Bitter Angels

For many people in the United States, especially those on the more conservative side of the ledger, "Freedom of religion" is most commonly understood as "Freedom of Christianity." That conflation of religion and Christian virtue is dangerous, because it introduces a level of myopia that can have wide-ranging consequences.

Republican lawmakers in West Virginia are looking to advance the "West Virginia Freedom of Conscience Protection Act," the purposes of which are to: "(1) Ensure that in all cases where state action burdens the exercise of religion strict scrutiny is applied; and (2) Provide a claim or defense to a person or persons whose exercise of religion is burdened by state action." So far, so good. I get it. Personally, I think that American Christians have developed a persecution complex that is unwarranted by the facts on the ground, but a person's perceptions are their reality, and so I understand that they feel besieged by a secular government that seems to be in the hands of their enemies. And to the degree that there are Christians who feel that the entire point of secularism is to lead people away from righteousness, it makes sense that they would push back against that. But when you look at the definitions of things, it starts to become iffy:

"Exercise of religion" means the sincere practice or observance of religion or religious conscience.  It includes, but is not limited to, the ability to act or refuse to act in a manner substantially motivated by one's sincerely held religious beliefs or religious conscience, whether or not the exercise is compulsory or central to a larger system of religious belief.

"Person" means any individual, association, partnership, corporation, church, religious institution, estate, trust, foundation or other legal entity.

Slate Magazine quotes West Virginia House Majority Whip John O'Neal, in defending a similar bill, as saying that the Constitution “doesn’t guarantee anyone’s right to have any particular kind of lifestyle or behavior protected, but it guarantees the free exercise of religion. That freedom has been severely curtailed in recent years with the growth of gay rights and mandated contraception coverage under Obamacare, among other things.” Now, when I think of which religion in the United States is both openly hostile to gay rights and contraception, it's clear that, as far as this quote goes "religion" = "(evangelical/conservative) Christianity." But, the First Amendment prevents lawmakers from actually writing that conflation into law.

And so you wind up with a bill that effectively requires the government to defend each and every law it passes that any person or other legally-recognized entity claims any religious conscience-based objection to and to prove that the law is the "least restrictive means of furthering that compelling governmental interest." It seems to me that this is going to blow up in their faces. Because it subjects the entirety of West Virginia law to a test of burdening "the sincere practice or observance of religion or religious conscience" where the claim of burden is made simply by assertion of the person who claims the violation.

No perverse incentives there.

Of course, if the citizens of West Virginia are upstanding, right-thinking Christians who see the world in the same way that Majority Whip O'Neal does, this law will be simply a way of rolling the clock back a few decades here and there. (Which could be bad enough.) But that's a heck of an "if." And writing a law that presumes that men are not only angels, but angels of a particular denomination, seems like a recipe for disaster. I can think of a thousand ways to make mischief with this law without even having to stretch for it. Add in simple factors of human nature like prejudice and self-centeredness and this could really be a mess in the making.

P.S.: One also wonders how many new laws the legislature will pass that invoke the escape clause that this bill allows for. I can see any number of bills specifically targeting, say, Islam, in which the legislature specifically invokes an exception.