Tag Archives: First Amendment

The Library And The Culture War

Over the years, I have come to admire two professions above most others: social workers and librarians. The social workers I’ve come to know are simply wonderful human beings–compassionate, caring and non-judgmental. (If we admire traits we personally lack, that would explain my awe about that “non-judgmental” thing…) The librarians I know are dedicated protectors of the First Amendment, and absolutely fearless defenders of our right as individuals to access whatever information interests us.

The traits of both professions are obviously anathema to the White Christian Nationalists who control today’s GOP . Those culture warriors are especially intent upon controlling what other people can read, and that single-minded devotion to cultural control brings them into fairly regular conflict with librarians and the mission of the nation’s libraries, so I suppose I shouldn’t have been shocked by a recent headline from The Guardian: US library defunded after refusing to censor LGBTQ authors: ‘We will not ban the books.’

A small-town library is at risk of shutting down after residents of Jamestown, Michigan, voted to defund it rather than tolerate certain LGBTQ+-themed books.

Residents voted on Tuesday to block a renewal of funds tied to property taxes, Bridge Michigan reported.

 The vote leaves the library with funds through the first quarter of next year. Once a reserve fund is used up, it would be forced to close, Larry Walton, the library board’s president, told Bridge Michigan – harming not just readers but the community at large. Beyond books, residents visit the library for its wifi, he said, and it houses the very room where the vote took place.

“Our libraries are places to read, places to gather, places to socialize, places to study, places to learn. I mean, they’re the heart of every community,” Deborah Mikula, executive director of the Michigan Library Association, told the Guardian. “So how can you lose that?”

What was the library’s sin? It refused to remove materials about sexual orientation from its shelves–materials that the residents asserted were “grooming” children to adopt a “gay lifestyle.”

The controversy in Jamestown began with a complaint about a memoir by a nonbinary writer, but it soon spiraled into a campaign against Patmos Library itself. After a parent complained about Gender Queer: a Memoir, by Maia Kobabe, a graphic novel about the author’s experience coming out as nonbinary, dozens showed up at library board meetings, demanding the institution drop the book. (The book, which includes depictions of sex, was in the adult section of the library.) Complaints began to target other books with LGBTQ+ themes.

One library director resigned, telling Bridge she had been harassed and accused of indoctrinating kids; her successor, Matt Lawrence, also left the job. Though the library put Kobabe’s book behind the counter rather than on the shelves, the volumes remained available.

“We, the board, will not ban the books,” Walton told Associated Press on Thursday….

The library’s refusal to submit to the demands led to a campaign urging residents to vote against renewed funding for the library. A group calling itself Jamestown Conservatives handed out flyers condemning Gender Queer for showing “extremely graphic sexual illustrations of two people of the same gender”, criticizing a library director who “promoted the LGBTQ ideology” and calling for making the library “a safe and neutral place for our kids”. On Facebook, the group says it exists to “keep our children safe, and protect their purity, as well as to keep the nuclear family intact as God designed”.

I’m sure the person who wrote that had spoken to God personally about the threat. (That’s sarcasm. I admitted I’m judgmental…)

Apparently, libraries across the country are facing a surge in similar demands to ban books. The American Library Association has identified 729 challenges to “library, school and university materials and services” just in the last year–and an estimated 1,600 challenges or removals of individual books. That figure was up from 273 books the year before.

“We’re seeing what appears to be a campaign to remove books, particularly books dealing with LGBTQIA themes and books dealing with racism,” Deborah Caldwell-Stone, head of the ALA’s office for intellectual freedom, told the Guardian last year.

There is certainly “grooming” going on, but those responsible aren’t trying to sell small children on the glories of homosexuality, or destroy what’s left of the nuclear family. The real “grooming” has been done by hate-mongers like Alex Jones, the late and non-lamented Rush Limbaugh, Tucker Carlson and his fellow-travelers on Fox News–aided and abetted by fundamentalist churches and  various Rightwing organizations.

