This covers some of the same history we discussed here (in \u201cArtificial Lemons<\/a>\u201c). After the Supreme Court allowed Oregon to refuse a religious exemption for a member of the Native American Church who used peyote in a religious ceremony, religious groups and civil rights advocates \u2014 everybody from the ACLU to the religious right \u2014 rallied in support of a legal remedy to reaffirm the right to such exemptions. The Religious Freedom Restoration Act of 1993 was unanimously approved by the House of Representatives and passed 97-3 in the Senate.<\/p>\n Think about that for a moment. I\u2019m not sure I can imagine the current House of Representatives unanimously approving anything<\/em>, but that\u2019s what happened with RFRA in 1993.<\/p>\n The rallying point for that law was what Watkins describes as a \u201cclassic example\u201d of a religious exemption:<\/p>\n Here are some classic examples of requests for religious exemptions: permission to use otherwise illegal substances for religious ceremonies, such as the Smith plaintiffs and Peyote, Catholics and sacramental wine during Prohibition, Rastafari and marijuana; exemptions from zoning laws for the construction of Sukkahs and rules regarding the religious use of public property for the constructions of eruvs;<\/em> exemption from mandatory military service, schooling requirements, or vaccinations; exemptions from incest laws (regarding Uncle\/Niece marriages for some communities of Moroccan Jews); Native American religious groups seeking privileged access to sacred spaces on federally owned land; exemptions to Sunday closing laws for seventh-day Sabbatarians.<\/p><\/blockquote>\n Those examples are not hypothetical \u2014 they come up all the time in American courts. Sitting here in Chester County, I\u2019d add another prominent example: The Amish. Head west\u00a0on U.S. 30 from here and\u00a0you\u2019ll soon encounter Amish carriages and Amish communities that enjoy a wide array of religious exemptions. Those exemptions are not controversial \u2014 not even for those\u00a0stuck in traffic behind a buggy out in Gap \u2014 because, as Watkins says, \u201cthey are fundamentally defensive in character.\u201d<\/p>\n \u00a0<\/p>\n I find some of these [classic examples] easy to support and others profoundly problematic, but they collectively share a common feature: they are fundamentally defensive in character. Their primary objective is to protect a practice or tradition or community, and little more. These exemptions are political but not in the sense that their exercise is directed toward the larger community in any concrete, meaningful sense. In these cases, the end sought in pursuing the exemption is, more or less, the exemption itself.<\/p><\/blockquote>\n Bingo. \u201cFundamentally defensive in character.\u201d That\u2019s important.<\/p>\n I\u2019m a strict-separationist Baptist kind of guy. That means, among other things, that I do not want to see any religious structures on government property. Public property is no place for sectarian religious structures.<\/p>\n But I also lived for many years inside the bounds of\u00a0an eruv<\/em><\/a>,<\/em>\u00a0and I do not believe that this eruv<\/em> \u2014 by definition, a sectarian religious structure \u2014 violated the separation of church and state. I believe, rather, that allowing the presence of the eruv on public, government property was a Good Thing. It honored the important principle of the free exercise of religion. And it honored the important principle of not being assholes to minorities just because you\u2019ve got them outnumbered.<\/p>\n If you\u2019re not familiar with eruvs,<\/em> they\u2019re a kind of religious loophole that allows Orthodox Jewish communities to travel a bit on the Sabbath without breaking their religious laws. That requires some kind of boundary marker to enclose the area in which they are permitted to travel \u2014 ideally, an area large enough to include their synagogue and the local hospital. The enclosure needs to be physically bounded,\u00a0and its physical boundary markers will often need to cross or rest on public property.<\/p>\n Part of the reason that eruvs<\/em> are not a controversial religious exemption is because they are nearly invisible and completely non-intrusive. We\u2019re talking about string or wire tracing existing utility\u00a0lines along city streets. If you don\u2019t know it\u2019s there, you\u2019ll never see it. (Even when you do<\/em> know it\u2019s there, it\u2019s very hard to spot. But it\u2019s kind of fun to try.) Accommodating an eruv<\/em> is much easier for the rest of the community than accommodating the religious exemptions for our Amish neighbors here in Chester County.