Re: "Absurd complicity claims"

[Levinson, Sanford V]

As always, I appreciate Eugene's thoughtfulness and thoroughness. With regard 
to taxes, do we have a level of generality plus fear of strategic 
misrepresentation problem. That is, why is it such a big deal if the Amish 
alone don't pay social security taxes. We could clearly accommodate the absence 
of the relevant funds. It's only if we ask the what if everybody did it that 
the state's interest in collecting the marginal dollar is "compelling."  But, 
of course, it would be hard, pace Yoder, to limit the accommodation to the few 
Amish, and, on top of that, we justifiably fear all the bad faith claims.

Eugene is, of course, at one level absolutely right in dismissing my concern 
about "absurdity."  That being said, I do find it frustrating, unless one 
accepts a type of post-modernist relativism like, say, Paul Feyerabend's, that 
we can and do distinguish all the time between tenable and absurd beliefs. I 
will happily agree that many Jewish laws, especially relating to food, are 
absurd. I ultimately don't know what we should say if someone believes she's 
getting messages from a Venusian spaceship.

Sandy

Sent from my iPhone

On Sep 5, 2015, at 7:19 PM, Volokh, Eugene 
> wrote:

   1.  Isn’t there an orthodox answer for this, and one that has 
been orthodox for 30 years?  Religious pacifists certainly are substantially 
burdened by paying taxes for war, if they believe that paying such taxes is 
religiously improper; same for others who have similar objections to other 
taxes.  The Court accepts that this is a substantial burden.  See, e.g., United 
States v. Lee (1982):  “Because the payment of the taxes or receipt of benefits 
violates Amish religious beliefs, compulsory participation in the social 
security system interferes with their free exercise rights.”  But the burden is 
seen as constitutional, because granting exemptions would unduly interfere with 
the compelling interest in raising taxes, see Lee.  And this analysis has been 
applied time and again by courts, and I think quite sensibly.  Where’s the 
broccoli?

   2.  Beyond this, how can our judgment about absurdity of 
religious claims be relevant?  Many people might think it’s absurd to think 
that God cares about whether eat pork or lobster, whether we take a particular 
24 hours a week off, whether we cut our hair, or whether we wear a hat.  They 
might think it’s absurd to object to mixing dairy with fowl or meat – and even 
more absurd to have detailed rules about how many hours after eating meat you 
can eat dairy products.  They might think it’s absurd to conclude that, not 
only can’t you work on a particular day of the week, you can’t use electricity 
(at least in certain ways) or carry things in your pockets outdoors unless 
there’s a very long string around the area in which you are doing the carrying. 
 Indeed, many people believe it is absurd to believe that some book is holy 
scripture, or that God not only exists but is benevolent.  Religious freedom 
law, it seems to me, is all about protecting beliefs that many view as absurd.

   3.  And further beyond, we’re talking here about complicity – an 
area of responsibility that our own legal system finds it very hard to draw 
lines in.  The rules of complicity under American law are notoriously bizarre 
and fractured.

Consider mens rea. If you help someone with the purpose of helping him commit 
his crimes, you’re guilty of the crime itself as an accomplice. If you help 
someone, knowing that your actions are helping him commit the crime, you aren’t 
an accomplice under the laws of most states — but you are under the laws of 
some states. And in some states, you are guilty of the lesser crime of 
“criminal facilitation.”

And the rules differ for different kinds of conduct. For instance, informing a 
particular person how to make a bomb, knowing that he plans to make a bomb 
(even if you have no specific purpose to help him do so), is a crime under 
federal law. Likewise, knowingly providing assistance to a foreign terrorist 
organization is a crime even if you don’t have the purpose of advancing the 
organization’s terrorist goals, but are just trying to promote the 
organization’s supposedly humanitarian wing or are trying to teach the 
organization’s members about international law.

