Category Archives: Religious Liberty

Scalia Was Right

Well, that’s a headline I never thought I’d write!

Not that I always disagreed with Antonin Scalia; he was pretty good on free speech, for example. But overall, I found his jurisprudence intellectually dishonest, and his “originalism” disingenuous–especially because he was smart enough to know it.

What makes the headline particularly ironic, is the fact that my initial reaction to the decision he authored in Employment Division v. Smith was that it was wrong. It was certainly widely criticized.

In that case, members of a Native American Church, who were counselors at a private drug rehabilitation clinic, were fired because they had used peyote–possession of which was a crime under Oregon law– as part of a religious ceremony.  The counselors filed a claim for unemployment compensation with the state, but the claim was denied because their dismissal was deemed work-related “misconduct.” The Oregon Courts of Appeals reversed, finding the denial an infringement of their religious liberty, and the Oregon Supreme Court agreed. The state then appealed to the Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime.

Scalia ruled that the denial of unemployment benefits was proper because the law against peyote use was a “law of general application.” That is, it hadn’t been passed as an effort to target Native American religious practices, but as part of a legislative effort to combat drug abuse generally. The fact that a law of general application inadvertently hindered a religious practice might be unfortunate, but that didn’t make its enforcement unconstitutional.

Because the law’s application in this case so obviously–and in the opinion of most people, unnecessarily– punished a longstanding religious ritual, the decision generated considerable outrage, and if memory serves, prompted passage of the Religious Freedom Restoration Act, requiring the Courts to apply a more rigorous judicial standard in such cases. (This was not the infamous Indiana version.)

On reflection, however, I came to the conclusion that Scalia was right.

Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry? To take an obvious extreme, we have laws against murdering babies; should the ritual sacrifice of her newborn in accordance with a sincere religious belief exempt the parent from punishment?

If not, when should religious belief trump civil law?

We are once again having this debate, as a result of the tension between laws intended to ensure civic equality and religious dogmas that label certain others “sinners.”

The Washington Post recently reported on one such conflict.

The Supreme Court on Monday added a major case to its docket this fall to decide who prevails when a group’s religious beliefs conflict with a city’s attempt to eliminate discrimination.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from same-sex couples who want to take care of children. The case will be heard in the term that begins in October.

The Third District Court of Appeals ruled for the city, holding that it was not targeting the Catholic agency in enforcing its policy prohibiting the city from doing business with entities that discriminate.

The case is being seen as a major test of whether the Court will reconsider precedents, especially the precedent established in Employment Division v. Smith, to the effect that generally applicable laws that don’t intentionally target religious groups are constitutionally enforceable.

It will be interesting to see the reaction of those politicians and pundits who continue to laud Scalia for his convoluted opinions privileging religion as “tradition.”

But then, for all those who counted themselves Scalia fans, it was all and always about results–not consistency.

 

 

 

The Plutocrats And The Theocrats

As if ALEC wasn’t enough of a threat to citizens of red states, we now have “Project Blitz,” an effort patterned on ALEC’s all-too-successful formula.

The first thing to know about Project Blitz is that it was launched in 2015 by the Congressional Prayer Caucus Foundation, the National Legal Foundation, and Wallbuilders. The latter is an organization founded by David Barton, the Republican operative and discredited historian who rejects the separation of church and state, claiming that the United States was founded as a Christian nation.

I had not previously heard of Fred Clarkson, who has evidently been studying the Christian right for decades, but he came into possession of Project Blitz’s 116-page manual of model legislation in early 2018.  Clarkson says that Project Blitz  is to Christian nationalists what ALEC is to corporate plutocrats–a number of the extreme anti-choice, anti-gay and pro-Christianity measures that have emerged from legislative chambers over the past couple of years came from Project Blitz’s package of twenty “model” bills.

