Why are anti-choice”heartbeat” laws unconstitutional?

We’re back with a follow-up to our post on the unconstitutional Texas Senate Bill 8 – or, as we call it, the Fugitive Abortion Act.

We had promised back in our first post to talk about how the bill, now a law, has been playing out. As expected, other states controlled by Republican legislators are gearing up to pass equivalent bills; Florida’s are working on the basically identical “Florida Heartbeat Act” – “ban most abortions as early as around six weeks, allow members of the public to sue anyone who helps end a pregnancy beyond that point and fine physicians $10,000 for each abortion they perform later in pregnancy.”

You will always hear opponents say these bills are unconstitutional. You will never hear them explain why. Is the right to get an abortion protected by name in the Constitution? It is not. So how are these laws unconstitutional? Here’s a very useful explainer from Cornell Law School’s Legal Information Institute:

In Roe v. Wade [1973], the [Supreme] Court established a right of personal privacy protected by the Due Process Clause [of the Constitution] that includes the right of a woman to determine whether or not to bear a child. In doing so, the Court dramatically increased judicial oversight of legislation under the privacy line of cases, striking down aspects of abortion-related laws in practically all the states, the District of Columbia, and the territories. To reach this result, the Court first undertook a lengthy historical review of medical and legal views regarding abortion, finding that modern prohibitions on abortion were of relatively recent vintage and thus lacked the historical foundation which might have preserved them from constitutional review. Then, the Court established that the word “person” as used in the Due Process Clause and in other provisions of the Constitution did not include the unborn, and therefore the unborn lacked federal constitutional protection. Finally, the Court summarily announced that the “Fourteenth Amendment’s concept of personal liberty and restrictions upon state action” includes “a right of personal privacy, or a guarantee of certain areas or zones of privacy” and that “[t]his right of privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

In other words, the Supreme Court interpreted the Fourteenth Amendment of the Constitution, guaranteeing personal privacy, to include the personal decision about whether to end a pregnancy. It also interpreted the Due Process Clause of the Constitution to refer only to people, not embryos or fetuses (“the unborn”), sensibly acknowledging that embryos and fetuses cannot be understood the enjoy the right to due process before the law because they are not people.

This is the decision that anti-choice and anti-woman forces have been successfully working to overturn for the past 49 years. Their identification of embryos and fetuses as “children” and “babies”, even from the moment the first cell divides, has been very effective in convincing their followers that the unborn are indeed people with rights–rights that even overrule the rights of the actual people who are pregnant.

This deliberate untruth has impacted the U.S. in many ways aside from the battle to allow people who are pregnant to decide whether they should continue their pregnancy. It’s one of the foundational arguments of anti-vaccine activists who “have objections because the vaccines were developed or tested on cell lines derived from aborted fetal tissue”. They are willing to infect and potentially kill actual people, including themselves, in order to claim “rights” to life for cells, embryos, and fetuses.

As we cannot state often enough, this is a prime example of the dangers of claiming that the Constitution protects “religious belief.” We’ve said it before, we’ll say it again:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.
The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.
It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public restrooms, or cats can’t be kept as pets, and we would have to be accommodated.
The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

People are allowed to believe anything they like, including that a dividing cell is a baby. But they are not allowed by our Constitution to enforce their beliefs through laws, for the simple reason that laws apply to everyone, no matter their personal beliefs. That’s one of the reasons why the new laws in Texas and Florida and elsewhere are so dangerous: they include the innovation of having other citizens, rather than state officials or law enforcement officers, enforce the laws by bringing lawsuits against people who seek abortions. This weaponizes people whose personal beliefs align with denying pregnant people control over their own bodies, and gives their personal feelings the power of law.

It also turns our established legal principle of “innocent until proven guilty” on its head by forcing people into court to prove that they have not had an “illegal” abortion–guilty until they prove themselves innocent, and guilty on the basis of violating someone else’s personal, religious beliefs.

This is not the America we want. It’s not what the Founders who wrote the Constitution wanted. Americans who value their natural rights as guaranteed by the Constitution have to be as active in defending them as Americans who do not value them are in tearing them down.

