Used to unravel protections

This afternoon I took part in a web seminar put on by Soulforce. They did it today, the same day the Supremes heard the case of the cake baker who discriminated against a gay couple. The title of the seminar says it well, “Religious Exemptions 101, It Ain’t About the Cake.” I mostly watched (while typing notes), though did submit a comment.

I started supporting Soulforce many years ago. They’re a group that is trying to dismantle white Christian Supremacy. I got involved because they strongly stand up for LGBT rights (they were founded by Mel White, who is gay).

The session was moderated by Soulforce Director Yas Mendes Nuñez. Speakers were Rev. Alba Onofrio, also of Soulforce, and Katherine Franke and Kira Sheppard, both of Columbia Law School and its Public Rights, Private Conscience project, which studies uses and misuses of religious liberty.

Rev. Alba began with a definition. Christian supremacy is using the language and doctrine of Christianity for purposes of domination and harassment, using it as a tool for oppression. This is frequently referred to as white Christian supremacy because it is used almost exclusively by the white Fundamentalist churches and denominations. We must disentangle the religion from the oppression.

Franke spoke next. Some of her points.

Religious liberty is a big deal in this country because many of the people who came here first were members of religious minorities who were seeking religious freedom. This religious freedom has been tied together with race. Mormons (back in the 19th Century) were declared criminal, partly because of their views of polygamy, but also because they were declared to be non-white (even though they, similar to the hated Irish, looked white).

In this century prohibitions against racial discrimination came first, then expanded to include prohibitions against religious discrimination.

People are using religion as a license to discriminate. This sets up an antagonistic relationship between religion and equality. We’re told we can be for religion or equality, but not both. But this ignores many religious people who promote equality. So let’s move away from this way of framing the issue. Let’s switch to how this case hurts religion. Many minority religions also need equality protections. Religious liberty as a whole is at risk from these Fundamentalist people (though I note many of them are no longer interested in religious liberty – they want to impose their religion on us). The wider populace still values the religious liberty idea.

White Fundamentalists were clever in choosing to take this case to the Supremes. They can say, it’s just a cake! Why get so worked up about it? Just go to a cake shop that likes you. It’s a smart case because the stakes are so low. All this tempest for a cake? Sheesh.

But it isn’t about the cake. It’s about the religious exemption. And as soon as it is used to unravel protections for LGBT people it will be used to unravel racial accommodation.

This case is backed by the Koch brothers, the super rich guys who back a lot of conservative (supremacist, though not obviously so) causes.

The Religious Freedom Reformation Act (RFRA) says that federal policy cannot place undue burden on the practice of religious beliefs. It was passed by Congress with broad bipartisan support. The left agreed to it to protect religious minorities, such as the case of prisons refusing to allow a Jewish prisoner to wear his yarmulke. But the Fundamentalists have been using RFRA for oppression and the Supremes have permitted it.

Sheppard then spoke. She is important to the discussion because she is a black woman. Her focus at Columbia and within this religious liberty project is on racial justice work.

Religious liberty has been about discrimination against black people since then 1950s, the dawn of the civil rights era. Bible verses were used to support segregation as well as support discrimination as being a part of religious rights.

After Brown v. Board of Education the South created segregated private academies (I’ve heard white students from the South are surprised that white students from the North went to public schools). These schools were tax exempt, essentially supported by the federal government. That ended in 1970s and the Supremes agreed the IRS was permitted to withhold exempt status on segregationist institutions.

Religion is still being used to attack the right to an abortion and other cases of reproductive health. And, as I’ve said many times in these posts, religion was used to attack LGBT rights and same-sex marriage.

Because of the nasty guy and his supremacist views we’re going to see more of these laws. They won’t directly target race, but they will be used to support racism. An example are the laws that permit discrimination against sex outside of marriage. The only sign of sex outside of marriage is the single mother. And most single mothers are women of color. The nasty guy has supported bills that prevent government from penalizing someone who discriminates. Go ahead and violate laws that prevent discrimination because you can’t be punished. Thankfully, this hasn’t passed. Yet.

