Category Archives: Religious Liberty

A Link And A Prayer…

Tonight, Monday, October 4, at 7:30 p.m. I will be on a panel (via Zoom–link below) discussing the impending threats to reproductive choice, from Texas to Mississippi.

https://us06web.zoom.us/j/96415122645

Here’s the description, and for those who want to “attend,” the information for RSVPing:

Rabbi Dennis Sasso hosts a conversation regarding reproductive rights after the controversy related to the abortion laws in Texas. Rabbi Sandy Sasso will moderate the conversation and share the Jewish perspective with guests Dr. Leigh Meltzer, Obstetrics & Gynecology Physician at IU Health, and Emerita Professor of Law and Public Policy Sheila Kennedy. R.S.V.P to jgoldstein@bez613.org or (317) 253-3441.

For those who would like to see the discussion but can’t make tonight’s Zoom presentation,I’m told the session will be recorded, and will be available on the Congregation’s You Tube channel. (Who knew congregations had You Tube channels!)

My brief introductory remarks mostly reiterate points I’ve previously made on this blog, but in case any of you have missed my “take” on Texas, etc., I’m pasting a rough draft below. I anticipate a fairly lively discussion following the introductory remarks from the three of us.

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There are three things we need to understand about the context of today’s legal debates over abortion—one philosophical, one historical, one sociological.

Liberal democracies are grounded in the libertarian premise that we are all entitled to make our own moral choices unless we are harming the person or property of someone else. In order to be considered legitimate in a diverse liberal democracy, legislation banning or requiring certain behaviors on moral grounds should reflect widespread public consensus—That’s why the First Amendment’s religious liberty clauses, properly understood, forbid government from imposing the religious beliefs of some Americans on others.

When it comes to abortion, that consensus does not exist.

Historically, the “pro life” movement was not, as popular mythology suggests, a reaction to Roe v. Wade. It wasn’t until 1979—a full six years after Roe—that evangelical leaders, goaded by Paul Weyrich, seized on abortion as “a rallying-cry to deny President Jimmy Carter a second term.” Objecting to abortion was seen as “more palatable” and more likely to motivate religiously conservative Christian voters than the actual motivation, which was denial of tax exemptions for the segregated schools established following the decision in Brown v. Board of Education.

Those origins persist. Sociological research confirms that Whites who score high on measures of racial resentment and racial grievance are far more likely to support strict limits on abortion than whites who score low on these measures. Research also confirms that people active in the “pro life” movement are much more likely to be committed to a patriarchal worldview in which control of reproduction, and female sexuality in particular, is important to the maintenance of the gender hierarchy they support.

The history and research go a long way toward explaining why it is so difficult to have evidence-based, logical discussions about abortion and birth control with anti-choice activists. The issue isn’t really abortion.

What is far less well understood, however, is that the consequences of upholding Texas’ law—if, in fact, the Court eventually does that—would be devastating, and would extend far beyond the issue of abortion. (Thus far, as you know, the Court has simply punted—it hasn’t ruled on the constitutionality of the law.)

A decision to allow the empowerment of culture war vigilantes would achieve a longstanding goal of so-called “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the interference of the federal government.

Such a decision would effectively approve a federalism on steroids, and—I am not engaging in hyperbole here—the effective unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protections against unreasonable search and seizure..

Texas’ law strikes a terrifying blow against that principle.

Let me explain why this law created private vigilantes. The idea is that by enlisting private citizens to enforce the law the state can avoid challenges to the bill’s constitutionality. The theory is that, since the state itself won’t be directly involved in enforcing the law, state officials won’t be proper defendants to a lawsuit.

Why does that matter?

What far too many Americans don’t understand about their protections under the Bill of Rights is the requirement of state action–the Bill of Rights protects us against government infringement of our liberties–not against intrusions by private actors. If there hasn’t been state action–government action– there hasn’t been a constitutional violation.

