“Religious Freedom” Laws Are Unraveling Civil Rights as We Know It

By Stephanie Guilloud
July 20, 2019

"Moral convictions" and individual conscience are being used as a form of assimilation and control.
Photo by Lauren Walker

What if firemen decided not to hose down certain buildings or go to certain neighborhoods based on their personal beliefs? What if paramedics could legally choose not to give someone life support because they are trans or using drugs in a way that offends their moral code?

These scenarios are possible and protected under new bills that declare individual morality and personal convictions paramount to federal and state regulations, local governance decisions and basic human rights.

Legislation passed in Texas protects “religious liberty and moral convictions” of individuals and businesses. SB 1978, signed into law on June 10, prevents government entities from taking actions that could adversely affect individuals or businesses based on their commitment to a religious or moral conviction.

It has been dubbed the “Save Chick-fil-A bill” because the San Antonio City Council voted to block the restaurant from the city-owned airport in solidarity with members of the LGBTQ community because of the company’s anti-LGBTQ positions and its funding of anti-LGBTQ institutions. Under the new bill, Chick-fil-A could now get the Texas attorney general to file for damages, and the Federal Aviation Administration is already investigating Chick-fil-A’s exclusion at U.S. airports.

This legislation coincides with multiple anti-abortion bills sweeping across southern states. In Georgia, legislators banned abortions after six weeks. People who decide to have abortions and the health care practitioners who provide them might be criminalized and arrested for murder. In Alabama, legislators took it further, criminalizing abortions even if rape or incest was the cause of the pregnancy. Similar bans have passed in five other states.

The Chick-fil-A bill is one of many tactics inspired by the Congressional Prayer Caucus’s Project Blitz playbook. The playbook lays out 20 policy templates, from establishing “In-God-We-Trust” options for license plates to eliminating adoption opportunities for LGBTQ people and criminalizing abortion.

Two prominent Southern Baptist congressional representatives lead the Prayer Caucus, and their playbook lays out some pretty vile “data” about LGBTQ people, making assertions about physical diseases, mental health, “moral instabilities” and even pedophiliac tendencies. It claims that supporting transgender children to express themselves is a form of child abuse, and that adoption is only safe in a married, heterosexual home.

On a federal level, the Conscience and Religious Freedom Unit was established in 2018 within the Office of Civil Rights in the federal Department of Health and Human Services. The new unit is an institution that is reshaping civil rights, originally intended to be a set of legal protections against discrimination on the basis of race, gender, ability, age or sexuality. The unit is part of a broader strategy to institutionalize the rights of conscience and moral convictions.

The Chick-fil-A bill, abortion bans and laws protecting the rights of conscience are being implemented on the city, state, and national levels to legitimize individual moral convictions and protect human rights violations, exclusion, restrictions, isolation and punishment as a new form of social control in an era of crumbling economic systems, deep political instability and increasing climate disasters.

As power structures reorganize themselves, what kind of framework do they need to justify and enforce social control to maintain power?

Authoritarianism requires a narrow gate of citizenship. Someone needs to be blamed for the deterioration of U.S. economic and military power. LGBTQ folks, Latinx, Black people and Muslims are thus identified as threats. Foot soldiers on the ground in every type of institution must be deputized to isolate them as “sexual deviants, “criminals” and “terrorists” who are morally rejectable. Citizenship based on moral convictions and individual conscience might be enough to assimilate and control a wide swath of our diverse peoples.

We have to resist this trend, and if we only see the specific indignities, we won’t be able to identify the opportunities to fight it.

Laws Defending Bigotry

The religious freedom law in Texas is not the first or only legislation of its kind. Religious liberty laws have been introduced and passed as legislation, constitutional amendments and court decisions since the Clinton administration introduced the Religious Freedom Restoration Act in 1993. Although the Act was originally intended to protect Indigenous religious practices, the laws introduced over the last 10 years have been an indirect subversion of protecting “freedoms” to allow individuals, businesses and state officials to claim religious liberty as a justification to discriminate.

A famous legal case in Colorado protects a bakery from having to make a cake for a same-sex wedding. Though challenged by the Colorado Commission on Civil Rights in 2012, the Supreme Court ruled to reverse the Commission’s decision in 2018.

