Freedom From? Or Freedom TO?

The lyrics from an old song keep running through my head. “If I knew you were coming, I’d have baked a cake, baked a cake…”

Unless you’re gay, of course.

Today, the Supreme Court will hear oral arguments in a case that will determine which version of that song we’ll sing.

Masterpiece Cakeshop insists that its cakes are “art,” and that the Constitution protects the refusal of the “artist”–aka the guy who bakes the cakes– to bake them for LGBTQ folks. According to the baker, forcing him to sell his “art” to anyone with the money to purchase it compels him to express approval of something his religion condemns–in this case, same-sex marriage.

Those of us who are old enough to remember when “sincere” religious belief was the argument advanced by retailers refusing service to African-Americans tend to frame the issue differently: Does either clause of the First Amendment operate to exempt people from complying with laws of “general application”?

The word “theocrat” gets thrown around a lot these days, and for perfectly understandable reasons, but the question the Court will address is the inverse of what we usually mean when we use that term. Theocracy implies the imposition of one group’s religious beliefs on the nation as a whole through law–using the power of the state to enforce conformity with the religious precepts of a dominant sect.

Here, the question is whether and when respect for an individual’s (presumably sincere) religious belief should exempt that individual from compliance with rules that everyone else must follow. Under what conditions–if ever– should the law allow such exemptions? During prohibition, I’m pretty sure that most Americans–even ardent prohibitionists– would distinguish between Catholics sipping wine during Mass and party-goers imbibing bathtub gin. When the Supreme Court decided the Smith case, ruling that the use of peyote in an Indian religious ceremony was a violation of state drug laws (laws of “general application”) the resulting uproar was a sign that most people considered the decision to be an overly-zealous application of the principle.

When someone is asking to be exempted from a law that wasn’t originally intended to constrain their particular behavior, it may or may not be appropriate to grant the request. When someone wants to be excused from complying with a law that was expressly intended to protect other people from harm or discrimination, however, the calculus changes.

My religion might teach me that I have an obligation to sacrifice my first-born; my entirely sincere belief that I should do so will not exempt me from a law against infanticide. I might sincerely believe that my particular God has no problem with my stealing from people who don’t share my religious beliefs, but that sincere belief won’t keep me out of jail.

In short, my “religious liberty” defense fails when I invoke it to excuse noncompliance with  laws protecting others. Neither my right to “artistic expression/free speech” nor my liberty to believe in a religion of my choice gives me permission to mistreat or disadvantage others. As my friend Steve Sanders pointed out in a wonderful op-ed for the New York Times  on Sunday, anti-discrimination laws regulate conduct, not expression. As he wrote, “if our baker/artist decided that he could not be true to his muse without the use of banned coloring agents, would the food safety laws have to yield? Of course not.”

It’s worth noting that the foregoing analysis generously assumes a sincere belief on the part of the objecting merchant, although it’s glaringly obvious that most people claiming religious or “artistic” exemptions are simply attempting to justify personal bigotries. Evidence of their lack of integrity makes the analysis easier, but it’s important to note that it doesn’t change the result–the claim fails either way.

If he’d known you were coming, gay couple,  Masterpiece Cakeshop should still have to bake you a cake…

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And The Hits Keep Coming

Very few voters know–or care– much about the census. Counting the people who live in the land between “sea and shining sea” is one of those boring, technical tasks that government does, but  I doubt that a single vote has ever been cast because the voter felt that  it was done well or poorly.

Just because the census doesn’t arouse much in the way of passion, however, doesn’t make it unimportant. In fact, it is very important.

The Constitution requires that the count be conducted every year that ends in zero–that is, every ten years. The census ensures that citizens of each state have the “correct” number of representatives, a number based upon population. It also tells us just how diverse the country is, which categories are growing and which are shrinking. One of the most important functions of the census is that it gives analysts–not just government analysts, but those working for a multitude of businesses and nonprofit organizations– the data they need in order to make important decisions and avoid wasteful efforts.

In a recent survey, 74% of city officials said they relied on the data collected by the census–that it was very important to the discharge of their duties. In a recent article, Think Progress reported

Ethnic minorities and traditionally underrepresented groups especially rely on the census for the voice it gives them in government — and are at risk if the survey goes awry or if their communities are not accurately counted. Because the Census Bureau uses this data to draw congressional maps, an undercount of diverse populations that traditionally vote Democrat could end up benefiting Republican districts.

