Sunday, March 12, 2017

Neil Gorsuch and Religious Liberty: Class Dismissed [feedly]

Neil Gorsuch and Religious Liberty: Class Dismissed

President Trump's nomination of Judge Neil M. Gorsuch on January 31 to fill the vacant seat of Supreme Court Justice Antonin Scalia on the United States Supreme Court may seem like the answer to a prayer for many in the religious right. In an interview on The Brody File (Christian Broadcasting Network) four days before the announcement of his nominee, Trump rightly predicted "I think evangelicals, Christians will love my pick."  A letter supporting Gorsuch signed by more than 60 evangelical leaders suggests that he is right. Even Russell Moore, the head of the Ethics & Religious Liberty Commission of the Southern Baptist Convention, who faced backlash for a New York Times op-ed arguing that Trump does not represent evangelical values, signed on to the statement affirming Gorsuch's judicial philosophy would meet the vital thresholds of protecting "the unborn, the strengthening of religious liberty, and a dedication to human flourishing — which we believe can only be accomplished by a biblical definition of marriage and family."

But how does such "strengthening of religious liberty" relate to the concerns of working-class people? Are religious liberty claims class neutral? The Hobby Lobby case offers a useful example, as well as a glimpse of Gorsuch's judicial philosophy at work.

In 2013, the U.S. Court of Appeals, Tenth Circuit, ruled that the Green family, owners of Hobby Lobby, a chain of craft stores, and Mardel, a Christian bookstore chain, and their corporation itself, are entitled to the protections of the Religious Freedom Restoration Act(2000) and the Free Exercise Clause (1791) of the First Amendment to the U.S. Constitution. Writing for the court, Judge Tymkovich argued that as a "closely held family company" organized with "express religious principles in mind," it would be a violation of their "sincerely held religious beliefs" and contrary to their faith to be forced to provide what they believe to be "abortifacient" (post-conception drugs to terminate pregnancy) contraceptive services as mandated by the 2010 Patient Protection and Affordable Care Act.

Hobby Lobby has over 500 stores and almost 13,000 full-time employees, and Mardel has thirty-five Christian bookstores and almost 400 employees. The owners, David and Barbara Green and their three children, believe that "human life begins when sperm fertilizes an egg" and that it is "immoral" to "facilitate any act that causes the death of a human embryo." The application of the doctrine of religious liberty here means that the religious beliefs of five corporate owners take precedence over the beliefs and interests of nearly 13,400 workers in 535 stores across the country. Further, the ruling grants religious freedom to the corporation, giving it legal status as a "person" whose rights must be protected as well. The court reasoned that as the Religious Freedom Restoration Act requires, generally, that the "Government shall not substantially burden a person's exercise of religion" and that "[s]uch corporations can be 'persons' exercising religion for purposes of the statute."

Neil Gorsuch's concurring opinion focuses, in particular, on the Green family. Affirming the reasoning of Judge Tymkovich above, Gorsuch emphasizes the importance of the Green family's religious claims to the exclusion of any other parties, including their entire work force for whom access to low or no-cost contraceptive services could have very favorable consequences, morally, economically and otherwise.

Gorsuch also argues that free exercise claims have long protected "unpopular religious beliefs, vindicating this nation's long-held aspiration to serve as a refuge of religious tolerance." The concept has its source with individuals and groups with unpopular or underrepresented religious beliefs, as in the the U.S. Supreme Court decision (1963) in Sherbert v. Verner. Adell Sherbert, a Seventh-day Adventist, was fired from Beaumont mill, a textile factory in Beaumont, South Carolina for refusing to work on Sundays because of her religious belief that Saturday is a Sabbath day (certainly a minority view within Christianity). South Carolina denied Sherbert any unemployment benefits. In a 7-2 opinion, the Supreme Court ruled in favor of Sherbert, a ruling that expanded the range of religious freedom claims and the rights of workers to have some defense against encroachment from employers.  But that was 1963 and now it is 2017.

If class is primarily about relationships of power in the workplace, as Michael Zweig has argued, this ruling emphasizes how the workplace can also shape the power one has over one's body and one's family well after the workday is over. For Hobby Lobby employees, any religious liberty claim they may wish to make (for instance, a deeply held religious belief that a fertilized egg is not a person) is not even hinted at in the discussion. Gorsuch's concurrence demonstrates that religious freedom claims are not abstract and universal. They are class bound and can be applied selectively.

As Congress considers Gorsuch's nomination, legislators should know that corporations will continue to deploy religious freedom claims, and state legislatures will continue to put forward Religious Freedom legislation like the bill then Governor Mike Pence's signed for Indiana in 2015.  U.S. Senate minority leader, Charles Schumer (D-NY) complained in a recent The New York Times essay that Gorsuch would not answer basic questions and argued that the nominee "owes it to the American people to provide an inkling of what kind of justice he would be." But Gorsuch has a history – a paper trail – on this matter, including the Hobby Lobby ruling.  We can expect that Gorsuch (and other justices, as well) will dismiss class as a factor when pondering the legitimacy and application of religious liberty claims. Gorsuch's views about the "strengthening of religious liberty" could have repercussions for the working class well into the future.

Ken Estey

Ken Estey is an associate professor of Political Science at Brooklyn College and the author of A New Protestant Labor Ethic at Work. His research centers on the intersection of politics and religion with a particular focus on labor and Christianity.

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