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“Religious freedom” is all the rage. On the national level, there’s the Hobby Lobby case, now before the Supreme Court. Here in Hawaii, there’s the forthcoming contract that will fire Catholic school employees for such offenses as marrying someone of the same sex.

Of course, no one should be subject to discrimination on account of her religion.

But what these religious groups are demanding is not protection from discrimination, but exemptions from laws that others must obey.

Religious exemptions to general laws are unjust and impracticable. If applied equally to all religions, they would make government itself impossible. If available only to particular religions, they amount to religious establishment.

For instance, if Hobby Lobby can be exempt from the “morning after pill” provision of the Affordable Care Act, what about The Christian Science Monitor, another large employer? Christian Scientists object to virtually all medical treatment, so shouldn’t they be exempt from virtually all the requirements of the Affordable Care Act? If the Hawaii Catholic schools can fire people based on marital status, why couldn’t religious organizations that favor segregation (say, Bob Jones University or members of the Christian Identity Church) be exempt from laws banning racial discrimination?

In the 1990 case of Oregon v. Smith, the Supreme Court saw these implications. For a couple decades before that case, the Court had applied what was called the Sherbet Test (after the 1963 case of Sherbert v. Verner), interpreting the Free Exercise clause to provide religious exemptions to laws.

But, faced with the diversity of American religions, the Court realized that the Sherbert standard, if applied equally to all religions, would endanger government itself. It would, as Justice Scalia put it, “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind” including (these are his examples) “compulsory military service, the payment of taxes, health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, traffic laws, social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”

The Smith decision discomfited many religious groups, because it threatened the extraordinary privileges that religions (although in practice, only a few) had briefly enjoyed. It also rattled politicians, who cannot do without the blessing of religion. So, in an effort to restore religious exemptions, Congress passed the Religious Freedom Restoration Act (RFRA) of 1993, and many states followed suit.

These laws do not change the meaning of the Constitution, which in America is authoritatively interpreted by the Supreme Court. It remains the case that no one is constitutionally entitled to a religious exemption from a law. RFRA and its progeny are merely legislative accommodations of religion – accommodations that can be rescinded whenever legislators recognize the havoc they are wreaking on American law.

The otherwise illegal practices of the Catholic schools are being permitted on the basis of a religious exemption built into Hawaii’s Labor and Industrial Relations Law (HRS 378-3). According to the provision, religious employers cannot be prevented from “giving preference to individuals of the same religious group or denomination, or from making a selection calculated to promote the religious principles” of the religious employer.

If interpreted as the Catholic Church wants, this is a bad law, for the same reason that the Sherbert standard was a bad standard. Certainly, religious employers should be able to hire only those who meet their religious standards, when the job directly involves religious activities. A Lutheran church, for instance, should not be forced to hire as its minister somebody who’s not been to Lutheran seminary training or doesn’t profess Lutheran beliefs. This is known as the “ministerial exemption,” (although these aims could as well be met in Hawaii by another provision of the labor law, permitting employers to dismiss workers for anything “relating to the ability of the person to perform the work in question.”)

In any case, the Hawaii Catholic Schools office intends go far beyond any imaginable ministerial scope, to control the behavior, the intimate relations, and indeed the conscience of everyone from the math teacher, to the guidance counselor, the music instructor, and the coach. It will fire people for activities that are perfectly legal and discriminate on the basis of a status (whether marriage or sexual orientation) that is specifically protected by Hawaii law. This is nothing less than a veto on democracy; having lost a legislative battle, Catholic officials are attempting to destroy the law by other means.

So, I am not for “religious freedom” if that means exemptions to general laws. Nobody really would be, if they took account of the true diversity of religions. Those who claim otherwise either have not thought through the implications, or are out to establish their own religious views as the law of the land.

About the author: Kathleen Sands is Associate Professor of American Studies at the University of Hawaii in Manoa, where she specializes in the role of religion in American public life. She is currently at work on a book entitled The R Word: What Americans Fight About When We Fight about ‘Religion.’

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