Tag Archives: abortion

Crime and Punishment: Did Trump Spill the Beans on the Pro-Life Movement?

Did Trump get the pro-life position wrong? Or just express it too bluntly?


Fact-checkers tell us that Donald Trump makes mistakes all the time. [1] But Wednesday something unusual happened: He made a mistake he had to back away from.

You can hardly blame him, because his interviewer (Chris Matthews) cheated: He asked follow-up questions and kept badgering for an answer. (Who knew journalists could do that?) After two minutes of dancing back and forth on the topic, Trump let Matthews nail him down:

MATTHEWS: Do you believe in punishment for abortion? Yes or no, as a principle?

TRUMP: The answer is that there has to be some form of punishment.

MATTHEWS: For the woman.

TRUMP: Yeah. There has to be some form.

That statement set off not just feminists, but the anti-abortion folks Trump was trying to appeal to. So Trump had to retreat, ultimately settling on the approved pro-life response: After abortion becomes illegal, doctors should be punished, not women. (He also claimed that MSNBC created the confusion about his views by editing his exchange with Matthews. That should raise his pants-on-fire-lie numbers even higher: The interview was pre-recorded, but aired in its entirety.)

But Trump’s about-face just started a new and even more interesting debate: What kind of mistake did Trump make? Did he get the pro-life position wrong? Or did he spill the beans by stating that position bluntly, without the usual flowery misdirection?

After all, most of Trump’s apparent gaffes have been of the second type: He says what his followers are really thinking, without the caveats and nuanced word choices that make those positions defensible in front of the educated elite. Is that what happened here?

The case for spilling the beans. The essence of the pro-life position is that as soon as sperm meets ovum, you have a fully ensouled human being, with all the God-given rights anybody else has. [2] The natural consequence of this belief is that any abortion, at any stage of a pregnancy, is murder.

Pro-lifers use the word murder in its literal sense, intending nothing metaphoric or hyperbolic. That’s why they so often equate the millions of abortions that have happened since Roe v Wade with the Holocaust.

If you follow where that logic naturally goes, then everybody connected with an abortion is conspiring to commit murder. After all, any mother who paid a man to stick a knife through her baby’s heart would be guilty of murder, so if there is no moral distinction between a baby and a fetus (an “unborn child” or “pre-born baby” in pro-life jargon), any woman who pays a doctor to end her pregnancy must also be a murderer. Why should she go unpunished?

And in fact, in states where pro-lifers have managed to put restrictions on abortion, women do get punished:

Multiple U.S. women — with few options to get themselves to one of their state’s dwindling legal clinics — have been arrested for illegal abortions after they bought abortion-inducing medication online. And thanks to the growing number of laws aimed at protecting “fetal rights,” other women have been punished for doing activities that allegedly harmed their pregnancies. Americans have been charged with murder for allegedly seeking to harm their fetuses by attempting suicide, using illicit drugs, or even falling down the stairs.

A woman in Indiana has been sentenced to 20 years in prison for “feticide”. And if pro-life activists are trying to help her or change the law so that no other women get punished, they’re being awfully quiet about it. As far as that goes, Indiana has a pro-life governor who could commute her sentence at will, if he thought that punishing her was unjust.

But no matter how logically it follows from pro-life assumptions, it seems harsh and cruel to punish women who didn’t want to get pregnant and are just trying to get their old lives back. Nobody likes to think of themselves as harsh and cruel, and besides, it’s bad politics. So pro-lifers deny that’s where they’re headed, even though all the evidence says they’re really headed there.

The counter-argument. When stating a position I disagree with, there’s always a danger that I’ll make a straw man out of it, so I’ll let some prominent pro-lifers state it themselves at length. Here’s how Marjorie Dannenfelser of the Susan B. Anthony List put it on NPR’s Morning Edition:

[T]he pro-life movement has never, for a very good reason, promoted the idea that we punish women. In fact, we believe that women are being punished before the abortion ever occurs. In other words, the early feminists believed this was the ultimate exploitation of women.

The real earliest roots of feminism and the women’s movement really embraced the idea that her innermost soul, in Susan B. Anthony’s words, recoil from the dreadful deed, but thrice guilty is the one who drove her to the deed. And who is that? It’s the abortionist. And that who – is who is the one to be punished when there’s a law against abortion.

Steven Ertelt of LifeNews.com makes a similar point:

the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.

That pro-woman mentality is partly due to the understand[ing] that the abortion industry preys on women — selling them abortions by lying to them about the humanity of their unborn children and the destructive effects abortion will have.

Charles Camosy, author of Beyond the Abortion Wars, wrote an op-ed for The New York Daily News:

Isn’t pro-lifers’ refusal to follow the logic of their position a dishonest political game — one played because pro-lifers know that, as Trump just learned, the logically consistent position alienates virtually everyone?

That might be true if women have an uncoerced choice to have an abortion. But as I argue in some detail in my book “Beyond the Abortion Wars,” that’s not how our culture works.

Broadly legal abortion is the product of privileged men.

… Unsurprisingly, the all-male Roe court made women “free” to act like men: to imagine themselves as able to live sexual, reproductive, economic, professional lives as men do. Women’s equality was not about getting equal pay for equal work. Not about getting mandatory family leave and affordable child care. Not about passing strict anti-discrimination laws in hiring practices.

What was essential for social equality, according to those responsible for our abortion laws, was that women are able to end their pregnancies when they are a burden on their economic and social interests. But being pregnant and having a child is often so burdensome precisely because our social structures have been designed by and for people who cannot get pregnant. Notice how, in this context, our abortion laws end up serving the interests of men and coercing the so-called “choice” of women.

Someone who is coerced into having an abortion as a means of having social equality should not be put in jail. Women, like their prenatal children, are victims of our horrific abortion policy. Instead, physicians who profit from the violence of abortion ought to be punished.

Ad hoc. Whenever I listen to anti-abortion rhetoric, I’m always struck by the ad hoc reasoning. Points are made that would seem to have implications for lots of other issues, but somehow those concerns vanish as soon as the topic shifts away from abortion.

The easiest place to start is with the Susan B. Anthony quote. It sounds great, doesn’t it? The head of the anti-abortion Susan B. Anthony list quoting Anthony herself, as if she were carrying forward the great woman’s legacy. Unfortunately, there’s no historical record of Anthony ever saying it, and precious little to indicate that Anthony had a position on abortion at all. Even if the quote were legitimate, isn’t it obvious that “the one who drove her to the deed” is not the abortionist, but the man who got her pregnant? (Odd that nobody ever talks about punishing him.)

Dannenfelser and Ertelt seem to be imagining a world in which doctors run some sort of boiler-room operation that cold-calls pregnant women and tries to sell them abortions. Or maybe abortionists hang around outside gynecologists’ offices (the way anti-abortion activists sometimes surround abortion clinics) trying to talk women out of their firm intention to give birth.

Reality is quite different: There is a strong demand for abortion services and always has been, back to the days when young women would come to the local potion-maker or hedge-witch looking for a miscarriage-inducing herb or tea. It is a fact of life that not every woman who gets pregnant wants to raise children at this point in her life, or maybe ever. [3] And even a family that is raising children already doesn’t necessary want to have more of them.

I can see the woman as a pure victim in some cases (say when a high school girl gets pregnant by one of her teachers, who then arranges the abortion for her and talks her into it), but in many cases an abortion is the result of a mature woman deciding what she wants to do with her life — a possibility that pro-life activists seem to ignore entirely.

Many, like Ertelt, claim she is likely to regret this decision. (An actual survey says 95% don’t.) But where else in our lives do conservatives argue that the government should stop us from making regrettable choices, or punish the people who help us carry them out? Quite the opposite: a basic tenet of conservative philosophy is that people should be free to make their own mistakes … in every case but this one.

Camosy’s argument is even more ad hoc. If the majority of pro-lifers felt this way, the political party where they have so much influence would be working on the issues he accuses the Roe v Wade court of ignoring: “equal pay for equal work … mandatory family leave and affordable child care … strict anti-discrimination laws in hiring practices.” In fact the exact opposite is true, and the Republican opposition to these proposals is not even controversial within the party. As soon as the topic shifts away from abortion, Republican concern about women making coerced choices vanishes.

Do they even believe it themselves? People who genuinely believe something don’t make ad hoc arguments; the things you really believe don’t wink in and out depending on the topic. So I have to wonder: Do pro-lifers themselves believe what they’re saying?

Fred Clark, a turncoat from the pro-life movement, says no. He quotes Dannenfelser’s response as an example of what he calls “the Standard Answer”, and then recalls his own experience.

I relied on the Standard Answer when I was a good, faithful pro-lifer. It made the question go away, just as it was meant to do. The Standard Answer worked very well for me until one day, suddenly, it didn’t.

It stopped working for me because, alas, I started listening to what I was saying.

That led to an “unsettling” realization.

I did not want my questioners to think that I wanted to see these women punished because I genuinely did not want to see them punished. At some basic level — some level at which I had not yet allowed myself to articulate my own thoughts to myself — I did not think that punishing these women would be good, fair, right, necessary or just. I thought punishing these women would be wrong.

Why would I think that? Well, that was the question that the Standard Answer was designed and employed to prevent me from ever asking of myself. …

I came to realize I was incapable of defending the central dogma of the anti-abortion religion my people had adopted as the central pillar of our faith — that a fertilized egg is morally and legally indistinct from a human child or a human adult. If that claim were defensible, then I would have no reason not to want to see those women punished and no reason not to try to convince others that they also should want to see those women punished.

Please note what I’m not saying here. I’m not saying I became incapable of believing this claim about the full personhood of the zygote, but that I became incapable of defending it. I’m not sure that anyone is ever capable of believing this claim. [4]

Anyone with functioning compassion understands what Clark realized: that it’s just wrong to punish a woman who sees no better path into the future than having an abortion. So if that’s where the logic of your position relentlessly leads, but you want to go on thinking of yourself as a good and decent person, you need to obfuscate that logic somehow — not just for other people, but for yourself.

That’s what the rest of us need to understand: When pro-lifers give the Standard Answer, they aren’t even trying to make sense; they’re trying to comfort themselves. They’re trying to minimize the cognitive dissonance that comes from advocating something harsh and heartless while claiming to be good Christian people.

Trump didn’t misstate the logic of their position, he just failed to include the comforting obfuscation they need. No wonder they got so upset.


[1] Of his statements checked by PolitiFact, only 8% are judged True or Mostly True, compared to 78% Mostly False, False, or Pants on Fire. By contrast, 51% of Hillary Clinton’s checked statements rate True or Mostly True, with only 28% Mostly False, False, or Pants on Fire. Bernie Sanders‘ split is similar: 51% to 29%.

[2] A lot of people will tell you that this position is Biblical, but it isn’t. In actual history, anti-abortion politics came first, and the justifying theology came later. None of the Bible passages ensoulment-at-conception people quote supports their position without a lot of interpretation, and many are simple taken out of context.

On the other hand, Genesis 2:7 states pretty clearly that the soul enters the body with the first breath:

And the Lord God made man of the dust of the ground, and breathed into his nostrils the breath of life, and man became a living soul.

That interpretation is reinforced by the fact that the words for breath and soul in Biblical Hebrew are very similar.

[3] In 2012, I described the role that legal abortion played in the choices my wife and I made in “What Abortion Means to Me“.

[4] I made a similar claim in the fifth of my “Five Take-Aways from the Komen Fiasco“.

The 2016 Stump Speeches: Bernie’s Epistle to the Falwellites

[This article is part of a series on the speeches of 2016 presidential candidates. A previous Bernie Sanders speech was discussed here.]

I finally got around to watching Bernie Sanders’ speech to the students at Liberty University on September 14. [video, transcript]. I wasn’t as impressed as I had expected to be.

