Opponents of such bills frame them instead as "religious refusal bills", "bigot bills", or as a "license to discriminate"; pointing out that the legislation allows individuals and businesses to openly espouse prejudice, especially against LGBT individuals.
History
In the 1960s, as a response to the desegregation of public schools, white Americans created many private schools (known as "segregation academies"
or "freedom of choice schools") in the South. These schools gradually
became associated with evangelical Christianity. Those who supported the
schools, according to historian Joseph Crespino, said they were
defending the rights of religious minorities. As Corey Robin put it, "the heirs of slaveholders," in their imaginations, "became the descendants of persecuted Baptists, and Jim Crow a heresy the First Amendment was meant to protect."
Controversy
Legal philosophy
The
trade-off at the heart of the controversy is whether antidiscrimination
laws must always be obeyed or whether other rights can be considered
more important, in effect granting the right to discriminate. Some
understand respect for individual human rights as foundational to
democracy and the rule of law,
but, at the same time, the First Amendment to the Constitution treats
freedom of religion as foundational and prevents the government from
making any law "prohibiting the free exercise" of religion.
The latter stance was taken in a U.S. presidential executive order
issued in May 2017 in which President Trump held that "the United States
Constitution enshrines and protects the fundamental right to religious
liberty as Americans' first freedom."
In July 2018, Attorney General Jeff Sessions announced the creation of a
"religious liberty task force" under the Department of Justice to
implement the executive order's "guidance in the cases they [the
Department of Justice] bring and defend, the arguments they make in
court, the policies and regulations they adopt, and how we conduct our
operations.”
Richard Thompson Ford said that "overly broad conceptions of
civil rights protections have turned these important laws against
themselves," and that, while each protection may seem coherent on its
own, "in combination they constitute a recipe for unresolvable conflicts
of absolutes." A less abstract and more pragmatic approach, he argued,
might be to accord greater protection to minority religions and to
serious injuries. The famous case of Masterpiece Cakeshop fits
neither criterion, then, according to Ford, as the baker belonged to the
majority Christian religion and the customers weren't significantly
injured by having their wedding cake request denied.
Moral epistemology
Other
problems include how to demonstrate whether a belief is sincere,
whether it is factually informed and accurately corresponds to the
situation at hand, and whether it is indeed "religious" or "moral" in
its origin. Indiana University law professor Steve Sanders said that
"often there is no way to differentiate between genuine religious
convictions and beliefs that are made up out of convenience....an
employee who merely has a phobia toward transgender people might still
claim a 'religious' exemption, and the employer would have little choice
but to grant it."
Rhetoric
One
type of rhetorical frame depicts the religious freedom controversy as a
war of identities. The key is selecting identities to illustrate the
problem in a way that the illustration speaks for itself. For example,
one Catholic nun identified the question of "favoring the civil liberty
rights of transgender individuals over the conscience rights of public
service providers"; she sided with the public service providers. For a contrasting example, Rev. M Barclay, an openly transgender deacon in the United Methodist Church,
described the same question as "Christians using power and privilege to
target marginalized demographics like the LGBTQ community". These different angles are discussing the same question.
Legal challenges
After
the January 2018 creation of the Conscience and Religious Freedom
Division of the U.S. Dept. of Health and Human Services, Reuters
reported that "legal and medical ethics experts said that such
exemptions [to antidiscrimination law] have legal limits and would be
challenged in court."
In April 2018, a supporter of President Trump was asked to leave a
bar in New York City for wearing a "Make American Great Again" hat. The
customer's lawyer claimed in court that "The Make American Great Again
hat was part of his spiritual belief" (as it is illegal to discriminate
against people for their religious beliefs), while the bar's lawyer
claimed that "supporting Trump is not a religion." The judge dismissed
the case.
Support
From government
In May 2018, President Trump signed an executive order creating the White House Faith and Opportunity Initiative, an expansion of existing initiatives created by Bush and Obama.
Agencies and offices in the executive branch will have a liaison to the
newly expanded initiative if they do not already have a faith-based
program of their own.
According to the executive order, the Faith and Opportunity
Initiative will "notify the Attorney General, or his designee, of
concerns raised by faith-based and community organizations about any
failures of the executive branch to comply with protections of Federal
law for religious liberty" and seek to "reduce...burdens on the exercise
of religious convictions and legislative, regulatory, and other
barriers to the full and active engagement of faith-based and community
organizations in Government-funded or Government-conducted activities
and programs."
