“Liberty” To Inflict Harm

A mid-October ruling by a federal judge in Texas is a reminder of the ongoing attacks on separation of church and state, and the importance of a disinterested (i.e., non-ideological) judiciary.

A federal judge on Tuesday overturned ObamaCare protections for transgender patients, ruling that a 2016 policy violates the religious freedom of Christian providers.

Judge Reed O’Connor in the Northern District of Texas vacated an Obama-era regulation that prohibited insurers and providers who receive federal money from denying treatment or coverage to anyone based on sex, gender identity or termination of pregnancy.

It also required doctors and hospitals to provide “medically necessary” services to transgender individuals as long as those services were the same ones provided to other patients.

O’Connor, the same judge who last year ruled that the entire Affordable Care Act is unconstitutional, said the rule violates the Religious Freedom Restoration Act.

The Obama Administration had defended the rule, but–surprise!– the Trump administration refused to do so.

The Trump administration is working on a regulatory fix and has issued a proposed rule that would scrap ObamaCare’s definition of “sex discrimination” to remove protections for gender identity.

According to Texas news sources, Judge O’Connor–a George W. Bush appointee– is so reliably partisan that he has become a “go-to” favorite for conservative judicial activists. Attorneys General in Texas strategically file politically-charged cases in O’Connor’s court.

Mitch McConnell has been busy elevating people like O’Connor to the federal bench.

Of course, the fact that a judge has a reputation for bias doesn’t mean that any particular decision is wrong. (As the saying goes, stopped clocks are right twice a day.) So it’s important to explain what’s wrong with O’Connor’s definition of religious liberty.

Thanks to the First Amendment’s Free Exercise Clause, churches and religious organizations are exempt from civil rights laws that violate their beliefs. Individuals, however, are not.

For culture warriors, protecting the right of churches to follow the dictates of their faith–even when those dictates are inconsistent with civil rights laws–isn’t sufficient. According to their argument, if they can’t fire employees they discover are gay, if they can’t refuse to rent apartments or provide services to LGBTQ folks, then the government is denying them religious liberty. (This is a variant of the argument that anti-bullying legislation infringes the “free speech rights” of the bullies.) They should be able to pick on gay people—or black people, or women, or Muslims–if they claim a religious motivation.

Obviously, an exemption for “religious motivation” would eviscerate civil rights laws.

The religion clauses of the First Amendment require that government be neutral between religions, and between religion and non-religion. But there are people who simply cannot abide the notion of a neutral government, people who experience “live and let live” and civic equality as affronts to the primacy to which they feel entitled.

In that worldview, a government that insists on fair play for gay people in the public sphere is a government that’s denying them religious liberty.

It’s not a new argument.

When Congress enacted the 1964 Civil Rights Act, opponents protested that being forced to hire or do business with women or people of color violated their religious liberty (their bible told them that races should be separate and women submissive). And it did limit their liberty. In a civilized society, our right to do whatever we want is constrained in all sorts of ways; I don’t have the liberty to play loud music next to your house at 2:00 a.m., or drive my car 100 miles per hour down a city street. And so on.

If you don’t approve of gay people, or African-Americans, or Muslims, or whoever—the Constitution says you don’t have to invite them over for dinner. You have the right to exclude those you consider “sinners” from your church, your private club and your living room.

Your shoe store or your hospital, not so much.

We live in a society with lots of other people, many of whom have political opinions, backgrounds, holy books, and perspectives that differ significantly from our own. The only way such a society can work is within a legal system and culture that respects those differences to the greatest extent possible. That means treating everyone equally within the public/civic sphere, while respecting the right of individuals to embrace different values and pursue different ends in their private lives.

When the government refuses to make everyone live by a particular interpretation of a particular holy book, that’s not a War on Christianity. It’s recognition that we live in a diverse society where other people have as extensive a right to respect and moral autonomy as the right we claim for ourselves.

The O’Connors of the world reject that fundamental civic equality, which is why they don’t belong on the bench.

 

 

 

 

 

The Forty Percent

A recent column by Gary Younge, a Guardian columnist has identified the most dangerous problem illuminated by Donald Trump’s erratic and incompetent Presidency–and it isn’t his obvious mental illness.

It’s the 40% of Americans who still approve of his performance.

As Younge notes, there is no serious debate about Trump’s mental disorders among most observers.

Divining, assessing and adjudicating the mental health of this US president has become more than just a parlour game. Following a 2017 conference, 27 psychiatrists, psychologists and other mental health experts wrote a book, The Dangerous Case of Donald Trump, arguing it was their moral and civic “duty to warn” America that “for psychological reasons”, Trump was “more dangerous than any president in history”. They diagnosed him with everything from “severe character pathology” to “delusional disorder”, which can be added to the more common verdicts of “narcissistic personality disorder” and “antisocial personality disorder” which are regularly offered.

