RFRA – Sheila Kennedy

RFRA For The Rest Of Us…

Indiana’s ACLU has filed a second challenge to the state’s ban on abortion, and this is a challenge focused squarely upon the blatant hypocrisy of the U.S. Supreme Court’s purported concern for “religious liberty.”

In a series of cases, the Court has handed down decisions favoring Christian fundamentalist doctrines that are at odds with the beliefs held by more liberal Christian denominations, let alone by adherents of other religious traditions. Justice Alito, who authored the decision in the Hobby Lobby case as well as Dobbs, has clearly signaled his belief that his particular definition of “religious belief” deserves priority–and he now has four other theocratically-inclined colleagues who agree.

Alito’s definition of “religious freedom” as freedom for state-level lawmakers to impose conservative Christian dogma on Americans who hold very different “sincere beliefs,” is inconsistent with both constitutional jurisprudence and common sense. It’s “freedom for me, but not for thee”–and a not-so- tacit endorsement of the MAGA Republican claim that the United States is a “Christian nation” that should be dominated by their particular version of Christianity.

Ironically, the ACLU has filed this lawsuit under the state’s RFRA law–a law originally ballyhooed by those same Christian Warriors.

“Indiana’s RFRA law protects religious freedom for all Hoosiers, not just those who practice Christianity,” said Ken Falk, ACLU of Indiana Legal Director. “The ban on abortion will substantially burden the exercise of religion by many Hoosiers who, under the new law, would be prevented from obtaining abortions, in conflict with their sincere religious beliefs.”

The complaint points out that the new law violates the beliefs of the Muslim, Unitarian Universalist and Episcopalian faiths, as well as those who follow Paganism. (Rather obviously, it also violates the liberties of the growing numbers of non-religious Americans.)

As I have previously argued, a very large number of Americans believe that “liberty” is defined as the right of all citizens to follow the doctrines of their particular religions. When applied to the issue of abortion, any rational understanding of liberty means that people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it are equally free to follow their beliefs.

A free country–a country that takes liberty seriously–does not empower legislators to decide what prayer you say, what book you read, who you marry, or whether and when you procreate. Perhaps the most eloquent statement of that constitutional principle was that of Justice Jackson in West Virginia Board of Education v. Barnette. In a much-quoted portion of his decision, Justice Jackson wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Justice Alito’s decision in Dobbs essentially reverses Jackson’s 1943 definition of the meaning and intended operation of the Bill of Rights–a definition that has been endorsed by the courts for decades. Jackson’s definition has been taught in the nation’s law schools and is firmly embedded in the popular culture. In America, We the People make lots of decisions about our governance. We vote on who will represent us in our various legislative bodies, and–depending upon the state– participate in referenda and recalls.

We don’t vote on fundamental rights.

As any first-year law student (or anyone who took any of my Law and Public Policy classes) will confirm, the Bill of Rights is taught as a “counter-majoritarian” document. That means that, while a majority of voters can influence innumerable policies, that majority does not get a vote on whether it is permissible to deny other Americans the fundamental rights protected by the Bill of Rights.

We don’t get to vote on our neighbors’ First Amendment right to the free exercise of their religion.

A contrary decision by Indiana Courts would confirm Alito’s profound departure from and disrespect for the essential purpose of the Bill of Rights–and his obvious contempt for people who hold religious beliefs contrary to his own.

It would also highlight the hypocrisy of those Hoosiers who defended RFRA on the grounds that it protected “sincerely held” religious beliefs.

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Religious Liberty, Executive Orders, and Laws of General Application

Religious liberty seems so simple. Everyone should have the right to believe what they want and practice what they believe. Right?

So…a few questions, as we await yet another Executive Order--this time, addressing Trump’s (or more probably, Pence’s) version of religious liberty.

Should parents whose beliefs include what we Westerners call genital mutilation–what they call female circumcision–be allowed to perform that surgery on children who are too young to give informed consent? If not, how do we distinguish that practice from the routine circumcision of male babies, especially Jewish infants?

Should parents who believe in faith healing be allowed to refuse medical treatment for their minor children?

Should churches that depend upon local police and fire protection, and who benefit from other city services, be exempt from paying the property taxes that fund those services?

Should devout individuals who believe that God wants to keep the races separate and women subservient be allowed to ignore nondiscrimination laws? If not, how do proponents justify ignoring civil rights laws that protect LGBTQ citizens?

