Professor Marci Hamilton’s Pulitzer-nominated God vs. the Gavel
Welcome to RJ Court Watch, a legal podcast produced by Rewire and hosted by Senior Legal Analysts Imani Gandy and Jessica Mason Pieklo. This episode takes a look at the explosion of so-called religious freedom bills at the states and the push by conservatives to enshrine practically everything they can under the First Amendment. The result? Disasters like the Hobby Lobby decision, anti-LGBT legislation and even the measles outbreak.
JMP: Imani you and I went to law school around the same time. Is this the same First Amendment and religious liberties world you remember?
IG: Well I sort of remember this whole idea of separation of church and state. That seems to have fallen out of fashion apparently as of late. I find it really disturbing in particular in which the ways religion is being used as a cudgel against science, and I think that holds true when it comes to the whole vaccination kerfuffle with the measles outbreak. And it also holds true when we start talking about contraception and abortifacients and the ways in which a lot of religious folks seem to think that they can just deem something to be true and the courts have to accept that as true. And I find that really troubling.
JMP: Why is it that there has been, I think, a good pushback by the left in particular against the religious freedom arguments in the context of the anti-LGBT legislation and the idea that legislators in Oklahoma for example are suggesting that businesses have a right to refuse to serve someone based on their sexual orientation. And that’s an argument that people seem to be calling shenanigans on. But what we seem to be doing culturally and what the left has done a less good job, in my opinion, is pushing back against those same arguments in the public health sphere.
IG: It troubles me that courts are seemingly no longer in the business of questioning people’s religious beliefs, not whether or not they exist, but whether or not they are sincerely held or whether or not they are based in some religious precept. So for example, if we are going to talk about the Bible says homosexuality is bad, well where in the Bible does it say that homosexuality is bad? If we are going to talk about well the Bible says, or whatever particular religion I subscribe to says that I don’t have to vaccinate my kid. Well where does whatever religious precept that you adhere to say that? I actually wrote an article entitled, “Hey! Vaccinate Your Kids” and I actually looked at different religions and what their beliefs are with respect to vaccinations. And it turns out that not a single religion thinks that vaccinations are bad. There is not a single religion that advocates against vaccinating children. And so how is it the case that courts are, or state legislatures are allowing people to cite religion in their effort to deny vaccinations to their kids, to destroy herd immunity in our community?
JMP: Because it’s really a trojan horse right? It’s not a so much a religious objection to vaccination as much as it is a cultural objection to being told what to do by the government.
IG: So what’s really interesting is that, you know we live in a society and in a society we all subscribe to a social contract. And that social contract requires us to compromise in some respects. It requires us to let go of some of our religious beliefs if letting go of our religious beliefs is going to benefit our fellow men and our fellow women. So for example when Ruth Bader Ginsburg in her Hobby Lobby dissent said something to the effect of ‘the right to swing your arm ends just as the other man’s nose begins.’ That’s sort of what we are talking about here. So the right to have your unvaccinated kids running wildly ends when you are putting those unvaccinated children in schools and you are actually endangering the lives of other children, children who physically cannot get vaccinations because they are immunosuppressed in some way. And I find a lot of this strict adherence to religious beliefs to be somewhat selfish. I know that is kind of a funny thing to say, and I don’t mean to say that Christians are selfish or that Jewish people are selfish. But if you are willing to allow another person’s child to die because you believe something that is factually inaccurate because your religion tells you to believe that, then how is that not just selfishness at the end of the day?
JMP: I love your social contract point because this is what the law used to recognize when it would balance constitutional rights, right? I mean, we all have First Amendment free speech rights but that doesn’t mean we all get to say whatever we want whenever we want. There are limits. And that is sort of in my mind the law’s way of recognizing the reality of that social contract, and this explosion of religious liberties arguments flies directly in the face of that. Thankfully our guest for this episode, Marci Hamilton, is one of the leading experts on this and really I think does a phenomenal job putting together the pieces of the anti-civil rights agenda in these religious liberties arguments, and the public harm, particularly with regard to children, and it’s really important I think that we talk about this more and more.
IG: I think it is really interesting that this is happening during the 50th anniversary of Selma this year. It was this weekend as a matter of fact. So I think it is really interesting that 50 years ago Black people were taking to the streets fighting for their rights and now we have, 50 years later, lesbians, gay, bisexuals and transgender people are fighting for their rights and are asking for basic human rights, which other people have, like the right to get married. Like the right to not be discriminated against in an employment situation. The right to be able to go into a public accommodation, a public store or restaurant or club of some sort and be served. And what we are seeing is religious folks, religious zealots and extremists are using these RFRA’s, these state-level religious freedom acts in order to strip rights away from people and it seems really abhorrent that that is what they are trying to do. They are trying to use something that is as special and as personal to people as faith to strip rights from other people.
