Category Archives: Constitution

Christian Grievance

Sometimes, a news article will hit several of my hot buttons. This recent one managed to do so. (Not that it is particularly difficult to piss me off…the older I get, the crankier…)

Here’s the gist of the story: a poll taken by Politico discovered that

about 57 percent of Republicans, and 70 percent of Americans overall, believe the Constitution would not allow America to be declared a “Christian nation.” Respondents were then asked “Would You Favor or Oppose the United States Officially Declaring the United States to be a Christian Nation?”

Sixty-one percent of Republicans were in favor of just that, with 78 percent of Republicans who identify as an evangelical Christian backing the idea. Support was even higher among older Republicans.

Regular readers of this blog know of my preoccupation with America’s low levels of civic and constitutional literacy. These percentages reflect that only 57 percent of Republicans understand–or are prepared to acknowledge– the intended effect of the First Amendment, or the history of America’s constitutional debates.

Then, of course, there’s the little matter of America’s still-pervasive racism. Evidently, there are still a lot of White folks who are dogged believers that the pre-Civil War South should rise again, whether or not it actually will…

Per Politico

Our polling found that white grievance is highly correlated with support for a Christian nation. White respondents who say that members of their race have faced more discrimination than others are most likely to embrace a Christian America. Roughly 59 percent of all Americans who say white people have been discriminated against a lot more in the past five years favor declaring the U.S. a Christian nation, compared to 38 percent of all Americans. White Republicans who said white people have been more discriminated against also favored a Christian nation (65 percent) by a slightly larger percentage than all Republicans (63 percent).

Regular readers are also well aware of my language prejudices; I have this old English-teacher belief that words have meanings, and that communication requires that the people using those words broadly agree upon those meanings.

In any sane world, the assertion that White Americans suffer discrimination would be met with incomprehension. I know that political strategists dislike the contemporary use of the term “privilege”–its users sound elitist, and when one thinks of “privilege,” what comes to mind is unfair advantage. (Actually, White skin does confer advantage, just not the kind of material advantage that this particular word brings to mind.)

The fact remains that, in the good old U.S. of A., what is perceived of as discrimination against White people is a very overdue erosion of the considerably privileged status that skin color has historically  afforded them.

When I express my frequent criticisms of Christian Nationalism (which is, in reality, White Christian Nationalism), I try to be very clear that I am not criticizing Christianity. (To appropriate a phrase, some of my best friends are Christian..) I am happy to report that real Christians agree with me, as the following excerpts from a statement from Christians Against Christian Nationalism makes clear.

Christian nationalism seeks to merge Christian and American identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism demands Christianity be privileged by the State and implies that to be a good American, one must be Christian. It often overlaps with and provides cover for white supremacy and racial subjugation. We reject this damaging political ideology and invite our Christian brothers and sisters to join us in opposing this threat to our faith and to our nation.

The statement affirms basic constitutional principles: That “one’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community,” and that
“government should not prefer one religion over another or religion over nonreligion.” And it affirms others:

Conflating religious authority with political authority is idolatrous and often leads to oppression of minority and other marginalized groups as well as the spiritual impoverishment of religion.

We must stand up to and speak out against Christian nationalism, especially when it inspires acts of violence and intimidation—including vandalism, bomb threats, arson, hate crimes, and attacks on houses of worship—against religious communities at home and abroad.

Whether we worship at a church, mosque, synagogue, or temple, America has no second-class faiths. All are equal under the U.S. Constitution. As Christians, we must speak in one voice condemning Christian nationalism as a distortion of the gospel of Jesus and a threat to American democracy.

So Republicans who want to label America as a “Christian Nation” manage to hit several of my hot buttons: concerns about civic literacy and the normalization of racism, annoyance at the misuse of language, and deep, deep fear of the rise of Christian Nationalism.

