The Christian Right's Problematic Rights Claims
Joshua Wilson is an associate professor in the Department of Political Science at the University of Denver. He is the author of The New States of Abortion Politics and The Street Politics of Abortion: Speech, Violence, and America's Culture Wars. Wilson's areas of research includes law and society, social movements, abortion politics, American conservative politics, and American constitutional law and civil liberties.
Three days after the nation observed Martin Luther King Day, the Department of Health and Human Services announced the creation of a new arm of its civil rights office called the Division of Conscience and Religious Freedom. In making the announcement, HHS's Office for Civil Rights director Roger Severino stated that religious freedom is, “a civil right that deserves enforcement and respect.”
On its face, this appears to be an uncontroversial statement. However, its application here, read within the context of the “culture wars’” evolution, stands to be a potential attack on what civil rights are fundamentally meant to do. Instead of protecting the rights of vulnerable populations against those who traditionally wield power, this new division stands to defend and exacerbate existing and historic inequalities, and possibly cause real harm to individuals.
As stated on the new Division’s webpage, the office is meant to protect, “health care providers who refuse to perform, accommodate, or assist with certain health care services on religious or moral grounds.” The webpage goes on to give examples of potential discrimination stemming from refusing to provide services related to abortion or assisted suicide because of one’s religious objections.
Given the centrality of the new Division protecting healthcare workers’ right to refuse medical services on religious grounds, civil rights groups such as the ACLU and Lambda Legal have raised the possibility of medical providers being defended for denying services to members of the LGBTQ community. These concerns are similar to those seen when wedding industry workers deny services for same-sex weddings — a refusal of service that the Supreme Court is currently reviewing — but instead of refusing to decorate a cake or take photos, the fear is that one can refuse to provide medical care, likely resulting in physical harm.
The turn to aggressively asserting religious freedom rights currently embraced and forwarded by the Trump administration extends from the Christian Right’s political maturation over time. Leaders of the Christian Right in the 1980s and ‘90s cultivated the idea that Christians were, as Jerry Falwell stated in 1988, “the last minority.” The idea of being a persecuted minority continues in popular forms such as when Fox News, Liberty Counsel, and President Trump decry the supposed “War on Christmas.”
While white Christians in Americans are now 43 percent of the population, an overwhelming majority — more than 70 percent — of Americans still identify as Christian, and Evangelical Protestants are the largest single religious identity — including “unaffiliated” — in the United States. Thinking in terms of political power, Christians are actually overrepresented in Congress. In the current congress, 91 percent of members identify as Christian — a proportion that has been relatively steady for decades. In spite of this, the Christian Right has, and still actively cultivates the notion that Christians are a persecuted, vulnerable minority requiring legal protection.
Interestingly, prior to the ascent of the modern Christian Right in the 1980s, Southern Baptist elites were strong proponents of the separation of Church and State. It is only since then that they have changed their position, eventually coming to demand state protection in the form of rights. When looking at the contemporary activity of conservative Christian legal organizations, cases asserting religious liberty – particularly Christian religious liberty — have come to dominate their time. Roger Severino, the current director of HHS's Office for Civil Rights, comes from this political movement. As his HSS bio states, Severino was previously the Director of the DeVos Center for Religion and Civil Society, as well as chief operations officer and legal counsel for the Becket Fund for Religious Liberty.
A fear of the tyranny of the majority, and the corresponding need to protect the rights of minorities, are at the core of what led to the creation of the Constitution, and eventually the Bill of Rights. The attempt to better realize this system lies behind the lauded civil rights movements of the 20th century and led to the federal government’s offices of civil rights, such as the one in HSS. In the form now institutionalized in HHS’s Division of Conscience and Religious Freedom, civil rights have been wrenched from this tradition.
Instead of protecting an embattled and vulnerable minority, this new Division is positioned to expose women and the LGBTQ community to continued discrimination and the possibility of physical harm.