[Legality Challenge] Repeal "Freedom of Religion"

[Princess Rainbow Sparkles]

The repeal does not misrepresent what FoR does.

I argue it does. It misrepresents GA 430 as prohibiting actions which, if GA 430 were a real world law, real world nations could actually take.

It is not a misrepresentation to say that FoR "prevents member nations from advancing 'safety, health, or good order' through more restrictive, albeit also more effective, means." It is beyond dispute that FoR plainly requires Member Nations to employ least restrictive means (whatever those are) when limiting religious freedom. It necessarily follows that by requiring least restrictive means, FoR prohibits "more restrictive" means (whatever those are).

You may believe that any nation could easily get around FoR's demand for least restrictive means if they really wanted to. And you may be right! Member Nations could simply declare that whatever means they want to use are in fact the least restrictive means capable of meeting their "good order" goals. The terms least restrictive and more restrictive are laden with value judgements which are not explicitly set forth in the law, and which are not intuitive*. But all that gives you is grounds to vote against the repeal, because you do not find its argument persuasive. It does not mean the repeal has misrepresented the plain language of the target.

(*To use a more extreme example than the cannibalism one employed by the repeal, consider this: We may all have a general sense that a policy of summarily executing Christian children is not the least restrictive means of ensuring the "good order" of a purely secular society; however, there is a logically coherent argument - if we accept all necessary premises - concluding that no lesser means would sufficiently discourage people from being Christians to meet that particular society's compelling interest in maintaining their "good" social order.)

Edited multiple times for spelling and grammar.

[Wallenburg]

If you are not challenging the fact claims specific to cannibalism, then you are challenging the claim that the target prevents member states from using more restrictive means than are necessary to advance "safety, health, or good order".

No, I am challenging the repeal's claiming that the target prevents member states from using more restrictive but necessary means, not more restrictive means than necessary. The repeal specifically states that less effective means would need to be used. This is not the case if more restrictive means are necessary.

There is no "more restrictive but necessary" language in the challenged resolution. The closest you get to such language is the identification that effectiveness and severity of restrictions are directly related. On this, it can reasonably be argued that maximum effectiveness is not required to advance a compelling, practical public interest.

The same strict scrutiny test demands that laws be narrowly tailored to achieve their purpose, not causing undue restriction. There is a strong argument here that a blanket ban on cannibalism is not narrowly tailored at all and causes undue restriction by imposing restrictions beyond their utility to "safety, health, or good order". By contrast, licensing and testing requirements are narrowly tailored, restricting access only in such a manner necessary to ensure food safety.

Again, effectiveness comes into play. If licensing and testing are insufficient to protect public health and safety, then a ban is the least restrictive means of advancing the governments interest. A government could reasonably argue as such, and thus the repeal's claim that they couldn't do so would be false.

Now you are getting into the question of whether licensing and testing sufficiently protect public health, which is firmly beyond the established scope of GenSec's Honest Mistake rule enforcement.

The fact that many US states have prohibited cannibalism and that these laws have not been struck down as violations of the religious freedom is good evidence, in my opinion, that bans on cannibalism are not prevented by the strict scrutiny standards used in GA#430.

Any serious examination of the legal history of the United States and its constituent states would dispel you of the notion that their courts are reliable in identifying the extent of civil liberties. Furthermore, the target does not lay out the same religious freedoms codified in US law, so the entire comparison is utter nonsense. WA resolutions are under no obligation to implement US policy.

[Excidium Planetis]

Can you make the same points based solely on the GA rules and past decisions of the mods or GenSec? The RL practice and laws etc that you quote here are irrelevant as far as I am concerned.

How is the way that nations interpret an equivalent law in real life irrelevant?

As for whether the repeal is an Honest Mistake, I will cite GenSec's ruling on Repeal "Safety and Integrity in Conflict Journalism":

[4] Second, member nations want to preserve their freedom of action under international law, especially in national security matters, and would therefore interpret 'conflict journalist' narrowly. The alternative reading would permit almost anyone to become an 'employed in' (as in 'occupied by' or 'engaged in') journalism; intelligence agencies would strap a GoPro to every agent's head and give them a legend vaguely related to blogging. Reading 'employed' in such a broad manner would be a self-detrimental interpretation that violates reasonable nation theory.