Politico did it all with one statistic…

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The Talevski Case

Over the past couple of weeks, several people have contacted me asking that I comment on an Indiana lawsuit that is currently on appeal to the Supreme Court, which will hear it this coming session unless the parties settle and pull it from consideration. The case is Health and Hospital Corporation v. Talevski. 

There is a (well-founded) fear that the current, retrograde Supreme Court majority will use this case to eliminate the use of Section 1983 by Medicaid beneficiaries.

Section 1983 is a 150-year-old provision of federal law that permits citizens to sue when government is violating their rights. If such a suit is successful, a companion provision requires that government pay the lawyer who handled the successful case. (Needless to say, without some prospect of being paid, very few lawyers will be willing to accept such cases–and in the case of Medicaid, plaintiffs by definition lack the resources to make such payments.)

I’ve been reluctant to address the case, because it is very technical and it’s been a long time since I was a practicing lawyer. It’s one thing to pontificate about the Constitution, which I’ve been teaching for the past 20+ years, and quite another to do a “deep dive” into an area of the law with which I am no longer familiar. For that matter, my own background with Section 1983 focused on its use to sue government  when someone who is acting “under color of state law” deprives citizens of their civil rights; I was far less familiar with its use under the Spending Clause, which Talevski threatens.

Because several of the people expressing concern are people I highly respect, I did a bit of research. That research included consulting Indiana’s ACLU, which very kindly provided me with a letter the office had previously issued on the subject. Here is the opening paragraph of that letter:

To Whom It May Concern:

As you are undoubtedly aware, in Health and Hospital Corporation v. Talevski, the U.S. Supreme Court has agreed to address the issue of whether spending-clause legislation may be enforced through an action brought pursuant to 42 U.S.C. § 1983.  It is, of course, impossible to predict how the Court will resolve this issue, or how narrow or broad its holding might be.  However, our office has a lengthy history of relying on § 1983 to remedy violations of spending-clause legislation that is designed to protect the neediest Hoosiers.  An unfavorable decision in Talevski could serve as an absolute bar to similar litigation in the future.

I try to keep these posts relatively brief, but given the stakes of this litigation and the concerns it raises, I am going to end this post by pasting in the rest of the ACLU’s letter. Before I do so, however, I want to confirm my agreement with the assertion that eliminating use of Section 1983 would effectively eliminate the rights of literally millions of Americans who rely on Medicaid.

A right without a remedy for its violation is not a right at all. And given the current composition of the Supreme Court, the threat that important rights will be “on the chopping block” is not an idle one.

Below is the portion of the letter from ACLU lawyer Gavin Rose describing just how important Section 1983 has been in enforcing the rights of Hoosiers and all American citizens.

_______________________

In Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012), our office filed a lawsuit challenging a recently enacted Indiana statute prohibiting state agencies from paying state or federal funds to any entity that performs abortions.  Although we raised a constitutional claim, the primary claim—and the claim on which the statute was ultimately invalidated by the Seventh Circuit—was that, by denying Medicaid recipients the ability to receive family-planning services through Planned Parenthood, the statute violated the free-choice-of-provider provision of federal Medicaid law, 42 U.S.C. § 1396a(a)(23).  Federal Medicaid law, like the entirety of the Social Security Act, was enacted pursuant to Congress’s spending-clause authority.

In addition to allowing recipients to select the providers from whom they wish to receive services, federal Medicaid law establishes that participating states must provide certain enumerated services to Medicaid-enrolled individuals and that they may elect to provide additional services.  See 42 U.S.C. § 1396a(a)(10)(A).  However, once a state provides a certain service, whether the provision of that service is required or optional, the state must pay for that service whenever it is “medically necessary” for a Medicaid recipient.  With overwhelming success, our office has routinely relied on § 1983 to bring litigation when Indiana has failed to provide for the receipt of medically necessary services by children, persons with severe disabilities, or other vulnerable Hoosiers:

Ø  In Selner v. Secretary of the Indiana Family & Social Services Administration, No. 1:15-cv-01874-SEB-MPB (S.D. Ind.), we filed a class action lawsuit challenging Indiana’s refusal, in contravention of virtually unanimous medical opinions, to provide Medicaid coverage for the ground-breaking Hepatitis C drugs unless a patient had already experienced substantial liver damage.  The lawsuit resulted in a settlement agreement whereby Indiana agreed to cover the medications without regard to the severity of an individual’s disease.