The bills are seemingly unrelated and range widely in content—from requiring public schools to display the national motto, “In God We Trust” (IGWT); to legalizing discrimination against LGBTQ people; to religious exemptions regarding women’s reproductive health. The model bills, the legislative strategy and the talking points reflect the theocratic vision that’s animated a meaningful portion of the Christian Right for some time. In the context of Project Blitz’s 116-page playbook, however, they also reveal a sophisticated level of coordination and strategizing that echoes the American Legislative Exchange Council (ALEC), which infamously networks probusiness state legislators, drafts sample legislation, and shares legislative ideas and strategies.

A study conducted by Americans United for Separation of Church and State counted 74 bills considered by state legislatures in 2018 that echoed the “model legislation” in the Project Blitz handbook. All are intended to erode the First Amendment’s separation of church and state.

There are bills promoting “In God We Trust” on license plates and in public schools. (Here in Indiana, a bill to that effect is being considered by the legislature this year.) Then there are the “Christian heritage” bills, and those emphasizing “the importance of the Bible in history” to promote the notion that the U.S. is a Christian nation.

The measures which Project Blitz organizers admit might be “hotly contested,” are those seeking to empower licensed professionals to deny health care and other services based on religious beliefs and those that would allow adoption agencies to reject adoptive families on religious grounds.

At least 10 states have laws that allow discrimination by child welfare agencies, most of which have been passed since Project Blitz launched in 2015, and–surprise!– similar measures have been introduced in Indiana.  (I’ve previously blogged about a couple of them.)

Project Blitz–and the Trump Administration–have been described as the “death rattle” of White Christian nationalism. In 2016, Robert P. Jones wrote“The End of White Christian America,” detailing the demographic inevitability of that end.(The linked article has the graphs, and an interview with Jones.)

Project Blitz is part of the Christian Right’s  hysterical reaction to demographic reality, but recognizing that fact doesn’t make its efforts less worrisome–or less unAmerican. Just as ALEC has managed to delay regulatory reforms that would hinder the plutocracy, the legislation supported by Project Blitz would both delay the inevitable and cause considerable damage in the interim.

It’s also worth noting that today’s GOP is almost entirely composed of White Christian nationalists. In the states where Republicans hold sway, that “death rattle” is likely to be prolonged, dangerous and very, very ugly.

 

It’s Called Projection

In psychology, the term “projection” means accusing someone else of a flaw or negative characteristic that you, yourself, exhibit. (We see lots of examples from this President, who calls other people “dumb” or “fat” or “a liar”…)

A recent report from the Washington Post provides a perfect example.

Post survey found that white Evangelicals in the U.S. are convinced that atheists and Democrats (categories that they see as interchangeable) would, if elected, strip them of their rights.

Of those white evangelical Protestants, we found that 60 percent believed that atheists would not allow them First Amendment rights and liberties. More specifically, we asked whether they believed atheists would prevent them from being able to “hold rallies, teach, speak freely, and run for public office.” Similarly, 58 percent believed “Democrats in Congress” would not allow them to exercise these liberties if they were in power.

In other words, these respondents believed that–if they were in power– atheists and/or Democrats would refuse to extend fundamental civil liberties to people with whom they disagreed.

Admittedly, there are many Americans who take the position that “freedom is for me but not for thee.” Research confirms that a very troubling percentage of the general public is willing to curtail the liberties of groups they dislike. That research suggests that only 30% of the general public would grant disfavored groups the same rights they themselves enjoy, an incredibly depressing finding.

The perception by white Evangelicals that they are disliked is also pretty accurate.  Research into intergroup attitudes confirms that white Evangelicals are among the least-liked groups by pretty much everyone else, and certainly by atheists and Democrats. The question isn’t about likes and dislikes, however. It’s whether distaste translates into a desire to deny the objects of that animosity their First Amendment rights.

It turns out that 65 percent of atheists and 53 percent of Democrats who listed Christian fundamentalists as their least-liked group are nevertheless willing to respect the civil liberties of those fundamentalists. As the article noted, that’s a much higher proportion than the sample overall.

And that brings us back to the psychology of projection, because it also turns out that those fearful White Evangelicals are attributing their own unsavory motives to atheists and Democrats.

