SUMMARY: Today, we’ll be dissecting the recent Supreme Court decision regarding sincerely held religious beliefs and LGBTQ+ discrimination. We’ll use my understanding of the legal test the court uses to determine whether a right can be limited by the federal government. This discussion is based on listening to the talking lawyers on the Interwebs. Then we’ll use Prejudice Norm Theory to predict the effect of the ruling on the country. After that, we’ll make some predictions on how the ruling won’t be applied to the sincerely held religious beliefs of those out of favor with the Court. And, we’ll finish by going old school and suggesting that Christianity actually offers a solution to the problem at these sad Christians have.
KEYWORDS: The Supreme Court, sincerely held religious beliefs, John Roberts, Prejudice Norm Theory, Rights, LGBTQ+, Protected Classes, Legitimate State Interest
Now that the Roberts Court has stood in the middle of Fifth Avenue and shot our democracy dead, we now realize that it doesn’t matter if a lifetime appointee loses any supporters. By gutting a long list of settled law and precedence, they’ve turned jurisprudence inside out. When the highest court in the land doesn’t even try to follow the law or our legal norms and traditions and openly uses twisted legal logic that only a conspiracy theorist’s mother could love, then the rule of law is dead. We now live in the rule of doctrine, dogma, and disinformation. Without the rule of law, no democracy can exist. We are all just dead voters walking.
There are three things that will be considered in this post: (1) the general way we go about adjudicating conflicting rights and interests, (2) the implications that Prejudice Norm Theory has for this ruling, and (3) other applications of the ruling.
Legal Stuff
According the legal experts on all of the pontificating pundit shows and the #SistersInLaw podcast there are things that the courts consider when someone’s rights are in question. I’m no legal anything, I’m just reporting what I’ve heard lawyers on the Interwebs saying, so correct me in the comments.
Limiting Rights
Rights are not sacrosanct. I remember the sisters were emphatic about this one on one of their recent shows. They also described a judicial test for determining how to determine whether a right can be limited.
- LEGITIMATE STATE INTEREST: Your rights can be limited if the state can demonstrate having a legitimate interest in doing so. It’s why we have hate speech laws. It why we have laws governing protests. Exercising your rights can be limited if it can be demonstrated that there is a likelihood of causing irreparable harm.
- NARROW APPLICATION: The laws limiting a person’s rights have to have a specific and narrow application. It has to be tailored to that situation that the state has identified as being a legitimate interest, like inciting others to violence by using hate speech.
- PROTECTED CLASSES: The courts have determined that the state has a legitimate interest in protecting classes of citizens that have regularly been harmed because of their membership in that class. You know like voting laws that have been specifically designed to suppress the Black vote were illegal under the Voting Rights Act, but laws that gerrymandered districts to suppress an opposing political party’s vote weren’t because political party membership is not a protected class. Protected classes are generally have these characteristics:
- Easily identified by something like skin color or religious paraphernalia
- Either not changeable like race in spite of Michael Jackson’s efforts, not a choice of the person like sexual orientation , although conservatives are trying hard to argue that it is, or not reasonable to ask someone to change just to conform with a majority like religion. Notice that language does not fall into these categories, so some states have decided that to compel state institutions to supply government documents in widely spoken languages other than English like Spanish and Mandarin, but others have not.
- Have a history of being discriminated against and harmed by the majority.
Rights in Conflict and the Public Sphere
As is readily apparent from the previous section, rights can come into conflict. What are the rights in conflict in this case?
On one side, conservatives are claiming that their god will condemn them to hell fire and damnation for all eternity if they so much as knowingly look at or acknowledge that gays and trans people even exist. How can the state compel them to condemn their soul to eternal damnation? How is that even fair?
On the other side is the notion that gay people have a right to exist and pursue life, liberty, and happiness just like everybody else, which just might could include getting married and having wedding cakes, photographs, and websites. They shouldn’t have to question whether or not they will be rejected because of who they are when they ask a business to provide the service they are in the business of providing or a government agency to provide a service, like issue a marriage license, that they exist to provide.
The courts have addressed these situations in the past. They have generally said that if you are offering services in the public sphere that is in the market place as a business, then you cannot systematically discriminate against a protected class of citizens by refusing to serve them. You can say no shirt, no shoes, no services, but you cannot say, no Blacks, no Hispanics, no dogs (although, you can actually say, just no dogs).