The GOP’s groomers play to the racism, misogyny and homophobia of their White Christian Nationalist base, encouraging them to direct their hysterical fear of cultural change at the nation’s libraries.

In this fight, my money is on the librarians.

 

Performative Religion Versus The Real Thing

Calling something “performative” is a nicer way of identifying what’s phony–of calling out the posturing of politicians pretending to care about governing, and especially “Christians” pretending they are acting out of genuine faith.

I recently encountered two unrelated examples of that calling out. The first was an editorial from Religion News Service, referencing the just-argued Supreme Court case of the football coach who insisted on praying on the 50-yard line.

That coach, Joe Kennedy (absolutely NO relation!), sued a school district in Washington state after it prohibited him from leading public prayers immediately following games. The editorial didn’t focus on the constitutional argument; instead, the author pointed out that  genuine believers are ill-served by public expressions in secular settings.

This — more than any legal reasoning — is the judgment believers are called on to make. In the exercise of liberty, we can recall the words of St. Paul: “’All things are lawful,’ but not all things are helpful. ‘All things are lawful,’ but not all things build up.” 

Ostentatious public prayers do not edify. If anything, they detract from serious Christian devotion. As with street-corner preachers who are well within their right but convince no one, Kennedy’s public postgame prayers were likely little more than a sideshow. The law may broadly permit it, but Christianity does not require it.

The essayist pointed to scriptural evidence that “Christ himself not only does not require showy, potentially coercive public prayers — he teaches against them.” Kennedy’s prayers, he notes, “may have provided psychological uplift to him, but they were not meaningful exercises in Christian faith and devotion.” And he worries that “emboldened conservative justices” will “open the door to more nominal, cultural Christianity. It seems that in the era of former President Donald Trump and his judges, that’s all so-called conservative Christians really want.”

Research by political scientists and religion scholars alike has documented the use of precisely that “cultural Christianity” by White Christian Nationalists intent upon retaining their status as the “real Americans.” Their panic about “replacement” and loss of cultural hegemony is producing ugly accusations of “grooming” by LGBTQ citizens, and other despicable charges defended as protected expressions of religious piety.

Which brings me to the really excellent example of how genuinely religious people can and should respond.

Michigan State Senator Mallory McMorrow describes herself as a “straight, white, Christian, married, suburban mom.” She had been accused by a GOP colleague of being a “groomer,” the latest right-wing slander against anyone who supports the rights of LGBTQ children. Rather than ignoring the accusation, or walking back her support, she grounded her position in her own faith.

  “I want every child to feel seen, heard, and supported,” she said, “not marginalized and targeted if they are not straight, white, and Christian.”

As the author of the linked article pointed out, 

To understand the power of McMorrow’s words, you have to understand that “straight, White and Christian” is the default cultural and political setting in this country. Throw in “male” and you’d have the top of this pyramid. Just ask Tucker Carlson.
 
When you’re none, or not all, of those identities, you’re made to feel it. Your intellect, dignity and value are called into question. Demagogues gin up fear of you for electoral gain. Your very life becomes a political piñata whacked around by people who don’t have to live with the consequences of what they have wrought. Look at the anti-trans legislation littering the land or the “don’t say gay” law in Florida.

Activists who aren’t “straight, white and Christian” have pushed back against bigotry for many generations, and they have secured hard-won advances. But especially in this new front in the United States’ oldest culture war, those voices could use some backup. Enter McMorrow. …

The author makes an important point: McMorrow’s response should be a “blueprint for Democrats who are accustomed to cowering in fear of Republican culture war attacks.”

Too many national Democrats are letting the incipient “groomer” charges go unchallenged or are assuming they’re too ridiculous to gain traction. They’re ridiculous, yes — but that doesn’t mean they can’t gain traction. (Have you seen today’s Republican Party?)

