Category Archives: Constitution

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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Justice, Justice..

Like many of you, I get the almost-daily newsletter from Heather Cox Richardson, who reliably reports on current events and provides valuable historical context illuminating them.

Last week, Richardson made a “catch” that I had missed–and it provided further evidence of the corruption that was (along with monumental incompetence) a hallmark of the Trump Administration.

Evidently, during a Senate hearing and in response to a question from Senator Sheldon Whitehouse, FBI director Christopher Wray  shed light on the Administration’s short-circuiting of the background investigation into then–Supreme Court nominee Brett Kavanaugh. (Note: I’m not sure when that hearing occurred–it may have been one held a year or so ago.) According to that testimony, more than 4500 tips about Kavanaugh that were received by an FBI hotline were “separated out” and transmitted to the White House without investigation. The FBI subsequently interviewed only people designated by the White House.

The agency completed the supplemental background check triggered by the accusations of sexual assault in exactly four days–and FBI agents did not interview either Kavanaugh or Christine Blasely Ford, the woman who publicly testified against him, or the other women who came forward to lodge similar accusations–Deborah Ramirez, and Julie Swetnick. 

The lack of clear vetting extended far beyond the allegations of personal sexual misconduct. As the Leadership Conference on Civil and Human Rights pointed out in a letter objecting to his elevation to the Court, Kavanaugh’s judicial conduct was a matter of equal concern.

Judge Kavanaugh’s 12-year record on the U.S. Court of Appeals for the D.C. Circuit, as well as his known writings, speeches, and legal career, demonstrate that if he were confirmed to the Supreme Court, he would be the fifth and decisive vote to undermine many of our core rights and legal protections.  In case after case, he has ruled against individuals and the environment in favor of corporations, the wealthy, and the powerful.  He has advanced extreme legal theories to overturn longstanding precedent to diminish the power of federal agencies to help people.  And he has demonstrated an expansive view of presidential power that includes his belief that presidents should not be subject to civil suits or criminal investigations while in office despite what misconduct may have occurred.  Many of our organizations opposed Judge Kavanaugh’s nomination to the D.C. Circuit,[1] and our fears and concerns have been realized.  Judge Kavanaugh has not served as a neutral and fair-minded jurist.  He has served as a conservative ideologue who lacks the impartiality and independence necessary to sit on the highest court in the land.

The letter went on to document the cases in which Kavanaugh had displayed his lack of “impartiality and independence,” his lack of commitment to racial justice, and his “extreme and disturbing views about presidential power.” The letter was signed by 180 organizations.

Then there was the matter of the 15 ethics complaints filed against Kavanaugh, alleging judicial misconduct during his tenure as a lower-court judge. Once he was elevated to the Supreme Court, proceedings investigating those complaints were dismissed.  Dismisal was because the ethics rule provides that proceedings may be concluded if the judge charged with conducting them finds that “action on the complaint is no longer necessary because of intervening events.” The intervening event in Judge Kavanaugh’s case was his appointment to the Supreme Court. “That is because the Act covers complaints only about circuit judges, district judges, bankruptcy judges, magistrate judges, and judges of some special courts.”

And so here we are… 

That this very flawed, partisan individual is on the Supreme Court is certainly troubling, but there have been other Justices whose flaws have been widely recognized. (Alito was an example well before Boggs.) What is far more troubling was the corrupt process that led to Kavanaugh’s confirmation. It’s one thing to find, after the fact, that a nominee lacks hoped-for judicial temperament or intellect. (The allegations against Clarence Thomas, for example, were fully aired, and most Americans only subsequently realized that the Senate had believed the wrong testimony.) Refusal to conduct a thorough vetting is a far more serious matter, and it’s pretty clear that short-circuiting a full and fair investigation was a deliberate–and successful– act of the Trump Administration.