The solution the courts have generally supported is that if for some reason you do not want to sell your product or service to a protected class of person, then you shouldn’t be operating in the public sphere or the market place. You are either all in or you’re all out. It’s America, baby, we don’t discriminate.
The challenge here is my religion versus your class of person. The Roberts Court has elevated religion to denying fellow citizens the right to pursue life, liberty, and happiness. Essentially, if your mere existence makes a person unhappy because of their sincerely held religious beliefs, then you don’t get life, liberty, or happiness. Too bad, too sad, hate to be you.
Prejudice Norm Theory and LGBTQ+ Rights
When a racist hears anything that they can remotely consider to be confirming of their racist beliefs, they are empowered to act on them, which they do at their next opportunity. Science fact. This tendency is known as Prejudice Norm Theory and is the reason we don’t tell racist, sexist, homophobic, and other disparagement-based jokes. We don’t want to play on negative stereotypes because “disparagement humor functions as a releaser of existing prejudice,“ in other words, we don’t want people acting out on them.
By ruling that the sInCeReLy HeLd BeLiEfS of the plaintiff precludes her from providing a specific service to a class of people, SCOTUS has declared open season on the LGBTQ+ community. The homophobes of the country now feel they have permission from the courts to openly discriminate. The Republican Party has already made trans people and drag queens their scapegoats, but the SUPREME FUCKING COURT now says it’s okay.
Most people will learn of and about this decision through news reports and social media. They’ll see a short minute-long broadcast or read a headline or see it on Tik-Tok or whatever. They won’t get any more than a sincerely held hatred of homosexuality is grounds for prejudicial behavior out of it. They will feel understood and supported in their homophobia.
As a result we’re going to see these things in short order:
- “NO LGBTQ+ ALLOWED” signs will begin to appear in store windows just as sure as mold won’t grow on McDonald’s french fries.
- STAND YOUR GROUND LAWS will be used to justify the murder of LGBTQ+ folks.
- DISCLOSURE OF SEXUAL ORIENTATION before sales of items or employment will be asked for.
- CONVERSION THERAPY will be forced upon people.
- ANTI-LGBTQ+ VIOLENCE will increase even more than it already has.
That’s the first problem with the ruling. It will embolden people to act on their prejudice and seek legal ways to justify discrimination. The other problem is the application of sincerely held religious beliefs.
Prejudicial Application of Sincerely Held Religious Beliefs
There have been several well-known court cases that have been decided against the sincerely held religious beliefs of their participants that might have to be reconsidered. Here are a few that I remember and can imagine. Add yours in the comments.
- Marrying children as young as ten years old. It seems to me that there was a case in the ’90’s or so where a Muslim Somali refugee was brought up on charges or at least discussed for them for attempting to marry or claiming to have married a ten year old girl with her parents permission. Would SCOTUS rule in this person’s favor today? Not only did this man have ample evidence of his personal sincerely held religious belief but he has centuries of explicit evidence for his religion holding that belief.
- Having multiple wives a la the Church of Latter Day Saints. Didn’t we prosecute the leader of a renegade sect for trying to secretly have multiple wives. Again, not only do these folks have ample evidence of their own steadfast belief in this practice, but generations if not centuries of evidence for their religion. Is SCOTUS now going to allow those of us with religions that allow multiple spouses to now have them? Are we going to issue an official apology to the Church of Latter Day Saints?
- The Mark of Cain is a term that I’ve heard members of the Pentecostal Church describe Blacks with. It is their sincerely held religious belief that they use to justify their racism. Do Pentecostals now get dispensation for discriminating against Blacks in all of their jobs and public appearances because of this sincerely held religious belief?
- Santeria and other voodoo style religions believe in the blood sacrifice of animals, which is generally outlawed, but since it is a sincerely held religious belief, would SCOTUS rule in their favor if a case were brought?
- Exorcisms that result in death occur every so often, so can the Catholic priests and other practitioners who participated and were charged in causing the deaths now be freed? Are we now going to excuse any future deaths that occur during an exorcism because it happened while pursuing sincerely held religious beliefs?
