Kentucky vs. the Amish: A Study in Religious Accommodation

Peter Smith, a religion blogger affiliated with the local Courier Journal newspaper, recently published a blog post dealing with a minor controversy brewing here in Kentucky. At issue is whether or not the Swartzentruber Amish sect should be required to adorn their horse-drawn buggies with orange safety reflectors as per Kentucky law.¹ Specifically, a group of Amish is claiming in a case before the Kentucky Court of Appeals that, among other things, the free exercise of their religion and their freedom of association are being impinged upon by the law. This is based on the Amish preference for modesty and their contention that the wearing of brightly covered clothes (and apparently plastic reflectors) is too worldly and immodest.² They further reject the use of the reflectors on the grounds that displaying such a "symbol" would undermine their implicit trust that God will keep them safe from harm. Similarly, the freedom of association claim is based on their contention that other Amish folks would shun them if they agreed to use the reflectors.

The Amish are making two other claims as well: That the reflector law is being unevenly and inequitably applied and that their right to free speech is being violated by the law. The final claim is based on their contention that the vehicle one chooses to drive constitutes a form of expression because it makes a statement about the driver. Therefore, they claim, compelling the driver to display a safety reflector represents an infringement of their right to free speech.

Over the years, Amish sects all around the country have had success in suing their way out of laws they don't care for. In one such case, Yoder v Wisconsin (1972), the U.S. Supreme Court found that Amish children are not necessarily bound by laws requiring compulsory school attendance if such school attendance is counter to the "sincerely held religious beliefs" of their parents, thereby helping to lay the groundwork for the modern homeschooling movement and numerous other free exercise rulings.³ In other cases, they've claimed religious exemptions from various other legal necessities, such as building codes requiring the installation of smoke detectors.⁴ The ACLU often tends to side with the Amish in these cases, as it has in the current case going on here in Kentucky.

The issue of unfair and uneven application of the reflector law would, in my opinion, be the most pressing matter in the case. After all, given that the law applies not only to Amish buggies but also to vehicle incapable of traveling over 25 mph, if the plaintiffs were able to show a disproportionately high number of buggies being ticketed (as opposed to tractors, etc.) then they could plausibly claim to be the victims of discrimination. As for the claims of undue burdens on religious exercise and free speech, I think precedent may not work entirely in the favor of the Amish. Previous rulings have found that in some cases both free speech and religious expression may be subordinate to broader concerns of public safety.⁵ Even under the now-defunct Religious Freedom Restoration Act, which sorely narrowed the the ability of the government to burden free exercise, Congress held that laws existing for "furtherance of a compelling government interest" could curtail free exercise so long as such laws work towards this interest in the least restrictive way possible.⁶

Surely the enactment and enforcement of traffic laws in order to provide for the safety of motorists represents a "compelling government interest". After all, there were 39,800 traffic-related fatalities in the U.S. in 2008, and although Amish buggies no doubt accounted for an infinitesimally small percentage of these deaths, the principle behind the use slow moving vehicle reflectors is easy to understand.⁷ The question, in my mind, is not whether laws mandating the use of SMV placards serve a compelling government interest, but rather whether these laws are unduly burdensome to the Amish.

Freedom of conscience and the freedom to practice one's religion are rightly held in high esteem in the United States. The ascetic lifestyle of the Amish represents a normally harmless personal choice that does not, in general, disrupt society at large. It is clearly not the aim of the government of Kentucky in general or the SMV placard law in particular to attack the Amish way of life. Rather, the SMV placard law is meant to protect the lives of the Amish and other Kentucky motorists. Doing away with the SMV placards entirely seems like an untenable proposition, given that they serve a specific, necessary purpose that extends beyond their use on Amish buggies. Creating an exception in state law whereby all slow moving vehicles except those operated by the Amish would likewise create problems. After all, if we have two identical horse-drawn carts, but one is driven by a Amish man and the other is not, mightn't the non-Amish driver feel unduly burdened to have to purchase and mount an SMV while his fellow driver does not? Clearly mandating the use of some sort of warning device for slow moving vehicles is prudent. Perhaps if we look specifically at the objections of the Swartzenruber Amish to the SMV reflectors, a solution will become more readily apparent.

