Home / General / The Weaponization of Religious Exemptions

The Weaponization of Religious Exemptions

/
/
/
1 Views

Some musings inspired by the Indiana backlash and the backlash to the backlash:

Some “meta” preliminaries: obviously, freedom of religion at its core is a non-negotiable requirement for any society wishing to plausibly call itself a liberal democracy. What is the core? The right to join and form religious organizations, worship freely, and speak openly about one’s religion in the larger society, regardless of the degree of overlap between the content of these religious views and the mainstream of official state ideologies. Of course, there’s a lot more to how states support freedom of religion as a matter of practice; from tax-exempt status to cooperative educational and charitable projects to the possibility of exemptions from general religious law. By saying such things are not the ‘core’ of freedom of religion, I don’t mean to suggest they are inappropriate or wrong, or even unnecessary. But unlike the religious freedom’s core, they should be understood as negotiable—that is, they’re the proper subject for democratic deliberation and contestation, and there ought be to no particular expectation there’s a universal proper liberal-democratic answer to these kinds of questions. Which are most appropriate for a particular political society is based, to a significant degree, on local circumstances. Any democratic society that finds itself debating whether to honor the core of religious freedom has badly gone off the rails, but a democratic society debating the non-core scope of religious freedom is just doing what democracies do.

On a less meta level, my own views on religious exemptions are quite fluid. I find myself shifting between being mostly (but never entirely) comfortable with the pre-Smith status quo balancing tests and original RFRA framework, and mostly (but never entirely) resigned to a Smith-like restrictive approach. I teach a seminar on multicultural policy in every Spring, so it’s not like I haven’t thought about it much; I just seem prone to change dramatically the relative weighting of different goals and values.

If there’s a pattern to shifts in my uncertainty, though, it’s probably that I find myself drifting toward a more restrictive approach. In watching the politics of the Indiana law and its backlash, I think I’m getting a better sense of why that’s the case. What’s currently underway is what I’ll call the weaponization of religious exemptions. To explain what I mean by this, here are some classic examples of requests for religious exemptions: permission to use otherwise illegal substances for religious ceremonies, such as the Smith plaintiffs and Peyote, Catholics and sacramental wine during prohibition, Rastafari and marijuana);exemptions from zoning laws for the construction of Sukkahs and rules regarding the religious use of public property for the constructions of eruvs; exemption from mandatory military service, schooling requirements, or vaccinations; exemptions from incest laws (regarding Uncle/Niece marriages for some communities of Moroccan Jews); Native American religious groups seeking privileged access to sacred spaces on federally owned land;exemptions to Sunday closing laws for seventh-day Sabbatarians. I find some of these easy to support and others profoundly problematic, but they collectively share a common feature: they are fundamentally defensive in character. Their primary objective is to protect a practice or tradition or community, and little more. These exemptions are political but not in the sense that their exercise is directed toward the larger community in any concrete, meaningful sense. In these cases, the end sought in pursuing the exemption is, more or less, the exemption itself.

The requested accommodation in City of Boerne is a kind of transitional case. The exemption sought was to modify a church in a Historical District where such modifications were not permitted. While the exemption was clearly sought for the purpose of the exercise of religious activity, it wasn’t really a religious exemption per se—they wanted a bigger, more modern facility for more or less the general kind of reasons a private business or homeowner might have liked an exemption—accommodate more people, better amenities, etc. There was no connection between their status as a religious group and the nature of the particular exemption they were seeking; in essence they were arguing that the RFRA gives them license to avoid a law they found inconvenient. (Hypothetically, if a religious organization sought an exemption to historic zoning on grounds that their religion prohibited worshiping in buildings over a certain age for ceremonies, this case would have more merit.) Turning religious exemptions into a license for religious groups to evade general laws when inconvenient seems entirely deserving of pushback.

But this is only a partially weaponized use of religious exemptions; they’re being used as a weapon to advance the Church’s goals, but not striking against their political enemies. The quintessential case of a weaponized religious exemption is, of course, Hobby Lobby; Obamacare was to be the subject of a blitzkrieg, to be hit with any and every weapon imaginable, and that’s what the RFRA provided. Their efforts to make the claim appear credible could hardly be lazier or more half-assed. One possible check on weaponization, in a better and more decent society, could conceivably be a sense of embarrassment or shame; exposing one’s religious convictions as a cynical political tool to be wielded against one’s political enemies might be hoped to invoke enough embarrassment that it might be avoided, but we were well past that point. A remarkable document of this trend is this post from Patrick Deneen–fully, openly aware of the fundamental absurdity of Hobby Lobby’s case, cheering them on nonetheless. I mean, you’d think they’d at least have found a company owned by Catholics.

In light of that case, the transparent push for a super-RFRA deployable in private torts is not quite as egregious. It’s passing a bill that is by no means guaranteed to get them the results they want (my understanding is that no attempt to defend discriminatory behavior under any RFRA has yet been successful), and has plenty of other potential applications, some of which may be salutary. But the politics of it are undeniable; as in Kansas, Arizona and elsewhere, it’s plainly the case that this is simply the latest effort in the longstanding war on full social equality for gay and lesbian people. (If not having an RFRA at the books on the state level is such a grave threat to religious liberty, why haven’t we been hearing more about this since 1997, seeing as most states have no such law?) That this is a considerably less ambitious project in denying social equality than most previous battles fought in this war merely reflects the ground they’ve lost recently.

As I mentioned earlier, I don’t have confident or strongly held views about the ideal and proper scope of religious exemptions, although I’ve probably been drifting further from the RFRA framework and closer to Smith. The backlash against the Indiana bill—a bill that, private torts provision aside, isn’t that different from something that once passed the house unanimously and the senate with 97 votes—not to mention even conservative Republicans vetoing similar legislation in Arizona and Arkansas–suggests something very real has changed. The assumption on the right is that it’s liberals who’ve changed; we don’t support religious freedom like we did back in the 90’s. They’re not entirely wrong about that, but it’s an incomplete view about what has changed. Insofar as liberals changed their minds about the proper scope of religious exemptions, they didn’t do so in a vacuum, they changed their mind about it because the context we’re now in—facing an utterly shameless political movement that treats any conceivable political tool as fair game to achieve its political ends—is just simply not the kind of environment that fits well with an expansive approach to religious exemptions. The personal, faith-based nature of religious conviction makes it clearly inappropriate for the state to question the sincerity of the professed belief, even when that insincerity is obvious and barely concealed; which in turn makes exemptions easier to support in an environment where there’s some degree of trust that this process won’t be routinely abused. As noted earlier, which approach to exemptions best serves the interests of justice and freedom depends to a significant degree on the details of the society in question. We may have been something closer to that kind of society suited for expansive religious exemptions in the past, and we may someday be that kind of society at some point in the future, but it’s becoming difficult to deny we’re not such a society now.

FacebookTwitterGoogle+Share
  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • Joe_JP

    There was no connection between their status as a religious group and the nature of the particular exemption they were seeking; in essence they were arguing that the RFRA gives them license to avoid a law they found inconvenient.

    I’m more sympathetic about a concern that they need more space to directly practice religious rituals. There seems to be a “connection” there akin to your age hypo. Having the whole religious “community” together as compared to breaking them up seems to have a “religious” function here.

    [After RFRA as applied to states was struck down in fact RLUIPA was passed — this was more narrowly applied to certain land use and institutional places like prisons.]

    Any exemption (such as a tax exemption for certain things) is going to allow some groups to avoid inconveniences. But, when the church more directly harms third parties especially in a more public sphere (a business place vs. their own religious home base), it is more troubling. Pre-Oregon v. Smith, these differences were flagged. Note, e.g., how some justices separated for-profits like Hobby Lobby from non-profits:

    https://supreme.justia.com/cases/federal/us/483/327/

    This was what the Obama Administration did too with exemptions in respect to contraceptives & Hobby Lobby worked toward removing the line. Indiana etc. do as well. Problematic.

    • djw

      Any exemption (such as a tax exemption for certain things) is going to allow some groups to avoid inconveniences.

      Sure, but in Boerne, the avoidance of inconvenience it wasn’t a secondary consequence; it was the entire goal. “We’re growing and we need more space” doesn’t reference any religious reason. The state wasn’t imposing any restriction on their capacity to address that issue that it doesn’t impose on the home and business owners in historic districts.

      • joe from Lowell

        “We’re growing and we need more space” doesn’t reference any religious reason.

        Yes, it does; “We need more space for religious practice.” What could possibly reference their religion more than the facilitation of religious worship?

        Ending your sentence at “space” is like ending “I support states rights” at “rights.” States’ rights to do what? More space for what? The bit that gets chopped off the end of the sentence is actually the core of the matter.

        There seem to be two elements to the concept of weaponization: that it ceases to be “defensive,” that is, about preventing the state from intruding on the private party; and that it is about actual religious practice. Boene is both defensive, and about actual religious practice.

        Didn’t we all have a great ol’ time laughing about how signing a contract for your company’s health insurance isn’t religious practice? Well, operating a church where you hold services is religious practice.

        • Sorry Joe, this seems wrong to me. They wanted a bigger space to worship, but there’s nothing in their religion that said it had to be in that particular place. If the zoning laws don’t allow the building they want in that place, they can build it or buy it somewhere else. A business that wants a bigger factory has to obey the zoning laws; there’s no reason why churches shouldn’t also.

          Furthermore, I can see no reason whatsoever why churches should be exempt from property taxes. That’s just a favor to them, in fact it seems to me that it actually violates the First Amendment.

          • Steve LaBonne

            Agreed on both counts.

            • Aimai

              Agreed as well on both counts. Fire marshall laws, laws against locking the exits, are also not somehow anti-religious if they apply equally to all such structures. Its true that it can be expensive for anyone (corporate or individual) to get their houses or lisences up to code but so what? The recent new law passed in (Arkansas? Florida? I forget where ) which Betty Cracker called “Jesus take the Wheel!” is a case in point. Orindarily if you as an organization are going to take on the responsibility of shuttling elders, or children, or large numbers of people back and forth to events and you are going to be driving certain kinds of buses or vans your driver needs to have a certain class of lisence and training. Now to help church groups save a buck those rules are going to be relaxed for church groups. Until, of course, some school bus full of the churches kids flips over and they all burn to death because the driver was not experienced enough to handle the vehicle. Then there will be a round of “whocoodanode” and “whotthehell just happened?”

              • No, then it will be “god’s will.” I wonder if he ever gets tired of being blamed for human stupidity.