As a nation would attempt to preserve their freedom of action, and they would not take an interpretation of GA#430 that eliminated their freedom of action to only ineffective actions, so long as an alternative interpretation was valid. And indeed, I have offered a valid interpretation here: the same interpretation used for the real life law that GA#430 is based on and shares identical restrictions.

Now you are getting into the question of whether licensing and testing sufficiently protect public health, which is firmly beyond the established scope of GenSec's Honest Mistake rule enforcement.

No, I am not. I am not interested in cannibalism and measures to protect health and the specifics of any of that.

The HM violation is the repeal's claim that nations cannot take actions if less restrictive but less effective alternatives exist. While this is certainly a possible interpretation of GA 430, it's not a reasonable one, as it would completely eliminate a nation's possible actions against a protected religious practice, as the least restrictive action will always be no restrictions whatsoever.

An alternative interpretation that does allow nations to take effective actions does exist, and I have proven this by citing how the strict scrutiny test is applied in real life.

Furthermore, the target does not lay out the same religious freedoms codified in US law, so the entire comparison is utter nonsense. WA resolutions are under no obligation to implement US policy.

UM obviously based the WA resolution on the real world US law Religious Freedom Restoration Act, and the two laws contain identical restrictions on exceptions to the protection of religious practices. While the WA is under no obligation to implement US policy, UM freely chose to do so and implemented substantially similar policy in the WA.

[Bananaistan]

Can you make the same points based solely on the GA rules and past decisions of the mods or GenSec? The RL practice and laws etc that you quote here are irrelevant as far as I am concerned.

How is the way that nations interpret an equivalent law in real life irrelevant?

NS =/= RL.

As for whether the repeal is an Honest Mistake, I will cite GenSec's ruling on Repeal "Safety and Integrity in Conflict Journalism":

[4] Second, member nations want to preserve their freedom of action under international law, especially in national security matters, and would therefore interpret 'conflict journalist' narrowly. The alternative reading would permit almost anyone to become an 'employed in' (as in 'occupied by' or 'engaged in') journalism; intelligence agencies would strap a GoPro to every agent's head and give them a legend vaguely related to blogging. Reading 'employed' in such a broad manner would be a self-detrimental interpretation that violates reasonable nation theory.

As a nation would attempt to preserve their freedom of action, and they would not take an interpretation of GA#430 that eliminated their freedom of action to only ineffective actions, so long as an alternative interpretation was valid. And indeed, I have offered a valid interpretation here: the same interpretation used for the real life law that GA#430 is based on and shares identical restrictions.

I don't believe you have offered a valid interpretation. You have admitted there's nothing in the text to back up your interpretation and instead point only to RL US jurisprudence. I will not go through US jurisprudence to verify whether your claims are correct or not. GenSec generally does not go about RL fact checking anyway.

If you had an actual alternative interpretation based on the text that reasonable member nations could use to retain their freedom of action, then we could talk about RNT. But you don't so the usual RNT repeal argument does not apply here.

While the WA is under no obligation to implement US policy, UM freely chose to do so and implemented substantially similar policy in the WA.

This is the key point. I freely choose to completely ignore all your RL claims and base my opinion solely on WA laws, the GA rules and modly and GenSec precedent. And until you base your alternative interpretation on the text of the target, there is no basis for your challenge.

[Excidium Planetis]

NS =/= RL.

No, but to pretend that there is absolutely no relation between the two is ridiculous.

Additionally, there is precedent for GenSec considering real life examples for establishing whether a repeal claim is factual. In an opinion you signed on to (Emphasis added):

Constructing a dataset to produce a desired result is gravely unscientific. That this occurs in real life is more than sufficient to establish the factual plausibility of the repeal's claim.

This is not the only GenSec ruling that considers real life when forming an opinion. SL and Bears Armed wrote here (emphasis added):

But the record, both IRL and IC, belies this simplistic view. Referenda, plebiscites, and ballot initiatives are things for which one votes, but do not count as "elections" as the voter is not then voting to elect someone to office.

There's probably more, in fact I seem to recall another ruling, but searching GenSec rulings is a nightmare and I'm tired. Suffice it to say that there is precedent for considering the way the real world works when considering the interpretation of NS resolutions.

I don't believe you have offered a valid interpretation. You have admitted there's nothing in the text to back up your interpretation

Where did I admit that? That's not true.

and instead point only to RL US jurisprudence.