That last sentence may hold a clue to the present straits in which the Census Bureau finds itself.

The Republican Congress has declined to fund the Bureau at the levels required–even cutting its budget despite the fact that significant population growth has expanded its workload. Worse still, the agency has been without leadership since the resignation of its previous director, and Talking Points Memo reports that Trump is proposing to appoint a pro-gerrymandering professor to the position.

The 2020 U.S. Census will determine which states gain or lose electoral power for years to come, and President Donald Trump is leaning towards appointing a pro-gerrymandering professor with no government experience to help lead the effort.

Politico reported Tuesday that Trump may soon tap Thomas Brunell, a political science professor at the University of Texas at Dallas who has no background in statistics, for a powerful deputy position that doesn’t require congressional approval.

He authored a 2008 book titled Competitive Elections are Bad for America.

This is a position that has historically been held by a career civil servant who has served many years in the Census Bureau. Brunell would come to the post from stints as a “consultant” for a number of Republican-controlled states that have been sued for racial and partisan gerrymandering, including Ohio and North Carolina.

Civil and voting rights advocates have been sounding the alarm since the beginning of this year about the fate of the 2020 Census, and the bureau currently has no director and faces a severe budget shortfall.

Now, there are fears that the appointment of an ideological conservative could lead to changes in the Census that could have repercussions for many years to come. For example, conservatives have long argued for adding a question about citizenship status to the Census, which may scare immigrants away from responding and being counted. As deputy director, Brunell would also have power over the ad budget used to encourage people to participate in the Census, and could potentially steer those resources in a way that favors conservative strongholds.

While most rational (and terrified) Americans are fixated on Trump’s more high-profile unstable and erratic behaviors, and upon Congressional Republicans’ passage of  irresponsible legislation that earlier iterations of their party would have loudly condemned, the knee-capping of the Census Bureau illustrates the real danger posed by this collection of crazies and incompetents.

This is the problem with putting people who hate government in charge of government. They will destroy its effectiveness in order to justify a return to that pre-social “state of nature” which Hobbes accurately described as “solitary, poor, nasty, brutish, and short’.’

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If You Thought Citizens United Was A Travesty…

Wait until you get a look at the full impact of the “tax reform” embraced by a Senate filled with servants of Big Money and the rabid, white nationalist GOP base.

Among the many unconscionable deals cut in order to round up the necessary 50 votes was a gift to the Christian far right that I’d suggest filing under “be careful what you wish for.”

According to a guest column in that noted leftwing publication Religion News Service (that’s sarcasm, for those of you who might be literal-minded), the tax bill’s repeal of the Johnson Amendment–a repeal much desired by Trump-supporting fundamentalist churches–will inevitably lead to government regulation of churches.

Partisan politics do not belong in church pulpits or in nonprofit offices. This isn’t just common sense, but part of the tax code. The Johnson Amendment says that 501(c)(3) nonprofits, including churches, cannot endorse or oppose political candidates.

The tax bill initially passed by the House exempted churches from the amendment, but at the last minute, the measure was amended to exempt all 501 C3 organizations. According to the Religion News Service analysis, this will not only cost taxpayers billions of dollars, it will end up “dragging nonprofits away from their charitable missions and into the undrained, partisan swamp.”

It is telling that every major nonprofit coalition has lobbied against repeal. More than  4,500 nonprofits have signed a letter to Congress asking that the rule be protected.

As the article points out, tax exemption is a privilege, not a right–if churches want to engage in political activities, they are free to do so now; they need only relinquish their tax exemption. After all, political donations shouldn’t be “laundered” through religious or nonprofit organizations; preventing that was precisely the reason for the Amendment in the first place. But these churches want to eat their cake and have it, too.

The havoc that would be wrought by repealing the Johnson Amendment would make Citizens United look like the golden age of American democracy. Permitting tax-exempt churches to engage in partisan politicking would throw untold millions — even billions is no exaggeration — of dark money into U.S. elections. Right now, all 501(c)(3) organizations except churches and church-related charities file annual tax returns, the detailed Form 990, with the IRS. Every penny donated and every penny spent is tracked. But churches file nothing. They are exempt. They are financial and informational black holes.

