Tag Archives: Alito

RFRA For The Rest Of Us…

Indiana’s ACLU has filed a second challenge to the state’s ban on abortion, and this is a challenge focused squarely upon the blatant hypocrisy of the U.S. Supreme Court’s  purported concern for “religious liberty.”

In a series of cases, the Court has handed down decisions favoring Christian fundamentalist doctrines that are at odds with the beliefs held by more liberal Christian denominations, let alone by adherents of other religious traditions. Justice Alito, who authored the decision in the Hobby Lobby case as well as Dobbs, has clearly signaled his belief that his particular definition of “religious belief”  deserves priority–and he now has four other theocratically-inclined colleagues who agree.

Alito’s definition of “religious freedom” as freedom for state-level lawmakers to impose conservative Christian dogma on Americans who hold very different “sincere beliefs,” is inconsistent with both constitutional jurisprudence and common sense. It’s “freedom for me, but not for thee”–and a not-so- tacit endorsement of the MAGA Republican claim that the United States is a “Christian nation” that should be dominated by their particular version of Christianity.

Ironically, the ACLU has filed this lawsuit under the state’s RFRA law–a law originally ballyhooed by those same Christian Warriors.

“Indiana’s RFRA law protects religious freedom for all Hoosiers, not just those who practice Christianity,” said Ken Falk, ACLU of Indiana Legal Director. “The ban on abortion will substantially burden the exercise of religion by many Hoosiers who, under the new law, would be prevented from obtaining abortions, in conflict with their sincere religious beliefs.”

The complaint points out that the new law violates the beliefs of the Muslim, Unitarian Universalist and Episcopalian faiths, as well as those who follow Paganism. (Rather obviously, it also violates the liberties of  the growing numbers of non-religious Americans.)

As I have previously argued,  a very large number of Americans believe that “liberty” is defined as the right of all citizens to follow the doctrines of their particular religions. When applied to the issue of abortion, any rational understanding of liberty means that people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it are equally free to follow their beliefs.

A free country–a country that takes liberty seriously–does not empower legislators to  decide what prayer you say, what book you read, who you marry, or whether and when you procreate. Perhaps the most eloquent statement of that constitutional principle was that of Justice Jackson in West Virginia Board of Education v. Barnette. In a much-quoted portion of his decision, Justice Jackson wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Justice Alito’s decision in Dobbs essentially reverses Jackson’s 1943 definition of the meaning and  intended operation of the Bill of Rights–a definition that has been endorsed by the courts for decades. Jackson’s definition has been taught in the nation’s law schools and is firmly embedded in the popular culture. In America, We the People make lots of decisions about our governance.  We vote on who will represent us in our various legislative bodies, and–depending upon the state– participate in referenda and recalls.

We don’t vote on fundamental rights.

As any first-year law student (or anyone who took any of my  Law and Public Policy classes) will confirm, the Bill of Rights is taught as a “counter-majoritarian” document. That means that, while a majority of voters can influence innumerable policies, that majority does not get a vote on whether it is permissible to deny other Americans the fundamental rights protected by the Bill of Rights.

We don’t get to vote on our neighbors’ First Amendment right to the free exercise of their religion.

A contrary decision by Indiana Courts would confirm Alito’s profound departure from and disrespect for the essential purpose of the Bill of Rights–and his obvious contempt for people who hold religious beliefs contrary to his own.

It would also highlight the hypocrisy of those Hoosiers who defended RFRA on the grounds that it protected “sincerely held” religious beliefs.

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“Don’t Know Much About History”

That old Sam Cooke tune should be Justice Alito’s theme song.

Distortion–or flat-out lying–about history hasn’t previously been a feature of Supreme Court decisions, although it’s nothing new in political discourse. (Remember the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman,” despite the fact that the statement was demonstrably false? Even if you ignore biblical history, more than half of the world still recognizes plural marriage.)

Alito’s recitation of history in Dobbs has been rebutted by historians, and its falsity was recently the subject of a lengthy essay in the Guardian. 

As the essay notes, Alito claims that a reversal of Roe v Wade “restores the US to an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973.”

This assertion, however, is easily disproven.As historians have exhaustively explained, early American common law (as in Britain) generally permitted abortions until “quickening”, or perceptible foetal movement, usually between 16 to 20 weeks into a pregnancy. Connecticut was the first state to ban abortion after quickening, in 1821, which is roughly two centuries after the earliest days of American common law. It was not until the 1880s that every US state had some laws restricting abortion, and not until the 1910s that it was criminalised in every state. In the wake of Dobbs, social media was awash with examples from 18th- and 19th-century newspapers that clearly refuted Alito’s false assertion, sharing examples of midwives and doctors legally advertising abortifacients, Benjamin Franklin’s at-home abortion remedies, and accounts of 19th-century doctors performing “therapeutic” (medically necessary) abortions.

