Nel's New Day

April 6, 2015

The ‘Cake Wars’

lego cakeThe second decade of the twenty-first century may go down in history as the time of the “cake wars”: fundamentalist Christians think that the only problem with declaring unfettered religious freedom in the business world is that same-sex couples would be denied wedding cakes. And maybe a few flowers and a bit of pizza too. The whole rumor started after Sweet Cakes by Melissa, a Gresham (OR) bakery, refused to fill an order for a wedding cake from a lesbian couple. Although the couple did not sue, they filed a complaint with the state of Oregon. An administrative law judge declared that Sweet Cakes’ action was discriminatory and allowed the Bureau of Labor and Industries to impose a fine of up to $150,000.

The firestorm swept across the country after Indiana Gov. Mike Pence signed a bill into law that allowed anyone to deny any service or product to anyone else because of declared religious beliefs. The final section of the law stated that “there is not a higher protection offered by the state than the person’s protection of a person’s right to religious belief.”

Hundreds of business leaders, sports figures, celebrities, Christian groups, and almost a dozen cities and states—even NACAR–threatened to boycott Indiana because of the new law. The religious right, however, fought back. “Cake is speech,” Indiana pastor Tim Overton said on NPR. He followed that up by saying that no one would use any Religious Freedom Restoration Act (RFRA) to deny anyone anything except flowers and wedding cakes. Just because people can do it, they probably wouldn’t.

Lee's graphicWorse than this mistaken belief is the downright misconceptions of RFRAs throughout the nation. The federal law was passed for religious minorities in 1993 after an American Indian was fired because of his religious use of peyote. After fundamentalist Christians felt threatened by marriage equality, 19 states jumped on the bandwagon with state RFRAs. Although conservatives claimed that Indiana’s law was patterned after the federal one, it granted far more rights on the basis of “religious liberty.” The law that Pence originally granted “religious rights” to any person or company if those religious objectors had a “substantial ownership,” not even majority control. Also, the government does not need to be a party to case, geometrically increasing the number of lawsuits possible. When some legislators tried to add an amendment to block the law’s use for discrimination, the majority refused, acknowledging that they wanted to use it for discrimination, allowing majority religions the control.

Other conservatives argued that the new Indiana law was no problem because the state had no protections for LGBT people. Although they are correct about the state, various municipalities throughout Indiana had anti-discrimination ordinances which were then negated by the new state law.

Exactly one week after Pence signed the law and subsequently declared that he didn’t want to change the law, he signed a new bill last week that stopped people from using the first law from discriminating to against LGBT people. The fix to Indiana’s discriminatory overreach, designed to mollify protesters, was still not satisfactory, at least to some businesses. “Our position is that this ‘fix’ is insufficient,” Angie’s List CEO Bill Oesterle said. “There was not a repeal of RFRA and no end to discrimination of homosexuals in Indiana. Employers in most of the state of Indiana can fire a person simply for being Lesbian, Gay, Bisexual, Transgender or Questioning. That’s just not right and that’s the real issue here.” That’s from a man who led the campaign of Pence’s GOP predecessor.

After the Indiana fiasco, Georgia dropped its discrimination bill—for now. Montana, Utah, West Virginia, and Wyoming also defeated RFRAs.

Arkansas passed a watered down religious belief bill that lacks non-discrimination protections. It can still be used against people of color, minority faiths, women, and anyone else with references in the bible. It is also binding for the entire state because Arkansas passed a law in February that prohibits anti-discrimination ordinances to protect LGBT people in any of the state’s municipalities.

North Carolina is lukewarm about a bill that goes farther than Indiana’s law. Unlike 17 RFRAs in the country, it states that obeying the law is a “burden” to their religious liberty, not a “substantial burden.” Even Arkansas included the term “substantial.” North Carolina added that there must be a “governmental interest of the highest magnitude” to justify overriding religious beliefs. Unworried about the bill’s effect on people, state House Speaker Tim Moore said he wants to know how such a law would “improve North Carolina’s brand.” He also wants “to make sure we don’t harm our brand.”

Eight other states are considering the creation or alteration of RFRAs.

Before the uproar about the Indiana law, most people believed that LGBT people faced no discrimination in lodging, renting, hiring, etc. across the nation. Indiana’s law forced that information out into the open. Now their only justification is to say that those who face discrimination are not “tolerant” or that LGBT people make a “choice” to face this discrimination.