So if the Johnson Amendment is repealed, any megadonor could write the nearest megachurch a check of any size and take the tax write-off. The pastor gets the check, takes his cut — a tithe, so to speak — and spends the rest on politicking. Churches would become super-PACs. All in the name of religious freedom.

Only the most naive policymakers and proponents of repeal could possibly believe that this situation would be allowed to continue unabated.

Trump, Ryan and other opponents of the rule are shortsighted, especially if religious freedom is the true goal. Imagine for a moment that they get everything they want. Churches become unregulated, unaccountable, opaque super-PACs. Regular PACs start reorganizing as churches because their donors have suddenly found tax-deductible Jesus and fled.

This scenario is unsustainable if our democracy is to survive. At some point, the government will be forced to regulate churches: financial disclosures, donor disclosures (including even regular parishioners and tithe-givers), IRS filings, FEC filings — the regulatory list will be long and onerous. Churches will get money, power — and invasive government regulation to match….

A vote against the Johnson Amendment is a vote for church regulation. Surely that’s not something the party that has proclaimed itself the champion of religious liberty intended. But that’s what happens when a reality TV show host dictates tax policy as a way to thank his zealous supporters. The law governing churches’ involvement in politics might change, but the law of unintended consequences will not.

We aren’t just living in an age of corruption–we’re living in an age of idiocy.

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Yes, It’s Disheartening. But It’s True.

We’re getting used to seeing headlines like this recent one in the Washington Post: “Hate in America is On the Rise.” According to the lede,

A NEW FBI report on hate crimes tells a sobering story. For the second year in a row, police departments across the country reported a rise in the number of crimes motivated by bias.

A statistical breakdown suggests that nearly 60  percent of these crimes were motivated by racial bias, with African Americans targeted in about half of those.  Over 20 percent were expressions of religious animosity; more than half of those attacks were aimed at Jews, with another quarter targeting Muslims. (There has been a sharp rise in crimes against Muslims and people of Arab descent.)

Sociologists and psychiatrists can offer informed analyses of the social conditions that cause people harboring bigoted attitudes to “act out.” But it isn’t much of a stretch to attribute a significant portion of this troubling spike in hate crimes to a President who traffics in racial and religious stereotypes.

In fact, Trump’s victory poses a chicken-and-egg conundrum: did rising tribalism and bigotry lead to his election? Or did he win by nurturing and exploiting that bigotry?

The answer, of course, is both.

In the Atlantic, Adam Serwer has provided a compelling analysis of the essential nature of Trump’s appeal. He began that analysis by revisiting David Duke’s gubernatorial campaign in Louisiana. Then, as now, the Chattering Classes attributed Duke’s appeal to economic “distress.” Then–as now–the data simply didn’t support that explanation.

Duke’s strong showing, however, wasn’t powered merely by poor or working-class whites—and the poorest demographic in the state, black voters, backed Johnston. Duke “clobbered Johnston in white working-class districts, ran even with him in predominantly white middle-class suburbs, and lost only because black Louisianans, representing one-quarter of the electorate, voted against him in overwhelming numbers,” The Washington Post reported in 1990. Duke picked up nearly 60 percent of the white vote. Faced with Duke’s popularity among whites of all income levels, the press framed his strong showing largely as the result of the economic suffering of the white working classes. Louisiana had “one of the least-educated electorates in the nation; and a large working class that has suffered through a long recession,” The Post stated.

Duke’s position as a leader of the KKK was explained away by Louisiana voters, who blamed the media for “making Duke seem racist.”

The economic explanation carried the day: Duke was a freak creature of the bayou who had managed to tap into the frustrations of a struggling sector of the Louisiana electorate with an abnormally high tolerance for racist messaging.

Right.

Fast forward to 2016, and the Trump campaign. As Serwer writes

During the final few weeks of the campaign, I asked dozens of Trump supporters about their candidate’s remarks regarding Muslims and people of color. I wanted to understand how these average Republicans—those who would never read the neo-Nazi website The Daily Stormer or go to a Klan rally at a Confederate statue—had nevertheless embraced someone who demonized religious and ethnic minorities. What I found was that Trump embodied his supporters’ most profound beliefs—combining an insistence that discriminatory policies were necessary with vehement denials that his policies would discriminate and absolute outrage that the question would even be asked.

