Kathleen M. Sands is professor and graduate chair in the Department of American Studies at the University of Hawaiʻi at Mānoa. She is the author of America's Religious Wars: The Embattled Heart of Our Public Life (2019).
Here is a riddle: What is it that religious adherents need most, but that government can least afford to give? Answer: exemptions to general laws. For religious adherents, nothing is worse than to be punished for exercising their religion. But for government, nothing is worse than to be unable to implement laws, especially those affecting the public interest.
The problem, of course, is not exemptions per se—all laws have them. The problem is that the amorphous category of religion cannot help us discern the range of workable exemptions. Religious freedom claims are better reframed in terms of the people, interests, and principles involved. Those principles certainly involve liberty, but not liberty alone. As the COVID-19 crisis shows, religious freedom claims bear on other critical principles, including equality and the common good.
As the COVID-19 crisis shows, religious freedom claims bear on other critical principles, including equality and the common good.
The recent Supreme Court ruling in Roman Catholic Diocese v. Cuomo, enjoining coronavirus restrictions on religious gatherings, did not directly address religious exemptions. Its main point was just that COVID-19 restrictions ought not treat religion worse than comparable activities. In fact, most religious organizations have not requested such exemptions. More commonly, they have not only been complying with COVID-19 rules but have also been feeding and comforting the pandemic’s victims. Nevertheless, the Court is now handling a request for religious exemptions from mandatory mask-wearing. In the not-too-distant future, courts also will face religious claims for exemptions from legally mandated COVID-19 vaccinations. And these coronavirus-related claims flow into the existing torrent of religious claims for exemptions from civil rights laws, contraceptive insurance coverage, and other issues in the culture wars.
Presently, those who benefit from religious exemptions are mostly social conservatives, but exemptions are impracticable regardless of the petitioners’ political bent. Either the exemptions will be distributed unequally, favoring only certain religions, or they will severely impede the implementation of law and public policy. This obvious truth hides in plain view behind certain persistent but incorrect assumptions: that religion is good, that religious differences are relatively few, and that religious exemptions will not disrupt law and social order.
Religion is neither good nor evil. That’s not just because religions do both good and harm; it’s also because religions disagree about what’s good, bad, or morally neutral. These disagreements are many, and they can disrupt the social order, whether for good or ill. Indeed, as M. Cathleen Kaveny points out, some religious freedom claims are intended to reform or transform what is seen as a corrupt society. It has never been the case that American religions agreed on the foundations of society and disagreed only on “religious” matters. Still less still is it the case today, when many religious conflicts are foundational conflicts.
It has never been the case that American religions agreed on the foundations of society and disagreed only on 'religious' matters.
That disruptive potential may be present even in religious worship, as Governor Cuomo worried. Worship is the heart of the ideal of religious freedom, both because worship is crucial for believers and because worship is assumed to have no bearing on public life. But COVID-19 makes a public issue out of the number and proximity of congregants, whether they embrace or shake hands, drink from the same cup, sing or chant. Granted, pandemics are unusual; under most circumstances, government could never regulate the details of worship. Still, the pandemic discloses that the supposed boundary between the religious and the secular is not fixed. There are not issues that are inherently religious and others that are inherently secular. And if there is no fixed boundary around religion, neither is there any way of cabining what can be claimed as a religious liberty.
In the New York case, the per curiam opinion began with the threshold question for Free Exercise claims: Was religion singled out for unfavorable treatment? This accords with the 1990 case of Oregon v. Smith, which ruled that nobody is constitutionally entitled to religious exemptions. That was a dramatic change from the short-lived Sherbert standard, in which every substantial burden on religion called for strict scrutiny—meaning that government must show a “compelling” interest and use “narrowly tailored” means to achieve it. But even under the Smith standard, strict scrutiny still applies if religion was being treated with special disfavor. The threshold issue becomes whether religion is being treated differently or worse than other things. But once this threshold is passed, the application of strict scrutiny itself treats religious claims differently or better than other claims.
As the per curiam opinion says, there’s no good reason why a synagogue that can seat 500 people should be restricted to only 10. But the considerations that make this irrational and other limitations rational, such as square footage and ventilation, apply to religious and non-religious entities alike. New York should have applied the same criteria to religion as to everything else. To be treated the same solves the equality aspects of these claims, but not the liberty aspect. That calls for being treated better, and therein lies the insoluble problem.
The COVID-19 situation is unusual, presenting a “compelling interest” of such gravity that any necessary means to curb it are, ipso facto, as “narrowly tailored” as possible. But religious exemptions can generate inequality and do harm in ordinary times, too. As Justice Scalia wrote in Oregon v. Smith, constitutionally mandated religious exemptions render every law “presumptively invalid, as applied to the religious objector.” The root problem, he frankly observed, was equality. Precisely because the United States accepts and values pluralism, constitutionally mandated religious exemptions are a “luxury we cannot afford.”
Precisely because the United States accepts and values pluralism, constitutionally mandated religious exemptions are a 'luxury we cannot afford.'
Scalia’s reference to a constitutional right as a “luxury” rankled many. Yet the examples he offered, all drawn from real cases, were hardly luxuries in relation to the common good. They included “compulsory military service, payment of taxes, health and safety laws such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, traffic laws, minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equal opportunity for the races.”
Religion is one of the critical questions raised by our constitution, but it’s a question that law alone cannot resolve. The answers lie in granular inquiry about the people, the interests, and the principles—both constitutional and extra-constitutional—that are at stake.