I am not religious, and I have frequently expressed contempt for self-identified “religious” figures who are intent upon imposing their purported beliefs on others. Like Coach Kennedy, their public expressions of piety are purely performative. That said, I have great respect for people who  genuinely look to their religious traditions for lessons on what constitutes moral and ethical behavior, and for guidance on how they should treat their fellow humans.

There was a saying “back in the day” to the effect that the religious right is neither. We need more people like Mallory McMorrow, who are positioned to illustrate what the real thing looks like.

 

Fraud And Free Speech

A recent report from the Czech Republic made me think of Americans’ widespread misunderstandings about what constitutes the freedom of speech protected by the First Amendment.

The most widespread misunderstanding, of course, arises because too many Americans don’t realize that the Bill of Rights only limits actions by government. If Walmart refuses to carry your book, your private-sector boss forbids politicking on the job, or your racist Facebook diatribe causes people to unfriend you after characterizing you in unpleasant ways, those aren’t violations of the First Amendment. Those are examples of people exercising their free speech rights.

But about that Czech incident…

Prague Morning reported on the arrest of Jana Peterková. Peterkova became the first person to be convicted for spreading misinformation in the Czech Republic. According to court documents, she allegedly posted a false message claiming that several seniors died in a nursing home in Měšice after receiving COVID vaccinations.

Now, it is important to note that Peterkova posted a totally manufactured story. She wasn’t sharing an opinion, or weighing in on a disputed factual situation. She recounted a purportedly personal conversation with someone she identified as an employee of the nursing home in question, and she claimed that person had told her that “the ‘mainstream media’ were ‘silent’ after several elderly people died after receiving the Pfizer COVID-19 vaccine.”

However, the identified employee had not worked at the nursing home since May of 2020.

It is also important to acknowledge that the Czech Republic doesn’t have America’s First Amendment, although it has pretty robust protections for free speech. (Wikipedia says “Freedom of speech in the Czech Republic is guaranteed by the Czech Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Czech Constitution. It is the first freedom of the charter’s second division – political rights.”)

One of the conundrums of America’s free speech jurisprudence is locating the line between  speech–communication–and action. Government may not be able to censor my speech, but it definitely has the right to prohibit and punish a number of my possible actions.

And just as communication can occur through action–silent marches, ripping up draft cards, and burning a flag are all actions meant to send a message–wrongful or criminal behaviors can be accomplished via the spoken or written word.

If I call your telephone every fifteen minutes to berate you for something, that behavior is not protected by the First Amendment. It isn’t communication; it’s harassment–and government can punish harassment.

If I criticize you by publishing a book with manufactured accusations, I’ve committed libel. Government can prohibit libel and slander.

If I sell you a cubic zirconium for much more than it’s worth by convincing you it’s a diamond, I’m not exercising my right to free speech; I’m guilty of fraud. Government can punish fraud.

The problem in these situations isn’t that they’re protected speech; it’s evidentiary.

If a police officer overhears two people planning to rob a liquor store, he doesn’t need to wait until they’re at the store with weapons drawn to move against them–but he’d better be able to demonstrate to a court of law that he knew they were serious–that what he overheard was part of the illegal activity–that they weren’t just playing a game, or kidding around.

In the case from the Czech Republic, the evidence was evidently unambiguous. The information Peterkova transmitted was false and she clearly knew it was false, since she’d invented it.

Most of the propaganda being spewed in today’s U.S. is protected by the Free Speech Clause of the First Amendment. Opinions–no matter how nutty–are protected, and far too much of what passes for journalism in this country today, even in the most credible outlets,  is really the venting of opinions. Even though a number of Faux News pundits and their ilk likely know they are dealing in a manufactured reality, proving to a court that they know they are dealing in falsehoods–at least, in the absence of some inadvertent admission– would be impossible.

Overall, the protection offered by the First Amendment is immensely positive. That said, however, the reality of our time is that “censorship” is no longer accomplished by suppression; today, partisans and culture warriors flood the Information environment with enormous amounts of clickbait and propaganda, intended to “drown out” responsible fact-finding, then use the First Amendment as a shield.

it’s a situation that requires a citizenry able to separate wheat from chaff. Civic and news literacy have never been more important.

