Life’s Work: A Conversation with Dr. Willie Parker

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Dr. Willie Parker. (Photo credit: Chad Griffith courtesy of Atria Books).

In his new book, Life’s Work: A Moral Argument for Choice, Dr. Willie Parker recounts his conversion from a fundamentalist Christian who abhorred abortion to what he calls his current ministry as an itinerant abortion provider working in some of the most underserved areas of the Deep South. It’s a trajectory that helps him make the case that supporters of legal abortion need to reclaim a moral and religious narrative for choice.

It’s a provocative argument in a nation that often equates opposition to abortion with religious faith. But Parker shows how supporters of legal abortion can draw upon faith practices and moral language to make the case for abortion rights. It’s a much-needed corrective at a time when abortion retains its power as the most pivotal wedge issue in modern political history, helping to corral many evangelical and Catholic voters for Donald Trump and once again tempting Democrats to equivocate in an attempt to woo “faith” voters.

Parker’s book shows that while abortion will always be deeply entwined with religious and moral narratives, it’s up to progressives to rewrite those narratives in ways that highlight and respect bodily autonomy and free choice as absolute moral goods. And he makes a compelling argument that the much-lauded “moment of conception” that undergirds so much religious anti-abortion rhetoric is smoke-and-mirrors. Parker challenges us to see beyond the fog of sentimentality and moralizing that allows opponents of abortion to cow even well-meaning progressive women to acquiesce to laws that reduce women’s humanity.

This July, he spoke with Patricia Miller for PRA:

PM: You write in your book that you believe that as an abortion provider you’re doing God’s work and compare yourself to a “twenty-first century Saint Paul, preaching the truth about reproductive rights.” This notion may seem challenging, even heretical, to people accustomed to seeing abortion as a secular practice, not only wholly divorced from people or practices of faith, but often antithetical to them.

WP: Most people are familiar with my identity as a women’s health provider, so they automatically assume that precludes an identity of ministry. But I dispense with the notion that there is a difference between the secular and the sacred. For me, I derive that sense of the sacred from my calling to help women in need realize their God-given gifts and agency. For me, that’s the faithful approach. To talk about my life’s work in these terms is a counter-narrative to all the mischief that is being done in the name of Christianity.

“Abortion isn’t a bad thing or a good thing; it’s a thing.”

The book isn’t a polemic for abortion; it’s a defense of the agency that’s essential to what it means to be human. Abortion isn’t a bad thing or a good thing; it’s a thing. My sense of working through religious custom on reproductive rights is that there is nothing heretical about being a Christian and providing abortion care. Nothing about choosing to terminate a pregnancy puts a woman outside of God’s love.

You write that it’s a lack of scientific understanding of reproduction and the idea of God as “a meddler” that allows people who oppose abortion to turn people of faith against themselves. This is the idea that everything is “God’s will” and that conception and birth are somehow uniquely miraculous and, therefore, not open to human interference. But you note that conception is a “morally neutral, purely biological event” and that a “pregnancy that intimates a baby is no more sacred than an abortion.”

Life’s Work: A Moral Argument for Choice by Dr. Willie Parker (Credit: 37 INK/Atria Books)

This book on a moral argument for choice is my attempt to diffuse the tension between a religious understanding of reproduction and a scientific understanding of reproduction. The fact is pregnancy is a biological process that happens to happen in women. But our culture also has a sentimental notion about the primacy of motherhood in women’s lives. This is why we have made reproductive health a moral issue. There is no other type of healthcare that we force people to ask permission for, often in humiliating and intrusive ways. Imagine if we asked a man to go through what we put women through to get an abortion.

You write that it’s this sacralization of motherhood—not just among people who oppose abortion but also by upper-class liberal women who “became enraptured with the sonogram image they saw at the obstetrician’s office” and plunged full-force into competitive motherhood—that has allowed a widespread maternal conservatism, a “blurry consensus about the ‘sanctity of life’” to take hold.

There is a cultish preference for motherhood embedded into our culture. If motherhood is always the higher value, then even liberal women don’t revolt when laws are enacted that force women to become mothers. And many women in blue states are somewhat insulated from the devastating impact that anti-choice laws can have on Black women and poor women, especially in the South, so they look away.

This strategy isn’t an accident. You note that the battle over choice is largely fought over the bodies of Black women and poor women because they’re the ones who most acutely feel the impact of waiting periods and other laws designed to discourage choice. But you say the real target of these laws is White women and that the “thing that all too many white anti-abortion activists really want … is for white women to have more babies, in order to push back against the browning of America.”

The culture war over abortion is being fought over the lives and bodies of Black women and poor women This can make women of means blind to the significance of poor women controlling their fertility [since wealthier women, and White women, are less likely to directly lose access]. But it’s a sleight of hand. The goal is to limit access [to abortion] for all women, especially White women. Men have to be able to assert control over all women’s fertility because the traditional family remains the repository of White heteronormative culture.

 At the same time, you criticize the “Black genocide” movement launched by White anti-abortion activists to get Black people to see abortion as an “assault by white America on blacks” as nothing more than a sham perpetrated by organizations like Priests for Life and Life Dynamics.

The Black genocide movement is [a] joke, especially its claims that Planned Parenthood is the main perpetrator and Margaret Sanger its primary architect. Looking back to the days of Teddy Roosevelt, it was Eastern Europeans who were the target, not people of color. But the antis want [to] change the terms of the debate and frame abortion as systematic racism by health care institutions against Black people, which means even White women will acquiesce to new limits.

 You hold that one reason the anti-abortion forces have been so successful in the last decade is that “progressive and humanist people have failed to offer a moral, spiritual, ethical, or religious case for abortion rights and so have ceded those arguments to their opponents.”

The antis seized the moral high ground 40 years ago with phrases like “pro-life,” and abortion rights activists haven’t mounted a significant moral or religious counterargument. But every great justice cause has been waged in moral terms. The reset is that abortion is a human rights issue, not a religious issue. Scripture is largely silent about abortion. The “sanctity of life” rhetoric was lifted from the Roman Catholic catechism and grafted onto the Moral Majority to create single-issue abortion voters. We need to start with the premise that reproductive rights are human rights and human rights are the kind of rights that are neither derived from nor provided by the state. Abortion is a process that happens to play out in the bodies of women and is a health and human rights issue for women. Women have a human right to decide their own futures and live their lives as they see fit. Women are entitled to both the negative and positive outcomes that come in a free society.

Some Democratic strategists and politicians like Sen. Bernie Sanders are arguing just the opposite: that the Democratic Party needs to be more accepting of pro-life voters if it wants to be competitive across the country. They argue that supporters of choice need to be “reasonable” and allow the party to bargain away abortion rights like it was any other political chit. Is this the way forward for the Democratic Party?

The Democrats are never going to out Republican the Republicans. This formulaic approach to politics flies in the face of the need to generate genuine social capital. Rather than coming up with a progressive body politic, the Democrats decide if you can’t beat ’em, join ’em. Their political moves are always reactive because they don’t stand for anything, so they latch on to abortion as the factor that made the difference in Republican wins.

“The Democrats are never going to out Republican the Republicans.”

A major plank in the Democratic platform is that the party is pro-woman and pro-reproductive rights. But then they decide that this is “an” issue not “the” issue. The Democratic Party says that women are central to their constituency, but then they equivocate on reproductive control and run the risk of isolating a key part of their base. This is a shameful thing to be talking about after the Women’s March, but if they accommodate the Blue Dog Democratic demands, there is no authenticity around reproductive rights. If the party is now supporting pro-life Democrats, that means we have one-and-a-half parties against reproductive rights and one-half of a party for reproductive rights. No political party is standing firmly for reproductive rights.

 What’s the solution here?

I think there has to be a test of authenticity. Maybe women and people of color have to become single-issue voters—that’s how essential reproductive choice is. For me, reproductive rights are the issue because they determine so many other things. If Democrats are going to be the party of progressive values, then they need to rebrand reproductive choice as essential to progressive politics.

 

Between Trump and Putin: The Right-Wing International, a Crisis of Democracy, and the Future of the European Union

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This article appears in the Spring 2017 edition of The Public Eye magazine.

“So. Washington is ours. Chișinău is ours. Sofia is ours. It remains but to drain the swamp in Russia itself.” Right-wing Russian ideologue Alexander Dugin posted this pronouncement as his Facebook status on November 13, 2016.1 Each of the cities he named is the capital of a country—the U.S., Moldova, and Bulgaria, respectively—that had recently elected a leader espousing at least some views that are favorable to Moscow. And each had elections that took place amid concerns about Russian influence.

Alexander Dugin is a Russian political scientist who might be seen as a Russian counterpart to U.S. Alt Right leader Richard Spencer. (Photo: CC BY-SA 4.0 via Alexander Dugin)

Knowing who Dugin is makes his post-U.S. electoral victory cheer more chilling. Dugin, who might be seen as a Russian counterpart to U.S. Alt Right leader Richard Spencer, made an early endorsement of then-candidate Trump in February, 2016 through Katehon, an illiberal “think tank” headed by Russian oligarch Konstantin Malofeev, a man known for conceiving and financing conservative Christian initiatives.2 Dugin is also on the U.S. individual sanctions list for his role in the Ukraine crisis—specifically for his leadership in the Eurasian Youth Union, which, as the Department of the Treasury reported, “actively recruited individuals with military and combat experience to fight on behalf of the self-proclaimed [Donetsk People’s Republic] and has stated that it has a covert presence in Ukraine.”3 Perhaps most notably, Dugin is also a chief proponent of neo-Eurasianism: an ideology encapsulating Russian “traditionalism” (including the rejection of feminism, “globalism,” and LGBTQ rights) and the belief that Russia has a Manifest Destiny of its own—a mystical calling not only to take dominion of Eurasian spaces from the Baltic to the Pacific, but also to revive the West’s Christian roots.

One of the more striking features of the 2016 U.S. election was the convergence of the rhetoric and talking points of President Donald Trump and his supporters with those of the Kremlin. And in the tangled and ongoing investigation of Russian involvement with U.S. and European elections, these ideological connections and motivations have gone far less noticed.

While in Soviet times the Kremlin’s Marxist ideology attracted its share of Western sympathizers, post-Soviet Moscow has, if you will, dialectically emerged at the center of a “traditionalist international” around which many right-wing fellow travelers are rallying. There is an older history of American conservative attraction to Russian Christians and anti-Communists. Paleoconservative leader Pat Buchanan, a contemporary apologist for Russian President Vladimir Putin, noted as much in a post-Crimea paean to Putin, when he wrote that “The ex-Communist Whittaker Chambers who exposed Alger Hiss as a Soviet spy, was, at the time of his death in 1964, writing a book on ‘The Third Rome’”—the conviction that, after the original Roman Empire, and “the Second Rome” of Constantinople, Moscow inherited the mantle of Christian empire.4

This fascination with Russian conservatives and Russia’s conservative potential was also shared by some of the direct ideological ancestors of today’s U.S. White nationalists, such as Francis Parker Yockey, a mid-century U.S. Far Right leader and avowed antisemite, who called for Western-Soviet cooperation in fighting Zionism. Since that time, post-Soviet Russia has become a right-wing state that has cultivated, through the efforts of the Russian Orthodox Church as well as right-wing intellectuals like Dugin, a loose right-wing international, as I wrote in The Public Eye in 2016.5

Given this context, it’s unsurprising that the most toxic elements of the U.S. Right are drawn to Putinist Russia. In 2004, for example, White supremacist David Duke declared, “Russia has a greater sense of racial understanding among its population than does any other predominantly White nation.”6 Duke has since cultivated ties with Russia, among other things maintaining an apartment in Moscow that he has sub-leased to fellow White supremacist activist Preston Wiginton .7

Interest in Russia among the global Right has grown steadily in recent years, accelerating since the beginning of Putin’s third term in 2012. Photo: CC BY 4.0 via The Kremlin)

Interest in Russia among the global Right has grown steadily in recent years, accelerating since the beginning of Putin’s third term in 2012. Since then, the Russian state has not only coordinated more closely with the Russian Orthodox Church, but has also come increasingly to portray itself, with a high degree of success, as the global standard bearer for “traditional values” conservatism.8 While Russia cultivates ties to Westerners on both the Far Left and the Far Right, Russia’s leading ideologues and soft power institutions—such as think-tanks, government-backed non-governmental organizations, and university centers—promote right-wing, neo-Eurasianist traditionalism. This ideology rejects modern liberalism as a “rootless,” culture-destroying globalism, and offers in its place a “multipolar” world order with strengthened national sovereignty, weakened supranational institutions (such as the European Union), and a rejection of universal human rights, with women’s rights, the rights of ethnic and religious minorities, and LGBTQ rights particularly threatened.

Russia’s embrace of this anti-feminist, anti-LGBTQ, anti-“globalist” “traditionalism” has coincided with a period in which the Russian state, concerned about “color revolutions” and NATO expansion, has increasingly sought to weaken Western institutions. Putin’s agenda in this regard is not only to strengthen Russian power at the expense of the West, but also to undermine belief in the viability of liberal democracy itself. The means by which Russia pursues this agenda include cultivating ties with Western anti-democratic forces, inundating the West with propaganda, and employing other active measures, including hacking, in influence campaigns. What does Russia’s central role in rising global right-wing populism mean for the prospects of the EU, particularly in light of Brexit and Trump’s ascendancy to the U.S. presidency? The stakes are high this year. While the results of the Dutch and French elections have been encouraging for the future of the EU and NATO, an important German election is yet to come, and the threat of disinformation originating in both Russia under Putin and the United States under Trump remains serious.

Evaluating Dugin’s Claim: The International Appeal of Russian Illiberalism

Russian interference and influence in Europe, including the promotion of far-right “traditionalism,” should be of concern to defenders of human rights in light of the West’s current crisis of democracy.9 The future of the EU, after Brexit, is very uncertain. Should the EU be abandoned by another major player, the kind of illiberal, authoritarian, right-wing populism represented by Russia would continue to spread, to the detriment of democracy and human rights.10 That’s already happening in places such as Hungary, where Prime Minister Viktor Orbán, of the right-wing populist Fidesz Party, openly admires Putin and has recently moved to shut down Central European University. Indeed, European elites themselves have begun to express a need to protect their countries and values not only from Russia, but potentially also from the United States, in which a Russian influence campaign helped elect an illiberal president about whom Alexander Dugin and other Russian elites have often been enthusiastic.11 In this regard, it is salient that the U.S. right-wing Breitbart News Network is seeking to expand into European markets, bringing the same narratives of xenophobia and religious traditionalism that helped mobilize Trump’s supporters. While Breitbart has not yet opened new offices in Germany or France, these plans seem not to have been tabled.12

To be sure, the enthusiasm of the Russian political establishment for the Trump administration has faded in recent weeks. In addition to disagreeing with Russia over Syria, the Trump administration has ham-handedly tried to distance itself from Russia after National Security Advisor Michael Flynn was forced to resign in February for failing to disclose that he discussed a possible lifting of Russian sanctions with Russian Ambassador to the U.S. Sergey Kislyak during the transition period. Russian politicians also became more cautious, even as they and Russian media rallied to the defense of Flynn. (In 2015 Flynn spoke at the 10th anniversary gala of the Russian propaganda network RT in Moscow, where he sat at Putin’s table. At a hearing before the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism on May 8, fired former Acting Deputy Attorney General Sally Yates confirmed that the Department of Justice believed Flynn to be compromised.)

But the shared illiberal agenda of Trump and Putin remains a threat to Europe. This April at a G7 meeting, U.S. Secretary of State Rex Tillerson—who in 2013 received the Russian Order of Friendship from Putin—unnerved many in Europe when he asked, “Why should U.S. taxpayers care about Ukraine?” Such a statement aids Putin’s goal of undermining democracy, even if Tillerson has also proven willing to give at least lip service to criticizing Russian aggression.13

And even apart from an immediate normalization of U.S.-Russian relations on Russian terms—something it seems the Trump team at least initially desired, and which would be geopolitically destabilizing as it would weaken NATO—the Trump administration is far more amenable to Dugin’s ideological goals than a Clinton administration would have been. With this in mind, Dugin’s declarations—that Washington, Chișinău, and Sofia are Russia’s—seem like more than mere braggadocio, even if they are inflated. Will Dugin be declaring “Berlin is ours” this fall?

Dugin is not a latter-day Rasputin, the peasant healer who was widely believed to hold undue influence over the last Romanov royal family. But, despite some assertions to the contrary from those seeking to downplay Dugin’s significance, he is also far from a fringe figure. Nina Kouprianova—the estranged wife of Alt Right leader Richard Spencer who writes pro-Putin and anti-Ukrainian commentary under the name Nina Byzantina—has translated some of Dugin’s far-right political theory into English, bolstering Dugin’s influence among American White supremacists. While Kouprianova has downplayed the relationship between Dugin and Putin,14 the latter’s foreign policy is clearly informed by Dugin’s worldview in ways that are relevant to Russian influence in European and U.S. politics, as Eurasia expert Casey Michel explains:

If Dugin’s name is at all familiar, it’s likely due to his neo-fascist screeds, posited as geopolitical analysis, that have begun swirling international trends. As Spencer is to the alt-right, so, too, is Dugin to the modern incarnation of “Eurasianism,” a geopolitical theory positing Russia as the inheritor of “Eternal Rome” and one of the primary ideological bulwarks pushing the Kremlin to carve eastern Ukraine into the fanciful entity of “Novorossiya.” While much of Dugin’s influence on the Kremlin has been over-hyped, Dugin’s Foundations of Geopolitics remains assigned to every member of Russia’s General Staff Academy [the premier Russian institution for continuing training of high-ranking military officers]. And despite Kouprianova’s claims that “there is no evidence of communication between” Dugin and Putin, Charles Clover, in his masterful history of Eurasianism, noted that Putin and Dugin met a few months after the former ascended to the presidency. “Soon,” wrote Clover, “there were sponsors, contacts, and open doors” for Dugin.15

Dugin was also reportedly a part of the entourage that accompanied Putin on his visit to the Orthodox Christian holy site Mt. Athos in Greece in May 2016.16 But however personally close to Putin Dugin may be, what should concern us most here is the spread of a “traditionalist” ideology that, following in the footsteps of early 20th Century fascism, rejects liberal democracy and individual moral autonomy. Contemporary Eurasianism, like interwar Eurasianism and other Russian schools of thought related to the 19th Century ideologies of Slavophilism and Pan-Slavism, posits a special destiny for Russia in uniting the peoples of the large Eurasian landmass that runs roughly from the Baltic Sea to the Pacific Ocean, in addition to a messianic role in the revival of Western civilization’s Christian roots.17

Click here a printable PDF.

Click here to read Chris Stroop’s 2016 article, “A Right-Wing International?”

In Putin’s third term in particular, Russia has positioned itself at the center of the right-wing international that propounds a “traditionalist” ideological tendency, and Dugin has emerged as one of the broader movement’s leading ideologues. As recent reports from NATO and Political Capital (a Hungarian think tank whose website describes it as “committed to the basic values of parliamentary democracy, human rights and a market economy”) have documented, Eurasianist ideology not only informs Russian foreign policy (such as Russia’s use of hybrid warfare, a military strategy that entails cyber and covert operations, including Russia’s use of troops without insignia in its invasion of Crimea and its officially-denied direct support for and presence in the rebel campaigns against the Ukrainian state), but also holds some attraction for Europeans disillusioned with austerity, immigration, and secularism.18

In light of the above, what are we to make of Dugin’s claim that Russia has won Washington, Chișinău, and Sofia? It is certainly overstated with respect to the latter. Bulgarian President Rumen Radev has called for the easing of EU sanctions against Russia, but also recently stated that he supports retaining Bulgaria’s membership in the EU and NATO, both of which Russia seeks to weaken.19 Sabra Ayres, a fellow with the International Women’s Media Foundation who researches Russian soft power tactics in Bulgaria and other parts of Europe, said that her research has not turned up any evidence of a significant Russian effort to see Radev elected.20

Pro-Russian Moldovan President Igor Dodon goes much further than Radev, however. Dodon openly declares that he aspires to be “a dictatorial leader, the same as Putin,” and claims to have received the blessing of Patriarch Kirill of Moscow and all Russia. Dodon achieved a narrow electoral victory (initially contested with claims of voting irregularities) over Western leaning rival Maia Sandu. He’d campaigned on a platform of moving to scrap Moldova’s EU association agreement—over which Moscow actually sanctioned Moldova in July 2014, banning the import of Moldovan wine, fruit, and vegetables—and integrating Moldova into the Moscow-centered Eurasian Economic Union. Dodon’s campaign was rife with anti-immigrant and homophobic rhetoric and marked by widespread disinformation, much like Donald Trump’s.21

With respect to President Trump, the U.S. intelligence community released a report in January expressing high confidence that Russian President Vladimir Putin ordered an influence campaign targeting the 2016 U.S. election that was intended to undermine U.S. confidence in the democratic process and to damage Hillary Clinton’s prospects. The CIA and FBI also have high confidence that in its effort, which involved hacking both Republican and Democratic targets but releasing damaging information only about Democrats, Russia “aspired to help President-elect Trump’s election chances.” Statements made at recent Senate hearings have confirmed these findings, and on May 8, before the Senate Judiciary Committee’s Subcommittee on Crime and Terrorism, former Director of National Intelligence James Clapper actually stated that the Russians behind the influence campaign targeting the 2016 U.S. election “must be congratulating themselves for having exceeded their wildest expectations.”22 In addition, the U.S. intelligence community reported in January that the same techniques that were used in this campaign—a blend of “covert intelligence operations—such as cyber activity—with overt efforts by Russian Government agencies, state-funded media, third-party intermediaries, and paid social media users or ‘trolls’”—are likely to be applied “to future influence efforts worldwide, including against US allies and their election processes.”23

In light of what is now known about the Russian role in the U.S. election, it is very plausible that Russia’s influence campaign played a key role in Trump’s Electoral College victory. The same type of Russian campaign appears to have swung Georgia’s 2012 presidential election, and there is no reason the same strategy cannot continue to effectively undermine other countries’ democratic processes unless vigilance is exercised and countermeasures are taken.24

Russian leaders perceive such actions as defensive. They push conspiracy theories about opposition to corruption and undemocratic policies in former Soviet republics such as Ukraine and Georgia being funded by liberal U.S. philanthropist George Soros, who has of late become a bugbear of Trump supporters and the U.S. Right as well. The Russian regime also rejects homegrown East European and post-Soviet efforts to protect universal human rights and work toward functional democracy as Western imports. While Russia’s reactions to perceived Western aggression have been disproportionate and unjustifiable, the West might have helped to stave off the current state of affairs if its leaders had taken Russia’s concerns about NATO expansion into consideration earlier.

Russian Soft Power and Information Warfare in Western Europe

Hacking is one of the most powerful tactics the Kremlin uses to influence other countries’ electoral processes, as the U.S. has been too slow to recognize. Germany and the Organization for Security and Cooperation in Europe have been recent targets of Russian hacking according to Germany’s intelligence services, and Germany has likewise expressed concerns about disinformation and possible hacking ahead of its parliamentary election slated for fall 2017.25

Hacking, however, is by no means the only tactic Russia uses to gain influence and sow disinformation in the West. In order to assess the outcomes of recent European elections and the prospects for upcoming European elections, we need to be aware of other methods of influence Russia employs. These include:

  • infiltration by spies;
  • hiring Western PR firms (in the past including Kissinger Associates and Ketchum) to help manipulate Western media and improve the Kremlin’s reputation among Westerners26;
  • supporting Eurasianist and pro-Kremlin think tanks, such as the Dialogue of Civilizations Research Institute in Berlin (which is funded through a foundation headed by the Russian oligarchs Natalia Yakunina, the chairperson, and Vladimir Yakunin, the vice-chairman27);
  • establishing cultural centers at universities through the Russkiy Mir foundation, which promotes not only benign cultural exchange but also Eurasianist ideology and the Kremlin line on Ukraine;
  • financing Far Right Western politicians and parties, such as Marine Le Pen’s National Front in France28;
  • promoting social conservatism and pro-Moscow views through representatives of the Russian Orthodox Church; and,
  • taking advantage of the West’s relative openness to flood the media with disinformation through “troll armies” and propaganda outlets such as RT, which had a $380 million budget in 2011.29

Russia has also played a role in facilitating relationships between right-wing European parties, for example with respect to the European Alliance for Freedom, a coalition that seeks to undermine the EU and liberal norms in the European Parliament.30

Through all of these methods, Russia looks to capitalize on pre-existing weaknesses. Russia did not create discontent with the neoliberal European establishment, explains Italian legal expert Pasquale Annicchino, a research fellow at the Robert Schuman Centre for Advanced Studies and senior research associate at the Cambridge Institute on Religion & International Studies; Euroskepticism is homegrown. One might add that the situation is exacerbated by a refugee crisis due overwhelmingly to failed U.S. foreign policy in the Middle East. Nevertheless, Annichino streses, Russia has proven capable of capitalizing effectively on the rising right-wing populist mood and exercises influence among politically extreme European groups.31

Annicchino has also done some of the most interesting research on how the Russian Orthodox Church has helped promote hardline conservatism in Europe by making common cause with traditionalists of other Christian confessions. Marcel Van Herpen, director of the Cicero Foundation and author of Putin’s Propaganda Machine: Soft Power and Russian Foreign Policy, has shown that the Russian Foreign Ministry and Orthodox Church often coordinate with the goal of promoting a “traditional values” agenda and attacking universal human rights at the UN and in other international settings.32

One case Annicchino has studied, the Lautsi controversy at the European Court of Human Rights, particularly illuminated this dynamic, when in 2011 the supranational court overturned a prior ruling that the compulsory display of crucifixes in Italian schools was a violation of the European Convention on Human Rights. The legal expertise that secured the 2011 ruling—greeted by conservatives as a triumph over secularism—was largely derived from American evangelicals and delivered through amicus curiae briefs filed by the European Center on Law and Justice—an organization co-founded by U.S. Christian Right advocate Jay Alan Sekulow to serve as a sister organization to his American Center on Law and Justice.33 Meanwhile, Annicchino writes, “the Russian Orthodox Church was at the forefront of the diplomatic battle,” with major representatives, including Patriarch Kirill, writing to the Vatican and to Italian Prime Minister Silvio Berlusconi in support of the original Italian law requiring the display of crucifixes in public schools. In this manner, the Moscow Patriarchate courted favor with conservative European Christians.

To Annicchino, the entire case is emblematic of what is sometimes referred to as the “new ecumenism”: the cooperation of distinct churches in pursuit of common goals.34 Another example may be found in the close ties between the Russian Orthodox Church with traditionalist European Catholics cultivated in particular by the ROC’s Chair of the Department of External Church Relations, Metropolitan Hilarion (Alfeyev), who regularly meets with Catholic cardinals in Europe and has a particularly intimate relationship with the Institute for Ecumenical Studies at Switzerland’s University of Fribourg, where he oversees exchange programs.35

Meanwhile, Italy’s Far Right Northern League has made no secret of looking to Russia not only as an economic partner, but also as a model for “the protection of the family.”36 It has created a cultural exchange program, the Lombardy-Russia Cultural Association, which receives funding from the Voice of Russia (since 2014 integrated into the publishing empire Sputnik, an increasingly important Russian propaganda outlet). The honorary president of the association is Alexey Komov, a right-wing advocate with substantial ties to both U.S. and Russian conservative coalitions, as the World Congress of Families’ regional representative for Russia and the Commonwealth of Independent States; the Howard Center for Family, Religion and Society’s representative to the United Nations; and a member of the Russian Orthodox Church’s Patriarchal Commission on the Family and the Protection of Motherhood and Childhood.37

The alliance of the Russian Orthodox Church with European and American Christian conservatives is just one example of the means by which Russia cultivates the Western Far Right.

The new ecumenism Annicchino describes also exemplifies what is sometimes called “bad ecumenism”: that is, interfaith activity designed to achieve domination and undermine pluralism rather than promote the common good. Such bad ecumenism has played no small part in ushering in the rise of right-wing fellow travelers around Moscow.38 The alliance of the Russian Orthodox Church with European and American Christian conservatives is just one example of the means by which Russia cultivates the Western Far Right, but it is an important one.39

Russia, Right-Wing Populism, and the European Political Landscape in 2017

In engaging in the kinds of activities described above, the Russian Orthodox Church pursues not only its own ends, but helps to advance Russian influence in the West. With this context in mind, we can step back to consider what Russian influence may mean in the current European political landscape.

During the lead-up to the Dutch election on March 15, the prospects for Geert Wilders’ Far Right Party for Freedom (PVV) concerned many. While Prime Minister Mark Rutte’s Center Right People’s Party for Freedom and Democracy (VVD) won with 21.3 percent of the vote, the Labor Party (PvdA) suffered considerable losses, and the PVV came in second with 13.1 percent. While the Far Right populist bullet was dodged in the Netherlands, negotiations toward a governing coalition are ongoing, and the surge for Wilders’ PVV is concerning.

But what of a Russian role? According to Van Herpen, with respect to the Dutch general election, there was no real need for Moscow to do more than continue to produce propaganda and disinformation.40 Wilders cannot be openly pro-Russian due to anti-Russian sentiment in the Netherlands related to the shooting down of Malaysia Airlines Flight 17 by Russia-backed separatists in Donbas using the Russian Buk missile system, and the Kremlin also knows that it must not appear to be too cozy with Wilders if it wants to see his party succeed.41 As a Euroskeptic party, however, PVV’s relative success is a threat to the EU. The Dutch vote against approval of the Ukraine-European Union Association Agreement in April 2016 is also relevant context.

Meanwhile, the French election represented a high stakes test for the viability of the European Union and the post-war order. When I interviewed Van Herpen in January, the race was expected to come down to a contest between Marine Le Pen and François Fillon of the center-right Republicans. Moscow’s affinity for Le Pen, leader of the far Right National Front, has been evident for some time, but Van Herpen noted that Russia could “wait and see” with respect to the French general election, since both Le Pen and Fillon have pro-Russian views.42

The race between Marine Le Pen and Emmanuel Macron represented a high stakes test for the viability of the European Union and the post-war order. (Photo: CC BY-SA 4.0 via Copyleft)

Of course, the contours of the French election changed in ways that confounded early forecasts. While Fillon’s prospects receded, center-right En Marche! party candidate Emmanuel Macron surged in the polls, overcame an initial Russian propaganda campaign, and faced Le Pen in the May 7 runoff, coming away with a resounding victory (just over 66 percent of the vote), although unusually low turnout for France (74 percent) indicated widespread dissatisfaction with both candidates.

Well before the first round of the election on April 23, French officials began preparing for a Russian influence blitz on behalf of Le Pen.43  Their foresight proved wise, as France was subjected to a fake news onslaught in which Russian propaganda outlets played a key role. After Macron’s initial surge, Sputnik published a claim that Macron is a closeted gay man with “a very rich gay lobby” behind him, and his campaign has also been targeted by hackers suspected of being part of a Russian influence campaign.44 Yet this failed to keep Macron out of the runoff, and an eleventh-hour assault of leaked documents and disinformation also failed to prevent Macron from winning in a landslide as projected by the polls.

A notable lesson from the election is that France seems comparatively well inoculated against the toxic effects of fake news, both institutionally and culturally. For example, France enforces a blackout on election coverage in the 44-hour period leading up to a presidential election, which in this case limited the impact of the last-minute document dump meant to harm Macron’s candidacy. The French-language edition of Sputnik covered the leaks, but the French public collectively shrugged. Culturally, as Johan Hufnagel, managing editor of the left-wing newspaper Libération, recently stated, “We don’t have a Fox News in France,” adding that French voters “were mentally prepared after Trump and Brexit and the Russians.”45

Of course, Le Pen’s nearly 34 percent of the French vote, an unprecedented result for the National Front, is nothing to sneeze at, and defenders of human rights must take it as a reminder that the forces of nationalism and right-wing populism are still powerful. At the same time, in an attempt to make herself more appealing during the campaign for the runoff, Le Pen announced that she would temporarily step aside as leader of the National Front in order, ostensibly, to bring together the entire French people. She has since announced that she will “recreate her National Front into a broader ‘patriotic’ party that would seek power in parliamentary elections next month.”46 Perhaps this is why, despite Le Pen’s espoused desire to withdraw France from the EU and her post-election claim to represent “patriots” over “globalisation supporters,” U.S. White nationalist Richard Spencer took to Twitter to whine that whatever emerges from the National Front will be most likely “become a cucky, GOP-like party.”47 Spencer also tweeted that “we’ve seen the limits of the typical Euro-Right nationalist parties,” suggesting “a global political party for White people” as one alternative going forward.48

“Because Merkel is the last powerful defender of the EU and of sanctions against Russia, the Kremlin will do its utmost best to remove her by influencing the election process by disinformation and, eventually, hacking.”