Younge also notes the signs of deterioration, as the pressures of impeachment mount, and polls showing that he is likely to lose his bid for re-election proliferate.  Trump’s bizarre behaviors are more frequent (although somehow that doesn’t seem possible), and his melt-downs more embarrassing and concerning. It is, as Younge writes, “deeply worrying” that the powers of the presidency are in the hands of a man who is “at one and the same time so brittle, aggressive, vindictive, ridiculous and self-obsessed.”

As dangerous as this administration is, however–as much harm as it is doing and may still do–Younge argues that it would be a mistake to think that simply replacing Trump and the cabal he has assembled with rational and honest public servants will solve the problem.

The problem, Younge says, isn’t just Trump. It’s how he got to the Oval Office. It is the nearly 63 million people who voted for him, and the 35-40% who still tell pollsters they approve of his performance.

For along with Trump’s personal frailties is a series of political characteristics that underpins his anomie. He is a misogynist, a racist, a xenophobe and a nationalist. Those are not psychological descriptors but political ones, fortified by systems and ideology.

As such, his behaviour has been irascible but hardly erratic. The rhetorical objects of his disdain are not random. He has not lashed out at the National Rifle Association, the religious right or white people. Politically, his tantrums invariably find their mark in the weak, the poor, the dark, the female, the Muslim, the marginalised and the foreigner. (He will attack powerful people, but not simply for existing. They must cross him first.)

These inclinations were clear when he stood for the presidency. He has been every bit as bigoted, undisciplined, indiscreet, thin-skinned and braggadocious as his campaign promised. And he won.

This was not because people didn’t see those things, but because they either didn’t care, cared about other things more, preferred him to the alternative, or simply didn’t show up. As such, his victory marked a high point for the naked appeal of white supremacy in particular and rightwing populism in general, and a low point for the centre-left, neoliberal agenda.

In other words, Younge tells us, Trump’s bigotries–his particular form of mental illness– enjoy significant, if not majority, support. His hatreds are shared–or at least not considered disqualifying– by millions of people.

That is our problem. And it’s chilling.

 

A Meditation On Media

Is our current media environment to blame for America’s social dysfunction? Two critical questions:

In a large and diverse country, the ability of citizens to participate in the democratic process on the basis of informed decisions is heavily dependent upon the quality, factual accuracy, objectivity and completeness of the information available to them. Do Americans have the ability to select credible information from the incessant competition for eyeballs and clicks?

In a world where the news and entertainment environments are increasingly fragmented, where a media landscape populated with broadly shared information and common cultural references is disappearing, can Americans even conduct a truly public conversation?

Our ability to devise answers to these questions is constrained both by America’s commitment to freedom of speech and press—a commitment set out in and protected by the First Amendment—and a recognition that efforts by government to control what citizens can access online would be more dangerous than the current situation (assuming such control would even be possible in the age of the Internet).

So how did we get here? And far more importantly, how do we get out?

A series of new technologies challenged and ultimately defeated journalistic norms that had developed over the years. Cable television ushered in a virtually unlimited number of channels, upending government rules created for an era in which the federal government owned and auctioned off the limited number of usable broadcast frequencies. The numerous new cable networks made possible by the new technologies were unconstrained by the earlier requirement that their use of the airwaves be consistent with “the public interest.”  The subsequent development of the Internet greatly reduced the costs that had previously prevented the entry of numbers of would-be publishers by dramatically reducing the  investment needed to compete with established newspapers and magazines. Suddenly, virtually anyone with a computer, an internet connection and the ability to generate content could claim to be news sources. Professional journalists found themselves competing for readers’ attention with thousands of webpages, in many cases produced by persons and organizations unacquainted with and unrestrained by professional norms and ethics.

By the time the digital revolution took hold, much of cable news (and virtually all of talk radio before it) had already reverted to the explicit partisanship of earlier days. Fox News may have been the most effective; it shrewdly attacked and undermined the ethic of objectivity by elevating balance as the metric by which journalism was to be judged. The network’s motto, “Fair and balanced” reconceptualized journalism as stenography: suggesting that only “he said, she said” reporting was “fair,” and that failure to devote equivalent air time or column inches to “both sides” equated to media bias. Efforts to achieve “balance” (and thus “fairness”) led to reporters giving equal time to arguments for and against settled science or law; the reality of climate change, for example, was portrayed as an ongoing debate, despite the fact that some 97% of scientists are on one side of that debate and only a few outliers (mostly financed by fossil fuel interests) continue to take an opposing view. Such an approach to reporting leaves readers with the impression that matters of established fact are still unresolved. Balance so conceived does not require objectivity; worse, the pursuit of balance perversely operates to relieve journalists of a vital part of their job: determining, verifying and reporting what is and is not factual, so that the public can make genuinely informed decisions.

