Rules Are for Schmucks: Washington Gets Something Right

No, I’m not talking about Congress, silly. They never get anything right. I’m talking instead about the much-maligned city government of the District of Columbia. Normally, the city where I was born and choose to remain only makes national news for things like a crackhead mayor getting busted, council members stealing money from children, and utter befuddlement over the catastrophe known as “snow.” But this month we made headlines by staring down the Catholic bishops, the evangelical special privilege lobby, Ted Cruz, and the House Republicans – all at the same time. And we won! At least for now.

The issue here was a new DC law called the “Reproductive Health Nondiscrimination Amendment Act of 2014.” That mouthful actually has a simple meaning: you can’t fire or demote your employees for using contraceptives. You can’t line up your employees like third graders, force them to empty their pockets and purses, and then punish the ones who produce condoms or birth control pills.

In other words, a Commie plot to abolish religion in our nation’s capital.

That was essentially the reaction of the United States Conference of Catholic Bishops, in a letter they sent to Congress on March 20: “Equal protection does not mean compelling individuals or organizations to promote activity contrary to their beliefs,” their lawyer gravely intoned.

The law, though, doesn’t compel anyone to “promote” any activity at all. No employer I ever had “promoted” my television watching, beer drinking, or any other activity I pursued on my own time – especially the kinds of activities that might have involved contraceptives. It was none of their business, and they understood that. The bishops, though, who are little gods, maintain that merely allowing an activity to occur is the same thing as “promoting” it.

Six bishops signed the letter. One of them was Archbishop Salvatore J. Cordileone of San Francisco, who has caused a firestorm with a faculty handbook he’s forcing on employees of his archdiocese, whether or not they happen to be Catholic, condemning contraception as a sin and calling all sex outside of marriage, whether it is in the form of adultery, masturbation, pornography or gay sex, “gravely evil.” Four-fifths of the teachers at his archdiocesan schools have signed a petition against the new rules. This comes on the heels of Catholic bishops in Cincinnati, Cleveland, Honolulu and Oakland adding clauses to teachers’ employment contracts listing the sexual and other behaviors they are expected to pursue. Membership in “satanic” organizations like the American Humanist Association would be grounds for instant dismissal.

San Francisco, though, enjoys a special privilege that Washington, DC does not. Its elected officials are free to enact local laws, including laws about employment discrimination, without the burden of second-guessing by the United States Congress. Here in majority-black Washington, though, that is not the case. Congress can and does override local laws at will, even on matters as mundane as building height. So when our city council voted against special privilege for religion, via the “Reproductive Health Nondiscrimination Amendment Act,” congressional Republicans from Ted Cruz on down leapt to the barricades to defend against what one senator called “a brazen display of intolerance.” They’re exactly right: we in DC are quite brazenly intolerant of any employer that wants to punish people for using contraceptives.

Fortunately for democracy and privacy, Congress remains utterly incapable of doing anything. The law was passed by the city council last October, and Congress had until May 2 to undo it. The House of Representatives, on a mostly party-line vote of 228 to 192, voted to overturn the law, but the Senate (surprise, surprise) failed to act. So now DC’s law is officially on the books.

The danger hasn’t yet passed, though. Most Congressional interference in DC affairs comes as part of the appropriations process, and there are credible threats to add a rider to the next appropriations bill to prevent the city from spending any of its money – including all the money paid by DC taxpayers, not just the relatively small federal payment we receive for providing police, fire, etc. services for the federal presence – to enforce this law. The last similar threat came when DC’s citizens, by referendum, voted to legalize the possession of small amounts of marijuana. When the city pointed out that it actually doesn’t cost any money to not arrest someone, the threat subsided. It does cost money to prosecute violators of antidiscrimination statutes, though, so this time the threat is serious.

The fact is, unfortunately, that the God industry and its Republican spear-carriers don’t really need to do anything to invalidate the new law, and all the drum-beating last month was nothing more than grandstanding. They already won the game when the Democrats enacted the federal Religious Freedom Restoration Act of 1993 (RFRA), which explicitly covers the District of Columbia. Under RFRA, no law can “substantially burden” the “exercise of religion” unless doing so both furthers a “compelling governmental interest” and is the “least restrictive means” of furthering that interest. Any decent lawyer could make the case that the punishments for violating DC’s new law are a “substantial burden,” that ordering people how to arrange their sex lives is in a long tradition of the “exercise of religion,” and that even if government has an interest in protecting contraceptive rights, a “less restrictive means” of furthering that interest than punishing religious employers would be to help the fired or demoted employees find comparable jobs somewhere else.

Take whatever moral from this story you wish. For some people, the moral is fair treatment for DC; for others, the moral is unfettered rights to contraception. For me, the moral is that RFRA has got to go.