Category Archives: Religious Liberty

Roy Moore–Again

What was that line from Jaws 2? He’s baaack…And this time, he’s being supported by ex-White House eminence grise Steve Bannon.

Roy Moore is very likely to be the next Senator from Alabama. He’s currently in a special election run-off to replace former Senator and current Attorney General Jeff Sessions. Sessions, as most people who follow politics know, has a well-documented history of racial insensitivity (at least); Moore, on the other hand, is a flat-out crazy theocrat.

Back in 2016, I wrote about Moore, who was then on the Alabama Supreme Court, after he ordered Alabama officials to ignore the U.S. Supreme Court’s decision on same-sex marriage.

For those of you who’ve been vacationing on the moon, Moore—who has long been a religious zealot with delusions of grandeur—is the Chief Justice of the Alabama Supreme Court, a position he regained after being removed for defying federal law and several court orders by erecting a five-ton replica of the Ten Commandments at the door to the Alabama courthouse. Most recently, Judge Moore issued an administrative order declaring that “Alabama probate judges have a ministerial duty not to issue any marriage licenses” to same-sex couples. The Supreme Court’s June Obergefell decision legalizing same-sex marriage involved a case from a different federal circuit, so it does not apply in Alabama, Moore argues. Legal experts say that is a patently wrong interpretation of American law.

Patently wrong indeed! Law students who took such a position would never pass a bar exam.

Read my lips, “Judge.” If you don’t like gay people, fine. Don’t invite them over for dinner. If you disapprove of same-sex marriage, don’t have one. If your version of God hates homosexuals, feel free to pray for their descent into the fiery pits (or whatever hell you people believe in).

But no matter how fervent your belief, no matter how wedded you are to your animus, you don’t get to overrule the Supreme Court. If you are incapable of following and applying the law, you need to be impeached or otherwise removed from a position that allows you to affect other people.

As the quoted language notes, the flap over same-sex marriage (and ethical Judicial behavior) wasn’t the first time Moore had insisted that his version of Christianity should take precedence over the Constitution and the rule of law.

Back in 2001,  Moore, at the time the elected Chief Justice of the Alabama Supreme Court (a powerful argument against judicial elections), placed a 5,280-pound granite monument in the rotunda of Alabama’s Judicial Building in Montgomery. He had ordered the monument without the knowledge of the other justices on the court.

The monument depicted the Bible, open to two pages on which the stonemason had carved the King James version of the Ten Commandments. A private evangelical group, Coral Ridge Ministries, paid for it.

A Montgomery attorney sued to have the monument removed, and–predictably–Moore lost both at trial and on appeal. He was subsequently removed from the Court, but ran for his old seat in a subsequent election, and won. His refusal to follow the Supreme Court’s ruling in the same-sex marriage case was pretty convincing evidence that he hadn’t moderated his views, or his willingness to ignore laws inconsistent with his version of Biblical Truth.

Now he wants to represent Alabama in the United States Senate, and he is currently leading in the polls–despite (among other things) recently publicly reaffirming his “personal belief” that President Obama wasn’t born in the United States.

Just what America needs: another demented zealot determined to make America Godly (i.e., white, straight and Christian) Again.

 

Religious Liberty And the Marketplace

Most of us have heard the military admonition against “fighting the last war.” The point is obvious: generals and political actors need to evaluate and respond to the reality in which they live; getting stuck in the past–fighting the last war– is a formula for failure.That admonition also suggests one way of analyzing America’s current political situation.

Much of our contemporary political and cultural polarization is between people I have previously described as Puritans and those I have dubbed Modernists.

America’s Puritans still see liberty as “freedom to do the right thing,” defined as behavior consistent with their particular theology. They still believe, with the earliest American settlers, that government should have the authority to weigh in on the side of “Godliness” as their theology conceives it.

Modernists–in and out of religious communities–accept the post-Enlightenment notion that liberty means personal autonomy, your right to do your own thing, so long as you aren’t harming anyone else and so long as you are willing to grant an equal right to your fellow citizens.

The shorthand for modernism is “live and let live.”

Conflicts over recognition of same-sex marriage and bathroom use by transgender individuals, and efforts to allow “religious” merchants to refuse service to LGBTQ customers are really conflicts between America’s Puritans and its Modernists. Puritans  believe that government should throw its weight behind their theological beliefs; Modernists understand the importance of separating church and state, of preventing  particularized religious doctrines from marginalizing or disadvantaging otherwise law-abiding citizens.

Even in the churches, the Modernists are winning. As the Religion News Service reports,

In no U.S. religious group does a majority think it’s acceptable for businesspeople to invoke their religious beliefs to refuse service to gays.

This finding from a 2016 Public Religion Research Institute survey is a first, said Robert P. Jones, CEO of the nonprofit research group.

The change in opinion among even conservative religious adherents has been relatively rapid:  In 2015, more than half of white evangelical Protestants and Mormons surveyed approved of merchants who cited religious belief to deny service to LGBT customers; in the 2016 survey, the percentage of white evangelical Protestants who expressed approval had dropped to 50% from  56% the year before.

