Stop the World–Mike Pence Wants Off

Religion News Service reports on an interesting recent survey in which people were asked about the purported conflict between religious liberty and civil rights for LGBT Americans.

The short version? Most Americans oppose religious exemptions to LGBT non-discrimination laws.

The details?

  • 71 percent– including majorities in all 50 states and 30 major metropolitan areas — support laws that would protect gay, lesbian, bisexual and transgender people from discrimination in jobs, housing and public accommodations.
  • 59 percent oppose allowing small-business owners in their state to refuse service to gay and lesbian people, if doing so conflicts with their religious beliefs.
  • 53 percent of Americans support same-sex marriage, compared with 37 percent (including most evangelical Protestants and Mormons) who oppose it.

Even among groups opposed to same-sex marriage, support for protection from discrimination crosses all “partisan, religious, geographic, and demographic lines,” according to Public Religion Research Institute CEO Robert P. Jones.

The survey results demonstrate something that many of us have suspected: opposition to civic equality for LGBT folks is not coming primarily from religious denominations or organizations. (Click through to see the breakdown.) Anti-gay bias is primarily a political position, not a religious one, and the difference between the political parties is stark: the survey found that 74 percent of Democrats but only 40 percent of Republicans support civil rights protections for LGBT citizens.

Of course, that’s little comfort for those of us who live in blue cities located in bright red states like Indiana.

In our gerrymandered state, it would take a lot of organization, a lot of energy, and a truly superior “get out the vote” effort even to reduce the legislative super-majority enjoyed by the GOP. But those of us who disapprove of the legislature’s failure to add four words and a comma to the state’s civil rights law—and those of us embarrassed by our Governor’s homophobic and theocratic impulses—do have the opportunity to send a very clear message to the political establishment by decisively defeating Governor Pence this November.

Unlike the majority of religious folks, Mike Pence hasn’t come to terms with social progress. It isn’t just LGBT Hoosiers; his views on education, the environment and women are wildly at odds with the views of most of our citizens. His disinterest in the nitty-gritty of governing, and the damage he’s done to the state’s business climate, make him eminently beatable.

Maybe we can’t stop the world to let him off—but we can retire him and get on with the business of making Indiana a state that welcomes everyone.

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What’s the Weather Like on Your World?

I don’t know whether anyone reading this remembers it, but there used to be a popular song titled “Two Different Worlds.” Clearly, Americans are now living in different worlds—albeit not the benign ones referred to in the song. Indeed, we seem to occupy different universes.

Consider:

Franklin (son of Billy) Graham says that there is only one election left to “save America” from godless secularism.

The secularists, he claimed, want to prevent people from praying anywhere other than inside a church, so that “having a service like this in a few years could be illegal.”

A pastor named Bickle has endorsed Ted Cruz, because he is confident that Cruz will “hunt down” Jews who refuse to accept the “grace” of Christ.

Recently, Ted Cruz’s presidential campaign proudly announced the endorsement of Mike Bickle, the head of the controversial International House of Prayer and an extremist pastor who believes, among other things, that Oprah Winfrey is a forerunner to the Antichrist. Among Bickle’s more radical views is his prophecy that as the End Times approach, all Jews will be given a chance to accept Jesus, warning that if they do not accept “the grace” of Christ, God will then “raise up a hunter” who will kill two-thirds of them “and the most famous hunter in recent history is a man named Adolf Hitler.”

A certain Rick Wiles, identified as an “End Times Radio Host,” says Obama had Scalia killed.