                • swkellogg

                  Considering that that was the reason people created HIM, I’d have to say no.

                • jim, some guy in iowa

                  “we created a figurehead who we can blame for the fact that we hate each other”

          • Joe_JP

            they can build it or buy it somewhere else

            People in the community in question would not be able to as easily come together for religious purposes. Is this a sort of “vote with your feet” argument? Also, unlike a business, not every holy space is as fungible. Rezoning St. Peters or something and a widget factory isn’t exactly the same thing.

            And, it generally isn’t “just a favor to them.” Tax exemptions here tend to be for broad reasons and a range of non-profits, e.g., get benefits here. Also, separation of church and state is one reason where giving more discretion to churches make sense. This would include not micromanaging what is “religious” and “non-religious” in certain cases.

            As to fire marshal laws, sure; and protecting “marital bedrooms” doesn’t mean Griswold by its lonesome allowed you to mainline heroin there. It isn’t an “anything goes” rule. Does the need to apply neutral rules suddenly make the separation of church and state general idea false too? [spoiler: no]

            • Hogan

              People in the community in question would not be able to as easily come together for religious purposes.

              Catholic archdioceses change parish boundaries all the time, and even eliminate parishes. It’s no part of Catholic practice to guarantee that people in a single parish will always and forever be in that particular parish, or to treat one parish church as a uniquely sacrosanct (so to speak) religious community.

              • Joe_JP

                They change them for various reasons including financial and changing demographics. It still holds that it is religiously burdensome to not allow an expansion of a longstanding holy space where there is a demand in that area. If we want to say that other concerns should trump that, fine. It’s still a religious burden.

                There is no “uniquely sacrosanct” guarantee here but so what? First, let’s say the PTB determine there basically is? Don’t think the critics here will say “oh well, change my mind!” Second, religion etc. isn’t only protected when it is “totally compelled” or something. Not that I really want government to try to determine what that means.

                • Hogan

                  They change them for various reasons including financial and changing demographics.

                  Which are not religious reasons, yes.

                • It still holds that it is religiously burdensome to not allow an expansion of a longstanding holy space where there is a demand in that area. If we want to say that other concerns should trump that, fine. It’s still a religious burden.

                  I’m really puzzled by this. I don’t know what you mean by *religious* burden here. It is a burden on that religious community, but I don’t see that it’s a burden on their religion per se. I can see versions of such regulations that would be targeted and burdensome, but this doesn’t seem to be.

                  To put it another way, why isn’t this regulation just another financial or demographic issue? What if instead of a zoning regulation there just wasn’t enough space and they wanted the state to exercise eminent domain over the neighbouring lot so they could expand?

              • Aimai

                In fact this was a big part of the post-sex abuse scandal struggle. The actual parishioners of churches, who had supported them financially and even built them from the ground up, were alleged by the hierarchy to have no rights w/r/t to them when it came to closing them or selling them. The Church routinely acts like churches can be commissioned and decomissioned at the drop of a law suit. While ground is consecrated and deconsecrated in some churches none of them are sacred spaces in the sense that Mecca, or Tibet itself, or Jerusalem are. You can always move a church in this country, while you can’t move the entire sacred ground of some religious places.

                • drkrick

                  The idea that the congregation builds the church for the benefit of the denomination is pretty standard in both Catholic and Protestant denominations and is usually expressly specified in governing documents. When congregations decide to leave a denomination over a doctrinal change (female clergy and treating LGBTI folks as people are pretty popular reasons), the ugliest part is usually the wrangling over the real estate.

                • joe from Lowell

                  The Church routinely acts like churches can be commissioned and decomissioned at the drop of a law suit.

                  Yes, the Church itself decides about its properties.

                  Bring the concepts of autonomy and consent into your thinking on this.

                  The line of thought “If they do it, I get to do it to them” has an ignoble history.

                • Aimai

                  Come on Joe–you know as well as I do that “the church” decides is a weird way of putting it when there are parishes with worshippers who contributed cold hard cash to their churches who have no say in whether the building gets shuttered and where the money goes. This is precisely my point–there are several churches, and histories within the church, and the assets are being fought over even as we speak. My point isn’t that I want to decide, or that I want the state to decide–just that Joe_P’s argument that it is impermissible for reality/local zoning to affect church placement is silly. Church buildings move, are sold, are abandoned, all the time. If an earthquake takes a church out and it can’t be rebuilt safely then arguing that it must be rebuilt because of religious reasons is pointless–why are generic safety regulations any different?

                • joe from Lowell

                  Come on Joe–you know as well as I do that “the church” decides is a weird way of putting it when there are parishes with worshippers who contributed cold hard cash to their churches who have no say in whether the building gets shuttered and where the money goes.

                  Why? Why is that any weirder than saying “the government decides” when there are cities full of citizens who paid cold hard taxes and don’t like some of what the government does with it?

                  The Church is a collective organization. So are each of the dioceses that decide about parish openings. There is always going to be a group that disagrees with the larger group’s actions. Plus what drkirk said.

                  Yes, assets are fought over all the time, in the same sense that different political factions fight over policies. Does that make it “weird” to say that the government decided to do such-and-such with the DoT budget?

              • joe from Lowell

                Catholic archdioceses change parish boundaries all the time, and even eliminate parishes.

                Their call, not the government’s. Your argument is sort of like, “What’s wrong with displacing people for urban renewal? People move all the time!”

                • Hogan

                  I think it’s more like “Why can’t I add onto my historically designated house, but the Archdiocese of San Antonio can add onto their historically designated church?”

                • joe from Lowell

                  Because the First Amendment explicitly protects religious exercise, while there is no right-to-home amendment?

                • djw

                  Preacher preaches at her Church’s two locations at 9 and 11. (Those are the times and places that work best for this group’s religious practice, changing either time would burden their free exercise of religion.) In order too improve road safety, speed limits are reduced on the route from the first location to the second, making it impossible for preacher to get to her second service on time. Should she be get an exemption from the speed limit? Other people may want to get somewhere on time, but for reasons that aren’t explicitly constitutionally protected. The state can achieve virtually all its goal of increasing safety if just one person is allowed to speed with impunity. (Frankly, the threat to the state goal is much more minor in this case than building a big new modern church in the middle of a historic district would be.)

                • joe from Lowell

                  No, of course not. Asking me about convenience has nothing to do with my argument.

                  Again, I’m not arguing some “no inconveniencing” rule. I’m talking about buildings, recognizing their special status.

                  Also, the phrasing of this question suggests a utilitarian view of church space which is quite mistaken when it comes to religious buildings’ significance. There is a reason why churches that occupy valuable property and get used two hours a week don’t just sell off and rent a hall for their services.

          • joe from Lowell

            So, in other words, this isn’t about the point I raised at all, about the distinction djw was raising in his post and the comment I replied to, but a broader problem wight he concept of religious exemptions of any kind – the “the rules that apply to McDonald’s should apply to a church, including taxes” position.

            Well, ok. I was talking about a more specific point, one based on a vision of the establishment and free exercise clauses that is consistent with existing jurisprudence.

            • Lee Rudolph

              a broader problem wight

              Just what kind of church is that, anyway?

        • JR in WV

          No, no, no!

          If their current church is no longer suitable for them, and it isn’t legally eligible for rebuilding, then they need to be building a new better church where allowed. They don’t get to slide on building codes because of safety, they don’t get to slide on historic district rules because of historic reality.

          No one intends to prevent them from buying a great big lot, anywhere they can afford it, wherever zoning allows for construction of a big new church, however big and fancy they can afford.

          Here locally the Bible Church turned their previous worship center into a school (where they teach the earth is center of the universe, and is 6000 odd years old, and where people used to ride dinosaurs to school in the morning.

          They did this because they had raised millions of dollars to build a new worship center, with a gym, and theater, and athletic fields, and for all I know a bowling alley (probably not, that isn’t as popular as it used to be). Oh, yes, there’s a church for worship there too!!!

          I think every square foot they don’t use solely for prayer should be taxed just as if it were a commercial gym, theater, etc.

          But them I’m not a church goer. My bible tells me that Christ told his people to pray in private, lest people think the prayers are bragging…

          • joe from Lowell

            What are you saying “No no no” to?

            The question was whether providing space for religious worship was or was not, according to the rubric laid out in the original post, “religious practice,” and therefore in the “core” of freedom of religion, and therefore should be looked at differently than choosing your company’s health insurance provider.

            I notice that neither of the responses to my comment address my comment. If you don’t like djw’s rubric, take it up with him.

            • Cn. Naevius

              The line between “religious” needs and other ones is definitely fuzzy, but you’re going to have to draw the line somewhere, no? If the test is just “exemption from this burden directly or indirectly makes it easier for me to practice my religion” then there’s no real test at all. I mean, would a religious exemption apply to speed limits if you’re speeding to get to church on time? To minimum wage laws which make it more difficult to hire cleaners for a house of worship? Are there any laws, under any circumstances, that a religious person *wouldn’t* be able to claim a reasonable level of exemption from?
              Cases like the City of Boerne (as characterized in the post; I don’t have any special knowledge about it) pretty clearly aren’t the same kind of thing as use of peyote in worship, or building sukkoth. The kind of burden placed on a church that needs more space seems to me like the same kind of burden placed on a house or a grocery store that needs more space; whereas the kind of burden placed on someone wanting to build a sukkah is qualitatively different from that placed on someone with non-religious reasons for making a similar structure. Again, this distinction will get vague to the point of being arbitrary in some cases; but the one cited here seems pretty easy.

              • joe from Lowell

                You do have to draw the line somewhere, yes.

                Having a thing called a church (or some related term) where religious devotions and operations take place, seems to be inside the line. It seems rather beyond obvious that a church is rather core to the mission of a church.

                No, the “more convenient” standard isn’t what I’m talking about. I’m carving out a special space for the physical building itself. I mean, look at Aimai’s comment above – she’s arguing that the sacred space of a church is a different form of sacred space than some other sacred spaces.

                Well, ok, but it’s still a sacred space. They still define it as sacred, and use it as a core element of their ritualistic practice, in a way that speeding on the highway isn’t.

                The kind of burden placed on a church that needs more space seems to me like the same kind of burden placed on a house or a grocery store that needs more space; whereas the kind of burden placed on someone wanting to build a sukkah is qualitatively different from that placed on someone with non-religious reasons for making a similar structure.

                This makes no sense to me. Building them is completely different, but adding an addition is the same?

