Bad Law

How can you tell when a law isn’t protecting you, but quietly scripting the worst parts of your daily life? In Bad Law, Elie Mystal argues that America’s biggest social wounds—voter suppression, mass incarceration, school shootings, immigration cruelty, and theocratic creep—aren’t accidental side effects. They are the intended consequences of specific, popular laws designed by powerful interests to keep wealth, control, and cultural dominance in the same hands. If the law is a plan, Mystal contends, then our problems aren’t glitches; they’re features—and the way forward isn’t timid reform but repeal.

At the core, Mystal flips a comfortable myth: that law is neutral and inevit­able. He shows you that law is a series of choices we’ve made—often by unrepresentative (and, for centuries, legally exclusive) bodies—and that we’re still living inside those old choices. The book opens by locating the broken foundation: for most of U.S. history, Black people, women, and the poor were formally and then structurally excluded from making the rules. Even after 1965, the “rules of the game” (from gerrymandering to money in politics) preserved the same outcomes. So, when a rule—say, airline deregulation or felony murder—keeps producing avoidable harm, the right remedy isn’t tinkering at the margins; it’s taking the rule off the board.

What this book covers

You’ll travel through ten laws (and one amendment) that Mystal argues must go. He starts at the ballot box by attacking voter registration requirements as purposeful barriers to participation, then moves to immigration’s core criminal trap (illegal reentry) and the airline deregulation that became neoliberalism’s gateway drug. He dismantles the mandatory-minimum machine (from the 1984 Armed Career Criminal Act through the 1986 Anti-Drug Abuse Act to the 1994 Crime Bill), and exposes the gun industry’s liability shield (PLCAA) that blocks the very tort system we rely on to keep cars, toys, and medicine safe. He then examines felony murder (punishing people for deaths they didn’t cause or intend) and Stand Your Ground (converting fear into a license to kill—disproportionately Black people). An interlude on the Second Amendment shows how a slave-patrol militia clause was recast in 2008 (Heller) into an individual right, fueling a uniquely American arms race. Finally, he takes on the Hyde Amendment (which withholds federal abortion funding) and the Religious Freedom Restoration Act (RFRA), a tool that now lets majoritarian religion punch through neutral laws.

Why this matters right now

If you’ve ever wondered why your kid’s school drills for shooters; why your flight is chronically delayed while fees balloon; why a friend can’t vote after moving apartments; or why a battered woman goes to prison for a murder her boyfriend committed—this is the connective tissue. Mystal shows how laws like PLCAA and Stand Your Ground don’t merely respond to tragedy; they manufacture the conditions for more of it, while immunizing the most powerful players. Likewise, RFRA doesn’t protect minority faiths so much as it empowers the dominant one to carve holes in civil rights and health care (see Hobby Lobby). And Hyde isn’t a budget quirk—it’s a policy to stratify bodily autonomy by wealth.

What you’ll take away

You’ll leave with concrete repeal targets, the historical receipts to defend them, and a way to talk about law that resists technical fog. Mystal pairs gripping stories (Aurora theater, Sandy Hook, Breonna Taylor, Ralph Yarl) with legislative provenance (e.g., the Undesirable Aliens Act of 1929, pushed by eugenicist Harry Laughlin) so you can see both outcomes and origins. He also names live fixes: automatic voter registration; repealing INA §1326; reviving consumer protection via torts by ending PLCAA; scrapping ACCA and Stand Your Ground; codifying abortion access and nullifying Hyde; and repealing RFRA to restore the establishment/free-exercise balance. In the epilogue, he goes structural, urging you to expand the House (end the 1929 cap), crush gerrymandering, and, yes, still vote—because turnout shifts the cost-benefit calculus for the same politicians who keep choosing bad law.

The through line is liberating: you are not stuck with any of this. Laws are human-made, many are recent, and several were adopted by wide margins under bipartisan fog. Understanding their DNA—who asked for them, who profits, who pays—doesn’t make the fight easy. But it does make it winnable. And it restores something bracingly democratic: permission to say, out loud, that some laws are so harmful in purpose and effect that the only honest “reform” is repeal.