As encouraging as the French results are, there is still cause for concern. Just as defenders of Western institutions and norms may learn from what happened in France, so may purveyors of disinformation, including the Russian government. Russia will surely pull out all the stops to influence the German federal election scheduled for September 24, 2017. As Van Herpen argues, “Because Merkel is the last powerful defender of the EU and of sanctions against Russia, the Kremlin will do its utmost best to remove her by influencing the election process by disinformation and, eventually, hacking.” 49 Van Herpen’s book also notes the considerable affinity for Russia across the German political spectrum, including in Germany’s Social Democratic Party (SPD) as well as among right-wing nationalist forces, such as Alternative for Germany (AfD).50 Former German Chancellor Gerhard Schroeder has a warm personal relationship with Putin, and Russian soft power has a significant presence in Germany, including through the Kremlin-backed think tank Dialogue of Civilizations in Berlin, one of the founders of which was Russian oligarch Vladimir Yakunin. Should the German political landscape shift enough to remove Chancellor Angela Merkel’s Christian Democratic Union (CDU) from the next governing coalition, this will likely result in a Germany more willing to support Russian interests at the expense of robust support for democratic norms and supranational institutions. In a very real sense, then, Angela Merkel may be said to be the current leader of the free world—the United States under Trump has certainly abdicated the right to make any such claim for the American president—and Merkel’s removal from office would, at best, lead to increased destabilization and uncertainty for the EU’s future.

The Trump Factor: Why the 2016 U.S. Election Bodes Ill for Europe

Donald Trump speaking to supporters in Phoenix, Arizona, 2016.
(Photo: Gage Skidmore via Flickr).

At this point we may be disposed to ask the best known of the Russian “accursed questions”: what is to be done?51 Coming on the heels of the UK’s Brexit vote, Trump’s dubious, undemocratic, and quasi-covertly Russia-backed election to the U.S. presidency has certainly changed the picture relative to the European political landscape.52 America’s European allies have reason to be uncertain about the new administration’s willingness to honor Article 5 of NATO’s charter, which provides for collective defense, with an attack against one ally considered an attack against all. In the aftermath of the U.S. election, Britain was reportedly so concerned about the possibility that Moscow holds compromising material on Trump that it “sought reassurance from the CIA that the identity of British agents in Russia will be protected when intelligence is shared.”53 Israel’s intelligence services reportedly expressed similar concerns that information shared with the United States might be passed to Moscow.54 The departure of Flynn from the Trump administration and the open disagreement between the United States and Russia over Syria may have gone some way to assuage these concerns, but it is clear that serious questions remain about Russian influence on Trump himself.

Not too long ago, human rights advocates held out hope that the United States might be able to aid our European allies in pushing back against disinformation and influence campaigns from the Kremlin. On December 23, 2016, Congress passed the National Defense Authorization Act, which provided for the creation of a Global Engagement Center “to lead, synchronize, and coordinate efforts of the Federal Government to recognize, understand, expose, and counter foreign state and non-state propaganda and disinformation efforts aimed at undermining United States national security interests.”55 Under Trump, we cannot expect much good to come from any efforts that might begin under the aegis of this Center; even if in light of recent developments Trump has become more cautious about his repeatedly stated goal of improving relations with Russia, he is unlikely to go out of his way to counter Russian propaganda. In addition, on May 9, 2017, Trump sent shockwaves through the U.S. by firing FBI Director James Comey in what appears to be an attempt to shut down the FBI’s investigation into the Trump campaign’s ties to Russia and possible criminal activities (although the nominal reason provided by the Trump administration has to do with Comey’s handling of the Hillary Clinton email case).

Melissa Hooper, Director of Human Rights and Civil Society at the Washington- and New York-based nonprofit Human Rights First, had been among those hoping for a robust U.S. response to Russian influence after the 2016 election. Hooper previously worked with NGOs through the ABA Rule of Law Initiative as director for Russia and Azerbaijan. While based in Russia, Hooper became increasingly dismayed at the negative impact of the illiberal legislative efforts of Putin’s third term, including the 2012 “foreign agents” law that requires independent groups that engage in any “political activity” to register as “foreign agents” if they receive any funding from sources outside Russia.56 Having noticed Russia’s influence on the spread of illiberalism in Europe—for example, in Hungary under Orbán—Hooper came to Human Right First with concerns about the possibility of counteracting this trend.57

With funding from the Jackson Foundation, she organized a series of informal policy discussions throughout 2016—at Columbia University, Stanford University, and Human Rights First’s Washington, D.C., location—with experts from fields including advocacy, journalism, scholarly research, and technology, to consider approaches to countering Russian disinformation, influence, and support for far-right extremism in Europe. I participated in the last of these discussions, in December 2016, and the mood in the wake of Trump’s dubious win was far from cheery. Although proposed solutions involve both private and public actors and institutions, we participants were all clearly aware that the results of the U.S. election would make the task much more difficult. Nevertheless, there are steps that can be taken. As Hooper later explained to me:

We hope to act as a convener of civil society, so that with a unified voice we can help technology companies identify where they are contributing to threats rather than reducing them—in the areas of disinformation and publication of false stories, personal safety of rights workers, and the proliferation of hate speech targeting minority groups. And we hope we can then partner with companies to make sure their responses and proposed solutions are comprehensive, accessible, and effective.58

For his part, Van Herpen supports debunking Russian disinformation and creating counter-narratives that can prove attractive. He points to the website StopFake.org, which was founded at Kyiv’s Mohyla University and which is devoted to debunking Russian disinformation relative to the hybrid war in Ukraine. Van Herpen also believes that Western governments should impose stricter standards on Russian media produced for Western consumption and that Western states should invest in Russian-language media. With Breitbart planning to expand to Germany and France, Europe may soon be facing an onslaught of disinformation not only from Russia, but also from the United States.59

“Draining the Swamp” of Western Liberalism: A Russian-American Enterprise?

In light of Trump’s election and the potential expansion of Breitbart into European markets, Europe now faces a dual Russian-American onslaught of right-wing populist disinformation and fake news, sure to be backed up in cyberspace by Russian and American trolls and bots. The U.S. election results confirm that the power of media manipulation and post-truth politics to erode liberal democratic norms must not be underestimated. And it is significant that far-right Russian and American ideologues have already been collaborating in media manipulation for some time.

The neo-Eurasianist ideologue quoted at the beginning of this article, Alexander Dugin, has become a beloved comrade of America’s neo-Nazis, White nationalists, and Christian nationalists. Dugin has, for example, given a lecture at Texas A&M University at the invitation of Preston Wiginton (delivered via Skype because sanctions prevented him from traveling to the U.S.).60 Less well known, however, is that as a regular presence on the Russian outlet Tsargrad TV, Dugin has interviewed American conspiracist purveyor of fake news Alex Jones, of Infowars infamy. Tsargrad TV was founded by “God’s oligarch” Konstantin Malofeev, and it employs former FOX News producer Jack Hanick, who, along with his family, recently converted to Russian Orthodoxy.61

In a segment from the program “Our Point of View” (Nasha tochka zreniia) uploaded to YouTube by the official Tsargrad TV account on December 20, 2016, Dugin tells Jones “there is a political elite that is organizing a color revolution against us.” Referring to this elite as “the global dictatorship,” Dugin adds “Clinton, Soros, the Obama Administration—that which is called the Deep State, will also organize a color revolution against Trump, not wanting to recognize the democratic victory of the American people.” He added, “We need to think about how all of us together—Americans, Russians, Europeans—what we can do to oppose this elite.”62 Jones agreed with Dugin’s call to oppose “globalism,” asserting it is a matter of “survival.”63

For Dugin, “draining the swamp” has much more to do with a desire to wage extremist culture wars than it does with rooting out political corruption.

With this context in mind, we can return to Dugin’s words quoted at the beginning of this article: “It remains but to drain the swamp in Russia itself.” There’s no need to guess Dugin’s meaning, since he’s told us himself—and in English, no less—on the site of Katehon, a Eurasianist “think tank” whose supervisory board’s president is none other than Konstantin Malofeev.64 For Dugin, “draining the swamp” has much more to do with a desire to wage extremist culture wars than it does with rooting out political corruption (something that U.S. columnist Amanda Marcotte argues was also the implicit promise to Trump supporters all along).65

On November 14, 2016, Katehon published Dugin’s essay, “Donald Trump: The Swamp and the Fire,” along with an illustration featuring European political leaders, including Angela Merkel and François Hollande, caricatured as swamp creatures. Dugin’s essay opens with this pronouncement:

“The Swamp” is to become the new name for the globalist sect, the open society adepts, LGBT maniacs, Soros’ army, the post-humanists, and so on. Draining the Swamp is not only categorically imperative for America. It is a global challenge for all of us. Today, every people is under the rule of its own Swamp. We, all together, should start the fight against the Russian Swamp, the French Swamp, the German Swamp, and so on. We need to purge our societies of the Swamp’s influence.

Dugin goes on to claim that “anti-Americanism is over” thanks to the election of Trump, and to call for “a Nuremberg trial for liberalism, the last totalitarian political ideology of Modernity.”

Dugin goes on to claim that “anti-Americanism is over” thanks to the election of Trump, and to call for “a Nuremberg trial for liberalism, the last totalitarian political ideology of Modernity.”  Once representing the “apocalyptical monsters” of capitalism and Communism, Russia and America, in Dugin’s view, now represent “two eschatological promises”—that is, in Dugin’s understanding of “traditionalism,” an illiberal Russia and America working to destroy liberalism would bring the world into better alignment with God’s ostensible plans for humanity.66

Like Dugin, Trump’s chief strategist, Steve Bannon, is given to violent rhetoric. In a 2014 speech he gave via Skype for a conference held at the Vatican, Bannon bizarrely and inaccurately described World War II as a war of “the Judeo-Christian West versus atheists,” which led to the relatively benign Pax Americana. Bannon added that, since the end of the Cold War, both sides face “a crisis both [sic] of our church, a crisis of our faith, a crisis of the West, a crisis of capitalism.” He predicted that “we’re at the very beginning stages of a very brutal and bloody conflict” in which the “church militant” will have to play a role, lest modern “barbarity” “eradicate everything that we’ve been bequeathed over the last 2,000, 2,500 years.”67

Dugin and Bannon would undoubtedly disagree on certain matters regarding capitalism and Islam. Because Russia is home to large Muslim populations of different ethnic backgrounds, and the Russian state mobilizes Muslim leadership to pursue its traditional values agenda domestically—just as it does leaders of the Russian Orthodox Church and other faiths—Russia cannot overtly support wholesale Islamophobia, despite frequent ethnic Russian opposition to the construction of new mosques. Nevertheless, both Dugin and Banon call for a violent international fight against secularism and liberalism. It also is not clear precisely how and in what manner President Trump may change U.S.-Russian relations, as he has received some pushback on his foreign policy agenda, and has upset the Russian political establishment with his actions in Syria. It is clear, however, that many Russian and American conservative leaders and ideologues continue to see potential for Russian-American global collaboration in the right-wing international in pursuit of Far Right ends. Let us hope that European governments and international institutions—and, more broadly, democratic norms and universal human rights—will ultimately prevail against the onslaught.

 

Endnotes

1 Alexander Dugin’s Facebook page, accessed January 17, 2017, https://www.facebook.com/alexandr.dugin/posts/1359831577360212. While Dugin is clearly using the same rhetoric as Donald Trump and his supporters with respect to “drain the swamp” (and numerous other talking points), a more literal translation of the verb he uses, “высушить,” would be “dry out,” which fits better with the other metaphor he frequently invokes in this context, that of fire.

2 Alexander Dugin, “Russian Geopolitician: Trump is Real America,” Katehon, February 2, 2016. http://katehon.com/article/russian-geopolitician-trump-real-america .

3 “Treasury Announces New Designations of Ukrainian Separatists and their Russian Supporters,” US Department of the Treasury, March 11, 2015, https://www.treasury.gov/press-center/press-releases/Pages/jl9993.aspx.

4 Patrick Buchanan, “Whose Side is God on Now?” Patrick J. Buchanan – Official Website, April 4, 2014, http://buchanan.org/blog/whose-side-god-now-6337. For more details, see Christopher Stroop, “The Russian Origins of the So-Called Post-Secular Moment: Some Preliminary Observations,” State Religion and Church 1:1 (2014), 59-82, https://www.academia.edu/5949640/The_Russian_Origins_of_the_So-Called_Post-Secular_Moment_Some_Preliminary_Observations .

5 Christopher Stroop, “A Right-Wing International? Russian Social Conservatism, the US-Based World Congress of Families, and the Global Culture Wars in Historical Context,” The Public Eye, winter 2016, 4-10, http://www.politicalresearch.org/2016/02/16/russian-social-conservatism-the-u-s-based-wcf-the-global-culture-wars-in-historical-context/.

6 David Duke, “Is Russia the Key to White Survival?,” DavidDuke.com, October 23, 2004, http://davidduke.com/is-russia-the-key-to-white-survival/.

7 Casey Michel, “Meet the Moscow Mouthpiece Married to a Racist Alt-Right Boss,” The Daily Beast, December 20, 2016, http://www.thedailybeast.com/articles/2016/12/20/meet-the-moscow-mouthpiece-married-to-a-racist-alt-right-boss.html.

8 For a recent summary take, see Casey Michel, “How Russia Became the Leader of the Global Christian Right,” Politico, February 9, 2017, http://www.politico.com/magazine/story/2017/02/how-russia-became-a-leader-of-the-worldwide-christian-right-214755.

9 For a timely consideration of Russian influence and disinformation relative to Europe, and the Soviet historical context, see Marcel H. Van Herpen, Putin’s Propaganda Machine: Soft Power and Russian Foreign Policy (Lanham: Rowman & Littlefield, 2016). On Putinist Russia as an exporter of right-wing ideology, see Stroop, “A Right-Wing International?”

10 On Hungary’s move to close down Central European University, see David Matthews, “Central European University Fights for Survival in Hungary,” The Times Higher Education, March 29, 2017, https://www.timeshighereducation.com/news/central-european-university-fights-for-survival-in-hungary.

11 Klaus Brinkbäumer, “Europe Must Defend itself against a Dangerous President,” Der Spiegel, February 5, 2017, http://www.spiegel.de/international/world/a-1133177-amp.html.

12 Emily Flitter, “Exclusive: Riding Trump Wave, Breitbart News Plans US, European Expansion,” Reuters, November 9, 2016, http://www.reuters.com/article/us-usa-election-trump-strategy-idUSKBN1342TP.

13 Olivia Beavers, “Tillerson Asks European Diplomats why US Taxpayers Should Care about Ukraine,” The Hill, April 11, 2017, http://thehill.com/homenews/administration/328385-tillerson-asked-european-diplomats-why-us-taxpayers-should-care-about.

14 For the claim that Dugin does not advise Putin, see Kouprianova’s tweet: https://twitter.com/NinaByzantina/status/808108740645912576, last accessed January 17, 2017.

15 Michel, “Meet the Moscow Mouthpiece.”

16 Simon Shuster, “Exclusive: Putin Aide Vladislav Surkov Defied EU Sanctions to Make Pilgrimage to Greece,” Time, September 2, 2016, http://time.com/4476005/vladislav-surkov-putin-athos-greece-sanctions/.

17 For more details see Stroop, “A Right-Wing International?”

18 Vira Ratsiborynska, “When Hybrid Warfare Supports Ideology: Russia Today,” Research Division – NATO Defense College, Rome. No. 133, November 2016, 5-9, http://www.ndc.nato.int/news/news.php?icode=994. “The Russian Connection. The Spread of Pro-Russian Policies on the European Far Right,” Political Capital Institute, March 14, 2014, 4-6, http://www.riskandforecast.com/useruploads/files/pc_flash_report_russian_connection.pdf. And see Stroop, “A Right-Wing International?” for more on how Russia attracts right-wing fellow travelers from the West.

19Kerin Hope and Henry Foy, “Pro-Russian Presidential Candidates Win in Bulgaria and Moldova,” Financial Times, November 14, 2016, https://www.ft.com/content/3b75e064-aa59-11e6-809d-c9f98a0cf216.

20 Sabra Ayres, email interview with author.

21 Anna Nemtsova, “Igor Dodon is Vladimir Putin’s Moldovan Mini-Me,” The Daily Beast, October 29, 2016, http://www.thedailybeast.com/articles/2016/10/29/igor-dodon-is-vladimir-putin-s-moldovan-mini-me.html. It is important to remember that the breakaway Moldovan region of Transnistria remains occupied by a small contingent of Russian troops and represents one of a number of intractable post-Cold War “frozen conflicts.”

22 Demetri Sevastopulo, “Trump was warned twice on risk of Russia blackmailing Flynn,” Financial Times, May 9, 2017, https://www.ft.com/content/8880e674-3433-11e7-99bd-13beb0903fa3.

23 Office of the Director of National Intelligence, “Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent US Elections,” January 6, 2017, ii-iii, https://www.dni.gov/files/documents/ICA_2017_01.pdf.

24 Melik Kaylan, “The Other Time Vladimir Putin Swung an Election,” Politico, Nov 4, 2016, http://www.politico.eu/article/vladimir-putin-replicates-his-georgia-model-in-the-us/.

25 Justin Huggler, “Germany Accuses Russia of Cyber Attack on Ukraine Peace Monitors, as Kremlin Dismisses US Intelligence Claims as a ‘Witch Hunt,’” The Telegraph, January 9, 2017, http://www.telegraph.co.uk/news/2017/01/09/germany-accuses-russia-cyber-attack-ukraine-peace-monitors-kremlin/. Kate Connolly, “German Spy Chief Says Russian Hackers Could Disrupt Elections,” The Guardian, November 29, 2016, https://www.theguardian.com/world/2016/nov/29/german-spy-chief-russian-hackers-could-disrupt-elections-bruno-kahl-cyber-attacks.

26 See Van Herpen, Putin’s Propaganda Machine, 49-50; Dennis Lynch, “Russia, Ketchum End Controversial Nine-Year Public Relations Partnership,” International Business Times, March 11, 2015, http://www.ibtimes.com/russia-ketchum-end-controversial-nine-year-public-relations-partnership-1844092.

27 Management, Dialogue Of Civilizations Endowment Fund, 2017, http://dofc-foundation.org/management/. On Russia’s “NGO diplomacy,” see also “The Russian Connection,” 5.

28 “The Russian Connection” (p. 5) argues, however, that in many cases “the gains from the trade-off for Far Right parties are not necessarily financial, as commonly assumed, but more valuable professional, organizational and media assistance, i.e., access to networks and political know-how.”

29 The most comprehensive treatment of all the methods listed in this paragraph is Van Herpen, Putin’s Propaganda Machine. For the RT budget figure, see p. 71.

30 “The Russian Connection,” 6.

31 Pasquale Annicchino, personal interview with author, December 24, 2016. Full disclosure: Annicchino and I are both senior research associates with the Postsecular Conflicts research initiative at the University of Innsbruck.

32 Van Herpen, Putin’s Propaganda Machine, 138-146.

33 The ACLJ has also been involved in efforts to criminalize homosexuality in African countries. See Kapya Kaoma, “Beyond Lively and Warren: U.S. Conservative Legal Groups Changing African Law to Persecute Sexual Minorities and Women,” Political Research Associates, April 22, 2014, http://www.politicalresearch.org/2014/04/22/beyond-lively-warren-u-s-conservative-legal-groups-changing-african-law-to-persecute-sexual-minorities-women/#sthash.RDyAiJfy.dpbs.

34 Pasquale Annicchino, “Winning the Battle by Losing the War: The Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity,” Religion and Human Rights 6 (2011), 213-219, esp. 216-218.

35 See reports from the University of Fribourg’s Center for Ecumenical Studies at http://www.unifr.ch/iso/de/memoria/anderson/news_2013 and http://www.unifr.ch/iso/assets/files/Hilarion_50_D.pdf.

36 “The Russian Connection,” 7.

37 Nico Hines and Pierre Vaux, “Why Putin is Meddling in Britain’s Brexit Vote,” The Daily Beast, June 8, 2016, http://www.thedailybeast.com/articles/2016/06/08/why-putin-is-meddling-in-britain-s-brexit-vote.html. Komov is currently listed as honorary president on the association’s website: http://www.lombardiarussia.org/index.php/associazione/chi-siamo. For more on the influence of Komov, see Stroop, “A Right-Wing International?” See also Cole Parke, “Natural Deception: Conned by the World Congress of Families,” Political Research Associates, January 21, 2015, http://www.politicalresearch.org/2015/01/21/natural-deception-conned-by-the-world-congress-of-families/.

38 Christopher Stroop, “Bad Ecumenism: The American Culture Wars and Russia’s Hard Right Turn.” The Wheel 6 (summer 2016), 20-24.

39 While commentators such as Van Herpen present the Russian Orthodox Church—at least in terms of its elite leadership—as essentially a branch of the Russian state, Brandon Gallaher, Lecturer of Systematic and Comparative Theology at University of Exeter and a specialist in Russian Orthodoxy, stressed to me that the church does pursue its own goals but that in its attempt to promote what it sees as Christian values it has allowed itself to become dependent on the Russian state to the point of cooptation. Brandon Gallaher, personal interview with author, January 13, 2017.

40 Marcel van Herpen, email interview with author.

41 Marcel van Herpen, email interview with author..

42 Moscow has cultivated a relationship with Le Pen, whom Putin met at the Kremlin on March 24, for some time, and could only be very pleased by Le Pen’s promise to abandon the EU.

43 Emily Tamkin, “French Intelligence Agency Braces for Russian Bots to Back Le Pen,” Foreign Policy, February 8, 2017, http://foreignpolicy.com/2017/02/08/french-intelligence-agency-braces-for-russian-bots-to-back-le-pen/.

44 Andrew Higgins, “It’s France’s Turn to Worry about Election Meddling by Russia,” New York Times, April 17, 2017. https://www.nytimes.com/2017/04/17/world/europe/french-election-russia.html?_r=0

45 Quoted in Rachel Donadio, “Why the Macron Hacking Attack Landed with a Thud in France,” New York Times, May 8, 2017, https://www.nytimes.com/2017/05/08/world/europe/macron-hacking-attack-france.html.

46 Charles Bremner and Adam Sage, “Landslide Victory for Marcon,” The Times of London, May 8, 2017, https://www.thetimes.co.uk/edition/news/landslide-for-macron-fns37zvpq.

47 Richard Spencer’s Twitter, May 7, 2017, https://twitter.com/RichardBSpencer/status/861300992419258370.

48 Richard Spencer’s Twitter, May 7, 2017, https://twitter.com/RichardBSpencer/status/861291632817303552; https://twitter.com/RichardBSpencer/status/861293328909967360

49 Marcel van Herpen, email interview with author.

50 Van Herpen, Putin’s Propaganda Machine, esp. chapters 12, 13, and 14.

51 The other two are “Who is to blame?” and “Who beats whom?”

52 With respect to Brexit, while the Kremlin did not overtly back the Vote Leave campaign, it was given preferential treatment in Russian propaganda outlets RT and Sputnik. Hines and Vaux, “Why Putin is Meddling in Britain’s Brexit Vote.”

53 Tim Shipman, et al. “Trump Wants Putin Summit in Reykjavik. Britain Fears Leak of its Secrets to Moscow,” The Times, January 15, 2017, http://www.thetimes.co.uk/article/trump-wants-putin-summit-in-reykjavik-rc909n9t0.

54 Sheera Frenkel, “Spy Agencies around the World are Digging into Trump’s Moscow Ties,” BuzzFeed, January 13, 2017, https://www.buzzfeed.com/sheerafrenkel/spy-agencies-around-the-world-are-digging-into-trump-moscow?utm_term=.rkgP7xyO9#.fqBQMJo0O.

55 S.2943 – National Defense Authorization Act for Fiscal Year 2017, section 1287, https://www.congress.gov/bill/114th-congress/senate-bill/2943/text.

56 “Russia Government vs. Rights Groups. The Battle Chronicle,” Human Rights Watch, February 21, 2017, https://www.hrw.org/russia-government-against-rights-groups-battle-chronicle.

57 Melissa Hooper, personal interview with author, December 27, 2016.

58 Melissa Hooper, personal interview with author.

59 Flitter, “Exclusive: Riding Trump Wave.”

60 Michel, “Meet the Moscow Mouthpiece.”

61 Joshua Keating, “God’s Oligarch,” Slate, October 20, 2014, http://www.slate.com/articles/news_and_politics/foreigners/2014/10/konstantin_malofeev_one_of_vladimir_putin_s_favorite_businessmen_wants_to.html.

“Jack Hanick and His Family Have been Received into Orthodoxy in Moscow,” Pravoslavie.ru, May 10, 2016, http://www.pravoslavie.ru/english/93209.htm.

62 “Александр Дугин: о борьбе с глобализмом [Наша точка зрения],” YouTube video, December 20, 2016, https://www.youtube.com/watch?v=Eve4ba78TO8, last accessed January 17, 2017.

63 “Наша точка зрения: Алекс Джонс о борьбе Трампа,” YouTube video, December 20, 2016, https://www.youtube.com/watch?v=3iNFjW85P40, last accessed January 17, 2017. Although uploaded separately, one after another on December 20, 2016, it is clear that this clip follows immediately upon the previously cited clip.

64 Per Katehon’s website: http://katehon.com/about-us, last accessed January 19, 2017.

65 Amanda Marcotte, “‘Drain the Swamp’—of all Those P.C. liberals! Turns Out Trumpers Don’t Care about Lobbyists or Plutocrats,” Slate, December 21, 2016, http://www.salon.com/2016/12/21/drain-the-swamp-of-all-those-p-c-liberals-turns-out-trumpers-dont-care-about-lobbyists-or-plutocrats/.

66 Alexander Dugin, “Donald Trump: The Swamp and the Fire,” Katehon, November 14, 2016, http://katehon.com/article/donald-trump-swamp-and-fire.

67 Providing minimal commentary, Feder reprints Bannon’s speech in its entirety: J. Lester Feder, “This is How Steve Bannon Sees the Entire World,” BuzzFeed, November 15, 2016. https://www.buzzfeed.com/lesterfeder/this-is-how-steve-bannon-sees-the-entire-world?utm_term=.jcmbxBX3N#.jk64yNxb2, last accessed January 19, 2017.

 

#First100Days Crash Course: Week 11

Coinciding with Trump’s first 100 days in Office — a period of time historically used as a benchmark to measure the potential of a new president — PRA will share readings, videos, and tools for organizing to inform our collective resistance based on principles for engaging the regime, defending human rights, and preventing authoritarianism. Daily readings will be posted on our Facebook and Twitter accounts and archived HERE.

Week 11: Reproductive justice

The more recent trend in anti-reproductive justice attacks is a state-by-state approach designed to gradually chip away at existing rights. According to the Guttmacher Institute, in the 40+ years since Roe v. Wade, states have enacted over 1,000 abortion restrictions. These laws and policies have expanded requirements for parental involvement and abortion counseling, and apply limits to medication abortions, later abortions, and coverage requirements from private insurance companies. Other strategies, such as the Prenatal Nondiscrimination Act (PRENDA), effectively manipulate the language of equality and exploit negative stereotypes about women of color in order to advance their agenda. Additionally, the Right’s redefinition of religious liberty — as exemplified in the Supreme Court’s Hobby Lobby ruling — represents a serious threat to reproductive justice and civil liberties more broadly.

Featured resources:

Additional Readings:

Engage:

The National LGBTQ Task Force Action Fund has developed the Queering Reproductive Justice toolkit to support the integration of repro* and LGBTQ advocacy. The toolkit aims to help advocates understand the intersection and allow them to better reflect and serve the repro* needs of LGBTQ people.

Whole Woman’s Health’s Unexpected Win for Science

Click here to download the article as a PDF.

This article appears in the Fall 2016 edition of The Public Eye magazine.

In June 2016, the Supreme Court struck down a Texas anti-abortion TRAP (Targeted Regulation of Abortion Providers) law that threatened to shutter all but a handful of the state’s clinics by requiring them to meet costly ambulatory surgical center standards and for their doctors to obtain admitting privileges at local hospitals.

The law, known as Texas Senate Bill 5, was an example of how the anti-abortion movement has used false scientific claims to incrementally cut off abortion rights. Americans United for Life (AUL), a “bill mill” that provides anti-abortion model legislation for conservative lawmakers,1)Erica Hellerstein, “Inside The Highly Sophisticated Group That’s Quietly Making It Much Harder To Get An Abortion,” Think Progress, December 2, 2014, available at: https://thinkprogress.org/inside-the-highly-sophisticated-group-thats-quietly-making-it-much-harder-to-get-an-abortion. recommends these restrictions under the guise of its “Women’s Protection Project,” which deploys false claims about women’s health to enact medically unnecessary regulatory obstacles that force many clinics to close.2)Americans United for Life, “Defending Life 2016,” accessed August 26, 2016, available at: http://www.aul.org/defending-life-2016/. (Meeting detailed ambulatory surgical standards, for instance, would require prohibitively expensive renovations for most reproductive health clinics without improving quality of care. And requiring hospital admitting privileges presents a particularly absurd catch-22, since some hospitals only grant privileges to doctors regularly needing to hospitalize patients—a rarity for abortion providers.3)American Civil Liberties Union, “TRAP FAQ Fact Sheet,” accessed August 26, 2016, available at: https://www.aclu.org/files/assets/TRAP_FAQ_FactSheet.pdf. ) This has been an effective tactic; by the time of the Whole Woman’s Health ruling, at least 18 clinics in Texas had closed due to the law’s requirements.4)Brittney Martin, “Abortion down 14 percent in Texas since new restrictions closed clinics,” accessed October 17, 2016, available at: http://www.dallasnews.com/news/politics/2016/03/17/abortion-down-14-percent-in-texas-since-new-restrictions-closed-clinics

Prior SCOTUS decisions upholding abortion restrictions deterred advocates from attempting legal challenges to much of the legislation chipping away at reproductive rights. But this time, the Supreme Court delivered a significant victory. Writing the majority opinion in Whole Woman’s Health v. Hellerstedt, Justice Stephen Breyer rejected the lower court’s argument “that legislatures, and not courts, must resolve questions of medical uncertainty,” such as whether Texas’ restrictions were medically warranted. Ironically, Breyer’s opinion built on case law established by a prior ruling that upheld restrictions on abortion access, but which also established that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”5)Whole Woman’s Health v. Hellerstedt, June 27, 2016, available at: https://www.law.cornell.edu/supremecourt/text/15-274.

Beyond protecting the rights of Texas women, with this ruling Breyer established a new standard: no longer would the courts turn a blind eye while conservative state legislators use junk science and specious claims about women’s health to circumvent the prohibition enshrined in Roe v. Wade on creating an “undue burden” to abortion access.

The ruling established a new standard: no longer would the courts turn a blind eye while conservative state legislators use junk science and specious claims about women’s health to circumvent the prohibition enshrined in Roe v. Wade on creating an “undue burden” to abortion access.

It’s been a longstanding right-wing tactic to deploy false evidence to support TRAP laws such as the one at stake in Whole Woman’s Health, and to misleadingly claim that there is scientific uncertainty around an issue or procedure by putting forward its own dubious research. Writing for The Public Eye a decade ago, Pam Chamberlain concluded that advocates of “Biased, Agenda-Driven” science should be seen as “efficient cogs in the machinery that drives the current movement to limit women’s reproductive health and freedom.”6)Pam Chamberlain, “Politicized Science: How Anti-Abortion Myths Feed the Christian Right Agenda.” June 4, 2006, available at: http://www.politicalresearch.org/2006/06/04/politicized-sciencehow-anti-abortion-myths-feed-the-christian-right-agenda/. Devoted to undermining medical evidence as “fraudulent,” anti-abortion scientists substitute their own discredited “facts”: for instance, the persistent claim that abortion causes breast cancer, which disregards the findings of multiple large-scale peer-reviewed studies and conclusions from the American Cancer Society and the National Cancer Institute.7)Ally Boguhn & Amy Littlefield, “From Webbed Feet to Breast Cancer, Anti-Choice ‘Experts’ Renew False Claims,” July 13, 2016, available at: https://rewire.news/article/2016/07/13/webbed-feet-breast-cancer-anti-choice-experts-renew-false-claims/.

