Religious Exemptions for Everything!

My friend and colleague Noah Zatz just suggested an interesting idea: if religious organizations can get exemptions from the Affordable Care Act due to their deeply-held religious beliefs, why limit it to contraception?  Why not include immigration law in the picture?

“You shall love the stranger, for you were a stranger in the land of Egypt.”  This is not an isolated Biblical line: it is repeated no less than 36 times (really) in the Bible.  So synagogues, churches, and mosques (musn’t forget mosques) should just make it clear that they should not have to obey immigration law: they will hire or provide services to anyone and everyone regardless of immigration status.  Any attempts by any law enforcement agency to prosecute them or in any way harass or deport immigrants who are part of their religious communities violates their freedom of conscience to include them (not to mention their rights to freely associate).

Because it’s really about religious liberty, right?  Right?

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

15 thoughts on “Religious Exemptions for Everything!”

  1. Funny you should mention that. I seem to recall that last summer the Catholic Church in Alabama was quite public about the fact that that state’s recently passed draconian anti-immigrant laws were contrary to its bibilical mandate and thus infringed on religious liberty.

    I don’t recall during this dust-up any liberals suggesting that the Church should just shut up because we can’t allow “faith based nullification” of our laws. But then again, I suppose when its laws passed by the other guys…

    1. As far as I know, the church there did not insist on an exemption from immigration laws, so there was no issue of nullification. And that’s because the bishops are really more concerned about sex. In any event, there is a stronger legal argument against the Alabama law, namely, that it is pre-empted by federal law. And there is a stronger policy argument against the Alabama law, namely that it is inhumane and so prone to racially discriminatory enforcement that it is tantamount to declaring open season on anyone who looks Latino. Liberals make and made those arguments without asking for specific exemptions: they/we can argue against them on policy grounds intelligible to those who don’t take their policy prescriptions from 40-year-old encyclicals. But thanks for playing.

      1. The church made it clear that the law was unjust because it required religious institutions in the state to violate their consciences in handing over immigrants who sought assistance to the authorities. The bishops in the state, along with many other Catholic institutions, campaigned to have the entire law struck down on religious grounds – a far more aggressive stance than simply asking for a waiver from compliance because the law violated the consciences of religious observers.

        “there is a stronger legal argument against the Alabama law”

        Perhaps – on technical legal grounds

        “there is a stronger policy argument against the Alabama law”

        A matter of political judgment, not fact.

        In any event its no matter – liberals who loudly insist that the Bishops’ current campaign against the HHS mandate is inappropriate in a pluralistic democracy had ZERO issue with the local Alabama Bishops’ campaign against the state immigration law. Because at the end of the day, its not so much about principle as politics.

        1. “The bishops in the state, along with many other Catholic institutions, campaigned to have the entire law struck down on religious grounds – a far more aggressive stance than simply asking for a waiver from compliance because the law violated the consciences of religious observers.”

          And that is the reason why liberals essentially ignored the church’s position: they disagreed and still disagree with it. What you’re asking for is that liberals should have spent their time and energy attacking not the law, but the justifications that a group gave for opposing the law. I’m sure that you would like liberals to spend their time and energy doing that, but we/they have a hard enough time in Alabama.

          In any event, it’s quite amazing that the bishops have had such a beautifully organized campaign all over the country on this issue, to the point of reading statement from pulpits throughout the United States, and somehow this just wasn’t that big a deal for them. Interesting, that.

        2. Jonathan is ably dealing this this, but I wanted to add, in a more abstract sense, that some random person supports X , and I also support X, does not mean that I and some random person agree about everything. There have been times when I’ve come across conspiracy theorists who, it seemed to me, had a point. I’ve also agreed with the Catholic church. I’m not going to trade my beliefs on either one just for cheap politics.

          Maybe Reagan’s Big Tent means selling out that way, but liberals with principles don’t do that (which is not to say we don’t compromise.). Your trolling would work better if you actually understood who you are arguing with.

          Yes, there was a joke in there.

    2. “I don’t recall during this dust-up any liberals suggesting that the Church should just shut up because we can’t allow “faith based nullification” of our laws. But then again, I suppose when its laws passed by the other guys…”

      Liberals were against the law, and none of you right-wingers were granting the Catholic Church a break here – your piety and concern only manifest when it’s in protection of child molestation and controlling women’s bodies.

  2. Right. If the Catholic Church in Alabama complained that the law was morally wrong, good for them. Those who think the Church has moral authority should have listened to that authority; the rest of us should have considered the arguments on their merits. If they violated the law and dared the state to punish them, whether to try to do it would have been a hard call for the Governor, which of course is exactly the point of that kind of civil disobedience.

    But if they had argued that they ought to be allowed to violate the law because they disagreed with it, and claimed that requiring them to abide by it was a violation of their religious freedom, the correct liberal response would have been “Bullsh*t!” The Quakers and Mennonites can’t refuse to withhold federal income tax from their employees’ paychecks because doing so requires them to pay for wars which violate their religion; that’s simply not the way accommodation of “tender consciences” works.

    But sd’s argument comes back to bite him. Did he consider the Alabama immigration law a violation of freedom of religion? Did any of his fellow wingnuts now accusing Barack Obama of making war on the First Amendment argue for a religious exemption to the vicious, oppressive law they supported? No. Would they carve out such an exemption now? No. Ergo, their claims that this is about religious freedom are utterly bogus and insincere, and deserve to be treated with contempt. This is an argument about contraception, just as the argument about the Alabama law was an argument about immigration. “Freedom of religion” simply doesn’t enter in to it.

