Remember that bill in Arizona, what was it called, SB 1062? Remember how it would have legalized discrimination based on religious grounds? Remember how it would have defined corporations as people? Remember how it would have created a religious exemption to state laws? Remember how it was vetoed after everyone realized how horrible it is?
Remember that?
Well, it could be coming back. In the next couple of days, the Supreme Court will decide Sebelius v. Hobby Lobby Stores, a case involving religious owners of secular, for-profit businesses who want an exemption from the contraception provision of the Affordable Care Act because they object to it on religious grounds.
The idea that secular, for-profit corporations can be exempt from the law because their owners are religious should be frightening. But not everyone can see this. Christianity9to5.org's Michael Zigarelli is one of those people. Fox News has published his defense of Hobby Lobby's position: "State vs. faith: What’s at stake in the Hobby Lobby case".
Monday the U.S. Supreme Court will decide Sebelius v. Hobby Lobby Stores, a case that will clarify whether business owners can express their religious beliefs through their business policies.
Here’s the issue. Hobby Lobby, a nationwide chain of arts-and-crafts stores, objects to providing the so-called “morning-after pill” to its employees as mandated by the Affordable Care Act (the “ObamaCare” law).
This is a
common misconception about the contraception provision in the Affordable Care Act that needs to be addressed. The Affordable Care Act does not require employers to cover contraception. What it provides is tax breaks for employers that choose to cover employee health insurance that meets a minimum standard. Hobby Lobby is not required to provide contraception.
It also should be pointed out that the contraception is not paid for by Hobby Lobby. They are not the ones supplying it. The contraception is provided by the insurance companies. What Hobby Lobby is essentially asking for is the right to stop insurance companies from providing contraception to their employees.
The company already provides generous health care benefits to its 13,000 full-time employees and will more than comply with the required minimums in the new law, but its owner, David Green, a devout Christian, will not pay for the pills that prevent implantation of a fertilized egg in the uterus. If life begins at conception, Green reasons, then the pill causes an abortion.
It is so frustrating to see religious beliefs still competing with, and given the same weight as, science. Green may sincerely believe this, but he's wrong. Medically, scientifically, factually, wrong. Contraception is not abortion-inducing. It blocks fertilization of eggs. It doesn't kill an already formed zygote or embryo.
A trial court ruled against Hobby Lobby, fining Green $1.3 million per day for non-compliance, beginning January 1, 2013. The Tenth Circuit reversed its decision and now the case is in the hands of the nine Justices.
The number may very well be excessive. I'm not privy to the process and logic by which the figure was reached. But I'm not so concerned about what the number is as much as I am about whether or not there is a number at all. Supporters of Hobby Lobby may argue that they are being forced to pay this fine. But did it ever occur to them that Hobby Lobby could maybe just... follow the law? Paying the fine is not the only option that they have. If they want to eliminate one of their options in this decision, the option of following the law, then I think they have to wear the consequences of doing so. In fact, I'm beginning to sound like a conservative, arguing for Hobby Lobby's "personal responsibility".
It’s the highest profile of many recent state-versus-faith cases, several of which involve Christian entrepreneurs who decline to participate in same-sex weddings—florists, photographers, deejays and bakers.
And this is one of the biggest fears liberals have about this case. What will it open the door to? Is religion now a license to do whatever you want? Can you be exempt from any law just by claiming religious motivation? Is everything that the country achieved during the civil rights movement, namely ending racist discrimination by businesses, about to be undone? Only this time, the target is LGBT people? I must say, I think it's pretty telling that he brings this up. This is what Zigarelli's really hoping for: legalized anti-LGBT discrimination across the country.
It’s nothing less than a secular Inquisition.
One of the questions I've pondered regarding inflammatory rhetoric is why only Nazi comparisons are off limits. Had Zigarelli referred to a "secular Holocaust", he would have been slammed from every corner. But it's still acceptable to analogize to any other horrible historical event other than the Holocaust. It shouldn't be. That's not the only horrific event of persecution that's occurred in human history. I don't view his Inquisition comparison much differently. I don't have the time, or the energy, or the thin skin to get outraged, but I still view it as inappropriate.
In response, legislators in nearby Arizona passed a bill to protect the religious liberty of business owners, permitting them to refuse transactions that contravene their faith. Missouri, Georgia and Kansas have similar bills in the pipeline.
Predictably, many in the media were apoplectic, single-mindedly framing the Arizona bill as “anti-gay,” “bigoted” and a return to the days of “no blacks allowed.” And through this narrative, more opinion-shaping than reporting, they browbeat Governor Jan Brewer into vetoing the bill.
