It's not just Roe
"Religious freedom" laws are coming for you.
Wake me up in 2021
What I’m Writing
The Washington Post - Only a man could get away with telling Trump to shut up
What I’m Reading
A new Supreme Court term opened up today, and there’s a lot to be worried about. The Court is virtually guaranteed to extend wider latitude for voter suppression. The Affordable Care Act faces a direct challenge, and millions of Americans could lose their healthcare. Abortion rights are, as usual, set to be limited even further. And the court is taking up yet another case that could continue their radical expansion of “religious freedom” to allow anyone claiming a religious belief to break anti-discrimination laws.
There’s a lot to be worried about. But this Orwellian definition of “religious freedom” is at the top of my list.
Two of the Court’s staunchest conservatives gave us a sneak peak today of how how far religious freedom arguments might go. In the course of denying certiorari to the case of Kim Davis, the Kentucky clerk who refused grant marriage licenses to same-sex couples, Justices Clarence Thomas and Samuel Alito took aim at Obergefell v. Hodges, the case that extended equal marriage rights to same-sex couples. “By choosing to privilege a novel constitutional right over the religious liberty interests explicitly protected by the First Amendment,” the men wrote, “and by doing so undemocratically, the Court has created a problem that only it can fix.”
The right has been pushing an expansive theory of religious liberty for years now, basically asserting that any citizen’s sincerely held religious views should exempt them from having to follow generally applicable laws. This isn’t about an employee getting the Sabbath off; it’s about a religious owner of a secular company being able to, say, refuse to hire women who are pregnant out of wedlock because he thinks that’s morally wrong. Or a waitress at a restaurant refusing to serve food to a same-sex or interracial couple. Or a nurse refusing to treat a transgender person. The possibilities can quickly get more extreme. It’s certainly not unheard-of for religious conservatives in many parts of the world to believe that girls should not be in school; if that’s the sincerely-held belief of a teacher or a principal, should he be allowed to refuse to teach girls? To refuse to admit them? Already, he can effectively deny his own daughters any education at all, thanks to children in America having virtually no rights, parents having a broad ability to legally harm their children, and very lax homeschooling laws — all of which is also tied up in the idea that religious freedom extends past one’s own choices and that a person has the right to impose their religious views on others.
Religious liberties have always needed to be in balance with other freedoms. Most liberals would argue that religious freedoms don’t extend past your own nose — you should be able to freely practice your religion, but you shouldn’t get to impose it on anyone else. Right-wing anti-abortion politics have pretty successfully undermined this balance — for example, if a pharmacist believes (falsely) that emergency contraception causes an abortion, well, he can refuse to dispense it to anyone who walks through the pharmacy door, even if the woman is a rape victim, even if there’s no other option nearby, and even if the pharmacy itself is a normal for-profit enterprise like a Rite Aid. A rape victim’s right to time-sensitive medical care is trumped by any individual pharmacist’s scientifically-incorrect believe that contraception causes abortion.
That strategy has only expanded in recent years. The Hobby Lobby case is the most notorious — the owner of Hobby Lobby, a secular company that sells craft supplies, was allowed to refuse to provide an insurance plan too his employees that included the most effective contraception methods in violation of the ACA’s contraception coverage requirement because he believes, erroneously, that certain forms of contraception cause abortion. It was an absurd argument, but it worked. Which is why the right is expanding it further.
They’re coming for women’s rights and LGBT rights first. Contraception is one target. So is healthcare for transgender people. And so is same-sex marriage.
And please don’t fool yourself into thinking that racial discrimination is settled. The same arguments that would undermine Roe v. Wade and Obergefell v. Hodges can be used to gut Brown v. Board of Education and Loving v. Virginia. Brown, after all, reversed the finding in Plessy v. Ferguson, which held that separate can still be equal; intellectually honest conservative originalists might very well admit that at the time the 14th Amendment was written segregation was very much permitted and therefore Plessy, not Brown, was rightly decided. It’s awfully tough to argue that Obergefell was wrongly and undemocratically decided without concluding the same about Loving — after all, arguments against interracial marriage were also grounded largely in religious beliefs about God separating the races.
The Court wouldn’t even need to overturn these decisions to render them meaningless for millions of Americans. If anyone with a sincerely-held religious belief is allowed to discriminate at will — to refuse marriage licenses, medical care, jobs, or services to anyone they deem immoral (interracial couples, LGBT people, women who are pregnant out of wedlock or not submitting to their husbands or using contraception) — then it doesn’t really matter if the people facing discrimination have a technical right to get married, have a job, go to the doctor, or plan their pregnancies. The conservative plan is to remake the law so that when any of those rights competes with a religious belief, the religious belief wins.
If Amy Coney Barrett is confirmed to the Supreme Court, this is the future we have to look forward to.