The percentage of white mainline Protestants who approved of businesspeople who withhold services to gay people dropped to 30 percent in the recent poll, down from 37 percent in 2015.

Overall in 2016, twice as many Americans disapproved than approved of those who refuse service to a gay person based on religious beliefs (61 percent to 30 percent).

PRRI’s findings corroborate a more dramatic overall shift in attitudes about same-sex marriage and LBGT Americans in the past decade.

Most religious groups today support same-sex marriage, Jones noted. “The religious groups in which majorities oppose same-sex marriage make up less than 20 percent of the public.”

Despite the diminishing number of Puritans, state and federal legislators continue to support discriminatory measures aimed at the LGBTQ community, just as they continue to support a variety of measures disadvantaging women–all piously justified as “protecting religious liberty.”

They are fighting the last war. And thankfully, they’re losing.

 

Religious Freedom–Again

For the past several years, religious rights have been “front and center” in America’s culture war.

In recognition of the increased salience of these conflicts,  I included a question on my Law and Policy final  about the operation of First Amendment religious liberties in a religiously diverse society. As I previously noted, that question read as follows:

The First Amendment protects religious liberty. Over the past few years, Americans have engaged in heated public debates about the nature and extent of that liberty. Some people argue that requiring employers to provide health insurance that includes contraception, or requiring businesses like florists or bakers to serve same-sex customers, is a violation of the religious liberty of those whose religions teach that contraception or homosexuality is a sin. Others disagree. What is the proper definition of “religious liberty”—that is, how far should the free exercise of religion extend in America’s diverse religious landscape? What religiously-motivated actions can government legitimately limit, and what are the justifications for those limits?

The Trump Administration (undoubtedly influenced by Pastor Pence) has promised sweeping new protections for religiously motivated actions that would otherwise be seen as violating what lawyers call “laws of general application.” Religious figures–virtually all  Christian– have complained that limiting their right to ignore civil rights laws is anti-religious oppression.

Given their insistence on the perquisites of the faithful, I wonder what those pious folks will think about a case in Detroit, where a couple of doctors are proposing to test the limits of those First Amendment protections. 

Two doctors in Detroit, along with one of their wives, are about to take the first religious defense of female genital mutilation to a US Federal court. The case stems from a FBI investigation into Dr. Jumana Nagarwala after the authorities received a tip that the physician was performing the procedure on young girls.

According to the original criminal complaint, the investigation revealed that Nagarwala allegedly performed FGM on two seven-year-old Jane Does, who had travelled from Minnesota with their families.

With or without an Executive Order from Team Trump, such an argument has virtually no chance of succeeding. Even if female genital mutilation is found to be a religious rather than cultural practice (an assertion that is contested), U.S. law has long protected children from harms inflicted by reason of their parents’ religious beliefs.

A competent adult can refuse a blood transfusion for religious reasons, but that same adult cannot prevent her child from receiving needed medical care. Devout parents may believe they can “pray away” their child’s diabetes, but if they act on that belief, they’ll be convicted of child neglect or endangerment.

What the case does illuminate is the conflict between individual belief and government’s obligation to enforce laws necessary for public safety and civic equality. The line is not always so clear (as the unfortunate–and in my opinion, utterly wrongheaded–Hobby Lobby decision demonstrates), but taken as a whole, the jurisprudence of religious liberty offers citizens an absolute right to believe anything, and close to an absolute right to communicate those beliefs–to preach, to attempt to persuade, even to harangue. But that jurisprudence has never endorsed an absolute right to act on the basis of one’s beliefs.

We simply do not allow people to harm others with impunity and claim a religious privilege to do so.

Granted, we don’t always agree on what constitutes harm, and people of good will can argue about cases at the margins. But when we have gone so far in the direction of privileging religion that practitioners of female genital mutilation think that the Free Exercise clause should protect that practice, that should be a wake-up call.

We are all entitled to our own beliefs. We are not entitled to impose those beliefs on non-consenting others. That goes for forced childbirth as well as genital mutilation–and the beliefs of Christians as well as the doctrines of more exotic religions.

Freedom to Oppress

A week or so ago, I shared the questions on my Law and Policy take-home final, and a couple of commenters wondered whether I would share student responses.

Although I won’t share others, I was struck by one student’s essay on the second question, which involved the principle of religious liberty. The question read:

The First Amendment protects religious liberty. Over the past few years, Americans have engaged in heated public debates about the nature and extent of that liberty. Some people argue that requiring employers to provide health insurance that includes contraception, or requiring businesses like florists or bakers to serve same-sex customers, is a violation of the religious liberty of those whose religions teach that contraception or homosexuality is a sin. Others disagree. What is the proper definition of “religious liberty”—that is, how far should the free exercise of religion extend in America’s diverse religious landscape? What religiously-motivated actions can government legitimately limit, and what are the justifications for those limits?

