Exemptions from Generally Applicable Laws Should Be Hard to Get
Justice Scalia was right about this
At the end of the Supreme Court’s last term, the Court issued Fulton v. City of Philadelphia, in which it punted on the fraught issue of whether religious groups should be granted broad exemptions from laws that require equal treatment of gays and lesbians- in this case, a Catholic adoption agency that wanted a government license while refusing to place children with same-sex couples. The Court held that Philadelphia’s rules regarding gay and lesbian adoption violated principles of religious freedom, but refused to adopt a test as to when an exemption for religious believers is required under the law, and refused to overturn what is still the governing precedent in this area, Employment Division v. Smith.
Smith was an opinion by the late conservative Justice Antonin Scalia, in which he overturned prior Supreme Court caselaw and held that the free exercise of religion protected by the First Amendment did not include a right to an exemption from generally applicable laws. Thus, the state of Oregon’s drug laws applied to an Indian Tribe that used peyote, a hallucinogen.
Justice Scalia’s decision was quite harsh, and it received criticism from both left and right. Back then, liberals were highly supportive of religious exemptions, with things like protection of the beliefs of Indian tribes (the issue in Smith) or conscientious objectors to the Vietnam War in mind. Liberals supported an earlier decision from a time when they controlled the Court in the 1960’s, Sherbert v. Verner, which held that broad exemptions from laws could be granted and that the government had to show a compelling interest to apply a law to a religious objector. Back in 1963, it was the conservatives on the Court, Justices Harlan and White, who dissented. (By the way, this is another example of a point I have hammered home in previous posts- that a lot of things we think of as bedrock liberal or conservative beliefs are quite contingent. Religious exemptions looked different to liberals when different people were claiming them.)
Meanwhile, the right did not much like Smith either. Much of the infrastructure of religious conservativism involved dissents from generally applicable rules, whether it was laws mandating equal treatment of gays and lesbians or sex education classes at schools.
Accordingly, a huge bipartisan majority in Congress tried to overturn Smith. The resulting law, the Religious Freedom Restoration Act (RFRA), was declared unconstitutional as to state and local governments by the Supreme Court. However, Congress then passed a narrower statute applicable to land use and prisons, and RFRA continues to apply to the actions of the US government. Plus, state governments passed their own RFRAs. A significant percentage of these disputes therefore get decided under a standard that is very friendly to religious exemptions.
This is wrong, and Justice Scalia was right.
Let’s start with a very general principle- the notion that everyone has to follow the law is actually the bedrock of any sort of free society. Think of places where the law only applies or applied to the little people. It was terribly unfair. It’s unfair, for instance, that the Saudi royal family drinks as much as it wants and consorts with sex workers while these actions can yield severe punishment if an ordinary Saudi subject engages in them.
It’s actually chiseled into the Supreme Court building- “equal justice under law”, and this nation’s crowning legal achievement, the 14th Amendment, establishes a right to the “equal protection of the laws”. We think of “equality” in general terms, but these words also reference a very specific kind of equality- the equality that says that when a rich and famous person commits a crime, he is treated the same as an ordinary person.
Now obviously, we honor this in the breach, e.g., that rich and famous person gets a better legal defense than the ordinary person does. But at the same time, we also do honor it. Rich people do go to prison. So do former politicians. Zoning boards stop rich people from building stuff on their property they want to build, enforcing the same rules that prohibit a middle class person from installing a cottage. There are not special lanes on the highway for rich people, and Jaguars and Bentleys get pulled over for speeding just like Kias do.
And importantly, if special rules were passed for certain people, there would be a huge backlash. “How come George Clooney gets to speed but I don’t?” People intuitively get that despite all the unfairness of our society, you can’t just carve out exceptions to generally applicable rules.
And yet, on religion, people feel differently. Now, I do get this. Conscientious objectors are probably the best example of the issue- you have someone who has a devout, religious belief in pacifism and that he must not kill someone, and the government drafts him and sends him the war. Not only is he likely to make a reluctant soldier anyway, but it seems a great imposition on the person’s sincerely held belief.
And if that were all religious exemptions were, I would be all for them. There are a few narrow situations where someone truly, sincerely, believes something, has made a lifelong commitment to it, and the cost to the government and to the rest of us is not that great. So we grant the exemption.
Note though, that both of these elements need be present- deep sincerity, and low cost to the rest of us. I will come back to sincerity, but with respect to low cost, imagine a religion that sincerely believed in an extremely deep form of privacy where it was a sin to allow another person to search a believer’s body, either through a physical search or an X-ray or scan. Now, if that person wants to get on an airplane, I am going to say she has to consent to some form of search. Maybe the least intrusive one available, but nonetheless, she must consent to a search. Because in that situation, the cost of an exemption could be a terrorist attack on an airplane or airport. And thus, it is too high a cost to pay.
And that demonstrates the broader point- that exemptions from a generally applicable rule are serious business. We gain a huge benefit, as a society, from the notion that the rules apply to all of us. It allows us to effectively regulate things that would be harder to regulate if there were exceptions.
And- and here is where we come back to sincerity- especially where the exemptions are granted on ephemeral criteria that are easy to fake. Compare, for instance, a different controversial rule- race-based affirmative action. It’s pretty hard to fake your race, as Rachel Dolezal and Jessica Krug found out. So if you divert from a rule of purely equal treatment in order to achieve diversity or compensate for past discrimination, that may or may not be a good idea, but at least you can be reasonably sure that the people you intend to benefit are benefitting.