This right-wing research almost never makes it into peer-reviewed journals that screen for flaws in methodology or analysis that yield biased results. For instance, the American Cancer Society details the methods of rigorous studies on abortion and breast cancer, explaining how factors such as recall bias, in which “women with breast cancer are more likely to accurately report their reproductive histories, including a history of having an abortion,” can produce the appearance of a link where none exists.8)American Cancer Society, “Is Abortion Linked to Breast Cancer?” Accessed August 26, 2016, available at: http://www.cancer.org/cancer/breastcancer/moreinformation/is-abortion-linked-to-breast-cancer. In a rare case in which a study claiming a link between abortion and mental illness successfully passed itself off as legitimate, journal editors later discovered significant errors that led them to disavow the finding as unsupported by the data.9)Sharon Begley, “Journal disavows study touted by U.S. abortion foes.” March 7, 2012, available at: http://www.reuters.com/article/us-journal-abortion-idUSTRE82624A20120307. So when scientists talk about reaching “scientific consensus,” they mean findings supported by overwhelming agreement from peer-reviewed sources and experts—not from a proliferation of illegitimate, ideologically-driven studies.

But that’s not the way “science” is being used in making anti-abortion law. The National Right to Life Committee (NRLC) coined the incendiary nonmedical term “partial-birth” abortion to help pass a federal ban on a late-term procedure.10)Julie Rovner, “‘Partial-Birth Abortion:’ Separating Fact from Spin,” February 21, 2006, available at: http://www.npr.org/2006/02/21/5168163/partial-birth-abortion-separating-fact-from-spin. The resulting 2003 Act asserted, “A moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion … is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.”11)Partial-Birth Abortion Act, Accessed August 26, 2016, available at: https://www.gpo.gov/fdsys/pkg/PLAW-108publ105/html/PLAW-108publ105.htm. Reproductive rights advocates challenged the ban in Gonzales v. Carhart for denying access to a standard late-term abortion practice, intact dilation and extraction (intact D&E, also known as D&X) without an exception to protect women’s health.

Whole Woman's Health v. Hellerstedt

Rally in front of the Supreme Court during the Whole Woman’s Health v. Hellerstedt hearing on March 2nd, 2016. Photo: Victoria Pickering via Flickr. License: https://creativecommons.org/licenses/by-nc-nd/2.0/.

In explaining the Carhart decision, which upheld the ban, swing vote Justice Anthony Kennedy assumed (admitting he lacked “reliable data”) that some women suffer regret and depression after abortion and would “struggle with grief more anguished and sorrow more profound” upon learning details of the procedure. This concern suggests the influence of a popular piece of anti-abortion science, “Post-Abortion Stress Syndrome,” a condition not recognized by the American Psychological Association or American Psychiatric Association in which women are supposedly traumatized by regret.12)Susan A. Cohen, “Abortion and Mental Health: Myths and Realities.” Guttmacher Policy Review. August 1, 2006, available at: https://www.guttmacher.org/about/gpr/2006/08/abortion-and-mental-health-myths-and-realities. Kennedy further wrote, “There is documented medical disagreement [on] whether the Act’s prohibition would ever impose significant health risks on women…The Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”13)Gonzales v. Carhart, April 18, 2007, available at: https://www.law.cornell.edu/supct/html/05-380.ZO.html.

However, as a press release from the American Congress of Obstetricians and Gynecologists pointed out at the time, this was not in fact an area of medical uncertainty. Rather, the release explained, “This decision discounts and disregards the medical consensus that intact D&E is safest and offers significant benefits for women suffering from certain conditions that make the potential complications of non-intact D&E especially dangerous.”14)The American Congress of Obstetricians and Gynecologists, “ACOG Statement on the US Supreme Court Decision Upholding the Partial-Birth Abortion Ban Act of 2003.” April 18, 2007, available at: www.acog.org/About_ACOG/News_Room/News_Releases/2007/ACOG_Statement_on_the_US_Supreme_Court_Decision.

In affirming the unfounded argument offered by the ban’s defenders regarding “scientific uncertainty,” the Court set a disheartening precedent for reproductive rights advocates—and provided encouragement for anti-abortion advocates seeking to undermine the meaning of scientific uncertainty by stacking their own flawed studies against peer-reviewed research.

NRLC argued in a January 2015 memo that Carhart would support their new legislative focus, the “Unborn Child Protection from Dismemberment Abortion Act,” which again used nonmedical terminology to stir emotion while obfuscating the actual practice being restricted—dilation and evacuation, the non-intact D&E procedure that Carhart pointed to as a sufficient alternative.15)Mary Spaulding Balch, “Constitutionality of the Unborn Child Protection from Dismemberment Abortion Act,” January 2015, available at: www.nrlc.org/uploads/stateleg/NRLCConstitutionalityDismembermentJan15.pdf. The NRLC aims to appeal to Justice Kennedy’s apparent personal discomfort with abortion with this as well as another legislative focus: 20-week abortion bans that are based on an alleged fetal capacity for pain, despite medical evidence to the contrary.16)Amy Littlefield, “Anti-Choice Group Faces Fundraising Gap in ‘Topsy-Turvy Year,’” July 12, 2016, available at: https://rewire.news/article/2016/07/12/lackluster-conference-anti-choice-group-confronts-topsy-turvy-year/.

The recent decision in Whole Woman’s Health, though, breathes meaning back into science and cracks the foundation of the right-wing strategy of using manipulative, junk research. The ruling immediately thwarted efforts to maintain similar TRAP laws in Alabama, Mississippi, and Wisconsin.17)Laurel Raymond, “The Texas SCOTUS Decision Is Already Toppling Other Abortion Restrictions,” June 28, 2016, available at: https://thinkprogress.org/the-texas-scotus-decision-is-already-toppling-other-abortion-restrictions-ff1f988fcf1b#.uftnrhhey . In August, the Center for Reproductive Rights (CRR), whose lawyer Stephanie Toti argued the Whole Woman’s Health case, threatened legal action if Texas enacts legislation based on a new AUL model bill that would require abortion providers to bury or cremate aborted fetuses. This measure is intended to raise clinic costs by claiming ludicrous public health risks (like HIV contamination of the water supply) and using manipulative rhetoric about fetal dignity.18)Teddy Wilson, “Texas’ ‘Fetal Remains’ Rule Could Draw Legal Action,” August 2, 2016, available at: https://rewire.news/article/2016/08/02/texas-fetal-remains-rule-legal-action/. A CRR press release stated: “the regulations offer no public health or safety benefit and therefore fly directly in the face of the Supreme Court’s decision in Whole Woman’s Health v Hellerstedt.”19)Center for Reproductive Rights, “Center for Reproductive Rights Calls on Texas to Abandon Latest Unconstitutional Attempt to Restrict Safe, Legal Abortion,” August 2, 2016, available at: http://www.reproductiverights.org/press-room/center-for-reproductive-rights-calls-on-texas-to-abandon-latest-unconstitutional-attempt- .

The Whole Woman’s Health decision and the reasoning given for it provided an energizing victory not just for reproductive rights and justice supporters, but more broadly for policy grounded in rigorous, evidence-based science. The Right relies on biased science in other areas as well, such as abstinence-only education or denying transgender rights. Whole Woman’s Health has already motivated lower courts to strike down voting restrictions that are based on “mostly phantom election fraud.”20)Mark Joseph Stern, “Voting Rights on the March,” August 1, 2016, available at: http://www.slate.com/articles/news_and_politics/jurisprudence/2016/08/why_courts_are_striking_down_voting_rights_restrictions_right_now.html .

The impact of the assault on science goes beyond the courts and legislative arena to influence conservative movement mobilization as well. From the 72 percent of Republicans who deny human causes of climate change to the 40-odd percent of Americans who believe in creationism over evolution, the confident dismissal of reputable scientific sources is a core part of the U.S. right-wing identity today.21)Zach Kopplin, “ ‘I Believe in Science’ Should Not Be a Showstopper,” July 29, 2016, available at: http://www.slate.com/articles/health_and_science/science/2016/07/hillary_clinton_believes_in_science_that_shouldn_t_be_noteworthy.html . In studying the persistence of climate change doubt in the face of 97 percent scientific consensus,22)John Cook, et al. “Consensus on consensus: a synthesis of consensus estimates on human-caused global warming,” April 13, 2016, available at: http://iopscience.iop.org/ Yale University professor Dan Kahan found that “people tend to use scientific knowledge to reinforce beliefs that have already been shaped by their worldview.”23)Joel Achenbach, “Why Do Many Reasonable People Doubt Science?” March 2015, available at: http://ngm.nationalgeographic.com/2015/03/science-doubters/achenbach-text.

Right-wing organizations can take advantage of this disposition by broadcasting misinformation suited to their agenda. For example, at the July 2016 NRLC convention, one workshop promised to expose the fraud behind “a cold, callous, commercial abortion and aborted baby parts trafficking chain”—an attack on Planned Parenthood, which was falsely portrayed as selling fetal tissue in manipulated footage released in 2015 by the Center for Medical Progress, an anti-abortion group presenting itself as a legitimate medical watchdog organization.24)National Right to Life Committee, “Schedule NRLC 2016.” Accessed August 26, 2016, available at: http://nrlconvention.com/wp-content/uploads/2016/06/160627-schedule-nrlc2016.pdf. (The workshop was led by Ryan Bomberger, co-founder of The Radiance Foundation, infamous for putting up billboards claiming that abortion is a form of “black genocide.”25)Malika Redmond, “Profiles on the Right: Ryan Bomberger.” September 12, 2013, available at: http://www.politicalresearch.org/2013/09/12/the-next-generation-of-antichoice-ryan-bomberger/#sthash.l481q57X.dpbs .)

Planned Parenthood protest in Washington, D.C. Photo: American Life League via Flickr. License: https://creativecommons.org/licenses/by-nc/2.0/.

Planned Parenthood protest in Washington, D.C. Photo: American Life League via Flickr. License: https://creativecommons.org/licenses/by-nc/2.0/.

These approaches may be based on fabrications, but they serve their function well: energizing believers and providing an enemy—the “fraudulent” scientific establishment—to rally against. And sometimes, a justification to go further. As former PRA analyst Chip Berlet has written, “coded” rhetoric in which leaders rely on demonization and conspiracy theories often helps incite “scripted violence,” where leaders can engender a violent response from followers without technically calling for an attack.26)Chip Berlet, “Heroes Know Which Villains to Kill: How Coded Rhetoric Incites Scripted Violence,” 2014, in Matthew Feldman and Paul Jackson (eds), Doublespeak: Rhetoric of the Far-Right Since 1954. Stuttgart: ibidem-Verlag; “Toxic to Democracy,” http://www.politicalresearch.org/resources/reports/full-reports/toxic-to-democracy/; “What is Demonization,” http://www.researchforprogress.us/topic/concept/what-is-demonization/ . When violence occurs, the broader movement can dismiss the perpetrator as mentally disturbed or a lone wolf. (Some commenters have referred to this psychological phenomenon as “stochastic terrorism.”27)David S. Cohen, “Trump’s Assassination Dog Whistle Was Even Scarier Than You Think,” August 9, 2016, available at: http://www.rollingstone.com/politics/features/trumps-assassination-dog-whistle-was-scarier-than-you-think-w433615 .)

Although multiple Republican-led investigations of Planned Parenthood following the “fetal tissue” videos failed to yield evidence of wrongdoing (and one actually indicted the video producers instead), blockades, threats, and violence targeting abortion providers increased.28)Charlotte Alter, “T here Was a Dramatic Spike in Threats Against Abortion Providers After the Planned Parenthood Videos,” April 5, 2016, available at: http://time.com/4281925/planned-parenthood-videos-threats-national-abortion-federation/ . In November 2015, three people were fatally shot at a Colorado Springs Planned Parenthood.29)Carol Joffe, “Anti-Choice Violence: Why Colorado Springs Is Different.” December 2, 2016, available at: https://rewire.news/article/2015/12/02/anti-choice-violence-colorado-springs-different/ . The confessed shooter stated his belief that Planned Parenthood sold “baby parts” as motivating the attack.30)Matt Vasilogambros, “What the Planned Parenthood Shooter Wanted,” April 12, 2016, available at: http://www.theatlantic.com/national/archive/2016/04/planned-parenthood-shooter/477825/ .

These attacks demonstrate the uniquely dangerous confluence of false science and coded rhetoric in the movement against abortion rights. Illegitimate science has provided an effective tool to conservatives in blocking vital policy initiatives—even life-saving policies at a global scale, as with climate change. In addition to endangering women’s health by abridging reproductive rights, the tenor of anti-abortion science creates a further hazard of imminent violence against reproductive health providers and bystanders.

Despite Whole Woman’s Health’s stand for scientific integrity, the Right won’t readily abandon a strategy that’s long helped it mobilize supporters and pass legislation. Anti-abortion advocates hold out hope that many restrictions will continue to pass constitutional muster and tout the importance of the next Supreme Court nominee. Meanwhile, AUL and NRLC continue to offer a large repertoire of model bills based on junk science,31)Americans United for Life, “Defending Life 2016,” accessed August 26, 2016, available at: http://www.aul.org/defending-life-2016/ . from the 20-week “fetal pain” bans, to requiring doctors to read scripts fabricating risks from abortions, to banning telemedicine services for rural areas only for abortion and not other medical care.32)National Right to Life Committee, “Webcam Abortion Bans,” July 7, 2016, available at: http://www.nrlc.org/uploads/stateleg/StateLawsWebCamBan.pdf . Until they’re brought under court scrutiny, laws undermining reproductive rights based on misinformation and fraudulent science will stand across the country.

About the Author

Alex DiBranco is a PhD candidate in Sociology at Yale, studying the U.S. New Right. She was formerly PRA’s Communications Director and has written for outlets such as Alternet, The Nation, and Change.org.

References   [ + ]

1. Erica Hellerstein, “Inside The Highly Sophisticated Group That’s Quietly Making It Much Harder To Get An Abortion,” Think Progress, December 2, 2014, available at: https://thinkprogress.org/inside-the-highly-sophisticated-group-thats-quietly-making-it-much-harder-to-get-an-abortion.
2. Americans United for Life, “Defending Life 2016,” accessed August 26, 2016, available at: http://www.aul.org/defending-life-2016/.
3. American Civil Liberties Union, “TRAP FAQ Fact Sheet,” accessed August 26, 2016, available at: https://www.aclu.org/files/assets/TRAP_FAQ_FactSheet.pdf.
4. Brittney Martin, “Abortion down 14 percent in Texas since new restrictions closed clinics,” accessed October 17, 2016, available at: http://www.dallasnews.com/news/politics/2016/03/17/abortion-down-14-percent-in-texas-since-new-restrictions-closed-clinics
5. Whole Woman’s Health v. Hellerstedt, June 27, 2016, available at: https://www.law.cornell.edu/supremecourt/text/15-274.
6. Pam Chamberlain, “Politicized Science: How Anti-Abortion Myths Feed the Christian Right Agenda.” June 4, 2006, available at: http://www.politicalresearch.org/2006/06/04/politicized-sciencehow-anti-abortion-myths-feed-the-christian-right-agenda/.
7. Ally Boguhn & Amy Littlefield, “From Webbed Feet to Breast Cancer, Anti-Choice ‘Experts’ Renew False Claims,” July 13, 2016, available at: https://rewire.news/article/2016/07/13/webbed-feet-breast-cancer-anti-choice-experts-renew-false-claims/.
8. American Cancer Society, “Is Abortion Linked to Breast Cancer?” Accessed August 26, 2016, available at: http://www.cancer.org/cancer/breastcancer/moreinformation/is-abortion-linked-to-breast-cancer.
9. Sharon Begley, “Journal disavows study touted by U.S. abortion foes.” March 7, 2012, available at: http://www.reuters.com/article/us-journal-abortion-idUSTRE82624A20120307.
10. Julie Rovner, “‘Partial-Birth Abortion:’ Separating Fact from Spin,” February 21, 2006, available at: http://www.npr.org/2006/02/21/5168163/partial-birth-abortion-separating-fact-from-spin.
11. Partial-Birth Abortion Act, Accessed August 26, 2016, available at: https://www.gpo.gov/fdsys/pkg/PLAW-108publ105/html/PLAW-108publ105.htm.
12. Susan A. Cohen, “Abortion and Mental Health: Myths and Realities.” Guttmacher Policy Review. August 1, 2006, available at: https://www.guttmacher.org/about/gpr/2006/08/abortion-and-mental-health-myths-and-realities.
13. Gonzales v. Carhart, April 18, 2007, available at: https://www.law.cornell.edu/supct/html/05-380.ZO.html.
14. The American Congress of Obstetricians and Gynecologists, “ACOG Statement on the US Supreme Court Decision Upholding the Partial-Birth Abortion Ban Act of 2003.” April 18, 2007, available at: www.acog.org/About_ACOG/News_Room/News_Releases/2007/ACOG_Statement_on_the_US_Supreme_Court_Decision.
15. Mary Spaulding Balch, “Constitutionality of the Unborn Child Protection from Dismemberment Abortion Act,” January 2015, available at: www.nrlc.org/uploads/stateleg/NRLCConstitutionalityDismembermentJan15.pdf.
16. Amy Littlefield, “Anti-Choice Group Faces Fundraising Gap in ‘Topsy-Turvy Year,’” July 12, 2016, available at: https://rewire.news/article/2016/07/12/lackluster-conference-anti-choice-group-confronts-topsy-turvy-year/.
17. Laurel Raymond, “The Texas SCOTUS Decision Is Already Toppling Other Abortion Restrictions,” June 28, 2016, available at: https://thinkprogress.org/the-texas-scotus-decision-is-already-toppling-other-abortion-restrictions-ff1f988fcf1b#.uftnrhhey .
18. Teddy Wilson, “Texas’ ‘Fetal Remains’ Rule Could Draw Legal Action,” August 2, 2016, available at: https://rewire.news/article/2016/08/02/texas-fetal-remains-rule-legal-action/.
19. Center for Reproductive Rights, “Center for Reproductive Rights Calls on Texas to Abandon Latest Unconstitutional Attempt to Restrict Safe, Legal Abortion,” August 2, 2016, available at: http://www.reproductiverights.org/press-room/center-for-reproductive-rights-calls-on-texas-to-abandon-latest-unconstitutional-attempt- .
20. Mark Joseph Stern, “Voting Rights on the March,” August 1, 2016, available at: http://www.slate.com/articles/news_and_politics/jurisprudence/2016/08/why_courts_are_striking_down_voting_rights_restrictions_right_now.html .
21. Zach Kopplin, “ ‘I Believe in Science’ Should Not Be a Showstopper,” July 29, 2016, available at: http://www.slate.com/articles/health_and_science/science/2016/07/hillary_clinton_believes_in_science_that_shouldn_t_be_noteworthy.html .
22. John Cook, et al. “Consensus on consensus: a synthesis of consensus estimates on human-caused global warming,” April 13, 2016, available at: http://iopscience.iop.org/
23. Joel Achenbach, “Why Do Many Reasonable People Doubt Science?” March 2015, available at: http://ngm.nationalgeographic.com/2015/03/science-doubters/achenbach-text.
24. National Right to Life Committee, “Schedule NRLC 2016.” Accessed August 26, 2016, available at: http://nrlconvention.com/wp-content/uploads/2016/06/160627-schedule-nrlc2016.pdf.
25. Malika Redmond, “Profiles on the Right: Ryan Bomberger.” September 12, 2013, available at: http://www.politicalresearch.org/2013/09/12/the-next-generation-of-antichoice-ryan-bomberger/#sthash.l481q57X.dpbs .
26. Chip Berlet, “Heroes Know Which Villains to Kill: How Coded Rhetoric Incites Scripted Violence,” 2014, in Matthew Feldman and Paul Jackson (eds), Doublespeak: Rhetoric of the Far-Right Since 1954. Stuttgart: ibidem-Verlag; “Toxic to Democracy,” http://www.politicalresearch.org/resources/reports/full-reports/toxic-to-democracy/; “What is Demonization,” http://www.researchforprogress.us/topic/concept/what-is-demonization/ .
27. David S. Cohen, “Trump’s Assassination Dog Whistle Was Even Scarier Than You Think,” August 9, 2016, available at: http://www.rollingstone.com/politics/features/trumps-assassination-dog-whistle-was-scarier-than-you-think-w433615 .
28. Charlotte Alter, “T here Was a Dramatic Spike in Threats Against Abortion Providers After the Planned Parenthood Videos,” April 5, 2016, available at: http://time.com/4281925/planned-parenthood-videos-threats-national-abortion-federation/ .
29. Carol Joffe, “Anti-Choice Violence: Why Colorado Springs Is Different.” December 2, 2016, available at: https://rewire.news/article/2015/12/02/anti-choice-violence-colorado-springs-different/ .
30. Matt Vasilogambros, “What the Planned Parenthood Shooter Wanted,” April 12, 2016, available at: http://www.theatlantic.com/national/archive/2016/04/planned-parenthood-shooter/477825/ .
31. Americans United for Life, “Defending Life 2016,” accessed August 26, 2016, available at: http://www.aul.org/defending-life-2016/ .
32. National Right to Life Committee, “Webcam Abortion Bans,” July 7, 2016, available at: http://www.nrlc.org/uploads/stateleg/StateLawsWebCamBan.pdf .

World Congress of Families Descends on Africa

Poster for next week's African Regional Conference on Families.

Poster for the African Regional Conference on Families scheduled to take place in Nairobi next week.

Next week, the World Congress of Families (WCF) will host a regional conference in Nairobi, Kenya. For several years, PRA has tracked and reported on the WCF’s role in the U.S. Religious Right’s global export of homophobia and sexism, and the organization’s increasing focus on Africa is of grave concern.

WCF’s international convenings function as key sites of right-wing strategy development and dissemination. From its headquarters in Rockford, Illinois, WCF and its member organizations use deceptive “pro-family” rhetoric to promote conservative ideologies that dictate who counts as “family,” and who doesn’t (that is, any and all “nontraditional” families such as those constructed by single parents, same-sex couples, grandparents, non-biological guardians, etc.). These ideologies are then codified into regressive laws and policies that criminalize LGBTQ people and abortion, condoning and promoting the ongoing persecution, oppression, and violence experienced by women and LGBTQ people around the world.

WCF’s presence in Kenya has the potential to do real damage in a country that has been in the crosshairs of the U.S. Christian Right for many years. In 2010, the American Center for Law and Justice (ACLJ) opened an office in Nairobi, just as Kenya was debating a new constitution that included controversial addendums to its penal code regarding abortion. As Mother Jones reported, the ACLJ, founded by American televangelist Pat Robertson, “was among the most vocal opponents of the new constitution,” pledging to spend “tens of thousands of dollars” on the effort to defeat the constitution. Speaking to Christianity Today about the establishment of the “East African Center for Law and Justice” (ACLJ’s Nairobi branch), the group’s then-director of international operations, Jordan Sekulow, explained, “We’re looking long-term in Kenya because it’s such an influential country throughout Africa.”

Though abortion remains illegal, the new constitution—which was approved by a 67 percent majority—carved out exceptions if “in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.” Despite these allowances, quality maternal health care and safe and legal abortion services remain largely inaccessible in Kenya.

Reporting on the aftermath of Kenya’s constitutional referendum, the progressive group Catholics for Choice warned, “[E]xternal forces, predominantly US evangelists, maintain a disproportionate level of influence in Kenya, beyond the debate on abortion. Ample political and financial resources allowed U.S. fundamentalists and anti-reproductive rights groups to establish offices in Kenya and recruit local staff. This presence might yet prove to be a springboard for more aggressive action in other parts of Africa. The activities of these outside religious groups should be closely watched, as they are placed to continue advancing their agenda to deny access to sexual and reproductive health services needed by many.”

Indeed, the influence of the U.S. Christian Right continues to wreak havoc in Kenya. As PRA’s senior religion and sexuality researcher Rev. Dr. Kapya Kaoma notes, WCF’s upcoming African Regional Conference on Families “may be called African in name only.” As Kaoma argues, “It is a U.S. conservative conference on African soil.”

The African Regional Conference on Families is scheduled to take place at the Hotel Intercontinental in Naiborbi, Kenya on September 22-24, 2016. (Image: conference promotional video available at https://youtu.be/CCw4Z9KqDdo)

The African Regional Conference on Families is scheduled to take place in Nairobi, Kenya on September 22-24, 2016. (Image: Conference promotional video available at https://youtu.be/CCw4Z9KqDdo)

The headlining speakers at WCF events are typically high-profile leaders of the U.S. Christian Right who are uniformly pursuant of an international anti-choice, anti-LGBTQ agenda. In the case of the upcoming Nairobi conference, Sharon Slater, President of Arizona-based Family Watch International, and Don Feder, WCF’s Director of Coalitions, will both be speaking. Additionally, Michael Hichborn, President of the right-wing Lepanto Institute, will present on behalf of the Population Research Institute. Hichborn, a Catholic anti-abortion activist based in Virginia, has referred to homosexuality as a “disordered condition” comparable to kleptomania and alcoholism and warns, “Western civilisation is on the brink of a moral implosion.”

In his foreword to Kaoma’s 2012 exposé, “Colonizing African Values: How the U.S. Christian Right is Transforming Sexual Politics in Africa,” PRA’s Executive Director Tarso Luis Ramos wrote:

In Black Skin, White Masks French-Algerian psychiatrist and anti-colonial activist Frantz Fanon famously wrote of the colonized African’s aspiration to imitate the culture and manners of White colonizers. Sixty years later, we find White Christian Right neocolonialists seeking legitimacy through a process of Africanizing the local leadership of their operations and leveling charges of neocolonialism against Western governments and international human rights groups when they advocate for the human rights of women and LGBTQ people. This tactical inversion of the colonial relationships described by Fanon might aptly be characterized as “White skin, Black masks.”

As Kaoma observes, “The upcoming WCF conference confirms PRA’s research on the Christian Right’s attempts to hide behind African faces. By whitewashing its activities with African masks, U.S. conservative organizations are transforming African sexual politics. ”

Ann Kioko is WCF’s newest mask-wearer, joining Theresa Okafor, WCF’s African regional director. Kioko, who describes homosexuality as a “learned behaviour” imported from the West, is president of the African Organization for Families and WCF’s lead conference organizer. She has worked for U.S. Christian Right groups such Culture of Life, Human Life International, and previously worked as the Program Manager for the Kenya Christian Professionals Forum, a partner organization of the East African Center for Law and Justice.

Another concerning speaker on the schedule is Stephen Langa, founder and executive director of Family Life Network Uganda. In March 2009, Langa hosted the infamous “Seminar on Exposing the Homosexuals’ Agenda,” which featured several U.S. Christian Right speakers, including Massachusetts-based American pastor Scott Lively. Lively’s presentation provided the raw material for what would become Uganda’s Anti-Homosexuality Bill (commonly referred to as the “Kill the Gays” bill due to death penalty clauses in the original draft).

When a draft of the Anti-Homosexuality Bill (AHB) initially came before Parliament in April 2009, Langa was among a handful of religious leaders singled out by Deputy Speaker of Parliament Rebecca Kadaga to help advance the legislation. Langa was later indicted as one of four Ugandan co-conspirators in an ongoing U.S. federal lawsuit brought by Sexual Minorities Uganda, an LGBTQI advocacy group, against Scott Lively for “crimes against humanity.”

Langa, who hosted a service in 2013 to “celebrate the passing of the AHB into law and for preserving the sovereignty of our Nation,” sees his crusade against LGBTQI people as “a conflict between the kingdom of Satan and the Kingdom of God.” Now he’s helping to stoke the flames of that Western neocolonial crusade to Kenya.

Behind the Black masks of African fronts like Langa and Kioko, American activists like Slater, Feder, Hichborn, and other White, U.S. Christian Right stakeholders can gain access to politicians, religious authorities, and civic leaders. The organizers in Kenya have already indicated that Phyllis Kandie, Cabinet Secretary for Kenya’s Ministry of East African Community, Labour and Social Protection will be attending, and the agenda includes a closed door meeting exclusively for conference speakers, members of parliament, and dignitaries.

According to Kaoma, “Hiding behind African masks is the most effective route to Africa’s corridors of power.” WCF has observed this neocolonial dynamic, too, and is now positioning itself in Kenya to take full advantage of it, using a strategy that’s eerily similar to the formula documented by PRA in the lead up to Uganda’s “Kill the Gays” bill.

Dominionism is the New Religious Freedom

Historians may someday see the 2016 election season as the turning point in how our society understands the Dominionist movement that is seeking to recast society in its own image.  The herald of this new understanding is—ironically, as I will discuss below—a Washington Post commentary by historian John Fea, titled:  “Ted Cruz’s campaign is fueled by a dominionist vision for America.”  The Post’s publication of Fea’s piece follows years of both scholarly and journalistic tip-toeing around this elephant on the table of American public life – a dynamic modern theocratic religious and political movement that prior conventional wisdom notwithstanding is not fringe.

Ted Cruz speaks to supporters gathered at a late-night campaign stop at Penny's Diner in Missouri Valley, Iowa, in Jan. 2016. Image via Matt A.J. on Flickr.

Ted Cruz speaks to supporters gathered at a late-night campaign stop at Penny’s Diner in Missouri Valley, Iowa, in Jan. 2016. Image via Matt A.J. on Flickr.

Fea, who chairs the History Department at the evangelical Messiah College in Pennsylvania, matter of factly discusses the influence of “seven mountains dominionism” on Sen. Ted Cruz (R-TX) – who may be the most openly theocratic candidate ever to be a serious contender for a major party presidential nomination.  Perhaps just as remarkably, the Dominionism advocated by the likes of the Cruz family is wrapped in a claim that religious freedom is under assault in the U.S.

As I reported in the recent report, When Exemption is the Rule: The Religious Freedom Strategy of the Christian Right:

“I believe that 2016 is going to be a religious-liberty election,” Senator Ted Cruz (R-TX) declared before a raucous crowd of some 7,000 Southern Baptists in October 2015.  “As these threats grow darker and darker and darker, they are waking people up here in Texas and all across this country.”

Unsurprisingly, Cruz features this claim at many of his presidential campaign rallies. This is the new normal.

But of course, Cruz’s notion of religious freedom is all about creating religious exemptions to the legal requirements to recognize the civic equality of LGBTQ people, and the rights of people seeking their sexual and reproductive health care, as well as the rights of people – including many Christians – whose religious views are different than those of the Cruzes and their ilk.

The term “Dominionism” was first popularized in the 1990s by researchers, including Chip Berlet, scholar Sara Diamond, and myself, who needed a term to describe the political aspirations of Christian Rightists who believed that they have a biblical mandate to control all earthly institutions –including government – until the second coming of Jesus. But the idea of conservative Christians gaining political power sufficient to take dominion over society predated our use of the term by decades.

The two main schools of Dominionist thought include Christian Reconstructionism, founded by the late R.J. Rushdoony, which advances the idea not only of the need for Christians (of the right sort) to dominate society, but institute and apply Old Testament “Biblical Law.”

The other, closely related form of Dominionism is advocated by the Pentecostal  New Apostolic Reformation, which exuberantly advocates for Christians to “reclaim the seven mountains of culture”: government, religion, media, family, business, education, and arts and entertainment.

The religious vision and political aspirations of Ted Cruz and his father Rafael are widely known in conservative Christian religious and political circles and are being discussed in his home state of Texas.  So much so, that reporter Jonathan Tilove of the Austin American Statesman wrote last summer about how Raphael Cruz was compelled to insist, “We are not talking about theocracy.”  But Fea reports that the Cruzes are close to Christian Nationalist author, historical revisionist and longtime Texas Republican leader David Barton, who declares that the United States was founded as a Christian Nation but has fallen away from this foundation and must be restored to avoid punishment from God.

Fea writes:

“Anyone who has watched Cruz on the stump knows that he often references the important role that his father, traveling evangelist Rafael Cruz, has played in his life. During a 2012 sermon at New Beginnings Church in Bedford, Texas, Rafael Cruz described his son’s political campaign as a direct fulfillment of biblical prophecy.

The elder Cruz told the congregation that God would anoint Christian “kings” to preside over an “end-time transfer of wealth” from the wicked to the righteous. After this sermon, Larry Huch, the pastor of New Beginnings, claimed Cruz’s recent election to the U.S. Senate was a sign that he was one of these kings.

