The Conundrum

In a discussion the other day with a friend and former legal colleague, we recalled the mantra of the law firm with which we’d once practiced: there is only one legal question, and it’s “what do we do?” What course of action do we advise the client to pursue?

I think about that mantra a lot these days, and most frequently in connection with the media.

I’m convinced that so many of the problems that bedevil American society today are exacerbated by a media landscape that is wildly fragmented. Not only are numerous media outlets–credible and not-so-credible– nakedly partisan, but thanks to the internet, they are all immediately accessible to citizens looking for “news” that confirms their world-views.

Partisan news organizations are nothing new–if you don’t believe me, read up on the vicious contemporaneous attacks on “ungodly” Thomas Jefferson. What is new is the sheer number of media outlets and the ease of accessing them.

The problem isn’t confined to out-and-out propaganda mills. Dubious stories from slanted outlets can and do get picked up by credible news organizations, and its a truism that later “corrections” are seldom as widely read as the initial misinformation.

Josh Marshall at Talking Points Memo recently reported on an example: the New York Post had run a “made-for-Fox News story” about veterans who, it reported, had been “booted out of hotels about an hour north of New York City to make way for migrants”.

As I said, it was a made-for-Fox News: Here are these disabled or impoverished American veterans getting kicked to the curb to make way for migrants with no permission to be in the country in the first place. Politicians jumped on the story. The Post ran it. It made the rounds of the wingnutosphere. Fox of course got on board.

But none of it was true. And I don’t just mean not true in the sense of being misleading or incomplete or embellished or sensationalized. It was a hoax. Sharon Toney-Finch, the founder and head of a small local nonprofit, the YIT Foundation, which focuses on veterans issue and premature births (?) was the source of the original story. But it turns out the she recruited a group of 15 homeless men from a local shelter to impersonate veterans and talk to the press about their tale of woe.

After a few of the homeless men admitted the truth to reporters, Toney-Finch confessed she’d made the whole thing up.

The hoax was apparently perpetrated with the aim of creating a media spectacle for  the right-wing press–to focus on the Biden administration’s terrible, awful, no-good  approach to immigration, and  the purported national immigration crisis. Even the Post has now been forced to recant and report on Toney-Finch’s hoax.

A local paper, The Mid-Hudson News, uncovered the truth with what Marshall notes was “a lot of shoe-leather reporting.”

This relatively minor story is a microcosm of our current dilemma. Today’s media environment is a Wild West of propaganda, spin, misinformation and outright lies. Along with the partisans peddling that propaganda and those lies are genuine reporters working for outlets that practice old-fashioned “shoe leather” journalism. And protecting them all are the Free Speech provisions of the First Amendment.

So–what do we do?

What we clearly cannot and should not do is eliminate or constrict those First Amendment protections. The result of that would be to hand over to government the power to censor communications.

In some cases, like the recent Dominion lawsuit against Fox, libel law can be employed to punish the most egregious behaviors, but this is a very slim reed: few of those who’ve been libeled have the means to bring such suits, and they are–quite properly–very difficult to win.

Unfortunately, new rules that would make it easier to sue over misinformation would end up constraining real journalists as well as the sloppy or dishonest ones–when you are creating the “first draft of history,” it can be easy for even good reporters to make mistakes, not to mention that in the multiple gray areas of modern life, one person’s truth is another person’s lie.

The only answer I can come up with is better education and a change in the information culture–both long-term projects. Teaching critical thinking and media literacy in the schools–although highly unlikely in those fundamentalist religious schools to which our legislature sends our tax dollars–would help. Organizations like the Society of Professional Journalists that issue codes of ethics might consider “rating” outlets based upon their observance of those ethical standards.

But as long as individuals can search for and locate “facts” they find congenial, Americans will continue to inhabit alternate realities. I just don’t have an answer to “what do we do?”

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About That Wall Of Separation

According to the New York Times, Eric Adams, current Mayor of New York City, opened a recent talk with an old chestnut:“When we took prayers out of schools, guns came into schools.” Not only is that presumed cause-and-effect demonstrably false, Adam’s speech–in which he dismissed separation of church and state–betrayed an appalling lack of constitutional knowledge (and provoked enormous criticism).

