Enlarging The Already-Big Hole In the Wall

The overtly pious Justices placed on today’s Supreme Court by Mitch McConnell aren’t likely to stop imposing their religious beliefs with their decision to overrule Roe v. Wade. Multiple observers have warned that we are dealing with religious zealots intent upon enforcing their vision of Christian Nationalism–a vision that goes well beyond the effort to put women in our “proper” (i.e., subservient) place.

This is a Court that has bent over backwards to elevate religion– especially conservative Christian religion.

If we look at the Court’s “pipeline,” we can see that the hits are likely to continue coming. I’ve posted previously about the case of the public school coach who wants to lead prayer on the fifty-yard line, and the fact that, during oral argument, the Justices seemed inclined to allow him to do so. But that’s not the only vehicle available to a Court intent upon empowering their particular version of Christianity.

As Adam Liptak reported in December,

The Supreme Court on Wednesday seemed ready to take another step in requiring states to pay for religious education, with a majority of the justices indicating that they would not allow Maine to exclude religious schools from a state tuition program.

The court has said that states may choose to provide aid to religious schools along with other private schools. The question in the new case was the opposite: Can states refuse to provide such aid if it is made available to other private schools?

The State of Maine has a number of rural communities that do not have public secondary schools. Maine law requires those communities to send young residents elsewhere for their education, and to do so in one of two ways:’ They can sign contracts with nearby public schools, or they can pay tuition at a private school chosen by the student’s parents so long as it is, “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

This case arose when two families in Maine challenged that law. The parents want to send  their children to religious schools, and they argue that the state’s refusal to spend tax dollars to allow them to do so violates their right to the free exercise of their faith.

As Liptak noted, religious litigants have found the current court to be very hospitable to their arguments.

Religious people and groups have been on a winning streak at the Supreme Court, which seemed likely to continue in the new case. In recent decisions, the justices have ruled against restrictions on attendance at religious gatherings to address the coronavirus pandemic and Philadelphia’s attempt to bar a Catholic agency that refused to work with same-sex couples from screening potential foster parents.

The court also ruled that the Trump administration could allow employers with religious objections to deny contraception coverage to female workers and that employment discrimination laws do not apply to many teachers at religious schools

The likely precedent for this decision is a case called Espinoza v. Montana Department of Revenue. In that case, the Court found that a provision of the state’s Constitution banning aid to schools run by churches ran afoul of the  Constitution’s Free Exercise Clause, by  discriminating against religious people and schools. Writing for the majority, John Roberts held that a state need not subsidize private education–but that once it decides to do so, “it cannot disqualify some private schools solely because they are religious.”

That is fair enough. It is also why privatization efforts like Indiana’s voucher program–which bleed resources from public education in order to send tax dollars to private schools–are so dangerous and socially divisive. In Indiana, some ninety percent of voucher students attend religious schools (schools that have not, by the way, improved the academic performance of those students.)

Plaintiffs freely acknowledged that the curricula of these religious schools is divisive and discriminatory.

One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian School, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.”

The two schools “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” Maine’s Supreme Court brief said.

Justice Elena Kagan wanted to know why taxpayers should fund “proudly discriminatory” schools. The answer, evidently, is that six judges on this Supreme Court believe that when discrimination is required by Christian theology, it is entitled to special deference.

I somehow doubt that a Satanic school–or even a Muslim or Jewish one– would receive that same deference….

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An Accidental Insight

My husband and I were on a cruise ship for two weeks, on our way to Amsterdam where we  visited our son. Anyone who has taken one of these trips across the Atlantic can attest to the fact that Internet access–when available–is maddeningly slow and intermittent. It’s also expensive. On our cruise, connecting to more than one device at a time was costly, so I was unable to make planned use of my Kindle by accessing those of my books that reside on “the cloud.”

As a result, I inadvertently encountered some important research.

A couple of years ago, I had downloaded a book on the “Submerged State,” a title issued by Chicago Studies in American Politics. I’m embarrassed to admit that I’d read very little of it. (One of the enduring problems with academic research is academic language, which tends to be dense and inaccessible to all but the most determined readers…)

Since my vacation novels were unavailable, I decided to be determined, and to revisit it.

The authors make a basic–and very important–observation: thanks to America’s penchant for small government, conservatives have been able to give us governance that–despite being every bit as costly and ubiquitous as it it is elsewhere– is “uniquely invisible.”

