The Law of the Land….or the Lord?
This is the time of year the U.S. Supreme Court releases its decisions on cases reviewed and adjudicated during the session; and here at home in Louisiana the state legislative session ends and we have a list of bills it has passed, and, if any, those subsequently vetoed by the governor. High Court cases and proposed new laws at the state level have some interest for humanists and all others that have an ideological stake in the primacy of individual rights, and concerned with upholding the importance of the establishment clause in the First Amendment.
The Associated Press has reported that this year, over 525 anti-LGBTQ+ bills have been introduced in 41 statehouses. The particular culture war battlefront is at its core a religion-based issue, being informed by ancient mythological texts from the Middle East, namely the Jewish Torah, the ensuing Bible, and Mohammad’s Koran. Laws written based on religious dogma are almost always counter to individual autonomy and freedom of expression by demanding compliance to holy text references and the ultimate authority of the applicable god. Failure to abide results in the marginalization, penalization, or even death of the offender by stripping away the fundamental liberal principle of individual autonomy. Refusing to go along with most of decisions in many red states, Governor John Bel Edwards has vetoed three bills aimed at demeaning the rights of citizens in the LGBTQ+ community:
- A bill that would prohibit gender-affirming care to minors, including puberty blockers, hormone therapy, and surgery.
- A version of Florida’s “Don’t Say Gay” bill which bars teachers from discussing sexual orientation and gender identity in the classroom..
- Another bill that would prohibit teachers from using pronouns of the students’ choice
One bill—The Religious Freedoms/Liberty Amendment—was a proposed constitutional amendment, which I lobbied against in this space and soon after in a letter to The Times-Picayune. As a proposed amendment to the state constitution, the final approval is not up to the Governor, but with the citizens to vote on in the upcoming election. We need to be thankful for Edwards’ decision to veto hateful discriminatory legislation, though his logic was probably not that the bills were religion-based, but that they target the individual rights of everyone in that community. And we know that his veto can be overridden, or that the bills can be brought up again in the next session where there will likely be a more sympathetic chief executive who approves of this legislative cruelty.
At the national level, the super-majority of primarily Catholic justices can always be counted on these days to rule on the side of religion in cases involving the establishment clause, and last week’s decision on two such cases did not betray that expectation.
- A case involving a former USPS employee’s termination because of his refusal to work Sundays was sent back to the lower courts because SCOTUS ruled that accommodations were not made for his religious beliefs. One reason he sought the job as a postal worker was because there was no mail delivery on Sunday, but not long after his hire the post office signed a contract with Amazon involving some deliveries on Sunday. Surprisingly, all three liberal justices voted with the religious majority, even though it would not have made a difference. Thus, a 9-0 decision, ruling that although the accommodations clause could be bypassed if doing so would present a severe hardship on the operation of the business, SCOTUS now seems inclined to raise the bar on the degree of hardship placed on the business. The hardship placed on his fellow employees filling in for his church time obviously doesn’t count as a hardship on the post office itself.
- In a case reminiscent of the gay marriage wedding cake settled in 2018, this year’s docket at the high court contained an appeal from a web designer who claimed her religious beliefs prevented her from designing a web page about a gay couple’s intention to marry and other specifics about the couple and the upcoming celebration. The decision by the court was that the web designer had the right to refuse the work based on the First Amendment free speech guarantees. Unlike prohibitions against discrimination in the marketplace for refusing to sell tangible goods like a hamburger or a necktie, the logic is that website design involves basically language, and as such, speech. The problem with this decision was how or why it was even taken by the court: the plaintiff was only thinking about expanding her services to include marriages: she had not even begun the venture, and no one had actually approached her about doing it. It turned out one of the people she claimed contacted her later about the job had never done so, and was, in fact, a happily married cis male, and also a web designer himself. The court made a decision on a hypothetical case. The petitioner had no standing—there was no actual harm or existing conflict on which to base a decision. On this point, the court is making a law, not interpreting law. It makes a decision that would act as a law if such a case actually arose.
This is why President Biden said this is not a “normal” court. But he was being kind: the majority of today’s court justices are responsible for transforming it into a rogue Christian nationalist court.
Happy Independence Day!
Marty Bankson, ed. July 4, 2023