Back in 2004, I posted “Why Separation is Good for Church and Necessary for State.” It seems appropriate to repeat that explanation, and remind ourselves that religious “culture war” issues were already hot some twenty years ago. (Warning: this was originally a speech, so it’s longer than my usual daily post.)

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I’ll start with James Madison, my favorite Founder and the one whose views on religious liberty dominated the Constitutional Convention. Madison based his understanding of natural rights and the role of the state on Locke’s social compact. As one scholar has noted, because the exercise of religion requires that each person follow his own conscience, it is a particular kind of natural right, an inalienable natural right. Since opinions and beliefs can be shaped only by individual consideration of evidence that that particular individual finds persuasive, no one can really impose opinions on any one else. Unlike property, or even speech, religious liberty cannot be sold, or alienated, so it does not become part of the social compact. The state must remain noncognizant of its citizens’ religions–meaning that it simply has no jurisdiction over religion. A just state must be blind to religion. It can’t use religion to classify citizens, and it can neither privilege nor penalize citizens on account of religion.

If you listen to the rhetoric around church-state issues today, you would never know that the “wall of separation” contemplated by Jefferson and Madison was seen as an important protection for both religion and government. But it was—and for some very sound reasons. 

This view of Madison’s is a far cry from the interpretation favored by some of our current Justices—an interpretation sometimes called “nonpreferentialism.”

Roger Williams, who founded Rhode Island, is most often cited for the religious view of the importance of separation; he was the originator of the phrase “a wall of separation”—a full 150 years before Thomas Jefferson used it. Historians sometimes overlook the importance 18th and 19th century Christians placed upon the doctrine of liberty of conscience—what they called “soul freedom.” Such views were most strongly held by Mennonites, Quakers and Baptists, but they were also part of the beliefs of colonial era Episcopalians, Methodists and Presbyterians.

John Leland was a traveling evangelical Baptist with a strong view of the individual’s relationship to God, the inviolability of the individual conscience, and the limited nature of human knowledge. He wrote, “religion is a matter between God and individuals; religious opinions of men not being the objects of civil government, nor in any way under its control.” He also wrote that “the state has no right or leave to concern itself with the beliefs of an individual or that individual’s right to expound those beliefs…The state is to maintain order, not to judge right and wrong.” And here’s my favorite Leland quote: “The very tendency of religious establishments by human law is to make some hypocrites and the rest fools; they are calculated to destroy those very virtues that religion is designed to build up…Government has no more to do with the religious opinions of men than it has with the principles of mathematics.”

Were there people who lived at the same time as Madison and Leland who felt otherwise? Of course. But it was the position of Madison and Leland that prevailed; it was their view of the proper relationship (which might more accurately be described as the proper lack of a relationship) between church and state that became part of our constitutional structure.

Today, in addition to rampant historical revisionism, there are two common justifications for allowing government to take cognizance of religion—arguments that are mutually exclusive, although often offered by the same people. They are sometimes called the instrumental argument, and the ceremonial justification.

You are all familiar with the instrumental argument; it is best summarized by a bumper sticker that was popular a few years ago: something along the lines of “When prayer was removed from the classroom, guns and teenage pregnancy came in.” A good example of the instrumental approach was offered by Tom Delay, right after the Columbine school shootings. DeLay said “I got an email this morning that said it all. A student writes, ‘Dear God, why didn’t you stop the shootings at Columbine?’ and God writes back ‘Dear student: I would have, but I wasn’t allowed in.’”