They define the “submerged state” as policies and programs that function by providing incentives, subsidies or payments to private organizations or households to encourage or reimburse them for conducting activities deemed to serve a public purpose.

The result is that we have channelled a preponderance of the government programs that benefit citizens through private and nonprofit intermediaries, and that practice has had some very negative consequences: it has obscured the extent to which many of these policies enrich the already affluent; it has kept ordinary Americans from recognizing the role of government in their lives while allowing the programs to be “plainly evident” to the special interests that reap the rewards; and worst of all, by obscuring government activities and their positive consequences, it has reinforced anti-government attitudes.

In short, by “submerging” the operations of government, we have kept most citizens blissfully unaware of the ways in which government makes a positive difference in their lives.

The researchers considered a number of programs with varying degrees of visibility; they then surveyed recipients in order to evaluate their awareness of the benefits they receive, and recognition that those benefits originate from government.

Most of the citizens who had saved substantial dollars thanks to the home mortgage deduction, for example, claimed never to have been beneficiaries of a government program. Students whose federal loans are serviced by lending institutions are frequently unaware that those dollars come from (or are guaranteed by) government, and that eligibility and interest rates are considerably more favorable as a result.

Tax policies like Obama’s “Making Work Pay” are so obscure that the general public often  thinks rates have been increased when they have actually been lowered, leading to a pertinent question: can a reform be considered successful if it goes unnoticed?

Policy debates are also hijacked by widespread ignorance of the extent of government’s actual current role.For example, while many Americans know that the country spends more per capita on health care than any other nation, few of us are aware that government already foots most of the bill (estimates range from 56% to 70%), and that a program of national health care–with its vastly lower administrative costs– would be unlikely to cost much more.

The book has numerous other examples, but what I found most important was the researchers’ conclusion about the effects of non-visible governance on democracy. As they emphasize, an idea fundamental to democracy  is the premise that people are citizens, and citizens are active participants in governance. Participation requires that they be reasonably aware of what their elected representatives do on their behalf–that they should be in a position to form opinions about policies and be able to be involved in the political process. The submerged state, however, empowers interest groups and disempowers the public.

A couple of quotations that sum up the central point of the book:

The idea that public policies should reflect the will of the majority of citizens is a basic principle of representative democracy. Yet in the case of the submerged state, many citizens lack basic information, and public officials fail to provide it.

And

As long as public officials criticize government but persist in channelling public resources surreptitiously through private means, Americans will be deluded.

I guess I should thank the inadequacy of oceanic internet for a deeply instructive–if very depressing–read.

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The Rear-View Mirror

Like many who read this blog, I get the Letter from an American from Heather Cox Richardson. Richardson is a historian, and the great benefit of her Letters is that they provide what I like to think of as a look in humanity’s rear-view mirror.

Driving a car requires checking the traffic behind us in order to navigate the road ahead. History serves much the same purpose (which is one of the many, many reasons why the rightwing hysteria over teaching the country’s history of racism is so deranged…)

A few days ago, Richardson shared an “aha” moment.

It has been hard for me to see the historical outlines of the present-day attack on American democracy clearly. But this morning, as I was reading a piece in Vox by foreign affairs specialist Zack Beauchamp, describing Florida governor Ron DeSantis’s path in Florida as an attempt to follow in the footsteps of Hungary’s Viktor Orbán, the penny dropped.

She proceeded to outline the political currents prior to the election of Trump: the evolution of today’s GOP into the pro-oligarchy party, following what she described as the usual U.S. historical pattern to that point– “in the 1850s, 1890s, 1920s, and then again in the modern era, wealthy people had come around to the idea that society worked best if a few wealthy men ran everything.”

Each of those periods was a reaction to the expansion of civil equality. Richardson reports that wealthier Americans protected their privileged status by playing on the racism of  poorer white male voters– telling them that passage of laws protecting equal rights was really a plan to turn American governance over to immigrants or to Black or Brown Americans.

The idea that poor men of color voting meant socialism resonated with white voters, who turned against the government’s protecting equal rights and instead supported a government that favored men of property. As wealth moved upward, popular culture championed economic leaders as true heroes, and lawmakers suppressed voting in order to “redeem” American society from “socialists” who wanted to redistribute wealth. Capital moved upward until a very few people controlled most of it, and then, usually after an economic crash made ordinary Americans turn against the system that favored the wealthy, the cycle began again.

