This Is Why I Have Faith in the Future of the United States Despite the Ill Winds of Fascism and Christian Nationalism

Posted in: Constitutional Law

It feels like the United States is being stalked by the grotesque and deadly Greek god, Typhon, whose lawless rampages ceased only when Zeus moved Mount Etna to bury him forever. There are two monstrous threats the American people must bury. First, there is Donald Trump, the fascist with a following, who intends to fulfill his greatest calling as a lawless dictator governing for vengeance, racial purity, and repression. Just as dangerous, we have a right-wing, white evangelical-fundamentalist Catholic axis whose long-planned theocratic takeover is just now being perceived by the American people. Politics makes strange bedfellows, and their arrangement is bizarre, as I pointed out here, but their close bond is partly forged by a mutual interest in tossing civil rights and destroying democracy to secure ultimate power.

Every day, there is further evidence that even the Republican establishment does not value the Constitution. Trump has suggested eliminating the Constitution yet he leads Republicans in the presidential polls. The theocrats are also willing to scrap the Constitution to let their right-wing God cancel democracy and annihilate civil rights. The most recent evidence is the astounding claim in a National Review op-ed entitled, “The Declaration of Independence Founded a Theistic Republic.” The republic was founded by the Articles of Confederation and then the Constitution, neither of which is plausibly theistic, but National Review wants you to skip over those two historical documents. This misleading contortion of history is a transparent attempt to leave the people out of our republic. It’s not a surprising move when you seek power but your views on theism and democracy are disfavored by the people in large numbers. What they wish is that the Declaration was the preamble to the Constitution. Unfortunately for them, the Framers couldn’t even agree to hire a preacher to say a few prayers, let alone establish a theocracy first and a republic second.

John Locke, whose political philosophy influenced the formation of our governments wrote in his Second Treatise of Government that a republic is a compact among the people where the consent of the people is critical to legitimation of the government. National Review’s insidious op-ed wants you to believe that it all started with God. Neither the Articles of Confederation nor the Constitution invoked God as our measurement of government and neither incorporated the Declaration by reference. Alongside Trump, they are promoting a narrative that spells the end of democracy and the entry of a theocracy derived from historical distortions and their monstrous drive to power.

Despite all of this ugly static, I remain hopeful, because the reaction to the overruling of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization has revealed that not all conservatives want to own the culture with their faith.

Many pundits have tried to explain why conservative states like Kansas and Ohio would establish constitutional rights for abortion following Dobbs. Kansas voters beat back a ballot question that would have rejected constitutional rights to abortion in the state constitution. Ohio voters added a constitutional right to abortion in their constitution. If seen from a purely political lens, it is illogical.

Pre-Dobbs, the abortion debate had two sides: righteous anti-abortion religious believers and “secularists.” The right was very artful in the way it commanded the high ground with an unpopular position, painting themselves as heroes of faith and calling everyone else a low-level “secularist.” They were smuggling in the American instinct to place religious liberty above other interests (especially in this era of right-leaning Christian triumphalism), and in effect saying that they were pure and their opponents were craven. That is, of course, how they saw themselves, but the press and the rest of us never should have repeated those labels.

You can still see this dichotomy in right-wing writers today, though some have had to creep closer to the truth as Jews, Protestants, and Catholics for Choice alike have declared their religiously-driven support for abortion in lawsuits across the country. Dobbs did us a favor by forcing out of the shadows the majority of believers, whose faiths sanction access to abortion. It was never accurate to cleave the abortion debate according to the one side. Without a doubt, most of the media is still failing us by letting right-wing Christians own “Christian” when they should be reporting that there is no Christian majority but rather dozens and even hundreds of Christian sects. There is no secret conclave where they all gather to share their shared group beliefs. Christians and, in fact, all religions hold a wide array of beliefs about abortion, with the anti-abortion side occupying a shorter bench. The same media has let the right get away with acting like the unimpeachable true believers by letting them label themselves “pro-life.” Letting the pregnant be permanently emotionally or physically disabled or die is the opposite of “pro-life.” But I digress. Suffice it to say, words matter.

The common thinking was that without Roe, the red states would make abortion obsolete while blue states would protect it. The guys on the right like Leonard Leo had a Battle Plan where Dobbs was going to be their fireworks-worthy achievement. What they missed was that it was also their first public strike against the rest of us. They had succeeded since the 1980s with an incremental, behind-the-scenes approach cloaked in righteousness. Dobbs showed the public the details, which are wildly unpopular; it was written to eviscerate all privacy rights–abortion, contraception, sex between consenting gay adults, and gay marriage. They built their Court to fulfill this magnificent vision of cultural dominance and expected Christian nationalism to spread like a river of holy water. Finally, they could suppress the sinners.

