Category Archives: Gay Rights

RFRA, Pence and Holcomb

What has been interesting about having Indiana’s Governor Mike Pence on the national ticket  has been the research on Indiana’s Governor being done by national media outlets.

Here in Hoosierland, we know Pence as an avid culture warrior uninterested in the day-to-day administration of state agencies. We know him as an opponent of Planned Parenthood whose disinclination to authorize needle exchanges led to an HIV crisis in southern Indiana, as an adversary of public education responsible for diverting millions of dollars from the state’s public schools in order to provide vouchers for religious schools, and of course as the anti-gay warrior who cost the state economy millions of dollars by championing and signing RFRA.

The national press has investigated Pence’s previous activities, both in Congress and as editor of the Indiana Policy Review, a (very) conservative publication. What they’ve found won’t surprise anyone who has followed Pence, but the research has confirmed that the Governor has certainly been consistent….

For example–and despite his disclaimers of discrimination to George Stephanopolous and others–Out Magazine unearthed an earlier article advising employers not to hire LGBTQ folks, and describing homosexuality as a “pathological” condition:

“Homosexuals are not as a group able-bodied. They are known to carry extremely high rates of disease brought on because of the nature of their sexual practices and the promiscuity which is a hallmark of their lifestyle.”

Another article, from December of 1993, was entitled “The Pink Newsroom” and argued that LGBTQ folks shouldn’t be allowed to work as journalists without being forced to identify themselves as gay publicly, since their LGBTQ status would surely create a conflict of interest when writing about politics.

Other outlets have reported his efforts while in Congress to defund Planned Parenthood, his speeches warning against the use of condoms, his insistence that climate change is a “hoax,” and his longstanding support of creationism and denial of evolution.

It’s highly likely that the Trump-Pence ticket will lose nationally in November, relieving Indiana voters of the task of defeating Pence at the polls. In his place, the GOP is running Eric Holcomb for Governor. Holcomb, it turns out, is pretty much a Pence clone. (The link has video from his meeting with the editorial board of the Indianapolis Star.)

Eric Holcomb had his chance to distance himself from the economic disaster of Mike Pence’s RFRA legacy in Indiana.

Instead, in a painful 4 minute answer to the Indianapolis Star editorial board, Holcomb doubled down on the same discrimination law that risked $250 million for state’s economy, and threw his weight behind Pence’s failed agenda.

Holcomb has previously embraced all of Pence’s agenda.

In November, we’ll see whether Hoosier voters have had enough of incompetence and theocracy, or whether we will vote to endure more of the same.

This is a very strange political year.

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Hobby Lobby Redux

Continuing our discussion of RFRA and the expansion of (some people’s) “religious liberty”…

File the first paragraph of this article under “The Notorious RBG told you so.”

When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobby that the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.

The facts are evidently not at issue. Two weeks after the employee notified the employer that she would be beginning to transition, the employer–who owned the funeral home–fired her for “engaging in behavior offensive to his religious beliefs.”

In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Lawyers representing the employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability, and a federal court agreed, holding that paying damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs. 

Well, yes. That’s the purpose of damages. If I fire an African-American employee simply because he is African-American and my religion teaches that African-Americans are inferior (an argument made by many Southern shopkeepers in the wake of the 1964 Civil Rights Act), I have violated his civil rights and I will owe damages that will “burden” that belief.

If I refuse to promote a woman to an executive position for which she is qualified because my religion teaches that women should be submissive, I can be sued for damages that would “burden” my religious beliefs.

Damages are awarded to compensate people who suffer losses when their rights are violated. They are intended to “burden” discriminatory behavior–whatever the motivation.

It’s one thing to exempt churches and religious organizations from laws of general application that are inconsistent with their theologies. It is quite another to say that owners of secular businesses can hire and fire employees or refuse to accommodate customers based upon the religious preferences of the owner.

I find it hard to believe that this court would have reached the same conclusion had the person fired been Jewish or African-American, whatever the employer’s church preached. Although attitudes about LGBTQ Americans have changed dramatically, there is still substantial prejudice against the gay community, and claims of “religious liberty” that would be given short shrift if used to justify discrimination against blacks or women or Jews are somehow seen as more meritorious or “sincere.”

They aren’t. And the likely consequences of this ruling, if it is not overturned, are stunning:

Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.