From activists
A coalition of conservative Christian organizations called Project Blitz
supports, as of May 2018, over 70 bills across the United States, many
of which are religious liberty bills. One of the Project Blitz leaders
said in a conference call that the goal of having so many similar bills
was to force opponents to "divide their resources out in opposing this."
In 2017, the Congressional Prayer Caucus Foundation produced a 116-page
"playbook" with model legislation; the name "Project Blitz" is not used
in this report.
Situations in which discrimination may occur
Healthcare
Many healthcare types are potentially covered by
conscience-protection laws. In the U.S., as of 2013, these laws "are
increasingly being written in such a way that they would capture mental
health professionals".
On Jan. 18, 2018, the Dept. of Health and Human Services (HHS) announced the creation of a new division within its existing Office for Civil Rights (OCR). The new division is called the Conscience and Religious Freedom Division.
It was created to enforce federal laws related to "conscience and
religious freedom." That same day, Indiana University law professor
Steve Sanders criticized the new approach as having "the potential to
impede access to care, insult the dignity of patients, and allow
religious beliefs to override mainstream medical science."
Positions of medical organizations
Many
professional organizations for physicians and other healthcare
providers have ethics codes that forbid members from refusing care to
patients.
The ethics code of the American Medical Association allows
physicians to "refuse to participate in torture, interrogation or forced
treatment" but not to deny care based on a patient's "race, gender,
sexual orientation, gender identity, or any other criteria that would
constitute invidious discrimination."
The American Psychological Association believes that students
need to learn their future "ethical obligations regarding
non-discrimination" and requires broad-based diversity training "because
they may grow and change in their beliefs, preferences in populations
with whom they would like to work, geographic region, etc." While in
some cases it may be appropriate for a mental health provider to refer a
patient to another provider, this is not always practical, especially
in "schools and rural communities." The organization opposes
conscience-clause legislation, seeing it as an "intrusion of state
legislatures into the education and training of mental health
professionals".
The American Academy of Pediatrics supported repeal of
Tennessee's faith-healing law allowing parents to seek "treatment by
spiritual means through prayer alone" for their children. In 2008, the organization opposed conscience-clause legislation proposed at the federal level.
It released a statement that physicians practicing reproductive
medicine, as with any other kind of medicine, have "the obligation to
talk with patients about all of their options and, for services which
cannot or will not be provided, refer them to someone who can help them
without delay".
Scott Johnson, former president of the American Association for
Marriage and Family Therapy, said that conscience-based exemptions from
discrimination look "simply like prejudice" and that "the problem with
conscience is that it can let us do evil as well as good."
If a therapist violates AAMFT's Code of Ethics, the organization can
remove that person's membership in the professional organization even if
state law permits the therapist's behavior. The 2012 version of the
Code of Ethics "does not speak directly to matters of therapist values
or conscience."
Religious colleges
In
2006, California passed the Nondiscrimination in State Programs and
Activities Act (SB 1441) to withdraw state funding from private
universities that enforce a "moral code" regarding students' sexual
orientation or gender identity. Karen England, executive director of the
Capitol Resource Institute, described this as "an outright, blatant
assault on religious freedom.”
Between 2013 and 2015, the federal government granted over 30
exemptions to religious colleges who did not wish to comply with federal
antidiscrimination law applying to gender identity and sexual
orientation, according to a report by the Human Rights Coalition.
Basis for discrimination
Contraception and abortion
Following Roe v. Wade,
the landmark abortion rights Supreme Court decision in 1973, "laws were
passed to ensure that hospitals or clinics that received federal funds
would be unable to force medical personnel who objected to abortion or
sterilization on the grounds of their 'religious beliefs or moral
convictions' to perform those procedures." At the end of President
George W. Bush's administration, "a new 'conscience clause' took effect,
cutting off federal funding for institutions that failed to accommodate
employees' religious or moral objections."
To those who believe abortion is murder, it may seem "a
particularly deadly form of authoritarianism" to "demand that physicians
kill their patients or help to arrange for the killing, even if they
believe doing so is wrong."
By 2005, in at least a dozen U.S. states, pharmacists had cited their
personal morality in their refusal to fill prescriptions for birth
control, including "emergency contraception" to prevent a fertilized egg
from implanting in the uterus.
Under the Affordable Care Act, private health insurance plans must cover women's contraception without charging any "out-of-pocket cost"
to the woman. The Trump administration moved to provide exemptions to
employers who claim moral or religious objections to providing
contraceptive coverage to their employees. In January 2019, a federal
judge blocked these rules from taking effect in 13 states and the
District of Columbia.