Mystal’s opening salvo is simple and radical: voter registration laws should be repealed. Not tightened. Not modernized. Repealed. He draws a sharp line between eligibility (who can vote—age, residency) and registration (a preclearance hoop you must jump through before you can vote). Eligibility rules exist everywhere; preregistration does not. In the United States, he argues, voter registration’s core function—since its first appearance in Massachusetts in 1800—has been to keep eligible people from voting, especially immigrants, Black voters, the poor, and the young.

How registration became suppression

The first preregistration scheme (Massachusetts, 1800) used town-generated lists of eligible property holders—perfect for “accidentally” omitting the newly enfranchised poor white men reformers were trying to include. New York City’s 1840 law was crafted to blunt Irish immigrant turnout and was repealed two years later as xenophobic trash. After the Civil War, however, registration took off nationwide, amid waves of immigration and Black enfranchisement. Elites framed it as security—“purity of the ballot box”—but turnout tells the truth: the last presidential high-water mark was 81.8% in 1876; we haven’t come close since (66.8% in 2020 was the best since 1900).

Mystal also clarifies a common confusion: the secret ballot (adopted widely after 1888) solved the real fraud—party bosses stuffing pre-printed ballots and tampering with boxes—not voter impersonation. Today, a voter fills a ballot privately; the system leaves a paper trail. Registration adds no extra fraud protection; it just excludes eligible people who miss deadlines or move frequently (renters, students, low-wage workers).

A case study: blue New York’s red tape

If you think this is just a Southern problem, look at New York. Even with Motor Voter (1993), city renters face a 30-day residency proof requirement that effectively turns a 10-day registration deadline into 30 for anyone who just moved. No portability means moving from Brooklyn to Queens can deactivate you. Miss a snail-mail notice after skipping a couple elections? You can get purged. Formerly incarcerated New Yorkers theoretically have rights restored “automatically,” but they still have to navigate re-registration. And while the legislature brags about “same-day registration,” it applies only on day one of early voting—which happens to be the ordinary preregistration deadline. That’s not a fix; it’s marketing.

Automatic registration—and beyond

Mystal’s remedy echoes international norms: automatic voter registration (AVR). In most democracies—Argentina, Israel, Sweden—the state builds the rolls using data it already has (census, vital records). North Dakota already has no voter registration at all. If you’re eligible, you show up, prove who you are on the spot if necessary, and vote. The onus is on the government to maintain an accurate roll, not on you to beat a preelection bureaucratic clock (Note: if you’re a fan of voter ID, AVR actually reduces your stated fraud fears by aligning live identity checks with voting, obviating preregistration entirely).

Mystal’s core point is civic, not just procedural: a democracy that treats voting like a chore will exclude the people with the least slack in their lives. If you want higher turnout, a broader mandate, and fewer close-call legitimacy crises, stop making eligible people prove they’re allowed in before they show up to vote. Let them vote.

(Context: Richard Hasen, in A Real Right to Vote, argues for a constitutional right to vote. Mystal agrees—but starts with the easy legislative lift: end registration barriers now.)

Why does U.S. immigration turn parents into felons for existing? Because Congress criminalized “illegal reentry” under 8 U.S.C. §1326—and built it on explicitly racist origins. Mystal traces the statute to the 1929 Undesirable Aliens Act, championed by Rep. Albert Johnson and eugenicist Harry H. Laughlin (whose “racial cleansing” work inspired Nazi programs). The compromise then was cynical: agribusiness wanted seasonal Mexican labor; white supremacists wanted fewer Mexicans staying. So Congress let employers in—and gave prosecutors a felony hammer to drive migrants back out. That hammer survives.

How §1326 works—and wrecks lives

“Illegal entry” (first-time unlawful entry) is a misdemeanor. “Illegal reentry” is a felony with enhancements: up to 2 years base, up to 10 for certain priors, up to 20 for “aggravated felonies.” The kicker? You need not be caught at the border; you can simply be “found” in the U.S. after a removal order or visa denial. That sweeps in parents who returned to reunite with children, farmworkers who have cycled seasonally for years, or asylum seekers who turned themselves in and remained under custody. It’s the statute that separates families and fills private prison beds.

Mystal punctures the “but crime” canard: we already prosecute rape, robbery, and murder—status crimes are about sorting, not safety. And if you think §1326 isn’t racially targeted, consider geography: the U.S. shares the world’s longest undefended border with Canada, yet militarizes the Rio Grande. That’s not about rule of law; it’s about race and class.