The most impressive thing is that he was there at all. Presidential candidates usually only talk to audiences of their supporters, and when they go to foreign territory it is often only so that their supporters can see them talking tough to the opposition (like Mitt Romney’s speech to the NAACP in 2012). But I think Bernie went to the center Jerry Falwell’s empire in an honest attempt to make converts, or at least to show that he wasn’t the Devil. More candidates, on both sides of the political spectrum, should show their flags in hostile territory. I’d love to see Hillary Clinton explain her views to an NRA convention, or Donald Trump speak to La Raza.

For their part, the Liberty University people treated Sanders with respect. He got a generous introduction from President Falwell — Jerry’s son — the audience did not boo or heckle, and some Sanders’ supporters from outside the university community were allowed to attend.

Sanders made an attempt to speak his audience’s language. He quoted the Golden Rule from Jesus’ Sermon on the Mount. He quoted the verse from Amos that Martin Luther King often quoted, about justice rolling down like a river. And the rest of his speech was a litany structured around the phrase “There is no justice when …” that confronted the audience with the facts of income inequality in America.

I applaud him doing that. I think conservative Christians too often let themselves rationalize the economic process in America, without really confronting the results of that process.

But I think he made three mistakes. The first is that he gave a very traditional speech/sermon, standing at a podium with a printed text, speaking in the tone and cadence of a 19th-century orator who needs to make sure his voice carries to the back of the auditorium. Liberty University students are used to much higher production values than that. (Compare Ted Cruz’ announcement speech at the same venue, where he walks around the stage and speaks without notes, in a tone that suggests he is talking to each student individually.) Liberty is a place to give a TED talk, not a Cross of Gold speech.

Second, his message about income inequality is all statistics and no stories. As Stalin is supposed to have said, “One death is a tragedy, a million deaths is a statistic.” When I read the conversion stories of people raised in the Religious Right who subsequently leave that movement, it’s never a statistic that turns them around, it’s confronting the human reality of people that their theology has written off. (In Rachel Held Evans’ memoir Evolving in Monkey Town — I think I’ve got the right source, but my memory might have shifted the story from somewhere else — she tells about being on a mission trip to China, looking out the bus window and realizing that according to her theology, all those millions of people out there are going to Hell. It’s the first time that she realizes deep down that “the Damned” aren’t minions of the Devil, they’re mostly just people trying to live their lives as best they can.)

Similarly, what I would want to get across to the Liberty students is the human reality of poverty in America, the fact that many poor people are already doing the best they can, and that they don’t need a lecture about values and character, they need help. That is best communicated in stories. Then you can bring in statistics and argue that they need help on a scale that individual charity can’t give, a scale that nothing but government is big enough to provide.

And only then should you reach beyond the giving-help idea, and ask why our system produces so many people who need so much help. Could we organize society differently, so that more people could succeed with less help?

Finally, while I give him credit for submitting to a Q&A at the end, he didn’t seem very well prepared for the obvious question: Why does he talk so much about protecting our society’s children, but not want the government to protect the unborn?

What he says is not bad as far as it goes: He points out the inconsistency of wanting a small government that will stay out of people’s personal lives, but also wanting that government to regulate pregnancy. But that attack on the conservative position doesn’t defend the consistency of his own views. He also doesn’t confront the question on the religious/political grounds from which it came.

Here’s what I would say: Our society and our laws recognize that something makes a human life different than an animal life, so that killing a human is murder, while killing a cow or pig is just agriculture. That difference is not something you can point to on an ultrasound — that humans have hearts or feel pain — because animals have all the same organs and suffer just like we do. For most of a pregnancy, most of us would be hard pressed to tell the difference between an ultrasound of a human fetus and a chimpanzee fetus.

Religions talk about this ineffable something as a soul, but throughout history religions have had different teachings about when the soul enters the body. Jesus doesn’t talk about the issue in any records we have, but in his day just about everyone believed the soul entered the body at the quickening, the time when a woman first feels her fetus move in the womb. Some religious leaders have taught it happened later, even as late as the first breath, as the Bible describes in Genesis 2:7. More recently, many denominations have begun to teach that the soul enters the body at conception.

A basic American principle that goes back to the Founders is that the federal government should not be adjudicating theological disputes, or taking the side of one sect against another. This is a principle whose value I think we can all see, because as satisfying as it might feel sometimes to imagine the government imposing our theology on everyone else, it would be so much worse to have the government impose somebody else’s theology on us.

That’s why I believe decisions about abortion should be made not by legislators or bureaucrats, but by individual women and their families, in consultation with the medical and spiritual advisers they choose.

Not a Tea Party, a Confederate Party

Tea Partiers say you don’t understand them because you don’t understand American history. That’s probably true, but not in the way they want you to think.


Late in 2012, I came out of the Lincoln movie with two historical mysteries to solve:

  • How did the two parties switch places regarding the South, white supremacy, and civil rights? In Lincoln’s day, a radical Republican was an abolitionist, and when blacks did get the vote, they almost unanimously voted Republican. Today, the archetypal Republican is a Southern white, and blacks are almost all Democrats. How did American politics get from there to here?
  • One of the movie’s themes was how heavily the war’s continuing carnage weighed on Lincoln. (It particularly came through during Grant’s guided tour of the Richmond battlefield.) Could any cause, however lofty, justify this incredible slaughter? And yet, I realized, Lincoln was winning. What must the Confederate leaders have been thinking, as an even larger percentage of their citizens died, as their cities burned, and as the accumulated wealth of generations crumbled? Where was their urge to end this on any terms, rather than wait for complete destruction?

The first question took some work, but yielded readily to patient googling. I wrote up the answer in “A Short History of White Racism in the Two-Party System“. The second turned out to be much deeper than I expected, and set off a reading project that has eaten an enormous amount of my time over the last two years. (Chunks of that research have shown up in posts like “Slavery Lasted Until Pearl Harbor“, “Cliven Bundy and the Klan Komplex“, and my review of Ta-Nehisi Coates’ article on reparations.) Along the way, I came to see how I (along with just about everyone I know) have misunderstood large chunks of American history, and how that misunderstanding clouds our perception of what is happening today.

Who really won the Civil War? The first hint at how deep the second mystery ran came from the biography Jefferson Davis: American by William J. Cooper. In 1865, not only was Davis not agonizing over how to end the destruction, he wanted to keep it going longer. He disapproved of Lee’s surrender at Appomattox, and when U. S. troops finally captured him, he was on his way to Texas, where an intact army might continue the war.

That sounded crazy until I read about Reconstruction. In my high school history class, Reconstruction was a mysterious blank period between Lincoln’s assassination and Edison’s light bulb. Congress impeached Andrew Johnson for some reason, the transcontinental railroad got built, corruption scandals engulfed the Grant administration, and Custer lost at Little Big Horn. But none of it seemed to have much to do with present-day events.

And oh, those blacks Lincoln emancipated? Except for Booker T. Washington and George Washington Carver, they vanished like the Lost Tribes of Israel. They wouldn’t re-enter history until the 1950s, when for some reason they still weren’t free.

Here’s what my teachers’ should have told me: “Reconstruction was the second phase of the Civil War. It lasted until 1877, when the Confederates won.” I think that would have gotten my attention.

It wasn’t just that Confederates wanted to continue the war. They did continue it, and they ultimately prevailed. They weren’t crazy, they were just stubborn.

The Lost Cause. At about the same time my American history class was leaving a blank spot after 1865, I saw Gone With the Wind, which started filling it in like this: Sadly, the childlike blacks weren’t ready for freedom and full citizenship. Without the discipline of their white masters, many became drunks and criminals, and they raped a lot of white women. Northern carpetbaggers used them (and no-account white scalawags) as puppets to control the South, and to punish the planter aristocrats, who prior to the war had risen to the top of Southern society through their innate superiority and virtue.

But eventually the good men of the South could take it no longer, so they formed the Ku Klux Klan to protect themselves and their communities. They were never able to restore the genteel antebellum society — that Eden was gone with the wind, a noble but ultimately lost cause — but they were eventually able to regain the South’s honor and independence. Along the way, they relieved their beloved black servants of the onerous burden of political equality, until such time as they might become mature enough to bear it responsibly.

A still from The Birth of a Nation

That telling of history is now named for its primary proponent, William Dunning. It is false in almost every detail. If history is written by the winners, Dunning’s history is the clearest evidence that the Confederates won. [see endnote 1]

Margaret Mitchell’s 1936 novel had actually toned it down a little. To feel the full impact of Dunning-school history, you need to read Thomas Dixon’s 1905 best-seller, The Clansman: a historical romance of the Ku Klux Klan. Or watch the 1915 silent movie made from it, The Birth of a Nation, which was the most popular film of all time until Gone With the Wind broke its records.

The iconic hooded Klansman on his horse, the Knight of the Invisible Empire, was the Luke Skywalker of his day.

The first modern war. The Civil War was easy to misunderstand at the time, because there had never been anything like it. It was a total mobilization of society, the kind Europe wouldn’t see until World War I. The Civil War was fought not just with cannons and bayonets, but with railroads and factories and an income tax.

If the Napoleonic Wars were your model, then it was obvious that the Confederacy lost in 1865: Its capital fell, its commander surrendered, its president was jailed, and its territories were occupied by the opposing army. If that’s not defeat, what is?

But now we have a better model than Napoleon: Iraq.

After the U.S. forces won on the battlefield in 1865 and shattered the organized Confederate military, the veterans of that shattered army formed a terrorist insurgency that carried on a campaign of fire and assassination throughout the South until President Hayes agreed to withdraw the occupying U. S. troops in 1877. Before and after 1877, the insurgents used lynchings and occasional pitched battles to terrorize those portions of the electorate still loyal to the United States. In this way they took charge of the machinery of state government, and then rewrote the state constitutions to reverse the postwar changes and restore the supremacy of the class that led the Confederate states into war in the first place. [2]

By the time it was all over, the planter aristocrats were back in control, and the three constitutional amendments that supposedly had codified the U.S.A’s victory over the C.S.A.– the 13th, 14th, and 15th — had been effectively nullified in every Confederate state. The Civil Rights Acts had been gutted by the Supreme Court, and were all but forgotten by the time similar proposals resurfaced in the 1960s. Blacks were once again forced into hard labor for subsistence wages, denied the right to vote, and denied the equal protection of the laws. Tens of thousands of them were still physically shackled and subject to being whipped, a story historian Douglas Blackmon told in his Pulitzer-winning Slavery By Another Name.

So Lincoln and Grant may have had their mission-accomplished moment, but ultimately the Confederates won. The real Civil War — the one that stretched from 1861 to 1877 — was the first war the United States lost.

The missed opportunity. Today, historians like Eric Foner and Douglas Egerton portray Reconstruction as a missed opportunity to avoid Jim Crow and start trying to heal the wounds of slavery a century sooner. Following W.E.B. DuBois’ iconoclastic-for-1935 Black Reconstruction, they see the freedmen as actors in their own history, rather than mere pawns or victims of whites. As a majority in Mississippi and South Carolina, and a substantial voting bloc across the South, blacks briefly used the democratic system to try to better their lot. If the federal government had protected the political process from white terrorism, black (and American) history could have taken an entirely different path.

In particular, 1865 was a moment when reparations and land reform were actually feasible. Late in the war, some of Lincoln’s generals — notably Sherman — had mitigated their slave-refugee problem by letting emancipated slaves farm small plots on the plantations that had been abandoned by their Confederate owners. Sick or injured animals unable to advance with the Army were left behind for the slaves to nurse back to health and use. (Hence “forty acres and a mule”.) Sherman’s example might have become a land-reform model for the entire Confederacy, dispossessing the slave-owning aristocrats in favor of the people whose unpaid labor had created their wealth.

