Our opinion: Another attack on the Establishment Clause

In 2016, the Vermont Legislature passed and then-Gov. Peter Shumlin signed into law H.620, requiring health insurance plans to provide free contraceptive coverage. However, in October, the Trump administration issued an executive order that would "provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/abortifacient services."

So much for the much-heralded "states' rights" trumpeted by the GOP and the Tea Party movement.

If you are unfamiliar with the evolution of the current debate over birth control, it began with the Affordable Care Act's provision requiring health insurance policies to cover the costs. The religious right's response culminated in the Supreme Court's 2014 Hobby Lobby decision, which extended an exemption to employers with "a sincere religious objection to certain forms of birth control." However, the court's majority opinion assumed female employees would still receive contraceptive coverage through an insurer. "But objections continued from religious liberty advocates who argued that faith-based employers would be 'complicit in sin' if their insurance policies paid for 'morning after' pills and certain other contraceptives that they believe are a form of abortion," wrote David G. Savage, for the Los Angeles Times.

"No one should be forced to choose between living out his or her faith and complying with the law," said Atty. Gen. Jeff Sessions following Trump's executive order. "Therefore, to the greatest extent practicable and permitted by law, religious observance should be reasonably accommodated in all government activity, including employment, contracting and programming."

The rule is a thread in the revived culture war, which includes who should bake cakes for whom and who can serve in the armed forces. But looking closer, "the contraception dispute is about power," notes Kathleen Sands, an associate professor of American Studies at the University of Hawaii at Manoa, writing for the Immanent Frame. The rule itself is really "about controlling women's bodies and devaluing all forms of sexual expression except between married heterosexuals who are trying to conceive — as opposed to 'defending life,'" agrees Mark Hulsether, a professor and director of American Studies Program at the University of Tennessee, also writing for the Immanent Frame.

The executive order and the over-arching culture war really have nothing to do with religious freedom — they about erecting strong legal protections for one and only one set of religious beliefs — those of evangelical Christians who claim they have the moral authority due to the founding, they claim, of the United States as a "Christian" nation. Opinions on that claim are as varied as the founders themselves, so we are not going to go down that rabbit hole at this time. However, the Constitution, written by those same founders, calls for the protection of all religious expression (or lack thereof, we might add). The Establishment Clause of the First Amendment prohibits government from encouraging or promoting religion in any way.

It is the Establishment Clause itself that is currently under attack. The culture war, legislation attempting to circumvent the Establishment Clause, and executive orders such as the one issued by the president are meant to "subordinate the rights of LGBTQ employees, same-sex couples, women with reproductive health needs ... to the asserted consciences of their employers or providers," writes Garrett Epps, for The Atlantic.

Those who are pushing "religious freedom" on those who aren't asking for it should be continually reminded that "individual beliefs in the validity of same-sex unions, in the importance of protecting LGBT individuals from discrimination, and in guaranteeing women control of their own fertility, have religious and spiritual roots too," maintains Epps. "Under the Constitution, beliefs are created equal. And a law that explicitly protects discrimination against those believers relegates their marriages and their consciences to second-class status."

As with Citizens United, writes Finbarr Curtis, an instructor of religious studies at the University of Alabama, for the Immanent Frame, "the rhetoric of freedom works to expand the power of private institutions acting beyond the scope of democratic deliberation and accountability. ... In practice, then, the rhetoric of private freedom that draws its persuasive force from its claims to protect individual liberty actually works to empower corporate entities that are free to do whatever they want without having to consider competing visions of public goods."

There is some hope that this latest salvo against reproductive freedom, women who want to make their own choices, and the Constitution itself, will not become the law of the land. Attorneys general from nearly 20 states have signed on to a suit filed by Pennsylvania against the Trump administration over the rule, TJ Donovan of Vermont among them. We urge our readers to support the state's role in protecting the rights of all Americans, and not just the "religious freedom" of the self-righteous with the biggest purses or the loudest voices.

The Constitution is meant to protect everyone, especially the most vulnerable. We should cheer the champions who fight for all of us and decry the attempts of a mighty few to subvert the very essence of freedom, and leave religion out of it.


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