My post from a while back on religious freedom (TL;DR version is that I have a problem with religious exemptions to rules or laws on the grounds that they effectively discriminate against people who are not members of the exempted religion. Any rule that should either apply to everyone, or to no one) generated an interesting discussion on facebook. A friend of mine brought up a very important perspective. He said:
As I understand it, the whole religious freedom thing started because laws were as much about enforcing community norms as anything else. When minority communities accrued enough power it became too costly for the majority to continue enforcing their norms upon them.
So, powerful enough minorities (but not the small/ politically weak ones) could get exemptions from state-enforced cultural laws.
It just so happened that what riled people up enough to get them to fight/ demand exemptions was religion. So, we ended up with religious freedoms.
We’re not as far from the past as one might hope (wrt legislating social norms).
I wanted to address these points here, because I think they are extremely important. My take on religious exemptions, while I still stand by it in principle, is in reality rather outrageously optimistic (at best), and actually potentially dangerous.
The fact is that the setting in which religious exemptions get granted is extremely complicated. The existing power structures in North America (and many other Western countries, as well as others) are very invested in maintaining the status quo. The people in power are those whose backgrounds, culture, beliefs, and traditions are already privileged, and those who, in general, see no reason to change things from the way they’ve always been.
And it is against this background that (many) pleas for religious exemptions are made. The fact is that, as much as I might like the argument in these cases to be one from first principles, about whether a given rule is valid, and for the decisions made to be universally applicable, the reality is that this system would not work within the existing power structures. Because for most of those in power, the argument “but this rule has no real reason to exist” isn’t good enough reason to remove the rule. Because to many people in power “tradition” outweighs the lack of reason, and is itself a reason in favour of no change, rather than the removal of a rule of the relaxation of a social norm.
And it for this reason that the argument from religious freedom, the basis on which religious exemptions are granted, is ultimately of vital importance. Because the way religious exemptions work is by actually reinforcing the norms, by identifying minority religions that gain exemptions as “other” (while religions and cultural traditions for which the “regular” rules are appropriate retain (i.e. white Protestantism, and to some extent Christianity in general) a default status).
Moreover, the religious freedom argument is simply more politically expedient than the “but this is a stupid rule” argument, especially in the US in many ways, because the country was founded in part by people who had fled religious persecution in their countries of birth (I will acknowledge here the extreme hypocrisy of their treatment of American Indians; nevertheless, the point stands that religious freedom is a culturally and politically powerful rhetoric in the US and elsewhere).
Mostly, what I am saying here is that I recognize that the existence of religious exemptions (well, most of them; corporate abuses of the idea of religious freedom are another thing entirely) is very, very important, and much better than the alternative wherein people inevitably would be prevented from practicing non-harmful aspects of their religions. It’s a flawed solution, and it only partially solves the problems it addresses (because of the problem of reinforcing the idea of what is actually normal, as well as in the fact that it only provides partial freedom), but it is nevertheless the best solution I am aware of in the context of political and societal norms that we know are notoriously slow to shift.
Ultimately religious exemptions, while technically discriminatory, are pretty analagous to things like scholarships that are made available only to people of colour, or women, or to any other identifiably under-privileged group. Strictly speaking, these scholarships are also discriminatory; they explicitly discriminate between people on the basis race, sex, and other factors. But we can all recognize that they do so with an eye toward boosting overall equity and justice in society, and that if we continue to fight the good fight, one day these kinds of protective discrimination will be unnecessary. And until that day comes, I will continue to fiercely support these forms of “discrimination”.
Carving out whatever space we can to protect marginalized people living right now, today, is just as important as keeping our eyes on the goal of greater freedom for everyone, and so I’m going to stop complaining about religious exemptions in general, and just focus on the ones that are actually harmful (as in Hobby Lobby, and similar cases).