That is now how it played out. Could it be that religious beliefs about abortion changed overnight? Nope.

Instead, Kansas and Ohio have shown us that there are two kinds of believers who reject abortion. First, there are the ones I just described who seek not the liberty to practice their religion, but rather religious domination. Their God has the answers and His answers must control everyone—their believers and the apostates. Personal religious liberty was never enough for them. To the contrary, they have schemed to obtain mandatory accommodation to every law on the books for believers from child sex abuse to insurance to compulsory education, anti-discrimination, and public accommodations laws.

Post Dobbs, we are now seeing on full display right-wing religion demanding not just their own rights to believe and practice their religion, but also the right to cram down their faith on everyone else. Cultural control is what abortion bans are all about, and their lawmakers with nary a blush exhort their success in bringing their God back to abortion law. Gov. Ron DeSantis signed Florida’s 15-week abortion ban in a church where the discourse was drenched in religiosity. He bought into the bullying side of religion, and then discovered that vision will not work with the people.

There are other right-leaning believers who reject religious domination. While they may forever reject abortion, and will never obtain one for themselves or their daughters, these Bible believers shy away from making that decision for anyone else. Kansas and Ohio have shown us the most delicious irony: a significant number of Republican anti-abortion women are pro-choice. They are modern-day heroes because they are rejecting the totalizing spirit of that far-right machine.

Dobbs opened the door to a dystopian society where religious liberty would no longer be the right to believe and exercise one’s religious practices, but rather the right to control others by faith. Political power equals control We are on the precipice of a theocracy as I explained here. The voters in Ohio and Kansas prove there is another way.

The movement to hand religion the power to overcome neutral, generally applicable laws was set in motion when Jerry Falwell and Paul Weyrich joined forces in the 1980s, as I discuss here. There has been an epic battle over the scope of religious liberty since 1990 when the Supreme Court decided Employment Division v. Smith, holding that religious actors are bound by neutral, generally applicable laws just like everyone else. The Court itself did not consider the decision to be world-changing, but rather a summary of their prior cases. I was clerking for Justice Sandra Day O’Connor at the time and have had access to the Conference notes with the Justices’ discussions.

There was a huge overreaction to the decision, fed by one-sided religious scholars like Douglas Laycock and Michael McConnell, whose article touting mandatory accommodation has been shown to be law office history more than once. The right still relies on his articles, as I discussed here, despite its warped history.

The movement culminated in the misguided Religious Freedom Restoration Act of 1993, which was held unconstitutional in 1997 in Boerne v. Flores, but re-enacted in 2000. This is the 30th anniversary of the original RFRA, which treats believers as privileged citizens over all others and relieves them of obligations that protect the larger public good. It is one of the most potent contributions to our polarization.

Note that the celebrants of the RFRA’s anniversary are exclusively from the far right, particularly the Becket Fund. RFRA in action taught liberals it is dangerous to their ideals. Lori Windham of the Becket Fund recently published an op-ed in the Hill thrilled about RFRA’s opening the door to for-profit Hobby Lobby to deny female employees contraception that supposedly conflicted with the owners’ religious beliefs, among right-wing victories. She correctly notes that the ACLU pulled its former support for the law, as have other left-leaning organizations like People for the American Way. The polarized support for RFRA is further evidence that it is one of the right’s weapons to carve out a culture mirroring their beliefs. The latest win for the religious dominators involves employers being permitted to fire LGBTQ employees because they are LGBTQ. Title VII is being carved up by RFRA to polarize the marketplace of business. The dominators simply cannot tolerate those who violate their beliefs and must ban them from their holy presences.

Extreme religious liberty, like RFRA, is simply bad for society, children, women, and LGBTQ individuals, as I have argued many times over the years. But letting the Typhon-like Trump-conservative religious axis shred our democracy and civil rights is even more disastrous.

Yes, the post-Dobbs era is giving me some hope that a majority of the American people don’t want their own religion to control everyone else’s actions and aren’t interested in a theology concocted out of a false history. Unlike the guys who are all set to take over, they respect democracy, rights, and choice. There really is a spirit of tolerance across the United States that can defeat this modern-day Typhon. Hallelujah.

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