Christian Nationalist Legal Strategy: Weaponize The Free Exercise Clause From Shield To Sword

 

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority. -- US Supreme Court, Abington School District v. Schempp, 374 US 203, 222-223, 1963 

Context

1. In coming decades, the ideology of Christian Nationalism (CN) will be heavily brought to bear on Americans and American society, governance and law. The contours of the legal strategy are visible and have been for at least 30 years or so. One part of the CN strategy is to change interpretation of the equal protection clause from a shield to protect religious freedom and practices, to a sword to aggressively expand the legal scope, power and influence of Christianity into commerce and secular affairs generally.

2. One the most difficult concepts in politics to grasp is how to reconcile conflicts between conflicting rights. A recent example is the 2015 Supreme Court decision that legalized same-sex marriage. Conservatives vehemently objected and argued that the new rights of same-sex couples would crush religions freedom and practice into oblivion. My own analyses of the freedoms conflicts and burdens indicated that such fears were grossly exaggerated in almost all situations for most people (private speech and practice analysis; speech and practice in commerce analysis). 

3. One of the most difficult endeavors in law is how to interpret the often ambiguous US Constitution. The Constitution was built on compromises that forced ambiguities into the document to get it agreed on and accepted. The Founders were in bitter disagreement and they never resolved critical disagreements in their lifetimes. The ambiguity affords a legal basis to reshape American government and society by reinterpreting law as radical right CN sees it must be in the eyes of sacred God. One goal that CN wants is to legally demolish is the concept of a separation of church from state. Another is to extend the reach of religion deep into secular affairs, which is the topic of this OP.

Shield to Sword

A Sept. 18, 2020 article in The Atlantic by legal scholars Howard Gillman and Erwin Chemerinsky describes how the radical right Supreme Court is weaponizing the equal protection clause. Among other things, the point is to reverse civil rights gains that some groups have gained over the years. Gillman and Chemerinsky write:

The Supreme Court’s conservative majority is in the process of transforming this First Amendment clause [Free Exercise] into a sword that politically powerful Christian conservatives can use to strike down hard-fought advances in civil rights, especially for LGBTQ individuals and women.

At issue is whether religious believers who object to laws governing matters such as health care, labor protections, and antidiscrimination in public accommodations should have a right to an “exemption” from having to obey those laws. .... Religious business owners, such as bakers and florists, who object to same-sex marriage have claimed a right to refuse service to same-sex couples. And employers have successfully asserted a right to deny their workers health-care benefits that they would otherwise be entitled to, such as contraception or abortion counseling.

Providing such religious exemptions has required a dramatic change in the law by the Supreme Court. In 1990, in Employment Division v. Smith, the Supreme Court held that the free-exercise clause of the First Amendment cannot be used as a basis for an exception to a general law, no matter how great the burden on religion, unless the government’s action can be shown to be based on animus to religion. The case involved a claim by Native Americans for a religious exception to an Oregon law prohibiting consumption of peyote.

Justice Antonin Scalia wrote the opinion for the Court ruling against the Native Americans and explained that it would be impossible to provide religious exemptions from civic obligations whenever a person disagreed with the law—there are just too many civic obligations and too many different religious views about those obligations. Also, if the government were to begin down this path, it inevitably would face the impossible task of defining a “religious” belief. Such an approach would force the Court to make intrinsically controversial and discriminatory decisions about which religious views were most deserving of special accommodation and which social values should be considered less important than the favored religious views.

This decision was in line with the approach taken by the Supreme Court, in almost all cases, through American history. Courts long held that the Constitution did not require an exception to general laws on account of religious beliefs—that parents could not deny medical aid to their children, ....

Unfortunately, the conservative justices on the current Court reject Scalia’s reasoning and may be about to overrule Employment Division v. Smith. If they do so, the Supreme Court’s conservative majority will in essence be saying that the views of Christian conservatives are more important than legal protections for workers and people who seek to engage in ordinary commercial activity without suffering discrimination.

