“Liberty” To Inflict Harm

A mid-October ruling by a federal judge in Texas is a reminder of the ongoing attacks on separation of church and state, and the importance of a disinterested (i.e., non-ideological) judiciary.

A federal judge on Tuesday overturned ObamaCare protections for transgender patients, ruling that a 2016 policy violates the religious freedom of Christian providers.

Judge Reed O’Connor in the Northern District of Texas vacated an Obama-era regulation that prohibited insurers and providers who receive federal money from denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy.

It also required doctors and hospitals to provide “medically necessary” services to transgender individuals as long as those services were the same ones provided to other patients.

O’Connor, the same judge who last year ruled that the entire Affordable Care Act is unconstitutional, said the rule violates the Religious Freedom Restoration Act.

The Obama Administration had defended the rule, but–surprise!– the Trump administration refused to do so.

The Trump administration is working on a regulatory fix and has issued a proposed rule that would scrap ObamaCare’s definition of “sex discrimination” to remove protections for gender identity.

According to Texas news sources, Judge O’Connor–a George W. Bush appointee– is so reliably partisan that he has become a “go-to” favorite for conservative judicial activists. Attorneys General in Texas strategically file politically-charged cases in O’Connor’s court.

Mitch McConnell has been busy elevating people like O’Connor to the federal bench.

Of course, the fact that a judge has a reputation for bias doesn’t mean that any particular decision is wrong. (As the saying goes, stopped clocks are right twice a day.) So it’s important to explain what’s wrong with O’Connor’s definition of religious liberty.

Thanks to the First Amendment’s Free Exercise Clause, churches and religious organizations are exempt from civil rights laws that violate their beliefs. Individuals, however, are not.

For culture warriors, protecting the right of churches to follow the dictates of their faith–even when those dictates are inconsistent with civil rights laws–isn’t sufficient. According to their argument, if they can’t fire employees they discover are gay, if they can’t refuse to rent apartments or provide services to LGBTQ folks, then the government is denying them religious liberty. (This is a variant of the argument that anti-bullying legislation infringes the “free speech rights” of the bullies.) They should be able to pick on gay people—or black people, or women, or Muslims–if they claim a religious motivation.

Obviously, an exemption for “religious motivation” would eviscerate civil rights laws.

The religion clauses of the First Amendment require that government be neutral between religions, and between religion and non-religion. But there are people who simply cannot abide the notion of a neutral government, people who experience “live and let live” and civic equality as affronts to the primacy to which they feel entitled.

In that worldview, a government that insists on fair play for gay people in the public sphere is a government that’s denying them religious liberty.

It’s not a new argument.

When Congress enacted the 1964 Civil Rights Act, opponents protested that being forced to hire or do business with women or people of color violated their religious liberty (their bible told them that races should be separate and women submissive). And it did limit their liberty. In a civilized society, our right to do whatever we want is constrained in all sorts of ways; I don’t have the liberty to play loud music next to your house at 2:00 a.m., or drive my car 100 miles per hour down a city street. And so on.

If you don’t approve of gay people, or African-Americans, or Muslims, or whoever—the Constitution says you don’t have to invite them over for dinner. You have the right to exclude those you consider “sinners” from your church, your private club and your living room.

Your shoe store or your hospital, not so much.

We live in a society with lots of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way such a society can work is within a legal system and culture that respects those differences to the greatest extent possible. That means treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.

When the government refuses to make everyone live by a particular interpretation of a particular holy book, that’s not a War on Christianity. It’s recognition that we live in a diverse society where other people have as extensive a right to respect and moral autonomy as the right we claim for ourselves.

The O’Connors of the world reject that fundamental civic equality, which is why they don’t belong on the bench.

 

 

 

 

 

32 thoughts on ““Liberty” To Inflict Harm

  1. “Judge Reed O’Connor in the Northern District of Texas vacated an Obama-era regulation that prohibited insurers and providers who receive federal money from denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy.”

    “It also required doctors and hospitals to provide “medically necessary” services to transgender individuals as long as those services were the same ones provided to other patients.”

