Tag Archives: religious liberty

I Don’t Think That Word Means What You Think It Means….

I wonder what theocrats think the word “liberty” means?

I guess we’re going to find out. According to Vox and a number of other media outlets,

Attorney General Jeff Sessions announced the creation of a “Religious Liberty Task Force” that will enforce a 2017 DOJ memo ordering federal agencies to take the broadest possible interpretation of “religious liberty” when enforcing federal laws. That memo, for example, prohibits the IRS from threatening the tax-exempt status of any religious organization that actively lobbied on behalf of a political candidatewhich is not allowed under the Johnson Amendment.

In a bold speech delivered at the Justice Department’s Religious Liberty Summit, Sessions characterized the task force as a necessary step in facing down the prevailing forces of secularism. “A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom,” he said, which “must be confronted and defeated.”

I don’t think I’d call the speech “bold.” “Ignorant” might be a more appropriate adjective.

Secularism, properly understood, is simply the absence of religion–an absence which evidently constitutes an existential threat to the worldview of people like Sessions. And liberty, at least as defined by those who drafted the U.S. Constitution, definitely does not mean the privileging of Christianity and its adherents over all other belief systems, religious or secular, which is quite clearly what Sessions intends.

While the task force will only enforce the guidelines listed by the religious liberty memo, the language in Sessions’s speech was as significant as the creation of the task force itself. Using striking rhetoric and the incendiary narrative of culture wars, Sessions characterized America as an implicitly Christian nation under attack from secularists. In so doing, he is continuing a wider pattern of the Trump administration: treating the federal government as a necessary participant in the longevity of Christian America.

He’s advocating for the kind of Christian nationalism — blending patriotism and evangelical Christianity — that the administration has consistently used to legitimize its aims and shore up its evangelical base.

As the Vox article noted, over the past few years Sessions’ version of “liberty” has gained considerable legal ground–from the Hobby Lobby decision, allowing closely-held corporations with religious shareholders to deny contraception coverage to its employees, to the case of Trinity Church, in which the Court held that a Lutheran church could use taxpayer funds to build a playground on its property. The confirmation of Kavanaugh would likely carve another hole in the wall of church-state separation.

It is obvious that this task force and various other efforts to take America back for (their version of) Jesus have been prompted by fury over civil rights for LGBTQ folks–especially recognition of same-sex marriage–and hysteria over the growing recognition that White Christian cultural domination of America is on the way out.

I’m not going to waste pixels on the fundamentalists who use religion as a justification for their bigotry and who experience any loss of privilege as discrimination. But I am going to protest the misuse of language.

In America, the word “liberty” means “personal autonomy”–an individual’s right to self-government. Liberty means we each have the right to “do our own thing” so long as we do not thereby harm the person or property of someone else, and so long as we are willing to accord an equal right to others. It most definitely does not mean (as the theocrats would have it) an obligation to do the “right thing” as that “right thing” is defined by the theology of the majority and enforced by government.

The First Amendment protects the integrity of the individual conscience against government overreach, and together with the Equal Protection Clause of the 14th Amendment, it prohibits government from favoring some religious beliefs over others, or from favoring religion over non-religion. (Or vice versa, for that matter.)

The fact that we have an administration filled with people who reject that understanding of liberty—who are dismissive of the most basic premises of America’s history, philosophy and law–is more than unfortunate. It’s scandalous.

Or to coin a phrase, deplorable.

 

 

 

Confirmation: It Isn’t About Religion

The Indianapolis Star, in one of its increasingly rare forays into what used to be called “news,” reported on a very interesting study investigating popular opinion about the pending Supreme Court case brought by a baker who refused to sell a wedding cake to a gay couple.

As most of you are aware, the baker–routinely described as very pious–has argued that forcing him to sell one of his cakes to a same-sex couples would not only violate his religious liberty, but would amount to “compelled speech.” That is, he argues that civil rights laws requiring him to do business with people he considers immoral are really compelling him to affirm his approval of that immorality.

The free speech argument appears to be a fallback, in case the Supreme Court doesn’t buy the religious liberty one. In any event, most people who are aware of the controversy see the conflict as one pitting respect for “sincere religious belief” against the rights of LGBTQ citizens to be free of discrimination.

As the study found, it really isn’t.

I vividly recall a conversation I had many years ago with a friend I knew to be a truly nice person. He wasn’t a bigot. I was Executive Director of Indiana’s ACLU at the time, and he understood the organization to be a defender of individual liberty and the proposition that the power of government (and popular majorities) to prescribe our behaviors is limited by the Bill of Rights.

He wanted to know why the ACLU didn’t think civil rights laws violated individual liberty.  Doesn’t “freedom” include the freedom to discriminate?

The study cited by the Star confirms the continued salience of his long-ago question.

People who believe businesses should be able to deny services to same-sex couples aren’t necessarily citing religious reasons for discriminating, a new study by Indiana University sociologists has found.

Instead, many simply believe businesses should be able to deny services to whomever they want — even though that violates civil rights laws that protect certain classes of people….

Slightly more than half of those surveyed said they supported a business denying wedding services to a same-sex couple, whether the business cited religious opposition to same-sex marriage or non-religious reasons.

Ninety percent of self-identified Republicans said that businesses should be able to choose who they do business with.

I’ve been in these discussions, and more often than not, people who believe civil rights laws deprive them of their liberty will say something like: “what about those signs that say ‘no shoes, no shirt, no service?” or “the government shouldn’t make the kosher butcher sell ham,” or “what if a Nazi asked the baker for a swastika cake?”

I will restrain myself from launching into one of my “civic ignorance” diatribes, and merely point out that civil rights laws do not deprive merchants of their liberty to refuse service based upon a customer’s behavior. Merchants also retain the liberty to decide what goods they will sell (if a menswear store refuses to stock dresses for sale to a female customer, that doesn’t violate anyone’s civil rights.)

Civil rights laws prohibit discrimination based upon the identity of customers who are members of legally specified classes. (FYI: Nazis aren’t a protected class.)

Do those laws curtail a merchant’s “liberty” to discriminate? Yes. So do laws prohibiting religious parents from “whipping the devil” out of their children, and a variety of other “sincere” behaviors deemed damaging or dangerous to society.

Here’s the deal–the “social contract.”

When a merchant opens a shop on a public street, he depends upon local police and firefighters to protect his property. He depends upon government to maintain the streets and sidewalks that allow customers to access his store, and the roads, railways and air lanes that carry his merchandise from the manufacturer to his shelves. In return for those and other public services that make it possible for him to conduct his business, government expects him to pay his taxes, and obey applicable laws–including civil rights laws that protect historically marginalized groups against his disdain.

The butcher, the baker, and the candlestick maker retain their liberty to advertise that disdain. They retain the liberty to lobby for repeal of civil rights laws. They retain the right to exclude people they consider immoral or unpleasant or just “different” from their social gatherings, their churches and their homes.

As I’ve often said, if you don’t like gay people, you don’t have to invite them to dinner. You just have to take their money when it’s proffered in a commercial transaction.Is that really an intolerable invasion of your liberty?

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…