Tag Archives: First Amendment

“Meanwhile”–Mike Pence Version

While we are transfixed by the latest “shiny object”–the latest betrayal of long-time allies, the emergence of emails documenting the White Nationalism of the White House, Trump’s approval of war crimes, the daily evidence that our President is quite insane, and of course the Impeachment hearings–the current administration stays busy behind the scenes destroying both democratic norms and constitutional barriers.

I have previously posted about a number of these assaults–generally, they are being led by the unqualified and ethically compromised individuals currently ensconced in cabinet and other administrative positions. Recent reporting, however, locates one such offensive in the White House itself: efforts by wannabe theocrat Mike Pence to further erode the First Amendment’s separation of church and state.

As ProPublica reports

Last November, a top Trump appointee at the U.S. Agency for International Development wrote a candid email to colleagues about pressure from the White House to reroute Middle East aid to religious minorities, particularly Christian groups.

“Sometimes this decision will be made for us by the White House (see… Iraq! And, increasingly, Syria),” said Hallam Ferguson, a senior official in USAID’s Middle East bureau, in an email seen by ProPublica. “We need to stay ahead of this curve everywhere lest our interventions be dictated to us.”

The email underscored what had become a stark reality under the Trump White House. Decisions about U.S. aid are often no longer being governed by career professionals applying a rigorous review of applicants and their capabilities. Over the last two years, political pressure, particularly from the office of Vice President Mike Pence, had seeped into aid deliberations and convinced key decision-makers that unless they fell in line, their jobs could be at stake.

Some five months before this email was sent, Ferguson’s former boss had been fired. The action followed a communication from Pence’s chief of staff, in which recipients were told that Pence was “displeased” with USAID’s work in Iraq, especially the agency’s decision to turn down Christian groups for aid.

The administration’s efforts to influence USAID funding worried professionals within the agency. Not only did it risk violating First Amendment prohibitions on favoring one religion over another, but there were practical concerns: if the U.S. was perceived as favoring Christians, that perception could–indeed, it probably would– worsen Iraq’s sectarian divides.

USAID regulations state that awards “must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization, or lack thereof.”

Despite the clear language of the regulations, USAID recently announced two grants to Iraqi organizations that had previously been rejected. According to the Pro Publica article, political appointees, rather than professionals charged with making these determinations, “significantly impacted” the awards.

Typically, such appointees have little to no involvement in USAID grants, to avoid perceptions of undue political influence on procurement.

One of the groups selected for the newest awards has no full-time paid staff, no experience with government grants and a financial tie that would typically raise questions in an intense competition for limited funds. The second organization received its first USAID direct grant after extensive public comments by its leader and allies highlighting what they described as a lack of U.S. assistance to Christians. The two groups — a charity that primarily serves Christian Iraqis and a Catholic university — were not originally listed as front-runners, according to a document seen by ProPublica.

The remainder of the lengthy article documents the measures taken by the administration–especially Pence’s office–to change the criteria by which funds would be awarded in order to benefit Christian organizations. It also reports on Pence’s “pushback” to warnings that favoritism to Christian organizations would run afoul of both the First Amendment and agency regulations.

Just more evidence that while we are transfixed by Trump’s bizarre behaviors and ungrammatical tweets, lobbyists are running federal agencies for the benefit of their former clients, faux Christians are undermining the Constitution and distorting foreign policy, the entire administration is undermining the rule of law…

And today’s GOP is fiercely defending all of it.

 

 

 

 

 

 

“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.

 

 

 

 

 

Free Speech For The “Right” Ideas

Pun in the title intended.

Michelle Goldberg recently focused her column in the New York Times on yet another inexcusable decision of the Trump Administration. (I know, there are several every day…)

The Palestinian activist Omar Barghouti, one of the founders of the boycott, divestment and sanctions movement, was supposed to be on a speaking tour of the United States this week, with stops at N.Y.U.’s Washington campus and at Harvard. He was going to attend his daughter’s wedding in Texas. I had plans to interview him for “The Argument,” the debate podcast that I co-host, about B.D.S., the controversial campaign to make Israel pay an economic and cultural price for its treatment of the Palestinians.

Yet when Barghouti, a permanent resident of Israel, showed up for his flight from Israel’s Ben Gurion International Airport last week, he was informed that the United States was denying him entry. When I spoke to him on Sunday, he still didn’t know exactly why the country where he went to college and lived for many years wasn’t letting him in, but he assumed it was because of his political views. If that’s the case, Barghouti said, it was the first time someone has been barred from America for B.D.S. advocacy.