Allowing this gambit to succeed would do much more than leave the most restrictive anti-abortion law in the country in place; it would encourage other states to employ similar tactics–and not just for abortion, but for all sorts of culture war issues and from all political perspectives. As Lawrence Tribe recently warned, California could shift to private enforcement of its gun control regulations, never mind the Second Amendment implications of such restrictions. Vermont could shift to private enforcement of its environmental regulations, never mind the federal pre-emption implications. And the list goes on.

This ploy shouldn’t pass constitutional muster. In law school, I remember studying a 1948 case involving racially-restrictive deed covenants. Those covenants were between private parties, but the Court found state action present because those private deed restrictions could only be enforced with the participation of judges, clerks and other state officials. That case is still good law.

The vigilantes authorized by this legislation may be private citizens, but the law can’t be enforced without involving the apparatus of the state.

The bottom line is that, if successful, this effort would empower zealots of both the right and left.  This is probably not what the idiots in the Texas legislature had in mind, but it would be an almost-certain consequence. Even a more conventional overruling of Roe –a distinct possibility in a case pending from Mississippi—would invite unintended consequences. We can discuss those during Q and A.

Finally, as many of you know, my longstanding preoccupation has been with civic literacy—with the failure of so many Americans to understand their own government. The pandemic has given us a glaring illustration of that ignorance; we have officials and pundits insisting that they have the right to control their own bodies, that government can’t tell them to be vaccinated. Ironically, most of the people making this argument are anti-choice—in other words, they are claiming a right for themselves that they are unwilling to extend to others. But it isn’t only the glaring hypocrisy; they are also wrong. Government has a duty to prevent citizens from harming others, and the Court has recognized the right to mandate vaccination for at least 100 years. A woman who aborts is not a threat to her neighbors; a citizen who refuses to wear a mask or be vaccinated is such a threat–and the law recognizes the distinction even if too many Americans don’t.
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Vouchers And Disinformation

I have posted numerous times about the myriad ways in which advocates of “privatization” and “choice” in education have contributed to the hollowing out of America’s civic structure. “Choice” sounds great. Providing citizens with a wide freedom of choice–of religion, politics, lifestyle– is a quintessentially American goal. The problems occur when institutionalized choices promote division and undermine civic cohesion.

In far too many communities today, the “educational choice” being offered is the opportunity to shield one’s children from intellectual and cultural diversity. Vouchers provide parents with tax dollars that allow them to insulate their children from  one of the very few remaining “street corners” left in contemporary American society. Whatever their original intent, as vouchers work today, they are mechanisms allowing parents to remove their children from public school classrooms and classmates that may be conveying information incompatible with those parents’ beliefs and prejudices.

In virtually all states with active voucher programs, including Indiana, well over 90% of participating schools are religious– vouchers have allowed sympathetic courts to do an end-run around the First Amendment’s separation of church and state. I’ve previously posted evidence that fundamentalist religious schools are teaching creationism rather than science--but it isn’t simply the science curriculum that is being corrupted by dogma. As a recent article from The Guardian reports, those schools are equally likely to distort accurate history.

One history textbook exclusively refers to immigrants as “aliens”. Another blames the Black Lives Matter movement for strife between communities and police officers. A third discusses the prevalence of “black supremacist” organizations during the civil rights movement, calling Malcolm X the most prominent “black supremacist” of the era.

Legislatures and boards of education around the US are currently engaging in acrimonious battles about how issues of race and equity are taught in public K-12 classrooms – the latest culture war in a decades-long fight around whose stories and contributions get highlighted in school. But largely left out of this conversation has been the education provided in private schools, thousands of which have quietly been excluding diverse voices and teaching biased versions of history for years.

The textbooks reviewed by the Guardian are used in thousands of private religious schools–schools that receive tens of thousands of dollars in public funding every year. They downplay descriptions of slavery and ignore its structural consequences.  The report notes that the books “frame Native Americans as lesser and blame the Black Lives Matter movement for sowing racial discord.”

