In the wake of the Hobby Lobby ruling, which permits corporations to deny health benefits to employees if providing those benefits conflicts with the religious beliefs of the owners, "religious exemption" has become the strategie du jour of the radical right to justify bad behaviors for which American society no longer has patience. While the wedge issue is health care, specifically contraception, it's easy to see why LGBTQ activists are nervous about the ruling. Don't want gay people working for you? Claim religious exemption from non-discrimination laws. Don't want to sell your services or rent an apartment to gay people? Religious exemption to the rescue! Want to keep gay people from visiting their partners in the hospital, or having a say in their care? Again, religious exemption. These two words put at risk every gain in civil rights that sexual minorities have eked out of a cluelessly bigoted culture over the last half century.
The US Constitution provides grounds for two levels of exemption: religious institutions maintaining theological standards for employees, and religious employees of secular institutions receiving protection for their beliefs. It is reasonable, for instance, for a church to require that its pastor adhere to a denominational creed, or that teachers in its parochial schools present an accurate representation of church doctrine to students. On the other side of the coin, employees of American businesses have a right to dress in accordance with their beliefs, and to be able to practice the rites of their faith without harassment, as long as such practice does not interfere to a harmful degree with the performance of their work duties.
The passage of the Affordable Care Act has led to conflict over a third level of religious exemption: religiously affiliated institutions that are not, themselves, houses of worship: church-affiliated hospitals and colleges, for instance. The question of whether these organizations must provide contraception in their health insurance benefit has led to a work-around that pleases no one, since the goal of the institutions is to paternalistically keep their employees from using contraception at all. The Hobby Lobby ruling extends this kind of exemption even further, to private corporations whose owners happen to hold religious beliefs that contradict federal statutes. As Mark Joseph Stern explains in a Slate piece on levels of religious exemption, it's not far here to opening up this right to individuals.
I have to admit to feeling some sympathy for religious persons being pressed by federal statute into behaviors they consider sinful. Since childhood, I've considered myself a conscientious objector--a person who, if drafted into the military, would refuse to serve due to religious or philosophical objections. Conscientious objection as a status dates back to the 1500s, though it did not become a part of military law until the late 18th century in Britain and the new United States. In any case, for the entire history of this republic, it has been understood that pacifists should not have to bear arms or use them on others, however just the conflict might seem to its perpetrators. This does not mean that conscientious objectors have always been treated well, but at least their right not to fight has been protected.
So I'm comfortable with individuals having a religious exemption to serving in the military. Refusing to bear arms and take lives seems to me a proper use of this principle.
What, then, of religious exemption to justify discriminatory behavior, whether it is in the matter of providing contraceptive health benefits or of according equal treatment to persons one considers sinful?
This is where I have to do some ethical parsing. In the matter of conscientious objection, a person is refusing to participate in a practice that leads directly to harming other people in tangible ways. When it comes to religious exemption from non-discrimination laws, or from providing contraception, we enter the area of protecting one's right to harm others. Granted, such harm is, in the case of discrimination, more a matter of economics and psychology: to refuse service to a gay customer may cause that person distress, inconvenience, and added expense, but no actual physical harm is being inflicted. If it were, assault statutes would come into play. Similarly, a woman denied the use of an IUD can still settle for a less convenient--and less effective--form of birth control, or pay for the device out of pocket, but except for the increased risk of conception, the harm to her is far less than that of firing a rifle at an enemy soldier.
The severity of harm, then, is, at first glance at least, far less severe than that of serving in the military. But again, this is a reversal of the conscientious objection principle: the individual or corporation claiming religious exemption is seeking to protect the right not of abstaining from harming another, but of inflicting harm on another, however much it may fall short of actual physical assault.
This argument ignores another factor, though, one that Americans have accepted with regard to racial discrimination and most forms of sex discrimination: psychological harm is still harm. Second-class treatment causes wounds that, while not immediately visible, create scars that may never heal, and may be passed on to future generations. Deny me a job or a home not because I am unqualified, but because of who I am, and I will internalize that rejection. Do it repeatedly and however philosophically detached I may be, I will sink deeper and deeper into resentment. This will color my relationships with my partner, my family, my children, and it may take generations for them to heal the wound inflicted on me today. If you doubt this, just consider for a moment how much America is still struggling with the scars of slavery and Jim Crow, generations after these practices were rendered illegal.
One final thing about the religious exemption: there is deep irony in hiding behind a church to justify treating others uncharitably. True religion, as I and, I think, most Americans understand it, is about doing good. Using religion to justify harming others, and using the Constitution to protect such behavior, is a perversion of religion that harks back to the Inquisition, during which concern for the souls of sinners merited their torture and murder by the church. And yet, again and again in the United States, religion has been used as a shield protecting bigots and abusers from acknowledging and accepting consequences for the harmfulness of their actions. That such reasoning is ultimately counter-productive--who wants to belong to a church that defends bigotry?--is lost on those for whom the hatred of others matters more than the future of their church and nation.
It's probably just a matter of time until someone uses the Hobby Lobby decision to justify denying an apartment to a gay couple. Hopefully that action will throw the whole matter back up to the Supreme Court, making plain just how dangerous it is to create a shield of religious exemption for discriminatory behavior, motivating them to reverse themselves and restore sanity to the American ethos.
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