According to his father and Huch, Ted Cruz is anointed by God to help Christians in their effort to “go to the marketplace and occupy the land … and take dominion” over it. This “end-time transfer of wealth” will relieve Christians of all financial woes, allowing true believers to ascend to a position of political and cultural power in which they can build a Christian civilization. When this Christian nation is in place (or back in place), Jesus will return.

Rafael Cruz and Larry Huch preach a brand of evangelical theology called Seven Mountains Dominionism. They believe Christians must take dominion over seven aspects of culture: family, religion, education, media, entertainment, business and government. The name of the movement comes from Isaiah 2:2: “Now it shall come to pass in the latter days that the Lord’s house shall be established on the top of the mountains.”

Fea also notes that Barton, who runs the Keep the Promise Super PAC that supports Cruz’s campaign, shares this vision:

“Barton’s Christian nationalism is a product of this theological approach to culture. Back in 2011, Barton said that if Christians were going to successfully “take the culture” they would need to control these seven areas. “If you can have those seven areas,” Barton told his listeners to his radio show, “you can shape and control whatever takes place in nations, continents and even the world.”

This is remarkable, in part, because a few years ago, journalists and scholars who wrote about Dominionism found themselves facing a smear campaign by, among others, writers at the same paper in which Fea’s commentary appears. Washington Post columnist Michael Gerson and then-religion writer Lisa Miller were part of this national effort to discredit the idea that Dominionism was a real thing or that even if it was, that it was of much significance. This despite the fact that then-Gov. Rick Perry (R-TX) had made his de facto presidential campaign announcement at a massive prayer rally organized by leaders of the movement for Seven Mountains Dominionism, and that then presidential candidate Rep. Michele Bachman’s (R-MN) mentor at law school was John Eidsmoe, a prominent Christian Reconstructionist theorist, (who now works at the Foundation for Moral Law, founded by Alabama Chief Justice Roy Moore.)   Perry’s campaign later imploded, (for reasons other than the Dominionism controversy) and Bachman’s campaign never gained traction, but the episode certainly prefigured current events.

Now, some four years later, former Gov. Perry has endorsed Ted Cruz for president. Cruz has won the Iowa caucuses, and The Washington Post has published a major article about the Seven Mountains Dominionism of Sen. Cruz and his father.  A great transformation in American politics and religion, once pooh poohed by established interests (which also denounced those of us who recognized and wrote about its importance) is now accepted as uncontroverted fact.  And the attack dogs of the various political establishments are not yet snarling.

When Exemption is the Rule: The Religious Freedom Strategy of the Christian Right

To download the report as a PDF, please click the image.

To download the report as a PDF, please click the image.

Table of Contents:

-Acknowledgements
-Preface
-Executive Summary
-Introduction
-Building Infrastructure for the Long Game
…..Mobilizing to Discriminate in Bob Jones
-Building a political infrastructure for a counteroffensive
-Manhattan Declaration: A Strategic Turning Point
-Legal and Legislative Players and Trends Today
-Federal Religious Freedom Cases
-State-level Religious Freedom Restoration Acts
-Obergefell v. Hodges
-Fighting for Religious Freedom in North Carolina
-‘Religification’ and Zones of Exemption
…..Individual Exemptions
…..Institutional Exemptions
-Territorial Exemptions Involving Zoning and Land Use
-RFRA and the Bipartisan Memo
-The Power of Dualistic Thinking
-Conclusion and Recommendations
-Endnotes
-About the Author

Acknowledgements

Few works of any consequence or magnitude happen in isolation. All are built on the work of those who have come before, some known, most unknown. If I could, I would want them all to know I am humbled and honored to follow in their footsteps.  Most publications are also collective enterprises and this is no exception. I want to thank the many people who made this report possible. I am honored to have had the assistance and wise counsel of my PRA colleagues—at various stages, Eric Ethington, Gabriel Joffe, Tarso Ramos, and report editor Abby Scher, who has patiently seen me through yet another remarkable editorial adventure.  I am also grateful for the kind reading, constructive feedback, and encouragement from Rob Boston, Don Clark, Jay Michaelson, and Patti Miller.  Special thanks to Jonathan Hutson for his expert research, editorial advice, and strategic media guidance.  And finally, profound thanks to Tim Sweeney and the Pride Foundation for their generous support, without which this project might never have happened.  – Frederick Clarkson

Preface

By Rev. John C. Dorhauer

You might say religious liberty is in my blood.

I’m a Mayflower descendant. My maternal grandmother was Delores Howland, some 16 or so generations removed from John Howland. His home still stands in Plymouth, and I have been there to sign the descendants’ book.

As proud as I am of my Pilgrim Congregationalist history, I am also aware that within that history is the Puritan experience of the Salem witch trials and the treatment of indigenous peoples:  reminders of how religion writ large as a culture’s moral compass can bring out the worst in us. By the time our Constitution was written, both the desire to be free from religious tyranny found in the spirit of the Pilgrims – and the need to protect ourselves from religious zealots like the Puritans – would serve to inform its authors. They treated both as instructive, writing into the Bill of Rights language that would preserve our religious liberty and restrict the government’s power to establish any religious point of view as normative.

The irony of the Religious Right fighting for a “freedom” that utilizes all three branches of government to enforce their narrow theology isn’t lost on me. Anyone who doubts either the intent or the ability of the Religious Right to reshape the landscape of religious liberty in America isn’t paying attention. And, to quote Arthur Miller’s Death of a Salesman: “Attention must be paid.”

I believe in religious freedom, but not the kind that argues that government should grant me the right to refuse to serve or hire someone because they are homosexual. Removing someone’s civil rights by empowering the government to protect and preserve my religious homophobia is not my idea of religious liberty.

I believe in religious freedom, but not the kind that argues that government should tolerate employers or medical care professionals who want to deprive women of their full range of health care options. Depriving women of choices that our courts deem legal and appropriate to preserve my religious misogyny is not my idea of religious liberty.

Religious expression in the United States is a beautiful mixture of the world’s best thinking, the collective of which is hard to find anywhere else in the world. We were among the first people on the planet to live in a place where such expression could unfold free of tyranny; not restricted by the ability or willingness of the elected to understand or tolerate a particular religious expression; and within a bubble of protection that asked only that our free exercise neither depend on the establishment of the government for its validity nor violate any other laws or civil rights.

It is within such a context that the United Church of Christ, within which my faith is now lived, gave free expression to its beliefs and called for an end to slavery, an end to the disenfranchisement of women and people of color, an end to state-sanctioned homophobia, an end to the stranglehold that management held over working class peoples. Long before the laws would catch up to us, we ordained the first Black pastor in America, the first female pastor, the first gay pastor, the first lesbian pastor, and the first transgender pastor. We wrote liturgies that called for our clergy to perform same-gender-loving marriages.

When North Carolina rewrote their Constitution to not only deprive same-gender-loving couples from the full rights that our government provides to heterosexual couples when they marry, but also criminalized the religious act of performing such marriages when allowed by other states, it was the United Church of Christ that brought a suit against the state. The federal Court ruled in our favor and called the amendment unconstitutional. It is one thing to ask the state to bend to your narrow religious beliefs. It is something else entirely to ask the state to imprison and fine the clergy of another religion; one that disagrees with you.

This is the religious liberty being propagated by the Religious Right.   They argue that they have no religious freedom unless their restrictive moral code is written into the Constitution. They argue that they have no religious liberty unless those whose religious ceremonies violate the sanctity of their precious theology are thrown in jail. What they want to call religious freedom is in fact the kind of oppressive religious tyranny that my ancestors left their homeland to escape.

I believe in legislation that protects religious liberty. Good laws have been written to protect the free expression of my, and others’, religion; and to limit the reach of government to establish anyone’s religious beliefs as normative.

We can’t allow the Religious Right to twist the meaning of religious liberty to the point that it becomes the means by which their theocratic vision is finally and fully realized. For decades now they have fought to erode or redefine the very freedoms the Constitution was written to protect. It would be unwise of us to either turn a blind eye to their machinations or to dismiss the ongoing effectiveness of their efforts.

Outcomes are hard to predict, but I think it is fair to say that the Religious Right is slowly but surely taking significant ground in the battle to turn America into a theocratic state, or a collection of theocratic mini-states, governed by the very narrowest of religious points of view. That they are doing it under the guise of protecting their religious liberty is the greatest of ironies. Their ambitions are to unseat the U.S. as the world’s safest place to explore and express one’s spiritual longings. If left unchecked by those of us who want to preserve an authentic rendering of religious freedom as envisioned by this country’s founders, they will succeed.

Frederick Clarkson knows this. His ongoing and now longstanding commitment as an investigative journalist to bring out into the open the more covert operations of the theocratic Right makes him eminently qualified to write about this. He sounds an alarm bell that not enough of us are paying much attention to. He not only asks that we learn everything we can about what the Religious Right is up to, he realizes that, unless those of us who want to preserve our longstanding freedoms act with as much sophistication and savvy as they do, we will always lose ground to them. As the late Rev. Dr. Andrew Weaver used to say, “They are playing tackle football, and we are playing touch. We are going to lose this game every time.”

I strongly urge you to not only read this remarkable report; I ask you to take seriously the actions Frederick Clarkson calls for within it. I intend to bring the United Church of Christ into this conversation. We have never been bystanders in the face of injustice when power colludes to deprive others of their liberty. We will not be in this time, either.

The Rev. John C. Dorhauer
General Minister and President
United Church of Christ

Executive Summary

The evangelical Protestant Christian Right and U.S. Roman Catholic bishops are intensifying their campaign to carve out arenas of public life where religious institutions, individuals, and even businesses may evade civil rights and labor laws in the name of religious liberty. By creating zones of legal exemption, the Christian Right seeks to shrink the public sphere and the arenas within which the government has legitimacy to defend people’s rights, including reproductive, labor, and LGBTQ rights. In this, it is often aligned with the antigovernment strategy of free market libertarians and some business interests, who for a variety of reasons also seek to restrict arenas where government can legally act.

This conservative Christian alliance is challenging a century or more of social advances and many of the premises of the Enlightenment underlying the very definition of religious liberty in the United States. Its long-range goal is to impose a conservative Christian social order inspired by religious law, in part by eroding pillars of undergirding religious pluralism that are integral to our constitutional democracy.

Since Political Research Associates’ March 2013 report, Redefining Religious Liberty: The Covert Campaign Against Civil Rights,* a remarkable string of cultural, legislative, and legal victories by the LGBTQ community have further animated the Right’s defensive strategy aimed at exempting conservative Christians from having to accept certain advances in human and civil rights. However, the Christian Right’s religious freedom strategy is part of its long-game and is not merely an anti-LGBTQ tactic.

Among this report’s findings:

  • The network of Christian Right legal institutions advancing the redefinition of religious freedom is growing in its capacity to affect legal, political and cultural change.
    • The Becket Fund, which has litigated landmark Supreme Court cases like Hobby Lobby and Hosanna-Tabor, grew 86 percent in just four years, from FY2009 to FY2012.
    • The national legal network Alliance Defending Freedom increased its annual revenues by $5 million during the same period (a 21% increase) while also expanding its effort to seek influential legal precedents in international courts.
    • In an important mainstreaming move, the conservative John Templeton Foundation funneled $1.6 million through the Becket Fund to establish a religious liberty clinic at Stanford University Law School. It opened in January 2013.
  • The Christian Right’s appropriation of religious freedom to justify discrimination is plainly visible in the U.S. Supreme Court’s 2014 Hobby Lobby ruling, which for the first time recognized limited religious rights for closely held, private corporations to deny the Affordable Care Act’s contraceptive mandate. This ruling has transformed not only federal jurisprudence, but the national conversation about the meaning and scope of religious freedom. One result was that the religious beliefs of the owners trumped the consciences and health interests of their employees.
  • The Christian Right is seeking to undermine and evade civil rights law beyond the courts by “religifying” organizations. This means rewriting mission statements, contracts, and job descriptions to claim that the entire organization or jobs within it are essentially religious in nature and subject to the longstanding exemption of clergy from the Civil Rights Act. Under this logic, a religified business or nonprofit would have the right to discriminate against an LGBTQ client, or others with whom they may religiously disagree, by excluding people who do not conform to their doctrines. The groups promoting this tactic, such as Alliance Defending Freedom and Liberty Institute, have issued handbooks to help organizations protect against “dangerous antireligious attacks.”
  • Religification efforts are attempting to build on the 2012 U.S. Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC) that the religious duties of a teacher fired in a discriminatory way insulated the mainline church school from antidiscrimination laws under the longstanding clergy exemption. The ruling opened the door to expanding the definition of ministry, so that many more institutions – and their employees – can be exempted from the protections of the law.
  • The Christian Right is seeking to pass state-level Religious Freedom Restoration Acts (RFRA) that would allow for-profit businesses to seek religious exemptions in the way the Hobby Lobby case made possible under the federal RFRA. The Right has succeeded in Mississippi, and, controversially, in Indiana, where the state RFRA was revised under pressure to make clear that it did not justify discrimination against LGBTQ people.
  • Today’s arguments echo those made by opponents of civil rights advances for African Americans in the 20th century – notably the fundamentalist Bob Jones University when it defended its policy against interracial dating because of its religious beliefs. In a major defeat for the nascent Christian Right, the U.S. Supreme Court ruled in 1983 that the Greenville, SC, college was not entitled to a federal tax exemption if it maintained this racist policy because the government’s interest in eradicating racial discrimination in education trumped the school’s claim to the First Amendment right to religious freedom.
  • President Obama has failed to rescind a George W. Bush-era legal memo that allows federal contractors and grantees to discriminate in their hiring on religious freedom grounds.
  • The Christian Right has carved out these victories following decades of building its political and institutional power. To avoid fighting within its frame and definition of religious liberty, progressives and their allies must build their own long game. One of the ways to do this is to avoid dualisms that distort the issue and play to the Christian Right framing, such as suggesting that LGBTQ civil rights (or reproductive rights) and religious freedom are somehow mutually exclusive.

While winning many victories, the Christian Right has lost some important battles in its campaign to redefine religious freedom. This is particularly so when other religious groups have taken the lead in opposing the Right. The United Church of Christ successfully sued to overturn a 2012 amendment to the North Carolina state constitution asserting not only that same-sex marriages were invalid, but effectively criminalizing same-sex marriage ceremonies. Coalitions involving religious groups have also thwarted the passage of state RFRAs that justify discrimination in Georgia and North Carolina. Elsewhere, workers and pension advocates took the lead. In December 2015, a federal appeals court ruled that the St. Peter’s Catholic health system in New Jersey was not exempt on religious grounds from following federal law protecting pensioners and that it needed to fully fund its pension.

Contrary to the vision of much of the Christian Right, religious freedom is for everyone. We need fresh perspectives and coalitions to meet these challenges. Other sectors of society, from moderate Republicans to civil rights and labor activists, to religious and nonreligious organizations, need to discover how to do this, even though they may not be accustomed to working together.  This will certainly mean envisioning and acting on short-term and long-term strategies, both inside and outside of the courts. We need 21st century coalitions and strategies to meet the challenges and opportunities of our time.

Among our other recommendations, we must,

  • Reclaim religious freedom as a fundamental democratic value. This means embracing religious freedom as emphasizing the equality of all people, including everyone’s right to believe and to practice faith (or not) as we will, and to change our minds – free from the undue influence of powerful religious institutions and government. The right to believe differently from the rich and the powerful is a prerequisite for free speech and a free press, the other two elements of the First Amendment of the U.S. Constitution.
  • Increase our capacity to respond to religious freedom-related issues. This would include but not be limited to resourcing a network of researchers, writers, political thinkers, and scholars to develop and inform strategy with respect to religious liberty and civil rights.
  • Expand and refresh historic alliances that have extended civil and labor rights in the 20th century more widely and deeply than at any other time in our history.
  • Expand celebrations of Religious Freedom Day on January 16th and other events to offer a clear, consistent, positive, and historically rooted alternative to the Christian Right’s redefinition of religious liberty.
  • Counter misinformation. Many conservative religious liberty claims rely on falsehoods, bogus history, and scare tactics. For example, clergy have never been forced under the law to perform any marriage of which they do not approve.
  • Urge candidates and elected officials to end legal justifications for all forms of discrimination under the rubric of religious freedom. This includes demanding that President Obama end discrimination by faith-based contractors justified by the Bush-era legal memo.
  • Consider international human rights standards regarding religious freedom and the rights of conscience. They are very strong and are consistent with a domestic agenda, and are part of the growing international dimension to this struggle.
  • Develop electoral answers to the Right’s long-term efforts to control various levels of government.

For the full list of recommendations, please see the Conclusion and Recommendations section below.

INTRODUCTION

Religious freedom is a central issue of our time. The Framers of the U.S. Constitution knew that just because they, the leading politicians of their day, hammered out some remarkable foundational language, that did not mean that it would be a settled matter.1 History and current events have proved them out.

Over the past decade, the evangelical Protestant Christian Right and American Roman Catholic bishops forged a lasting alliance to carve out vast arenas of American life where religious institutions, individuals, and even businesses would be free to discriminate, evade labor laws, and otherwise evade federal civil rights laws in the name of religious liberty.  Together these conservative forces seek to challenge not only a century or more of social advances, but many of the premises of the Enlightenment underlying the very definition of religious liberty in the United States.

Their goal is to impose a conservative Christian social order inspired by religious law.  To achieve this goal, they seek to remove religious freedom as an integral part of religious pluralism and constitutional democracy, and redefine it in Orwellian fashion to justify discrimination by an ever wider array of “religified” institutions and businesses.

By carving out legal zones of exemption from antidiscrimination laws and regulations, the Christian Right seeks to shrink the public sphere and the arenas within which the government has legitimacy to defend people’s rights, including reproductive and LGBTQ rights.  In this, it is aligned with the antigovernment strategy of free market libertarians and some powerful business interests, who also seek to restrict arenas where government can legally act.

Since Political Research Associates’ March 2013 report, Redefining Religious Liberty:  The Covert Campaign Against Civil Rightse,2 historic changes in the political and legal landscape have accompanied dramatic growth among the key actors of the Christian Right that we detail in this report.  The remarkable string of cultural, legislative, and legal victories by the LGBTQ community have further animated the Right’s defensive strategy aimed at exempting conservative Christians from having to accept certain advances in human and civil rights.

Since PRA published Redefining Religious Liberty: The Covert Campaign Against Civil Rights, historic changes in the political and legal landscape have accompanied dramatic growth among the key actors of the Christian Right.

Since PRA published “Redefining Religious Liberty: The Covert Campaign Against Civil Rights,” historic changes in the political and legal landscape have accompanied dramatic growth among the key actors of the Christian Right.

The Christian Right has sought to undermine and evade labor law by carefully building on the 2012 U.S. Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOCThe court ruled that the religious duties of a teacher fired in a discriminatory way insulated the mainline church school from antidiscrimination laws under the longstanding exemption of clergy under the Civil Rights Act.  It opened the door to expanding the definition of “ministry,” so that many more employees can be exempted from the protections of the law.

The Christian Right is already actively engaged in doing this – via a tactic termed “religification” by which an organization rewrites mission statements, contracts, and job descriptions in an attempt to exempt institutions from the law in as many ways as possible.  All this will undoubtedly face further court tests. But religification is already happening, as we will see.

For those of us who value religious pluralism and equality, it can be challenging to imagine that the Christian Right can appropriate and redefine religious freedom as justifying discrimination.3

Yet it is plainly visible in the U.S. Supreme Court’s 2014 Hobby Lobby ruling, which for the first time recognized limited religious rights for closely held, private corporations to deny the Affordable Care Act’s contraceptive mandate.  This ruling has transformed not only federal jurisprudence, but the national conversation about the meaning and scope of religious freedom.  One result was that the religious beliefs of the owners trumped the beliefs and health interests of their employees.

A statue of Thomas Jefferson, author of the Virginia Statute for Religious Freedom, in Colonial Williamsburg, VA.

A statue of Thomas Jefferson, author of the Virginia Statute for Religious Freedom, in Colonial Williamsburg, VA. Courtesy of ComputerGuy via Flickr

This and other legislative and judicial wins discussed in this report have altered our public discussion and policy on a wide range of issues, from access to abortion, to health services for children of immigrants who are victims of sex abuse, to matters of LGBTQ discrimination, including access to government services for routine processing of marriage licenses for legal same-sex marriage.

The ripple effects of all this appear almost daily in the news as major politicians seek to prove their conservative Christian bona fides.  “I believe that 2016 is going to be a religious-liberty election,” Senator Ted Cruz (R-TX) declared before a raucous crowd of some 7,000 Southern Baptists in October 2015.  “As these threats grow darker and darker and darker, they are waking people up here in Texas and all across this country.”4  Religious liberty was the key theme of many Christian Right events in 2015, including the national Values Voter Summit in Washington, D.C., the World Congress of Families held in Salt Lake City, and campaign rallies of Sen. Ted Cruz.  This is the new normal.

But most everyone to the left of the Religious Right is behind the curve in the face of these historic developments – from progressive issue organizations, the broad liberal/left, and the major political parties, including moderate Republicans.  The social justice community broadly speaking is also impeded by the perennial problem of issue and political silos (e.g. dividing reproductive justice vs. LGBTQ rights v. economic justice) even though it confronts a far more integrated program and strategy on the part of the Right.

The Christian Right’s ability to move its agenda has greatly increased in recent years, thanks in large part to the construction of a vast organizational infrastructure.

This report will outline the history of that strategy and recent trends, particularly in the legal arena, detail the growth of key Christian Right organizations carrying out that strategy, highlight promising countertrends, and suggest some ways forward.  As we will see, the Christian Right’s ability to move its agenda has greatly increased in recent years, thanks in large part to the construction of a vast organizational infrastructure of educational institutions, political and cultural organizations, and nonprofit legal networks, as well as key alliances within the Republican Party and the wider conservative movement.  We highlight the legal infrastructure because the opportunities created by recent U.S. Supreme Court decisions are among the main fruits of the Christian Right’s work of recent decades.

Let’s first state what religious freedom is so we can better understand how the Christian Right is appropriating it to advance their agenda. Religious freedom is the right of individual conscience; to believe as we will and to change our minds freely, without undue influence from government or from powerful religious institutions.  It also means the right to practice our beliefs free from the same constraints.  The right to believe differently from the rich and the powerful is a prerequisite for free speech and a free press, the other two elements of the First Amendment of the U.S. Constitution.  That is one reason why religious freedom is often called the First Freedom.  Religious freedom is integral to the idea of separation of church and state.  Separation exists not to limit religious expression, but to safeguard against creeping religious supremacism and the theocratic temptations that have persisted throughout American history into the present.

This report is a call to people of goodwill to consider that as a society, we are on a slippery slope towards the kinds of factionalism that concerned the Framers of the Constitution.  It is time for us to take a deep breath and consider the implications. 

BUILDING INFRASTRUCTURE FOR THE LONG GAME

The Christian Right’s power to reframe religious liberty as a justification of discrimination builds on decades of mobilization.  It had to recover from its great defeat, the case of Bob Jones University v. United States. 

Mobilizing to discriminate in Bob Jones

As recently as the 1980s, Christian Right activists defended racial segregation by claiming that restrictions on their ability to discriminate violated their First Amendment right to religious freedom.  They lost in a landmark Supreme Court case in 1983, Bob Jones University v. United States, that has shaped politics every since.  The U.S. Supreme Court ruled that the Greenville, SC-based, Christian fundamentalist school was not entitled to its federal tax exemption if it maintained its policy against interracial dating.

Bob Jones University entrance, Greenville, SC.

Bob Jones University entrance, Greenville, SC. Courtesy of John Foxe of English Wikipedia.

The case, which began during the Nixon administration, became a cause célèbre of the then-budding Christian Right as it advanced over the course of a decade.  The late conservative strategist Paul Weyrich and historian Randall Balmer, among others, credited Bob Jones as the catalyst that politicized a wide range of conservative evangelicals.  The “New Right” used Bob Jones as a political cudgel against Democratic President Jimmy Carter, turning many evangelicals against one of their own and contributing to the election of Ronald Reagan in 1980.5

Instead of African Americans being discriminated against by Bob Jones, the university argued it was the party being discriminated against in being prevented from executing its First Amendment rights.  The Supreme Court disagreed, declaring, “Government has a fundamental, overriding interest in eradicating racial discrimination in education…[which] substantially outweighs whatever burden denial of tax benefits places on [the University’s] exercise of their religious beliefs.”  The Court made clear, however, that its verdict dealt “only with religious schools – not with churches or other purely religious institutions.” 6

As Balmer and others have shown, even before the issues of abortion and homosexuality became the policy priorities of a newly politicized Christian Right, its leaders fought the perceived threat of racial equality at conservative Christian academies by claiming their religious freedom to discriminate.  This legacy should remind us that the Right’s religious liberty campaigns mobilize old arguments around new targets, and that their agenda extends beyond questions of contraception coverage, or marriage and nondiscrimination in the LGBTQ context. 

Building a political infrastructure for a counteroffensive

In the decades since Bob Jones, the Christian Right has catalyzed a conservative political realignment reflected in many ways in the composition of the U.S. Supreme Court.  One might reasonably wonder whether there might have been a different ruling in Bob Jones had Hobby Lobby been decided first.  However, it should also be noted that the court underscored that Hobby Lobby was not constructed to allow for religious justification for racial discrimination and their decision “provides no such shield.”  7

The mobilization around Bob Jones was part of the Christian Right’s long-term political development, when it pulled poorly mobilized evangelicals into civic engagement with visions of Godly governance.  Jerry Falwell’s Moral Majority and its successors emphasized electoral development, making the Christian Right an integral part of the GOP.  Beyond turning out current registered voters, they accomplished this by expanding the voter pool of conservative Christians and developing a class of people with the relevant skill sets and experiences to contend for power, particularly in their drive to become the dominant faction in the Republican Party.8  The Christian Right’s hands on the levers of power in government, either directly or by proxy through Republican alliances, made the job of civil rights and labor advocates that much harder.

Journalist Matthew Yglesias published an influential article in 2015 that paints a stark picture of how growing Republican control is creating opportunities for its Christian Right base.  He observes that “70 percent of state legislatures, more than 60 percent of governors, 55 percent of attorneys general and secretaries of state…are in Republican hands. And, of course, Republicans control both chambers of Congress.”9

It is a trend that appears likely to increase.  The Christian Right’s electoral plans for 2016 have long been in evidence. Here’s one brief example.  David Lane of the American Renewal Project has been developing Christian Right organizing and electoral capacity within the Republican Party for many years.  He is seeking to run 1,000 conservative Christian clergy for office at all levels in the next few years.  He claims to have held training conferences for more than 2,000 clergy in 2015 in the hows and whys of mobilizing their congregations for electoral impact. 10  Lane told Reuters in December 2015 that he was halfway to his goal of getting 1,000 pastors to run in down-ticket races.11

Then and Now: Flyer for Rally for Religious Liberty at Bob Jones University, No. 2015.

Then and Now: Flyer for Rally for Religious Liberty at Bob Jones University, No. 2015. Courtesy of https://www.tedcruz.org/ rsvp/rally/

Such campaigns seek not just to win elections, but to engage conservative Christians as a self-identified electoral force of lasting consequence.  Lane’s efforts are underwritten in part with $10 million from the families of Texas billionaires Farris and Dan Wilks.  The Wilks family has contributed another $15 million to a super PAC supporting the presidential campaign of Sen. Ted Cruz (R-TX).12  This super PAC is led by Christian Nationalist author and political operative, David Barton. 13

In contrast, Yglesias warns, “Democrats have nothing at all in the works to redress their crippling weakness down the ballot.”  The failure of everyone to the left of the Religious Right to develop an effective electoral response to all this is especially remarkable because journalists and other political observers have seen the situation developing for years.14

Manhattan Declaration: A Strategic Turning Point 

A transformational moment in the contemporary Christian Right’s approach to religious freedom was the November 2009 publication of the Manhattan Declaration:  A Call to Christian Conscience – a manifesto linking three interrelated themes of “freedom of religion,” “sanctity of life,” and “dignity of marriage.”15  The culmination of decades of theological and political development, conservative Roman Catholic and evangelical strategists (joined by junior partners in the Mormon Church and Orthodox Christianity) found sufficient common theological and political ground to wage not only the short term battles of the culture wars, but to envision a 21st century notion of Christian cultural conservatism – and a way to get there.  These actors in various combinations, and sometimes in alliance with elements of Orthodox Judaism, have been tactical partners over time.  This coalition was nonetheless a real achievement that crystallized a strategic direction deploying “religious freedom” to roll back advances in LGBTQ rights and reproductive justice.

Robert P. George is the primary author of "The Manhattan Declaration."

Robert P. George is the primary author of “The Manhattan Declaration.” Courtesy of Roanoke College via Flickr. License: https://creativecommons.org/licenses/by/2.0/

Originally signed by 150 Christian Right leaders (followed by a half million others), it has broadened, deepened, and sustained the Roman Catholic/evangelical alliance that led the culture wars for more than a generation.  Indicative of how far they had come in transcending centuries of distrust, 50 sitting bishops, archbishops, and cardinals – not merely a token prelate or two – joined top evangelical leaders in signing the Declaration.

The Declaration seeks to unify, rally, and mobilize the Christian Right:

We are Christians who have joined together across historic lines of ecclesial differences to affirm our right – and, more importantly, to embrace our obligation – to speak and act in defense of these truths.  We pledge to each other, and to our fellow believers, that no power on earth, be it cultural or political, will intimidate us into silence or acquiescence. [Emphasis in the original.]

The document essentially defines religious freedom as being only for people who believe as they do, and as under attack by those who believe differently.  They declare,

Christians confess that God alone is Lord of the conscience.  Immunity from religious coercion is the cornerstone of an unconstrained conscience.  No one should be compelled to embrace any religion against his will, nor should persons of faith be forbidden to worship God according to the dictates of conscience or to express freely and publicly their deeply held religious convictions.  What is true for individuals applies to religious communities as well.

This foundational idea expresses the rationale for religious exemptions from the law.  Although published in 2009, the Declaration reasonably anticipated one day having to respect the equality of LGBTQ people in, among other things, marriage and employment, and the broad development of antidiscrimination laws generally.

The Declarationists also foresaw further wrangling over the question of complicity in abortion via efforts to

weaken or eliminate conscience clauses, and therefore to compel pro-life institutions (including religiously affiliated hospitals and clinics), and pro-life physicians, surgeons, nurses, and other health care professionals, to refer for abortions and, in certain cases, even to perform or participate in abortions.  We see it in the use of antidiscrimination statutes to force religious institutions, businesses, and service providers…to comply with activities they judge to be deeply immoral or go out of business.”16

The "Manhattan Declaration" essentially defines religious freedom as being only for people who believe as the authors do, and as under attack by those who believe differently.

The “Manhattan Declaration” essentially defines religious freedom as being only for people who believe as the authors do, and as under attack by those who believe differently.

Albert Mohler, President of Southern Baptist Seminary, explained that although he abhors Roman Catholic doctrine, “we are facing an inevitable and culture-determining decision on the three issues centrally identified in this statement.  I also believe that we will experience a significant loss of Christian churches, denominations, and institutions in this process.  There is every good reason to believe that the freedom to conduct Christian ministry according to Christian conviction is being subverted and denied before our eyes.”17

One key message of the Declaration is that when conservative Christians are required to honor federal civil rights laws, profound opposition may be required. Invoking Martin Luther King, Jr.’s “Letter from a Birmingham Jail,” the Declarationists called for “resistance to the point of civil disobedience against any legislation that might implicate their churches or charities in abortion, embryo-destructive research or same-sex marriage.”18  Their promise of resistance has since been reiterated many times by top Christian Right leaders, such as Rick Warren, Tony Perkins, and Robert P. George.19  Others have raised the possibility of violence.20

George, a professor of jurisprudence at Princeton University and prominent Roman Catholic neoconservative, originated the Declaration.  A key movement strategist, George is also the founder and guiding light of a number of related institutions that have adopted the Declaration’s issue trinity, including the National Organization for Marriage, the Witherspoon Institute, the American Principles Project, and American Principles Action.  Signers of the Declaration include most of the leaders of the organizations mentioned in this report.

The three themes of the Declaration now frame the agendas of the major organizations of the Christian Right from the legal group Alliance Defending Freedom (ADF) and CitizenLink (the political arm of Focus on the Family) with its three dozen state affiliates,21 to the United States Conference of Catholic Bishops (USCCB).  The formula promises to define their common platform for the foreseeable future.