JMP: We are thrilled to welcome Professor Marci Hamilton, the Verkuli Chair in Public Law at Benjamin Cardozo Law School at Yeshiva University to talk about the explosion of so-called religious freedom restoration acts across the states and so much more.
JMP: Professor Hamilton thank you so much for joining us.
MH: Thank you for having me.
JMP: Imani and I have talked a lot on this show about the RFRA with regards to Hobby Lobby and the fight over the birth control benefit in the Affordable Care Act. But the reality is these birth control is only one small slice of the fight. Marriage equality is another. And it doesn’t end there, doesn’t it?
MH: No. These bills are really designed to apply to every law in the jurisdiction. So the federal RFRA was intended to apply to every single law in the country and the states are intended to apply to their own state law.
JMP: You recently profiled the religious exemption regime in Idaho, and I will provide a link to that post for our listeners because I think it did a really excellent job of tying these laws to broader anti-public health initiatives and I’m hoping you can talk about that a little more. Because in my opinion one of the most under-reported elements of this fight over these religious freedom restoration acts is how they can be used to undermine public health and really endanger children.
MH: Well that is really the enduring issue with respect to RFRA’s that keeps me at this daily because very few people pay attention to how children are treated, whether its medical neglect or with respect to child abuse. Children don’t vote and they really don’t have much of a say. We have an increasing set of voices in the United States that are behind children. But still when they get into the legislature they are up against powerful lobbying entities, and some of the most powerful are the religious lobbies. And so when I first got started with this, when I wrote the first edition of God v. The Gavel I really was shocked to learn that the reason faith healing parents can refuse medical treatment to their children in numerous states is because the Nixon Administration encourage, in fact coerced the states, to create faith healing exemptions to ordinary medical neglect laws. Those opened the door for children not to be treated, to die or to suffer, and they also opened the door to this idea in our culture that if you are doing it for religious purposes it’s fine. And as far as I’m concerned if you are doing anything and it is harming children it’s just not fine.
JMP: One of the issues that I think that the right has been very successful at in this fight is the naming fight. And in your introduction I called these so-called religious freedom restoration acts because in the name I think there is the implication that somehow religious freedom was under attack and is under attack, and I think we are seeing that now in the proliferation of these bills in response to the push for marriage equality and to have them come up as conscience refusals. And I was just wondering what your thoughts were on that in terms of the marketing battle that is being waged in the court of public opinion while we have these legal battles going on.
MH: Well I have to hand it to the lobbyists behind the RFRAs because they chose a brilliant title because it does sound like if you need restoration of religious freedom it must be under attack. And there’s nothing a legislator would more like to do than look like they are saving people and their constitutional rights. But from day one those behind this have misled the public and legislators about what the law really was under the First Amendment and what RFRA is. RFRA is an extraordinary standard to the benefit of religious entities that the Supreme Court, in its First Amendment cases, rejected again and again and again. The reason we have RFRA is because the religious groups realized all of a sudden that their campaign for 20 years to create extreme rights was at an end. The Supreme Court in the 1990’s which was basically when I was clerking for Justice O’Connor so I saw this on the ground, the Court in 1990 decided Employment Division v. Smith and they set out that that is just not the standard. And the response to Smith, which just reiterated the law that had been in place for decades, the response was irrational but politically brilliant. And it took many people unawares, and that includes the ACLU, People For the American Way, Americans United for Separation of Church and State, these very liberal groups that ordinarily wouldn’t give the time of day to a movement trying to undermine the fair housing laws, which is where RFRA started, they came on board. And they gave cover to the religious groups who were trying to get they never had before. Once RFRA was passed at the federal level and it was held unconstitutional in 1997 in a case I brought to the Court then the groups fanned out to the states. And in 1997 to today how do they sell a state RFRA? They say that it simply is restoration of the law to 1990 and it can’t hurt anybody. And politicians pick it up and it’s false, and it really just a matter of public education to fix the problem.
JMP: I really appreciate you bringing up the anti-civil rights origins of RFRA because I think that is another element of this that is wildly under-reported and I’m wondering if you can say more to that because I think it’s really relevant, particularly now that the Supreme Court has set April 28th as its date to hear the marriage equality arguments.