Courts won’t fix it for us

In 2023, the Ninth Circuit (in U.S. v. Carrillo-Lopez) rejected an equal-protection challenge despite a district court’s findings of racist legislative intent. The panel waved away 1929’s record because Congress reenacted §1326 in 1952 and called the law facially neutral—even though outcomes remain overwhelmingly Latino, as designed. Translation: the judiciary will presume congressional good faith—even when Congress’s “experts” wore white hoods in public—so don’t expect a clean constitutional rescue.

A clean legislative repeal exists

The New Way Forward Act (Reps. Pressley, García, Casar) would repeal illegal entry and illegal reentry, end mandatory detention and family separation, expand due process, and provide return pathways for unjust deportations. On the other side, “Kate’s Law” (Cruz/Bice) would jack up maximums from 2 to 5 years—despite no evidence harsher caps deter desperate parents (the man at the heart of the Kate Steinle tragedy had already been deported multiple times).

Repealing §1326 won’t solve everything about our sclerotic immigration system. But it removes the engine of family separation and treats migration as what it is for most people: an act of hope, not harm. (For deeper history, see Kelly Lytle Hernández’s Migra! and Mae Ngai’s Impossible Subjects.)

Remember when flying felt like an adventure instead of a hostage situation at Gate 32B? Mystal argues that the misery of modern air travel is not a law of nature; it’s the predictable outcome of the Airline Deregulation Act of 1978—the day Democrats embraced neoliberalism’s core pitch: “let the market decide.” He frames deregulation as the template for later disasters (telecom, finance, prisons): labor crushed, consumer protections sidelined, service degraded, and profits privatized while risks socialized.

What regulation used to do

Before 1978, the Civil Aeronautics Board (CAB) allocated routes and set fares with a public-service goal: connect New York and Akron. Like the postage stamp, popular routes subsidized low-demand ones. Airlines couldn’t compete on price, so they competed on service (yes, there was an economy-class piano bar). Airports and air traffic infrastructure were public goods, funded to assure universal access. It wasn’t perfect—corporate capture crept in—but the model prioritized reliability, coverage, and labor standards.

How the heist happened

The 1970s oil shocks strained airlines addicted to gas-guzzling glamour. A crew of characters seized the moment: Robert Bork (originalism’s father and deregulation evangelist), Stephen Breyer (then a Senate lawyer translating Bork for Democrats), Phil Bakes (future airline exec), and Ralph Nader (consumer hero who, here, misread the play). They targeted Teddy Kennedy—then planning a 1980 presidential run and searching for a signature “reform.” Jimmy Carter signed the bill with lopsided bipartisan votes. The CAB was dismantled; route and fare controls vanished; mail subsidies ended. Result: a price race to the bottom, followed by consolidation to the top. Eastern, Pan Am, TWA died; four giants now control 75% of the market.

Who paid? Workers—first. With price competition unleashed, management cut wages, overtime, and benefits; scabs replaced unions; safety became a cost center. Passengers traded service and reliability for fees, cramped seats, and chronic overcrowding at perpetually “under construction” hubs built for a different era. Did average prices fall on popular routes? Yes. Are you getting what deregulation promised? No—because concentrated markets collude in all but name (see Tim Wu’s The Curse of Bigness).

What fixing it could look like

We likely can’t resurrect a CAB. But we can reassert public power. Senator Ed Markey’s Airline Passengers’ Bill of Rights and FAIR Fees Act would mandate refunds for >1-hour delays, require food and lodging for >4-hour delays, limit junk fees, require accessible bathrooms, set minimum seat standards, and empower the Department of Transportation to regulate unfair practices and deter consolidation. More ambitiously, we could treat airport capacity, gate allocation, and slot access as the scarce public resources they are—and condition their use on labor standards and service reliability.

(Context: Ganesh Sitaraman’s short, punchy Why Flying Is Miserable offers more detail on pre-1978 postal logic and how to build a public-service aviation system again.)

Mass incarceration did not begin with the 1994 Crime Bill; it crested there. Mystal points to the true keystone: the Comprehensive Crime Control Act of 1984 and especially the Armed Career Criminal Act (ACCA), which imposed a 15-year mandatory minimum for a third “violent felony” if you possessed a gun. Congress then poured accelerant with the Anti-Drug Abuse Act of 1986, which turned “serious drug offenses” into predicates and set the infamous 100:1 crack-to-powder ratio (5 grams crack = 5 years; 500 grams powder cocaine = 5 years). The 1994 bill deepened the trench but the excavation was well underway.

