We are living in–and hopefully, through–an age of global upheaval. Most readers of this blog are probably aware of the uprisings in Iran, prompted by the death of a young woman at the hands of that country’s “Morality Police.” As the Washington Post reported,
Protests in Iran continue more than a week after 22-year-old Mahsa Amini died after being taken into custody by the “morality police” for the offense of allegedly violating the country’s strict dress code. The Post reports: “The anti-government protests she inspired are still raging across Iran. Demonstrators, many of them women, are burning hijabs and fighting back against police; they are tearing down posters and setting fire to billboards of Ayatollah Ali Khamenei, the country’s supreme leader.” More than 30 people have been killed. The Post has verified video showing the police firing into crowds of protesters.
Several media outlets have reported on the nature of her dress code violation: a loose headscarf.
A 22-year-old died because her headscarf–which she was wearing in compliance with Iran’s religious laws–was deemed “too loose.”
These reports reminded me of a book I read several years ago, and after racking my brain, I finally remembered the title: Hellfire Nation. I commend it to the attention of those who don’t think America has its own version of Morality Police. The publisher’s description is less hair-raising than I found the book itself, which was replete with descriptions of this country’s repeated moral panics.
This insightful new conceptualization of American political history demonstrates that—despite the clear separation of church and state—religion lies at the heart of American politics. From the Puritan founding to the present day, the American story is a moral epic, James Morone says, and while moral fervor has inspired the dream of social justice it has also ignited our fiercest social conflicts.
From the colonial era to the present day, Americans embraced a Providential mission, tangled with devils, and aspired to save the world. Moral fervor ignited our fiercest social conflicts—but it also moved dreamers to remake the nation in the name of social justice. Moral crusades inspired abolition, woman suffrage, and civil rights, even as they led Americans to hang witches, enslave Africans, and ban liquor. Today these moral arguments continue, influencing the debate over everything from abortion to foreign policy.
Written with passion and deep insight, Hellfire Nation tells the story of a brawling, raucous, religious people. Morone shows how fears of sin and dreams of virtue defined the shape of the nation.
As one reviewer noted, the book’s “explanatory work is performed by the ubiquitous trio of race, class, and gender.” The author demonstrated the various ways that “anxious Americans invoke the concept of sin to stigmatize and control dangerous others.” This stigmatization has allowed our home-grown bigots t to characterize America’s underclass not only as “other” but as “wicked”—and the book traced the implications of that characterization for policy formation. (My own scholarship confirmed that assertion; I found George W. Bush’s Charitable Choice initiative firmly grounded in a worldview that blamed poverty on a perceived lack of “middle-class values.”)
Hellfire Nation described a recurring political cycle, running from zealotry, to bigotry, to panic, and finally to state-enforced legal prohibitions. It also explains what so many of us see as hypocrisy: the self-described “small government” conservatives who are nevertheless all too eager to use the state to impose their own views of morality on others–a scenario we can most recently see playing out in the eagerness of those same conservatives to criminalize abortion.
It is, of course, more complicated than that.
The book documented two kinds of morality politics. The first kind is based upon a concept of sin as an individual moral failure that focuses on efforts to punish the sinner. The second kind locates sin in systemic failures and as a result, makes an effort to restructure the system.(It’s an intriguing way of mapping the differences between conservatives and progressives.)
Those who adhere to the first understanding of sin are preoccupied with what they see as affronts to God; the second group is more concerned with earthly justice.That said, in the real world, the two versions are not so neatly allocated. As the book tells us, abolitionists combined a progressive vision of racial justice with a very intense focus on personal industry and sexual purity.
America’s legal system separates church from state, but as any reading of our history will confirm, that has never stopped our homegrown Morality Police from trying–often successfully–to impose the mandates of their religious dogmas on their neighbors.
They want a version of Iran based upon adoption of their particular form of Christianity. It is not inaccurate to point out that we will be voting on that vision in November.
George Packer recently sent out a newsletter hawking subscriptions to the Atlantic. I’ve been a subscriber for many years, so I was preparing to delete the email, but it contained a description of genuine journalism that was so apt and timely–especially in the era of Fox and its clones–that I decided to share it.
Packer, as many of you know, is a highly respected political scientist, and author of several well-received books. He also writes for the Atlantic. He began his newsletter as follows:
When I went to Ukraine last May to report the story that appears in The Atlantic’s October issue, I didn’t go as a neutral observer. I very much wanted Ukraine to win the war, and I was happy to bring a suitcase full of medical supplies to Ukrainian doctors who would make sure the equipment reached soldiers at the front. If I’d been asked to do the same for doctors on the Russian side, I would have had no trouble refusing. Intellectually and morally, none of this was complicated. Ukraine is the victim of Russia’s unprovoked aggression, it is a smaller country bullied by a larger one, and it is a democratic society threatened by an imperial dictatorship. The stakes of the war were as clear and high as those of any event in living memory.