According to the legal brief filed on the behalf of the Swartzentruber Amish, their primary objection to the SMV placards is that they are "garish" in appearance & coloration and that they represent secular symbols to which the Amish are opposed.⁸ Kentucky's government is at least nominally secular, and therefore I can't fathom any reasonable jurisprudence that would suggest that "trust in God", no matter how sincere, is an adequate argument for failing to display the SMV placard, any more so than trust in God would constitute plausible grounds for disabling a motor vehicle's running lights. That being said, it doesn't seem at all unreasonable to suggest that a compromise be reached in which Amish buggies could be adorned with somewhat less "garish", but nonetheless effective, reflective materials.

This was in fact the outcome of a virtually identical case in Ebensburgh, PA just a few years ago that involved the same Amish sect and made essentially the same hybrid free expression/free speech claim.⁹ In this case, an appellate court in Pennsylvania found that there are equally effective pieces of safety equipment (e.g. gray/white retroflective tape)that do not run counter to Amish customs that can serve an alternative to the orange SMV placard. Why such a compromise has not immediately been suggested by the Commonwealth's Attorney in the Kentucky case is beyond me.

It was just such middle ground - the balance between freedom of conscience and the rule of law - that underpinned the governmental philosophy of the Founders. In the current national climate of vitriol and polemic, we should strive more than ever towards these noble ideals.

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1. See KRS 189.810-830. (Kentucky Criminal Law Manual, pp. 340-341). The reflector law does not apply solely to Amish buggies, but rather to any vehicle other than bicycles which is incapable of exceeding 25 miles per hour.

2. The full legal brief can be found online here. To quote the brief, the Amish claim that the use of the orange reflectors is "completely antithetical and antagonistic to their religious values."

3. The Yoder case dealt specifically with laws requiring school attendance beyond the eighth grade. A brief summary of the case can be found online here. A longer discussion of Yoder can be found in the excellent book God vs. the Gavel - Religion and the Rule of Law by Marci Hamilton, especially pp 216-225

4. This is the subject of the ongoing Yoder v. Morristown suit in New York State.

5. For example, male members of the Sikh religion are required by their faith to wear a sacred dagger, called a kirpan, at all times. Courts in some states, such as New York and California, have found that while the kirpan cannot be banned outright, restrictions on their wearing can nonetheless be imposed. In New York, for example, Sikh boys can wear a kirpan at school only if it has been bolted into its sheath such that it cannot be drawn, and no Sikh in the U.S. can wear a kirpan inside a federal building. See pp 114-117 of Hamilton's God vs. the Gavel for a further discussion of this issue.

6. City of Boerne v. Flores (1997) partially overturned the RFRA on the grounds that, by enacting the RFRA, Congress overstepped its power to enforce as defined in the Fourteenth Amendment. The logic behind this decision is that the RFRA altered the Freedom of Exercise clause when Congress had no right to do so. To quote Justice Anthony Kennedy, "Congress does not enforce a constitutional right by changing what the right is."

7. Figures are from a National Safety Council press release. It should be noted, however, that traffic fatalities in the U.S. are trending downward.

8. Refer to the complaint brief, esp. pp 9-12.

9. The ruling in the Ebensburgh case can be found here.

A Proud Day...Sort Of...

Remember last year when people finally noticed that the law establishing the Kentucky Office of Homeland Security included language which claimed that the state was dependent on God for its safety? (If the state of Kentucky depends on God for security, why even bother having an Office of Homeland Security?) Well, Franklin Circuit Court Judge Thomas Wingate smote that down yesterday, finding in favor of American Atheists in a lawsuit that sought to remove the religious language from the law.