Somehow, I think we all know the answer to these questions is no. You are not excused from the consequences of these sincerely held religious beliefs because you don’t love Jesus right is the answer. Only those who love Jesus the way the Supremes say you should get to do as they please because of their beliefs.
A Religious Solution to a Religious Problem
In the past when religion has presented a problem, it has been up to the religion to provide a solution to the problem. So, what could the religious solution to the problem some “Christians” have in providing services to the LGBTQ+ community?
I don’t know, but do you remember that time when some cynical Jews wanted Jesus to say they should not pay taxes to Caesar because sincerely held religious beliefs and Jesus said, Render unto Caesar that which is Caesar’s and render unto God that which is God’s?
Do you remember that? Isn’t that passage widely considered to be explaining the relationaship between government, society, and sincerely held religious beliefs? Doesn’t that mean that god understands that the mean secular government is going to force you on occasion to do things that are against the teachings of the Bible and that you should just go ahead and do them?
Do you remember that time when Jesus said that god would forgive all of your sins and that none of us are perfect?
Ain’t that the Christian solution to this problem?
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Categories: Cognitive Psychology
The Psy of Life 
Trump has an established and fully functioning shadow government that is poised and positioning itself to usher him back into the Oval Office in 2024 … despite what the heavily gerrymandered and voter-rights-restricted peons (You and Me) think or do … The brainwash endured by 77 million of our fellow citizens … the ever-spreading cancer of QAnon … the constant movement toward the right of the population in general … the angst of the general population over our impotent form of democracy … the need for a “Strong Man” style of government is growing in their misguided heads with increased fervor each day that passes …
I think America is, right now, at this very moment, crossing the Rubicon on Democracy and that a heavy curtain of darkness is fast descending on everything that we have ever help sacred in this country and nobody seems to have the slightest idea of how to forestall the impending national disaster that will install a dictatorial government.
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Howdy John!
I’m still hopeful that the 270 million who didn’t vote for or support Trump and the Republican Party will exert itself and reject their authoritarian fascist oligarchy. I think it is possible, even likely, given the trends in the last three elections.
The impact of Dobbs and the sincerely held religious beliefs decisions on the 2024 election will be difficult to predict, but I think people are itching to get to the polls to let their feelings be known just like in 1932 a full three years after the Stock Market Crash and the onset of the Great Depression. Many feared that there would be a revolution immediately afterward in 1930, but there wasn’t. Americans waited for the next election and ousted Hoover in favor of FDR. I think in an established democracy, voters are willing to wait for the next election.
This topic will make for a good blog post. I lived in South Korea when Kim DaeJung was elected in their first free and fair election and in Kenya as they struggled against election corruption. One thing that struck me in Kenya was the desperation for fair elections. The notion that you could wait until the next election to have your candidate or party elected was foreign to them. It had never happened. It is not a foreign concept to us. It is part and parcel of how we conceive of our government and country. That it is being openly threatened will have an effect.
Of course, I’ve just posted that people are likely to respond to an authoritarian government with Meh and go along with it because an authority figure has told them to, but that doesn’t mean we’ll willingly elect one, especially if the contrast is clear.
Huzzah!
Jack
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Wemay not willingly elect an authoritarian, Jack, but the biggest authoritarian of them all who is in the race has established a well-oiled shadow government, complete with ardent supporters already in the congress, and a carload of judges that he appointed to various levels when he was in power and some secretaries of state who are lying in wait to do his bidding, and governors who are on his side, and 77 million brainwashed A-Anon nut cases scrambling to worship at his altar …We may not have to worry about electing an authority figure …The machinery in place might do the awful job for us… in spite of what we want or what we think and well beyond anything we can do about it.
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Howdy John!
All the more reason to work on registering voters, talking up the fundamental issues, and getting voters to the polls. We have to keep fighting the good fight and remaining alarmed enough to be motivated to vote.
Jack
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Your motivations are righteous but I believe our chances are getting slimmer by the corruption-infested day.
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Howdy John!
