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A test case to see if ‘religious liberty’ applies to anything other than Republican politics

A test case to see if ‘religious liberty’ applies to anything other than Republican politics

Last updated on: October 20, 2018 at 5:00 pm by Fred Clark

A test case to see if ‘religious liberty’ applies to anything other than Republican politics 2018-10-20T17:00:28-04:00 Fred Clark

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NPR’s Ryan Lucas offers a good summary of what should be a fascinating legal case: “Deep In The Desert, A Case Pits Immigration Crackdown Against Religious Freedom.”

I say it should be a fascinating case. But it probably won’t end up that way. It will, instead, wind up only confirming two things we’ve already seen demonstrated time and time again:

1. “Religious liberty” no longer refers to the constitutional principle enshrined in the First Amendment. It is a buzzword, a misleading slogan asserting religious privilege exclusive to a particular variety of politically conservative Christian — which is to say a privilege only for the kinds of Christians who always and only support the Republican Party. Given that the Christian and the Christianity involved in this case is not that specific variety of partisan Republican Christianity, it will not be found to merit the “religious liberty” considerations provided to, for example, the right-wing political views rebranded as religious beliefs by the evangelical owners of Hobby Lobby.

2. Legal arguments in this case, particularly any eventual Supreme Court ruling, will be retroactively constructed pretenses for a predetermined partisan political result. Republican judges are Republican judges, and will construct whatever arguments they believe will arrive at the outcome favored by their party and its donors. The argumentation and purported legal bases for arriving at that predetermined conclusion will be nothing more than shinola and/or its rhetorical counterpart.

These two claims may strike some readers as jaundiced and overly cynical. I hope such readers are right. I would love to see any hint of a shadow of a scrap of evidence that either of those statements is incorrect. I haven’t yet and I do not expect I will.

Here’s Lucas’ summary from NPR:

In January, Border Patrol agents walked up to a ramshackle old building on the outskirts of a small town in Arizona’s Sonoran Desert. They found three men.

Two were Central Americans who had crossed the border illegally. The third was an American — a university lecturer and humanitarian activist named Scott Warren.

Warren was arrested and ultimately charged with two federal criminal counts of harboring illegal migrants and one count of conspiracy to harbor and transport them. Warren has pleaded not guilty.

Warren’s arrest briefly made headlines amid the partisan tug of war over the administration’s immigration policy before fading into the background.

But his legal team’s decision to stake out part of his defense on religious liberty grounds has made the case a clash between two of Attorney General Jeff Sessions’ top priorities: cracking down on illegal immigration and defending religious liberty.

One aspect of Warren’s defense is based on the Religious Freedom Restoration Act, also known as RFRA. At root, Warren is saying that his faith compels him to offer assistance to people in dire need, including immigrants.

… In recent years, Christian evangelical groups have used [RFRA] to advance their causes.

In one prominent case, Hobby Lobby, a for-profit chain of arts and crafts stores, opposed — on religious grounds — providing its employees with health insurance that includes contraceptive services, as required under the Affordable Care Act. The Supreme Court ruled in Hobby Lobby’s favor.

The Hobby Lobby case was remarkable, in part, because it involved a claim by white evangelical Christians that opposition to contraception was an essential aspect of white evangelical Christianity. That was a strikingly odd claim, as this newfound religious belief had never previously been a part of evangelical Protestant belief or practice. Hobby Lobby’s religious innovation was no less startling than if a white evangelical group had sued on the basis of some evangelical Protestant doctrine of transubstantiation or papal infallibility.

Who will stand up to protect Christians’ religious liberty and their firm conviction that their religion compels them to hang Quakers on Boston Common? Jeff Sessions will!

The courts, however, do not like being put in the position of having to judge the sectarian legitimacy of sectarian claims. They prefer to bracket any concerns about the novelty of a religious believer’s unorthodox views and to focus, instead, on the sincerity of their purported beliefs. Hobby Lobby’s claimed religious beliefs were neither biologically sensible nor an established part of their purported religious tradition, but the courts ignored that, concluding none of that mattered so long as those religious beliefs were sincerely held.

