Category: Religious freedom

Not the SCOTUS comments you might expect

I’m disappointed at our Supreme Court’s Wednesday decisions, but I’ll not annoy you with my cries de coeur. They’re in my private journal as they occur to me.

The Court ruled that Prop 8 proponents were not the right party to bring the suit. Wherever vague and conflicting standing doctrine points, its application here eviscerated the California referendum process. That process was designed to let citizens pass laws, and amend their constitution, to check and balance government officials. If those same officials can effectively veto provisions of the state constitution by refusing to enforce and then refusing to defend them, the point of the referendum process is defeated.

(The Supreme Court, You and Me, and the Future of Marriage)

Did you get that? It didn’t say “Blah blah blah blah blah.” The California referendum process is their to let California voters overrule their elected officials. It isn’t an easy process. As I recall, the Attorney General gets to edit the referendum question to some extent, and the Attorneys General use that power to skew voting as much as possible in the direction they want.

Now, if the voters repudiate their masters by clearing all those hurdles, it appears that the government can just smirk and play their final trump card: refuse to defend and trust than nobody else has standing. Perhaps there could be voter standing if the party or parties seeking to defend could demonstrate particular and tangible harm, but that’s not likely to be true on most of the day’s vexed social issues.

[E]ven some who cheer the [DOMA] decision have called its reasoning less than coherent or satisfying.

(Ibid.)

DOMA, [Justice Kennedy] goes on to insist, must have been motivated by a “bare desire to harm,” or “to disparage and to injure.” Its sole purpose and effect is to “impose inequality,” to deny “equal dignity,” to “humiliate.” He infers all this from a few passages in its legislative history about defending traditional morality and the institution of traditional marriage, from its effects, and from the act’s title. Most importantly—and scandalously, given his obligations as a judge—Kennedy does so with nothing more than passing reference to arguments made for DOMA in particular, and conjugal marriage in general. How else could his reasoning leap from the people’s wish to support a certain vision of marriage, to their alleged desire to harm and humiliate those otherwise inclined?

The effect of this refusal to engage counterarguments is the elevation of a rash accusation to the dignity of a legal principle: DOMA’s supporters—including, one supposes, 342 representatives, 85 senators, and President Clinton—must have been motivated by ill will.

(Ibid.)

In his DOMA dissent, Justice Alito goes out of his way to frame the central issue of both cases: They involve, he writes, a contest between two visions of marriage—what he calls the “conjugal” and “consent-based” views. He cites our book as exemplifying the conjugal view of marriage as (in his summary) a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing children.” He cites others, like Jonathan Rauch, for the idea that marriage is a certain commitment marked by emotional union. And he explains that the Constitution is silent on which of these substantive, morally controversial visions of marriage is correct. So the Court, he says, should decline to decide; it should defer to democratic debate.

The Court is likelier to defer to democratic debate if it believes there’s a genuine debate to defer to.

(Ibid.) The supporters of the traditional (conjugal) view of marriage must not let liars like Justice Kennedy silence them by baseless accusations of ill will. That is a partisan ploy, and has long been a conscious tool of the proponents of SSM. Nobody who respects truth will resort to this accusation.

For the record, I still support the traditional view of marriage and, as a corollary, must oppose same-sex marriage. I support the traditional view for many of the views set forth in What is Marriage? And I say that as one who has esteemed members of my extended family who experience same-sex attraction — one who no doubt will marry as soon as his state allows it (if he hasn’t already traveled to a state that does). My son’s most influential high school mentor was a barely-closeted gay man. He was “barely” closeted only because the smut-mongers wouldn’t leave him alone, to conduct his professional life with integrity, neither affirming that he was gay nor denying it. His sexuality was, properly speaking, not relevant — but some creeps, and more particularly, Church Lady Creepettes, insisted that They Knew, and demanded his brilliant, inspiring head on a platter. Thanks to them, perhaps (he won’t give them the perverse pleasure of confirming that they led him to leave), students now are spared his brilliance, and the program he led shows it.

It pained me more than once to stand in public meetings and oppose what I thought misguided in front of him and other closeted or “out” friends and acquaintances with same-sex attraction.

Justice Alito is right about their being two competing views. One of the things I’ve learned this Spring is that the traditional view is waning partly because young people don’t know about marriage history and falsely assume that the traditional view was invented, a la Justice Kennedy, out of desperate need to disguise the ill will that motivated opposition to SSM. But that’s not true:

Consummation or consummation of a marriage, in many traditions and statutes of civil or religious law, is the first (or first officially credited) act of sexual intercourse between two people, either following their marriage to each other or after a prolonged sexual attraction. Its legal significance arises from theories of marriage as having the purpose of producing legally recognized descendants of the partners, or of providing sanction to their sexual acts together, or both, and amounts to treating a marriage ceremony as falling short of completing the creation of the state of being married.

This is from the notorious right-wing Christianist website, Wikipedia.