As Americans fight over wildly distorted descriptions of Critical Race Theory–a manufactured culture war “wedge issue” employed by parents fighting against more inclusive and accurate history instruction- -the article correctly points out that there has been virtually no attention paid to the curricula of private schools accepting vouchers. As the article notes,

Private schools, unlike public ones, receive little oversight or restrictions when it comes to curriculum. In truth, thousands of private schools are currently teaching history through a racially biased lens.

Shades of the old segregation academies.

The Guardian reviewed dozens textbooks produced by the Christian textbook publishers Abeka, Bob Jones University Press and Accelerated Christian Education, three of the most popular textbook sources used in private schools throughout the US. These textbooks describe slavery as “black immigration”, and say Nelson Mandela helped move South Africa to a system of “radical affirmative action”.

The Abeka website boasts that in 2017, its textbooks reached more than 1 million Christian school students. The Accelerated Christian Education website claims its materials are used in “tens of thousands of schools.” One of its textbooks still refers to the civil war as the “war between the states,” and has a section titled “Black immigration”–characterizing the slave trade as “sometimes unwilling immigration.”

With respect to Reconstruction, the Accelerated Christian Education textbook contained the following characterization:

Under radical reconstruction, the south suffered. Great southern leaders and much of the old aristocracy were unable to vote or hold office. The result was that state legislatures were filled with illiterate or incompetent men. Northerners who were eager to make money or gain power during the crisis rushed to the south … For all these reasons, reconstruction led to graft and corruption and reckless spending. In retaliation, many southerners formed secret organizations to protect themselves and their society from anarchy. Among these groups was the Ku Klux Klan, a clandestine group of white men who went forth at night dressed in white sheets and pointed white hoods.

Unsurprisingly, the books were equally biased against homosexuality and same-sex marriage.Science denial, bogus history and homophobia are unlikely to prepare students for life in contemporary American society.

The U.S. Constitution gives parents the right to choose a religious education for their children. It does not impose an obligation on taxpayers to fund that choice, and we continue to do so at our peril.

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Religion? Or Politics?

The phrase “culture wars” usually brings to mind the current political polarization between self-described conservatives and the rest of us: more and more, that’s a line of demarcation that runs between Republicans and Democrats (and Democratic-leaning Independents). However, as a recent essay from the Guardian points out, cultural issues are also creating huge tensions within the more fundamentalist religious denominations.

Barry Hankins is a professor at Baylor who has authored several books and articles about the Southern Baptist Convention, and in the linked article, he examines the effects of the culture wars on that Evangelical denomination.

He begins with a question:

Is the Southern Baptist Convention – the largest and arguably most powerful Protestant denomination in the United States – being held together by culture wars instead of Biblical teaching? That is the question in recent weeks, as thousands of Southern Baptists gathered in Nashville for their annual meeting to determine the bitterly contested future of the convention.

Many conservative members of the denomination seem to have seen in Donald Trump’s populist authoritarianism a last-gasp chance to save white Christian America – theology, and, for Trump, Christian morality, be damned.

Hankins has been a longtime scholar of the Southern Baptists, although he is not himself a member of that denomination, and he says that in the past he has defended what he terms their “serious theology,” despite the influence of cultural concerns on that theology. But by 2020, he says he had come to recognize that “conservatives of the right wing of the SBC were not just subordinating theology to the cultural concerns of white Christian identity politics, but had in fact lost their way as Baptists.”

At the SBC’s recent meeting–widely covered by the national press–we casual readers were relieved when the less political, less strident candidate, Litton, won the presidency of that body. But he won by a very narrow margin, suggesting that control by those Southern Baptists who want a less partisan voice–and independence from identity with the Republican Party–is tenuous.

Hankins points to the narrowness of the vote as a sign  that the Convention has not “turned a corner.” And he insists that the differences are not theological. (Both sides are anti-gay, anti-abortion, pro-submission of women. The list goes on…) The debate, he says, is political.

