Religious Exemptions and Public Policy: Freedom to Discriminate

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Religious exemptions have gotten a lot of attention recently, thanks to the constructed controversy around the contraceptive coverage requirements in the Affordable Care Act. Not only has the Obama administration made multiple concessions to religious organizations to remove their responsibility for providing certain forms of contraceptives, but the Supreme Court's recent decision about Hobby Lobby extended that religious exemption to privately-held companies whose owners hold certain religious beliefs.

These aren't the only examples where religious belief has trumped legal responsibilities, and they won't be the last.

More on the rise of religious exemptions below the jump.Key to the legal fight to allow discrimination under the guise of religious freedom is the Religious Freedom Restoration Act which, under Justice Alito, has become the primary tool for justifying these rulings of religious exemptions. It was also the basis for a ruling by a Texas judge in December, when she determined that three religious universities in Texas should not be required to cover methods of birth control they believe cause abortions.

Meghan Smith, the Domestic Programs Associate for Catholics for Choice, knows that this is not by accident. In a panel on religious exemptions, she pointed to the political power of the Council of Bishops in the United States. When they could not control the actions of those in the pews, Smith explained, they turned to the courts to enforce God's will in secular law. The greatest affront in this strategy, according to Smith, is that it is a complete misinterpretation of what the Catholic faith teaches its followers to do.

The Catholic bishops had great success with what are called “conscience clauses,” which are laws created to allow certain employees to refuse service if it violates their religious belief. The most widely-used example of this is allowing pharmacists to refuse to sell birth control to consumers if it is against their religion. But this is completely counter to the way many Catholics understand the concept of religious conscience in the first place. “Individuals have conscience,” Smith explained, “not institutions.” Further, conscience is not about enforcing your beliefs on another person by refusing to sell someone their medical prescription. It is an individual journey for each Catholic person. This is why Smith refuses to use the term “conscience clause” and instead calls them what they are: “refusal clauses.”

Religious exemptions aren't only hurting us in the courts. Medical schools run by religious institutions are neglecting to teach their students how to provide a whole range of family care services, and doctors are leaving school without any knowledge of how to provide abortion services. Nonprofits that rely on grants and private donations can see their funding threatened if they associate with organizations that take stances opposed to certain groups' religious beliefs. This does not only apply to abortion access. Advocating for AIDS/HIV research and coming out in support of gay marriage are both ways to get yourself in trouble in the age of religious exemptions run rampant.

For now, the conversation is about mainly about abortion. The companies with the most visible victories due to religious exemptions are those that managed to argue that their religious belief about what certain contraceptives do carried more weight than the medical and scientific reality in terms of whether they had a responsibility to help their employees access basic preventative care. But what happens next?

What if a company argues that they fervently believe women should be paid less than men, because according to their beliefs, men should be the heads of households? It does not take too much of a leap to say that if a company's belief about whether a medication causes an abortion is more important than the facts, then a company's belief about the family structure and appropriate compensation of women should also be protected.

Religious exemptions are not the frontier – they are already here. They will continue to be a part of the political landscape for years to come. It is incredibly important that we as progressives refuse to accept discrimination under the guise of religious liberty, and that we celebrate and highlight examples of true religious freedom and acceptance.

Religion does not belong to the right, though they are making a great case in the courts to make it appear to be so. We have to avoid the trap of shaming all religious faith based on the misuse of a powerful few, and instead focus on exposing the laws for what they are: refusal clauses and thinly-veiled discrimination.  

About Author

Genevieve Cato

Genevieve Cato is a feminist activist and a native Texan. While not writing for the Burnt Orange Report, she can be found working for State Rep. Mary Gonzalez under the pink dome, serving as a community member of the Communications Committee for the Lilith Fund for Reproductive Equity, and drinking copious amounts of pretentious local craft beers.

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