Conservatives who wail about their lack of rights try to punish pro-LGBT businesses.  Former Arizona TV evangelist Joshua Feuerstein called Cut the Cake in Longwood (FL) to order a cake that stated, “We do not support gay marriage.” Bakery owner Sharon Haller thought it was an April Fool’s joke and told him no. Feuerstein posted a recording of the telephone call on YouTube, and Haller received death threats. Her business came to a halt until people posted positive comments on her Facebook page. Haller could prosecute Feuerstein. Sarasota lawyer Andrea Flynn Mogensen said Florida law requires all parties to consent before recording a telephone conversation. Violation is a third-degree felony punishable by up to five years in prison.

The Colorado Department of Regulatory Agencies determined that a Denver bakery did nothing wrong when the owner refused to write “God hates gays” on a cake because the message on the cakes would be “derogatory.” Bill Jack wanted a cake showing two groomsmen with a red “x” over them and messages about homosexuality being a sin. There was no discrimination because Silva would have responded to any other customer in the same way.

Bigotry is becoming a cottage industry across the nation. Memories Pizza in Walkerton announced that it would not cater any gay weddings, despite the fact that they have never been asked to do so. The owner garnered not only the free publicity that she wanted but also a large donation for a GoFundMe account. The irony is that half the $842,500 that she received will go to the government in the form of taxes; conservatives who hate the government are giving it a nice little chunk of money. A florist in Washington, fined $1,000 for not serving a lesbian couple, has received $90,000.

David Brooks, columnist for the supposedly liberal New York Times, criticized LGBT people for not using politeness and “gentle persuasion” until society decides to grant same-sex rights. Syndicated columnist Mark Shields agreed with Brooks on PBS News Hour last Friday on a panel that has featured contrasting viewpoints before the Koch brothers started massive funding of public television. They agreed it ws acceptable to deny services, employment, etc.—in short, fairness—to LGBT people until society voluntarily changes its mind with no impetus. Shields said that the question of religious liberty has been “lost” in the debate over gay rights. Michael Hulshof-Schmidt wrote, “[This position] puts the blame on the victims, wondering why we have to push so hard to make ourselves heard.”

Brooks and Shields forgot to ask the evangelical Christians to develop this “politeness.” In fact, fundamentalists are more of a minority in approval ratings than the LGBT community. In a recent poll of likely voters, 53 percent responded favorably to LGBT people whereas only 42 percent had a favorable view of evangelical Christians. Eighteen percent had unfavorable views of LGBT people, and 28 percent were negative toward evangelical Christians.

 

lee.s picture 2People who want to wait until religious people are voluntarily willing to give LGBT rights neglect history. The people who sat waiting for service at Woolworth’s 55 years ago didn’t want a sandwich: they wanted fairness and equality. Approval rating of biracial marriage when it was legalized in 1967 was 20 percent compared to the 59 percent approval of same-sex marriage now when it’s still not recognized in the entire United States.

Fed up with his religion being defined by hate, Rev. Drew Ludwig, pastor at Buffalo’s (NY) Lafayette Avenue Presbyterian Church, has organized the “Christian Cake Mob.” The group bakes cupcakes and hands them out near Allentown’s gay bars. People from all faiths are chipping into the effort that Ludwig posted on social media. Ludwig said he won’t be discriminating because they will also give cupcakes to straight people.

cupcakeWhen is a cake not just a cake? When it’s used as a symbol to refuse service to anyone.

August 3, 2014

Hobby Lobby Won’t Go Away

The memory of most Supreme Court rulings fade fairly fast, but the Hobby Lobby decision is still in the media more than a month after the Supreme Court eroded women’s reproductive rights by declaring that corporations have religious rights. A prediction that the ruling might lead to dire circumstances is beginning to bear fruit:.

The Satanic Temple is seeking religious exemption from laws restricting access to abortions, which violate its members’ religious freedom. The basis for their argument is Alito’s statement that religious beliefs can trump scientific fact. When the Religious Freedom Restoration Act (RFRA) was passed in the early 1990s, far-right Christians were afraid that women’s rights to plan their families might be considered a matter of religious conscience.” The Supreme Court has thrown the door open for this argument.

People shouldn’t have to pay student loans. Interest in the Bible is usury and considered sinful, and all debts must be forgiven every few years in the “Year of Jubilee,” according to the same source. Christians following the Bible shouldn’t be forced to pay interest or return the money after the few years.

