Thursday, June 02, 2016

One Apology He Avoids

Last July, The Huffington Post's Marina Fang noted

As president, Bill Clinton was wrong about Wall Street deregulation and various elements of his foreign policy, pushed trade policies that painfully drove up drug prices around the world, sowed chaos in Mexico through his prosecution of the drug war and exacerbated the problem of mass incarceration through an overly punitive approach to sentencing. 

It may be a harsh judgment, but it’s one that carries weight considering the source: former President Bill Clinton.

Fang acknowleged "unlike a lot of politicians, Clinton has shown a willingness to own up to his mistakes."

Several of them, certainly, and confession is good for the soul, as well as evidence of a stronger, more impressive individual than someone (such as the presumptive GOP presidential nominee) who never admits to beign wrong.

Still, there are gaps in Clinton's apology tour.   While he acknowledges error in signing the Commodities Futures Modernization Act, which encouraged risky behavior on the part of banks, he does not regret signing the Financial Services Modernization Act (Gramm- Leach-Bliley), which in repealing the Glass-Steagall Act played a major role in creating banks which are "too big to fail." (Sometimes modernization is not the way to go.)

And then there is the Religious Freedom Restoration Act, a bad response in 1993 to a sound Supreme Court decision. The RFRA decreed “governments should not substantially burden religious exercise without compelling justification” and “the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.” Justice Antonin Scalia presciently wrote that allowing religious exemptions to countermand a valid civic law "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”

You may recall that two years ago, in the combined Hobby Lobby and Conestoga Woods cases, the Supreme Court by 5-4 ruled

that requiring family-owned corporations to pay for insurance coverage for contraception under the Affordable Care Act violated a federal law protecting religious freedom. It was, a dissent said, “a decision of startling breadth.”

The 5-to-4 ruling, which applied to two companies owned by Christian families, opened the door to many challenges from corporations over laws that they claim violate their religious liberty....

The companies challenged the coverage requirement under the Religious Freedom Restoration Act of 1993....

The decision’s acknowledgment of corporations’ religious liberty rights was reminiscent of Citizens United v. Federal Election Commission, a 2010 ruling that affirmed the free speech rights of corporations.

Two years later, the effort to rationalize discrimination upon a claim of religious belief based on arguable religious assumptions is only gaining strength. In a recent report, People for the American Way explained

Included in the recent anti-equality wave are various types of legislation, including state-level Religious Freedom Restoration Acts (RFRAs), modeled to different degrees on the federal law of the same name; so-called Government Nondiscrimination Acts (GNDAs), which do away with the federal RFRA’s balancing tests to give special legal protection to discrimination based on anti-equality religious beliefs; and anti-LGBT laws that don’t explicitly fly under the religious liberty banner, like bills barring transgender people from using the public bathrooms appropriate for their gender identity.

Some of those bills have been defeated, thanks to mobilization by equality advocates and their allies in progressive, religious, and business communities. Others have been approved by state legislatures but vetoed by governors, including Republican Gov. Nathan Deal of Georgia and Democratic Gov. Terry McAuliffe of Virginia. Still others have been signed into law, including Mississippi’s “religious liberty” law and North Carolina’s now notorious HB2, a law overturning local nondiscrimination ordinances and banning transgender people from using public restrooms that match their gender identity. Inflammatory rhetoric about transgender people has fed an increasingly ugly climate in which states and localities are literally making it a crime for a transgender person to go to the bathroom.

All of these approaches are being promoted by a network of national Religious Right organizations that oppose legal recognition for the rights of LGBT people. These organizations are part of a larger infrastructure of colleges and law schools, think tanks, media outlets, and advocacy groups that has been built over the last few decades. They work together to promote the false and destructive idea that legal equality for LGBT Americans is incompatible with religious freedom for those who oppose it — just as earlycivil rights opponents claimed that eliminating enforced racial segregation was an attack on southern white Christians’ religious beliefs.

This network of anti-equality groups is engaged in a high-stakes effort to convince Americans that preserving religious liberty requires giving individuals and corporations the power to disobey laws that promote the common good and protect other constitutional principles like equal treatment under the law.

Together these organizations constitute a powerful cultural and political force that will not disappear after a few losses in the courtroom or at the ballot box. Indeed, in the wake of their marriage equality defeat at the U.S. Supreme Court in 2015, they have redoubled their efforts. They are eagerly creating folk heroes out of public officials and business owners who refuse to provide services to same-sex couples. And they are pushing Republican officials to enact legislation at federal as well as state levels that would further weaponize religious liberty, turning it from a shield meant to protect individual religious practice into a sword to be wielded against individuals and groups disfavored by Religious Right leaders.

Most of the attention garnered by these attempts has focused on the impact upon the GBT community. However, the implications of state religious freedom discrimination legislation would have far-reaching implications, as Judge Ginsburg understood when in a dissenting opinion she wrote

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

Bill Clinton has admitted that his Administration's "don't ask, don't tell" directive, frequently violated by the military, was an error. He has asked for forgiveness for the Defense of Marriage Act, a law from a bygone era and one largely forgotten by voters. He supports same-sex marriage, which has become a majority-opinion.  Those are low-hanging fruit, exaggerated in their importance. Once he publicly recognizes that enactment of the Religious Freedom Restoration Act was a dreaful mistake, he will deserve the accolades he already has received, and many more.

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