Ø  In Bontrager v. Indiana Family and Social Services Administration, 697 F.3d 604 (7th Cir. 2012), our office represented a Medicaid recipient in need of significant dental services who challenged Indiana’s $1,000 annual “cap” on such services.  After concluding that this “cap” excluded medically necessary services and therefore violated federal Medicaid law, the Seventh Circuit affirmed the issuance of a preliminary injunction in favor of our client.

Ø  In A.M.T. v. Gargano, 781 F. Supp. 2d 798 (S.D. Ind. 2011), we represented a class of children with severe disabilities (such as cerebral palsy or other muscular disorders) that had been prohibited from receiving physical or occupational therapy because Indiana determined that the therapy would not result in further functional progression, even though the children would experience significant regression in absence of therapy.  The district court entered summary judgment in our client’s favor, enjoining Indiana from enforcing its prohibition on so-called “maintenance therapy.”

Ø  In Chadwell v. Indiana Family & Social Services Administration, No. 11D01-0808-PL-373 (Clay Cnty. Superior Court), we represented a class of severely disabled Medicaid recipients who relied on so-called “attendant care services”—which are utilized to assist persons in performing their activities of daily living—to allow them to live in the community rather than in an institutional setting.  After Indiana restricted persons from receiving more than 40 hours a week in these services, we filed suit.  The court issued first a preliminary injunction and then summary judgment in our clients’ favor.

Ø  In McArty v. Roob, No. 49D04-0606-PL-24259 (Marion Cnty. Superior Court), we represented a class of Medicaid recipients in need of dentures or related repairs in challenging Indiana’s refusal to cover these services for persons who had received similar services within the past six years.  After we filed suit, Indiana entered into a consent decree in which it agreed to provide coverage for medically necessary services without regard to its six-year restriction.

Ø  And in Collins v. Hamilton, 349 F.3d 371 (7th Cir. 2003), we successfully represented a class of mentally ill children in challenging Indiana’s failure to provide Medicaid coverage for long-term residential treatment in certain residential facilities.

On top of all this, in order to ensure that persons in need are not forced to wait indefinitely while states contemplate their eligibility for public benefits, federal law frequently establishes specific time limits that states must meet to process applications or appeals.  In the past, our office has relied on § 1983 to file class-action litigation seeking to enforce federal-law time limits to issue decisions on Medicaid applications (Thornton v. Murphy, No. 1:08-cv-01853-LJM-DML – S.D. Ind.), to resolve unemployment appeals (Gorman v. Commissioner of the Indiana Dep’t of Workforce Development, No. 49D06-1006-PL-26087 – Marion Cnty. Superior Court), to resolve Medicaid appeals (Murray v. Roob, No. 49D12-0505-PL-16671 – Marion County Superior Court), and to resolve Food Stamp appeals (Nickels v. Roob, No. 49D01-0701-PL-4025 – Marion Cnty. Superior Court).  We have also relied on federal Medicaid law to file a lawsuit challenging Indiana’s failure to obtain and evaluate required medical evidence before deciding that an applicant is not disabled and therefore ineligible for benefits (Bailey v. Sullivan, No. 1:94-cv-00089-SEB-JMS – S.D. Ind.).  Each of these cases was resolved through a favorable settlement agreement or consent decree.