That’s an understandable move, and a prudent-seeming one to avoid entangling the courts in sorting out sectarian doctrinal issues beyond their jurisdiction and competence. But it’s not so easy as that. Self-serving novelty and newly invented idiosyncratic breaks from tradition, after all, are strongly suggestive that a given belief is not sincere.

This is something courts have recognized in other contexts, such as religious claims of conscientious objection from the military draft. A lifelong Quaker or Mennonite is acknowledged to belong to a historic “peace church,” and to sincerely hold that tradition’s sectarian belief in pacifism. But a Catholic or Lutheran or Latter Day Saint who also claims to be a pacifist for religious reasons would have to work much harder to demonstrate the sincerity of their belief because — like Hobby Lobby’s purported anti-contraception dogma — that tenet has not previously been understood to be part of their faith tradition.

All of which is to say that Scott Warren has a far stronger claim as to the sincerity of his religious beliefs than Hobby Lobby did. He has a far stronger claim to such devout sincerity than any of the no-cakes-for-gays bakers or florists, too. This is true for two reasons, due to both his own personal conviction as long-demonstrated by his words and actions, and to the long-established history of the belief he is claiming as an essential, orthodox, mandatory aspect of Christianity. Warren’s actions on behalf of immigrants are in accord with the most-repeated commandment of the Hebrew scriptures and with the very founding of Christianity at Pentecost in the New Testament.

The sincerity of his religious conviction is undeniable. The legitimacy of this belief as an established, intrinsically sectarian requirement is undeniable. This is a far-stronger religious liberty claim than any of the various successful such claims upheld by the courts in recent years.

But that won’t matter. Because it’s not an exclusively partisan Republican religious claim. And exclusively partisan Republican judges have made it clear that they will not and cannot recognize the legitimacy of any other form of “religion.”

Part of how they get away with that is a sleazy bit of rhetorical sleight-of-hand. Warren’s religious advocacy on behalf of immigrants will be characterized as “progressive,” and thereby contrasted with “conservative” religious activism. But those terms are backwards and upside-down. They are political designations that are misleadingly being used to obscure centuries of documented religious history. New and outlandishly creative breaks from orthodoxy and tradition that line up with conservative politics are branded as “conservative religion.” Millennia-old doctrines and practices that seem more akin to progressive politics are branded as “liberal.” The implication intended there is that these supposedly “liberal” religious views involved some illegitimate break with tradition, even though that’s absolutely not the case.

This is a trick that we’ve seen Tim LaHaye perform again and again during our survey of the World’s Worst Books. LaHaye’s distinction between illegitimate, nominal Christians and what he regards as Real, True Christians similarly inverts orthodoxy and heterodoxy. For LaHaye, Real, True Christianity began in 1912, with the publication of the Scofield Bible. Any alleged Christian who believes what all Christians believed before then is just some liberal phony poser who will be left behind when Jesus comes back in 1999, in 2009, in 2019. The RTCs, the true “conservatives,” are those who abandoned all prior belief in exchange for the newly invented premillennial dispensationalism favored by LaHaye.

It’s very, very strange to adopt a conservative/liberal framework that dismisses all the saints, believers, and theologians of 19 centuries as illegitimate “liberals.” But LaHaye was able to pull that trick off because he was politically ultra-right wing — a John Birch Society true believer ten steps to the right of Barry Goldwater. Those political views led others to accept his self-proclaimed identity as a “conservative Christian,” thereby reinforcing his redefinition of real, true Christianity as political conservatism and Rapture mania.

One more bitter irony in this case, from Lucas’ report:

Warren, who worked as an instructor at Arizona State University, volunteered with a humanitarian organization called No More Deaths. The group aims to save lives in the U.S.-Mexico borderlands, where people frequently die as they try to cross the desert during the journey north.

To that end, volunteers for the group hike into the scrubland and leave food, water and other supplies. They also provide emergency first aid to people they find in distress.

The fierce political opponents of No More Deaths and their millions of supporters who are packing courts with judges certain to criminalize the work and existence of groups like No More Deaths have a name for themselves. They call themselves “pro-life.” That, too, is a purported religious belief that is neither sincere nor orthodox.

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