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“The G.O.P. Opts Out Of Equality”: Conscience Is Never Just Personal When The Occasion Is A Fraught Debate Over Public Morality

On May 28th, North Carolina Governor Pat McCrory vetoed Senate Bill Two, which proposed allowing public officials to temporarily stop performing weddings based on “any sincerely held religious objection.” In other words, if a public official were confronted by a gay couple who wished to marry, he could refuse to perform the ceremony. McCrory’s veto put the Republican governor at odds with a Tea Party legislature, which immediately promised to override it. On June 1st, the state senate voted to override, and, this morning, the house of delegates did, too, making it legal for North Carolina magistrates to turn away gay couples.

The Bartleby-like public official who “would prefer not to” marry same-sex couples would not have been asked to just one year ago. In 2012, North Carolina adopted a constitutional amendment banning same-sex marriage, in line with thirty other states where a majority at one point opposed it. Then, in June, 2013, the Supreme Court struck down the Defense of Marriage Act, and federal courts turned decisively in favor of gay marriage. In October, 2014, a federal judge ruled North Carolina’s marriage amendment unconstitutional, and same-sex ceremonies began. That month alone, court decisions also lifted same-sex-marriage bans in thirteen other states—Alaska, Arizona, Colorado, Idaho, Indiana, Nevada, New Jersey, Oklahoma, Utah, Virginia, West Virginia, Wisconsin, and Wyoming—more than twice the number of states where same-sex marriage was legal in 2010.

Following this rout, conservatives have moved rapidly from enforcing a unified public morality based on traditional marriage to speaking the language of pluralism as they seek exemptions from the rising legal norm of marriage equality. Their model has been the Religious Freedom Restoration Act (R.F.R.A.), of 1993, which exempts believers from federal laws that “substantially burden” their religious exercise, except where the regulation is the least burdensome way to fulfill a “compelling governmental interest.”

The R.F.R.A.—which was intended to protect neglected religious minorities, such as Native American worshippers who had recently lost public-sector jobs in Oregon because of their ritual use of peyote—was the basis of last year’s Supreme Court decision in Burwell v. Hobby Lobby, which held that certain business owners can refuse to offer insurance coverage for contraception based on their religious objections. The Indiana Religious Freedom Restoration Act, which was signed into law this March, is a model for the state-level expansion of religious exemptions, applying its protections to all corporations and making religious belief a defense in private legal actions, such as anti-discrimination suits. A similar bill passed in Arkansas later that month.

Supporters describe the state R.F.R.A.s and other religious accommodation laws as acknowledging the “increasing religious pluralism in American culture,” and protecting “religious liberties and the freedom to live out religious convictions,” as Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, put it in March. These exemptions, for the individuals, public officials, and business owners who wish to say, “I would prefer not to,” have become the new front in the culture war, the redoubt of attitudes that were recently in the majority. Invoking tolerance to defend intolerance is ironic at best, but at a moment when disapproval of gay marriage looks ever more like plain bigotry, it is better to say not, “I disapprove of you,” but rather, “This is who I am.”

The Bartleby strategy has taken center stage in conservative resistance to a wide range of liberal policies. In 2012, the Supreme Court nearly overruled the Affordable Care Act’s requirement that individuals buy insurance. Five justices voted to protect the consumer’s freedom to opt out of a market, such as the health-insurance market, warning that, if Congress could require this purchase, it could also command people to buy health-club memberships, American cars, or broccoli. (The insurance requirement survived through a sleight of hand, as Chief Justice John Roberts, who agreed with the rest of the Bartleby argument, found a hook for the law in Congress’s constitutional power to impose taxes.) In 2014, the Court held that certain members of public-sector unions could opt out of paying their union dues, which fund organizing and advocacy. Writing for the majority, Justice Samuel Alito argued that mandatory dues impinge on the First Amendment’s rights of free expression and voluntary association, and hinted that dues requirements in general might be found unconstitutional in the future.

As conservatives press these claims for personal exemptions, they have also been highly solicitous of states that would prefer not to accept new federal standards. The Supreme Court did real damage to the Affordable Care Act when, as part of its 2012 ruling, it found that states could not be penalized for refusing to expand Medicaid, which was an essential part of the A.C.A.’s path to near-universal coverage. As a result, twenty-one states have not signed on to the Medicaid expansion, and nearly four million low-income Americans have not obtained health insurance that the federal government intended them to have.

Similarly, Senate Majority Leader Mitch McConnell is urging state governments to disobey the Obama Administration’s order to develop climate-change regulations. McConnell has some support for his argument that the Clean Air Act does not stretch far enough to require these regulations, and there is sure to be litigation on the issue. But his call for a coordinated strategy of passive resistance in the meantime is extraordinary. The more opt-outs any climate policy includes, the more likely it is to fall apart in a wave of free-riding, as everyone decides to let someone else make the sacrifice, leaving no one to make the sacrifice at all.

Of course, a state refusing to make law is different from an individual refusing to bake a wedding cake for a gay couple. Medicaid policy and pollution regulation directly affect millions of people and billions of dollars of economic activity. The argument for conscience-based individual exemptions is that they concern the exempted individual most of all. The problem with this argument is that an individual’s conscience is never just a personal matter when, as in the case of the Hobby Lobby decision, it bears on the terms of employment. Then the person denied contraceptive benefits, or who is looking for a new job where she can get those benefits, is also part of the picture. Economic life is deeply interdependent, and involves conflicting interests and unequal power. This is why, from the New Deal until very recently, the Supreme Court did not permit many opt-outs from economic regulation. The new raft of conscience claims is creating unprotected spaces within an already precarious economy.