On the eve of the 2015 Obergefell v. Hodges decision of the Supreme Court that legalized marriage equality, Mat Staver, founder and leader of another Christian Right legal agency, Liberty Counsel, noted that the Declaration “anticipated what lay ahead” and that now “the future is here, and we are facing a fundamental conflict between the laws of Caesar and the laws of God.”22

LEGAL AND LEGISLATIVE PLAYERS AND TRENDS TODAY 

PRA’s 2013 report Redefining Religious Liberty exposed key organizations’ message framing, capacities, and goals. Since then, two major Christian Right law firms featured in that report, the Becket Fund for Religious Liberty and ADF, have played historic roles in advancing their agenda in transformational decisions of the U.S. Supreme Court.  The other major trend since 2013:  These and other Christian Right groups promoting “religious freedom” have grown in revenues and influence on the national stage, adding millions to their annual budgets in two or three years (see boxes). For smaller outfits like the Becket Fund and Liberty Counsel, this infusion substantially expanded their reach.

It is worth considering in this context that over the past three decades, Christian Right-oriented law schools have arisen that developed much legal talent for the long haul. Pat Robertson founded Regent University School of Law in Virginia Beach (1986) and the late Jerry Falwell established a law school at his Liberty University in Lynchburg, VA (2004).  In 1999, conservative Roman Catholic (and Domino’s Pizza magnate) Thomas Monaghan founded Ave Maria School of Law in Naples, FL.

This growing Christian Right legal infrastructure was fully engaged in these key legal developments since our 2013 report.

PROFILE: Alliance Defending Freedom (click to expand)

AllianceLogoAlliance Defending Freedom is a national legal network headquartered in Scottsdale, Arizona, led since its founding by Alan Sears.  It has long had a close relationship with the conservative evangelical group Focus on the Family and its national political arm, CitizenLink, along with its three dozen state affiliates.  As such it has been a vital hub in the development of legal and political talent.

ADF grew 21 percent from FY 2009 to FY 2012, increasing gross revenues from $34.7 million to $39.8 million.  ADF litigated Conestoga Wood Specialties v. Burwell, which the Supreme Court later consolidated with what became the historic Hobby Lobby case.

ADF employs around 50 lawyers and has provided continuing legal education training to more than 1,800 attorneys.  Since 2000, its Blackstone Legal Fellowships have trained more than 1,600 first-year law students from more than 225 law schools in 21 countries.  These internships aim to inspire a “distinctly Christian worldview in every area of law, and particularly in the areas of public policy and religious liberty.”

Thus it is fair to ask: What is this distinct worldview?  While the Blackstone program includes “natural law” as part of its legal and “worldview” curriculum, its recommended reading list features books by leading Christian Reconstructionist authors who advocate for transforming society according to “Biblical principles” in all areas of life, including politics and government.117 Numerous Blackstone alumni have risen to positions of influence in state and federal courts, the federal government, the United Nations, and international agencies.118

The ADF’s model Student Privacy Policy offers a highly individualized notion of religious exemption from civil rights laws, claiming, “Allowing students to use opposite-sex restrooms and locker rooms would seriously endanger students’ privacy and safety, undermine parental authority, violate religious students’ right of conscience, and severely impair an environment conducive to learning.”  Its use of the term “opposite-sex” is clearly aimed at transgender students or in response to the introduction of trans-inclusive policies.119

Unsurprisingly, an international dimension to the struggle has emerged, with ADF launching a Global Initiative in 2010 to wage an “international fight for religious liberty for Christians and establishing a larger ADF footprint to accomplish this mission.”  ADF says it funds “human rights legal work” in Europe, North America, and South Asia.120  In so doing, it has worked in national and regional courts as well as the United Nations system. Since opening a regional office in Vienna, Austria, ADF has worked across Europe (and increasingly in Latin America) on issues of abortion, euthanasia, registration of churches, and homeschooling. In FY2012, ADF spent $6 million to build alliances with religious and secular organizations that share its interests. ADF’s 2013 annual report states:

ADF works with our allies to develop effective approaches to legal cases that could result in important state, federal, and U.S.  Supreme Court and foreign court precedents.  Our most important example of this is found in court actions upholding voter initiatives affirming the traditional definition of marriage, by defending the rule of law in our courts and governmental bodies.  ADF’s alliance has been on the leading edge of this effort.

As Gillian Kane reported in PRA’s quarterly, The Public Eye, this strategy of gaining precedents in international courts is working, with U.S. courts noting the cases in their decisions.121

PROFILE: The Becket Fund for Religious Liberty (click to expand)

becketfundThe Becket Fund for Religious Liberty, founded in 1994, grew 86 percent in just four years, with a gross revenue increase from $2.7 million in FY2009 to $4.75 million in FY2012.  It litigated and won the landmark cases of Hosanna-Tabor v. EEOC, Hobby Lobby Stores v. Burwell, and Holt v. Hobbs.  These cases are among the most important religious liberty cases in recent American history, and, as noted, challenge contemporary understandings of the First Amendment, with implications that are just beginning to be felt.

Its case docket includes seven that are follow-ups to the Hobby Lobby case, now consolidated into one that will reach the U.S. Supreme Court in 2016.122  The case, now named Little Sisters of the Poor Home for the Aged v. Burwell, challenges the procedure for seeking an exemption to the contraception mandate under the Affordable Care Act.  The Little Sisters, a Roman Catholic order, does not want to be “complicit” in abortion and contraception by having to fill out the simple form requesting an exemption from the law on grounds that this would facilitate the very acts to which it objects.  Becket’s cases will be presented by Paul Clement, Solicitor General during the administration of George W. Bush, who also argued the Hobby Lobby case.123  ADF has litigated two of the seven cases.124

In addition to its remarkable domestic record, the Becket Fund frequently litigates at the European Court of Human Rights (ECHR) in Strasbourg, France.  The ECHR is the primary international court designed to enforce the European Convention on Human Rights.125

PROFILE: Liberty Counsel (click to expand)

Liberty Counsel logoLiberty Counsel, founded in 1989 and headquartered in Orlando, Florida, is headed by Mat Staver, the (now former) longtime dean of the Liberty University School of Law.  (Liberty University is a rightwing evangelical school founded by the late Jerry Falwell.) Liberty Counsel grew 17 percent in three years, with an increase in gross revenue from $3.58 million in FY2010 to $4.20 million in FY2013.  Liberty Counsel has several related tax-exempt organizations, perhaps the most important of which is its political action arm, called Liberty Counsel Action (which is one of the organizational sponsors of the annual Values Voters Summit, the premier political conference of the Christian Right).  It grew 39 percent in two years, with an increase in gross revenue from $1.44 million in FY2011 to $2 million in FY2013.  Staver is perhaps best known for his legal defense of Kim Davis, the Kentucky county clerk who refused to issue same-sex marriage licenses in defiance of a federal court order.  The Southern Poverty Law Center has designated Liberty Counsel as a hate group, describing it as “a legal organization advocating for anti-LGBT discrimination under the guise of religious liberty.”126

PROFILE: Stanford University Law School Religious Liberty Clinic (click to expand)

stanford bannerIn an important mainstreaming move, the huge conservative philanthropy John Templeton Foundation funneled $1.6 million through the Becket Fund to establish a religious liberty clinic at Stanford University Law School. It opened in January 2013.  “In framing our docket, we decided we would represent the believers” rather than governments, the clinic’s founding director, James Sonne, told The New York Times:  “Our job is religious liberty rather than freedom from religion.”127

Douglas Laycock, a professor of law at the University of Virginia who keynoted the clinic’s opening, said it is not a religious liberty clinic in the full sense of the term. It is not litigating the separation of church and state, but instead focusing on the “free-exercise” of religion.128  The clinic has filed 13 amicus briefs, including two on behalf of the Becket Fund; the clinic often files amicus briefs on cases in which the Becket Fund has also filed briefs.129

PROFILE: The Freedom of Conscience Defense Fund (click to expand)

freedom of conscience defense fund logoThe Freedom of Conscience Defense Fund in Rancho Santa Fe, California, was founded in 2012. By FY2013 it reported gross revenues of $1.33 million.  Charles Limandri, President and Chief Counsel, provides legal services at the trial level to protect religious liberty and free speech.  The Roman Catholic-oriented organization often works with attorneys affiliated with Alliance for Defending Freedom.  It is providing pro-bono representation for David Daleiden and the Center for Medical Progress, the producer of the infamous anti-Planned Parenthood videos released in 2015.130

PROFILE: The Liberty Institute (click to expand)

Liberty InstituteThe Liberty Institute headquartered in Plano, Texas, was founded in 1972 as the Free Market Foundation.  It has since transformed into a national religious liberty advocacy group, pro bono legal network, and funding agency.  Headed by Kelly Shackleford, the Institute more than doubled its gross revenues in two years, from $3.63 million in FY2011 to $8.4 million in FY2013.  It is currently best known for the publication of manuals for “religification” of churches and other institutions as a form of legal inoculation against civil rights lawsuits.

institutional impact

Federal Religious Freedom Cases

The Hobby Lobby chain of retail arts and craft stores based in Oklahoma City, OK, won an important religious freedom case for the Christian Right.

The Hobby Lobby chain of retail arts and craft stores based in Oklahoma City, OK, won an important religious freedom case for the Christian Right. Courtesy of Nicholas Eckhart via Flickr. License: https://creativecommons.org/licenses/by/2.0/

In the 2014 Hobby Lobby case opposing the Affordable Care Act’s contraceptive mandate, the U.S. Supreme Court ruled for the first time that “closely held” for-profit companies with few shareholders have religious freedom – a right of the kind normally applied to individuals or religious organizations,23 and that this right may be applied in matters related to certain regulations of the Affordable Care Act.24  In so ruling, the Court gave some businesses the right to encroach on the religious liberty and workers’ rights of its employees while declaring exemptions from the law for themselves.

While commonly referred to as Hobby Lobby, it was actually a consolidated case involving Burwell v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Burwell.  ADF represented Conestoga Wood Specialties and the Becket Fund represented Hobby Lobby.  Often overlooked is that the Court also allowed the religious views of the owners of these companies to trump medical science in claiming that the four contraceptives at issue – two kinds of birth control pills and two kinds of intrauterine devices – were abortifacients.25  An amicus brief submitted by medical associations, including the American College of Obstetricians and Gynecologists, stated that notwithstanding the personal views of the company owners regarding when life begins,

The medical and scientific communities define pregnancy as beginning upon implantation. While personal beliefs may dictate individual choices and values, they cannot alter established scientific standards and terminology:  abortion refers to the termination of a pregnancy.  Thus, the term ‘abortifacient’ refers to — and should only be used in connection with — drugs or devices that end a pregnancy, not those that prevent it.26

The result is that Hobby Lobby, et al. redefines what pregnancy is, and therefore what abortion is. This may become a further issue with religious claims once again trumping the religious rights and health needs of women as further litigation tests the reach of Hobby Lobby.  Feminist author Patricia Miller writes that although it was evangelicals who defeated the contraception mandate, they had a lot of Roman Catholic help. Indeed, the Catholic bishops had long “sought a broad-based conscience clause that would allow any employer or insurer to refuse to cover contraceptives for any religious or moral objection.”  They may now have one. 27

Americans United for Separation of Church and State used the hashtag #FreedomFraud to comment on the Hobby Lobby case.

Americans United for Separation of Church and State used the hashtag #FreedomFraud to comment on the Hobby Lobby case. Courtesy of www.au.org

In its decision, the Court relied on the bipartisan 1993 federal Religious Freedom Restoration Act (RFRA), which was intended to protect individuals against government actions.  RFRA set a high standard in which policymakers may not “substantially burden” a person’s exercise of religion unless they can show a “compelling governmental interest” and that the policy was the “least-restrictive means” of achieving it.  Hobby Lobby reinterprets that standard to allow not just individuals but third parties such as businesses to make claims of religious exemption from various laws.  As Professor Marci A. Hamilton of Yeshiva University’s Benjamin Cardozo School of Law noted, this interpretation of RFRA “dramatically increases the rights of religious believers against all laws as compared to the First Amendment.” 28

Hobby Lobby also relied upon a less well known law unanimously passed by Congress and signed by President Bill Clinton in 2000: the Religious Land Use and Institutionalized Persons Act (RLUIPA). The Court cited RLUIPA in the first paragraph of its Hobby Lobby decision.

A unanimous U.S. Supreme Court decision in 2015 that was widely deemed a reasonable accommodation of religion also relied on RLUIPA.  Holt v. Hobbs (litigated by the Becket Fund, and argued by Professor Douglas Laycock of the University of Virginia Law School29), allowed an Arkansas prison inmate to grow a half-inch beard (even though beards were against prison regulations) because his Muslim faith required it.  The ruling, which relied on RLUIPA, was widely deemed a reasonable and uncontroversial accommodation of prisoner Holt’s religion.  It was, however, a significant judicial ratification of the language of RFRA and RLUIPA expanding the scope meant by the “exercise of religion.” 30

State-level Religious Freedom Restoration Acts

The original purpose of the federal RFRA was to restore individual religious liberty, seen to have been taken away in the 1990 Supreme Court case Employment Division v. Smith.  This case involved Native Americans denied state unemployment benefits in Oregon because they had been fired as state drug counselors for using the illegal drug peyote in traditional religious ceremonies.  The Court ruled that they had no legal recourse, so Congress in 1993 sought to narrowly set a standard essentially reversing the Smith decision via RFRA.

After the Supreme Court limited the scope of RFRA to the federal government (in the case of City of Boerne v. Flores),31 civil rights activists got versions of the legislation passed in 21 states.  Most of these were identical or similar to the original federal RFRA, but in the wake of the Hobby Lobby decision, Christian Right groups sought to pass state-level RFRAs that would allow third parties such as businesses to claim religious exemptions from laws.  This was particularly aimed at businesses that did not want to participate in any way in same-sex marriage.  In 2014, the legislation failed in several states, but passed in Mississippi, where it remains on the books.  In 2015, state RFRAs passed only in Indiana and Arkansas. Justice Ruth Bader Ginsburg, dissenting in Hobby Lobby, warned, “The court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”  Her concerns were realized in the efforts to insert Hobby Lobby-ized provisions into state RFRAs. 32

A national controversy erupted in Indiana in March 2015 following the passage of a state RFRA which seemed to justify anti-marriage equality discrimination.  (Nineteen original sponsors of RFRA were so outraged by this trend that they withdrew their support for the act.33 )The bill was modified in April to ensure that was not the case.34  A standard RFRA has so far failed to pass the legislature in Michigan.  Instead, the state enacted legislation in June 2015 that allowed adoption agencies that contract with the state to decline service to prospective parents on religious grounds.  The principal beneficiaries of the legislation were the evangelical Bethany Christian Services and the Michigan Catholic Conference, which together reportedly provide 25 to 30 percent of adoptions in the state.35  Catholic agencies in several states, beginning in Massachusetts a decade ago, previously withdrew from providing state contracted adoption services rather than conform to state law upholding LGBTQ equality and recognizing same-sex marriages. 36  These are the kinds of exemption controversies we are likely to see for the foreseeable future, following from other such efforts to legalize LGBTQ discrimination without consequences for the discriminating party.37

Obergefell v. Hodges

Supporters en route to the Marriage Equality Rally on the day of Obergefell v. Hodges case oral hearings at the U.S. Supreme Court in Washington D.C., April 28th 2015

Supporters en route to the Marriage Equality Rally on the day of Obergefell v. Hodges case oral hearings at the U.S. Supreme Court in Washington D.C., April 28th 2015. Courtesy of Elvert Barnes Protest Photography via Flickr. License: https://creativecommons.org/licenses/by-sa/2.0/

The landmark decision of the U.S. Supreme Court that legalized same-sex marriage nationally in June 2015 was a major defeat for the Religious Right, but one for which they were prepared.  As we will see, their political and legal contingency plans are now appearing all over the country, as activists invoke new forms of conscientious objection, and private spaces and places are being turned into legal bastions against the wider culture in which abortion and contraception are legal, and LGBTQ equality is mainstreamed.  The Christian Right is now busy seeking to limit the implementation of the decision and to make it as unworkable as possible, in part by attempting to subject it to a death of a thousand exemptions.

Fighting for Religious Freedom in North Carolina

A pivotal North Carolina court case from 2014, General Synod of the United Church of Christ v. Reisinger, demonstrates that the Christian Right does not get to define Christianity and that LGBTQ equality can, in fact, express the sacred.

At issue was a 2012 amendment to the North Carolina state constitution asserting that same-sex marriages were invalid.  Together with the state’s general statutes, this amendment effectively criminalized the performance of same-sex marriage ceremonies. The upshot of the subsequent legal fight was that the million-member United Church of Christ (UCC), a mainline Protestant denomination with more than 5,000 local churches, won a clear victory for both marriage equality and religious liberty.  The UCC engaged the foundational values of religious equality and equal protection under the law that bind this diverse and often fractious nation.

“By depriving the Plaintiffs of the freedom to perform religious marriage ceremonies or to marry,” the UCC complaint read in part, “North Carolina stigmatizes Plaintiffs and their religious beliefs.”  The complainants also argued that the law relegated same-sex couples “to second-class status.”  Along with same-sex couples, plaintiffs also included the Alliance of Baptists, the Association of Welcoming and Affirming Baptists, and the Central Conference of American Rabbis, and clergy from several traditions, including Episcopal, Lutheran, and Unitarian Universalist.

The complaint continued:

The laws forbidding same-sex marriage tell Plaintiffs that their religious views are invalid and same-sex relationships are less worthy, thus humiliating each Plaintiff and denigrating the integrity and closeness of families and religious organizations, depriving Plaintiffs of the inclusive religious community of family units they wish to establish.38

Had the amendment stood, UCC clergy and others who routinely perform same-sex marriage ceremonies could have been subject to criminal prosecution.  “We didn’t bring this lawsuit to make others conform to our beliefs,” UCC General Counsel Donald C. Clark, Jr. told The New York Times, “but to vindicate the right of all faiths to freely exercise their religious practices.”39

After a complicated legal trajectory, U.S. District Court Judge Max O. Cogburn Jr. issued a final decision after the U.S. Supreme Court declined to hear an appeal by the state in another case.  He wrote, “It is clear [that these laws,] threatening to penalize those who would solemnize such marriages, are unconstitutional.”

Cogburn’s ruling underscores an idea that transcends the issues of the day:  that religious liberty is only possible in the context of religious pluralism.

Since then, a fresh suit filed in 2015 challenges the constitutionality of a related North Carolina state law.40  This law allows magistrates responsible for performing marriages to not only self-exempt themselves for religious reasons, but spend state funds in support of their choice.  The state would spend money to bring in a willing magistrate to perform the wedding or if necessary, issue the license if every official in a given jurisdiction declines to perform a ceremony.  The legislation also pays retirement benefits for the time out of office of those who resigned as a matter of conscientious objection but were later reappointed after the law took effect.  Among the plaintiffs are a same-sex couple from the Reisinger case and an interracial couple barred from marrying in the era of miscegenation laws.

About 5 percent of North Carolina’s roughly 670 magistrates had filed recusal paperwork as of September 2015.41 Utah is the only other state currently allowing religious-objection opt outs for court officials.

‘RELIGIFICATION’ AND ZONES OF EXEMPTION

In the ever-shifting terrain of the so-called culture wars, the Christian Right is seeking to minimize its losses and consolidate its reserve strengths by seeking individual, institutional, and territorial exemptions from laws and regulations on religious grounds so they do not have to follow the same rules as the rest of society.  These overlapping exemptions threaten to give rise to theocratic zones of control violating the religious liberty of those who find themselves under their sway.  By opposing government sovereignty, the zones also would feed into the antigovernment efforts of free marketeers who oppose government regulation.

Individual Exemptions

In the United States, religious liberty historically has been considered first and foremost a right for individuals.  Individuals are free to believe as they will, shielded from the undue influence of powerful religious institutions or the government.  This was not intended as an exemption from the law.  Everyone from Thomas Jefferson and James Madison to the U.S. Supreme Court has made clear that freedom of conscience is limited in some areas of conduct.  But the religious and political Right are increasingly turning to civil libertarian ideas to seek exemption from the legal norms of society, even at the expense of the rights of others.

President Obama and Pope Francis in Washington D.C., September 2015

President Obama and Pope Francis in Washington D.C., September 2015. Image courtesy of the White House..

Supported by Christian Right institutions, individual pharmacists and health workers have sought exemptions to avoid being “complicit” in abortion and contraception. Similarly, government workers and elected officials have sought to gain exemption from executing same-sex marriages.   Sometimes they make headlines.  Kentucky County Clerk Kim Davis went to jail (briefly) rather than have her office issue same-sex marriage licenses. Some probate judges in Alabama invoked a segregation-era law to stop issuing all marriage licenses in their counties to avoid issuing same-sex marriage licenses: an all-White Alabama legislature passed the 1961 law making it optional for counties to issue marriage licenses, so judges could avoid issuing licenses to interracial couples.  As of October 2015, at least nine of Alabama’s 67 counties have quit issuing marriage licenses since the June Obergefell decision.42

Legislatures are also weighing in.  In North Carolina, the Family Policy Council (the state political affiliate of Focus on the Family) wrote a bill allowing clerk magistrates and registers of deeds to ask a judge to “recuse” them from performing all marriages by stating that performance of same-sex marriages would violate their religious beliefs.  It passed over the governor’s veto and, as mentioned, is now in the courts.  Even though the reason for the recusal may be same-sex marriage, the aim is apparently to avoid charges of discrimination since these elected officials would recuse themselves from participating in all marriages.43

Even before Obergefell legalized same-sex marriage nationwide, the Christian Right was preparing conscientious objection strategies based on existing law in several states.  In 2012, for example, ADF advised that officials responsible for issuing marriage licenses in Maine, Maryland, and Washington did not have to violate their religious conscience by personally issuing licenses to same-sex couples.  They said existing state laws allowed them to delegate responsibility for issuing the licenses to others who do not have conscience-based objections.44  No one took them up on it, and not all states have such provisions for conscientious objection.  But the utility of the idea as a tactic became clear as marriage equality advanced.

Pope Francis highlighted religious freedom and the right to conscientious objection during his widely celebrated U.S. visit.  The pontiff discussed religious liberty during his visit to the White House, in his address to Congress, and especially in his speech in front of Independence Hall in Philadelphia.45  On the flight back to Rome, Terry Moran, Chief Foreign Correspondent for ABC News, asked him about government officials who refuse to perform their duties because of religious objections to same-sex marriage.  The Pope replied that “conscientious objection must enter into every juridical structure because it is a right, a human right.”46  Soon afterward, news broke of his secret meeting with Kim Davis (which has since led to much speculation, confusion, and controversy,47 with the Vatican asserting “his meeting with her should not be considered a form of support of her position in all of its particular and complex aspects.”).48

Religious Freedom rally in Washington D.C., 2012.

Religious Freedom rally in Washington D.C., 2012. Courtesy of American Life League via Flickr. License: https://creativecommons.org/licenses/by-nc/2.0/

There was no ambiguity in Pope Francis’ visit with the Little Sisters of the Poor while he was in Washington, D.C.  “This is a sign, obviously of support for them [in their court case against the contraception waiver under the Affordable Care Act]” said Father Federico Lombardi, SJ, the head of the Vatican Press Office.  “In this sense,” he added, “it is connected also to the words that the Pope has said in support of the Bishops of the United States in the speech to President Obama.”49

No one should be surprised.  In 2014, Francis slammed as “bastardized” any definitions of marriage and family that do not comport with Church teaching, including “new forms” of unions which are “totally destructive and limiting the greatness of the love of marriage.”50

Meanwhile, the notion of accommodation took a different turn in Utah in April 2015.  The state legislature passed a workplace and housing nondiscrimination law with strong religious exemptions, co-written by civil rights groups and the Church of Jesus Christ of the Latter Day Saints or LDS (commonly known as the Mormon Church).  As PRA reported at the time, the Mormons collaborated with conservative legal theorist Robin Fretwell Wilson to help draft it.  The bill added sexual orientation to the list of protected classes against whom employers and landlords cannot discriminate – but exempted faith-based schools, hospitals and organizations from conforming to the law.51

PRA Communications Director Eric Ethington criticized the “compromise” as a “watered-down nondiscrimination law” that undermines the LGBTQ and other minority communities.  The price, he noted, was the de facto “endorsement by high-profile LGBTQ groups of the Right’s false contention that religious freedom is somehow at odds with LGBTQ rights, requiring a compromise.” 52

The Church capitalized on the situation, secretly writing a second bill that granted county clerk employees a religious exemption from processing same-sex marriage licenses, as long as there was someone else in the office available to do the job.  The Mormon Church then told lawmakers that if it didn’t also pass, the Church would withdraw its support for the so-called nondiscrimination law.  Human rights groups were caught flat-footed and reluctantly released a statement saying they “did not oppose” the second bill.

Revealing a tension between the Christian Right’s notion of religious liberty and the LDS Church’s belief that it must always conform to the law, Mormon Elder Dallin H.  Oaks, a member of the Quorum of the Twelve Apostles of the church, said that public officials “are not free to apply personal convictions – religious or other – in place of the defined responsibilities of their public offices.”  Apparently referring to the Kim Davis episode, he added, “A county clerk’s recent invoking of religious reasons to justify refusal by her office and staff to issue marriage licenses to same-gender couples violates this principle.”53

One way that the Christian Right is developing and promoting legal justifications and popular messaging is by publishing legal guides for individuals and institutions in order to generate popular resistance to legal and cultural safeguards against religious supremacy.  For example, there has always been (and probably always will be) a degree of tension about when and how students and staff can engage in religious expression in public schools.  But Liberty Institute is ramping up its efforts to expand reasonable accommodation, issuing a Religious Liberty Protection Kit for Students and Teachers.

The booklet addresses a range of issues, from religious expression in class to Christmas celebrations.  While not all of the information is incorrect, it is premised on the notion that a creeping antireligious secularism in the schools must be combated because, the Institute claims, it results in rising “crime and suicide rates…in our schools while academic scores and career readiness are falling.”54  This too, is a carefully worded retread of a long disproved meme, linking the elimination of official school prayer to crime and other negative social and economic indicators. It is a meme that, like the claim of creeping secularism and its variants, falls apart under scrutiny.55  It also conveniently ignores the high incidence of bullying and suicide among LGBTQ students.

Religious liberty struggles are also expanding in the military.  Here Christian Right groups resist the protection of the constitutional rights of all with demands for accommodation and legal exemptions for Christian expression – largely proselytizing – and religious coercion by the chain of command.

Tony Perkins and Lt. Gen. (Ret.) William G. “Jerry” Boykin of the Family Research Council claim that: “pressures to impose a secular, anti-religious culture on our nation’s military services have intensified tremendously during the Obama Administration.”  They attribute this to targeting of the military by “anti-Christian activists.”56

In 2013, the Washington, DC-based Family Research Council (FRC) published A Clear and Present Danger:  the Threat to Religious Liberty in the Military as a prelude to launching a coalition made up of about two dozen Christian Right political and legal groups to address these issues.57  This was at once an effort to control the definition of religious freedom in the military context, and a response to the Military Religious Freedom Foundation (MRFF), which opposes religious intimidation and coercion by people in positions of power (usually evangelical Christians) within the U.S. military. One group has alleged, for example, that MRFF is an “Anti-Christian Bigotry Group,” and that MRFF uses “lawsuits and intimidation to silence any reference to Christianity from the public square.”58

Tony Perkins and the Family Research Council published a 2nd edition of "A Clear and Present Danger" in 2015.

Tony Perkins and the Family Research Council published a 2nd edition of “A Clear and Present Danger” in 2015.

Liberty Institute screens requests from members of the armed services for legal assistance, and refers potential cases to members of the coalition’s legal team and network of attorneys.  The Institute produced a Religious Liberty Protection Kit for the U.S. Military, which emphasizes the key terms of RFRA and the recent court decisions hinging on it.  Specifically, consistent with the language of RFRA (and RLUIPA) via Hobby Lobby, it claims that the military must accommodate “sincerely held religious beliefs” and that the government may “deny… religious expression only when it can show a compelling governmental interest and uses the least restrictive option in accomplishing that interest.”59

Institutional Exemptions

The notion that businesses, schools, and other institutions have a right to the religious freedom accorded religious institutions and individual clergy is a key ground of contestation in the wake of the U.S. Supreme Court decisions relying on its interpretation of RFRA.

The Court’s Hobby Lobby decision concluded that private, for-profit businesses may be exempted from the law, but the ruling did not spell out how far religious liberty claims of exemption could go, and is likely to be tested in the courts for years to come.  The Little Sisters of the Poor case involves refusing to file the paperwork to request a religious exemption from the mandate.  The federal government has made clear that the exemption would be granted, but the Becket Fund is arguing that it violates the order’s conscience even to have to request it.60

Beyond this the Christian Right is seeking to advance its agenda by expanding the definition of ministry.  Their legal groups’ key tactic is to build on the unanimous 2012 U.S. Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC).

Briefly, in Hosanna-Tabor, a mainline Lutheran-owned school fired a social studies teacher over a disability, leading to the teacher’s claim that she suffered from discrimination.  The church argued that the government had no right to intervene in its employment decisions since the teacher served in a ministerial capacity because she was “called” by the church (unlike lay teachers in the school), led students in prayer three times a day as part of her duties and taught religion four times a week.  The Court agreed, extending the longstanding “ministerial exception” to the teacher, and saying that relationship trumped any unlawful discrimination charge.61  It thus raised Christian Right hopes that the Court will stretch the notion of ministry even more in the future.  The words of Chief Justice John Roberts who authored the decision were encouraging.  The court had opted not to “adopt a rigid formula for deciding when an employee qualifies as a minister.”  The limited time the social studies teacher spent on religious duties was sufficient, in the view of the court, to define the role of a teacher as one of ministry.

“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision,” wrote Roberts. “By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.” 62

Christian Right leaders and advocates for the interests of religious institutions saw Hosanna-Tabor as a “great victory” and a departure from “the usual focus on the religious rights of individuals.”63  Dr. C. Peter Wagner, the evangelical founder of the theocratic New Apostolic Reformation 64 and a longtime professor of church growth at Fuller Theological Seminary, observed that: “not only churches, but ministries supported by the church are included in this ruling.  Schools are specifically mentioned, but how about a number of other kinds of ministries attached to our churches and apostolic networks? I would think they would fall under the same umbrella.” 65  Mormon apostle Dallin H. Oaks said he found “comfort” in the decision, against thethreat” of governmental actions that he believes “are overshadowing the free exercise of religion by making it subordinate to other newly found ‘civil rights.’” 66

The Wall Street Journal editorialized, “The case is arguably among the most important religious liberty cases in a half century, and the concurrence of Justices across the ideological spectrum will be felt for years. Hallelujah.”67  The Becket Fund called it “the greatest religious liberty case in 50 years.”68  They may not be wrong about its significance – even though many opponents of the Christian Right agree that the Court ruled correctly in the case.

The Christian Right is already exploiting the open-endedness of the Court’s definition of ministry.  The extent to which religiously affiliated institutions such as schools, charities, hospitals, and perhaps even for-profit businesses can define employees as ministers is now an active question – certain to be tested – as conservative religious movements and leaders seek to carve out zones of exemption from the advance of secular law, equality, and accountability.

The practical effects of Hosanna-Tabor are already being felt as several Roman Catholic dioceses have sought to reclassify teachers and other Catholic school employees as part of the “ministry” of the church.69  This religification was on vivid display in early 2015, when Archbishop Salvatore Cordileone of San Francisco, following Roman Catholic prelates in Cincinnati, Cleveland, Honolulu, and Oakland, declared that teachers in the Catholic schools will be required to conform to Catholic teaching in their personal lives.  (As chair of the Subcommittee for the Promotion and Defense of Marriage of the USCCB, Cordileone is a leading culture warrior.)70  Cordileone wanted unionized employees to accept contract and faculty handbook language against homosexuality, same-sex marriage, abortion, contraceptives, and artificial insemination.  He also said that all Catholic school employees – even non-Catholics – must conform with and not contradict Church teachings.71  Cordileone’s initiative was met with resistance in San Francisco, but the future battle lines in San Francisco and beyond are clearly drawn.