Members of the Alabama Public Service Commission have called on the public to pray to God for protection from the new EPA limits on carbon emissions from coal-fired power plants. Member-elect Chip Beeker asked, “Who has the right to take what God’s given a state?” They might be able to sue for relief under the Hobby Lobby sincerely-held religious belief. Arguments from religious beliefs on the opposite side could be that God wants people to be healthy.

The IRS is required to enforce rules banning pastors from endorsing candidates from the pulpit after the Freedom from Religion Foundation won its lawsuit. Although advocating for candidates in church is against the law, the IRS wasn’t stopping the practice. Unfortunately, the court decision in favor of FFRF won’t go into effect immediately because of a current moratorium on any IRS investigations of any tax-exempt entities. Pastors could avoid the law by claiming that churches are only using their “sincerely-held” religious beliefs to campaign for—or against—candidates.

After President Obama announced that he was requiring federal contractors to end job discrimination against LGBT people, religiously affiliated institutions came out of the woodwork, asking for religious exemptions. President Obama declared no exemptions except for the religious exemptions that George W. Bush had earlier allowed. Bush hadn’t included corporations in his exemptions. Yet the president’s order could be overturned for “religious” for-profit corporations because of Hobby Lobby.

Sara Hellwege is suing the Tampa Family Health Centers (TFHC) for not giving her a job interview after she told them that she would not prescribe any hormonal contraction. She claims that the women’s clinic is discriminating against her on the basis of her religion. Hellwegg is demanding $400,000 in damages, $75,000 in fines, and forfeiture of all federal funding until the company stops discrimination—evidently against people who won’t perform the job’s duties.

A  lawsuit on behalf of two prisoners at Guantanamo Bay claims that a definition of corporations as people with religious rights extends to Gitmo detainees. Ahmed Rabbani of Pakistan and Emad Hassan of Yemen were prevented from attending communal Ramadan prayer because they were on a hunger strike. Two earlier D.C. Circuit decisions had ruled that Guantanamo Bay detainees are not “persons” under RFRA protection. If Hobby Lobby can exercise religious beliefs under RFRA, then so can these two men, according to their lawyers.

The U.S. Department of Education has continued to grant exemptions to “Christian” universities, allowing them to discriminate against transgender students. According to Title IX, schools cannot receive federal funds, including public student loans and Pell grants, if they discriminate against transgender and gender-nonconforming students—unless they’re religious like George Fox University, Simpson University, and Spring Arbor University. Simpson, for example, cannot “support or encourage” an individual who lives in “conflict with biblical principles.” Spring Arbor has been given permission to discriminate against unwed mothers and punish students for dating someone of the same gender. For-profit corporations will surely want the same “religious” rights as these universities.

These are just a few of the “unintended consequences” that Justice Ruth Bader Ginsburg referred to in her dissenting opinion. Speaking about the case in an interview with Katie Couric, Ginsburg said that the five men who ruled against women’s rights have a “blind spot” about women’s issues and that they didn’t understand “the ramifications of their decision.” Anyone who considers that these consequences are impossible should consider that people said the same thing about a favorable ruling for-profit corporations in Hobby Lobby.

Justice Samuel Alito’s ruling that the Hobby Lobby is a “person” comes from the 1871 Dictionary Act that tried to simplify constitutional language. The statement that such terms as corporations and companies come under the umbrella of “person” was limited by the statement “unless the context indicates otherwise.” Alito’s ruling combined this act with RFRA, but the exemptions in the RFRA are defined as one that “holds itself out as a religious organization.” Hobby Lobby is not a religious organization: it sells crafts.

RFRA was legislated to protect employees, not employers. It was initiated because of an employer’s prejudice against a non-Christian religion. SCOTUS turned the protection on its head, protecting Christian employers against all employees Christian and non-Christian. An actual human person doesn’t have the ability or right to force everyone around him to abide by the restrictions of his religion, even if those people work for him. but it seems that Hobby Lobby does. By allowing closely held corporations to take on a religious identity, Alito has allowed their owners to impose their religions on the people who work for them.

Ginsburg wrote in her Hobby Lobby dissent:

“Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community.”

The Hobby Lobby decision is more about ensuring that women will maintain a subservient position in U.S. culture as summarized in Erick Erickson’s tweet: “My religion trumps your ‘right’ to employer subsidized consequence free sex.” The “consequence” of “free sex” for women can be loss of jobs, loss of education, loss of financial security—in short, loss of everything. Even Hobby Lobby fired a pregnant woman. Men, on the other hand, have no consequence from “free sex.”