The first sign of this shift came with the 2014 decision in Burwell v. Hobby Lobby, when for the first time in American history, the Court held that the religious beliefs of a business’s owner allowed it to refuse to provide employees with a benefit required by law. .... at issue in Hobby Lobby were the rights of the owners of a purely secular business. The five conservative justices held that a family-owned corporation could deny contraceptive coverage to women employees based on the business owners’ religious beliefs.

In June 2020, the Court ruled in Our Lady of Guadalupe School v. Morrissey Berru that teachers at a Catholic school could not sue for employment discrimination. The two cases before the Court involved a teacher who had sued for disability discrimination after losing her job following a breast-cancer diagnosis and a teacher who had sued for age discrimination after being replaced by a younger instructor.

Previously, in Hosanna-Tabor Lutheran Evangelical Lutheran Church and School v. EEOC (2012), the Court said that a narrow exception protects religious organizations from being held liable for choices they make about their “ministers,” which traditionally have been considered “exclusively ecclesiastical questions” that the government should not second-guess. But now the Court has expanded that exception to all religious-school teachers, meaning that the schools can discriminate based on race, sex, religion, sexual orientation, age, and disability with impunity.

In recent months, the Court expanded civil-rights protection for gay, lesbian, and transgender individuals, but there is reason to fear that the conservative justices are about to undercut this. In June 2020, the Supreme Court ruled that the federal law Title VII, which prohibits employment discrimination based on sex, forbids employment discrimination based on sexual orientation or gender identity. But Justice Neil Gorsuch’s majority opinion left open the possibility of giving an exception to employers who discriminate because of their religious beliefs. The Court should emphatically reject such claims. Selling goods and hiring people on the open market is not the exercise of religion, and stopping discrimination based on sexual orientation or gender identity is a compelling government interest that judges should not dismiss because members of a favored religion disagree with the policy. (emphases added)

This is what the face of aggressive Christian theocracy looks like. It is sneaking up on our secular society. Radical right political ideology coupled with CN ideology[1] are proving to be a powerful, socially toxic and highly discriminatory and bigoted political force. That is the direction the authoritarian GOP and conservatism in general want American society and law to go. And, that is where it is going whether the majority wants it or not. 

Questions: Is it fair to see the CN legal movement as a move toward some form of Christian law akin to Sharia law in Islam, which some people see as a serious threat to existing US law and society? If Sharia is threatening, why isn’t Christian Sharia also threatening?

Footnote: 

1. Christians Against Christian Nationalism describe CN ideology and its goals:

Christian nationalism seeks to merge Christian and American identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism demands Christianity be privileged by the State and implies that to be a good American, one must be Christian. It often overlaps with and provides cover for white supremacy and racial subjugation. We reject this damaging political ideology and invite our Christian brothers and sisters to join us in opposing this threat to our faith and to our nation.

As Christians, we are bound to Christ, not by citizenship, but by faith. We believe that:

People of all faiths and none have the right and responsibility to engage constructively in the public square.

Patriotism does not require us to minimize our religious convictions.

One’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community.

Government should not prefer one religion over another or religion over nonreligion.

America’s historic commitment to religious pluralism enables faith communities to live in civic harmony with one another without sacrificing our theological convictions.

Conflating religious authority with political authority is idolatrous and often leads to oppression of minority and other marginalized groups as well as the spiritual impoverishment of religion.

We must stand up to and speak out against Christian nationalism, especially when it inspires acts of violence and intimidation—including vandalism, bomb threats, arson, hate crimes, and attacks on houses of worship—against religious communities at home and abroad.

 

What biblical moral principles, if any, dictate  

Christian law over secular law?

Plain Talk: This column is full of malarkey

 

• Dave Zweifel | The Capital Times
• https://madison.com/ct/opinion/column/dave_zweifel/plain-talk-this-column-is-full-of-malarkey/article_3a3c9cbe-9944-52af-9cfd-566fc6dee73c.html
  

You might say that today's column is full of malarkey.

