Buddhist Catholic Contemplative Evangelical General Christian Hindu Jewish Latter-day Saint Muslim New Visions Progressive Christian

Beliefs

Topics

Columnists

Resource Library

Research Tools

Video

Podcasts

Thought Readers

Faith In Media Tracker

Newsletters

Ad-Free & Subscriber Log-In Subscription Support

Follow Patheos

Home
Progressive Christian
‘Weaponized’ religious exemptions, in turn, weaponize religion (part 1)

‘Weaponized’ religious exemptions, in turn, weaponize religion (part 1)

Last updated on: April 2, 2015 at 6:39 pm by Fred Clark

‘Weaponized’ religious exemptions, in turn, weaponize religion (part 1) 2015-04-02T18:39:42-04:00 Fred Clark

LOGO Patheos Explore the world's faith through different perspectives on religion and spirituality! Patheos has the views of the prevalent religions and spiritualities of the world.

David Watkins offers what I think is a helpful insight with a discussion of what he calls “The Weaponization of Religious Exemptions.”

This covers some of the same history we discussed here (in “Artificial Lemons“). After the Supreme Court allowed Oregon to refuse a religious exemption for a member of the Native American Church who used peyote in a religious ceremony, religious groups and civil rights advocates — everybody from the ACLU to the religious right — rallied in support of a legal remedy to reaffirm the right to such exemptions. The Religious Freedom Restoration Act of 1993 was unanimously approved by the House of Representatives and passed 97-3 in the Senate.

Think about that for a moment. I’m not sure I can imagine the current House of Representatives unanimously approving anything, but that’s what happened with RFRA in 1993.

The rallying point for that law was what Watkins describes as a “classic example” of a religious exemption:

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.

Those examples are not hypothetical — they come up all the time in American courts. Sitting here in Chester County, I’d add another prominent example: The Amish. Head west on U.S. 30 from here and you’ll soon encounter Amish carriages and Amish communities that enjoy a wide array of religious exemptions. Those exemptions are not controversial — not even for those stuck in traffic behind a buggy out in Gap — because, as Watkins says, “they are fundamentally defensive in character.”

I find some of these [classic examples] 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.

Bingo. “Fundamentally defensive in character.” That’s important.

I’m a strict-separationist Baptist kind of guy. That means, among other things, that I do not want to see any religious structures on government property. Public property is no place for sectarian religious structures.

Print this out and you can save two bucks per adult on a genuine Amish buggy ride in beautiful Strasburg.

But I also lived for many years inside the bounds of an eruv, and I do not believe that this eruv — by definition, a sectarian religious structure — violated the separation of church and state. I believe, rather, that allowing the presence of the eruv on public, government property was a Good Thing. It honored the important principle of the free exercise of religion. And it honored the important principle of not being assholes to minorities just because you’ve got them outnumbered.

If you’re not familiar with eruvs, they’re a kind of religious loophole that allows Orthodox Jewish communities to travel a bit on the Sabbath without breaking their religious laws. That requires some kind of boundary marker to enclose the area in which they are permitted to travel — ideally, an area large enough to include their synagogue and the local hospital. The enclosure needs to be physically bounded, and its physical boundary markers will often need to cross or rest on public property.

Part of the reason that eruvs are not a controversial religious exemption is because they are nearly invisible and completely non-intrusive. We’re talking about string or wire tracing existing utility lines along city streets. If you don’t know it’s there, you’ll never see it. (Even when you do know it’s there, it’s very hard to spot. But it’s kind of fun to try.) Accommodating an eruv is much easier for the rest of the community than accommodating the religious exemptions for our Amish neighbors here in Chester County.

But, as Watkins says, that’s not the main reason that an eruv is a classic example of an easily supported religious exemption. The main reason is that it is “fundamentally defensive in character.” It exists “to protect a practice or tradition or community, and little more.” Our Orthodox neighbors aren’t demanding that the rest of us abide by their religious laws forbidding carrying on the Sabbath. They’re simply asking the rest of us to allow them to do so by running a bit of unobtrusive string along public property. Yes, it’s sectarian string, but they’re not seeking a privilege that would give them some advantage over anyone else. They just want to do their thing and to survive. They want the right to extend their arm without hitting anyone else in the nose.

I don’t think that’s a threat to the separation of church and state.

Watkins then discusses what he calls “a kind of transitional case” — City of Boerne v. Flores. This was the 1997 case that overturned the RFRA law Congress had passed nearly unanimously four years earlier:

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.

That, Watkins says, is the first step toward “weaponized religious freedom” — “turning religious exemptions into a license for religious groups to evade general laws when inconvenient.” The next step is far worse:

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.