Why mandatory minimums are bad law

Punishment should match culpability. Mandatory minimums sever that link, shifting power from judges (who assess individuals) to prosecutors (who control charges). With a 15-year hammer hanging over any third strike—now including low-level drug counts—prosecutors can coerce pleas in cases they might lose at trial. Defendants plead to avoid catastrophes; some innocent people plead to avoid the risk of a life-destroying sentence. And the “incapacitation” logic is math-illiterate: most people age out of crime by their early thirties; third-strikers are already past the alleged peak.

The Supreme Court has tried to trim ACCA’s worst edges. In Johnson v. United States (2015), the Court struck ACCA’s residual “crime of violence” clause as unconstitutionally vague. Yet the underlying structure—federalizing punishment and attaching giant mandatory floors—remains. Meanwhile, the 1986 crack regime produced staggering racial disparities: by 1990, Black federal drug sentences were, on average, 49 times longer than white sentences (ACLU analysis). Congress reduced the ratio to 18:1 in the Fair Sentencing Act (2010) and made some relief retroactive in the First Step Act (2018), but didn’t eliminate mandatory floors.

The prosecutor problem Democrats built

Ted Kennedy argued in 1979 that mandatory guidelines would reduce disparity; Al Gore called ACCA a fix for state prison overcrowding. They were catastrophically wrong. Taking discretion from judges and giving it to prosecutors exacerbates racial bias at the system’s largest decision point: charging and bail. Prosecutors decide who gets into court and with what leverage—not just how they’re punished after conviction. The result: a plea-driven system where “beyond a reasonable doubt” is replaced with “beyond a survivable risk.”

What repeal looks like

• Repeal ACCA’s mandatory minimum structure; return to individualized sentencing and proportionality.
• Eliminate drug mandatory minimums entirely; end enhanced penalties based on arbitrary weights (“intent to distribute” by gram-count is fiction).
• Make Fair Sentencing retroactive for all; end the 18:1 ratio; parity now.
• Invest in defense: public defenders should be funded to match prosecutorial power.

(For complementary analysis, see Michelle Alexander’s The New Jim Crow on the drug war’s caste logic and Rachel Barkow on federal sentencing’s categorical errors.)

If a toy blinds your child, you can sue the maker. If a brake defect kills your spouse, you can sue the car company. But if a gun—sold exactly as designed—kills a classroom, you usually can’t sue the manufacturer. That’s because Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005, a bespoke immunity that short-circuits ordinary products liability. Mystal calls it what it is: government welfare for merchants of death.

Why torts matter for safety

In American consumer safety, lawsuits are the invisible hand with teeth. They align corporate incentives with public safety without Congress having to micromanage every product. That’s why the 2000 Smith & Wesson settlement—brokered by the Clinton administration before PLCAA—was a breakthrough: the company agreed to install locks, restrict high-capacity mags, avoid gun shows without universal background checks, cut off dealers whose guns turned up in crimes, and limit multiple sales. The market responded. Then the gun lobby ran to Congress for PLCAA to stop the lawsuits that were working.

PLCAA’s trapdoors are fake

PLCAA bars “qualified civil liability actions” but leaves narrow exceptions: defect cases (if a gun explodes in your face), violations of a predicate statute (if marketing breaks an existing law), and “negligent entrustment” (virtually never met). When Sandy and Lonnie Phillips—parents of Aurora victim Jessica Ghawi—sued the online sellers who supplied James Holmes with ammo and tear gas, a federal court tossed the case under PLCAA and ordered the parents to pay defendants’ fees under Colorado’s copycat immunity law. That’s upside-down justice.

Sandy Hook’s lesson—and limit

Families of Sandy Hook victims found one sliver: they sued Remington (maker of the Bushmaster XM-15) under Connecticut’s Unfair Trade Practices Act, arguing the gun was marketed for militaristic, assaultive use—a predicate-law theory PLCAA permits. The Connecticut Supreme Court allowed the case to proceed; the U.S. Supreme Court declined review; Remington’s insurers settled for $73 million. Important? Yes. A system fix? No. The company was bankrupt; most viable gunmakers would fight to the end and likely win at the current Supreme Court.

