“We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”
Words that are, hopefully, known to anyone educated in the US. The beginning of the second paragraph of the Declaration of Independence. A shorter, simpler document that the Constitution, but a very important one because it spelled out our decision to separate ourselves from England, and become an independent nation. This came about for many reasons, but largely it was because the monarchy that controlled us no longer understood us, and had always considered its colonial outposts only as something to be exploited.
Our popularized founding by the Puritan Pilgrims, escaping religious persecution in the homeland, arriving on Plymouth Rock, and building a new life for themselves (& happily sharing Thanksgiving with the Natives) is only part of the story. The persecution they were fleeing was very real, but it was due in large part to the fact that England, since the time of Henry VIII, had a state religion, and at the time a poor understanding of, or tolerance for other views. Of course, the Pilgrims were, in fact, not very flexible folks, either, and they also proved to be quite intolerant of anything outside of their very narrow world view. Their own rules reigned over much of Massachusetts Colony for many years. By the time that the Declaration of Independence was signed, there was far more to the Colonies that the Puritans of Massachusetts, and even there, the iron grip they’d once held had waned considerably.
Shortly after our Constitution was ratified, and as a condition of ratification by the larger Colonies, the first 10 Amendments to the Constitution were adopted, and are collectively known as the Bill of Rights. The very first of these Amendments states:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of; or abridging the freedom of speech, or of the press; or of the right of the people to peaceably assemble, and to petition the government for a redress of grievances.”
England had a state religion. There was much concern, particularly on the part of Thomas Jefferson and other anti-Federalists, but also among the newly independent citizenry, of the potential for a state religion to be adopted here (whether too strict or not strict enough, the problem was the same). Our Founding Fathers were mainly well-educated products of the Enlightenment. Deists? Yes. Particularly religious? Not in a public sense. Only the most revisionist of reviewers could read the writings of Washington, Jefferson, Franklin, Madison, et all, and conclude otherwise. The use of the word “Creator” in the Declaration of Independence was a conscious one that was intended to be nonspecific.
Over the years, the courts have leaned toward the view that our laws, rules, and regulations not be interpreted to favor any one religion (or none), over any other. But the ‘free exercise’ clause of the First Amendment is somewhat thorny, and has led to mixed messages from the courts, and a wide assortment of legislation was passed by Congress to try to address this. And in support of this, we have sometimes found ourselves with laws that perhaps open the door to more problems that they may be solving.
In 1993, Congress passed the Religious Freedom Restoration Act. It was intended primarily to correct long-standing issues with regard to Native Americans, and the use of banned substances (peyote) in religious ceremonies, and was written to be inclusive of all, but in 1997, the Supreme Court determined that it was not applicable to the States because it exceeded Congressional enforcement capabilities. Within the next several years, 22 states had adopted their own versions of the Act – largely duplicating the language that the original bill had used. The key here, and the part has seems to be getting lost in all of the rhetoric on both sides is that the intent of the law was related to the free exercise clause of the First Amendment – the right of Native Americans use peyote in religious ceremonies, the right of Sikhs to wear keep their hair long and covered by a turban, the right of Muslim women to cover their heads, etc.
But times change, population demographics change, and the Supreme Court starts to treat for-profit corporations as people (non-natural persons, but persons nonetheless), and begins to treat money as speech. In 2014, the Court ruled, in the Burwell v Hobby Lobby decision, that a for-profit corporation has a right to act on religious beliefs. And referenced the RFRA in support of that decision. Which now opened the door for a disturbing range of possibilities for those less inclined to tolerance and charity.
The Court had already effectively gutted the Defense of Marriage act in 2013. In doing so, it cleared the way for state bans on gay marriage to be overturned as unconstitutional. It has sent signals that when it rules on the constitutionality of gay marriage later this term, it will rule in favor. This has, in turn, led additional states to draft their own versions of the RFRA. This new batch of RFRA legislation appears to have only one primary purpose, particularly given the rush to get it passed and signed.