This weaponized use of religious exemptions has changed the context of the entire conversation that previously shaped our legal and neighborly accommodation of such exemptions. It is no longer about the classic examples of exemptions that are fundamentally defensive in character. This is an effort to use religious exemptions as an offensive weapon for political purposes that have nothing to do with the religious beliefs supposedly in question.

The goal of weaponized religious exemptions is not “to protect a practice or tradition or community” but to carve out privileges and advantages for some groups over others. And that, as Watkins says, changes everything:

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. … [But] 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. … 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.

class warfare

church & state

religious right

they are coming for your birth control

Previous Post

April 1, 2015

Time alone can bring the sun

Next Post

April 3, 2015 Left Behind Classic Fridays, No. 27: 'Pagan Babies'

Browse Our Archives

Select a Category class warfare evangelicals Iraq Left Behind Mammon music Uncategorized

Select a Month October 2026 September 2026 August 2026 July 2026 June 2026 May 2026 April 2026 March 2026 January 2026 December 2025 November 2025 October 2025 September 2025 August 2025 July 2025 June 2025 May 2025 April 2025 March 2025 February 2025 January 2025 December 2024 November 2024 October 2024 September 2024 August 2024 July 2024 June 2024 May 2024 April 2024 March 2024 February 2024 January 2024 December 2023 November 2023 October 2023 September 2023 August 2023 July 2023 June 2023 May 2023 April 2023 March 2023 February 2023 January 2023 December 2022 November 2022 October 2022 September 2022 August 2022 July 2022 June 2022 May 2022 April 2022 March 2022 February 2022 January 2022 December 2021 November 2021 October 2021 September 2021 August 2021 July 2021 June 2021 May 2021 April 2021 March 2021 February 2021 January 2021 December 2020 November 2020 October 2020 September 2020 August 2020 July 2020 June 2020 May 2020 April 2020 March 2020 February 2020 January 2020 December 2019 November 2019 October 2019 September 2019 August 2019 July 2019 June 2019 May 2019 April 2019 March 2019 February 2019 January 2019 December 2018 November 2018 October 2018 September 2018 August 2018 July 2018 June 2018 May 2018 April 2018 March 2018 February 2018 January 2018 December 2017 November 2017 October 2017 September 2017 August 2017 July 2017 June 2017 May 2017 April 2017 March 2017 February 2017 January 2017 December 2016 November 2016 October 2016 September 2016 August 2016 July 2016 June 2016 May 2016 April 2016 March 2016 February 2016 January 2016 December 2015 November 2015 October 2015 September 2015 August 2015 July 2015 June 2015 May 2015 April 2015 March 2015 February 2015 January 2015 December 2014 November 2014 October 2014 September 2014 August 2014 July 2014 June 2014 May 2014 April 2014 March 2014 February 2014 January 2014 December 2013 November 2013 October 2013 September 2013 August 2013 July 2013 June 2013 May 2013 April 2013 March 2013 February 2013 January 2013 December 2012 November 2012 October 2012 September 2012 August 2012 July 2012 June 2012 May 2012 April 2012 March 2012 February 2012 January 2012 December 2011 November 2011 October 2011 September 2011 August 2011 July 2011 June 2011 May 2011 April 2011 March 2011 February 2011 January 2011 December 2010 November 2010 October 2010 September 2010 August 2010 July 2010 June 2010 May 2010 April 2010 March 2010 February 2010 January 2010 December 2009 November 2009 October 2009 September 2009 August 2009 July 2009 June 2009 May 2009 April 2009 March 2009 February 2009 January 2009 December 2008 November 2008 October 2008 September 2008 August 2008 July 2008 June 2008 May 2008 April 2008 March 2008 February 2008 January 2008 December 2007 November 2007 October 2007 September 2007 August 2007 July 2007 June 2007 May 2007 April 2007 March 2007 February 2007 January 2007 December 2006 November 2006 October 2006 September 2006 August 2006 July 2006 June 2006 May 2006 April 2006 March 2006 February 2006 January 2006 December 2005 November 2005 October 2005 September 2005 August 2005 July 2005 June 2005 May 2005 April 2005 March 2005 February 2005 January 2005 December 2004 November 2004 October 2004 September 2004 August 2004 July 2004 June 2004 May 2004 April 2004 March 2004 February 2004 January 2004 December 2003 November 2003 October 2003 September 2003

TAKE THE

Religious Wisdom Quiz

Who was the king who arranged for Hezekiah's scribes to compile additional Proverbs?

Select your answer to see how you score.

Ahab Solomon Jeroboam Hezekiah