The word malarkey, you may have noticed, is one that Joe Biden used frequently during the presidential campaign, going all the way back to the Iowa caucuses last year — even having the words "No Malarkey" painted on the side of his bus as he criss-crossed the state in 2019.

He used it during the last heavily-watched presidential debate on Oct. 22 to describe Donald Trump's typically unfounded claims.

"There's a reason why (Trump) is bringing up all this malarkey. There's a reason for it," Biden proclaimed. "He doesn't want to talk about the substantive issues. It's not about his family and my family. It's about your family."

As an admittedly old guy, I knew the word well. It was used all the time in those good, old days, and more than once we'd accuse each other of being "full of malarkey." That was nicer than using another often-used word.

I'm not sure when malarkey went out of vogue, but obviously it did, because younger people watching the debate were puzzled.

Laurie Wermter, a reference librarian at UW-Madison, noticed a report that a lot of people were looking up the word's meaning in online dictionaries that night.

She went to the online edition of the Oxford English Dictionary herself to pinpoint its definition:

"Humbug, bunkum, nonsense; a palaver, racket. (Usually of an event, activity, idea, utterance, etc., seen as trivial, misleading or not worthy of consideration.)"

But, she was surprised to find something else and decided that we at The Capital Times might be interested.

"When I looked it up myself, I discovered that an early usage (1924) of it is credited to the "Capital Times" (Madison, Wisconsin)," she reported in a letter to our editor and publisher Paul Fanlund.

I tried to search our archives to find the story or editorial that used the word, but the search couldn't narrow it down. But, I can imagine William T. Evjue insisting the opponents of "Fighting Bob" La Follette were full of malarkey. It was the year, after all, when the Progressive icon was running for president of the United States.

Laurie Wermter added that she was impressed to find 126 words in the Oxford dictionary in which The Capital Times is cited to document a usage. She added them to the letter she sent.

Among them are "a-go-go" in 1964, "arms control" in 1921, "auto-defrost" in 1940, "barbershopper" in 1930, "brain sucker" in 2002, "color commentator" in 1939, "jack squat" in 1997, "love-bomb" in 1976, "super PAC" in 1993, and "videogram" in 1983.

Thanks to this UW librarian, that's no malarkey. And, hopefully, when these votes are finally all counted, we'll have someone in the White House who remembers what it means.

Some Thoughts on the Constitution, Culture War and Deceit

“I confess that I do not entirely approve this Constitution at present, but Sir, I am not sure I shall never approve it. . . . In these sentiments, Sir, I agree to this Constitution, with all its Faults, if they are such; because I think a General Government is necessary for us. . . . . I doubt too whether any other Convention we can obtain, may be able to make a better Constitution. . . . . It therefore astonishes me, Sir, to find this System approaching so near to Perfection as it does; and I think it will astonish our Enemies, who are waiting with confidence to hear how our Councils are Confounded, like those of the Builders of Babel, and that our States are on the Point of Separation, only to meet, hereafter, for the purposes of cutting one another’s throats. Thus I consent, Sir, to this Constitution because I expect no better, and I am not sure that it is not the best. . . . . On the whole, Sir, I cannot help expressing a Wish, that every Member of the Convention, who may still have Objections to it, would with me on this Occasion doubt a little of his own Infallibility, and to make manifest our Unanimity, put his Name to this instrument.” --Benjamin Franklin, 1787, stating his consent, if not approval of the new US Constitution, and suggesting a bit of humility in the face of human fallibility; note the comment about states slitting each other’s throats

Context

America is in the midst of an intense culture war between radical right authoritarianism operating mostly in the name of conservatism, patriotism and/or Christianity vs. democracy generally operating under various labels, e.g., democrats, liberalism, socialism, secularism, the mob, etc. The labels tend to vary depending who is describing which side. The war is multifaceted, but a bitter, vicious struggle for wealth and power is at the heart of it all, even though that is generally camouflaged as a struggle of good vs. bad, patriotism vs. anti-American subversion, or etc. In fact, the two sides are not nearly as far apart or hateful as the propaganda and irrational emotional manipulation has coaxed many people into falsely believing exists in reality. All of that is a big part of the deceit that permeates the war. 

