September 3, 2023
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Rags and Bones

by Jonathan Wallace

Religion as solvent of other rights

The recent Supreme Court decision allowing a web designer to refuse to design a wedding site for an engaged gay couple is actually one of the most radical decisions ever issued by any Supreme Court since the institution existed. This is because of an inference so obvious to me that I am surprised not to find it being advanced and discussed by the entire chattering class already.

All you have to do is make a simple connection with another principle of the First Amendment's religion clause. Courts are not entitled to determine what is or is not a "true" religion. If they were, this itself would promote the "establishment" of religion forbidden by the First Amendment. It is literally accurate that you and I could found the Church of Sacred Breath, which worships air, tomorrow, and the day after, receive treatment equal in a court case to that accorded Judaism or Christianity.

If it is a principle of our sacred text that inability to breathe is caused by sin and can only be cured by laying on of hands, we are entitled by existing precedent to refuse to cover albuterol in our health plan and, should we found a hospital, to refuse to treat respiratory problems. This is clear from case-law prior to the current Trump supreme court that allowed an order of nuns to refuse to cover birth control for secular employees in their plan, and hospitals to decline to provide abortions in states where they were legal. There is no way to distinguish the albuterol case from the birth control one.

(This should be a footnote, but I don't know how to do them in my primitive, hand-coded HTML. Yes, you reply, but how about Christian Scientists being ordered to bring their children to the hospital for life-saving treatment? I have two answers: these precedents may be dissolved now also by the primacy of religion. If not, they will be distinguished. The excuse for discrimination in services is that, theoretically, the gay couple can find a web designer elsewhere, or buy groceries or insurance from a more willing company. (Subfootnote: This of course is specious anyway, because the new precedent would allow everyone to discriminate, in fact to boycott and starve them.) Alternately, the precedent will be distinguished on the grounds that those cases involved saving a child's life, while the web designer case only centers on the question of whether someone can be forced to provide services which offend their principles, etc.)

As a consequence, we are not far from stores being permitted to refuse to serve gay people, real estate brokers dceclining to sell them homes, and insurance plans denying coverage, all on religious grounds. And, if gay people, why not black people or Jews? We have already had the case of the adoption agency which wouldn't assist a Jewish couple.

What is happening, also evident in the abortion case, is that the right of religious freedom has been promoted to a dominant status in which it defeats, and in fact dissolves, all others, including equality, due process and (ironically, considering the First Amendment excuse) secular freedom of speech.

Affirmative action

The Supreme Court decision wiping out affirmative action promotes another far right tenet: similar to the way the web designer case reintroduces bigotry under the cover of religion, the affirmative action case brings back segregation under the cover of "color-blindness".

Sometimes a single anecdote serves as a metaphor or thought experiment effectively critiquing a doctrine. Here is an instance. In the late nineteenth century, nuns founded a nonprofit school in New York City championing diversity and equality, and proudly, into recent times, assured an integrated, multiethnic student body. Some years back, the school ran into financial difficulties and converted to private, charging increasingly high tuition commensurate with other New York private schools. When a reporter visited, he noticed that the class was entirely white. When he pointed this out to the principal, the response was: We had not noticed. We are color-blind.

Thirty years ago, on the deck of a ship in the Galapagos, I had an unforgettable conversation with a woman, I think from California, who was trustee of a private girls' school which had a program seeking out young women on reservations and giving them scholarships. "It never seems to work out," she said. "They don't stay". I already understood a principle I have stated over and over again in the Spectacle: All problems should be solved as far upstream as possible-- and, much of the time, trying to solve them downstream is futile. "Point source" pollution should be prevented where the poison flows into the river, not by putting a filter on your sink faucet. Disregarding poverty and inequality on the reservation, then inviting a young person who hasn't received the basics needed to endure it, to attend an exclusive private school was in fact a recipe for failure. I remember my conversation partner being rather surprised when I said that: it was something obvious she had not thought of herself.

Inequality is growing in this country. Certainly affirmative action programs tended to be very flawed-- they were a downstream attempt. Historically, very little has ever been done, and less done effectively, to solve the problems of poverty upstream in America. But the elimination of affirmative action will only make things worse, while promoting an official blindness-- now "a feature", not a "bug", as we used to say in the software industry.