The great promise of the Internet was that it would make much more information available, and that Americans’ access to information would no longer be limited by the gatekeeping function of the legacy media. Online, many more stories could be told and they could be told in much more depth. Those undeniable gains, however, have come at a considerable and largely unanticipated cost—notably, the return of an intensely partisan media, wide dissemination of spin, conspiracy theories and outright propaganda, a massive loss of local reporting (especially about local government), the hegemony of new and enormous online platforms (most prominently Google, Facebook and Twitter), growing and corrosive public uncertainty about the accuracy of all news, and the near disappearance of a truly mass media.

It’s one thing to disagree about something that everyone can see. Different people can look at a photo, a piece of art, or a draft of a pending bill, and disagree about its meaning or, in the case of proposed legislation, whether it is a good idea, or would be effective in achieving its purported purpose. In a fragmented media environment that gives disproportionate time and space to assorted “pundits” of varying philosophies and degrees of probity (talking heads are much cheaper than investigative reporters), however, the American people are far too often not seeing the same thing, hearing the same analyses, or occupying the same reality.

Today’s media environment is reminiscent of the time before cellphones when a friend and I agreed to meet for lunch at “the tearoom.” Back then, two department stores in our city had tearooms; I went to one while she went to the other. This made conversation impossible, in much the same way that our current media environment, which places citizens in different “rooms” or conversations, impedes genuine communication.

There is a difference between an audience and a public. Journalism is about more than dissemination of news and other information; it’s about the creation of shared awareness. It’s about occupying the same reality (or eating at the same tearoom).  It’s about enabling and facilitating meaningful communication. As the information environment continues to fracture into smaller and more widely dispersed niches, Americans are losing the common ground upon which public communication and discourse depend. When cities had one or two widely-read newspapers, subscribers were exposed to the same headlines and ledes, even if they didn’t read through the articles. When large numbers of Americans tuned into Walter Cronkite’s newscast or to one of his two network competitors, they heard reports of the same events.  Recent research showing that political polarization increases after local newspapers close shouldn’t surprise us.

If today’s citizens do not share a reasonable amount of accurate information, if different constituencies access different media resources and occupy incommensurate realities, what happens to the concept of a public? To the ideal of informed debate? How do such citizens engage in self-government? If I point to a piece of furniture and say it’s a table, and you insist that, no, it is a chair, how do we decide how to use it? Worse still, if my description of the furniture goes to one audience, and your contrary description goes to another, to whom do we transmit a correction? How do we counter spin, propaganda or even honest mistakes when we have no way of determining who received those original, erroneous messages?

If the ultimate effects of our current information environment are unknown, the intermediate effects are less ambiguous. Citizens who choose different sources for their  news and information tend to choose sources that solidify and confirm their tribal affiliations, reinforce their fears, and make it more difficult to understand the perspectives of those with whom they disagree. Worse, the growth of uncertainty about the validity of what we encounter online has undermined trust in a wide variety of social and governmental institutions. Today, the most effective way to censor something is to sow distrust rather than by suppressing or muzzling the speech itself.

In the November, 2016 election, top fake election news stories generated more total engagement on Facebook than top election stories from 19 major news outlets combined. The ability of social media platforms to target recipients for information based upon sophisticated analyses of individual preferences threatens the very existence of a genuinely public sphere in which a true marketplace of ideas could operate. We are clearly in uncharted waters.

The obvious question is: what can be done? How can Americans take advantage of the substantial benefits that come with access to virtually unlimited information while avoiding the pitfalls of atomization, inaccuracy and outright propaganda? How can we ensure that enough citizens share enough information to engage in informed debate and  political conversation?

It’s too late to put the genie back in the lamp.

The Way We Never Were

One of my favorite books is The Way We Never Were: American Families and the Nostalgia Trap, by Stephanie Coontz. The book is a great read, and a debunking of the myths Americans like to tell ourselves: that in the “olden days” we didn’t depend on government largesse (we “always stood on our own two feet”), nice women were chaste (out-of-wedlock pregnancies are somehow a consequence of modern sinfulness), and similar beliefs belied by the evidence.

As Coontz documents, a man’s home has never been his castle, the “male breadwinner marriage” is the least traditional family in history, and rape and sexual assault were far higher in the 1970s than they are today.

Over at Dispatches from the Culture Wars, Ed Brayton reports that Salman Rushdie has updated Coontz’ insight and applied it to our contemporary political environment.

