Reviews | The will of the religious right to affirm its right to discrimination

Louise Melling is associate legal director of the American Civil Liberties Union.

Emboldened by the United States Supreme Court, today’s religious right is pushing in courts nationwide for what amounts to an absolute right to discriminate. US courts are flooded with cases brought by institutions claiming that their right to religious freedom entitles them to refuse to comply with anti-discrimination laws.

Under the banner of religion, an employer is claiming the right to deny its workers insurance coverage for drugs that prevent HIV — an argument that last Wednesday found favor in federal court. Denominational schools claim the right to dismiss unmarried pregnant women. And taxpayer-funded child placement agencies turn away families seeking to adopt or adopt because they are Jewish, Catholic or a same-sex couple.

Over the past decade, the American Civil Liberties Union has tracked cases claiming a religious right to discrimination, and we have never been more alarmed. The number of such cases has exploded. In 2012, the ACLU’s first report documenting them came in seven single-spaced pages. The most recent report has nearly 30.

The scope of these claims has also multiplied. When we began our follow-up, most claimants sought to restrict women’s access to abortion and contraception and denied marriage services to same-sex couples. Now, in the name of religion, corporations claim the right to refuse to hire LGBTQ people, public school teachers the right to mislead students, and others the right to discriminate against terminally ill patients who are exploring treatment options. end of life.

These efforts are simply incompatible with a pluralistic constitutional democracy that values ​​both equality and religious freedom. Religious freedom, after all, does not mean the right to hurt others.

Consider an example that is currently making headlines in Texas. A U.S. district judge on Wednesday accepted a for-profit company’s argument that it has the right to deny employees insurance coverage for pre-exposure prophylaxis (PrEP), pioneering drugs used to prevent HIV transmission that can cost up to $20,000 a year. The employer argued that buying insurance that covers this treatment — as required by federal law — “significantly constrains” his religious freedom because the “homosexual behavior” conflicts with his Christian faith. . The court accepted the argument, letting the religious beliefs of the employer take precedence over the health of its employees.

The case of PrEP is not aberrant. In Massachusetts, the Salvation Army says its shelters can discriminate against people with opioid use disorder who rely on drug therapy, the most effective treatment for addiction. The charity argues that its objection is based on religion and therefore should outweigh its obligations under federal civil rights law to serve people with disabilities.

Proponents of religious exemptions present them as a shield to protect religious people from an increasingly secular United States. In reality, they have become a sword wielded to impose religious beliefs on others.

There is a simple explanation for the skyrocketing we see in religious denials. In recent years, the Supreme Court has found, decision after decision, that the obligation to comply with anti-discrimination laws harms Christians, even if it blatantly ignores blatant forms of discrimination against women, racial minorities and LGBTQ people.

The 2014 case was particularly important. Burwell v. Hobby Lobby Stores, in which the craft chain challenged the employer’s obligation to cover contraception. In that case, the court expressly extended religious exemptions to the “for-profit commercial world,” to quote Justice Ruth Bader Ginsburg, for the first time.

In a recent speech, Judge Samuel A. Alito Jr., citing scripture, implored “champions of religious liberty” to “come out as wise as serpents and as harmless as doves” to challenge “the growing hostility to religion” in America. Justice, who drafted the hobby hall opinion, now has a solid majority eager to give these “champions” everything they want.

This fall, the court will hear a major case asserting a constitutional right to discrimination. A public website design company in Colorado objects on religious grounds to serving same-sex couples looking for a wedding website. While the court agreed to hear only the complaint asserting a right to free speech to discriminate, declining to hear the religious freedom complaint, a ruling in favor of the company could allow those with religious or other objections to ignoring anti-discrimination laws. The United States may soon see bakeries with “straight-only wedding cakes” signs next to closed abortion clinics.

We have been here before. In the mid-1960s, a white supremacist who refused to serve black people at his South Carolina barbecue restaurants argued that he was entitled to a religious exemption from the newly enacted civil rights law. His attorneys told a trial court that the landlord believes “in all faith that racial mixing or any contribution thereto contravenes the will of God,” and therefore the application of civil rights law to its opposition “constitutes[d] State interference in the free exercise of one’s religion. The Supreme Court dismissed the argument as “patently frivolous.”

The champions of this “obviously frivolous” claim are back in front of a remade Supreme Court. Half a century ago, the court extinguished the flame of claims that religious freedom gave institutions the right to violate anti-discrimination laws. This time he lights up the game.


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