I'd say that this is a glorious day for Kentucky...except that no less a personage than Jack Conway, our state's Attorney General, argued in court in favor of the law. In essence he claimed that by failing to allow blatantly religious wording in legal documents we run the risk of turning into a "secular society". Apparently he's forgotten that the Establishment Clause of the First Amendment demands that we have a secular government. I guess it's asking too much to expect the state Attorney General to have basic working knowledge of the Constitution...

Another Embarrassing Moment for Kentuckians...

So Kentucky has its own Office of Homeland Security, which in and of itself is maybe kind of silly, but now the group American Atheists is suing my home state for the asinine wording of the law that created the Office of Homeland Security. You see, the law (KRS 39G.010) names the primary function of the executive directive of the KOHS as:

...stressing the dependence on Almighty God as being vital to the security of the Commonwealth...and prominently displaying a permanent plaque at the entrance to the state's Emergency Operations Center stating the text of KRS 39A.285(3)

In case you're wondering, KRS 39A.285(3) includes the following Bible verse:

Except the Lord keep the city, the watchman waketh but in vain.

Isn't that just freakin' awesome? The main duty of the Kentucky Office of Homeland Security is to use sorcery to protect us. Luckily we have the Constitution to protect us from that. Apparently the religion language was put into the law by state rep Tom Riner, a Democrat and Southern Baptist Minister from my hometown of Louisville. Honestly you don't see too many religious controversies around here that don't have the Southern Baptists attached to them, so this was rather predictable. At this point the governor has made no official comment on the issue, but the Baptists are a strong political force around here and I expect most of our public officials to grit their teeth and grab their ankles in order to serve that particular group's interests.

The KOHS may as well call on Mothra to protect us.

This story made it onto The Rachel Maddow Show last night, so it's only a matter of time until Fox News pics it up and it becomes the next gigantic embarrassment to my state. Rather annoyingly though, the plaintiffs in the lawsuit have (according to the Lexington Herald-Leader) not only asked for the religious language to be stripped from the law, but also for monetary damages to be awarded to them due to their "having suffered anxiety" over the law. I'm not sure if I buy into that last little bit, but I wholeheartedly support the effort to strip the law of its superstitious god-politics.

It Was Childish Enough Before...

According to Answers in Genesis, Ken Ham's laughable but well-funded Young Earth Creationist organization, the Creation Museum that blights my home state of Kentucky will soon receive a small makeover in the form of numerous kiosks and additions to make it more kid-friendly. Considering the fact that the Museum peddles a bizarre history in which the universe was created 2,000 years after the invention of the battle axe* and Noah took dinosaurs on the ark,** I don't know exactly how the Creation Museum could get any more childish. Honestly, this is an organization that exists for the purpose of arguing for the historical accuracy of The Flintstones. Other than, I dunno, hiring on Barney the Dinosaur as a greeter, what could they possibly do to kiddify it even more? I guess it's important to drum this crazy message into children before they've had the chance to develop any critical thinking skills whatsoever.

On another note, I'm looking at the museum's rates I see that it costs a whopping $19.95 plus tax for an adult to get in. Meanwhile, the Louisville Zoo, where you might actually learn something that's true, costs a mere $11.95 for an adult admission, and the Louisville Science Center only charges $15 for admission to the center itself and an IMAX show. Hell, even a yearly family membership to the Zoo only costs $75 compared to the Creation Museum's whopping $125, and the Louisville Zoo boasts a world-beating gorilla enclosure whereas the Creation Museum has nothing but fiberglass dinosaurs and lies. Apparently the Young Earthers are as money-hungry as they are asinine.

* Archaeological evidence shows that the first axes with a handle (haft) were manufactured around 6,000 BC. The Creation Museum's brand of YEC is premised on a universe that began around 4,000 BC.

** Recall the Testing Poe's Law post in which a similar argument was found to be indistinguishable from parody.

This is Kentucky, after all...

