After the 13th, 14th and 15th Amendments were ratified, collectively freeing the slaves and granting them full citizenship rights (the men anyway), white supremacists concocted various subversive laws to oppress African-Americans within the new mandates of the Constitution. The laws were originally known as the "black codes" and eventually as "Jim Crow" laws.
For example, across the South, draconian statutes were passed against the trivial non-crime of "vagrancy," allowing law enforcement to arrest and incarcerate African-Americans for being unemployed or incapable of proving employment. In many cases, these men were sold to the owners of semi-secretive mining operations or plantations as, essentially, slaves to serve without pay -- in many cases, permanently disappeared from society. But since these were convicted criminals, slavery wasn't "slavery," it was justified as legal punishment for a ridiculous non-crime handed down by a kangaroo court. Other laws, such as literacy tests, poll taxes, segregation and anti-miscegenation statutes followed, and not just in southern states, by the way.
Fast forward 150 years and we find ourselves in a similar situation with regards to reproductive rights. Incapable of overturning Roe v Wade, radical conservatives have devised loopholes to prevent or even criminalize abortions, each of which in some way regulate the basic human right to have purview of ones own body. Faced with an increasingly permanent Roe decision, we've seen countless examples of laws that make it nearly impossible in some states to undergo a constitutionally protected medical procedure.
Rather than banning it, legislatures have decided that clinics can only exist within a certain distance of a hospital; they've decided that women should be forced to have what's known as a transvaginal ultrasound in order to intimidate them against having an abortion; they've decided in some cases to redefine what constitutes a "legitimate" rape; and they've peddled "fetal personhood," "fetal heartbeat" and "fetal pain" laws that are de facto bans on abortion. The endgame here, whether intended or not, is the oppression of women as second-class citizens if not outright criminals committing a so-called "genocide" against the unborn. In this case: Jane Crow.
Sadly, what's past is prologue, and in the face rapidly emerging and long overdue civil rights for LGBT citizens, RedState.com founder and Fox News screecher Erick Erickson posted an article on Friday calling for more state legislatures to pass what are known as Religious Freedom Restoration Acts (RFRAs) before the Supreme Court weighs in on same-sex marriage in June. In 19 states, RFRAs are already law, and additional RFRAs in other states would make it legal to refuse service to gays and same-sex couples based on religious objections to their homosexuality. Last year, Fox News analyst Kirsten Powers (a Democrat) saliently referred to RFRAs as "homosexual Jim Crow Laws."
Totally lacking any self-awareness with regards to the long history of last-gasp religious objections to nearly all civil rights laws, Erickson began by walking us through several anecdotal accounts of business owners who've been smacked with discrimination penalties, in some cases forcing the owners into bankruptcy for refusing to serve gay customers because the Bible says it's a sin to do so. It really doesn't say that at all, but they say it does. We'll circle back to the dangers of individual interpretations of scripture in a minute.
Along similar lines, the dirty little secret on the libertarian right -- the faction that includes Sen. Rand Paul (R-KY) -- is that contrary to the Civil Rights Act, it's believed that businesses should be allowed to refuse service to anyone, including African-Americans, for any reason at all. I'd have slightly more respect for Erickson if he'd simply own his bigotry and dropped this wafer-thin religious freedom argument as the obscene joke that it is. On the other hand, Rand Paul, when running for Senate, slipped during an interview on the Rachel Maddow Show and defended a particularly stupid argument against the Civil Rights Act:
Well what it gets into then is if you decide that restaurants are publicly owned and not privately owned, then do you say that you should have the right to bring your gun into a restaurant even though the owner of the restaurant says 'well no, we don't want to have guns in here' the bar says 'we don't want to have guns in here because people might drink and start fighting and shoot each-other.' Does the owner of the restaurant own his restaurant? Or does the government own his restaurant?
Like always, he quickly walked it back. The RFRA argument is similar but pinpoints religious freedom as its centerpiece.
Erickson also dismissed a recent counterattack to the RFRAs in which civil rights activists have suggested that such laws offer a safe haven to child abusers because, yes, the Bible permits child abuse ("spare the rod" is from Proverbs 29:15). Erickson shrugged it off, though, telling us that he couldn't find any examples of such cases. But does it matter? What happens with it does?
In addition to Jim Crow, religion and the Bible were used as justifications for the epidemic of lynchings of African-Americans in the late 19th and early 20th Century. Not only did white vigilantes often cite the Bible's alleged support for racial purity but they believed they were doing God's will when they, for instance, lynched a man named Henry Smith. One supporter of Smith's lynching said at the time, "It was nothing but the vengeance of an outraged God, meted out to him, through the instrumentality of the people that caused the cremation."
So, where's the line in terms of what the Bible can overrule?
History has proved that religious freedom ought to end when it's exploited as means of discrimination and oppression. The religious freedom clause of the First Amendment isn't a valid excuse for slavery, segregation or vigilante justice; the free speech clause isn't a valid excuse for slander, libel, child pornography, etc; and the 2nd Amendment isn't a valid excuse for stockpiling cruise missiles and RPGs. Religious liberty isn't absolute, because if it were, it'd open the door to all varieties of terrible things. Zealots who argue otherwise have probably never actually read the Bible. If they did, they'd also find a long list of passages that could be used to justify abortion. Someone could extrapolate the various episodes of infanticide depicted in the Bible as a religious justification protecting abortion rights. Faith is personal, so if a business owner can cherrypick a Bible passage that says homosexuality is an abomination and extrapolate that out to mean he's allowed to not sell a cake to a gay couple solely because they're gay, how can Erickson object to a woman using a similar form of twisty logic on abortion?
Because of this shaky morality, Republicans like Sen. John McCain (R-AZ) and Sen. Jeff Flake (R-AZ), along with a growing list of business owners have come out against RFRAs. As Media Mattersnoted, religious liberty scholars also oppose these laws at every level.
Here we are again, staring down the barrel of what's arguably one of the most familiar and yet ludicrous justifications for bigotry. It's a loophole that's popping up with greater frequency, not only from religious leaders but also from lawmakers at every level as well as presidential candidates like Mike Huckabee and serial panderer Rand Paul. As anti-gay activists become further marginalized, and as the public slowly evolves on civil rights, we can expect louder, crazier and more frequent efforts to sidestep both federal and state court rulings with the latest attempt at Jim Crow. They've done it before and they'll do it again.