Instead, President Johnson (himself a former slave-owner from Tennessee) was quick to pardon the aristocrats and restore their lands. [3] That created a dynamic that has been with us ever since: Early in Reconstruction, white and black working people sometimes made common cause against their common enemies in the aristocracy. But once it became clear that the upper classes were going to keep their ill-gotten holdings, freedmen and working-class whites were left to wrestle over the remaining slivers of the pie. Before long, whites who owned little land and had never owned slaves had become the shock troops of the planters’ bid to restore white supremacy.

Along the way, the planters created rhetoric you still hear today: The blacks were lazy and would rather wait for gifts from the government than work (in conditions very similar to slavery). In this way, the idle planters were able to paint the freedmen as parasites who wanted to live off the hard work of others.

The larger pattern. But the enduring Confederate influence on American politics goes far beyond a few rhetorical tropes. The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

That worldview is alive and well. During last fall’s government shutdown and threatened debt-ceiling crisis, historian Garry Wills wrote about our present-day Tea Partiers: “The presiding spirit of this neo-secessionism is a resistance to majority rule.”

The Confederate sees a divinely ordained way things are supposed to be, and defends it at all costs. No process, no matter how orderly or democratic, can justify fundamental change.

When in the majority, Confederates protect the established order through democracy. If they are not in the majority, but have power, they protect it through the authority of law. If the law is against them, but they have social standing, they create shams of law, which are kept in place through the power of social disapproval. If disapproval is not enough, they keep the wrong people from claiming their legal rights by the threat of ostracism and economic retribution. If that is not intimidating enough, there are physical threats, then beatings and fires, and, if that fails, murder.

That was the victory plan of Reconstruction. Black equality under the law was guaranteed by the 14th Amendment. But in the Confederate mind, no democratic process could legitimate such a change in the social order. It simply could not be allowed to stand, and it did not stand.

In the 20th century, the Confederate pattern of resistance was repeated against the Civil Rights movement. And though we like to claim that Martin Luther King won, in many ways he did not. School desegregation, for example, was never viewed as legitimate, and was resisted at every level. And it has been overcome. By most measures, schools are as segregated as ever, and the opportunities in white schools still far exceed the opportunities in non-white schools.

Today, ObamaCare cannot be accepted. No matter that it was passed by Congress, signed by the President, found constitutional by the Supreme Court, and ratified by the people when they re-elected President Obama. It cannot be allowed to stand, and so the tactics for destroying it get ever more extreme. The point of violence has not yet been reached, but the resistance is still young.

Violence is a key component of the present-day strategy against abortion rights, as Judge Myron Thompson’s recent ruling makes clear. Legal, political, social, economic, and violent methods of resistance mesh seamlessly. The Alabama legislature cannot ban abortion clinics directly, so it creates reasonable-sounding regulations the clinics cannot satisfy, like the requirement that abortionists have admitting privileges at local hospitals. Why can’t they fulfill that requirement? Because hospitals impose the reasonable-sounding rule that their doctors live and practice nearby, while many Alabama abortionists live out of state. The clinics can’t replace them with local doctors, because protesters will harass the those doctors’ non-abortion patients and drive the doctors out of any business but abortion. A doctor who chooses that path will face threats to his/her home and family. And doctors who ignore such threats have been murdered.

Legislators, of course, express horror at the murder of doctors, just as the pillars of 1960s Mississippi society expressed horror at the Mississippi Burning murders, and the planter aristocrats shook their heads sadly at the brutality of the KKK and the White Leagues. But the strategy is all of a piece and always has been. Change cannot stand, no matter what documents it is based on or who votes for them. If violence is necessary, so be it.

Unbalanced. This is not a universal, both-sides-do-it phenomenon. Compare, for example, the responses to the elections of our last two presidents. Like many liberals, I will go to my grave believing that if every person who went to the polls in 2000 had succeeded in casting the vote s/he intended, George W. Bush would never have been president. I supported Gore in taking his case to the courts. And, like Gore, once the Supreme Court ruled in Bush’s favor — incorrectly, in my opinion — I dropped the issue.

For liberals, the Supreme Court was the end of the line. Any further effort to replace Bush would have been even less legitimate than his victory. Subsequently, Democrats rallied around President Bush after 9/11, and I don’t recall anyone suggesting that military officers refuse his orders on the grounds that he was not a legitimate president.

Barack Obama, by contrast, won a huge landslide in 2008, getting more votes than any president in history. And yet, his legitimacy has been questioned ever since. The Birther movement was created out of whole cloth, there never having been any reason to doubt the circumstances of Obama’s birth. Outrageous conspiracy theories of voter fraud — millions and millions of votes worth — have been entertained on no basis whatsoever. Immediately after Obama took office, the Oath Keeper movement prepared itself to refuse his orders.

A black president calling for change, who owes most of his margin to black voters — he himself is a violation of the established order. His legitimacy cannot be conceded.

Confederates need guns. The South is a place, but the Confederacy is a worldview. To this day, that worldview is strongest in the South, but it can be found all over the country (as are other products of Southern culture, like NASCAR and country music). A state as far north as Maine has a Tea Party governor.

Gun ownership is sometimes viewed as a part of Southern culture, but more than that, it plays a irreplaceable role in the Confederate worldview. Tea Partiers will tell you that the Second Amendment is our protection against “tyranny”. But in practice tyranny simply means a change in the established social order, even if that change happens — maybe especially if it happens — through the democratic processes defined in the Constitution. If the established social order cannot be defended by votes and laws, then it will be defended by intimidation and violence. How are We the People going to shoot abortion doctors and civil rights activists if we don’t have guns?

Occasionally this point becomes explicit, as when Nevada Senate candidate Sharron Angle said this:

You know, our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. And in fact Thomas Jefferson said it’s good for a country to have a revolution every 20 years. I hope that’s not where we’re going, but, you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying my goodness what can we do to turn this country around? I’ll tell you the first thing we need to do is take Harry Reid out.

Angle wasn’t talking about anything more “tyrannical” than our elected representatives voting for things she didn’t like (like ObamaCare or stimulus spending). If her side can’t fix that through elections, well then, the people who do win those elections will just have to be intimidated or killed. Angle doesn’t want it to come to that, but if liberals won’t yield peacefully to the conservative minority, what other choice is there?

Gun-rights activist Larry Pratt doesn’t even seem regretful:

“The Second Amendment is not for hunting, it’s not even for self-defense,” Pratt explained in his Leadership Institute talk. Rather, it is “for restraining tyrannical tendencies in government. Especially those in the liberal, tyrannical end of the spectrum. There is some restraint, and even if the voters of Brooklyn don’t hold them back, it may be there are other ways that their impulses are somewhat restrained. That’s the whole idea of the Second Amendment.”

So the Second Amendment is there not to defend democracy, but to fix what the progressive “voters of Brooklyn” get wrong.

It’s not a Tea Party. The Boston Tea Party protest was aimed at a Parliament where the colonists had no representation, and at an appointed governor who did not have to answer to the people he ruled. Today’s Tea Party faces a completely different problem: how a shrinking conservative minority can keep change at bay in spite of the democratic processes defined in the Constitution. That’s why they need guns. That’s why they need to keep the wrong people from voting in their full numbers.

These right-wing extremists have misappropriated the Boston patriots and the Philadelphia founders because their true ancestors — Jefferson Davis and the Confederates — are in poor repute. [4]

But the veneer of Bostonian rebellion easily scrapes off; the tea bags and tricorn hats are just props. The symbol Tea Partiers actually revere is the Confederate battle flag. Let a group of right-wingers ramble for any length of time, and you will soon hear that slavery wasn’t really so bad, that Andrew Johnson was right, that Lincoln shouldn’t have fought the war, that states have the rights of nullification and secession, that the war wasn’t really about slavery anyway, and a lot of other Confederate mythology that (until recently) had left me asking, “Why are we talking about this?”

By contrast, the concerns of the Massachusetts Bay Colony and its revolutionary Sons of Liberty are never so close to the surface. So no. It’s not a Tea Party. It’s a Confederate Party.

Our modern Confederates are quick to tell the rest of us that we don’t understand them because we don’t know our American history. And they’re right. If you knew more American history, you would realize just how dangerous these people are.



Endnotes

[1] The other clear evidence stands in front of nearly every courthouse in the South: statues of Confederate heroes. You have to be blind not to recognize them as victory monuments. In the Jim Crow era, these stone sentries guarded the centers of civic power against Negroes foolish enough to try to register to vote or claim their other constitutional rights.

Calhoun way up high

In Away Down South: a history of Southern identity, James C. Cobb elaborates:

African Americans understood full well what monuments to the antebellum white regime were all about. When Charleston officials erected a statue of proslavery champion John C. Calhoun, “blacks took that statue personally,” Mamie Garvin Fields recalled. After all, “here was Calhoun looking you in the face and telling you, ‘Nigger, you may not be a slave but I’m back to see you stay in your places.’ ” In response, Fields explained, “we used to carry something with us, if we knew we would be passing that way, in order to deface that statue — scratch up the coat, break up the watch chain, try to knock off the nose. … [C]hildren and adults beat up John C. Calhoun so badly that the whites had to come back and put him way up high, so we couldn’t get to him.”

[2] The vocabulary of this struggle is illuminating. A carpetbagger was a no-account Northerner who arrived in the South with nothing more than the contents of a carpetbag. A scalawag was a lower-class Southern white who tried to rise above his betters in the post-war chaos. The class-based nature of these insults demonstrates who was authorizing this history: the planter aristocrats.

For a defense of the claim that the aristocrats intentionally led the South into war, see Douglas Egerton’s Year of Meteors: Stephen Douglas, Abraham Lincoln, and the Election that Brought on the Civil War.

[3] Though Congress had to find other “high crimes and misdemeanors” for their bill of impeachment, Johnson’s betrayal of the United States’ battlefield victory was the real basis of the attempt to remove him.

[4] Jefferson Davis and the Confederates also misappropriated the Founders. It started with John Calhoun’s Discourse on the Constitution and Government of the United States, published posthumously in 1851, which completely misrepresented the Founders and their Constitution. Calhoun’s view (that the Union was a consortium of states with no direct relationship to the people) would have made perfect sense if the Constitution had begun “We the States” rather than “We the People”.

Calhoun disagreed with Jefferson on one key point: All men are not created equal.

Modern conservatives who attribute their views to the Founders are usually unknowingly relying on Calhoun’s false image of the Founders, which was passed down through Davis and from there spread widely in Confederate folklore.

There’s Something About Todd

I strongly advise you not to read this post. Your browser has a Back button. Use it.


I don’t know what it is about Todd Akin.

The whole point of the Weekly Sift is to filter the junk and hype out of the news so that you only read stuff that is worth your attention. But success in that venture depends on my ability to leave something alone once I’ve determined that it’s not worth either your time or mine.

Todd Akin is not worth your time or mine. So you shouldn’t read this post and I certainly shouldn’t be writing it. And yet, I can’t seem to ignore him. I suppose it’s that infuriating combination of ignorance, self-righteousness, and self-assurance. So many intelligent, thoughtful people could be interviewed on TV, but aren’t. And yet, there’s Todd Akin, displayed in my living room! And why am I writing about him? I’m just making it worse.

But I can’t stop myself, so let’s get this over with: In interviews promoting his new book — which I refuse to link to; I still have that much control — he says he knows what he did wrong in his “legitimate rape” interview: It was just a bad choice of words. He should have said “legitimate case of rape” instead, because then the liberal media couldn’t have slandered him by making it sound like he thought a rape could be legitimate.

Let’s plug that into the transcript and see how it plays:

CHARLES JACO: So if an abortion can be considered in the case of, say, a tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?

REP. TODD AKIN: Well, you know, people always want to try and make that as one of those things: “Well, how do you—how do you slice this particularly tough sort of ethical question?” It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate [case of] rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. You know, I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.

