The SCOTUS Decision and the ‘Religious Liberty’ Scam

The SCOTUS Decision and the ‘Religious Liberty’ Scam June 15, 2020

Hi and welcome back! I wanted to make a brief segue here. We’ll pick up This Present Darkness tomorrow instead! Today, the Supreme Court of the United States (SCOTUS) handed down its decision in the landmark case begun by Altitude Express, Inc. v. Zarda. In this case, SCOTUS decided for LGBT people who’d been fired for their orientation or gender identity. As you might expect, the right-wing-nutjob (RWNJ) contingent on social media is exploding over this decision. And they should be upset: SCOTUS just dealt a deathblow to their entire scam of religious liberty. However, one blogger on a conservative site has realized what a silly idea it was to campaign against LGBT rights on the basis of religious liberty. She thinks they’d have succeeded if they’d gone with secular arguments. Today, let me show you why that wouldn’t have worked either.

SCOTUS building
(Jeff Kubina, CC-SA.)

(A few previous posts about the scam of religious liberty: God’s Club and the ‘Religious Liberty’ Scam; Mark Galli’s Editorial About Obergefell; False Persecution and Dogwhistles from Mike Huckabee; Christian Dominance is Ending (But Not Without a Fight). Also, I would like to express my most sincere thanks to John Pieret for providing commentary and sources for much of what informed today’s post. Also also, just as a clarification, I summarize all the religious wingnuts fighting against LGBT rights as ‘the Bigotry Brigade.’)

Here’s What Happened.

In 2010, a skydiving company called Altitude Express fired Donald Zarda. The firing occurred right after he told a female customer that he was gay (to help her feel more comfortable with being strapped to a man for her skydiving jump). So he sued on the basis of sexual discrimination.

The case worked its way up through the court system for years. Even after Zarda died in 2014, his family continued to fight in his name.

In 2015, the case got entwined with a legal squabble over just what Title VII would cover. Title VII is part of the 1964 Civil Rights Act. It forbids discrimination based on, among a lot of other fixed traits, sex. We’ll talk more about this part in a few minutes. Just know that in 2015, the Equal Employment Opportunity Commission (EEOC) decided that sexual orientation fell under Title VII. That became the main point of contention in the Zarda case.

Altitude Express appealed to SCOTUS in 2018. SCOTUS decided to hear their case, consolidating it with another case (Bostock v. Clayton County, Georgia) dealing with a very similar situation. In 2019, they added a third case (R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission) that involved trans people. (Just FYI, those discussing the whole decision often just call it Bostock.)

Today, June 15, 2020, SCOTUS made a ruling covering all three cases:

Yes, Title VII protections do indeed extend to gay and trans people.

So yes, it’s illegal to fire someone simply for being gay or trans.

Why Bigots Have Freaked Out.

The ruling also will have seismic implications for religious liberty.

Russell Moore, SBC leader
(WhatAbuse of Faith” scandal?)

Obviously, this decision completely undercuts religious zealots’ entire scam of religious liberty. In this scam, culture warriors piously declare that in order to practice their religion properly, they simply must be allowed to discriminate against the people they’ve decided as a tribe to pick on, harass, and dehumanize.

If these zealots were forced by law to extend to these groups the same considerations and treatment they’d give anybody else, then they would, they sanctimoniously whine to us, be violating their entire sense of religious identity. In effect, these culture warriors argue that in order to practice their flavor of Christianity, the law must grant them exceptions to anti-discrimination measures.

Really, this line of reasoning represents the most baldfaced, obviously self-serving load of horsewallop imaginable.

All the same, it’s been the driving argument behind most of these culture-warriors’ grabs for others’ rights. Back in 2015, Kim Davis and her bumbling team of culture-warrior lawyers utilized similar reasoning during her infamous refusal to do her job as a county clerk.

So yes, absolutely, culture warriors recognize very well that this case has some very serious repercussions on their future. Going forward, it’ll be a little harder for these bigots to hurt and humiliate the people they despise. As far as they’re concerned, the sky really is falling.

PS: They’re especially angry that Neil Gorsuch, a conservative, decided in favor of LGBT people’s human rights. Someone wanna tell them about John E. Jones III, the federal judge Dubya appointed who decided against culture warriors in Dover and an equal-marriage case?

National Review’s Specific Freakout.

I haven’t seen that much action so far today from most conservative sites. Town Hall managed one post about the case. And that one post was just a bare-bones description of it, lacking any sentiment either way (though its comments are hoppin’ and predictably wingnutty). Stand to Reason hasn’t managed any yet at all. I saw one post on Christianity Today too, but it was an update to a bare-bones post from what seems like last year.

I’m sure that later, the usual wingnuts will all have things to say, but so far there’s not much from the their official thought leaders.

But over on the super-conservative National Review, I count at least SIX EIGHT posts there about the SCOTUS decision today, with many more written much earlier.

Y’all, these folks are losing their minds in the most hilarious ways imaginable.