This naive belief that exposure to a denatured and generic religion in the classroom will make students behave is exactly the same justification given for current efforts to post the Ten Commandments—if people see “Thou shalt not kill” on the wall of a public building, well, they won’t kill. (For complex theological reasons I do not understand, this evidently doesn’t work if the building is privately owned.) Unfortunately, available evidence does not support this belief in the magical powers of religious iconography. The United States is by far the most religious of all the western industrialized nations—and we are also the most violent. There are few—if any—atheists in our prisons. Folks in the Bible Belt pray more—and kill more. And as Stephen Chapman noted in a column following DeLay’s comments, school shootings have not occurred in hotbeds of secularism like Berkeley or Cambridge or New York City, but in towns where Norman Rockwell and James Dobson would feel right at home: Paducah, KY, Jonesboro, ARK, and Littleton, CO.

The reason these proponents of government-sponsored prayer want government to make us pray is because they are convinced that in the absence of state coercion, we won’t. That’s why they object to non-mandatory, private baccalaureate services in lieu of prayer at high school graduations. Such baccalaureate services, which used to be the norm, permit meaningful prayer for those who wish to participate. So what’s the objection? Tellingly, it is that such services are voluntary—that those who “need” to prayer won’t come. The folks making this argument know what prayer is good for you and me, and are willing to use the power of the state to make us participate in a ceremony that includes that prayer.

The instrumental argument for supporting public religion and prayer is basically “religion is good for people, so the state should impose it.” The ceremonial defense of public religion is that it has no effect at all–that it’s meaningless. This is the argument that prayers at graduations and similar venues are merely “traditional” and “ceremonial.” People of faith—quite justifiably—find such characterizations deeply offensive. As a minister friend of mine used to say, he doen’t pray “to whom it may concern.” No religion I know of sanctions the notion that prayer is merely ceremonial, void of particularistic significance and useful only as an archaic (albeit charming) tradition.

The Founders of this nation believed that government neutrality in matters of religious belief—Madison’s noncognizance—was essential if government was to be seen as legitimate. They also believed that state neutrality was necessary if genuine religious sentiment was to flourish. You only need look at nations without a First Amendment to see how right they were; countries like England have seen state-sponsored religions degenerate into pleasant rituals without vitality; on the other end of the spectrum, nations like Saudi Arabia and Iran have employed the force of the state in the service of religious conformity. Both alternatives are instructive.

Let me just conclude these remarks by commenting on a couple of current manifestations of America’s religious culture wars: the President’s Faith-Based Initiative, and efforts to pass state and federal constitutional amendments banning same-sex marriage.

As many of you know, I recently completed a 3 year study of “faith-based” contracting— I think the questions raised by the President’s Initiative point to the wisdom of Madison’s insistence upon government noncognizance of religion, and to the accuracy of Leland’s observations.

Charitable Choice and the President’s Faith-Based Initiative are efforts to increase the numbers of “faith-based” social service providers contracting with the state. In order to accomplish that, government agencies must first define religion, or “faith.” (We all saw how well that worked with conscientious objectors.) I should note here, by the way, that the term “faith-based” is itself illustrative of the problem. I’m sure the phrase was intended to be more inclusive (and perhaps less alarming ) than the word “religion,” but it betrays an unconscious, and rather telling, bias. “Faith based” is a very Protestant religious concept. Catholicism and Judaism, among others, are “works based” religions.

Of course, government has contracted with religious organizations ever since it has provided social services, so the first question that arises is: How do the faith organizations the President proposes to recruit differ from Catholic Charities, Lutheran Social Services, the Salvation Army, and government’s many other long-time religious partners?

A much more troubling question comes next: Since the effort to recruit new faith partners has not been accompanied by additional funding for social services, it is hard not to see Charitable Choice as an effort to shift funds from one set of religious providers to another –presumably, from government’s traditional religious partners (who generally operate in accordance with applicable professional and constitutional norms) to more evangelical providers focused upon “personal transformation” of clients. If new FBOs do bid for contracts in any significant numbers, the competition for limited dollars will create precisely the sort of conflict among religious groups that the First Amendment was intended to avoid.

The First Amendment does not prevent government from doing business with faith organizations, but that doesn’t mean that any program run by a religious provider will pass constitutional muster.  There is a constitutionally significant distinction between programs that are offered by a religious provider or in a religious setting, and programs in which religious observance or dogma are integral to service delivery. Failure to understand that distinction invites the very mischief that so worried Madison and Leland.

