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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Moral Clarity

At breakfast the other day, my husband asked me what I thought today’s Republicans really believe.

I should mention that he and I met when we were members of Mayor Bill Hudnut’s very Republican Indianapolis city administration, so our dismay with and disapproval of what the GOP has become has built over a period of years.  After giving his question some thought, I said today’s Republicans think the world should be run by White Christian men.

In a recent column, Jennifer Rubin made a similar point: The GOP, she wrote, is no longer a party. It’s a movement to impose White Christian nationalism.

People might be confused about how a Republican Party that once worried about government overreach now seeks to control medical care for transgender children and retaliate against a corporation for objecting to a bill targeting LGBTQ students. And why is it that the most ambitious Republicans are spending more time battling nonexistent critical race theory in schools than on health care or inflation?

To explain this, one must acknowledge that the GOP is not a political party anymore. It is a movement dedicated to imposing White Christian nationalism.

The media blandly describes the GOP’s obsessions as “culture wars,” but that suggests there is another side seeking to impose its views on others. In reality, only one side is repudiating pluralistic democracy — White, Christian and mainly rural Americans who are becoming a minority group and want to maintain their political power.

Rubin says that the MAGA movement is essentially an effort to “conserve power and to counteract the sense of a shared fate with Americans who historically have been marginalized.”

The hysteria on the right has led to the virtual abandonment of policy positions, or for that matter, anything remotely resembling adult argumentation. Rather than focusing on governance, the cult that was once a political party has substituted what Rubin accurately calls “malicious labeling and insults (e.g., “groomer,” “woke”), and the targeting of LGBTQ youths and dehumanization of immigrants.” Today’s Republican candidates characterize their opponents in terms that in our time would have made them outcasts in the party–they label Democrats (and rational Republicans, to the extent those still exist) “as sick, dangerous and — above all — not real Americans.”

No one should be surprised that the “big lie” has become gospel in White evangelical churches. The New York Times reports: “In the 17 months since the presidential election, pastors at these churches have preached about fraudulent votes and vague claims of election meddling. … For these church leaders, Mr. Trump’s narrative of the 2020 election has become a prominent strain in an apocalyptic vision of the left running amok.”

If anti-critical-race-theory crusades are the response to racial empathy, then laws designed to make voting harder or to subvert elections are the answer to the GOP’s defeat in 2020, which the right still refuses to concede. The election has been transformed into a plot against right-wingers that must be rectified by further marginalizing those outside their movement.

Rubin is correct when she says that America’s very real  political problems are minor when compared with what she calls  “the moral confusion” exhibited by millions of White Christian Americans. My only quibble with that observation is that White Supremacy isn’t really “moral confusion.” It is immorality.

What I find depressingly ironic is the fact that the “morality” preached in so many Christian churches is focused exclusively on individual (primarily sexual) behavior–as though “morality” is exclusively a matter of what happens below the waist and in the uterus, and has little or nothing to do with how we treat our fellow humans.

A morality that avoids grappling with people’s social behaviors–a theology that ignores questions of basic social justice–is no morality at all.

America may avoid a replay of our “hot” civil war, but make no mistake: we are in the middle of an existential battle for the soul of this country–and those fighting to retain their dominance are unrestrained by morality, by fidelity to the rule of law, or by allegiance to the (yet-to-be-achieved) principles of the Declaration, Constitution or Bill of Rights.

I firmly believe that a majority of Americans support pluralism, democracy and fundamental fairness. But I also know that people fight harder–and dirtier– when they feel cornered.

We live in a very scary time.

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Putting Us In Our Place…

The day the Alito draft opinion leaked, my youngest son sent me a reaction from The Onion, headlined “Vessel for Male Sexual Gratification Very Sad Today.”

Noting its slumping posture, slack expression, and overall downcast appearance, sources confirmed Wednesday that a vessel for male sexual gratification was very sad today. “It definitely appears to be upset,” said sources, adding that the object that exists solely for men’s physical pleasure was presently sitting unmoving with a distant, empty stare. “It doesn’t look happy. What’s wrong with it? I don’t like the way it’s ignoring me.” At press time, sources had decided to go over to the sexual apparatus and tell it to smile.

Despite the pious, “pro life” pronouncements of those who have worked assiduously to control women’s reproduction, the real issue has little or nothing to do with “saving babies.” (If it did–as innumerable people have pointed out–Americans wouldn’t continue to ignore the care and feeding of those babies once they are born.) It’s the “place”–the defined status– of women. 

We can see the desired end game of the “pro-life” movement in the declarations of the more rabid anti-choice warriors, who have made it quite clear that they oppose birth control as well.

I still remember a conversation with a partner at the law firm I joined after graduating from law school. It was 1977, and the firm had just hired its first two women lawyers (I was one). He mused that women’s ability to plan our childbearing had opened up employment opportunities that hadn’t previously been available. He was right.

Before the wide availability of birth control, the only real “choice” available to women who wanted to pursue professional careers was to abstain–from sex, marriage, and motherhood–or to delay for many years (or more commonly, to entirely forgo) careers.

The birth control pill changed women’s worlds. It also changed virtually all parts of American society. Remember that old cigarette ad, proclaiming “You’ve come a long way, baby?” We have.

Think about the trajectory.