Oops, They Took the Wrong Track Here!

One interesting post on National Review comes to us from Alexandra DeSanctis. It might form part of the Bigotry Brigade’s next attack on human rights — sort of.

In DeSanctis’ view, the Bigotry Brigade might have fared better if it hadn’t expressed its desire to discriminate in such starkly-religious terms:

Meanwhile, today’s ruling showcases the wisdom of what Ryan Anderson wrote in the Spring 2020 issue of National Affairs. He argued, quite convincingly, that religious Americans have done ourselves a disservice by fighting cultural and public-policy battles about marriage, sex, and gender in terms of religious freedom rather than in terms of the substance of each issue and the reasoning behind our views.

She goes on to claim that it might not have been such a great idea to use “one’s religious beliefs as a ‘license to discriminate.'” As she puts it:

It is impossible, of course, to predict how outcomes might’ve been different given a different public-policy strategy, but it’s easy to imagine that Americans with a natural-law understanding of sex and the human person would have been much better served by spending all these years arguing for why acting on our beliefs isn’t discrimination or bigotry at all, rather than angling for religious carve-outs that appear to concede that we are bigots looking for special treatment.

Yeah, it’d super-suck if people began to see them that way, right? Especially if their own members began to wonder if they were actually the baddies in the discrimination game.

Hair-Splitting (Won’t Fool SCOTUS).

However, DeSanctis makes three humongous errors here.

Her first error involves hair-splitting: making a distinction without substance.

First, there simply does not exist any number of people who want the legal power to discriminate against LGBT people who are not also religious zealots. This contrived, ginned-up culture war has always been a product of right-wing nutjobs’ desires for dominion over all.

When we run into someone who thinks discrimination should be something they’re allowed to do, that person is inevitably always a religious culture warrior. Period. I’ve sure never encountered a single person outside that tribe who wants to enshrine discrimination into law.

Christian zealots began this fight.

In fact, Christian zealots have always been the only people fighting against human rights and civil liberties.

The Second Problem,

Second, removing overtly religious language from culture-warriors’ arguments doesn’t erase that at heart this is about a purely religious culture war

Years ago, Creationists tried to rebrand themselves as “intelligent design proponents.” The results backfired magnificently on them. In trial during the Dover case, those speaking for real science and science teachers revealed that the rebranding was nothing more than a name change. Meanwhile, the substance of Creationism remained absolutely in place, just with the addition of a coy eyelash-flutter about exactly who their mysterious “Designer” might be. The people backing “intelligent design” knew exactly who the title meant, and behind closed doors they weren’t shy about saying so.

Similarly, here DeSanctis puts forth the idea that the Bigotry Brigade needs to lean really hard on this notion of “natural law.”

The problem, of course, is that “natural law” is a purely religious concept. Natural law means, roughly, “we’re punting to Mother Nature as the reason for our nonsense because we can’t say Jesus told us to act like twits because that’s obviously ridiculous.” By pretending there’s some higher-than set of rules that they’re beholden to that supersede civil law, they hope to gain credibility that they couldn’t gain otherwise.

If we called this idea “Cuz Jesus Said So Rules,” the details of it don’t change even a tiny bit, and neither does the attempted justification for them. They’re just substituting “natural” in place of “religious,” and hoping it’ll fool everyone else.

And the Third Problem: That “Sort Of” Thing I Mentioned.

Third, the Bigotry Brigade’s tried this tactic many times, and it’s almost always failed them spectacularly.

DeSanctis acts like it’s some new and remarkable thing to suggest that the Bigotry Brigade try to strip overtly religious language from their arguments. She whines that the Bigotry Brigade has wasted years on religious liberty when they should have been “arguing for why acting on our beliefs isn’t discrimination or bigotry at all.”

In reality, John Pieret reminds us that they’ve tried to do that — many times:

DeSanctis (and Ryan Anderson before her) seem to forget that bigots did argue natural law in many, if not most, of the 65± lower Federal and state court decisions before Obergefell. They lost every one of those cases but one.

Obergefell went that route almost entirely. Bigots argued the case with everything except direct expressions of religious wingnuttery. They attacked with almost nothing but secular-sounding rhetoric. That was bigots’ operating strategy for years. (In 2014, one judge even snarked the ultra-fundagelical governor of Idaho, Butch Otter, in a similar case for insinuating that marriage equality for same-sex couples would “drive opposite-sex couples to sex, drugs, and rock-and-roll.” It’s on p. 21 of that link.)

And, too, the bigots involved with Obergefell presented witnesses for their attack (<– updated post) who conscientiously abstained from overtly religious language — at least in public and in court, when they were around tribal enemies. In their own spaces, those same witnesses phrased their opposition to human rights in overtly religious terms. And they talked like that because religion had overtly shaped their opposition to human rights. 

The Bigotry Brigade only hid that motivation when they knew that appealing to religion would actively harm their case.

Arguing in Bad Faith.