It was not just Trump’s supporters who were in denial about what they were voting for, but Americans across the political spectrum, who, as had been the case with those who had backed Duke, searched desperately for any alternative explanation—outsourcing, anti-Washington anger, economic anxiety—to the one staring them in the face. The frequent postelection media expeditions to Trump country to see whether the fever has broken, or whether Trump’s most ardent supporters have changed their minds, are a direct outgrowth of this mistake. These supporters will not change their minds, because this is what they always wanted: a president who embodies the rage they feel toward those they hate and fear, while reassuring them that that rage is nothing to be ashamed of. (emphasis mine)

Serwer notes the “specific dissonance” of Trumpism—people advocating for cruelly discriminatory policies while denying–undoubtedly even to themselves–that there is any racial animus involved. He concludes that without the racism of so substantial a number of white voters, Trump simply could not have won.

This  conclusion is supported by virtually all of the data that has emerged since the election.

Serwer also answers a question that has consumed people of good will, as they watch the escalating disaster that is the Trump Administration: when will his supporters realize how destructive his Presidency is? Why hasn’t his abandonment of virtually all of his campaign promises awakened them?

Answer: because the promises he’s kept are the ones that matter to them.

..his ban on travelers from Muslim-majority countries; the unleashing of immigration-enforcement agencies against anyone in the country illegally regardless of whether he poses a danger; an attempt to cut legal immigration in half; and an abdication of the Justice Department’s constitutional responsibility to protect black Americans from corrupt or abusive police, discriminatory financial practices, and voter suppression. In his own stumbling manner, Trump has pursued the race-based agenda promoted during his campaign.

Serwer’s conclusion? So long as Trump promotes the social and political hegemony of white Christians, his supporters won’t abandon him.

There is much more in the article, and it is definitely worth reading in its entirety.

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There’s No Alternative To We The People

In response to Monday’s post– in which I decried our current American tribalism and wondered whether we can breathe new life into e pluribus unum– a regular commenter, Tom Lund, wrote the following:

While we will be definitely in uncharted territory in many ways this could end up being a wonderful thing for this country if we can stay true to our principles and shrug off the division that is been forced on us and that which is already existed and reknit ourselves.  Tons of questions still remain and the cohesion that will likely be necessary to knit together a game plan will work and restore the social and political equilibrium of this country is a big unknown right now.  Hopefully, we can find a way out of this downward spiral but we’re the ones that are going to have to do it and do it by ourselves.

He is exactly right: we are the ones who must do it.

For quite some time, it has been possible for Americans to depend upon the courts to correct miscarriages of justice. Lawsuits have been our default mechanism for reminding government officials and others wielding power that the Constitution and the rule of law applies to them. Given the judicial appointments being made by the Trump Administration, it isn’t hyperbole to observe that the courts are unlikely to serve that important function for the foreseeable future.

To the extent that our reliance on the courts allowed us to “get lazy”–to forego exercising our civic “muscles”–that permissiveness is over.

Keith Whittington is a constitutional scholar who has argued that the Constitution operates in two ways: first, as a binding set of rules that can be interpreted and enforced by the courts, and second, through the political process, as a guide to and constraint upon political actors, who formulate “authoritative constitutional requirements”–who “construct” the Constitution– as they make public policy.

Another eminent Constitutional scholar has extended Whittington’s observation. In “Taking the Constitution Away from the Courts,” Mark Tushnet challenged our American tradition of judicial review–and even judicial supremacy. As the book’s blurb puts it,  

Many people, particularly liberals, have “warm and fuzzy” feelings about judicial review. They are nervous about what might happen to unprotected constitutional provisions in the chaotic worlds of practical politics and everyday life. By examining a wide range of situations involving constitutional rights, Tushnet vigorously encourages us all to take responsibility for protecting our liberties. Guarding them is not the preserve of judges, he maintains, but a commitment of the citizenry to define itself as “We the People of the United States.” The Constitution belongs to us collectively, as we act in political dialogue with each other–whether in the street, in the voting booth, or in the legislature as representatives of others.

We may agree or not with Tushnet’s argument, but given the reality of today’s political environment, his analysis reinforces Tom Lund’s conclusion: we’re the ones that are going to have to do it, and given the transformation of the judiciary that is currently underway–a transformation of the courts from protectors of the people to protectors of the plutocracy– we are going to have to do it by ourselves.

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