Do parents who want a religious education for their children have a right to taxpayer subsidies of that education? If secular taxpayers are justified in objecting to voucher programs that support religious schools, how is that objection different (as a thoughtful commenter asked yesterday) from the theory of the Hobby Lobby case, in which the court said a religious employer had the right to refuse a federal mandate requiring coverage of birth control?

Let me answer that last question first.

The problem with the Hobby Lobby decision was its attribution of religious belief to a corporate entity. The Court was not faced with a situation in which an individual shopkeeper or business owner relied upon religious liberty as a defense to providing his employees with birth control coverage; the central issue was whether the religious beliefs of a closely-held corporation’s major shareholders could be asserted by the business entity.

In Citizens United, the Court bestowed free speech rights on the legal fiction that is corporate existence. In Hobby Lobby, it extended that fiction. Corporations–Mitt Romney to the contrary–are not people, and the notion they should be entitled to be treated as indistinguishable from human beings for purposes of constitutional analysis is troubling, to put it mildly.

But let’s go back to the initial inquiry: should individuals (the breathing kind) be allowed to violate generally applicable laws with which they disagree, if that disagreement is based upon their theological commitments?

We don’t accept even the most passionate philosophical disagreement as an excuse for lawbreaking. Pacifists who withhold taxes meant for the Defense Department, environmentalists who drive nails into trees and protestors who engage in various types of civil disobedience are all aware that they will be punished for breaking laws that were duly passed and generally applicable. Why should people claiming religious motives for behaviors deemed socially harmful be entitled to special treatment?

The Courts have struggled with the questions with which I began this post, and with other conflicts between individual belief and government’s obligation to protect the vulnerable and insure civil equality. They haven’t always gotten the balance right–more “traditional” (dare I say “established”?) religions have often gotten a pass for behaviors not tolerated when practiced by less “mainstream” faiths. But the answer to such inequities is not the Pence approach, which would privilege otherwise lawless behaviors when the ostensible motive is “religion.”

What the Courts have generally gotten right is the basic principle: in the United States, people are free to believe–and preach–pretty much anything. But they are only free to act upon those beliefs until those actions harm others, or violate a law of general application.

Ironically, it’s the most outspoken and judgmental critics of Islamic theocrats who want to elevate religious doctrine (only theirs, of course) over secular laws of general application. Apparently, in their view, a Christian Taliban is different.

To the rest of us, not so much.

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Hobby Lobby Redux

Continuing our discussion of RFRA and the expansion of (some people’s) “religious liberty”…

File the first paragraph of this article under “The Notorious RBG told you so.”

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The facts are evidently not at issue. Two weeks after the employee notified the employer that she would be beginning to transition, the employer–who owned the funeral home–fired her for “engaging in behavior offensive to his religious beliefs.”

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Lawyers representing the employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability, and a federal court agreed, holding that paying damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs.

Well, yes. That’s the purpose of damages. If I fire an African-American employee simply because he is African-American and my religion teaches that African-Americans are inferior (an argument made by many Southern shopkeepers in the wake of the 1964 Civil Rights Act), I have violated his civil rights and I will owe damages that will “burden” that belief.

If I refuse to promote a woman to an executive position for which she is qualified because my religion teaches that women should be submissive, I can be sued for damages that would “burden” my religious beliefs.

Damages are awarded to compensate people who suffer losses when their rights are violated. They are intended to “burden” discriminatory behavior–whatever the motivation.

It’s one thing to exempt churches and religious organizations from laws of general application that are inconsistent with their theologies. It is quite another to say that owners of secular businesses can hire and fire employees or refuse to accommodate customers based upon the religious preferences of the owner.

I find it hard to believe that this court would have reached the same conclusion had the person fired been Jewish or African-American, whatever the employer’s church preached. Although attitudes about LGBTQ Americans have changed dramatically, there is still substantial prejudice against the gay community, and claims of “religious liberty” that would be given short shrift if used to justify discrimination against blacks or women or Jews are somehow seen as more meritorious or “sincere.”

They aren’t. And the likely consequences of this ruling, if it is not overturned, are stunning:

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

In her Hobby Lobby dissent, Ruth Bader Ginsberg warned that the Court had ventured into a minefield.

Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

She was prescient.