  • rea

    a bill that, private torts provision aside, isn’t that different from something that once passed the house unanimously and the senate with 97 votes

    The thing is, in the immediate aftermath of Smith, nobody imagined that the federal RFRA would or could be used as in Hobby Lobby, to force the employer’s religious preferences on employees, or to allow businesses to discriminate in commerce.

    • Which is why it was supported by the ACLU and the Christian Coalition and most all liberals and conservatives and there was nary a controversy over it for twenty odd years until the Roberts Court got its grubby little hands on it. I was in favor of it back in the day but now I’m not so sure because the times they are a changing.

      • Bruce B.

        Yeah, this is me too. I thought it was a good idea. Now I don’t. What’s changed is seeing what my enemies have chosen to do with it. I make that kind of adjustment all the time; this isn’t remarkable or particularly stressful to me. (Not as happy, admittedly, as when I get to say “OK, this thing I feared hasn’t come to pass.”)

        • rea

          It’s not exactly a problem with the statute–it’s a problem with asinine Republican judges.

    • Barry_D

      “…a bill that, private torts provision aside, isn’t that different from something that once passed the house unanimously and the senate with 97 votes…”

      The argument is that if we ignore the differences then it isn’t that different

      There are two levels of BS here.

  • Steve LaBonne

    I think there are two simple principles that between them pretty much cover what is a legitimate accommodation of religion.

    1) The practice in question is a matter of personal observance (eg. wearing a beard) rather than of treatment of others of whom one disapproves.

    2) The practice in question is that of a minority which needs protection from the majority.

    Indiana-style laws seriously violate both of these principles. As does the Supremes’ lawless rewriting of the federal RFRA.

    • rea

      There’s also a related point that depends on context, and that I’m not sure how to express except by example–there’s a law against religious discrimination in employment. If you are hiring, for example, a preacher, freedom of religion trumps the general anti-discrimination principle–the Baptists can require their minister to be a Baptist. But that exception is narrow–the Baptists don’t get to require their janitor to be a Baptist.

      • humanoid.panda

        I’d put it otherwise: if, for purity’s sake, baptists can only trust baptists to clean their Churches, it’s their right. But if they are hiring non-Baptist janitors, they can’t demand that they follow baptist teachings.

        • DrDick

          Exactly.

        • Aimai

          Is that really true, though? If they hire non baptist janitors they are still entitled to set the terms of the employment while the person is working as a janitor: no drinking and no dancing!

          • DocAmazing

            I don’t know; I like the idea of a dancing janitor.

          • erick

            sure, but the key phrase is “while they are working as a janitor” they can’t ban them from dancing or drinking while they are off the clock

            • MAJeff

              But, Catholic schools have fired teachers for getting married off the clock.

              • rea

                Back before Smith, this was the subject of considerable litigation. There’s a better argument that teachers are part of the core than janitors, depending on how the school frames its religious mission.

              • Colleen

                Also, Catholic schools have fired teachers for getting fertility treatments.

                I always thought the preferential status of religion in America would be destroyed by corporations (like Monsanto) claiming they were religions to avoid taxes. At least now it looks like religions will eventually lose all legal protections and exceptions because religious corporations destroyed them. To me this is a more fair and just outcome.

          • SgtGymBunny

            I grew up in southern Free Will Baptist country, and I will testify that I have never met a baptist who was above dropping it likes it hot…while IN church, mind you. They called ’em “praise breaks” or “shouting”.

            • SgtGymBunny

              My mother was/is a church pianist. She often provides the musical accompaniment for such episodes.

            • tsam

              Normal at church, crazy in a restaurant. Social norms–how do they fucking work?

              • DrDick

                Don’t ask the Talibangelicals or rightwingers generally.

            • David Allan Poe

              It depends on the Baptists. I grew up bog-standard Southern Baptist Convention. The wildest things ever got was maybe some of the men would go a little low and some of the women would go a little high while singing “Just As I Am” on the altar calls.

              Now and then an extra-vociferous “Amen”, if the preacher made a real good point about Hell or liberals.

              • SgtGymBunny

                You were in polite company then. At the churches I grew up in, it was guaranteed that services would be interrupted for a 15-minute “shout” session–and it would always be the usual offenders every Sunday: one of the elderly Mothers, who was on a walker; the bishop’s wife; and this curiously flamboyant man usher, who broke out in sprints around the pews one memorable Sunday. Regular performance artists, I tell you.

    • DrDick

      I would argue that religious exemptions are allowable only when the laws prohibit or penalize core practices of the religion, regardless of whether it is a minority or majority religion. The examples djw gives in the OP are good examples. While no Catholic should be forced to use birth control or have an abortion (this also holds for other religious groups where this is official doctrine), but they have no right to limit the ability of others to do so. I firmly believe that all religious bodies should be taxed, though under the general rules for nonprofits. Likewise, if your religious beliefs conflict with the normal practice of your business, you need to change professions.

      • Steve LaBonne

        I completely agree about taxes. Churches should have to register as 401(3)c organization to get tax benefits, and should get all and only the benefits that secular nonprofits get. I’ve never understood how special goodies for religious organizations are supposed to be consistent with the First Amendment. I mean, I like my (UU) minister a lot but why should he get a special housing exemption? I would be happy to increase my pledge a bit to make up for the loss to him.

      • Aimai

        I guess I want to bring up another point, which DrDick’s comment raises for me. This comes from having worked in South Asia where what are called “personal laws” create a carve out for the religion of a given community.

        Dr. Dick says

        “While no Catholic should be forced to use birth control or have an abortion (this also holds for other religious groups where this is official doctrine), but they have no right to limit the ability of others to do so.”

        And I agree with this (naturally! We are both anthropologists). But it doesn’t seem to me to go far enough, or to get to the real issue. The real goal of a lot of this religious huffing and puffing is not merely directed at outsiders: it is directed at creating and maintaining the religious community by circumscribing what can be taught/learned, experienced, or desired by the children and the subordinate (women, junior men) in the community. If transmission of religious status were straightforward, and every child of every religious family were certain to grow up in that religion and stay true to its tenets, we wouldn’t be having this hysterical backlash against the feminists, or the gays, or public school.

        But its the peculiar nature of modern American evangelical life that modernity itself is seen as destroying the religious purity of the faith. That public schools, TV, music, gay people, feminists, sex, and abortion are all themselves enemies of the faithful. So the liberal perspective “if you don’t like abortion, don’t have one!” Just isn’t good enough for these people. Because they believe pretty firmly that this world’s temptations are probably strong enough to tear their children and their wives away from the true path. Its not enough to suggest to the flock that if you do X or Y you will go to hell. You actually pretty much need some level of isolation or communal or governmental support to prevent your membership from wandering off in search of something different from what you are promising them.

        So a religious freedom law that assumes that religious acts are 1) individual and 2) freely chosen is going to run afoul of the need of these religious communities to basically impress their own membership and keep them from freely choosing their own way.

        • djw

          : it is directed at creating and maintaining the religious community by circumscribing what can be taught/learned, experienced, or desired by the children and the subordinate (women, junior men) in the community. If transmission of religious status were straightforward, and every child of every religious family were certain to grow up in that religion and stay true to its tenets, we wouldn’t be having this hysterical backlash against the feminists, or the gays, or public school.

          Yes. This is absolutely why I’m most squeamish about cases that involve degree of control over children. (I struggle a great deal with Yoder for this reason.)

        • DrDick

          Have to agree with this and think that is at the heart of these kinds of laws. I would even extend a personal exemption for doctors or pharmacists to not dispense birth control or perform abortions, but could never extend that to a business, so the pharmacy, medical practice, or hospital needs to have someone on staff who will. Companies are not people, regardless of what the Supreme Court says, and do not have religions, even if their owners do.

          • Lee Rudolph

            Of course companies have religion: regardless of what their owners’ religion is or isn’t, companies worship Moloch.

            • I haven’t posted this in a while.

              • Hogan

                Another day at the office.

                (heh. Jodhpurs.)

        • DocAmazing

          But its the peculiar nature of modern American evangelical life Boko Haram that modernity itself is seen as destroying the religious purity of the faith.

          Small suggestion for clarification.

          • DrDick

            How can you tell the difference? There is a reason that I like the “Talibagelical” construction.

            • MAJeff

              Back when I was living in MN, I used to refer to the theocrats there as the Lutheran Taliban.

      • Joe_JP

        Your “core practices” rule makes some degree of sense (if somewhat hard to apply) but as applied here seems to be more of an “to limit the ability of others” rule. The consistent nonprofits taxation rule seems pretty logical. Not sure how much it isn’t applied. Pastors get a special housing exemption? Okay. Don’t certain people get them for non-religious reasons too?

        • drkrick

          There are rules about how those exemptions and allowances are taxed that are unique for clergy. At our church’s annual business meeting every year, the finance or staff/parish chair has to explain why so little of the pastor’s compensation is designated as salary (taxable) and so much as various allowances (non-taxable). If my job specified part of my compensation as a housing allowance, I’d still pay taxes on it.

    • joe from Lowell

      2) The practice in question is that of a minority which needs protection from the majority.

      I so totally don’t want legislatures or executive agencies draw up lists of which religions are big enough to infringe upon. That sounds like a terrible idea.

      • Steve LaBonne

        I think you’re missing the point. Who has the power to “infringe on” a powerful majority, as evangelical Christians are in many parts of the country?

        • Joe_JP

          Federal anti-discrimination laws apply in communities where a majority given their druthers wouldn’t follow them.

        • TribalistMeathead

          That still sounds like a terrible idea.

          • Steve LaBonne

            I wouldn’t support it being written into legislation either; that would be too rigid. But it should be something considered by judges as to whether there really is a significant burden.

        • joe from Lowell

          I think you’re missing quite a bit of history; today’s majority is tomorrow’s minority. Or, today’s majority gets to call itself today’s minority, while deciding that today’s minority doesn’t somehow qualify.

          So, we don’t pick and choose. Everybody, like the end of Blazing Saddles.

          BTW, did you mean to say up above that the government should be allowed to infringe on individual, personal religious observance? Or did you not really mean that?

  • “The personal, faith-based nature of religious conviction makes it clearly inappropriate for the state to question the sincerity of the professed belief, even when that insincerity is obvious and barely concealed ..”

    In the days of conscript armies, didn’t states routinely make such judgements when assessing conscientious objections to military service? Lifelong Quakers were let off, draftees who just objected to the particular war on offer usually were not.

