Wednesday, March 14, 2012

Religious Freedom

Religious Freedom is a term that has been thrown around a lot recently, and typically, the side throwing it around has been Team GOP. It was recently invoked in a political fight against the implementation of the Affordable Care Act. Religious Freedom been a canard in the fight against teaching science in public schools, and is a plank of the modern Home Schooling movement. Indeed, it seems that Religious Freedom is a fairly sophisticated dog whistle for Republican voters who want to believe that the President does not share their religious beliefs.

Religious Freedom is a common theme in the courts, as well. In February, a federal judge struck down an administrative rule from the state pharmacy board requiring pharmacies to stock and provide prescription contraceptives on the grounds that the rule prevented pharmacists from the free expression of religious beliefs, if those religious beliefs included a prohibition on providing contraceptives to people with prescriptions. The judge believed that this was a violation of the first amendment free exercise clause, but failed to consider or weigh patients' constitutional rights, see Griswold v. Connecticut. Regardless, I want to highlight a more recent judicial decision over 'religious freedom' that elucidates the slippery nature of the phrase.

The state of Washington passed a law that would recognize marriages between same-sex partners last month set to go into effect over the summer. The bill also establishes the right for religious institutions to refuse to serve same sex marriages, despite a prior non-discrimination law approved by Washington voters in 2008.

In a bid to prevent the law from going into effect, Republicans, led by Washington Attorney General Rob McKenna, championed a ballot initiative (Referendum 74), that puts the question to voters. The Attorney General is ultimately responsible for crafting the language that goes onto the ballot; Rob McKenna drafted a prejudicial ballot question that included buzzwords from NOM's (National Organization against same-sex Marriage) "suggested language" handbook. PFFLAG and the League of Women Voters sued to remove the words "redefining marriage" form the language, and won. They also fought for language clearly stating the religious exemption in the law, which McKenna's summary declined to describe. The resulting language is:
  • Statement of Subject: The legislature passed Engrossed Substitute Senate Bill 6239 concerning marriage for same-sex couples, modified domestic-partnership law, and religious freedom [and voters have filed a sufficient referendum petition on this bill].
  • Concise Description: This bill would allow same-sex couples to marry, preserve domestic partnerships only for seniors, and preserve the right of clergy or religious organizations to refuse to perform, recognize, or accommodate any marriage ceremony.
  • Ballot Measure Summary: This bill allows same-sex couples to marry, applies marriage laws without regard to gender, and specifies that laws using gender-specific terms like husband and wife include same-sex spouses. After 2014, existing domestic partnership are converted to marriages, except for seniors. It preserves the right of clergy or religious organizations to refuse to perform or recognize any marriage or accommodate wedding ceremonies. The bill does not affect affect licensing of religious organizations providing adoption, foster-care, or child-placement.
This is the language that will be presented to Washington voters for signatures, and will eventually appear on the ballot. Conservative groups are distressed that the ballot initiative includes mention of the the religious freedom provision. The anti-marriage legal team argues that religious freedom is misapplied in this case.
Nimocks argued that putting "religious freedom" as a feature of the gay marriage law in the ballot's title would unfairly prejudice people into voting for the new law. He argued that "religious freedom" has multiple and broad definitions that go beyond marriage. "We have a different idea of whether religious freedom is protected," Nimocks said.
To Nimocks, a DC power lawyer for marriage haters, religious freedom apparently has more demanding requirements than granting religious institutions the free exercise of their beliefs on marriage; they apparently must be able to project their religious view onto civil law in order to truly have religious freedom.

What Nimocks apparently demands is that a religion's stances on issues be enshrined as the law of the land, even if the people who hold those beliefs are a minority. This approach runs into its fair share of constitutional problems, not the least of which is the First Amendment prohibition on making, "Laws respecting the Establishment of Religion." The Establishment clause is the second side of the Free Exercise coin.

If a religious group wants to ordain a marriage under Washington state law, they are prohibited from doing so under the current marriage regime. Congregations currently lack the legal authority to perform the free exercise of religion when it comes to marrying a samesex couple. Ministers, Rabbis, and Imams are restrained from uttering the words, "By the power vested in me by the State of Washington..." to certain couples. Status quo marriage law in Washington is a law that establishes a religious law as the law of the land, and it operates preferentially. It allows one set of religions to define the legal powers of other religious groups. Nimocks' conception of religious freedom lacks the kindergarten principle that, "My right to swing my arm ends where your nose begins."

Conservative, or otherwise anti-gay congregations have noses too, and this law explicitly shields them from. When Nimocks says, "We have a different idea of whether religious freedom is protected, he betrays that for his clients confound their religion with state-enforced discrimination. The point that I believe Nimocks was trying to make, that religious freedom is popular and including it on the ballot is prejudicial, is severely crippled by his betrayal of his clients' worldview. The legislature, governor, and now the judiciary have overwhelmingly concluded that this bill protects and may even further religious freedom. In November, I'm confident that voters will agree.

Turning back to the political fights over religious freedom, I think this can be an helpful strategy for legislators looking to create laws where powerful religious groups have objections. On no topic are all religious leaders a monolith.

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