Keith Olbermann once
said that the reporting on the Iraq War was negligent "because when truth was needed, all we got were facts." The media's response to AZ SB 1062 learned this lesson. It was described as anti-gay and as a license to discriminate. (The bill's supporters even
admitted that the purpose was to legalize anti-gay discrimination.) And this is correct because this was the legislative intent. It was crafted in response to the infamous Elane Photography case in New Mexico, where the New Mexico Supreme Court ruled that Elaine Huguenin had violated the state's anti-discrimination law. This is strongly evidenced by the fact that it explicitly stated that the law could be invoked in a religious liberty claim regardless of if the government was a party to the proceedings. The New Mexico Supreme Court had ruled to the contrary.
The Arizona legislature intended to legalize discrimination against LGBT people. The media said so. The people spoke: a pizzeria put forward its famous "we reserve the right to refuse service to Arizona legislators" response, rallies were held calling for the bill's veto, and a poll about the bill returned 66% opposition to it and just 22% support for it, a 3-1 ratio. In my mind, that's one of the best successes of the role of media in a democracy.
However, the situation is so different in degree from Jim Crow that it’s different in kind. These Christian business owners don’t want to turn away gay customers; that money is as green as any other.
I would dispute the idea that a sufficiently quantitative difference is a qualitative difference. I do agree that the cases of discrimination against gay people have not been of the same scope as the universal, institutionalized Jim Crow segregation (except in Colorado, which legalized anti-LGB discrimination in its constitution from 1992 to 1996 but never did the same against a race). But I do think that refusing to serve a gay couple, even if just for their ceremony together (which often is not a wedding) is turning them away. I think that's what you call someone refusing to serve someone else: turning them away.
They simply don’t want to contribute in any way to the gay marriage movement. So they’ll sell you roses, just not for a wedding. And they’ll sell you cupcakes and birthday cakes, just not a wedding cake.
While we're discussing Jim Crow comparisons, I wonder if it ever occurred to Zigarelli that racist business owners may have refused service in those days to refuse to contribute anything to the civil rights movement. And there's something else I should point out: businesses that serve cake or flowers of photos to gay couples aren't contributing anything to gay marriage. As I said before, the couples they refuse to serve often aren't getting married. But even if they are, serving them does not require contributing to gay marriage. You don't need cake or flowers or photos to obtain a marriage license. This is about service and discrimination, nothing more.
Colorado state judge Robert Spencer explained in December last year that refusing to serve a gay couple for only their ceremony is still discrimination. In his ruling against a bakery that discriminated against a gay couple, he explained that "[t]he salient feature distinguishing same-sex weddings from heterosexual ones is the sexual orientation of its participants. Only same-sex couples engage in same-sex weddings. Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not “because of” their sexual orientation."
If you don't serve a gay couple, but you would serve a straight couple in the exact same circumstances, then the only distinction you've made, and the reason you deny the service, is the sexual orientation of the couple. It's plainly obvious to me what that's called: discrimination.
Homosexuals can buy 99 percent of the products in such businesses. It's hardly “no gays allowed.”
Contained within these sentences is a rather insulting suggestion: that gay people should be content with 99% of the entitlements that straight people get. Basically, they are not entitled to be treated equally. What do they need a negligible extra 1% for when they've already got 99%?
I would firstly argue that gay people are still not even close to 99% equal. But more importantly is the fact that that 1% is not negligible. Anything less than complete equality is not enough. It's not negligible when the government and society go out of their way to make a group of people lesser than everyone else, no matter how small the margin is. The stigmatization and message that you are a second class citizen is not negligible. But if you think that the missing 1% is negligible, then I can ask you the same question that Zigarelli asked: You're okay with granting gay people 99% equality. Why can't you grant the extra 1%?
Actually, hasn't this "partial equality is sufficient" argument been tried before? Oh right, it has been. It was called the three-fifths compromise.
The real agenda here is “no faith allowed.” It’s happened in the public schools; now it’s happening in the workplace.
I can no longer tell if proponents of the "no faith in schools allowed" idea are lying or just ignorant. The 1962 decision in
Engel v. Vitale did not ban prayer. It banned forcing students to pray. That actually increases freedom of religion, by letting students decide how they will worship. And by the way, in June last year, a district judge in Michigan ruled that saying "I don't accept gays because I'm Catholic" in a public school is constitutionally protected.
As for the workplace, Zigarelli appears either ignorant of the current policy or trying to push the never ending conservative persecution complex argument. Religious discrimination in employment is explicitly prohibited by Title VII of the Civil Rights Act. It's not "no faith allowed in the workplace", it's “no punishment for faith allowed in the workplace”.
I don't know why some people have such a hard time accepting that freedom of religion should have reasonable limits. You can practice your faith, you just can't use it as a reason to control other people's lives. Mohammed Atta was practicing his faith when he flew American Airlines Flight 11 into the World Trade Center. While I'm not saying that discriminating against a gay couple is as bad as 9/11, I am saying that the logic used to justify it is the same as the logic used to justify 9/11: I did as God commanded me.