Before same-sex anything was at stake, our society was already busy dismantling its own foundation, by innovations like no-fault divorce and by a thousand daily decisions to dishonor the norms of marriage that make it apt for family life. Atomization results from these forms of family breakdown—and from the superficially appealing idea that emotional closeness is all that sets marriage apart, which makes it gauche to seek true companionship and love in non-marital bonds. Part of rebuilding marriage will be responding to that atomization—reaching out to friends and neighbors suffering broken hearts or homes, or loneliness, whatever the cause. That, too, will make the conjugal view of marriage shine more brightly as a viable social option.

(The Supreme Court, You and Me, and the Future of Marriage) True. All true. There are threats besides, and probably greater (if only because they’re pandemic in the 98% that isn’t same-sex attracted), than same -sex marriage. But it’s the most acute at the moment. The others are chronic.

Finally, a collateral reason why I oppose the Tsunami:

This is perhaps the most remarkable thing about this entire debate: how so many who favor gay marriage — including, apparently, five members of the US Supreme Court — see absolutely no reason why anybody could oppose [SSM] in good conscience. We trads are not just wrong, but wicked. We are entering a dangerous world for believers. Expect to see the Law of Merited Impossibility fulfilled a lot more in the years to come. I defined it once as:

The Law Of Merited Impossibility is an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”

(Frightening the Horses)

This has by no means been a comprehensive overview of the last 34 hours’ commentariat, nor as I indicated, of my own opinion, but I thought it probably was enough out of the mainstream that you might miss it despite the merits.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.

Confirmation bias

“Confirmation bias” is putting it gently. A lie is a lie even when the person being lied about is the President of the United States and the truth is ominous.

An old and admirable friend posted on Facebook, but now seems to have taken down, a link and apocalyptic commentary on a story about a supposed effort to make it a court martial offense to share one’s Christian faith in the military.

An individual Orthodox Christian (whose blog, in fairness to him, posts many stories without much filtering) passed on this similar story. Excerpts:

So President Barack Obama’s civilian appointees who lead the Pentagon are confirming that the military will make it a crime–possibly resulting in imprisonment–for those in uniform to share their faith. This would include chaplains …

This regulation would severely limit expressions of faith in the military, even on a one-to-one basis between close friends. It could also effectively abolish the position of chaplain in the military, as it would not allow chaplains (or any service members, for that matter), to say anything about their faith that others say led them to think they were being encouraged to make faith part of their life …

(Emphasis in original)

I earlier said “This sounds too lurid and absurd to be true, but it’s from several sources. Stay tuned.”

This morning, I saw another item from the Western Center for Journalism, which appears to be, er, more partisan that one might gather from its name:

According to Obama’s advisor on religious tolerance within the U.S. military, Christians sharing their faith, including chaplains, present “… a national security threat. What is happening [aside from sexual assault] is spiritual rape. And what the Pentagon needs is to understand is that it is sedition and treason. It should be punished.” …

And what does the Obama administration do in the face of Muslim war declared against the U.S.?

He threatens to court-martial all U.S. military personnel, including chaplains, if they share their faith ….

What are the facts behind these lurid opinions-masquerading-as-facts? Everyone is citing Breibart:

“Today, we face incredibly well-funded gangs of fundamentalist Christian monsters who terrorize their fellow Americans by forcing their weaponized and twisted version of Christianity upon their helpless subordinates in our nation’s armed forces.”
Those words were recently written by Mikey Weinstein, founder of the Military Religious Freedom Foundation (MRFF), in a column he wrote for the Huffington Post. Weinstein will be a consultant to the Pentagon to develop new policies on religious tolerance, including a policy for court-martialing military chaplains who share the Christian Gospel during spiritual counseling of American troops.

(Emphasis added) Read the whole Breibart piece; don’t trust me. It’s loaded with lots of inflammatory adjectives, but generally seems to state as fact only that which is fact. “Generally,” though, is important. There is no supporting citation or link for the assertion that the “policies on religious tolerance,” which apparently have not begun to be drafted, will include any “policy for court-martialing military chaplains who share the Christian Gospel during spiritual counseling of American troops.”

So: Weinstein is going to be a Pentagon advisor on new policies on religious tolerance. He’s not the one-and-only Obama advisor.

I’ve heard of Mikey Weinstein. He’s a bat-shit crazy but very loud voice of intolerance, who conflates soldiers’ “solemnly sworn oath to the Constitution” and “follow[ing] the military’s regulations regarding religion” — which he hopes to shape. It’s ominous that the Pentagon feels obliged to include him as a consultant. I’m on record against the Obama administration’s already-execrable record on domestic religious freedom, and this proposed appointment does not bode well.

But we are not yet where the “Christian” liars say we are, and they should be ashamed of themselves. There’s no exemption from the command against false witness for political “war.”

UPDATE: Breibart has a followup story May 1.

