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Why Does the Religious Right Think the Bible Should Trump America's Laws?

Columbia Law School professor Katherine Franke argues that those who claim religious exemptions are asking to travel through life in a religious bubble.
 
 
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Arizona Governor Jan Brewer speaks during a press conference in Prescott, Arizona July 1, 2013

 

As conservatives grapple with the reality of gay marriage and the Supreme Court weighs whether companies should be forced to offer birth control to employees, it’s very clear: The conflict between religious freedom and gender/sexual equality has become “the most important civil rights issue of this time.”

So says Professor  Katherine Franke, director of the  Center for Gender and Sexuality Law at Columbia Law School and one of the driving forces behind the school’s Public Rights/Private Conscience Project, a new initiative that seeks to shift the way people look at religious and secular values — and to bridge a divide that has come to seem insurmountable. Here, Franke talks with ProPublica’s Sex and Gender reporter, Nina Martin.

NM: Let’s start with why these two things — religious belief and civil rights — have come to seem so at odds.

KF: Part of the problem is the way we’re currently framing the issue. On the one hand, we have the free exercise of religion, which is largely based in an appeal to revelation, to the truths of religious texts and religious doctrine. And on the other hand we have rights of equality and liberty, which are based in rational arguments — what are people entitled to as a matter of their humanity because we should all be treated equally under law. It’s an incommensurable confrontation between revelation and rationality. What ends up happening is that religion ends up like a trump card — you throw it down, it’s a conversation stopper, and we don’t know how to get out of this impasse. Law is really ill equipped for adjudicating between the claims of revelation and the claims of rationality.

NM: How did we get to this point?

KF: In part it’s historical. Really since the late 19th century, when opponents of expanding notions of equality have lost in the public arena, their plan B has been to seek refuge in religion. We first saw it in racial equality cases, and more recently in the areas of reproductive rights and gay rights. When Congress or a state legislature or a federal court mandates the integration of public schools or upholds sex equality in the workplace or allows same-sex couples to marry, opponents of those efforts fall back on religion to say, “You can have those laws, they just don’t apply to me.”

NM: This year marks the 60th anniversary of Brown v. Board of Educationand the 50th anniversary of the Civil Rights Act of 1964. What role did religious exceptions play in the fight over desegregation and civil rights?

KF: Right after the Supreme Court’s decision in Brown, Strom Thurmond and other segregationist politicians issued the Southern Manifesto. Central to that strategy was the setting up of religious schools. Segregationists could opt out of the public school system and re-segregate their white children into religious schools. Some  168 private schools opened in Mississippi, Alabama, Florida, Louisiana, North Carolina, and South Carolina between 1964 and 1967. And for a time, the federal government was willing to grant tax-exempt status to those schools.

Then, in July 1970, the Nixon administration withdrew its support, stating that it would no longer allow tax exemptions for private schools unless they adopted racially nondiscriminatory admissions policies.

But many Southerners continued to insist that they be allowed to maintain private, religious, all-white schools on the grounds that God “separated mankind into various nations and races,” and that such separation “should be preserved in the fear of the Lord.” In 1983, in  a case involving Bob Jones University, the Supreme Court once again decided that, no, this is not a legitimate assertion of religion, but a way to justify the ongoing maintenance of racial segregation, and that tax exemptions for religiously segregated schools are unconstitutional.

 
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