As I've said on here before, it wouldn't be spring around here if there wasn't a big fat Christian guy with a megaphone standing on the corner of Greenwood Road and Dixie Highway (right in front of the Frisch's) shouting at cars. This year, in fact, he also has two friends with him. One holds a Bible, the other holds a plastic Ten Commandments yard sign, and they are also in the business of shouting at cars.

Now maybe I'm spoiled on the idea of arguments with, I dunno, a little bit of nuance, but I just can't wrap my mind around the idea of anyone decided to convert to a religion because a trio of red-faced yahoos at a bus stop were yelling "accept Jesus!" out across a busy intersection. Hell, maybe it works. Maybe I ought to stand out on the opposite corner with a megaphone and shout something like "Doing good for the sake of helping your fellow human beings live better lives is more moral than being good simply to avoid divine punishment and secure divine rewards!" Or maybe not. I'm not even sure I got get that all out before the traffic light changed. Hmm, maybe I should be happy that my philosophy of life can't be condensed into a handful of megaphone sound bytes.

Yesterday was an unusual day for my street-preaching friend because his usual set of accouterments had been augmented by the addition of a gigantic cross made of 2x4s. I have precisely no sense of scale, but it seemed to me like it was at least a good 8 feet high, maybe closer to ten. Weirdly, however, it was just propped up precariously against a telephone pole, just laying in wait to get bumped and fall on a passer-by. Seems like that would be a liability issue, if not in the minds of the preachin' folk then in the minds of the people that own the Frisch's. Maybe I've hit on an interesting angle for a get-rich-quick scheme...

I encountered a second set of preachers at the flea market yesterday. See, there's a large regional flea market that pops up at the fairgrounds every month or so where you can go to buy cheap socks, mysteriously low-priced electronics, and occasionally llamas. And, thanks to a proselytizing booth that has been set up there (conveniently located between a guy that sells socket wrenches and a lady that sells polished rocks), you can also get some good ol' Ray Comfort-flavored Diet Apologetics.

I bring Ray up not out of a simple desire to snipe at him, but because these folks really are just using a canned set of Ray Comfort products - "Are You A Good Person?" banners and tests, a video of Ray bushwhacking people for Jesus, tons of Ray Comfort fliers, and smattering of his books. They also give out pressed pennies (You know, like the ones you can get out of machines at theme parks.) that say...well...something. There's a limit to how much you can write on a penny, and they've exceeded it. The penny I looked at read the same way that grown-ups in Charlie Brown cartoons talk.

I collect oddball religious pamphlets, so I was milling around looking for something new (alas, nothing) when one of the booth workers came up and started talking to me. I was able to actually avoid getting a spiel by showing that I'm aware of Ray Comfort and mentioning that I've spoken to him on his blog a time or two. The guy was nice - none of the shouting and histrionics of my street corner friend - and offered me numerous pamphlets that I've already got. I asked him if they had Ray's new book about evolution (The same morbid curiosity that drives me to read Sylvia Browne books just to see how dumb they are will ultimately sell me Ray's book.), to which he replied that no, they hadn't come in yet. As I was moving to leave, he asked if I came from a Christian background. I told him that nope, I'm an atheist. The guy said he'd figured as much - why else, he asked, would I be talking to Ray on his blog?* Then he asked me what I think will happen when I die.

"I don't know," I told him. "But I'm not at all convinced that I should be placing all my bets on this."

He didn't have anything to say to that, to my surprise, and just kind of moved on to someone else. Now, I'm aware that that wasn't the strongest argument I've ever made, but that kind of goes back to my point about not being able to say everything I want to say in a short little spiel. The implication I was getting at what that Christianity has no stronger evidence in its favor that other world religions, but that discussion is rather too long for a brief chat at the flea market.