As employers, religious institutions themselves are subject to labor laws, including the Fair Labor Standards Act, federal income tax, and Social Security withholdings.  But in recent years, a number of Roman Catholic colleges and universities have claimed, for example, that the National Labor Relations Board lacks jurisdiction over union organizing among their workers.72  They have thus far not succeeded, but they will surely continue testing the breadth and depth of implications of the Hosanna-Tabor decision.73

Cordileone’s attempts to religify San Francisco’s Catholic school employees were in fact part of a larger effort by the Christian Right to “religify” religious – and also nonreligious – institutions and businesses by linking them and their employees to ministerial duties.74  The tactic aims to advance and consolidate Christian Right gains at the Supreme Court, and stanch other losses.

Christian Right legal groups are issuing manuals for conservative churches and other organizations to inoculate themselves against private lawsuits and government enforcement of civil rights laws.  Under the rubric of religification, the Liberty Institute urges institutions to specify, document, and enforce their beliefs as a defensive tactic against feared legal attacks.  This includes:

…examining articles of incorporation, bylaws, employee handbooks, policies & procedures, independent contractor agreements, and other documentation to ensure that churches, ministries, and faith-based businesses are prepared and protected against legal and financial ruin from individuals and organizations who are offended by traditional religious viewpoints—and seek to litigate employment or discrimination claims to further a larger political or cultural agenda. 75

Having lost the main legal battle over marriage equality in the United States, the Christian Right is hunkering down for what they foresee as a long siege against conservative Christian churches, businesses, and organizations on this, and a range of concerns.  The Liberty Institute’s religification manuals demonstrate that Christian Right leaders of the culture war intend to fight LGBTQ rights and marriage equality in the states, in the towns and cities, and in many kinds of institutions for years to come.

Alliance Defending Freedom and the Ethics & Religious Liberty Commission co-published "Protecting Your Ministry From Sexual Orientation Gender Identity Lawsuits."

Alliance Defending Freedom and the Ethics & Religious Liberty Commission co-published “Protecting Your Ministry From Sexual Orientation Gender Identity Lawsuits.”

In 2015, the Alliance Defending Freedom (ADF), joined forces with the Ethics & Religious Liberty Commission (ERLC) of the Southern Baptist Convention to issue another such handbook, urging religification by revising documents – from employee job descriptions to facility rental agreements – for churches and related institutions. Workers and volunteers should be reclassified under a broad redefinition of “ministry,” and institutional functions should be cast in terms of religious doctrine.  The goal is to qualify for broad “ministerial exemptions” from the law.76

The ADF and ERLC handbook, Protecting Your Ministry from Sexual Orientation and Gender Identity Lawsuits:  A Legal Guide for Southern Baptist and Evangelical Churches, Schools, and Ministries, anticipates needing to “engage a hostile social and political culture… amid the gathering spiritual darkness.”  Consistent with the dualistic framing that pits LGBTQ rights against religious freedom, the ERLC claims, “A new concept – that “sexual liberty” trumps religious freedom – has begun to impact churches, ministries, and Christians across this nation.”77

The Liberty Institute sees it as “not a matter of if but when religious institutions will be faced with damaging, anti-religious legal attacks.”78  [Emphasis in the original.]  To prepare, the Institute advises institutions from churches and synagogues to fraternities and for-profit corporations to “religify.”79

The Institute has also issued Religious Liberty Protection Kit for Christian Schools, which, like their manual for churches, “provides templates and guides for writing legally defensible statements of faith, mission, purpose, school bylaws and constitutions, and more.”80  The Institute plans to issue similar manuals for nonprofit organizations, businesses, and even fraternities and sororities.81

The Southern Baptist manual suggests assigning “… employees duties that involve ministerial, teaching, or other spiritual qualifications – duties that directly further the religious mission.  For example, if a church receptionist answers the phone, the job description might detail how the receptionist is required to answer basic questions about the church’s faith, provide religious resources, or pray with callers.”82

While the courts may not buy the idea that a receptionist can be reasonably construed as a minister in the legal sense, this is the kind of thinking that is permeating the conservative Christian world in the wake of Hosanna-Tabor.

This religification project has immediate implications on matters of sexual identity. The Liberty Institute’s template titled “Statement of Faith:  Marriage and Human Sexuality” advances a strident, exclusivist, and detailed doctrine identifying permanent, heterosexual marriage or celibacy as the only acceptable parameters of human sexuality, stating,

All of our members, employees, and volunteers must affirm and adhere to this Doctrinal and Religious Absolute statement on marriage and human sexuality to qualify for involvement with the ministry.  This is necessary to accomplish our religious mission, goals and purpose.83

The Institute’s Facility Use Policy agreement would require outside groups and individuals to conform to a given church’s views on faith, marriage, sexuality, and gender identity.  This is intended to help these institutions avoid “legal and financial ruin” due to the activities of “individuals and organizations that are offended by traditional religious viewpoints and seek to litigate employment or discrimination claims to further a larger political or cultural agenda.84  The goal, they say is to be able to “prove the sincerity of their faith – and protect themselves from coming legal attacks.”85

"Religious Liberty Protection Kits" published by the Liberty Institute.

“Religious Liberty Protection Kits” published by the Liberty Institute.

The Baptists claim that a reason for such measures is that malevolent intentions lurk behind the passage of local LGBTQ anti-discrimination ordinances.  These laws “are not designed for the innocent purpose of ensuring all people receive basic services,” they claim.  “Rather, their practical effect is to legally compel Christians to accept, endorse, and even promote messages, ideas, and events that violate their faith.”  The manual avers that religification cannot inoculate institutions from “all attacks by marriage counterfeits and those advocating for complete sexual license.”  But it concludes that these measures might place an organization in a “more defensible legal position should it face a lawsuit for discrimination.”86

This is also the goal of conservative Christian colleges that receive federal funds seeking exemption from Obama administration guidelines regarding matters of sex and gender identity, homosexuality, and marital status.  Like other religifying institutions, the schools are seeking to put themselves in the most legally defensible position they can if they are sued for discrimination.

These requests follow a religification-style template produced by the Springfield, VA-based Christian Legal Society, an early Christian Right legal project founded in 1961 that has specialized in education cases and wider religious freedom matters since 1980.

The U.S. Department of Education’s Office of Civil Rights granted waivers to 27 religious colleges and universities in 17 states in 2014 and 2015.  Most of these are conservative evangelical schools.  Some are Roman Catholic.  More applications are reportedly pending.  The waiver granted to the Southern Baptist-affiliated Carson-Newman University in Jefferson City, Tennessee, includes women who have had an abortion or who may be pregnant.87

When the U.S. Congress passed Title IX in 1972 to combat discrimination based on sex in education, Congress stipulated that a school that is “controlled by a religious organization” may be exempt if compliance “would not be consistent with the religious tenets of such organization.”

Such requests were rare until 2014 when the Obama administration issued guidance that the Title IX discrimination prohibition extends to transgender and gender nonconforming people. 88

Belmont Abbey College, a Benedictine Catholic school near Charlotte, NC wrote regarding their policies on gender, sexual identity, and marital status, “We will make institutional decisions in light of this policy regarding housing, student admission and retention, appropriate conduct, employment, hiring and retention, and other matters.”89

Biola University (founded as the Bible Institute of Los Angeles) requires its faculty to sign a statement of creedal conformity; and requires non-faculty employees to state in what ways they are in disagreement and their reasons why.  Their views on abortion and on traditional marriage are deemed non-negotiable and “require the full agreement and support of all employees.” 90

All of these religification measures aim to allow institutional leaders to at once justify and compel their institutions, staff, and students into deeper conformity with contemporary religious orthodoxies, including those at odds with the civil and Constitutional rights of others.

Exceptional Exemptions in Indiana (click to expand)

Indiana is a hotbed of conflict over the politics of exemptions as this report goes to press. At stake are both a state version of RFRA and whether the statehouse can preempt and limit local LGBTQ nondiscrimination ordinances.

In 2015, after public outcry, Indiana’s legislature amended a state RFRA it had just passed, specifying that the new law was not intended to legalize discrimination.  The law had allowed for third parties, specifically businesses, to claim a right to discriminate if their owners had sincerely held religious beliefs against same-sex marriage.  The so-called RFRA fix131 also clarified that it would not supersede local antidiscrimination ordinances.

But the story does not end there.  Two Christian Right groups, the Indiana Family Institute and the American Family Association of Indiana, filed a federal lawsuit arguing that the amendment to the state RFRA is unconstitutional.  They claim that specifying that RFRA does not afford anyone room to discriminate not only violates their religious liberty, but also their freedom of conscience, right to free speech and association, equal protection under the law, and right to due process.

The lawsuit also challenges the constitutionality of the city ordinances passed by Indianapolis a decade ago and Carmel in 2015, which banned discrimination based on sexual orientation and gender identity.  The suit contends that protecting the rights of LGBTQ people in nondiscrimination laws violates the religious freedom of those who oppose homosexuality, as does the RFRA “fix.”  “The ‘fix’ makes people of faith second-class citizens,” according to Indiana Family Institute president Curt Smith.  The Institute’s attorney, James Bopp Jr., further claims that the government is protecting LGBTQ-friendly religions while other religions will “suffer government punishment if they don’t fall in line” and that “this discrimination between religious views is unconstitutional.” 132

Many leaders of the Christian Right do not in fact believe in civic equality for those with whom they religiously disagree or otherwise do not approve.  Indeed, the suit claims that by barring individuals and businesses from discriminating against LGBTQ people in employment, housing, and public accommodations, local antidiscrimination ordinances in Indiana compel conservative Christians “to associate with activities and social, political, and ideological messages with which they disagree, which are substantial burdens on free association.”

This pitting of the religious rights of some against the civic equality of others is at the heart of many contemporary disputes about the meaning of religious freedom.

In the second conflict, a bill before the Indiana state legislature would ban local jurisdictions (cities, towns, and counties) from enacting their own laws governing everything from land use to minimum wage and other workplace issues, as well as LGBTQ non-discrimination ordinances. Such measures are part of a significant trend.  Nearly all states, PRA’s Mariya Strauss reports, “have already done away with cities’ and towns’ ability to pass local gun control laws; not quite as many states have blocked local control of tobacco, e-cigarettes, and environmental regulations.”133

Borrowing from anti-LGBTQ policies established in Arkansas earlier this year and Tennessee in 2011, the proposed legislation in Indiana would prohibit local ordinances that would be “more stringent or otherwise in conflict” with the bill.134  The bill also borrows from the controversial “First Amendment Defense Act,” introduced but not passed by Congress (see page 23 of this report).  The bill would provide broad religious exemptions for individuals and organizations to discriminate, including adoption agencies, nonprofit schools, and religiously affiliated organizations “that provides social services or charitable services.”135

That such obvious discrimination is being so blatantly cloaked in a broad religious freedom claim is extraordinary.  Yet Indiana Republicans claim the coarse bigotry in “Senate Bill 100 is a good-faith attempt to balance religious liberty and the civil rights of LGBT Hoosiers.”136

Territorial Exemptions Involving Zoning and Land Use

Religious institutions invoke religious liberty to give them the upper hand in local zoning and land use issues using the Religious Land Use Institutionalized Persons Act (RLUIPA) signed by President Clinton in 2000.91  The law gives religious institutions access to the federal courts to make religious liberty claims in local zoning cases, and makes localities liable for damages and attorney’s fees.  Professor Hamilton of Benjamin Cardozo School of Law argues that religious visions for property can lead to a sense of entitlement that transcends respect for, and fair treatment of the rights and interests of, others.92  Similar situations exist when churches seek to add childcare centers, homeless shelters, and other facilities deemed incompatible with residential land use regulations.

In RLUIPA you can see the main elements of the Christian Right’s approach to religious liberty and the expansive notions of religious exemptions that flow from it.  It creates a presumption of antireligionism on the part of people who oppose a particular project.  Resistance by residential neighborhoods to the addition or expansion of large modern religious institutions is, of course, not necessarily a matter of being anti-Christian, anti-Jewish or antireligious in any sense of the word.  And yet, the charge that religious bigotry is involved is given great credence under RLUIPA. 93

The law’s biggest boosters are Christian Right ideologues like Anthony Picarello.  A litigator for the Becket Fund for seven years, he is now the General Counsel for and Associate General Secretary for Policy and Advocacy of the Roman Catholic USCCB.94 “RLUIPA does not create ‘two classes of citizens’ across religious lines.”  Instead, he claims, “it creates two classes of activities – land use that involves religious exercise, and land use that does not – and then reinforces the constitutional protection for all citizens who choose to use their land for religious exercise.”  Hamilton observes in response, “In other words, religious land is more valuable than anyone else’s.  Note also his sly use of the phrase ‘constitutional protection,’ as though RLUIPA is constitutionally required.  It is not.”95

The presumption of the superiority of religious uses of land over all others, and that opposition is rooted in hyper-secular or even antireligious animus, is in line with the underlying views of the signers of the Manhattan Declaration.

RFRA AND THE BIPARTISAN MEMO

A key battleground is whether the Religious Freedom Restoration Act (RFRA) allows federal contractors and grantees to discriminate in their hiring.  A legal analysis by the Bush-era Office of Legal Counsel of the Department of Justice justified such a reading of the law.  This reading – what is referred to in D.C.-shorthand as “the OLC Memo”– continues to stand under President Obama despite the efforts of civil rights advocates.

Religious agencies use the OLC Memo to justify discriminating in favor of members of their own faith, even if the grant program in question requires recipients not to do so.  The Memo’s influence extends deeply into federal programs including the 2014 reauthorization of the Violence Against Women Act (VAWA).  Certain religiously affiliated organizations that receive federal funds under VAWA use religion as a criterion when hiring employees using taxpayer dollars, despite the law’s clear nondiscrimination requirement.

Following years of unsuccessful efforts to get the Obama administration to rescind the Memo, 130 civil rights, labor, and liberal organizations wrote to President Obama in August 2015 urging him to reconsider it.96  As Americans United for Separation of Church and State (a leader in the effort) put it, the OLC Memo provides a legal rationale for “taxpayer-funded religious discrimination.”97

The August 2015 letter states that “some have cited the OLC Memo in arguing that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements” in an executive order barring government contractors from discriminating against LGBTQ workers.  Others claim the Memo allows them to refuse to provide services or referrals required under federal funding agreements covering medical care for unaccompanied immigrant children who are victims of sexual abuse.

Despite saying the right things about religious and gender equality – and as a candidate vowing to repeal the Memo –President Obama is dragging his feet on the matter.  The administration’s official inaction has allowed millions of dollars to be channeled to groups that engage in religious and antigay discrimination via the “faith-based” offices in 13 federal agencies and departments.  The administration is secretive about the budgets, grantees and their activities, as journalists and advocacy groups learn when they try to get information.98

This trend of awarding ever greater special status to “faith-based” organizations runs deep in elements of both the Democratic and Republican parties.99  What is more, this is among a number of faith-based points of discrimination that the Obama administration allows to stand; discredited HIV and abstinence-only pregnancy prevention programs still receive money, as journalist Andy Kopsa reported in The Nation in 2014.100

Meanwhile conservatives in Congress are not only relying on the OLC Memo to support discrimination.  They responded to the Obergefell decision legalizing same-sex marriage with an ill-fated piece of legislation called the First Amendment Defense Act (FADA). 101  The Act would make it legal for businesses and public officials to use their religious beliefs as an excuse to discriminate against LGBTQ people.  Christian Right groups also want state legislatures to approve similar measures that stop the government from discriminating against those who do not believe in marriage equality.  The Conservative Action Project, a strategy group headed by Reagan-era Attorney General Edwin Meese, invoked the alleged threat to religious liberty to rally movement conservatives around the bill declaring, “No individual should lose their tax exempt status, face disqualification, be fined, or lose grants or contracts for following their beliefs.”102  In fact, such legislation has been introduced in Indiana.  (See box)

Writing in support of FADA, the USCCB made an astounding claim that casts a fresh light on the Church’s intentions to legalize anti-LGBTQ discrimination even without relying on claims of religious conscientious objection.  The bishops explained in supporting the bill that the “[a]ct would protect a wide array of persons, including individuals and organizations – both for-profits and nonprofits – regardless of whether or not they are religiously affiliated.  Thus, business owners as well as faith communities would be protected.”

The USCCB argues that the legislation is needed to prevent the federal government from joining in an alleged growing intolerance of and discrimination by state governments “toward religiously-minded individuals and organizations who want to live by their conviction that marriage is the union of one man and one woman or that sexual relations are properly reserved to such a marriage.”103  In other words, the Roman Catholic bishops want business owners to be able to discriminate against same-sex married couples even without the fig leaf of religious conscientious objection.

The proposal’s implications go well beyond issues of discrimination.  Walter Olsen of the libertarian Cato Institute observed that the proposed legislation would “even exempt federal workers who don’t want to process benefits and rights claims made by married same-sex couples.  There are at least 1,100 such benefits under federal law.”  Olsen considers the bill to be one directional, protecting proponents of “traditional values” while denying equal protection to proponents of marriage equality or sex outside of one-man-one-woman marriage.104

THE POWER OF DUALISTIC THINKING

An animating notion across the widest spectrum of the Religious Right is the idea that Christianity, and often religion itself, is under siege and that everyone from teachers, to LGBTQ activists, to reproductive health providers, and certainly atheists and advocates of “big government” are part of a continuum of an existential threat.  One cannot understate the seriousness with which many on the Christian Right take this ancient and powerful idea, nor how it animates our contemporary politics.

Other Christian leaders and the organizations they lead are working to expose this dualistic narrative that this is a fight between the religious and the antireligious.  The United Church of Christ (UCC) took this on in North Carolina, when it successfully challenged the anti-marriage equality amendment to the state constitution on grounds that it criminalized ceremonies which they and other religious communities considered to be valid and sacred.  This was a religious freedom claim against a state law that privileged one group of religious views of marriage over others.

The North Carolina case underscores that religious freedom is only possible in the context of religious pluralism.  It also reveals that when Christian Right leaders talk about religious liberty, they often really mean theocratic supremacism of their own religious beliefs institutionalized in government.  Tony Perkins, president of the Family Research Council, suggested that the UCC is not really Christian, and that those who support LGBTQ rights don’t have the same rights as conservative Christians – because “true religious freedom” only applies to “orthodox religious viewpoints.”105   UCC General Minister and President John Dorhauer responded, “There is no liberty intended” if it is “only for those who believe as we do.”  He is confident that “our commitment to religious liberty” can withstand contemporary attacks by the Christian Right.106

Still, in light of the growing support for the civil rights of LGBTQ people, Presidential hopeful Mike Huckabee (among others) has repeatedly claimed that the United States is moving toward “criminalization of Christianity.”107  As preposterous as such claims may sound to many Americans, they resonate deeply with those who are grounded in the idea that Christianity is incompatible with marriage equality, reproductive rights, LGBTQ civil rights, and broad social inclusion.

Throughout American history, “established power brokers” have stirred up sexual fears when they feel their position is threatened, explain Rev. Dr. William J. Barber II, the president of the North Carolina NAACP, and Christian writer Jonathan Wilson-Hartgrove.  “The widespread acceptance of interracial relationships makes ‘mongrelization’ a moot point in 21st-century America.  But we who know this history can see that public expressions of concern about the ‘gay lifestyle’ are not about religious freedom.  They are about dividing an increasingly diverse electorate that has twice elected a black president.”

Referring to state level RFRAs, they added, “As Southern preachers engaged in moral-fusion organizing, we say to our fellow ministers:  ‘religious freedom’ laws are an immoral ploy to stir up old fears. As people of faith, we must oppose them.” 108

The academic Marci Hamilton also turns to history to challenge the Christian Right’s dualistic notion that it is engaged in a battle between religiosity and its enemies.  “Many of the early American colonists departed Britain to escape the theological mandates imposed on them by the European theocracies that blended sovereign and religious power,” she reminds us.  “In this pluralist society, the pressure by a subset of Christians to push for a single moral vision… cannot be characterized other than as a drive to institute a theocracy in their own image.”109

The narrative is powerful, but it cannot stand up to the facts of history, or to existing political and social reality.  Acknowledgement of the very existence of religious support for reproductive rights and marriage equality blows up this notion.  Yet even civil rights activists sometimes unwittingly fall into the narrative.

The values of religious freedom, pluralism and separation of church and state are essential guiding principles that can keep our religiously plural society from factionalizing to the point of religious warfare.  Without them, the country risks splintering into what Hamilton calls “a collection of separate mini-theocracies” carved out in law. 110

How contemporary religious rights and civil equality of religious minorities and dominant factions are respected and managed in a religiously plural society is something that the Revolutionary leaders could not have imagined.  We need to wrestle with our lineage in the current moment.  Our future on these matters is in our own hands.

The question in our time then becomes, what beliefs shall be accommodated, and if so, to what degree and by what standard?  And perhaps most significant, who gets to decide?

CONCLUSION AND RECOMMENDATIONS

The contemporary Christian Right has been developing and fine-tuning its approach to religious freedom for decades.111  For the Christian Right, it is part of an integrated agenda of religious and political philosophies and issues, accompanied by steady strategic capacity building.  The historic reframing of religious freedom as one of three main concerns outlined by Christian Right leaders in the 2009 Manhattan Declaration is underappreciated outside of the conservative Christian community.  By the same token, the full implications of the major decisions of the Supreme Court outlined in this report will be felt for at least as many decades as it took for the Christian Right to develop a religious freedom agenda (and the coalitional, electoral, and legislative capacity to carry it out).

These conflicts are integral to the story of our time.  We owe it to ourselves, our shared concerns, and to the preservation of the best of our history, culture and shared values to rise to these distinct and in many ways unprecedented challenges.

The Christian Right aims to profoundly reorganize our relationship to law, religion, government, and to each other.  The rights of women, workers, and racial, religious, and sexual minorities, are all deeply threatened.  More broadly, the ability of government to ensure equal protection under the law is under assault.  To meet this threat will require more than a broadening of tactical coordination among racial equality, feminist, LGBTQ, labor, civil libertarian, progressive religious, and other constituencies.  We face a decades-long struggle that will require our own long game, comprising durable strategies, alliances, and campaigns that include and transcend any specific legal, legislative, communications, or culture change approach.

Religious Freedom Day (click to expand)

Every year since 1992, Religious Freedom Day has been recognized on January 16 with a presidential proclamation.  The day commemorates the enactment of the Virginia Statute for Religious Freedom in 1786.  This law is so integral to our history that Thomas Jefferson viewed his role in creating it as one of the three signature accomplishments of his life — along with writing the Declaration of Independence and founding the University of Virginia.

Here is why Jefferson thought it was that important.

Jefferson drafted the bill in 1777 but it took nearly a decade to be shepherded into law by James Madison, then a member of the House of Delegates.  The law not only disestablished the Anglican Church as the state church of Virginia, but also declared that citizens are free to believe as they will, and that this “shall in no wise diminish, enlarge, or affect their civil capacities.”137  Historians widely regard it as the root of how the framers of the Constitution approached matters of religion and government.  It was as revolutionary as the era in which it was written.

religious freedom day tweetFollowing the statute’s dramatic passage in 1786, Madison traveled to Philadelphia where he served as a principal author of the Constitution in 1787.  As a member of Congress in 1789, he was also a lead author of the First Amendment, which passed in 1791.  But the new nation was hardly unified on the matter of religious freedom.  Some did not like the Virginia Statute any more than they liked the Constitution and its First Amendment.  So before his death, Jefferson sought to get the last word on what it meant.

The Statute, he wrote, contained “within the mantle of its protection, the Jew and the Gentile, the Christian and Mohametan, the Hindoo and Infidel of every denomination.”  These words ring down through time in the face of contemporary demagogues calling for religious tests on refugees and international travelers. Jefferson and the leaders of the founding era not only knew Muslims but that religious freedom only meant something if Muslims had equal protection under the law.138

So with this clear and powerful statement Jefferson, almost 200 years ago, refutes contemporary claims that the United States was founded as a Christian nation. Jefferson further explained that the legislature had rejected proposed language that would have described “Jesus Christ” as “the holy author of our religion.”  This was rejected, he reported, “by the great majority.”

The Virginia Statute for Religious Freedom does not fit the Christian Right’s narrative of history or justify its shining vision of a theocratic future.  But they actively seek to minimize this problem.  For example, topping the list from a Google search for Religious Freedom Day is ReligiousFreedomDay.com, run by a small outfit called Gateways to Better Education.  It treats the Day as an opportunity to evangelize in the public schools. “Religious Freedom Day is not ‘celebrate-our-diversity day,’” they insist.139

By contrast, in his 2015 proclamation, President Obama declared that religious freedom “protects the right of every person to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and fear.”t140

That’s why it was so significant that in 2015, the Washington DC-based Coalition for Liberty and Justice — composed of 60 organizations opposed to the imposition of “one religious viewpoint on all” — decided to seize the day.141  The Coalition, whose members include Americans United for Separation of Church and State, Catholics for Choice, National Council of Jewish Women, National LGBTQ Task Force, Secular Coalition for America, and the Religious Coalition for Reproductive Choice, took to the op-ed pages and social media and launched a conversation that continues.

Case Study: Workers Win Victory for Religious Freedom Against Church-Run Health and Hospital Company (click to expand)

In a major setback for Christian Right efforts to evade the law in the name of religious freedom, a federal appeals court held in December 2015 that a Catholic hospital pension plan was not eligible for a religious exemption from the Employee Retirement Income Security Act of 1974 (ERISA) protecting individuals in most private pensions by setting minimum standards. In Kaplan v. St. Peter’s Healthcare System, the federal Court of Appeals, Third Circuit, determined that the hospital did not qualify as a church, and thus is not entitled to the religious exemption under the law.

The St. Peter’s Healthcare System of New Brunswick, NJ, had established its own employee retirement plan, which it underfunded to the tune of $30 million, claiming a church exemption to many of the provisions of ERISA, such as mandatory fiduciary and funding requirements. Pensioner Laurence Kaplan was concerned that the plan was underfunded142 and his lawsuit showed that indeed it was.

St. Peter’s is a nonprofit healthcare system employing over 2,800 people. For more than 30 years it operated the plan according to ERISA standards. But in 2006, St. Peter’s stopped fully funding the plan, seeking – and eventually receiving – a determination from the IRS that it was eligible for the church exemption under ERISA. But the federal courts disagree. St. Peter’s must now comply with ERISA’s protections including full funding of the plan.

Karen Ferguson, director of the Pension Rights Center, called the decision “a terrific victory for thousands of orderlies, cafeteria workers, nurses, and others who were told throughout their careers at Saint Peter’s that they were fully protected by federal law.” 143 James Sonne of the Stanford Religious Liberty Clinic submitted an amicus brief on behalf of the Becket Fund for Religious Liberty on the side of St. Peter’s. The Southern Baptist Convention also weighed in with an amicus brief for St. Peter’s.144

The Court noted the case is likely to be influential in a “new wave of litigation” challenging the exempt status of pension plans established by religiously affiliated hospitals claiming that their pension plans are “church plans.” 145

Here are recommendations for how we might better seize the opportunity to defend religious freedom in our time.

The Development of Ideas, Message, and Strategy 

1 – Envision and resource a long-term strategy. The struggle cannot (and is not) only being waged in the courts.  We must to develop, refine, and propagate our long game by:

  • Resourcing a network of strategists, scholars, and think tanks over the long term. This is vital for educating and empowering a wide range of constituencies and building coalitions.  We need a clear and compelling analysis that contextualizes the stakes for constituencies not currently at the forefront of efforts to challenge the Right’s legal and legislative initiatives, for example the historical use of religious exemptions to justify racial segregation in schools.
  • Strengthening the alliance between prochoice and pro-LGBTQ forces, as well as labor, religious, traditional civil rights, and other affected communities.
  • Refreshing historic alliances with liberal business owners, libertarians, and moderate Republicans.

These efforts should actively identify best practices where coalitions were successful and learn from where they were not.

2 – Reclaim religious freedom as a fundamental democratic value. This means embracing religious freedom as emphasizing the equality of all people including everyone’s right to believe and to practice faith (or not) as we will, and to change our minds – free from undue influence of powerful religious institutions and government.  Religious freedom also means the freedom to act on our beliefs as long as those actions do not harm or infringe on the rights of others.  The notion of third party “harms” is a critical part of the discussion that needs to happen regarding the meaning of religious freedom in our time.  All this is in keeping with the historic trajectory of the law in the United States, as well as international human rights conventions.  We can develop a powerful religious freedom narrative that can answer and overcome many of the Right’s claims.

3 – Avoid reinforcing the dualistic narrative that pits civil rights concerns against religion. Routinely framing public controversies as religious vs. secular plays into a false narrative.  Similarly, pitting LGBTQ rights or reproductive rights against religious freedom also plays powerfully into the false narrative.  There are no perfect solutions.  But we can embrace religious pluralism as a value underlying the vision of the Framers of the Constitution, modern Supreme Court decisions, and federal case law.  Religious pluralism in this sense incorporates the equal rights of nonbelievers as well.

4 – Actively collaborate with and elevate religious communities. Religious leaders are already playing key roles in the struggle for religious freedom, including those who have thwarted the passage of RFRAs in Georgia and in North Carolina. We should

  • Consult, support, and promote these religious leaders to social justice constituencies and to the news media.
  • Catalyze the creation of a common “Call to Conscience” of religious and nonreligious people to rally defenders of religious pluralism, separation of church and state, and the religious freedom heritage of the framers of the Constitution.

5 – Create high-profile religious freedom events to offer a clear and consistent positive alternative to the Christian Right’s redefinition of religious liberty. A key element in this approach could be to expand celebrations of Religious Freedom Day on every January 16th. (See box.)112 This day commemorates the enactment of the Virginia Statute for Religious Freedom, authored by Thomas Jefferson and sponsored in the legislature by James Madison.  Historians recognize the statute as the direct precedent to the approach to religion and government by Framers of the Constitution and the First Amendment to the Constitution.113 This lineage provides a moral and historical high ground that we must not cede to the religious and political Right.114

6 – Counter misinformation. Many conservative religious liberty claims rely on falsehoods, bogus history, and scare tactics. For example, in all of U.S. history, no clergy were forced under the law to perform any marriage of which they did not approve. This has not changed since the advent of marriage equality in Massachusetts in 2003. Social justice advocates must learn and be able to counter the Right’s go-to examples of spurious religious liberty violations while supporting religious freedom itself.

7 – Take seriously the influence of rightwing academics on policy and public debate. This means giving greater prominence and support to the fair-minded scholars who address this issue. Religious freedom is a complex topic which cannot be adequately addressed by short-term, message-oriented efforts of liberal interest groups.

8 – Question and challenge those denying and downplaying the ongoing political strength of the Christian Right. While we celebrate movement victories and project a positive vision for the future, at the same time, social justice thought and strategy is held back by making wrong assumptions about the strength and resilience of the Christian Right.  Phrases like “the Christian Right is dead” (or dying) and “the culture wars are over” (or declining) are indicators of ignorance and wishful thinking, at best.115

9 – Consider international human rights standards regarding religious freedom and the rights of conscience. They are very strong and are consistent with a domestic agenda, and are part of the growing international dimension to this struggle.  It is important not to allow the international Christian Right to appropriate the idea of religious freedom as it has sought to do in the United States.

The Political Arena

10 – Urge candidates and elected officials to end legal justifications for all forms of discrimination under the rubric of religious freedom.

11 – Organize public discussion of how to best defend religious freedom in the legal arena and all levels of government. This is not always clear.  For example, Marci Hamilton of the Benjamin Cardozo School of Law has called for repeal of RFRA, RLUIPA, and state RFRAs.  The Center for American Progress has called for reforming RFRA, particularly by eliminating the “harms” to third parties.116 Still others think RFRA is benign and offers protections that would not be otherwise available, and that RFRA and LGBTQ civil rights are compatible.  This is a public discussion worth having.

12 – Continue to urge the Obama administration to end discrimination by faith-based contractors by reversing the OLC Memo before President Obama leaves office.

13 – Develop a progressive electoral answer to the Right. The Right has been remarkably successful in developing an electoral capacity and strategy to gain control of the institutions of government, using the tools of democracy in order to undermine it.  The campaign to redefine religious liberty is but one theme; its successes in this arena result from the Right’s political power. Envisioning a broader and more robust response required for our time and circumstances is beyond the scope of this report.  But it needs to happen.  Repeating the pattern of ignoring the decades-long development of the Christian Right’s vast electoral capacity and trajectory of success through the Republican Party is a formula for failure.