Euthanasia (assisted suicide)
Physicians can cause a patient's death "actively" (for example, by
administering a fatal drug) or "passively" (by withholding food, water,
or medical care that would prolong life). This option may be offered to
patients who are terminally ill and are severely disabled or in great
pain with no hope of recovery. If the patient is unable to communicate
or consent, sometimes family members may be asked to decide. This option
is called "euthanasia," "assisted suicide," or "mercy killing."
Physicians often consider themselves to be bound to the Hippocratic Oath,
the original text of which was written between the fifth and third
centuries BCE and requires the physician to promise that he or she will
not "administer a poison to anybody when asked to do so, nor will I
suggest such a course."
In the late twentieth century it became a subject of public debate in the United States in large part due to the work of Jack Kevorkian, who claimed to have assisted 130 patient suicides. Surveys have shown that up to half of U.S. physicians have at some point received patient inquiries about assisted suicide.
The Catholic Church has long opposed euthanasia. In 1980, the
Vatican issued a Declaration on Euthanasia that explains: "The pleas of
gravely ill people who sometimes ask for death are not to be understood
as implying a true desire for euthanasia; in fact, it is almost always a
case of an anguished plea for help and love."
Same-sex marriage
Some clerks at city halls have refused to issue marriage licenses to same-sex couples. The most famous one is Kim Davis,
county clerk for Rowan County, Kentucky, who claimed to be acting
"under God's authority" when she protested the nationwide legalization
of same-sex marriage in 2015 by refusing to issue marriage licenses to
couples of any gender. She served five days in jail for contempt of
court. Similarly, in 2015, a Tennessee judge protested the legalization
of same-sex marriage by his refusal to issue a divorce to an
opposite-sex couple. He argued that the Supreme Court's ruling revealed
that it believed the state of Tennessee "to be incompetent to define and
address such keystone/central institutions such as marriage, and,
thereby, at minimum, contested divorces" and said that he would wait for
further instruction from the Supreme Court.
Children of same-sex parents
In
2014, two women, Krista and Jami Contreras, met with a pediatrician in
Detroit shortly before the birth of their child. When the child was six
days old, they arrived for their appointment and were told that the
doctor had "prayed on it" and decided she could not provide care for the
child. A different doctor had been assigned to the family. The original
doctor later wrote to the couple: "After much prayer following your
prenatal, I felt that I would not be able to develop the personal
patient-doctor relationships that I normally do with my patients."
As of April 2018, five states (South Dakota, Michigan, Alabama,
Texas, Oklahoma) allow foster care agencies to refuse to place children
with same-sex guardians if the agency has "sincerely held religious
beliefs" against same-sex parenting.
Gender transition procedures
Gender
transition is an individualized process. Transgender people may seek
medical changes to their sexual characteristics according to their
physical and mental needs and preferences. A person may take hormones
(often administered by injection),
which they will generally then administer on a regular basis for the
rest of their life. They may also have various kinds of surgery
including breast augmentation or removal, genital reshaping, and removal
of reproductive organs. Transgender women may have facial feminization
surgery, an "Adam's apple reduction" to remove cartilage from the throat (tracheal shave), and electrolysis to remove unwanted facial and body hair.
Legal and institutional procedures may also be involved. The
transgender person may want to change their name and gender marker on
their identity documents, healthcare policy, and school or employment
registration. This may impact their marriage or divorce proceedings.
They may seek psychotherapy, either because they choose to do so
for their own reasons or because it is part of an established process
for gender transition. Some physicians will require a referral letter
from a psychotherapist. Transgender people "have routinely been asked to
obtain an endorsement letter from a psychologist attesting to the
stability of their gender identity as a prerequisite to access an
endocrinologist, surgeon, or legal institution (e.g., driver's license
bureau)".
A healthcare provider or administrative assistant who objects to
gender reassignment on principle might wish to decline to participate in
any or all of these procedures. One pitfall of such a conscience-based
refusal is that it is not always clear-cut when a procedure's primary
purpose is gender reassignment. After a person has taken initial major
steps to reassign their gender, ongoing procedures (like hormones,
electrolysis, or minor surgical corrections) may simply be considered as
"maintenance." In case of cancer prevention or treatment, reproductive
organs may need to be chemically disabled or removed, and if the patient
is coincidentally happy about the removal for their own personal
reasons, that does not necessarily mean the procedure is best thought of
as a component of gender transition. Cosmetic procedures may be
considered part of the universal human desire to look attractive and may
not obviously be gender-related. In psychotherapy, a person who happens
to be transgender may need to mention problems or circumstances that
are related to their gender identity or transition, events that may be
years in the past or future; this does not necessarily mean that the
psychotherapist is endorsing or helping them complete their gender
transition.
