Religious Liberty and Short Termism – By Common Consent, A Mormon Blog

A Texas district court on Wednesday found that the ACA’s mandate that insurance covers PrEP violates the Religious Freedom Restoration Act. (Opinion here.)

A few quick explanations before continuing: the Religious Freedom Restoration Act (RFRA) was a law passed by Congress to essentially overturn a Supreme Court decision. It sought to grant religious practice a higher level of protection than that accorded to it by the Court. PrEP is a medication which greatly reduces a person’s risk of contracting HIV through sex or injection drug use.

A handful of people (and one company) challenged the mandate that insurance covers PrEP, saying their religious beliefs and practices required them to have access to insurance that did not cover PrEP, whether for them- themselves or their employees. And, at first, they won.

I won’t elaborate on the review. I think that’s wrong, although I kinda doubt it’s overturned by the Fifth Circuit or the Supreme Court. But that’s not my field, and I’m interested in a larger point: While the decision represents a victory for some religious people, I suspect it represents a significant loss for future religious freedom. And, for the record, I believe that religious freedom is of crucial importance.

Why? Because the plaintiffs were expressly motivated by hostility towards the LGBTQ community. Seriously. The owner of Braidwood, the for-profit plaintiff company, claims that his religious beliefs are as follows:

(1) the Bible is “the authoritative and infallible word of God”, (2) the “Bible condemns sexual activity outside marriage between a man and a woman, including homosexuality”, (3) PrEP drug coverage ‘facilitates and encourages same-sex behaviorintravenous drug use and extramarital sexual activity between a man and a woman,” and (4) PrEP drug coverage in Braidwood’s self-insured plan would make him complicit in these behaviors.

(Emphasis added.)[fn1] One of the main reasons—the The main reason, from my readings, why he says providing PrEP coverage to his employees violates his religious practice, according to the owner of Braidwood, is because he is opposed to homosexuality and does not want complicity.[fn2]

And therein lies the long-term problem with this: there is a public perception that “religious freedom” is synonymous with “the right to discriminate against LGBTQ people.” It doesn’t have to—I took a course in law school on religious liberty claims before the Supreme Court. We watched the Case of a Jewish member of the air force wearing a kippa in contravention of the military dress regulations of the time. We watched laws against the slaughter of animals carefully designed to apply to a minority religious group but not to slaughterhouses. We looked at other cases of laws designed or implemented specifically to disadvantage religious people (although it’s been years enough that I can’t remember specifically what other issues we discussed).

But the current trend seems to be for majority religions to claim exemption from laws of general application in a way that allows them to discriminate against the LGBTQ community. And given the prevalence of this kind of religious freedom claim over the last decade or two, you’d be forgiven if you read “religious freedom” to mean exactly that.

The problem is that if religious freedom means the right to discriminate against the LGBTQ community, religious freedom is going to become less defensible and less defended. Already, religious disaffiliation is at an all time high. And this disaffiliation undoubtedly has multiple causes. But the perception that institutional religion is hostile to the LGBTQ community is almost certainly one such cause. The persistent insistence that religious people can, or even must, discriminate is not an attractive point.

And religious people who favor discrimination on the basis of sexuality recognize the unattractiveness of this position. I read that several people tried to explain how discrimination based on sexuality is different (theologically, legally or morally) from discrimination based on race.

But even if they are right (usually they are not, although there is may be some legal differences, given that the Civil Rights Act explicitly mentions race), this will not be persuasive to the general public. As soon as you try to explain why it’s okay to discriminate against that particular group, you’ve lost.

Thus, the plaintiffs won a short-term victory. They have (for now, at least) the ability to implement their hostility towards the LGBTQ community into their insurance purchase. In the long run, however, it will harm religion, both by driving away people who would otherwise be interested in affiliating and by reducing popular support for religious freedom.

And, while the right to free exercise is enshrined in the First Amendment, as Mormons we must be acutely aware that this enshrined right depends, in large part, on popular support. When polygamy was unpopular (well, it’s always unpopular, but when it was practiced and it was unpopular), the Supreme Court ruled that it was go too far constitutional protection. We absolutely had the right to believe in the centrality of polygamy. But we couldn’t actually practice polygamy.

So what do we do? I think there would be significant value in a redirection. Make “religious freedom” synonymous with protecting the rights of minority and oppressed religions. Focus our efforts on others, not ourselves. Focus our efforts on the right of religious people to feed the homeless in violation of local ordinances. To assist the immigrant in violation of immigration law.

Otherwise, we risk winning battles and losing religious freedom in the process.

[fn1] Yes, it also mentions drug use and sex outside of marriage. But he explicitly posits his opposition to homosexual sexual relations; he doesn’t even pretend to make the biblical case for drug use.

[fn2] I mean, I can’t even with complicity. Does he think he’s complicit when an employee uses the money he paid to buy a drink for a date? bet on a football match? buy an absolutely terrible record? Not my point, of course, but I couldn’t bear to let it pass without comment.

picture by Tingey Personal Injury Law Firm on Unsplash

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