America’s Non-Existent War on Religion and the Return of the Radical Religious Freedom Restoration Act


See all our coverage of the 2012 Contraceptive Mandate here.

Senator Marco Rubio introduced a so-called “Religious Freedom Restoration Act.” The fact that free exercise of religion is already protected makes no difference as Rubio could be in the running for a VP spot to save the eventual candidacy of Mitt Romney. 

Republican Senator Ray Blunt of Missouri sought to attach a conscience clause to a transportation bill in an effort to overturn the President’s birth control mandate. However, Democrats managed to block the amendment. Subsequently Blunt said he would “be back” with the amendment in search of another bill to attach it to. You can read the full text of the amendment here

NARAL Pro-Choice does a good job of delivering the top line of what Blunt’s amendment could do:

The amendment allows insurers to refuse coverage of any essential health service to which they might claim a “moral” objection, including HIV treatment, alcohol and other substance-abuse counseling, in-vitro services for same-sex couples, STI counseling, prenatal care for single women, and mental-health care. Insurers could refuse to cover these services for religious or moral reasons, or if the purchaser of the plan claimed the benefit is contrary to its religious or moral convictions.

These things are nothing new.  The religious right has been trying to implement Religious Freedom Restoration Acts (RFRA) on the state level for some time. These bills and resulting laws bestow special privileges on religious groups, allowing one, as an example, to turn away a gay couple from the cake shop you run if you find their lifestyle morally reprehensible based on a “firmly held” religious belief.

My go-to on all things RFRA is Marci Hamilton, who holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, where she is the founding Director of the Intellectual Property Law Program.  Hamilton is also the author of God vs. the Gavel and a constitutional expert in church-state relations.  In a 2010 article, Hamilton lays it out:

These laws [state RFRAs] demand the glare of the spotlight and deserve harsh public scrutiny, for these new RFRAs — backed by Focus on the Family and the Catholic Bishops, among others — go even further than their predecessors.

In Louisiana, Colorado, and North Dakota, religious lobbyists have pushed, or are now pushing, for a law that would work as follows: Religious actors would simply have to prove that the law they are challenging imposes “a burden” — meaning even the most de minimis burden — on them. If they meet that low standard of proof, then the government must prove that the law at issue serves a compelling interest and constitutes the least restrictive means of doing so. If the government does not meet this difficult standard of proof, the law cannot be applied to the religious actor. So conduct that is remotely related to religious beliefs or indirectly involves religious doctrine could be enough to overcome important laws.

This is overreaching of the rankest kind — and it is why I am calling these new RFRAs “extreme RFRAs.”

This article is a must read to truly understand the devastating impact “extreme RFRAs” will have on women’s reproductive rights, LGBTQ rights and the rights of every individual who doesn’t believe a certain way.

Several states have tried this recently. One was introduced in Iowa last year.  It was of course supported (I would go so far to say authored) by the local Focus on the Family affiliate and powerful religio-political group The FAMiLY Leader.

Due to a swift and public outcry by LGBT, women’s rights activists and temperate religious organizations the measure was dropped almost immediately.  The wording in the Iowa bill was so broad that it would allow a person to deny, say, housing to a single mother since her child was conceived out of wedlock, an unconscionable act though allowable under this law if it were based on the dictates of the landlord’s faith.   

Both Colorado and North Dakota sought to get a RFRA placed on the ballot with the aid of the local Focus on the Family groups and the Catholic Conference.  They failed to obtain the required number of signatures to put it to a popular vote.

This purported assault on Christians, Catholics and the lot isn’t supported by actual facts. The GOP presidential hopefuls wail about a war on religion (read: Christianity) to gain traction with an ever more right-leaning base.  They bash Obama for starting a war on religion and his birth control coverage mandate offers the religious right proof of his evil plan. 

Those of us who prize religious freedom were heartened when Obama took office looking forward to an end to the corrosive funding of faith-based organizations. Obama did abolish religious-based abstinence-only education funding (which was subsequently re-upped through a Republican amendment to the Affordable Healthcare Act) but left intact a loophole allowing religious organizations to discriminate in hiring; an abusive luxury afforded no one else. 

Taxpayer money available via numerous executive branch agencies continues to flow to religious and “faith-based” organizations, of which Catholic hospitals are arguably the largest beneficiaries. The idea that somehow Christians are under siege in this country is frankly ludicrous. An Atheist kid asking that a prayer on a wall in her public school be covered isn’t an attack on religion. People expressing outrage over prayer creeping into public schools is not a war on religious freedom.  And now that Obama has made an accommodation for the Catholics to get over the contraception insurance issue that should put that religious war to rest (spoke too soon!)

So what then of this birth control nonsense?  Is it really about protecting the faithful?  Supporters of the RFRA claim that they are seeking to protect religious freedom.  They dig up quotes from our long dead founders and leverage our president as “other” as proof they must act and act quickly!  A lawyer at the ACLU told me once (as we were lamenting the erosion of the wall of separation) that RFRAs and conscience clauses can be used by a religious organization (clarion call by the religious-right) as a sword or a shield.  It is clear they are using it as a sword. 

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