When Trump was elected, the U.S. was at the place where wealth had concentrated among the top 1%, Republican politicians denigrated their opponents as un-American “takers” and celebrated economic leaders as “makers,” and the process of skewing the vote through gerrymandering and voter suppression was well underway. But the Republican Party still valued the rule of law. It’s impossible to run a successful business without a level playing field, as businessmen realized after the 1929 Great Crash, when it became clear that insider trading had meant that winners and losers were determined not by the market but by cronyism.

Trump deviated from the usual cycle in one way–he didn’t care about enriching the oligarchy, only about enriching himself, his toadies and his family. Despite his  repellent personality and embarrassing ignorance of government and policy, he was especially dangerous because he turned the Republican base into a cult that no longer respected the rule of law.

Richardson warns that Trump’s deliberate destabilization of faith in our democratic norms is especially dangerous because it creates space for two right-wing, antidemocratic ideologies. Two current Republican governors model those ideologies: Abbott in Texas, who is pursuing the South’s Civil War insistence on “states’ rights,” and DeSantis in Florida, who is emulating Viktor Orbán’s “soft fascism.”

Orbán has taken control of Hungary’s media, ensuring that his party wins all elections; has manipulated election districts in his own favor; and has consolidated the economy into the hands of his cronies by threatening opponents with harassing investigations, regulations, and taxes unless they sell out.

DeSantis is following this model right down to the fact that observers believe that Florida’s “Don’t Say Gay” bill was modeled on a similar Hungarian law. DeSantis’s attack on Disney mirrors Orbán’s use of regulatory laws to punish political opponents (although the new law was so hasty and flawed it threatens to do DeSantis more harm than good).

Richardson counsels us to look in that rear-view mirror–to access the knowledge and tools that history provides to defend democracy from the ideology of states’ rights.” But she also warns that, because the rise of “illiberal democracy” or “soft fascism” is new to us, we need to understand how it differs both from Trump’s version of autocracy and from the old arguments for states’ rights.

At risk of over-extending my somewhat strained analogy, Orbanism represents a massive pothole on the road to democratic self-governance and civil liberty–a pothole requiring us to drive carefully and keep our eyes on the road– ahead and behind.

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One More Time…

Can you stand one more post about the Supreme Court’s attack on our fundamental freedoms?

To begin with, when he was asked to comment on Alito’s draft decision, “Mayor Pete” knocked it out of the park. You need to watch this.

Then, in a Facebook Post, my lawyer friend David Honig pointed to Alito’s deeply dishonest “history.”

May I take a moment to comment on one aspect of the shocking dishonesty of Alito’s draft abortion opinion? It’s just one, but it highlights the rest.

Alito and his ilk claim to be “originalists,” wise jurists who look to the meaning of words at the time the Constitution was written, in 1789, to glean their meaning.
One fact first. The 9th Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” That means there are rights that aren’t written down, rights that people retain. That would include all the rights, according to an “originalist,” that they held in 1789.

So Alito, in his draft decision, spent paragraphs on the sudden explosion of anti-abortion laws in the mid 19th Century, many decades after the writing of the Constitution, to support his position that abortion wasn’t an existing right to be preserved.

Why would he do that? Why would an “originalist” look, not to the time of the writing of the Constitution, but to a century later, for the very core of the originalist argument?

Because he’s a damned liar.

During Colonial times abortion was quite common. The usual method was actually drinking oil of peppermint, or perhpas black root or cedar root, carefully measured to be enough to cause spontaneous abortion, while not threatening the life of the mother. In English colonies, contrary to Alito’s blatant lie that abortion was illegal from the beginning of Common Law, it was legal until “quickening,” when the fetus could be felt moving.

So my point here isn’t to dive headlong into the abortion debate.

My point is to start the discussion with a fact – the opinion coming down is a lie premised on a lie based on lies.

Whatever you think of abortion, this must color what you think of the Court. The United States Supreme Court has been an actor for good and for ill in our nation over time. The same entity that gave us Plessy vs. Ferguson gave us Brown vs. Board of Education.

But today, that Court is giving us lies in favor of a political, and to some extent religious,* opinion, and doing so boldly and without apology. The end justifies the means, even if it means the United States Supreme Court is a filthy den of liars with as much credibility as the three card monty player on a dingy street corner.

