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USA: The right-wing long-march towards more ‘religious liberty’ and ‘religious exemptions’ antidemocratic laws

Monday 9 October 2017, by siawi3


Mississippi Goddam
Mississippi’s Draconian Anti-LGBT Law, the Worst in the Nation, Is Set to Take Effect

A federal appeals court has dismissed the challenge to HB 1523, the most expansive ‘religious liberty’ law in the U.S. LGBT people in Mississippi should rightly be very afraid.

Jay Michaelson

10.04.17 9:00 PM ET

For several years, liberals have been accused of using scare tactics against the “religious liberty” bills that have been proposed across the country, particularly in the wake of same-sex marriage.

This week, the nightmare scenario comes to life as Mississippi may at last implement the most expansive attack on LGBT equality in a generation—if the Supreme Court does not step in first.

That’s because the 5th Circuit Court of Appeals rejected the demand (PDF) to rehear the challenge to Mississippi’s HB 1523 as a full court (“en banc” in legal parlance), thus leaving in place a three-judge panel’s decision from last June, which held that plaintiffs lacked standing to challenge the law.

While that is technically a ruling on procedure, not the merits of the bill, it also means that the case is dismissed.

For now, anyway.

It seems certain that the decision will be appealed to the Supreme Court, particularly as the panel adopted a very strict interpretation of standing, the requirement that parties to a lawsuit actually be affected by what they’re suing about.

It’s also possible that an entirely new challenge will be filed post haste, with a request for an injunction to stop the law from going into effect—or that the district court that originally heard this case will issue some kind of a stay.

All that will be decided over the next 48 hours.

Lawsuit aside, HB 1523 is a bold, and almost certainly unconstitutional, attack on LGBT individuals. Signed into law on April 5, 2016, the law singles out three religious beliefs for special protection: that marriage means one man and one woman, that sexual relations should only happen inside such a marriage, and that gender is “immutable” and corresponds to sex at birth.

If you, an organization, or a corporation holds one of those beliefs (remember, after Hobby Lobby, corporations have religious beliefs), then you may refuse a same-sex couple lodging at your hotel, refuse to host a gay marriage celebration at your for-profit hotel or restaurant, and refuse to provide any marriage-related services related to “photography, poetry, videography, disc-jockey services, wedding planning, printing, publishing or similar marriage-related goods or services; or floral arrangements, dress making, cake or pastry artistry, assembly-hall or other wedding-venue rentals, limousine or other car-service rentals, jewelry sales and services, or similar marriage-related services, accommodations, facilities or goods.”

If you’re a doctor or hospital with one of those three beliefs (again, hospitals have religious beliefs too), then you can, deny counseling or “fertility services” to someone gay or trans or the child of a same-sex couple. You can also deny a trans person any kind of gender-related medical care whatsoever.

If you’re a religious organization, you can fire any employee for being gay, trans, or pro-gay, even if they have roles that have nothing to do with religion or education.

You can refuse to rent an apartment or any other property to a gay or trans person, even if it has nothing to do with a wedding. You can even refuse to rent an apartment to an unmarried straight couple who you think might be having sex.

If you’re a school, business, or other organization, you can force trans people to dress as their biological sex at birth and restrict their access to any “intimate facilities or settings,” including, of course, bathrooms, where there have been zero reports of transgender people ever assaulting anyone.

If you’re a state employee, and while at your job you want to proselytize, condemn homosexuals as sinners, argue that gay people should be killed, or put up posters condemning homosexuality as a sin, the state cannot fire you. If you don’t want to issue a marriage license, you can opt out of doing your job.

There are plenty more provisions in the law. State-funded adoption agencies can refuse to place children with LGBT parents, and cannot refuse to place gay children with anti-gay parents. State housing agencies can discriminate against gay and trans people. I could go on, but I won’t.

The response to HB 1523 has been dramatic. Six states and 20 cities have issued travel bans, barring government employees from non-essential travel to Mississippi. The United Kingdom warned gay people against traveling there.

Most importantly, a district court judge issued a 60-page opinion blocking the law from taking effect, and finding it in violation of the Equal Protection Clause of the constitution and, because it singled out three specific religious beliefs for special protection, the Establishment Clause as well.

