“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The First Amendment of the U.S. Constitution includes the clause we’ve come to think of as the separation of church and state. The intention was to ensure that the practice of religion would be free from government intervention, and limiting the power of the federal government to enact religiously-based laws.
Though the Bill of Rights was ratified more than two centuries ago, how the amendments are to be understood and enforced continually changes.
Challenges to the First Amendment have been in the news recently. There are two issues, in particular, at hand. One is the exemptions allowed religiously-based institutions from complying with government mandates. One is the passage of a state law, which would allow discrimination specifically when the discriminating party claims religious belief. Both have the potential consequence of theological anarchy.
In March 2016 the Supreme Court heard arguments concerning the Affordable Care Act and prerogatives of religiously-affiliated institutions to deny insurance coverage to employees for reproductive health care. These institutions include schools, hospitals, and orders of Catholic nuns. The organizations were already granted a legal accommodation, allowing them to file a two-page form with either the federal government or with their health insurance provider. The form would allow them to opt out of having reproductive health care coverage under their plans. In so doing, the reproductive care would be insured separately and at no cost to the employer.
The religious organizations object, complaining that filing a two-page form is a substantial burden, too much to ask. Though seven appeals courts disagree, the Eighth Circuit Court found for the plaintiffs. The fact that the appeals courts had a split decision is what sent the issue to the Supreme Court.
In other news, the Mississippi legislature passed a bill allowing private citizens, government employees, corporations, and other organizations to discriminate in a wide range of ways, if they claim they do so because of their religious beliefs. The legislation is still subject to resolution of differences between the House and Senate versions. According to the Washington Post,
Mississippi’s House Bill 1523 says, among other things, that public employees, businesses, and social workers cannot be punished for denying services based on the belief that marriage is strictly between a man and a woman. Same goes for people who act on the belief that “sexual relations are properly reserved to such a marriage” and that gender is determined at birth. It says the government can’t prevent businesses from firing a transgender employee, clerks from refusing to license a same-sex marriage, or adoption agencies from refusing to place a child with a couple who they believe may be having premarital sex.
… It prevents the government from “discriminating” (through taxes, fines, withholding benefits, or other forms of retaliation) against a “person” (broadly defined as an individual, religious organization, association, corporation and other kinds of businesses) for acting on their religious convictions regarding sexuality and marriage. That includes employers, landlords and rental companies, adoption and foster care agencies, people and companies that provide marriage-related services (rental halls, photographers, florists, etc.).
The bill protects doctors who refuse to provide counseling, sex-reassignment surgery, fertility treatments and other services based on their religious convictions, and allows companies and schools to establish sex-specific policies regarding dress and bathroom use. It allows state employees to recuse themselves from licensing or overseeing a same-sex marriage, so long as they take “all necessary steps” to ensure that the marriage isn’t impeded or delayed as a result. And it gives foster and adoptive families license to “guide, raise or instruct” children as they see fit, a rule that Human Rights Campaign argues would make LGBT children vulnerable to being forced into “conversion therapy.”
Emphasis above added in bold by me. But read it again: “It prevents the government from “discriminating” (through taxes, fines, withholding benefits, or other forms of retaliation) against a “person” (broadly defined as an individual, religious organization, association, corporation and other kinds of businesses) for acting on their religious convictions regarding sexuality and marriage.” In essence, the bill says a person, broadly defined, can act however they want with regard to someone else’s sexuality or marriage, as long as that person claims it is due to their religious convictions.
Supposedly these two current issues are narrow, one about contraception and reproductive health care, and the other about sexuality and marriage. But why stop there? Why is SEX so special, that it gets special exemptions? If a person (or organization or corporation) can be exempt from following the law in these circumstances, why should they ever follow the law, any law they don’t like? Why can’t they claim their religious conviction prevents them from serving people of color? Or requires that they marry their daughters off at age 10? Or requires them to stop paying taxes? Or allows killing other people because they don’t like them? What is off limits here?
And what accurate test is there of religious conviction? Is it like the Monty Python test for witches? How can we tell who is acting out of conviction and who is just plain mean and ugly?
In other words, anyone could claim any moral or religious position and ignore standing law, not just relative to health care or insurance or marriage or sexuality, but on any issue. All the hypotheticals we saw in the Hobby Lobby case regarding insurance coverage of birth control or other reproductive care, blood transfusions, vaccinations, diabetic care for those who “eat too much,” etc., these don’t begin to scratch the surface. Anyone could claim exemption from any law, on the basis of their claimed religious or moral beliefs. Corporations will be able to rape the Earth with no constraints, claiming that “man is to have dominion over the Earth.”
There is NOTHING out of bounds.
Theocratic Anarchy: no rule of law except each person’s or organization’s own interpretation of what is allowed based on their beliefs.
The only upside? No legislators would be needed, as no law passed would ever have teeth again.
From Helen:
Our View From Iowa 