Religious Liberty and Short-Termism

On Wednesday, a Texas district court found that the ACA’s mandate that insurance cover PrEP violated the Religious Freedom Restoration Act. (Opinion here.)

A couple quick explanations before we go on: the Religious Freedom Restoration Act (RFRA) was a law passed by Congress to essentially overrule a Supreme Court decision. It was meant to provide religious practice with a higher level of protection than the Court was affording it. PrEP is a drug that significantly reduces the chance that a person will get HIV from sex or injection drug use.

A handful of people (and one corporation) challenged the mandate that insurance cover PrEP, claiming that their religious beliefs and practice required them to have access to insurance that didn’t cover PrEP, either for themselves or their employees. And, in the first instance, they won.

I’m not going to go through the opinion in any kind of depth. I think it’s wrong, though I kind of doubt it will be reversed either by the Fifth Circuit or the Supreme Court. But it’s not my area, and I’m interested in a broader point: while the decision represents a win for certain religious individuals, I suspect it represents a significant loss for the future religious liberty. And, for the record, I believe that religious liberty is critically important.

Why? Because the plaintiffs were animated expressly by hostility to the LGBTQ community. Seriously. The owner of Braidwood, the for-profit corporate plaintiff, claims as his religious beliefs that:

(1) the Bible is “the authoritative and inerrant word of God,” (2) the “Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct,” (3) providing coverage of PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and (4) providing coverage of PrEP drugs in Braidwood’s self-insured plan would make him complicit in those behaviors.

(Emphasis added.)[fn1] One of the major reasons—the major reason, on my reading—that he says providing PrEP coverage to his employees violates his religious practice, according to the owner of Braidwood, is because he’s opposed to homosexuality and doesn’t want to be complicit.[fn2]

And herein lies the long-term problem with this: there’s a public perception that “religious liberty” is synonymous with “the right to discriminate against LGBTQ individuals.” It doesn’t have to be—I took a class in law school about religious liberty claims in the Supreme Court. We looked at the case of a Jewish member of the Air Force wearing a kippa in contravention of military dress regulations at the time. We looked at laws against animal slaughter carefully designed so that they applied to a minority religious group but not to slaughterhouses. We looked at other cases of laws designed or implemented particularly to disadvantage religious individuals (though it’s been enough years that I don’t recall precisely what other issues we discussed).

But the current trend seems to be majoritarian religions claiming exemption from generally-applicable laws in a way that allows them to discriminate against the LGBTQ community. And given the prevalence of this type of religious liberty claim over the last decade or two, you’d be forgiven if you read “religious liberty” to mean just that.

The problem is, if religious liberty means the right to discriminate against the LGBTQ community, religious liberty is going to become less defensible and less defended. Already, religious disaffiliation is at an all-time high. And that disaffiliation undoubtedly has a host of causes. But the perception that institutional religion is hostile to the LGBTQ community is almost certainly one of those causes. The continued insistence that the religious can—must, even—discriminate is not an attractive point.

And religious individuals who favor discrimination on the basis of sexuality recognize the unattractiveness of this position. I’ve read multiple people try to explain how discriminating on the basis of sexuality is different (from a theological, legal, or moral perspective) from discriminating on the basis of race.

But even if they’re right (they’re mostly not, though there may be certain legal differences, given that the Civil Rights Act explicitly mentions race), that’s not going to be persuasive to the public at large. As soon as you’re trying to explain why it’s okay to discriminate against this particular group, you’ve lost.

So the plaintiffs won a short-term victory. They have (for now, at least) the ability to implement their hostility toward the LGBTQ community in their purchase of insurance. In the long-term, though, this is going to hurt religion, both driving away people who would otherwise be interested in affiliating and reducing popular support for religious freedom.

And, while the right to Free Exercise is enshrined in the First Amendment, as Mormons we should be acutely aware that that enshrined right depends, in large part, on popular support. When polygamy was unpopular (well, it’s still unpopular, but when we practiced it and it was unpopular), the Supreme Court found that it was beyond the pale of constitutional protection. We absolutely had the right to believe in the centrality of polygamy. But we couldn’t actually do polygamy.