Because I have used RL US jurisprudence when considering how to interpret the target's text. Interpretations do not spring from the text of their own volition, the reader has to apply their own knowledge and power of reason to interpret it.

As for the rest of your reply, you continue to claim that my interpretation is not based on the text. I don't see how that could be true, since every single argument I have made here is based on the text of 430, specifically the strict scrutiny standard that 430 lays out.

On the whole, I am confused on how you even expect players to prove the validity of their interpretations. I expected, based on GenSec precedent, that demonstration that the interpretation exists in real life was sufficient to prove a claim's validity.

[Excidium Planetis]

After getting a good night's rest, I have decided to address Bananaistan's concerns, using a rephrasing of the argument in the NIH article I earlier cited, in the context of GA#430's text. I hope this will illustrate both my interpretation of the text of GA#430, as well as how reasoning that is applied in RL can be applied to GA resolutions.

First, the relevant text of GA#430, the exceptions to the protection of religious practices:

except where restrictions on said practice are the least restrictive means by which to advance a compelling, practical public interest in the maintenance of safety, health, or good order

There are two requirements:

• Do the restrictions "advance a compelling, practical public interest in the maintenance of safety, health, or good order"?
• Are they the least restrictive means of doing so?

Let us consider a plausible example: a WA member nation is faced with a global pandemic, which has the likelihood of sickening or even killing a large portion of their population. They are considering a mandatory vaccination as a response to this pandemic, but there is an objection that such a mandate would place a burden on the religious practices of some of the population.

First, does the proposed action advance a compelling practical public interest in the maintenance of one of the three listed categories? I don't think anyone here would disagree that it does advance an interest in the maintenance of health and arguably safety as well. It is obvious that the vaccination mandate would advance a compelling practical public interest, so I won't elaborate more unless requested.

Secondly, is it the least restrictive means of doing so? Here, some (the repeal included), might argue no. The mandate does impose some restrictions, by removing the individual right to choose to vaccinate or not. And there are certainly less restrictive options available to the government. The government could simply do nothing at all (no intervention). If only individual freedom is considered, without regard to any other factors, then no intervention will always be the least restrictive option. I will call this interpretation the "quantitative interpretation" of the least restrictive means test, as it only concerns itself with the quantity of individual freedoms and not the quality of them.

However, if the government chooses not to intervene, there will undeniably be other effects. People who would have otherwise been protected will get sick. Some will die. Sick individuals will place a strain on the healthcare system, and either public or private the costs will ultimately fall on the population in some way. Economic productivity will suffer as workers call out sick or go to work at reduced effectiveness. People who died will no longer contribute to society, and families will be impacted. There are significant and arguably catastrophic costs to the government choosing not to intervene. While individuals may have preserved the right to choose to vaccinate or not, society has been restricted in its quality of life, greater economic burden has been placed on it, and individuals who could have chosen to participate in various actions without fear are now robbed of the ability to freely participate in them, due either to sickness or to death or because of the threat of both.

If you consider these factors, then government non-intervention is no longer the least restrictive means, as it places great burdens on society. I will call this interpretation the "qualitative interpretation" of the least restrictive means test, as it considers the resulting quality of individual freedoms and not merely the quantity of them.

It is possible under this interpretation that a blanket vaccine mandate would still not be the least restrictive means. That would require detailed analysis and argumentation I am not able to make here without specifics. But under this interpretation, the effectiveness of a government action is considered.

[Magecastle Embassy Building A5]

Secondly, is it the least restrictive means of doing so? Here, some (the repeal included), might argue no. The mandate does impose some restrictions, by removing the individual right to choose to vaccinate or not. And there are certainly less restrictive options available to the government.

The government could simply do nothing at all (no intervention). If only individual freedom is considered, without regard to any other factors, then no intervention will always be the least restrictive option. I will call this interpretation the "quantitative interpretation" of the least restrictive means test, as it only concerns itself with the quantity of individual freedoms and not the quality of them.

How does this advance the interest of halting the pandemic? This is not what the repeal is claiming, and to argue as such is a strawman of the resolution.

If you consider these factors, then government non-intervention is no longer the least restrictive means, as it places great burdens on society. I will call this interpretation the "qualitative interpretation" of the least restrictive means test, as it considers the resulting quality of individual freedoms and not merely the quantity of them.