    One obvious rejoinder in the Hobby Lobby case was the complete lack of evidence of a religious doctrine – not a personal whim or policy choice distantly informed by general religious views – requiring an employer to offer health insurance when there is a perfectly good alternative (the exchanges). If there was no such obligation, the case was moot. Religion isn’t IMHO individual belief, it’s the shared and articulated belief of a group.

    • Bruce B.

      That was my take, too, James: “Right, okay, show me the ways in which you have been practicing this doctrine hitherto.”

    • Barry_D

      “The personal, faith-based nature of religious conviction makes it clearly inappropriate for the state to question the sincerity of the professed belief, even when that insincerity is obvious and barely concealed ..”

      And note that the SCOTUS has no problem whatsoever doing that in the case which caused the original RFRA, with some of the same judges.

      And such judicial evaluations of religious beliefs haven’t been banned by SCOTUS (as far as I know).

  • Todd

    I’d say that the proponents of these laws see them as framed by religious liberties and legal rights. I think most everyone else sees them as bills of attainder against LGBT citizens.

    • Barry_D

      “I’d say that the proponents of these laws see them as framed by religious liberties and legal rights.”

      In one of these states, when asked to add a clause expressly stating that such a law did not authorize discrimination, the sponsor stated that this would defeat the whole purpose.

      In Indian, when Pence signed the bill in a private ceremony, three of the few people there were prominent anti-gay activists.

      These guys do indeed see it as an anti-gay bill.

  • ChrisTS

    We must keep in mind that the Indiana law was also intended to allow discrimination against women – specifically, our right to fill prescriptions for contraception, to get abortions, etc.

    I really think one reason Pence was so taken off guard – apart from living in a bubble – is that he did not foresee everyone focusing so much on the LGBT part.

    • DocAmazing

      This. Thisthisthis. Remember, this is Indiana, which jailed a woman for not having a good explanation for a miscarriage.

      The LGBT part was the most obvious, only because we’ve become so inured to the ongoing repression of women.

      • Steve LaBonne

        I was very sorry to see how wall to wall coverage of the backlash over the Religious Bigotry Sanctification Act completely swamped coverage of the truly horrifying miscarriage story.

      • J. Otto Pohl

        Maybe, but I think the idea of denying gay people the right to sit at a lunch counter looked too familiar to older forms of discrimination that are no longer tolerated in most of the US to many Americans. Denial of the right to have an abortion has an entirely different political ascetic. A cafe denying gay people service because they are gay looks bad in a different and for many people worse way than the denial of reproductive rights. I am not saying it necessarily is worse, but I can easily see how it easier to show it in a negative light.

        • TribalistMeathead

          Sadly, I’ve heard a lot of screaming about businesses having a fundamental right to discriminate against anyone. If this is actually making people think of Jim Crow-era lunch counters, they’re immediately dismissing the comparison based on the steadfast belief that you can choose to be gay, but you can’t choose to be black.

          • rea

            Except that the law as written would protect racial discrimination as well.

            • MAJeff

              For some of them, all non-discrimination statutes, including the CRA, are the target.

          • drkrick

            They believe that you choose to be a right wing Christian or not, too. Why do they claim that “choice” takes precedence?

          • Weed Atman

            The contrarians and libertarians (is there a difference?) always like to say “but why wud u want 2 giv them ur bizniz if they dont lyk u lol?” They even seem to think that all businesses should be free to discriminate even if they’re common carriers or local monopolies, which is lunacy.

            • Barry_D

              For the supporters of these bills, overturning the civil rights laws is a feature, not a bug

              • joe from Lowell

                Yes, this. Let’s not forget Rand Paul’s “gaffe” about the Civil Rights Act.

                These people oppose the concept of nondiscrimination in public accommodations as enforceable public policy. They oppose, even apart from any particular desire to discriminate against some group, intruding on the liberty of some job-creator like that.

        • JL

          On the other hand, in most states, gay people (and bi people, and other queer people, and trans people) can perfectly legally be denied the right to sit at a lunch counter (or fired or denied housing because they’re LGBTQ), and this gets startlingly little wider public outrage, or even awareness, despite the attempts of various LGBTQ advocacy groups to publicize that LGBTQ people aren’t protected by these basic laws. And that this kind of discrimination happens.

      • ChrisTS

        Thanks. And Pence’s fix of providing protected status for LGBT is not going to resolve these other problems.

        • The Rs don’t believe their female voters will abandon them over this but they are afraid of loud and press-laden boycotts. Where’s Lysistrata when we need her?

  • Weed Atman

    Because I’m a masochist, I’ve been reading Rod Dreher’s steady stream of histrionic posts about shit like the bigotry of “extreme” tolerance, and having to “go back into the Christian closet.” I thought DoubtThat was the go-to blithering idiot for these matters, but Dreher’s fighting him hard for the honor of Chief Dumbass. I’m talking “so stupid it made my head hurt” territory.

    • humanoid.panda

      Dreher is a sophist. Dreher, to his own detriment, is honest.

      • Hogan

        Should one of those be Douthat?

        • Aimai

          Either way its like some kind of awful Zen Koan.

        • jim, some guy in iowa

          i’m pretty sure neither should be either but we’re stuck with both

          • I’ll go one step further. Nothing should ever be Douthat.

        • Douthat weighed in on this with exactly the inanities you’d expect. I have problems with Yoder too, but I think it can be distinguished. If you want to be a bigot in your house, or in your church there isn’t much anyone can do to stop you. Sooner or later society will change around you, or you will die, and then the arc of history will continue its curve. In the meanwhile, your “sincerely held religious beliefs” , founded as they are in interpretations of stuff that’s been translated to suit cultural norms centuries old, and based on social norms prevalent in a culture that was largely agrarian, polygamous, and theocratic thousands of years ago have no place in our culture today except to the extent that those beliefs encourage you to be a decent person. Seriously, what part of ‘render unto Caesar” is so hard to understand? It is embarrassing that the Christian religions are leading the pack on this issue.

          • JR in WV

            The formal Christian religions of today are mostly less Christian that some bums on Skid Row standing around a barrel fire sharing a bottle of whiskey.

            They cherry pick rules from a thousand pages of rules, and ignore all the rules about charity, debt forgiveness, render unto (local current king) being good to the Samaritan, the camel passing through the eye of the needle, and the rich man getting into heaven.

            All that gets tossed into the dumpster, and the rich contributor gets to be in charge of all the committees of the church.

            • Just_Dropping_By

              Minor nitpick: It was the Samaritan who was doing good works, rather than who was the beneficiary of good works.

              • Hogan

                Thanks for pointing that out. It matters.

                • Lee Rudolph

                  It also matters that the Samaritans were a rather despised ethno-religious group. (They still exist; I’m not sure who despises them now, but surely someone must!)

    • Murc

      Because I’m a masochist, I’ve been reading Rod Dreher’s steady stream of histrionic posts about shit like the bigotry of “extreme” tolerance, and having to “go back into the Christian closet.”

      Dreher used to baffle me until I realized that it was an integral part of his faith to be able to express it publicly without pushback. He makes a lot more sense if you take that as a given.

      It’s a vile given with no place in modern society, but it does make him a lot more logically coherent.

    • djw

      Me too. (Why? WHY?) I thought about a mocking reference/link to Dreher’s freakout but he really doesn’t need the attention. What he’s doing right now isn’t fit for public consumption.

      • Weed Atman

        I’ve hate-read him for a long time, and he’s been shrill for years, but it seems like he’s blown some sort of gasket here. The past few days have been a Sullivan-esque breakdown.

        I got back into him after he posted about re-reading Dante, and has been shilling his new book on it. I’m definitely not going to read his book, but I’ve been (slowly) making my way through Inferno thanks to him. As a lapsed Catholic, I find his posts on what reading Dante meant to him spiritually very interesting.

        So unlike other people of his ilk like Douthat, he’s actually a good writer (albeit one who single-handedly disproves my AP Composition teacher’s thesis that “good writing = clear thinking”) and has turned me on to at least a couple of interesting works of literature (I seem to remember a few interesting posts on literature).

  • Frank Wilhoit

    It’s not about religion. It’s not about the targets of discrimination, or the rationales for discrimination.

    It’s about making business unaccountable.

    That’s it and that’s all.

    The pretexts are merely fungible and chosen for topical advantage. In this case, take religion off the table and there would be an immediate pivot to some other pretext.

    • ChrisTS

      There is probably significant truth to this, as well as the bigotry.

      Another element is playing to christian victim hood.

    • some other pretext

      We already know what it is. The “big government will make me go galt” crap from 2009.

  • Xenos

    When I was practicing law I defended an evangelical church in a case where it was being oppressed by liberals. The church wanted to do renovations, but got in trouble because the great big baptismal pool installed in the wall of the sanctuary, one floor up, did not have wheelchair access. The local ADA compliance committee, run by Unitarian who really disliked these evangelicals, ruled that they had to rip out the wall and install an ADA-compliant elevator up one floor, and then have a long ramp going into the baptismal pool. There would need to be some sort of cantilevered swing, like you see at the Y, to move the handicapped person being dunked over the pool.

    We appealed the case to the superior court, and in a pretrial mediation the state ADA commissioner’s office decided to overrule the local commission and grant a waiver.

    That is, to my knowledge, the only case of oppression right-wingers have by suffered from certifiable liberals. I had suspected it to be a prank at first, but this Unitarian just felt like giving the fundies a hard time. In the end, justice prevailed without invoking a religious freedom law.

    • Steve LaBonne

      That asshole is in the wrong religion. I suspect that sooner or later he’s worn out his welcome in his own congregation.

      • TribalistMeathead

        They probably had a bone to pick with one specific fundie or fundies.

        • Steve LaBonne

          That’s very uncool by UU standards though. We’re tolerant, arguably sometimes to a fault, but I’d rather err on that side.

          • Srsly Dad Y

            It’s been an hour, so I’ll post the joke that UUs are free to choose which deity not to believe in.

            • ChrisTS

              It’s basically “no more than one at a time, but we’ll let you fudge on that, too.”

            • efgoldman

              It’s been an hour, so I’ll post the joke that UUs are free to choose which deity not to believe in.

              Oldest UU joke:
              “Did you hear about the Klan and the new UU family in town? They burned a question mark on their lawn.

          • TribalistMeathead

            My parents were UUs for many years and “tolerant to a fault” was as good a description of the churches they attended as any.

          • ChrisTS

            Hell, my UU church growing up gave special services for those who wanted to take communion.

