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. That’s perfectly legal.
Or suppose a friend’s teenage daughter is three months pregnant, and suddenly begins bleeding. My friend calls the ambulance, but the ambulance driver says he won’t take her, because it looks like she might require an abortion, and the driver doesn’t want to “assist” in an abortion. Also perfectly legal.
Or suppose my friend is transgender. She’s been seeing her doctors for years, but when she’s traveling for business and needs emergency care, 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.” That’s right—also perfectly legal.
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That quotation comes from a 2016 paper co-written by Roger Severino, then the director of the DeVos Center for Religion and Civil Society, Institute for Family, Community, and Opportunity at the Heritage Foundation. These days, Severino is the director of the Office of Civil Rights of the Department of Health and Human Services.
And today, he announced a new office within his department—the “Conscience and Religious Freedom Division”—to prosecute precisely these kinds of claims, not on behalf of people denied medical attention, but on behalf of doctors, nurses, drivers, and hospital administrators who seek to deny them.
Like Attorney General Jeff Sessions’ civil rights division, which has focused on claims of discrimination against white people, Severino’s office of civil rights is focused on taking away civil rights. This is the Christian Right’s presidency, and their “alternative facts” prevail.
Of course, that’s not how Severino—a long-time conservative activist who has sought to take away my right to marry, my right to adopt children, and my right to be free from employment discrimination—puts it. To him, the real victims of discrimination are those ambulance drivers and nurses, who might otherwise be forced—because they receive taxpayer money—to provide medical care they object to on religious or moral grounds.
“No one should be forced to choose between helping sick people and living by one’s deepest moral or religious convictions,” Severino said today, “and the new division will help guarantee that victims of unlawful discrimination find justice. For too long, governments big and small have treated conscience claims with hostility instead of protection, but change is coming and it begins here and now.”
To reiterate, these religious exemptions are already on the books. They began as far back as 1970, but gained steam particularly after Roe v. Wade legalized abortion nationwide. Immediately, Christian Right organizations sought religious exemptions to the new laws, just as they had sought them to the civil rights laws of the 1960s.
Except that in the case of abortion, they won. At first, these “conscience clauses” only exempted doctors and nurses from having to perform abortions. But quickly, they spread to exempt entire hospitals and hospital chains, and covered not just abortion but contraception and family planning counseling as well. Within a decade, almost anyone was exempted from almost anything related to women’s health.
That same playbook has been used against LGBT people in the last ten years. With every advance in LGBT equality, the Christian Right has sought religious exemptions to the new legal protections. Now, not only can churches and religious leaders refuse to perform a same-sex marriage (which has always been the case), but any religiously affiliated organization can refuse to have anything to do with one, private corporations can refuse to respect them, and, depending on what the Supreme Court says this year, private individuals can turn same-sex couples away from their businesses.
Moreover, the Sessions Justice Department has said that they will not enforce any civil rights laws at all when the offender has a religious justification for breaking it.
That is also why today’s announcement is so significant. State and federal governments all have limited resources, and are always performing triage, allocating time and money to some priorities over others. A new office devoted exclusively to these conscience claims—not, for example, unequal access to vital healthcare services, anti-trans discrimination, or any number of other issues—means more conscience claims will be processed and prosecuted.
According to Severino, this shift has already taken place. “From 2008 until the 2016 election,” he said at the ceremony celebrating the opening of the new division, “there were 10 complaints of conscience violations. Since then, we have received 34.”
Those are tiny numbers, of course, but they reflect what Severino called a “culture change” at HHS and throughout the government. “We are not going to allow people of faith to be bullied and targeted anymore,” he said.
Of course, one could argue that it’s the people of faith bullying and targeting women and LGBT people, not the other way around.
But that inversion of victim and oppressor is typical of the religious exemptions movement, which has had unprecedented success in 2017 and 2018. At the ceremony, Severino cited religious exemptions for Quakers from having to serve in the military—but the Quakers weren’t singling out others for discrimination. Severino also cited Dr. Martin Luther King, Jr.,’s “Letter from a Birmingham Jail”—but Dr. King wasn’t asking that African Americans be allowed to discriminate against other people and deny them services.
Most egregiously, Severino cited an alleged Nazi practice of forcing Jews to write sacred Hebrew texts in the soles of their shoes, thus forcing them to transgress Jewish law with every step they took. But the parallel to a doctor wishing not to counsel a transgender person in hormone therapy is inapt. The Jewish victim is not harming anyone else; the doctor is.
And even when there’s another doctor or nurse or ambulance or hospital or pharmacist available, the dignitary harm of being told “no trans folk allowed” or “contraception is morally evil” remains. That’s the point of the Masterpiece Cakeshop case currently before the Supreme Court: it’s not about one wedding cake, it’s about bakeries being able to hang a “no gays allowed” sign on the door.
With the opening of the new office, HHS has taken a stand—the same one Severino has been pushing for many years—on the side of the religious pharmacist, against the woman seeking birth control; on the side of the pediatrician who won’t see my daughter.
“Everyone is entitled to an equal seat in American civic life,” Severino said at the ceremony today. But some seats are more equal than others.