In her Hobby Lobby dissent, Ruth Bader Ginsberg warned that the Court had ventured into a minefield.

Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

She was prescient.

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Christian Karma

Yesterday’s post referencing religious exemptions from child neglect and abuse laws joined a number of prior posts considering the intersection of religion–usually, but not always, conservative Christianity–with legal and constitutional requirements of civic equality and public safety.

Given that ongoing focus, you can understand why a recent headline in the Washington Post caught my eye. It read “White Christian America is Dying,” which turned out to be an interview with the author of a just-issued book titled “The End of White Christian America.”

The book (eulogy??) was written by Robert P. Jones, founding CEO of the Public Religion Research Institute (PRRI). Jones’ analysis is particularly timely because–despite having been written before Trump entered the Presidential race– it offers an explanation of The Donald’s support among white Evangelicals.

As Jones noted in the course of the interview,

Trump’s appeal to evangelicals was not that he was one of them but that he would “restore power to the Christian churches” if he were elected president. This explicit promise, along with his anti-immigrant and anti-Muslim rhetoric, signaled to white evangelical voters that when he crowed about “Making America Great Again,” he meant turning back the clock to a time when conservative white Christians held more influence in the culture. Trump has essentially converted these self-described “values voters” into “nostalgia voters.”

If PRRI’s research is accurate, there are not nearly enough of these “nostalgia voters” to elect Trump or anyone else; furthermore, their ranks are steadily–and rapidly– diminishing.

According to PRRI research, young adults between the ages of 18 to 29 are less than half as likely to be white Christians as seniors age 65 and older. Nearly 7 in 10 American seniors are white Christians; fewer than 3 in 10 young adults are in that category.

Some of this, obviously, is due to large-scale demographic shifts — including immigration patterns and differential birth rates.  But Jones notes that the other major cause is young adults’ rejection of organized religion–they are three times as likely as seniors to claim no religious affiliation.

It is notable that the decline measured by PRRI is not limited to mainline Protestant churches, which was the narrative a few years ago. Membership in Evangelical congregations and suburban “mega” churches has dropped substantially as well. As a result, the white evangelical Protestants who made up 22 percent of the population in 1988 were down to 17 percent in 2015.

Looking ahead, there’s no sign that this pattern will fade anytime soon. By 2051, if current trends continue, religiously unaffiliated Americans could comprise as large a percentage of the population as all Protestants combined — a thought that would have been unimaginable just a few decades ago.

The obvious question is, what has caused this precipitous decline?  PRRI’s answer to that question prompted the reference to karma in the title of this post.

When PRRI surveys have asked religiously unaffiliated Americans who were raised religious why they left their childhood religion, respondents have given a variety of reasons — stopped believing in teachings, conflicts with science, lack of time, etc. — but one issue stands out, particularly for younger Americans. About 70 percent of millennials (ages 18-33) believe that religious groups are alienating young adults by being too judgmental about gay and lesbian issues. And 31 percent of millennials who were raised religious but now claim no religious affiliation report that negative teaching about or treatment of gay and lesbian people by religious organizations was a somewhat or very important factor in their leaving.

In other words, every time self-identified “Christians” use religion as an excuse to marginalize gays and discriminate against LGBTQ citizens, they increase the rate at which their churches decline. (Karma really is a delightful bitch…)

Someone should tell Mike Pence, Curt Smith and Micah Clark….

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Religious Liberty and Civil Rights

Indiana citizens continue to engage in arguments over RFRA, and I was recently asked to address our local Pride organization on the presumed conflict between religious liberty and civil rights.  Below is an abbreviated version (still long–sorry) of my remarks.

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A lot of anti-LGBT bigotry is justified as “religious liberty.” There was RFRA, of course, not just in Indiana but in several other states, and most recently, the Republican Platform endorsed both a national version of RFRA and passage of a so-called “First Amendment Defense Act,” which would allow any entity that receives public funding to discriminate against LGBTQ Americans on the basis of religion.

So this might be a good time to review the history and purpose of the religion clauses of the First Amendment– the Establishment Clause and the Free Exercise Clause—that together define this country’s approach to the subject of religious liberty.

What the phrase “Religious liberty” meant to the Pilgrims who landed at Plymouth Rock  was the “liberty” to impose the correct religion on their neighbors. The idea that Church and State could even be separated would have been incomprehensible to the Puritans; the liberty they wanted was freedom to “establish” the True Religion, and to live under a government that would impose that religion on their neighbors.

