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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsThe Weaponization of Religious Exemptions
http://www.lawyersgunsmoneyblog.com/2015/04/weaponization-religious-exemptionsIf theres a pattern to shifts in my uncertainty, though, its probably that I find myself drifting toward a more restrictive approach. In watching the politics of the Indiana law and its backlash, I think Im getting a better sense of why thats the case. Whats currently underway is what Ill 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 wasnt really a religious exemption per sethey wanted a bigger, more modern facility for more or less the general kind of reasons a private business or homeowner might have liked an exemptionaccommodate 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; theyre being used as a weapon to advance the Churchs 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 thats 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 ones religious convictions as a cynical political tool to be wielded against ones 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 Deneenfully, openly aware of the fundamental absurdity of Hobby Lobbys case, cheering them on nonetheless. I mean, youd think theyd 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. Its 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, its 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 havent 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 theyve lost recently.
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 wasnt really a religious exemption per sethey wanted a bigger, more modern facility for more or less the general kind of reasons a private business or homeowner might have liked an exemptionaccommodate 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; theyre being used as a weapon to advance the Churchs 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 thats 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 ones religious convictions as a cynical political tool to be wielded against ones 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 Deneenfully, openly aware of the fundamental absurdity of Hobby Lobbys case, cheering them on nonetheless. I mean, youd think theyd 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. Its 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, its 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 havent 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 theyve lost recently.
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The Weaponization of Religious Exemptions (Original Post)
Scuba
Apr 2015
OP
misterhighwasted
(9,148 posts)1. Bookmarked to re-read later.
A lot to consider
matt819
(10,749 posts)2. See also
Saint Benedict center in Richmond, NH. The relationship between town and center makes for interesting reading. Don't have the link, but search on Google.