You don’t have to win an assault-weapons ban at this Supreme Court to reduce carnage. You can re-enable the civil system that disciplines every other dangerous product. It’s not sexy; it’s effective. (Think The Firm ending: “It’s not sexy, but it’s got teeth.”)

Felony murder says: if someone dies during a felony, everyone involved can be convicted of murder, even if they neither killed nor intended to kill. Mystal calls it what it feels like when you see it applied: Kafka with a badge. Everywhere else in criminal law, intent matters. We punish accomplices who intend the killing, and reckless murderers who intend the harm. Felony murder erases intent and pastes murder liability onto people who may have committed only low-level crimes—or were trying to flee police gunfire.

The doctrine’s outlier status

The rule migrated from English common law (noted by William Hawkins in 1716; popularized by Blackstone), but the U.K. abolished it in 1957. Canada held in 1990 (R. v. Martineau) that felony murder violates “principles of fundamental justice.” The U.S. stands alone among common-law nations in clinging to it—and, in some states, making it death-eligible.

How it works in the real world

Take California’s People v. Stamp (1969): two armed robbers flee; the office manager, with a heart condition, dies of a heart attack minutes later. All the robbers—including the getaway driver who never entered—convicted of murder. Or Pennsylvania today: “second-degree” (felony) murder is mandatory life without parole; 70% of those serving it are Black; nearly three-quarters were 25 or younger at the time (Sentencing Project). In Florida, felony murder can trigger the death penalty if your role is “significant” (Tison v. Arizona)—even after Enmund v. Florida said it couldn’t for minor participants.

The police-killing inversion

Here’s the darkest twist: when police shoot and kill during a chase or raid, prosecutors often charge the suspect with felony murder. That’s why Kentucky’s 1975 abolition of felony murder mattered for Kenneth Walker, Breonna Taylor’s boyfriend. After Louisville police burst into Taylor’s apartment at night with a falsified warrant, Walker—believing it was a home invasion—fired a warning shot, striking an officer. Police riddled the apartment with bullets, killing Taylor. Kentucky did not charge Walker with felony murder; other states could have. Federal civil-rights prosecutions later reached some officers—not for the killing itself, but for the warrant fraud. The inversion remains: in most jurisdictions, a cop’s bullet can be legally alchemized into your murder.

If you need a simple litmus test for justice: can the state send someone away for life because someone else pulled the trigger? If the answer is yes, you don’t have a justice system; you have a disposal system with legal trappings.

Self-defense doesn’t require Stand Your Ground. You’ve always had the right to use deadly force when you reasonably believe it’s necessary to prevent imminent death or serious harm. What Stand Your Ground (first enacted in Florida in 2005) does is remove the duty to retreat—the centuries-old, pragmatic expectation that, if you can safely walk away, you should. Worse, it exports an already overbroad Castle Doctrine beyond the home, turning public spaces into fear zones where “I felt threatened” becomes a pretrial immunity.

Real results, real names

In April 2023, 20-year-old Kaylin Gillis was shot dead in Upstate New York when her friends’ car accidentally turned up the wrong driveway and began backing out. In Kansas City, 16-year-old Ralph Yarl rang the wrong doorbell while picking up his siblings; an 84-year-old homeowner shot him through a locked storm door. Even where juries ultimately reject these claims, the law signaled to shooters that fear equals justification.

The crooked origin story

Florida lawmakers sold Stand Your Ground using the 2004 killing of Rodney Cox by James Workman as Exhibit A—claiming Workman needed immunity to avoid prosecution after a “home intruder” incident. Reality: prosecutors never charged Workman; even under ordinary Castle Doctrine, it looked like justified self-defense once the fight moved into the RV. The NRA and ALEC took it from there, spreading boilerplate bills nationwide.

The data: fear bends toward white impunity

Urban Institute analysis (2005–2010 FBI data) shows the pattern: in Stand Your Ground states, homicides by a white shooter of a Black victim are deemed justified 16.9% of the time—far higher than white-on-white (3.5%) or Black-on-white (1.4%). When the law upgrades fear to a legal shield, racial bias decides whose fear counts.

Keep self-defense. Ditch Stand Your Ground.

