Wednesday, January 13, 2016

The Little Sisters of the Poor, Kim Davis, and the Challenge of Preserving Real Religious Freedom: Frederick Clarkson's Important New Essay "When Exemption Is the Rule"

As Frederick Clarkson points out in a just-published (and exhaustive and richly-resourced) must-read overview of the religious liberty battles facing us in the U.S. today, the "I believe it, so it must be right" "religious freedom" argument that the Little Sisters of the Poor and the U.S. Catholic bishops want to shove in the face of the American public through the sisters' lawsuit against the Obama administration builds on the claim that the Supreme Court allowed to prevail in the Hobby Lobby lawsuit of 2014. As I noted in my previous posting today, the Little Sisters of the Poor object even to signing paperwork exempting them from responsibility for providing contraceptive coverage to their employees, with the claim that they believe that certain contraceptives are abortifacients, no matter what sound scientific evidence says about these contraceptives.

The argument the Little Sisters of the Poor are pressing (with the backing of the Catholic bishops) is that people of faith should be allowed to assert that, simply because they believe, their religious freedom must trump the rights of others — because they say so. Because they believe.

Fred Clarkson's masterful summary of the religious freedom discussion notes the following:

Often overlooked [in discussions of the Hobby Lobby ruling] is that the [U.S. Supreme] Court also allowed the religious views of the owners of these companies to trump medical science in claiming that the four contraceptives at issue – two kinds of birth control pills and two kinds of intrauterine devices – were abortifacients. 

As Fred notes, the Supreme Court chose to validate this because-I-believe-it approach to religious freedom disputes in the Hobby Lobby case despite weighty counsel of medical experts including the American College of Obstetricians and Gynecologists, which was provided to the Supreme Court in an amicus brief in this case. The brief states that "the term 'abortifacient' refers to — and should only be used in connection with — drugs or devices that end a pregnancy, not those that prevent it." Fred's discussion here points to Jen Gunter's essay "The Medical Facts About Birth Control and Hobby Lobby—From an OB/GYN," in the New Republic, which notes that, of the four contraceptives to which the Little Sisters of the Poor object on the ground that they are abortifacients, all credible scientific evidence at our disposal clearly indicates that three certainly do not prevent implantation of the zygote (and they're therefore contraceptives and not abortifacients), while one, the copper IUD, almost certainly does not prevent implantation, but more research is required to establish that certainty.

In consequence, here's where we've ended up following Hobby Lobby:

The Christian Right’s appropriation of religious freedom to justify discrimination is plainly visible in the U.S. Supreme Court’s 2014 Hobby Lobby ruling, which for the first time recognized limited religious rights for closely held, private corporations to deny the Affordable Care Act’s contraceptive mandate. This ruling has transformed not only federal jurisprudence, but the national conversation about the meaning and scope of religious freedom. One result was that the religious beliefs of the owners trumped the consciences and health interests of their employees.

And so how have we arrived at this point in American culture — a point at which people of faith claim that their religious freedom should be allowed to override the rights of others, merely because they assert their belief, even when said belief flies in the face of common sense or scientific evidence? And, above all, when it claims the right — asserting naked belief as its warrant — to trample on the rights of others? And when the Supreme Court itself appears willing to uphold such claims?

Well, a short answer to these questions: please read Fred Clarkson's very important essay in its entirety. Here are some teaser excerpts to encourage you to read:

Over the past decade, the evangelical Protestant Christian Right and American Roman Catholic bishops forged a lasting alliance to carve out vast arenas of American life where religious institutions, individuals, and even businesses would be free to discriminate, evade labor laws, and otherwise evade federal civil rights laws in the name of religious liberty. Together these conservative forces seek to challenge not only a century or more of social advances, but many of the premises of the Enlightenment underlying the very definition of religious liberty in the United States.  
Their goal is to impose a conservative Christian social order inspired by religious law. To achieve this goal, they seek to remove religious freedom as an integral part of religious pluralism and constitutional democracy, and redefine it in Orwellian fashion to justify discrimination by an ever wider array of "religified" institutions and businesses. 
By carving out legal zones of exemption from antidiscrimination laws and regulations, the Christian Right seeks to shrink the public sphere and the arenas within which the government has legitimacy to defend people's rights, including reproductive and LGBTQ rights. In this, it is aligned with the antigovernment strategy of free market libertarians and some powerful business interests, who also seek to restrict arenas where government can legally act.

