AP Photo.
The current backlash of religious liberty legislation won’t come as a surprise to anyone, but it looks like we will be in for a long courthouse ride on the current wave. The Advocate has an excellent article providing a good summation of Religious Freedom Restoration Acts, and their various permutations now piling up on courthouse steps. As noted, attempts at circumventing civil rights rulings aren’t new at all, but some groups are getting more savvy about language use, which can allow some discrimination to be passed, where the ones with blatant discriminatory language won’t.
Religious freedom is all the rage these days. To hear it told by conservative activists, the constitutional promise of each citizen’s free exercise of religion is under attack like no other time in U.S. history. Surely, such an urgent question is headed for the Supreme Court, right?
Maybe not so fast. Several out attorneys who have spent decades fighting for LGBT civil rights tell The Advocate that we may be settling in for another long, drawn-out battle that challenges discriminatory laws state by state, clause by clause.
[…]
Perhaps proving they’ve learned from Romer, though, anti-LGBT lawmakers these days are less explicit about which groups they’re targeting. The trend in RFRA legislation is to never include any mention of the words “gay, lesbian, bisexual, transgender,” or even “sexual orientation or gender identity.”
[…]
Some of the modern iterations of these religious freedom laws hew closely to the federal RFRA, which is comparatively narrow in scope, and therefore generally considered constitutional. But the new wave of bills claiming to protect religious freedom have a broader and, advocates say, more sinister motive.
“It’s not just about LGBT people,” Warbelow explain. “It’s about so much more. That’s an element of why these states are trying to pass [religious freedom laws], but it’s also very much about birth control. It’s very much about restrictions around abortion or even having to talk about abortion. It’s about creating a system in which the religious majority gets to live out their faith regardless of whom it hurts.”
The challenge, these attorneys agreed, is that litigation is designed to address one particular issue or constitutional question at a time. With laws that enable such widespread, multifaceted discrimination, each of those discriminatory provisions will have to be struck down individually, in every state where such a law exists. And even if this Herculean effort is successful, there’s nothing stopping determined anti-LGBT lawmakers from reintroducing slightly amended versions of bills that may have already been struck down in court.
“I actually think the American people are fundamentally with us, on understanding how the effort to use religion as a sword needs to be rejected in this [election] cycle,” says Wolfson. “It’s a multiple set of engagements we need to do, but the big lesson of the marriage work is: Get ahead of it. Have an affirmative strategy. Don’t just be reacting.”
Warbelow agrees and stresses that the problem isn’t with the concept of religious liberty.
“There’s still a real need for protections for religious minorities,” says Warbelow. “It’s just that the [federal RFRA] law has been misused by the courts.”
She points to the Do No Harm Act, a piece of legislation introduced by two Democrats last month in the U.S. House of Representatives that looks to revise the federal RFRA to clarify that it cannot be used to discriminate against members of any minority class, be they religious minorities, LGBT people, and/or women. The bill, Warbelow says, seeks to “restore RFRA to its original intent.”
“We need to reenvision what it means to protect religious liberties,” Warbelow says, “without creating a system in which it’s a free-for-all for discrimination.”
I just don’t understand how “religious liberty” laws can be allowed to be used to deny the rights of people. To me, it is just bringing back the past where a business would post a sign saying something along the lines of “Management reserves the right to refuse service to anyone”. It is discrimination no matter how you frame it, and discrimination should not be allowed. If you have a business that is open to the public, you must serve all the public equally. If you do not want to do that, you should not be allowed to operate a public business.
Johnson catman:
I agree, absolutely. It will come down to that, in the end, just as it did with civil rights in the 1960s, but it will be a long fight.
I have to say, that it really bothers me, these bigots latching onto the ’93 legislation, which came about to protect Indigenous people from being fired from their jobs for using peyote in religious services. Those types of rights being protected are important, but that has been completely erased and wiped from view by these phobic Christians howling over their loss of clout.
The federal RFRA was utterly the wrong approach to the problem it was trying to solve. It’s not the religiosity of using peyote that makes it okay, it’s the fact that it does no harm to the employers.
Two should-be-obvious points to make the case. First, if you get to use peyote because it’s part of your long-standing religious tradition, but I don’t get to because it’s not part of mine, how is that not religious discrimination against me? Second, what if it’s not peyote use? What if your long-standing religious tradition is human sacrifice? Does that still count as religious freedom? If not, why not?
Not to mention that all the federal RFRA does is require the government to use the least intrusive method of achieving its goal. If the goal is “prevent peyote use”, I don’t even see how the RFRA helps. The only actual use I can see to the RFRA is to enable the kind of junior high playground arguments like “I can’t tell you what my religion says, cause that’s against my religion!” As we’re now seeing.
Johnny Vector:
I can’t, and wouldn’t argue your points, you’re right. At the time, it was the only way to get a win (remember, ’93, DEA drug fever was going strong) but it wasn’t the right way.
The whole fucking thing is a morass of nastiness, and it’s going to be a major part of uStates landscape for years to come.
All I could think was “I hope they remembered sunscreen”
Caine:
You ain’t kidding.
Also, “Morass of Nastiness” is too great a phrase to just leave there. And since I haven’t seen Cuttlefish in a while, I had to do this myself:
There’s a morass of nastiness well on the way,
From peyote to peeing, it’s coming to stay.
We said it would give you the freedom to pray,
Oh thank you so much for the RFRA.
It may have at first seemed like Truman Quixote:
Trying to legalize taking peyote.
But for logic, religion is most antidotey.
So excuse me if now I’m a little bit gloaty.
We made it all happen, we got us some laws
To make sure you never get out of our claws.
Keep away from our bathrooms and lunch counters, cause
We’re putting this country back, just like it was.
There’s an army of lawyers with claims to seek who
Have a living to earn, and some harm to wreak too.
With their war-cry of “Freedom!” they’ll help to keep you
From having to deal with LBGTQ.
But wait, that’s not all; we’re preparing a bill
(Which we know that the libs will be trying to kill)
To remind you that sex is a dangerous thrill,
We’re going to prevent you from taking the pill.
There’s a morass of nastiness well on the way,
A bit evil, for sure, but we’re happy to say
That it isn’t our freedom we’re taking away
With the ever-expansionist RFRA.
Johnny Vector @ 6:
Oh gods, that’s great! Could I have your permission to post that?
Gawrsh, thanks! As for permission, as Bugs Bunny once said, “ickety-ickety ook ook… It’s yours!” Post as you wish.
Johnny Vector, done, and thanks!
This lawyer is being much too kind.
It’s about creating a system in which the religious majority gets to impose their faith on others regardless of whom it hurts.
Crimson Clupeidae:
Yes, but you’re not going to find anyone who is going to come right out and say that. Everyone has to be crafty.
The person wearing the bible demonstrates well the concept of living inside a constricting black box that limits your vision of everything else around you.