An essay of mine on the ascendancy of religious exemption in our world and exemption’s relationship with what I call “establishment” and “disestablishment” (hint: it’s not really about “religion,” whatever that means). A bit from the beginning, which fortuitously uses some barbecue metaphors in honor of Independence Day:
What can the minority in a democracy reasonably expect from the majority? Church-state conflict in this country always seems to boil down to this basic question, whether the issue is Christian crosses on highways, objections to vaccine or mask mandates, privileges for general reporting requirements, prayers in schools or legislative sessions, funding for religious institutions, Native American objections to government land projects, or so many others.
Yet nothing illustrates the problem quite as vividly as religious exemption. Exemption is sometimes called “accommodation,” a term that seems inapt. An accommodation is an obliging adjustment. If I plan on serving burgers and sausages at a barbecue, but I learn that one of my guests does not eat meat, I make an accommodation by including a pasta salad and grilled zucchini. I do so willingly, even complaisantly, because I harmonize the wishes of the vegetarian guest with the interests of the rest. Everybody wins.
But everybody does not win with exemption. Exemptions (of any kind, religious or otherwise) from the laws are little negations of the laws. They suggest that the laws are actually not as important or essential as had been supposed. Exemptions are, in this way, politically subversive. They destabilize the legal settlements of democratic majorities, while encouraging sentiments of entitlement and interiority. True, sometimes democratic majorities enact broad exemption laws, as they did in the Religious Freedom Restoration Act and its state analogues. And yet James Madison once warned that the dangers of faction needed to be managed lest they engulf the common good. The ascendancy of exemption suggests that, today, faction is how Americans understand the common good. We have embraced a kind of federalism of personal autonomy.