The essay also emphasized that anti-abortion fervor was not motivated by the moral or religious beliefs generally cited by anti-choice activists.

In fact, the first wave of anti-abortion laws were entangled in arguments about nativism, eugenics and white supremacism, as they dovetailed with a cultural panic that swept the US in the late 19th and early 20th century as a result of the vast changes in American society wrought by the conflict. This panic was referred to at the time in shorthand as “race suicide”

The increasing traction today of the far-right “great replacement theory”, which contends that there is a global conspiracy to replace white people with people of colour, and has explicitly motivated white supremacist massacres in the US, is often said to have originated with a French novel called The Camp of the Saints by Jean Raspail. Published in 1973, the same year that Roe v Wade enshrined American women’s rights to reproductive autonomy, it is a dystopian account of “swarthy hordes” of immigrants sweeping in and destroying western civilisation. But there were many earlier panics over “white extinction”, and in the US, debates around abortion have been entangled with race panic from the start. 

As a similar post at FiveThirtyEight.com put it,” the anti-abortion movement, at its core, has always been about upholding white supremacy.”

Historians point to the numerous newspapers, lectures and sermons that led to the original criminalization of abortion by warning that Catholics and other foreign-born immigrants were likely to outnumber Protestant, native-born Americans. The essay cited one representative example– a 1903 editorial pointing out that the Protestant population of the US was increasing by 8.1% while the Catholic population was increasing by 21.8%, and characterizing those statistics as an “alarming condition of things.” The article noted that there were “on the average more than five abortions a month, none of them in Catholic families”. In case the message wasn’t sufficiently clear, the piece was headlined “Religion and Race Suicide”.

When the resurgent Ku Klux Klan paraded in Louisiana in 1922, they bore banners that read “White Supremacy”, “America First”, “One Hundred Per Cent American”, “Race Purity” and “Abortionists, Beware!” People are sometimes confused by the Klan’s animus against abortionists, or impute it to generalised patriarchal authoritarianism, but it was much more specifically about “race purity”: white domination can only be maintained by white reproduction.

The article is lengthy, but well worth your time to read; it contains a meticulous recitation of the thoroughly racist roots of opposition to abortion. My only quibble is that It gives only a nod to the White male patriarchy embedded in the numerous religious dogmas that require the subordination and submission of women. Without the benefit of that moral “fig leaf,” I doubt whether its clearly racist roots would have carried the movement so far.

I do absolutely agree with the essay’s conclusion:

The assault on women’s rights is part of the wider move to reclaim the “commanding place” in society for a small minority of patriarchal white men. And, as Alito’s decision shows, where legal precedent and other justifications cannot be found, myth will fill the vacuum.

No matter how ahistorical that myth…

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Don’t Know Much About History…

It’s not just a song by Sam Cooke…

This Fourth of July, Americans aren’t only fighting over our future; we are also fighting over our past–and the need to learn from it. That requires  a clear-eyed encounter with history– accurate history.

Efforts to teach a non-whitewashed  ( pun intended) history in the public schools has been met with so-called “anti-CRT” bills, angry parents accusing school boards of blaming today’s children for the sins of the past, and “patriotic Americans” demanding that history classes emphasize the ‘greatness” of the country and minimize or ignore deviations from our Constitutional aspirations.

The Supreme Court was able to count on that ignorance of actual history in its decision in Dobbs v. Jackson.

In that decision overruling Roe v. Wade, Justice Alito relied substantially on a dishonest recitation of American history  to justify his result.  Few Americans were in a position to point to that dishonesty and set the record straight. I have previously posted on this subject, but let me repeat a portion of what Randall Ballmer, an eminent historian of Evangelical Christianity, has written.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

Ballmer tells us that Falwell and Weyrich, who were furious about efforts to tax their segregation academies, were “savvy enough” to recognize that organizing grassroots evangelicals to defend racial discrimination would encounter moral blowback. “Saving babies” was far more palatable.

Another scholar who has criticized the ahistorical tale told by Justice Alito is  Geoffrey Stone, who authored “Sex and the Constitution” and  teaches law at the University of Chicago. Stone was a Supreme Court Clerk when Roe was decided; as he says,

Americans, almost all, believed at that time that abortion had always been illegal, that it had always been criminal. And no one would have imagined that abortion was legal in every state at the time the Constitution was adopted, and it was fairly common. But people didn’t know that.

