The Repubs., the Religious Right, and the Criminalization of Religious Belief
Steven Jonas, MD, MPH
Special to The Greanville Post | Commentary No. 73
With a great flourish, the Dominionist Senator from Texas, Ted Cruz, (while also clearly announcing, to his base in the Religious Right at least, his candidacy for the 2020 Republican Presidential nomination) introduced his “First Amendment Defense Act” into the new Congress, the 115th. His stated purpose is to protect the “freedom of religion” for persons who would like to prevent the Federal government (and presumably, eventually, State and local governments as well) from “retaliating against businesses or people who refuse service to lesbian, gay, bisexual, transgender and queer individuals.”
Put differently, the bill states that “… the Federal Government shall not take any discriminatory action against a person… with a religious belief or moral conviction that marriage is or should be recognized as the union of one man and one woman…” That is, his bill, (and a similar one was supported by the incoming Vice-President Mike Pence when he was Governor of Indiana) would allow any person to discriminate against any other persons based on their sexual orientation, identity, or concept of what “marriage” is. Sen. Cruz makes it clear that the protected, allowable discrimination is one that is specifically based on the religious belief of the discriminator.
Sen. Cruz and allies use a First Amendment argument in support of their proposed legislation. Indeed, the first clause of the First Amendment to the United States Constitution says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”. . . Presumably, Cruz and his allies, like Senator Mike Lee of Utah, view having the unsanctionable ability to discriminate against persons based on who they are as people and/or certain of their actions and beliefs, that are neither criminal nor the subject of personal/civil intentional tort law, is a “right” that is indeed protected by the First Amendment. I presume that they would argue not that the persons so protected would not be “establishing a religion” but would be simply “freely exercising” their own religious beliefs and, in many cases, those of the church to which they belong.
Well, let’s take a look at that argument (and I do not know if they would be making it or another related one, but if I agreed with them on this issue, it is surely the one I would be making). First of all, what about the oft-quoted statement by Thomas Jefferson that the First Amendment establishes a “Wall of Separation between Church and State?” Well actually, although that interpretation is highly common and has been often followed by the courts, when taken literally there is nothing in the clause that establishes that principle. Indeed, the Religious Right often makes this argument. (One contrast in Constitutional interpretation and history, implication vs. clear statement, is indeed the 2nd Amendment, which clearly begins with referring to a “well-regulated militia” as its subject. But somehow, in Scalia-time, that first half of the sentence has been hived off and we are left with a “right” to totally unregulated gun ownership, including, I suppose, tanks and artillery. But that is a matter for another time.) And so, in opposing such Cruzist legislation (as I obviously do), I don’t use the “Wall of Separation” argument.
Rather I use the “establishing of religion” argument. For in the Cruz-Pence-Dominionist approach to this issue they clearly advocate that government should use its power to protect the right of certain kinds of believers — to discriminate in the use of public facilities, when such discrimination by, for example, “race” or national origin would clearly be prohibited — as against the rights of other kinds of believers and indeed, like myself, atheists.
It is not as if members of the LGBTQ community are ciphers when it comes to belief. Many members of these groups are quite religious and certainly share a belief in God with the Cruz/Pence/Lee wing of Christianity. Their view of God, and what God sanctions and doesn’t, is just a different one, one indeed, for example, expressed these days by Pope Francis.
In my view, this is the ground on which the offensive against the very offensive views of Cruz, et al, should be undertaken: they want to use the power of the State to enforce one particular set of religious views against all others. VERY dangerous for the body politic. For if this kind of government-protected, religious-based, civil law discrimination against all believers who don’t happen to agree with the interpretation of “God” and “the Bible” held by Religious Rightist/Fundamentalists/Dominionists of the Cruz/Pence/Lee stripe, as well as of non-believers, makes its way into the law, what’s next?
However, in terms of abortion and contraceptive rights, the matter becomes even more serious. Again, the position of those on the Religious Right who would ban abortion completely, or who would not use the “time-of-viability” standard that is generally accepted by the supporters of abortion rights/freedom-of-choice-in-the-outcome-of-pregnancy, or who would use the “fetal heartbeat” standard that is not regarded by medical science as an indication of any ability of a fetus to survive outside the womb, or who would legally sanction the religious view that “life begins at the moment of conception,” is that any violation of any of the legal rules that might be established under any of the above conceptions of “life,” would be enforced through the use of the criminal law, against either the women or their care providers, or both. As their supporters will clearly tell you, all of the positions described above are sanctioned by them on the basis of their interpretation of Biblical Law, that is on the basis of a set of religious doctrines/dogmas to which they hold.