<\/p>\n But, as Watkins says, that\u2019s not the main reason that an eruv<\/em> is a classic example of an easily supported religious exemption. The main reason is that it is \u201cfundamentally defensive in character.\u201d It exists \u201cto protect a practice or tradition or community, and little more.\u201d Our Orthodox neighbors aren\u2019t demanding that the rest of us abide by their religious laws forbidding carrying on the Sabbath. They\u2019re simply asking the rest of us to allow them to do so by running a bit of unobtrusive string along public property. Yes, it\u2019s sectarian string, but they\u2019re not seeking a privilege<\/em> that would give them some advantage over anyone else. They just want to do their thing and to survive. They want the right to extend their arm without hitting anyone else in the nose.<\/p>\n I don\u2019t think that\u2019s\u00a0a threat to the separation of church and state.<\/p>\n Watkins then discusses what he calls \u201ca kind of transitional case\u201d \u2014 City of Boerne v. Flores<\/em><\/a>. This was the 1997 case that overturned the RFRA law Congress had passed nearly unanimously four years earlier:<\/p>\n The exemption sought was to modify a church in a Historical District where such modifications were not permitted. While the exemption was clearly sought for the purpose of the exercise of religious activity, it wasn\u2019t really a religious exemption per se<\/em> \u2014 they wanted a bigger, more modern facility for more or less the general kind of reasons a private business or homeowner might have liked an exemption \u2014 accommodate more people, better amenities, etc. There was no connection between their status as a religious group and the nature of the particular exemption they were seeking; in essence they were arguing that the RFRA gives them license to avoid a law they found inconvenient.<\/p><\/blockquote>\n That, Watkins says, is the first step toward \u201cweaponized religious freedom\u201d \u2014 \u201cturning religious exemptions into a license for religious groups to evade general laws when inconvenient.\u201d The next step is far worse:<\/p>\n But this is only a partially weaponized use of religious exemptions; they\u2019re being used as a weapon to advance the church\u2019s goals, but not striking against their political enemies.\u00a0The quintessential case of a weaponized religious exemption is, of course, Hobby Lobby;<\/em> Obamacare was to be the subject of a blitzkrieg, to be hit with any and every weapon imaginable, and that\u2019s what the RFRA provided. Their efforts to make the claim appear credible\u00a0could hardly be lazier or more half-assed<\/a>. One possible check on weaponization, in a better and more decent society, could conceivably be a sense of embarrassment or shame; exposing one\u2019s religious convictions as a cynical political tool to be wielded against one\u2019s political enemies might be hoped to invoke enough embarrassment that it might be avoided, but we were well past that point.\u00a0A remarkable document of this trend is\u00a0this post<\/a>\u00a0from Patrick Deneen \u2013 fully, openly aware of the fundamental absurdity of Hobby Lobby\u2019s case, cheering them on nonetheless. I mean, you\u2019d think they\u2019d at least have found a company owned by Catholics.<\/p><\/blockquote>\n This weaponized use of religious exemptions has changed the context of the entire conversation that previously shaped our legal and neighborly accommodation of such exemptions. It is no longer about the classic examples of exemptions that are fundamentally defensive in character. This is an effort to use religious exemptions as an offensive weapon for political purposes that have nothing to do with the religious beliefs supposedly in question.<\/p>\n The goal of weaponized religious exemptions is not \u201cto protect a practice or tradition or community\u201d but to carve out privileges and advantages for some groups over others. And that, as Watkins says, changes everything:<\/p>\n![\"Print](\"https:\/\/wp-media.patheos.com\/blogs\/sites\/52\/2015\/04\/EdCoupon-300x198.jpg\")
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