Trump Administration Creates an Office of Discrimination

Just over two months ago, Roger Severino, head of the Office of Civil Rights at the Department of Health and Human Services and a longtime conservative activist, announced the creation of a new division to investigate claims of “religious discrimination” against doctors, pharmacists, and hospitals who deny services to people like me.

Together with Severino’s announcement came a formal regulation designating the division’s new powers. Tuesday, March 27, was the last day for public comment, and an astounding 69,688 comments had been received as of Monday night. Unfortunately, as part of the hitherto-unprecedented practice of the Trump administration, those comments have been hidden from view, so we have no idea what they say.

Here, however, is what I said in mine:

As a columnist, professor of religion, attorney, and rabbi, I write to express my deep opposition to this proposed grant of power. I have studied the religious exemptions movement for many years, including the work of Mr. Severino himself, and wish to strongly object to this provision on political, constitutional, and moral grounds.

First is the political irony of this massive grant of authority taking place during an administration supposedly opposed to the administrative state. This provision inflates the state's power, doing so on the side of those who seek to deny services to people with whom they disagree. It is dangerously wrongheaded.

It is also insincere. Mr. Severino fought against abortion, homosexuality, and LGBTQ issues his entire life. To claim that this new action is actually about religious freedom is totally disingenuous. It is about the underlying rights and issues. He is of course entitled to his views, but to pretend they are about religious freedom when really they are about religious doctrine on sexuality is, simply, a lie.

Why is it that “religious freedom” only comes into play when a woman or gay person is involved? Why is Mr. Severino’s office focused entirely on abortion? Is it really just a coincidence? This is politics, plain and simple.

Second, these purported instances of religious discrimination are really about civil rights. I’m sure you know the history, but I’ll repeat it for those who don’t. For 20 years, the First Amendment’s guarantees of freedom of conscience ended where another person’s freedom began. All of us are free to worship, believe, and practice religion as we wish. But when my religion tells me to hurt you, there my freedom ends and yours begins.

That was true until just four years ago, when the Supreme Court ruled that Hobby Lobby, a corporation, had a right to religious freedom, and could deny insurance coverage to women who might use it for contraception. Suddenly, the inviolable boundary line of “live and let live” was crossed.

That was a shocking new development. And yet, I want to emphasize that people are harmed even when there’s another alternative available.

Suppose a transgender friend of mine is traveling and needs emergency care. To her surprise, she’s denied treatment because the hospital chain, “as a matter of faith, moral conviction, or professional medical judgment, believes that maleness and femaleness are biological realities to be respected and affirmed, not altered or treated as diseases.” Those are Mr. Severino’s own words, from a paper he wrote when he was working for the DeVos family.

Even if there’s another hospital next door, my friend has suffered “dignitary harm”—meaning her human dignity has been compromised. She’s probably also traumatized. Hanging a “No Gays Allowed” or “No Transgender Allowed” sign on the door, which President Trump says is perfectly OK and which this new office would ensure is perfectly okay, sends a clear message that people like my friend are not equal citizens of this country.

Third, this new action is religiously unrighteous.

When Jesus was asked whether it was permissible to use coins with Caesar’s image on them—a direct violation of the Ten Commandments—he said that his followers should render unto God what is God’s and render unto Caesar what is Caesar’s. In other words, they should follow the secular law. That is part of the social contract we all “sign” as citizens. When I enter into the marketplace—especially if I’m providing life-or-death health services—I obey its neutral laws, not my religion's specific strictures. The “religious exemptions” movement ignores Jesus’s teaching and says that Christians should be able to excuse themselves from laws.

Jesus didn’t turn away Mary Magdalene, who seems to have had a morally dubious past. Jesus didn’t refuse to cure the faithful centurion’s “servant” even though, following Roman custom, the two were almost certainly in a same-sex relationship. In fact, Jesus didn’t turn away anyone, even when he radically disagreed with them.

So why do we need a government office to protect those who disagree with Jesus so intensely that they turn away those whom he would welcome? Why are the “least of these,” those who are minorities in this country and seeking the same treatment as everybody else, now going to be attacked by a government office?

Finally, this is personal. In addition to being a rabbi and professor, I am a happily married gay man with a baby daughter. Under this proposed rule, the Department of Health and Human Services will fight on the side of an emergency room that wishes to refuse to admit my daughter for treatment. That is dead wrong, morally as well as legally.

Suppose my baby daughter gets sick one evening. We bring her to the nearest ER, but the doctors there say they won’t treat the child of a same-sex couple because they have moral objections. What are we supposed to do? You tell me.

I know full well that this proposed rule will go through regardless of the 70,000 comments received, most of which I assume are against it. However, let it be known that many of us are watching, and maybe God is watching too. Your immoral and insincere actions will not be forgotten. Or forgiven.