    This health care discrimination against transgenders is not only found in Texas nor is it only regarding health care for all LGBTQs; it is a violation of religious freedom of specific groups of “others” and found throughout this country. Health care insurers and providers, doctors and hospitals who claim this right to deny their services should be required to post publicly and in all contracts with patients, their religious affiliation with the warning that health care can be denied.

    “We live in a society with lots of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way such a society can work is within a legal system and culture that respects those differences to the greatest extent possible. That means treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.”

    Sheila’s comments above also means that we all have the right to LIVE; and often that requires health care provided for all regardless of race, religion, ethnic backgrounds…and sexual orientation.

  2. I live in NH and we have an infestation of “Free Staters”. They all moved here to have an impact on our legislature ( pay for being a legislator is, I believe, $200 a year plus travel, that should tell you what we have in Concord, the capital). Liberty is their common scream. The liberty to carry firearms everywhere and shoot their AR at their outdoor range at mid-night if they so choose. Needless to say those who scream liberty the loudest frequently aren’t the best neighbors nor the most considerate community members. They seldom care about the rights of those they impact by exercising their idea of “liberty”.

  3. The argument that a business owner can invoke a religious exemption to avoid dealing with some people is specious. A business is licensed by the state. In providing that license, the state certifies certain things. If you sell loose goods, your scales have to be inspected at regular intervals, so your customers know they are getting “fair weight.” If you have a restaurant, the health department inspects your kitchen for cleanliness and insect infestations. And so on. Because of the relationship with the state, your business is an agent of the state, so “it” (if not you) is required to provide your services to everyone, without discriminating.

    I am not a lawyer, but what I said in that paragraph seems sound, at least to me. So the judge in Texas who handed down the decision mentioned in Sheila’s text seems to be either a religious fanatic or someone who does not recognize the need for federal (or constitutional) regulations that might inconvenience the states.

  4. The Warren Supreme Court created the Civil Rights Era. It was a SURFACE decision. The SUB-SURFACE control by the racist oligarchy didn’t disappear. Its been gaining more and more control as time goes by.

    America has been a PROCEDURAL democracy best represented by those like Sheila, but as far as being a SOCIAL democracy it has, substantially, been a FRAUD, which Donald Trump has had no hesitation in bringing out into the open.

    That’s why Trump is still seen as a hero to the 40% which Gary Younge, so well pointed out, yesterday.

  5. Pascal is right on.

    It really comes down to the abuse of power with these people. It seems to be their motivation for running a campaign to get elected to office. They forget the primary duty is to SERVE your fellow man.

    Weak people choosing a public office for all the wrong reasons. Those with values and principles shy away from public office because of our corrupted systems. Sadly, it didn’t happen overnight. Those running on the GOP ticket now have to accommodate the religious right’s attitudes as well as the Oligarchs’ motives for handing out their cash.

    #Perverted
    #Kakistocracy

  6. Why are authoritarian/conservatives afraid of so many other people? The only reason imaginable is that they’ve been “taught” a vision of a homogenous society of duplicate people all marching to the same drummer, an existence the mere thought of which terrifies me.

    No wonder the robots have to be armed.

  7. The difference between Sweden and the U.S. is that the Swedes don’t live in a fantasy world. They are also threatened by a strong right-wing movement, but can, at least, maintain a sense of reality, which allows them a good chance of maintaining a viable, SOCIAL democracy.

    Sheila visited Sweden, a month or so ago. Maybe she can share some of her insights from her recent trip.

  8. It seems that a “public accommodation” no longer exists under our new Federalist Society judicial system. I wish the Society members would read the papers that carried the Federalist name 240 years ago. They might then have some notion of what the Constitution is really about.

  9. Marv,

    Correct in both offerings. Having had the misfortune of living in Texas for way too many years, witnessing these “courts” leap over the wall separating church and state became a normal occurrence. These damned fools think they are being ever so Christian in expressing their “beliefs”, yet ignore all that Christ allegedly said about taking care and loving one another.