I believe it was Alexander Meiklejohn who said a nation afraid of ideas is unfit for self-government. He was right.

The efforts of right-wingers to shut down B.D.S. by passing laws that obviously violate the First Amendment’s Free Speech guarantee are especially ironic given their hysteria over the supposed censorship of rightwing speech on the nation’s campuses. (But then, self-awareness has never been a characteristic of the Right.)

Several states have evidently passed laws penalizing, B.D.S. activities, and the Senate recently passed a bill supporting those measures.

According to the American Association of University Professors, some public universities in states with such laws require speakers and other contractors to “sign a statement pledging that they do not now, nor will they in the future, endorse B.D.S.” It’s hard to think of comparable speech restrictions on any other subject.

What makes this effort particularly offensive is that the B.D.S. movement neither engages in nor promotes violence. As Goldberg notes, Its leaders have made a genuine effort to separate anti-Zionism from anti-Semitism–in fact, the Palestinian B.D.S. National Committee demanded that a Moroccan group stop using the term “B.D.S.” in its name because it featured anti-Semitic cartoons on its Facebook page.

An administration unwilling to sanction Saudi Arabia for multiple murders, including the murder of a Washington Post journalist, is willing to penalize people who are advocating a nonviolent economic boycott.

Goldberg’s column goes on to consider why Israel’s defenders consider the B.D.S. movement so threatening, and that part of her column is enlightening but ultimately beside the point. It doesn’t matter whether you applaud or detest B.D.S. If it doesn’t have the right to advocate for its beliefs, neither do those who disagree with those beliefs. Rights–unlike privileges– are indivisible, as a federal court recently affirmed when it struck down the Texas version of these efforts.

Free speech, as Justice Holmes memorably wrote, requires freedom for the idea we hate.

Can ideas be dangerous? Of course. And the nation’s Founders knew that. They also knew that allowing the government to decide which ideas can be communicated and which cannot would be far more dangerous.

 

 

Religious Rights And Privileges

Religious conflicts have been the subject of a number of my recent posts, and have triggered some fairly robust discussions in the comments. I think both the posts and the subsequent conversations evidence the persistence and extent of efforts to have government privilege certain beliefs over others.

Significant numbers of Americans reject the Constitutional separation of church and state.

The First Amendment has two religion clauses. The Establishment Clause basically removes government from matters of faith. As the Supreme Court has repeatedly ruled, government cannot sponsor religious observances or endorse religious beliefs. (As I rather inelegantly put it to my students, government is supposed to “butt out” of our souls.) The Free Exercise Clause forbids government from interfering with the beliefs of citizens, or with citizens’ religious observances to the extent that those don’t violate “laws of general application.” (Your religion may tell you to sacrifice your firstborn, or ingest hallucinogens, but laws of general application prevent you from acting on those particular beliefs.)

Government was withdrawn from matters the Founders believed should properly be the purview of churches and individual consciences.–This decision was based upon respect for individual autonomy, but it was also an effort to minimize public conflicts over matters of faith. (The Founders were all too aware of Europe’s history of religious conflict).

So why are people in the United States constantly arguing about religion?

Katherine Franke, a law professor who recently plunged into the religious wars in a column for the Washington Post, suggests one reason. She writes that this administration has “weaponized the notion of religious liberty” to advance a blatantly partisan, conservative agenda. In other words, efforts to privilege some religious beliefs over others are really efforts to advance a decidedly political agenda.

The column began with a description of an unusual lawsuit by a religious order–nuns who claim their religious-freedom rights are being violated by the construction and pending use of a natural-gas pipeline on their land in Pennsylvania. They say their faith requires that they “treasure” the land.

Needless to say, the government’s response has been less than solicitous, despite numerous sanctimonious pronouncements about religious “liberty” from Vice-President Pence and Attorney General Sessions. As Franke notes,

You can count on the government’s support if you’re a cake baker who considers same-sex marriage to be an abomination, or a nun who believes that contraception is murder, or a school administrator whose faith tells him that a person’s sex is fixed by God at birth. In these cases, Justice Department lawyers will show up like the cavalry, ready to go down fighting.

But not so much for Unitarians, whose faith drives them to leave water and food in the desert for migrants who will die without help. Or Catholic activists who believe that nuclear weapons are a death pact with the devil. Or the “Adorers,” who oppose the building of a gas pipeline on their property. Or Muslims in almost any context.

…..