Wiles said that the assassins who killed the conservative justice “deliberately left the pillow on his face as a message to everybody else: ‘Don’t mess with us, we can murder a justice and get away with it.’ And I assure you, there’s a lot of frightened officials in Washington today, deep down they know, the regime murdered a justice…. This is the way a dictatorial, fascist, police state regime takes control of a nation.”
It’s reasonable to assume that few people are as disconnected from reality as these and similarly-disturbed folks. I take comfort in the belief that there have always been unstable, frightened and angry people blaming all the world’s ills on some group or other— that we just didn’t hear about them as often before the Internet.
But how rooted in reality are the rest of us?
A recent article from the Washington Post suggests that the Right and Left see each other as very different countries—and that what both see is wildly inaccurate. Republicans think that 46% of the Democratic party is African-American; double the actual percentage of 24. They estimated the percentage of Democratic atheists at 36%–the actual percentage is 9. And they were equally off-base estimating the percentages of union members (44%) and LGBT voters (38%); those actual percentages are 11 and 6, respectively.
For their part, Democrats think that 44% of Republicans earn over 250,000/year, although the actual number is 2%.  They estimate the percentage of Republicans over the age of 65 at 44%; the actual number is 21%. They came closer with their estimates of the percentages of Southerners (44%, actually 36%) and Evangelicals (estimated 44%, actual 43%).
The remainder of the article describes the very different worldviews and reactions of voters listening to President Obama’s State of the Union Speech. It was hard to believe they were listening to the same words.
All of this leads to some pretty sobering questions.
What produces such gaps in the polity’s understanding of the world we inhabit? And more importantly, how do people who occupy such dramatically different worlds live together?
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Advice and Consent and Gerrymandering

Sometimes, it’s illuminating to connect the dots.

Senate Republicans are refusing to hold hearings to consider a nominee to replace Antonin Scalia, and I have been critical of that refusal (by “strict constructionists,” no less) to discharge their constitutional duty. A reader emailed to say the Democrats would probably do the same if the political roles were reversed; I replied that I hoped they would at least be more subtle about it—go ahead and have hearings, and then reject the nominee.

His essential point, of course, was that both parties’ excessive partisanship and the polarization that characterizes today’s politics threatens our ability to govern ourselves, and he’s right.

One of the reasons for that excessive partisanship is gerrymandering. (And yes, I know that Senate seats cannot be gerrymandered. Bear with me here.)

I have posted for years about the anti-democratic effects of gerrymandering. As I have repeatedly noted, gerrymandering contributes to political polarization and gridlock; in safe districts, the only way to oppose an incumbent is in the primary–and that almost always means that the challenge will come from the “flank” or extreme. When the primary is, in effect, the general election, the battle takes place among the party faithful, who also tend to be the most ideological voters. So Republican incumbents will be challenged by the Right and Democratic incumbents will be attacked from the Left.

Even where those challenges fail, they leave a powerful incentive for the incumbent to “toe the line”— to placate the most rigid elements of each party. Instead of the system working as intended, with both parties nominating folks they think will be most likely to appeal to the broader constituency, we get nominees who represent the most extreme voters on each side of the philosophical divide.

The consequence of ever-more-precise state-level and Congressional gerrymandering has been a growing philosophical gap between the parties and— especially but not exclusively on the Republican side— an empowered, rigidly ideological base intent on punishing any deviation from orthodoxy and/or any hint of compromise.

In a post to SCOTUSblog considering the current standoff and potential nominees, Tom Goldstein makes two points in passing that illuminate this toxic situation. Noting that the political parties are in “a deadly embrace from which neither will easily budge,” he says

The administration feels a constitutional responsibility to press for the confirmation of a nominee and every political advantage in doing so. Republicans cannot accede to that effort because their base will not permit it.

After suggesting that the GOP will eventually choose to pursue the “slow walk and reject” option, he predicts that Senate Republicans will vote to reject “essentially as a block. Any other course than a decisive vote against the nominee invites a certain primary challenge from conservatives in the next election.” (emphasis mine)

What gerrymandering has done is radicalize the political bases. It is naive to assume that the consequences of that radicalization are confined to carefully-drawn, noncompetitive state legislative districts and House Districts.

Making matters worse, many of the most impassioned members of those radicalized bases—in both parties—have very tenuous understandings of  how American government actually works, let alone the country’s history or constitutional principles. They are ripe for demagoguery and bumper-sticker slogans.