Texas Senate Bill 8 is the Fugitive Abortion Act of 2021

Section 7 – And be it further enacted, That any person who shall knowingly and willingly obstruct, hinder, or prevent such claimant, his agent or attorney, or any person or persons lawfully assisting him, her, or them, from arresting such a fugitive from service or labor, either with or without process as aforesaid, or shall rescue, or attempt to rescue, such fugitive from service or labor, from the custody of such claimant, his or her agent or attorney, or other person or persons lawfully assisting as aforesaid, when so arrested, pursuant to the authority herein given and declared; or shall aid, abet, or assist such person so owing service or labor as aforesaid, directly or indirectly, to escape from such claimant, his agent or attorney, or other person or persons legally authorized as aforesaid; or shall harbor or conceal such fugitive, so as to prevent the discovery and arrest of such person, after notice or knowledge of the fact that such person was a fugitive from service or labor as aforesaid, shall, for either of said offences, be subject to a fine not exceeding one thousand dollars, and imprisonment not exceeding six months, by indictment and conviction before the District Court of the United States for the district in which such offence may have been committed, or before the proper court of criminal jurisdiction, if committed within any one of the organized Territories of the United States; and shall moreover forfeit and pay, by way of civil damages to the party injured by such illegal conduct, the sum of one thousand dollars for each fugitive so lost as aforesaid, to be recovered by action of debt, in any of the District or Territorial Courts aforesaid, within whose jurisdiction the said offence may have been committed.

That’s Section 7 of the Fugitive Slave Act of 1850. This Act of Congress allowed states and territories of the U.S. to create commissioners to hunt down black Americans who escaped slavery and return them to their enslavers. If an enslaved person was able to reach a state that had legally banned slavery, their enslaved status was not overturned. Instead, the people of that state were forced, by Section 7, to void their own antislavery laws by helping the slave commissioners in whatever way those commissioners demanded: help them to find enslaved people, take them into custody, guard them while they awaited return to their enslaver, and turn them over to the enslaver. Preventing a slave commissioner from enforcing slavery in a free state was illegal. Helping an enslaved person hide or escape was illegal. Knowing about people who were helping or hiding enslaved people was illegal, because it was a form of “hindering” the slave commissioner. The penalty for those who hindered slavery, directly or indirectly, was a $1,000 fine (a fortune in the mid-1800s), up to six months in prison, and another $1,000 fine to pay back the enslaver the “civil damages” they experienced as “the party injured by such illegal conduct”. Since very few Americans would have $1,000 to pay the first fine, the second $1,000 would be collected “by action of debt” – that is, seizure of property and/or any other asset the person might possess.

We posted about the FSA four years ago, in September 2017 in “The 2017 Fugitive Slave Act”; that time, we were comparing it to laws making it criminal to help immigrants who are in the U.S. illegally, and turning police officers into “immigrant-catchers” just like the slave commissioners were “slave-catchers”. When you are rewarded for doing something, you will find ways to do it. When you are punished for doing something, you’ll stop. That’s how these acts work.

This September, in Part 1 of a short series, we’re comparing the Fugitive Slave Act of 1850 to the 2021 Texas Senate Bill 8. Why? Because this Bill, now law, makes it illegal for a woman to get an abortion after six weeks of pregnancy in the state of Texas, and therefore illegal for anyone to provide an abortion or, crucially, to help a woman to get an abortion in Texas after six weeks in any way. Abortion is realistically banned by this procedure, not just or primarily because not all women know that they are pregnant at just six weeks, but because

–all women are forced to make two appointments with an abortion provider, one to get an ultrasound so they can be shown their “baby” and told that they will be “murdering” it if they get an abortion, and one to get another ultrasound before the procedure;

–women under age 18 are forced to get written and signed parental approval to get an abortion; and

–only women with strong support systems, money, and flexible employers who allow time off are able to travel out of Texas to a state that does provide abortions after six weeks.

With the passage of this bill into law, it’s not just illegal to perform an abortion; it’s also illegal to drive a woman out of state to get one elsewhere, to pay for one, or, potentially, to tell a woman where she can get an abortion after six weeks. The law is purposefully vague, using the phrase “conduct that aids or abets the performance or inducement of an abortion” to cover just about anything.

Let’s do a close reading. We took the text of this Bill from the website Texas Legislature Online, which is part of the official State of Texas government website. We’re not reproducing the entire text, but letting you know which sections we’re looking at.

AN ACT
relating to abortion, including abortions after detection of an unborn child’s heartbeat; authorizing a private civil right of action.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. This Act shall be known as the Texas Heartbeat Act.

–The use of the word “child” is already a red flag for subjectivity. A fetus at 6 weeks is a fetus, not a “child”. Anti-choice advocates have long used the words “baby” or “child” to describe something that could one day be a baby or child, but currently is not. From the moment an egg is fertilized by sperm, it’s a “baby”, as Section 171.201 (5) says: “‘Pregnancy’ means the human female reproductive condition that: (A) begins with fertilization”.