That’s the decision that was being appealed this summer, when the 5th Circuit panel surprised everyone by saying that the plaintiffs in the case wouldn’t necessarily suffer any direct harm as a result of HB 1523 because they wouldn’t be directly “exposed” to it.

That requirement, lifted from a whole other area of Establishment Clause cases—those dealing with religious monuments or displays—is in conflict with the Supreme Court’s precedent that anyone who is treated as “outsiders, not full members of the political community” may challenge a law that sends “an accompanying message to adherents that they are insiders, favored members of the political community.”

That obviously includes anyone in Mississippi who lacks those three religious beliefs, whether they are gay or straight, Christian or non-Christian. Some beliefs are specially protected, and others are not. That message, itself, counts for standing purposes.

But because the three-judge panel didn’t see it that way, the case has been dismissed. Unless another injunction is quickly put into place, whether as part of an appeal or as part of a new case, HB 1523 will take effect this week.

This is exactly what advocates and researchers (including this one) have said would happen: that religious liberty would turn from a shield into a sword, from a defense against government overreach into a justification to discriminate against third parties; that the right to same-sex marriage would be treated as less than other constitutional rights, eroded away piece by piece; and that the fundamental principle of the rule of law that everyone must obey the same laws would be changed into a pick-and-choose regime, in which some people can exempt themselves from the law if they have the right religious justification.

Oh, these are scare tactics, we were told by the conservatives promoting such laws. Tell that to the gay couple turned away next week in Mississippi by a doctor, government clerk, landlord, or taxi driver. Tell that to the trans person harassed at work or at school. Because those are the people who are scared right now—and they have good reason to be.



Misplaced Priorities
RFRA Madness: What’s Next for Anti-Democratic ‘Religious Exemptions’

With wins in federal and state legislatures, Republicans gear up to exempt religious conservatives from any laws they don’t like (especially the ones about gays and women).

Jay Michaelson

11.16.14 5:45 AM ET

Elections are funny things. They’re often about issues that governments cannot actually control: jobs, cultural shifts, viruses. And yet, they result in massive changes in what government does control—like the makeup of the federal courts, or environmental regulations. Or, this year, the ways in which religious liberty (both real and imagined) is balanced against civil rights.

Few voters, it’s safe to say, cast their ballots based on the Religious Freedom Restoration Act. Yet, the headline-grabbing religious liberty conflicts of 2014—the Hobby Lobby case, Arizona’s “Turn the Gays Away” bill—have not cooled off. On the contrary, with the results of this year’s elections, they are about to heat up.

Here are four developments we’re likely to see in 2015.

State RFRAs.

Say it after me: RFRA. Riff-rah. It stands for “Religious Freedom Restoration Act.” The federal RFRA was passed in 1993, nearly unanimously, with liberals and conservatives uniting in response to a Supreme Court case, Employment Division v. Smith, which upheld anti-drug laws being used against Native Americans ingesting peyote. Outraged by this intrusion on a minority religious practice, RFRA provided that the government can only “substantially burden” the exercise of religion if it has a “compelling state interest.”

That language isn’t just legalese; it decided Hobby Lobby. But thanks to a 1997 Supreme Court decision, it only applies to the federal government, not the states.

Graphic here

At the same time, right-wing activists have redefined “religious liberty” from a shield for minorities (like Native Americans) into a sword for majorities (like Christians who want to discriminate against gays or women). And so, since 1997, they have been busily passing RFRAs in 20 states (and counting), and strengthening the ones that already exist—applying them to businesses, for example, or creatively redefining “substantial burden” as any burden, no matter how insubstantial.

RFRA madness is just getting started. In 2014, new or strengthened RFRAs were proposed in eight states. The “Turn the Gays Away” bill in Arizona was one of them. Now, with Republicans controlling 68 out of the 99 state legislative chambers (up from 59 before the election), expect to see State RFRAs proposed across the country. At least five (in Arizona, Georgia, North Carolina, Texas, and Utah) have already been announced.

