Thread by @learnedfoote

This thread is about how authoritarian right-wing Christians use a narrow concept of "religious freedom" to enforce their own morality.

I look at anti-LGBTQ animus from Scalia's depiction of the American colonies to arguments by Princeton faculty published by Oxford in 2016.

The recent bills by GOP lawmakers include efforts to ban LGBTQ information in schools and egregious efforts to stigmatize trans peoples' health care.

This is part of a broader history of regulating and disciplining gender and sexuality norms with implicit or explicit violence.

I build here on prior writing about how Rushdoony's violent anti-queer ideologies have informed mainstream US political life in ways that often go unnoticed.

@julieingersoll @kkdumez @kristinrawls all write brilliantly on this topic.

https://twitter.com/learnedfoote/status/1354478055612428298

Scalia wanted a perpetual battle over queer issues. When gay marriage passed in 2015, his dissent explicitly envisions a future rollback of LGBTQ rights. That has been a core part of the conservative agenda since.

The so-called "debate" about LGBTQ is NOT just a "respectful" disagreement between "advocates on both sides" as per Scalia's 2015 claims.

This framing obscures relentless opposition and rhetorical violence featured in his earlier writings and in right-wing christian movements.

Evangelicals and other right-wing Christians were open about their desire to criminalize queer sexuality in the 90s and early aughts. Some like Rushdoony wanted the death penalty for sodomy. Evangelicals campaigned on this premise internationally.
reason.com/1998/11/01/inv…

As Scalia put it in 1996, Americans are "entitled to be hostile" to queers.

This core ideology defines his opposition to LGBT laws.

To conflate that ideology with "religion" or "christianity" to claim "religious freedom" is specious.

law.cornell.edu/supct/html/94-…

As @AntheaButler details, white evangelical racism enacts the "politics of morality" using the fig-leaf of "religious freedom" to hide bigotry.

This animus can be seen in the dissents written by conservative Christians in the face of LGBTQ victories.

In 1992 a few pro-queer laws had been passed in some Colorado cities.

The state legislature responded with an amendment designed to cancel out laws protecting gay/lesbian/bi people against discrimination ...

coloradoencyclopedia.org/article/amendm….

When SC struck Amendment 2 down, Scalia dissented.

Citing Bowers v Hardwick (1986), he claimed it "constitutionally permissible for a state to make homosexual conduct criminal."

"Coloradans are ... entitled to be hostile toward homosexual conduct."

law.cornell.edu/supct/html/94-…

In his 1996 dissent, Scalia argued Amendment 2 was justified in that it was formed by the "majority of citizens to preserve its view of sexual morality statewide against the efforts of a geographically concentrated and politically powerful minority to undermine it."

Scalia said Colorado's motives were unjustly criticized as bigoted.

In his view, the amendment was remarkable for tolerance in that it showed the "smallest conceivable" "degree of hostility" in holding the "view that homosexuality is morally wrong and socially harmful."

In Lawrence v Texas (2003), the US finally reversed Bowers and said anti-sodomy laws were unconstitutional.

Scalia dissented. He said there was a "longstanding history of laws prohibiting sodomy."

law.cornell.edu/supct/pdf/02-1…

Scalia implies the "history and tradition" of the US is firmly rooted not in any tradition of liberty, but in sodomy prosecutions and executions.

The death penalty for sodomy was a feature of every American colony.

In Katz' view,
"Sodomy was not a secret, not unspoken, not unnamed."

Plymouth law required children to learn which crimes merited capital punishment. [!] @C_Stroop @RLStollar

archive.org/details/gayles…

Yet white American men often didn't bear the full brunt of these charges.

Of 63 incarceration records in 1880, 32 were men of color. And a third of the rest were Europeans deemed "foreign" (Eskridge 158).

Another example of the racism inherent in these laws is the Quaker laws of 1700 and 1706 in Pennsylvania, which abolished the death penalty ... the only people excluded from this "tolerance" were Black men.

archive.org/details/gayles…

These sources (which emerged from queer scholarship before being cited by Scalia) show how the ideology of productive white heterosexual cisgender monogamy has been used for centuries to discipline the American population.