So what do we do? I think there would be significant value in a reorientation. Make “religious liberty” 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 individuals to feed the homeless in violation of local ordinances. To aid the immigrant in violation of immigration law.

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


[fn1] Yes, he also mentions drug use and nonmarital sex. But he explicitly sets up his opposition to same-sex sexual relations; he doesn’t even pretend to make a biblical case for drug use.

[fn2] I mean, I can’t even with the complicity. Does he believe he’s complicit when an employee uses money he paid to buy a drink for a date? to bet on a football game? to buy an absolutely terrible record? That’s not my point, of course, but I couldn’t handle letting it pass uncommented-upon.

Photo by Tingey Injury Law Firm on Unsplash

Comments

  1. The US really needs to get employers out of the role of providing health insurance. Instead of giving tax breaks for providing health insurance, the US needs to give out tax penalties for providing health insurance. It’s a manipulation of the market. The consumer of the insurance isn’t the client that purchased the insurance.

  2. jader3rd, I agree! I made that argument on Twitter yesterday! https://twitter.com/smbrnsn/status/1567880216764207104?s=20&t=0ba9jFSFpAVHKcOlKFlwhQ

  3. Discrimination is not a bad thing, and everyone discriminates every day. You are free to hate anyone for any reason. You are allowed to discriminate against MAGA folks and I can hate homosexuals. As long as you don’t physically do harm there is no crime. Your beliefs do me no injury, they neither pick my pocket not break my leg.

    I suspect that you will disagree and delete this comment. Which you are free to discriminate and do!

  4. Mark I, you’re using a bunch of different terms and ideas interchangeably, and I really don’t feel like sorting them all out, so I’m going to make three small observations in response to your comment:

    (1) Discrimination is a bad thing.

    (2) You are, in fact, not permitted to discriminate against certain aspects of identity in certain circumstances; the Civil Rights Act of 1964 and various state statutes say that.

    (3) While you certainly have the private ability to hate LGBTQ individuals, hating them makes you deeply un-Christlike and un-Christian.

  5. Mark L, here proclaiming the hate in the name of Christ and freedom! His comment reminds of a bumper sticker I once saw: The Christian Right is Neither.

    Make no mistake: the Christian Right (which so many in the LDS church are now embracing) is destroying both Christ and freedom.

  6. Mark,
    You stated “As long as you don’t physically do harm there is no crime. Your beliefs do me no injury” well, unfortunately there is a sizable and growing body of neurological/medical research that shows this is not the case. In fact your beliefs, which come with emotion and perception, do cause you, Mark, and those you discriminate against physical harm.

    Discrimination causes real and long term physiological effects for the discriminator and the discriminated. For the discriminator: the temporary boost in oxytocin is not actually healing your attachment issues, nor is it worth the increased stress hormones that will wear your body down faster. Also, anger is terrible for your heart health. For the discriminated: just look at the host of health issues that are particularly high among black people in the USA, their bodies carry the impacts of oppression and daily microaggressions. There is too much evidence for the real physiological impacts on the brain and body created by our interactions with one another.

    I am no Bessel Van Der Kolk, M.D. , please look to his work as a good starting place for this topic. I hope you find it as interesting and enlightening as I do.

  7. A Turtle Named Mack says:

    Your reference to polygamy, I think, is a good example of how disingenuous the LDS Church is about religious freedom. The Church was very much opposed to the courts defining marriage when those who practiced polygamy (and the Church, generally) were the target. But they very much supported proposed legislation that would define marriage as between one man and one woman (seeming to gloss over how the ‘one’ man and ‘one’ woman terminology was a specific throwback to polygamy). Don’t cover PrEP because we don’t condone homosexuality (also note that PrEP isn’t exclusively used by those in the LGBTQ community or IV drug users). Don’t cover birth control (even if most of those using birth control are married and are having sanctioned sexual relations). Don’t tell us that we can’t discriminate at our universities on gender (but definitely keep those federal dollars flowing our way). The Church doesn’t believe in liberty, religious or otherwise. They just want to be able to do whatever the hell they want, and are happy to invoke whatever rights are convenient, at the time.

