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“New Religious Freedom Bills Legitimize Discrimination”: Using The Bible As A Prop For Prejudice

You’d think history might serve as a guide for the politicians and preachers — good Christians all, of course — who have chosen to use the Bible to bolster their bigotry against people they’ve placed outside the magic circle. We’ve seen this before, and it didn’t turn out well for those who claimed a mantle of righteousness. Yet onward they march.

Mississippi recently passed a “religious freedom” law designed to provide legal cover for those who wish to discriminate against gays and lesbians. The law is quite specific, allowing government clerks to refuse to issue marriage licenses to same-sex couples and protecting businesses that refuse to serve them.

Does this ring any bells? Do any of these people remember Jim Crow, a system of legalized oppression that stunted Mississippi for generations and whose legacy the state is still struggling to overcome?

They can’t have forgotten — not all of them.

Gov. Phil Bryant, who signed the odious bill, is certainly old enough to remember. He’d remember, too, that, during his childhood, many of the leading church folk declared that God was on the side of discrimination.

And history should have taught the governor about Richard and Mildred Loving, an interracial couple who dared to marry in 1958. The Virginia judge who sentenced them to prison for their crime wrote: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. … The fact that he separated the races shows that he did not intend for the races to mix.”

Indeed, this practice of using the Bible as a prop for prejudice has a long and ignominious tradition, spanning centuries and continents. In the United States, slave owners conveniently saw in the Bible a heaven-sent sanction for their brutal greed. Throughout the 19th century, preachers delivered sermons claiming that “the Old Testament did sanction slavery,” as the Rev. Richard Fuller put it in 1847. Others saw a validation of white supremacy in a Bible verse about the descendants of Ham.

Proponents of “religious freedom” statutes point to the First Amendment, which enshrines as a central value the protection of religious views, even those that are outside the mainstream. Congress reiterated its fidelity to that founding principle as recently as 1993, when a bipartisan majority passed the Religious Freedom Restoration Act. It was designed for such cases as the Sikh firefighter who wants to keep his beard, or the Orthodox Jew who needs an exemption from a Sabbath work requirement.

But the U.S. Supreme Court’s 2015 decision legalizing same-sex marriage set off a spate of proposals that serve no purpose except bigotry — laws that prop up prejudice with Scripture. The giveaway in several of those bills is this: They allow for-profit businesses to claim to have religious beliefs and to refuse service on that basis.

(The Supreme Court opened the door for that with its unfortunate 2014 ruling in Burwell v. Hobby Lobby Stores, which assigned religious beliefs to corporations. That involved a company’s “religious freedom” to refuse to provide insurance coverage for contraceptives.)

Churches, by the way, don’t need any extra legal protections. The First Amendment has always given religious institutions wide latitude to practice their beliefs as they see fit, even if that means making invidious distinctions. Catholic priests have long reserved the right to refuse to marry those who are divorced; many conservative churches refuse to ordain women. So clerics may decline to perform the marriage rite for same-sex couples without fear of legal sanctions.

Given that, there is no need for laws that legitimize discrimination, and some states, either through revision or veto, have stepped back from such mean-spirited laws. North Carolina, however, has forged ahead with its “bathroom bill,” passed to nullify a Charlotte law that would have allowed transgendered individuals to use public restrooms of their choosing. And other state legislators are still debating proposals meant to show their disapproval of same-sex marriage.

Onward they march — toward their heterosexual heaven.

 

By: Cynthia Tucker Haynes, Pulitzer Prize Winner For commentary in 2007; The National Memo, April 9, 2016

April 10, 2016 Posted by | Discrimination, LGBT, Religious Freedom | , , , , , , , | 1 Comment

“Indiana And Federal Statutes Not Wholly Identical”: Three Factors That Make Indiana’s Religion Law Different From Other States’

The Indiana statute is the culmination of a long, murky legal history that reaches back to the 1990 Supreme Court case Employment Division v. Smith, which significantly changed the standard interpretation of the First Amendment’s free exercise clause. At issue was whether a Native American group could use peyote in religious rituals in violation of an Oregon law. The court ruled that it could not — because the state law was “neutral,” in that it was not motivated by a desire to curtail religious rights, and because it applied to everyone in the state.

Legal precedent prior to 1990 dictated that the government could substantially burden a person’s practice of his or her religion only if its action was necessary to achieve a compelling government purpose. But in Smith, the court established that the free exercise clause could not be used to challenge a neutral law of general applicability no matter how much the law burdened religion.

So, before Smith, a priest in a dry county who wanted to use wine in communion surely would have prevailed in court. After Smith, he would have lost because the law prohibiting consumption of alcohol was a neutral law of general applicability.

In 1993, Congress, with strong bipartisan support, passed and President Clinton signed the federal Religious Freedom Restoration Act. Its stated goal was to restore religious freedom by statute to what it previously had been under the Constitution. The law provides that whenever the government substantially burdens religion, even with a neutral law of general applicability, its action is illegal unless proven to be necessary to achieve a compelling government interest.

The next development came in 1997, when the Supreme Court declared the act unconstitutional as applied to state and local governments because it exceeded the scope of Congress’ power. But the law remained constitutional as applied to the federal government, and was the basis for the court’s decision last June in Burwell v. Hobby Lobby. In that case, the court held, 5 to 4, that it violated the Religious Freedom Restoration Act to require a closely held corporation to provide contraceptive coverage if that contradicted its owners’ religious beliefs.

