“Indiana Takes On America”: Discrimination Against Gays, Religious Freedom And Rewriting The Constitution
The easy part is over. Americans now understand what the Indiana “Religious Freedom” law was intended to do: legalize discrimination by private businesses against homosexuals. It’s not a secret, as Eric Miller of Advance America said. Indiana acted “to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs! Christian businesses and individuals deserve protection from those who support homosexual marriages. A Christian business should not be punished for refusing to allow a man to use the women’s restroom!”
Anti-gay bias and intent to discriminate are itself reasons to oppose the new law. But there’s much more at stake. The organized Right is re-writing the Constitution and the impact will not be limited to gay Americans.
The supporters of the Indiana law are more diverse, intellectually capable, and more widely found across America than we think. Nineteen states have such laws, and not just the Old Confederacy. Liberal Rhode Island has one. The Indiana Catholic Conference supported the law (It “is very important to secure its passage”). The Indiana legislature considered it carefully, had hearings and received pages of testimony from distinguished legal scholars. (The Bill and the Testimony can be found at: The Bill; The Testimony)
There are elements of their argument that most Americans would support. We widely accept that religious organizations and places of worship should be free to practice what they believe. Should a church have to marry people outside its faith and beliefs? Should a Catholic church be legally required to perform a same-sex marriage? Should an Orthodox shul or a mosque be legally required to hire female rabbis and imams? Probably not.
It makes you think. Most Americans would say that some laws, even good ones, don’t apply inside a place of worship. If that is all the Indiana law did, it would not have stirred up the current commotion.
But Indiana went well beyond that. The law extends the inside-the-church exemption to commercial enterprises. Business corporations get the same protection that a church gets.
If you think you’ve heard this before, you’re right. It’s the same argument used to attack Obamacare in the “Hobby Lobby” lawsuit. That time is was about insurance coverage for contraception, but the argument was the same.
And you also heard a variant in Citizens United, where the Supreme Court conservative majority said corporations have the same constitutional free speech rights as do living, breathing people.
The traditional view was that by engaging in business, you agreed to live by the laws of commerce. If not, then religious belief could justify segregation, or refusal to hire or serve women, or Muslims, or Catholics, or Jews. Or gays. There were, and are, a lot of sincerely religious people who would jump at that opportunity. The Indiana law re-establishes the right to commercially discriminate, especially against gays, if that’s your religious teaching.
The Indiana brouhaha illuminates the broader, and more dangerous legal strategy at the heart of Tea Party, right-wing ideology, the personification of corporations. By enlarging the constitutional rights of powerful, wealthy and largely conservative corporations, the Right is diminishing the constitutional rights of most Americans.
It isn’t the least bit “conservative”. It is a radical, un-American, reactionary re-writing of our basic freedoms. We had struck a constitutional balance between private religious observance and public commercial activity. Real conservatives would be looking for a way to reasonably accommodate both interests.
With any luck, what’s going on in Indiana will provoke a better understanding of what the Right is attempting. In the end, Tea Party skepticism of government intrusion on personal liberty is perfectly reasonable. But in this century, our liberties can be equally threatened by rewriting the Constitution to empower corporations that impinge on our liberty with equal effect.
Practice your religion in peace and dignity. Do business without discrimination and bigotry. Sounds easy.
By: Richard Brodsky, Senior Fellow, Demos; The Blog, The Huffington Post, March 29, 2015
“Blame Jerry Falwell For Walker’s Slip”: A Trap Devised Long Ago By The Moral Majority
Well, we’re getting a pretty quick narrative rethink on Scott Walker, aren’t we? Two weeks ago he was a conquering hero. Now he’s a nincompoop. The truth is undoubtedly somewhere in between—although exactly which of the two poles he ends up nearer is one of the coming campaign’s mysteries.
But whether you’re liberal or conservative—that is, whether you think his cutesy refusal to confirm Barack Obama’s religiosity to The Washington Post was an outrage or act of truth-telling—the bottom line here is what my colleague Matt Lewis said it is: The way Walker and his people handled it was plain old not-ready-for-prime-time-ism. A first-time presidential candidate doesn’t get many mulligans on that front before the media decide he’s a second-rater and start covering him that way.
