Every year on January 16th, the United States marks Religious Freedom Day. Coming as it does in the immediate wake of the Charlie Hebdo massacre in Paris, the timing could not be better for Americans to commemorate this day, as President Obama declared, "with events and activities that teach us about this critical foundation of our Nation's liberty, and that show us how we can protect it for future generations at home and around the world."
As it turns out, some of Obama's fiercest critics on the right are helping do just that. In "Blasphemy for Me, But Not for Thee," Matthew Continetti defended the "the right to offend" and accused liberals of failing to support it. National Review editor Rich Lowry offered a corollary in "The Crisis of Free Speech," proclaiming that there is no right not to be offended. In so doing, both men have done a great public service by highlighting the shameful hypocrisy of the phony "religious liberty" crusade now being waged by the Republican Party and its religious right allies.
Lowry, whose primary claim to fame was "sitting up straighter" in response to Sarah Palin's "starbursts," put his latest epiphany this way:
Domestically, we should foster a robust culture of free speech that forswears the insidious logic of "your right to free speech ends where my right not to be offended begins."
Unfortunately for Lowry and his fellow travelers, that "insidious logic" is at the very center of the campaign by the religious freedom frauds of the Republican Party.
Consider this recent statement by 2016 GOP White House hopeful Jeb Bush on a recent court decision recognizing marriage equality in Florida. Bush, who 20 years ago declared that "sodomy be elevated to the same constitutional status as race and religion," tried out a new formula earlier this month:
"I hope that we can show respect for the good people on all sides of the gay and lesbian marriage issue - including couples making lifetime commitments to each other who are seeking greater legal protections and those of us who believe marriage is a sacrament and want to safeguard religious liberty."
But Bush's statement, which one Republican praised as "a new way to talk to about same-sex marriage," flies in the face of the Lowry standard. It is also antithetical to the American concept of religious liberty enshrined in the First Amendment. The Constitution's is a negative liberty. Congress (and, by application of the 14th Amendment's application in many cases, the states) is prevented from doing something:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
While Americans' freedom of religion is constituted protected from encroachment by the government, there is no concomitant right to abridge others freedoms of speech or religion. Many of those now enjoying Charlie Hebdo's cartoons of the prophet Mohammed also protest a supposed "war on Christmas" or demanded prohibitions on the likes of Robert Mapplethorpe photography or Andres Serrano's Piss Christ. With only very narrow exceptions for public safety and malicious libel, Americans' free speech rights are not subject to the veto of either their government or other Americans.
Yet the simultaneous claims of "freedom from" and "freedom to" is at the center of the religious liberty battles now being waged on the right. I may be offended by your decision to have an abortion or marry your same-sex partner, but my discomfort is not the basis of my right to prevent from doing either.
Consider, for example, laws under consideration in Texas, Florida and Wyoming that would allow county clerks to refuse to perform wedding for gay couples. As ThinkProgress reported, a Texas legislator is turning to nullification to protect some of its residents from potential offense by others' exercise of their constitutional rights:
State Rep. Cecil Bell Jr. (R) has introduced HB 623, the "Texas Preservation of Sovereignty and Marriage Act." It would prohibit the use of taxpayer funds (including governmental salaries) for the licensing of same-sex marriage, and any employee who violates this restriction would no longer be allowed to collect "a salary, pension, or other employee benefit."
The bill also prohibits public funding to "enforce a court order" requiring the issuance of a same-sex marriage license. In other words, if a federal court ruled that it was unconstitutional to deny same-sex couples marriage licenses, this law would still prohibit the only people empowered to issue those licenses from doing so.
