Walking down Main Street, couples, regardless of sexual orientation or gender identity, cannot be legally denied the right to hold hands, share a hug, or kiss–if Main Street is part of the public square, that is.
Move Main Street onto private property, in our America that as a general rule gives precedence to property rights above many others, well, the right to hold hands or hug in “public” is not a given because, well, you are no longer on the public square.
Private worlds can be dangerously right-denying.
On the campus of Brigham Young University, a private institution, for example, same-sex couples are banned from demonstrating romantic affection, such as sharing a kiss or a hug.
Private worlds, particularly those which claim a religious affiliation, function effectively as civil rights-free zones, where the laws of the land regarding discrimination and equal protection simply, in many regards, do not apply.
We can see, from this example from Brigham Young, what propels Education Secretary Betsy DeVos’ agenda of diverting federal funds from public education to private and primarily religious schools. DeVos, for example, recently tried to direct monies from the $13 billion earmarked in the CARES act for K-12 public education to private schools. This effort was stymied just recently in a U.S. District Court. But that’s just one effort. She has also endorsed the Education Freedom Scholarships and Opportunity Act, legislation proposed by Texas Republican Senator Ted Cruz. This act would provide $5 billion worth of annual tax credits to encourage individuals and businesses to donate to nonprofit scholarship funds. Families could apply for these funds to send their children to private and religious schools or potentially other kinds of vocational training or certification.
In these religious schools, of course, civil rights simply are not in play for students and employees.
DeVos, along with U.S. Attorney William Barr, we have seen, want to make this religious exemption, what they call “religious liberty,” which entails the “right” or “liberty” to deny others’ civil rights, the law of the land, of the public sphere as well.
Back in 2017, Education Secretary Betsy DeVos began rolling back Obama-era protections for transgender students, denying them equal protection in their schools.
Barr freely and repeatedly denounces LGBTQ people in the name of religious liberty.
Here’s Barr, enumerating in a speech at Notre Dame Law School last fall what he sees as the secular assault on “religious liberty”:
“The first front relates to the content of public school curriculum. Many states are adopting curriculum that is incompatible with traditional religious principles according to which parents are attempting to raise their children. They often do so without any opt out for religious families.
Thus, for example, New Jersey recently passed a law requiring public schools to adopt an LGBT curriculum that many feel is inconsistent with traditional Christian teaching. Similar laws have been passed in California and Illinois. And the Orange County Board of Education in California issued an opinion that “parents who disagree with the instructional materials related to gender, gender identity, gender expression and sexual orientation may not excuse their children from this instruction.’
Barr, in other words, laments a world where we can’t discriminate as we like—or as he likes—and clearly yearns to impose his particular “moral” code on everybody in autocratic and zealous fashion.
And he is not alone in this tactic of prioritizing “religious liberty” over civil liberties.
Two recent decisions from the land’s highest court exemplify this point.
In one case, Little Sisters of the Poor v. Pennsylvania, the court decided, effectively, not just that religious organizations could deny employees access to the health insurance that covered contraception but, more broadly, any organization could seek such an exemption from our laws by claiming the law conflicted with its own moral values. And keep in mind that the Affordable Care Act already creates conditions whereby such employers do not in any way have to subsidize the costs of contraception or sign any piece of paper that would make them in any way complicit with endorsing, funding, or even knowing about an employee’s use of contraception.
In another case, Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court upheld the right of private religious schools to not have to abide by the same anti-discrimination employment laws other employers do, denying employees at religious institutions and organizations protection from discrimination. This case, interestingly enough, involved one employee who was fired after she told her employer she had breast cancer and another who claimed to be fired on the basis of her age, after she ignored a hint from her administration that she should retire.
In other words, these employees weren’t fired on any religious basis. These institutions were just using that as cover so they could discriminate as they pleased, exempt from having to honor people’s rights.
As Linda Greenhouse put it, writing for The New York Times:
At issue is the nature of civil society itself. The notion that an employer can simply opt out of a legal obligation it finds objectionable on undefined “moral” grounds, or on the basis of an evanescent “complicity” with the distant choices of other actors, threatens the assumption that we all live by the same rules. That thousands of Americans who accept jobs with religious employers might have to forfeit their statutory protections against discrimination — there are an estimated 150,000 lay teachers in religious elementary schools alone — cuts a hole in a legal fabric designed to protect everyone.
Short of advancing the primacy of religious over civil liberties, though, these zealots seek to privatize the world, creating spaces where civil rights have no protection.
It is on this platform of privatization that the morally-debased Trump and the autocratic right-wing zealots find common cause.
Trump has been out to destroy the public sphere and the regulations that inhere in that sphere to protect people’s rights as well as their access to clean air and water, to healthcare, and to protections at work.
Why? Government and its regulations get in the way of the wealthy and corporations doing as they please.
And let’s not forget a public sphere that enforces civil rights is not compatible with his well-documented support for white supremacy.
If we Americans want to protect ourselves, we need to recognize privatization as the backdoor route for eroding our most basic civil liberties.
Tim Libretti is a professor of U.S. literature and culture at a state university in Chicago. A long-time progressive voice, he has published many academic and journalistic articles on culture, class, race, gender, and politics, for which he has received awards from the Working Class Studies Association, the International Labor Communications Association, the National Federation of Press Women, and the Illinois Woman’s Press Association.
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