            • Steve LaBonne

              I just came back from singing at the Tenebrae service at my church, which indeed closed with a communion. I found it quite moving- as I did our Pagan winter solstice service. (I’m a pretty “hard” atheist myself.) I don’t suppose I can blame non-UUs who find that all a bit confusing. ;)

    • MAJeff

      If disabled people, or their parents, hadn’t sinned, they wouldn’t be disabled. To force the church to be ADA compliant would force it to cooperate with sin.

      How’d I do?

      • Aimai

        Yeah, I don’t see how this is just at all. If the Fundie church wants to come out and say that as a matter of principle they don’t accept crippled or aged people who want to be baptized, and that they are opposed to having crippled or aged family members at the baptisms, I say go for it and ask for the exemption. But how is this the fault of an overzealous regulator? The reason the ADA exists is to make life easier for elderly people, people in wheelchairs, and families with strollers.

        • Scott P.

          Should a disabled person want to be baptized, I suspect a way would be found (especially since it’s a one-time thing). Such as carrying them upstairs.

          • joe from Lowell

            That is usually not an acceptable answer most of the time, but in the context of a baptism…

            • Hogan

              Unless you’re getting baptized every week.

              • joe from Lowell

                UR NOT DOIN IT RITE!

      • TribalistMeathead

        At sounding like an asshole? 10/10

        • MAJeff

          So, I got the fundamentalist perspective exactly right.

          • TribalistMeathead

            I would say the most likely scenario is that the church had a workaround that worked fine and was certainly preferable to expensive renovations, but I don’t want to step on your opportunity to audition to be one of Bill Maher’s writers.

        • tsam

          Dhats da joke

          • DocAmazing

            Is the fountain at Lourdes ADA compliant?

            • efgoldman

              Is the fountain at Lourdes ADA compliant?

              If they moved it to say, Chicago, it would gave to be.

            • Only the entrance side.

              • Hogan

                Oh well played.

    • Hmm. Interesting. This seems more obvious to me than the case about expansion discussed above, but mostly because of your framing of the motivation of the compliance committee member.

      I mean, is ADA compliance generally something that should be exempted? Why exactly? Is it this person’s *motive* that made the difference?

      • matt w

        I thought that point of the story was that it wasn’t a religious freedom exemption issue at all–the compliance board was demanding an unreasonable accommodation, and it would’ve gone down the same way if it was a pizza parlor that was getting screwed over by a compliance board headed by the local burger mogul. Though I’m not sure why the pizza parlor would have a dunking pool.

        (I’m not making any judgment as to whether the accommodation was unreasonable, just that that’s how I saw Xenos as presenting it.)

        • He says they were ultimately granted a waiver which suggests that it wasn’t wholely unreasonable to impose the requirement.

          • matt w

            Maybe “unreasonable” isn’t exactly the right word–something more like “infeasible”? I got the impression that ADA waivers were pretty common and tended to take into account factors like the cost and feasibility of installing a cantilevered swing.

            Here’s a relatively random example of an ADA waiver I found:

            Northwood University Student
            Life Center, 2600 North Military Trail, West
            Palm Beach:
            Mr. James Howells and Mr. David L
            uhrsen represented the applicant
            which requested a waiver from providing vertical
            to all rows of retr
            actable bleachers in
            the gymnasium/locker room that is part
            of a new, $5,760,000 project which also includes
            a book store, classrooms and administrative offices. The two bleacher systems in
            question contain 400 seats each requiring a to
            tal of 11 accessible seats. The plans
            indicated there are four recessed areas to ac
            commodate wheelchair users. The applicant
            contended it would cost an additional
            $15,000-20,000 to provide a
            portable wheelchair
            lift so that all rows would be accessible,
            but submitted no costs to substantiate the
            estimate. Mr. Howells advised the Counc
            il the recessed areas were designed to
            accommodate 12 wheelchairs. Dr. Harding moved to recommend granting the waiver,
            provided all appropriate comp
            anion seats are also included. Ms. Ottman seconded the
            motion and the vote of the Council was unanim
            ous in favor of it. The reason for the
            recommendation was technical infeasibility.

            (And the one below that one mentions a three-year waiver in another secular case for “financial hardship” which basically means “it costs too much”–though the case there seems kind of sketchy to me.)

            That report does include a church trying on the religious freedom argument for an ADA waiver, and if I read the minutesese correctly getting told to get stuffed:

            Blessed Trinity Catholic Church, 4545 East Anderson Road, Orlando
            : Mr.
            Jose Barbosa represented the applicant which
            requested a waiver from providing vertical
            accessibility to the baptismal font of a new, $4,734 [sic] church. The building inspector is
            requiring handrails around the 27-inch deep ba
            ptismal pool, which will be used to baptize
            adults by immersion and infants and children by
            aspersion. He asserted that the building
            is not subject to the federal ADA requirements, nor the Florida Accessibility Code by
            virtue of its function as a re
            ligious facility. No cost es
            timates were submitted; however,
            Mr. Barbosa stated cost was not the issue, ra
            ther installation of ha
            ndrails would impede
            the liturgical rite of the sacrament of
            baptism. Ms. Ottman moved to recommend
            dismissing the application for lack of juri
            sdiction. Following a second by Mr. Long, the
            vote of the Council was in favor of the mo
            tion. Chairman Melick advised Mr. Barbosa
            that the handrail issue should be dealt w
            ith through the local building official.

            Anyway my point was that it seemed like Xenos was saying that there didn’t need to be any kind of religious liberty clause invoked to deal with this case, it was just dealt with the way any other ADA requirement that the board judged to be overly burdensome would be dealt with.

            • I think you’re right and I misread the sarcasm. Thanks for the clarification and additional detail!

  • Murc

    freedom of religion at its core is a non-negotiable requirement for any society wishing to plausibly call itself a liberal democracy. What is the core? The right to join and form religious organizations, worship freely, and speak openly about one’s religion in the larger society, regardless of the degree of overlap between the content of these religious views and the mainstream of official state ideologies.

    I’m going to say I think that you have misplaced “worship freely” in the “core” rather than in “negotiable,” especially if you’re combining it with “regardless of the degree of overlap between the content of these religious views and the mainstream official state ideologies.”

    Liberal democracies are supposed to be pluralistic, tolerant societies. That, indeed, is part of the official state ideology of just about every liberal democracy. But there are plenty of strains of genuine, closely-held religious beliefs in which actively oppressing, harassing, or destroying their fellow citizens are integral parts of worshipping freely.

    The key word there is “actively.” Many people equate “worship freely” with “a big group of people gather in one place and cooperatively offer up prayers and worship.” Other traditional associations with worshipping freely is openly displaying your religious iconography (a church with a cross, a mosque with a crescent moon) and being able to pray in the privacy of your own home. It has a lot of closely held association with freedom of speech.

    But for a lot of religious groups it doesn’t stop there. This is by no means limited just to them, but I’m thinking of certain strains of Evangelical Protestantism in particular, which demand of their adherents that they vigorously witness (and ignore the objections and preferences of those being witnessed to whenever possible) and actively drive entire categories of sinners from civil society, in the form of refusing to accommodate them in places of public accommodation and to deny them basic services available to others.

    That freedom of worship is diametrically opposed to the practice of liberal democracy, and also is expressed in ways that actively oppress others. It should, absolutely, be a subject for negotiation and deliberation, and not regarded as something “core” to liberal democracy.

    • djw

      Fair enough; I meant ‘worship’ in the more or less traditional sense of the word.

      • rea

        Traditionally, some churches worship by cutting out members’ hearts on top of pyramids, so there is a boundary there somewhere.

        • drkrick

          Given that we’re talking about the territory of what’s currently the United States, that’s not really a relevant traditional practice at all. I’m sure Mexican practice in this area looks quite different as a result of their particular history between the fall of the Aztecs and now.

          • Aimai

            People move around–that’s the whole point of the reality of religion in a pluralistic society with in migration and/or conversion. Santeria has brought goat sacrifice to our shores. The migration of any religious community is going to bring their religion and their culture here. In fact this is particularly a problem where the treatment of children or the ill or other dependents is concerned.

            • Weed Atman

              One of my favorite things to do in Miami was to drop off my abuelo to play dominos in Little Havana, and walk with my father to mainline some thimble sized Cuban coffee and walk into the Santeria botánicas. Not a bad way to spend an afternoon if you’re at all curious about other cultures.

          • rea

            One of the principles of how these laws work is that courts don’t second-guess the sincerity of religious belief. There are plenty of people who think “peyote is a sacrament” is a scam, but that argument isn’t really allowed.

            • ChrisTS

              Courts do second guess sincerity of belief, in some cases. Those clowns who thought they could avoid paying taxes by declaring themselves churches got schooled hard.

      • Murc

        Differing perceptions in what it means to worship vis-à-vis the traditional (and very, very Anglo-Saxon) sense of the word, and what it means in many modern contexts, could probably fuel a whole series of posts. :)

        I brought it up because I think this is one of those really important things that is very near the heart of America’s ongoing religious brouhaha, and not using the same term in the same way has… well, at best, you get legitimate misunderstandings. I’ve seen hardcore fundies say “My right to worship freely is being trampled upon!” and, well, they mean it; from their perspective the oppressive actions they undertake are overt acts of worship, necessary for them to live faithful lives.

        But people who when they hear “worship” think of a congregation kneeling down, praying, or at most listening to a thunderous sermon from the pulpit, get confused. Some of them think that there is an actual movement afoot to haul people bodily from said congregation and destroy the church. Because for them, that’s what “not being able to worship freely” means.

        There’s also, of course, deliberate mendacity involved. You see a lot of conservative commentators make reference to the right to free worship/free practice of religion, because they know that to a lot of people they go right to the traditional meaning and don’t have a clue about the modern context.

        • Weed Atman

          and not using the same term in the same way has… well, at best, you get legitimate misunderstandings.

          Good point. It’s always best practice to define/agree upon your terms at the outset of a debate, so no one can weasel out of an argument later.

        • efgoldman

          I’ve seen hardcore fundies say “My right to worship freely is being trampled upon!” and, well, they mean it

          How would they feel if someone started sacrificing virgins next door, as sincerely held religious belief.

          • DocAmazing

            You don’t have to go nearly that far. Just have an African-American man don a bowtie and offer to sell them a copy of The Final Call and watch all that religious freedom go right out a window.