Despite the rhetoric emanating from the White House, the question is not whether government should partner with religious organizations to provide social services.  It always has, and undoubtedly always will.  The question is “when are such partnerships appropriate and how should they be structured and monitored?”  Similarly, the question is not whether religious or secular organizations are better; it is “what organizational characteristics are most likely to predict successful program delivery?”
If there is one truism our study confirmed, it is that simpleminded confidence in the power of undefined “faith” is misplaced. No armies of compassion are rushing in to relieve government of its responsibilities for social welfare, and faith has not provided a short-cut to self-sufficiency.  As the head of one faith-based agency puts it, “Most poor people have all the religion in the world.  What they don’t have is job skills.” To which observation both Madison and Leland might have added: and government’s responsibility is limited to providing them with the job skills.

If the effort to portray “faith” as an important element in service delivery is misplaced, the war being waged against gays and lesbians is a frontal attack on two of the most fundamental principles of our constitutional system, equal protection of the laws and separation of church and state.

With all of the rhetoric about government needing to “protect” marriage, we sometimes forget that government cannot and does not sanctify marital relationships. Churches, Mosques and synagogues join people in religious unions; the state merely confirms those relationships for purposes of securing the legal incidents of that partnership status. If you are married in a civil ceremony, you have a civil marriage—meaning that the state recognizes your legal partnership for purposes of enforcing the obligations you have assumed.  Prohibiting state recognition of same-sex partnerships—many of which have, in fact, been blessed by a church or synagogue—denies gay couples access to 1008 legal rights that heterosexual citizens enjoy. Those include the right to be appointed as a guardian of an ailing or injured partner, the right to take family leave, the right to legally parent a non-biological child, and the right to half of the partnership’s accumulated property if the relationship dissolves. Same sex couples pay more taxes than married couples, because they aren’t entitled to spousal gift and estate tax exemptions and deductions. They can’t seek damages for a partner’s wrongful death. There are hundreds more—legal and civil rights enjoyed by any heterosexual married for two days or two months, but denied to gays who have been partners for 30 or 50 years.

The justifications for imposing these legal disabilities are virtually all religious, and rooted in the doctrines of some, but certainly not all, conservative denominations. Despite efforts to pretend there are secular policy concerns at stake, all one need do is look at the justifications offered to see their true nature:      

We are told that gays should not be allowed to marry because homosexuality is immoral. But all religions teach that rape and murder are immoral—and Indiana allows rapists and murderers to marry.
We are told that marriage and sex are for procreation. So where are the bills prohibiting marriages between old people and sterile people?
We are told that gay parenting is harmful to children, but there is absolutely no credible research confirming that harm.
We are told that recognition of gay unions will undermine the institution of marriage. But we are not told why that is so, and we were told the same thing about interracial marriage, and about allowing women to own property and vote.

At the recent rally in Indianapolis, the crowd was told that marriage is for biological parents and their natural-born children. Those of us with stepchildren we love every bit as much as we love our biological children, those who have adopted children they adore, found that characterization both inaccurate and offensive. 

We all understand that these measures are not efforts to protect families—they are efforts to privilege some families at the expense of others. They aren’t even about religion and morality—they are about whose religion, whose morality. That is why the issue is so important to so many of us who are not gay. It is because we know that when government gets the right to decide whose beliefs are acceptable, no one’s beliefs are safe.  

What happens when government imposes the religious views of some Americans on the rest of us?

First of all, government itself loses legitimacy, because it is acting contrary to the rule of law and norms of neutrality and equality. The rule of law requires that we constrain and limit the discretion of government officials. Every time we give those officials added discretion—to choose this religious service provider over that one, to send this welfare recipient to that religious program rather than this secular one—we increase the opportunity for abuse of discretion. We move further from the rule of law, and closer to the arbitrary exercise of power by man.  Furthermore, political conflict intensifies, making it more difficult for government to do the jobs it is supposed to do. If you doubt the accuracy of that observation, a quick look at Congress and the Indiana General Assembly should confirm the point.