The Justice Department is aggressively prosecuting faith-based humanitarian volunteers with the organization No More Deaths, a group affiliated with the Unitarian Church in southern Arizona. Its mission includes leaving water and food for migrants crossing the scorching-hot Sonoran Desert, where hundreds of people die every year. The government lawyers have trivialized these faith-based humanitarians’ religious-liberty claims, calling them scoundrels. This prompted a group of law professors who are experts in law and religion, myself included, to file a friend-of-the-court brief in the case, pointing out to the judge how the Justice Department has misconstrued religious liberty law in this case.

These official responses to actions motivated by faith make it patently obvious that the pious proclamations of concern for religious sensibilities are highly–and politically–selective. A congregation feeding undocumented immigrants cannot expect the same degree of forbearance or respect as the baker or florist refusing to serve a same-sex couple.

The Supreme Court has repeatedly noted that religious-liberty rights are not absolute, yet they should be given serious consideration in light of the government’s other compelling interests. What we see from this government is the evangelization of its own policy goals, accompanied by the demonization of its critics. In no way was this what religious liberty meant to the nation’s founders, nor should it be what it means today.

Activist Courts And Unintended Consequences

The Supreme Court recently heard oral arguments in the case of Janus v. American Federation of State, County and Municipal Employees. As a recent op-ed in the New York Times put it, unlike other cases that find their way to the country’s highest court, we already know how this one is going to be decided.

The Supreme Court is widely expected to rule in favor of Janus on a party line 5-to-4 basis and overturn a 1977 precedent, Abood v. Detroit Board of Education. Abood permitted fair-share fees, which cover only organizing and collective bargaining and do not include social or political activities in the public sector.

Why are we so sure about the Janus outcome? The court heard a similar case in 2016, and it split 4-4 after Justice Antonin Scalia’s sudden death. Neil Gorsuch has proved himself more conservative than Justice Scalia on most issues, so there is little hope that labor will win this time around.

I will, for purposes of this post, omit my diatribe about stolen Supreme Court seats and the erosion of time-honored democratic norms.

The  plaintiff in this case is asserting a First Amendment right not to be compelled to support unions, even when that “support” is limited to payment for services from which he benefits. The op-ed to which I link focuses on the unintended consequences of his likely victory–consequences that would give pause to justices less ideologically rigid than those currently serving.

The popular understanding of the case is limited to recognizing that, if the court bans fair-share fees, it will hurt unions. It will deprive them of funds and (more insidiously) encourage “free riding”–non-contributing workers’ ability to benefit from the contributions of others. Those are intended consequences of what has been a concerted, well-funded effort to destroy workers’ ability to bargain collectively.

But fewer people have considered what conservatives are risking: Union fair-share fees do not exist in an employment vacuum; the same logic and legal framework that permits the government to mandate these fees allows the government to conduct itself as an employer. Janus is largely being discussed as a case that is likely to defund and disrupt labor unions, but the case cannot simply injure unions and leave everything else intact.

At last count, federal, state and local governments employed over 21 million workers, so the courts have had to develop a framework for governments to be able to manage their work forces without constantly confronting the Constitution. Imagine if a teacher called in sick, and an administrator had to procure a warrant before searching her desk drawer for a text book, or else risk violating the Fourth Amendment. Or imagine if a police sergeant who tells an officer that he didn’t have time to listen to a complaint about the break room now has to worry that he violated the First Amendment.

Over the years, the Court has carefully balanced the government’s legitimate needs as an employer against the equally compelling need to protect public employees when they exercise their constitutional rights in the workplace. A “victory” for Janus in this case threatens to turn every workplace dispute into a constitutional issue.

The prominent conservative legal scholars Eugene Volokh and William Baude went further and filed a brief supporting the unions. They argue that the government compels subsidies of others’ speech all the time and that there is nothing constitutionally suspect about that. Mr. Volokh and Mr. Baude point to the fact that we don’t have a right to opt out of paying a portion of our taxes for issues we disagree with.

Furthermore, the government regularly requires people to purchase speech related to services that they may not want, such as doctors and lawyers having to enroll in continuing education courses. Or even the general requirements that people purchase car insurance or vaccinations, despite the fact that some may disagree with that mandate. To recognize a general First Amendment right to not fund things that one may disagree with, despite the government’s interests in mandating such payments, would completely upend many areas of life that are necessary for our society to function.

The Court used to be wary of decisions that would “unleash a floodgate of litigation.”  The likely Janus victory will be evidence that it no longer cares.