    This “decision” was yet another example of the vacant mind of evangelicals. They are the people who are scared to death of the “other” and feel they are losing their (mostly) white privilege in order for actual equality to occur. Tragic.

  10. Well, I find this ruling repugnant and definitely unchristian. Anyone with the remotest knowledge of Scripture knows the story of the good Samaritan, I’ve brought that up before.

    It’s sort of where the idea of the golden rule came from, “do not do to others what you would not like done to yourselves.”

    A Jew was found on the side of the road beaten and half dead, a priest saw him and passed by, the Levite saw him and passed by, but one of the most despised people of the time, a Samaritan, came along and dressed his wounds, put the half dead Jew on his jackass and took him to an inn. The Samaritan gave the innkeeper a small amount of money to take care of the gravely ill Jew. The Samaritan told the innkeeper he would return and pay for any additional expenses this gravely ill Jew had incurred.

    Of course this was a private one-on-one example of neighborly love. But if you put out a shingle saying that you are going to offer services, that you advertise those services to the general public, then you should not be allowed to discriminate against anyone no matter the reason. You are free to do so in your place of worship or your home, if your conscience allows it, but in a secularist society, you are not free to force your beliefs on someone who has a different viewpoint or set of beliefs.

    Hence the separation of church and state, if a church is making decisions based on political issues, they then cease to be a protected religious organization and should be treated as such. It’s a dangerous precedent being set by this Texas court. What if the Red Cross decides they can’t help any particular group of people because of some sort of belief?

    Bill Barr, and Sec. Pompeo talking about everything is going to hell in a hand basket because of the lack of Christian morals and beliefs, and inserting those beliefs in a secularist society, is completely against what our founding fathers penned in our Constitution. It is actually also against Christ’s teachings!

  11. Vernon,

    Texas is our common denominator. We need to be friends. The rest of the world doesn’t understand how “special” Texas is. Most understand that when you’re dealing with an epidemic, you must find the source, or what is better called: GROUND ZERO.

    Well, we might say, this political one can be found in Texas when George Bush moved there and combined the controlling forces of the “Protestant Elite” with the evangelical, religious fervor of the “Oil Barons” led by H.L. Hunt, who resided in Dallas and controlled the Southern Baptist Convention. At one time, Hunt was the wealthiest man in the world. I had been one of three Treasury attorneys who successfully sued him in the U.S. Tax Court located in Dallas, during the mid-60s.

    Also see: “The Protestant Establishment” by my mentor at Penn, E. Digby Baltzell, Associate Professor of Sociology (Vintage Books, New York, 1964). Professor Baltzell coined the term W.A.S.P. [as the Head of the Disciplinary Board of the Wharton School, he saved me from “extinction” in 1958. I will always be indebted.

  12. Oh sure. The mindlessness of Texas Republican politics is a great uniter of thinking people. We may have certain different opinions, but we absolutely agree on the history of Texas politics.

    I think I’m correct that the Texas Oilman’s HOF put George H.W. Bush in their hall after he made the sweetheart deal with the Saudis that screwed west Texas oil companies. Typical Republican …

    As a science teacher in Texas I also witnessed the politicization of public schools and the curriculum. Do you remember Cynthia Dunbar? She was the evangelical wrecking ball from Liberty U. that tried ever so hard to destroy science and re-write her revisionist history books. Amazing. How do the 40% of thinking Texans survive in that environment?

  13. You’ve got to be taught
    To hate
    And fear
    You’ve got to be taught
    From year
    To year
    Its got to
    Be drummed in your dear little ear
    You’ve got to
    Be carefully
    Taught
    You’ve got to be taught
    To be
    Afraid
    Of people
    Who’s eyes are oddly made
    And people who’s skin is a different shade
    You’ve got to
    Be carefuly
    Taught
    You’ve got to be taught
    Before it’s too late
    Before you are six
    Or seven
    Or eight
    To hate all the people
    Your relatives hate
    You’ve got to
    Be carefully taught

  14. Vernon,

    You’re right. I should have differentiated between East Texas and West Texas oilmen. Back in the old days, there was a difference. Having tried cases in Raines County, in East Texas, with a sitting Klan judge, I must admit there was a difference. A significant one.