The Puritans defined liberty as freedom to do the right thing, to impose the correct religion. The religious wars in Europe were all about which religion government should impose.

A hundred and fifty years later, however, the men who crafted a Constitution for a new nation were products of an intellectual paradigm shift that had produced a very different understanding of the nature of liberty. Between the time the Pilgrims landed and the time that George Washington took the oath of office, the philosophical movement we call the Enlightenment had given birth to science and empiricism, privileged reason over superstition, and caused philosophers like John Locke and others to reconsider the purpose and proper role of government.

After the Enlightenment, liberty—religious or otherwise—had come to mean a right to self-government, the right to decide for oneself what beliefs to embrace. Liberty now meant personal autonomy, and the right of individuals to live their lives in accordance with their own consciences, free of both state coercion and what the founders called “the passions of the majority.”

Although the new government got its legitimacy from majority rule, from the “consent of the governed,” the Bill of Rights limited what government could do even when a majority of citizens approved.

The problem we have in today’s America is that, although our Constitution and legal framework were products of the Enlightenment, the country is still home to a whole lot of Puritans. What we sometimes call the “culture wars” are part of an ongoing conflict between people holding very different visions of liberty.

The Mike Pence’s of the world aren’t just against equal rights for gays and lesbians, they aren’t just anti-abortion and anti-birth control. They are deeply Puritan: anti-science, anti-reason, anti-diversity. They are absolutely convinced of their own possession of the Truth, and like the original Puritans, absolutely convinced that a proper understanding of “religious liberty” should give them the right to make everyone else live by their particular Truth.

The fact that these irony-challenged theocrats are the same ones running around proposing legislation to prevent imposition of “Sharia law” would be funny if it weren’t so dangerous.

Under the Constitution as it actually exists, Americans have an absolute right to believe anything we want, but we don’t have an absolute right to act on those beliefs. (You can believe God wants you to sacrifice your first-born, but we don’t let you do that.) You only have to listen to some of the public debates about civil rights to understand that people have a lot of trouble understanding that distinction.

Let me give you an example.

When South Bend was considering adding sexual orientation to the City’s Human Rights ordinance, opponents objected that the religious exemption that had been included was inadequate because it only covered religious organizations and didn’t protect “religiously motivated” hiring and firing decisions.

The exemption for religious organizations is constitutionally required–if your religion disapproves of gay people, or unwed mothers, or atheists, the Free Exercise Clause of the First Amendment forbids government from forcing your church to employ such people for jobs having theological dimensions.

For our friendly culture warriors, however, protecting the right of churches and religious organizations to follow the dictates of their faith–even when those dictates are inconsistent with civil rights laws–isn’t sufficient. According to their argument, if I can’t fire employees I discover are gay, if I can’t refuse to rent my apartment to LGBT folks, then the government is denying me religious liberty. (This is a variant of the argument that anti-bullying legislation infringes the “free speech rights” of the bullies.) The argument is apparently that I should be able to pick on gay people—or black people, or women, or Muslims–if I claim that my motivation is religious.

Obviously, an exemption for “religious motivation” would eviscerate civil rights laws.

The religion clauses of the First Amendment require that government be neutral between religions, and between religion and non-religion. To use a sports analogy, government is supposed to be an umpire, not a player. But there are people who simply cannot abide the notion of a neutral government, people who experience “live and let live” and civic equality as affronts to the primacy to which they feel entitled. In that peculiar worldview, a government that insists on fair play for gay people in the public sphere is a government that’s denying them religious liberty.

This is the same argument that erupted when Congress enacted the 1964 Civil Rights Act. Opponents argued that being forced to hire or do business with women or people of color violated their liberty to choose their associates. And they were correct; it did limit their liberty. In a civilized society, our right to do whatever we want is constrained in all sorts of ways; I don’t have the liberty to take your property, or play loud music next to your house at 2:00 a.m., or drive my car 100 miles per hour down a city street. And so on.