Likewise, there is much uncertainty about how close the connection between the 
allegedly complicit act and the wrongful underlying act should be to count as 
complicity.  Knowing distribution and even possession of child pornography is 
banned, chiefly on the grounds that such distribution and possession tend to 
cause the making of child pornography by creating and sustaining a market for 
such material. The causal connection between possession of child pornography 
and the production of child pornography is quite indirect (though real). But 
the law criminalizes possession nonetheless, based on that 

"Absurd complicity claims"

[Volokh, Eugene]

   1.  Isn't there an orthodox answer for this, and one that has 
been orthodox for 30 years?  Religious pacifists certainly are substantially 
burdened by paying taxes for war, if they believe that paying such taxes is 
religiously improper; same for others who have similar objections to other 
taxes.  The Court accepts that this is a substantial burden.  See, e.g., United 
States v. Lee (1982):  "Because the payment of the taxes or receipt of benefits 
violates Amish religious beliefs, compulsory participation in the social 
security system interferes with their free exercise rights."  But the burden is 
seen as constitutional, because granting exemptions would unduly interfere with 
the compelling interest in raising taxes, see Lee.  And this analysis has been 
applied time and again by courts, and I think quite sensibly.  Where's the 
broccoli?

   2.  Beyond this, how can our judgment about absurdity of 
religious claims be relevant?  Many people might think it's absurd to think 
that God cares about whether eat pork or lobster, whether we take a particular 
24 hours a week off, whether we cut our hair, or whether we wear a hat.  They 
might think it's absurd to object to mixing dairy with fowl or meat - and even 
more absurd to have detailed rules about how many hours after eating meat you 
can eat dairy products.  They might think it's absurd to conclude that, not 
only can't you work on a particular day of the week, you can't use electricity 
(at least in certain ways) or carry things in your pockets outdoors unless 
there's a very long string around the area in which you are doing the carrying. 
 Indeed, many people believe it is absurd to believe that some book is holy 
scripture, or that God not only exists but is benevolent.  Religious freedom 
law, it seems to me, is all about protecting beliefs that many view as absurd.

   3.  And further beyond, we're talking here about complicity - an 
area of responsibility that our own legal system finds it very hard to draw 
lines in.  The rules of complicity under American law are notoriously bizarre 
and fractured.

Consider mens rea. If you help someone with the purpose of helping him commit 
his crimes, you're guilty of the crime itself as an accomplice. If you help 
someone, knowing that your actions are helping him commit the crime, you aren't 
an accomplice under the laws of most states - but you are under the laws of 
some states. And in some states, you are guilty of the lesser crime of 
"criminal facilitation."

And the rules differ for different kinds of conduct. For instance, informing a 
particular person how to make a bomb, knowing that he plans to make a bomb 
(even if you have no specific purpose to help him do so), is a crime under 
federal law. Likewise, knowingly providing assistance to a foreign terrorist 
organization is a crime even if you don't have the purpose of advancing the 
organization's terrorist goals, but are just trying to promote the 
organization's supposedly humanitarian wing or are trying to teach the 
organization's members about international law.

Likewise, there is much uncertainty about how close the connection between the 
allegedly complicit act and the wrongful underlying act should be to count as 
complicity.  Knowing distribution and even possession of child pornography is 
banned, chiefly on the grounds that such distribution and possession tend to 
cause the making of child pornography by creating and sustaining a market for 
such material. The causal connection between possession of child pornography 
and the production of child pornography is quite indirect (though real). But 
the law criminalizes possession nonetheless, based on that connection.

And that's just the criminal law. If you know or have reason to know that your 
actions are materially helping someone infringe copyright, you are guilty of 
contributory copyright infringement. And in some situations, you can be 
vicariously liable for copyright infringement even if you weren't negligent - 
for instance, if a band performs a song in a bar that you own and it turns out 
that (despite their assurances to the contrary) they weren't licensed by the 
owner of the copyright in the song. Beyond copyright law, people can be liable 
for negligently facilitating another's criminal conduct. Landlords can have 
their property seized if they negligently allowed it to be used for drug 
transactions. And the list could go on.

What about causation?  Well, it turns out that causation is generally not 
required for complicity liability under criminal law - but not just actual 
cause but proximate cause is required for complicity liability under tort law, 
with "proximate cause" being famously complicated, especially when aiding third 
parties' voluntary actions is involved.  Don't get me started on the various 
rules related to this under various states' tort laws.

   That's just the law.  If you look at moral