Calling the Bill the “Texas Heartbeat Act” technically refers to the fact that a fetal heartbeat is detected between 3-6 weeks after fertilization. But even the language of this Bill in Section 171.201 (1) reveals what a technicality this is: “‘Fetal heartbeat’ means cardiac activity or the steady and repetitive rhythmic contraction of the fetal heart within the gestational sac.” Is this what anti-choice advocates want you to think of when you hear “Texas Heartbeat Act”? No; they want you to think of a valentine-shaped heart that represents a baby with feelings and emotions.

Basically, calling a 6-week old fetus a “child” or “baby” is like calling someone you enslave a “laborer” or “worker”, as the Fugitive Slave Act of 1850 did, consistently calling people who escaped slavery “fugitives from labor.”

Sec. 171.207. LIMITATIONS ON PUBLIC ENFORCEMENT. (a) Notwithstanding Section 171.005 or any other law, the requirements of this subchapter shall be enforced exclusively through the private civil actions described in Section 171.208. No enforcement of this subchapter, and no enforcement of Chapters 19 and 22, Penal Code, in response to violations of this subchapter, may be taken or threatened by this state, a political subdivision, a district or county attorney, or an executive or administrative officer or employee of this state or a political subdivision against any person, except as provided in Section 171.208.

–Here the Bill leads early with its key component: it’s not being enforced by the State government. No enforcement of the Bill may be taken or threatened by anyone representing the state. Here’s the first part of that following section they refer to:

Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a) Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:

–Texas never claimed that this Bill is constitutional. The evil genius of it is that it doesn’t have to be constitutional if the state is not carrying it out. No one working for the state government of Texas will be asked to prevent a woman from getting an abortion, or take anyone to court for having an abortion or helping a woman to get one. The state’s hands are off. It’s private citizens who will do this work. Yes, they’re authorized by state law, but this means that anyone who wants to challenge this law will have to go after every individual citizen who acts on it–which could be thousands or tens of thousands of people. No one can sue the State of Texas over it.

Pro-choice advocates will certainly take the first private citizen who acts on this law to court, and hope to work that individual case up to the Supreme Court, just like Brown v. Board of Education or Plessy v. Ferguson. But in the meantime, unknown numbers of people will continue to act on it–far greater numbers than work in Texas state government. 25 million people live in Texas. Far fewer work in state government.

This is an authorization of vigilantism, as we will see. Let’s continue that last section:

Sec. 171.208.  CIVIL LIABILITY FOR VIOLATION OR AIDING OR ABETTING VIOLATION. (a)  Any person, other than an officer or employee of a state or local governmental entity in this state, may bring a civil action against any person who:
(1)  performs or induces an abortion in violation of this subchapter;
(2)  knowingly engages in conduct that aids or abets the performance or inducement of an abortion, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter;

(1) is clear: no abortions can be provided after six weeks. (2) is that horribly vague “conduct that aids or abets the performance” of an abortion that could cover anything. The only specific they give is that insurance companies that pay for abortion can be sued. The vanishingly small number of insurance companies that ever cover abortion will soon, one fears, be reduced to zero.

You may be asking at this point, where is the burden of proof? How can anyone prove that someone “aided or abetted” in an abortion in any way? It’s just hearsay–I can go to court and say “I know that Person A drove Person B to get an abortion” or, worse, “I know that Person A encouraged Person B to get an abortion,” or even “Person A knew that when Person B left the house that day they were going to drive out of state to get an abortion and didn’t try to stop them.” There’s no end to the dystopian nightmare that is made possible here.

This law also makes someone guilty until proven innocent, which is the opposite of the legal principle the U.S. is founded on. If Person A is sued, they are forced to appear in court and argue that they are innocent. The Bill refers to someone in this situation as the “defendant” and the person who sued them as “the claimant”, and never was the word “claim” so accurately and awfully used. No one making a claim against someone will be thrown out of court, and every groundless case will have to be heard–and the “defendant” will pay all the legal fees if they are found guilty, and the state will pay all the legal fees if they are not, as we see here:

[3] (b)  If a claimant prevails in an action brought under this section, the court shall award:
(1)  injunctive relief sufficient to prevent the defendant from violating this subchapter or engaging in acts that aid or abet violations of this subchapter;
(2)  statutory damages in an amount of not less than $10,000 for each abortion that the defendant performed or induced in violation of this subchapter, and for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted; and
(3)  costs and attorney’s fees.