Well, the insensitivity is unchanged: Raped women aren’t real people who deserve our compassion, they’re just a “tough sort of ethical question” that tricky interviewers use to try to trip Akin up — like “Can God make a rock so big He can’t lift it?” or something. And after this tough question gets sorted out by the higher mind, it really just comes down to who to punish — the rapist or the fetus. The woman is a bystander.

The junk science about female physiology is still there; two years later, and he still hasn’t educated himself. And he’s still implying that only violent rape really counts. (What about roofies? Even in Akin’s alternate universe, would an unconscious woman’s body “shut that whole thing down”?)

Most importantly, he’s still saying that women who claim they got pregnant from a rape are probably lying, because “that’s really rare” in “a legitimate [case of] rape”.

So no, I don’t think he fixed anything.

Here’s what’s reprehensible about Todd Akin, and it’s got nothing to do with his choice of words: Even given two years to think about it, he still believes in a legal system in which rape is a viable male reproductive strategy. (They’ll put you in jail if they catch you — and if the woman can prove she didn’t consent — but the law will force your victims to bear your children, so your genes will live on.) He believes in that system so strongly that he’s willing to seek out junk science to justify it.

I’m going to stop writing now. To everyone who made it this far: I’m sorry. I really am. Try to do something more worthwhile with the rest of your day.

How Threatening is the Hobby Lobby Decision?

The Court’s five male Catholic justices outvoted its three Jews and lone female Catholic. Is that a problem?


It is easy to be confused by the commentary on the Supreme Court’s 5-4 ruling that Hobby Lobby and Conestoga are exempt from the contraception mandate of the Affordable Care Act. The ruling, say some, is narrow; it will affect only a handful of business-owners in a more-or-less identical situation, and their female workers’ coverage will not suffer. No, say others, the consequences of the ruling are sweeping; it puts all workers’ health coverage at the mercy of whatever religions their employers’ corporations decide to adopt, and could have further consequences unrelated to healthcare.

Each of those views is right in its way. Justice Alito’s majority opinion emphasizes its limitations; cases that seem analogous, he says several times, may turn out differently. An important point in Alito’s argument is that the government might easily achieve its purpose — covering contraceptive care for women whose employers have religious objections — by pushing the small expense of the coverage back on the insurance companies, as it already does for some religious organizations like churches, hospitals, and colleges. Such a simple fix is probably unavailable if companies object to covering vaccines or blood transfusions, much less seeking exemptions from civil rights laws.

But Justice Ginsberg was not comforted by Alito’s assurances of what may or might happen. Analogous cases may turn out differently, but they might not. Countless numbers of them will work their way through the system for years to come, creating unnecessary chaos as lower courts explore the consequences of Alito’s new interpretations of religious liberty and corporate law.

And who knows? The Court has committed itself to nothing, so maybe those cases will lead to new sweeping rulings by the Court’s increasingly activist conservative (and male Catholic) majority. The government’s “easy” fix to the contraception mandate is itself challenged in a case that the Court will probably hear next year; immediately after the Hobby Lobby ruling, the Court issued an emergency order demonstrating that it takes that case seriously.

What does the ruling say? Here’s the full opinion of the Court — Alito’s 49-page ruling and Ginsberg’s 35-page dissent, plus a few paragraphs from other justices. Law professor Eugene Volokh summarized Alito’s ruling in 900 words, and Ezra Klein got it down to three sentences:

  1. A federal law called the Religious Freedom Restoration Act was written to protect individuals’ religious freedoms — and on Thursday, the Supreme Court ruled that, under RFRA, corporations count as people: their religious freedoms also get protection.

  2. The requirement to cover contraception violated RFRA because it mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”

  3. If the federal government wanted to increase access to birth control — which they argued was the point of this requirement — the Court thinks it could do it in ways that didn’t violate religious freedom, like taking on the task of distributing contraceptives itself.

Alito clearly thinks (or wants us to think) that his ruling is narrowly targeted:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

But Ginsberg’s dissent begins:

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

And later she explains:

Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private. Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.

Ginsberg sees four dangerous new principles in Alito’s ruling:

  • Originally, the Religious Freedom Restoration Act of 1993 was meant to restore an interpretation of the First Amendment’s free-exercise clause that the Supreme Court backed away from in 1990. Alito has cut the RFRA loose from history of First Amendment interpretation, giving future Courts broad license to expand the notion of religious liberty.
  • Alito has granted RFRA rights to for-profit corporations, extending the legal fiction of corporate personhood into a previously unexplored realm, and blowing away the long-observed distinction between for-profit corporations and specifically religious organizations (like churches) created to serve their members.
  • The meaning of a “substantial burden” on religious liberty has been significantly weakened and made subjective.
  • The “corporate veil” — the legal separation between corporations and their shareholders — has been turned into a one-way gate. The rights of the shareholders now flow through to the corporation, but the debts, crimes, and responsibilities of the corporation still don’t flow back to the shareholders.

Let’s take those one by one.

The RFRA goes beyond any previous history of First Amendment interpretation.

For decades, the Court applied what it called the Sherbert test to First Amendment, religious-liberty-infringement cases: A law could require a person to violate his/her religion — say, by working on the Sabbath — only if the law was the least restrictive way to achieve a compelling government interest. But in 1990 it backed away from that principle in the Smith decision: If a law had a larger purpose and didn’t specifically target a religion, it didn’t have to be quite so accommodating.

Congress then passed the Religious Freedom Restoration Act to reinstate the Sherbert Test by statute. That’s what the law says and that’s how it has been interpreted. But you can’t justify the Hobby Lobby decision from the pre-Smith precedents, because you run into the 1982 Lee decision, concerning whether an Amish employer had to pay Social Security taxes:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.

Alito doesn’t answer Lee, he just blows it away:

By enacting RFRA, Congress went far beyond what this Court has held is constitutionally required.

In other words, in spite of its name the RFRA doesn’t “restore” anything; it’s a revolutionary assertion of new religious rights unrelated to the First Amendment. How far do those new rights go? Alito doesn’t say. A more detailed analysis of this issue is in Slate. Daily Kos’ Armando has an interesting response: If the RFRA really does mean what Alito claims, then the RFRA itself is an unconstitutional establishment of religion.

The RFRA extends to for-profit corporations.

The RFRA uses the word person and doesn’t define it, so Alito argues that the definition must come from the Dictionary Act of 1871, which says

the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.

Worship of Mammon

(If the Dictionary Act rings a bell in your head, here’s where you’ve heard of it before: The way the Defense of Marriage Act affected thousands of laws in one swoop was by amending the Dictionary Act’s definition of marriage.) But Ginsberg points out that the Dictionary Act “controls only where context does not indicate otherwise.” Since “the exercise of religion is characteristic of natural persons, not artificial legal entities” the context of a law concerning the exercise of religion already excludes corporations.

Alito wants to claim his ruling only applies to “closely-held corporations”, but that’s not what the Dictionary Act says. If Bank of America wants to admit that it worships Mammon — a religion at least as old and popular as Christianity — it can claim free-exercise rights.

Alito’s reasoning has already had one very unintended consequence: A Guantanamo detainee was previously denied protection of the RFRA, because a court decided that the meaning of “person” in his case was not the Dictionary Act definition. Now that the Supreme Court has gone on record saying the “person” in the RFRA has the Dictionary Act meaning, he is claiming his case should be re-considered.

The meaning of “substantial burden” was weakened.

ObamaCare didn’t require the owners of Hobby Lobby to use, manufacture, distribute, or even necessarily buy contraceptives. They were merely required to provide health insurance that would cover contraceptives if the employees decided to use them. If Hobby Lobby employees agreed with the owners’ scruples, no violation of those scruples would take place.

Ginsberg did not find this burden “substantial”.

It is doubtful that Congress, when it specified that burdens must be “substantial,” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.

But Alito did:

The belief of the Hahns and Greens implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.

But surely any clever person can find a link of some sort between whatever they don’t want to do and the commission of some act they consider immoral by someone else. Alito is encouraging Christians to develop hyper-sensitive consciences that will then allow them to control or mistreat others in the name of religious liberty, a pattern I described last summer in “Religious ‘Freedom’ Means Christian Passive-Aggressive Domination“.

I focus on Christians here for a very good reason: Given that this principle will produce complete anarchy if generally applied, it won’t be generally applied. Contrary to Alito’s assertion, judges will have to decide whether the chains of moral logic people assert are reasonable or not. For example, elsewhere in his opinion he brushes off the objection that corporations will claim religious benefits to increase their profits:

To qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.

But how would it fail, if “it is not for the Court to say” whether asserted religious beliefs are unreasonable? If Randism is repackaged as a free-market-worshipping religion, won’t any regulation infringe on it? Who could claim that Koch Industries is “insincere” in its Randism?

In practice, a belief will seem reasonable if a judge agrees with it. That’s what happened in this case: Five male Catholic judges ruled that Catholic moral principles trump women’s rights. Three Jews and a female Catholic disagreed.

The nature of corporations was re-imagined.

Ginsberg:

By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations. One might ask why the separation should hold only when it serves the interest of those who control the corporation.

Alito brushes away this separateness:

A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.

Alito waves his hand at employees, but his ruling only applies to owners, i.e., rich people. So in Alito’s reading of corporate law, corporations protect rich people’s rights while shielding them from responsibilities. It is a way to write inequality into the law.

friend-of-the-court brief written by “forty-four law professors whose research and teaching focus primarily on corporate and securities law and criminal law as applied to corporations” says Alito’s “established body of law” doesn’t work the way he says, and that making it work that way will open “a Pandora’s box”.

The first principle of corporate law is that for-profit corporations are entities that possess legal interests and a legal identity of their own—one separate and distinct from their shareholders. … [T]he most compelling reasons for a small business to incorporate is so that its shareholders can acquire the protection of the corporate veil. … Allowing a corporation, through either shareholder vote or board resolution, to take on and assert the religious beliefs of its shareholders in order to avoid having to comply with a generally-applicable law with a secular purpose is fundamentally at odds with the entire concept of incorporation. Creating such an unprecedented and idiosyncratic tear in the corporate veil would also carry with it unintended consequences, many of which are not easily foreseen.

The brief spells out some of the foreseeable consequences: battles between shareholders (perhaps spilling into court) about a corporation’s religious identity, weakening of the shareholders’ shielding against the debts and/or crimes of the corporation, corporations whose religious identities exempt them from certain laws might obtain advantages over their competitors, minority shareholders might sue a management that refused to take on an advantageous religious identity (because it failed to maximize profit), and many more. They conclude:

Rather than open up such a Pandora’s box, the Court should simply follow well-established principles of corporate law and hold that a corporation cannot, through the expedient of a shareholder vote or a board resolution, take on the religious identity of its shareholders.

Conclusion: The Box is Open.

More cases are already in the pipeline, cases that object to all forms of contraception, not just the four Hobby Lobby’s owners view as abortion-causing. One objects to paying for “related education and counseling”, so even seeing your doctor to discuss contraceptive options might be out. Religious employers are already asking to be exempt from rules about hiring gays and lesbians. Photographers and bakers want to be free to reject same-sex marriage clients. Beyond that, who can say what plans are being hatched in religious-right think tanks or corporate law offices?

The Court did not endorse these claims in advance, but it laid out sweeping new principles and did not provide any tests to limit them.

 

The Filibuster and the War on Women

The abuse of the filibuster is a hard issue to get people excited about. It’s one of those technical political things that takes too long to explain and is hard to connect to problems voters care about.

