Friday’s memo by Attorney General Jeff Sessions on “religious freedom” is reprehensible on its face (and potentially unconstitutional depending on how it’s implemented, particularly given Sessions’ acts to gut efforts to enforce Title VII against those who discriminate against queer and/or Trans persons).
However, as a criminal defense attorney, I do find it darkly amusing that a former head of the FBI like Sessions has apparently overlooked the Pandora’s Box he opened with this quip: “Except in the narrowest of circumstances, no one should be forced to choose between living out his or her faith and complying with the law.”
In that case, what’s to stop some forward-thinking criminal defense attorney like me from creating the “Church of Chaos”, which has, as part of its general Discordian philosophy, posits that breaking laws is a religious obligation? What prevents congregants from asserting that belief as an affirmative defense in a federal criminal case?
Given that the memo (on p.4, para 12) also asserts that the federal government may not “second-guess the reasonableness of a religious belief” apparently not much from DOJ’s perspective, at least outside of the tax evasion context.
If this seems fanciful, remember, we live in a country where in forty-eight states (i.e. all but California and Illinois, where it is banned by statute) someone can assault, batter or murder a Trans woman like me and then assert the “Trans panic” defense–i.e. “I discovered she was Trans, so of course I had to attack/beat/murder her!”—and mitigate the consequences of their violent act partially or completely if the jury buys it.
Those defenses exist not only because of the transmisogyny ingrained in our society but because of a coordinated effort by the GOP and other Christian Dominionists to weaken (and ultimately, replace) the rule of secular law with the rule of “What my imaginary friend told me.” In that context, it doesn’t take too much imagination to see a near future where those with privilege (rich, white, cis people) will be even less accountable for their bad acts than they are today, so long as they can claim to be acting from “faith”.