So if Person X takes Person A to court and wins, Person A is first made incapable of repeating their crime (“injunctive relief” is a court order that demands that someone stop doing something), and Person X, the Claimant, gets “not less than” $10,000 for each abortion performed or “aided and abetted” by Person A, and the court will pay for Person X’s court costs and attorney’s fees. Person X, of course, pays their own costs and fees.

Remember how the Fugitive Slave Act guaranteed $1,000 to anyone who turned in someone hindering a slave commissioner? And put the hinderer in jail, and made them pay another $1,000 so they couldn’t do it again (injunctive relief)? Just add a zero to the Texas law and we’ve got the same situation, except that in 1850 the person found guilty paid the reward to the person who had turned them in. Now, it’s all taxpayers in Texas. Everyone, regardless of their stance on abortion, is helping to prosecute people who provide or “aid and abet” abortion.

(d) Notwithstanding Chapter 16, Civil Practice and Remedies Code, or any other law, a person may bring an action under this section not later than the fourth anniversary of the date the cause of action accrues.

–There’s a statute of limitations of four years on suing someone for providing, aiding or abetting abortion. We’re surprised it’s that short. Why fear that memory or hearsay or “claims” will be harder to prove with passage of time? Concerns about proof don’t seem to trouble anyone who wrote or passed this Bill.

Sec. 171.212. SEVERABILITY.
(c) The legislature further declares that it would have enacted this chapter, and each provision, section, subsection, sentence, clause, phrase, or word, and all constitutional applications of this chapter, irrespective of the fact that any provision, section, subsection, sentence, clause, phrase, or word, or applications of this chapter, were to be declared unconstitutional or to represent an undue burden.

–This is surprisingly frank. The Texas state legislature would have passed last word of this bill, “irrespective of the fact” that any part of it “were to be declared unconstitutional or to represent an undue burden.”

Part of this lack of concern for constitutional law comes from their deviant removal of enforcement from the state to the private citizen–again, it doesn’t matter if the law is unconstitutional if the state is not carrying it out (even though the state is, of course, carrying it out by allowing cases to be heard and punishing the courts if they don’t hear the cases).

But the larger part is that this is meant to be read as a brave, moral stand against the immorality of abortion. Even if the whole world tells us we’re wrong, the lawmakers say, we know that we’re right, and we stand by it. This wrapping oneself in morality is very selective in the U.S., and seems mostly to occur when right-wing politicians go against something liberal politicians support.

It’s also almost always about life-or-death stands that are fairly meaningless: support our troops by funding weapons and wars, because they’re fighting for our freedom… but don’t give military personnel a living wage, safety from rape and/or abuse based on sexuality, good life and health insurance, easy access to quality mental or physical health care, or good housing.

Here, it’s don’t “kill” an unborn “child” because that’s “murder”… but once that child is born, do nothing to fund early childhood education, school breakfasts, mother and infant health care, affordable and safe day care, after-school programs, or anything else that will help that child live a good life. This is not being “pro-life” but “pro-birth”.

People who ban abortion are almost always “pro-birth”. They want huge governmental involvement, investment, and protection for stopping abortion, and zero of the above for helping all children thrive, regardless of race, religion, first language, income, sex, sexuality, etc. They usually follow pro-birth laws with measures designed to prevent exactly that kind of level playing field for the children they insist be born, from segregated schools to gay “conversion camps” (aka torture centers).

There’s no room for this in a democratic nation. The history of the United States is one of incrementally increasing democracy, of getting closer to liberty and justice for all. Making a Christian position against abortion the law for all Texans, and, one day, for all Americans, is a violation of our founding principle of separation of church and state. Un-American oppression and disregard for the Constitution, vigilantism and sexism, have no place in our nation. Religious belief is not protected by the Constitution, as we’ve noted before:

…What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means–how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.
The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.
It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.
The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

Laws like the ones passed in Texas, and getting closer to passage in many other states, define one specific version of Christianity as “religious belief”, and seek to make it the state (and national) religion. That’s not what we’re supposed to do in America.

Next time, details of how the law is playing out in Texas–and beyond–and a primer in why these anti-choice laws are unconstitutional.

BLM protests are patriotic

We’ve noticed this week that one of our posts–The Boston Tea Party and a tradition of violence–which we posted back on November 21, 2011, has been getting a lot of traffic. We wonder if this is connected with people searching for historical justifications or damnations of public protest currently taking place in America. Let us say unequivocally that nonviolent protest in the name of liberty and justice for all is one of the greatest acts of patriotism that any person, anywhere, including the United States of America, can make. Black Lives Matter protestors are patriotic Americans desperately trying to save this country from those un-American citizens who would turn it into a race-based dictatorship.

