How Democrats Screwed Up "Religious Freedom"
Themes of this article:
Bad guys aren’t the real threat; lack of vigilance is
Semantic shift can happen right under our noses
Sometimes the good guys need a wakeup call
Hemant Mehta’s indispensable Friendly Atheist flagged an important story that I missed (it happens!)
The Biden administration just rolled back Trump-era rules governing religious organizations that get federal money, ostensibly to help people. Health and Human Services Secretary Xavier Becerra announced the new rules on March 1.
The upshot: Now, every federally funded organization — even organizations of people who believe in a god who couldn’t save us without torturing his son — if it provides aid or services to people, has to:
Tell recipients of their aid/services that they have the right to freedom from religion, and
Not discriminate against recipients based on their religious beliefs or lack of same.
And government agencies will now work to provide recipients with alternative organizations to help them out.
This is a partial restoration of freedoms that then-Pres. Donald Trump undid, giving religious organizations wide latitude to use tax dollars to proselytize and discriminate on religious grounds. Which Trump did after pre-then-Pres. Barack Obama established rules to prevent that. Which Obama did after way-back-then-Pres. George W. Bush first created the Office of Faith-Based Initiatives.
What we’ve got here is a yo-yo, bouncing around based on oscillating definitions of religious freedom. It’s good to see now-Pres. Joe Biden even slightly on the right side of this battle, albeit somewhat more narrowly.
But the bigger picture I want to focus on is the ongoing battle over the meaning of religious freedom. Its meaning used to be clear, both historically and brain-havingly. It used to mean that the law couldn’t punish people for their religious beliefs. Full stop. You couldn’t be deprived of rights that you would otherwise have if you held a different set of religious beliefs.
Religious freedom meant the law applied equally to everyone, regardless of what kind of magic you think is real.
And then, spoiler alert, Democrats screwed up.
The 1993 Religious Freedom Restoration Act (RFRA) was sponsored by then-Rep. Chuck Schumer (D-NY). He had the best intentions, which are what pave the way to HELL.
The law was a response to two Native Americans getting fired for ritual peyote use, part of their religion.
Since then, RFRA has been used successfully to justify religious-based discrimination against people who break the magic rules of the invisible head magician.
One company argued, for instance, that its health plan shouldn’t have to cover HIV-prevention drugs because it would be discrimination to make religious employees do work that would anger their chief executive magician by facilitating “homosexual behavior.” Like butt sex.
That ruling also affected other people because you can contract HIV without doing butt sex. (Discrimination is insatiable, even when appeased, because its perpetrators are and seek to be victims.)
And Christian companies have also used this reasoning to argue that their health plans shouldn’t have to cover birth control, which would facilitate sex behavior. Like vagina sex.
We then saw RFRA’s logical progeny appear in the 2022 Respect for Marriage Act (RMA), which — to get some Republican votes — strengthened RFRA’s protections for magic-based discrimination (as I wrote about at the time).
Most senators likely didn’t even know that RFRA was being used to bolster religious-based discrimination when they voted for the RMA. When I was at TYT we asked Sen. Bernie Sanders (I-VT) whether he knew about the ruling on HIV-drugs. To his credit, Sanders ‘fessed up: “I did not, honestly, I did not see that. Let me find out more about it. You’re telling me something new.”
Trump also could — and did — argue that RFRA justified letting a federally funded Christian adoption agency refuse to place kids with non-Christian parents, thereby saving the kids from eternal damnation.
RMA’s gift to RFRA was so concerning that Jim Obergefell, aka that Obergefell, told me even he had concerns about the tradeoff.
The Human Rights Campaign is also aware of the problem. They’ve said that RFRA has been “distort[ed]... into a blank check to discriminate.” But has it?
The original reason for RFRA, after all, wasn’t to protect people from unequal laws, it was to let people break the law because their head magician said it was okay. Today’s Christian right isn’t distorting Schumer’s reasoning, they’re just extending it beyond Native American peyote use and applying it to different magicians and people.
(Besides, should hallucinogens really be okay for only those people who already worship magic beings?)
Democrats were trying to be the good guys protecting those peyote users. But the way to do that is to legalize peyote, not to make a carveout for people who have magic reasons for wanting to use it and thereby discriminating against people who have rational reasons for wanting to use it.
It’s easy for the Christian right to weaponize religious-based legislation precisely because such laws inevitably take us into unscrutinizable territory of beliefs and motives and other inner states.
And where does it end? The right-wing, partially theocratic Supreme Court ruled last year that the Postal Service couldn’t fire a guy for refusing to work on Sundays, because that’s the day his god reserved for football rest. It was a unanimous decision because the 1964 Civil Rights Act calls for companies to carve out magic-based exemptions for workers if doing so doesn’t create an “undue hardship.”
(In a related story, today I’m proud to launch my own new religion, and introduce you to my new god, who is reserving Monday through Sunday as days of rest. Amen.)
Even the fact that we’re talking about federally funded religious organizations reflects the inherent problem. Why are we funding religious organizations to do anything? Isn’t that what we made a government for?
And I’m almost uniquely positioned to know that this kind of funding not only can be politicized, it was born politicized … fruit of the poison tree, you might say. How do I know this?
Because I broke the story of a Bush administration whistleblower revealing that the Office of Faith-Based Initiatives was an inherently corrupt, dishonest endeavor.
Basically, the Bush administration lied and claimed that the government was discriminating against religious organizations when doling out funding to relief organizations. It was a lie, pushed to justify creating the Office of Faith-Based Initiatives — so the office could use religious political networks to reach new voters. Instead of eliminating this intrinsically corrupt and dishonest office, both Presidents Obama and Biden have kept it.
This is the one-way ratchet of government religiosity. Republicans jack it up, and Democrats moderate it…but only moderate it. Which, over multiple presidents, leads to a net jacking.
The reason I’m yammering about all of this is that RFRA is just one part of an overall effort — which Democrats are abetting — to redefine religious freedom as the right to exemptions from the law on religious grounds. Religious freedom originally and logically and rationally means equal protection under the law. And equal adherence to the law.
It wasn’t long ago that Republicans made a conscious effort to rewire our brains about the Second Amendment. And it worked — most people now think it says everyone can own a gun, full stop.
The same thing is now happening with “religious freedom.” As Obergefell told me, “Until we come together as a nation to say, ‘This is what religious freedom means,’ this is going to continue.”
So it’s good that the Biden administration pushed back, however belatedly and incompletely, on these Trump rules.
And it’s great that the Congressional Freethought Caucus is demonstrating not only increased awareness of this issue but mounting resolve and willingness to do something about it.
But a lot more Democrats need to wake up to the implications of this semantic shift and mount a conscious strategic effort to reclaim the phrase and fully reverse its abuses. Yes, that’s possible. And, no, I’m not hallucinating.
PS: I wrote this on March 7 so I could schedule it to go out while I take a break, so if Democrats saw the light in the meantime, I’d like to get retroactive credit, please. Thanks and I’ll be back on March 22!
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Simply put, Jonathan's work is indispensable; excellent analysis and compelling writing, always.
You get extra credit - the Democrats have done nothing, as usual.