  3. The charges of hypocricy are odd given that I, along with many Catholics, opposed the Alabama law both on the merits (i.e. it is an unjust and inhumane law) and on the grounds of religious freedom: that is, it is especially heinous to require, as the law did, religious institutions with a conscience-driven mandate to serve the immigrant to turn those immigrants over to the police. It is certainly true that many Republicans supported the Alabama law and oppose the HHS mandate, but that’s of no interest to me given that I’m not a member of said party nor do I think that it has any particular moral authority per se. The contemporary Republican party supports many things that are grave moral evils – like the torture of prisoners, the mis-treatment of immigrants and the immoral use of military force (though of course on this last front they are not alone as the current President’s enthusiasm for drone warfare and unjustified interventions in the civil wars of Libya, etc. demonstrate). But the contemporary Democratic party also supports many things that are grave moral evils – like abortion on demand and, recently, the imposition on religious institutions (institutions which otherwise do a VERY large share of the blocking and tackling of healing the sick, educating the children and comforting the poor in the United States) of a requirement that they provide services that they find morally repugnant. Of course in actual elections one must choose from the available options, so like most folks I weigh the pros and cons.

    The fact that the active opposition to the Alabama law was mostly local, whereas the active opposition to the HHS mandate is national, is because the former applied only in Alabama while the latter applies nationally. I’m sure that on the merits Bishops in Nigeria and Spain and Australia would oppose the HHS mandate, but they’re not expending a lot of active effort in opposing it because its not in their backyard. Being human beings they are, quite naturally, more concerned with injustices in their own communities than in far-flung geographies.

    I’ve noticed a trend in the last few years in liberal commentary of insisting (with a vigor that gives away the game) that OF COURSE the arguments advanced by their political opponent are not the REAL reason for their positions. Because of course when confronted with someone making moral claims that you don’t agree with, its much more psychologically comfortable to assume that they are acting in bad faith than to contemplate the possibility that other smart people are seriously engaged in thinking through the morality of an issue and come to different conclusions than oneself. Tender consciences indeed.

    P.S. Would Barry’s comment have been allowed to stand on this forum if it were written about any religious group other than the Catholic Church or would it have been deleted? Yep – that’s what I thought.

    1. Sd – did your religious superiors demand a statement be read in churches about immigration laws?

      Did they do so regarding health care policy changes about the Pill?

      These are simple questions with simple answers.

    2. I am quite certain that the global systematic sexual abuse of children is a grave moral evil, and that any organization, of any type, that permits, and even aids its occurrence over decades to be utterly worthless on moral guidance in other areas. Or perhaps sd has already forgiven and forgotten that terrible sin that continues to this day.

      Spare me the perverse moralizing, hypocrite.

    3. This comment is almost entirely irrelevant to the criticisms made of your initial response. I agree that calling you a hypocrite is false, but you are studiously ignoring the distinction between opposing a law on moral grounds and trying to have it overturned in toto and believing that one should have an exemption from a law that everyone else must comply with.

      If you start allowing exemptions for moral objections to government policies, then the system stops working. As has been pointed out, if you are going to say that the Catholic Church should be allowed to avoid a secular requirement to pay for birth control, what grounds do you have for opposing everyone from not paying for the things they object to. Muslims should be allowed to tell the government that they refuse to allow their taxes to be used for pork subsidies. Quakers should be allowed to say that their taxes can’t be used to fund the military. Scientologists should be allowed to refuse to fund the NIMH. And no, I don’t think that the distinction between paying taxes to the government that it spends on things that a taxpayer finds morally objectionable and the government telling you to spend the money directly makes any difference to the point.

      If people were really honest when they argue for this sort of religious exemption, they would be implicitly arguing for the end of our conceptions of governance. You can’t run an entity the size of the United States if people are allowed to make an individual choice about what to pay for in the federal budget. Of course, most of those arguing to allow Catholic institutions to avoid secular requirements for health insurance are arguing in bad faith. They have no intention whatsoever of allowing those they disagree with to be exempt from the things they object to.

      Where they really fail to understand the First Amendment is when they frame the debate as being about a *religious* exemption from regulation rather than a moral one. Are there any bets as to how an atheist claiming a moral objection to government policy would be treated by these same people? In fact, I’d like to know your opinion on that, sd. Should someone be allowed a moral exemption from government regulations that they oppose if their objection does not in any way derive from a religious source? If so, how are you planning to govern a country in which anyone can do so? If not, then aren’t you privileging religion rather than simply allowing it freedom?

    4. 1) Re the PS – this is my favorite form of wing-nut argument: Let’s pretend that some people who didn’t do something really did it, and then let’s accuse those people of hypocrisy (or racism, or anti-Catholic bias, or whatever) because of what we’ve pretended they did.

  4. “This comment is almost entirely irrelevant to the criticisms made of your initial response. I agree that calling you a hypocrite is false”

    If you were referring to my comment, then I think I should point out that sd is specifically saying that the moral judgments of the Catholic Church are superior to that of the secular government, and where there is a difference, the judgments of the Catholic Church should take precedence. I merely point out, with an indisputable example of pervasive structural amorality within the Catholic Church, that his belief is not true. To the extent that he accuses people who do not uncritically accept the principles of his corrupted church as being guilty of “grave moral evil”, he is a hypocrite.

    But apart from the first sentence I agree with everything else in your comment.

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