There’s a terrifying history of religious bias becoming law, and with Trump in office and Kavanaugh being put forth to join the Supreme Court, things can only get worse.
We all know by now that the stance of evangelicals is “religious liberty for me but not for thee.” But how did all that start? And how did it get such traction?
Prior to the rise—and disproportionate influence—of conservative evangelical voters, religious liberty cases tended to focus on things like indirect public aid to religious schools, the display of nativity scenes, and prayer in schools. In other words, they were typically about balancing the secular world’s interaction with religious practices and displays. Somewhere in the mid-1990s, however, the notion of “religious liberty” began to focus heavily on issues related to sexual behavior and sexuality, with birth control and LGBTQ rights being chief among those.
In some ways, that shift isn’t surprising. It roughly coincided with LGBTQ people making gains in both the legislative, judicial, and public arenas. In 1993, Hawaii became the first state where a court ruled that barring same-sex couples from marrying was discrimination. In 1997, Ellen DeGeneres came out in real life and on her popular television show. In 2000, Vermont created civil unions. But the thing that probably caused conservatives the most consternation was the U.S. Supreme Court’s decision in Lawrence v. Texas. There, Justice Kennedy joined the liberal wing of the Court to rule that sodomy laws—which were functionally designed to attack the sexual practices of gay men, even if they were written in a neutral fashion—were unconstitutional. Scalia penned a dissent that was, to put it mildly, off the rails. He decried what he called a “law-profession culture” that “has largely signed on to the so-called homosexual agenda [which is] directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Scalia might as well have just said that the “elites” were looking to ram homosexual conduct down the throats of God-fearing Americans. It was a portent of things to come, a preview of the extreme pushback that LGBTQ people would soon face.
At the same time, anti-birth control forces were marshaling their forces to attack the fundamental rights of people controlling their own bodies and reproductive choices. In part, that may have been sparked by the fact that emergency contraception and the abortion pill became available in the early 2000s. Combine that with the election of George W. Bush, which was a major signal to conservative Christians that had the ear of the government, and you had newly emboldened and mobilized evangelicals agitating to stop women from getting birth control.
Then came the Affordable Care Act. For the first time, people who needed contraception saw their right to that medicine enshrined in law when employer health plans became required to provide birth control benefits. In the pre-Trump years of the ACA, out-of-pocket costs for birth control plummeted, making access to contraception much more equitable. Even though the law contained a carve-out for religious institutions like churches, ensuring their health plans didn’t have to cover contraception, plenty of other religiously affiliated organizations, like Catholic universities, didn’t want to provide that benefit either.
This was where we really started to see the “religious liberty” argument kick in. The Obama administration responded to the concerns of places like Catholic hospitals by issuing yet another carve-out to the ACA’s birth control mandate. This time, the administration said those institutions didn’t have to sully their religious hands with providing birth control—all they had to do was to let their insurance company provide those benefits directly.
That still wasn’t enough because, the organizations complained, it violated their religious liberty to fill out a form authorizing their insurance company to provide the benefits. Here is when we start to see the real reach and power of the religious liberty argument: By late 2013, there were approximately 20 lawsuits from organizations that weren’t churches, but were religiously-affiliated, claiming that merely filling out a form would violate their religion.
The scope of this was breathtaking. At root, it was an argument that people of a certain religious stripe should not be required to participate in the larger secular culture at all. This was no attempt at a balancing act. There was no effort to allow the people that worked for those non-profits or attended those religiously affiliated schools to exercise their rights and receive contraception. Instead, religious liberty had become a cudgel instead of a compromise.
Of course, then private corporations had to get into the act, and that’s how we got the Hobby Lobby case. There, the conservative majority of the U. S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) compelled a decision that private companies—secular for-profit corporations, not religiously affiliated non-profits—could refuse to provide the ACA-mandated birth control benefits to its employees.
It’s the sort of exception that swallows the rule. Now, any corporation could essentially argue that the religious beliefs of its owners stand taller than the law. Justice Ginsburg’s dissent in that case was prescient: What about a restaurant owner who has a religious objection to serving African-American patrons? Or a business that won’t allow women to work there unless they have their husband’s permission to work outside the home? Or, most tellingly, a photography studio that didn’t want to photograph a same-sex wedding?