We at the HP are taking part in Black Lives Matter protests nightly in our towns. It’s the very least we can do to fight against those who want an end to America as a land of liberty and justice for all.

The U.S. is founded on the Third Article of the Bill of Rights added to our Constitution, which says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Peaceful protests (“assemblies”) which demand change from our government (“petition the government for a redress of grievances”) are not just some kind of inheritance from the past. The right to peaceful protest against injustice is fundamental to our form of government, and our rights as citizens.

Gradually since the 1980s, and the presidency of Ronald Reagan, we’ve built a harmful paradox in America: the government is at once “the problem,” and needs to be utterly dismantled so people can be free of taxes and laws they don’t like; but at the same time, people who protest publicly against the government are ridiculed or threatened as dangerous outliers.

To be frank, it’s a specific kind of protestor who is threatened as un-American: the non-white, non-male, non-Christian, and/or non-straight protestor. As racist, sexist, and homophobic people attempt to make white straight Christian male the definition of “American”, the only American who has the right to protest because he’s protesting all those other “non” people, we find that neo-Nazi marchers are basically unopposed by police while everyone else (the “nons”) are met with military-level shows of force.

These anti-“non” protestors usually claim that they are the majority and therefore have the right of tyranny over everyone else. This claim grows in ferocity as white men steadily slip into the minority of the U.S. population, and is transformed into a call for oligarchy–government by the minority, oppressing the majority.

Just two months after the birth of this blog, in May 2008, we posted the first version of our tyranny of the majority post, in which we pointed out that our three-part government is set up specifically to prevent tyranny of the majority by empowering the judiciary to protect and uphold the rights of minority citizens. We’ve reposted this almost a dozen times since then, as gay marriage was legalized in individual states, and as Americans were heard wondering why the courts “pass laws” they don’t like. America is not an oligarchy. It’s a democracy. That’s the torch you must accept as it is passed to you if you want to claim that you are patriotic.

So when we see people searching out our post on the riots that characterized pre-Revolution Boston, we feel uneasy because we fear that our condemnation of those riots will be used to condemn Black Lives Matter protests. It should not be. Here’s why.

As we put it in our post,

When you read about the events leading up to the Tea Party, you quickly become a little uncomfortable with the readiness of Bostonians to physically attack people and destroy their property as the first means to their ends.

…This willingness to use violence got mixed reviews from patriot leaders. Some felt it was justifiable because it was in protest of an unfair government. Others felt it gave the patriot cause a bad name, and attracted lowlifes who weren’t fighting for democracy. All of them knew it had to be carefully managed to keep it under control: at any moment a mob nominally in the service of colonial leaders could become a force that knew no loyalty and could not be controlled by anyone.

It is certainly unsettling for modern-day Americans to read about the tactics our ancestors were ready to use when they believed themselves to be crossed. Mob violence is not something we condone today, and so much of the violence in colonial Boston seems to have been based not in righteous anger but in personal habit and popular tradition that it’s hard to see it as truly patriotic.

Patriot leaders like Samuel Adams knew they would have to keep violence out of their official platform, disassociating the decisions of the General Court from the purveyors of mob violence. The Tea Party would be a triumph of this difficult position.

The problem with pre-Tea Party Boston was that it relied on mob violence–people tearing down the houses of men who they felt were unjust, throwing bricks at them, pouring hot tar over their naked bodies and covering them with feathers, then forcing them to run through the streets or be beaten. That is mob violence. Those are acts of revenge. They do not further the cause of justice. They can never be actions taken in the name of justice.

Public protest is different from mob violence. Public protest can be violent or non-violent. Violent public protest is just one half-step above mob violence, because it cannot be controlled in a way that promotes justice. It is about revenge, not change.

Non-violent public protest is, by its very nature, controlled to force change rather than take revenge. Building are not burned, people are not beaten. It is the ultimate in democracy, and a legacy given to Americans by their Founders.

Unfortunately, there are always low-lifes who attach themselves to a non-violent protest, wait until it is peacefully ending, then start looting and throwing smoke bombs and forcing violence. Some do this to further their own ends of looting and/or expressing their contempt for human suffering and individual liberty. Some do it to make the protestors–the “nons”–look bad. People who have contempt for, and fear of, liberty and justice for all infiltrate the crowd to destroy the movement.

Those who protest against racism, sexism, homophobia, and religious bigotry are patriotic Americans, and the true inheritors of the American Revolution.