  8. Sam, the “loss for future religious liberty” argument is debatable but I think I agree with you in the sense that what we’re calling Christian Right wins will be detrimental to the LDS Church and the Evangelical world in the mid- and long-run. I think we have to be careful, however, in making the argument in majoritarian and minority religion terms. The LDS Church has been a minority forever and only looks like it’s playing with the big boys because of an apparent alignment of interests. Looking at trends, both with organized religion and with political attitudes, and thinking about discrimination on gender and sexual orientation, about abortion, and about marriage equality, the desire to discriminate, absolute positions on abortion, and efforts to deny marriage equality, increasingly look like minority positions and the churches that want to take those positions more and more like minority religions.

    If I read you right, and put aside labels, the argument is that what look like wins for the conservative Christian Right-aligned elements of the LDS Church are likely to hurt the LDS Church in the long run. I agree. Probably more by accelerating the rate at which people leave the church, than by imposing restrictions on BYU that the church wants to avoid. More and more members, especially of the younger generations, will say “you can have your discrimination but I want no part of it.” I feel that way myself.

  9. It’s one thing to not condone certain behaviors, another thing entirely to decide that you have the right to make those behaviors punishable by death for others who do not share your beliefs.

  10. Chris, a couple things. The first is, I definitely agree that, if nothing else, this vision of “religious freedom” is going to hurt membership numbers, both in the LDS church and in ostensibly Christian religions in general.

    The second is, I do think that, unchecked, these issues will affect First Amendment jurisprudence and pare back the protections afforded to religious liberty. And it won’t be instant—the Supreme Court is a small-c conservative institution, no matter its makeup. It rarely leads public opinion. But, to paraphrase something I can’t actually cite, the Justices know how to read the papers. If popular opinion disfavors religious liberty (because, for instance, popular opinion considers it a codeword for bigotry), the Court will, eventually, follow. And it doesn’t have to eliminate the Free Exercise Clause; it can read the Clause more narrowly. (I could be wrong here, of course. And future history may lead in a different direction.)

    Finally, I’m probably using “minority religion” in an idiosyncratic way. But, even though Mormonism only represents what, 2-ish percent of the American population, I have a hard time seeing us as a vulnerable minority religion (in the US, at least). We have disproportionate representation in government, in business, in law, in academia. So even if we are a numeric minority (which we are!), we’re not a powerless or oppressed minority.

  11. Sam, you are a brave man to predict future Supreme Court views about the First Amendment. I have no special knowledge or experience in First Amendment issues, but my gut check is that you’re way out in speculative land.
    Regarding minority/majority, I think we’ve taken a wrong turn in discussion. Rather than membership numbers, I think the better way to think about majority and minority is to count alignment among the Justices. What we’re calling recent majoritarian religion opinions are what court watchers would call aligned with the personal religious views of a majority of the Justices.

  12. Boy Scouts v Dale seemed like the obvious place to start on this one, since my recollection is that it turned on a finding that the scouts really did have a policy against homosexual conduct. Did the court use that case? (I suppose I could google, but where you just read it…)

  13. One area of concern for me is that religious beliefs are increasingly fragmented and difficult to quantify. It used to be that denominations had beliefs to which their members subscribed, whereas now each person seems to have their own individual religious beliefs which may often conflict with beliefs of other coreligionists or even official doctrine of that religion.

    Perhaps an example will help. It used to be that if Church X prohibited members from being vaccinated but were totally okay with eating pork, while Church Y took exactly the inverted positions, it was reasonably easy to know whether or not a member of Church X or Church Y was exempt from a general vaccination requirement or a general requirement to eat pork. Now, it seems like a person who belong to either church (or to none at all and is simply spiritual but not religious) could claim to be exempt from both laws and also exempt from taxation based on a religious belief that taxes are prohibited by God. If standard is simply that the belief is sincerely held, it seems like a recipe for chaos.