Finally, Title IV-E of the Social Security Act, among other things, requires participating states to cover certain costs for children in foster care and to provide payments on behalf of adoptive children with special needs.  In C.H. v. Payne, 683 F. Supp. 2d 865 (S.D. Ind. 2010), our office represented several classes of foster children and adoptive children with special needs, and their parents, in an action to challenge Indiana’s reduction in the payments made on behalf of children to a level insufficient to meet their most basic needs.  A private law firm representing the Indiana Association of Residential Child Care Agencies, Inc. filed a similar lawsuit (which was consolidated with the C.H. case) addressing payments to certain providers.  After hearing evidence, the district court issued a preliminary injunction against the payment reductions on the same day as the hearing and memorialized its conclusions in a written decision less than a week later.

*                       *                       *
The cases that I have identified represent a partial list of actions alleging violations of spending-clause legislation brought by a single law office.  Frequently on behalf of persons in dire need, other attorneys have initiated countless similar cases both in Indiana and across the nation.  As indicated, I cannot predict how the Supreme Court will ultimately resolve Talevski.  However, any holding that spending-clause legislation may not be enforced through § 1983 would undoubtedly jeopardize the ability to bring similar cases in the future.

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Justice Roberts Knows Better

Survey research has shown a sharp increase in the number of Americans who have very negative opinions of the Supreme Court. In response to that research, Chief Justice Roberts recently delivered an admonition: “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Really, Justice Roberts? Were you able to deliver that pearl of wisdom with a straight face?

As a number of pundits have noted–and as Roberts certainly knows– the dramatic drop in approval isn’t a consequence of unpopular results. It’s a consequence of the shocking dishonesty of the reasoning used to achieve those unpopular results, and the blatant illegitimacy of the processes that seated political/religious ideologues on the Supreme Court bench.

One of the most incisive responses to the Chief Justice’s weak defense was written by (formerly Republican) Jennifer Rubin, in the Washington Post.

Rubin correctly characterized Roberts’ remarks as unprofessional “whining,” noting that “no court was more heavily criticized than the Warren court.”

Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.

After noting that Roberts “really doesn’t get it,” and marveling about the degree to which the current court is “utterly and completely tone-deaf to its role in the destruction of its own integrity,”  Rubin  issued a withering critique that pinpointed the reasons this Court is so widely–and correctly– viewed as illegitimate:

Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.

And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.

Rubin’s column quotes a number of highly respected legal scholars who have been appalled by highly politicized decisions issued by this court.

It is true, as Rubin acknowledges, that Roberts didn’t author the most egregious opinions, but he has joined them. Rubin identifies the abortion ruling in Dobbs, the prayer-in-schools ruling in Bremerton, and the Brnovich decision on voting rights, written (again!) by Alito–a decision that Norman Ornstein accurately criticized as blatantly ignoring the plain language of the law and rewriting it to fit his “partisan and ideological views.”  She also quotes Ornstein’s observation that Roberts has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

Rubin quotes Stephen I. Vladeck, a law professor at the University of Texas saying  “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?” The operative word in that quote is “principled.” Americans respond very differently to Supreme Court decisions with which they disagree when they can see that those decisions were principled exercises in legal analysis rather than obvious distortions of facts and precedents employed to reach a preferred result.

Americans will also respond differently to decisions that expand American liberties rather than  reverse them. This Court is the first in U.S. history to constrict, rather than enlarge, individual liberty. When it removed a constitutional right that Americans had relied upon for  fifty years through a historically dishonest and legally-tortured decision, the Court focused  a glaring spotlight on its own illegitimacy.

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

Good proposals, but they will only be possible if large majorities of Americans vote Blue in November.

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Same-Sex Marriage Is Next

So you don’t have a uterus, and you don’t care about the Supreme Court’s decision striking down Roe v. Wade? Better hope you aren’t a member of the LGBTQ community, either–because gay folks are now in the line of fire, per Talking Points Memo.