The justices came to understand the history of abortion partly because [Justice Harry] Blackmun previously had been general counsel [at the Mayo Clinic] and researched all this stuff. But this history also began to be put forth by the women’s movement. And this was eye-opening to the justices, because they had, I’m sure every one of them, assumed abortion had been illegal back to the beginning of Christianity. And they were just shocked to realize that was not the case, and that prohibiting abortion was impairing what the framers thought to be … a woman’s “fundamental interest.”…

In the 18th century, abortion was completely legal before what was called the “quickening” of a fetus – when a woman could first feel fetal movement, or roughly four and a half months through a pregnancy. No state prohibited it, and it was common. Post-quickening, about half the states prohibited abortion at the time the Constitution was adopted. But even post-quickening, very few people were ever prosecuted for getting an abortion or performing an abortion in the founding era.

This accurate history gives the lie to Justice Alito’s claim that the right to abortion was not ” deeply rooted in the nation’s history and traditions.” Several other historians–notably Heather Cox Richardson–have also disputed Alito’s characterization.

It’s highly unlikely that teaching more accurate history would have included the history of reproductive rights, but it would have–and should have–included those elements of the American past that gave rise to the racial and religious divisions we are experiencing today. Going through school, as I did, without ever encountering the Trail of Tears, the Tulsa massacre, the rise of the KKK and so much else leaves students without important context they need in order to understand today’s political debates. (It’s not just the omissions; we are now discovering that the tales we were told, and told to remember,  were often twisted...)

As legal scholar Akhil Reed Amar recently argued, “originalism” needn’t be dismissed as simply a dishonest tactic employed by radically conservative judges. Based on good, accurate history, it can be surprisingly progressive.

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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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What Voting Rights?

THANK YOU, THANK YOU to all of you commenters who made my day yesterday, and restored my faith in at least some of “we the people.” I especially needed to know the extent of your civic and political engagement, because the Supreme Court is busily erecting barriers to the most direct–and most consequential– form of engagement: voting.

In a stinging dissent to the Court’s majority opinion upholding Arizona’s assaults on the right to vote, Justice Elena Kagan began:

If a single statute represents the best of America, it is the Voting Rights Act. It marries two great ideals: democracy and racial equality. And it dedicates our country to carrying them out. Section 2, the provision at issue here, guarantees that members of every racial group will have equal voting opportunities. Citizens of every race will have the same shot to participate in the political process and to elect representatives of their choice. They will all own our democracy together—no one more and no one less than any other. If a single statute reminds us of the worst of America, it is the Voting Rights Act. Because it was—and remains—so necessary. Because a century after the Civil War was fought, at the time of the Act’s passage, the promise of political equality remained a distant dream for African American citizens. Because States and localities continually “contriv[ed] new rules,” mostly neutral on their face but discriminatory in operation, to keep minority voters from the polls. South Carolina v. Katzenbach, 383 U. S. 301, 335 (1966). Because “Congress had reason to suppose” that States would “try similar maneuvers in the future”— “pour[ing] old poison into new bottles” to suppress minority votes. Ibid.; Reno v. Bossier Parish School Bd., 528 U. S. 320, 366 (2000) (Souter, J., concurring in part and dissenting in part). Because Congress has been proved right.

Kagan continues for some forty pages, ending with paragraphs that–ironically–demonstrate that the current “conservative” Court is doing precisely what Republicans always insisted the Court could not and should not do: legislating from the bench, and disregarding the clear meaning of a legal text.

But then, at least, the majority should treat the Voting Rights Act as if it were ordinary legislation. The Court always says that it must interpret a statute according to its text—that it has no warrant to override congressional choices. But the majority today flouts those choices with abandon. The language of Section 2 is as broad as broad can be. It applies to any policy that “results in” disparate voting opportunities for minority citizens. It prohibits, without any need to show bad motive, even facially neutral laws that make voting harder for members of one race than of another, given their differing life circumstances. That is the expansive statute Congress wrote, and that our prior decisions have recognized. But the majority today lessens the law—cuts Section 2 down to its own preferred size. The majority creates a set of extra-textual exceptions and considerations to sap the Act’s strength, and to save laws like Arizona’s. No matter what Congress wanted, the majority has other ideas. This Court has no right to remake Section 2. Maybe some think that vote suppression is a relic of history—and so the need for a potent Section 2 has come and gone. Cf. Shelby County, 570 U. S., at 547 (“[T]hings have changed dramatically”). But Congress gets to make that call. Because it has not done so, this Court’s duty is to apply the law as it is written. The law that confronted one of this country’s most enduring wrongs; pledged to give every American, of every race, an equal chance to participate in our democracy; and now stands as the crucial tool to achieve that goal. That law, of all laws, deserves the sweep and power Congress gave it. That law, of all laws, should not be diminished by this Court.

Read both the decision, authored by Samuel Alito (one of the most undistinguished jurists to sit on the high court) and the entire dissent by Kagan (one of the most powerful intellects to grace that same bench). 

And weep.

Happy Fourth of July…

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