But ANYONE can claim to have a religious belief. And courts hate litigating sincerity. It makes judges very uncomfortable to force religious believers to come in and face a serious cross-examination about deeply personal beliefs and conduct. But the result of not litigating sincerity is that there is going to be massive fraud with respect to religious exemptions.
How do I know this? Well, consider two Obamacare cases, Burwell v. Hobby Lobby and Little Sisters of the Poor v. Pennsylvania. In Burwell, a for profit corporation(!) claimed that its religious rights were violated because the Obamacare statute did not grant it an exemption from the requirement to provide contraceptive coverage for its workers. Hobby Lobby’s claim was insincere- first, obviously, the corporation had no religion at all (it was its controlling shareholders who had religious beliefs), and second, Hobby Lobby had paid for contraceptive coverage for its workers before Obamacare passed. What happened is that Hobby Lobby’s owners were connected with Republican politics, and someone ginned up a litigation scheme where they would falsely claim to be offended that their workers used contraceptives in order to further the Republican Party’s political goals of killing Obamacare and catering to the desires of Christian conservatives in its base.
Little Sisters of the Poor was even more ridiculous. I know the Little Sisters enjoy a good reputation, but they brought a court case based on a complete lie. They argued that they should not even be required to fill out the form that the government required to claim the exemption from the contraceptive mandate- because that form might set in motion a process that could result in the government paying for contraceptive coverage for their workers. This is ridiculous. Nothing in Catholic scripture or the teachings of the Vatican provides for this, and the Little Sisters had never previously objected to filling out forms and cooperating with the government. And the logic is just crazy- one can imagine hypotheticals such as the Little Sisters witnessing a murder and not calling the police because it could set in motion a series of events that results in an execution, and they are religiously opposed to capital punishment.
The point is, as long as the legal system is afraid to treat religious sincerity like any other contested fact in litigation and make litigants prove it, and as long as the courts and legislatures are willing to grant broad exemptions to laws based on the say-so of religious litigants, political actors are going to exploit this situation and try to undermine legislation their side does not like with religious exemptions.
And that is exactly what is happening with LGBT discrimination laws. We avoided this problem with race and sex discrimination laws, because there was little judicial sympathy for, for instance, a hotel owner who wanted to refuse to rent to interracial couples based on a religious belief against interracial sexual relationships, or a Christian owned business that refused to hire married women. But conservatives have targeted LGBT civil rights with legal claims for exemptions. Cakeshops and florists shouldn’t have to work at gay weddings, adoption agencies shouldn’t have to place kids with same-sex couples, etc. If these sorts of exemptions had been granted to the race discrimination laws, we would still have massive de jure racial segregation even now. It was only the fact that there was no escape that forced people to change at least the public face of their behavior.
The cost of this sort of thing is enormous. While thankfully no children have yet been harmed by the Catholic Church’s policy in Pennsylvania, it is easy to imagine that there will be places in the Bible Belt where all the adoption agencies, homeless shelters, and other charities discriminate against gays and lesbians, and it will be impossible for gays to hold proper wedding ceremonies because none of the local businesses will cater to them. Gay people will have trouble finding jobs with employers exercising their “religious freedom” not to hire them. LGBT people will be second class citizens in swaths of this country, precisely the situation that anti-discrimination laws are meant to combat.
We are in danger of losing the thread on religious freedom. While there are rare exceptions where an exemption should be justified, most of the time, generally applicable rules are the way to go. That upholds the fundamental notion of equality that the legal system is based on, and it also ensures that insincere politically motivated actors can’t use religion as a mechanism to undermine legal principles they don’t like. And it protects the actual religious freedom envisioned by the First Amendment- a freedom of individual conscience, to believe how you wish to believe without government interference, rather than a freedom to violate rules that apply to everyone.
I am concerned about courts diving into sincerity. It places the courts in an unenviable positional of attempting to read the mind of a litigant, and puts undue power to arbitrarily decide who constitutes sincere. Judges should not be interpreting the bible or talmud.
Second, why should religious convictions be placed on a higher pedestal than other convictions? I am wary of granting conscientious objectors a status based on their birth in a certain faith that regular conscientious objectors would not be given. The whole situation reeks of court meddling in affairs that we really don't want the courts involved in.
And besides, sometimes people do adopt sincere beliefs. Who is to say that a man who decides eating animals is wrong is insincere just because he is 50 and ate meat throughout his 20s and 30s? And what about the Jew who we all saw eating at taco bell last week? It's a legal can of worms that the courts should be loathe to wade into. 'Oh, but you see your honour, my beliefs have changed since my last tax filling' says the Hobby Lobby shareholder.
Of course there is a giant poison pill to this whole issue: The Satanists, who have all ready staged a figurative middle finger to religious carve-outs with their 10 commandments protest (disguised as a Moloch statue, of course). 'Oh, I thought this was for *all* faiths to be treated equally...'
It's pretty much the religious exceptionist's worst nightmare--a parody religion set up to leech off any religious benefits or exclusions. I would not put it past them to conjure up a religious objection to some arbitrary care (whether that's cancer treatment or insulin) and try to get it through the courts. Your move, Christians.