This week, making those connections was a little easier. If you care about a woman’s right to decide whether she gets pregnant or has a baby, the connection to the filibuster was all too clear. Here are three of this week’s big stories:

  • Senator John Cornyn threatened to filibuster anyone President Obama nominates to the D. C. federal appeals court. He’s not making objections to the specific judges Obama has picked, he’s arguing that Obama shouldn’t be allowed to make any picks at all. The court’s current 4-4 conservative/liberal balance should be locked in, no matter how many elections Democrats win.
  • That same court issued a temporary injunction to suspend ObamaCare’s contraception mandate for certain firms, in anticipation of a permanent ruling that employers’ religious freedom gives them power over employees’ health decisions. The judge who wrote the majority opinion is a radical conservative that Democrats tried to block when President Bush nominated her, but they had to back down when Republicans threatened the “nuclear option” to eliminate the filibuster permanently.
  • Another judge from that same batch of Bush appointees lifted a lower-court injunction against a Texas anti-abortion law that (among other restrictions) instantly closes about 1/3 of Texas abortion clinics, leaving large areas of the state without abortion services, again in anticipation of the law’s ultimate approval.

Let’s take those one at a time.

Filibuster abuse and the D. C. court. Wikipedia describes the federal appeals court for the District of Columbia circuit like this:

While it has the smallest geographic jurisdiction of any of the United States courts of appeals, the D.C. Circuit, with eleven active judgeships, is arguably the most important inferior appellate court. The court is given the responsibility of directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government based in the national capital, often without prior hearing by a district court. Aside from the agencies whose statutes explicitly direct review by the D.C. Circuit, the court typically hears cases from other agencies under the more general jurisdiction granted to the Courts of Appeals under the Administrative Procedure Act. Given the broad areas over which federal agencies have power, this often gives the judges of the D.C. Circuit a central role in affecting national U.S. policy and law.

A judgeship on the D.C. Circuit is often thought of as a stepping-stone for appointment to the Supreme Court.

The court has 11 active judgeSHIPs, but only 8 active judges. (It had only 7 — and a 4-3 conservative majority — until Obama finally got his first pick approved in May. It also has six semi-retired senior judges. If you count them, the court has a 9-5 conservative majority.) That’s because there are three vacancies. The Constitution (Article II, Section 2) specifies how those vacancies should be filled:

The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for

The filibuster is a historical accident. The Founders didn’t envision it, and although an 1806 rule change made filibusters possible, the first one didn’t happen until 1837. They were rare until the 1970s, and truly skyrocketed when the Republicans became the Senate minority after the 2006 election.

Filibusters of presidential nominations were rare until the Clinton administration, and then Democrats retaliated during the Bush years. But even then, the justification for a filibuster was always some alleged problem with the individual nominee. (Bush nominee Janice Rogers Brown, for example, was filibustered for a history of inflammatory decisions, having once written of Social Security: “Today’s senior citizens blithely cannibalize their grandchildren because they have the right to get as much ‘free’ stuff as the political system will permit them to extract.”)

What’s new in the Obama years is the use of the filibuster to nullify a federal office by refusing to approve anyone to head it, regardless of character or qualifications. Until Senate Democrats threatened to invoke the so-called nuclear option in July, Republicans were on track to invalidate the entire National Labor Relations Board, essentially nullifying all laws protecting workers’ rights to organize unions and bargain collectively in good faith.

Cornyn proposes an extension of this unprecedented tactic: using the filibuster to nullify the three vacancies on the D. C. court, ostensibly because the court’s case load doesn’t require 11 judges. (He wasn’t bothered by an even lower case load when Bush appointed Rogers.)

If over-staffing of the D.C. court is indeed a problem (and not just a pretext to stave off a liberal majority), the Constitution provides a way to solve it in Article I, Section 8:

The Congress shall have Power … To constitute Tribunals inferior to the supreme Court

In other words, Congress could pass a law shrinking the D. C. court, if that were really a problem. But legislation requires a majority vote in both houses and the signature of the President, which Cornyn can’t get because his party can’t win national elections.

This is what the filibuster has become: not just a way to block new laws or objectionable appointments, but a way for a minority to repeal legislation already passed or to achieve its goals without passing laws at all.

Who needs to win elections?

The contraception mandate. Thursday, the previously mentioned Janice Rogers Brown (of Social-Security-is-cannibalism fame) was the deciding vote in a 2-1 decision by the D. C. appeals court to grant an injunction blocking enforcement of ObamaCare’s contraception mandate on a business owned by two Catholic brothers. The ruling isn’t a final decision in the case, but it reads like one, because one key consideration in granting such an injunction is a belief that the injunction-seeking side is likely to prevail.

Fortunately, Rogers stopped short of declaring that corporations are protected by the First Amendment’s free-exercise-of-religion clause, which would have produced true chaos. But the 400-employee company is owned by two brothers who claim to operate according to Catholic principles (i.e., having pro-life bumper stickers on their trucks), so the brothers’ religious freedom is violated by the requirement that they provide contraception coverage to their female employees.

I’ve stated my position on this issue at length before: I believe these claims of “religious freedom” are actually passive aggression, stretching claims of one’s own moral purity to ridiculous lengths in order to control the behavior of others. I was pleased to see many of my own favorite arguments show up in the dissenting opinion of  Senior Judge Harry Edwards (the only Democratic appointee among the senior judges) (I’m not claiming Edwards reads the Sift or that the arguments are original to me):

It has been well understood since the founding of our nation that legislative restrictions may trump religious exercise. Braunfeld v. Brown, 366 U.S. 599, 603 (1961). Were it otherwise, “professed doctrines of religious belief [would be] superior to the law of the land, and in effect permit every citizen to become a law unto himself.”

and illustrates the point with an example Sift readers will recognize:

A Christian Scientist, whose religion has historically opposed conventional medical treatment, might claim that his corporation is entitled to a religious exemption from covering all medical care except healers who treat medical ailments with prayer.

Edwards sees the conflict between the owners’ religious beliefs and the mandate, but does not find that it meets the legal standard of a “substantial burden”, using another analogy I’ve used here.

The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.

… The Gilardis do not contend that their religious exercise is violated when Freshway pays wages that employees might use to purchase contraception, and the Mandate does not require the Gilardis to facilitate the use of contraception any more directly than they already do by authorizing Freshway to pay wages.

Edwards quotes a 1982 Supreme Court decision:

Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.

If not for the filibuster, that might be the majority opinion.

Texas abortion law. One of the other Bush judicial appointees who made it through the Senate under threat of the nuclear option was Priscilla Owen, whose appointment the Houston Chronicle opposed with these words:

The problem is not that Owen is “too conservative,” as some of her critics complain, but that she too often contorts rulings to conform to her particular conservative outlook. It’s saying something that Owen is a regular dissenter on a Texas Supreme Court made up mostly of other conservative Republicans.

No less a conservative than Alberto Gonzales once characterized Owen’s opinion in a Texas abortion case as “an unconscionable act of judicial activism”. In other words, even among conservative judges, she stood out as particularly radical.

The stipulation in the recent Texas abortion law (the one Wendy Davis delayed for a session with her famous state-legislature filibuster) that doctors who perform abortions have admitting privileges in local hospitals is one of a number of regulations designed to close clinics, and is largely devoid of any legitimate purpose. The lower-court judge found that the law was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion.” Similar laws in Wisconsin and other states have been blocked by federal judges.

But thanks to Judge Owen, this one is allowed to take effect. Abortion clinics are already closing, and it is estimated the 1/3 of all abortion clinics in Texas — already not that common — will be unable to meet the requirement.

End the filibuster. Right now, conservatives are benefitting from the fact that Senate Republicans have been more willing to play hardball than Democrats. Democrats under Bush attempted to block only the most outrageous nominees, and for the most part they failed. Those judges are on the bench now, fighting the war on women.

That’s just one front of the struggle, the one whose dots were most easily connected this week. Ultra-conservative judges have brought us Citizens United, came close to constructing an entirely novel interpretation of the Commerce Clause specifically to torpedo ObamaCare, and across-the-board have extended the rights of corporations and the rich over workers, consumers, and the general public.

President Bush did not try to be “reasonable” in his appointments or seek uncontroversial nominees. He nominated the most activist conservative judges he could find, and Senate Republicans refused to let the Democrats filibuster even the worst of them.

Now that the tables have turned, the filibuster has been expanded into a general tool of minority rule. It’s time to end it, once and for all.

To Succeed, Fail Boldly

Five doomed proposals for changing the national conversation


From one point of view, it all came to nothing.

Two weeks ago, liberals around the country thrilled to the story of Wendy Davis’ filibuster. With a few minutes of help from a raucous gallery of protesters, Texas State Senator Davis’ 11-hour speech ran out the clock on the special session of the legislature that Governor Rick Perry had called to pass a draconian anti-abortion bill.

Victory!

For two weeks, anyway. But Perry was still governor, so he called yet another special session. And the Republicans still had majorities in the legislature, so Friday the same bill passed the Senate and was on its way to Perry’s desk. In spite of massive protests, in spite of a viral video that made another new heroine out of Sarah Slamen, the legislative result is the same as if everyone had just stayed home.

Soon we’ll probably be able say the same thing about Moral Mondays in North Carolina. The Republicans have a supermajority in the legislature and they’re not afraid to use it, so they’re going to pass whatever they want, no matter how many religious leaders protest, no matter how many Carolinians they have to arrest.

So it’s pointless, right?

In the long term, no, it’s not pointless. This is the only way things change.

Losing my shrug. Let’s start with the obvious, even if it doesn’t seem all that consequential. A few months ago I’d have shrugged if you told me Texas and North Carolina were about to pass a series of laws that would impose real hardships on women and the poor. “The South,” I’d probably have said, “what can you expect?”

Well, Wendy Davis and William Barber have taken away my shrug. Like lots of other blue-state folks, I have been reminded not to write off Texas and North Carolina. Red states are not monolithic blocks of small-minded people. Progressive forces may be losing there right now, but they’re fighting. And people who keep fighting just might win someday.

If you don’t believe that, recall how the Religious Right and the Tea Party got where they are today. For decades, right-wing extremists rallied for proposals they couldn’t hope to pass into law, and mostly still haven’t: human life amendments, balanced budget amendments, the gold standard, defunding the U.N., and so forth. They failed and they failed again. And sometimes they succeeded when no one had given them a chance. (When the Equal Rights Amendment passed the Senate 84-8 in 1972, its ratification seemed a foregone conclusion.) But today their point of view has to be dealt with, and in some states is dominant.

Before you can win, you have to change the conversation. And the only way to do that is to fight battles the conventional wisdom says you can’t win. You’ll lose most of them. For a while you’ll lose all of them, because the conventional wisdom isn’t stupid. But that’s how things change.

The only way to change the direction of the wind is to keep spitting into it.

How conventional wisdom shifts. I have written in more detail elsewhere about how conservatives manipulate the supposedly liberal media. Journalism is not a conspiracy, but there is an unconscious group process that decides what news is, what can be stated as a simple fact, and what has be covered as controversial. Partisan groups can pressure that process and get their desired response, independent of whether most individual journalists agree or disagree with their views.

In that article I focused on how outside pressure can make known facts seem controversial. So, for example, global warming is almost always covered as if it were in dispute, when in a scientific sense it is well established. But powerful voices will argue with journalists who say global warming is a fact, so instead they write he-said/she-said articles, or leave the global-warming angle out of a story entirely.

Today I want to focus on the opposite side of that same unconscious media groupthink: Anything that is stated forcefully by one side and not contested by the other will be covered as if it were a fact.

So: Texans are all conservatives. Only people on the right care about “morality” or “the family”. “Moral issues” are the ones about sex — abortion, contraception, homosexuality — and the moral position is the conservative position. Feeding the hungry, caring for the sick, making sure workers get a fair wage — all that sermon-on-the-mount stuff — those aren’t “moral” issues.

