Saturday, April 02, 2016

The Religious Freedom Dodge

Slate's Mark Joseph Stern is not amused. He's troubled by Mississippi SB 1523, the Religious Liberty and Accomodations Act, particularly because its

primary design and intent is to debase and disadvantage LGBTQ people in every aspect of life. From employment and housing to marriage and adoption, HB 1523 puts sexual and gender minorities at risk of discrimination. Even a trip to the bathroom or the doctor’s office would suddenly become fraught with danger and uncertainty. LGBTQ people might as well stop engaging in mainstream society: At every turn, they will be confronted with the potential for discrimination and a reminder that their state views them as second-class citizens. In other words, they will live under a legal regime of segregation. For years, I believed this could never happen again. I was wrong. 

He's right currently, unfortunately. The "Religious Liberty" aspect is one which Stern does not ignore, but fails to emhasize. While the bill targets gay individuals, its purpose is allegedly is "to provide certain protections regarding a sincerely held religious belief or moral conviction for persons, religious organizations and private associations."

The word "religious" appears 32 times in the body of the bill. Among its other egregious provisions, SB 1523 protects individuals who deny housing based on religious beliefs or employers who decide "whether or not to hire, terminate or discipline an individual whose conduct or religous beliefs are inconsistent with those of the religious organization."

Although they are particularly dangerous aspects of a bad bill, they did not emerge out of whole cloth.

Back in 1993, when we all were naive about the long-range game plan of the right, President William Jefferson Clinton signed into law the Religious Freedom Restoration Act. The left should have had some inkling, and would have if it understood the issue.  The bill leaned on "the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests."

Perhaps it was because the only two Justices who dared to dissent from the majority decision were the very conservative Powell and Rehnquist . Or perhaps it was because the ruling in Yoder favored a religious minority (a Mennonite sect), which when connecting the dots, appears to have motivated the American Civil Liberties Union (which ironically, has finally "gotten religion.")   In either case, the left failed to understand that the Court's ruling- bad as it was on the merits- would have far-ranging implications.

And so it has, with the "State Religious Freedom Restoration Acts" entry in Wikipedia explaining

Originally, the federal law was intended to apply to federal, state, and local governments. In 1997, the U.S. Supreme Court in City of Boerne v. Flores held that the Religious Freedom Restoration Act only applies to the federal government but not states and other local municipalities within them. As a result, 21 states have passed their own RFRAs that apply to their individual state and local governments.

The map, from the National Conference of State Legislatures, below highlights the 21 states which enacted their own Religious Freedom Restoration Act between 1993 and 10/15/15, inclusively.   There are likely to be more because subjecting government regulations, including protection against discrimination, to personal whims based upon alleged, professed religious faith is a major objective of the right. Discrimination, particularly toward gays but among other people also, may be coming to a community near you, typically sold as "religious freedom" or "religious liberty," rationalized by a brazenly faulty misinterpretation of the First Amendment.

Hillary Clinton, especially among the presidential candidates, ought to be asked her position toward the federal RFRA to determine whether this is yet another action, one taken by the last Democratic President, with which she disagrees. However, the sins of the husband should not be visited upon the wife, assuming she renounces those sins.  The federal Religious Freedom Restoration Act inspired the state laws authorizing discrimination.  This one is on Bill Clinton.

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