Wednesday, June 01, 2005

More of Volokh on Legislating Morality (or C'mere Fido):

Eugene Volokh has more good stuff on legislating morality based on religious convictions. Earlier I posed the question:

So why isn't it then okay for a Muslim controlled legislature to outlaw the consumption of pork within their community (as Stone pointed out, no common religion can argue that they have a religious obligation to eat pork, with which the Muslim law would interfere. Hence no "Free Exercise" claim could be made). Or why would it not be okay for a Catholic controlled legislature to outlaw eating Red Meat on Fridays (again, who has a religious obligation to eat Red Meat on Fridays?).

From this post, I take it that Volokh would argue that, absent *some* other overriding constitutional or public policy reason, it would be perfectly legitimate for a Muslim controlled legislature to outlaw the sale of pork for human consumption or a Hindu controlled legislature, the sale of cow meat for human consumption (or a Catholic controlled legislature, red meat on Fridays [I know, they don't follow that rule anymore]).

Volokh makes an analogy to present day circumstances where we tolerate, with little controversy, something very similar.

It turns out, though, that California voters in 1998 banned the sale of horsemeat for human consumption. (Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.) I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic, "morally perverse," "a perversion of the human-animal bond." The people probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption -- the sale of horsemeat for animal consumption is, to my knowledge, still permitted.

Both the religiously motivated pork/cow bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. Both of them do so because of the unproven and unprovable views of the majority. One can say that both are permissible, on democratic grounds; or that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork/cow (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, that horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.

We don't eat horses, dogs, or cats in this country. True, our aversion to eating dogs isn't "religious" per se. But I don't see it as being much different than in India where eating a cow is thought to be probably as bad as, if not worse than eating a dog would be to us.

If there were a "health" reason for these bans, then we may be able to offer that. But as far as I know, eating dog or cat meat per se is no less healthy than eating pig or cow, which other cultures ban for entirely religious reasons (in some Asian cultures, eating dog and cat is common, right?). Is there any rational reason for preferring one over the other except cultural traditions, that are just unquestioned traditions?

Volokh did hit on something important: "One can say that both [bans] are permissible, on democratic grounds; or that both are impermissible, on libertarian grounds." I'm leaning towards both are impermissible on libertarian grounds. As I said before, if one's religious convictions parallel an appropriate public norm -- for instance, "my religion tells me it's wrong to steal, kill, commit force or fraud," -- then great. But more often than not, attempting to put one's religious convictions into law will run smack into an overriding public policy concern that would trump it. In this case, it's the liberty to buy, sell and consume whatever animal product you want, as long as it's "fit for human consumption." If I want to eat pork then no Muslim controlled legislature should be able to prevent me from doing so, ditto with a Hindu controlled legislature and cows and if dogs and cats are fit for human consumption, ditto with that. Now of course, I'd never want to eat a dog or a cat and that is my preference. So long as I know what's on the menu (in other words, if I'm eating at a restaurant and I order what I think is a pig or a cow, but they try to slip me some dog or cat and pass it off as a pig or a cow), I'm okay with it. And given our sentimentality, I don't see much of a market for dog & cat emerging.

(BTW: Is anyone willing to argue that there is a physical health reason for why we don't eat dogs & cats, but do eat cows, pigs, chickens, ducks, deer, snails, and even snakes and frogs and other things. In terms of the "brain" of the animal, true some animals are dumber than others and that might make it more appropriate to eat them; but again, from what I know, a pig and I'm sure other animals that we eat are every bit as intelligent as cats and dogs. Thinking about this too long might turn me into a vegetarian.)

Any thoughts?


Marty said...

You can't buy beer on sunday in south carolina.

David Swindle said...

Or in Indiana! Argh!

Jonathan said...

Same w/ PA but not NJ.

Blue laws have an interesting history. And they used the same logic: "There is no Free Exercise claim because no one HAS a religious obligation TO work on Sunday." Yet this ignored the disproportionate impact on Jews and the few Christian sects that recognize Sat. as the Sabbath and still wanted to work 6-day weeks or otherwise conduct business on Sunday.

Most of the blue laws have been repealed b/c they were unpopular. But it's interesting that there are some businesses that never got the exemption or right to operate on Sunday. Like liquor stores. Or in many states car-dealerships as well.

ChrisC said...

Jon, While I agree with your arguments, I have to think that Volokh has the better one. Volokh is saying that the law admits moral arguments. You are saying that Christian morally shouldn't be law. Based on law today, Volokh has the point. Volokh, like you and I is a humanist, but he's right in saying that according to current law, the Christian majority has the right to invoke their morals as law. Now, if they invoke religion as a cause, I may disagree, but he is saying that it's just morals, not scripture. It's a thin line, but it's a clear one. I'd love to have an admendment to the Constitution that is based on Mills no harm theory, but it isn't going to happen in the current political environment.

Schwerve said...

The difference in the two cases lies in the implication and purpose of the laws itself. While you certainly can argue against a law prohibiting the sale of horse meat on a variety of philosophical grounds the public can accept such a proposal because it carries with it no further implications. The public does not wish to see people eat horse meat, they vote so, that's it. People are willing to accept laws pertaining to a specific choice if they exist in no other context than that particular instance. The same law passed by religious initiatives carries a far larger weight as it is the implementation of a particular point of a larger code of conduct. By bringing into contact the two it implies that the whole religious code of conduct is inherently valid and thereby reaches beyond a law against a particular choice but exists as the imposition of a belief structure onto a society.