Here’s the deal: The guy who opens a bakery– or a shoe store or a bank or any other business– relies on an implied social contract. He expects the local police and fire departments to protect his store, he expects local government to maintain the streets and sidewalks that enable people to get there. He expects state and federal agencies to protect the country, to issue and back the currency used to pay for his product, to make sure that other businesses and institutions are playing by the rules and not engaging in predatory behaviors that would put him out of business. We the People of all races, religions, genders and sexualities pay the taxes that support those services, and in return, We the People expect retailers and others who are “open for business” to provide cakes or shoes or other goods to any member of the public willing to pay for them.

Opening for business implies a “come one, come all” invitation to the general public.

If you don’t approve of gay people, or African-Americans, or Muslims, or whoever—the Constitution says you don’t have to invite them over for dinner. You have the right to exclude “sinners” from your church, your private club and your living room.

Your hardware store, not so much.

We live in a society with a lot of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way such a society can work–the only “social contract” that allows diverse Americans to coexist in reasonable harmony–is within a legal system and culture that respects those differences to the greatest extent possible. That means laws that require treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.

When the government refuses to make everyone live by a particular interpretation of a particular holy book, that’s not an attack. It’s not a War on Christianity. It’s recognition that we live in a diverse society where other people have as extensive a right to respect and moral autonomy as the right we claim for ourselves.

Ironically, a legal system that refuses to take sides in America’s ongoing religious wars is the only system that can really safeguard anyone’s religious liberty. Genuine civic equality is only possible in a “live and let live” system—in an open and tolerant society.

If everyone doesn’t have rights, they aren’t rights—they’re privileges that government can bestow or withdraw. In such a society, no one’s rights are safe.

Here’s the “take away.” A better world is a world where different people with different beliefs, living different kinds of lives, can co-exist without privileging some at the expense of others, which is what the faux religious liberty bills do. That world won’t appear by accident. America has actually made a lot of progress; but right now, we are living through a very scary political moment, a moment that could easily reverse all the progress that’s been made.

We still have lots of work to do.

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The Right to be Wrong

[This post should really be about Dallas and the two horrific incidents preceding and triggering what happened there. It isn’t, because I am still processing it all. I find myself unable to put my reactions into words right now. Those words will come, but not yet.]

The Des Moines Register recently reported on lawsuits brought against the state and city by churches challenging recent interpretations of Iowa civil rights laws to prohibit church members from making “any public comments — including from the pulpit — that could be viewed as unwelcome to people who do not identify with their biological sex.”

They [the churches] said they are asking the commission to declare that Iowans have a right to speak from church pulpits about biblical teachings on sexuality. The Sioux City church also wants a declaration that Iowa churches are free to follow their religious doctrines in how they accommodate people in restrooms, locker rooms and living facilities.

Unless there is something I’m missing, the actions of the Iowa Civil Rights Commission violate the First Amendment’s Free Exercise Clause. (According to the article, the Commission is evidently denying that the churches are “bona fide” religious organizations–a fairly bizarre position.)

We live in a time of social change. Greater acceptance of LGBT citizens, especially, has led to all sorts of debates about “religious liberty.” (We’ve seen this movie before; in the past, merchants and landlords have claimed “religious liberty” entitled them to refuse service to African-Americans, Catholics and Jews.)

As I have written before, government has the right–indeed, the obligation–to prohibit discrimination in housing, education, employment and public accommodations.

That said, churches and other genuinely religious institutions are not public accommodations, and their right to preach as they see fit, to take positions on public issues informed by their doctrine, is protected by the First Amendment. I might believe–as I wholeheartedly do–that these church folks are wrong about homosexuality (and actually, about a lot of other things) but they have an absolute Constitutional right to their beliefs. They have a right to preach about those beliefs, and to conduct their congregational affairs in a manner that is consistent with their religious doctrines.

It’s particularly unfortunate that the Iowa Civil Rights Commission has taken the position that it can suppress the churches’ religious message, because that position feeds into entirely bogus assertions made by proponents of so-called “Religious Liberty” laws. The Eric Millers and Micah Clarks of this world insist that “secular activists” will force pastors to conduct same-sex weddings, or will outlaw preaching against homosexuality. Constitutional lawyers respond–properly–that churches and pastors are protected against such efforts by the First Amendment.

Overreaching in Iowa just supplies ammunition to those who want laws giving them a wide-ranging right to discriminate. The churches that brought these lawsuits should win–demonstrating that RFRAs and similar measures are unnecessary because the Constitution already protects religious expression.

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