I tend to harp on the importance of institutions, because the health of the American polity ultimately rests upon the integrity and ongoing utility of those institutions. Separation of Powers is a foundational element of our system of government, and when one branch can effectively control another by ignoring institutional safeguards in order to place favored individuals in positions of power, that foundational element is violated.

Elevating Brett Kavanaugh and denying Merrick Garland a hearing were two steps in the Right’s determined campaign to eliminate individual liberties and move America toward autocracy.

They have to be stopped.

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Let’s Try This One More Time…

What’s wrong with the argument–made on this site most recently by Paul Ogden–that our differences about abortion should be resolved by democratic debate, and not by Judges issuing edicts?

Certainly, we Americans decide lots of things democratically–legislatures in the various states make policies about taxation, about criminal law, property rights, public transportation and innumerable other issues, and those decisions presumably reflect the majority sentiment in those states. (Okay, maybe not, given the extent of gerrymandering…but theoretically.)

Why do you suppose that those legislators and their constituents don’t get to vote on other matters: the right to free speech, the right to pray to the God of your choice (or not), the right to read books of one’s own choosing, the right to be free of arbitrary searches and seizures, the right of citizens to cast votes in elections…

The reason we don’t subject those and similar rights to majority preferences is because the courts have determined–properly–that under our constitution, they are fundamental rights. And the majority doesn’t get to decide whether person X or person Y is entitled to fundamental rights.

Ever since Griswold v. Connecticut, in 1965, the United States Supreme Court has acknowledged that personal autonomy–the  individual’s right to make “intimate” personal decisions–is one of those fundamental rights. The doctrine of substantive due process, often called the right to privacy, is shorthand for the recognition that certain decisions should not be made by government. The doctrine answers the question “Who decides?” by drawing a line between the myriad issues appropriate for resolution by majorities acting through government, and decisions  that government in a free society has no business making.

The question, by the way, is who decides–who gets to make a particular decision, not what the decision should be.

The deeply dishonest ruling in Dobbs didn’t simply mischaracterize history in order to impose a minority religious belief on all Americans. It attacked the rule that restrains government’s intrusion into the private lives of its citizens. Its “reasoning” would allow fundamental rights–to bodily autonomy, to the choice of a marriage partner, to decisions about procreation– to be decided by legislatures chosen by “democratic” majorities.

Unless you are prepared to argue that the right to make those very personal decisions is not a fundamental constitutional right, allowing abortion and contraception and same-sex marriage to be decided by majority rule is no different from putting my choice of reading material, or your choice of religion, up to a vote of your neighbors.

The reason so many people are outraged over Dobbs and disgusted by the misogynistic culture warriors in the Indiana legislature is because they recognize that we are arguing about a very basic American principle: the right of each individual to live in accordance with his or her own deeply-held beliefs rather than in servitude to the beliefs of others–even if those others constitute a majority (which in this case, they pretty clearly do not.)

The reason so many women understand  Dobbs to be an assault on women is that its result requires believing that a right to self-determination claimed only by women is not a fundamental right, but a privilege that can be withdrawn by legislative bodies.

By definition, rights don’t depend upon your ability to obtain a favorable decision by a majority of your neighbors. 

Think of it this way: I may strongly disagree with the way in which you are using your freedom of speech. I may think your religion is ridiculous, and your choice of reading material stupid–but I don’t get to vote to shut you up, close your church or censor your books–and you don’t get to vote on my reproductive decisions. 

That’s because fundamental rights are not subject to majority vote.

I’ll end this diatribe with one more repetition of the libertarian principle that undergirds the real “original intent” of America’s particular approach to government–and especially animates the Bill of Rights: Individuals are entitled to live their lives as they see fit, until and unless they are thereby harming the person or property of another, and so long as they are willing to extend an equal liberty to others.

Autocrats and theocrats have a whole lot of trouble with “live and let live…”

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“Don’t Know Much About History”

That old Sam Cooke tune should be Justice Alito’s theme song.