If you don’t regularly and loudly contest those notions, they’ll get reported as facts. They’ll provide the background assumptions that frame the coverage of everything else.

Wolf Blitzer’s evangelism. The clearest recent example of this principle was Wolf Blitzer’s embarrassing interview with an atheist mother after the tornado in Moore, Oklahoma in May. Blitzer badgered the woman to “thank the Lord” for her and her child’s survival until she finally had to confess her atheism.

So is Blitzer is an evangelical Christian trying to push his religion on CNN? Nope. Wikipedia says Blitzer is a Jew, the son of Holocaust survivors. I can’t say from that precisely what he believes about God, but he was almost certainly not pressuring this woman to proclaim her Judaism.

Instead, Blitzer was applying two seldom-contested stereotypes:

  • Oklahoma is in the so-called Bible Belt, so everybody must be some kind of conservative Christian.
  • There are no atheists in the foxholes. When life and death hang in the balance, everybody becomes religious.

Probably Wolf had been hearing loud proclamations of Christian faith all day, and no voices on the other side. (This is another kind of groupthink. It’s not considered rude to thank Jesus in these circumstances — even in the presence of people whose loved ones Jesus apparently chose not to save. But conservative Christians would take offense if you said, “Stuff like this just shows that everything’s random and you can’t take it personally.”) So it became a background “fact” of his reporting that the people of Moore were having an evangelical Christian response to their survival.

Candle-lighting vs. darkness-cursing. We can wish for harder-working more-objective journalists who will seek out the truth and cover it fairly, regardless of the power dynamics. But in the meantime journalism is what it is, and we’re just being stupid if we let conservatives manipulate it and don’t fight back.

The facts on the ground today are that the media will challenge a pro-choice Catholic to reconcile the contradiction between his politics and his faith, but not an Evangelical who votes to cut Food Stamps or reject Obamacare’s Medicaid expansion. (Matthew 25:35-36: “For I was hungry and you fed me. … I was sick and you cared for me.”) Want to change that? Join the Moral Mondays protests in Raleigh, or start something similar in your own state capital.

In the short term, you may not change any votes in the legislature. But if enough people contest the previously uncontested “facts”, those “facts” leave (what Jay Rosen and Daniel Hallin call) “the Sphere of Consensus” and enter “the Sphere of Legitimate Controversy”. The conventional wisdom changes.

From defense to offense. So far the big progressive protests have been efforts to resist conservative aggression: rollbacks of women’s rights in Texas, unemployment insurance in North Carolina, workers’ rights in Michigan and Ohio.

It’s time to go on offense. In addition to resisting the regressive agenda of the right and timidly putting forward small proposals like universal background checks for gun buyers, progressives need a blue-sky positive agenda that we keep making people notice. Just because we can’t pass it in this term of Congress doesn’t make it impractical. (When have conservatives ever been constrained by that?) You have to keep proposing it until people get used to hearing it; only then will they look at it seriously.

So here are five bold proposals that are “doomed” according to the conventional wisdom. Their complete impracticality is a “fact” and will continue to be so until loud voices move them into the Sphere of Controversy, from which they can get serious consideraton.

  • The Equal Rights Amendment. The ERA passed Congress in 1972 and fell three states short of ratification when the ratification deadline passed in 1982. Supporters of the three-state strategy claim the deadline doesn’t count and in 2011 got ratification through one house of the Virginia legislature. But the ERA gets re-introduced in every session of Congress, most recently in March. Only the fact that the conventional wisdom says it can’t pass, protects politicians from explaining why they disagree with “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
  • Single-payer health care. Of all the existing plans to help the 50 million Americans who lack health insurance, Obamacare is the most conservative. (It’s Romneycare, after all.) Conservatives opposing Obamacare have offered no plan to fulfill the “replace” part of their “repeal and replace” slogan. And yet, if you watch Sunday morning political shows on TV, Obamacare is the “liberal” position. It’s better than the status quo, and I support it on those terms. But single-payer is what gives Europe, Japan, and the industrialized parts of the British Commonwealth lower costs and higher life expectancies than we currently have. It would do the same for the United States.
  • End corporate personhood. Few actual humans defend the idea that corporations should be people with full constitutional rights. A variety of constitutional amendments have been proposed to reverse this piece of conservative judicial activism (which in particular has no basis whatsoever in the originalist constitutional interpretation conservatives claim to favor). Bernie Sanders’ Saving American Democracy Amendment says: “The rights protected by the Constitution of the United States are the rights of natural persons and do not extend to for-profit corporations.” Everybody who runs for office should be challenged to state a position on that.
  • A federal Reproductive Rights Act. The current reproductive-rights situation in states like Texas resembles Jim Crow: Women’s constitutional rights are not repealed directly, but are made impractical by a series of restrictions transparently introduced for that purpose. In the same way that the Voting Rights Act protected minorities’ right to vote (until recently), a federal Reproductive Rights Act should impose federal oversight on states that have a history of infringing women’s rights.
  • Replace the Second Amendment. The overall situation of weapons and society has changed so much since 1787 that it’s hard to attach any meaning at all to the full text of the Second Amendment. I don’t have a revised text in mind yet, but I think the amendment should defend the right of individuals to procure appropriate tools to defend their homes, while giving Congress the power to control military hardware.

“Religious Freedom” means Christian Passive-Aggressive Domination

In an Orwellian inversion, “freedom” is now a tool for controlling others.


It’s over. Try something else.

For many anti-gay activists, the recent Supreme Court decisions on DOMA and Proposition 8 were the handwriting on the wall.

It wasn’t just that they didn’t get the result they wanted, but that in DOMA the Court’s majority simply didn’t buy the argument that homosexuality represents a threat to society. Neither does the general public, which supports that decision 56%-41%. (The margin under age 40 is 67%-30%, with 48% approving strongly.) The big post-DOMA public demonstrations expressed joy, not anger.

Just a few years ago anti-marriage-equality referendums were winning in states all over the country, but in 2012 one failed in Minnesota, while referendums legalizing same-sex marriage won at in Washington, Maryland, and Maine. Ten years ago, the first legislatures to make same-sex marriage legal were dragged by their state courts, but this year Delaware, Rhode Island, and Minnesota went there voluntarily, bringing the number of states where same-sex marriage is legal (as of August 1) to 13, plus the District of Columbia. (I’ll guess Oregon and Illinois will go next.)

It’s even clear why this is happening: Because gay millennials are not in the closet, everybody under 30 has gay and lesbian friends who dream about meeting their soulmates just like straight people do. To young Americans, laws blocking that worthy aspiration are pointlessly cruel and ultimately will not stand — not in Alabama, not in Utah, not anywhere.

So the generational tides run against the bigots of the Religious Right. Some still aren’t admitting it, but wiser heads are recognizing that it’s time to switch to Plan B.

The new face of bigotry: “freedom”. Fortunately for them, there’s a well-worked-out back-up plan: religious “freedom”.

Accept the inevitability of gay rights, advises Ross Douthat, but “build in as many protections for religious liberty as possible along the way.” Here’s the idea: If your disapproval of certain kinds of people can be rooted in church doctrine or a handful Biblical proof-texts, then forbidding you to mistreat those people violates the “free exercise” of religion you are promised by the First Amendment.

To make this work, conservative Christians need to divert attention from the people they are mistreating by portraying themselves as the victims. And that requires cultivating a hyper-sensitivity to any form of involvement in activities they disapprove of. So rather than sympathize with the lesbian couple who gets the bakery door slammed in their faces, the public should instead sympathize with the poor wedding-cake baker whose moral purity is besmirched when the labor of his hands is used in a celebration of immorality and perversion.

There’s a name for this tactic: passive aggression. It’s like on Sanford & Son when Fred would clutch his heart and start talking to his dead wife because Lamont planned to do something he disapproved of. Passive aggression is the last resort of people who have neither the power to get their way nor any reasonable argument why they should.

In fact the baker will be fine, as Willamette Week demonstrated by calling two such religious-liberty-defending bakeries and ordering cakes to celebrate a variety of other events conservative Christians disapprove of: a child born out of wedlock, a divorce party, a pagan solstice ritual. The bakers did not object, because their hyper-sensitive moral purity is an invention, a convenient excuse for treating same-sex couples badly.

But Jim DeMint insists that

A photographer in New Mexico, a florist in Washington, and a baker in Colorado have already been victims of such intolerant coercion.

And Matthew Franck is horrified that religious universities will have to provide same-sex married-student housing; religious “schools, universities, hospitals, hospices, and clinics; social service agencies, retirement homes, eldercare and childcare facilities, food pantries, and soup kitchens” who employ “teachers, doctors, nurses, psychologists, counselors and clinicians, caregivers, food-service workers, housekeeping and grounds staff, even pool lifeguards” won’t be able to refuse employment to people with same-sex spouses. Adoption services, marriage counselors, divorce lawyers, artificial insemination clinics etc. will have to deal with gay and lesbian couples … as if they were real human beings or something.

The race parallel. We worked this stuff out during the civil rights movement, because all the same ideas show up with regard to race.

Plenty of people claim a sincere religious belief in white supremacy, and root it in Biblical texts like the Curse of Ham. (This goes way back: American slave-owners found Biblical license for keeping their “property”.) But the law does not honor these claims, and somehow religion in America survives.

Here’s the principle that has served us well: In private life, you can associate with anybody you like and avoid anybody you don’t like. But if you offer goods or services for sale to the public, you don’t get to define who “the public” is. So when you’re making lunch at your house, you can invite anybody you like and snub anybody you don’t like, but if you run a lunch counter you have to serve blacks.

We’ve been living with principle for decades, and (other than Rand Paul) no one worries much about the racists’ loss of freedom.

That should apply to same-sex couples now: If your chapel is reserved for members of your congregation, fine. But if you rent it to the public for wedding ceremonies, same-sex couples are part of the public just like interracial couples are. You don’t get to define them away.

If that makes you reconsider whether you want to be open to the public, well, that’s your decision.

The sky will not fall. We just went through this with the Don’t Ask, Don’t Tell repeal, which supposedly would violate the religious “freedom” of evangelical military chaplains (who apparently had never before needed interact respectfully with people they believed were sinners). The Family Research Council’s Tony Perkins predicted:

You have over 200 sponsoring organizations that may be prevented from sponsoring chaplains because they hold orthodox Christian views that will be in conflict with what the military says is stated policy.

That stated policy was: “All service members will continue to serve with others who may hold different views and beliefs, and they will be expected to treat everyone with respect.”

AP went looking for chaplains who couldn’t live with that and found “perhaps two or three departures of active-duty chaplains linked to the repeal.” A Catholic priest overseeing 50 other chaplains reported “I’ve received no complaints from chaplains raising concerns that their ministries were in any way conflicted or constrained.”

If any of Perkins’ 200 religious organizations has stopped sponsoring chaplains because DADT is gone, I haven’t heard about it. The chaplains’ hyper-sensitivity to openly gay soldiers was imaginary, and went away when the government refused to take it seriously.

The abortion parallels. The reason the Religious Right believes their passive-aggressive “religious freedom” approach will work on same-sex marriage is that the same approach is already working on reproductive rights.

It all started with a reasonable compromise: After the Religious Right lost the battle to keep abortion illegal, laws guaranteed that doctors who believe abortion is murder can’t be forced to perform one. This is similar to letting pacifists be conscientious objectors in war, and I completely support it.

But from there, Religious Right “freedom” has become a weapon to beat down the rights of everyone else. Since 1976, Medicaid has not paid for abortions — at a considerable cost to the government, since birth and child support are far more expensive — because pro-life taxpayers shouldn’t have to fund something they think is immoral. There’s no parallel to this anywhere else: The taxes of pacifist Quakers pay for weapons; the taxes of Jews and Muslims pay the salaries of federal pork inspectors.