The side that lost last week, wants to be more political, more explicitly aligned with the Trump-era Republican party, and aggressively prosecute the culture wars. They are motivated, I believe, by an inordinate fear of being out of step with the Republican party’s brand of white identity politics – and its de facto leader, Trump. They believe white Christian America is embattled and surrounded by a hostile secular-liberal culture. Their only chance of survival, they believe, is to stay aligned with the Republican party against a radical left that threatens the Christian faith’s very existence in America and whose ideologies are seeping into the SBC, as Mike Stone charges. As he said as he geared up for his run at the SBC presidency: “Our Lord isn’t woke.”

There’s more in the linked essay, and it’s fascinating, but aside from the specifics–doctrinal or cultural– the description of this denomination’s internal conflict raises a fairly profound issue: how does religion differ from political ideology–if, indeed, it does?

I did a bit of Googling, and came up with the following definitions.

Religion is an organized and integrated set of beliefs, behaviors, and norms centered on basic social needs and values. Religious beliefs–as opposed to religious rituals– are the specific tenets that members of a particular faith believe to be true.

A political ideology–as opposed to the messy realities of campaigning and/or governing– is  a set of “ethical ideals, principles, doctrines, myths or symbols of a social movement” that explains how society should work and offers a political and cultural blueprint for a certain social order.

At the very least, there is considerable overlap.

The question for an increasingly multi-ethnic country that is legally and constitutionally prohibited from favoring one religion over others (or religion over non-religion or vice-versa) is: how do you decide what is genuinely religious and thus worthy of the governmental deference required by the Free Exercise Clause, and what is really a thinly-masked political campaign to protect a formerly privileged tribe?

Is the Southern Baptist insistence on the supremacy of White Christian America religious–or is it political? And even if religious, does it really deserve deference?

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Twenty Percent Scary

I recently came across an article reporting that twenty percent of Americans are Christian Nationalists. I have no way of evaluating the accuracy of the survey research that led to that number, but even ten percent would be an absolutely chilling number.

Attention to the phenomenon and the threat it poses has spiked recently, thanks to the central role played by Christian Nationalists in the January 6th attack on the Capitol. A Google search for the term returns a large number of articles, academic analyses,  and opinion pieces, most of them highly critical. Thomas Edsall rounded up a subset of the academic articles in a recent column for the New York Times opining that it would be impossible to understand January 6th without investigating the movement’s role in the uprising.

Edsall quoted from a book by Andrew Whitehead and Samuel Perry,“Taking America Back for God,” which described Christian Nationalism as a stew of “nativism, white supremacy, patriarchy and heteronormativity, along with divine sanction for authoritarian control and militarism.” Christian Nationalism, as they analyzed it, is ethnic and political as much–or more–than religious.

Understood in this light, Christian nationalism contends that America has been and should always be distinctively ‘Christian’ from top to bottom — in its self-identity, interpretations of its own history, sacred symbols, cherished values and public policies — and it aims to keep it this way.

Edsall quotes a similar sentiment from the author of another recent book, “The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism,”

It is a political movement, and its ultimate goal is power. It does not seek to add another voice to America’s pluralistic democracy, but to replace our foundational democratic principles and institutions with a state grounded on a particular version of Christianity, answering to what some adherents call a ‘biblical worldview’ that also happens to serve the interests of its plutocratic funders and allied political leaders.

Perry addressed the role of Christian Nationalism on January 6th, noting the use of religious symbols during the insurrection such as the cross, Christian flag, Jesus saves sign, etc.

But also the language of the prayers offered by the insurrectionists both outside and within the Capitol indicates the views of white Americans who obviously thought Jesus not only wanted them to violently storm the Capitol in order to take it back from the socialists, globalists, etc., but also believed God empowered their efforts, giving them victory.

There’s much, much more. It’s important to recognize that Christian Nationalists aren’t going to be defeated by secular bloggers, critical “elitist” columnists, or worried academics. The movement can only be effectively countered by those I think of as actual Christians, and fortunately, some have risen to the challenge.Their organizational statement begins by describing their concern with “a persistent threat to both our religious communities and our democracy — Christian nationalism.”