A second problem with individual opt-outs is just as basic. Conscience is never just personal when the occasion is a fraught debate over public morality. Once public laws banning same-sex marriage are gone, authorizing supposedly private discrimination against same-sex couples continues the cultural fight by other means. In hindsight, no one doubts that allowing business owners to discriminate against black people during the Civil Rights era would have denied them full equality and hampered desegregation. (Arguably, the continued tolerance of discrimination by private clubs also undermines desegregation, though club membership is less essential to daily life than shopping.) Similarly, allowing private discrimination against gay couples is not an exemption from a new rule of full equality; it is a compromise that allows inequality to persist. Proposals to let magistrates withhold marriage licenses have the same problems, with the added insult that the discrimination is effectively coming from the state. If officials can decide not to implement laws they dislike, then equality under the law—for gay couples, at least —is just a slogan.

The Bartleby position appeals to touchstone liberal values: personal conscience, diversity, tolerance, and autonomy. On their face, these values seem to promise there are no hard conflicts: there is room for everyone’s conscience, everyone’s outlook, and tolerance enough for each person’s freedom. The new generation of opt-outs show that this is a misconception: there is conflict over what these values mean, and there is never enough room for all their meanings. The politics of tolerance, diversity, and autonomy are distributive politics, with winners and losers.

From Thoreau’s night in jail protesting slavery and the Mexican-American War to the Greensboro lunch-counter sit-ins, sitting still and not doing as you are told has been among the most potent of political tactics, though its effects are often complex and long delayed. As in much else, initiative in this tradition of creative refusal belongs to the political right today. There is no paradox in conservatives using liberal values and tactics to their ends. By the same token, there should be no liberal embarrassment in resisting. There is no incoherence here, but there is disagreement too sharp for tolerance alone to resolve it.

 

By: Jedediah Purdy, The New Yorker, June 11, 2015

June 13, 2015 Posted by | GOP, Marriage Equality, North Carolina | , , , , , , , , | Leave a comment

“Don’t Wreck Religious Liberty’s Brand”: A New Commandment Now Trumps Some Of The Others; ‘Thou Shalt Not Spoil The Brand’

We are all obsessed with our brands these days, and no one more so than states competing fiercely for jobs and businesses. Some of them are quickly learning that being seen as anti-gay is dangerous to their images.

As controversy engulfed Indiana over its religious liberty law that would give legal recourse to those who discriminate against gays and lesbians, leaders of North Carolina, which has one of the most conservative state governments in the country, were getting cold feet about passing a comparable statute.

“I think we need to show that if we approve this bill, that it will improve North Carolina’s brand,” said Tim Moore, the Republican Speaker of the state House of Representatives. “Anything we do, we have to make sure we don’t harm our brand.”

A new commandment now trumps some of the others: Thou shalt not spoil the brand.

Republican governor Pat McCrory went further the day before on a Charlotte radio show, saying that a religious liberty law “makes no sense.” Meanwhile in Arkansas, Republican Gov. Asa Hutchinson called on state lawmakers to recall a religious-liberty bill they had passed.

This turn of events is coming as a shock to opponents of gay marriage. They thought that moving the fight to the ground of religious liberty was a politically shrewd fallback position now that courts are ratifying marriage equality. In our rights-oriented country, the best way to push back against one right is to assert a competing one.

Conservatives have a fair claim up to a point — and now they have barreled past it. The legitimate argument is that the country has rapidly changed its mind on gay marriage even as many religious traditions continue to see homosexual behavior and same-sex marriage as sinful.

Most supporters of gay marriage are willing to acknowledge (and should) that the law cannot force religious denominations to participate in activities they regard as deeply wrong. Most marriage equality statutes have thus included broad exemptions. An objecting church, for example, cannot be forced to bless a same-sex union, nor can it be required to let its facilities be used to celebrate one. Those who want their faith communities to change their view of marriage have to work the matter out on the inside and not rely on the coercive power of the state.

But opponents of gay marriage wanted more. Going far beyond what the original Religious Freedom Restoration Act had in mind at the federal level, they want a baker to be able to refuse to confect a cake for the reception after the ceremonies and for a florist to decline to provide the bouquets.

Now, I truly doubt that there are a lot of gay couples who would give their wedding business to vendors who regard what they are doing as an abomination. As a Catholic, I might not be enthusiastic about having an anti-Catholic baker involved in my wedding festivities. Not every battle has to be fought, and I suspect that many same-sex couples will voluntarily turn to bakers and florists who can share in their joy and don’t have to be forced to come kicking and screaming to the party. Supporters of gay marriage are winning, so they should consider the virtue of graciousness toward those who still oppose it. This would be good for social peace.

But consider my example: I do not think the law should give someone who sees the pope as the anti-Christ “religious liberty” grounds to use in justifying discrimination against me. Gays and lesbians are justified in feeling the same way. By taking reasonable religious liberty claims and then pushing and twisting them into a rationale for discrimination, opponents of gay marriage have picked a fight that will weaken religious liberty arguments overall. Where would this end?

Carefully thought-through religious liberty exceptions make good sense. They involve balancing when it is appropriate to exempt religious people from laws of general application and when it doesn’t. But turning religious liberty into a sweeping slogan that can be invoked to resist any social changes that some group of Americans doesn’t like will create a backlash against all efforts at accommodating religion. Forgive me, but this is bad for the brand of religious liberty.

It is, however, entertaining to watch conservative politicians be jostled this way and that between their business constituencies who don’t want this kind of trouble and their supporters among social conservatives who insist upon it. They thought they had found a way around the country’s increasing openness to gay rights. They’re fretting about brands because they now know they were wrong.

 

By: E. J. Dionne, Jr., Opinion Writer, The Washington Post; The National Memo, April 2, 2015

April 3, 2015 Posted by | Discrimination, Religious Freedom Restoration Act, Religious Liberty | , , , , , , , , | Leave a comment

   

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