It is possible under this interpretation that a blanket vaccine mandate would still not be the least restrictive means. That would require detailed analysis and argumentation I am not able to make here without specifics. But under this interpretation, the effectiveness of a government action is considered.

[/quote]
This has gone too far from the actual text of the repeal. The repeal argued, in relevant part, that it prohibits member nations from taking "more restrictive, albeit also more effective, means"; "most restrictive" being relative to "least restrictive means". The repeal does not argue that it prohibits member nations from doing anything. It would indeed be an Honest Mistake to claim that the target prohibits absolutely all restrictions on religious practices, but that isn't what the repeal claims.

[Excidium Planetis]

This has gone too far from the actual text of the repeal. The repeal argued, in relevant part, that it prohibits member nations from taking "more restrictive, albeit also more effective, means"; "most restrictive" being relative to "least restrictive means". The repeal does not argue that it prohibits member nations from doing anything. It would indeed be an Honest Mistake to claim that the target prohibits absolutely all restrictions on religious practices, but that isn't what the repeal claims.

The repeal's argument essentially states that effectiveness is irrelevant. This interpretation would effectively prohibit all restrictions on religious practices, because "no restrictions" is always less restrictive than "some restrictions", and thus would always be the least restrictive if other factors like efficacy are not considered. After all, any restrictions would be both more restrictive and more effective than no restrictions, and your repeal states clearly that nations are prevented from taking more restrictive but more effective actions.

Nations would therefore, in determining what actions qualify as the "least restrictive", include efficacy in their criteria.

[Sierra Lyricalia]

<snip>

Could you cite the portion of the target that allows for a qualitative rather than a quantitative (to use your terminology) interpretation of its LRM test? Obviously nations would rather have the option, but I see nothing that gives it to them. If I'm mistaken, please show me where.

[Magecastle Embassy Building A5]

This has gone too far from the actual text of the repeal. The repeal argued, in relevant part, that it prohibits member nations from taking "more restrictive, albeit also more effective, means"; "most restrictive" being relative to "least restrictive means". The repeal does not argue that it prohibits member nations from doing anything. It would indeed be an Honest Mistake to claim that the target prohibits absolutely all restrictions on religious practices, but that isn't what the repeal claims.

The repeal's argument essentially states that effectiveness is irrelevant. This interpretation would effectively prohibit all restrictions on religious practices, because "no restrictions" is always less restrictive than "some restrictions", and thus would always be the least restrictive if other factors like efficacy are not considered. After all, any restrictions would be both more restrictive and more effective than no restrictions, and your repeal states clearly that nations are prevented from taking more restrictive but more effective actions.

Nations would therefore, in determining what actions qualify as the "least restrictive", include efficacy in their criteria.

Per what words mean, an action is the least restrictive if it is indeed of minimal restrictiveness. End of story.

[Excidium Planetis]

<snip>

Could you cite the portion of the target that allows for a qualitative rather than a quantitative (to use your terminology) interpretation of its LRM test? Obviously nations would rather have the option, but I see nothing that gives it to them. If I'm mistaken, please show me where.

Sure.

except where restrictions on said practice are the least restrictive means by which to advance a compelling, practical public interest in the maintenance of safety, health, or good order,

The target only specifies that the means must advance a compelling interest in one of the listed categories, other than that, it offers no criteria for determining whether a given measure is the "least restrictive". Neither does it specify that such means are the least restrictive on individual personal freedoms, or whether they are the least restrictive when considering other factors.

Therefore, presumably it would fall to individual nations' legal systems to determine criteria by which to determine whether an action is the "least restrictive means". This criteria could be the qualitative interpretation I have rephrased here, or some other criteria that include efficacy when determining what constitutes the "least restrictive means".

I argue that it is this interpretation is valid because NS nations could conceivably interpret the LSM test the same way that a real world court could, and that doing so would give them much greater ability to act than the interpretation used in the repeal.

[Excidium Planetis]

Per what words mean, an action is the least restrictive if it is indeed of minimal restrictiveness. End of story.

That's an oversimplification. What does it mean for something to be the least restrictive?

If the target said "the least bad" means had to be used, would you maintain that "the least bad" meant the option with the minimal badness? Or would you contend that nations could reasonably interpret what "least bad" meant and how to evaluate whether an option was the least bad?

[Magecastle Embassy Building A5]

If the target said "the least bad" means had to be used, would you maintain that "the least bad" meant the option with the minimal badness?