What would this mean? Individuals and businesses could exempt themselves from anti-discrimination laws by proffering religious objections to them. You could hang a big “No Gays Allowed” sign on your hotel’s front door. Or, more insidiously, you could send the same message by not recognizing your employees’ legal spouses if they happen to be of the same sex.

Of course, conservative activists took a beating when they tried this in Arizona last year. But they’ll be smarter next time. Especially because of the…

Gay Marriage Backlash.

Let’s face it: the arguments for religious exemptions look a lot better in red states that have suddenly had same-sex marriage “forced” on them by courts. Republican legislatures are looking for any way to stem the tide, and religious exemptions are one way to do that.

Examples? Allow corporations to refuse benefits to same-sex spouses. (Remember, corporations have religious consciences now, thanks to Hobby Lobby.) Allow adoption agencies not to place kids with same-sex couples. Allow small businesses—for-profit wedding chapels, caterers, florists—to discriminate against gays. All of these exemptions already apply to religious organizations, but by way of RFRAs and other methods, they can be extended to corporations and individuals as well.

The goal? Keep the scare quotes around gay “marriage,” or at least put an asterisk after it. By allowing religious individuals to reject a legal status, it’s a little less legal. Or, perhaps more cynically, Republicans can cater to their religious conservative base while hiding beneath the neutral-sounding value of religious liberty. After all, who’s against religious liberty?

Hobby Lobby: The Judicial Sequels

On March 25, I stood in line outside the Supreme Court, waiting to get into the Hobby Lobby oral argument. As luck would have it, right in front of me were lawyers from the same firm representing the plaintiffs. And so, we had a collegial conversation in the last snowfall of the season. They felt confident of victory (and I tended to agree) and were talking about next steps.

The first is to extend Hobby Lobby to all contraceptives, not so-called “abortofacients,” a made-up, unscientific term that would soon be recognized as the meaningless distinction it has always been.

Next is to extend the holding to all corporations, not just “closely-held” ones. And to other parts of the Affordable Care Act, not just the so-called “contraception mandate.” And even to the opt-out forms that the ACA has given religious organizations as an alternative to providing contraception coverage.

To win this last battle, the Right has found the best-named plaintiff in the history of activist litigation: the “Little Sisters of the Poor,” a Catholic order that believes that by signing the “No” form—as in, No, we won’t cover contraception—they are effectively enabling someone else to say “Yes.” Thus, they are complicit in the provision of such coverage, the exercise of such coverage, the use of an IUD, and the death of a sweet little blastocyst that the Sisters believe has a soul.

Of course, “No means Yes” is a novel logical syllogism, but anything is possible. And if the Little Sisters prevail, the entire contraception mandate falls. Which is likely in any case as part of...

Hobby Lobby: The Congressional Sequel

Republicans are champing at the bit to overturn as much of Obamacare as possible, and the “contraception mandate” is a weak link in the chain. Religious and “religiously-affiliated” organizations are already exempt from that provision; now, under Hobby Lobby, closely held corporations are as well. But there’s no need to wait for the courts to expand Hobby Lobby’s exemption; in their zeal to tear up as much of the ACA as they can, expect bills to sail through the 114th Congress widening as many exemptions as possible.

Examples? Ripping out the entire “contraception mandate,” full stop.

Allowing religiously affiliated organizations to opt out of Obamacare, period. Allowing corporations to avoid covering not just contraception, but any provision that they deem religiously offensive—which could be, well, anything.

Each of these steps would threaten the integrity of Obamacare as a whole, but of course, that’s exactly the point.

All four of these developments are already underway, in think tanks, in media comments from public officials, and in draft legislation. And the big money is just getting started. Funders like the National Christian Foundation ($1.2 billion in assets); the Koch Brothers; and the Green (of Hobby Lobby fame), DeVos, Ahmanson, and Templeton foundations, continue to pour money into the “religious liberty” movement, funding organizations like Alliance Defending Freedom, The Becket Fund, The Ethics and Public Policy Center (headed by key leaders of The Gathering), The First Amendment Partnership, and a variety of pseudo-autonomous state groups like the Center for Arizona Policy, Sutherland Institute (Utah), and dozens of others. If nothing else, the sheer size of the “religious liberty” movement indicates its seriousness of purpose.