Second, religious liberty is compromised, and with it, religion itself. Beliefs not freely chosen are by definition not authentic. The imposition of religious observances, or the passage of laws privileging religious beliefs, tends to increase the public’s skepticism about all religion.

Finally, society itself loses. Religious disputes are among the most bitter and divisive of conflicts. The current, highly contested political debate about “values” has been terribly corrosive of our national identity, and harmful to our sense of national purpose. We need to minimize the culture wars, not add fuel to the fire. The way to minimize conflict is to listen to the logic of James Madison and John Leland. The way to add fuel to the fire is to let the State make the religious beliefs of some Americans the law of the land.
 



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Speech Versus Action

A recent report on an upcoming Supreme Court case from the New Republic made me think–definitely not for the first time–about the widespread misconceptions around the First Amendment.

Most of the people who read this blog are aware of many of those misconceptions. Probably the most annoying is the most basic–it constantly amazes me (okay, irritates the heck out of me) how many Americans don’t know that the First Amendment, like the rest of the  Bill of Rights, protects only against government action.

I still remember a call I got when I was with Indiana’s ACLU; the caller had applied for a position with White Castle, and had been told that his extensive tattoos were incompatible with their customer service standards. He demanded we sue White Castle for infringing his Free Speech rights. I had to explain that–had the City Council passed an ordinance against tattoos, that would have violated his First Amendment rights, but White Castle is private–and has its own First Amendment right to determine the manner of its own communication.

The case described in the linked article isn’t that clear-cut. It  involves an often-contested “gray area.”

The Supreme Court will hear Counterman v. Colorado in April to decide whether prosecutors must prove that a defendant meant to threaten someone with harm, or if they can opt for the lower threshold of whether a reasonable person might interpret a defendant’s actions or statements as a threat. Where the high court ultimately comes down on this distinction could be consequential in an age when it’s easier than ever for Americans to threaten not just each other, but also election workers, FBI agents, members of Congress, and even Supreme Court justices. How far does the First Amendment go to protect them?

In my classes, I took a rather unorthodox approach to this question, and a number of similar issues. While you won’t find my distinction in legal treatises, it seemed to help students understand the purpose–and limits– of the Free Speech clause. The fundamental distinction I drew was between speech (defined as communication of a message) and action.

The distinction doesn’t rely on whether there was verbal communication.

If I tell you that this cubic zirconium ring I’m selling is really a diamond, and charge you accordingly, I have engaged in fraud–a behavior. The First Amendment won’t protect me.

If I text and telephone you every hour and call you names, that’s harassment–a behavior. The First Amendment won’t protect me.

If I burn an American flag, I am sending a message (we know it’s a message, because  most Americans understand it and find it offensive). That message is protected by the First Amendment.

The problem for law enforcement arises when it is unclear whether we’re dealing with behavior–a genuine threat–or the expression of an opinion. (As lawyers like to say, it’s a “fact-sensitive” inquiry.) Social media trolling has vastly complicated this determination.

At the heart of this case is a campaign of harassment that seems all too familiar. The plaintiff, Billy Counterman, used multiple Facebook accounts to send hostile messages to an unidentified local musician in Colorado. Among the numerous messages that Counterman sent her were ones that read, especially in the context of the years-long barrage, as threats. “Fuck off permanently,” Counterman said in one of the messages. “You’re not being good for human relations,” read another. “Die. Don’t need you.” The target, who never responded to him and blocked him multiple times, ultimately contacted Colorado police, who charged Counterman for violating the state’s anti-stalking statutes.

Colorado law defines the offense to describe anyone who “repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.” Notably, under the rulings of Colorado courts, prosecutors aren’t required to prove that the defendant intended to threaten a person. They instead must only show that a reasonable person would have taken the statements as threats, which is a much easier threshold to clear at trial.

In the lower courts, the troll was handed a sentence of four years under the state’s anti-stalking statute.