Yes, that's how words work.

Or would you contend that nations could reasonably interpret what "least bad" meant and how to evaluate whether an option was the least bad?

They can interpret what "least bad" means in a manner that is at least based on what the word "bad" means. The definition of "less restrictive" does not include "more effective", though I'd like to see your source for claiming as such.

[Imperium Anglorum]

The Secretariat will take this matter up.

[Magecastle Embassy Building A5]

Addendum.

The relevant section of repeal says as follows _

Saddened that the resolution's mandate that restrictions on religious practices only be "the least restrictive means" to advance certain interests prevents member nations from advancing "safety, health, or good order" through more restrictive, albeit also more effective, means, including prohibiting cannibalism wholesale to address the practice's inherent health risks, as opposed to eg licensing and disease testing mandates which are less restrictive but also far less effective,

I believe that EP's stated interpretation of the term "restrictive", in that "Nations would therefore, in determining what actions qualify as the "least restrictive", include efficacy in their criteria" is simply not colourable. Restrictive means restrictive, not ineffective. CD's definition of "restrict" says that to "restrict" means...

to limit the movements or actions of someone, or to limit something and reduce its size or prevent it from increasing:

Whether a measure is effective in achieving another interest seems not implicitly or explicitly referenced in this definition. I fail to see how a member nation could class something as less "restrictive" because it's more effective. Likewise, TFD Legal Dictionary defines a "restriction" as being...

any limitation on activity, by statute, regulation or contract provision.

This also has no reference to whether said limitation is effective; something is not less restrictive because it's more effective.

Let's, however, assume that something being more effective does indeed make it less restrictive. In that case, the repeal's text is still factually true. Measures which are more restrictive yet less effective indeed cannot be taken, even though there are few situations in which this would occur as things are less "restrictive" if they are more "effective". Unless one were to argue that a member nation can not only consider effectiveness in determining "restrictiveness", but use effectiveness as the sole criterion for determining how "restrictive" a policy is, "few" is not "none". EP has not even attempted to demonstrate that effectiveness can be used as the sole criterion for determining "restrictiveness". Therefore, accordingly, should GenSec determining that something being more effective does make it less restrictive, the repeal's claim would at best be a plain statement of truth and at worst be mere exaggeration.

I personally still find that the interpretation in that a member nation can argue that something is less "restrictive" if it is more effective is not colourable by any stretch of the imagination, but even were it to be accepted, I still do not see illegality in my repeal.

[Excidium Planetis]

They can interpret what "least bad" means in a manner that is at least based on what the word "bad" means.

Yes, we all know what "bad" means, but how would a nation determine if an option was bad? They would have to develop their own criteria for what was considered bad and what was not. Likewise for "least restrictive".

The definition of "less restrictive" does not include "more effective", though I'd like to see your source for claiming as such.

It's not about the definition of least restrictive, it's about how you evaluate how restrictive something is. You are assuming that "least restrictive" applies only to the restriction on personal freedoms.

I repeat my early rephrasing of Byskov's argument: The interpretation that "least restrictive" only refers to the restrictions placed on personal freedoms, the "quantitative interpretation", ignores that 1) individual freedoms are not the only value of importance when deciding public policy 2) some restrictions are sometimes necessary to preserve other individual freedoms and 3) some freedoms are more important, more relevant, or more valuable than others

In regards to 1) the costs, efficacy, and other effects and implications of a measure are certainly other values that governments would consider when evaluating what options are available. After all, of something was non-restrictive on individual liberty but carried a massive societal cost, is that option really the least restrictive overall?

Expanding or contracting a single value, such as liberty, is almost certainly going to interact with and impact on other values … We may need to decide how much liberty we are willing to sacrifice to bring about greater equity or greater well‐being.
- The threat of pandemic influenza: Are we ready? Workshop summary. Washington, DC: National Academies Press; Dawson, A. (2016)

In regards to 2) some restrictions on individual freedom are necessary to provide additional freedoms or to protect the freedoms of others. The most obvious example of course, is the social contract, whereby individual freedoms must necessarily be restricted to ensure the equal freedom of everyone. One must be restricted in their ability to murder to ensure that right of others to live is protected, and so on. However, a subtler case is in government interventions which could arguably restrict some individuals without increasing any freedoms on paper, but which would in effect create greater freedoms. Consider a government subsidy to help pay for vaccinations: this subsidy would necessarily interfere with an individual's personal freedom to choose whether or not to vaccinate (after all, the individual would no longer have the ability to choose without government interference). However, individuals who previously did not have a choice to vaccinate due to economic circumstances would now have a choice.