As a man who has spent nearly 40 years working for and believing in the rule of law, while recognizing it is imperfect, the indisputable fact that it is now, from its highest temple, not merely imperfect, but dishonest, is crushing.

Finally, in a footnote, David warns us not to underestimate the degree to which the opinion codifies a conservative version of Christianity as our nation’s one true religion and source of law; as he notes, other religions do not hold the same tenets about abortion that Alito privileges in his dishonest diatribe. Jewish law, for example, considers abortion permissible, as do several Christian  denominations. This Court prides itself on what it calls “religious liberty,” but–as David points out–it is really protecting and elevating one version of Christianity, while ignoring the liberties of those who hold different religious, beliefs.

It’s America’s version of Sharia law.

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The Nature Of Our Divisions

I was among those who breathed a big sigh of relief at the results of the French election, and the defeat (once again) of far-right candidate, Marine Le Pen. (I also worried, along with many others, about the fact that–despite the very comfortable margin of Macron’s win–  Le Pen increased her vote from former match-ups.)

Among the various news reports and opinion pieces describing the French election results was a column in the Washington Post that got to the essence of the challenge faced not just by the French, but by all Western democracies. 

A center-left leader can be a champion of tolerance, a force to fight climate change and an advocate for an agenda that a majority of voters favor. But they must do so while facing deep divisions between urban and rural populations, between religious and secular voters and between the well-educated and less-educated. That makes it virtually impossible for competent, well-intentioned leaders to fend off constant criticism from a 24/7 media or to withstand fierce opposing factions and cynical voters.

And there it is.

Commenters to this blog will point out–accurately–that not every rural voters is a bigot or a MAGA fanatic, and that is absolutely true.  It’s also true that not every urban resident is a progressive voter. Overall, however, it is undeniably the case that rural America is Red and urban America is Blue.

It is patently unfair to accuse all religious voters of being Christian Nationalists; I have several good friends among the Christian Clergy who are liberal–or, as we might once have labeled them, advocates of the Social Gospel. That said, they aren’t the ones leading the charge to discriminate against gay and transgender youth. They aren’t looking askance (or worse) at Muslim or Jewish Americans. My friends’ churches aren’t among the concerning numbers of Evangelical congregations encouraging acceptance of the “Big Lie,” and insisting that only White Christians are “real Americans.”

I’d also be one of the first people to argue that education and intellect are not the same thing. (Education and job training aren’t the same thing either.) I think of my mother, who bitterly regretted not having been able to go to college; like many others who lacked that experience, she was widely-read, well-informed and highly intelligent. But again, when we look at the population at large, we find statistically-significant differences between people who have and have not been introduced to logic, to respect for evidence (and an understanding of what does and does not constitute evidence), and to the intellectual inheritance of humankind. Educated people are–on average– more likely to recognize complexity and connection, more likely to understand the role of culture and the consequences of systemic forms of discrimination.

If these are the fault-lines of today’s political environment–and I think they are–what are the challenges that situation poses for political leadership? What is the result when more than a third of a country comes from the ranks of those who see governance in terms of culture war and personal loss, rather than an exercise in effective management of the infrastructure of the state?

First, a politician who considers it their job to solve problems, as opposed to channeling anger and fanning cultural resentment, will rarely receive credit for achieving half or even three-quarters of a loaf. No matter how well the president helps the country recover from the recession, how many jobs are created on their watch or how effective an international leader they become, anything less than perfect will be met with unforgiving criticism. The temptation to paint a president as a loser is overwhelming for allies who are disappointed with the results. This is made worse in a media environment that thrives on conflict and a political environment in which the opposition party is unwilling to give credit for any achievement. Therefore, one can expect few, if any constructive problem-solvers on the center left enjoying high approval ratings.

In France, center-left Macron won, despite polling in the low 40s.  He did that by making the case that the alternative was a rightwing, unhinged, grievance-mongering opponent. As the linked column noted, the French were not particularly enamored with Macron– but given the “binary choice between him and Le Pen,” most French voters opted for competence and sanity.

The key to escaping fascism in the U.S. is to ensure that enough educated, urban, secular voters understand that the election is between democracy and authoritarianism; between free markets and crony capitalism, and between genuine religious freedom and Christian nationalism–and then getting enough of those voters to the polls.

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