The Religious Liberty Shell Game Needs to End Now Before the Civil Rights of Women and LGBTQ Recede into History

Posted in: Constitutional Law

President Donald Trump was elected in significant part by white evangelical Christians. While his obvious passions are business, trade, and money generally, his vice president and right-wing Christians are determined to use the Trump Administration, to advance one of their religiously-motivated public agendas, to secure the right to discriminate against and exclude LGBTQ.

The primary mechanism that they foist on the public is that they are invoking “rights” to religious liberty. In fact, they are playing a “rights” shell game, where every right is described as though it is constitutionally required, even though it is simply a manufactured right on their statutory wish list. There is a big difference: constitutional rights are mandatory; statutory rights are not.

It is commonplace in this era of extreme religious liberty for religious entities to pretend that the rights they are invoking are constitutional rights and therefore guaranteed. But the rights that the Christian right is so invested in grasping right now, with a Trump Administration in place, are just statutory rights. Before the election, many in this camp were resigned to having lost the public policy debate on LGBT issues. Now, Trump’s win in their minds is fresh air for their anti-LGBTQ agenda. They are pushing relentlessly to continue to make up more and more new “rights.”

The bottom line, though, is that the statutory rights they are greedily demanding harm others, especially LGBTQ.

What are the rights that have been made up through statute, with no constitutional back up? They are in large part “rights” to discriminate, and they are mostly derived from the federal (and state) Religious Freedom Restoration Acts. (The deep irony here is that RFRA was held unconstitutional on multiple theories in Boerne v. Flores in 1997 but that is an inconvenient fact they prefer to ignore.)

Some of these manufactured rights have harmed women, for example: the Hobby Lobby multi-million-dollar corporation’s “right” to discriminate against female employees in their health care benefits by picking and choosing what healthcare the plan would cover according the owners’ beliefs in Hobby Lobby v. Burwell. More have targeted LGBTQ, for example the first Indiana RFRA’s “right” to exclude LGBTQ from the marketplace and then the amended Indiana RFRA’s “right” of employers to discriminate against LGBTQ employees. Or then there is the Mississippi RFRA-generated “right” to discriminate against LGBTQ consumers. None of these so-called rights are constitutionally required.

Others are derived from expansive and harmful “exemptions” for believers from the laws that govern everyone else, e.g., the “right” of a pharmacist to refuse to sell to a customer any medicine that conflicts with the pharmacist’s faith, like birth control. There is also the “right” of a parent who believes in healing by faith alone to let his child suffer and even die from a medically treatable ailment. And, of course, the “right” of a parent to refuse to vaccinate her children. Again, these are statutory constructions, not constitutional guarantees.

As I have documented in God vs. the Gavel: The Perils of Extreme Religious Liberty, there are thousands of statutory exemptions, or “rights,” in the United States that harm others. Few Americans have come to grasp the harm that is done through these seemingly benign exemptions. In fact, the status quo is so bad that we should be discussing which exemptions to roll back, not how to pile on more “rights” to harm.

Still, the religious forces pulling Trump’s strings are intent on discriminating against LGBTQ in every arena they can and are busily crafting statutory vehicles to marginalize, discriminate against, and harm LGBTQ individuals and youth. In this era Oklahoma is leading the way in manufacturing these wish lists for conservative Christians to marginalize LGBTQ. Congress also has a bill, the First Amendment Defense Act, which I discussed here, which tills new ground in one discrimination free-for-all bill. This misnamed bill is the most brazen attempt to date by conservative Christians to pretend that their drive to discriminate is required by the First Amendment.

Part of the problem, oddly enough, is that the ACLU, of all groups, has made the policy mistake of backing the extremist formula found in RFRA for some cases while arguing that their favorite issues—like religious headgear—should be exempt from its reach. It is an intellectually bankrupt position.

The very formula of the statutory rights created by the RFRAs is inherently dangerous. For every case the ACLU has invoked RFRA pro-actively, the First Amendment would have been more than sufficient.

The national business leaders like Mark Benioff and Tim Cook who fought to scale back the Indiana and Georgia RFRAs also made this mistake to some extent. When the Indiana RFRA was amended so that it would not permit discrimination in the consumer market, it left open the path for religious believers to discriminate against LGBTQ in employment. Yet, they claimed victory. These half measures are a problem because they normalize a dangerous formula.

What very few understand in the public arena is that the extreme religious liberty era was first and foremost motivated by animus. The original federal RFRA of 1993 was fought for by conservative Christians to overcome the emerging fair housing laws. They were worked up by the prospect of having to let single mothers or unmarried couples live in sin in their apartment buildings. Of course, their fight against others living in the sin that they defined then expanded to a battle to keep LGBTQ from their apartment buildings. And that was just the start. The extreme RFRA formula has become the “rights” formula of choice to restrict LGBTQ in every sphere, whether it is the consumer marketplace, the employment market, or the housing market. While the few RFRA cases at the Supreme Court have focused on female employees’ health care benefits, and they have yielded bad news for women’s equal rights in the marketplace, those public debates have pushed to the background a simple fact: Extreme statutory religious liberty vehicles are being engineered most frequently to discriminate against and endanger LGBTQ.

So let’s not join in the alternative reality of those invoking these “rights” as they pretend that they are required by the Constitution or the First Amendment. They aren’t. There is no necessity in deferring to concocted statutory “rights.” Call them what they are: base interest group demands that grant believers a privilege to harm. It’s just plain old discrimination masquerading as true religious liberty.

3 responses to “The Religious Liberty Shell Game Needs to End Now Before the Civil Rights of Women and LGBTQ Recede into History”

  1. Edward Tomchin says:

    100% correct Ms. Hamilton. It’s more understandable and simply put that people have the right and freedom to practice their religion as they see fit but they do not have any right to impose their religious views and practices on others/

  2. XaurreauX says:

    Of course, people with REAL faith wouldn’t need the government to prop up their religion.

  3. says:

    The criticism of the use of Religious Freedom Restoration Act is overdrawn. As Cantor-Lawyer, I have used the argument against discriminatory zoning and noise ordinances. The law should be neutral on religion or it will be butting against establishment. The Catholic Bishop in RI, who is a lawyer, has stated that the Freedom Clause is more important than the Establishment Clause. As Chief Justice Roberts stated in the Missouri Evangelical Christian case, a super-majority recent case, the two religion Clauses of the First Amendment are of equal value. This does not change that there are instances where a law, which is neutral on its face, is used to restrict religion, such as 1) an ordinance restricting “noise” after 9 PM prohibiting music at a Jewish wedding held in June, 2) denying use of a small building as a retreat house on the same property as a Catholic Parish Center, and 3) prohibiting all religious uses in a residential area except by special use permit, where the only prohibited use is for a Mosque.

    I should also point out that the current Supreme Courts used RFRA to say Muslim and Wicca were entitled to the same freedoms as Jews and Catholics in prison. While, I personally do not agree with the Decision to gut part of the Voting Rights act as it was no longer “necessary” in the South, the underpinnings, of both the voting Rights Act and RFRA, is the Clause in the Fourteenth Amendment that gives Congress the power to promote the purposes of the Amendment by legislation. The legislation would still have to be internally consistent with the First Amendment’s multiple sides. If Justice Gorsuch is consistent with his strict original constructionist views, he could not overlook the Founders’ clear balance between Establishment and Freedom, as well stated by Chief Justice Roberts.

    Elliot Taubman