Exemptions for Religious Organizations

The Free Exercise Clause of the First Amendment guarantees the right for religious groups to operate without fear of interference by the government. Ordinarily thought of as a measure to protect minority religions and to prevent any prioritizing of a singular religion, some groups have recently proposed their differing interpretation of the amendment. Recently in Arizona, Montana, and South Carolina, there have been bills proposed that would grant “religious exemptions on steroids.” (ACLU) These exemptions would grant religious organizations “blanket immunity” from liability if the illegal activity occurs while exercising their religion. The bills, HB 2648 in Arizona,  HB3105 in South Carolina, and SB172 in Montana, are hoping to prohibit the government from taking “discriminatory” actions defined as: “imposing any monetary fine, fee, criminal or civil penalty, damages award, or injunction against a religious organization; withholding or denying state contracts, grants, licenses, certifications, etc. for religious organizations; and altering the tax treatment of religious organizations.” (ACLU)

 

In a joint letter written by faith communities, civil liberties organizations, and other community groups located in Arizona, several issues are pointed out as well as potential scenarios that may come from the passing of the bill. These advocates voiced their deep concern for the “incredible dangers” posed by the bill and even stated that “the bill is disguised as religious liberty legislation protecting the right to worship during public emergencies, yet whether intentionally or unintentionally, the bill as written would give religious organizations immunity from all criminal and civil liability for any behavior connected to that organization’s religious exercise.” (Secular AZ) They included examples of situations that could occur and concluded their statement acknowledging the importance of religious freedom while highlighting the importance of government regulation to protect communities.

 

For a deeper look into the controversy and the question behind these three bills, I am going to focus on HB 2648 in Arizona. During the time of the COVID-19 pandemic, regulations were imposed that prevented religious organizations from fully participating in the ways that they wanted to. When this happened, there were people who argued that the Free Exercise Clause should allow them to be exempt from regulations and the liability they come with.

 

When it comes to Arizona HB 2648, the central question is: does the Free Exercise Clause warrant establishing religious services as essential operations during a public emergency and exempting them from neutral health and safety requirements imposed on essential businesses if rules substantially burden the ability of a religious service to exercise its faith? (AZ Policy)

 

In this case, I believe that the Free Exercise Clause should not allow religious organizations to be exempt from health and safety requirements imposed on essential businesses. I do, however, believe that the Free Exercise Clause should allow religious organizations to operate in comparable ways to secular businesses. To understand why the Free Exercise Clause should not fully grant religious groups immunity, the case Reynolds v. United States can be used. In this case, the court concluded that while the Free Exercise Clause guarantees freedom of religion, it does not protect religious actions, like polygamy, if those actions are knowingly breaking the law.

 

 The recent case RomanCatholic Diocese of Brooklyn v. Cuomo can be used to understand why the Free Exercise Clause should cause the government to maintain neutral restrictions on religious and secular businesses. In this case, the Supreme Court issued an opinion that “held that the plaintiffs’ rights to free exercise were most likely violated because the governor’s orders ‘single out houses of worship for especially harsh treatment’ that was not imposed on stores, factories, and schools.” (NEJM) The court also acknowledged that COVID-19 is a compelling state interest, but the orders were not narrowly tailored because they were stricter than rules in other states and because no outbreaks had occurred within the religious group. The Court even added, “Even in a pandemic, the Constitution cannot be put away and forgotten.” (NEJM) This recent decision should be used to defend the claim that the Free Exercise Clause should allow religious groups to operate under similar ways as secular groups and should not subject them to harsher treatment.

 

In the case of Arizona HB 2648, I agree with the concerns of the advocates that wrote the joint letter discussed earlier. These advocates hinted at the slippery slope that could occur if the bill passes. Supporters of the bill claim a substantial burden on their free exercise, but I think that religious groups could potentially have a “get out of jail free card” and find themselves to be protected from certain liability. It is uncertain whether this would happen in practice, but the possibility is there. As seen in Reynolds v. United States, the Free Exercise Clause cannot protect someone’s actions if they knowingly break the law, even if they claim it occurred for religious reasons. I do agree with the opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, and I think that in times of distress religious groups should be shown the same governmental oversight as secular groups.