Monday, April 13, 2015

The creeping expansion of religious exceptionalism

Dahlia Lithwick wrote a great overview of what academics have called "complicity-based conscience claims", arguments made by religious-rights advocates to exempt themselves from a wider and wider array of rules laid down in the civil sphere. The justificaiton for these exemptions is the supposed right for the devout not to be complicit in acts that violate the tenets of their religion.

You don't have to be an ardent member of an organized religion to appreciate that such exemptions are sometimes genuinely needed. The federal Religious Freedom Restoration Act in 1993 was a well-intentioned effort to make such exemptions easier to obtain, and even I, highly skeptical about such exemptions, will admit they sometimes have merit.

The trouble is that the original rationale for such laws has been lost in the clamor for greater and greater protections for a putatively oppressed religious minority. They're not oppressed and they likely aren't a minority, either, not in this almost embarrassingly devout nation, but that hasn't stopped the political leadership of this movement from playing the victim card every chance it gets. And as Lithwick points out, this bunch is no longer content with merely demanding the government not compel it to do things: this bunch is now insisting on the right to act on their religious convictions even if the consequences are borne by third parties.

In drafting the federal RFRA, Congress chose not to protect claims of religious freedom that placed a burden on third-party disfavored minorities. Responding to a federal appellate court case, Thomas v. Anchorage Equal Rights Commission, involving a landlord who didn’t want to rent to unmarried couples for fear of facilitating sin, Congress expressly opted not to enact a statute that would protect these types of claims.
This, of course, is where the recent Indiana, Arkansas, and now Louisiana state-level RFRA laws come in, with their explicit protections of private businesses that deny services if providing the services would violate the business owners' religious beliefs. In other words, the laws allow the business owners' religious convictions to trump their employees' and their customers'.

Lithwick points out that the impact of the complicity-based conscience claims, though, is most heavily felt in the realm of health care. The impact most notoriously falls on abortion and contraception, but the tactic can in principle be expanded as far as anyone wants. This is the reason I've argued that we need to stop relying on the Catholic Church to run hospitals. The troubling behavior, though, is hardly unique to the RCC: individual doctors, nurses and pharmacists have all asserted a right of conscience to refuse to provide certain drugs or services.

These claims of religious conscience are excessively burdensome to the rest of us, particularly to minority groups whom the majority culture (often with supposedly religious justification) has disfavored. Let the pushback against these claims begin.

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