People of faith now have a constitutional right to practice their religion—even when doing so conflicts with a government law or policy—that is more rigorously protected than nearly any other right. Some states have passed bills that provide an even broader right to such “religious exemptions” from the law than provided under the U.S. Constitution. Many more such bills have been introduced and await consideration.
Among the most expansive state exemption bills are those modeled on the federal Religious Freedom Restoration Act (RFRA), which provides a robust framework for gaining religious exemptions from any law, policy, or act of the federal government.
Advocates expect a concerted effort over the next few years to pass RFRAs in additional states. Other, somewhat narrower exemption bills include those (introduced in the wake of the COVID-19 pandemic) that exempt religious activities from public health laws, and bills that allow medical providers to refuse certain types of health care, such as contraception.
This policy brief corrects the common misconception that religious exemption measures pose a threat to only a narrow set of issues—namely LGBTQ and reproductive health. The continual expansion of the right to religious exemptions has been granted at the expense of countless rights and liberties of others, far beyond these two issues. 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.
September 2022 Update
This brief was originally released in November 2021. In September 2022, we released an updated version, which includes Braidwood Management v. Becerra (a case involving a business owner who refused to include PrEP—a medication that prevents people from contracting HIV—in their employee insurance plans due to religious objections), as well as other cases that have been decided or filed in 2022. For example, the new brief mentions a $10+ million settlement awarded to religious vaccine objectors at an Illinois hospital, a Kansas teacher who prevailed in her demand to misgender her students, and a Salvation Army program in Massachusetts that is seeking, on First Amendment grounds, the right to turn away people with opioid dependence who receive medication-assisted treatment.
What is “The Parade of Horribles?”
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. In response to these hypothetical warnings, many question whether religious groups would really seek exemptions from, say, minimum wage, race discrimination, or child welfare laws.
This brief demonstrates the reality: such cases have already been brought, and sometimes won. For years now, exemptions have been used to (among other things) narrow union and workers’ rights, sanction child endangerment, and allow discrimination against racial and other minorities.
While the “parade of horribles” presents a very real threat, it is not an inevitable one. By correcting our course on religious exemptions, we can secure a far more just and inclusive version of religious freedom.
Examples of areas where religious exemptions can—or have—caused harm:
- Minimum wage and workers’ rights
- Race discrimination
- Access to divorce
- Child welfare
- The right to union organizing
- Public services
- Public health
- Criminal law