Do Religious Exemptions Save?

18 Pages Posted: 10 Mar 2017 Last revised: 15 Mar 2017

Maimon Schwarzschild

University of San Diego School of Law

Date Written: 2016

Abstract

Religious Americans, and many people sympathetic to them, have supported “special accommodations” or exemptions from otherwise applicable laws – unless there is a “compelling state interest” in not offering an exemption – when complying with these laws would violate religious obligation or belief. When the US Supreme Court held that the First Amendment does not usually require such exemptions, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 by unanimous vote in the House (better than the Declaration of War after Pearl Harbor) and by almost unanimous vote in the Senate, and many state legislatures have done likewise. RFRA laws aroused little public or academic controversy until after 2012, when claims for exemption were invoked in behalf of conservative Christians.

But support for religious exemptions now seems to be breaking down along ideological-political lines, as in the Hobby Lobby dispute over whether a private company should have to provide for contraceptive and arguably abortive drugs in violation of the employer’s religious beliefs.

This article argues that there are important drawbacks to “special accommodation”, even from the point of view of religious Americans. First, while occasional exemptions for religious people could be accommodated fairly easily in past eras of comparatively modest government, any pleas for exemption will seem more of a threat, and will be resisted more vigorously, when government tries to regulate ever more, and ever more intimate, aspects of life. Second, perhaps more subtly, by offering exemptions to any and all religions, government may encourage the balkanization of religious life and a proliferation of sects and cults, with negative implications for both the religious and the public life of the country. Third, the idea of seeking special accommodations or exemptions – which often, and perhaps increasingly, might not be available anyhow – is apt to divert religious people from putting their political energy into modifying or defeating unjust or overreaching regulatory proposals altogether, rather than merely seeking special exemptions from them.

Seeking frequent exemptions and accommodations puts religious people in the invidious position of demanding special privileges. This is never an appealing, or perhaps even a viable, demand: least of all in an egalitarian society, where a core idea is rejection of special privilege.

It is not sustainable anyway, beyond a limited number of exemptions, for a limited number of religious bodies, in a modestly regulated society. In an ever-more-minutely regimented society, you cannot keep demanding exemptions; and they will not be granted. It is a well-known military axiom that armies in retreat are at their most vulnerable. Religious Americans need not retreat from robust political action, merely to plead for special indulgence. It will not avail them, or not for long, if they do.

Keywords: Religious freedom, Law and religion, Special accommodation, Religious exemptions, First Amendment, Religious Freedom Restoration Act (RFRA), Hobby Lobby, Regulation, Mainline Churches, Religious sects and cults

JEL Classification: K00, K10, K19

Suggested Citation

Schwarzschild, Maimon, Do Religious Exemptions Save? (2016). San Diego Legal Studies Paper No. 17-263. Available at SSRN: https://ssrn.com/abstract=2930391 or http://dx.doi.org/10.2139/ssrn.2930391

Maimon Schwarzschild (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2343 (Phone)
619-260-4791 (Fax)

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