This is one of those “hard cases” that –as the saying goes– sometimes make bad law. Four years seems pretty excessive for being an online asshole; on the other hand, such trolling far too frequently becomes a “heckler’s veto”-defined as behavior that allows  people who disagrees with a speaker’s message to shut that message down.

It remains to be seen how the Court will treat online harassment, but it sure seems like it falls on the “behavior” side of my explanatory line…..

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Restraining Power

The growing concerns about social media–especially platforms’ moderation of users’ posts–are just the most recent and visible examples of an older conundrum: how do we define and restrain the misuse of power?

When the U.S. Constitution was drafted, concerns about the infringement of individual rights focused almost entirely on government, because only government entities had the power to prescribe and proscribe individual behaviors and punish those who failed to conform. Accordingly, the Bill of Rights restrained only government (initially, only the federal government, which was seen as a greater threat than the state and local units of government that were included in its prohibitions after passage of the 14th Amendment.)

To state the glaringly obvious, in the 200+ years since passage of the original Bill of Rights, a lot of things have changed.

Governments aren’t the only entities exercising considerable authority over our lives–major corporations, a number of them global in scope, not only influence government but engage in negative behaviors that directly affect millions of people, from polluting the environment to exploiting third-world labor. Scholars have belatedly come to question whether the Bill of Rights shouldn’t be applied more broadly–to restrain all entities large enough or powerful enough to invade individual rights.

I have absolutely no idea how that might work.( It probably wouldn’t.) /That said, we are at a point where we absolutely must contend with the inordinate power exercised by private, non-governmental organizations, and especially by Facebook, Twitter, et al.

Robert Reich addressed that problem in a recent essay for the Guardian.

Twitter and Instagram just removed antisemitic posts from Kanye West and temporarily banned him from their platforms. It just goes to show … um, what?

How good these tech companies are at content moderation? Or how irresponsible they are for “muzzling” controversial views from the extreme right? (Defenders of West, such as the Indiana attorney general, Todd Rokita, are incensed that he’s been banned.) Or how arbitrary these giant megaphones are in making these decisions? (What would Elon Musk do about Kanye West?)

 Call it the Kayne West paradox: do the social media giants have a duty to take down noxious content or a duty to post it? And who decides?

As Reich quite accurately notes, these platforms, with their huge size and extraordinary power over what’s communicated, exert enormous sway over the American public. And they are utterly unaccountable to that public.

Two cases pending before the Supreme Court illustrate the underlying dilemma:

One case involves Section 230 of Communications Decency Act of 1996. That section gives social media platforms protection from liability for what’s posted on them. In that case, plaintiffs claim that social media ( YouTube in one case,Twitter in the other) led to the deaths of family members at the hands of terrorists. In another case, the plaintiffs are arguing that the First Amendment forbids these platforms from being more vigilant. That case arises from a Texas law that allows Texans and the state’s attorney general to sue  social media giants for “unfairly” banning or censoring them based on political ideology.

It’s an almost impossible quandary – until you realize that these questions arise because of the huge political and social power of these companies, and their lack of accountability.

In reality, they aren’t just for-profit companies. By virtue of their size and power, their decisions have enormous public consequences.

Reich is betting is that the Court will treat them as common carriers, like railroads or telephone lines. Common carriers can’t engage in unreasonable discrimination in who uses them, must charge just and reasonable prices, and must provide reasonable care to the public.

But is there any reason to trust the government to do a better job of content moderation than the giants do on their own? (I hate to imagine what would happen under a Republican FCC.)

So are we inevitably locked into the Kanye West paradox?

Or is there a third and better alternative to the bleak choice between leaving content moderation up to the giant unaccountable firms or to a polarized government?

The answer is yes. It’s to address the underlying problem directly: the monopoly power possessed by the giant social media companies.

The way to do this is apply the antitrust laws – and break them up.

My guess is that this is where we’ll end up, eventually. There’s no other reasonable choice. As Winston Churchill is reputed to have said: “Americans can always be trusted to do the right thing, once all other possibilities have been exhausted.”

It’s hard to disagree. And actually, a far more aggressive approach to anti-trust would solve more problems than those we are experiencing with social media…

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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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