I wonder sometimes if the main reason that atheists interested in deconverting others have a difficult time of it is because most of the intellectual and philosophical bases for atheism can't be articulated with a few pithy sayings or a slogan on a t-shirt. Meanwhile, the basic tenets of evangelical Christianity can be tossed out with a minimum amount of verbosity: "God good!", "You do what God say, God give presents!", "People who aren't like you are bad!"

That being said, I think I'd rather rely on more complex arguments than ones that appeal directly to our tribal caveman impulses.

*Yeah, that line of reasoning strikes me as just a little peculiar too.

Strange things are afoot...

Like most of you, I bounded to my computer first thing Friday morning in the hopes of watching the Preaching Your Funeral ding-dongs deliver their promised pre-death eulogy (and burning in effigy) of Brian Sapient from the Rational Response Squad. I rather suspect from their "press release" declaring him to be one of the world's most wicked atheists that they've maybe seen a couple of videos of him on YouTube or perhaps they encountered him in the list of atheists on Wikipedia. They didn't seem to have a lot of specifics on him that you couldn't get from 5 minutes on the RRS website. Maybe they just saw the Rational Response Squad easily deal with Ray Comfort on Nightline a couple of years ago.

Much to my dismay the video wasn't uploaded to YouTube this morning as promised! In fact, I went to their website only to be redirected to some tripe-filled blog about "apostate churches". (Hey man, is your pastor...biblical?) Could it be that PYF is gone? Their main website is still up, and that blog looks like their handiwork, but PYF is apparently gone. A few of the subdirectories on the preachingyourfuneral.com url are still working, so maybe they're just prettying up their hatred for later. Weird.

If you actually wanted to get your daily dose of redneck Christian hatred you could still look at their KingofTerrors.com website. It's the standard eschatology crap you've seen a million times and it isn't nearly as amusing without the hook of a burning dummy with a celebrity's face taped to it. I promise, you've seen it all before - how to protest not-Christian-enough churches, how gay folks wanna eat your kids, and the keys to a great marriage as presented by a guy with no wedding ring. There's also a handy dandy list of companies that are "homosexual supporters". The Gap? Who would've ever suspected?

Also, if you want to get a rise out of these guys, leave them a YouTube comment about how it's weird to you that an unmarried man devotes so much of his free time to talking about homosexuals. That pushes their buttons real quick. I tried it.

Anyway, I'm not sure what's up here. These fellas haven't made much of an attempt to not be as flamboyantly hateful as possible, so I'm not sure why they would've bothered to take down their crazy funeral site. I'm bothered by these guys primarily because they apparently exist in my neck of the woods - they're apparently based in Henderson, Kentucky.

By the way, even though they don't seem too intent on giving their names out, the nasally preacher from the funeral videos is "pastor" Jeff Butler. I haven't seen him call himself by name on any of his videos or his sites, but he's introduced by that name on the marriage video. I've asked him repeatedly on the comments for his YouTube videos whether or not he actually has any theological training - he has not responded to that, but his utterly unsophisticated arguments against, say, the entire field of biblical textual criticism leave me with the impression that he's making it up as he goes along. I've also found a record of him speaking before the Interim Joint Committee on the Judiciary in Henderson, KY urging the local government to institute the death penalty for drug crimes (because China does it) and to urge the legislature to "stop homosexual activity". I'm not kidding.

Sounds like a real swell guy. Website or not, it doesn't thrill me to have crazies like this in my own backyard.

Wow...just...wow...

Well, as I mentioned a couple of days ago, there's now a "history" display at the capitol building in Frankfort that contains the good ol' ten demand-ments , as well as a splattering of other historical documents to make it nice and legal. Well, the same"historical display" in at the state capitol was just refurbished to remove an error stating that the Star-Spangled Banner was used as a "rallying cry for the American patriots during the Revolutionary War."

See the problem?

The Star-Bangled Banner was written in 1814. The Revolution ended with the Treaty of Paris in 1783, while actual fighting had ceased by 1781.

I guess that's about as much historical accuracy as we can expect from such a shameless bit of political pandering. So long, Ernie. Can't wait for December.