Conservatives like to accuse gays and blacks of claiming “special rights”, well this is a special right: The conservative conscience gets considerations that nobody else’s conscience gets.

And conservative special rights keep growing. The argument for defunding Planned Parenthood is that public money not only shouldn’t pay for abortions, it shouldn’t even mix with money that pays for abortions. (“Giving taxpayer funds to abortion businesses that also provide non-abortion services subsidizes abortion,” says one petition.) I had a hard time imagining a parallel, but I finally came up with one: What if Jews were so sensitive to violations of the kosher rules that Food Stamps couldn’t be used (by anyone, for anything) in groceries that sold pork?

That would be absurd, wouldn’t it?

In some states, medical “conscience” laws now protect anyone in the medical system who wants to express their moral condemnation: If the pharmacist disapproves of your contraceptives, he doesn’t have to fill your prescription. One of the examples cited by the model conscience law of Americans United for Life as something that needs to be fixed is “an ambulance driver in Illinois being fired for refusing to take a woman to an abortion clinic”.

Clearly that ambulance driver’s immortal soul was at risk. The hyper-sensitive pro-life conscience needs to be protected from any contact with women making use of their constitutional rights.

Religious “freedom” and contraception. The other front in the religious “freedom” battle is contraception.

The Obama administration has had a lot of trouble finding the proper religious exemption to the contraception provisions of the Affordable Care Act. That’s because it’s hard to find the “right” version of something that shouldn’t exist at all. Contraception coverage does not violate any legitimate notion of religious freedom for any religious organizations, religious affiliated organizations, or religious individual employers. Their claims should be rejected without compromise.

The principle here ought to be simple: The employer isn’t paying for contraception or any other medical procedure; the employer is paying for health insurance. Health insurance is part of a worker’s earnings, just like a paycheck. And just like a paycheck, what the employee chooses to do with that health insurance is none of the employer’s business. If I’m the secretary of an orthodox rabbi, his religious freedom isn’t violated when I cash my paycheck and buy a ham sandwich. Ditto for contraceptives, health insurance, and the secretary of the Archbishop of Boston.

Religious organizations’ hyper-sensitive consciences are pure passive aggression. The classic example here is Wheaton College, which couldn’t join other religious organizations in their suit against the ACA because it discovered that it had inadvertently already covered the contraceptives that the tyrannical ACA was going to force it to cover. This was such a huge moral issue for the college that nobody there had noticed.

Worst of all is the Hobby Lobby lawsuit, which got a favorable ruling on an injunction recently. The Hobby Lobby case is the mating of two bad ideas — corporate personhood and employers’ right to control the medical choices of their employees — to produce something truly monstrous. HL’s case hangs on its claim that it is a “person” with regard to the Religious Freedom Restoration Act of 1993, and so its corporate “religious freedom” allows it to restrict its employees’ access to contraception.

Persecution or Privilege? Here are the kinds of sacrifices I make for my readers: I listened to the full half-hour of James Dobson’s post-DOMA radio show, where Dobson, Perkins, and Bill Becker threw around phrases like “the collapse of Western civilization in one day” and “the whole superstructure … can come down”. They described Christians as “an oppressed minority” and agreed that “persecution is likely in the days to come”.

But what is “persecution” exactly?

Tony Perkins expresses the challenge like this:

Do you believe God’s word is true and therefore you’re going to live your life based upon that truth, or are you going to shrink back in the fear of man and of them calling you bigots.

Whenever Christians discuss their “oppression”, fear of being called bigots plays a central role. According to CNN’s Belief Blog,

[Peter] Sprigg and other evangelicals say changing attitudes toward homosexuality have created a new victim: closeted Christians who believe the Bible condemns homosexuality but will not say so publicly for fear of being labeled a hateful bigot.

In other words: Christians are oppressed unless they can express their moral condemnation of others without being subject to moral condemnation themselves.

Why would anyone imagine the existence of such a one-sided right? Simple: In practical terms, that’s a right they have had until recent years. Not so long ago, the James Dobson types were so intimidating that they could preach any kind of vicious nonsense about gays and face no response.

So what they are experiencing now isn’t persecution, it’s privileged distress, the anxiety a privileged class feels as its privileges fade and it slides towards equality with others. And rather than try to get over their distress and soothe their anxiety, they are intentionally pumping it up in a passive-aggressive attempt to claim victimhood and control the rest of us.

That bubble needs to be popped.

Government Theology is Un-American

If Congressman Mourdock wants to interpret the will of God to the People, he should move to a country where government officials do that, and leave my country alone.

This week, Indiana’s Richard Mourdock became the latest Republican candidate to make the political mistake of spelling out the consequences of his ideology: Not only would he make abortion illegal in all ordinary circumstances, but he sees no reason for a rape exception. He wants the government to force women to bear their rapists’ children.

Politics being what it is, a Rapist Procreation Act could never make it through Congress, even as an amendment to a larger Forced Motherhood Act. So euphemisms and rationalizations have to be employed.

Senate candidate Akin. Two months previously, Missouri senate candidate Todd Akin had made headlines by abusing science to support rapist procreation: Rape exceptions are unnecessary, he claimed, because rape pregnancies don’t happen. At least they don’t happen in cases of “legitimate rape”, i.e., the kind where the woman is penetrated by violence. “The female body has ways to try to shut that whole thing down,” he said.

Ignore the fact that no legitimate scientist believes this, so Akin had to search out a phony “expert” who is primarily another anti-abortion extremist. Even giving Akin’s words their most generous interpretation — that he meant to say “violent” rather than imply that the rape itself could be “legitimate” — they’re monstrous. In his view, for example, raped women who are drugged rather than beaten are not worth the law’s notice.

A friend of a friend once met a knife-wielding stranger on a stairwell. He said he wanted to kill her, but she negotiated him down to having sex instead. That also would not be a legitimate rape in Todd Akin’s view, so any possible pregnancy would be the woman’s responsibility, not the knifeman’s.

Or consider this account of an incest pregnancy. Sometimes her father raped her “legitimately” by violence. Sometimes threats were enough, and sometimes she submitted to save her younger sisters. What kind of rape got her pregnant? She doesn’t know.

Akin’s government would punish such men, presumably, but would also make sure that their reproductive strategy succeeds and their DNA is multiplied in the next generation.

Walsh. Illinois Republican Congressman Joe Walsh went a step further than Akin. Not only is a rape exception unnecessary, but a life-of-the-mother exception is unnecessary too — and for the same reason: It never happens. “With modern technology and science,” he said, “you can’t find one instance” of a medically necessary abortion.

Non-ideologues quickly came up with the example of ectopic pregnancy, which killed 876 American women between 1980 and 2007.

Mourdock. Having seen how much heat Akin took for abusing science, Mourdock decided to abuse theology instead. For Mourdock, the magic pregnancy-prevention intervention doesn’t come from the mysteries of female biology, it comes from God. If a woman gets pregnant through rape, that must be “something that God intended to happen.”

Again, let’s give Mourdock’s words their most generous interpretation, the one he begged for the next morning. (Consider the irony: We’re granting Mourdock a morning-after pill, so that his statement doesn’t bear any unwanted fruit.) He didn’t mean to say that God sends rapists to impregnate women. (“I don’t think God wants rape,” he said, in one of the strangest denials ever.) But once the sperm sights the ovum, it is up to God whether or not conception occurs.

This is the traditional God-of-the-gaps theology: Well-understood processes follow scientific cause-and-effect, but anything that happens mysteriously is God’s will. (Lightning strikes, for example, were God’s will until Ben Franklin thwarted God by understanding electricity and inventing the lightning rod.)

Personal vs. public. I find this view of God absurd, but that’s just me. If you want to interpret every unpredictable event as a message from your Creator, don’t let me stop you. If Mourdock’s family were to suffer a rape pregnancy (not that I’m wishing it on them), maybe they really would welcome the rapist’s baby as a “gift from God”. If they went on to raise that boy up to be a far better man than his father, I might even admire them for it.

But here’s where I get off the train: Mourdock the individual and the Mourdock Family should be free to believe what makes sense to them, and to organize their lives accordingly. But Congressman Mourdock and wannabee Senator Mourdock have no business telling the American people what God wants.

That’s not how America works. That is, in fact, what the Founders revolted against.

Old Europe vs. New America. In the old system of European monarchy, the King had a special relationship to God, and so his government stood between God and the People. In the same way that the bishops channeled God’s religious will, the King channeled God’s political will. The People may or may not understand why God wants them to go to war with Spain or pay a higher toll at the bridge, but no matter: The King and God had it all worked out, and it was the People’s duty to obey.

The American system of democracy reversed all that. In America, the People stand between God and the government.

In America, we believe that God pays no attention to rank; God speaks to everyone, and not just to high government officials.

In America, Congress is supposed to interpret the will of the People, not the will of God.

In America, it is up to the People to interpret the will of God for the government. It is not up to the government to interpret the will of God for the People.

Biology vs. Theology. One reason this anti-American tendency on the Right gets so little attention is that they have carefully framed their theological reasoning in biological terms: They claim to be talking about “when human life begins”, which sounds biological.

If you buy into that false framing, their favored answer “human life begins at conception” seems obvious: The fertilized ovum may be a one-celled organism that looks more like an amoeba than a baby, but it is alive and has human DNA, so it’s clearly “human life”.

But this is a strangely materialistic piece of logic that the Religious Right would not accept in any other case. Something makes killing a human being murder, but killing a pig dinner. Is that difference in the DNA somewhere? Can we hope that science will someday identify the “worth gene” that gives humans their incommensurable value?

Of course not. Imagine the outcry if someone claimed to pinpoint such a gene and showed that it was absent in certain birth defects.

Worth is not about DNA, it’s about soul. (If you don’t ordinarily use the word soul, you can take that as a functional definition: Whatever makes a human’s life more valuable than a pig’s is soul. Whether you think of it as a mystical whatever or as a socio-legal convention is, in practice, irrelevant.)

So the question of abortion is not when “human life” begins, it’s when the soul enters the body. (Or, for secularists, it’s when the law decides to take fetuses under its protection.)

All the biological evidence that is usually offered on the abortion question — when a fetus has a heartbeat or brainwaves or reacts in ways that resemble pain — is beside the point. A pig fetus at a similar stage would also have a heartbeat, brainwaves, and a cringing reflex. Paul Ryan might describe the “bean” that he saw on the ultrasound as a “baby”, but if a prankster had rigged the ultrasound to show Ryan the fetus of a pig or chimp, I doubt he’d have known the difference.

The difference between murder and dinner is not physical, it’s metaphysical. It’s a question for theologians, not biologists.

Government humility. And that means the government should stay out of it unless some compelling public interest is involved, which it isn’t. (In a post-apocalyptic world in need of repopulation, for example, the government would have such an interest.)

The ensoulment question has been debated as long as the Judeo-Christian tradition has existed, and the experts have often disagreed. (One frequently taken view was that ensoulment happened around 90 days — coincidentally corresponding to the first trimester when Roe v. Wade allows the fewest restrictions on abortion.) Other religious traditions have their own opinions on the matter. (Many, for example, would find the pig to be of comparable value to the human, and have a different notion of soul entirely. If they can build a majority somewhere, should the law reflect their theology? Or should they simply practice their beliefs without forcing vegetarianism on non-believers?)

In the American system, government takes a humble position in matters of theology: It recognizes that it has no special expertise, so it leaves such questions to the individual.

That’s what should happen here: Each sect should be free to put forward its own view of when a fetus acquires the incommensurable value of a human soul, and its practitioners should be free to practice that view.

That’s the American way.

Five Pretty Lies and the Ugly Truths They Hide

A week after Todd Akin’s “legitimate rape” comment, we should be long past the “OMG — I can’t believe he said that!” stage. It’s time to take a longer view and ask ourselves what the Akin incident says about the larger picture.