Freedom of religion is not protected by the Constitution

We’re rerunning this post in light of the many ministers in the U.S. who are disobeying the quarantines in place to stop the spread of the COVID-19 virus by holding religious services of more than 10 people–in some cases, many more.

One example may stand for many: in Los Angeles, Rodney Howard-Browne held a service in his Protestant Christian mega-church and, when arrested for showing “reckless disregard for human life… complained of ‘religious bigotry.’ The church maintains that the right to assemble in worship is a fundamental freedom that cannot be abridged even in an emergency, and cites early American religious dissidents, including Baptists and Quakers, as examples of the religious persecution that the nation’s founders would have found intolerable.”

This argument is so convoluted it takes time to disassemble. First, Howard-Browne and the many other Christian and Jewish religious leaders who have flouted the quarantine orders in the U.S. are actually applying the First Amendment correctly: as we explain in detail below, it protects the physical assembling of people to publicly worship in a building. This is rare. Most Americans believe that the FA protects religious belief (it does not, as we explain below).

But after that, the church’s argument goes off the rails. The right to physically assemble for worship can indeed be temporarily suspended to save lives during a pandemic. Forbidding public worship does not prevent people from practicing their religion. They may have to do it remotely, via Zoom, or privately at home, but they are still allowed to be Christian, Jewish, Muslim, or whatever religious identity they possess. No one is telling them that their religion itself is not allowed–just their religious assembly. Temporarily.

Referencing the Baptists and Quakers is meant to tie their 17th-century persecution to the megachurches’ situation, but the megachurches are not being persecuted, so it doesn’t hold.

Later in the article, this statement appears:

Legal experts say that while religious groups generally have wide latitude to worship under the 1st Amendment and state-by-state religious freedom laws, rules shutting down worship are legally sound if they apply across-the-board to all types of group meetings.

This is true. The FA protects gathering to worship, but temporary suspension of all religious assembly to help curb a pandemic is the kind of good sense the Founders practiced and would appreciate. It is a general ban, not one directed only at Christians, and to challenge it goes against biblical teaching, by Jesus and Paul in the New Testament, that Christians should obey the rules their governments create. Christians always forget that teaching when it doesn’t suit them, while remembering it with a vengeance when it does (when demanding that immigration laws be enforced, for instance).

Fighting a temporary ban that’s meant to save lives should not make one “proud to be persecuted for the faith like my savior,” as minister Tony Spell in Baton Rouge claimed. They’re not being persecuted for their faith. No one is preventing them from believing in Jesus. They are simply being asked to suspend in-person worship for three months. A strong faith should be able to withstand such a minor setback.

Here’s the original post:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

We all recognize this as the text of the First Amendment of the Constitution. Most of us put it into our own words as “the First Amendment protects freedom of religion.” But it does not. It protects freedom of worship, which is very different.

What the First Amendment does regarding religion is: first, it forbids our federal legislature from making any laws creating an official state religion; second, it forbids our federal legislature from preventing people from worshipping as they see fit. That’s what “free exercise” means—how you worship. Whether you go to a church, synagogue, mosque, or have a prayer room in your home, you are protected. If you wear a head covering like a yarmulke or turban as a form of worship, you are protected.

The First Amendment is all about physical forms of religious worship. It comes from a time when people would burn Catholic churches or refuse to let Jewish Americans build synagogues. It stops this, and stops schools from forbidding students to wear religious clothing.

It does not protect religion itself, or as we usually put it, religious belief. It does not protect anyone’s right to believe certain things. If one’s religion prohibits homosexuality or birth control, that is a belief, not a form of worship. Belief is not protected because belief is so amorphous. One could claim any crazy notion as a religious belief and demand that it be protected. We could say that our religion says women shouldn’t ride public transportation, or men should not be allowed to use public showers, or cats can’t be kept as pets, and we would have to be accommodated.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

We were glad to hear someone get this in a radio interview last week. The article starts badly, with the author saying

The question under current debate is what it means to “exercise” one’s religion.

If a football coach is not allowed to lead his team in a public prayer, or a high school valedictorian is not given permission to read a Bible passage for her graduation speech, or the owner of a private chapel is told he cannot refuse to accommodate a same-sex wedding, they might claim their religious freedom has been infringed.

The first two examples are clearly not worship. They are expressions of religious belief. Only the latter is worship, concerning what happens in a house of worship. The article continues:

One of the thorniest cases involves Catholic Charities, whose agencies long have provided adoption and foster care services to children in need, including orphans. Under Catholic doctrine, the sacrament of marriage is defined as the union of a man and a woman, and Catholic adoption agencies therefore have declined to place children with same-sex couples.