The right's religious liberty sham is even more shocking when it comes to abortion and women's reproductive rights. The Party supposedly dedicated to the sanctity of "the doctor-patient relationship" demands Congress and the states substitute their moral judgment instead. As I noted last February:
The GOP mantra about protecting "doctor-patient" isn't just demagoguery of the basest kind. It is a cruel and vicious hoax. Even as the nation's abortion rate has dropped to a 40 year low, dozens of draconian restrictions enacted in Republican-controlled states are mandating that physicians lie to their patients, perform unnecessary procedures in needlessly regulated facilities and even withhold potentially life-saving care. Now, Republicans aren't just standing over the shoulders of American doctors who put their patients' health first; they want to put them in prison, too.
With this unprecedented conservative expansion of religious liberty, Republican lawmakers are mandating medical malpractice and abridging free speech rights. Doctors must be forced to tell their patients some things and prevented from saying others. In some states, physicians must warn women of mythical abortion-breast cancer links and/or supposed "post-abortion syndrome." Some states are seeking to provide legal immunity to doctors who refuse to inform their patients about serious fetal disorders. Others state will make it a crime for doctors and patients alike when fetuses with Downs' Syndrome or other grave genetic conditions are aborted. Even life-saving procedures are being banned in states like Ohio. (As the Daily Show recently highlighted, Alabama may not have resources to provide legal counsel for indigent defendants, but lawyers for fetuses are no problem.) Apparently, some Americans' right not to be offended trumps the health and safety of the mother and the free speech rights of her doctor.
Unfortunately, the Supreme Court has aided and abetted the cynical reinvention of religious liberty. In the Hobby Lobby case, the Supreme Court ruled that the Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from requiring privately-held businesses to provide birth control as part of their workers' health insurance coverage. Despite their victory in Hobby Lobby and other cases involving sectarian prayer at town council meetings, publicly-funded vouchers for religious schools and safety zones around abortion clinics, the Republicans' best and brightest warned of the grave and gathering threat to religious liberty:
At Liberty University in April, Texas Senator Ted Cruz cautioned, "Religious liberty has never been more under attack." Ben Sasse, the Nebraska GOP Senate candidate, went even further in declaring that "the free exercise of religion is co-equal to our right to life," adding "government cannot force citizens to violate their religious beliefs under any circumstances." Competing with Cruz in the 2016 Falwell primary, Louisiana Governor Bobby Jindal used his Liberty University commencement address to similarly warn his audience. "Make no mistake," Jindal said, "The war over religious liberty is the war over free speech and without the first there is no such thing as the second."
Unsurprisingly, Rich Lowry was with Jindal and Cruz. You can read about it in his column, "Hobby Lobby and the War on Religious Liberty."
Of course, the question has always been whose religious liberty? (Or, to paraphrase Matthew Continetti, "religious liberty for me, not thee.") As Justice Ginsburg warned in her Hobby Lobby dissent, the Court's wasn't just a "decision of startling breadth," one which will be the harbinger of even more sweeping faith-based assaults on civil rights than its opponents fear and the rationale for minority religious rights its supporters will doubtless oppose. When a Scientologist-owned business refuses to cover psychiatric care or when a Muslim firm decides it cannot abide by paid maternal leave laws for single mothers, the religious liberty crowd on the right will be silent. Or not. After all, when Muslim organizations like their Christian counterparts sought to open prayer centers in commercial districts in Minnesota and Georgia, the anti-Sharia law extremists protested. Just as they did to prevent the building of a mosque in Murfreesboro, Tennessee and the so-called "Ground Zero" mosque in lower Manhattan. All because, like Rich Lowry, they were offended and demanded "special sensitivity."
As President Obama proclaimed in recognition of Religious Freedom Day on Friday:
The First Amendment prohibits the Government from establishing religion. It protects the right of every person to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and fear. This religious freedom allows faith to flourish, and our Union is stronger because a vast array of religious communities coexist peacefully with mutual respect for one another.
And when it comes to the freedoms of religion and speech, in the United States it is not the case--and must never be the case--that some religions are more equal than others. Even if some people find that prospect offensive. It's nice to know that conservatives and liberals can agree on this point, if only for a day.