So does its breadth. At one extreme, these same conservative funders have founded biased “religious liberty” centers at Georgetown, Stanford, Princeton, and other leading universities. In the respectable guise of religious liberty, the zombie-like Culture War soldiers on.

At the other extreme, populist religious rhetoric has grown so outrageous, it’s hard to be shocked anymore. The Obama administration is routinely analogized to Nazi Germany for conducting a “war on religion.” The crusty conservative battle-ax Phyllis Schlafly is giving speeches saying that Obama worships government like a god. And somehow, this incendiary rhetoric is detached from the supposedly moderate, respectable “religious liberty” lawyers and academics who are funded by the same conservative billionaires.

In the 1970s, conservatives who had lost the moral battle on civil rights demanded exemptions to desegregation. In the 2010s, conservatives who have lost the moral battle on LGBT equality are demanding exemptions to same-sex marriage. The first effort failed, but gave birth to the Christian Right as we know it. Here comes the sequel.



US Supreme Court & “religious liberty”: Why Hobby Lobby Will Be Bad for Conservatives

Monday 30 June 2014, 1:25 PM ET


The Supreme Court allows Christians to make up their own scientific facts—and threatens its own legitimacy in the process.

Today’s Hobby Lobby ruling may be a setback, in the long run, to the conservative crusade for “religious liberty.” [1]

As much media coverage has discussed, at issue in Hobby Lobby was the Affordable Care Act’s mandate that all employers include contraceptive coverage in their ACA-mandated health plans. Three small businesses objected on religious grounds, and in a 5-4 vote, the Supreme Court ruled in their favor.

But in all that hullabaloo, commentators have overlooked a critical piece of Supreme Court dogma that may prove to be the undoing of conservative religious liberty activists: that the court will not inquire into religious claims.

Early on in Justice Alito’s opinion for the court, he says of the plaintiffs, the Green and Hahn families, that “according to their religious beliefs the four contraceptive methods at issue are abortifacients.”

Let’s parse that sentence. “The four contraceptive methods at issue are abortofacients.” That should be a statement of fact, not faith. Either these pills cause abortions, or they don’t. Yet Justice Alito—himself a devout Catholic—says that this fact may be determined based on “religious beliefs.”

If I believe the sun revolves around the Earth, is that now a disputable fact? According to Justice Alito, yes. If I have a religious belief that it does, then it doesn’t matter that it doesn’t.

The Hobby Lobby plaintiffs make a second “religious” claim as well: that providing insurance coverage makes one morally culpable for how it is used. Remember, Hobby Lobby isn’t doling out birth control pills; it was being required to offer insurance coverage of contraceptives that someone else might later use.

Surely, the moral responsibility for that use lies with the person who uses it, correct? Are gun stores morally responsible for someone’s decision to shoot? The NRA certainly thinks not. Is McDonald’s morally responsible for someone’s decision to overeat? So why would Hobby Lobby be morally responsible for someone’s decision to use (or not use) a suite of insurance coverage they provide?

Justice Alito specifically refutes these questions later in his opinion. He writes:
The Hahns and Greens believe that providing the coverage demanded bythe HHS regulations is connected to the destruction of anembryo in a way that is sufficient to make it immoral forthem to provide the coverage. This belief implicates adifficult and important question of religion and moralphilosophy, namely, the circumstances under which it iswrong for a person to perform an act that is innocent initself but that has the effect of enabling or facilitating thecommission of an immoral act by another.

Justice Alito angrily dismisses the notion that there can be a “binding national answer to this religious and philosophical question.” Thus, if the Hahns and Greens say that it’s so, it’s so.

Now, let’s play this one out. Suppose I have a sincere religious belief that if I stop at a stop sign, God kills a kitten. Or, slightly more seriously, suppose I have a sincere religious belief that if I let gay people stay at my hotel, they might have gay sex. If the Supreme Court never inquires into the reasonableness of my religious belief, then I shouldn’t have to obey traffic laws, nondiscrimination laws, et cetera—or, more precisely, the government has to go through all kinds of legal hoops to make me obey.