Again, doctrine is belief, not worship. Marriage being between a man and woman only is a belief, not a form of worship. Doctrine cannot be protected by our federal government. The article talks many times about “freedom of religion” clashing with “freedom from discrimination”, and that’s why: when you enforce belief, you enforce discrimination because belief can reach out beyond a religion to impact others while worship can’t. Put it this way: there’s no form of Catholic worship that impacts non-Catholics because non-Catholics aren’t in Catholic churches trying to worship. But there are forms of Catholic belief that impact non-Catholics, because non-Catholics will be impacted by them without ever setting foot in a church. Gay non-Catholics will be discriminated against by anti-gay Catholics if being anti-gay (a belief) is enshrined as a form of worship, and thus given protection by the First Amendment.

“Exercising” one’s religion means worship, plain and simple, and exclusively. It’s a literal word: you exercise (move) yourself physically to do something to worship God.

So Charles Haynes, director of the Religious Freedom Center at the Newseum Institute in Washington, is completely wrong to say “We may not like the claim of conscience, but you know, we don’t judge claims of conscience on whether we like the content of the claim. We are trying to protect the right of people to do what they feel they must do according to their God. That is a very high value.”

Americans may have a “right” to do “what they feel they must do according to their God”, but only when it comes to forms of worship. One political charter, like the Constitution, could not possibly protect all “values” and all “feelings” about what is right, because they will naturally conflict. And the Constitution does not deal in feelings, but in political rights.

Now here’s where the article gets good:

…Bishop Michael Curry, leader of the Episcopal Church in the United States, said he has witnessed the persecution of Christians in other parts of the world and doesn’t see anything comparable in the United States.

“I’m not worried about my religious freedom,” Curry said. “I get up and go to church on Sunday morning, ain’t nobody stopping me. My freedom to worship is protected in this country, and that’s not going to get taken away. I have been in places where that’s been infringed. That’s not what we’re talking about.”

Curry’s reference only to “freedom to worship,” however, missed the point, according to some religious freedom advocates. They say they want the freedom to exercise their faith every day of the week, wherever they are — even if it means occasionally challenging the principle of absolute equality for all.

“We can’t use equality to just wipe out one of the [First Amendment] rights,” Carlson-Thies says, “or say you can have the right, as long as you just exercise it in church, but not out in life.”

Bishop Curry gets it! He realizes that “worship”—getting up and going to church and not being stopped—is what is protected. “My freedom to worship is protected in this country”; that is correct. We were really gratified to hear him say this.

Then to have his opponents say that having “only” freedom of worship isn’t good enough is very telling, because they come right out and say they want freedom of belief—if only for themselves. They want to “exercise their faith every day of the week”? They have that right in the Constitution. What they really want is to “challenge the principle of absolute equality for all”; that is, they only want freedom of belief for themselves. Anyone whose beliefs clash with theirs should be shut down.

To say as Carlson-Thies does, that “equality wipes out rights” would be laughable if it weren’t so dire an example of double-speak destroying our democracy. Equality is “rights”. They are one thing. Our guaranteed equal rights give us… well, equality. How can guaranteeing everyone’s equal rights destroy equality?

His final statement tells us the truth: he wants to get rid of freedom of worship (“in church”) and put in freedom of belief (“in life”). But only for himself, and his beliefs. All others that clash with his would have to be discriminated against.

We need more Currys in this country, who understand that no democratic government committed to equality of opportunity can protect freedom of belief because that is the opposite of democracy. It is anarchy. Beliefs will always clash. The federal government cannot uphold any one set of beliefs over another. If equality feels like oppression to some people, we need to help them resolve that struggle. That’s the American way.

The Constitution does not protect freedom of religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Founders were wise enough not to get into religious belief. They just made a safe space for public and private physical worship.

We were glad to hear someone get this in a radio interview last week. The article starts badly, with the author saying

The question under current debate is what it means to “exercise” one’s religion.

If a football coach is not allowed to lead his team in a public prayer, or a high school valedictorian is not given permission to read a Bible passage for her graduation speech, or the owner of a private chapel is told he cannot refuse to accommodate a same-sex wedding, they might claim their religious freedom has been infringed.

The first two examples are clearly not worship. They are expressions of religious belief. Only the latter is worship, concerning what happens in a house of worship. The article continues:

One of the thorniest cases involves Catholic Charities, whose agencies long have provided adoption and foster care services to children in need, including orphans. Under Catholic doctrine, the sacrament of marriage is defined as the union of a man and a woman, and Catholic adoption agencies therefore have declined to place children with same-sex couples.

