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Pollitt Calls for Repeal of RFRA

Katha Pollitt writes at The Nation that it’s time to repeal the Religious Freedom Restoration Act, passed nearly unanimously in 1993 by a Democratic-controlled Congress and signed enthusiastically into law by President Clinton. She wonders what on earth they were thinking.

Passed practically unanimously, with support from Ted Kennedy to Orrin Hatch, the ACLU to Concerned Women for America, the bill was a response to the Supreme Court’s decision in Employment Division v. Smith. This case involved two Oregon members of the Native American Church who were denied unemployment compensation after being fired for using peyote, an illegal drug, in a religious ceremony. Justice Antonin Scalia’s majority opinion, which held that a law that applied to everyone and was not directed at religion specifically was not a violation of religious freedom, made a lot of sense to me, then and now. Why should I have to obey a law and my religious neighbor not?

RFRA, which required laws infringing on religious convictions to meet the “strict scrutiny” test, was overkill. There were other ways to protect Native Americans’ right to use peyote in religious ceremonies. The church could have asked the State Legislature for an exemption; after all, during Prohibition, the Catholic Church was allowed to use wine in the Mass. Or—but now I’m really dreaming—workers could have been given legal protection from losing their jobs for minor lawbreaking outside the workplace. I mean, peyote! Come on. But no, for some reason, there had to be a sweeping, feel-good, come-to-Jesus moment uniting left and right. “The power of God is such,” said President Clinton, “that even in the legislative process, miracles can happen.” Gag me with a spoon.

What were progressives thinking? Maybe in 1993, religion looked like a stronger progressive force than it turned out to be, or maybe freedom of religion looked like a politically neutral good thing. Two decades later, it’s clear that the main beneficiaries of RFRA are the Christian right and other religious conservatives. RFRA has given us the Hobby Lobby decision permitting religious employers to decide what kind of birth control, if any, their insurance plans will provide. It’s given us “conscience clauses,” in which medical personnel can refuse to provide women with legal medical services—culminating in the truly absurd case of Sara Hellwege, an anti-choice nurse-midwife who is suing a federally funded family planning clinic in Tampa for religious discrimination because it declined to hire her after she said she would refuse to prescribe “abortifacient contraceptives,” i.e., birth control pills. (That the pill does not cause abortion is irrelevant—this is religion we’re talking about; facts don’t matter.)

But it doesn’t actually matter who is benefiting the most from RFRA. It’s just bad law, period. It says, in essence, that in many cases religious people do not have to follow the law while non-religious people do. This is, undeniably, religious discrimination. It should be gone. But that isn’t going to happen. Religion still has far too much influence in this country, even over the Democratic party.

Comments

  1. Reginald Selkirk says

    … said President Clinton, …
    What were progressives thinking?

    Mistake: Clinton was mostly a pragmatic centrist, not a true progressive.

  2. says

    @Reginald #1 – A selfish opportunist, willing to do anything whatsoever if there was a good chance he could benefit from it. The exact same thing can be said about pretty much every Democrat in Congress, and I dare say most state legislatures as well.

  3. says

    She wonders what on earth they were thinking.

    I can’t say exactly what they were thinking, but they definitely were not thinking that it would result in the Hobby Lobby ruling. As Ginsburg made clear in her dissent, the bill would have never passed so easily had they thought that a for-profit corporation could claim to have its own religion, much less use it to claim immunity from the law.

    But hey, conservative justices have a very principled legal philosophy on this: legislative intent trumps all, until it doesn’t.

  4. John Pieret says

    The interesting thing is that Hobby Lobby may have shot itself, and every other closely held corporation that asserts the shareholders’ religious beliefs, in the foot.

    Greg Crespi, corporate law professor at SMU:

    [I]f the owner himself, as in Hobby Lobby, has asserted, the corporation and I are one, complete congruence, we’re not separate – that could be turned around conceivably against them when a creditor of the corporation is trying to sue and the owner now wants to put some distance between himself and the corporation.

    http://www.npr.org/2014/08/05/338099703/hobby-lobby-ruling-may-have-poked-a-hole-in-the-corporate-veil

    The very reason to incorporate is to protect the shareholders’ personal assets from being taken by those who are owed money by the corporation should it fail. If a closely held corporation asserts it is one with its shareholders, there may well be a basis for saying the creditors relied on that representation and, therefore, have the right to go after the shareholders’ personal assets.

  5. says

    What were progressives thinking?

    My guess is that they were thinking, in part, “Oh well, liberalism is pretty well established in nearly all policy areas, so I guess we can afford to give a little ground to appease the religious right.” Or at least that was just one of the many rationalizations offered for Democratic spinelessness and capitulation in the face of relentless concerted right-wing pushback.

  6. pocketnerd says

    Thus Spake ZaraJohn Pieret, #4:

    The interesting thing is that Hobby Lobby may have shot itself, and every other closely held corporation that asserts the shareholders’ religious beliefs, in the foot.

    [...]

    The very reason to incorporate is to protect the shareholders’ personal assets from being taken by those who are owed money by the corporation should it fail. If a closely held corporation asserts it is one with its shareholders, there may well be a basis for saying the creditors relied on that representation and, therefore, have the right to go after the shareholders’ personal assets.

    I do not share your optimism. Given the makeup of the Supreme Court now and in the foreseeable future, I suspect the majority opinion will manage to rule in favor of the plutocrats Job Creators™, even if they have to twist the law into pretzels to do it.

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