The weaponization of religious exemptions

A post at Lawyers Guns & Money goes a long way, I think, toward explaining why the recent proposed and passed laws like Indiana’s Religious Freedom Restoration Act have received greater backlash than they might have just a few years ago. While the author acknowledges that “liberals” (and others, in my view) may not support religious freedom laws like they did back in the 1990s, he points to the “weaponization” of religious exemption laws as a driver in that shift.

To summarize, previously the primary purpose of religious exemption laws has been “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.”

Later, these laws began to be used as “license for religious groups to evade general laws when inconvenient.” An example is an exemption that was sought to modify a church in a Historical District where such modifications were not permitted. In other words, there was no religious issue at play; the church simply wanted to bypass local laws and attempted to do so by invoking a religious exemption.

Now, though, we see religious exemption laws being used as overt political weapons, the quintessential example being the Hobby Lobby case. “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.” The upshot is:

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.

I’ve just paraphrased the article and quoted the conclusion. It’s worth reading the whole thing.

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