Unfortunately, DeSanctis makes the same mistake earlier bigots have before her in assuming that her tribal enemies are idiots. They are, in fact, “angling for religious carve-outs,” and they are, in fact, “bigots looking for special treatment.” The reason their tactics to date all “appear to concede” that point is obvious to everyone except them.

Changing their tactics wouldn’t do anything at all, because the heart of those tactics will always be the same:

  1. A small subsection of religious bigots have picked out a few demographic groups to pick on because they’re living challenges to those bigots’ sense of dominance.
  2. Jesus, remarkably, says he’ll get super-big-mad at these bigots if they don’t discriminate against those groups.
  3. Therefore, these bigots should be legally allowed to humiliate and dehumanize those groups.
  4. It’s just orders from the top, y’all. Not the bigots’ choice. Really. Jesus said so, that’s all!
  5. The many Christians who say otherwise aren’t Jesus-ing correctly. Shut up.
  6. OMG! Everyone needs to tolerate these bigots’ intolerance! Everyone’s so meeeeean to them jus’ fer bein’ KRISCHIN!

It’s so incredibly obvious and self-serving, what DeSanctis’ post suggests. Her desired effects on other people’s rights doesn’t matter to her. The fact that millions of American Christians get along just fine with LGBT rights doesn’t matter either. (Nor do these two things matter to Creationists, her pals in the culture wars, nor to anti-abortion crusaders.)

What does matter: these anti-LGBT bigots have this vague inkling of understanding that it’s not okay to use religious arguments in a secular context of law and civil rights.

So they’re lying about exactly what their culture war against LGBT people really involves, all in hopes that everyone will go Oh, okay, gosh, this isn’t a 100% religious argument at all. Welp, guess they should get what they want!

Shrinking Holes for Dominance-Minded Bigots.

This decision obviously wasn’t perfect. Indeed, I’ve seen an analysis of it that suggests that some parts of the decision might constitute “landmines” that could cause trouble later. Just for my own part, since the law allows for religious exemptions I already expect to see a huge mountain of bigoted business owners trying to claim those exemptions to allow them to hurt and humiliate their tribal enemies — which will only undercut further any of these bigots’ claims that religion has nothing to do with their desire to discriminate.

However, most analyses I’ve read today seem overall to be satisfied with how the final opinion went and why it went that way.

Culture-warriors might freak out, but they freaked out back when Obergefell was decided too, and for equally dumb reasons. Back then, it was OMG those meanies have redefined mawwidge! But in reality, the judges only confirmed that marriage was about a consensual joining of two adults for their own purposes. Similarly, here the judges affirmed that sexual orientation and gender identity can’t really exist outside of the context of sex and gender, and thus both merit employment protection under Title VII law.

Just as Creationists keep creeping into smaller and smaller holes with their goddidit approach, the Bigotry Brigade seems to be hiding within smaller and smaller loopholes of the law to practice their cruelty and wickedness.

The Real Death Knell of Bigotry.

Court cases like this one will spell the real death knell of bigotry. I’ve seen some convincing data suggesting that Americans’ attitudes change once the law forces them to accept new expansions of human rights and civil liberties. Attitudes about mixed-race marriages, for example, underwent huge changes after the Loving v. Virginia case finally struck down laws banning them.

What these laws might accomplish more than anything else is allowing previously-discriminated-against groups to live more openly and mingle with the group that once tormented them without mercy — and to take legal action if those folks try that again.

And that legal power is where acceptance begins and behavior changes.

It’s All About Accountability.

We see the same phenomenon on display around no-fault divorce. When women can seek divorces without their husbands’ approval or allowance, male-on-female partner violence occurs at far smaller rates. (I’ve also seen links between communities that frown on divorce and this form of violence.)

When a dominant tyrant knows his victim can take action and hold him truly accountable, guess what? He behaves better. And I’m betting that same thing happens on the grander scale too.

So when Brett Kavanaugh whines that the fight against bigotry should have been fought in Congress, not SCOTUS, he’s being either an idiot or deliberately obtuse. The facts do not support him. Civil rights and human liberty wins happen in the courts, not in the legislative branches of government.

But he knows he can’t win in the courts. And hopefully, the Bigotry Brigade’s slowly learning that lesson too.

NEXT UP: This Present Darkness chat post! Then, we cover another attempt to dehumanize the tribe’s enemies.


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About Captain Cassidy
Captain Cassidy grew up fervently Catholic, converted to the SBC in her teens, and became a Pentecostal shortly afterward. She even volunteered in church (choir, Sunday School) and married an aspiring preacher! But then--record scratch!--she brought everything to a screeching halt when she deconverted in her mid-20s. That was 25 years ago. Now a comfortable None, she blogs on Roll to Disbelieve about psychology, pop culture, politics, relationships, cats, gaming, and more--and where they all intersect with religion. She lives with an adored and adoring husband named Mr. Captain and a sweet, squawky orange tabby cat named Princess Bother Pretty Toes. At any given time, she's running out of bookcase space. You can read more about the author here.

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