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.