The Pentagon has released a statement confirming that soldiers could be prosecuted for promoting their faith: “Religious proselytization is not permitted within the Department of Defense…Court martials and non-judicial punishments are decided on a case-by-case basis…”.

Neither Breibart nor Fox News linked to the written statement for anyone who might care to look at the context, but it appears that the Pentagon is alluding to some existing regulation, not to anything concocted in whole or part by Weinstein.

More update (May 6). It looks like thanks are due ADF.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.

Impeach Judge Polster

News from last week:

The U.S. Attorney’s Office for the Northern District of Ohio announced that on Friday 16 defendants were sentenced on hate crime charges growing out of a series of assaults on members of a rival Amish group in which the victims’  hair or beards were cut. (See prior posting.) As reported by the Cleveland Plain Dealer, Bergholz Amish bishop Samuel Mullet received a 15 year sentence. Other defendants received sentences ranging from 7 years to just over one year. In imposing the sentences, federal district judge Dan Aaron Polster told the defendants:

Each and every one of you did more than terrorize, traumatize and disfigure the victims. You trampled on the Constitution.

(Religion Clause; emphasis added)

First, let me preemptively deny what a casual reader might suspect:

  • I’m not saying that bishop Samuel Mullet isn’t the mastermind of the attacks on completing Amish groups.
  • I’m not denying that the attacks were meant to humiliate, intimidate and to deprive the victims of an outward sign of their religious identity.
  • I’m not saying that the “beard trimmings” and “haircuts” were not motivated by hatred for the competing Amish.
  • I’m not saying that bishop Mullet’s group isn’t a cult or that he isn’t dangerous.
  • I’m not saying that unauthorized beard trimmings and haircuts shouldn’t be a crime or that they’re not crimes. They certainly are a form of criminal battery.
  • I’m not saying that 15 years is too long a sentence.

I now am saying that not one of the Defendants “trampled on the Constitution.”I am saying that the federal judge who said they did  sounds like a constitutional ignoramus or a motor-mouth, both of which disqualify him for a federal judgeship in my opinion. (I’m probably in a minority. In a world of Judge Judies, we seemingly want our judges to be tart-tongued purveyors of black-robed bread and circuses.)

The Constitution limits government. Got that?

As my constitutional law professor, the late Patrick Baude put it, “If the Pope of Rome, the Chief Rabbi of Jerusalem and the Rev. Billy Graham got together and engineered the assassination of the President because of some common religious animus, they would not thereby violate the Constitution.” The first amendment has no application whatever to what any church, priest, pastor, curate, or other officer of a religious society may do.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ….

The Constitution limits government.

There are too may people already who fancy that a Church or pastor can violate the “separation of Church and state.” We don’t need Federal Judges pouring gasoline on that fire.

Federal prosecutors argued that bishop Mullet should get a life sentence. I already hinted elsewhere that a law whereby a man might be imprisoned for life for unauthorized beard trimmings and haircuts if motivated by “hate” is a tool I don’t want government to have. But the prosecutors’ Happy Dance Press Release was a model of sobriety compared the judge’s sloppy extemporizing.

As long as I’m shooting off my mouth, let me add that we muddle matters when we pass federal laws like the “Matthew Shepard-James Byrd Hate Crimes Prevention Act” (under which bishop Mullet was convicted) and call them “civil rights” laws. This summary, which illustrates the muddle, is mistaken – although it’s sharper than most people’s minds seem to be:

Civil liberties are protections against government actions. For example, the First Amendment of the Bill of Rights guarantees citizens the right to practice whatever religion they please. Government, then, cannot interfere in an individual’s freedom of worship. Amendment I gives the individual “liberty” from the actions of the government.

Civil rights, in contrast, refer to positive actions of government should take to create equal conditions for all Americans. The term “civil rights” is often associated with the protection of minority groups, such as African Americans, Hispanics, and women. The government counterbalances the “majority rule” tendency in a democracy that often finds minorities outvoted.

I dissent. “Civil liberties” and “civil rights” are substantially synonymous. I wouldn’t object if someone wanted to say that civil liberties keep the government caged and off our turf, and that civil rights have to do with things we may demand from government – if that list includes only things that are the government’s to give in the first place, such as the franchise, due process, jury trials and the like. But government these days has taken to putting its thumb on the scale balancing the rights of citizens among themselves and calling that “civil rights.” That’s wrong.

The quest for equal conditions for all Americans, insofar as it results in countermanding majority decisions that do not infringe civil liberties or civil rights, is a form of tyranny as it deprives the majority of its right to self-governance. Insofar as it burdens other citizens with obligations to be nice to people they may find odious, or to do business with those they might wish to shun, it is potentially a form of tyranny, and needs very substantial justification.

The Constitution limits government. Including courts. Even if the courts are motivated by a desire for greater equality than the constitution requires.

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Some succinct standing advice on recurring themes.