The GOP’s Birth-Control Trojan Horse

The right wants to use religion as an excuse to legally discriminate against gays and unmarried women—and, ultimately, anyone who doesn’t share their Christian faith.

01.23.14 10:45 AM ET

Ever since the Obama administration included contraception in the list of services that insurers must cover for clients without a copay, conservatives have been on the attack. As far as most right-wing media is concerned—and definitely as far as the average conservative on the ground is concerned—the problem with the mandate is that it supposedly forces others to “pay for” a woman’s “lifestyle” choice.

Even though the insurance policies in question actually belong to the women, who usually earned them as part of their compensation packages at work or who paid for directly with premiums, conservatives routinely portray women who use their own insurance to pay for their own medicine as layabouts forcing other people pay for their birth control. Some conservatives even go so far as to erroneously claim that taxpayers are footing the bill for insurance companies to cover contraception.

While stoking right-wing resentment over other people’s sex lives is a great way to sell the attacks on Obamacare to the masses, the real question is about whether employers have a right to discriminate if they claim to have religious reasons for doing so. Should employers be able to take away earned benefits from employees because they disapprove of the employee’s private decisions? Or does an employee’s right to religious liberty mean a boss can’t use compensation packages to try to force compliance with religious dictates?

The answer to the question is about way more than contraception. Indeed, there’s strong reason to believe that the battle over the contraception mandate is just part of a nascent conservative legal strategy to give business owners broad rights to discriminate against people—both customers and employees—on the basis of race, religion, sexual orientation, and gender. The right’s hope is to create a legal structure where business owners can cite religious objections to weasel out of a variety of legal obligations, from the obligation to pay employees what the law says they’re due to the obligation to treat all customers fairly. The attempt to sidestep a federal law stipulating that female employees get basic insurance benefits, including contraception, in exchange for the work they do is just part of this larger movement.

In fact, attacks on the right of gay customers to be served without being subject to abuse or discrimination is just as big a fight as the one against the contraception mandate. In many states, the battle over gay marriage is morphing into a battle over what conservatives say is a “right” to discriminate based on sexual orientation, so long as you claim Jesus is your reason for doing so. Across the country, right-wing Christian business owners are testing anti-discrimination laws by claiming that they have religious objections to doing things like baking wedding cakes or performing wedding photography for gay couples getting married.

So far, the pro-discrimination forces have been losing out as judges find that laws barring businesses from discrimination are not suspended just because  of religious reasons. However, if the Supreme Court eventually finds that businesses such as Hobby Lobby can discriminate against their employees by refusing to offer federally-mandated health benefits because they disapprove of non-procreative sex, that could dramatically change the legal landscape. After all, it’s going to be hard to say that a business can’t refuse customers on the basis of disapproval of their sexual choices when the same business is allowed to deprive an employee of part of her earned compensation package because they disapprove of her private sexual choices.

The religious right is not only using attacks on the contraception benefit to help build a broad right to discriminate, but also attacks on women seeking contraception at pharmacies. In recent years, a number of states have passed laws allowing pharmacists to refuse to fill prescriptions if they cite a religious objection. The right claims these laws are necessary because, they say, birth control pills work by “killing” fertilized eggs. (In reality, the pill works by suppressing ovulation, which means the number of fertilized eggs that die in a woman taking the pill is much lower than in a woman who is using no contraception.) However, in most states the laws are broadly written so that any customer can be turned away if the pharmacist claims to have a religious or moral objection to that person’s choices. As with the objections to the contraception mandate, contraception is just the sexy cover story for the real agenda: Creating a general right to exempt oneself from anti-discrimination laws as long as religion is cited as the motivating factor.

Having spent years building up the case that religion is an appropriate excuse for discrimination against sexual orientation or contraception preferences, it’s now time for the religious right to make the next move. Arizona lawmakers are trying to pass a new law that would grant the right to defend any kind of discrimination against customers, as long as religion is cited as a reason. The bill’s author, state senator Steve Yarbrough, admits that the law is broad enough that it could allow businesses to refuse to serve Jews or unmarried women—or even refuse to hire them. Yarbrough says that people shouldn’t be overly worried about it, because the discriminating business would have to make the case both that the bigotry is based in sincere religious belief and also that the customer or employee has opportunities to be served or to work elsewhere. But never before have anti-discrimination laws made exceptions for people who use “sincerity” as an excuse for their bigotry.

Most importantly, these attempts to create a “right” to discriminate are not, as proponents claim, a stand for religious freedom. They are an attack on religious freedom, by making it legal for businesses to discriminate against employees’ and customers’ own beliefs. If my religious beliefs allow for contraception use or premarital sex or homosexuality, then having a boss punish me by withholding my earned insurance benefits or having a business refuse me service is, in fact, an attack on my religious beliefs that they don’t share. Religious freedom is harmed if people feel like they have to change their religious beliefs on premarital sex or homosexuality in order to get a job or even get service at a restaurant or hotel. That pro-contraception or pro-gay people are generally perceived as less religious doesn’t mean their freedom to choose their own religious beliefs isn’t as important as that of a Christian conservative. The best way to ensure religious freedom is to make sure that everyone gets the same package: You are free to live your life how you please, but you are not free to try to impose your religion on others by discriminating against them as customers or employees.