An increasingly important issue concerning religious liberty in modern society is whether and how far religious believers should be exempt from neutral laws, rules, and regulations which everyone else has to follow. Religious believers are asking for ever more exemptions, but how far should society go to grant such exemptions and thereby risk allowing them to harm others?

On an email list about law and religion, Douglas Laycock wrote:

In a pervasively regulated society, resistance to religious exemptions from regulation is hostility to religious liberty. It is the position that the right to practice a religion is at the mercy of every interest group strong enough to enact a rule in any of the many places in our system where rules can be enacted -- legislatures or administrative agencies at the federal, state, county, or municipal level.

It is a refusal to recognize conscientious refusal to comply with a regulation has anything different from bigoted, selfish, or otherwise wrongheaded refusal to comply. It is the position that religion is uniformly less important than the interest behind any regulation -- that regulators never have to take account of religion. ... In this world view, there is no room for religious liberty.

There are a number of serious problems with what Douglas Laycock writes here, but I will try to lay them all out as clearly as possible. First, Douglas Laycock has erected a straw man about “resistance to religious exemptions from regulation is hostility to religious liberty.” Everything Laycock writes here assumes that such “resistance” is general and undifferentiated — that people simply “resist” religious exemptions from regulation as a general rule and across the board. This is a straw man because it is not true. People resist particular exemptions or particular kinds of exemptions but not other exemptions or other kinds of exemptions. People may also insist that a request for exemptions come with a good justification for that exemption — but that's not "resistance" unless one operates under the assumption that all exemptions are justified unless and until proven otherwise.

Second, notice how Douglas Laycock only refers to “regulations” and never “laws.” It’s true that some forms of regulations are not laws but are instead regulatory decisions made pursuant to fulfilling some law (we’ll ignore how that courts have held that such regulatory decision have the power and authority of law). A regulation doesn’t sound as important as a law, so someone who wants an exemption from a mere regulation doesn’t seem to be asking for much. Is it just coincidence that this language choice happens to encourage sympathy for religious groups seeking exemptions?

If we rephrase it as “resistance to religious exemptions from neutral laws is hostility to religious liberty,” it’s clear that people might be asking for quite a lot. At the very least, it helps make it clear that those asking for the exemption have to make a good argument for why they should be exempt. After all, we don’t normally let people ignore a law simply because they don’t want to follow it.

It may be true that a prejudice against any religious exemptions from any laws could indicate a hostility towards religion — especially if one is amenable to nonreligious exemptions to the same laws. If a person resists any exemptions to the law, whether for religious or nonreligious reasons, then that hardly sounds like hostility towards religion. It may not be a very fair or reasonable position to adopt, but being unreasonable is not the same as being hostile towards religion.

Is the right to practice a religion at the mercy of interest groups strong enough to enact laws (notice that once against Douglas Laycock avoids using the word “law,” favoring instead the less-important sounding term “rule”)? To a degree, yes — just as everyone’s ability to do things they want is at the mercy of groups large enough to enact laws. The question is, are the laws in question valid laws which protect the interests of the general public or are they invalid laws — laws designed, for example, simply to suppress minorities? If we are talking about a law which protects the rights or interests of the general public, then why shouldn’t people be prohibited from practicing their religion in a way that violates this law and harms others? That’s the reason why religious groups seeking exemptions have to make a good case for their exemption: they have to show that they wouldn’t be harming anyone.

Consider the case of Phillip Distasio, an Ohio man who claimed a religious liberty interest in being able to have sex with underage boys. NBC reported:

[Phillip Distasio] told the judge, “I’m a pedophile. I’ve been a pedophile for 20 years. The only reason I’m charged with rape is that no one believes a child can consent to sex. The role of my ministry is to get these cases out of the courtrooms.”

Distasio, a self-professed pagan friar, is representing himself on 74 charges. He said he’s the leader of a church called Arcadian Fields Ministries, and that some of his congregants are among the victims in his case.

The judge told Distasio to confine his arguments to secular laws at his trial, scheduled to begin Sept. 11.

“If you want to challenge the law, that’s your right to do so,” Judge Kathleen Sutula said. “But we’re going to follow the laws of Ohio in this courtroom.”

I doubt anyone seriously believes that Phillip Distasio should be granted a religious exemption to laws banning pedophilia. Why? Because it’s generally recognized that sex with underaged boys will tend to harm them, even if it’s done for religious reasons. People don’t have a religious right to engage in behavior which harms others.