The most interesting thing about this hubbub, though, is the nature of the defense of Walker, which reveals a breathtaking lack of self-awareness on the right, or maybe dishonesty, or maybe both.
The main defense has been: Why was this question relevant? Why does Scott Walker even have to be asked about whether the president is a Christian? Well, maybe because for the last 30 or 35 years, the political right has dragged the question of a candidate’s piety from the fringes of the political debate, where it belonged and belongs, to the white-hot center, where it is a malignant tumor on our politics.
It wasn’t always this way. Of course we’ve had moralizers from the beginning. Thomas Jefferson’s political foes called him an “infidel” and a “howling atheist” and warned that if he won the presidency, churches would be converted into whorehouses. But then America matured, a little, and became a world power, and began taking in large numbers of immigrants, and started thinking about the world not only in terms of spirituality but in terms of psychology, social science, and so on. By the time all those forces had coalesced—the 1930s, let’s call it; the thermidorean backwash of the Scopes Trial—we by and large stopped having religious litmus tests for the presidency.
Ah but 1960, you’re thinking; well, yes, but that was totally different. No one questioned John Kennedy’s lack of religious faith. Indeed the issue was the opposite—that his Catholic faith was so all-defining that he’d govern as a Vatican fifth-columnist. For many years after that, a candidate’s religious beliefs were part of the story, certainly, but what reigned was a quality of tolerant and easy-going religious neutrality that was a reflection of the regnant, and largely bipartisan, Protestantism of the day. Candidates didn’t run around dog-whistling to the pious and implying that the impious were somehow lesser Americans whose votes ought to count for less.
Oddly it was a Democrat who first wore his religion on his sleeve in the presidential arena. Still, Jimmy Carter, though an evangelical, was still enough of a liberal to not tie his religious beliefs to a particular ideological agenda.
This all changed—and give the man his due—with Jerry Falwell and the Moral Majority, and the growing evangelization of the Republican primary electorate. Professions of faith from GOP candidates became more and more grandiose, like George W. Bush’s claim that Jesus Christ was his favorite philosopher. I’ve never known whether it was planned that he would say that or whether he just said it off the cuff, but whatever the case it was kind of brilliant of him, it must be admitted. When liberals made fun of him for not saying Locke or whatever, they managed to sound like snooty eggheads and Jesus-haters both at once.
At the same time that the religious right pushed Jesus into the presidential boxing ring, it did all it could to throw traditional religious neutrality out of it, such that positions that had been completely uncontroversial 20 years before grew to be toxic for Democrats. I think here of Al Gore being afraid to say in 2000 that he believed in evolution, one of the nadirs of recent presidential history.
In other words, it’s Republicans and conservatives who have made religious belief central to the conversation of presidential politics. And not just religious belief—a particular kind of (conservative) religious belief. Republicans made this a topic.
Now in fairness, Obama’s faith was a question in 2008, because of Jeremiah Wright, and that pot got a stirring not only from Republicans but from Hillary Clinton too. But the guy has now been the president for a long time, and voters twice elected him by reasonably comfortable margins. So these kinds of questions about Obama are still raised only in the fever swamps where Walker is trying to launch his dinghy. It’s only over there that these things matter.
So the question the Post put to Walker was completely logical and defensible within that tradition for which conservatism was responsible and to which Walker has recently been pandering, by weaseling around recently on the topic of evolution.
So it’s supposed to be unfair for Walker to have to answer a simple question like the one he was asked? Ridiculous. Liberals didn’t make faith a litmus test. If Walker and the others want to parade their own Christian credentials, any question along those lines is fair game. Besides, as Lewis said, there’s an easy answer: I don’t doubt that he is, it’s just his ideas and policies that are wrong. But of course that’s not enough for their base. If Walker got caught in any trap over the weekend, it’s one of conservatism’s devising, not the media’s.