Sheppard is concerned about Catholic hospitals and the ethics guidelines set by the Catholic Bishops. These hospitals can’t perform abortions or help in preventing pregnancy. Sheppard told the story of Tamisha, who was pregnant and in a lot of pain. She went to the nearby hospital (which was Catholic). They saw the fetus was dead (though didn’t tell her that) and even though there was the threat of severe complications from infection the hospital refused to do an abortion and she was sent home. Only when a miscarriage began did the hospital help her. Tamisha sued.

These ethics guidelines impact mostly women of color. They face higher rates of unintended pregnancy. They have higher rates of not being insured and because of that more likely to have complications that need abortion. And Catholic hospitals refuse to help.

Fundamentalist schools ask for exemptions from Title IX, which prevents discrimination against women. Lately, Title IX exemptions have also been used to discriminate against transgender people.

The focus shifted back to Franke. She suggests when talking to Fundamentalists, don’t talk about religious freedom. That gets them combative. Instead, talk about religious exemptions. True religious freedom means not imposing on others. Religious views that are about creating an abundant, joyous life are good. Views and doctrine that is about harming others is false religion. When discussing religion we must also discuss power and work to separate the two.

Religious rights can also (and should be) used to support people of faith in the immigrant sanctuary movement. These are people inspired by their faith to help others. The discussion of religious rights in this case includes rejecting harm. So the religious rights claim can also be a political claim. For example, Texas permits guns on college campuses (and Franke she doesn’t want to be that professor when a student with a gun comes to the office). The Quaker faculty in Texas are using a religious argument to oppose gun carry laws – it is against my religion to have guns in my office.

A participant asked about how supremacy relates to disabled people. As with the religious view that races shouldn’t mix, there is a (thankfully, not common) religious view that a disabled person must have sinned against God and disabled people are not made in God’s image. Therefore they should not have rights. Franke often poses this situation to prospective law students. The correct answer: You’re entitled to your beliefs up to where those beliefs begin to interfere with the rights of others.

If the Supremes rule with the cake maker this case opens the door to discrimination against a lot of kinds of people. Hate speech laws are out the window. As with many cases concerning us lately, Anthony Kennedy is the deciding vote. He’s been good on gay rights, not good on race rights or women’s rights. He is also a Catholic. During arguments today he didn’t give an idea how he will vote.

Justice Roberts seems to feel free speech is more important than anything else. So if he buy’s the baker’s idea this is a speech issue we’ll lose.

In prior posts I’ve discussed judicial scrutiny. For different kinds of cases the government must meet differing thresholds of justification for discriminatory laws. Race issues require a higher level of scrutiny before the Supremes. Many in our society are determined to be colorblind. But sex discrimination laws require a lower level of scrutiny. We kind of like having two genders and the idea of being gender-blind hasn’t caught on.

At the end they briefly discussed the comment I sent in. I said that those coming to America for religious freedom were also looking to set up their own religious supremacy. The speakers agreed that supremacy is a founding sin, it is even embraced in the Constitution (see slavery). So we have to engage with it.



The case before the Supremes was in the evening NPR news in a report by Nina Totenberg. The baker, Jack Phillips, represented by Kristen Waggoner was up first. The progressive justices fired off with why does the baker, but not the jeweler, the hairstylist, the makeup artist, the invitation designer, or even the florist, get to claim his work is art covered by free speech? Justice Breyer said, “We're asking these questions because we want some kind of distinction that will not undermine every civil rights law.”

Noel Francisco, Solicitor General from the nasty guy administration, was up next. He claimed the court should not allow discrimination based on race, but urged the justices to allow narrow cases of discrimination based on religion and sexual orientation. Kennedy responded, “I think that’s an affront to the gay community.”

Frederick Yarger represented the Civil Rights Commission of Colorado, that backed the gay couple. He said a baker may refuse to put a message on a cake if he finds it offensive, but if he sells a cake to a straight couple he must also sell it to a gay couple. Kennedy responded that tolerance is necessary in a free society, best when it’s mutual. But Colorado hasn’t been respectful of the baker’s religious beliefs.

David Cole of the ACLU represented the couple. He reminded the justices of the late Antonin Scalia’s opinion that a broad law neutrally enforced is constitutional even when it has an incidental effect on some people’s religious views. To do otherwise would permit “every citizen to become a law unto himself.”

The ruling will come by the end of June.