In regards to 3) there are some liberties which society values more than others. For example, few would argue that the freedom to care for your children is equally as important as the freedom to choose between Pepsi and Coca-Cola. If this is true, then restrictions on a few valuable freedoms might actually be worse than many restrictions on less valuable ones. But this consideration is only possible when you consider things other than merely the degree to which restrictions are placed individual freedoms.

For example, parents who care for their children's health may find themselves unable to make the healthiest choices for their children for a variety of reasons: they might lack the necessary education on health, or are unable to afford necessities for healthy living, or lack the willpower to say no to their kids at the grocery store when they see the candy section. Mandatory health classes in public school and limits to the marketing of candy bars in grocery stores, etc, would place restrictions on individual freedoms, but would allow greater ability for parents to care for their children's health, which is arguably more valuable, and thus, a less restrictive option.


In the consideration of all 3 points, it is obvious that the efficacy of an option would come into play. You cannot consider the effects of an option on other values such as societal cost or the ability to grant choices to those who previously lacked them without considering the efficacy of your proposed action.

[Magecastle Embassy Building A5]

They can interpret what "least bad" means in a manner that is at least based on what the word "bad" means.

Yes, we all know what "bad" means, but how would a nation determine if an option was bad? They would have to develop their own criteria for what was considered bad and what was not. Likewise for "least restrictive".

The definition of "less restrictive" does not include "more effective", though I'd like to see your source for claiming as such.

It's not about the definition of least restrictive, it's about how you evaluate how restrictive something is. You are assuming that "least restrictive" applies only to the restriction on personal freedoms.

How restrictive something is must be evaluated according to what the word "restrictive" means, yes. Once again, that's how words work.

I repeat my early rephrasing of Byskov's argument: The interpretation that "least restrictive" only refers to the restrictions placed on personal freedoms, the "quantitative interpretation", ignores that 1) individual freedoms are not the only value of importance when deciding public policy 2) some restrictions are sometimes necessary to preserve other individual freedoms and 3) some freedoms are more important, more relevant, or more valuable than others

The issue here is precisely that the target fails to take into account that "individual freedoms are not the only value of importance when deciding public policy".

In regards to 1) the costs, efficacy, and other effects and implications of a measure are certainly other values that governments would consider when evaluating what options are available. After all, of something was non-restrictive on individual liberty but carried a massive societal cost, is that option really the least restrictive overall?

Yes. Least restrictive =/= good policy.

Expanding or contracting a single value, such as liberty, is almost certainly going to interact with and impact on other values … We may need to decide how much liberty we are willing to sacrifice to bring about greater equity or greater well‐being.
- The threat of pandemic influenza: Are we ready? Workshop summary. Washington, DC: National Academies Press; Dawson, A. (2016)

In regards to 2) some restrictions on individual freedom are necessary to provide additional freedoms or to protect the freedoms of others. The most obvious example of course, is the social contract, whereby individual freedoms must necessarily be restricted to ensure the equal freedom of everyone. One must be restricted in their ability to murder to ensure that right of others to live is protected, and so on. However, a subtler case is in government interventions which could arguably restrict some individuals without increasing any freedoms on paper, but which would in effect create greater freedoms. Consider a government subsidy to help pay for vaccinations: this subsidy would necessarily interfere with an individual's personal freedom to choose whether or not to vaccinate (after all, the individual would no longer have the ability to choose without government interference). However, individuals who previously did not have a choice to vaccinate due to economic circumstances would now have a choice.

In regards to 3) there are some liberties which society values more than others. For example, few would argue that the freedom to care for your children is equally as important as the freedom to choose between Pepsi and Coca-Cola. If this is true, then restrictions on a few valuable freedoms might actually be worse than many restrictions on less valuable ones. But this consideration is only possible when you consider things other than merely the degree to which restrictions are placed individual freedoms.

For example, parents who care for their children's health may find themselves unable to make the healthiest choices for their children for a variety of reasons: they might lack the necessary education on health, or are unable to afford necessities for healthy living, or lack the willpower to say no to their kids at the grocery store when they see the candy section. Mandatory health classes in public school and limits to the marketing of candy bars in grocery stores, etc, would place restrictions on individual freedoms, but would allow greater ability for parents to care for their children's health, which is arguably more valuable, and thus, a less restrictive option.