  • Aimai

    I’ll come back and read the whole thread, and perhaps someone has said this already, but the modern incarnation of the RFRA (weaponized, as you’ve pointed out) is the logical extension of the percolation down of a kind of neo confederate “nullification” policy vis a vis what is seen as a hostile state. Added to the Protestant vision “every man a priest” you get “every man a legislator, Judge, Jury, and Executioner in his own home and his own business.” The power to determine who will be accorded full rights of citizenship–even of humanity–devolves, in this model–to the lowest level of society: the angry white male evangelical citizen (and there can be various permutations of the atomic basis).*

    Its no accident that we see the rise of these laws precisely at the moment that an angry, white, shrinking, soon to be former majority starts to see the chance for its own values prevailing slipping away. Previously individuals members of the right wing could assume that their values would become ascendant again eventually, or that the government was in their control, but since the election of Obama the writing is on the wall. Now that they know for a fact that the government composed of blacks, queers, and aborting lesbian women is going to demand equal treatment everywhere the revolt is on and the demand to extend the sphere of privacy and autonomy beyond the right wing body, to the right wing houeshold, and now to the right wing place of business and/or township is exploding outward. The only way to prevent Holder and Obama and whatever demonic females come after from infiltrating and controlling life-as-we-knew-it in the heartland is to authorize the right thinking individual to deterine for himself what laws will apply. Same as it ever was. No shirt, no shoes, no homo.

    *That is the monad or atom at the base of this, the free standing individual, can sometimes be a white male evaneglical, or an angry black republican, or an angry gun toting home schooling mother. But the impetus is the same: the notion of equality, comity, fraternity, and democracy stops at the individual’s doorstep whether that is physical, domestic, or corporate.

    • carolannie

      Yes

    • witlesschum

      Agree with all of this and I’ll add, it’s also no accident that freedom of religion arguments like this come out of the same quarters that sometimes argue that anyone criticizing them is curtailing their free speech rights.

      We all laugh and make fun when they do that or they refer to themselves as Real Americans and think of it as purely a rhetorical move, but they at least in a sense mean it. It’s really part of their religion and/or ideology that they or their chosen representatives are supposed to be the ones guiding society in its properly godly directions. Can’t put that belief into practice in any way and live in a free, tolerant society where you accept that you’re bound by the decisions of the majority.

    • Bruce B.

      Beautifully thought and expressed.

  • heckblazer

    I imagine the logical extreme of weaponizing religious exemptions would be the crap the Church of Scientology pulls (Why yes, I did just see Going Clear. How did you know?). In Headley v. Scientology they successfully pursued a ministerial exception to the Trafficking Victims Protection Act.

    • Aimai

      I’d like to see a federal law forcing religions that use their membership as labor to set up escrow accounts into which money is paid just like the laws protecting child actors. There’s absolutely no reason that any person should be left destitute at the end of their membership in a given religious community–and this should apply to Nuns and Priests as well. You should be unable to agree to give away security.

  • Nick never Nick

    With regard to the Catholic comment on the Hobby Lobby case — I think that choosing a Mennonite business was very clever. Firstly, the Mennonites are well known as a somewhat radical branch of Protestantism, that frequently rejects certain aspects of the modern state: taxes, the draft, and receiving social security are all examples, and I believe other Anabaptists reject insurance as well. Secondly, Mennonites are incorrectly considered to sway ‘left’ on the political spectrum, and often they do; but there is a large number of them that have been swept up into the basically conservative movement of mainstream Evangelical Christianity. Finally, Mennonites can point to definite examples of political persecution that are not imagined: many of them were interned in WWII, and I believe that WWI was an even more hostile climate (at the time they were pacifists who still spoke German), though I don’t know about formal measures.

    In other words, by choosing a Mennonite business, the plaintiffs got a case about someone who belonged to a highly distinct religious minority, who could very plausibly be considered to object to health insurance, and with a theological reason to shun engagement with the state.

    • J. Otto Pohl

      There are lots of different varieties of Mennonites including the Amish who were a fundamentalist break off from them. But, almost all of them are pacifist and reject oaths. I am not sure how one would say that Mennonites sway left politically. One of the largest collection of Mennonite settlements in the world was in the Russian Empire and they were strongly anti-communist after the 1917 Revolution. They did suffer persecution during WWII, but it was mostly on the basis of being racially German. In WWII those that were in western Ukraine fled to Germany. Those further east were deported to Kazakhstan and placed under special settlementment restrictions and mobilized into the labor army. Those already living in Kazakhstan, Siberia, and Central Asia were also mobilized into the labor army and placed under the special settlement regime after WWII.

      http://jpohl.blogspot.com/2006/06/mennonites.html

      • Nick never Nick

        Regarding persecution, I was actually talking about the United States. It wasn’t organized, in the sense that Mennonite communities were rounded up and shipped off; but Mennonites were drafted, and if they refused conscription, they were interned at Army camps with socialists and other ne’er-do-wells. This incarceration lasted for quite some time after the war ended.

        As for leaning left, there are many Mennonite churches that do, in fact, do that, and support causes that involve immigrants, health care, etc. This, and the fact that they are a Peace Church, makes many people associate them with being politically left, which is really not the case in rural Mennonite communities.

        • J. Otto Pohl

          The Mennonites are by all definitions right wingers. They were and are highly religious traditionalists who owned a lot of private property in the Russian Empire and still do in places like Canada, Bolivia, and Paraguay. The Left were the militaristic and atheistic Leninists in the USSR that sought to annihilate the Mennonite communities. In part for being religious (right wing), in part for being capitalist land owners (right wing), and in part for being racially German (associated by blood with the Nazi regime). A literal interpretation of the New Testament to help the poor and sick is not at all the same as Marxist-Leninist socialism. The Mennonites have a long tradition of opposing left wing regimes, most notably the USSR. But, they were also one of the first groups to assist the Palestinian refugees displaced by Israel.

          • Nick never Nick

            I find your discussion bizarre. Owning private property doesn’t make someone a right-winger; and it’s silly to think that any category like that would apply equally well to a community in both the USSR and Canada, just as it’s silly to call the USSR a ‘left-wing’ regime, when ‘left-wing’ refers to a position in Western political democracies. Many North American Mennonite communities and churches, which my first comment referred to, have a long tradition of being socially progressive in a variety of ways.

            • J. Otto Pohl

              It is not silly to call the USSR a left-wing regime and the claim that left wing only refers to a Western democracies is rejected by the vast majority of scholars in this and the last century. Almost any description of basic politics or history would describe state socialism such as existed in the USSR as left wing. Socialists and other left wingers rejected private ownership of property especially the large scale private ownership of land such as the Mennonites had in Ukraine. That is why the communists confiscated most of it under Lenin. That is also why the current government of Bolivia under Morales has been confiscating Mennonite land. A very large number of the Mennonites in Canada have origins in the Russian Empire and USSR and its successor states including quite a few recent immigrants. The differences between various Mennonite groups are not that fundamentally different that you can claim those in Canada were somehow left wingers despite being highly religious, strongly traditionalist, and large scale capitalist land owners, all things militantly opposed by leftists. Why do you think the Mennonites have been in conflict with leftwingers like Lenin, Stalin, and Morales for so long? It isn’t because Mennonites are leftists.

              • Nick never Nick

                Ok, Ok, you’re the expert. If you want to define right-wing as disagreeing with Stalin, then the Mennonites are right-wing.

                • Hogan

                  Along with Trotsky.

              • Hogan

                See my king all dressed in red?
                Iko iko wan day
                Betcha five dollars he’ll kill you dead
                Chock-a-mo fee na nay

                • Linnaeus

                  Hey now!

                • rea

                  See my king all dressed in green?
                  Iko iko wan day
                  He’s not a man, he’s a loving machine
                  Chock-a-mo fee na nay

  • Joe_JP

    They change them for various reasons including financial and changing demographics.

    reply: Which are not religious reasons, yes.

    Why not? Religions try to promote religious messages and best deal with the needs of religious communities which in part is a matter of allotting parishes to religious needs of populations.

    This is a “religious” reason. The bottom line is that people don’t think they should get special dispensation. The 1A however does single out free exercise of “religion,” so some special dispensation is far from surprising.

    • Aimai

      Its really not a “religious” reason–needing to witness is a “religious” reason because it is actually part of a specific religious dogma. Needing to minister to the people of a specific ethnic or caste community and a specific locale can be a religious reason because its actually religiously enjoined on the believer. I need my temple to be five sided is a religious issue. But “I need a bigger space” is a demographic issue, not a religious one.

      • Joe_JP

        A longstanding church is not totally fungible — if the religious community is not able to be together in it for religious ceremonies it is not merely a “demographic” issue to ask them to separate. It also is not merely an “educational” issue to determine how best to educate religious doctrine. It is religious education.

      • efgoldman

        But “I need a bigger space” is a demographic issue, not a religious one.

        Aimai, I’m sure you’ve seen the Romney family’s monstrosity of a Mormon church on Belmont Hill. [Officially not “theirs”, but that’s who’s money was behind it.] Its construction violated existing zoning laws for building size, parking spaces, traffic, etc. The case went to court, and the church won. I don’t remember if it’s in the MA constitution (I think so) or a state statute, but basically the court said: it’s their land, they can do what they want.

        • Aimai

          Yes. I’m not disagreeing that a church will argue that everything they want to do is religiously necessary and interfereing with it is interferening with religious practice. And I’m not arguing that they haven’t gotten away with murder over it. But I’m arguing that there are plenty of laws and regulations which in no way interfere with religious practice, or which should not be abrogated merely on church say so (such as fire regulations, the ADA, etc…).If religious communities want to be part of our democracy they have to give up dreams of theocracy and dreams of domination. If they don’t like it, they can move.

    • Hogan

      The bottom line is that people don’t think they should get special dispensation. The 1A however does single out free exercise of “religion,” so some special dispensation is far from surprising.

      You keep not wanting to talk about this particular case. “Religious” “reasons,” “special dispensation” (an oddly appropriate idiom). This is a specific church making a specific argument that is justified by nothing in their actual religious practice over many hundreds of years. If you want to argue that any church should get an automatic exemption from historic preservation regulations just for the asking, make that argument; don’t just soar up into the ether and wave abstractions around.

      • Joe_JP

        There is an “actual religious practice” reason for the claim made here. For hundreds of years, altering a local church would be done if it was seen as the best way to address the religious needs of the people. This is especially the case if special longstanding holy spaces were involved. Your insistence to use hyperbole is noted.

        Since I’m not making a claim that “just for asking” religions should get “automatic exemptions” in all cases, this doesn’t really even matter on some level. Again, if they really ‘really’ had a religious reason, the critics here STILL would not want to treat them special. See, e.g., the comments on tax exemptions.