Guilty as charged. I am an optimist. I think with each passing day, the distinction between MAGA and the rest of America becomes starker, clearer, and more unmistakable to even the most casual disinterested observers. The Alabama legislature’s defiance of the Supreme Court order is a case in point. It will drive Alabamians to the polls to vote against Republicans if not folks across the country. GOP politicians have boxed themselves into a corner of needing to pander to the MAGA base for their primaries and primacy in Congress and legislatures, which gives Democrats an advantage with the more irregular low-information voters.
Anywho.I’m reading a book about the causes of the disintegration of nations and how they survive the kind of crisis that we find ourselves in now. I’ll be posting about it over the next few weeks.
Huzzah!
Jack
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Best analytical on the SCROTUS that I have read in a long while.
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Howdy John!
Thank you for your kind words. It is much appreciated.
One thing that occurred to me today was that it is religious discrimination to deny me the right to discriminate based on my sincerely held beliefs just because they are not sincerely held religious beliefs. That case is coming. But only if your sincere beliefs align with those of the fascists.
Huzzah!
Jack
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That is one priceless Huzzah that you have just written there Jack –thank you for sharing it.
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I am more than interested in discovering if there are ways to save disintegrating nations …because our nation is in the throes of disintegration even as we speak.
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Howdy John!
The idea for my blog is to use psychological insights into our politics to suggest solutions. It is the same for Turchin. He’s trying to draw lessons from the past and his big data fueled patterns to help us survive our own disintegration period. It’s been done before, even in America: the Civil War and Jim Crow.
Huzzah!
Jack
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Today I read a thing I’d like to toss in here: https://secondnexus.com/chasten-buttigieg-bigot-hairlab-michigan
It’s a busy page, but well done. I love George Takei.
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Thank you for posting the link. It was, indeed, a busy page. Nearly got motion sickness trying to locate the bits and pieces of the article through it all. However, it is a good article. It is encouraging and comforting to see so many people standing up for civic and human rights.
I’m hoping that the plan of keeping the rabble stirred up will keep the real pro-democracy electorate even more stirred up and it turns out the vote.
Huzzah!
Jack
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I just realized that the wedding website case involves what I think seems another departure from traditional jurisprudence. The cause of action is an IMAGINED harm. The plaintiff had never actually refused to do the work for an actual proposed customer. She was only imagining that someday she might have to confront that situation. Even the fake email did not happen until after the suit was filed. Normally a plaintiff in a tort case has to show actual harm, even if it is only pain and suffering (generally a more difficult standard than physical or monetary harm). If the Court is now in the business of entertaining imaginary harms and hypothetical conflicts, they are going to be very busy and the gates are open to some truly bizarre decisions.
Also, did the plaintiff offer any evidence for the depth and sincerity of her supposed belief other than the hypothetical situation? Did she ever refuse to attend a gay wedding, or block someone on social media for being gaily married, of unfriend them? If she had had the courage to refuse a real customer and suffer whatever consequences from the state or being sued by the customer, she would have proved the importance of her belief. That is what she was trying to avoid.
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Howdy Bob!
This is what I get for relying on podcasts, but, I can’t quite remember exactly what was said, and I won’t go back hunting for it like I would if it had been written somewhere, but, the Sister-In-Law thought that it might not should’ve been accepted by the lower court but once it was, Supremes could only decline to take it. The only reason to take a case like this that has been recently addressed, was to overturn it.
I don’t remember anyone ever mentioning a legal test for what constitutes a sincere religious belief. Since they are now basing decisions on them, they’ll need one.
Huzzah!
Jack
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I think it is safe to guess that the lawyers knew which judge to give the case to. Standing should have been at least argued. Not that the reactionaries on the high court would have cared. They wanted it.
Now they are going to have to deal with the plethora of cases that arise out of the lack of clear definitions and standards.
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Howdy Bob!
The openness with which this Court is requesting cases be brought is alarming. By engaging in unethical contact with representatives of the Federalist Society — going on billionaire-sponsored vacation junkets together without reporting them on financial statements — they have discussed cases they would like to see. By refusing to discuss these financial statement “mistakes” or to recuse themselves from cases, they leave themselves open to suspicions like these further eroding trust in the Court.
Huzzah!
Jack
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Very much so.
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Another connection: The reliance on a mere statement of a “sincere belief” in this case is structurally identical to the uncritical acceptance of “I feared for my life.” in Stand Your Ground laws and cases (as well as many killing by police).