And then we get to Indiana (you knew where this was headed). Indiana took the Federal RFRA as a model, but also specifically allowed for broader application. Then-Governor Jan Brewer of Arizona vetoed a nearly identical law last year because she was clever enough to see the economic consequences. Governor Mike Pence was genuinely surprised by the blowback that he, and the state received, after he signed the legislation into law on March 26. He also proved to be wholly incapable of clarifying why the law was not discriminatory. Which the state GOP realized was a problem, and so the GOP controlled state legislature worked to clean up the language. On April 2, he signed at amendment that expressly prohibits private companies from denying goods or services to any protected classes, and also includes sexual orientation as protected under this law. They did the right thing, but they should have done it when they wrote the law initially instead of hoping no one would notice the language. In the same week, Arkansas rewrote their passed, but unsigned, legislation to mirror the Federal law instead of the one they’d initially passed (which resembled Indiana’s), and Georgia scrapped the one that was in-flight so that they could regroup.
Why does any of this matter? Because in many states, sexual orientation is not included in any of the laws banning discrimination. It is not already a protected class, so laws that do not expressly prevent businesses from discriminating are allowing it by default. In all of the shouting on both sides, the other key piece that is lost is the intent of the Federal RFRA which was for the free exercise clause. These laws, when they include businesses are no longer about ‘free exercise’. They are effectively no different than the ‘No Irish need apply’ employment ads in the 1800’s, the ‘Coloreds may not sit the lunch counter’ signs pre-Civil Rights Act, or much of anything else that allowed discrimination of anyone for pretty much anything. No one is telling these business owners that they cannot attend the church of their choice, eat what their religion dictates, wear what their religion dictates, or believe what their religion dictates. When they are operating a bakery, or a pizzeria, or a florist, or a dress shop in the public arena they are performing a job, providing a service – they are not, by most definitions, exercising their religion.
It also matters because our laws are not based on any one religion’s tenants, and in fact, constitutionally, cannot be. We effectively have a system both of ‘freedom of’ and ‘freedom from’. And this is a good thing. If you want to look at how a fundamentalist religious approach to law-making works you can look in most of the middle east. It’s different because they’re Islamist states, and you are good Christians? No, really it isn’t. Once one religion takes over, people of other faiths, or no faith, have something to fear. A state lawmaker in Arizona seriously raised the idea of making church attendance on Sundays mandatory – at the church of one’s choice, of course (too bad Seventh Day Adventists, Jews, or anyone else that has a Saturday Sabbath). Umm, no.
Oh Arizona, a state strong on state’s rights and short on local government and individual rights, and a seemingly endless source of strange laws, actually did pass a law requiring doctors to tell women undergoing a drug-induced abortion that the process may be reversible if they do not take the second of the two drugs. The logic is that under these circumstances many women would change their minds, but a recent study in Britain showed that only one 1 in 4000 did. Medically, the fact is that ‘reversible’ does not enter into it. Without the 2nd drug, which expels the embryo, it is very possible that the pregnancy would continue. That was the case in previous iterations of the process where multiple does of the 1st drug (a progesterone receptor blocker) were used without the 2nd, and approximately 40% of pregnancies continued. Once again, the folks that are very big on getting government out of medical care would very much like it to be there for pregnant women. These types of laws, which specifically target a legally permitted medical procedure, are a profound violation of the doctor patient relationship. And those idiots that enjoyed the Koch sponsored anti-ACA ads with the woman in stirrups with Uncle Sam doing the peering, really need to take a long, hard look at themselves in the mirror if they think that there’s nothing wrong with these types of laws.
And meanwhile, back at Capitol Hill – no, the JVTA still has not passed the Senate, and there is still not date set for a vote on Loretta Lynch’s confirmation as Attorney General.
“Law is the essential foundation of stability and order both within societies and in international relations.”
— J. William Fulbright
It’s sad, and distressing, that our current lawmakers somehow don’t seem to understand that.