In the second paragraph, Douglas Laycock repeats his straw man by pretending that every resistance to any sort of religious exemption to neutral laws is exactly the same. It would be true that people who refuse to acknowledge that there are different reasons for wanting an exemption — some good and some bad — are revealing hostility towards religion, but who does this? Laycock doesn’t cite any examples and I don’t think he could manage to do so if he tried. That’s why it’s a straw man: he’s made up a caricature of what people really say in order to knock that down and pretend that he’s countered actual arguments or ideas.

Is religion uniformly less important than the interest behind a law or regulation? Sometimes it is, sometimes it isn’t. Assuming that the law or regulation in question isn’t unconstitutional, then it’s presumed to be a just and valid law or regulation which protects or furthers some just or valid interest of the community. In that context, the burden is with the religious group seeking an exemption to demonstrate that if they are allowed to ignore the law, then no one will be harmed.

One thing that Douglas Laycock doesn’t address in his attack on a straw man of his own creation is whether religious exemptions to neutral laws and regulations should be favored over nonreligious exemptions to neutral laws and regulations. If a person has a valid religious reason to not follow some law, and not following the law will not actually harm anyone, then it’s probably reasonable to give them an exemption. Why, though, should a religious reason for an exemption be the only kind allowed? Why shouldn’t other people be granted exemptions from the same law if they feel that they have a good reason? It’s implausible that religiously motivated behavior will not lead to others being harmed while nonreligiously motivated behavior will lead to harm, so we can assume that this basic standard would be met regardless of whether one has religious or nonreligious reasons to ask for an exemption.

In effect, then, Douglas Laycock’s comments serves to endorse Religious Privilege: the privileging and favoritism for religion which keeps nonreligious ideas, beliefs, and system in a secondary or inferior status. Because Religious Privilege is incompatible with liberty, we can rephrase Laycock’s comments thus:

In a pervasively regulated society, resistance to treating nonreligious exemptions the same as religious exemptions from regulation is hostility to liberty. It is the position that the equality of religious citizens with irreligious citizens is at the mercy of every religious interest group strong enough to enact a religious exemption to a rule in any of the many places in our system where exemptions to rules can be enacted -- legislatures or administrative agencies at the federal, state, county, or municipal level.

It is a refusal to recognize that a conscientious, nonreligious refusal to comply with a regulation has anything different from a religious refusal to comply. It is the position that irreligious beliefs are uniformly less important than religious beliefs -- that regulators have to take account of religion and only religion. ... In this world view, there is no room for liberty.

It would be wrong to deny any religious exemptions to anything, but it would also be wrong to only grant religious exemptions to laws and regulations. The courts recognize this because when it comes to formal rules for exemptions, like conscientious objectors to a draft, they define “religion” so broadly as to include anyone with strong, sincere beliefs and not just those who belong to hierarchical organizations usually deemed “religions.” Unfortunately, that’s just twisting language in order to avoid obviously and unambiguously unjust decisions — everyone recognizes that “religion” is being used to cover beliefs which aren’t religious, but this is the only thing the courts can in order to arrive at a “correct” and just conclusion.

The problem is, religious organizations today are seeking more and more exemptions from more and more neutral laws and too little regard is being paid to the reasons why the laws exist in the first place. In the past, religious exemptions were usually minor and it was reasonable to start out with a preference for granting an exemption. Of course, the fact that most people were not only religious, but also members of the religion seeking an exemption, certainly made the easier. Today, though, this isn’t the case and a more critical perspective should be adopted. People should be “resistant” to granting religious exemptions to neutral laws and rules in the sense that they should expect those asking for an exemption to shoulder the burden of proof that their exemption is valid and that no one will be harmed.

 

Separation of Church & State:

• Separation of Church and State 101
• Secularism 101
• What is the Separation of Church and State?
• Religion's Place in the Public Square
• Myths About Church/State Separation

 

Secularism & Secularization:

• What is Secularism?
• Religious Origins of Secularism
• Secularism as Philosophy
• Secularism as a Political & Social Movement
• Secularism vs. Secularization
• Religion in a Secular Society
• Critiques of Secularism

 

Christian & Religious Privilege:

• Religious Privilege
• Christian Privilege
• Hidden Christian Privileges
• Christian Supremacy