Religion began–and mostly remains– highly patriarchal. Women were seen as either temptresses (Eve!), or nurturers and breeders. Gender norms were “God decreed,”  and religious texts were male-centered.

When the American colonies were first settled, they adopted English laws forbidding women from owning property or from keeping their own earnings. In 1877, all states had laws preventing women from voting. Women have had the vote for just over 100 years.

Most other advances toward civic equality for females came after 1960–the year the FDA approved the birth control pill. In 1963, we got the Equal Pay Act. In 1964, the Civil Rights Act was passed and the EEOC established. In 1965, the  Supreme Court ruled that state legislatures couldn’t forbid married people from using contraceptives–a ruling that Alito’s draft endangers. Other rulings allowed women to serve on juries, and forbid various types of gender discrimination. It was only recently that the Lily Ledbetter Act attacked the practice of paying women less than men doing the same job.

Thanks to those legal changes–and especially the ability to decide whether and when to procreate–women have entered much more fully into the life of this country. We have a woman Speaker of the House, a woman Vice-President. Turn on your TV, and women news anchors and sports reporters inform you. Today, your doctor and your dentist and your CPA are all as likely to be women as men.

The results have been salutary–and not just for women.

A friend whose company offers financial services recently posted an article from The Daily Shot, sharing research that compared companies with greater and lesser numbers of female executives in the ranks. Those with more female executives “have done far better over the last decade in return on equity than the rest of the S&P 500.”

The Christian Nationalist Party–formerly the GOP–finds the current state of affairs terrifying and “unGodly.” The old White guys who believe they should run the world have very accurately identified the foundation on which women’s progress rests: the ability to control our own reproduction. 

And that is what the fight over abortion is really about.

Assuming the extent of the backlash to the Alito leak doesn’t change the result–assuming the Court issues a version of Alito’s dishonest “history” and his astonishing decree that state legislators should have the right to require women to give birth–we will see whether America is willing to roll back the past fifty years of cultural change–whether even Red states are able to erase the civil status, empowerment and participation of half of the population.

Will this last gasp of patriarchy prevail? We’re about to find out.

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About That Ciivil War..

Jennifer Rubin’s column on the leak of Alito’s “slash and burn” opinion pretty much summed up where we are: she pointed out that

unelected justices — in some cases appointed by presidents who lacked a popular-vote majority and confirmed by senators who did not represent a majority of the country — would bring to head a battle between a fading racial, religious and political minority and an increasingly diverse, secular country.

Rubin is not the only pundit pointing to the implications of the leaked analysis: this isn’t simply an attack on Roe, or on the right to abortion. This is the culmination of a 50-year effort to reverse the jurisprudence of substantive due process.

As I used to explain to my students, in American law, there are two kinds of due process: procedural and substantive. Procedural due process is–as the name implies–concerned with the fundamental fairness of the legal process. Did an accused person get a fair trial? If the matter was civil, rather than criminal, was the government procedure properly respectful of the individual’s liberty interests and property rights?

Substantive due process, as the name implies, is concern for the substance of a proposed law or government action. Is this an area where government regulation or action is appropriate, or is this a matter that must be left up to the individual to determine?

In other words, in this particular instance, who gets to decide? Government or the individual involved?  The question is not: what should the decision be? The question is: who gets to make the decision?

Ever since the Supreme Court ruled in Griswold v. Connecticut that the legislature had no business deciding whether married couples could use birth control, the doctrine of substantive due process has been applied to limit state intrusion into what the Court has called “intimate decisions.” Those “intimate decisions” include whether and when to have children, who to marry, whether to have consensual sexual relations, and many other choices that contemporary citizens believe are simply none of government’s business.

Alito’s sneering draft sweeps away that distinction. He hands over to state legislatures the authority to invade the most personal and private areas of individual lives, and to decree how those “intimate” lives should be led.

Make no mistake: eviscerating the doctrine of substantive due process, which is what this decision would begin to do, would return the U.S. to a pre-modern version of state authority–to a time when government had the right to impose the religious beliefs of those in power on citizens who do not share those beliefs.

If the leaked draft represents the Court’s ultimate, official decision, it will generate a civil war between the minority of Americans who want to turn back the clock to a time when church and state were joined in authority over citizens’ most personal decisions, and the rest of us.

Why do I characterize what’s coming as “civil war”?

Over the past 50 years, Americans (and for that matter, citizens of other Western democracies) have become accustomed to a legal system that draws a line between permissible and impermissible government actions. We have become accustomed to a culture in which we are entitled to a degree of personal autonomy, to control of the most meaningful, personal aspects of our own lives. In the U.S., polling repeatedly shows that large majorities believe that a woman should be able to control her own body and make her own reproductive decisions, that people of the same sex or different races should have the right to marry, that decisions to use or forgo contraception is none of government’s business.

A minority of paternalistic religious critics have worked  tirelessly to turn back the clock– to return to a time when these decisions were made by the White Christian Males in charge, those Rubin properly characterized as a “fading racial, religious and political minority.” Alito’s draft represents a massive victory for that minority. If it is seen accurately for what it promises–a steady stream of decisions depriving citizens of hard-won rights to live their “intimate” lives as they see fit– I believe furious Americans will launch a civil revolution of massive proportions.

It will be war.

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