And, of course, the last one is nearly exactly what happened in Masterpiece Cakeshop v. Colorado Civil Rights Commission. A conservative Christian cake-baker refused service to a gay couple and went all the way to the U.S. Supreme Court to preserve his right to do so. Inevitably, he won, even though many lower court cases had ruled the opposite. But by the time of the Masterpiece Cakeshop case, members of the Supreme Court had clearly signaled that they would use religious liberty as a way to discriminate against LGBTQ people. In an opinion authored by Justice Anthony Kennedy—the same Justice Kennedy that wrote the opinion granting same-sex marriage rights—the majority held that it was fine that Jack Phillips, the owner of Masterpiece Cakeshop, had the right to refuse service because his religion compelled him to do so. His religious liberty doesn’t just supersede the rights of LGBTQ people. It supersedes the flow of commerce. Jack Phillips gets to participate in the marketplace, but he gets to set his own rules as to who he wants to serve. That’s antithetical to American values, and something we had theoretically settled back when the courts ruled that African-Americans could sit at whites-only lunch counters.
The Supreme Court gave Jack Phillips an inch, and he’s rapidly taking a mile. He’s sued the state of Colorado because he wants to refuse to bake cakes for transgender individuals and Colorado told him he couldn’t do so. Unsurprisingly, his narrow and cramped and bigoted religious views prohibit him from even acknowledging that people are transgender. His lawsuit says that he was unable to create a cake—blue on the outside and pink on the inside—that celebrated the day an individual came out as transgender. He declined to make the cake, his complaint says, because “it would have celebrated messages contrary to his religious belief that sex—the status of being male or female—is given by God, biologically determined, and is not determined by perceptions or feelings, and cannot be chosen or changed.”
Phillips’s argument here actually flies in the face of what he initially argued in his Supreme Court case. There, he initially argued, when he was still fighting the case at the state level, that he didn’t refuse service to the same-sex couple because of their status as gay men, but because of what they wanted to do: get married and have a cake that celebrated their union. Now, however, he takes umbrage at the very idea of a transgender person. He’s moved the goalposts, which was always the intention of these sorts of religious liberty cases: the continuing diminution of the rights of people of whom they disapprove.
And Phillips’s case isn’t the only recent one using “religious liberty” to attack LGBTQ people. A conservative Christian website designer in Colorado has preemptively sued the state to ensure she never has to make a website for a same-sex couple’s wedding. Indeed, she’s so scared she might be asked to do so that she would like to affirmatively and explicitly advertise that she won’t make those websites.
Over in Philadelphia, Catholic Social Services sued the city when the city stopped referring foster care children to their agency because Catholic Social Services won’t license same-sex couples as foster parents. They’re arguing, of course, that their religious liberty overrides the right of the city to decide which agencies would best serve foster children and potential foster parents. The city prevailed at the district court, but Catholic Social Services has appealed.
Under the Obama administration, at least, the government stood as a bulwark against the creeping fascism of evangelicals. That all changed when Trump took office. The DOJ reversed its position in Masterpiece Cakeshop and went from standing up for same-sex marriage to supporting bigotry. Upon the retirement of the sometimes-tolerant Justice Kennedy, Trump nominated Brett Kavanaugh, a man the hard religious right hails as a “warrior” for religious liberty. He’s opposed the right of an unaccompanied immigrant minor to obtain an abortion even though she was lawfully entitled to do so. He would expand the number of employers that could deny birth control benefits to their workers. He’ll move the Supreme Court even further right and make it fertile ground for more challenges like Phillips’s most recent anti-trans effort.
The lower court judges Trump has appointed are no better. For example, it’s likely we’ll see more and more religious liberty decisions out of the already profoundly conservative Fifth Circuit Court of Appeals. Trump’s recent appointee to that court, James Ho, has already gone out of his way to use judicial opinions to editorialize about the “moral tragedy” of abortion.
At its very core, these demands for religious liberty aren’t about liberty at all. They’re about the right to impose a conservative Christian viewpoint on Americans, even though a decisive majority of Americans don’t agree with those views. They’re about the right to turn the American marketplace into an incoherent patchwork where LGBTQ people will never know if a business will serve them or not. They’re about the right to keep people who need reproductive health care perpetually subjugated by denying them bodily autonomy. In short, religious liberty is about imposing a theocracy, and this administration is going to go out of its way to help them do so.
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