        I talked about the case since it is a seminal Supreme Court case in this area addressed in the OP. In reply, my comment was disputed. I replied. Why this is an issue is unclear. If you want to cite some other case, be my guest.

        • Steve LaBonne

          Your argument proves far too much- businesses also could once upon a time expand as they wished without having to worry about zoning laws. There is no reason why churches should be treated differently. The point of religious freedom is the protection of freedom of conscience, not accommodation of the convenience of religious organizations. Including the one I belong to.

        • Hogan

          Your insistence to use hyperbole is noted.

          Fair enough, and I should not have expected that to escape your notice.

          Again, if they really ‘really’ had a religious reason, the critics here STILL would not want to treat them special. See, e.g., the comments on tax exemptions.

          On the other hand, this is a provocation–there are critics here who don’t accept the “no tax exemption” argument, and I’m one of them–and while I’m not proud that I allowed myself to be provoked, I’m not going to pretend that this line of argument was anything else.

  • tsam

    Zealots are stupid.

    Maybe we should put it this way: We don’t discriminate here, and neither do you. If you don’t like it, try harder to like it or shut the fuck up and deal with it.

  • dilan

    The personal, faith-based nature of religious conviction makes it clearly inappropriate for the state to question the sincerity of the professed belief, even when that insincerity is obvious and barely concealed

    This is where I think the legal system went off the rails.

    A claim that “I believe X” is a factual claim about your mental state, no different than “I did not know that it was a toy gun” or “I did not intend to defraud when I made the false statement”. There’s no reason whatsoever we shouldn’t litigate sincerity, and every reason we should.

    People asking for an exemption from the law are asking for something extraordinary. They are undermining the rule of law. They are saying “the law applies to you and not to me”. That’s not a form of relief that should be granted unless we are absolutely clear that it is a matter of uncontestable, non-negotiable belief.

    Hobby Lobby should have been rejected on sincerity grounds, and religious exemptions should be reserved for the small percentage of the population that truly lives their faith.

    • I really want to get to this position.

      But there’s two dimensions: Sincerity and centrality. (You blur these a bit in the last sentence.) I’d like both of these to be on the table so we can balance the burden on the adherent with the value of the thing they are being exempted from.

      But…that’s tricky and prone to abuse, I think, esp. for novel or minority religions.

      Which leads me to wonder why sincerely, strong religious beliefs and practices should be privileged over comparably sincere and strong non-religious beliefs and practices. Is lots of people’s commitment to the equality of women less significant and strong than other people’s commitment to their inequality? Should we privilege the latter because it has some sort of religious relation? Can I can an exemption to abortion restrictions on such strong beliefs (secularly or religiously tinged)?

      So, pretty clearly “freedom of religion” is a historical specific element of the liberal product because horribly illiberal things were done to control or suppress religion and religion played (plays) a huge role in a huge number of people’s forms of life. But, I kinda feel that we should be structuring liberal societies to be as maximal as it is practical to respecting and allowing the co-existence of all sorts of forms of life. Carving out religiously oriented ones as special is kinda weird, though perhaps no weirder than having to carve out special regard for forms of life involving people in oppressed groups.

      I guess the difference is that freedom of religious is used by historically oppressive as well as oppressed religious groups (though I suppose every religious everywhere has had persecuted moments).

      Maybe it’s just that freedom of religion only is inclusion of me in a negative way: It guarantees I won’t be compelled to do religious stuff I don’t want to do (i.e., all of it). Which is great! These exemptions seem to do more…but maybe this is just the distinction that djw is talking about. I don’t want anyone to suffer because of a clash of their religion and society (if possible) but I also don’t think their religious stuff is more important and worthy of regard as my non-relgious comparable stuff.

      • dilan

        Well, you ask several questions.

        But there’s two dimensions: Sincerity and centrality. (You blur these a bit in the last sentence.) I’d like both of these to be on the table so we can balance the burden on the adherent with the value of the thing they are being exempted from.

        Sincerity and centrality are actually closely correlated, and in my mind, both are required to get the exemption. The legal expression of this is the “substantial burden” test– for something to substantially burden your religious belief, and therefore be eligible for a RFRA exemption, it needs to be both something that you sincerely believe and something that is sufficiently central to your religion that no deviation is acceptable. I realize that’s not how the courts have interpreted it, but to me, that is what the words actually mean.

        Which leads me to wonder why sincerely, strong religious beliefs and practices should be privileged over comparably sincere and strong non-religious beliefs and practices.

        I can think of several reasons:

        1. The Constitution privileges religious freedom claims over claims of sincere non-religious objections to laws.

        2. There are slippery slope concerns, both with respect to sincerity and substance, if you allow anyone an exemption. A religion requirement ties it to a belief SYSTEM, which limits the number of exemption claims and makes them harder to fake. (Though again, that last point is ONLY true if we litigate sincerity.)

        3. Religions posit that there’s something more than personal offense involved in being required to fulfill an edict. The person could come into God’s disfavor, or be sent to hell or denied heaven, or whatever.

        4. Because of 3, a religious believer might be more likely to feel he or she has to disobey the law anyway if not granted the exemption.

        I also don’t think their religious stuff is more important and worthy of regard as my non-relgious comparable stuff

        The best way to do that, I think, is to litigate sincerity. Because then there will be very few religious exemptions granted, because very few people are actually sincere about their religious beliefs. (Yes, 90 percent of America is nominally Christian, but how many people actually assiduously follow restrictions on their conduct imposed by their alleged Christian faith? It’s a very low number.)

        To me, what religious exemptions are all about is the situation where someone truly believes that God commands her to do X and the government requires her to not do X. So in that narrow situation, we should grant the exemption unless there are compelling reasons why the government must nonetheless prevail. That rule would not result in a general privileging of religious belief, but a specific accommodation to a few people who truly are caught in a Hobson’s choice, and will therefore avoid the “religious preferences are more important than secular preferences” problem.

        • matt w

          Because then there will be very few religious exemptions granted, because very few people are actually sincere about their religious beliefs. (Yes, 90 percent of America is nominally Christian, but how many people actually assiduously follow restrictions on their conduct imposed by their alleged Christian faith? It’s a very low number.)

          That right there is the best argument against litigating sincerity. Because how are we to dititnguish “You don’t follow precept X so you are insincere” from “Your religion doesn’t actually require precept X”?

          • DocAmazing

            If it is a question of what a religion actually requires, many if not most religions have scriptures and theologians who can be consulted regarding the actual requirements.

            • This feels like it’s ultimately unworkable. Religious doctrine evolves and many religions have a personal relationship sort of line or ongoing revelation. So if a new prophet says something…what then? Theologians can say whatever they like and who’s to override them?

              • DocAmazing

                This is something that has driven me bugshit since childhood. I was raised Catholic (I got better), and part of my dad’s side is Jewish. I was exposed to two religions with long histories and traditions, written law and commentary, and parameters one could grapple with.

                Late in my childhood, my family leaves our urban neighborhood (where I have been growing up among various kinds of Christians, Jews, Muslims, Buddhists, agnostics and atheists) and moves to a rural area, where the predominant religion is do-it-yourself Protestantism–Church of God in Christ, Pentecostalist, Southern Baptist. No concept of Apostolic tradition; entire new churches were based on interpretations of one line of scripture. People who couldn’t find Jerusalem on a map were busy beating other people up for offending God by growing long hair. People who literally had no idea that Jesus was a Jew were busy dropping out-of-context quotes from Leviticus to defend their racial prejudices.

                No, I have no patience for “ongoing revelation”. When goofballs in Georgia are being quoted by the media as being against same-sex marriage but see no problem with specifically-Biblically-prohibited things like adultery and hold their position as The Word Of God despite being unable to assemble any kind of scriptural argument then it’s time to skip the “anyone can read the KJV and be a minister” crap and demand some kind of credentialling process for religious figures.

                • djw

                  I’m deeply sympathetic to what you’re saying here, but I can’t see how the state can say “you may think you follow theologian X about the proper interpretation of your religion, but you’re wrong: you really ought to be following theologian Y.” That just can’t work.

                • Steve LaBonne

                  To me the impossibility of the state being in that role is a very good argument for putting very tight limits on deference to religion. That way the fly-by-nighters don’t get to just flout the law whenever they feel like it.

                • I’m with djw: I really really want to go there.

                  But you can’t. There’s no way that we’d get non-absue and the more religious controversy in a society, the more abuse.

                  And, frankly, ALL religions are kooky and started out as wacky random bullshit. 1000 years from now, Scientology might be a majestic, sophisticated religion with a rich tradition of art, philosophy, and theology. The way that people treated Mormans or Bahai’s should caution us.

                  I think it’s a genuinely difficult problem.

                • djw

                  To me the impossibility of the state being in that role is a very good argument for putting very tight limits on deference to religion.

                  Yes, it is. The more routine and ingrained in our social and political life weaponization becomes, the more compelling this particular reason gets.

                • dilan

                  I’m deeply sympathetic to what you’re saying here, but I can’t see how the state can say “you may think you follow theologian X about the proper interpretation of your religion, but you’re wrong: you really ought to be following theologian Y.” That just can’t work.

                  That’s a straw man.

                  What actually happens is the state says “You follow the law like everyone else does. If you want an exemption, you have to prove to our satisfaction that you really sincerely believe this and it is central to your faith. Otherwise, you follow the law like everyone else does, and we don’t care if you think that is an injustice because being required to follow the law like everyone else does is not one. But if you can prove that this really violates a sincerely held belief central to your faith, you can get an exemption if there is no compelling reason why the government must enforce its law against you.”

                  Note at no point is anyone saying “you really ought to follow theologian X”. All anyone is saying is “the rule of law is really important, and there’s a huge incentive to lie to try and get exemptions, so if you want one, you have to prove sincerity”.

              • dilan

                It’s a legal matter of proof, like any factual issue of intent. How does anyone prove any mental state?

                If it’s some modern or recent interpretation, you introduce the evidence of your sincere belief in it and let the court decide.

                The thing that I think gets people about this is that they don’t consider the fact that VERY FEW EXEMPTIONS SHOULD ACTUALLY BE GRANTED. This shouldn’t be a willy-nilly thing– the rule of law is supposed to apply to everyone. So some claimants who actually have sincere beliefs might lose their claims due to lack of sufficient proof. Why is that such a big problem, any more than some fraud plaintiffs lose their claims because they can’t prove intent. That’s part of the legal system.