Of course, the beliefs in Hobby Lobby were ones with which Justice Alito is himself personally familiar. These plaintiffs are complaining about contraception—and when that didn’t fly politically, they recast it as a complaint about “abortofacients.” So they may have seemed reasonable enough to him. But as Justice Ginsberg pointed out in dissent, their causal nexus is so thin as to be basically nonexistent. I can be responsible for anything.

Thus, as Justice Ginsberg also writes, in holding that Hobby Lobby is entitled to its own factual universe, in which contraceptives cause abortion and providing insurance is the same as using it, the Court has opened the door to any number of wild religious claims.

And we don’t have to make up fun pseudo-religions to imagine them. I remember thinking, with some amusement, about my family’s conservative friends who bought bed linens off my partner’s and my wedding registry. Did they think about what the sheets would be used for, I wonder?

Well, under Hobby Lobby’s imaginative causal nexus, they morally responsible for it. Thus photographers, bakers, hotel owners, restaurateurs, and retailers of any kind can object to “facilitating” gay weddings, or interracial ones, or interfaith ones. Maybe Hobby Lobby can ban gays from its registry.

Moreover, with an increasingly multi-religious America, subsequent claims may not be as beloved to conservatives as this one. May pious Muslims ban immodestly dressed women, or all women for that matter, from their company’s stores? May they refuse to hire women as employees?

Or, as Justice Ginsberg noted, how about corporations owned by people who are religiously barred from blood transfusions (Jehovah’s Witnesses), antidepressants (Scientologists), and vaccinations (Christian Scientists)? On its face, Hobby Lobby says it’s not about those cases. But its logic certainly applies: If I believe that vaccinations are morally wrong, my company should not have to provide coverage for them.

To be sure, Justice Alito did not make this judicial doctrine up. Affirming the legitimate religious beliefs of Native Americans, Voudou practitioners, Jehovah’s Witnesses, and even Presbyterians, the Court has long refrained from evaluating which religious beliefs are valid and which are not.

But Hobby Lobby has taken it to its logical extreme, and in so doing, threatened its very foundation. This doctrine cannot hold, especially now that third parties can be affected by someone’s religious preferences—unlike earlier cases, which were usually about religious dissent that harmed no one. The result will have to be a limitation of the doctrine itself.

And when that happens, as it inevitably must, Hobby Lobby’s victory may prove to be a pyrrhic one.



The ‘Religious Liberty’ Bullies and Their Fight Against LGBT Equality

Jay Michaelson on the battle to prove equality for gays restricts the religious liberty of Christians.

Jay Michaelson

03.18.13 4:45 AM ET

Thirty-five years ago, having lost the moral battle for segregation, a small group of evangelicals met to rethink their attitude toward politics. Unlike Catholics and mainline Protestants, evangelicals had tended to stay out of secular politics, believing it to be irredeemable. But with the IRS’s decision to withdraw tax-exempt status from the evangelical Bob Jones University, which discriminated against African-Americans, the Christian right was born. Their mission, they said, was to defend “religious liberty.”

Today is a different age—but the players, and the rhetoric, are the same. Today a far-right coalition of conservative Catholics and evangelicals perceive that they have lost the moral battle against LGBT equality, particularly same-sex marriage. And so, as described in a lengthy report released Monday by the think tank Political Research Associates and chiefly authored by this writer, they are waging a multi-pronged battle against LGBT rights, not on substantive moral grounds but on the premise that equality for gays restricts the religious liberty of Christians to discriminate against them.

Of course, this is rhetoric, not reality. Forty years ago, the newly minted Christian right “played the victim” by claiming that a racist school, rather than the students being discriminated against, was the true victim. And today religious-liberty activists claim that bullies are the real victims because they cannot “express their views about homosexuality.” They claim that businesses who say “No Gays Allowed” are being oppressed because they are forced to “facilitate” gay marriages. And they claim that the real targets of discrimination are not gay people, who in 24 states can be fired from their jobs simply for being gay, but employers who can’t fire them.