  14. If an employee shops the individual marketplace, they can get whatever coverage they desire, correct?

    If an employee wants their employer to pay for coverage the employer finds morally objectionable, why can’t the employee get that coverage on their own?

    If an employer is forced to pay for services they find objectionable, doesn’t this constitute financial harm?

    This is not an argument about paying for wars or taxation, as we’ve already established that tax subsidized marketplaces provide the coverage the employee wants and can get.

    But why force the employer to pay more for what they don’t want to offer?

    Is the objection that the employer disagrees with homosexual behavior or that the individual in question will be at risk? If they can get coverage by switching policies, no risk. If the objection is that switching policies is a burden…well, I have an Obama care quote or two to share about liking and keeping your policy to share — short answer, many of us are required to change and update our policies regularly because of this law.

    Where’s the beef? That being said, I expect that a gym might find type 2 diabetes preventable and want to discourage its employees from eating sweets, so they want to opt out of insulin insurance. Here’s the difference, a gym is not a religion.

    The issue people have is with a constitution designed around limited government powers and an ever growing entitlement state that wants to require actions by individuals without constitutional empowerment.

    Just to be clear, we have an amendment about where soldiers cannot be housed. And amendment giving power to collect income taxes, an amendment about compensation of legislators! And you’re telling me we shouldn’t have an amendment giving federal government the right to determine health care policy?

    Sorry, the wall the liberals keep banging their head into is not bigoted conservatives, but a limited government of checks and balances which is requires powers be delegated to the federal government via the constitution. That they blame their failures on bigoted boogeyman when it’s really constitutional principles shows they either down understand the issue or they are frustrated by political inaction and seek to bend politics in their favor through public rabble rousing.

    The solution is difficult, if the people are on yourside. You want federal power to legislate Healthcare. Get an amendment. That’s how it should be done.

    Don’t get me wrong, I’m not saying the courts are viewing things this way, but they should. And if liberals actually used the constitution the way it was intended instead of circumventing it opportunistically, then they wouldn’t be playing judicial roulette.

    Incidentally, this is the route the people went in the case of gay marriage in CA and when successful, the liberals still disregarded the constitution and proceeded to do what they wanted to do anyway.

    That’s more dangerous in the long run as a policy than a limited government that expects to see constitutional delegation (or denial) of powers before acting.

  15. Sute, I don’t follow what you’re saying, and I’m pretty sure from your comment that you didn’t follow what the OP said. With that, let me respond to a couple of your assertions:

    (1) The question at issue is whether religions are subject to generally-applicable laws. There’s been a recent move to treat religion as sovereign to itself and not subject to law.

    (2) That said, that wasn’t the point of the post. The point was, religion loses public support (and affiliated members) when it looks like it’s asserting its independence from the law specifically to discriminate. That weakens both the moral stance that religion comes from and the force that the idea of religious liberty.

    So what I’m saying is, even if the courts are willing to let people out of generally-applicable so that they can discriminate, religious people shouldn’t press that point. It may be a short-term winner, but it’s a long-term loser.

  16. Sam, the Civil Rights Era legislation and subsequent rulings have put non-discrimination at the front of our legal precedent. Before that time, non-discrimination was one of many competing goods, not THE good that many champion it to be today.

    Religious freedom is, to a certain extent, the right to discriminate based on privately or community held beliefs. I would go as far as to say that if the right to discriminate didn’t exist, religious freedom can’t exist either. It might be bad PR but the right to discriminate only weakens religion’s moral position in the eyes of people who hold non-discrimination as a high or the highest good.

    As President Oaks pointed out, freedom of religion is not limitless but the conflict between it and non-discrimination law is inevitable.

  17. Yep. And timely because the Church continues to file amicus briefs in cases about LGBTQ discrimination. They just filed another one this summer courtesy of KMC where they characterize bigotry as heroism.

  18. Making Christianity the only legally allowed religion in the USA is an idea that is gaining a lot of traction among far-right groups. Sadly, it’s gaining traction among some extreme LDS groups as well, and those LDS groups don’t seem to be thinking this through. Most people in this country do not accept the LDS church as a christian church. Extreme Mormons could fight to make christianity the only legal religion and then, when it’s all said and done, find out they don’t have a seat at the table.