Additionally, the Hobby Lobby decision in 2014 at the Supreme Court recognized the claim of the for-profit business owners that their religious beliefs circumvented labor laws and allowed them to deny benefit coverage for employees’ reproductive health. A more recent case in South Carolina exposes a publicly funded adoption and foster agency refusing a lesbian couple from fostering a child in state custody.

Thirty-one states have enacted versions of the Religious Freedom Act by legislation or court decisions. According to the Congressional Prayer Caucus playbook, “religious liberty” decisions have increased from six laws passed in 2016, to 60 in 2017 and 2018.

These laws are often seen as strictly impacting the LGBTQ community, oftentimes because supporters assert their right to legally defend people’s religious beliefs and bigotry around marriage. But the ongoing national trend we’re seeing now is bigger: We all have something to lose when people are socially emboldened and legally protected by state and federal laws to discriminate, deny and reject other people.

Laws Eroding Civil Rights

These bills and their roots are not just about one identity group. They are also not about protecting religious liberty. The right to practice a religion freely is not the same as the right to impose an ambiguous, impossible-to-define set of morals onto the public sphere.

The people behind these bills are the same actors who brought us the Muslim ban, have worked to pass Islamophobic bills in southern states, and blocked the construction of mosques on the basis of unsubstantiated fear and religious intolerance. These laws and their backers are propagating a narrow, fundamentalist vision of Christian values to control publicly funded institutions and eliminate civil rights as we know it.

But before we craft a justifiable argument that we could use these laws to our own ends and sue the state to support a more progressive set of convictions (such as providing sanctuary to migrants as part of a moral code), please remember what happened to Marissa Alexander and Trayvon Martin in Florida in 2012.

Laws are twisted to support the interest of those in power. Stand Your Ground laws do not apply to Black women protecting themselves from abusers, but they do apply to men who murder unarmed children. We live in a racist and exploitative society, and laws are not written or interpreted to reflect objective truth. They are weapons of war to control territory, resources and people.

These policies dismantle existing protections that were hard won by social movements. In the 1960s, southern Black organizers fought for the freedom of all people from institutional racism, denial of services and segregation. They strategically utilized the federal government to challenge the states’ rights frameworks in the post-Confederate southern states that legitimized the brutality of the segregated Jim Crow South.

The federal protections they won are not just being rolled back; civil rights and legal protections are being fundamentally re-defined to protect something very different from what our predecessors fought for. The threat that we need to pay attention to is the manipulation of a hostile social moment to institutionalize social, legal and economic frameworks that control particular populations — and conservative legislators are using public resources to do it.

Redefining Civil Rights

The Conscience and Religious Freedom Unit was established in early 2018 at Health and Human Services, and, not accidentally, within the department’s Office of Civil Rights. A vehement homophobic and transphobic lawyer, Roger Severino, directs the office and worked at the billion-dollar fundamentalist think tank, the Heritage Foundation, and an embedded office within the Foundation: the DeVos Center for Religion and Civil Society in the Institute for Family, Community, and Opportunity.

The civil rights office is changing the very definition of civil rights and undoing decades of movement wins. Religious liberty is one of the office’s three pillars along with “freedom from coercion” and protecting the “rights of conscience.” The intent is not ambiguous. The Trump-era civil rights office’s unrelenting pursuit of cases that prove threats to religious liberty has been a radical shift from their previous mission to pursue claims related to racism, sexism, ageism, privacy and disability access.

The subversion of civil rights is a major tactic in this era. While the office is designing and implementing the framework to end abortion, reproductive health care access, gender-affirming surgeries and adoption by queer and same-gender couples, the whole federal infrastructure is also establishing these rules.

A separate civil rights office within the federal Department of Education has already ruled against the protection for transgender students. Likewise, the Department of Housing and Urban Development has revised requirements about housing to allow discrimination against LGBTQ people in homeless shelters and emergency shelters during disasters.

The language of “rights,” of course, has been used to subvert justice for a long time in the South with right-to-work laws to undermine unionization and collective bargaining, or “right-to-choose” charter schools. While LGBTQ folks are an easy target for these religious liberty bills, this trend isn’t likely to end with us. Eventually, such laws will be used against others.

Like many of the major Trump-era achievements, the right wing’s most insidious victories are flying under the radar. The media-fueled chaos and confusion serves the goals of bigger power brokers than Trump, and it’s important to make the connections so we can see what we’re up against.