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Howdy Bob!
I fully expecting someone to gun down an LGBTQ+ person and try to use the defense of standing my ground in fear of my life because of their gayness. I’ve written to the Sisters-In-Law crew to see if they will answer the question of what legal tests or evidence is required for sincerely held religious beliefs or stand your ground laws. The two legal concepts intersect on so many levels, I’m sure they will be combined in a defense one day.
Huzzah!
Jack
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I’m betting that there is no clearly defined test, that it is like pornography, “You know it when you see it.”. Therefore, it is a question that can, if one side of a case thinks it will help their case, be argued at trial.
A number of professions, lawyers, not least among them, an ethical duty to advise a prospective client if the job they want done is outside your expertise, or, with lawyers, also if taking on their job would be a conflict of interest. In some situations, that way of thinking could offer a prejudiced vendor an avenue to gracefully direct a problem customer to somebody else.
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Howdy Bob!
That is a good point about professionals. I would think that all degreed licensed professionals have in their code of ethics a clause that requires recusal in the case of conflict of interest. I wonder if the law licenses — if they have still have them — of the Supremes could be challenged on the basis of an ethical violation.
I think that we’ve had a long history of prejudiced vendors trying to find ways of ducking providing services from a class of customers without seeming to. Thus, the discrimination based on Black-sounding names. Now, we have evangelicals flexing their legal muscles. If we continue our slide into fascism, it will only get worse.
Huzzah!
Jack
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When the fascist right speaks of “freedom”, the freedom to discriminate and abuse whomever one wants without excuse or apology is primary.
The problem with litigating anything about the supreme court is that the case will always wind up before them. Effective ethical rules and standards for the Court would have to be at least legislated to include the option of impeachment, or even written into constitutional amendment.
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And the freedom to discriminate is what brought the original Puritans here in the first place.
Rudy Giuliani recently was disbarred in DC. That was an action brought by the DC bar, not through the courts. I am wondering if a challenge could be filed to a judge’s law license — not that it is a requirement of being a judge, but most judges did start out as lawyers and may continue being licensed, but I don’t know for certain — with the bar for unethical judicial behavior. In lower courts, probably not, because you can file complaints with higher courts, but maybe with SCOTUS.
Huzzah!
Jack
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I don’t know either, but it is an interesting possible possibility
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Reblogged this on cabbagesandkings524 and commented:
Calico Jack – Protected Class? Maybe.
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Another prominent example is the religious belief in several faith groups that life is from first breath to last, and that therefore abortion is a medical procedure involving only the woman’s life and health, the fetus not being a separate life. This belief clearly conflicts with existing laws on abortion based on a religious belief among (primarily) Christians that actually has no scriptural basis in the purported words of Jesus, or in the Old Testament in which the foundation of the other position is found. There are several law suits in progress challenging abortion bans as violation of free practice of religion. What will the Court do with those when they get there? The plaintiffs in those cases do qualify (for now) as protected classes.
Humans are so amazingly good at finding a way for God to agree with any position, however admirable or disgusting, we find comforting or convenient, or any prejudice we may acquire.
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Those abortion cases are the ones to watch given the fervor of the Court for sincere religious belief. How many twists will be in the legal pretzel that rules against the plaintiffs in this one?
Huzzah!
Jack
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It will be interesting. The wedding site decision also offers the possibility for some cases that will other (non-consevative-christian) pit religious beliefs against protected classes and even each other. I’ve thought of some examples.
A hyperconservative Muslim man (Taliban type) with a store refuses to serve, or even allow into the place any woman not “properly” chaperoned by an adult male family member and not “modestly” attired.
A very conservative and devout upper cast Hindu shop owner refuses service to someone he identifies as Dalit, an “untouchable” who wants to pay cash (touching which would render the vendor unclean).
A member of one Christian sect refuses service to a member of another Christian sect which the first person regards as heretic.
The possibilities are endless.
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Howdy Bob!
I know that the Dalit thing is true. It is happening. Many of the Dalit class have immigrated to Western countries and complain that their social status in India follows them… at least in the Indian expat community. I’ve been in Asian grocery stores where I’m viewed with suspicion because “why are you HERE?” There probably are stores that are very Muslim directed in which unaccompanied immodestly dressed women are treated with disdain and discouraged from returning.