They are the electorate that gerrymandering has helped to create, and they are the electorate to which Senate Republicans are pandering.

Connect the dots.

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Now Let’s Talk About “Originalism”

Yesterday, I considered the political food fight being waged over the nomination of a Justice to replace Scalia. Today, I want to consider Scalia’s much-ballyhoo’d judicial philosophy.

During his long tenure on the Court, there has been a great deal of attention paid to Scalia’s claim that he was a true–if “faint-hearted” (his description)– constitutional “originalist.” It is a claim uncritically accepted by political conservatives, but one that has been thoroughly debunked by both conservative and liberal legal scholars.

In 2012, the widely admired, brilliant, and very conservative Judge Richard Posner— the most cited legal scholar of this generation— deconstructed Scalia’s purported originalism in the New Republic. Posner’s review of a book about judicial philosophy co-authored by Scalia was an “emperor has no clothes” moment, and I urge anyone who values careful analysis to click through and read the whole thing. But I especially want to call attention to the following paragraph:

Scalia and Garner call Blackstone “a thoroughgoing originalist.” They say that “Blackstone made it very clear that original meaning governed.” Yet they quote in support the famous statement in his Commentaries on the Laws of England that “the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law”…. Blackstone adds that “the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it.”

That last sentence, explaining that the true meaning of a law is to be determined by “considering the reason and spirit of it” is crucial. It is the root of the only practical approach to original intent. It requires judges to analyze the Constitution and the Bill of Rights in order to understand the values the Founders were attempting to protect, and to apply the law in a way that is faithful to those values–and to do so in situations that are highly unlikely to have been within the contemplation of those who drafted the Constitution.

The question, as I tell my students, is not: what did James Madison think about porn on the internet? Obviously, none of the Founders ever contemplated the internet. But they did contemplate–and quite clearly disapproved of–government efforts to censor expression.

The proper question, then, is: how do we apply the Founders’ judgment about the importance–the inestimable value— of free expression to “facts on the ground” they could never have imagined?

That process–discerning the principles that animated the Bill of Rights and applying those principles in new and unanticipated situations in order to protect the liberties the Founders  wanted to safeguard—is what is meant by a “living” Constitution.

Antonin Scalia was a brilliant man who used his brilliance to dissemble, to pretend (probably even to himself) that he was following a principled methodology that just happened to produce results consistent with his own political preferences and religious beliefs.

Posner is equally brilliant, and equally conservative–but far more intellectually honest.

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An Elastic View of Constitutional Responsibility

Okay–This week, it seems appropriate to talk about the late Justice Scalia, the battle over his replacement, and his much touted (albeit misunderstood and selectively applied) “originalism.”

Today, let’s consider where we are in the process for replacing Scalia.

Republicans in the Senate–notably McConnell and Grassley, who heads up the Judiciary Committee–have said they will refuse to participate in the Constitutionally-described process of “advice and consent.” Their argument, apparently, is that because this is an election year, and the President is in the last year of his tenure, he shouldn’t nominate a successor.

Between 1796 and 1988, at least 14 Justices have been confirmed during election years.

According to legal historians, Senate Republicans would have to reach back to the mid-1800s to find an instance in which the Senate blocked a nominee for reasons having nothing to do with the individual who’d been nominated—that is, just to obstruct the sitting President.

As a post from the Brookings Institution put it: the Republicans’ behavior is a repudiation of both the Constitutional separation of powers and the Constitution’s definition of a Presidential term.

And I thought they claimed to be “strict constructionists”!

The bottom line is that there is simply no precedent for the Senate refusing to discharge its constitutional duty to advise and consent, and if I had to guess, I would predict that McConnell et al will back away from that refusal once they recognize the extent of the political risk involved. (Of course, I’ve been wrong before when I have predicted rational behaviors from crazed partisans…)

Tomorrow, a decidedly critical consideration of Scalia’s controversial jurisprudential legacy…..

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