Unfortunately, the ideologies that motivate the propaganda in the first place also convince partisans that “truth” is information that confirms their initial biases–and increasingly, that illegal and/or illegitimate action–even insurrection– is protected “free speech.”

it isn’t.

 

Why Judges Matter

I was astonished when I read this report in The Washington Post, mostly because the judge was so obviously, incredibly wrong about both the law and the facts.

U.S. District Judge Reed O’Connor found that the pandemic “provides the government with no license to abrogate” the freedoms that any American has, and that the service members had a right to avoid getting a vaccination on religious grounds.

“This Court does not make light of COVID-19′s impact on the military. Collectively, our armed forces have lost over 80 lives to COVID-19 over the course of the pandemic,” O’Connor wrote Monday in a 26-page order.

But the judge added that the “loss of religious liberties outweighs any forthcoming harm to the Navy” and that “even the direst circumstances cannot justify the loss of constitutional rights.”

A first-year law student would know that “religious freedom” does not give citizens the right to harm others. I used to explain to my students that your sincere belief that God wants you to sacrifice your newborn does not trump laws prohibiting you from doing so.  As “originalist” Justice Scalia wrote in Employment Division, Department of Human Resources of Oregon v. Smith, general laws prohibiting drug use take precedence over the plaintiffs’ right to participate in tribal religious observances that included smoking peyote.  

Smoking peyote during a religious ceremony didn’t harm anyone. A requirement that military personnel be vaccinated  protects others against a very dangerous disease. It would clearly be constitutional even if vaccine denial posed a genuine religious concern.

But it doesn’t.

The fact is that no religion  (with the possible exception of Jehovah’s Witnesses and Christian Scientists, who don’t believe in any medical science) teaches vaccine denial. If I simply invent a “religious” precept that is not grounded in the actual doctrine of my faith, I can hardly demand that American courts respect my “religious” beliefs.

I was sufficiently incensed by this ridiculous ruling that I decided to Google the judge, who–unsurprisingly–is a high-profile member of the Federalist Society.

Here’s what the Texas Tribune had to say about him when he ruled that Obamacare was unconstitutional. (Remember that?)

In 2015, it was an Obama administration effort to extend family leave benefits to gay couples. In 2016, it was an Obama administration guideline allowing transgender children to use school bathrooms that align with their gender identity. And on Friday, it was the entirety of Obamacare that U.S. District Judge Reed O’Connor struck down as unconstitutional after a Texas-led coalition of 20 states sued this year to kill it.

Over the past four years, O’Connor has handed Texas major wins in several high-profile Texas v. United States lawsuits. And it doesn’t seem to be a coincidence that those cases landed in his court. The North Texas judge has emerged as something of a favorite for the Texas Attorney General’s Office, a notoriously litigious legal battalion known for challenging the federal government in cases and controversies across the country.

Since 2015, almost half of challenges to the federal government that Texas filed in district courts here landed in O’Connor’s courtroom, attorney general’s office records show. He is one of several dozen federal judges of his rank in the state.

The Obamacare decision, which was reversed by higher courts, was criticized by both conservative and liberal legal scholars as misguided and politically motivated.

The conservative legal scholar Jonathan Adler and the liberal legal scholar Abbe Gluck came together to write in The New York Times that the decision “makes a mockery of the rule of law and basic principles of democracy.

O’Connor is routinely described as a reactionary, and his vaccine decision is just the most recent evidence that he ignores legal precedents incompatible with his far-right politics. In 2015, he held a portion of the federal Gun Control Act of 1968 unconstitutional and enjoined the federal government’s definition of marriage in the Family and Medical Leave Act of 1993.