The new Indiana law has the same title and contains the same language as the federal statute. Like the federal law, the Indiana version provides: “A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

But the Indiana and federal statutes are not wholly identical. The Indiana law, unlike the federal RFRA, builds on Hobby Lobby by expressly providing protection to corporations and other business entities. That’s one reason to worry that the purpose of the Indiana law is to allow discrimination against same-sex couples based on business owners’ religious beliefs.

Another reason for concern is timing. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith and 22 years after the enactment of the federal statute? There is a widespread consensus across the political spectrum that the Supreme Court is about to recognize a right to marriage equality for gays and lesbians and hold that state laws prohibiting same-sex marriage violate the Constitution. This law appears to be a reaction to that development.

The rhetoric surrounding the Indiana law is also troubling. In fact, over and over in his interviews, Pence has refused to deny that the law would permit discrimination. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”

This is why there are loud protests against the Indiana law and calls for boycotts of the state. But Indiana could easily solve this controversy by amending the law to provide that no one can discriminate against others based on sexual orientation, sex or race under the statute or on the grounds of religious beliefs.

 

By: Erwin Chemerinsky, Dean of the University of California, Irvine School of Law, The Los Angeles Times; The National Memo, April 1, 2015

April 2, 2015 Posted by | Discrimination, Mike Pence, Religious Freedom Restoration Act | , , , , , , | Leave a comment

“Judicial Neutrality Is Nothing But A Farce”: The Latest ObamaCare Decision Makes It Official, We Need More Liberal Judges

After the passage of ObamaCare in 2010, dozens of conservative wonks, activists, and lawyers began poring over the text of the law, trying to find some legal foothold to overthrow as much of it as possible. First they argued that the law’s individual mandate was unconstitutional in NFIB vs. Sebelius, which was rejected by the Supreme Court in 2012. However, the decision weakened the law by making its expansion of Medicaid optional, which led most conservative states to reject it and deny coverage to millions of poorer Americans.

Then, in Burwell vs. Hobby Lobby, conservatives attacked the scope of the law’s mandated coverage, arguing that the inclusion of certain kinds of contraception violated the Religious Freedom Restoration Act. That one they basically won, though the damage was minimal.

You’ll know these efforts by what conservatives usually call them: “judicial activism.” It paid off again today, with a three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit dealing a sharp blow to ObamaCare’s subsidy system. Adrianna McIntyre explains:

The suit alleges that subsidies should only be available in states that set up their own insurance exchanges, based on the text of the Affordable Care Act. The government can still appeal, but if it ultimately loses the case at the Supreme Court, it’s possible that federal subsidies will no longer be available to help make insurance affordable in over 30 states.

Due to what appears to many outside observers to have been poorly crafted legislative language, Congress arguably wrote a sentence that provides subsidies exclusively to state-based exchanges and not to federally facilitated ones, even while subjectively intending to provide subsidies in both cases. [Vox]

Now, Halbig v. Burwell is only a preliminary ruling. The government probably will request an “en banc” ruling before the entire appellate court, which leans to the left — thanks to Majority Leader Harry Reid (D-Nev.) pushing through filibuster reform that filled its long-empty seats with President Obama’s appointees. What’s more, another ruling hours later by the Fourth Circuit Court of Appeals in Richmond, Virginia, upheld the ObamaCare subsidies, deferring to the government’s interpretation of the language to mean that it is authorized to dole out those subsidies. It’s possible this will all end up before the Supreme Court, increasingly America’s only policy-making body of consequence.

God only knows what the high court will decide. Thirty-six states did not create their own ObamaCare exchanges, which means that upholding Halbig would swipe the subsidies from something like 87 percent of people who bought insurance on the federal exchange — about 4.7 million of them. Premiums would shoot up by an average of 76 percent, basically crippling the law. An individual mandate is unjustifiable without subsidies for people who can’t afford insurance. Chief Justice John Roberts might balk at destroying the keystone achievement of the Obama presidency on what amounts to a trivial technicality — or he might not.

What we do know is that the concept of judicial “neutrality” is nothing but a farce. The conservative goal is to pick at any possible legal thread and mobilize the judicial system to achieve their aim of destroying the law and throwing millions of people off their health insurance, even if the underlying legal rationale is wildly tendentious or weaselly or undemocratic. There will be Republican-appointed judges who will buy such arguments wholesale, as evidenced by the conservative majority in Halbig, which didn’t even bother to hide their scorn for the government’s case.

Indeed, half the reason so many states don’t have exchanges in the first place is that a Cato Institute analyst named Michael Cannon has been crossing the nation telling them not to, with the deliberate object of maximizing the damage to ObamaCare if the courts endorsed Halbig-style reasoning.

Liberals need to jettison the impossible idea of neutral, objective judges, and just get avowed lefties appointed wherever possible. As conservatives have demonstrated, that’s simply how the system works.

 

By: Ryan Cooper, The Week, July 22, 2014

July 23, 2014 Posted by | Affordable Care Act, Conservatives, Judicial System | , , , , , , , | Leave a comment