Biden has a Big Job Ahead of Him: Legislative Agenda for 2021
Dianne Post, Secular AZ Legal Director
The Americans United for Separation of Church and State group has put out an ambitious agenda for President-Elect Biden. The Christian nationalists have been working on their agenda for decades and they succeeded in imposing much of their rule during the previous four years. In respect to the Constitution and democracy, this must be undone.
Religious freedom cannot mean that one particular religion gets to do everything it wants to the exclusion of the rights of all others. Yet that is where we have been going. The do-no-harm principle has always been a guiding light to allow believers to practice their faith but not harm non-believers. This went out the window with this Supreme Court as most recently illustrated by their decision to allow churches to meet in violation of the COVID pandemic rules.
In other words, their beliefs can be the excuse to harm every person in the country with the increased spread of the virus; the increased burden on first responders, medical personnel, and essential workers; and the increased costs that will flow from these spreader events. The rest of us will pay for their foolishness; some of them will pay with their lives.
In 2019, a do-no-harm bill was introduced into Congress (HR 1450 / S 593) to restore the balance of powers and protect the majority of Americans. It will have to be re-introduced in the new Congress. Sixty percent of likely voters said protecting the separation of religion and government is either one of the most important issues to them personally or very important to them.
Biden Can Undo Damage by Executive Order
Biden can undo some of the damage by executive order. The discriminatory Muslim Ban is one such act. It has led to families being separated, people being denied access to medical treatments, students and researchers denied permission to study here, and doctors and medical professionals who could help care for COVID-19 patients being prohibited from entering the U.S.
AU has suggested that Biden sign an order setting out principles of religious freedom. We already have that. It’s called the First Amendment. But he can revoke the legal memoranda issued by the Attorney General including the horrific international statement of religious freedom that prohibits reproductive care for women and puts the tenants of one religion above all others.
The current administration has proposed regulations at nine agencies that would allow such discrimination. These can be stopped. The HHS waiver that allows taxpayer-funded child placement agencies to reject potential parents who don’t meet their religious test can be withdrawn, but the Supreme Court has that case and will unfortunately be the ultimate decider. There is a notice of nonenforcement and proposed rule to eliminate nondiscrimination that can be withdrawn, but it may be moot ,depending on what the Supreme Court says.
Given that the Constitution Article VI says that there can be no religious test as a qualification to any office or public trust, it is pretty astounding that taxpayer-funded contractors and grantees can use religion to discriminate. There is a proposed rule to expand the EEOC religious exemption clause that should be withdrawn. And there is an Attorney General opinion that claims RFRA demands that federal agencies be able to discriminate with taxpayer monies. This should also be withdrawn and the provisions of the Constitution in Article VI be adhered to.
While the administration was never successful in overturning the Johnson Amendment prohibiting churches from endorsing candidates, the IRS is not vigorously enforcing it. They must be so ordered.
Whose Life is this Anyhow?
Health care is a right not a privilege and the government should fund it fully but right now, many exemptions exist to allow everyone from pharmacists to doctors to refuse care based on their alleged beliefs. This particularly harms women and the LGBT community.
Arizona, too, has many of those same laws including that the hospital doesn’t even have to tell you that they won’t abide by your end-of-life decision. Really – whose life is this anyhow?
The Denial of Care Rule must be rescinded along with the regulations exempting birth control in health care plans. However, again the Supreme Court has failed to protect this right and allowed such discrimination in Hobby Lobby and Little Sisters of the Poor.
Using taxpayer money to pay for religious schools has been an on-going battle with AZ ground zero. The unfortunate Espinoza decision from the Supreme Court shows we cannot rely on them to uphold constitutional principles so we have to stop all voucher programs. Two state courts have refused to follow this decision (Ohio and Maine).
Both courts have said what the Supreme Court should have said – we are not discriminating against these schools because they are religious schools, we are prohibiting state taxpayer monies to go to these schools because of what they would do with the money i.e. teach religion and proselytize which is prohibited by our state constitution. The partisan nature of this Supreme Court has resulted in the loss of respect for its opinions.
Religious Favoritism Must End
Unfortunately, some issues cannot be resolved by executive order. This includes cases at and making their way to the Supreme Court, asking that faith-based organizations receiving government funds to deliver government services be allowed to discriminate according to their claimed beliefs.
AZ has similar laws that the state cannot discriminate against faith-based organizations when handing out taxpayer money, but the faith-based organization can discriminate when doing the contracted work. This religious favoritism must end.
One thing the incoming administration can do is ensure that cabinet picks and incoming administration staff reflect the vast diversity that is the U.S. today, including atheists. Likewise, judges must be nominated and confirmed who believe in the Constitution — including the First Amendment — and who represent our entire diversity.