For all the high-minded, public-spirited justifications that journalists offer for what we do, at the bottom lies a fundamentally selfish motive. Some stories attract us for their novelty, others for their scale, or their complexity, or their sheer excitement. Ukraine attracted me because I wanted to see a cause in which I’d come to believe—because I’d chosen sides.
Isn’t “choosing sides” exactly what we don’t want journalists to do? Packer weighs in with an explanation of why that is the wrong way to think about the nature and necessity of objectivity.
Should this partisanship have given me ethical qualms? Should it bother readers of the article? Journalists are not licensed according to a professional code of ethics, but there’s a long-standing sense that we shouldn’t take sides—at least not openly. A reporter covering a presidential election is not supposed to announce which candidate he or she supports, and some reporters even abstain from voting at all to remain above suspicion. At an extreme, the idea of neutrality leads to an absurd pursuit of balance in which a lie on one side of a political divide is given equal status with the truth. At the opposite pole, journalists with a strong bias might hide important facts and shade their storytelling in intellectually dishonest ways to manipulate the reader to a prefixed conclusion. In one famous example, The New York Times’ Walter Duranty, a Stalin sympathizer, denied the existence of the Soviet-engineered famine in the early 1930s that killed several million Ukrainians.
Welcome to the Fox proclamation that its news coverage is “fair and balanced.”
As I used to tell the students in my Media and Public Policy classes, “balance” is most definitely not the same thing as “factual” or “objective.” The emphasis on balance has given us what observers call “stenography journalism”–he said/she said, we report, you decide. (For years, that approach undercut efforts to explain the gravity of climate change; it gave equal time and emphasis to the 97% of scientists who were issuing warnings and the 3% of outliers and outright cranks who denied it.)
Packer addressed the danger–and dishonesty–of that false emphasis.
There’s a great deal of space between both-sides-ism and Duranty-ism, between spurious balance and outright deception. In that space, journalists are bound to take sides. But choosing sides requires objectivity, which is very different from neutrality. Objectivity is the pursuit of truth regardless of subjective impulses or political commitments. It’s what makes it possible to choose sides and remain credible. Partisanship imposes an extra burden to keeping our minds open to whatever might challenge our biases, to being on guard for any impulse to suppress or self-censor. As Bob Dylan put it: “To live outside the law, you must be honest.” (Emphasis mine.)
Journalists are human, and they will get things wrong. As with all humans, they can see only through their own eyes. What we have the right to demand is not a”balance” that abdicates responsibility for truth-telling– the stenography approach. Instead, we have a right to expect journalists to do as Packer counsels–keep their minds open to information that challenges their biases.
As we have all seen in discussions that accompany this blog, that’s not easy. When people are convinced that their understandings are more accurate and trustworthy than the perceptions or reports of others, they will cherry-pick sources and evidence.
Objectivity is beyond them, so passion substitutes.
Sometimes, a news article will hit several of my hot buttons. This recent one managed to do so. (Not that it is particularly difficult to piss me off…the older I get, the crankier…)
Here’s the gist of the story: a poll taken by Politico discovered that
about 57 percent of Republicans, and 70 percent of Americans overall, believe the Constitution would not allow America to be declared a “Christian nation.” Respondents were then asked “Would You Favor or Oppose the United States Officially Declaring the United States to be a Christian Nation?”
Sixty-one percent of Republicans were in favor of just that, with 78 percent of Republicans who identify as an evangelical Christian backing the idea. Support was even higher among older Republicans.
Regular readers of this blog know of my preoccupation with America’s low levels of civic and constitutional literacy. These percentages reflect that only 57 percent of Republicans understand–or are prepared to acknowledge– the intended effect of the First Amendment, or the history of America’s constitutional debates.
Then, of course, there’s the little matter of America’s still-pervasive racism. Evidently, there are still a lot of White folks who are dogged believers that the pre-Civil War South should rise again, whether or not it actually will…
Per Politico
Our polling found that white grievance is highly correlated with support for a Christian nation. White respondents who say that members of their race have faced more discrimination than others are most likely to embrace a Christian America. Roughly 59 percent of all Americans who say white people have been discriminated against a lot more in the past five years favor declaring the U.S. a Christian nation, compared to 38 percent of all Americans. White Republicans who said white people have been more discriminated against also favored a Christian nation (65 percent) by a slightly larger percentage than all Republicans (63 percent).