By: Michael Tomasky, The Daily Beast, February 23, 2015
“The Supreme Court Opens The Floodgates”: Hobby Lobby Ruling Is Infinitely Flexible, Based On Your Religion — Provided It’s The Right Religion
It didn’t take long for the conservatives on the Supreme Court to show that their decision in the Hobby Lobby case goes farther than Justice Alito professed when he wrote it — just as the liberal dissenters charged. Yesterday the Court granted an “emergency” injunction to Wheaton College, a Christian college in Illinois, so that the college wouldn’t have to endure the burden of filling out a form certifying their objections to contraception. The move sparked a blistering dissent from the Court’s three female justices, in which they wrote, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
On its surface, this case appears to be a rather dull dispute about paperwork. But it actually gets to a much more fundamental question about what kinds of demands for special privileges people and organizations can make of the government on the basis of their religious beliefs.
One of the central points Alito made in the Hobby Lobby decision was that the company could be exempted from the law’s requirement that insurance plans cover contraception because there was a less restrictive means for the government to achieve its goal. This less restrictive means, he said, was the procedure the government had set up for religious non-profits: the group signs a form stating its objection and gives a copy to the government and to its third-party insurance administrator, which will then arrange for people to get contraception without the non-profit’s involvement or money. The fact that this procedure exists is what Justice Alito himself cited in the Hobby Lobby decision as proof that there was a less restrictive means for the government to accomplish its goal of guaranteeing preventive care, and for Hobby Lobby to keep clear of any involvement in contraception.
Yet in yesterday’s order, the conservative justices said this procedure — signing a form — is itself an unacceptable “burden” on Wheaton College’s religious freedom.
We don’t have to get into the administrative nightmare this could cause. (The dissent describes it well.) But the point is that there is seemingly no length this Court says the government shouldn’t go to accommodate this particular religious belief. A company or a university doesn’t want to follow the law? Well, we have to respect that — they can just sign a form stating their objection. Oh, they don’t want to sign the form? Well never mind, they don’t have to do that either.
When the Hobby Lobby decision came down on Monday, liberals warned that it was going to open the floodgates to all kinds of claims in which people would say that their “sincerely held” religious beliefs should excuse them from following the law. “My religion tells me I shouldn’t serve black people in my restaurant.” “My religion tells me not to pay sales taxes.” “My religion tells me that I should operate a brothel on my suburban cul de sac.”
But Alito wrote that that wouldn’t be a problem because in those kinds of cases the government was already employing the least restrictive means available to accomplish its legitimate goals, whether it’s stopping discrimination or collecting taxes or preventing prostitution. What the Wheaton College injunction shows, however, is that it matters very much who’s claiming that the law doesn’t apply to them. As much as the Court’s majority might want to believe their rulings are based in abstract principles that would apply to anyone, if you think they’d be working so hard to accommodate the claims for privilege of Muslims or Hindus or members of religious groups that the five conservatives on the Court do not have such an affinity for, you’re fooling yourself.
For some time now, conservatives have been claiming there’s a “war on religion” in America, but what they really want is special privileges, not for religion in general but for certain religions. They want government meetings to start with their prayers, they want their scriptures pinned on the walls of courthouses, they want everyone to celebrate their holidays and when they find the law displeasing — whether it’s a law about health care or discrimination or anything else — they want an exemption carved out just for them.
As important as the Hobby Lobby case is, it may be the seemingly small Wheaton College injunction that has the real effects. That’s because it’s a clear signal to everyone that the Hobby Lobby decision is infinitely flexible. As long as you liked the ruling, you don’t have to worry about whether the Court’s reasoning actually applies to your situation, because the Court doesn’t care. Go ahead and say the law doesn’t apply to you. As long as you say it’s because of your religion — provided it’s the right religion, and a belief like an abhorrence of contraception that the Court’s conservative majority shares — you’ll probably get away with it. And make no mistake: There are going to be a huge number of organizations, businesses, and individuals — probably thousands — that are going to try.
By: Paul Waldman, The Plum Line, The Washington Post, July 4, 2014
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