Category Archives: Religious Liberty

“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.

 

 

 

 

 

Toleration

I’m a big fan of John Locke (of Enlightenment “Two Treatises on Government” fame). (Yes, I’m a nerd.) Although he wasn’t the only philosopher of his time to think in terms of a social contract, he was arguably the most consequential; his approach to the role of government had an enormous influence on the Founders who crafted America’s constitution. So when I came across this article about a previously unknown text of his, I was fascinated.

A “once in a generation” discovery of a centuries-old manuscript by John Locke shows the great English philosopher making his earliest arguments for religious toleration, with the scholar who unearthed it calling the document “the origin and catalyst for momentous and foundational ideas of western liberal democracy”.

Dated to 1667-8, the manuscript titled “Reasons for tolerateing Papists equally with others”, was previously unknown to academia. It had been owned by the descendants of one of Locke’s friends until the 1920s, when it was sold at auction to a book dealer. From there, it went into private collections until it was donated to St John’s College, Annapolis, in the latter half of the 20th century. It lay unstudied in archives until Locke scholar JC Walmsley noticed a reference to it in a 1928 book dealer’s catalogue, and raised an eyebrow: Locke, a hugely influential Enlightenment thinker, was not known to have extended his arguments for religious tolerance to Catholics.

Because tolerance of Catholics (or, in Catholic countries, tolerance of Protestants) was pretty much unthinkable at the time he wrote, attributing such sentiments to Locke seemed an unlikely stretch, so scholars put the newly discovered manuscript through a number of tests in order to determine whether it was, indeed, Locke’s.

It was.

“Locke is supposed to have never tolerated Catholics,” said Walmsley. “All his published work suggested that he would never even consider this as a possibility. This manuscript shows him taking an initial position that’s startling for him and for thinkers of his time – next to no one suggested this at this point. It shows him to be much more tolerant in certain respects than was ever previously supposed.”

Locke, who died in 1704, is known for his Two Treatises on Government, which which became a foundational text for modern western democracy. His other hugely influential texts included the Essay Concerning Human Understanding, which provided philosophical grounds for the scientific revolution, and A Letter Concerning Toleration, which influenced James Madison’s thinking on the separation of church and state in his work on the US constitution.

The newly-discovered document was written before A Letter Concerning Toleration, and adds to our understanding of Locke’s approach to what we now call “nondiscrimination.” As America’s religious and racial diversity explodes, the growth of “toleration”–or more properly, civic equality and inclusion–becomes an ever more critical element of a functioning polis.

Joseph Macfarland, dean of St John’s College, said it was “an unexpected pleasure to find that we are in possession of a manuscript by Locke himself on a question so critical to American political life and to liberal democracy generally”.

Calling the question critical is an understatement. We either overcome our innate tribalism and learn to live amicably together, or this experiment we call America is over.

The 2020 election provides us with a stark choice: We can re-elect Trump and validate various degrees of intolerance of anyone who isn’t a white Christian male, or we can reject the politics of hate and division and embrace “toleration.”

 

 

 

What Do Those Words Mean?

Given the overheated rhetoric coming from all sides in our current iteration of culture war, it’s tempting to dismiss the introductory paragraphs of a recent column originally published by Open Democracy as more of the same:

Any schoolchild in the United States knows that the US Declaration of Independence guarantees individuals’ rights to “life, liberty and the pursuit of happiness.”

Now, imagine what these principles mean for right-wingers and religious fundamentalists: where “life” refers to fetuses; “liberty” includes the prerogative to discriminate against LGBTIQ people; and “the pursuit of happiness” is reserved for straight, white patriarchs.

Dismissal, however, would be a mistake.

The concerns addressed by the column were triggered by Secretary of State Mike Pompeo’s announcement of a new government body: The Commission on Unalienable Rights.

According to its statement of intent, the Commission is needed as human rights “discourse has departed from our nation’s founding principles of natural law and natural rights”.

 In case you’re wondering how to distinguish “natural” rights, they’re the ones bestowed by God (at least according to Pompeo’s commissioners). One of them, Peter Berkowitz, argues that Christianity is the source of all human rights. Another, Shaykh Hamza Yusuf Hanson, sees marriage equality for LGBTIQ people as a sign of the “End Times”

Pompeo has raised eyebrows at the State Department and among America’s (increasingly concerned) allies by his efforts to conjoin America’s foreign policy and his religious fundamentalism.

An article in The New York Times noted Pompeo’s willingness to connect foreign policy to his religious beliefs.

No secretary of state in recent decades has been as open and fervent as Mr. Pompeo about discussing Christianityand foreign policy in the same breath. That has increasingly raised questions about the extent to which evangelical beliefs are influencing American diplomacy.