Regular readers are also well aware of my language prejudices; I have this old English-teacher belief that words have meanings, and that communication requires that the people using those words broadly agree upon those meanings.
In any sane world, the assertion that White Americans suffer discrimination would be met with incomprehension. I know that political strategists dislike the contemporary use of the term “privilege”–its users sound elitist, and when one thinks of “privilege,” what comes to mind is unfair advantage. (Actually, White skin does confer advantage, just not the kind of material advantage that this particular word brings to mind.)
The fact remains that, in the good old U.S. of A., what is perceived of as discrimination against White people is a very overdue erosion of the considerably privileged status that skin color has historically afforded them.
When I express my frequent criticisms of Christian Nationalism (which is, in reality, White Christian Nationalism), I try to be very clear that I am not criticizing Christianity. (To appropriate a phrase, some of my best friends are Christian..) I am happy to report that real Christians agree with me, as the following excerpts from a statement from Christians Against Christian Nationalism makes clear.
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.
The statement affirms basic constitutional principles: That “one’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community,” and that
“government should not prefer one religion over another or religion over nonreligion.” And it affirms others:
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.
So Republicans who want to label America as a “Christian Nation” manage to hit several of my hot buttons: concerns about civic literacy and the normalization of racism, annoyance at the misuse of language, and deep, deep fear of the rise of Christian Nationalism.
Over the past couple of weeks, several people have contacted me asking that I comment on an Indiana lawsuit that is currently on appeal to the Supreme Court, which will hear it this coming session unless the parties settle and pull it from consideration. The case is Health and Hospital Corporation v. Talevski.
There is a (well-founded) fear that the current, retrograde Supreme Court majority will use this case to eliminate the use of Section 1983 by Medicaid beneficiaries.
Section 1983 is a 150-year-old provision of federal law that permits citizens to sue when government is violating their rights. If such a suit is successful, a companion provision requires that government pay the lawyer who handled the successful case. (Needless to say, without some prospect of being paid, very few lawyers will be willing to accept such cases–and in the case of Medicaid, plaintiffs by definition lack the resources to make such payments.)
I’ve been reluctant to address the case, because it is very technical and it’s been a long time since I was a practicing lawyer. It’s one thing to pontificate about the Constitution, which I’ve been teaching for the past 20+ years, and quite another to do a “deep dive” into an area of the law with which I am no longer familiar. For that matter, my own background with Section 1983 focused on its use to sue government when someone who is acting “under color of state law” deprives citizens of their civil rights; I was far less familiar with its use under the Spending Clause, which Talevski threatens.
Because several of the people expressing concern are people I highly respect, I did a bit of research. That research included consulting Indiana’s ACLU, which very kindly provided me with a letter the office had previously issued on the subject. Here is the opening paragraph of that letter:
To Whom It May Concern:
As you are undoubtedly aware, in Health and Hospital Corporation v. Talevski, the U.S. Supreme Court has agreed to address the issue of whether spending-clause legislation may be enforced through an action brought pursuant to 42 U.S.C. § 1983. It is, of course, impossible to predict how the Court will resolve this issue, or how narrow or broad its holding might be. However, our office has a lengthy history of relying on § 1983 to remedy violations of spending-clause legislation that is designed to protect the neediest Hoosiers. An unfavorable decision in Talevski could serve as an absolute bar to similar litigation in the future.
I try to keep these posts relatively brief, but given the stakes of this litigation and the concerns it raises, I am going to end this post by pasting in the rest of the ACLU’s letter. Before I do so, however, I want to confirm my agreement with the assertion that eliminating use of Section 1983 would effectively eliminate the rights of literally millions of Americans who rely on Medicaid.
A right without a remedy for its violation is not a right at all. And given the current composition of the Supreme Court, the threat that important rights will be “on the chopping block” is not an idle one.
Below is the portion of the letter from ACLU lawyer Gavin Rose describing just how important Section 1983 has been in enforcing the rights of Hoosiers and all American citizens.
_______________________
In Planned Parenthood of Indiana, Inc. v. Commissioner of Indiana State Dep’t of Health, 699 F.3d 962 (7th Cir. 2012), our office filed a lawsuit challenging a recently enacted Indiana statute prohibiting state agencies from paying state or federal funds to any entity that performs abortions. Although we raised a constitutional claim, the primary claim—and the claim on which the statute was ultimately invalidated by the Seventh Circuit—was that, by denying Medicaid recipients the ability to receive family-planning services through Planned Parenthood, the statute violated the free-choice-of-provider provision of federal Medicaid law, 42 U.S.C. § 1396a(a)(23). Federal Medicaid law, like the entirety of the Social Security Act, was enacted pursuant to Congress’s spending-clause authority.