In many of these cases, we choose to self-select of accept the discrimination because of the feeling of being unwelcome. Now, though, people may be encouraged to seek these cases out. Dalits are already challenging some of these cases and several states, California for example, are considering laws explicitly targeting Dalit discrimination. But, evangelicals, I can imagine, will be looking for places to exert their new advantage of Christian oppression by either refusing services to all who offend (non-Christians) or for those who refuse them service.
Huzzah!
Jack
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I remember shopping in Chinatown in Chicago many years ago and finding some stores welcoming and some not, the latter seeming to suddenly forget whatever English they knew. We wanted some steamed buns and were directed to the only source, a combination restaurant and mahjong parlor populated by a bunch a very elderly Chinese men. They had not much English, but very good steamed buns.
The Dalits have really run up against discrimination in the tech industry and are determined to change that.
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I was in love with a Vietnamese refugee when I was a very young man, and ran into some interesting and distinctly uncomfortable situations in the Vietnamese community and stores.
Chicago was renowned for its ethnic neighborhoods that were hostile to outsiders. I remember a friend telling me that Chicago had more Lithuanian-language newspapers than Lithuania had. That was, again, in my youth, so I’m sure it has changed a lot since then.
Huzzah!
Jack
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I have baptismal certificates of my paternal grandfather and maternal great grandmother, both from the same church in Chicago. They are entirely in German in fancy Gothic script.
One strange example of ethnic mixing I saw in Chicago long ago was a Hungarian and Szechuan restaurant. I think that must be an interesting family story there including a shared love of spicy food.
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Howdy Bob!
I imagine that if you’re going to marry a Szechuanese that you’d have to love spicy, especially if you’re going to have a fusion restaurant. Adding Szechuan spice would compliment the Hungarian love of paprika and take it to a whole other level.
Your grandparents marriage certificates are testament to how long it takes to integrate an immigrant population into the majority culture, especially in well established ethnic enclaves.
Huzzah!
Jack
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Indeed, but baptismal, not marriage.
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But, won’t they find themselves out of business soon, because regular people are gonna tell everyone they know about that place that thinks they are better than everyone else?
That’s what confounds me about this. Are they business people, or what? (asked rhetorically, of course.)
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Howdy Ali!
Many of the issues with the Dalit community in the US are in the Indian expat community. The businesses that discriminate against Dalit are directed at the Indian community and have the support of the non-Dalit portions of that community. Very few businesses, nowadays, will openly refuse services to PoC, but security and sales clerks will follow Black customers more openly and closely throughout the store and sometimes will openly challenge their presences in the store. These are subtle enough that most white people because white privilege don’t notice, but not so subtle that Black people don’t.
Given that the Dalit population is hidden from non-Indian folks because the cues that identify Dalit are not known to us but are to the Indian community, most of us wouldn’t know what is happening. Given that most of the in-store discussion happening around Dalit discrimination is happening in Hindi, most of us wouldn’t know it was going on. It is pernicious because it is obscured by the cloak of Indian culture that most Americans don’t know or understand.
Shopping while Black is a phenomenon that is familiar to most Black people, but not to whites. In places where it is done more blatantly and openly, the majority of the surrounding white community is probably supportive as it is reflecting local culture. Remember that culture is geographic and this is a big part of the geographic basis of racist culture. Remember Asch’s Line Study on conformity and the bystander effect. Most of us will not be the first to speak out when we see an ambiguous situation or an unfamiliar situation occurring.
This would make a good blog post. I’ll start working on it. Thank you for bringing it up.
Huzzah!
Jack
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I do not care about their beliefs as long as they do not try to impose them on me….religion should be nowhere in the equation. Nicely done post….kudos chuq
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Thanks, Chuq. I appreciate the kind words. And, I agree. Keep your religion to yourself.
Jack
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It is a pleasure….chuq
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Yes! The answer is yes.
Thank you-well done, as usual!
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That’s what I was taught in Sunday School. I thought it was obvious, but I guess some people are pursuing another agenda besides their Christianity.
Thanks for the kind words. I really appreciate it.
Huzzah!
Jack
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