  15. “O’Connor, the same judge who last year ruled that the entire Affordable Care Act is unconstitutional, said the rule violates the Religious Freedom Restoration Act.”

    Here in Indiana; former Governor Mike Pence enacted the RFRA statewide, it was pulled, rewritten to include more specific religious protection and enacted a second time. That was followed by Pence’s anti-abortion law, the most stringent in this country; both of which he promised to enact at federal level. At the time RFRA was enacted there were 10 areas in the state of Indiana which had local laws protecting LGBTQ rights. Indianapolis Republican Mayor Greg Ballard realized when he began receiving threats of cancellation of conferences and meeting held in this city for years, plus the threat to tourism, that Indianapolis had no protection for LGBTQs. He quickly got a bill passed for Indianapolis/Marion County and we became the 11th area in the state a safe place for Gay Rights.

    President Obama called attention to the situation in this state when he said he and Joe Biden had become such close friends, he doubted they would be able to order a pizza in Indiana. While visiting Chicago shortly before ending his term as president; someone in the crowd asked his view of the extremely high murder rate in Chicago. He responded that more than half of the guns confiscated in those crimes were traced to having been purchased in the state of Indiana due to our poor gun control laws. Indiana has the highest number of voucher students in the country and our education success is near the bottom of the 50 states.

    “Liberty To Inflict Harm” reigns in Indiana and the percentage of our daily shootings in Indianapolis rivals Chicago. Our state logo is, “Honest To Goodness, Indiana” needs to be changed to “WTF, Indiana”.

  16. Are the changes in American culture temporary and declining or still growing? Are the causes of the change self limiting as people see their results or is it self perpetrating? In other words is education keeping up with the need for it?!

  17. While Judge Reed O’Connor is certainly a rogue justice, there are legislative remedies for much of this.

    The Religious Freedom and Restoration Act (RFRA) has been, and can be, amended again to affect the “balancing act” the judiciary is called on to interpret the First Amendment Free Exercise Clause.

    Point being (again), who we elect to Congress matters.

  18. Vernon,

    I don’t remember Cynthia Dunbar. But back in the 70’s, I was dating a teacher at the upscale, private, Hockaday Girl’s School in Dallas. She was the science teacher and should have known better to discuss EVOLUTION. The parents went “crazy” and got rid of her immediately.

    Maybe we’re wasting our time studying what is called: America History. Probably, we should be teaching Texas History with American History as a sideline.

  19. Linda and all – the South Pacific lyrics are reverberated by : the decline in religious identification, community membership and service attendance, the reduction/elimination of education in civics and the arts in favor of standardized testing, the cultural emphasis on violence/fear/identity, etc…I could go on.

  20. This terrible mess got way out of hand in Texas, but DEMOCRACY won an important battle in Dallas, with the one man, one vote decision by the Federal District Court Judge in 1991.

    There was a decision not to appeal the decision. So the Radical Right/Religious Right forces headquartered in Dallas had to relocate their movement, so it was evident that Jacksonville was the most desirable destination; along with Jeb Bush, as the most desirable: “last white hope.”

    Donald Trump “screwed up” those plans, at least temporarily, until there can be a new consolidation of the original movement. That’s why the Republicans are not jumping ship. They feel they can eventually right it, especially, with their BASE still clinging, onboard throughout the present storm.

  21. Sometimes when reading such as Sheila provides today I wish Marshall had ruled the other way in Marbury, but he didn’t, and here we are.

    We revoke the licenses of Christian bakers who maintain dirty kitchens but we do not revoke the rights of gay consumers to buy wedding cakes or anything else in the public market, one Christian, Jewish, Hindu and Muslim bakers enjoy, among other things, the use of public streets, public utilities, police and fire protection paid for in part by gay people. When does the religious preference of the seller in a public market extend to whom he or she will sell? No such preference is constitutionally available. Such believers have things turned around – it is not they who are discriminated against but rather the consumers who are discriminated against, and in a publicly supported marketplace.

