rfmcdonald | [LINK] Two links on American concepts of "religious freedom" (Reply)

In question-and-answer format, the Volokh Conspiracy's Eugene Volokh introduces readers--in my case and many others, non-Americans--to the minutiae of American religious freedom law as currently being debated in connection to health care and GLBT rights.

1. What’s with religious people getting exemptions? I thought the Supreme Court said that wasn’t required. For most of American history, courts generally didn’t see the Free Exercise Clause as requiring exemptions for religious objectors. But in Sherbert v. Verner (1963), the Supreme Court said that such exemptions were presumptively required, unless the government could show that denying the exemption was necessary to serve a compelling government interest.

Then, in Employment Division v. Smith (1990), the Supreme Court changed its mind, by a 5-to-4 vote. The Free Exercise Clause, the court held, basically just banned intentional discrimination against a particular religion or religious people generally. With a few exceptions (such as for churches’ decisions about choosing their clergy), religious objectors had to follow the same laws as everyone else, at least unless the legislature specifically created a religious exemption.

The lineup in that ruling, by the way, was interesting: conservative Justice Antonin Scalia joined by conservative Justice William Rehnquist, moderate conservative Justice Anthony Kennedy, moderate Justice Byron White, and moderate liberal Justice John Paul Stevens voted for the nondiscrimination rule. Moderate conservative Justice Sandra Day O’Connor — joined by liberal Justices William Brennan, Thurgood Marshall and Harry Blackmun — disagreed, and wanted to preserve the Sherbert constitutional exemption regime.

But wait. Congress didn’t agree with Smith, and so it enacted — by a nearly unanimous vote — the Religious Freedom Restoration Act of 1993, which gave religious objectors a statutory right to exemptions (again, unless the government could show that denying the exemption was necessary to serve a compelling government interest). In City of Boerne v. Flores (1997), the court said this exceeded congressional power over the states, but RFRA — pronounced “riffra” — remains in effect for the federal government.

Moreover, since 1990, 17 states enacted similar “state RFRAs” that government state and local governments. One state (Alabama) enacted a constitutional amendment that did the same. Eleven states’ courts interpreted their state constitutions’ religious freedom clauses as following the 1963-1990 Sherbert model. And one state’s high court (in New York) interpreted the state constitution as applying a less protective religious exemption regime, somewhere between the old Sherbert approach and the Smith approach.

At the Everyday Sociology Blog, meanwhile, Jonathan Wynn takes a look at religious freedom arguments from the sociological perspective.

Laws that protect sincerely held religious beliefs may make sense at first glance, but it’s quite an interesting sociological puzzle as to what this phrase means, and how that should play out in a civil society where there are lots of divergent belief systems. The law is unclear on the matter (and the 1993 law, by the way, has an interesting history).

From a Durkheimian perspective, an incursion of the religious into the public sphere is somewhat inevitable, since religious beliefs must also correspond with actual social activity. As he wrote in chapter one of The Elementary Forms of Religious Life, religion is a “unified system of beliefs and practices relative to sacred things” and there is no religion without a church. This is to say that there are no sincerely held beliefs without corresponding actions. (Elementary Forms concludes with a reference to struggles between religious beliefs and science, foreshadowing the Scopes Monkey Trial of the 1920s and the recent Bill Nye vs. Creationism debate; the U.S. Supreme Court will listen to arguments against the Affordable Care Act on March 25th, 2014.)

The question is over what religious freedom allows citizens to do. Religion can give a moral warrant for all sorts of things. The Hobby Lobby’s owner, for example, wrote a much talked about 2012 op-ed in the USA Today coming out against providing comprehensive preventative care for women claiming he has the right to run his businesses upon the tenets of his Christian values. Hobby Lobby is, in fact, closed on Sundays as per the fifth commandment (Exodus 20:8-11) but it is doubtful they would support putting a child to death for cursing his mother or father, or an adult for adultery. Few would argue that these sincerely held religious beliefs—as listed in the Bible’s rulebook, Leviticus (20:9; 20:10)—should be accepted one and all. Strongly held beliefs are, of course, selective.

Which brings us back to A.J. Jacobs, who tried harder than most to follow those sincerely held beliefs both commonly held (e.g., love thy neighbor as yourself, Mark 12:31) and the less followed (e.g., not wearing clothes of mixed fibers, Leviticus 19:19). He tried as many of the lessons from the good book as possible. At one point he walked around Manhattan with pebbles in his pocket to stealthily stone blasphemers. It’s a pretty entertaining read.

But there aren’t too many of us who live as biblically as possible these days. The central pivot of Durkheim’s first major work, 1893’s The Division of Labor in Society, is that as societies move from a more primitive state to a modern one, the religious influence on the collective conscience wanes and new forms of solidarity based on mutual reliance upon each other waxes.