On Wednesday, a Texas district court found that the ACA’s mandate that insurance cover PrEP violated the Religious Freedom Restoration Act. (Opinion here.)
A couple quick explanations before we go on: the Religious Freedom Restoration Act (RFRA) was a law passed by Congress to essentially overrule a Supreme Court decision. It was meant to provide religious practice with a higher level of protection than the Court was affording it. PrEP is a drug that significantly reduces the chance that a person will get HIV from sex or injection drug use.
A handful of people (and one corporation) challenged the mandate that insurance cover PrEP, claiming that their religious beliefs and practice required them to have access to insurance that didn’t cover PrEP, either for themselves or their employees. And, in the first instance, they won.
I’m not going to go through the opinion in any kind of depth. I think it’s wrong, though I kind of doubt it will be reversed either by the Fifth Circuit or the Supreme Court. But it’s not my area, and I’m interested in a broader point: while the decision represents a win for certain religious individuals, I suspect it represents a significant loss for the future religious liberty. And, for the record, I believe that religious liberty is critically important.
Why? Because the plaintiffs were animated expressly by hostility to the LGBTQ community. Seriously. The owner of Braidwood, the for-profit corporate plaintiff, claims as his religious beliefs that:
(1) the Bible is “the authoritative and inerrant word of God,” (2) the “Bible condemns sexual activity outside marriage between one man and one woman, including homosexual conduct,” (3) providing coverage of PrEP drugs “facilitates and encourages homosexual behavior, intravenous drug use, and sexual activity outside of marriage between one man and one woman,” and (4) providing coverage of PrEP drugs in Braidwood’s self-insured plan would make him complicit in those behaviors.
(Emphasis added.)[fn1] One of the major reasons—the major reason, on my reading—that he says providing PrEP coverage to his employees violates his religious practice, according to the owner of Braidwood, is because he’s opposed to homosexuality and doesn’t want to be complicit.[fn2]
And herein lies the long-term problem with this: there’s a public perception that “religious liberty” is synonymous with “the right to discriminate against LGBTQ individuals.” It doesn’t have to be—I took a class in law school about religious liberty claims in the Supreme Court. We looked at the case of a Jewish member of the Air Force wearing a kippa in contravention of military dress regulations at the time. We looked at laws against animal slaughter carefully designed so that they applied to a minority religious group but not to slaughterhouses. We looked at other cases of laws designed or implemented particularly to disadvantage religious individuals (though it’s been enough years that I don’t recall precisely what other issues we discussed).
But the current trend seems to be majoritarian religions claiming exemption from generally-applicable laws in a way that allows them to discriminate against the LGBTQ community. And given the prevalence of this type of religious liberty claim over the last decade or two, you’d be forgiven if you read “religious liberty” to mean just that.
The problem is, if religious liberty means the right to discriminate against the LGBTQ community, religious liberty is going to become less defensible and less defended. Already, religious disaffiliation is at an all-time high. And that disaffiliation undoubtedly has a host of causes. But the perception that institutional religion is hostile to the LGBTQ community is almost certainly one of those causes. The continued insistence that the religious can—must, even—discriminate is not an attractive point.
And religious individuals who favor discrimination on the basis of sexuality recognize the unattractiveness of this position. I’ve read multiple people try to explain how discriminating on the basis of sexuality is different (from a theological, legal, or moral perspective) from discriminating on the basis of race.
But even if they’re right (they’re mostly not, though there may be certain legal differences, given that the Civil Rights Act explicitly mentions race), that’s not going to be persuasive to the public at large. As soon as you’re trying to explain why it’s okay to discriminate against this particular group, you’ve lost.
So the plaintiffs won a short-term victory. They have (for now, at least) the ability to implement their hostility toward the LGBTQ community in their purchase of insurance. In the long-term, though, this is going to hurt religion, both driving away people who would otherwise be interested in affiliating and reducing popular support for religious freedom.
And, while the right to Free Exercise is enshrined in the First Amendment, as Mormons we should be acutely aware that that enshrined right depends, in large part, on popular support. When polygamy was unpopular (well, it’s still unpopular, but when we practiced it and it was unpopular), the Supreme Court found that it was beyond the pale of constitutional protection. We absolutely had the right to believe in the centrality of polygamy. But we couldn’t actually do polygamy.
So what do we do? I think there would be significant value in a reorientation. Make “religious liberty” synonymous with protecting the rights of minority and oppressed religions. Focus our efforts on others, not ourselves. Focus our efforts on the right of religious individuals to feed the homeless in violation of local ordinances. To aid the immigrant in violation of immigration law.
Otherwise, we risk winning some battles and losing religious liberty in the process.
[fn1] Yes, he also mentions drug use and nonmarital sex. But he explicitly sets up his opposition to same-sex sexual relations; he doesn’t even pretend to make a biblical case for drug use.
[fn2] I mean, I can’t even with the complicity. Does he believe he’s complicit when an employee uses money he paid to buy a drink for a date? to bet on a football game? to buy an absolutely terrible record? That’s not my point, of course, but I couldn’t handle letting it pass uncommented-upon.
Photo by Tingey Injury Law Firm on Unsplash