        • Well, you ask several questions.

          To be honest, I was just rambling :)

          But there’s two dimensions: Sincerity and centrality. (You blur these a bit in the last sentence.) I’d like both of these to be on the table so we can balance the burden on the adherent with the value of the thing they are being exempted from.

          Sincerity and centrality are actually closely correlated, and in my mind, both are required to get the exemption. The legal expression of this is the “substantial burden” test– for something to substantially burden your religious belief, and therefore be eligible for a RFRA exemption, it needs to be both something that you sincerely believe and something that is sufficiently central to your religion that no deviation is acceptable. I realize that’s not how the courts have interpreted it, but to me, that is what the words actually mean.

          Clearly the aren’t necessarily correlated, yes? I might sincerely believe that God enjoins me from chewing gum, but also recognise that it’s a trivial sin.

          The fact that you need both of them suggest that they aren’t correlated but independent.

          Which leads me to wonder why sincerely, strong religious beliefs and practices should be privileged over comparably sincere and strong non-religious beliefs and practices.

          1. The Constitution privileges religious freedom claims over claims of sincere non-religious objections to laws.

          For current purpose, I don’t care. My question is more that why should a liberal regime make such a privileging.

          2. There are slippery slope concerns, both with respect to sincerity and substance, if you allow anyone an exemption. A religion requirement ties it to a belief SYSTEM, which limits the number of exemption claims and makes them harder to fake. (Though again, that last point is ONLY true if we litigate sincerity.)

          But not all religions are strongly organised into a belief system. Not all other beliefs are not systematic. My feminist beliefs are highly systematic (as one might expect of someone who studied feminist and oppression theory in graduate school) and as sincere, I’d warrant, as many religious people. They are pretty central to my life (in that I organise a lot around them). If I were a doctor and you tried to force unnecessary transvaginal ultrasound on me this would also 1) violate a central belief (e.g., the hippocratic oath!), 2) which is systematic, and 3) central to my way of life and identity.

          3. Religions posit that there’s something more than personal offense involved in being required to fulfill an edict. The person could come into God’s disfavor, or be sent to hell or denied heaven, or whatever.

          Not all religions and I don’t see that you can privilege such religions. I think there’s more than personal offence to being forced to perform and unnecessary and undesired transvaginal ultrasound: It’s a violation of justice and decency and ones fundamental duties as a physician. That I wouldn’t be punished for this doesn’t make it smaller wrong.

          4.Because of 3, a religious believer might be more likely to feel he or she has to disobey the law anyway if not granted the exemption.

          And so? I mean, people do civil disobedience all the time. People violate laws for all sorts of reason. Is this even empirically true?

          I also don’t think their religious stuff is more important and worthy of regard as my non-relgious comparable stuff

          The best way to do that, I think, is to litigate sincerity. Because then there will be very few religious exemptions granted, because very few people are actually sincere about their religious beliefs. (Yes, 90 percent of America is nominally Christian, but how many people actually assiduously follow restrictions on their conduct imposed by their alleged Christian faith? It’s a very low number.)

          I think the problem remains.

          To me, what religious exemptions are all about is the situation where someone truly believes that God commands her to do X and the government requires her to not do X. So in that narrow situation, we should grant the exemption unless there are compelling reasons why the government must nonetheless prevail. That rule would not result in a general privileging of religious belief, but a specific accommodation to a few people who truly are caught in a Hobson’s choice, and will therefore avoid the “religious preferences are more important than secular preferences” problem.

          So only commanding God based religious are privileged? This seems weird. Plus, I don’t see how the doctor is in any less of a Hobsen’s choice. For me, personally, to be forced into a rape like situation would be horrific to the point that thinking about it now is rather upsetting.

          • Steve LaBonne

            As an adherent of a religion that is organized (well, not very ;)) around rejection of the equation of religion with belief, I heartily endorse this comment.

          • dilan

            At some point, you are just making the same argument over and over again, which is that there are other belief systems that are systematic and non-theistic and there isn’t any reason to privilege religion. But history counts for something, as does constitutional tradition, and beyond that, I don’t think the form of your argument is usually a very good one.

            You are making what we lawyers call an “underinclusiveness” argument. You are saying it isn’t fair to grant exemption X without granting exemption Y too. Now, there are certain contexts (mostly in the area of free speech) where that argument is accepted, but most of the time it is rejected, and for good reasons. The government actually can’t work if every time it wants to grant forbearance to one person, it has to grant it to everyone. Could prosecutorial discretion work that way– the CHP officer who decides to let one person off without a speeding ticket is required to now let everyone off whose reason is different but equally compelling? Could regulatory exemptions work that way– you can’t exempt this building from rent control without exempting all the similar buildings in the city from it? You can’t exempt this particular job-creating shopping center from pollution regulations without dismantling the anti-pollution law entirely by exempting any business that create jobs?

            There isn’t any general requirement that a government that grants an exemption from a law must grant exemptions up the wazoo to everyone else. Society has decided religion is a special case. So long as we make it really really hard to claim the exemption, I have no problem with that judgment.

            • At some point, you are just making the same argument over and over again,

              I defer to your expertise in such matters.

              which is that there are other belief systems that are systematic and non-theistic and there isn’t any reason to privilege religion.

              Yes, because that’s what I’m interested in. Now I’m sorry that I replied to you. If you aren’t interested in this point, stop responding. If you are interested, stop whining about my raising it.

              But history counts for something, as does constitutional tradition,

              Yes, but I’m interested in the theory of liberalism aspects of it. Sorry to be unclear. History *does* count, but not as a *fundamental* principle of liberalism, but as a pragmatic feature of our liberal systems.

              and beyond that, I don’t think the form of your argument is usually a very good one.

              Interesting!

              You are making what we lawyers call an “underinclusiveness” argument.

              You lawyers with your fancy technical terms.

              You are saying it isn’t fair to grant exemption X without granting exemption Y too. Now, there are certain contexts (mostly in the area of free speech) where that argument is accepted, but most of the time it is rejected, and for good reasons. The government actually can’t work if every time it wants to grant forbearance to one person, it has to grant it to everyone.

              Well that might be a problem if I had argued for that. Id isn’t argue that they had to grant forbearance to everyone, just that they had to apply forbearance *comparably*. Likes should be treated in a like manner.

              Could prosecutorial discretion work that way

              …yes?

              – the CHP officer who decides to let one person off without a speeding ticket is required to now let everyone off whose reason is different but equally compelling?

              So, first, should they treat everyone who’s reason is the same in the same way? I think so.

              If so, what determines “the same”? That’s the question. Is the mere fact that a belief is “religious” inherently worth more respect than anyone comparably serious and central to a form of life belief? I.e., is *that* difference worthy of distinguishing?

              From a pragmatic perspective, given history and structure of society, I can accept that. But it’s an injustice designed to promote stability (and maybe avoid more common injustices).

              Could regulatory exemptions work that way– you can’t exempt this building from rent control without exempting all the similar buildings in the city from it?

              If there were no reason that justified treating them differently…exactly why should I be able to exempt this building?

              You can’t exempt this particular job-creating shopping center from pollution regulations without dismantling the anti-pollution law entirely by exempting any business that create jobs?

              But it can’t be arbitrary can it? I’m totally confused by these example. Either there is a difference, or there isn’t. If we apply the law consistently, we, in general, should treat like cases alike. There could be non-case reasons why we don’t (it’s too much effort to enforce so we only touch “convenient” cases). But…huh?

              There isn’t any general requirement that a government that grants an exemption from a law must grant exemptions up the wazoo to everyone else.

              If it were *idiosyncratic* I might be happier about it. But we are establishing a special class based on an arbitrary label, i.e., that it’s “religious”. But there is no objective reality that makes something “religious”. You argue for centrality and sincerity, which is fine, but then what does “religious” add to that? In all cases, the exemptions should be super narrow, but why allocate more exemptions to the religious?

              Society has decided religion is a special case. So long as we make it really really hard to claim the exemption, I have no problem with that judgment.

              Well, if this was all a long winded way of saying that you are ok with privileging religion, well, ok. But I don’t see how that can be justified as essentially part of liberal theory.

  • shah8

    Oh dear, I LOVE this thread!

    Sooner or later, people will join MY side when it comes to freedom of speech! Pretty much arguing the exact same slant as djw here:

    1) Liberal freedoms must have a silver (Confucian) rule (it’s not really about negative reciprocity, but the east asian difference is highlighted by that focus)

    2) That is, at least some focus should be spent on creating a balanced and reciprocal interpretation that supports a stable and lasting social order.

    People have to allow that this stuff is complex and messy, and will never have a clean or lasting answer. Not allowing speech to be weaponized should be part of the normal tasks that a diverse society assigns itself. Same as not allowing religious practice to hurt others.

    • Breadbaker

      I had to read the whole thread to find the one post that said basically what I was going to say. There isn’t a lot of argument that the free speech exceptions (fire in a crowded theater, libel and slander, words that are in fact deeds) are appropriate limitations on the commands of the First Amendment there. The religious freedom part of it needs similar limitations, which basically apply where your religion touches my nose. That covers the person who decides they need to witness on my front lawn, or in my living room, or in my face when I tell them to stop. It covers the zoning and similar land use principles. It certainly doesn’t cover peyote (says the guy who gets more second-hand pot smoke than tobacco smoke waiting for buses in Seattle). And it certainly does cover Hobby Lobby. I saw a quote from a Christian Scientist about why they offer full medical health insurance to their non-believing employees, which they certainly aren’t required to do, and the response was along the lines of, “because we’re not assholes.” And Hobby Lobby is, at heart, a case trying to make the First Amendment let you be an asshole. Putting aside that it was taking advantage of a non-mandatory (and non-religious) tax exemption in already-earned compensation (and I’d love John Roberts to explain that one to my face), putting aside all the non-contraceptive uses and all the life-saving uses of various forms of drugs that can also be used for contraception, in the end, telling your employees you have some stake in their health care practices, and their most intimate sex practices, because part of their compensation is used for tax-advantaged health care is, in fact, just being an asshole. And I think there’s a reasonable argument that freedom of religion just never goes that far.

  • Pingback: David Watkins – “The Weaponization of Religious Exemptions” | Lawyers, Guns & Money | Runs Awkwardly with Scissors()

  • Pingback: "Pity the poor Christian photographer" is a tactic - Lawyers, Guns & Money : Lawyers, Guns & Money()

  • Pingback: If I’m so wrong | AbsurdBeats()

It is main inner container footer text