Repealing Stand Your Ground doesn’t criminalize survival. It restores a basic civic norm: in shared spaces, we try everything short of killing when it’s safe to do so. It also restores the ordinary process—no more pretrial immunity hearings—so juries can evaluate claims of necessity rather than watching them vanish on paperwork.

(For context, Paul Butler’s Chokehold and Carol Anderson’s The Second both detail how “security” doctrines routinely map onto Black vulnerability.)

Mystal’s interlude is a grenade lobbed at constitutional fatalism: the Second Amendment, as currently interpreted, is neither ancient nor inevitable. The text—“A well regulated Militia, being necessary to the security of a free State…”—was added to reassure slaveholding states they could muster armed posses to crush rebellions without federal interference. For two centuries, courts broadly allowed gun regulation. Only in 2008, in District of Columbia v. Heller, did a 5–4 Court (Scalia writing) recode it as an individual right to have a handgun for self-defense in the home. That modern move—erasing “militia,” importing “confrontation”—is the hinge on which our uniquely American bloodletting swings.

Why repeal belongs on the table

Justice John Paul Stevens (a Heller dissenter) later wrote plainly: if you want to disarm the NRA’s cultural and legal veto, repeal the Second Amendment. As long as courts require modern gun laws to mirror 1787 practice, you’ll be comparing muskets (single-shot, 3 rounds/minute, ±50 meters) to AR-15s (45 rounds/minute, accurate at 400+ meters, 100-round drums)—and pretending that’s continuity. You can regulate at the margins (storage, sensitive places), but the Heller/Bruen framework kneecaps meaningful bans.

Culture follows the Court

The Second Amendment has become less a rule than a rallying cry—a shorthand for white grievance politics. Politicians tweet “Second Amendment” as a threat. After Sandy Hook, when even modest reforms stalled, it proved the point: the Amendment now functions as an untouchable brand that chills debate before it begins.

If repeal feels impossible, disarm the industry

Mystal’s primary tactical path is elsewhere in the book: repeal PLCAA and let tort, insurance, and market discipline do what Congress and courts won’t. You can also target ammunition (capacity, armor-piercing), accessories (bump stocks), and distribution (dealer accountability) where evidence and liability intersect. But the honest finish line, he argues, is to stop pretending a sentence engineered for slave patrols must govern a nation of 330 million people with consumer-grade battle rifles.

(For history that centers race, see Carol Anderson’s The Second; for doctrine, Saul Cornell’s scholarship tracks the militia-to-individual-right pivot.)

Post‑Dobbs, you’ve probably asked: what can the federal government actually do while states ban care? Mystal starts by cutting the quiet wire that’s been tripping Democrats for 50 years: the Hyde Amendment. Since 1976, Hyde has been stapled to every federal budget to bar Medicaid and other federal programs (Indian Health Service, TRICARE, federal employee coverage, Peace Corps) from funding most abortions. The result is a two‑tier system where wealth buys autonomy and poverty buys forced birth.

Hyde’s constitutional dodge

In Harris v. McRae (1980), a 5–4 Supreme Court upheld Hyde, with Justice Potter Stewart saying government isn’t obliged to fund a right it recognizes (then under Roe)—and that “indigency” isn’t a suspect class. The opinion also brushed aside establishment-clause concerns, even though Catholic and evangelical lobbies explicitly drafted and drove Hyde. Judge John Dooling’s district ruling (later reversed) said it best: denying medically necessary abortion funding violates both due process and free exercise protections.

What Hyde does in practice

Abortions are cheaper than childbirth, but they’re not free: ~$568 for pills, ~$675 for first-trimester procedures, ~$775 for second-trimester (KFF 2021)—before travel. Fifty-four percent of patients delay care to raise funds; delay pushes them into more expensive (or now illegal) windows. Seventy-five percent of abortions pre‑Dobbs were obtained by low‑income or poor patients; 66% by Black or Latino patients. Hyde targets the exact people bans target—and it does so even where abortion remains legal.

What the feds can still do

The Department of Justice has already opined (Sept. 2022) that Hyde doesn’t bar using covered HHS funds to provide transportation for patients to lawful care, if statutory authority exists. Federal lands and tribal partnerships could host providers (subject to litigation and politics). But the cleanest lever is political: stop attaching Hyde to every budget. If Democrats control one chamber, they can refuse its inclusion; if they control both, they can pass clean appropriations.

