Let’s talk about “religious liberty” orders.
I love the phrase “religious liberty.” It’s a great historical phrase. At one point, in a day when dissenting sects were anathema to the state religion, religious liberty was a rare thing. Hell, even in our current day, mosques are burned to the ground and those who worship in them likely hold their religious liberty tightly to their chests. But the phrase “religious liberty” has been used in the last several years as a mask for rigid homophobia in the name of sectarianism; it blatantly contradicts our constitution in multiple places and yet people trot it out as though it’s necessary for constitutional protection. The latest incarnation—an executive order anticipated tomorrow—is undoubtedly like state orders that have recently passed, designed to disproportionately impact gay citizens and which has implications for all of us.
Religious liberty orders grew apace when gay marriage became legal. They work like this: if a person feels that serving someone or doing something is against their religious beliefs, they are spared from having to serve that person/do that thing. Most orders “liberated” homophobes from, for example, having to bake a wedding cake for gay clients if that homophobe felt their religion prohibited them from doing so. (A well-known case in Oregon, which didn’t have such a law and made a baker pay a fine, seems to have inspired many since 2015: (See this LA Times story)
This line of thinking, that those providing service should do so in line with their beliefs, is the same one that formed the basis of the Hobby Lobby SCOTUS decision of 2014, which impacted women. If you don’t recall, let me help: Hobby Lobby did not want to provide contraception coverage for women in their health care plans as per the ACA’s requirement. Their argument: Doing so was against the Hobby Lobby’s owners’ religious beliefs. Providing that coverage was, Judge Alito wrote, a “substantial burden” on the Hobby Lobbyers, who felt—contrary to most scientific belief—that contraception prevents a fertilized egg from implanting.
That’s right. They won this case based on NOT SCIENCE. Effectively, they did not want women to control their fertility if Hobby Lobby money was in any way involved, even if people paid in to their premiums (as the vast majority of us do). Such a situation makes a nice preamble to what’s coming. (Here, read about it in the NYT)
Now in the past, even Justice Scalia—stalwart conservative—spoke against the potential overreach of religious freedom acts. In 1990 he noted that such acts, “would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” But three years later, under the Clinton White House, congress passed a federal act, the Religious Freedom Restoration Act, which has been refined and upheld a couple of times, and intends for a strict burden of scrutiny to apply to any claims. During the Hobby Lobby arguments, dear old Scalia insisted—in response to his peers’ questioning whether the women working at Hobby Lobby’s religious beliefs were infringed by having to acquiesce to the owners’—that the 1993 act did not require the parties’ religious objections be balanced. And so, despite the not-science and the selectivity of Hobby Lobby’s lawyers (so people can still eat shellfish, right?), their objections held, and here we are.
This New Order is Awful
The executive order anticipated this Friday looks to be expansive and as an order, well, we’re stuck with it until a court overturns it. A draft leaked to The Nation suggests some serious discrimination will be the result: it “protects ‘religious freedom’ in every walk of life: ‘when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts; or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments.’”
The Nation continues: “The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act.” And, for good measure, “protects the tax-exempt status of any organization that ‘believes, speaks, or acts (or declines to act) in accordance with the belief that marriage is or should be recognized as the union of one man and one woman, sexual relations are properly reserved for such a marriage, male and female and their equivalents refer to an individual’s immutable biological sex as objectively determined by anatomy, physiology, or genetics at or before birth, and that human life begins at conception and merits protection at all stages of life.’”
The Nation does a solid breakdown of the implications. What this order will do is dramatically expand the ability of individuals, companies, and corporations to refuse to serve (however that applies) ANYONE they feel violates their religious beliefs in some way. That discrimination—despite the blatant violation of our anti-discrimination laws, many embedded in the Constitution—is now sanctioned! Sanctioned! By the highest office in the land. This makes many people second-class citizens and encourages treating them accordingly. Gay people, women, transgender people, all second-class.
It’s giving Mike Pence a break, too—he ended up having to heavily revise Indiana’s order because it was tanking their economy. North Carolina will be so excited to start bathroom policing again, without the NCAA breathing down its neck. This law is designed to boost assholes like Pence. You know, the guy who calls his wife “mother” and won’t have dinner alone with women not his wife.
Keeping Pence in mind, how close could such orders come to “Handmaid’s Tale”-level stuff? Not the full dystopia, of course, but the system that made the dystopia possible. If a bank adheres to biblical prescription that woman is of man and thus subordinate to him, can they prohibit her access to her financial accounts? If I work at CVS and believe premarital sex is wrong, can I refuse to sell contraceptive to women, and leave men in control of their fertility? Can I refuse to sell a house to gay people, forcing them into neighborhoods and situations they may not want? (those neighborhoods would be fly, but that’s besides the point). In “The Handmaid’s Tale,” shit went down because people felt it was temporary, it would pass.
Will 45’s various hookups come under these laws? Can a driver refuse to drive him around because his beliefs that people shouldn’t have sex outside of marriage prohibit him from driving our esteemed president? That would be the only silver lining to this shitstorm.
Especially since, if we impeach him, we get Father in his place. And a Pence presidency scares me in entirely different ways from the one we currently have.