//  7/2/18  //  Commentary

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court held that the Colorado Civil Rights Commission’s application of Colorado antidiscrimination law violated the First Amendment (specifically the Free Exercise Clause).  The Court’s conclusion depended, in significant part, on some statements that one commissioner had made in the course of the proceedings.

Justice Kennedy’s opinion pointed to this statement as critical evidence that the Commission’s proceedings were tainted by religious animus:

“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The anti-animus principle has deep roots in constitutional law, and an important role to play in safeguarding against religious discrimination.  But the anti-animus principle cannot mean that it is always out of bounds to criticize someone who uses religion as a justification for particular actions, or wrongs.

A case study helps to explain why.  Consider Jeff Sessions’s defense of the administration’s forcible separation of families.  Families were, and perhaps still are, being separated at an alarming rate (almost 60 children each day) with no apparent plan to reunite them; parents were deported while their children stayed in the United States, making reunification almost prohibitively difficult.  Parents were also lied to, and told that if they agreed to deportation, they would be reunited with their children (they were not).  Children were taken away “for baths,” to never be returned; some of the children are apparently as young as three months old.  They are traumatized, sometimes sobbing uncontrollably, even long after being separated from their parents.  Children are kept in cages (or as Breitbart likes to call them “chain link partitions”); one father killed himself after being separated from his family.  And the administration separated families in order to deter future migration, even though separation does no such thing.*

In a public speech, which is also publicly posted to DOJ’s website, Sessions defended the administration’s separation of children from parents by saying:

"I thought I’d take a little bit of a digression here to discuss some concerns raised by our church friends about separation of families.  Many of the criticisms raised in recent days are not fair, not logical and some are contrary to plain law. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for His purposes.  Orderly and lawful processes are good in themselves. Consistent, fair application of the law is in itself a good and moral thing, and that protects the weak and protects the lawful."

Is it wrong to criticize Sessions’s invocation of the Bible to justify the administration’s appalling policy of tearing away infants from their parents with no apparent plan for reuniting them?  We think not. Nor do we think it would be wrong, or that it would display animus toward Sessions’s religion, to say that it is “despicable” to use religion “to hurt others,” which, of course, is what separating families does.  

And, it turns out, a lot of people agree with us, including many people of faith, and many faith leaders whose responses were swift and highly critical. Consider these examples:

[1] Over 600 members of Sessions’s own church, the United Methodist Church, denounced the administration’s forced separation of families.  Reverend Susan Henry-Crowe, one of the church’s leaders, argued that “Christian sacred texts should never be used to justify policies that oppress or harm children and families.” (Some might even say it’s despicable for people to do so.)

[2] The Washington Post reported that a number of faith leaders used their pulpits to make clear they disagreed with Sessions use of the Bible in defense of his zero-tolerance policy. Lutheran Pastor Franek called the policy immoral and unconscionable and decried its “being justified by a twisting of scripture by those who know neither the biblical imperative to treat the foreigner with compassion and love nor the Constitution that protects the basic human rights of all people.” Another Lutheran pastor, Constance Day, regretted getting “political in church” but said that “when politicians use our holy book to justify evil acts—quoting the parts of the Bible that they want to, and conveniently leaving out the parts they do not want to hear—it’s appropriate for us to speak up and say that they are wrong.” Rabbi David Siff emailed his congregation saying that it was disturbing to him “as both a scholar and religious leader when ‘Bible’ is used to justify insensitivity and cruelty.”

[3] Reverend Dr. Jacqui Lewis, said,“[t]his isn’t the first time that scripture has been used by people in power, by the state, to justify hatred and to hide hatred...The KKK, the Nazi movement, the neo-nazis, the taking of land from First Nations and the enslavement of Africans were justified by scripture like that." (Wait...isn’t this kinda like the point the Commissioner in Masterpiece Cakeshop was trying to make?)

[4] Elizabeth Bruenig, a columnist at the Washington Post, and well-known Christian writer commented that “[Sessions] radically depart[ed] from the Christian religion, inventing a faith that makes order itself the highest good and authorizes secular governments to achieve it.”  She accused him not just of “confusion” and “hypocrisy,” but also “self-deception.” (Sounds a bit like questioning his faith!)

[5] The Pope described family separation as “immoral,” and said immigration populists were “creating psychosis.” (Gosh that sounds mean!)

[6] At a gathering of over 300 Catholic bishops, one read a statement, a on behalf of hundreds of bishops. The statement decried the Trump administration’s policy as “immoral,” creating “irreparable harm and trauma.”  

[7] A Jesuit priest described the administration’s policy as “a humanitarian disaster, a moral failure, a grave sin”; “naked cruelty” and “sheer stupidity”; and “pure evil” and “wantonly cruel.”  He also said it was “obscene to use the Bible to justify sin.”

The above commentators sharply condemned Sessions for a religious position he took on, what he claims, is Biblical support for his policy of separating families. Do all of these people harbor animus toward religion when they criticize Sessions for using his religion to justify what they believe is an immoral policy?  We think not.

The point is that it has to be permissible to question and to criticize, and perhaps even to penalize, some uses of religion to harm others.  A Bible in the hands of a bigot doesn’t make that person not a bigot.  And it doesn’t make everyone else bigots for pointing that out, either.



*By highlighting these statements, we are not equating the forcible and potentially permanent separation of families with the refusal of service in Masterpiece Cakeshop.  Refusing to serve LGBTQ individuals because they are LGBTQ works significant dignitary harms, but the forcible, and potentially permanent, separation of families is evil on another dimension.



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