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Saturday, January 8, 2022

Teetering on the Cliff of Religious Exemption

Written by  Jerome German
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Teetering on the Cliff of Religious Exemption

Our niece, a civilian nuclear engineer doing work for the Navy, recently contacted us with questions about how she might go about preparing a statement of religious objection to a vaccine mandate she is facing. With OSHA’s workplace vaccine mandate currently in legal limbo, it’s a good time to examine the concept of religious exemption, and a few questions immediately come to mind:

 

  1. Can any specific religious exemption from the law square with the Equal Protection Clause of the American Constitution?
  2. If religious practice is equally protected, does that make all religious tenets legally equivalent?
  3. If someone in government gets to decide whether your religious exemption is legitimate, does that, in and of itself, not smack of the establishment of a state religion?
  4. Does a religious objection need to be backed by a clerical representative to be legitimate?

Whenever one starts talking about law it is good to review pertinent terminology.

  • Proscriptive law refers to a Thou-shalt-not command.
  • Prescriptive law, or positive law, is a command to do something.

America’s human rights legislation is largely based on the Bill of Rights which is grounded in natural law. Natural law proscribes crimes against life, liberty, and property. One more question comes to mind:

  1. Will we allow practices that go against natural law to become religious exemptions, simply because they are held under the guise of religion?

If you are Catholic, one of the first instances of religious exemption that comes to mind is the criminal-trial witness exemption found in the sinner/confessor relationship. Interestingly, it is an exemption that bears no small similarity to the HIPAA rules governing doctor/patient relationships. Both instances are examples of the delicate balancing act that this whole process entails: in this instance, balancing justice to victims against mercy to souls and minds in need of a doctor.

Following Vatican II, there was an attempt among theologians within the Church, in the name of ecumenism, to formulate a moral theology based entirely on scripture, rather than more largely on natural law as it had been for millennia.

And speaking of doctors, a great doctor of the Church, St. Augustine, addresses this in his Political Writings:

Perhaps…when we intercede on behalf of a condemned sinner, other consequences follow that we regret. Take the very person who has been liberated through our intercession. Perhaps his hot-headedness, having escaped punishment, will run riot in an appalling way, obedient only to his passions and ungrateful for his gentle treatment. Then the rescuing of one person from death might lead to the deaths of many others. Or again, perhaps he himself will be changed for the better through our service and reform his character, but someone else might live an evil life and perish through perpetrating similar or more serious offences, suggested to him by the other’s escaping unpunished.

Augustine goes on to recommend mercy, despite its potential societal downside. At the very least, his is an argument for prison versus capital punishment. Does the sinner/confessor exemption represent the mitigation of natural law by Christian mercy, and if so, does that invite reciprocal mitigation for the practices of X, Y, Z religions?

I don’t think so. Mercy, while an immensely Christian thing, is certainly not unheard of in other natural law traditions. And while God’s mercy is only dependent upon our contrition, societal mercy, as so brilliantly framed by Augustine, is fraught with responsibility to the innocent. The merciful approach apparent in the confessor/sinner and doctor/patient relationships are exceptions to punitive law—prescriptive law that can arguably have a foundation in natural-law justice.

The most famous of all legal codes—the ancient marriage of natural law and divine ordinance we call the Decalogue—is by far more proscriptive than prescriptive; that is, only two of the Commandments, the third and the fourth—Remember to keep holy the Sabbath; Honor thy father and mother—actually impose a positive command.

So, what about religious exemptions from the COVID vaccines?

The last six commandments, all proscriptive, are clearly natural-law imperatives. In fact, concerning observance of the Sabbath and worship in general, Aquinas insists that “…because he derives his knowledge from sensibles…it is a dictate of natural reason that man should use certain sensibles, by offering them to God in sign of the subjection and honor due to Him, like those who make certain offerings to their lord in recognition of this authority… consequently the offering of sacrifice is of the natural law.”

In this way, St. Thomas reasons that all ten of the Commandments, though the product of revelation, are nonetheless indivisible from, and congruent with, natural law. Our Creator recognizes the importance of human freedom for spiritual growth. Even the prescriptive commandment to honor one's parents is somewhat of an open book in terms of what exactly it means to honor, and certainly the respect for life, liberty, and property inherent in natural law supports the honoring of parents.

