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Report: Expansion of religious exemptions undermining law


The Basilica of the National Shrine of the Immaculate Conception in Washington holds a livestream service with an empty audience in April 2020 due to the COVID-19 pandemic. Some states sought exemptions for churches to rules governing public gatherings during the health crisis. File Photo by Kevin Dietsch/UPI | License Photo

Nov. 26 (UPI) -- A new report contends the right to religious exemptions from the law -- such as those that have allowed medical professionals to refuse to provide contraceptive healthcare and a calligraphy company to decline to sell wedding invitations to same-sex couples -- has expanded vastly in the past decade and is threatening the liberties of others.

The faith-based exemptions involve more than reproductive health and LGBTQ issues, according to the report by Columbia Law School's Law, Rights, and Religion Project in New York City. The report says some states have passed or proposed bills that include a broader right to religious exemptions than provided under the U.S. Constitution.

"By citing real cases, we demonstrate that nearly any law or policy, including those protecting crucial interests like workers' rights, public health, environmental welfare, emergency response and religious pluralism, may be limited and/or significantly undermined by religious exemptions," the policy think tank says in the report, released earlier this month.

The report says the most expansive state bills are modeled on the federal Religious Freedom Restoration Act, which bars the government from substantially burdening a person's exercise of religion except in furtherance of a compelling governmental interest and only if an action is the least restrictive means of furthering that interest.

South Dakota and Montana passed RFRAs this year, and Arkansas will vote on a referendum in 2022 that would put RFRA-style language into the state constitution, the report says. Efforts to pass RFRAs are expected in additional states during the next few years.

Narrower bills that provide religious exemptions from COVID-19 vaccine mandates and other public health laws also are expected.

"Those who have long been sounding the alarm about the risks of overly broad exemptions often trot out a so-called 'parade of horribles.' An expansive right to exemptions, they claim, could permit religious adherents to ignore countless civil and even criminal laws," the report says.

Cat food, pasta strainer

Requested exemptions listed in the report -- some of which were allowed and others that were rejected by courts -- include paying less than the minimum wage; excluding employees from being protected by antidiscrimination laws because they are deemed "ministers"; denying jobs, housing and services to certain classes of people, including religious minorities and LGBTQ people; allowing parents to withhold necessary medical care from their children due to religious beliefs; and giving faith-based colleges exemptions from a requirement to recognize unions.

So far, no state has granted spouses a religious right to force their partner into a binding "biblical" or covenant marriage or claim a faith-based right to engage in serious crimes, the report says. It gives as an example a defendant who said he was an adherent to "Creationist Naturism" and unsuccessfully argued his post of a nude child on Pinterest was religious in nature.

The report says some exemption claims are confounding, citing a Florida man who said he had a religious obligation to eat cat food in the workplace and a Massachusetts woman who wanted to express her religious identity by wearing a pasta colander on her head in her driver's license photo.

(A federal judge ruled the man's personal religious creed concerning Kozy Kitten Cat Food was a mere personal preference that was not protected by the Constitution. After some legal wrangling between the Massachusetts Registry of Motor Vehicles and the American Humanist Association's Appignani Humanist Legal Center, the woman, a member of the secular Church of the Flying Spaghetti Monster and a self-described Pastafarian, was allowed to wear the strainer in her photo.)

"While not necessarily harmful, such claims underscore the challenges of a regime in which religious exemptions are too often seen as a license to get out from every conceivable law or policy," the report says.

Protecting religious minorities

The report says some exemptions are warranted.

"Religious exemptions have also been used, for example, to ensure that people in prison have access to kosher and halal food; that schoolchildren and members of the military are able to wear religious head coverings and hairstyles; and that members of small religious groups, including indigenous religions, are not criminally prosecuted for the ritual use of substances like hoasca and peyote," the report says.

Nick Fish, president of American Atheists, which advocates for church-state separation, notes that when Congress passed the RFRA in 1993, the act was meant to protect religious minorities.

"American Atheists opposed that law because we predicted it would be used to grant unfair preferences based on religion -- and we were right," Fish said in a statement.

Religious extremists have used exemptions to undermine efforts to end the COVID-19 pandemic, he says.

"In Arkansas, Oklahoma and Arizona, they worked to pass bills that would grant churches exemptions from bans on large gatherings, turning churches into super-spreader sites and putting all residents at risk," Fish says. "And in two Supreme Court cases, a court stacked with religious ideologues agreed, exempting churches from common-sense restrictions on the size of in-person meetings."

To stop bills before they make it to the courts, American Atheists has launched state advocacy teams in Oklahoma, Virginia and Florida and plans to start more in 2022, the statement says.

Former Kansas state Rep. Brett Parker is leading the teams, which will work to defend civil rights and the separation of religion and government, according to the statement. Teams also are being set up in Colorado and California, he said.
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Public health orders, especially those related to COVID-19, are a common target of religious exemption requests, Parker told UPI.

"People claiming religious exemptions to something as simple as wearing a mask," he said. "It's becoming like the get-out-of-jail-free card. If you can claim a religious exemption, then it's almost like the inference is that no restriction or law should be applied."

Parker said he will be tracking legislation with the help of the teams and partner organizations. The work will ramp up in January, when state legislatures go into session, he said.