chevron-down Created with Sketch Beta.
July 05, 2022 HUMAN RIGHTS

Losing My Religion: The Dangers of Broadening and Politicizing Religious Exemptions

by April S. Love

Most people who have attended a primary or secondary institution in the United States learned very early the harrowing tale of a group of individuals referred to as the Pilgrims. This group of people climbed aboard the Mayflower and set sail to North America, enduring storms during a two-month trek across the Atlantic Ocean in 1620. The Pilgrims, so we’ve been told, were escaping religious persecution and seeking religious freedom, but upon their arrival, this began America’s progression into its use of religion to justify actions. The Pilgrims and many who came after utilized religion as a prop to discriminate, suppress, and use violence against those that they felt were “evil,” without feeling the need to be punished or harbor guilt.

Since 1620, a lot has changed, but one thing that has not is the ceaseless and ongoing use and discussion of religion for personal and political gain. Today, especially with the development and increase in the use of technology, discussions of religion and religious freedom are more prevalent, often examining who and what should be given this freedom, and what is included. During the Obama presidency, the 44th president was constantly criticized for the possibility of not being Christian despite having written about his Christian faith in at least two books published before he was elected and in many speeches. At the forefront of a lot of criticism was the 45th president, Donald Trump, who at the time was simply a business owner. During the Trump presidency, he played into the hearts of Christian voters by utilizing religion as a tool, which seems to correlate with the ideology of religious freedom. This use of religion as a means to a self-fulfilling end calls into question when exactly people are free to exercise their beliefs and under what stipulations. Is it religion or discrimination that pushes people to create and advocate for laws that may in turn prevent someone else from exercising their own rights?

During the Trump presidency, he played into the hearts of Christian voters by utilizing religion as a tool.

During the Trump presidency, he played into the hearts of Christian voters by utilizing religion as a tool.


Religious Freedom and the U.S. Constitution

The First Amendment of the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . .” This text was adopted on December 15, 1791, and based on the Framers’ ideology that in order to protect religious liberty, the government must not be involved in religion. This, however, may not be exhibited in America’s ever-evolving political landscape. The use of this constitutional amendment, much like others, is often left to interpretation, thus creating issues such as over-politicizing religious practices and being too broadly applied, creating a breeding ground for discrimination.

Religious Exemptions

Religious exemptions are derived from protections that come with the free exercise of religion in the United States, and while these exemptions are nothing new, they have become a hot commodity, with the inception of the creation and mandates of the COVID-19 vaccine. In California, Kaiser Permanente came to the center of a worldwide conflict when a nurse at their San Diego Medical Center posted videos of herself being escorted from the facility after being told she was being placed on unpaid leave following her request for a religious exemption from the COVID-19 vaccination that was deemed insincere. Kaiser Permanente’s company review found that there were employees who submitted similar or nearly identical requests for exemption with language that was found from a templated online form. These actions are not atypical around the world but derive from the Trump administration, which placed a dangerously high level of importance and interest on religion.

Religious exemptions are dictated by Title VII of the Civil Rights Act of 1964, which allows workers to request an exception to a job requirement if it “conflicts with their sincerely held religious beliefs, practices, or observances” and Executive Order 11246, Equal Employment Opportunity, which prohibits federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in government business in one year, from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin.

While these rules are very necessary to ensure that citizens are protected and able to practice their faith, it is very clear that altering these rules can lead to issues that stretch beyond vaccine mandates.

Trump Administration Exemptions

Following the 2016 election, the Trump administration set out to create a rule that would provide a clearer interpretation of the exceptions within Title VII and Executive Order 11246. This proposal and eventual rule was met with criticism and fear that it would create a breeding ground for religion-based discrimination. The Trump administration rule specified that the exemption be applied broadly to the protection of religious exercise, creating worry that during a time when there is conflict surrounding religion and politics, this would further the pushbacks against bans on employment discrimination. According to the Office of Federal Contract Compliance Programs, the Trump administration’s rule “permits a contractor whose purpose and character is not primarily religious to qualify for the Executive Order 11246” and included for-profit contractors, and any “employers that are organized for a religious purpose, held themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose.”

Since the creation of the Trump-era rule, the Biden administration has reversed these rules with the U.S. Department of Labor, arguing that the rule departed from standard interpretations of civil rights law banning employment discrimination. However, the impact, much like the Trump administration, is still ever present.

While this may seem like progress for those on the forefront of advocating for religious freedom, the religious exemption applied too broadly creates an environment that does the opposite of what it was created for. It creates a space of discrimination and a space for misuse of an exception designed to help people. ​​From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or “exempted” from laws that interfere with their religious practices, and the interests of society reflected in those very laws. 

If you identify as LGBTQ and are homeless, you could be turned away from federally funded shelters run by faith-based organizations.

The Dark Side of Religious Exemptions

Broad Use of Exemptions in the Form of Discrimination

In 1969 at the Stonewall Inn, there came a turning point for the LGBTQ community following a police raid and riots that stemmed from ongoing tension from harassment. These riots lasted for six days and are today memorialized through annual Gay Pride parades that are now celebrated around the world. Each Pride celebration memorializes another struggle for equality or win for the LGBTQ community. This has been no different as it pertains to struggles between the LGBTQ community and various religious communities, especially as religion becomes more involved in the political process.

The religious exemptions as they were with the Trump administration were a breeding ground for life-halting discriminatory actions. This is not only a sexual orientation issue but also an issue that affects impoverished people who identify as LGBTQ. For example, working-class and impoverished people do not always get to choose what organization they will interact with for services that they need. This goes beyond what most may think of such as a person’s favorite store rejecting them because of their sexual orientation. If you identify as LGBTQ and are homeless, you could be turned away from federally funded shelters run by faith-based organizations. Or, drug treatment programs funded by the state government could insist that you embrace Christianity to participate. Those who identify as LGBTQ may not be allowed to utilize taxpayer-funded childcare because they are in a same-sex relationship, and the list goes on.

These ideologies are rooted in religion and therefore allow people and lawmakers to utilize their religious beliefs to justify creating laws that may infringe on the rights of others with religious freedom and religious exemptions at the center of their argument, granting some the right to violate others’ rights to protect their own. 

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

April S. Love

Attorney; Public Policy Professional

April S. Love is an attorney and public policy professional specializing in civil rights, social justice, human rights, and social and racial equity. April currently serves as the policy analyst at a national policy center and regularly works as a consultant with organizations, leading and advising on research projects that deal with topics concerning the social and legal impacts of public policies.