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.

Instead, these Christians believe that:

People of all faiths and none have the right and responsibility to engage constructively in the public square.

Patriotism does not require us to minimize our religious convictions.

One’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community.

Government should not prefer one religion over another or religion over nonreligion.

Religious instruction is best left to our houses of worship, other religious institutions and families.

America’s historic commitment to religious pluralism enables faith communities to live in civic harmony with one another without sacrificing our theological convictions.

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.

I can only hope (and pray!) that these Christians number more than twenty percent…

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Some Conflicts Never Die…

Back in 2000, I wrote a couple of newspaper columns and an academic article about litigation involving the Kentucky Baptist Children’s Home. The Children’s Home had fired a youth counselor solely because she was a lesbian; they admitted that she was an excellent counselor, but justified the firing by explaining that “the gay lifestyle” (discovered because her picture appeared in media snapped at a Pride parade) was inconsistent with their theological beliefs.

Ordinarily, this firing would not have given rise to a lawsuit-even in those few states that had then extended civil rights protections to gays and lesbians, religious organizations were (and are) exempt from civil rights laws. But the Home was essentially funded by the state of Kentucky. Some $12 million of its $15 million dollar annual budget came from state tax dollars paying for the children placed in the facility by the state. The lawsuit challenged the propriety of using tax dollars to discriminate.

The case ran into some technical issues not germane to the principle being litigated, and I lost track of its subsequent path. (A very similar case from Georgia was settled when that state agreed to abide by the Constitution.) Evidently, the Kentucky Home did not lose its state support–nor its insistence on disadvantaging members of the LGBTQ community–because AP has reported on the emergence of a similar conflict between the Home–now renamed Sunrise Children’s Services–and the state.

A cultural clash pitting religious beliefs against gay rights has jeopardized Kentucky’s long-running relationship with a foster care and adoption agency affiliated with the Baptist church that serves some of the state’s most vulnerable children.

The standoff revolves around a clause in a new contract with the state that bans discrimination based on sexual orientation and that Sunrise Children’s Services is refusing to sign.

It’s another round in a broader fight in states and the courts over religious liberty and LGBTQ rights, including whether businesses can refuse to provide services for same-sex weddings. An upcoming U.S. Supreme Court decision in a Pennsylvania case could be decisive in the Kentucky clash; it’s reviewing a refusal by Philadelphia Catholic Social Services to work with same-sex couples as foster parents.

The original case–twenty-one years ago–involved the home’s refusal to employ LGBTQ staff members, no matter how professionally competent. I was unable to determine whether that situation has changed, but this time, the argument is about the agency’s refusal to place children with same-sex foster or adoptive parents.

Sunrise wants its religious beliefs to exempt it from a law that applies to other agencies doing business with the state, a requirement imposed by what lawyers call a law of general application. It wants to continue benefitting from tax dollars paid by all Kentucky residents, gay and straight, while picking and choosing which rules it will follow.

That isn’t the way it’s supposed to work.

“If Sunrise doesn’t want to abide by that, that’s fine. They shouldn’t have access to state money, state contracts or children in the state’s care,” said Chris Hartman, executive director of the Fairness Campaign, a Louisville-based gay rights advocacy group.

Hartman said he worries LGBTQ children in Sunrise’s care are “deeply closeted,” hiding their sexual orientation out of fear of “indoctrination and proselytization.”

Whether that fear is justifiable or not is beside the point. It was actually Justice Scalia–no champion of secularism–who wrote the decision in Employment Division v. Smith, confirming that religious belief does not exempt citizens from compliance with laws of general application.

Sunrise is perfectly free to follow its theological principles. It isn’t free to demand continued public funding at the same time it is refusing to follow the rules that govern distribution of that funding.

I sometimes wonder whether America has turned into a version of Animal Farm, where everyone is equal, but some folks (“good Christians”) think they’re entitled to be more equal than others.

 

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