Yet unlike recent anti-gay sloganeering, the religious-liberty campaign makes use not of theological arguments but of civil libertarian ones, and as such is much harder to recognize than the usual Bible-quoting bigotry. Indeed, Catholic-funded organizations such as The Becket Fund—named, not coincidentally, for the archbishop who chose martyrdom rather than obedience to the secular law—and the U.S. Conference of Catholic Bishops have co-opted the work of respected law professors such as Douglas Laycock of Virginia. They have even convinced Stanford University to establish a Becket-funded “Center for Religious Liberty.”

The notion that anti-discrimination law offends religious liberty has even found its way to the very top of our political life. At the vice presidential debate last fall, Rep. Paul Ryan accused the Obama administration of “assaulting the religious liberties of Catholic charities, Catholic churches, Catholic hospitals.” But all churches and most hospitals are already exempt from anti-discrimination law and need not provide reproductive health services either, despite receiving enormous government subsidies.

Religious liberty is a code word, like family values. Though Laycock and other academics may be sincere, the Family Research Council, Christian Legal Society, Ethics and Public Policy Institute, and the legion of other Christian right organizations are chasing the same bugaboos as ever—gay rights, abortion, prayer-free schools—and simply repurposing an old, racist rhetoric to fight the same social battles as always.

(Not all religious-liberty activists are Christians; a handful of Orthodox Jews have joined the campaign, providing a Jewish fig leaf for an otherwise hard-right theocratic Christian movement.)

This strategy has worked. Several states include religious exemptions to nondiscrimination law and same-sex marriage laws. “Conscience clauses” have limited women’s access to reproductive health for decades. And, in the highest-profile religious-liberty campaign of recent years, right-wing activists won significant new exemptions to Obamacare’s requirement that employers provide health insurance to their employees. Now not only churches but any church-affiliated organization—those aforementioned Catholic hospitals, for example—need not provide coverage for contraception.

But that’s not enough, not by a long shot. The Becket Fund has recently filed 37 lawsuits, all around the country, seeking to extend the exemption to any employer who feels religiously aggrieved by providing health insurance coverage that some employee might someday use to obtain contraception. From the hysterical op-eds written by one of Becket’s clients, you would think that the CEO is personally performing an abortion. The truth, as the Supreme Court held, is that health insurance is now a kind of tax. And just as a pacifist can’t opt out of paying taxes used for war, so too a religious employer can’t opt out of these taxes because an employee might use them for a form of health care with which the employer disagrees.

Besides, this is a slippery slope. Suppose a business is owned by Christian Scientists, who object to many forms of modern medicine. Should that business’s employees be deprived of health insurance entirely?

Or suppose a Christian business owner dislikes Jews as much as she dislikes gays. Not just dislikes—suppose she holds all Jews responsible for the death of Jesus Christ. Should such a business owner be able to post “No Jews Allowed,” like the wedding photographer who refused to photograph a gay couple?

Of course not. Religious-liberty rhetoric notwithstanding, civil rights is always about balancing competing interests. If the wedding photographer refuses to take a picture of a gay couple, the gay couple suffers injustice. If the wedding photographer must obey the same anti-discrimination laws as everyone else, then he or she has to put up with it, because this is America, and America doesn’t believe in discrimination.

Fortunately, this is a religious value as well. Christianity believes in rendering unto Caesar what is Caesar’s, and God what is God’s. Corporations do not have consciences; they are commercial entities well within Caesar’s domain. You want to be in the marketplace, you play by the same rules as everyone else.

Unfortunately, such points are lost in the din of right-wing talk radio. Just last fall in Minnesota, for example, the religious-liberty crowd was warning that if same-sex marriage passed, ministers would be compelled to perform gay weddings. This was an out-and-out lie, and they knew it. No rabbi can be forced to perform an intermarriage. No Catholic priest can be forced to marry two divorcees. And no, Virginia, no minister could ever be forced to solemnize a gay wedding, a straight wedding, or any other kind of wedding she or he found objectionable. But try telling that to honest Christians who are being robocalled on the eve of an election.

Religious liberty is being used to mask a conservative Christian agenda—the same agenda that’s been pushed for half a century now. Some on the far right may sincerely believe their liberties are being threatened, but they believed that about desegregation too. A belief does not make something so. The question is how many new believers they’ll recruit before this crusade is defeated.