“Exercising” one’s religion means worship, plain and simple, and exclusively. It’s a literal word: you exercise (move) yourself physically to do something to worship God.

Now here’s where the article gets good:

…Bishop Michael Curry, leader of the Episcopal Church in the United States, said he has witnessed the persecution of Christians in other parts of the world and doesn’t see anything comparable in the United States.

“I’m not worried about my religious freedom,” Curry said. “I get up and go to church on Sunday morning, ain’t nobody stopping me. My freedom to worship is protected in this country, and that’s not going to get taken away. I have been in places where that’s been infringed. That’s not what we’re talking about.”

Curry’s reference only to “freedom to worship,” however, missed the point, according to some religious freedom advocates. They say they want the freedom to exercise their faith every day of the week, wherever they are — even if it means occasionally challenging the principle of absolute equality for all.

“We can’t use equality to just wipe out one of the [First Amendment] rights,” Carlson-Thies says, “or say you can have the right, as long as you just exercise it in church, but not out in life.”

Gay marriage, religious freedom, and the First Amendment

Recent events force us to stop in the middle of our series on what’s in the Bill of Rights to circle back to our post on the First Amendment-–the celebrity amendment. The Supreme Court’s ruling in favor of marriage equality has led to a firestorm of protest from people who say our First Amendment right to religious freedom is being tramped. They are wrong.

Let’s revisit the text of the amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The “free exercise” of religion means freedom to worship. That’s it. Our First Amendment religious right is to worship as we see fit. Since Congress will not “establish” a religion—i.e., make it the official state religion—everyone is free to worship as they wish.

Worship is generally defined as attending a religious service, but it can be extended to prayer, pilgrimage, wearing one’s hair a certain way, and dressing and eating a certain way.

What worship is not defined as is belief. This is the crucial misunderstanding so many Americans have. Worship is an outward manifestation of belief. But it is not belief itself. And that’s why the First Amendment says nothing about religious belief. Absolutely nothing at all. This is what makes separation of church and state possible: religious belief is not allowed to determine what services the state provides. This means people who have certain religious beliefs can’t be refused state services, and it means that people who have certain religious beliefs can’t refuse to provide state services to people their beliefs condemn.

That’s why all these “religious freedom” bills being passed are bogus. They enshrine beliefs as rights (this is nowhere in the Constitution) and then say the First Amendment protects those beliefs by allowing people to refuse to serve others because their religion says to. Beliefs are amorphous. They are not concrete activities like worship. Anyone can have any belief they want, and their right to express those beliefs is protected. But if that expression comes in the form of refusing state or federal government services, then they cross a line by saying the state or federal government must conform to their beliefs.

This is what’s happening when county clerks refuse to issue marriage licenses to gay couples. The clerks are saying their right to do so is protected, but it is not. If something is legal in this country, the government must provide it—end of story. If people feel they cannot do that, then they should resign their position (quit their job). You cannot refuse to uphold U.S. law on the basis of your religious beliefs. The First Amendment specifically says this by saying Congress shall establish no religion.

On NPR this morning, Tammy Fitzgerald, Executive Director of the North Carolina Values Coalition, said this:

Religious freedom is what our country was founded upon. That is why the Pilgrims came to America, because they were being persecuted in Europe for their religious beliefs.

Of course she is wrong on both counts. The Pilgrims, as faithful and patient HR readers know, came to America because they wanted the freedom to practice their own religion. This is not the same as freedom of religion. They did not allow any other religion than their own in Plimoth. The Puritans, which is who Ms. Fitzgerald probably was thinking of, did not allow freedom of religion either. Those two groups wanted to establish states where their religion was the sole state religion, and they did not tolerate any other religions. The same was the case in Virginia (strictly Anglican).

The Declaration of Independence does not mention religion one time. The Constitution did not mention it until the First Amendment was added. So it’s hard to say that our country was “founded” on religious freedom.

And, as we know, when the Founders wrote the First Amendment, they protected freedom of worship only, which, as we’ve made clear, is not the same thing as saying “your religious views are allowed to overturn federal law and you can do whatever you want if it’s part of your religion.”

Insisting that states pass laws protecting the right to do whatever people want so long as they say it’s part of their religion is a way to establish a state religion: it makes public access to government services dependent on the religious beliefs of government employees. That is NOT in the First Amendment, and Americans who know this must dedicate themselves to teaching those who don’t.