Liberty Or Favoritism?

As we wait for the U.S. Supreme Court to decide another religious liberty case–this time, concerning the constitutional propriety of a 40-foot cross in Maryland–it might be helpful to revisit the origins of the competing definitions of “liberty” that are at the heart of so many of these cases.

We are told that the colonists who originally settled in what is now the United States came to the new world for religious liberty. And that’s right; they did. But their view of religious liberty was that it was “freedom to do the right thing.” And that involved establishing colonies where the government would make sure that everyone did “the right thing.”

Around 150 years later, George Washington became the first President of a country founded upon a very different understanding of liberty. Liberty was conceived of as freedom to do your own thing, so long as you did not thereby harm the person or property of someone else, and so long as you were willing to accord an equal right to others.

What had changed the definition of liberty? The scientific and intellectual movement we call the Enlightenment, which had occurred in the interim between the original Puritans and the Revolutionary War.

The U.S. Constitution may have been based upon the definition that emerged from the Enlightenment, but America still is home to lots of Puritans. And their “sincere belief” is that liberty means the government should be able to impose–or at least, privilege– their religion.

An editorial in The New York Times explains the case currently pending before the Court:

This week’s hearing, in American Legion v. American Humanist Association, involved a 40-foot cross in Bladensburg, Md., that was erected 93 years ago to honor fallen World War I soldiers. The question before the court: Is Maryland in violation of the First Amendment because the memorial is on public property and maintained with public funds?

There would be no constitutional violation if the cross were on private property. The issue is government endorsement of religion, which is prohibited by the Establishment Clause of the First Amendment.

The editorial notes that there is considerable confusion about the application of the Establishment Clause to public monuments.

Lower court judges are confused about how to apply the Supreme Court’s dictates in this area of the law, so more clarity from the high court — if not a definitive, bright-line rule — is in order.

Alas, such clarity doesn’t seem to be on the horizon. After Wednesday’s hearing, the court seems poised to allow the cross — which otherwise bears no religious inscriptions — to stay. But the justices don’t appear to be any closer to consensus on this issue than they’ve ever been.

“I mean, it is the foremost symbol of Christianity, isn’t it?” Justice Elena Kagan asked at Wednesday’s session. “It invokes the central theological claim of Christianity, that Jesus Christ, the son of God, died on the cross for humanity’s sins and that he rose from the dead. This is why Christians use crosses as a way to memorialize the dead.”

Justice Stephen Breyer, who in the past has wrestledwith the Constitution’s religion clauses, pondered whether “history counts” when assessing a monument’s legality. Maybe older displays, erected when the nation wasn’t nearly as religiously diverse, should be allowed, he suggested. “We’re a different country,” Justice Breyer said. “We are a different country now, and there are 50 more different religions.”

Not surprisingly, the Trump Administration–which wasn’t a party to the case and need not have offered an opinion–weighed in on the side of those who want the cross to remain.

The editorial concluded:

With its recent rulings, the Supreme Court has only muddied the separation between church and state by taking seriously religious objections to contraception, civil rights laws and the allocation of public funds. It is hard to fathom the justices being nearly as accommodating with a publicly funded monument to atheism or a Wiccan pentagram. And last month, the court couldn’t even agree that a Muslim death-row prisoner from Alabama deserved the same rights as Christians in his final moments.

However the justices resolve this the dispute, they would be wise to not sow more confusion in this area of the law and feed the perception that only certain religions and practices get a fair shake in public life.

When those “certain religions” are privileged, equality before the law takes a hit.

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My Apologies

I inadvertently sent out a “post” that wasn’t. Sorry to have inundated your inboxes.

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Why Genuine Conservatives Are Leaving The GOP

A post to Daily Kos: The Republican party in reality is a broad coalition of White Supremacists, anti-democracy authoritarian fascists, and religious fanatics that can only be described as a cult. The conservatives made a deal with the devil in the 1960’s with the Nixon “southern strategy” to bring in the racists, and then Reagan grabbed the anti-choice people in the 80’s, and finally, Gingrich brought in the anti-democracy fascists where power became the goal at any costs.

https://www.alternet.org/millennial-conservative-leader-explains-why-hes-leaving-trumps-republican-party-after-kavanaugh-vote?src=newsletter1097154

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What Now?

The last week or so has been an absolute tsunami of disappointments, bad news and terrifying omens.

The Supreme Court punted on gerrymandering, and issued several horrifying decisions: it upheld Trump’s travel ban, required public sector labor unions to represent non-member workers  who don’t pay for that representation, and upheld Ohio’s draconian voter purge program, among others.

Every one of those decisions will benefit the GOP in the midterms, and every one of them was 5/4.

Mitch McConnell undoubtedly feels very proud of himself, but the price of those legal victories–won with a “stolen” seat– was the legitimacy of the United States Supreme Court. Americans simply don’t know what a dispassionate Court composed of properly appointed, nonpolitical jurists would have decided, and they are convinced that the Court is now ideological rather than judicial.

Then, of course, we got the news of Justice Kennedy’s (long-rumored) retirement, and McConnell’s gleeful promise to seat a replacement (who will have passed the litmus test) before the midterms.

All this is on the heels of the humanitarian crisis at the border–an entirely unnecessary blot on our national honor (assuming we have any left) brought on by our racist President.

So what now? What should we expect?

Perhaps I’m wrong–I so frequently am–but I think we are heading for a period of civic disturbance that will make the 60s pale in comparison.

I just don’t think good Americans–and I remain convinced that good Americans are the majority–are going to passively watch their country taken down the road to fascism (as Madelyn Albright recently warned). We aren’t going to watch children being separated from desperate parents, Social Security and Medicare being raided in order to fund tax breaks for the already obscenely rich, or an economy that had finally recovered being trashed by tariffs imposed by a petulant and ignorant blowhard.

Americans aren’t going to sit still while that blowhard continues to embarrass the country, insult our allies, cozy up to (and probably collude with) our enemies, and divide Americans from each other with an unremitting barrage of racist, misogynistic rhetoric.

Trump’s constant (and ungrammatical) self-glorifying tweets may play well with his base, but they nauseate the rest of us.

The midterm elections will be critically important, but even if a “blue wave” materializes, we will in all likelihood no longer have a court system that defends stare decisis and the rule of law. We will still have the pent-up anger of hardworking Americans who have watched an already inadequate social safety net eviscerated in order to bestow extra dollars on people who don’t need those dollars. We will still experience the fury of women who are being told that they are less than equal, and that the government controls their bodies. And we will still have to deal with the frustration of citizens whose votes are suppressed, aren’t being counted, or are being discounted.

Those and multiple other civic frustrations are already beginning to erupt.

I don’t pretend to know how this will all play out, but I’m pretty sure it is going to get ugly before it gets better. America is in one of those periodic struggles for its soul–a struggle between the “good guys” who care about the common good and their fellow Americans, on the one hand, and the Trumpers who care only about themselves on the other. My bet is on the eventual victory of the good guys–but I know that a hell of a lot of people are going to get hurt in the meantime.

We need to just hang on. The next few years are going to be rough. And dispositive.

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