Another major source of deceit is about the constitutional basis and authority for the competing visions of American society and law. Radical right authoritarians are now in a position to bulldoze their interpretation of the Constitution into law, often or usually over the objections of most Americans on some or most major issues.

The superb 2016 book (631 pages + almost 300 pages of ponderous, detailed notes and citations) by Harvard law school professor Michael J. Klarman, The Framer’s Coup: The Making of the United States Constitution, goes into great detail about the making of the Constitution and the circumstances surrounding it. Presumably to minimize allegations of bias, Klarman relies heavily on direct quotes from the Founders and other people alive at the time to make his points. Intended or not, his book describes in great detail how the vast radical right authoritarian culture war machine of 2020 stands on a non-existent basis in historical fact for their claims of constitutional correctness and “Founders intent” as the basis for their ferocious, self-righteous assault on American society and law. A few quotes from the book speak clearly to illustrate the deceit and a rational basis for Constitutional flexibility as society changes.

In the final analysis

These are the last two paragraphs of the book:

“In the final analysis, the Constitution -- like any governmental arrangement -- must be defended on the basis of its constituency with our basic (democratic) political commitments and the consequences that it produces. That it has been around for a very long time or that its authors were especially wise and virtuous should not be sufficient to immunize it against criticism.

Toward the end of his long life, Thomas Jefferson, who played no direct role in either the drafting or the ratification of the Constitution, sagely observed that because ‘laws and institutions must go hand in hand with the progress of the human mind’ and because each generation has ‘a right to choose for itself the form of government it believes most promotive of its own happiness,’ constitutions ought not to receive ‘sanctimonious reverence’ and be deemed, ‘like the arc of the covenant, too sacred to be touched’. As Jefferson would have recognized, those who wish to sanctify the Constitution are often using it to defend some particular interest that, in their own day, cannot in fact be adequately justified on its own merits.”

Commentary: Jefferson was very astute. First, he focuses on the human mind and its progress. Second, he is explicit that laws and institutions must go hand in hand with the progress of mind. Third, people who claim otherwise, specifically the radical right authoritarians that dominate the GOP today, argue for a Constitution frozen in time cannot justify what they want on the merits in an honest, transparent competition of ideas. Instead, they rely on legal gimmicks like “Originalism” (discussed here) to tell us what the Founders and/or the people intended and thus what the Constitution really means based on that ersatz authority. It is an illusion. This is a source of profound deceit and thus profound immorality[1] that the radical right is using against the American government, law, people and society to win the culture war.

We know we’re not perfect or all knowing

Klarman writes on the awareness the Founders had of their own fallibility: 

“Nathaniel Gorham of Massachusetts, for one, was incredulous at the idea ‘that this vast country including the western territory will 150 years hence remain one nation.’ 

The Framers did not think they were perfect. During the convention, George Mason observed that the Constitution the delegates were drafting ‘will certainly be defective, as the Confederation has been found on trial to be.’ During the ratifying contest, Elbridge Gerry noted that even ‘the greatest men may err.’ Federalist Noah webster considered it ‘consummate arrogance’ to presume that the Founders had ‘all possible wisdom,’ could ‘foresee all possible circumstances’ or could ‘judge for future generations better than they can judge for themselves.’ Because they understood their own imperfections and limitations, the Framers deliberately fashioned Article V to make amendments easier to obtain than they had been under the Articles of Confederation.” 

Commentary: Clearly, the Founders intended a document that changes as society changes. That is the opposite of the position the radical right authoritarians take in making their assault on American society and law.

The framer’s mistaken assumptions

Oops, we goofed. Mistakes were made:

“The framer’s mistaken assumptions meant that the system they designed sometimes worked very differently in practice than they had anticipated. For example, the Framers assumed that political actors in different branches of the national government would have self-interested incentives to challenge each other’s assertions of power. Yet the existence of political parties, which the Founders did not contemplate, drastically altered the operation of the system of checks and balances. Specifically, expected the president and congress to be adversaries to be competing for power, the rise of political parties meant that the two branches -- if controlled by the same party -- might be more likely to coordinate their efforts than compete with one another.