Why Boycotts Aren’t the Answer

The opportunity here is to move beyond legislative protections or mandates. We have to reimagine how we can protect ourselves, our bodies, our autonomy and all institutionally marginalized groups against state-level measures and federal institutional exclusions at the same time. We also have to come together to beat it.

But please do not bother boycotting Chick-fil-A. Despite a very public antagonism against the company related to their anti-LGBTQ positions, their sales are up and the restaurant is growing at a faster rate than any other fast food chain.

Likewise, do not boycott Georgia. When the state legislature is banning abortions and threatening to make it a national reversal of rights, do not abandon the South. Instead, invest in the South. Investment needs to flood grassroots groups that organize on the ground in Georgia, Alabama, and so many southern states on the front lines of these fights.

The South is often perceived as a lost cause to be pitied or shamed. But the region has long been a testing ground for how fast and how broad these dangerous bills can move. In fact, these bills have been weakened by southern movements’ struggle against them. They are being tested and resisted on the ground. But these laws are being institutionalized at the federal level without any oversight measures.

Remember that it was powerful grassroots movements in the South that won civil rights protections in the first place, fighting against a social, legal and economic framework called Jim Crow, and it’s important to remember that southern movements are on the front lines of this fight that affects us all.

Resources need to shore up southern institutions and organizations that understand and organize on a regional level, not just state by state. They are counting on us to understand these attacks as one-offs and state-specific.

As reported by The Guardian, a primary architect of these bills — David Barton, the Texas-based founder of a so-called “pro-family” organization called WallBuilders — told legislators, “The [religious freedom bills] are gonna be things people yell at, but they help move the ball down the court, really if we can do this, get this going with all the states, it’s kind of like whack-a-mole for the other side, it’ll drive ‘em crazy that they’ll have to divide their resources out in opposing this.”

Barton is pointing to a weakness in single issue and identity-driven politics. This is a plague that spreads, not a wound that can be isolated or cut out. If we see the Muslim ban as only about Islamophobia, the abortion ban as a women’s issue, the border crisis as only affecting Mexicans and Central Americans, police violence as a Black problem, and these so-called religious liberty bills as only about LGBTQ people, we are not seeing the full scope of the authoritarian strategy, and our resistance strategies will be less effective.

Our strategies need to match our opponents’ scale. A boycott is a useful tactic if you have the numbers and if you could actually affect the problem by shutting a fast food chain down. It might make us feel better as individuals to refuse these businesses our $7.99, but part of their strategy is to play to individuals, individual behavior, and individual righteousness that can be politicized and weaponized.

The religious freedom strategy is about way more than buying a chicken biscuit or ordering a wedding cake. Each religious liberty law creates a new precedent that elevates an individual’s morality code to overrule social responsibility and the collective good.

We need to fight their one-by-one erosion of human rights, access, and dignity with collective action that creates something more substantial and represents a greater power.

Taking Action

We have to build up forces beyond identity-based assaults on women, LGBTQ people, immigrants and Muslims, and we have to see every assault within a racialized context.

In the South, racial and economic justice institutions like my organization Project South, but also organizations like Highlander, SpiritHouse, Muslims for Social Justice and reproductive justice organizations led by Black women like Sister Song, understand our role within a continuum of the Black radical traditions that have resisted slavery, Jim Crow, and the current social control strategies that take the form of prisons, police and state violence.

Our movements are growing every day despite the immensity of attacks and distraction, and we are investigating patterns, root causes and nonreactive responses. We are digging deeper than the morning roundup of tweets and headlines, and looking at what is happening behind the curtain. We are growing solidarity, not abandoning each other in our times of need.

The Southern Movement Assembly, a social movement collaboration made up of organizations and communities across all 13 southern states, offers a multiracial, multi-issue vision for new economies, people’s democratic practices, and communities that are protected and defended from violence. We are building a regional infrastructure and grassroots governance to assert and exercise our humanity and dignity while we fight against the direct attacks.

There are many fights ahead as we rush to 2020. Let’s grow initiatives that are not only about candidates or specific legislative hits but about a vision of the world that echoes in southern freedom fighters’ mouths: We are stronger together and nobody is free until everybody is free.


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