After passing the House with the support of 47 Republicans, the Respect for Marriage Act, which would protect marriage rights for same-sex couples if the Supreme Court were to overturn its 2015 decision in Obergefell v. Hodges, faces much dimmer prospects in the Senate. There is one reason why: the Christian right still controls the Republican Party. Movement leaders know it took 50 years to reverse Roe, and are committed to a similar strategy to undermine and eventually overturn Obergefell. With abundant clues in the Supreme Court’s June decision overturning Roe that LGBTQ rights could be next on the chopping block, it is unimaginable that movement leaders would sink that goal by allowing this bill to become law.

Republican senators are keenly aware of this. That is why South Dakota’s John Thune and Louisiana’s Bill Cassidy accused Democrats of introducing the bill to distract from inflation. It is why Florida’s Marco Rubio called it “a stupid waste of time,” and claimed gay Floridians are “pissed off” about something else — high gas prices. And it is why Maine’s Susan Collins, who was one of the bill’s four original Republican supporters, came up with the laughing-crying emoji argument that, because Majority Leader Chuck Schumer (D-NY) and Sen. Joe Manchin (D-WV) had struck a surprise deal on Democratic legislative priorities late last month, she would struggle to win fellow Republicans’ support for the marriage bill. “[I]t was a very unfortunate move that destroys the many bipartisan efforts that are under way,” she told HuffPost.

The article went on to document the “avalanche of opposition” to the bill from the Christian Right that effectively controls today’s GOP.

The Family Research Council Action began calling the bill the “(Dis)Respect for Marriage Act” before it even reached the House floor, and pointed to the provision in the party’s   platform (back when the GOP still bothered with such things) that states, “[t]raditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values.”

FRC Action also ginned up fear among its members by alleging that the bill would be used to persecute them and take away their religious freedom. (I remind readers that–in Christian Nationalist language, “religious freedom” is defined as freedom to impose their fundamentalist  Christianity on everyone else.)

It reminded them that in the 1970s, the IRS revoked the tax exemption of the segregationist, fundamentalist Christian Bob Jones University over its racist policies, suggesting, despite the fact that it hasn’t happened in the seven years since Obergefell, that universities and nonprofits that oppose marriage equality could face a similar fate. The American Family Association called the bill “an Orwellian attempt to pretend that the Court’s very recent discovery of a constitutional right to same-sex marriage is not controversial and offensive to many people around the country.” The Heritage Foundation called it a “publicity stunt” aimed at “tak[ing] the spotlight off progressives’ radical policies and paint conservatives as bigots — and all this conveniently before the midterm elections.”

Ever since Justice Alito’s dishonest framing in Dobbs, I have warned that his attack on the doctrine of substantive due process–the doctrine that certain matters are none of government’s business–threatens numerous rights beyond abortion. If a woman no longer has the right to choose abortion, what about choosing to use birth control? What prevents government from decreeing that same-sex marriage erodes “the foundation for a free society?”

As Talking Points Memo concluded,

It’s crucial not only to understand what Christian nationalism is as an ideology, but to understand how right-wing operatives have attained the power to subvert democratic structures and democratic values in order to make it the core of anti-majoritarian rule. The opposition to the Respect for Marriage Act is an object lesson in how that power works. Christian right operatives and lawyers argue that America is a Christian nation, that Christians’ right to practice their religion must be protected from secular, progressive incursions like constitutional rights for LGBTQ people, and that it is the duty of judges and government officials to ensure that these “biblical” values are secured. With a sympathetic majority on the Supreme Court and a razor-thin Democratic majority in the Senate with filibuster rules favorable to conservatives, the Christian right has every incentive to deploy this power. And because Republicans no longer have an alternative base upon which to build a coalition, they will continue to relent.

Voting Blue has never been more important.

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The Library And The Culture War

Over the years, I have come to admire two professions above most others: social workers and librarians. The social workers I’ve come to know are simply wonderful human beings–compassionate, caring and non-judgmental. (If we admire traits we personally lack, that would explain my awe about that “non-judgmental” thing…) The librarians I know are dedicated protectors of the First Amendment, and absolutely fearless defenders of our right as individuals to access whatever information interests us.