  19. Mac, ten years before the Civil Rights Act, nondiscrimination was not a competing good. Until the Supreme Court’s decision in Brown, the government enacted discrimination. And even today, we see that legally, nondiscrimination is not at the front of our legal precedent—where nondiscrimination clashes with assertions of religious exercise, nondiscrimination basically always loses. (See, for example, yesterday’s stay by Justice Sotomayor of an order that Yeshiva University recognize YU Pride Alliancce.)

    I’d also disagree with you that discrimination writ large is critical to religious liberty. It’s true that in internal affairs, religions need to be able to discriminate. You can’t force the Catholic Church to hire a Mormon as a parish priest. And that’s basically entirely uncontroversial. (The ministerial exception creates some borderline questions, but nobody serious questions the general idea.)

    But over the last couple decades, some religious conservatives have pushed the idea that religion requires believers to discriminate in external, nonreligious contexts. I don’t believe that requiring religious individuals to comply with nondiscrimination laws in their external dealings is part of, much less critical to, religious liberty. But even if it is, it’s a deeply unpopular idea in a moment that, as you recognizes, strongly values nondiscrimination; demanding the right to discriminate against marginalized groups in external dealings has, and will continue to, hurt the place of religion in society.

  20. Elisa, I guess you draft the amicus briefs that you know how to draft (and have already effectively written)?

  21. I just want to take a moment to note that if Mormons believe that religious discrimination will not be deployed against them in the name of majoritarian religious liberty, they are completely ignorant of their own history AND the beliefs of the people with whom they make common cause today.

  22. Hey now, don’t sell yourselves short. ‘Religious liberty’ is not just used to harm LGBTQ but also to harm women.

  23. purple_flurp says:

    yet another reason why healthcare needs to be a universal human right and consequently decoupled from employment

  24. How did corporations become able to discriminate on the basis of religious belief? I realize that, for some purposes, a corporation is a person. But a corporation can’t vote. Can it really have a religious belief? It can’t be baptized or go to heaven (or hell). It’s owners can have religious beliefs, to be sure. But, if they want the benefits of corporate ownership, I believe that they need to leave the fiction of corporate religious belief behind.

  25. Paul, I very much agree. Corporations and other business entities have to have some rights—a business entity that could not enter into contracts, own property, sue, or be sued would be useless. But I don’t recall the Supreme Court really wrestling with and explaining how it concluded in Hobby Lobby that corporations had religious rights, much less how to determine who’s religious rights they exercised.

  26. “Bible condemns sexual activity outside marriage between one man and one woman”

    If someone makes a claim about what a religious text teaches in court, and that claim is actually contradicted by the text itself (as far as I can tell, the Bible contains a number of non-monogamous and even extramarital sexual relationships that are not explicitly condemned and even blessed in some cases), can the religious text itself become the basis for legal debate?

  27. The court here kind of anticipates your question here when it writes, “But Defendants inappropriately contest the correctness of Hotze’s beliefs, when courts may test only the sincerity of those beliefs.”

    Honestly, that’s probably a little more aspirational than it is 100% descriptive. But for better or worse (honestly, if we care about church-state distinctions, it’s probably for better), courts mostly can’t look at how unscriptural religious beliefs are.

  28. Sute, insurance and the Affordable Care Act market place does work the way you propose. As long as your employer offers insurance you cannot jump over and use the marketplace instead. My husband and I have tried to use the market place as an option because I see a specialist that is not covered by his, or many other employer insurance plans in our area. (IHC seems to dominate in our area and my provider works for a university hospital).

    We can use the Affordable Care Act marketplace if he loses his job or we both have jobs that don’t provide insurance. Switching jobs with insurance is a gamble, because employers are not usually forthcoming with insurance details unless you are hired and have accepted the job.

Trackbacks

  1. […] as much time on actual religious freedom issues (like persecution abroad)–and as Sam Brunson wrote, I think their focus here is going to come back to haunt […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: