Feb. 2nd, 2017

hudebnik: (rant)
There are rumors and leaks of an upcoming Trump (presumably really Pence and/or Bannon) executive order about religious freedom, which he defines as the right to discriminate against gays, transgendered people, and anything else that offends your religious sensibilities, without fear of government penalties such as losing your tax-exempt status. It explicitly applies to non-tax-exempt organizations too, such as "closely-held private companies" such as Hobby Lobby.

There's an intuitively appealing argument that any economic transaction is supposed to be by mutual consent: I shouldn't have to hire you, buy something from you, sell something to you, etc. unless I actually want the transaction to happen.

But what's the difference between refusing to serve gays and refusing to serve blacks or Jews? The executive order is specifically about religious views, but there are certainly people whose sincerely held religious views are anti-Semitic, and if religious views are recognized as a legitimate loophole, there will shortly be people claiming that their sincerely held religious views forbid serving blacks.

The executive order avoids this slippery slope by going in an even worse direction. It doesn't say all religious views are a legitimate basis for discrimination: only specific ones, such as that marriage is inherently between one man and one woman, or that sex belongs only inside such a marriage, or that gender is an innate and immutable characteristic determined at birth. In other words, we're going to privilege the religious views regarding sex of a certain segment of socially-conservative Christians over the religious views of anyone else.

So if this order goes into effect, it will (and should) be challenged on establishment-and-free-exercise-clause grounds by people who say their sincerely held religious views forbid serving Jews, blacks, heterosexuals, or Republicans. The only way to preserve the order while beating back these challenges is for the courts to say "That's not a legitimate, sincerely held religious view," a question which the courts have generally considered beyond their competence for the past 240 years.

Or, I guess, they could just repeal the establishment and free-exercise clauses of the First Amendment....

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