The Times listed Pompeo initiatives prompted by his religious beliefs, including the move of the U.S. Embassy to Jerusalem, and the expansion of Trump Administration anti-abortion policies–effected by terminating financial support for international organizations that support reproductive rights.

In speeches, Pompeo has expressed his belief that mankind is in a “never-ending struggle until the Rapture.” He told a reporter for The New York Times Magazine that the Bible informs everything he does.

His interpretation of Biblical mandates, needless to say, is not universally held even among Christians. But the fact that other people hold beliefs that differ from his hasn’t dissuaded him from his obvious belief that his is the Truth that must be imposed on everyone else.

As Open Democracy reports,

In an op-ed published by the Wall Street Journal, the Secretary of State attacks “politicians and bureaucrats [who have created] new rights”, and thus “blur the distinction between unalienable rights and ad hoc rights granted by governments”. He also asserts that “rights claims are often aimed more at rewarding interest groups and dividing humanity into subgroups”.

Women, non-Christians and gay people are thus categorized as “interest groups.”

The new commission’s initial assault is against abortion and the rights of LGBTQ people, but as the article points out, that’s only the opening salvo.

Unless you are part of the narrow demographic of rich, white men deemed to have rights in 1776, they’re coming for you too. In fact, their ideology threatens the vast majority of people – which is one reason it must be justified as “natural” and God-given.

I can think of few things more terrifying than people in positions of power who are convinced that their God has told them how He (and believe me, for these “Christians” God is always a “He”) wants them to interpret “life, liberty and pursuit of happiness.”

This Administration cannot leave soon enough.

America: Pick A Torch

It’s impossible to read a newspaper without encountering a solemn “analysis” of what the Democrats absolutely must do in order to defeat Donald Trump in 2020.

Meanwhile, it becomes clearer every day that–stripped to its essence– the 2020 election will be about one overarching issue: what kind of country do we want to be?

A widely shared visual summed it up nicely with two photographs, side by side. One was a picture of Neo-Nazis with their tiki torches in Charlottesville; the second was a photo of the Statue of Liberty, focused on her torch. The caption asked “which torch will you choose?”

I rarely visit Twitter, but a friend directed me to a thread directly relevant to that question. 

The author was Tim Wise, a political consultant who was involved in two Louisiana campaigns against David Duke. Wise dismissed the handwringing, trolling and well-meaning advice being heaped on the Democrats.

If the Dems blow this election it will not be because they were “too far left on policy” or because they “weren’t left enough.” It will have little to do with policy at all. They are making a mistake caused by traditional consultant theory that does not apply here…

And by listening to influential pundits in liberal media who also don’t get the unique nature of Trumpism, relative to normal political movements & campaigns…this election is NOT going to be won by talking about all your “great plans” for health care, jobs, education, etc..

 And the reasons are several…Let me begin by saying that I have experience confronting the kind of phenomenon we see in Trumpism, and far more than most. Any of us who were involved in the fight against David Duke in LA in 90/91 know what this is and how it must be fought…

Wise then relayed his experience with campaigns against Duke. Political consultants warned against highlighting Duke’s racism; they said such a focus would play into Duke’s hands, and allow him to set the agenda.

Sound familiar?

In the Senate contest, the campaign followed mainstream advice not to “make a big deal” out of Duke’s racist appeals. To the extent they went negative, they talked about Duke paying his taxes late and avoiding service in Vietnam. They won, but very narrowly.

Wise regrets that approach because it normalized Duke. Attacking his bill paying habits or inadequate policy proposals “treated him like a normal candidate. But he was/is a NAZI…”

And none of his voters were voting 4 him bc of jobs, or tax policy or support for term limits, etc. And none were going to turn on him over late tax payments, Vietnam, etc. Indeed throwing that stuff out there & downplaying the elephant in the room (racism) seemed desperate..

It allowed people to say “well if he’s really this racist, white supremacist, why are they talking about all this other stuff?” It actually undermined our ability to paint him as the extremist he was/is. And as a result, the threat he posed was not clear enough to voters…

 And this didn’t just allow him to get votes he might not have gotten otherwise; it also depressed turnout among people who almost certainly disliked him but didn’t think he could win or would be all that big a deal if he did. In fact I recall convos with “liberals”…

Who said they weren’t going 2 vote bc after all Duke’s Dem opponent was just a shill for the oil and gas industry, and that was just as bad, blah blah fucking blah…because some lefties can’t tell the difference between corporatist assholes and actual literal Nazis…

 But we bore some responsibility for that because we got suckered into playing this conventional game and “not playing into his narrative.” Anyway, black and white liberal turnout is lower than it should have been and Duke gets 44% of vote…

In the Governor’s race we dispensed w/all that bullshit. We talked about Duke’s ongoing Nazism and the moral/practical evil of his racist appeals. We discussed how that moral evil would have real world consequences (driving tourists and business away, rightly so, from LA)..