Unlike Mosaic law and our secular law, the Decalogue prescribes no earthly punishment for transgressors. Punitive laws are positive laws. The Mosaic law was, in large part, the punitive complement to the Decalogue. Similarly, secular positive law is necessary as the complement to proscriptive law: the “shall nots” within the Bill of Rights.

Christian mercy is a mitigating factor, not an imposition. An imposition, that is, anything prescribed by law—that has no bounds germane to a natural-law framework—is potentially a tyrannical threat, and any religious exemption above and beyond the limits of natural law, or a guardedly merciful mitigation thereof, is an equally dangerous threat.

The laws of the state, in promoting liberty and freedom of thought, should be primarily proscriptive. The requirement for a driver’s license to drive on public roads, built as it is upon the requirement for proof of one’s ability to follow established safety protocol, is an example of a reasonable common-good application for prescriptive law.

A prescriptive law mandating the use of such a drug is clearly an offense against natural law, running contrary to life, liberty, and the pursuit of anything.

Precisely because legitimate common-good arguments can be made, the vigilance required to establish and maintain the boundaries of such arguments must be proportional to the dangerous legal cliff that they represent. We do not have an inalienable right to drive a motor vehicle on public roads. We do have an inalienable right to verbally object to not being able to drive without a license. If the state can prescriptively regulate speech, there is nothing to prevent it from prescribing all aspects of our lives, including our choices of religion, politics, and personal behavior—our very existence.

There are those who liken talking against the COVID-19 vaccine to endangering others by shouting “fire” in a crowded movie theatre when there is no fire. This is a worn-out equivalency argument that forever rears its ugly head to make a common-good argument for broad censorship.

Progressive prescriptiveness is the precipice on which our freedom teeters. Chesterton wrote that “Progress is Providence without God. That is, it is a theory that everything has always perpetually gone right by accident. It is a sort of atheistic optimism, based on an everlasting coincidence far more miraculous than a miracle.”

Chesterton simply asks how progress came to be considered a good thing; after all, does not a doctor say that a patient’s disease “has progressed”? Progress has become a euphemism for change, and change is not good if your disease, personal or national, has progressed. 

What you consider progress is none of my business, unless you start prescribing behavior on my part to fit your vision. The “never let a crisis go to waste” concept is one entirely built upon the opportunity that any crisis presents for prescriptive public commandments.

If the tainted-by-abortion argument gets you by this time, it’s still just kicking the can down the road.

Some would have us believe that religious exemption is a recent conservative invention, but that is an ignorant or disingenuous assertion, as it has historically received more support from progressives than conservatives. Let’s look at that history.

The colonies were populated by immigrants of many different religious groups and, in the interest of maintaining peace and seeking eventual federal unity, they abandoned official state religion and religious tests and slowly moved in the direction of a more egalitarian approach to personal belief.

Such generality eventually gave way to exemption for specific beliefs:

  • Exemptions from military service for pacifist denominations
  • Religious exemptions from requirements that hats be removed in court
  • Privilege to refuse to disclose the contents of confessions
  • Exemptions for Sabbatarians from Sunday closing laws
  • Sacramental wine exemptions from prohibition statutes

All of the above are exemptions to positive law. In the 1940s, the SCOTUS began to rule toward broad religious exemption based on the concepts of free speech and free exercise, a view that had been rejected by the courts in the case of Mormon polygamy.

Then, in 1963, in Sherbert v. Verner, they sided with a Seventh Day Adventist who had been fired for refusing to work on Saturdays. This precedent for the strict scrutiny of any law deemed to interfere with religious practice was embraced by liberal justices and the ACLU, but was opposed by strict constitutional constructionists (i.e. proponents of natural law).

Sherbert v. Verner was the reining precedent until 1990 when it was struck down by the Court with Employment Division v. Smith, which ruled that neutral laws of general applicability will be upheld even if they incidentally violate a citizen's religious beliefs.

Smith was denounced from both sides of the political aisle and in 1993 The Religious Freedom Restoration Act (RFRA), which advocated for very broad religious exemption, was enacted with near unanimous bipartisan support.