    How far as an exercise in logic can this go? How did the very separate platforms of religion and commerce ever intermix? Consider the argument that a defendant would make in traffic court to the effect that stopping at red lights is against his religion, or make a guess as to whether Christian bakers would join in a suit where bakers from a Witches Church of the Wild Wood or the Hindu Nation were the lead plaintiff in seeking an order that they not serve gay people. Physician, heal thyself.

  22. John:
    “…if you put out a shingle saying that you are going to offer services, that you advertise those services to the general public, then you should not be allowed to discriminate against anyone no matter the reason.”

    Barbara is a rehab masseuse. She advertises her services. But she refuses her services to those who come to her filthy or drunk or drug-crazed or intending harm.

    I am an artist. I advertise my availability for doing commissioned portraits. But I refuse service to those who quibble about price, demand to be painted to look beautiful, and to those who seem to be psychotically hyper-critical. I also refuse service to those who are so unattractive that a perfect portrait carrying my signature would damage my reputation.

    Brent is a musician. He refuses gigs in low-life bars.

    Lester is a farmer with a champion Jersey bull. He refuses breeding services to farmers cows that are not registered Jerseys, and to farmers whose cattle are badly cared for.

    I believe enough of these examples are justified and legal to warrant withdrawal of “no matter the reason” phrase.

  23. This was a weakness in the ACA to let employers and by it’s methods place Insurance Companies in charge of your Health Care.

    Medicare for All or Single Payer will solve this problem of rogue judges attacking ACA. The employer or insurance companies would have no say in who is covered and who is not. The individual, the patient would be at the center of health care, with Medicare For All or Single Payer.

  24. How many democracies are ok with a state sponsored religion and men dictating to females about their bodies, but think citizens have an unlimited right to armament?

  25. im headed to texass next month on my off season runs to keep my box under my pillow with needed cash. ill be wearing my new Rashidas: impeach the mf t shirt..if i make it out alive,ill detail the results..every year for the last five years ive made these runs to texass. and every town is filled with gospel speaking loonies and over rightious people intent on taking your liberities from you.anyway they can…. even whoremongering… as they speak, i heard many discuss who screwing who,in their own families,and church,and dirt,i wouldnt even discuss from their personal past…so righteous. so if this judge is suppliying the needs,and lawyers and such whoremonger his court, it shows how a back alley lawyers and judge,do it like they did,well, i guess they still do it….in the ol south, you all come back now,ya hear…

  26. Lester, you really should give the authors credit. The title of the song is “You’ve Got to Be Taught”. Music and lyrics are by Richard Rodgers and Oscar Hammerstein for “South Pacific.” It is one of their greatest works on prejudice. If you haven’t seen it, you should.

  27. Discriminate; make an unjust or prejudicial distinction in the treatment of different categories of people or things, especially on the grounds of race, sex, or age.

    Settled law tells us you do not have to serve someone if they are “drug crazed or filthy” a masseuse would not have to put herself in risk of infection or anything else, this has nothing to do with discrimination!

    Under federal anti-discrimination laws, businesses can refuse service to any person for any reason, unless the business is discriminating against a protected class.

    If Brent does not want to pull a gig in a “lowlife bar” wouldn’t that be his choice? He’s the individual looking for gigs, why would he go to a lowlife bar to peddle his wares?

    And, if a farmer has a champion jersey bull and refuses breeding services to farmers cows that are not registered jerseys or cattle are badly cared for, 1st of all, I don’t think farmers who own/manage farms that are 2nd or 3rd rate, would pay the extremely high stud fee for a champion jersey bull. And if someone came up with the stud fee, I think it would be accepted. My brother raises thorough breads in Washington state, and I have never heard of owners refusing stud fees for any reason.

    If you refuse service to an individual who quibbles about price, how do you know that individual is going to quibble about price? If the person was in your place of business before, and the person quibbled about price, are you sure they would quibble again? Demanded to be painted beautiful? And individuals who seem to be psychotically hypercritical? Wow! I don’t think we are talking about healthcare here, but if a person is creating a disturbance, the don’t have the right to be served, they don’t have the right to cause a disturbance.