As the preceding paragraphs note, a key strategy of the religious and political right today as it seeks its Orwellian redefinition of religious freedom as my right to deny you freedoms because I believe is the "religification" of more and more American institutions. Fred writes,

The Christian Right is seeking to undermine and evade civil rights law beyond the courts by "religifying" organizations. This means rewriting mission statements, contracts, and job descriptions to claim that the entire organization or jobs within it are essentially religious in nature and subject to the longstanding exemption of clergy from the Civil Rights Act. Under this logic, a religified business or nonprofit would have the right to discriminate against an LGBTQ client, or others with whom they may religiously disagree, by excluding people who do not conform to their doctrines. The groups promoting this tactic, such as Alliance Defending Freedom and Liberty Institute, have issued handbooks to help organizations protect against "dangerous antireligious attacks."

This strategy of religification, in which more and more workplaces and institutions seek to claim religious exemptions from laws that apply to everyone else, on the ground that these workplaces and institutions are faith-based organizations and their employees are ministers, aims at the following:

In the ever-shifting terrain of the so-called culture wars, the Christian Right is seeking to minimize its losses and consolidate its reserve strengths by seeking individual, institutional, and territorial exemptions from laws and regulations on religious grounds so they do not have to follow the same rules as the rest of society. These overlapping exemptions threaten to give rise to theocratic zones of control violating the religious liberty of those who find themselves under their sway. By opposing government sovereignty, the zones also would feed into the antigovernment efforts of free marketeers who oppose government regulation. 

As Fred points out, the Supreme Court's Hosanna-Tabor decision, which found that a Lutheran school had the right to ignore non-discrimination laws in the case of one of its teachers because she was effectively a minister in that she worked in a faith-based school, has helped significantly to lay the groundwork for this religification strategy. He notes (citing Julia Carrie Wong) that the strategy, with its echoes of Hosanna-Tabor, has been "on vivid display" in the attempts of San Francisco archbishop Salvatore Cordileone to force all employees of Catholic schools in his archdiocese — even those who are not Catholic — to conform to Catholic magisterial teachings about homosexuality, same-sex marriage, abortion, contraception, and artificial insemination as a precondition for employment and for keeping their jobs (citing Victoria Colliver).

This "religious freedom" project is being actively promoted today by a growing number of legal institutions and right-wing think tanks: "The network of Christian Right legal institutions advancing the redefinition of religious freedom is growing in its capacity to affect legal, political and cultural change." For example:

In 2015, the Alliance Defending Freedom (ADF), joined forces with the Ethics & Religious Liberty Commission (ERLC) of the Southern Baptist Convention to issue another such handbook, urging religification by revising documents – from employee job descriptions to facility rental agreements – for churches and related institutions. Workers and volunteers should be reclassified under a broad redefinition of "ministry," and institutional functions should be cast in terms of religious doctrine.  The goal is to qualify for broad "ministerial exemptions" from the law (citing Liberty Institute's "Guidelines: Drafting Church Employment and Administrative Policies" [Plano, TX: Liberty Institute, 2015]).

As Fred notes,

This religification project has immediate implications on matters of sexual identity. The Liberty Institute's template titled "Statement of Faith:  Marriage and Human Sexuality" advances a strident, exclusivist, and detailed doctrine [to be imposed on all employers that "religify" employees according to this template] identifying permanent, heterosexual marriage or celibacy as the only acceptable parameters of human sexuality, stating, 
"All of our members, employees, and volunteers must affirm and adhere to this Doctrinal and Religious Absolute statement on marriage and human sexuality to qualify for involvement with the ministry. This is necessary to accomplish our religious mission, goals and purpose" (citing "Statement of Faith: Marriage and Human Sexuality," Liberty Institute, 2015).

