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.