In 2016, as previously noted, he struck down an Obama administration rule requiring that transgender students be allowed to use the bathroom corresponding to their gender identity. In 2018, he ruled that the Indian Child Welfare Act was unconstitutional. That 1978 law was passed in response to concerns over the high number of Indian children that were being removed from their families by public and private agencies and placed in non-Indian families. It gave tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.

It goes on.

O’Connor’s rulings are frequently reversed, but the damage done goes far beyond the time and money wasted on appeals. The initial publicity garnered by his off-the-wall rulings gives an aura of legitimacy to arguments that have no legitimacy, and that are inconsistent with settled constitutional precedents.

Thanks to this decision, people will die. Unnecessarily.

Judges matter.

Some Conflicts Never Die…

Back in 2000, I wrote a couple of newspaper columns and an academic article about litigation involving the Kentucky Baptist Children’s Home. The Children’s Home had fired a youth counselor solely because she was a lesbian; they admitted that she was an excellent counselor, but justified the firing by explaining that “the gay lifestyle” (discovered because her picture appeared in media snapped at a Pride parade) was inconsistent with their theological beliefs.

Ordinarily, this firing would not have given rise to a lawsuit-even in those few states that had then extended civil rights protections to gays and lesbians, religious organizations were (and are) exempt from civil rights laws. But the Home was essentially funded by the state of Kentucky. Some $12 million of its $15 million dollar annual budget came from state tax dollars paying for the children placed in the facility by the state. The lawsuit challenged the propriety of using tax dollars to discriminate.

The case ran into some technical issues not germane to the principle being litigated, and I lost track of its subsequent path. (A very similar case from Georgia was settled when that state agreed to abide by the Constitution.) Evidently, the Kentucky Home did not lose its state support–nor its insistence on disadvantaging members of the LGBTQ community–because AP has reported on the emergence of a similar conflict between the Home–now renamed Sunrise Children’s Services–and the state.

A cultural clash pitting religious beliefs against gay rights has jeopardized Kentucky’s long-running relationship with a foster care and adoption agency affiliated with the Baptist church that serves some of the state’s most vulnerable children.

The standoff revolves around a clause in a new contract with the state that bans discrimination based on sexual orientation and that Sunrise Children’s Services is refusing to sign.

It’s another round in a broader fight in states and the courts over religious liberty and LGBTQ rights, including whether businesses can refuse to provide services for same-sex weddings. An upcoming U.S. Supreme Court decision in a Pennsylvania case could be decisive in the Kentucky clash; it’s reviewing a refusal by Philadelphia Catholic Social Services to work with same-sex couples as foster parents.

The original case–twenty-one years ago–involved the home’s refusal to employ LGBTQ staff members, no matter how professionally competent. I was unable to determine whether that situation has changed, but this time, the argument is about the agency’s refusal to place children with same-sex foster or adoptive parents.

Sunrise wants its religious beliefs to exempt it from a law that applies to other agencies doing business with the state, a requirement imposed by what lawyers call a law of general application. It wants to continue benefitting from tax dollars paid by all Kentucky residents, gay and straight, while picking and choosing which rules it will follow.

That isn’t the way it’s supposed to work.

“If Sunrise doesn’t want to abide by that, that’s fine. They shouldn’t have access to state money, state contracts or children in the state’s care,” said Chris Hartman, executive director of the Fairness Campaign, a Louisville-based gay rights advocacy group.

Hartman said he worries LGBTQ children in Sunrise’s care are “deeply closeted,” hiding their sexual orientation out of fear of “indoctrination and proselytization.”

Whether that fear is justifiable or not is beside the point. It was actually Justice Scalia–no champion of secularism–who wrote the decision in Employment Division v. Smith, confirming that religious belief does not exempt citizens from compliance with laws of general application.

Sunrise is perfectly free to follow its theological principles. It isn’t free to demand continued public funding at the same time it is refusing to follow the rules that govern distribution of that funding.

I sometimes wonder whether America has turned into a version of Animal Farm, where everyone is equal, but some folks (“good Christians”) think they’re entitled to be more equal than others.