Mystal’s ethic is crisp: the state cannot conscript your body because you’re poor. Funding abortion through public insurance is not special treatment; it’s equal treatment for a medical service whose absence uniquely subordinates half the population.

“Don’t Say Gay” laws aren’t protecting kids from sex; they’re punishing kids for being themselves—and punishing teachers for acknowledging reality. Florida’s Parental Rights in Education Act bans “classroom instruction” on sexual orientation or gender identity from K–3 (and beyond, subject to vague “age appropriate” standards), deputizes parents to sue, and forces schools to out children to unsupportive families. As Mystal puts it, these laws weaponize one parent’s discomfort against every child’s well‑being and every teacher’s livelihood.

What’s actually happening in classrooms

Teachers are not showing first‑graders porn. They are reading books where a character has two dads. They are calling a child by the name and pronouns the child asks for. If you’re comfortable with a teacher pointing to a desk photo and saying “my wife,” but not “my wife” when the teacher is a woman, your issue isn’t sexual content; it’s homophobia. The law encodes that bias.

How censorship slides in

The Supreme Court’s Pico (1982) plurality suggested schools can’t yank books simply to suppress ideas. But “Don’t Say Gay” flips enforcement to private parents, demands that teachers pay their own defense, and reframes LGBTQ content as “vulgarity.” Enter groups like Moms for Liberty with prefab challenges. Librarians can’t litigate every paragraph; students end up doing the First Amendment’s heavy lifting against their friends’ parents.

The broader project: Stop WOKE

Florida’s Stop WOKE Act (aimed at “critical race theory”) tries to regulate what can be said about race in higher ed and workplaces. Federal courts have, so far, enjoined key parts as viewpoint discrimination (see Honeyfund.com v. DeSantis at the Eleventh Circuit). Politically, DeSantis’s anti‑woke crusade cratered on the national stage—proof these laws aren’t sure‑fire wedge issues outside curated media bubbles.

If you want kids who can navigate a diverse world, you can’t criminalize the vocabularies that describe it. Protect student confidentiality. Keep books on shelves. And when a child tells you who they are, believe them—then let their school keep them safe.

The First Amendment’s religion clauses are a seesaw: the establishment clause stops government from imposing faith; the free exercise clause protects you from government punishment for practicing yours. In 1990, Justice Scalia (in Employment Division v. Smith) said neutral, generally applicable laws that incidentally burden religion are usually okay—no special exemptions required. Congress responded with the Religious Freedom Restoration Act (RFRA) (1993), restoring strict scrutiny: if a law “substantially burdens” religion, government must show a compelling interest and least‑restrictive means.

Who RFRA ended up helping

Not minority faiths as much as the majoritarian one. In Burwell v. Hobby Lobby (2014), the Court let a giant craft chain refuse to include contraception coverage in its employee health plan—despite the Affordable Care Act’s neutral mandate and carveouts already made for houses of worship. RFRA has since been used to punch holes in nondiscrimination laws (LGBTQ adoption and services), public‑health rules (COVID vaccine and mask mandates), and labor protections—especially after Clinton’s “charitable choice” and Bush’s faith‑based initiative steered public dollars into religious providers who then claimed faith‑based exemptions while doing the state’s work.

Why “Do No Harm” isn’t enough

Democrats now propose the Do No Harm Act to limit RFRA’s reach in areas like civil rights, labor, child protection, health care, and government contracting. Mystal’s warning: the current Supreme Court will likely ignore such cabining, because nothing in the constitutional text says free exercise stops at those lines—and this Court’s conservatives treat religion as a trump card. Narrow fixes invite a thousand new suits; a clean repeal draws a clear line.

What replaces RFRA?

We return to Smith: neutral laws of general applicability apply to everyone. The tool that should be strengthened is the establishment clause—to stop the state from outsourcing its functions to religious entities that discriminate or from writing sectarian morality (e.g., abortion bans) into civil law. Free exercise protects personal worship, ritual, diet, and conscience; it shouldn’t be a sword to deny others civil rights, pay, or care.

Repealing RFRA won’t persecute Christians; Christians run the state. It will stop the state from sanctifying discrimination. (For an accessible primer, see Katherine Stewart’s The Power Worshippers on Christian nationalism’s legal strategy.)