However, a brief four years later, in Flores v. City of Boerne, the SCOTUS upheld a lower court ruling that RFRA was oppressively and unconstitutionally federalist. Since that time, many of the states have enacted their own versions of RFRA laws.

A problem with any such religious freedom legislation is that its supporters will have, at best, a love/hate relationship with the law. It will be hated by some when it is used to defend the Judea/Christian heritage and hated by others when it is used to defend sharia law and other demonstrably anti-natural-law schemes. Why do progressives—who, in general, are not religious—so vigorously support such laws? Perhaps it is because, with no emphasis on a natural law foundation, religious-exemption laws promote tribalism. 

The right of conscience argument makes it your decision—it’s your conscience, not your bishop’s; not your pope’s.

We have seen an assault upon the display of the Ten Commandments in government buildings. Is it because the Commandments have a religious connection, or because they are the preeminent ancient expression of natural law? I think the latter.

The answer to questions 1 through 5 posed at the beginning of this article is an emphatic “No!” in every case, unless, of course, the Constitution is ignored and the natural law tradition is trashed.

Trashing natural law never works out for the better. The book compilation of Joseph Ratzinger's thoughts titled Western Culture contains his epilog as Pope Emeritus Benedict XVI titled "The Church and the Scandal of Sexual Abuse", in which he describes the general breakdown of moral theology in the late twentieth century. He details how, following Vatican II, there was an attempt among theologians within the Church, in the name of ecumenism, to formulate a moral theology based entirely on scripture, rather than more largely on natural law as it had been for millennia. In his words:

In the end what broadly prevailed was the hypothesis that morality was to be determined exclusively by the purposes of human action. While this crude strain [of morality] did not endorse the old phrase "the end justifies the means", this form of thought had become a decisive influence. Consequently, there could no longer be anything thoroughly good, much less anything categorically evil, but only relative value judgments. There was no longer the Good, but only the relatively Better, contingent on the moment and the circumstances…

Pope John Paul II, who knew the situation of moral theology well and followed it closely, commissioned work on an encyclical to set these things right again. It appeared on August 6, 1993, under the title Veritatis Splendor [The Splendor of Truth], triggering vehement backlashes on the part of moral theologians.

Natural law, indispensable as a Christian moral principle, is equally indispensable as the great bridge that it has proven to be between the secular and the religious and is the only viable mitigating factor between competing religious exemption interests.

So, what about religious exemptions from the COVID vaccines? In promoting these vaccines, the greater good argument has been invoked by many, including the pope. But the medical evidence is very weak, the reasoning flawed and highly politicized, and the drug experimental, its long-term effects unknown. A prescriptive law mandating the use of such a drug is clearly an offense against natural law, running contrary to life, liberty, and the pursuit of anything.

Catholics properly formed in the faith understand the necessity of acting in accordance with one’s conscience and the responsibility inherent in the proper formation of that conscience (e.g. you can hardly make a “Catholic” conscience claim if you reject Catholic moral teaching). That is the best platform on which to build a case for a religious exemption because it is a universal—a catholic—platform, one that makes the vaccines stand on their own merit with the conscience as the sole and final arbiter.

Related from Remnant TV:  VACCINES: Bishop Athanasius Schneider Presents the Catholic Position

 

Many are seeking religious exemptions based on the fact that the vaccines are compromised, in one way or another, by the use of aborted baby tissue. It is a good natural-law argument as well; however, in the minds of some, it suffers from the concept of lesser culpability due to the remoteness of the evil. And what about the next drug they want to force on you? One uncompromised by abortion? What then? If the tainted-by-abortion argument gets you by this time, it’s still just kicking the can down the road, because winning this round on such a basis is a very temporary victory, one that implies that you would be onboard with forced medical care were it not for that single issue.

The right of conscience argument makes it your decision—it’s your conscience, not your bishop’s; not your pope’s. The duty to follow a well-formed conscience is as dogmatically Catholic as it gets, and objecting simply for the sake of your own heath is sufficient.

Tyrants will justify their lying, thieving, murderous mode of operation by invoking natural law’s greater-good argument to justify their own dismissal of the rest of the same tradition.

A proliferation of RFRA-style religious-exemption laws easily becomes a cacophony of dangerously-irreconcilable tribal privileges if advanced without the guidance of natural law principles.

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Last modified on Saturday, January 8, 2022