MH: Right. Well, I did not learn until after I litigated the Boerne case in 1997 and the Court held RFRA unconstitutional, it was only after that that I learned the primary motivation for those avidly backing the RFRA’s was the concept that the fair housing laws were burdening religious believers because the growing number of fair housing laws in the states would not permit an apartment owner to discriminate against an unmarried couple, a single mother, or a same-sex couple. And various conservative religious groups wanted to be able to exclude those categories from their rentals. And so that is where this all started. But nobody talked about that because if they had brought that up when it was first enacted in 1993 it would have died on the vine. When it was re-enacted in 2000 it went forward only with respect to the federal RFRA and federal law. Why? Because once again the groups that should be protecting rights blinked and they assumed a federal RFRA applied to federal law and couldn’t hurt any kind of civil rights laws and they assumed the RFRA’s wouldn’t be in the states and their anti-discrimination laws would stand. They were wrong both times.
JMP: And what we are seeing now in places like Mississippi and Oklahoma and Alabama these anti-public accommodation law coming up, correct?
MH: Right. And the money that is pouring into the pro-RFRA side is coming primarily from the anti-abortion, anti-contraception organizations, along with the anti same-sex marriage organizations. It’s interesting. Common Cause recently published a report showing that the far right religious groups, largely the anti-abortion and anti-LGBT groups, are really the most active in the state legislatures and this is the same story. So these are groups that are trying to do two things. They are trying to keep, as much as they can, contraception and abortion from women, and that was what Hobby Lobby was all about. And they are trying to ensure that none of their believers have to deal with the LGBT community regardless of whether there is same-sex marriage or not. It really comes down to anti-LGBT bias and that’s really what is sad about this current development and they’ve become so willing to be public about the need to discriminate against some of our public that for me I find is shocking that any legislator doesn’t see the parallels with what is going on now and Selma, Alabama. But that’s where we are.
JMP: One of the goals that I have as a journalist is to try and draw connections when we have these politicized public health debates to the phony or pseudo-science that is often propping up the opposition, and I’m wondering if you see a link between the forces uniting behind these RFRA provisions at the states and the quasi-science or pseudo-science that is used to back up anti-abortion legislation or even in gay-conversion therapy or things like that?
MH: Right and what I would add to those two is the vaccination issues. There is a willingness to embrace information that is antithetical to medical fact and to use it for their ends. One of the most remarkable parts of Hobby Lobby was that the Court protected a believe about a medical practice that would affect all its employees across the country that was actually contrary to medical fact. So the notion that an employer can say ‘that contraception is an abortifacient and therefore I don’t have to pay for it, when in fact that contraception is not not an abortifacient, is a huge expansion in the ability of a believer to argue how far their beliefs stretch. That is part of the thinking that is fueling these extreme religious freedom statutes across the country.
JMP: How do you see this fight evolving after the Supreme Court issues its decision, likely in June in the marriage equality cases?
MH: Well my assumption is that the Court took the cases because in all likelihood there are five votes to say the states may not discriminate on the basis of sexual orientation when it comes to marriage. I expect firery dissents, but on the other hand I expect there are five votes for it. Where that leaves us is that is unconstitutional to discriminate against these couples in the states. What it doesn’t do and what it can’t do because it’s beyond the scope of the case, is to decide whether or not public accommodations laws can be crafted so as to avoid serving these couples. And that is going to be the next wave of litigation. And I think even with same-sex marriage in place we are going to have this pushback by various conservative religious groups, and I think they’ll be more desperate, to have some way, and the real goal is to just don’t want to have the LGBT people in our universe. They can’t come into our stores, they can’t come into our restaurants, we don’t have to give them anything for their weddings. But of course the laws that are being crafted are not wedding or same-sex marriage specific. They are really just say this business owner can choose not to deal with that person in public if there’s something about that person that violates the business owner’s religious beliefs. So they are being sold as an ability to keep out homosexuals and same-sex couples, but they are by their language, and just like RFRA, they apply far beyond what anyone is trying to sell it as. And in fact they will open the door, if passed, to being able to say ‘I’m not going to serve you based on race, and I’m not going to serve you based on gender, and I’m certainly not going to serve you if you don’t have a head covering on your head and I’m not going to serve you because, frankly, I understand you had an abortion. So there are, this is Pandora’s Box that is being opened and it’s an evil Pandora’s Box. We’ve seen this before. We know how public accommodation laws were needed in the South and they are needed even more now. And so there’s no way the Supreme Court will rule on that aspect, but that will be the next wave of lawsuits.
JMP: Professor Hamilton thank you so much for taking time out of your very busy day to talk with us about this amazingly important topic and I hope to have you back on because as you said this is not a fight that is ending anytime soon and if anything will only get amplified and become more into focus after June. So thank you so much.
MH: Thank you for having me.
Thank you for listening to RJ Court Watch, a legal podcast produced by Rewire. For more of our coverage on reproductive rights and justice issues please go to www.rhrealitycheck.org.