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Revisiting “Religious Freedom”–Again

When Indiana went through the “great RFRA battle,” the focus of the arguments pro and con centered on the law’s impact on LGBTQ citizens .The measure was seen as an effort to legitimize discrimination against the gay community (and as a defiant response to the Supreme Court’s same-sex marriage decision), since that was transparently the intent of its supporters.

But the law was not limited to matters of sexuality.

A more recent assertion of religious liberty–and the question of the degree to which RFRA protects that liberty over and above the requirements of the Free Exercise Clause–illustrates the more fundamental and wide-ranging conflict between the rights of individuals who are acting on the basis of their religious beliefs, and the duty of government to act on behalf of the public good.

An Indianapolis woman who severely beat her seven-year-old son with a coat hanger is defending her actions as “biblical.”

30-year old Kin Park Thaing is a good Christian woman who feared for her son’s salvation when the 7-year old allegedly engaged in what she says was dangerous behavior that would have harmed his 3-year old sister. So she beat him with a plastic coat hanger to save his soul and teach him how Jesus wants him to behave. She is fully within her right to do so, based on her deeply held religious beliefs, under Indiana Governor Mike Pence’s Religious Freedom Restoration Act (RFRA), her attorney is arguing in Marion Superior Court before Judge Kurt Eisgruber.

“I was worried for my son’s salvation with God after he dies,” Thaing, a Burmese refugee here under political asylum, says in court documents, according to the Indianapolis Star. “I decided to punish my son to prevent him from hurting my daughter and to help him learn how to behave as God would want him to.”

Unfortunately, we live in an era that doesn’t “do” nuance, doesn’t recognize complexity and rarely engages with the genuinely difficult questions that arise in diverse societies when government tries to respect everyone’s individual rights–the right of religious people to live in accordance with their sincerely held beliefs, and the right of others not to be victimized by those beliefs. So we are unlikely to engage the really hard questions.

When does protection of religious liberty function to privilege certain people and their beliefs to the detriment of those with different (or no) faith commitments? What sorts of harms may government forbid, even when those harms are inflicted by sincerely religious people?

If the welts and bruises inflicted by this mother had been the result of a temper tantrum or a drunken rage, she would clearly be guilty of child abuse. Does her religious motivation insulate her from legal sanction? If so, who protects that child from further, possibly more serious harm?

The First Amendment’s Free Exercise Clause protects the rights of Americans to believe anything, but it has never been interpreted to allow citizens to act on the basis of those beliefs if such action would violate otherwise valid laws of general application.

If your assertion of religious liberty requires harming someone else, or denying them rights or protections to which they are otherwise entitled, surely RFRA doesn’t prevent government from intervening.

But that, evidently, is the argument. [To be continued…]

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Religious Liberty and Civil Rights

Indiana citizens continue to engage in arguments over RFRA, and I was recently asked to address our local Pride organization on the presumed conflict between religious liberty and civil rights. Below is an abbreviated version (still long–sorry) of my remarks.

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A lot of anti-LGBT bigotry is justified as “religious liberty.” There was RFRA, of course, not just in Indiana but in several other states, and most recently, the Republican Platform endorsed both a national version of RFRA and passage of a so-called “First Amendment Defense Act,” which would allow any entity that receives public funding to discriminate against LGBTQ Americans on the basis of religion.

So this might be a good time to review the history and purpose of the religion clauses of the First Amendment– the Establishment Clause and the Free Exercise Clause—that together define this country’s approach to the subject of religious liberty.

What the phrase “Religious liberty” meant to the Pilgrims who landed at Plymouth Rock was the “liberty” to impose the correct religion on their neighbors. The idea that Church and State could even be separated would have been incomprehensible to the Puritans; the liberty they wanted was freedom to “establish” the True Religion, and to live under a government that would impose that religion on their neighbors.

The Puritans defined liberty as freedom to do the right thing, to impose the correct religion. The religious wars in Europe were all about which religion government should impose.

A hundred and fifty years later, however, the men who crafted a Constitution for a new nation were products of an intellectual paradigm shift that had produced a very different understanding of the nature of liberty. Between the time the Pilgrims landed and the time that George Washington took the oath of office, the philosophical movement we call the Enlightenment had given birth to science and empiricism, privileged reason over superstition, and caused philosophers like John Locke and others to reconsider the purpose and proper role of government.

