When I wrote about What You Didn’t Know About the Arizona Anti-Gay Bill, I talked about how it was an attempted modification of Arizona’s existing Religious Freedom Restoration Act (RFRA), but I also talked about how the RFRAs could be used by barefooters with sincere religious motives.
But is that cheating?
There are actually two axes that some barefooters can wield that other barefooters cannot. One of those is an RFRA, which is (in theory at least) only available to those barefooters with a sincerely-held religious belief in going barefooted. As I write this, there is a federal RFRA (enforceable against any operation of the U.S. Government) and 18 state RFRAs: Connecticut(1993), Florida (1998), Illinois (1998), Rhode Island (1998), Alabama (1998), Arizona (1999), South Carolina (1999), Texas (1999), Idaho (2000), New Mexico (2000), Oklahoma (2000), Pennsylvania (2002), Missouri (2004), Virginia (2007), Utah (2008), Tennessee (2008), Kentucky (2013), Kansas (2013). The date each was enacted is in parentheses. These are available against state entities. There are also state religious-discrimination laws, but in my view they are generally fairly weak and not as susceptible to use by a barefooter (but still might be used for persuasion or intimidation).
The other ax is the American with Disabilities Act. This one is available to (generally older) barefooters with joint or foot problems that they have discovered are alleviated or reduced by going barefoot. Also along these lines are similar state non-discrimination laws that apply to those with disabilities.
In my response to the piece on the Arizona RFRA I got this comment (over on facebook):
Don’t use the tools of demons to fight devils. We should rely upon our own power, not ride on the abuses of others.
While the comment seems to have an anti-religion focus, let me take it as a general comment that we really oughtn’t take advantage of special circumstances.
I tend to agree with that, but have to admit to being pretty wishy-washy about it. So here I’ll just discuss the pros and cons.
When I’ve pursued my lawsuits, I’ve never done so from a religious angle. Sure, in my lawsuits I have specifically noted that among the reasons I go barefooted are spiritual reasons. But I never made it part of the gravamen of the lawsuits—I never made the legal arguments based on that. (Part of that is that, in general, I feel extremely private about my individual religious beliefs—they’re just not anybody else’s business.)
But there is also the idea that barefooting in public places ought to be available to anybody. It’s as safe as wearing shoes, it doesn’t spread disease (despite some myths), and in addition it provides a host of benefits. There is no reason for bare feet to be banned, and I wanted to fight that ban overall, based on what the law really said (not how some judges ended up modifying the law based on their preconceptions). I didn’t really want special exemptions carved out for just certain barefooters. I wanted to help the whole movement.
It’s not particularly clear that exemptions (either religion- or disability-based) help the movement at all.
Partly that’s because those in charge don’t get it, and refuse to get it. We can see that with the Ohio Statehouse ban.
That ban was written specifically with me in mind. I’d been seen a few times in the Statehouse (and interacted with some of the State Troopers there), and so they decided that they needed to enact a shoe rule. This took a long time, with fits and starts, and having to redo things because they didn’t follow their own rules for making rules. And in the end, because I do get less knee and back pain, I take advantage of an exemption provided in the rules—whenever I’m going to the Statehouse I have to notify them first to get my exemption for the day. (Note I never specifically invoked the ADA or anything similar; it’s nice that I get the exemption without having to do that.)
I wonder if they are even aware about how ineffective their whole effort was. Their goal was to keep me from walking around the Statehouse barefoot. Instead, after everybody has to go through bureaucratic crap, I walk around there anyways. Don’t they get it? (My guess is of course they get it, but they don’t care—they are bureaucrats after all.)
Does this help barefooting in general? I doubt it.
And even with the ADA or other attempts at back and joint relief that comes from barefooting, there is no guarantee that any store or library will see that as sufficient. I know that I have heard of a case in which a store, which is required only to provide a “reasonable accommodation”, has said that, yes, someone could come in barefooted . . . but they must ride in one of the motorized carts like an invalid.
Is that legal? Does it follow the law? Who knows, without a lawsuit. And who knows what a judge, already prejudiced against bare feet (because they almost all are), would say?
We can see that attitude in my very first lawsuit. The judge there set up an oral argument on the case; however, my after-the-fact interpretation for why he did is was so that he could lecture me.
When I was arguing about the benefits of going barefoot, you can see that in this portion of the exchange:
MR. NEINAST: As a matter of fact, when you look at some of the studies — and I think I mentioned some in my filings — they’re not full evidence, barefoot people have got healthier feet, they strengthen the muscles. There’s all sorts of health benefits that come about from being barefoot that do not get benefits —
THE COURT: “The library’s regulation doesn’t prohibit anyone from going barefoot. Indeed, when you leave the library and go onto the sidewalk from the library, you can take your shoes off and walk around the city barefoot as much as you want.”
Yup. As far as he was concerned, a barefooter can put on their shoes for the short time they are in the library, and it really won’t hurt them much because they are free to go barefooted again as soon as they leave the library.
It’s kind of like the theory that one cigarette won’t kill you (which is true). But how do you handle the cumulative effect?
For any cumulative effect from shoes, they just don’t give a damn.
There is also the possibility of the religious exemption. Again, should only some people be able to take advantage of it, even though barefooting is totally benign, and in reality pretty advantageous (even if others won’t accept that)?
I’m beginning to bend in the direction that is counter to the comment that prompted this piece. Yes, we should use the tools of demons. They’re cheating—we need to cheat right back. They’re using the mechanisms that they set up and that they control to implement their prejudices and beliefs in myths. We should be able to use those very same mechanisms right back at them.
It is still unfortunate that a goodly number of barefooters are not able, because of those biases built into the mechanisms, to take advantage of them. But even a religious barefooter taking advantage of an RFRA can help the non-religious barefooter.
For one thing, it can possibly convert the general public. If they can see a barefooter out-and-about doing something they were sure was not allowed, or beyond their shod capabilities, that might just tweak something in their brains. It has a chance to make barefooting look more “normal”.
The other thing it can do is to teach an administrator that maybe the rule against bare feet really isn’t necessary. I’m a little less hopeful about this based on my Statehouse experience, but all administrators may not be as mentally entrenched.
And finally, the battle that was necessary to get them to allow an exemption for either religious or disability reason can carry forward. Once it is established that bare feet are an acceptable exemption to their rule, it becomes easier for other barefooters to get in. And they might not even have to say a thing—the state office (or even a store) will say to itself, “Well, we let that other barefooter in. It’s not worth a battle for this one, even if their excuse is not as good.”
So, we can hope. And maybe even with these individual exceptions we can nudge things forward.