And the tactic is an old one: Hijack the discussion and blame the believer.
I don't know exactly what Zigarelli means by "hijack the discussion", but I think it's fair to blame the believer when they're the one who wants to break the law and control other people with their faith.
“Justify your bias,” says the reporter. “Explain your discrimination. Repent of your ignorance. Be tolerant of those who disagree with you.”
Exactly. Justify why you think that gay people are worth less than straight people, and by that I don't meet point to the Bible. Explain why you should have the right to shirk your responsibility as a public accommodation to serve everyone equally. Repent of your ignorance of why people are gay. Be tolerant of others even if you disapprove of their sexual orientation.
They conveniently ignore that the logic cuts both ways.
Justify your bias against Christians. Explain your discrimination against people of faith.
I'm not going to, because neither is there. Bias and discrimination imply that Christians and people of faith are singled out for a disadvantage. This is not true. It is not just illegal for Christians and people of faith to discriminate. It's illegal for people of all religions, or of no religion. Muslims, Jews and atheists are banned from discriminating against protected classes.
The other thing is that Christians benefit from anti-discrimination laws as well. Religion is a protected class under these laws, so discriminating against Christians is illegal. But I wonder how Zigarelli would feel if a case of anti-Christian discrimination ever arose due to a religious motivation. Would he defend it as freedom of religion? I don't know, but I wouldn't expect him to. It should be illegal to discriminate against Christians. It should also be illegal to discriminate against LGBT people.
Repent of your ignorance of the First Amendment.
The Hobby Lobby case could result in a radical interpretation of the First Amendment: secular, for-profit corporations have the right to freedom of religion. Everyone, especially conservative originalists, should see how ridiculous that is. Is that what the founders intended to create? But until then, let's stick to the current interpretations of the First Amendment.
"When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity."
- United States v. Lee, 1982
Oh. I guess you don't have the right to force your faith on others after all.
"To permit [religious exemptions to laws] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."
- Employment Division v. Smith, 1990
Oh. I guess you don't have the right to be exempt from laws because of your religion after all.
I think it's Zigarelli who's ignorant of the First Amendment.
Be tolerant of those Christians who disagree with you.
I actually think that this message is insulting to Christians and people of faith. Zigarelli suggests that it is in their nature to discriminate against gay people, by portraying that discrimination as an essential part of the free exercise of religion of Christians and people of faith. That's not true. I can't name 10 cases where Christian small business owners have discriminated against gay couples. But how many Christian business owners are there in the country? Thousands? Hundreds of thousands? Millions? Tens of millions? Whatever the number is, not even ten of these businesses have discriminated against gay people. That's an extremely small number of bad apples.
One wonders what the media would say about a black baker being jailed for refusing to cater a KKK rally or an Israeli lawyer being fined for not representing neo-Nazis. The violation of conscience is equally egregious.
There's no comparison to be made between the cases. One could refuse to do business with the Ku Klux Klan and not be found guilty of discriminating just as one could not do business with al-Qaeda and not be found guilty of discriminating. To refuse service to either group would not be discrimination based on a protected class, but due to a desire to not work with terrorists. That's very different to discrimination against a protected class. As for new-Nazis, political beliefs are not a protected class either. So once again, this is not unlawful discrimination. Forbidding refusing service to LGBT people does not require forbidding refusing service to the KKK or neo-Nazis.
There’s more at stake, though, than mere single-mindedness and double-standards. If the law requires business owners, under threat of state punishment, to abdicate their bona fide religious beliefs, then we are adopting a new form of governance -- one that’s more Pyongyang than Peoria.
This is not "a new form of governance". "[R]equir[ing] business owners, under threat of state punishment, to abdicate their bona fide religious beliefs" would be maintaining the status quo. A sweeping ruling for Hobby Lobby would be a new form of governance. Obviously the language Zigarelli uses is negatively spun, but I actually agree with what he said. There are reasonable limits that can be imposed on freedom of religion. In fact, I would argue that no one is forcing anyone to do anything; rather, business owners are agreeing to these regulations themselves. If you start a business, then you are implicitly consenting to the valid regulations on your religious freedom that exist when you conduct your business. As of now, that includes not forcing your faith on others and not being exempt from the law. As of Monday, that may not be the case, but I'm writing to cover the circumstances that exist as of the writing of this diary.
And on with sweeping implications. An adverse ruling in the Hobby Lobby case—or any similar religious liberty cases—means that private, faith-based schools and colleges will be next.
Another apples-and-oranges comparison. Hobby Lobby may be run by religious owners, but it's not a religious organization. It is not recognized as religious under the law in the same way that private, religious schools are. In fact, these private religious schools are already protected. In the 2000 case
Boy Scouts of America v. Dale, the Supreme Court granted the Boy Scouts the right to discriminate against gay people, ruling that a private organization (like a religious school) can exclude a person from membership if "the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints." They won't be next. They were protected before.
