is the establishment of his own theocracy.
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