50.50: Opinion

‘Religious liberty’ is being weaponised by the American Right

OPINION: Right-wing Christians are twisting the concept of religious beliefs to discriminate against LGBTQ+ rights

Chrissy Stroop
Chrissy Stroop
14 September 2022, 12.01am

Protestors outside the US Supreme Court during the Hobby Lobby case, 2014


ZUMA Press, Inc. / Alamy Live News

Every June, Americans with an interest in law and politics anticipate the annual flood of Supreme Court decisions on cases heard months before. For those who care about democracy and human rights, it’s been less a matter of anticipation in recent years than bracing ourselves for bad news.

This June was particularly difficult, as the politicised Roberts Court abolished the federal right to abortion care by overturning Roe v Wade, a legal precedent protecting women’s and privacy rights that had stood for nearly 50 years.

Unfortunately, next year looks to be just as brutal, as right-wing Christians are hard at work filing “religious freedom” cases that will grant them wide latitude to discriminate against members of the LGBTQ+ community.

Louise Melling, deputy legal director of the American Civil Liberties Union (ACLU), put it like this in an op-ed for The Washington Post: “For the past decade, the American Civil Liberties Union has tracked cases invoking a religious right to discriminate, and we’ve never been more alarmed. The sheer number of these cases has exploded. In 2012, the first ACLU report documenting them came in at seven single-spaced pages. The most recent report runs close to 30.”

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These cases include a challenge from Braidwood Management, a for-profit company, over the requirement that employer-issued health insurance plans cover drugs that prevent HIV transmission (pre-exposure prophylaxis, PrEP). Braidwood argues that paying for healthcare that “enables and encourages homosexual behaviour” violates the company’s religious beliefs.

Of course, encouraging preventive care, which is far cheaper than healthcare for the already sick, is much better for public health, but right-wing Christians would rather punish people they see as “sinners” than protect the public. (In a similar way, ex-vice president Mike Pence, when governor of Indiana, mishandled and worsened an AIDS outbreak in the state because of his dogmatic, evangelical opposition to needle exchange programmes for drug addicts.)

Braidwood has already won its case in a federal court in Texas. Should it reach the Supreme Court on appeal, Braidwood will probably prevail again. This will wreak havoc with the already inhumane US health insurance system, in which – because our country lacks universal, state-provided healthcare – many Americans depend on employers to provide insurance through private, for-profit insurance companies.

The Affordable Care Act’s creation of state marketplaces for people without employer-provided insurance to buy insurance alleviates the situation somewhat. But those with access to (heavily subsidised) employer-provided insurance should not have to rely on such marketplaces, where health insurance typically costs much more and may be prohibitively expensive for those on a middle-class income

How could such a cruel and, frankly, stupid outcome be possible?

Right-wing Christians are weaponising a twisted interpretation of ‘religious freedom’ to impose minority authoritarian rule in the US

Unfortunately, the Supreme Court has already recognised the (nonsensical) right of a family-owned (“closely held”) corporation to hold religious beliefs in its 2014 ruling in Burwell v Hobby Lobby. The arts and craft chain – which was involved in illegal antiquities trafficking via its owners’ other project, the Museum of the Bible – argued that paying for contraception coverage for employees violated its religious beliefs.

The Supreme Court in 2014, then already headed by chief justice John Roberts, was sympathetic to Christian “religious liberty” claims and highly sympathetic to big business interests. Hobby Lobby, which has more than 900 stores and 43,000 employees, is big business.

Now that it’s been unfairly stacked with zealous right-wing Catholic justices, there’s no telling how far the Roberts Court will go.

Weaponising a twisted interpretation of “religious freedom” via the court system is not the only way in which right-wing Christians – whether Protestant, Catholic or Mormon – are successfully asserting their dominance and imposing minority authoritarian rule in the US.

Where they control state governments, as in Texas and Florida, the Christian Right has also made massive strides by abusing state bureaucratic agencies, whether to declare supportive parenting of transgender children “child abuse” – as in Texas – or to restrict trans healthcare for adults and minors and move towards banning it for minors – as in Florida.

In this connection, it’s worth noting the involvement of the Catholic Medical Association and Alliance Defending Freedom (a Christian Right lobbying organisation designated an anti-LGBTQ hate group by the Southern Poverty Law Center) in helping Florida governor Ron DeSantis in his anti-trans push by providing legal strategy and ‘expert’ opinions.

Strong federal non-discrimination legislation could help alleviate the situation in states like Texas and Florida, though we’re unlikely to see such legislation pass – unless the Democrats can expand their majority in the Senate in the November midterms.

That would be a highly unusual outcome for a party that controls the presidency, but equal representation by state in the Senate always makes this – unfairly – difficult for Democrats. Although there are more Americans who support liberal or progressive policies than those who support right-wing ones, Democrat states with major urban centres (such as New York and California) get the same number of seats as rural Republican states with tiny populations (such as Wyoming).

In any case, there is little remedy against a rogue Supreme Court that is increasingly seen as illegitimate, other than to rebalance the court by adding qualified, reasonable justices as a counterweight to the extremists. President Biden’s administration has been reluctant to consider this, but the unfair imposition of theocratic discrimination under the guise of a false understanding of “religious liberty” is intolerable.

Once we get through the midterms, I hope liberal and progressive Americans will regroup to put pressure on the president and Democratic legislators to restore fairness to the court – before even more of our civil rights are taken away by zealots.

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