Distortion–or flat-out lying–about history hasn’t previously been a feature of Supreme Court decisions, although it’s nothing new in political discourse. (Remember the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman,” despite the fact that the statement was demonstrably false? Even if you ignore biblical history, more than half of the world still recognizes plural marriage.)

Alito’s recitation of history in Dobbs has been rebutted by historians, and its falsity was recently the subject of a lengthy essay in the Guardian. 

As the essay notes, Alito claims that a reversal of Roe v Wade “restores the US to an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973.”

This assertion, however, is easily disproven.As historians have exhaustively explained, early American common law (as in Britain) generally permitted abortions until “quickening”, or perceptible foetal movement, usually between 16 to 20 weeks into a pregnancy. Connecticut was the first state to ban abortion after quickening, in 1821, which is roughly two centuries after the earliest days of American common law. It was not until the 1880s that every US state had some laws restricting abortion, and not until the 1910s that it was criminalised in every state. In the wake of Dobbs, social media was awash with examples from 18th- and 19th-century newspapers that clearly refuted Alito’s false assertion, sharing examples of midwives and doctors legally advertising abortifacients, Benjamin Franklin’s at-home abortion remedies, and accounts of 19th-century doctors performing “therapeutic” (medically necessary) abortions.

The essay also emphasized that anti-abortion fervor was not motivated by the moral or religious beliefs generally cited by anti-choice activists.

In fact, the first wave of anti-abortion laws were entangled in arguments about nativism, eugenics and white supremacism, as they dovetailed with a cultural panic that swept the US in the late 19th and early 20th century as a result of the vast changes in American society wrought by the conflict. This panic was referred to at the time in shorthand as “race suicide”

The increasing traction today of the far-right “great replacement theory”, which contends that there is a global conspiracy to replace white people with people of colour, and has explicitly motivated white supremacist massacres in the US, is often said to have originated with a French novel called The Camp of the Saints by Jean Raspail. Published in 1973, the same year that Roe v Wade enshrined American women’s rights to reproductive autonomy, it is a dystopian account of “swarthy hordes” of immigrants sweeping in and destroying western civilisation. But there were many earlier panics over “white extinction”, and in the US, debates around abortion have been entangled with race panic from the start. 

As a similar post at FiveThirtyEight.com put it,” the anti-abortion movement, at its core, has always been about upholding white supremacy.”

Historians point to the numerous newspapers, lectures and sermons that led to the original criminalization of abortion by warning that Catholics and other foreign-born immigrants were likely to outnumber Protestant, native-born Americans. The essay cited one representative example– a 1903 editorial pointing out that the Protestant population of the US was increasing by 8.1% while the Catholic population was increasing by 21.8%, and characterizing those statistics as an “alarming condition of things.” The article noted that there were “on the average more than five abortions a month, none of them in Catholic families”. In case the message wasn’t sufficiently clear, the piece was headlined “Religion and Race Suicide”.

When the resurgent Ku Klux Klan paraded in Louisiana in 1922, they bore banners that read “White Supremacy”, “America First”, “One Hundred Per Cent American”, “Race Purity” and “Abortionists, Beware!” People are sometimes confused by the Klan’s animus against abortionists, or impute it to generalised patriarchal authoritarianism, but it was much more specifically about “race purity”: white domination can only be maintained by white reproduction.

The article is lengthy, but well worth your time to read; it contains a meticulous recitation of the thoroughly racist roots of opposition to abortion. My only quibble is that It gives only a nod to the White male patriarchy embedded in the numerous religious dogmas that require the subordination and submission of women. Without the benefit of that moral “fig leaf,” I doubt whether its clearly racist roots would have carried the movement so far.

I do absolutely agree with the essay’s conclusion:

The assault on women’s rights is part of the wider move to reclaim the “commanding place” in society for a small minority of patriarchal white men. And, as Alito’s decision shows, where legal precedent and other justifications cannot be found, myth will fill the vacuum.

No matter how ahistorical that myth…

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