About the Author

Frederick Clarkson is Senior Fellow of Political Research Associates and an analyst of the Religious Right for over 30 years. He is a longtime contributor to PRA’s quarterly Public Eye and a member of its editorial board. His work has appeared in a wide range of publications including Mother Jones, Church & State, Ms. Magazine, The Christian Science Monitor, Salon.com and Religion Dispatches. He has worked as an investigative editor at Planned Parenthood Federation of America, as Communications Director at the Institute for Democracy Studies, and cofounded the important group blog about the Christian Right, Talk to Action. He is the author, coauthor, or editor of several books, including Dispatches from the Religious Left: The Future of Faith and Politics in America and Eternal Hostility: The Struggle Between Theocracy and Democracy.


Endnotes

[*] Jay Michaelson, Redefining Religious Liberty: The Covert Campaign Against Civil Rights (Somerville, MA: Political Research Associates, March 2013). http://www.politicalresearch.org/resources/reports/full-reports/redefining-religious-liberty/#sthash.VFqG8kCB.dpbs.

[1]  See for example, Isaac Kramnick and R. Laurence Moore, The Godless Constitution:  A Moral Defense of the Secular State (New York: W.W. Norton, 2005) p. 106. “By 1819 he [James Madison] said that at the founding, people had been overly fearful that ‘the civil government could not stand without the prop of a religious establishment’… The American experience had proved that rejecting the Christian commonwealth and effecting ‘a perfect separation between ecclesiastical and civil matters’ could work. In 1832, at the age of 81, Madison conceded that it might not be easy to keep clear the line between religious and civil authority … All the more reason, then he advised, future generations, to take the strictest reading of the separation of church and state…”

[2]  Jay Michaelson, Redefining Religious Liberty:  The Covert Campaign Against Civil Rights (Somerville, MA: Political Research Associates, March 2013). http://www.politicalresearch.org/resources/reports/full-reports/redefining-religious-liberty/#sthash.VFqG8kCB.dpbs .

[3] With notable exceptions. See Marci A. Hamilton, God vs. the Gavel: The Perils of Extreme Religious Liberty, rev. 2nd ed, (New York: Cambridge University Press, 2014), p. 266; and Carolyn J. Davis, Laura E. Durso, and Carmel Martin with Donna Barry, Billy Corriher, Sharita Gruberg, Jeff Krehely, Sarah McBride, Ian Millhiser, and Anisha Singh, Restoring the Balance: A Progressive Vision of Religious Liberty Preserves the Rights and Freedoms of All Americans, (Washington, D.C.: Center for American Progress: October 2015), p. 7. http://www.scribd.com/doc/285920642/Restoring-the-Balance-A-Progressive-Vision-of-Religious-Liberty-Preserves-the-Rights-and-Freedoms-of-All-Americans .

[4]  Will Weissert, “6 Republican 2016 hopefuls woo faithful at Texas megachurch,” Associated Press, October 18, 2015. http://bigstory.ap.org/article/c50f35d772824f3ea17648d9cf64b3e0/6-republican-2016-hopefuls-woo-faithful-texas-megachurch .

[5]  Randall Balmer, Thy Kingdom Come: How the Religious Right Distorts Faith and Threatens America (New York: Basic Books, 2007); see book excerpt, http://www.npr.org/templates/story/story.php?storyId=5502785 .

[6]  Supreme Court of the United States, 1983, Bob Jones University v. United States, 461 U.S. 574.

[7]  Supreme Court of the United States, 2014, Burwell v. Hobby Lobby Stores Inc, No. 13–35, p. 52 http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf .

[8]  Frederick Clarkson, Eternal Hostility:  The Struggle Between Theocracy and Democracy (Monroe, ME: Common Courage Press, 1997), passim.

[9]  Matthew Yglesias, “Democrats are in denial. Their party is actually in deep trouble,” Vox Policy & Politics, October 19, 2015. http://www.vox.com/2015/10/19/9565119/democrats-in-deep-trouble .

[10]  Ralph Z.Hallow, “500 pastors heed call to run for office, restore Christian values in U.S.,” The Washington Times, November 12, 2015.  http://www.washingtontimes.com/news/2015/nov/12/david-lane-american-renewal-project-founder-recrui/ .

[11] Michelle Conlin, “For God and country: more U.S. pastors seek political office in 2016,” Reuters, December 11, 2015. http://www.reuters.com/article/us-usa-election-evangelicals-idUSKBN0TU16M20151211 . For more on Lane, see Frederick Clarkson, “Rumblings of Theocratic Violence,” The Public Eye, Summer 2014.  http://www.politicalresearch.org/2014/06/11/rumblings-of-theocratic-violence/#sthash.HShBsO1D.dpbs .

[12]  For more on the Wilks family, see Michelle Conlin, “Special Report: Touting morality, billionaire Texas brothers top 2016 donor list,” Reuters, September 11, 2015.  http://www.reuters.com/article/us-usa-election-wilks-specialreport-idUSKCN0RB0ZF20150911 .

[13]  Zachary Mider, “PAC Built by Ted Cruz Mega-Donors Gets Evangelical Leader: David Barton will lead a political conglomerate that has already raised at least $38 million,” Bloomberg, September 9, 2015. http://www.bloomberg.com/politics/articles/2015-09-09/pac-built-by-ted-cruz-mega-donors-gets-evangelical-leader .

[14]  See for example, Chris Cillizza, “Republicans have gained more than 900 state legislative seats since 2010,” The Washington Post, January 14, 2015, https://www.washingtonpost.com/news/the-fix/wp/2015/01/14/republicans-have-gained-more-than-900-state-legislative-seats-since-2010/ ; Olga Pierce, Justin Elliott and Theodoric Meyer, ​“How Dark Money Helped Republicans Hold the House and Hurt Voters,” ProPublica, December 21, 2012, http://www.propublica.org/article/how-dark-money-helped-republicans-hold-the-house-and-hurt-voters ; Bill Berkowitz, “The Secret of How the GOP Has a Lock on the House for the Foreseeable Future: Tens of millions poured into a stealth redistricting project before the 2012 elections kept dozens of GOP Districts safe from Democratic challengers,” AlterNet, December 29, 2012. http://www.alternet.org/tea-party-and-right/secret-how-gop-has-lock-house-foreseeable-future .

[15]  Manhattan Declaration: A Call of Christian Conscience, November 20, 2009, http://manhattandeclaration.org/man_dec_resources/Manhattan_Declaration_full_text.pdf ; also see Frederick Clarkson, “Christian Right Seeks Renewal in Deepening Catholic-Protestant Alliance,” The Public Eye, Summer 2013. http://www.politicalresearch.org/2013/07/23/christian-right-seeks-renewal-in-deepening-catholic-protestant-alliance/#sthash.gVfKQIc2.dpbs .

[16]  Manhattan Declaration, pp. 7-8.

[17]  Albert Mohler, “Why I Signed The Manhattan Declaration,” AlbertMohler.com, November 23, 2009. http://www.albertmohler.com/2009/11/23/why-i-signed-the-manhattan-declaration/ .

[18]  Manhattan Declaration; Frederick Clarkson, “Christian Right Seeks Renewal in Deepening Catholic-Protestant Alliance.”

[19]  Frederick Clarkson, “Will Our Prisons Overflow with Christians?” Political Research Associates, March 1, 2015, http://www.politicalresearch.org/2015/03/01/will-our-prisons-overflow-with-christians/#sthash.uMkddk2i.dpbs ; Frederick Clarkson, “Previewing the next anti-marriage equality manifesto,” LGBTQ Nation, February 15, 2015. http://www.lgbtqnation.com/2015/02/previewing-the-next-anti-marriage-equality-manifesto/ .

[20]  Frederick Clarkson, “Rumblings of Theocratic Violence,” The Public Eye, Summer 2014. http://www.politicalresearch.org/2014/06/11/rumblings-of-theocratic-violence/#sthash.G2H6hYF1.dpbs .

[21]  Frederick Clarkson, “EXPOSED: How the Right’s State-Based Think Tanks Are Transforming U.S. Politics,” The Public Eye, Fall 2013. http://www.politicalresearch.org/2013/11/25/exposed-how-the-rights-state-based-think-tanks-are-transforming-u-s-politics/#sthash.TtfibaMS.dpbs .

[22]  Mat Staver, “On Marriage, We Will Not Render to Caesar What Is God’s,” Christian Post, April 20, 2015. http://www.christianpost.com/news/on-marriage-we-will-not-render-to-caesar-what-is-gods-137872/ .

[23]  Drew DeSilver, “What is a ‘closely held corporation,’ anyway, and how many are there?” Pew Research Center, July 7, 2014. http://www.pewresearch.org/fact-tank/2014/07/07/what-is-a-closely-held-corporation-anyway-and-how-many-are-there/ .

[24]  For a helpful overview of the implications of the Hobby Lobby case, see Carolyn J. Davis, et al., Restoring the Balance.

[25] Jen Gunter, “The Medical Facts About Birth Control and Hobby Lobby—From an OB/GYN,” The New Republic, July 6, 2014.  https://newrepublic.com/article/118547/facts-about-birth-control-and-hobby-lobby-ob-gyn .

[26]  Physicians for Reproductive Health, “Amicus brief, Sebelius v. Hobby Lobby Stores, Inc.,” Physicians for Reproductive Health January 28, 2014. http://prh.org/iPaper/amicus-brief-hobby-lobby-v-sebelius/ .

[27] Patricia Miller, “How the Catholic Church masterminded the Supreme Court’s Hobby Lobby debacle: While evangelical Christians ultimately brought down the contraception mandate, they had big help from Catholics,” Salon.com, September 14, 2014. http://www.salon.com/2014/09/14/how_the_catholic_church_masterminded_the_supreme_courts_hobby_lobby_debacle/ ;  See also Patrica Miller, Good Catholics:  The Battle over Abortion in the Catholic Church (Oakland, CA: University of California Press, 2014); The National Women’s Law Center, “The Hobby Lobby ‘Minefield’: The Harm, Misuse, and Expansion of the Supreme Court Decision,” The National Women’s Law Center, June 12, 2015. http://www.nwlc.org/resource/hobby-lobby-minefield-harm-misuse-and-expansion-supreme-court-decision .

[28] Hamilton, God vs. the Gavel, p. 266.

[29]  “Holt v. Hobbs,” SCOTUSblog, January 20, 2015, http://www.scotusblog.com/case-files/cases/holt-v-hobbs/ ; “Holt v Hobbs,” The Becket Fund for Religious Liberty website, 2015. http://www.becketfund.org/holt/ .

[30] It now means any exercise of religion, “whether or not compelled by, or central to, a system of religious belief,” which is to be “construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” Hamilton, God vs. the Gavel;  Davis, et.al., Restoring the Balance, p. 7.

[31]  Hamilton, God vs. the Gavel, pages 264-277.

[32]  Supreme Court of the United States, 2014, Burwell v. Hobby Lobby.

[33]  Katherine Franke, et al., “Letter to Representative Ed DeLaney (Indiana House of Representatives),” February 27, 2015, fn24. http://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/law_professors_letter_on_indiana_rfra.pdf .

[34]  Frederick Clarkson, “Not All the Same: Christian Right’s Hobby Lobbyization of State RFRAs,” Political Research Associates, April 20, 2015. http://www.politicalresearch.org/2015/04/20/not-all-the-same-christian-rights-hobby-lobbyization-of-state-rfras/#sthash.1sH5MbTN.dpbs .

[35]  Jonathan Oosting, “Michigan Gov. Rick Snyder signs controversial religious objection adoption bills,” Lansing News, June 11, 2015.  http://www.mlive.com/lansing-news/index.ssf/2015/06/michigan_gov_rick_snyder_signs_7.html .

[36]  Patricia Wen, “Catholic Charities Stuns State, Ends Adoptions,” The Boston Globe, March 11, 2006.  http://www.glad.org/uploads/docs/news/globe-catholic-charities-stuns-state.pdf .

[37]  Such legislative work-arounds are detailed on the web site RFRA Perilshttp://rfraperils.com/

[38]  General Synod of the United Church of Christ v. Reisinger, 760 F.3d 352 (4th Cir. 2014).  http://uccfiles.com/pdf/complaint.pdf .

[39]  Michael Paulson, “North Carolina’s Gay-Marriage Ban Is Challenged by Church,” The New York Times, April 28, 2014. http://www.nytimes.com/2014/04/29/us/churchs-lawsuit-challenges-north-carolina-ban-on-same-sex-marriage.html?_r=2 ; See also a background story on the struggle of North Carolina Christians to be able to marry in their church: Jack Jenkins, “The Unlikely Story Of How Religion Helped Bring Same-Sex Marriage To North Carolina,” Think Progress, November 18, 2014. http://thinkprogress.org/lgbt/2014/11/18/3593464/the-unlikely-story-of-how-religion-helped-bring-gay-marriage-to-north-carolina/ .

[40]  Kay Diane Ansley, Catherine “Cathy” McGaughey, Carol Ann Person, Thomas Roger Person, Kelley Penn, and Sonja Goodman, Plaintiffs, v. State of North Carolina,  Case 1:15-cv-00274 Document 1 Filed December 9, 2015;  See Michael Gordon, “Charlotte attorneys challenge law that allows magistrates to avoid performing same-sex marriages,” The Charlotte Observer, December 9, 2015.  http://www.charlotteobserver.com/news/politics-government/article48679320.html#storylink=cpy .

[41]  Tom Foreman Jr. and Gary D. Robertson, “Lawsuit Challenges Gay Marriage Law in North Carolina,” Associated Press, December 9, 2015. http://abcnews.go.com/US/wireStory/lawsuit-challenges-gay-marriage-law-north-carolina-35668286 .

[42]  Jay Reeves, “Alabama judges use segregation-era law to avoid gay marriage,” Associated Press, October 3, 2015. http://bigstory.ap.org/article/7e82ce42b3b846b6bef9023c085987e3/alabama-judges-use-segregation-era-law-avoid-gay-marriage .

[43]  John Rustin with the North Carolina Family Policy Council, “Protecting Religious Freedom for Elected Officials,” CitizenLink Report video, September 22, 2015. https://www.citizenlink.com/2015/09/22/protecting-religious-freedom-for-elected-officials-cl-report/ .

[44]  Ann Carroll, “Gays Can’t Force Christian Clerks to Issue Same-Sex Licenses,” Charisma News, November 11, 2012. http://www.charismanews.com/us/34603-gays-cant-force-christian-clerks-to-issue-same-sex-licenses .

[45]  David O’Reilly, “Pope’s speech, heavy on religious liberty, echoes Chaput,” Philadelphia Inquirer, September 27, 2015., http://articles.philly.com/2015-09-28/news/66932583_1_chaput-pope-francis-philadelphia-archbishop-charles-j ; Pope Francis, “Speech at Independence Mall,” Pope Francis Visit 2015, September 26, 2015. http://www.popefrancisvisit.com/schedule/visit-to-independence-mall/ .

[46]  ABC News, “EXCLUSIVE: Kim Davis Recounts Secret Meeting With Pope Francis,” ABC News video, September 30, 2015, http://abcnews.go.com/US/exclusive-kim-davis-recounts-secret-meeting-pope-francis/story?id=34143874 ; Robert Moynihan, “Letter #38, 2015: Kim and Francis,” Inside the Vatican, September 29, 2015, http://insidethevatican.com/news/letter-38-2015-kim-and-francis; see also, Mat Staver, “Pope’s Words and Meetings Support Conscientious Objection,” Liberty Counsel, October 2, 2015. https://www.lc.org/newsroom/details/popes-words-and-meetings-support-conscientious-objection .

[47]  Laurie Goodstein and Jim Yardley, “Pope Francis, the Kentucky Clerk and Culture Wars Revisited,” The New York Times, September 30, 2015. http://www.nytimes.com/2015/10/01/us/pope-francis-kim-davis-kentucky-clerk-washington-same-sex-marriage.html?emc=edit_th_20151001&nl=todaysheadlines&nlid=46567787 .

[48]  Joshua J. McElwee, “What we don’t know about Francis’ Kim Davis meeting,” National Catholic Reporter, October 1, 2015, http://ncronline.org/news/vatican/what-we-dont-know-about-francis-kim-davis-meeting ; Goodstein and Yardley, “Pope Francis”; Americans United for Separation of Church and State, “Controversy Swirls Over Pope’s Meeting with Kim Davis During D.C. Visit,” Church & State, November 2015, p. 15. https://www.au.org/church-state/november-2015-church-state/people-events/controversy-swirls-over-pope-s-meeting-with .

[49]  “Pope Francis visits Little Sisters of the Poor.” Narrated by Devin Watkin. Vatican Radio, September 24, 2015, http://www.news.va/en/news/pope-francis-visits-little-sisters-of-the-poor ; Sarah Pulliam Bailey and Abby Ohlheiser, “Pope Francis meets with Little Sisters of the Poor, nuns involved in an Obamacare lawsuit,” The Washington Post, September 23, 2015.

[50]  Elise Harris, “What is being proposed is not marriage’ – Pope calls for defense of family,” Catholic News Agency, October 26, 2014. http://www.catholicnewsagency.com/news/what-is-being-proposed-is-not-marriage-pope-calls-for-defense-of-family-12766/ .

[51] Eric Ethington, “The Religious Right Operative Who Helped Write Utah’s Nondiscrimination Law,” Political Research Associates, March 19, 2015. http://www.politicalresearch.org/2015/03/19/the-religious-right-operative-who-helped-write-utahs-nondiscrimination-law/#sthash.lHrxigF2.dpbs .

[52]  Eric Ethington, “Growing Mormon-Catholic Alliance: Quiet Partners Behind Christian Right’s Religious Discrimination Agenda,” Political Research Associates, April 27, 2015. http://www.politicalresearch.org/2015/04/27/growing-mormon-catholic-alliance-quiet-partners-behind-christian-rights-religious-discrimination-agenda/ .

[53]  Peggy Fletcher Stack, “Mormon apostle: Kim Davis was wrong not to issue same-sex marriage licenses,” The Salt Lake Tribune via Religion News Service, October 21, 2015. http://www.religionnews.com/2015/10/21/mormon-apostle-kim-davis-was-wrong-not-to-issue-same-sex-marriage-licenses/ .

[54]  Liberty Institute, Religious Liberty Protection Kit for Students and Teachers: How You Can Exercise Your Legal Rights in Public School (Plano, TX: Liberty Institute, 2015).

[55]  Frederick Clarkson, “The New Secular Fundamentalist Conspiracy!” The Public Eye, Spring 2008, http://www.publiceye.org/magazine/v23n1/secular_fundamentalist.html .

[56]  Tony Perkins and Lt. Gen. (Ret.) William G. “Jerry” Boykin, A Clear and Present Danger:  The Threat to Religious Liberty in the Military (Washington DC: Family Research Council, 2013, updated June 2015), http://downloads.frc.org/EF/EF15F47.pdf ; Chris Rodda, “Rep. Fleming: NDAA Religious Freedom Language Not a ‘Touchdown’ – New Talking Points Needed,” Huffington Post, December 17, 2013, http://www.huffingtonpost.com/chris-rodda/rep-fleming-ndaa-religiou_b_4461318.html . In fact, MRFF responds to complaints by service members, both religious and nonreligious but overwhelmingly Christian, about misuses of military resources to promote certain religious groups and views over others and misuses of the chain of command to compel participation in religious events. This is cast by the Christian Right as anti-Christian and antireligious, when in fact MRFF seeks to protect the religious freedom of all, and not just religious conservatives.

[57]  Perkins and Boykin, A Clear and Present Danger; Chris Rodda, “Pentagon Assures Anti-Religious-Freedom Coalition That Rumor They Started Isn’t True!” Huffington Post, September 23, 2013, http://www.huffingtonpost.com/chris-rodda/pentagon-assures-anti-rel_b_3977046.html ; Liberty Counsel, “Restore Military Religious Freedom Coalition Offers Legal Aid to Bible Verse Cadets, Calls Out Air Force Academy for Violating Constitutional Rights,” [press release] March 13, 2014, https://www.lc.org/newsroom/details/restore-military-religious-freedom-coalition-offers-legal-aid-to-bible-verse-cadets-calls-out-air-f .

[58]  “American Family Association Bigotry Map,” American Family Association. http://www.afa.net/bigotrymap .

[59]  Liberty Institute, Religious Liberty Protection Kit for the U.S. Military:  How Service Members and Chaplains Can exercise their Legal Rights, (Plano, TX: Liberty Institute, 2015) pp. 1-2.

[60]  Laurie Goodstein, “Kim Davis, Kentucky County Clerk, Met Pope Francis,” The New York Times, September 30, 2015, http://www.nytimes.com/2015/09/30/us/county-clerk-kim-davis-who-denied-gay-couples-visited-pope.html?_r=0 .

[61] “Hosanna-Tabor v. EEOC: The Court’s Unanimous Decision,” Pew Research Center on Religion and Public Life, January 11, 2012.  http://www.pewforum.org/2012/01/11/the-supreme-court-takes-up-church-employment-disputes-and-the-ministerial-exception/ .

[62]  Supreme Court of the United States, 2012, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al., 10-553; see also, Frederick Clarkson, “Papering Over the Differences, The Political Alliance Between Evangelicals and the Catholic Right,” Conscience, vol. XXXIII, no. 2, 2012.

[63]  Institutional Religious Freedom Alliance, “Hosanna-Tabor:  A Big Victory for Religious Freedom,” January 20, 2012, http://www.irfalliance.org/component/content/article/21-in-the-news/54-hosanna-tabor-a-big-victory-for-religious-freedom.html .

[64]  Rachel Tabachnick, “Spiritual Warriors with an Antigay Mission: The New Apostolic Reformation,” The Public Eye, March 22, 2013. http://www.politicalresearch.org/2013/03/22/spiritual-warriors-with-an-antigay-mission/ .

[65]  C. Peter Wagner, “Can the Government Tell the Church What to Do?,” Communion With God Ministries, February 14, 2012. http://www.cwgministries.org/blogs/can-government-tell-church-what-do-c-peter-wagner .

[66]  Elder Dallin H. Oaks, “Hope for the Years Ahead,” The Church of Jesus Christ of Latter-Day Saints, April 16, 2014. http://www.mormonnewsroom.org/article/transcript-elder-dallin-oaks-constitutional-symposium-religious-freedom .

[67]  “Hosannas for the Court,” (Editorial), The Wall Street Journal, January 12, 2011, http://www.becketfund.org/wsj-hosannas-for-the-court/ .

[68]  The Becket Fund for Religious Liberty, “Supreme Court Briefs.”

[69]  Julia Carrie Wong, “’I want education, not indoctrination’: Catholic Teachers and Students Protest Archdiocese,” San Francisco Weekly, April 27, 2015, http://www.sfweekly.com/thesnitch/2015/04/27/i-want-education-not-indoctrination-catholic-teachers-and-students-protest-archdiocese .

[70]  “Catholic archdiocese of Cincinnati to tweak teacher contract morality clauses,” LGBTQ Nation, March 10, 2015, http://www.lgbtqnation.com/2015/03/catholic-archdiocese-of-cincinnati-to-tweak-teacher-contract-morality-clauses/ ; Frederick Clarkson, “Christian Right Seeks Renewal in Deepening Catholic-Protestant Alliance.”

[71]  Victoria Colliver, “Hundreds march against S.F. archbishop’s ‘morality clauses,’” San Francisco Chronicle, March 31, 2015; Lisa Leff, “San Francisco archbishop wants teachers to not contradict church,” Associated Press, February 6, 2015, http://www.sfgate.com/bayarea/article/Hundreds-march-against-S-F-archbishop-s-6169349.php#photo-7743263 .

[72]  Scott Jaschik, “Big Union Win,” Inside Higher Ed, January 2, 2015. https://www.insidehighered.com/news/2015/01/02/nlrb-ruling-shifts-legal-ground-faculty-unions-private-colleges .

[73]   Adelle M. Banks, “Religious college presidents agree on ‘calling’ and common threats to their schools,” Religion News Service, February 3, 2015, http://www.religionnews.com/2015/02/03/religious-college-presidents-agree-calling-common-threats-schools/ .

[74]  Frederick Clarkson, “When in Doubt, Religify!  Fear Mongering about Religious Liberty,” Political Research Associates, May 29, 2015, http://www.politicalresearch.org/2015/05/29/when-in-doubt-religify-fear-mongering-about-religious-liberty/#sthash.SsW5wz8q.dpbs .

[75]  A READY DEFENSE: How to Protect Your Ministry or Faith-Based Business from Legal Attack and Ruin (Plano, TX: Liberty Institute, May 14, 2015). http://blog.libertyinstitute.org/2015/05/a-ready-defense-how-to-protect-your.html .

[76]  Guidelines: Drafting Church Employment and Administrative Policies, (Plano, TX: Liberty Institute, 2015). https://www.libertyinstitute.org/staffing-and-administration-church .

[77]  Protecting Your Ministry from Sexual Orientation and Gender Identity Lawsuits:  A Legal Guide for Southern Baptist and Evangelical Churches, Schools, and Ministries, (Washington, DC: Alliance Defending Freedom and Ethics and Religious Liberty Committee of the Southern Baptist Convention, 2015). https://erlc.com/store/product_detail/18876 .

[78]  A READY DEFENSE (Liberty Institute).

[79]  Frederick Clarkson, “When in Doubt, Religify!”

[80]  Liberty Institute, “Liberty Institute to Announce Religious Liberty Protection Kits at Values Voter Summit,” [press release]. September 24, 2015, http://blog.libertyinstitute.org/2015/09/liberty-institute-to-announce-religious.html .

[81]  Clarkson, “When in Doubt, Religify!” The Liberty Institute took down its public promotion of future manuals for businesses and for college fraternities and sororities after this article was published. But they have not taken down the original article announcing their plans.

[82]  Protecting Your Ministry from Sexual Orientation and Gender Identity Lawsuits (ADF and ERLC).

[83]  “Statement of Faith: Marriage and Human Sexuality,” Liberty Institute, 2015. https://www.libertyinstitute.org/statement-of-faith-marriage-and-human-sexuality .

[84]  “Facility Use Policy,” Liberty Institute website, 2015, https://www.libertyinstitute.org/Facility-Use-Policy-CHURCH .

[85]  A READY DEFENSE (Liberty Institute).

[86]  Protecting Your Ministry from Sexual Orientation and Gender Identity Lawsuits (ADF and ERLC).

[87]  Lauren Davis, “Carson-Newman University granted exemption from discrimination laws,” Local 8 Now, December 3, 2015, http://www.local8now.com/home/headlines/Carson-Newman-University-granted-exemption-from-discrimination-laws-360521761.html .

[88]  Andy Birkey, “Dozens of Christian schools win Title IX waivers to ban LGBT students,” The Column, December 1, 2015. http://thecolu.mn/21270/dozens-christian-schools-win-title-ix-waivers-ban-lgbt-students ; See also Liam Stack, “Religious Colleges Obtain Waivers to Law That Protects Transgender Students,” The New York Times, December 10, 2015. http://www.nytimes.com/2015/12/11/us/religious-colleges-obtain-waivers-to-anti-discrimination-law.html?hpw&rref=us&action=click&pgtype=Homepage&module=well-region&region=bottom-well&WT.nav=bottom-well&_r=0 .

[89]  Matt Comer, “Belmont Abbey College, other Carolinas colleges receive anti-LGBT Title IX waivers: Charlotte-based group responds with ‘Shame List’,”  MattComer.net, December 2, 2015.  http://www.mattcomer.net/1549/belmont-abbey-college-other-carolinas-colleges-receive-anti-lgbt-title-ix-waivers/ .

[90]  Jon Green, “Christian university applying for a religious exemption under Title IX imposes religious test for employees,” AmericaBlog, December 11, 2015. http://americablog.com/2015/12/christian-university-applying-for-religious-exemption-under-title-ix-imposes-religious-test.html .

[91]  Marci A. Hamilton, Professor of Law at the Benjamin Cardozo School of Law at Yeshiva University is challenging the constitutionality of the legislative successor to the federal RFRA, the Religious Land Use and Institutionalized Persons Act (RLUIPA), in cases involving local governments and religious land use. She was the lead counsel for the City of Boerne, TX, in Boerne v. Flores, 521 U.S. 507 (1997), the seminal federalism and church/state case holding the federal RFRA is unconstitutional as it applied to the states.

[92]  Hamilton, God vs. the Gavel, pp.115-150.

[93]  Hamilton, God vs. the Gavel, pp. 115-150.

[94]  USCCB, “Anthony Picarello Named USCCB Associate General Secretary,” [press release], October 21, 2011, http://www.usccb.org/news/2011/11-200.cfm . Picarello co-edited with Douglas Laycock and Robin Fretwell Wilson, Same Sex Marriage and Religious Liberty:  Emerging Conflicts, (Lanham: Rowan and Littlefield Publishers, 2008). This was one year after Picarello joined the USCCB as General Counsel.

[95]  Hamilton, God vs. the Gavel, pp. 120-121.

[96]   9to5, National Association of Working Women et al., to President Barack H. Obama, “Request for Review and Reconsideration of June 29, 2007 Office of Legal Counsel Memorandum re: RFRA,” August 20, 2015. https://www.au.org/files/2015-08-20%20-%20OLC%20Memo%20Letter%20to%20President-FINAL_2.pdf .  Political Research Associates was one of the organizational signatories to the letter to President Obama.

[97]  Simon Brown, “Down With Discrimination: Broad Coalition Of 130 Organizations Asks President Obama To End Taxpayer-Funded Discrimination,” Wall of Separation, AU.org. https://www.au.org/blogs/wall-of-separation/down-with-discrimination-broad-coalition-of-130-organizations-asks .

[98] Jacey Rubinstein, “White House Fails to Reveal Faith-Based Initiative Budget, Though Some Agencies Will Share Theirs,” Political Research Associates, July 20, 2015, http://www.politicalresearch.org/2015/07/20/white-house-fails-to-reveal-faith-based-initiative-budget-though-some-agencies-will-share-theirs/ .

[99]  Andy Kopsa, “Obama’s Evangelical Gravy Train,” The Nation, July 2014, http://www.thenation.com/article/180435/obamas-evangelical-gravy-train ;  see also Frederick Clarkson, “An Uncharitable Choice: The Faith-Based Takeover of Federal Programs,” The Public Eye, Fall 2014, http://www.politicalresearch.org/2014/10/10/an-uncharitable-choice-the-faith-based-takeover-of-federal-programs/#sthash.0QhnX6fz.dpbs ; and Jacey Rubinstein, “White House Fails to Reveal Faith-Based Initiative Budget, Though Some Agencies Will Share Theirs,” Political Research Associates, July 20, 2015, http://www.politicalresearch.org/2015/07/20/white-house-fails-to-reveal-faith-based-initiative-budget-though-some-agencies-will-share-theirs/ .

[100]  Barry Lynn, “Indiana’s Religion Bill Is Partially Fixed — But There’s More Work to Be Done,” Huffington Post, April, 7, 2015, http://www.huffingtonpost.com/barry-w-lynn/indianas-religion-bill-is_b_7011456.html ; Kopsa, “Obama’s Evangelical Gravy Train.”

[101]  Senator Mike Lee, et al, First Amendment Defense Act, June 17, 2015, https://www.congress.gov/bill/114th-congress/senate-bill/1598/text .

[102]  Edwin Meese, et al, “Memo to the Movement: Religious Liberty,” Conservative Action Project, July 10, 2015, http://files.ctctcdn.com/2438cc3e001/bbdeae79-5d01-449e-9746-202217c0d5e2.pdf .

[103]  “First Amendment Defense Act,” USCCB Backgrounder. http://www.usccb.org/issues-and-action/marriage-and-family/marriage/promotion-and-defense-of-marriage/upload/Backgrounder-FADA.pdf .

[104]  Dale Carpenter, “More Criticism of the First Amendment Defense Act from the Right,” The Washington Post, September 10, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/10/more-criticism-of-the-first-amendment-defense-act-from-the-right/ ;  Walter Olsen, “Gay Marriage and Religious Rights: Say Nada to FADA,” Newsweek, September 10, 2015, http://www.newsweek.com/gay-marriage-and-religious-rights-say-nada-fada-370860 .

[105]  Brian Tashman, “Tony Perkins, Arbiter Of Christianity, Says Pro-Gay Christians Don’t Have Same Religious Rights As Conservatives,” Right Wing Watch, May 8, 2014, http://www.politicalresearch.org/2014/10/29/christian-right-undermines-marriage-equality-with-religious-supremacism/ .

[106]  Frederick Clarkson, “Racial Justice Will Be Top Priority for New Prez of the United Church of Christ,” Religion Dispatches, August 20, 2015, http://religiondispatches.org/racial-justice-will-be-top-priority-for-new-prez-of-the-united-church-of-christ/ .

