Redefining Discrimination

Lexi Lonas Cochran, education reporter at The Hill, took a look at the steady conservative push on education and the Supreme Court decisions that have fed it. She got lots of things right, but I have some quibbles. 

As many of us have noted, SCOTUS has been knocking holes in the wall between church and state where it passes through the school yard, and conservatives have been both pushing on it and walking through the holes as they appear.

It's a tricky thing to chart cause and effect here. People on the right did not suddenly decide to take some of these positions just because the heist of three court seats gave them Big Dreams. At the same time, the far-right court has signaled clearly to people who have been waiting for their moment that the time is now. 

It's hard to precisely identify the juncture of political agenda and favorable court atmosphere. Neil McCluskey offered:

The most clear-cut example of what I have in mind is the Oklahoma Catholic Charter School, where it’s not so much that they see a friendly court, it’s that the courts are more friendly to school choice and have developed precedent now to support that kind of move.

Wellll..... It's true that the Catholic diocese and the christianist nationalists in political power didn't suddenly decide they'd like to hand taxpayer dollars to the private church schools. They've wanted to do that for decades. But it's also true that the diocese, and the board overseeing charter approval kind of put their heads together with Oklahoma Previous Attorney General O'Connor for a legal opinion about whether now was the time or not. Nor is anybody the slightest bit surprised that Oklahoma has asked SCOTUS to hear this case (digest version of the story here). So no, the court didn't lead to them deciding to do it all, but it surely influenced them to do it now.

This part of the discussion is an exercise in hair-splitting, but within the comments from Rick Garnett, the lawyer who's "involved" in the Catholic charter case, is a really important and deliberate mis-statement:

And more recently, there’s been a run of cases in the last, let’s say, five, six, seven years where the Court has said governments are not allowed to discriminate against religious schools. 

Nope. Nope nope nopity nope nope nope. At no point has anyone argued that governments may discriminate against religious schools, and that's not the hammer that lawyers have been using against the wall. 

Instead, what the court has done (with plenty of prompting) is to change the definition of discrimination.

The new definition has two key features.

First, the right and the court have declared that it's discrimination against religious folks if they aren't allowed to act out their own biases and prejudices. If I can't tell people that I don't want to serve them because I disagree with some aspect of their life, then that's discrimination against me. I can only freely exercise my religion if I'm allowed to throw gay people out of my cake shop or my school. 

Second, it's discrimination against religious organizations if the religious organization is denied taxpayer funds. It's not sufficient to avoid troubling or picking on a religious organization; if you won't let them have taxpayer money, that's discrimination.

And that also includes giving them those taxpayer funds without any strings attached (see "first"). The government must give the religious school taxpayer money even as it is forbidden to enforce any of the anti-discrimination rules that apply to all other government-funded organizations.

If a taxpayer-funded religious school refuses to hire an LGBTQ person as a teacher, that's the free exercise of religion. If the LGBTQ person refuses to let the school have their tax dollars, that's discrimination. If a public school football coach holds open prayers on the 50 yard line while still on duty, thereby clearly signaling to his players that failure to properly worship might put them on the bench--well, that's just free exercise of religion. If the school district fires the coach, that's discrimination.

If your religion tells you that you can't freely exercise that religion without collecting taxpayer dollars and being able to treat some people poorly, on purpose, just because, then I suspect something is wrong with your religion.

But set aside the religious and moral objections to this new definition. The practical concerns are bad enough.

Because who decides that something is a True Religion that deserves all these freedoms. If I've decided that my own personal religion also needs some taxpayer funding to start a school, who decides whether or not I get that? If I declare that I have really religious reasons for wanting to set up a private school that rejects all non-aryan families, and I want government funding for it, who settles that? Will the Department of Deciding Which Religions Are Real be a state or federal department?

Again--this has never been about combatting discrimination against religions, but about redefining what discrimination against religion means. That's the success that has paved the way for various initiatives that have been cued up for years.