You can find takeaways at many levels. First, contrary to Akin’s personal damage control, he didn’t “misspeak“. He really believes that many pregnant women — like maybe this one — make up their rape stories.

At a slightly more general level, and contrary to Republican damage control, you can observe that Akin is typical of the party. Not only is his no-rape-pregnancy lie common, but Paul Ryan agrees with him about redefining rape, and the official party platform calls for banning abortion with no rape exception. (Mitt Romney claims to support such an exception, but as usual, he’s speaking out of both sides of this mouth. Whose delegates are writing this platform? And if he won’t actively oppose a no-exceptions party platform, what makes you think he’ll veto a no-exceptions bill when Congress sends it to him?)

But here’s what I think is the most important Akin takeaway. When confronted with an ugly consequence of his policies — women forced by law to bear their rapists’ babies — Akin papered it over by telling a pretty lie: It doesn’t happen; the female body doesn’t work that way.

Isn’t that pretty? Wouldn’t the world be nicer if no woman who “really” got raped had to worry about pregnancy? Of course it would.

Akin may not have intended to lie; maybe he believes what he said. But does he believe this bogus biology because it makes sense? Of course not. Because an expert told him? The “expert” is someone he sought out precisely for that purpose; real experts would have told him the opposite.

I have a simpler explanation: Akin believes the lie because it’s pretty. The lie tells him that he’s not a monster. It helps him avoid the ugliness of his beliefs.

That thought pattern makes him absolutely typical of the conservative movement today. When implemented, conservative policies cause a lot of ugliness. And when confronted with these ugly consequences, conservatives rarely adopt a more compassionate position. A few brave ones talk about necessary sacrifices and breaking eggs to make omelets, but most just paper over the ugliness with a pretty lie.

“Raped women don’t get pregnant” is just the first lie on my list. Here are four others:

2. The uninsured can get the medical care they need in the ER.

The lie. As he prepared to veto a 2007 bill providing health insurance to children, President Bush said it very clearly:

People have access to health care in America. After all, you just go to an emergency room.

That’s what Governor Rick Perry meant during his presidential campaign when he said:

Everyone in the state of Texas has access to health care, everyone in America has access to health care.

Mississippi Governor Halley Barbour agreed: “there’s nobody in Mississippi who does not have access to health care”

Why it’s pretty. It’s so distressing to hear statistics like 50 million Americans don’t have health insurance. (Texas and Mississippi rank #1 and #2 in percentage of the population uninsured.) But wouldn’t it be nice if that number didn’t really mean anything? if insurance was just a bookkeeping device, and nobody really went without care?

Why you shouldn’t believe it. It’s true that the uninsured can get emergency care. If you’re in a car accident, if you’re having a heart attack, if you’re not breathing when they fish you out of the lake — EMTs and the ER will do their best to save your life even if you can’t pay. But as the Houston Chronicle points out, emergency care can’t replace regular care:

About half of uninsured adults have a chronic disease like cancer, heart disease or diabetes. The lack of regular care for the uninsured is why they have death rates 25 percent higher than those with insurance; more than half of uninsured diabetics go without needed medical care; those with breast and colon cancer have a 35 percent to 50 percent higher chance of dying from their disease; and they are three times more likely to postpone needed care for pregnancy. Clearly, the uninsured don’t get the care they need

What it hides. Lack of health insurance kills people. It kills lots of people — more than car accidents or our recent wars. The technical public-health term is amenable mortality — the number of people who die unnecessarily from treatable conditions. An article in the journal Health Policy says:

If the U.S. had achieved levels of amenable mortality seen in the three best-performing countries—France, Australia, and Italy—84,300 fewer people under age 75 would have died in 2006–2007.

France, Australia, and Italy don’t have smarter doctors or better medical technology, but they do have something conservatives are determined to see that Americans never get: universal health insurance. When a questioner confronted Rick Santorum with these facts, he replied:

I reject that number completely, that people die in America because of lack of health insurance.

Of course he does. If he accepted what the public health statistics say, he’d have to admit that his policies condemn tens of thousands of people to death every year. “Pro-life” indeed.

3. Tax cuts pay for themselves.

The lie. The most recent vintage is from the Wall Street Journal’s defense of the Romney tax plan:

Every major marginal rate income tax cut of the last 50 years — 1964, 1981, 1986 and 2003 — was followed by an unexpectedly large increase in tax revenues

Or you could hear it from Mitch McConnell:

That there’s no evidence whatsoever that the Bush tax cuts actually diminished revenue. They increased revenue, because of the vibrancy of these tax cuts in the economy.

The claim is pretty widespread on the Right: Cutting taxes stimulates the economy so much that the government ends up collecting more revenue even at the lower rates.

Why it’s pretty. Everybody likes a tax cut, but deep down we all know that taxes pay for important things: roads, schools, defending the country, keeping the poor from dying in the streets, and so on. But wouldn’t it be great if we could pay less tax and pretend that money for all those things will appear by magic?

Why you shouldn’t believe it. This has been tried over and over again. It never works. Pointing out that it didn’t work for Bush is shooting fish in a barrel — nothing worked for Bush — but this didn’t even work when Reagan tried it. The Economist’s “Democracy in America” column looked up the numbers:

The federal government’s receipts for 1981-86, in billions of 2005 dollars:

1981    1,251.1
1982    1,202.6
1983    1,113.4
1984    1,173.9
1985    1,250.5
1986    1,277.2

Do you see the “unexpectedly large increase in tax revenues” resulting from the 1981 marginal rate income tax cut? Me neither! It took five years just to get back to par.

What it hides. A huge transfer of wealth to the rich. This lie is the first move in a cruel shell game: First, cut taxes with the promise that it won’t cause a deficit. Then, when it causes a deficit (as it always does), don’t respond “Oh, we were wrong. Let’s raise taxes back to where they were.” Say: “Government spending is out of control! We have to cut food stamps, education, Medicare …”

Stir the two steps together, and you get a cocktail voters would never have swallowed in one gulp: We’re going to cut programs people rely on so that the rich can have more money.

4. Gays can be cured

The lie. Homosexuality is a choice that results in an addiction, but (like alcoholics and drug addicts) gays can learn to choose differently and become ex-gay.

Why it’s pretty. Suppose you think gays are going to Hell, and then your son turns out to be gay. Or suppose you’ve been brought up to believe gays are evil, and then in junior high you start feeling same-sex attractions yourself. Of course you’re going to want to believe that this situation is fixable.

Why you shouldn’t believe it. It’s almost impossible to 100% prove a negative like “Gays can’t be cured”. But if a well-funded movement to teach people to fly had been running for years, and yet no one actually flew, reasonable people would develop a strong conviction that this wasn’t going to work.

That’s the situation with the ex-gay movement. The extreme lack of success has reached the point where the movement itself has started to splinter. The original ex-gay group, Exodus International, now rejects attempts to “cure” gays and instead focuses on “helping Christians who want to reconcile their own particular religious beliefs with sexual feelings they consider an affront to scripture.” This has caused a schism, with the new group, Restored Hope Network, continuing to promote therapies to cure gays.

What it hides. Pure bigotry is the only reason to discriminate against gays.

As discrimination wanes, it becomes obvious that unrepentant gays can find love, form long-term relationships, raise children who are a credit to the community, and (in short) do all the things that are usually thought of as part of a good life. They can also serve in the military, be good teachers, have productive careers in the private sector, pay taxes, do volunteer work — everything that constitutes good citizenship.

To prop up anti-gay discrimination (and even to try to reinstate it in places where it has been torn down), and to do so even though the people discriminated against didn’t choose to be gay and can’t change it — that’s pretty ugly.

5. Obama’s election proves racism is over.

The lie. John Hawkins put it like this:

So, the moment Obama was elected, people started asking the obvious question, “How serious of a problem can racism still be in the United States if a black man can be elected President?” The honest answer to that question is, “Not very.”

Just this summer, Boston Globe columnist Jeff Jacoby reacted the same way to a black man becoming head of the Southern Baptist Convention:

The pervasive racism [Martin Luther King] confronted is primarily a historical memory now, while King himself is in the American pantheon. … America’s racist past is dead and gone.

Why it’s pretty. Pat yourself on the back, white America! You used to have a problem, but you kicked it.

So if any blacks or liberals are still complaining, feel free to ignore them. They just want the government to give them “more free stuff” by taking what you earned, or to use the charge of racism as “their sledgehammer … to keep citizens who don’t share the left’s agenda from participating in the full array of opportunities this nation otherwise affords each of us”. If anybody’s really oppressed these days, it’s whites.

Why you shouldn’t believe it. Barack Obama’s election was definitely a sign of racial progress, just like Jackie Robinson joining the Dodgers in 1947, Jesse Owens’ Olympic gold medal in 1936, or Jack Johnson becoming heavyweight champion in 1908. But racism didn’t end in 2008 any more than it ended in 1908.

Let’s start by debunking the logic: In 2008, a year when everything broke wrong for the Republicans, Obama got 53% of the vote. For the sake of argument, let’s say that’s more-or-less what a white Democrat would have polled. Does that prove racism is over? No, it just proves that Republicans already had the racist vote.

Then we get to evidence that points the other way: Trayvon Martin. (Nobody jumps to the defense of black men who shoot unarmed white teen-agers.) Birtherism. (No white president has faced this kind of persistent, baseless accusation.) The racial dog-whistles in the Romney campaign. The racist anti-Obama pictures and cartoons that circulate in viral emails. (But don’t you get it? These are jokes. Like the “Don’t Re-Nig in 2012” bumper sticker. Clever, huh?) The attempt to legalize anti-Hispanic racial profiling in Arizona and other states. I could go on.

It’s not just that 1 in 3 black men will spend time in jail, it’s that this fact isn’t seen as an emergency that requires outside-the-box solutions. If white men were imprisoned at the same rate (no matter what they were imprisoned for), the number of possible explanations and solutions would skyrocket. But black men … that’s just how they are; what can you do?

(For a longer discussion of racism in the Obama era, see Ta-Nehisi Coates’ article in the current Atlantic.)

What it hides. Indifference to human suffering. At a time when poverty is at a level we haven’t seen in decades, the House has passed bills to gut safety-net programs like Medicaid and food stamps.

That can only happen if the white middle class is convinced that the poor are different and deserve their fate. And the best way to accomplish this is through racial stereotyping: The poor are black, and blacks are lazy. Both statements are false, but they work.

How to respond. This is far from an exhaustive list; I just picked the pretty lies I could document and refute fairly quickly, and I didn’t even touch well-covered lies like “Global warming is a hoax.” or “Abstinence-only sex education works.” But I hope the five I’ve listed are varied enough to establish the pattern.

If you have any conservatives friends, relatives, or co-workers, you probably hear pretty lies all the time. (“The poor have it good in America. They’re the lucky duckies who don’t have to work, because the rest of us are paying for their X-boxes and cable TV.”) Probably you’ve already tried to respond by googling up facts and presenting them, so you understand that this never works.

I sympathize with your frustration.

But it’s important take the next step and ask why presenting the facts doesn’t work. It’s simple: Facts are not the source of the belief. Conservatives aren’t mistaken, they’re hiding something.

What they’re usually hiding is cruelty. Conservative policies are cruel, but individual conservatives usually aren’t, or at least they don’t want to see themselves like that. The only way to square that circle is with a lie.

Once the lie is in place, “facts” will be found to support it. A whole industry is devoted to supplying fake facts. And since fake facts are easier to manufacture than to refute, you will never fight your way through the swarm.

I don’t have a foolproof method for converting conservatives, but I can tell you this much: You don’t understand a pretty lie until you’ve seen all the way through to the ugly truth it’s hiding.

That’s where you should be focusing your energy. Don’t just refute the lie. Expose the truth.