[107]  Nick Gass, “Mike Huckabee: U.S. moving toward ‘criminalization of Christianity,” Politico, April 24, 2015. http://www.politico.com/story/2015/04/mike-huckabee-us-criminalization-of-christianity-117310 .

[108] Rev. Dr. William J. Barber II and Jonathan Wilson-Hartgrove,  “The Ugly History Behind ‘Religious Freedom’ Laws: They are about dividing an increasingly diverse electorate that has twice elected a black president,” The Washington Spectator, May 1, 2015. http://washingtonspectator.org/the-ugly-history-behind-religious-freedom-laws/ .

[109]  Hamilton, God vs. the Gavel, p. 99.

[110]  Hamilton, God vs. the Gavel, p. 8

[111] I discussed this in my 1997 book Eternal Hostility: The Struggle Between Theocracy and Democracy, and pointed out that it had already been going on for decades.

[112] Frederick Clarkson, “An unexpected win for religious freedom,” LGBTQ Nation, February 1, 2015, http://www.lgbtqnation.com/2015/02/an-unexpected-win-for-religious-freedom/ ;  Sally Steenland, “3 Ways to Celebrate Religious Freedom Day,” Center for American Progress, January 16, 2015, https://www.americanprogress.org/issues/religion/news/2015/01/16/104780/3-ways-to-celebrate-religious-freedom-day/ .

[113] See for example, Isaac Kramnick and R. Laurence Moore, The Godless Constitution:  A Moral Defense of the Secular State, (New York: W.W. Norton, 2005), pp. 91-94; 103-104; Frank L. Lambert, Separation of Church & State: Founding Principles of Religious Liberty (Macon, GA: Mercer University Press, 2014); Frank Lambert, Religion in American Politics:  A Short History (Princeton, NJ: Princeton University Press, 2008), p. 29. John A. Ragosta, Wellspring of Liberty: How Virginia’s Religious Dissenters Helped Win the American Revolution & Secured Religious Liberty (New York: Oxford University Press, 2010); John A. Ragosta, Religious Freedom:  Jefferson’s Legacy, America’s Creed (Charlottesville, VA: University of Virginia Press, 2013).

[114] See, Frederick Clarkson, The Christian Right does not want you to know about this day, LGBTQ Nation, December 7, 2014; Frederick Clarkson, Taking Religious Freedom Day Astray, Political Research Associates, December 23, 2014, http://www.politicalresearch.org/2014/12/23/taking-religious-freedom-day-astray/; John Ragosta, Religious freedom: A proud day for Richmond, Richmond Times-Dispatch, January 12, 2015, http://www.richmond.com/opinion/their-opinion/guest-columnists/article_ae6fea4c-88d9-55df-9587-11a5806c0127.html; Frederick Clarkson, An unexpected win for religious freedom, LGBTQ Nation, February 1, 2015, http://www.lgbtqnation.com/2015/02/an-unexpected-win-for-religious-freedom/; Frederick Clarkson, Stand in the bright light of history on Religious Freedom Day, The Hill, January 16, 2015, http://thehill.com/blogs/congress-blog/religious-rights/229488-stand-in-the-bright-light-of-history-on-religious; Rob Boston, Religious Freedom Day 2015:  Resolve To Protect True Freedom Of Conscience, Wall of Separation, January 16, 2015, https://www.au.org/blogs/wall-of-separation/religious-freedom-day-2015-resolve-to-protect-true-freedom-of-conscience.

[115] See for example, Theo Anderson, “Would Jesus Vote for Bernie Sanders?  With the decline of culture war issues and the rise of crises like climate change, Bernie might actually be able to win over young evangelicals,” In These Times, August 14, 2015, http://inthesetimes.com/article/18318/bernie-sanders-liberty-university-evangelicals .

[116] Hamilton, God vs. the Gavel, p. 359; and Davis, et al., Restoring the Balance, pp. 17-19

[117] Sophia Resnick and Sharona Coutts, “Not the ‘Illuminati’: How Fundamentalist Christians Are Infiltrating State and Federal Government,” RH Reality Check, May 13, 2014, http://rhrealitycheck.org/article/2014/05/13/illuminati-fundamentalist-christians-infiltrating-state-federal-government/ ; Bruce Wilson, “The Hobby Lobby Case and The Alliance Defending Freedom’s Ties To Christian Reconstructionism,” Twocare: Center Against Religious Extremism, July 2, 2014. http://www.twocare.org/the-alliance-defending-freedoms-ties-to-christian-reconstructionism/ ; Frederick Clarkson, “Christian Reconstructionism:  Theocratic Dominionism Gains Influence,” The Public Eye, Spring/Summer 1994, http://www.politicalresearch.org/1994/03/19/christian-reconstructionism-part-1-theocratic-dominionism-gains-influence/#sthash.muY8mJ8V.dpbs . See also, Frederick Clarkson, Eternal Hostility; Michelle Goldberg, Kingdom Coming: The Rise of Christian Nationalism (New York: W.W. Norton, 2007);  Julie Ingersoll, Building God’s Kingdom: Inside the World of Christian Reconstruction, (New York: Oxford University Press, 2015).

[118] Resnick and Coutts, “Not the ‘Illuminati.’”

[119] Jeremy Tedesco and Kevin Theriot, “ADF recommends policy to protect student privacy in restrooms, locker rooms, Model policy provides solution for public schools,” Alliance Defending Freedom, December 05, 2014, http://www.adfmedia.org/News/PRDetail/?CID=82478http://www.adfmedia.org/News/PRDetail/?CID=82478http://www.adfmedia.org/News/PRDetail/?CID=82478 . See also: Cole Parke and Gabriel Joffe, “Alliance Defending Freedom: the Right-Wing Lawyers Fueling Transphobia in Schools,” Political Research Associates, December 18, 2015, http://www.politicalresearch.org/2015/12/18/alliance-defending-freedom-the-right-wing-lawyers-fueling-transphobia-in-school/#sthash.e1yQL5jN.dpbs .

[120]  Alliance Defending Freedom, IRS Form 990, 2012, http://www.guidestar.org/FinDocuments/2013/541/660/2013-541660459-0a0d95a7-9.pdf .

[121]  Gillian Kane, “Latin America in the Crosshairs: Alliance Defending Freedom Takes Aim,” The Public Eye, Summer 2015. http://www.politicalresearch.org/2015/07/13/latin-america-in-the-crosshairs-alliance-defending-freedom-takes-aim/#sthash.YDpC1yWo.G7BXQsew.dpbs .

[122]  Emma Green, “The Little Sisters of the Poor Are Headed to the Supreme Court: The justices will take on a complicated set of cases related to the birth-control mandate in the Affordable Care Act,” The Atlantic, November 6, 2015, http://www.theatlantic.com/politics/archive/2015/11/the-little-sisters-of-the-poor-are-headed-to-the-supreme-court/414729/ .

[123]  Becket Fund for Religious Liberty, “BREAKING: High Court to decide if Government can force nuns to provide contraceptives,” November 6, 2015, http://www.becketfund.org/scotus-to-decide-little-sisters-case/ .

[124]  Alliance Defending Freedom, “Supreme Court agrees to tackle abortion-pill mandate’s sham ‘accommodation’: ADF attorneys represent Penn. Christian college, four Okla. Christian universities,” November 6, 2015, http://www.adfmedia.org/News/PRDetail/9791 .

[125]  “European Court of Human Rights Cases,” The Becket Fund for Religious Liberty. http://www.becketfund.org/echr-cases/ .

[126]  Dawn Ennis, “The Two Words That Lawyers for Kim Davis Say Endanger Their Lives,” Advocate, October 21 2015. http://www.advocate.com/media/2015/10/21/liberty-counsel-demands-ap-retract-kim-davis-story-calling-it-hate-group .

[127]  Ethan Bronner, “At Stanford, Clinical Training for Defense of Religious Liberty,” The New York Times, January 21, 2013, http://www.nytimes.com/2013/01/22/us/at-stanford-clinical-training-for-the-defense-of-religious-liberty.html?_r=2 .

[128]  Bronner, “At Stanford.”

[129]  “Briefs,” Stanford Law School Religious Liberty Clinic website. https://law.stanford.edu/religious-liberty-clinic/rlc-briefs/ .

[130]  Freedom of Conscience Defense Fund website. http://www.consciencedefense.org/.

[131]  Sunnivie Brydum, “Gov. Mike Pence Signs ‘Fix’ to Religious Freedom Restoration Act,” The Advocate, April 2, 2015.  http://www.advocate.com/politics/2015/04/02/gov-mike-pence-signs-fix-religious-freedom-restoration-act .

[132] Stephanie Wang, “Conservative groups’ lawsuit says RFRA fix unconstitutional,” Indianapolis Star, December 10, 2015.  http://www.indystar.com/story/news/politics/2015/12/10/conservative-groups-lawsuit-says-rfra-fix-unconstitutional/77102680/ .

[133]  Mariya Strauss, “Who was behind Michigan GOP’s one-two punch against LGBTQ working families?” Political Research Associates, December 1, 2015  http://www.politicalresearch.org/2015/12/01/end-of-a-tough-year-for-michigan-who-was-behind-the-one-two-punch-from-gop-lawmakers/#sthash.V7NJNVv6.dpbs .

[134] Zack Ford, “Protecting LGBT People From Discrimination Is Now Illegal In Arkansas,” Think Progress, February 24, 2015  http://thinkprogress.org/lgbt/2015/02/24/3626203/lgbt-protections-ban-arkansas-texas/ .

[135] Zack Ford, “Indiana Republicans Introduce The Most Anti-LGBT LGBT Rights Bill Ever,” Think Progress, November,18, 2015   http://thinkprogress.org/lgbt/2015/11/18/3723348/indiana-lgbt-road-map-to-discrimination/ .

[136] Indiana Senate Republicans, “Senate Bill 100 Information.” http://www.indianasenaterepublicans.com/senate-bill-100-information/ .

[137] John Ragosta, “Virginia Statute for Establishing Religious Freedom (1786),” Encyclopedia Virginia, First published: August 10, 2012, Last modified: July 2, 2014. http://www.encyclopediavirginia.org/Virginia_Statute_for_Establishing_Religious_Freedom_1786#start_entry .

[138]  Elahe Izadi, “The fascinating history of how Jefferson and other Founding Fathers defended Muslim rights,” The Washington Post, December 11, 2015.  https://www.washingtonpost.com/news/the-fix/wp/2015/12/11/how-thomas-jefferson-and-other-founding-fathers-defended-muslim-rights/ .

[139]  Frederick Clarkson, “Taking Religious Freedom Day Astray,” Political Research Associates, December 23, 2014. http://www.politicalresearch.org/2014/12/23/taking-religious-freedom-day-astray/#sthash.a0cahxWz.UVVgoZ0A.dpuf .  This is detailed in Katherine Stewart, The Good News Club: The Christian Right’s Stealth Assault on America’s Children, Public Affairs, 2012.

[140]  See for example, Barack Obama, “Presidential Proclamation — Religious Freedom Day, 2015,” January 15, 2015  https://www.whitehouse.gov/the-press-office/2015/01/15/presidential-proclamation-religious-freedom-day-2015 .

[141]  Rob Boston, “Seize The Day!: Upcoming Religious Freedom Event Provides An Opportunity For Separation Advocates, Wall of Separation,” January 2, 2015.  https://www.au.org/blogs/wall-of-separation/seize-the-day-upcoming-religious-freedom-event-provides-an-opportunity-for .

[142] Pension Right Center, “St. Peters University Hospital Retirement Plan: The Law and the Facts,” February 29, 2012. http://www.pensionrights.org/publications/fact-sheet/saint-peters-university-hospital-retirement-plan-law-and-facts .

[143] Hazel Bradford, “Appeals court upholds ruling denying church-plan status for health-care system,” Pensions & Investments, December 29, 2015. http://www.pionline.com/article/20151229/ONLINE/151229925/appeals-court-upholds-ruling-denying-church-plan-status-for-health-care-system .

[144] Laurence Kaplan v. Saint Peter’s Healthcare System, United States Court of Appeals for the Third Circuit, No. 15-1172, December 29, 2015 http://www2.ca3.uscourts.gov/opinarch/151172p.pdf

[145] Cohen Milstein Sellers & Toll PLLC, “Third Circuit Rules St. Peter’s Healthcare Not a Tax Exempt Church Plan: Appeals Court Rules St. Peter’s Healthcare is Not a Church Plan Exempt From ERISA Laws,” Globe Newswire, December 31, 2015. https://globenewswire.com/news-release/2015/12/31/798872/0/en/Third-Circuit-Rules-St-Peter-s-Healthcare-Not-a-Tax-Exempt-Church-Plan.html?print=1 .

 

 

 

 

 

The Christian Right Does Not Want Us to Celebrate this Day

In the heat of our political moment, we sometimes don’t see how our future connects deeply to our past. But the Christian Right does — and they do not like what they see. The Christian Right has made religious freedom the ideological phalanx of its current campaigns in the culture wars. Religious freedom is now invoked as a way of seeking to derail access to reproductive health services as well as equality for LGBTQ people. But history provides little comfort for the theocratic visions of the Christian Right.

The first national Day of the New Year will be one that most of us have never heard of. Authorized by Congress in 1992, Religious Freedom Day has been recognized every January 16th by an annual presidential proclamation commemorating the enactment of the Virginia Statute for Religious Freedom in 1786.

This seemingly obscure piece of Revolutionary-era legislation is so integral to our history that Thomas Jefferson asked that his tombstone recognize that he was the author of the bill, along with the Declaration of Independence and the founding of the University of Virginia as one of the three things for which he wished to be remembered.

It is worth taking a moment to understand why Jefferson thought it was that important.

A statue of Thomas Jefferson, author of the Virginia Statute for Religious Freedom, in Colonial Williamsburg, Va.

Jefferson drafted the bill in 1777 but it took a decade to be finally pushed by the then-member of the House of Delegates, James Madison. It is regarded as the root of how the framers of the Constitution approached matters of religion and government, and it was as revolutionary as the era in which it was written. The bill not only disestablished the Anglican Church as the official state church, but it provided that no one can be compelled to attend any religious institution or to underwrite it with taxes; that individuals are free to believe as they will and that this “shall in no wise diminish, enlarge, or affect their civil capacities.” As the founding documents were developed it became ever clearer that the right to believe differently from the rich and the powerful is a prerequisite for free speech and a free press – and that this is what religious freedom is all about.

Following the dramatic passage of the Statute in 1786, Madison traveled to Philadelphia, where he served as a principal author of the Constitution in 1787. As a Member of Congress in 1789 he was also a principal author of the First Amendment, which passed in 1791.

Jefferson knew that many did not like the Statute, just as they did not like the Constitution and the First Amendment, both of which sought to expand the rights of citizens and deflect claims of churches seeking special consideration. So before his death, Jefferson sought to get the last word on what it meant.

The Statute, he wrote, contained “within the mantle of its protection, the Jew and the Gentile, the Christian and Mohametan, the Hindoo and Infidel of every denomination.”  So with this clear and powerful statement Jefferson, almost 200 years ago, refutes the contemporary claims of Christian Right leaders, many of whom insist that the U.S. was not only founded as a Christian nation, but according to their understanding of Christianity. Jefferson further explained that the legislature had rejected proposed language that would have described “Jesus Christ” as “the holy author of our religion.” This was rejected, he reported, “by the great majority.”

The Virginia Statute for Religious Freedom does not fit the Christian Right’s narrative of history. Nor does it justify their vision of the struggles of the political present, or the shining theocratic future they envision. Indeed, Religious Freedom Day has got to be a dark day for the likes of Tony Perkins, who argues that Christians who favor marriage equality are not really Christians. That is probably why on Religious Freedom Day 2014, Perkins made no mention of what it is really about — and instead used the occasion to denounce president Obama’s approach to religious liberty abroad.

Religious Freedom Day provides an opportunity for us to think dynamically about the meaning of religious freedom in our time – even as the Christian Right seeks to redefine it beyond recognition.

Religious Freedom Day provides an opportunity for us to think dynamically about the meaning of religious freedom in our time – even as the Christian Right seeks to redefine it beyond recognition. The web site that comes up first in a Google search for Religious Freedom Day adds to the misinformation. The group behind ReligiousFreedomDay.com is a small evangelical Christian Right agency called Gateways to Better Education that treats the Day as an opportunity to evangelize. They insist that “Religious Freedom Day is not ‘celebrate-our-diversity day.’” Gateways is part of a wider movement with a long history of efforts to hijack, or compromise, public schools in order to evangelize children. (This is detailed in a book by Katherine Stewart, The Good News Club: The Christian Right’s Stealth Assault on America’s Children.)

Nevertheless, in his 2015 proclamation, President Obama declared that religious freedom “protects the right of every person to practice their faith how they choose, to change their faith, or to practice no faith at all, and to do so free from persecution and fear.”

“The Coalition for Liberty & Justice is a broad alliance of faith-based, secular and other organizations that works to ensure that public policy protects the religious liberty of individuals of all faiths and no faith and to oppose public policies that impose one religious viewpoint on all.”

That’s why it was so significant that in 2015, progressives took a big, bold step to reclaim this progressive legacy of the revolutionary, founding era. The 60 organizational members of the Coalition for Liberty and Justice (including PRA) decided to seize the day. We took to the op-ed pages and social media and launched the conversation that has continued to this day.

More than two dozen organizational members of the Coalition contributed op-eds, blog posts, and a storm of posts on Facebook and Twitter. The Coalition’s “Twitter Storm” reached some 590,000 Twitter accounts and more than six million impressions. In two hours on January 16th alone, there were more than 1,500 tweets and 552 individual contributors. Among the Coalition members that participated were Americans United for Separation of Church and State, National LGBTQ Taskforce, Secular Coalition for America, and the Religious Coalition for Reproductive Choice. Bloggers at Daily Kos contributed a wide variety of thoughts about religious freedom and the Day. The Center for American Progress suggested three ways to celebrate.

The executive director of the Joint Baptist Committee on Public Affairs, J. Brent Walker, took to The Huffington Post to discuss how “Jefferson’s radical Virginia statute created a vital marketplace for religion that must be based on voluntary belief, not government assistance.”

It is, he said, up to religious communities to persuade others of their views, and to “count on government to do no more than to protect our right to do so.”

It would be an understatement to say that the outpouring was broad, diverse, and enthusiastic.

Let’s do it again in 2016.

 

Using the “War on Drugs” to Arrest Pregnant Women

The War On Drugs, launched in 1971 by Richard Nixon, has been repeatedly exposed as a failure. Yet, the same failed tactics used to fight drugs continue to be used to retain control over women’s reproduction. Drug laws are increasingly being implemented on the state level as a roundabout method to limit women’s bodily autonomy and carry out anti-choice agendas. Last year, Tennessee passed SB 1391, and became the first state in the U.S. to specifically criminalize drug use during pregnancy. The legislation states that women with babies who test positive for narcotics can be charged and prosecuted for assault. Those women would face up to 15 years of prison time.

Tennessee State Rep Terri Lynn Weaver (R). image via Flickr

Tennessee State Rep Terri Lynn Weaver’s (R) new law specifically criminalizes pregnant women who use drugs, threatening them with massive jail sentences if their doctors find out. image via Flickr

Proponents of the bill claimed it was a necessary step towards combating the increase in neonatal abstinence syndrome (NAS) in Tennessee. However, the medical community took issue with the legislation on a number of points, with obstetric and drug specialists stating that risks to newborns have been exaggerated. An investigative article in the American Prospect found that not only is there “no evidence that NAS has long-term consequences for infants,” but that some doctors agree there is a trend of over-treating NAS and that in actuality, close contact with the mother, not isolation, is important for alleviating symptoms. Medical authorities also say that NAS symptoms are temporary, predictable, and treatable—a far cry from State Representative Terri Lynn Weaver’s (R) assertion that “these babies are born and their lives are totally destroyed.” Furthermore, using the term “drug addicted” to describe such babies has been declared inaccurate by medical professionals, yet Republican politicians, conservative prosecutors, and media continue to frame the issue as such in a way that stigmatizes women.

Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse could result in a jail sentence rather than proper medical treatment.

The Tennessee Department of Health’s FAQ sheet on the statute claims it does not “change care or medical treatment provided to pregnant women.” While it may not explicitly do so, the bill can have the detrimental effect of discouraging pregnant women from seeking vital prenatal care and treatment for fear of arrest and prosecution. The context and implications of medical treatment are indeed changed, and as a result there is widespread consensus in the medical community in opposition to the prosecution and punishment of pregnant women. This is not a recent development: as early as 1990, the American Medical Association stated, “Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician’s knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence rather than proper medical treatment.” The American College of Obstetricians and Gynecologists concurred in a statement on the harms of using punitive measures to combat addiction, asserting that “Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus. Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.”

Not only is the science behind SB 1391 faulty, but the stereotypes and discourses remain consistent: the manufactured “crack baby” hysteria is mirrored, along with the moral condemnation of these mothers.

Female drug users have always been stigmatized, but the criminalization of female users reached a new high when conservative policymakers, led by President Ronald Reagan and faithfully echoed by the media, fabricated a trope of inner-city “crack babies” doomed by their supposedly incompetent mothers: poor women of color. Tennessee’s recently passed legislation shows this framework is far from retired. Representative Weaver, one of the bill’s sponsors, was quoted in a comment calling pregnant drug users “the worst of the worst.” The media storm surrounding the legislation, featuring mug shots of women arrested under the statute on local TV news and on the Internet, has driven pregnant women into hiding to escape public ridicule. According to an investigation by The Nation, 24-year-old Brittany Hudson gave birth in a car instead of the hospital out of fear of arrest and media exposure. In the previous weeks, Hudson had been turned away from two rehab centers already at capacity. As she feared, her mug shot was plastered over the news after she was charged with assault. Tennessee’s law reflects the detrimental view of addiction as a moral failure, rather than the medical disorder research has proven it to be. Just as the “crack problem” was used in the 80s as a vehicle for scapegoating supposedly “deviant” urban citizens experiencing the problems caused by Reagan’s social and economic policies, Tennessee’s statute and its conservative supporters ignore broader structural issues such as poverty, systemic racism, and insufficient health care. The conservative “tough on crime” approach to criminal justice consistently focuses on social control and punishment rather than social justice and access to resources.

Tennessee’s law reflects the detrimental view of addiction as a moral failure, rather than the medical disorder research has proven it to be.

In line with the War On Drugs, this legislation disproportionately harms poor people of color, despite conservatives’ colorblind claim that drug policy has nothing to do with race or poverty. The normalization of controlling Black and Brown bodies through institutional apparatuses continues with this expansion of an already overburdened criminal justice system. This trend, illuminated in Lynn Paltrow (whose article on fetal genocide laws can be found in the Spring 2015 issue of The Public Eye magazine) and Jeanne Flavin’s study published in the Journal of Health Politics, Policy, and Law, follows a long-term strategy to unite the War On Drugs and the anti-abortion movement, which results in a disproportionate impact upon low-income Black pregnant women. The study systematically identified and analyzed over 400 cases in which a woman’s pregnancy was the basis for the deprivation of her liberty. Black women comprised over half of the cases, as they were found to be reported to the police by health care providers and arrested at higher rates. As a racist project, the justice system’s latest efforts to criminalize drug users will subject pregnant Black women to higher rates of arrests and incarceration based on systemic racial biases and racial stereotypes of African-American mothers, an issue perhaps most notably elucidated in Dorothy Robert’s seminal book Killing the Black Body.

Tennessee’s law exempts women who enter drug addiction programs while pregnant and complete them post-birth. This addition, included to temper opponents, simply furthers the disparate implementation of the measure and creates a catch-22 for addicted, low-income women who cannot get treatment. Women in rural areas and women struggling financially are threatened with a higher risk of incarceration due to limited access to drug addiction programs (as well as limited access to other options, with 96% of Tennessee counties lacking an abortion clinic). The law does not specify the legal ramifications for a woman who seeks treatment but can’t access one or get into a program, leaving many in a vulnerable position. Nor does the law provide increased funding or opportunities for treatment for pregnant women.

And Tennessee isn’t alone. Since passing the bill last year, conservative lawmakers in Oklahoma and North Carolina have proposed similar legislation.

Tennessee’s prenatal drug use law is a continuation of the “personhood” campaign. Both sponsors of the bill, Sen. Reginald Tate (D) & Rep Weaver, were endorsed by Tennessee Right to Life PAC, one of the foremost anti-choice organizations in the state.

The Tennessee law is merely one component of a wider, more subtle—and thus perhaps more dangerous—trend. Although Tennessee is the only state that explicitly criminalizes prenatal drug use as an assault, other states are utilizing different drug-related methods to control women’s reproduction. 18 states label drug usage by pregnant women as child abuse under child-welfare statutes. In the case Ex Parte Sarah Janie Hicks in April 2014, the Supreme Court of Alabama ruled that a 2006 child abuse chemical endangerment statute’s reference to “child” includes an “unborn” child, upholding Hicks’ conviction for having a baby that later tested positive for cocaine, despite being healthy. The original purpose of the statute was to prohibit individuals from exposing children to narcotics production and distribution areas, but right-wing organizations, such as Liberty Counsel, and conservative political actors have since pushed for a wider interpretation of the law: one in which a fetus is considered a child and a womb is considered an environment where drugs are produced or distributed. Court decisions such as Hicks function to create precedent for convicting pregnant women for drug use.

Tennessee’s legislation, in conjunction with other drug-related strategies like the expansion of Alabama’s child endangerment statute under Ex Parte Hicks, applies the punitive approach of the War On Drugs to reproductive rights, limiting women’s bodily autonomy and perpetuating the legacy of the our racist carceral system. Lynn Paltrow, executive director of the National Advocates for Pregnant Women, has consistently highlighted how Tennessee’s prenatal drug use law is a continuation of the anti-abortion “personhood” campaign. Notably, both sponsors of the bill, State Senator Reginald Tate (D) and Representative Weaver, were endorsed by Tennessee Right to Life PAC, one of the foremost anti-choice organizations in the state. These legislative encroachments are but one tactic in a state-by-state approach by conservative activists to control reproduction and insert the concept of “personhood” into the legal code in various arenas.

The prosecution of prenatal drug use stigmatizes and locates the blame on individual mothers, distracting attention from poverty, institutionalized racism, a broken carceral system, insufficient health care, and other structural causes. In a coming together of two controversial issues, drug policy and reproduction, conservatives have found an effective strategy to further their agenda through the targeting of pregnant drug users.

When Anti-Abortion Propaganda is Accepted as Investigative Journalism

One of the underreported aspects of the current smear campaign against Planned Parenthood is the coarsening and polarizing of our civil discourse that usually accompanies discussions of the culture wars.  This has been especially glaring because the ongoing barrage of false and inflammatory language directed at Planned Parenthood and its staff by anti-abortion groups; and the remarkable disconnect between what is passing for evidence and investigative journalism, and the charges being leveled.

Planned Parenthood Federation of America (PPFA) and various staff and affiliates stand accused of “selling” or “trafficking in baby parts.”  They are said to be “profiteering” in a “black market.”  Senator Ted Cruz (R-TX) has gone so far as to call Planned Parenthood “an ongoing criminal enterprise.”

David Daleiden

David Daleiden, founder of Center for Medical Progress and former staff member of Live Action.

These serious, but hyperbolically-stated, charges are based largely on short, manipulatively edited videos produced from hidden camera conversations by the anti-abortion group, Center for Medical Progress (CMP), led by founder David Daleiden who previously served as Director of Research for similar group, Live Action. The videos are being used to justify official investigations by Congress and efforts to bar Planned Parenthood from receiving state and federal funds for routine health care services such as breast cancer screenings, pap smears, contraception, and prenatal care.  Federal funds are not used to provide abortion care (except via Medicaid in the cases of rape, incest, and the life of the mother), and many Planned Parenthood affiliates do not even provide abortions. Among those that do, not all are involved in the donation of fetal tissue and organs.  This is the case in New Hampshire, where, in response to the CMP’s videos, the state recently decided not to continue contracting with Planned Parenthood to provide health care services, even though PP is not engaged in fetal tissue research donations and the state Attorney General had already decided that there was no basis for an investigation.

“We do not launch investigations in the state of New Hampshire on rumor,” said Governor Maggie Hassan. “We do not launch criminal investigations in the state of New Hampshire because somebody edits a tape.”

The videos claiming to demonstrate that Planned Parenthood sells fetal tissue and organs for profit actually only show exactly what PPFA says it does. The organization is reimbursed for the costs associated with transporting tissue for purposes of medical and scientific research. Medical ethicists say that the reimbursement rates discussed in the videos are well within the standard range for non-profits. (For-profit medical enterprises get more.)  This is all legal under federal law. And it is worth noting that no one is proposing changing the laws, or investigating anyone other than Planned Parenthood—likely because the research is life-saving and has led to breakthroughs in cancer treatments and other medical advancements.

This isn’t the first time anti-choice groups have used the same methods to smear Planned Parenthood and pressure public officials into investigating the women’s health care provider in search of a justification to make PPFA ineligible to receive federal funds on the same basis as everyone else.  (They call it “defunding Planned Parenthood.”) David Daleiden himself served as Director of Research for Live Action during the big smear campaign against PPFA in 2011.

Vickie Saporta of the National Abortion Federation (the professional association of abortion providers, whose membership includes providers in both the non-profit and for-profit medical community), further connected the dots to a similar effort in the 1990s. She recently wrote in The Washington Examiner that

“In 1999, another anti-abortion group, Life Dynamics, released an ‘undercover’ video claiming that abortion providers were profiting from fetal tissue donation. The allegations led to a congressional hearing in which the star witness confessed to having been paid over $20,000 by Life Dynamics.

He recanted his story, saying under oath that he had lied and that he had no personal knowledge of any instances in which tissue donation programs had violated federal law. Even legislators who opposed abortion doubted his story and credibility. Then Representative — now Senator — Richard Burr, R-N.C., told the witness: ‘I found there to be so many inconsistencies in your testimony … your credibility, as far as this member is concerned, is shot.’

The head of Life Dynamics, Mark Crutcher, admitted that the hearing was a train wreck. It’s no surprise that Crutcher has also been consulting with CMP. Further investigations this time around will find the same thing as last time: That the anti-abortion group and its agents are the ones who acted fraudulently, and that abortion providers have not broken the law.”

The swirl of charges and countercharges can make your head spin, so here is one simple example of the way CMP handles evidence.

Daleiden was recently interviewed by Alisyn Camerota on CNN’s “New Day” show. He said a brochure for StemExpress, a small company that procures human tissues for researchers, proved that Planned Parenthood harvests fetal parts for profit. He urged viewers to visit the CMP web site to see it.

So I did.

What CMP posted is a generic corporate promotional brochure aimed at a wide audience in the medical field. A PPFA official’s endorsement on the brochure is for the professionalism of the company and makes no mention of pecuniary interests.

One of the most remarkable aspects of the current controversy is that few journalists and public officials are seriously scrutinizing this crude propaganda, and are largely allowing an obscure, militant anti-abortion group to cast themselves as investigative journalists rather than highlighting their agenda and dishonest tactics. Daleiden claims to produce investigative journalism and his lawyers (the Christian Right’s American Center for Law and Justice) characterize Daleiden and his CMP colleague Troy Newman (who also leads the militant anti-abortion group Operation Rescue) as “investigative journalists.”  Christianity Today, the major magazine of evangelical Christianity, called Daleiden a “filmmaker.”  These are very generous descriptions of who these men are, and what they do.

Recently the National Abortion Federation obtained a temporary injunction against the Center for Medical Progress, preventing it from publishing confidential material obtained under false pretenses. Among the reasons the injunction was granted are the harassment and death threats against the PPFA staffers who appeared in the videos. In his ruling, Judge William H. Orrick said:

“Critically, the parties do not disagree about NAF’s central allegations: defendants assumed false identities, created a fake company, and lied to NAF in order to obtain access to NAF’s annual meetings and gain private information about its members….[The defendants] unquestionably breached their agreements with NAF…The evidence presented by NAF, including that defendants’ recent dissemination of videos of and conversations with NAF affiliates has led to harassment and death threats for the individuals in those videos, is sufficient to show irreparable injury for the purposes of the temporary restraining order.”

Center for Medical Progress responded:

“The National Abortion Federation is a criminal organization that has spent years conspiring with Planned Parenthood on how to violate federal laws on partial-birth abortion and fetal tissue sales.”

The evidence for this series of charges from CMP? None.