The traits of both professions are obviously anathema to the White Christian Nationalists who control today’s GOP . Those culture warriors are especially intent upon controlling what other people can read, and that single-minded devotion to cultural control brings them into fairly regular conflict with librarians and the mission of the nation’s libraries, so I suppose I shouldn’t have been shocked by a recent headline from The Guardian: US library defunded after refusing to censor LGBTQ authors: ‘We will not ban the books.’

A small-town library is at risk of shutting down after residents of Jamestown, Michigan, voted to defund it rather than tolerate certain LGBTQ+-themed books.

Residents voted on Tuesday to block a renewal of funds tied to property taxes, Bridge Michigan reported.

 The vote leaves the library with funds through the first quarter of next year. Once a reserve fund is used up, it would be forced to close, Larry Walton, the library board’s president, told Bridge Michigan – harming not just readers but the community at large. Beyond books, residents visit the library for its wifi, he said, and it houses the very room where the vote took place.

“Our libraries are places to read, places to gather, places to socialize, places to study, places to learn. I mean, they’re the heart of every community,” Deborah Mikula, executive director of the Michigan Library Association, told the Guardian. “So how can you lose that?”

What was the library’s sin? It refused to remove materials about sexual orientation from its shelves–materials that the residents asserted were “grooming” children to adopt a “gay lifestyle.”

The controversy in Jamestown began with a complaint about a memoir by a nonbinary writer, but it soon spiraled into a campaign against Patmos Library itself. After a parent complained about Gender Queer: a Memoir, by Maia Kobabe, a graphic novel about the author’s experience coming out as nonbinary, dozens showed up at library board meetings, demanding the institution drop the book. (The book, which includes depictions of sex, was in the adult section of the library.) Complaints began to target other books with LGBTQ+ themes.

One library director resigned, telling Bridge she had been harassed and accused of indoctrinating kids; her successor, Matt Lawrence, also left the job. Though the library put Kobabe’s book behind the counter rather than on the shelves, the volumes remained available.

“We, the board, will not ban the books,” Walton told Associated Press on Thursday….

The library’s refusal to submit to the demands led to a campaign urging residents to vote against renewed funding for the library. A group calling itself Jamestown Conservatives handed out flyers condemning Gender Queer for showing “extremely graphic sexual illustrations of two people of the same gender”, criticizing a library director who “promoted the LGBTQ ideology” and calling for making the library “a safe and neutral place for our kids”. On Facebook, the group says it exists to “keep our children safe, and protect their purity, as well as to keep the nuclear family intact as God designed”.

I’m sure the person who wrote that had spoken to God personally about the threat. (That’s sarcasm. I admitted I’m judgmental…)

Apparently, libraries across the country are facing a surge in similar demands to ban books. The American Library Association has identified 729 challenges to “library, school and university materials and services” just in the last year–and an estimated 1,600 challenges or removals of individual books. That figure was up from 273 books the year before.

“We’re seeing what appears to be a campaign to remove books, particularly books dealing with LGBTQIA themes and books dealing with racism,” Deborah Caldwell-Stone, head of the ALA’s office for intellectual freedom, told the Guardian last year.

There is certainly “grooming” going on, but those responsible aren’t trying to sell small children on the glories of homosexuality, or destroy what’s left of the nuclear family. The real “grooming” has been done by hate-mongers like Alex Jones, the late and non-lamented Rush Limbaugh, Tucker Carlson and his fellow-travelers on Fox News–aided and abetted by fundamentalist churches and  various Rightwing organizations.

The GOP’s groomers play to the racism, misogyny and homophobia of their White Christian Nationalist base, encouraging them to direct their hysterical fear of cultural change at the nation’s libraries.

In this fight, my money is on the librarians.

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