Although contraception could put women on a more equal footing with men, the Supreme Court forces many women to buy their own contraception. Hobby Lobby objected to only four types of contraception, but the five male justices “protected” corporations from having insurance for all 20 forms of FDA-approved contraception. When men have “free sex” and women have to pay for it, men retain their power over women.

After the Hobby Lobby decision, male conservatives spent a great deal of time salivating about the thought of all those “slutty” women who were restricted in their access of contraception. Sen. Mike Lee (R-UT) complained about women using birth control to protect themselves from “recreational behavior.”

Not one of these misogynists mentioned protecting women from uterine cancer or ovarian cysts or anemia or endometriosis or other health problems needing hormonal medication.

As Ginsburg stated, Hobby Lobby begins the practice of preferring some religions over others. Now justices will be “evaluating the relative merits of differing religious claims” and “approving some religious claims while deeming others unworthy of accommodations.” The website for The Becket Fund shows a current list of litigants already taking advantage of Hobby Lobby. These cases have a high cost—women paying a minimum of millions for contraception and taxpayers paying billions for court cases.

The only ray of hope is that Justice Alito decided the case on the basis of a Congressional statute. If the ruling had been constitutional, it could be changed only by a constitutional amendment. As it stands, Congress can fix it by defining “person” and “exercise of religion” in RFRA. With our current dysfunctional and religious-conservative Congress, this ray is only a glimmer.

Sens. Patty Murry (D-WA) and Mark Udall (D-CO) introduced a bill called “Not My Bosses’ Business Act” to prevent for-profit businesses from dropping birth control coverage. Republicans blocked the bill with only GOP Sens. Lisa Murkowski (AK), Mark Kirk (IL), and Susan Collins (ME) voting to move the bill forward. The American Congress of Obstetricians and Gynecologists supported the bill to override the Hobby Lobby decision.  A professional physicians’ association with more than 55,000 members, the group represents 90 percent of board-certified U.S. gynecologists. Their statement explained that “a woman’s boss has no role to play in her personal health care decisions.”

Wooing women with obfuscation, the GOP plans to sponsor a bill stating “no employer can block any employee from legal access to her FDA-approved contraceptives.” Birth control is already legal: Hobby Lobby is about the right of for-profit companies to deny contraception through its insurance.  With the federal government not moving ahead on women’s reproductive rights, states may begin initiating nullification laws against the Hobby Lobby decision.

In the future, a more reasonable Congress might decide that women should have equality in the United States. It’s better than waiting for a constitutional amendment like Citizens United demands.

July 8, 2014

SCOTUS Makes Hobby Lobby Worse

Crazy is the best word to describe last week. During the same week the country celebrated the Fourth of July with noisy fireworks and smoky barbecue grills, five U.S. Supreme Court justices signed away religious rights for a majority of people in the United States. The fourth day of July is an annual commemoration of the signing of the U.S. Constitution, a document that delineates the freedoms of people in the nation. The First Amendment separates church and state, declaring that people have freedom of religion among other rights.

On June 30—last week—the five justices gave corporations religious rights by ruling in favor of a privately-held corporation called Hobby Lobby. The decision gives the owners the ability to determine how doctors can provide medical attention to the company’s women employees. Using their personal religious beliefs, Hobby Lobby’s owners, the Green family, objected to two medications, Plan B and Ella, and two different contraceptive IUDs because they have the mistaken belief that these produce abortions.

In fact, an abortion is the termination of a pregnancy. These medications and one IUD actually stop ovulation. There is no death of an embryo because there is no embryo. Trillions of fertilized eggs don’t turn into pregnancies because this requires a women’s uterus. The American College of Obstetricians and Gynecologists filed an amicus brief that stated, “There is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy.” The other IUD keeps the fertilized egg from being implanted in the uterus.

The five conservative justices were very clear, however, that this information didn’t matter because it was Hobby Lobby’s “belief” that was at stake. Thus the justices ruled that fact has no value in its decision

The Green family opposed only these four contraceptive methods, but the day after the initial ruling, the five justices gave the Greens another gift. A week ago today, the five justices said the ruling covered all 20 forms of contraception protected through the Affordable Care Act (ACA).

That’s not all that Hobby Lobby got from the five justices. The Greens also objected to insurance plans covering “related education and counseling” for contraception. It’s possible that the ruling blocks women from consulting with their doctors about birth control. Although this seems impossible, Kansas already has a state law controlling the information that doctors can give female patients. This would be the beginning of federal control over doctor-patient discussions.