In Scalia's view that was a good thing.

Clearly Scalia believed it permissible, constitutional, and American to criminalize and even execute based on these moral impositions.

In his Lawrence vs. Texas dissent (2003), Scalia says overturning Texas' sodomy law "effectively decrees the end of all morals legislation."

Notably, in Scalia's opinion, clearing out sodomy statutes inevitably paved the way for gay marriage.

The reason to define marriage as heterosexual, he admitted, was only to express moral disapproval of queers.

Scalia claims that "eliminating the moral opprobrium that traditionally attached to homosexual conduct" is wrong.

It hurts the rights of those who don't want to work with queer people. Of parents who want to keep queer people out of their children's schools.

A decade later in United States v Windsor (2013), Scalia seemingly backtracks from this entire argument and says that "to defend traditional marriage is not to condemn other arrangements."

The moral opprobrium has seemingly been muted.
supreme.justia.com/cases/federal/…

Scalia, obviously, was not happy with gay marriage in 2015.

It "robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves."

supreme.justia.com/cases/federal/…

Cue apocalyptic rhetoric from Christian leaders.

These types would reinstate anti-sodomy laws if they could summon the political will. They want to impose their own morality.

As Scalia said, they believe they're "entitled to be hostile."

rightwingwatch.org/post/james-dob…

Chief Justice John Roberts' 2015 dissent make very little sense.

supreme.justia.com/cases/federal/…

Roberts loves to generalize marriage as an "unvarying social institution enduring over all of recorded history" and "thousands of years of human history in every society known to have populated the planet."

Leah, Rachel, Bilhah and Zilpah would like a word.

This quote by Roberts is a good example of a broader concern with bio-power that linked fear of sodomy to the need for productivity.

But its claims don't show the "nature of things." It's not a universal definition of marriage. It's a political program.

This relentlessly hostile and ill-informed book was published in 2016 by Oxford University Press with scholars from Princeton and the "Religious Freedom Research Project" housed at Georgetown from 2017-2019.
global.oup.com/academic/produ…

Many entries in the book support the thesis that society "increasingly moves away from a Christian sexual morality and towards a diminished tolerance of religious freedom" (11).

That's how Princeton academic Matthew J. Franck frames it.

jmp.princeton.edu/node/4896

Note how religious freedom is there conceived exclusively in terms of "Christian sexual morality."

By which he means conservative.

One essay holds that Christians are far more at risk of being marginalized than LGBTQ because they face the risk of "violating their conscience."

In evaluating marginalization, Franck doesn't consider incarceration, lobotomy, ignoring a plague, or campaigns to expel queers from gov't work and schools that continued throughout 20th century, and spurred much LGBTQ political organizing and protest.

Franck complains "the Christian perspective" has no notion of "group identity of any class of persons."

He does not clarify why "Christianity" should define U.S. law (which has many protected classes), or why his problem with "group identity" is directed only against queers.

Franck cites a "probable failure of religious freedom and same-sex marriage to coexist peaceably in the future" (17).

He even says the "invalidation of all sodomy laws" arguably harms the "American people's right of self-government" (16).

According to Franck it's not a "denial of the dignity of those who engage in such acts" (13) to pass stigmatizing laws.

Franck says:

"To the contrary, from the Christian (but again, not only the Christian) point of view, the moral norm against such acts was an affirmation of the dignity of the human person. The denial or spoliation of such dignity was constituted by the immoral act." (13)

In other words, the best way for Franck to affirm queer people's dignity is to affirm the heterosexual moral norm.

What would *really* deny dignity is to let queers be "immoral."

Again this is a book published by Oxford University Press by faculty now teaching at Princeton.

Then there's the essay by Steven D. Smith at the University of San Diego.

"The Asymmetry of Accommodation"

In his view "religious citizens" are materially harmed by the "clear implication that their religious beliefs on this subject are mistaken"

Christians, Smith assures us, can be trusted in power because they have a long history of tolerance that is much more reliable than the "secular egalitarians" who led the French Revolution.

If defined only in terms of conservative white evangelical christian morality, so-called "religious freedom" is anything but.