This student suggested that many people confuse “freedom” with “freedom to oppress,” and went on to explain the difference.

I hadn’t seen it phrased quite that way before, but I think he’s on to something.

I thought about his essay when I read in the Washington Post that Vice-President Mike Pence had told participants at a World Summit in Defense of Persecuted Christians in D.C. that “no other faith group faces more persecution than Christians,” and lauded Trump’s recent RFRA-like Executive Order.

Mike Pence shares a definition of “persecution” with other fundamentalist believers that beautifully illustrates my student’s observation: “persecution” in Pence-speak goes well beyond the actual mistreatment of Christians abroad; for him, “persecution” has always included the inability to use the coercive power of the state to impose his particular version of Christianity on others here at home.

Think of the horrors: the nasty courts have prevented public schools from requiring (Christian) prayer in classrooms occupied by children of diverse faiths, and have upheld the teaching of science, rather than the Christian doctrine of Creationism, in public school science classes.

Those same courts have required government to recognize marriages by sinful same-sex couples  (who can now file joint tax returns, just like real married couples), and they’ve insisted that when retail establishments open for business, they actually do business with anyone willing to pay for their merchandise.

These “persecuted” Christians must live under a legal regime that accords Jews and Muslims and Hindus and atheists the same civil rights that bible-believing Christians have! A society where stores like Target can allow transgendered people use the bathroom when nature calls! A society that allows women to follow their own religious and moral beliefs about reproduction, rather than the Word Of God as Revealed to Mike Pence and his fellow fundamentalists.

I’m sure it is only by the grace of their God that these poor, persecuted Christians can continue to live here.

I would completely understand if they moved en masse to somewhere like Ghana or Uganda, where the government understands the threat posed by homosexuality and uppity women. But of course, the inhabitants of those countries are black, and a lot of  Pence Christians aren’t too sure God likes black people…

 

He Who Frames the Issue…

As I often tell my students, the most important thing I learned in law school was that “he who frames the issue wins the debate.” In other words, whoever is successful in defining what’s at stake generally prevails.

You can see that truism pretty vividly in debates over culture war issues like abortion and LGBTQ rights: if  abortion is the right to kill babies, the anti-choice folks win. If the issue is whether government gets to decide what a woman does with her own body,  choice wins.  If gay people are demanding “special rights,” the homophobes win; if they are  petitioning for equal rights, gays win.

Framing also plays an important role in the struggle to defend what some Americans call “religious liberty” and others call “privileging Christianity” (because let’s face it, no one is  arguing that Jews or Muslims should be able to ignore the civil rights of other Americans).

As readers of this blog know, I’m a pretty staunch defender of separation of church and state. But I’m also aware that those of us who look askance at the persistent efforts of self-proclaimed “devout Christians” to breach that wall of separation sometimes see theocratic threats in situations requiring a more nuanced response.

Case in point: Above the Law has posted an article about a case that will confront our newest Supreme Court Judge.

The state of Missouri has a program that reimburses non-profit organizations that resurface playgrounds with rubber surfaces made from used tires. The program is paid for by a state sales surcharge on new tire purchases. Missouri gets fewer tires in its landfills, the children of Missouri get a safe surface to play on, everybody wins.

I am definitely not a “cultural conservative,” but I don’t think this is a fair framing of the issue.

In my reading, the religion clauses of the First Amendment require government neutrality in matters of belief; that is, government may neither benefit nor burden the exercise of religion.

The Missouri case–at least, as described in this article–reminds me of an older case from Ohio, the name of which I’ve long since forgotten. As I recall, the state required that all third-grade children be vaccinated, and sent public health folks into the public schools to administer the shots. The question before the court was whether they could also provide the inoculations in parochial school classrooms. The court said yes: using third-grade classrooms where children were already gathered was for the convenience of the state, and giving children vaccines pursuant to a state requirement hardly constituted support of religion.

Missouri could not constitutionally fund classrooms or teachers or books at a religious school. But it is by no means clear how a voluntary program designed to solve a problem for the state (disposing of used tires) while enhancing the safety of children’s playgrounds (by providing a softer surface) would amount to support for religion, or for a religious institution.

Medicaid dollars routinely cover the costs of elderly patients in religiously-affiliated nursing homes; we recognize that the public dollars are buying medical and custodial care, not supporting religion.

The Missouri issue is complicated by the fact that there evidently isn’t enough money to fund every school that wants to participate; the state should be able to prioritize its own school systems. There are other factors to be considered that didn’t make it into the article. (For example, it appears that Missouri’s “rule” against funding religious institutions is a so-called “Blaine Amendment” in the state’s constitution. That changes the calculus somewhat.) There were obviously factors that persuaded the lower courts to rule for the state.

That said, those of us on the front lines of Establishment Clause defense need to acknowledge that not all payments to a religious organization are support for religion.

Determining what constitutes neutrality for First Amendment purposes depends upon how we frame the issue–and we need to approach that framing in good faith. (No pun intended….)