“I think that what Mr. Trump is doing here that is similar to what’s happening in Britain and even what’s happening in India is in all three place, leaders are inventing a mythology of a false past, a kind of golden age, you know, that if we could only get back to, that everything would be good,” Rushdie told anchor Ari Melber. “You know, make America great again. You want to ask when exactly was that? Was it last week? Was it before slavery was abolished? Was it before the civil rights movement? Was it before women had the vote? When was America great in the way we should get back to?“

The myth of the — the golden age is always a myth,” said Rushdie. “Boris Johnson right now in Britain is trying to sell the idea of a golden age of England that could be restored if only all these inconvenient foreigners would go away. Mr. Modi in India is trying to sell the idea of an ancient golden Hindu age which has been ruined by the presence of Muslims. All three are doing the same thing. They’re inventing history in order to justify the actions of the present, and I think that’s dangerous.”

As Brayton notes, this is the appeal of nostalgia for a past that never existed.

It’s the classic “paradise lost” myth and it’s a powerful emotional motivator for the most ignorant among us. We used to have a garden of Eden, until “they” came along and ruined it, so we just need to get rid of “them” and we can return to our glorious past and Make America Great Again. The weak minded, historically ignorant and most insecure among us find this kind of appeal irresistible. “They” can be almost any group of people, including vaguely defined groups like the “deep state.” It could be Muslims, Latinos, gay people, black people — the barbarians are perpetually at the gate, ready to storm the country and make it their own instead of the rightful owners of society, straight Christians.

I would amend that last sentence to read “straight white Christian men.” but otherwise, I think he is absolutely correct.

I have observed that this manufactured nostalgia is particularly seductive to older white men who have been disappointed in their lives. These are men who have gotten to a certain age without fulfilling whatever ambitions or dreams they may have entertained when they were young. Disappointment often breeds bitterness and a need to blame someone. It’s the fault of those uppity women! It’s because of affirmative action! It’s those immigrants! I’d have been properly appreciated in “the old days.”

It’s a short step to MAGA.

 

Is Resistance Futile?

The Trump administration’s one area of consistency is its determination to lay waste to large areas of American government. Consumer protections have been hollowed out; the Department of Education favors for-profit private schools over the needs of public ones; public lands are being exploited and despoiled; the Department of Justice has been turned into a Presidential lapdog; and decades of diplomacy have been upended.

But arguably, the greatest damage has been to environmental regulation, as the administration has waged a relentless war on science and the EPA. Now, according to the Guardian, at least some scientists are fighting back.

An advisory panel of air pollution scientists disbanded by the Trump administration plans to continue their work with or without the US government.

The researchers – from a group that reviewed the latest studies about how tiny particles of air pollution from fossil fuels make people sick – will assemble next month, a year from the day they were fired.

They’ll gather in the same hotel in Washington DC and even have the same former staffer running the public meeting.

A spokesperson for the group said that Trump’s EPA has significantly weakened its science review process, and that the group intended to meet “as a public service” and  “tap our expertise and develop advice which we will share with EPA.”

It’s a noble effort. But…they are fighting people in a position to do substantial harm.

The Trump administration is accused by at least half a dozen whistleblowers of muzzling climate and pollution science.

The air pollution experts follow in the footsteps of a separate group that reassembled to call for the government to better prepare for climate disasters. Their advice will come as EPA conducts a scheduled review of its standards for particle pollution, the tiny specks that enter the lungs and cause breathing and heart problems that can kill.

Gretchen Goldman, research director at the Union of Concerned Scientists, called the regulation the “holy grail” for industry, and she said that’s why the Trump administration wants to weaken it by the end of 2020, before a new president might enter the White House.

Trump officials evidently plan to argue that particle pollution isn’t as bad as previously thought. That would allow the administration to accede to industry arguments and roll back environmental and health protections.

Trump’s EPA ended the particulate matter advisory board nearly a year ago. The agency also replaced many of the academic scientists on a broader science panel with scientists from industry and conservative states.

Earlier this month, EPA chief Andrew Wheeler selected a new group of “non-member consultants” to assist that panel with work on both particle pollution and smog. About half of the new consultants are linked with industry. Their recommendations to the panel will happen behind the scenes, rather than in public meetings.

“Behind the scenes,” environmental protections are being gutted, and respected, non-ideological scientists are being replaced by industry hacks.

Kudos to the scientists who are fighting back by meeting–at their own expense– in defiance of the administration’s willingness to fatten the bottom lines of fossil fuel companies at the expense of the people who breathe polluted air. It is a valiant effort to hold the EPA accountable to its mission, but it’s unlikely to persuade the bottom-feeders who currently run the agency, and whose “mission” is to render it toothless.

Unless the 2020 election returns governance to people who actually believe in governing rather than looting, resistance is probably futile.