I don't think anyone is denying that borderline cases exist. That in some, borderline cases, member nations may make a determination themselves in accordance to what the word "restrictive" means (it does not mean "ineffective") does not mean that member nations can invoke effectiveness as the sole (or primary) criterion in determining how "restrictive" a policy is. As I argued in my previous post, unless there is absolutely no case wherein a more restrictive policy is also more effective -- which would require member nations to only use effectiveness in determining restrictiveness, which I find to be completely absurd -- then it is indeed true that the target "prevents member nations from advancing "safety, health, or good order" through more restrictive, albeit also more effective, means".

[Excidium Planetis]

The issue here is precisely that the target fails to take into account that "individual freedoms are not the only value of importance when deciding public policy".

That is one interpretation of the text, and indeed, would be the only possible interpretation if the target said something like "where such means are the least restrictive on individual personal freedoms", but those words are lacking from the target, allowing for alternative interpretation.

What you are denying is the ability of the governments of member nations to take liberal interpretations of the text.

I won't say any more in this thread, I think I have argued all I wish to.

[Sierra Lyricalia]

The issue here is precisely that the target fails to take into account that "individual freedoms are not the only value of importance when deciding public policy".

That is one interpretation of the text...

That makes the repeal's interpretation a colorable one, full stop. The burden a repeal allegation must meet is not to be the only possible interpretation, but to be a plausible one, even if there are others.

[Excidium Planetis]

That makes the repeal's interpretation a colorable one, full stop. The burden a repeal allegation must meet is not to be the only possible interpretation, but to be a plausible one, even if there are others.

With all due respect, that is not how GenSec has applied RNT in the past. Nations have always been free to make detrimental interpretations of resolutions, but for a repeal to make the argument that one such interpretation prevents member nations from taking meaningful action is an Honest Mistake.

I refer you back to the IA authored GenSec opinion I provided Banana earlier, which found a repeal illegal for HM violation in part because its claims were based on an interpretation that violated RNT.

[Bananaistan]

*** General Assembly Secretariat Decision ***
Challenged Proposal: Repeal "Freedom Of Religion"
Date of Decision: 12 November 2022
Decision: Proposal is legal, 5-0
Rules Applied: Honest mistake

All members of GenSec voted that the repeal is legal. Sierra Lyricalia wrote the majority opinion, joined by Bananaistan, Separatist Peoples and Wallenburg:

Reasonable Nation Theory in repeals is the idea that where two valid interpretations of a provision in a target exist; and one is straightforward and easy to comply with but the other is batshit insane; then reasonable member states will not adopt the batshit insane interpretation. A repeal proposal will be illegal under the honest mistake rule if it is based on the batshit insane interpretation.

In this case, the challenger has not put forward a second valid interpretation of the target based solely on its text. The challenger instead puts forward many claims based on real life jurisprudence in the USA.

Offhand we reject all arguments based on RL jurisprudence. GenSec does not engage in RL fact checking. The challenge here would require such checks in a way that is obnoxiously time-consuming, arguably impossible for amateur volunteers anyway (only one of us is a US-licensed attorney), but above all cannot possibly yield the force of law or precedent as far as the World Assembly is concerned.

The entire argument hinges on US courts making allowances for effectiveness and success in achieving the compelling practical public interests at issue here - allowances that are not mentioned in the text of the target, which the repeal accurately notes only mentions advancement of such interests. Nor is such leeway permitted in the WA's own compliance enforcement regimes. It is easily conceivable that a citizen of a member state could successfully bring suit (see GAR #440, Article IV) against their own government for undue restriction re: GAR #430, where that government has outright banned a more or less dangerous practice of serious, faithful religious believers.

This remains plausible even given the challenger's later appeal to a case where RNT militated against repeal legality. The citation of GenSec's opinion in Repeal "Safety and Integrity in Conflict Journalism" is not germane. There, narrow interpretation of a term of art - by both member states and the WA itself - was plausible based solely on the text of the target. Here, there is simply no compelling case that "advance" must imply achievement of a goal, nor that WA compliance regimes would always permit member states to act as if it did.*

We re-emphasize that RNT cannot override actual text of a resolution. We imagine very many nations would prefer to define (say) independent and unbiased (in GAR #43), or discrimination (in many resolutions) in certain ways more favorable to their freedom of action. But that doesn't mean they can simply do so without consequence.