We found that a smaller proportion of white evangelicals would behave with tolerance toward atheists than the proportion of atheists who would behave with tolerance toward them. Thirteen percent of white evangelical Protestants selected atheists as their least-liked group. Of those, 32 percent are willing to extend three or more of these rights to atheists. In fact, when we looked at all religious groups, atheists and agnostics were the most likely to extend rights to the groups they least liked.

Conservative Christians believe their rights are in peril partly because that’s what they’re hearing, quite explicitly, from conservative media, religious elites, partisan commentators and some politicians, including the president. The survey evidence suggests another reason, too. Their fear comes from an inverted golden rule: Expect from others what you would do unto them. White evangelical Protestants express low levels of tolerance for atheists, which leads them to expect intolerance from atheists in return.

The Golden Rule isn’t the only thing these people have inverted, according to my friends in the clergy.

It’s ironic that self-proclaimed “Christian Patriots” are perfectly willing to subvert the clear mandate of the Bill of Rights– and the equally clear teachings of the Savior they purport to worship– in their pursuit of social dominance.

They lack both authentic Christianity and genuine patriotism–the very deficits they project onto atheists and Democrats.

 

“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.

 

 

 

 

 

Toleration

I’m a big fan of John Locke (of Enlightenment “Two Treatises on Government” fame). (Yes, I’m a nerd.) Although he wasn’t the only philosopher of his time to think in terms of a social contract, he was arguably the most consequential; his approach to the role of government had an enormous influence on the Founders who crafted America’s constitution. So when I came across this article about a previously unknown text of his, I was fascinated.

A “once in a generation” discovery of a centuries-old manuscript by John Locke shows the great English philosopher making his earliest arguments for religious toleration, with the scholar who unearthed it calling the document “the origin and catalyst for momentous and foundational ideas of western liberal democracy”.

Dated to 1667-8, the manuscript titled “Reasons for tolerateing Papists equally with others”, was previously unknown to academia. It had been owned by the descendants of one of Locke’s friends until the 1920s, when it was sold at auction to a book dealer. From there, it went into private collections until it was donated to St John’s College, Annapolis, in the latter half of the 20th century. It lay unstudied in archives until Locke scholar JC Walmsley noticed a reference to it in a 1928 book dealer’s catalogue, and raised an eyebrow: Locke, a hugely influential Enlightenment thinker, was not known to have extended his arguments for religious tolerance to Catholics.

Because tolerance of Catholics (or, in Catholic countries, tolerance of Protestants) was pretty much unthinkable at the time he wrote, attributing such sentiments to Locke seemed an unlikely stretch, so scholars put the newly discovered manuscript through a number of tests in order to determine whether it was, indeed, Locke’s.

It was.

“Locke is supposed to have never tolerated Catholics,” said Walmsley. “All his published work suggested that he would never even consider this as a possibility. This manuscript shows him taking an initial position that’s startling for him and for thinkers of his time – next to no one suggested this at this point. It shows him to be much more tolerant in certain respects than was ever previously supposed.”

Locke, who died in 1704, is known for his Two Treatises on Government, which which became a foundational text for modern western democracy. His other hugely influential texts included the Essay Concerning Human Understanding, which provided philosophical grounds for the scientific revolution, and A Letter Concerning Toleration, which influenced James Madison’s thinking on the separation of church and state in his work on the US constitution.

The newly-discovered document was written before A Letter Concerning Toleration, and adds to our understanding of Locke’s approach to what we now call “nondiscrimination.” As America’s religious and racial diversity explodes, the growth of “toleration”–or more properly, civic equality and inclusion–becomes an ever more critical element of a functioning polis.

Joseph Macfarland, dean of St John’s College, said it was “an unexpected pleasure to find that we are in possession of a manuscript by Locke himself on a question so critical to American political life and to liberal democracy generally”.

Calling the question critical is an understatement. We either overcome our innate tribalism and learn to live amicably together, or this experiment we call America is over.

The 2020 election provides us with a stark choice: We can re-elect Trump and validate various degrees of intolerance of anyone who isn’t a white Christian male, or we can reject the politics of hate and division and embrace “toleration.”