So — once again — exactly how have we gotten to this point, to a point for which the Supreme Court itself has paved the way with Hosanna-Tabor followed by Hobby Lobby? Fred's answer: the religious and political right have been playing a long game for some time now, a game that had a somewhat different complexion in the post-Civil Rights period of the 1960s, as these groups began to press the very same religious freedom argument they're now pressing to defend Christian academies discriminating on the basis of race: Fred writes, 

As [Randall] Balmer and others have shown, even before the issues of abortion and homosexuality became the policy priorities of a newly politicized Christian Right, its leaders fought the perceived threat of racial equality at conservative Christian academies by claiming their religious freedom to discriminate. This legacy should remind us that the Right's religious liberty campaigns mobilize old arguments around new targets, and that their agenda extends beyond questions of contraception coverage, or marriage and nondiscrimination in the LGBTQ context. 


Today's arguments echo those made by opponents of civil rights advances for African Americans in the 20th century – notably the fundamentalist Bob Jones University when it defended its policy against interracial dating because of its religious beliefs. In a major defeat for the nascent Christian Right, the U.S. Supreme Court ruled in 1983 that the Greenville, SC, college was not entitled to a federal tax exemption if it maintained this racist policy because the government's interest in eradicating racial discrimination in education trumped the school's claim to the First Amendment right to religious freedom.

Then down the road from that failed attempt to redefine religious liberty as the right to discriminate, there was the Manhattan Declaration, about which Fred writes,

A transformational moment in the contemporary Christian Right’s approach to religious freedom was the November 2009 publication of the Manhattan Declaration: A Call to Christian Conscience – a manifesto linking three interrelated themes of “freedom of religion,” “sanctity of life,” and “dignity of marriage.” The culmination of decades of theological and political development, conservative Roman Catholic and evangelical strategists (joined by junior partners in the Mormon Church and Orthodox Christianity) found sufficient common theological and political ground to wage not only the short term battles of the culture wars, but to envision a 21st century notion of Christian cultural conservatism – and a way to get there (citing also Frederick Clarkson, "Christian Right Seeks Renewal in Deepening Catholic-Protestant Alliance," The Public Eye, Summer 2013.  . . . 
The document essentially defines religious freedom as being only for people who believe as they do, and as under attack by those who believe differently.  

Finally, Fred Clarkson wants this report on how we've gotten where we are with the bogus religious freedom arguments of the religious right, with its attempt to stand authentic religious freedom on its head, to be a wake-up call to us: "It is a trend that appears likely to increase." As he notes, 

Journalist Matthew Yglesias published an influential article in 2015 that paints a stark picture of how growing Republican control is creating opportunities for its Christian Right base. He observes that "70 percent of state legislatures, more than 60 percent of governors, 55 percent of attorneys general and secretaries of state…are in Republican hands. And, of course, Republicans control both chambers of Congress." 

As a result,

As we will see, their political and legal contingency plans [responding to Obergefell] are now appearing all over the country, as activists invoke new forms of conscientious objection, and private spaces and places are being turned into legal bastions against the wider culture in which abortion and contraception are legal, and LGBTQ equality is mainstreamed. The Christian Right is now busy seeking to limit the implementation of the decision and to make it as unworkable as possible, in part by attempting to subject it to a death of a thousand exemptions. 

This leaves those of us who care about such matters as democracy, human rights, the well-being of fellow human beings on the margins of society, or real religious freedom with the following challenge:

The Christian Right aims to profoundly reorganize our relationship to law, religion, government, and to each other. The rights of women, workers, and racial, religious, and sexual minorities, are all deeply threatened. More broadly, the ability of government to ensure equal protection under the law is under assault. To meet this threat will require more than a broadening of tactical coordination among racial equality, feminist, LGBTQ, labor, civil libertarian, progressive religious, and other constituencies. We face a decades-long struggle that will require our own long game, comprising durable strategies, alliances, and campaigns that include and transcend any specific legal, legislative, communications, or culture change approach.

I highly all of you encourage you to read Fred Clarkson's "When Exemption is the Rule: The Religious Freedom Strategy of the Christian Right" in its entirety, and to share this outstanding resource with anyone you may know who's interested in thinking through the very serious challenge now facing all of us in the United States who want to preserve our democratic system of governance with its notion of religious freedom serving pluralistic values. As Fred powerfully demonstrates, a concerted assault on that system and those values is well underway, and it has the potential to dismantle an experiment in participatory democracy that many Americans have worked hard to build over several centuries, at great cost to themselves. 

The photo of Fred Clarkson is from his Twitter page.

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