|Thomas Jipping is just the latest Heritage Foundation polemicist to insist that the Equality Act interferes with his practice of religion.
via Heritage Foundation
Conservative Christians seem to the think that the ability to discriminate against people they disapprove of is essential.
Tuesday’s polemicist is Thomas Jipping who, among other things, has the pretentious academic title of “senior legal fellow at The Heritage Foundation.” Jipping has authored: Equality Act Would Cancel Religious Freedom. Do tell.
Jipping notes the vintage of our struggle for legal equality:
The first version of this legislation, introduced in 1994, prohibited discrimination in employment on the basis of sexual orientation, but did not apply to religious organizations.
Right. For 26 years we tried to obtain equal protection and due process. The Supreme Court has settled the issue of employment discrimination with the 2020 ruling in Bostock v. Clayton County. Employment discrimination based on sexual orientation or gender identity is now prohibited.
The Employment Nondiscrimination Act (ENDA) covered private employers with at least 15 employees.
A religious organizations would be exempt providing it had “as its primary purpose religious ritual or worship or the teaching or spreading of religious doctrine or belief.” The ruling in Bostock carries no exemptions.
Doctrinally, and since 2012, nondiscrimination laws have carried the ministerial exemption. In 2020 the Supreme Court ruled that a minister is someone serving an important religious function regardless of title or training. It is likely to continue to be a legal controversy.
Mr. Pipping is troubled:
Today, however, the Equality Act would prohibit discrimination on the basis of both sexual orientation and gender identity across multiple sectors of American life, including employment and housing, public education and financing—even the credit markets and jury service.
Worse, it now prohibits anyone from even arguing that its enforcement interferes with the fundamental right to practice religion.
Oh gee. The credit markets and jury service. How crass.
The Act does, in fact, say that the Religious Freedom Restoration Act is not an affirmative defense to a charge of discrimination. The intent is to prevent some schmuck from saying “we don’t serve your kind here” due to sincerely held religious beliefs™.
From a practical standpoint serving someone the server disapproves of in no way injures the server. It is obvious that RFRA would not apply to anti-Semites although the disapproval of Jews is based on religion. Congress felt that this might not be obvious with respect to homophobes and transphobes.
According to Jipping the Equality Act is unconstitutional:
The freedom to practice one’s religion is not just an optional, take-it-or-leave-it right. Before he drafted the First Amendment with the “free exercise of religion” as the first individual right, James Madison argued to the Virginia Legislature that religious exercise “is precedent, both in order of time and in degree of obligation, to the claims of civil society.”
Nonsense. The Supreme Court rejected that argument in Bostock. Serving someone you disapprove of in no way infringes on the freedom to practice one’s religion. “Free exercise” does not mean free imposition.
What I find interesting is that I suspect Mr. Jipping would never make that argument insofar as religion is a protected class. Going back to my previous example, Mr. Jipping would not make that argument for baker who did not want to make a bar mitzvah cake.
Were Jipping to do so he would reveal himself as the crackpot he really is. Ah, but serving an LGBTQ person is different. That is what he is saying. How is that different from being Jewish or Muslim?
The truth is that there is no difference. The Free Exercise clause does not define a difference in terms of discrimination. The same thing applies to racists.
Apparently unable to appreciate his own foolishness:
In the Religious Freedom Restoration Act, Congress in 1993 put into a statute the Supreme Court’s earlier standard setting a high bar for the government to interfere with the practice of religion. On the one hand, this standard reflects what the founders, Congress, the Supreme Court, and presidents have all said about religious freedom.
The above is essentially correct. However, serving someone one disapproves of does not “interfere with the practice of religion.”
The Supreme Court has ruled that the practice of religion is composed of beliefs and religious ritual. Discrimination is not a religious ritual.
After applying a very generous drivelectomy:
By excising the Religious Freedom Restoration Act from the legislation equation altogether, the Equality Act gives government free rein to restrict, compromise, or even eliminate the fundamental right to practice religion in pursuit of the Equality Act’s political agenda. It says that what Obama called an “essential part of human dignity” must always give way to the Equality Act’s political agenda.
This would be the first time that Congress not only provided inadequate protection for religious freedom, but deliberately and publicly repudiated it altogether.
As I said — and I am repeating myself — no sane, rational person would cite the RFRA as an affirmative defense to racism or anti-Semitism. People like Mr. Jipping make the specificity necessary with respect to discrimination against LGBTQ persons.
In fact, Jipping previously affirmed my argument:
Since the Supreme Court’s 2015 decision creating a right to same-sex marriage, the Equality Act has said that the Religious Freedom Restoration Act “shall not provide … a basis for challenging the application or enforcement of” any Equality Act provision.
“Since” is ambiguous. What Jipping means is [B]ecause. It is not a false statement. Based upon the reaction to Obergefell v. Hodges you would think that we are compelling people to marry others of the same sex.
It is all the hyperbole from the religious right that makes it necessary to say that service does not infringe on Free Exercise because it does not. Serving people one does no like in no way alters the server’s beliefs, worship, religious rituals, doctrine or the dogma one adheres to.
It is my belief that Thomas Jipping thinks the ability to discriminate is essential because the ability to reflect disapproval is essential.
Fortunately the overwhelming majority of people are not petty little bigots like Thomas Jipping. Most people, even if they disapprove of LGBTQ persons, recognize that nondiscrimination is a compelling societal interest.