The law does what the law says. In the absence of an alternative interpretation based solely on the text, there is no merit to the challenge. We dismiss it.

*Note, too, that the claims in the two repeals are quite different: in Repeal SICJ, the repeal itself claimed that narrow interpretation of "conflict journalists" was unjust or undesirable, thus undermining the only plausible grounds to say that the target was a blocker of espionage laws; grounds which were anyway only implied, not even stated outright. Here, the repeal makes a claim about its target which can only be waved away by an appeal to the specific, contingent operations of the United States legal system.

Imperium Anglorum issued the following concurring opinion:

There are two prongs to a honest mistake veracity action. A repeal cannot make an uncolourable interpretation of a past resolution or assert judiciable facts that violate reasonable nation theory. The challenge best fits into the second part. Specifically, the challenge says that no member nation would read the following clause, setting up a least restrictive means (LRM) test, in the way the repeal does.

[Individuals in member states may engage] religious practice... without fear of state punishment [etc] except where restrictions on said practice are the least restrictive means by which to advance a compelling, practical public interest in the maintenance of safety, health, or good order

The challenge says the repeal reads the target to require "less effective options[] be taken so long as they are less restrictive than a more effective alternative". I agree. What is important here, however, is whether there is any other valid reading that a member nation could choose. If there is another, the challenge should be upheld. [2022] GAS 1, ¶ 4. The challenger makes the same burdens analysis.

The repeal, however, makes the only correct reading of the target. The words "compelling", "practical", and "public" link to "interest". The "means" need, therefore, not be "practical". The LRM test says the interest needs to be "advanced". The Oxford Dictionary of English says "advanced" means "to make or cause to make progress". Cambridge Dictionaries says "to develop or improve something". Collins English Dictionary likewise says "to bring or be brought to a further stage of development; improve; further". None of these say that the interest advanced needs to be achieved. It merely says that the interest should be progressed by some amount, even if it is de minimis.

The impact of this test on the Assembly and member nations is indeed large. I think almost all proposals brought before the General Assembly since the LRM test's passage would fail it (ie, as the challenger claims, "nearly completely prohibit any government action"). That nobody claimed contradiction shows not that member nations created some harmonious reading, but rather that nobody took the LRM test seriously. That nobody noticed it until now does not make its correct interpretation wrong.

Challenger cited some American case law. It is of little relevance. It is clear that the Religious Freedom Restoration Act 1993 gave rise to the target. @. It is also clear that LRM tests in American case law let the state achieve identified interests. Eg "[the government must] justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest". 494 US 872, 894 (1990) (O’Connor concurring). RFRA, other laws, and other decisions (too many to list here) use many words – "advance", "further", and "achieve" – to mean here the same thing. But the plain meanings of "advance" and "achieve" differ greatly and we are not bound by American law's non-plain usage.

If the Secretariat upheld the absurdity doctrine – and, in so doing, upheld it for roleplayed member nations – it could rewrite resolutions when the only plain readings would lead to effects of which no reasonable person could approve. Those rewrites would be limited but also somewhat free-form. Scalia and Garner, Reading Law (1st ed, 2012) p 234 et seq. I would, however, clearly mark here a departure from real world courts. Except for scribal errors with clear intent, the law does what the law says, even if the results are absurd. It is too much to ask for players to read a target and then rewrite it the same way the Secretariat does.

Because there is no other reading based on the target's text, the logic underpinning use of reasonable nation theory, that no reasonable member would pick this interpretation, fails. I therefore agree in judgement.

[Desmosthenes and Burke]

*** General Assembly Secretariat Decision ***
Challenged Proposal: Repeal "Freedom Of Religion"
Date of Decision: 12 November 2022
Decision: Proposal is legal, 5-0
Rules Applied: Honest mistake

Opinion to follow

I think this is a surprise to no one, except, perhaps, EP.

[Excidium Planetis]

I think this is a surprise to no one, except, perhaps, EP.

It is no surprise to me. But I will await the full opinion before issuing criticism of GenSec's decision.

[Bananaistan]

Bump for decision post edited for the opinions.

[Magecastle Embassy Building A5]

A commonsense decision, and thanks both SL and IA for the opinion.