On the last day of the 2016 calendar year, just before the Obama
administration's new anti-discrimination policy under the Affordable
Care Act regarding gender identity and gender stereotypes was to take
effect, federal judge Reed O'Connor blocked it. O'Connor believed the anti-discrimination rule conflicted with the Religious Freedom Restoration Act. In April 2018, the Trump administration said it would roll back the anti-discrimination rule.
Transgender identity
Discriminating
against someone for their transgender identity is different than
refusing to participate in a specific action they are taking as part of
their gender transition. When the person is discriminated against for
their identity, the implication is that they are refused a product or
service that would normally be considered entirely unrelated to the
gender transition they have undergone or want to undergo.
Transgender people already have difficulty accessing healthcare.
Healthcare providers often have difficulty recognizing and separating
other dimensions of a transgender person's health apart from their
gender transition. The 2015 U.S. Transgender Survey found that, just
within the past year, 15 percent of respondents said healthcare
providers had asked them "unnecessary or invasive questions about their
transgender status that were not related to the reason for their visit,"
while 3 percent were refused "care not related to gender transition
(such as physicals or care for the flu or diabetes)."
Roger Severino,
director of HHS Office of Civil Rights, in 2018 on the day that the
creation of the Conscience and Religious Freedom division was announced,
was asked by a journalist whether "someone who is transgender would be
denied health care" under the laws in question. He responded: "I think
denial is a very strong word...[healthcare] providers...simply want to
serve the people they serve according to their religious beliefs". Two days later, a Boston Globe
editorial warned that the new HHS Conscience and Religious Freedom
division will "allow medical professionals and institutions who claim
religious objections to deny coverage to transgender people" which
"appears to open the way for a doctor or nurse to turn away a
transgender individual with a broken arm — for no other reason than by
their gender identity."
Marital status
In the 1990s, there were legal disputes regarding landlords who did not want to rent to unmarried couples.
Race
Some people claim that racial segregation is part of their religious beliefs. For example, in 2019, one of Hoschton, Georgia's
city councilmen, Jim Cleveland, told a newspaper that "my Christian
beliefs are you don’t do interracial marriage. That’s the way I was
brought up and that’s the way I believe." He additionally told the Atlanta Journal-Constitution
that seeing interracial black/white couples "makes my blood boil
because that’s just not the way a Christian is supposed to live." Bob Jones University, a fundamentalist Christian school in South Carolina, prohibited interracial dating from the 1950s until 2000.
In 2015, law professor David Bernstein
argued that, if ideological consistency is a guide, discrimination
against same-sex marriages would lead to discrimination against
"interracial or interreligious marriages."
In 2018, South Dakota state Rep. Michael Clark (R) commented on the Masterpiece Cakeshop
decision, saying that a hypothetical baker should be allowed to turn
away not only gay people but also people of color. "He should have the
opportunity to run his business the way he wants," Clark wrote on
Facebook. "If he wants to turn away people of color, then [that's] his
choice." He later deleted the comment and apologized, saying, "I would
never advocate discriminating against people based on their color or
race."
Side effects of discrimination
Apart
from the direct injury of any specific instance of discrimination,
there may be indirect effects of discriminatory law. Gay, lesbian, and
bisexual adults reported an increase in mental distress between 2014 and
2016 if they lived in U.S. states that permitted denial of services to
same-sex couples in 2015, whereas straight adults and people living in
other states did not report the same increase in mental distress. Similarly, an analysis by scientists at the University of Pittsburgh published in the American Journal of Orthopsychiatry
found that, after Indiana passed a religious freedom law in 2015,
people in Indiana who identify as lesbian, gay, bisexual, or who
question their sexual orientation self-reported worse physical and
mental health.
Federal law
The Religious Freedom Restoration Act is limited. It cannot be used
as a basis for discriminating against employees who identify as lesbian,
gay, bisexual, or transgender, according to a federal appeals court in
March 2018.
Massachusetts Rep. Joseph Kennedy III is sponsoring a proposed
amendment to the Religious Freedom Restoration Act that would prevent
people from claiming religious exemptions to nondiscrimination laws. The
amendment is called the Do No Harm Act (H.R. 3222).
In January 2018, the Department of Justice added a section called "Respect for Religious Liberty" to the United States Attorneys' Manual.