In addition to allowing recipients to select the providers from whom they wish to receive services, federal Medicaid law establishes that participating states must provide certain enumerated services to Medicaid-enrolled individuals and that they may elect to provide additional services. See 42 U.S.C. § 1396a(a)(10)(A). However, once a state provides a certain service, whether the provision of that service is required or optional, the state must pay for that service whenever it is “medically necessary” for a Medicaid recipient. With overwhelming success, our office has routinely relied on § 1983 to bring litigation when Indiana has failed to provide for the receipt of medically necessary services by children, persons with severe disabilities, or other vulnerable Hoosiers:
Ø In Selner v. Secretary of the Indiana Family & Social Services Administration, No. 1:15-cv-01874-SEB-MPB (S.D. Ind.), we filed a class action lawsuit challenging Indiana’s refusal, in contravention of virtually unanimous medical opinions, to provide Medicaid coverage for the ground-breaking Hepatitis C drugs unless a patient had already experienced substantial liver damage. The lawsuit resulted in a settlement agreement whereby Indiana agreed to cover the medications without regard to the severity of an individual’s disease.
Ø In Bontrager v. Indiana Family and Social Services Administration, 697 F.3d 604 (7th Cir. 2012), our office represented a Medicaid recipient in need of significant dental services who challenged Indiana’s $1,000 annual “cap” on such services. After concluding that this “cap” excluded medically necessary services and therefore violated federal Medicaid law, the Seventh Circuit affirmed the issuance of a preliminary injunction in favor of our client.
Ø In A.M.T. v. Gargano, 781 F. Supp. 2d 798 (S.D. Ind. 2011), we represented a class of children with severe disabilities (such as cerebral palsy or other muscular disorders) that had been prohibited from receiving physical or occupational therapy because Indiana determined that the therapy would not result in further functional progression, even though the children would experience significant regression in absence of therapy. The district court entered summary judgment in our client’s favor, enjoining Indiana from enforcing its prohibition on so-called “maintenance therapy.”
Ø In Chadwell v. Indiana Family & Social Services Administration, No. 11D01-0808-PL-373 (Clay Cnty. Superior Court), we represented a class of severely disabled Medicaid recipients who relied on so-called “attendant care services”—which are utilized to assist persons in performing their activities of daily living—to allow them to live in the community rather than in an institutional setting. After Indiana restricted persons from receiving more than 40 hours a week in these services, we filed suit. The court issued first a preliminary injunction and then summary judgment in our clients’ favor.
Ø In McArty v. Roob, No. 49D04-0606-PL-24259 (Marion Cnty. Superior Court), we represented a class of Medicaid recipients in need of dentures or related repairs in challenging Indiana’s refusal to cover these services for persons who had received similar services within the past six years. After we filed suit, Indiana entered into a consent decree in which it agreed to provide coverage for medically necessary services without regard to its six-year restriction.
Ø And in Collins v. Hamilton, 349 F.3d 371 (7th Cir. 2003), we successfully represented a class of mentally ill children in challenging Indiana’s failure to provide Medicaid coverage for long-term residential treatment in certain residential facilities.
On top of all this, in order to ensure that persons in need are not forced to wait indefinitely while states contemplate their eligibility for public benefits, federal law frequently establishes specific time limits that states must meet to process applications or appeals. In the past, our office has relied on § 1983 to file class-action litigation seeking to enforce federal-law time limits to issue decisions on Medicaid applications (Thornton v. Murphy, No. 1:08-cv-01853-LJM-DML – S.D. Ind.), to resolve unemployment appeals (Gorman v. Commissioner of the Indiana Dep’t of Workforce Development, No. 49D06-1006-PL-26087 – Marion Cnty. Superior Court), to resolve Medicaid appeals (Murray v. Roob, No. 49D12-0505-PL-16671 – Marion County Superior Court), and to resolve Food Stamp appeals (Nickels v. Roob, No. 49D01-0701-PL-4025 – Marion Cnty. Superior Court). We have also relied on federal Medicaid law to file a lawsuit challenging Indiana’s failure to obtain and evaluate required medical evidence before deciding that an applicant is not disabled and therefore ineligible for benefits (Bailey v. Sullivan, No. 1:94-cv-00089-SEB-JMS – S.D. Ind.). Each of these cases was resolved through a favorable settlement agreement or consent decree.