If insurance doesn’t pay for doctors’ appointments that discuss contraception, then the general visit might not be covered by health insurance if women discuss contraception. Without a prescription, women cannot get contraception—which isn’t just a few dollars and certainly not available at the 7-Eleven where Cardinal Timothy Dolan thinks women get their contraceptive medication.

The Supreme Court can make all women in the United States subject to the same Global Gag Rule for nongovernmental organizations receiving U.S. assistance. They cannot use separately obtained non-U.S. funds to inform the public or educate their government on the need to make safe abortion available, provide legal abortion services, or provide advice on where to get an abortion. This restriction on freedom of speech harms the health and lives of women who have less access to family planning services and does not reduce abortion.

Whether the Supreme Court imposed a “U.S. Gag Rule” on women is not clear yet. Their ruling is that Hobby Lobby cannot be forced to pay for medical treatments they find “religiously intolerable.” It’s possible Hobby Lobby may decide that a woman talking to her doctor about contraception is “religiously intolerable.” They may decide that their workers’ receiving contraception from the government is also “religiously intolerable.” Other church-based organizations such as Notre Dame have refused federal accommodation and continue with their lawsuits.

The five justices weren’t finished after that Tuesday decision. On Thursday, they told Wheaton College, a Catholic-based school in Illinois, that they didn’t even have to fill out paperwork to be relieved from providing contraception through its insurance. Without any paperwork from their employer, the school’s female workers may not be able to obtain any contraception from the government, an arrangement that the government had made with religious institutions who didn’t want to provide contraception.

The ruling is not final. It grants an injunction while the Wheaton case moves through lower courts. The basis, however, is that employers’ anti-contraception rights trump workers’ First Amendment freedom of religion rights. Employees lose.

In its original Hobby Lobby decision, the five judges ruled that workers could go to the government. Then they took away that ability to get government relief. The Obama administration had accommodated religiously-identified non-profits by arranging with insurance companies to directly pay coverage instead of through the religious groups. All those organizations had to do was to complete a form certifying the objection. At least 122 non-profits have sued, purporting that signing the opt-out form violates their religious liberty.

Joined by Justices Elena Kagan and Ruth Ginsburg, Justice Sonia Sotomayor wrote a dissent to the Wheaton ruling:

“Those who are bound by our decisions usually believe they can take us at our word. Not so today.

“After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”

In short, the dissent states that the justices who provided the first Hobby Lobby ruling are dishonest. The highest court in the land that relies on the trust of the public has now lost that trust. Sotomayor wrote that the court’s action “undermines confidence in this institution” and that the public has reason to mistrust the highest level of legal arbiters in the nation. Hobby Lobby may be the tipping point of evidence that the majority of SCOTUS conservative activist justices are so ideological that they cannot be trusted. This follows earlier unconstitutional decisions:

A Rasmussen survey found that 61 percent of the public believe that the justices’ decisions are based on their personal ideological agendas rather than facts and constitutional issues. Last week, they seemed to determine the finding based on their ideology and then flipped the decision for another ruling, again following ideology.

On Monday, Justice Samuel Alito, speaking for the five-member conservative majority, said the ACA’s contraception policy created a “substantial burden” on religious corporations and officials must rely on the “least restrictive” approach to achieving policymakers’ goal. He cited the paperwork compromise process as the “least restrictive” path. Alito said that this policy “achieves all of the government’s aims while providing greater respect for religious liberty.”

Three days later, he joined the other conservative justices in changing their minds about completing the paperwork by granting Wheaton the extremely rare emergency relief, ruling against their Monday ruling. As Dahlia Lithwick and Sonja West put it, “Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.”

The justices may be gone until October, but the outrage remains.  Sens. Patty Murray (D-WA) and Mark Udall (D-CO) plan to introduce a bill this week to override the Hobby Lobby decision. It would stop companies from discriminating against female employees in any health coverage guaranteed under federal law. The measure will also state that no federal law, including the Religious Freedom Restoration Act (RFRA) that SCOTUS used to justify its decision, permits employers to refuse to comply with the health care law’s preventive services requirement. Chief Justice John Roberts suggested during Hobby Lobby’s oral arguments that Congress could exempt the ACA from RFRA. Three representatives will introduce an identical bill in the House. The bills will provide the same exemption for religious nonprofits and houses of worship that the ACA currently has.

I realize that the GOP will block the bills in any way that they can, but at least they will have to declare their opposition to women’s rights.

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