Also in the crosshairs will be pastors. Preach that the practice of homosexuality is sin and be slapped with a gag order, a fine, and maybe some jail time.
An exaggeration? Look at Sweden if you want a crystal ball.
Pentecostal pastor Ake Green was prosecuted and sentenced to a month in prison (eventually overturned) for preaching against the practice of homosexuality.
While I don't agree with putting people in jail for speech (with the exception of overt incitements to violence), again, this is not a slippery slope the country could be headed down. The Supreme Court has already protected speech in a number of cases. In the 1969 case
Brandenburg v. Ohio, they protected violent speech unless it incites imminent lawless action. In the 1992 case
R.A.V. v. City of St. Paul, they struck down hate speech laws. And getting back to homosexuality, in the 2011 case
Snyder v. Phelps, they upheld the right to display a "God Hates Fags" message in public.
The reason that the two countries cannot be compared is obvious: America has a constitutional right to freedom of speech. Sweden can do what America can't. Yes, it happened in Sweden. But it cannot happen in America.
Look also at Canada where William Whatcott has been arrested repeatedly and fined thousands of dollars for his street teaching on the issue. The charge? “Hate speech.”
If you don’t like what the Bible says, criminalize the sharing of it. Yes, this is Canada, not Iran.
I've got no other option but to repeal myself. Canada does not have a First Amendment.
Ultimately we’ll see the coup de grace, the closing of churches that refuse to marry gay couples. It’s almost inevitable since the principle is the same: You can’t deny some “customers” service because of your faith.
Couldn’t happen? Look at Denmark where in 2012 the Parliament voted 85-24 to compel its Lutheran churches to perform same-sex weddings.
How could that vote ever happen in America? At the moment, the House doesn't even want to vote on the Employment Non-Discrimination Act. They can't bring themselves to make it illegal to fire someone for being gay. How are they going to vote to compel churches to marry gay couples? (By the way, religious freedom
favors marriage equality.)
And of course, Hobby Lobby is not a church. Denmark doesn't have the First Amendment. It might happen there, but it can't happen here.
This is why the Hobby Lobby case matters so much -- and not just for business.
If we live in a country where we can’t express our faith through our business, then we may someday live in a country where we can’t express our faith at all.
In response to this, I will analyze in some detail why the restrictions on religious conduct in businesses are reasonable.
First of all, there have been restrictions on religious liberty in commercial conduct for a long time. United States v. Lee, which decided that one cannot force religion on another through their business, was decided in 1982. Employment Division v. Smith, which decided that no one is entitled to a religious exemption to laws, was decided in 1990. The country has been living with these precedents for over 20 years, and I cannot say that I've seen unreasonable burdens on religious freedom as a result. There's been no persecution or oppression. So I don't buy Zigarelli's doomsday prophecy.
Secondly, I would argue that describing these restrictions on religious liberty in businesses as restrictions is somewhat misleading, because they are agreed to. As I said before, by starting a business, business owners bestow on themselves the responsibilities of running that business. If these regulations include anti-discrimination laws, then the businesses cannot discriminate. As per Heart of Atlanta Motel v. United States, banning discrimination in public accommodations is constitutional. Today, no one would think twice about the provisions that ban public accommodation discrimination on the basis of race, color, religion or national origin in Title II of the Civil Rights Act. But any suggestion of adding sexual orientation or gender identity to that list is met with knee-jerk, instinctual resistance from conservatives crying religious freedom. Well guess what: some of that freedom is voluntarily abdicated when you start a business.
Thirdly, I will discuss what entities are entitled to religious freedom. The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]"
The first thing that I have to say about this is that in light of the first clause of that sentence, I don't think it's a stretch to argue that creating a religious exemption to laws establishes religion above irreligion, as people of no faith would have no way to violate laws that they disagree with, whereas people of faith would. I think an argument can be made for a constitutional prohibition of religious exemptions to laws from this clause.
Secondly, while the First Amendment provides that freedom of religion is a right, it is the Fourteenth Amendment that provides who is entitled to that right. Section 1 of the Fourteenth Amendment reads (emphasis added):
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Got that? To have freedom of religion, you have to be a person. Hobby Lobby is not a person.
What happens on Monday, or whenever the decision comes down, could have incredibly sweeping consequences and expand religious freedom to mean the freedom to impose your religion on others. Zigarelli and all the other Hobby Lobby supporters might be hoping for a win for Hobby Lobby now, but if that comes, I don't think it will be long before that win turns on them in some way or another. They may be targeted or discriminated against. But that would be entirely fine.
After all, wouldn't it be "religious freedom"?