Finally, Title IV-E of the Social Security Act, among other things, requires participating states to cover certain costs for children in foster care and to provide payments on behalf of adoptive children with special needs. In C.H. v. Payne, 683 F. Supp. 2d 865 (S.D. Ind. 2010), our office represented several classes of foster children and adoptive children with special needs, and their parents, in an action to challenge Indiana’s reduction in the payments made on behalf of children to a level insufficient to meet their most basic needs. A private law firm representing the Indiana Association of Residential Child Care Agencies, Inc. filed a similar lawsuit (which was consolidated with the C.H. case) addressing payments to certain providers. After hearing evidence, the district court issued a preliminary injunction against the payment reductions on the same day as the hearing and memorialized its conclusions in a written decision less than a week later.
* * *
The cases that I have identified represent a partial list of actions alleging violations of spending-clause legislation brought by a single law office. Frequently on behalf of persons in dire need, other attorneys have initiated countless similar cases both in Indiana and across the nation. As indicated, I cannot predict how the Supreme Court will ultimately resolve Talevski. However, any holding that spending-clause legislation may not be enforced through § 1983 would undoubtedly jeopardize the ability to bring similar cases in the future.
Most of us remember youthful ball games with the whiny little kid who responded to losing by taking his ball and bat and going home. Most of us also remember parental lectures on what “good sportsmanship” means, and why fair play and graciousness in losing is so important.
It appears that the GOP has jettisoned those values, along with the precepts formerly associated with genuine Christianity. (Evidently, none of those ethical principles are consistent with the party’s growing devotion to QAnon…)
In a survey by The Washington Post of 19 of the most closely watched statewide races in the country, the contrast between Republican and Democratic candidates was stark. While seven GOP nominees committed to accepting the outcomes in their contests, 12 either refused to commit or declined to respond. On the Democratic side, 18 said they would accept the outcome and one did not respond to The Post’s survey.
Trump, of course, has continued to claim– without a scintilla of evidence– that his loss to Joe Biden in 2020 was rigged. Since he attacks fellow Republicans unwilling to agree, the article notes that he has made election denialism the price of admission in many GOP primaries, with the result that more than half of all Republican nominees for federal and statewide offices that administer elections “have embraced unproven claims that fraud tainted Biden’s win, according to a Washington Post tally.”
As I’ve repeatedly noted, one of them is running for Secretary of State here in Indiana.
In competitive races for governor or Senate in Arizona, Florida, Kansas, Michigan, New Hampshire, North Carolina, Pennsylvania and Texas, GOP candidates declined to say that they would accept this year’s result. All but two — incumbent senators Ron Johnson of Wisconsin and Marco Rubio of Florida — have publicly embraced Trump’s false claims about 2020, according to a Post analysis.
Seven Republicans did pledge to accept the results. One of them was Colorado Senate contender Joe O’Dea.
O’Dea, who is behind in the polls as he attempts to unseat incumbent Colorado Sen. Michael F. Bennet (D), did not reference Trump by name, but used his response to offer notably sharp criticism of candidates who refuse to concede when they lose. “There’s no polite way to put it. We have become a nation of poor sports and cry babies,” said O’Dea. “We’ll keep a close eye on things, but after the process is done and the votes are counted, I’ll absolutely accept the outcome. If the Senator is up for it, we can certify it over a beer. It’s time for America’s leaders to start acting like adults again. Loser buys.”
This growing unwillingness to accept the results of an election is no small thing.
Elections have been defined as a substitute for armed conflict–rather than taking to the streets, democratic polities choose “champions” (aka candidates) who take their arguments to the people. The people vote, and the loser accepts their verdict (usually biding his or her time until the next election cycle). Violence averted, governance continued.
That, of course, is the ideal. And there are plenty of reasons to criticize America’s current conduct of elections– gerrymandering, the greater weight given to rural votes, social media campaigns sowing disinformation, the outsized influence of money, and the widespread lack of civic literacy among the voting population. I do not mean to minimize the significance of those factors, or their ability to affect the results of electoral contests.
We definitely need to address the multiple defects in our electoral processes. We need to streamline registration and minimize state-level game-playing, and we clearly need to make it easier rather than harder to vote.
But none of those defects means that the result of a given election contest is “rigged.”
“If I win, it was a fair election. If I lose, it was rigged.” Heads I win, tails you lose is, as O’Dea put it, the position of a cry baby–the modern iteration of the poor sport who responded to a loss by taking his ball and bat and going home. It is also a position absolutely incompatible with a functioning democracy.
Those of us who support a candidate who loses can point to lots of reasons why voters supported the “wrong” candidate. But in the continued absence of provable fraud, our civic obligation is to suck it up and concede.
The Republican candidates who are telling us they will refuse to abide by results they don’t like are telling us who and what they are. Believe them.