Just like there are many in the LGBTQ community who are quite religious, so are many women who seek abortions and providers who provides them. And of course, in this arena too there are many non-believers. And so, what the abortion-rights banners want to do is return to the time when the criminal law was used to enforce one particular set of religious beliefs against all of the others, both religious and non-religious.
It is to these grounds that I believe we must turn the battle. Do I believe in the “woman’s right to choose?” Of course, I do. Do I believe in the rights of the LGBTQ community to live as equals, with equal protection of the law, as under the 14h Amendment? Of course I do. But what we have now shaping up under the Trumpite/Repub./Religious Right machine is actually a possible return to the European religious wars of the 16th and 17th centuries, in which people slaughtered each other in the tens of thousands over particular interpretations of Biblical text that were at odds with one another.
I believe that facing a very determined Repub./Fundamentalist/Religious Right in power, that the abortion rights forces must move beyond the “woman’s right to choose” and the “Constitutional right to privacy” (which is only an implied one) arguments. I believe that the LGBTQ community has to move beyond “fairness,” “justice,” and even the equal protection clause of the 14th amendment (of which argument I was a very early supporter, even before the development of the “Prop. 8” battle). What the Religious Right wants to do is use the power of government, of the State, in the civil law in one case, the criminal law in the other, to impose their own religious doctrines and dogmas on everyone else, regardless of their own religious beliefs. It is to this formation of religious bigotry, oppression, and authoritarianism that we must re-direct the struggle —- indeed for true religious liberty.
These are very dangerous times.
ADDENDA
Postscript One: As I have noted many times in my columns, the Bible from which the Religious Rightists draw their doctrines/dogmas is the “King James Version.” What an irony we have here. That Bible, used now in this country as the justification for religious repression on a massive scale, was an especially commissioned English translation, the first officially-sanctioned one in fact, by the Church of England. It was created in part to help the nation, now under a Scottish King-by-inheritance, who, while a Protestant himself, had a Catholic mother, Mary Queen of Scots, heal from the violent religious wars which had wracked it from time-to-time in the 16th Century. Yes, the Bloody Mary is not just a drink (one of my favorites, as it happens). In mid-century, the real Queen Mary attempted to re-impose Catholicism upon the nation, which, under Henry VIII, had left Rome. She failed, but in the process much English blood was spilled.
Postscript two: As Dahlia Lithwick tells us [and I apologize for the odd spacing here]:
“Jeff Sessions’ confirmation hearing had one moment that revealed why so many are terrified of him. . . . For hours on end, Sessions rebuffed, usually extremely
deftly, forceful questioning from Senate Democrats about controversial statements . . . In the late afternoon [however] Sessions had this terse exchange with Sen. Sheldon Whitehouse of Rhode Island.
“Whitehouse suggested that lists were already circulating suggesting there might be purges or demotions of certain career appointees in the Justice Department. Whitehouse wondered whether Sessions would have a problem with career lawyers ‘with secular beliefs,’ having in the past criticized department attorneys for being secular. Sessions replied that he has used that language about secular attorneys to differentiate between people who recognize objective ‘truth’ and those who take positions ‘in which truth is not sufficiently respected.’ [In my view, that was bad enough. But the exchange went on.]
“Whitehouse replied, with a leading, and perhaps slightly conclusory question: ‘And a secular person has just a good a claim to understanding the truth as a person who is religious, correct?’ At which point Sessions responded, ‘Well, I’m not sure.’ For a few seconds the Senate chamber seemed to go completely silent.”
SJ comment: This is the man who has been picked by the Trumpites (remember, both Kellyanne Conway and Steve Bannon came to Trump from the Cruz campaign) to be the next Attorney General of the United States. Are they very rapidly returning to the embrace of the from-Reagan-onwards Republican base in the Religious Right? You can bet your bottom dollar they are.
So. You think that I am overstating the case here? I suggest, respectfully, that you think again.