After the Enlightenment, liberty—religious or otherwise—had come to mean a right to self-government, the right to decide for oneself what beliefs to embrace. Liberty now meant personal autonomy, and the right of individuals to live their lives in accordance with their own consciences, free of both state coercion and what the founders called “the passions of the majority.”

Although the new government got its legitimacy from majority rule, from the “consent of the governed,” the Bill of Rights limited what government could do even when a majority of citizens approved.

The problem we have in today’s America is that, although our Constitution and legal framework were products of the Enlightenment, the country is still home to a whole lot of Puritans. What we sometimes call the “culture wars” are part of an ongoing conflict between people holding very different visions of liberty.

The Mike Pence’s of the world aren’t just against equal rights for gays and lesbians, they aren’t just anti-abortion and anti-birth control. They are deeply Puritan: anti-science, anti-reason, anti-diversity. They are absolutely convinced of their own possession of the Truth, and like the original Puritans, absolutely convinced that a proper understanding of “religious liberty” should give them the right to make everyone else live by their particular Truth.

The fact that these irony-challenged theocrats are the same ones running around proposing legislation to prevent imposition of “Sharia law” would be funny if it weren’t so dangerous.

Under the Constitution as it actually exists, Americans have an absolute right to believe anything we want, but we don’t have an absolute right to act on those beliefs. (You can believe God wants you to sacrifice your first-born, but we don’t let you do that.) You only have to listen to some of the public debates about civil rights to understand that people have a lot of trouble understanding that distinction.

Let me give you an example.

When South Bend was considering adding sexual orientation to the City’s Human Rights ordinance, opponents objected that the religious exemption that had been included was inadequate because it only covered religious organizations and didn’t protect “religiously motivated” hiring and firing decisions.

The exemption for religious organizations is constitutionally required–if your religion disapproves of gay people, or unwed mothers, or atheists, the Free Exercise Clause of the First Amendment forbids government from forcing your church to employ such people for jobs having theological dimensions.

For our friendly culture warriors, however, protecting the right of churches and religious organizations 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 I can’t fire employees I discover are gay, if I can’t refuse to rent my apartment to LGBT folks, then the government is denying me religious liberty. (This is a variant of the argument that anti-bullying legislation infringes the “free speech rights” of the bullies.) The argument is apparently that I should be able to pick on gay people—or black people, or women, or Muslims–if I claim that my motivation is religious.

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. To use a sports analogy, government is supposed to be an umpire, not a player. 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 peculiar worldview, a government that insists on fair play for gay people in the public sphere is a government that’s denying them religious liberty.

This is the same argument that erupted when Congress enacted the 1964 Civil Rights Act. Opponents argued that being forced to hire or do business with women or people of color violated their liberty to choose their associates. And they were correct; 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 take your property, or 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.

Here’s the deal: The guy who opens a bakery– or a shoe store or a bank or any other business– relies on an implied social contract. He expects the local police and fire departments to protect his store, he expects local government to maintain the streets and sidewalks that enable people to get there. He expects state and federal agencies to protect the country, to issue and back the currency used to pay for his product, to make sure that other businesses and institutions are playing by the rules and not engaging in predatory behaviors that would put him out of business. We the People of all races, religions, genders and sexualities pay the taxes that support those services, and in return, We the People expect retailers and others who are “open for business” to provide cakes or shoes or other goods to any member of the public willing to pay for them.

Opening for business implies a “come one, come all” invitation to the general public.

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 “sinners” from your church, your private club and your living room.

Your hardware store, not so much.

We live in a society with a lot 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–the only “social contract” that allows diverse Americans to coexist in reasonable harmony–is within a legal system and culture that respects those differences to the greatest extent possible. That means laws that require 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 an attack. It’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.

Ironically, a legal system that refuses to take sides in America’s ongoing religious wars is the only system that can really safeguard anyone’s religious liberty. Genuine civic equality is only possible in a “live and let live” system—in an open and tolerant society.

If everyone doesn’t have rights, they aren’t rights—they’re privileges that government can bestow or withdraw. In such a society, no one’s rights are safe.

Here’s the “take away.” A better world is a world where different people with different beliefs, living different kinds of lives, can co-exist without privileging some at the expense of others, which is what the faux religious liberty bills do. That world won’t appear by accident. America has actually made a lot of progress; but right now, we are living through a very scary political moment, a moment that could easily reverse all the progress that’s been made.

We still have lots of work to do.

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