Free free, set them free

3 03 2014

I’ve banged on and on and on on the necessity of one law for all. Not this time.

In the interest of not repeating myself on purpose (I do enough of it by accident), I’m not going to outline yet again why broad religious exemptions from laws of general applicability are a bad idea, and simply jump to the conclusion: Religious institutions and their affiliates which hire and treat/educate/work with solely their fellow co-religionists? Fine: clear First Amendment exemption. Places of general accommodation? Nuh-uh.

Anyway, these proposed laws based on “sincerely-held religious beliefs” seem like a very bad idea for a very basic reason: who the hell is to determine what is a “sincerely held religious belief” and how is it to be determined?

Courts generally don’t want to have to deal with this, not least because they don’t want to be in the position of having a government body determining what is a religion, much less sincerely held beliefs about them. Yes, there are cases in which this occurs—conscientious objectors from the draft, IRS tax-exempt status, rights of prisoners—but beyond that, not so much.

More to the point, if I sue you for denial of service and you claim a s.h.r.b. defense, then my attorney is going to question you about your beliefs, how consistent you are in their application, your level of knowledge about your religion, and on an on. State legislators might think they’re handing you a get-out-of-court-free card, but if you get that card due solely to the sincerity of your belief, well then, that gives me incentive to challenge both the sincerity and the belief.

If you are in any way inconsistent—which is to say, human—it’s just possible that a jury of your peers will find that you don’t, in fact, believe what you say you believe. And even if you win, you and your beliefs will in the process have come under sustained official scrutiny.

It’s tough to see how that in any way advances the cause of religious liberty.

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Get back to where you once belonged

13 03 2013

One law to rule them all.

It ought come as no surprise that I give a Hard Look* to claims for religious exemptions to laws of general applicability: for all to be equal before the law, we must all be equally under the law.  To exempt someone from the obligations of law while simultaneously granting her the protection of  that same law is a form of favoritism which must be defended, not merely assumed.

Two points. One, this does not mean exemptions may never be granted. Exemptions are granted to religious institutions, for example, based on the freedom guaranteed in the First Amendment  (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”). There are political and juridical tussles over the interpretation of these two clauses, but in the main there is a general sense that it is right and proper that the government not tell people how to practice their religion in terms of their religious ceremonies and their relationship to their fellow congregants.

Thus, churches, synagogues, mosques, temples, and sundry other religious institutions are exempted from laws regarding discrimination in hiring and firing of clergy and, for the most part, on working conditions. I may roll my eyes at arguments regarding the necessity of all-male clergy, for example, but I nonetheless agree that allowing the exemption to religious institutions is of no great concern to those outside of those institutions.

This, of course, is the case only insofar as the obligations of the religion apply only to the adherents of that religion. The free-exercise clause applies not only to congregants, but also to non-congregants, that is, you may voluntarily choose to align your behavior with your favored religious strictures, but you cannot force me to align my behavior to your religious strictures.

Point two: Certain religious institutions in the US are fighting for exemptions based on non-reciprocal understandings of religious freedom. What is new(ish) is not the non-reciprocal understanding—it wasn’t until the 20th century that the courts began to extend the protections of the First Amendment to (numerically) marginal religions, a process which continues, bumpily, today—but the fact that these institutions do, in fact, have to fight.

They can no longer wave the cross or the crucifix over every last act and expect dissidents, challengers, and the state to stop transfixed before them. There cannot presume exemption; they must defend it.

Rod Dreher, among others, bemoans the loss of status-entitlement of what he calls orthodox Christianity, a loss he sees as an erosion of religious freedom. That most Americans favor the use of contraception and increasingly favor same-sex marriage and equality for queer folk means that they are less willing to grant authority to those orthodox religious leaders—which means that they are less willing to grant legal leeway to those same leaders.

In this sense, I agree with Dreher that these churches and traditions are losing, but while he sees a loss of freedom, I see a loss of entitlement. John Holbo notes, correctly, that those who argue that religion deserves its entitlement rely on a notion of “an extra epistemic concession”, that is, that an argument ought to be granted respect or extra points because: Religion. It is in no way clear why this should be so.

And that’s the nub: in the past it rarely had to be made clear why this should be so; it just was. But now, for any number of reasons, that extra epistemic concession is no longer granted, with the result that the authority of those relying upon that concession has been degraded. “Because (God) says so” is no longer enough.

This hardly stops folks from trying to protect their entitlement. Since Americans do tend to respond to appeals to individual rights, the ground has shifted from authority to freedom. That a private business run by religious people might  be required to provide benefits (read: contraception) to their employees which they, the employers, find religiously offensive, is seen as an infringement upon their (the employers’) freedom.

Call it the Taco Bell defense.

Some nations do, in fact, have different laws for different religions. In India, for example, Muslim men may take multiple wives, but Hindu men may not. Martha Nussbaum offered a limited defense of such variation in Women and Human Development, but even this was more a practical concession to the historical and political realities of India than a ringing defense of the idea of This law for thee and That law for thou.

In the US, however, we had the opposite: throughout the 19th and into the 20th century, there was a default Protestantism, and it was only through decades of court fights that recourse to that default was diminished. The Catholic Church, often victimized by this default, was nonetheless able to take advantage of the authority offered to Christianity in general in order to assume its share of privileges in spaces beyond the church steps. Unsurprisingly, they seek to maintain that authority-based privilege.

Dreher, in recognizing the loss of authority, has argued that orthodox Christians make their stand on the ground of religious freedom instead, but absent the status granted by that extra epistemic concession, it is difficult to see why one individual ought to prevail over another in competing claims of the exercise of that freedom.

As so many have already pointed, why should the religious beliefs of the employers ought to matter more than that of the employee, the doctor over the patient, the pharmacist over the customer, or the taxi driver over the passenger?

Those who seek to protect themselves from offense have every right to do so: they get to make the argument in the political and cultural realms and in the courts.

They just don’t get to presume a win.

*h/t Robyn Anderson, who uses this term to great effect on Love & Hisses