    The point of the article is discrimination, 3rd sentence in Sheila’s article.

    If you have a shingle out on the public right-of-way, and you discriminate against someone as has been brought out in this article, it crosses our red line. The people on one side are taxpayers, paying for infrastructure. On the other side, these are taxpayers who are offering service. If you don’t want to serve, don’t put out your shingle. Don’t discriminate because of age or sex or orientation or explicit beliefs.

    Secular; not subject or bound by religious rule, not belonging to or living in a monastic or other order.

    Secular; denoting attitudes, activities, or other things that have no religious or spiritual basis,

    Federal protected classes are, race or color, national origin or citizenship status, and religion or creed, sex, age, disability, pregnancy, genetic information, veteran status, others that other states recognize our marital status, sexual orientation or gender identity, medical condition, HIV-AIDS, military veteran status, political affiliations or activities, victims of domestic violence assault or stalking.

    So, no Larry, I am not going to withdraw any statement, thank you for your concern though. If you want to write an addendum to your comment, or start your own blog, then I’d be glad to debate with you on your opinions.

  28. Larry,

    Discriminate; make an unjust or prejudicial distinction in the treatment of different categories of people or things, especially on the grounds of race, sex, or age.

    Settled law tells us you do not have to serve someone if they are “drug crazed or filthy” a masseuse would not have to put herself in risk of infection or anything else, this has nothing to do with discrimination!

    Under federal anti-discrimination laws, businesses can refuse service to any person for any reason, unless the business is discriminating against a protected class.

    If Brent does not want to pull a gig in a “lowlife bar” wouldn’t that be his choice? He’s the individual looking for gigs, why would he go to a lowlife bar to peddle his wares?

    And, if a farmer has a champion jersey bull and refuses breeding services to farmers cows that are not registered jerseys or cattle are badly cared for, 1st of all, I don’t think farmers who own/manage farms that are 2nd or 3rd rate, would pay the extremely high stud fee for a champion jersey bull. And if someone came up with the stud fee, I think it would be accepted. My brother raises thorough breads in Washington state, and I have never heard of owners refusing stud fees for any reason.

    If you refuse service to an individual who quibbles about price, how do you know that individual is going to quibble about price? If the person was in your place of business before, and the person quibbled about price, are you sure they would quibble again? Demanded to be painted beautiful? And individuals who seem to be psychotically hypercritical? Wow! I don’t think we are talking about healthcare here, but if a person is creating a disturbance, the don’t have the right to be served, they don’t have the right to cause a disturbance.

    The point of the article is discrimination, 3rd sentence in Sheila’s article.

    If you have a shingle out on the public right-of-way, and you discriminate against someone as has been brought out in this article, it crosses our red line. The people on one side are taxpayers, paying for infrastructure. On the other side, these are taxpayers who are offering service. If you don’t want to serve, don’t put out your shingle. Don’t discriminate because of age or sex or orientation or explicit beliefs.

    Secular; not subject or bound by religious rule, not belonging to or living in a monastic or other order.

    Secular; denoting attitudes, activities, or other things that have no religious or spiritual basis,

    Federal protected classes are, race or color, national origin or citizenship status, and religion or creed, sex, age, disability, pregnancy, genetic information, veteran status, others that other states recognize our marital status, sexual orientation or gender identity, medical condition, HIV-AIDS, military veteran status, political affiliations or activities, victims of domestic violence assault or stalking.

    So, no Larry, I am not going to withdraw any statement, thank you for your concern though. If you want to write an addendum to your comment, or start your own blog, then I’d be glad to debate with you on your opinions.

  29. Peggy and Lester,

    Great play. Might have been the first after W.W.II to tackle racial prejudice. I saw it with my family when I was in grammar school, back in the 40s. Jacksonville didn’t have a large enough theater back then, so it was staged at night at Durkee Field, the home of the Jacksonville Tars, minor league baseball team. Tar, like in “tar and feather.”

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