Because it was wrong, and it was not who we wanted to be, and it was not who we were. We were better than that and needed to show the rest of the country that…

Now, did this flip any of Duke’s 1990 voters? Nah, not really. Indeed he got 65k MORE votes in the Governor’s race than the Senate race. But it was never about flipping them. We knew that would be almost impossible…

To flip Duke voters would require that they accept the fact that they had previously voted for a monster, and people are loath to do that. Our goal was not to flip them, but to DRIVE UP TURNOUT among the good folks, many of whom stayed home in 90…

And that is what happened. The concerted effort of the anti-Duke forces (not just us), challenging Duke’s “politics of prejudice,” and making the election about what kind of state we wanted to be, drove turnout through the roof…

When it was over, Duke had gotten 65k more votes than in 90, but his white share went to 55 (from 60) and overall to 39 (from 44) because the anti-Duke turnout swamped him…So what does this have to do with 2020 and Trump? Do I really need to explain it?…

First, trying to flip Trump voters is a waste of time. Any of them who regret their vote don’t need to be pandered to. They’ll do the right thing. Don’t focus on them. That said, very few will regret their vote. They cannot accept they voted for a monster or got suckered…

Duke retained 94% of the folks he got the first time out (and got new people too), as Trump likely will. So forget these people–or at least don’t wast time tailoring messages to them. And policy plans for affordable college don’t mean shit to them, nor health care…

Their support for Trump was never about policy. It was about the bigotry, the fact that he hates who they hate…

Wise is right. Much as we might wish it were otherwise, in 2020, America will choose a torch. Pray it’s the right one.

 

Crosses And Christmas Trees

File this one under that growing category: Be careful what you wish for.

Yesterday, the Supreme Court overruled lower courts, and held that a huge Maryland cross can remain on public land–that its location on public property and the fact that it is maintained with tax dollars is not enough to find that it is a violation of the Establishment Clause.

The reasoning here is significant.

The cross “has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of a hostility toward religion that has no place in our Establishment Clause traditions,” the court wrote. Justice Alito wrote the majority opinion for the court.

“And contrary to respondents’ intimations, there is no evidence of discriminatory intent in the selection of the design of the memorial or the decision of a Maryland commission to maintain it. The Religion Clause of the Constitution aim to foster a society in which people of all beliefs can live together harmoniously, and the presence of the Bladensburg Cross on the land where it has stood for so many years is fully consistent with that aim.”

In a truly impressive demonstration of cognitive dissonance, Justice Alito characterized removal of the cross as “hostility to religion” and denied that the cross had religious significance.

Alito argued that the cross had essentially become secular. He invoked the history of World War I memorials noting the rows and rows of crosses and stars of David at cemeteries that memorialized those who died in that war and that established in people’s minds, in his view, that that was a way to honor to dead.

Gee, I wonder why Justice Ginsberg disagreed with Alito’s “history.”

“Decades ago,” Ginsburg wrote, “this Court recognized that the Establishment Clause of the First Amendment to the Constitution demands governmental neutrality among religious faiths, and between religion and nonreligion. … Numerous times since, the Court has reaffirmed the Constitution’s commitment to neutrality. Today the Court erodes that neutrality commitment, diminishing precedent designed to preserve individual liberty and civic harmony in favor of a ‘presumption of constitutionality for longstanding monuments, symbols, and practices.'”

She adds, “The Latin cross is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.’ … Precisely because the cross symbolizes these sectarian beliefs, it is a common marker for the graves of Christian soldiers. For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized.”

It’s hard to escape the conclusion that the Court was trying to avoid another culture war reaction by the White “Christians” still smarting from more significant rulings like same-sex marriage. The ruling by its terms only protects monuments already erected and longstanding; it is unlikely to protect efforts at new construction.

Ironically, what it is likely to do is further the “secularization” of symbols previously considered Christian. That transformation has already occurred with Christmas trees, after the Court declined to attribute religious significance to them. I doubt seriously if the sight of those ubiquitous, gaily adorned trees triggers theological reactions in anyone these days.

A Christian clergyman friend of mine opposed prayer in school irrespective of the First Amendment, because–as he put it–“I don’t pray to ‘whom it may concern.'” His opposition was based on experience;  when religious devotions or symbols become public, they inevitably become generic, losing their religious character.

White Christians who fear their loss of social dominance will undoubtedly cheer Justice Alito’s intellectually incoherent decision.

Christians who care about protecting the meaning of their religious iconography will be less enthusiastic.