Similarly, the development of political parties radically altered the practical workings of the electoral college system. The Framers assumed that presidential candidates would rarely command majorities in the electoral college, and thus ‘nineteen times in twenty,’ the House of Representatives would have to pick the president (from among the top five vote getters in the electoral college).” (emphasis added)

Commentary: The Founders warned against political parties.[2] They simply did not foresee their rise and the consequences. Party loyalty overwhelmed the incentive to compete they built into the Constitution. 

Footnotes: 

1. Moral reasoning: Deceit that misleads people and leads them to act on the basis of false information and beliefs based thereon is immoral because it steals by fraud from people their right to decide matters for themselves on the basis of facts and true truths. Deceit thus subverts and co-opts the progress of affected human minds and societies. 

2. For example, Washington wrote this in his 1796 farewell address to the American people where, among other things, he advised American citizens to view themselves as a cohesive unit and avoid political parties:

I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Ten Ideas to Improve Our System

 By Best in Moderation

There is a lot of talk right now about how to ensure the shift in political power happens correctly. I'll leave those discussions to another OP. 

Today I want to talk about fundamental improvements to our system to make abuses less rampant and accepted. Here are ten possible solutions to systemic problems; please feel free to add more or discuss them down below.

Ranked Choice Voting:

Local and state changes to our election process will make them more representative and open to more candidates from more parties. 

You rank your choices and if no candidate meets the 50% threshold, the lowest ranked is dropped and if that was your top selection your next selection is chosen. 

This way you can safely assume your second choice isn’t automatically a person you vehemently oppose.

Presidential Elections decided by popular vote:

The EC isn’t needed. We have the ability to speedily determine which candidate wins the most support from all Americans.

The EC further shifts power to less populated states, giving Wyoming 7 times the voting power of California (more voters needed per ECV in CA). 

Eliminating the EC will in no way take power from smaller states, as the President is the representative of the People of the USA, and should be chosen by them. 

Senatorial Rebalancing:

As of this day, 12% of the nation of the USA decides 50% of the US Senate. That is a massive imbalance of power.

This can be rectified while keeping the intention of the founders to not let less populated states get swept away by adding a single modifier on the state population.

All States retain 2 Senators, no matter how far below the national population average they are. 

Any state that has double the population average gains one senator for each doubling. 

This means California, Florida, Texas and New York would see an increase of Senators (4 for CA, 3 for Texas, 2 for Florida and 1 for New York)

Based on political trends this would make for an even distribution along partisan lines. It would also mean that 50% of the Senate would now be chosen by 24% of the US population. Still out of balance, but more in line with the vision of the Framers

FYI, when founded 50% of the Senate was chosen by 37% of the population.  

Supreme Court Term Limits

The SC has become too political. An appointment will be held up or pushed frantically due only to political considerations, and cannot be undone without severe disruption.

Putting a 16 year term limit on SC Justices gives them the freedom from political influence needed while also providing for a greater representation on the court as well as limited political posturing. 

Presidential Pardon Power Limitations

America was never intended to have a king. To give one person the ability to pardon any person, no matter the crime, is a kingly power. It should be restrained.

Leave most of it in place, but as with all Constitutional power have checks on it. A pardon must go through an advisory board. 

A pardon furthermore cannot go to relatives or direct associates of the President, not the President her or himself. This prevents obvious corruption.

Penalties for lying to the American people

If something can be proven to be objectively false, then repeating this false thing to the American public will be punishable by law for any elected official. 

One infraction will earn a documented warning including the statement, the correction, and the sources proving it incorrect.

Multiple infractions will result in fines and public censor. 

Repeated infraction on the same false statement will engage impeachment and removal procedures. 

Public Servants must be held to the utmost standard of truth or leave office.

Independent Accountability Office:

The DOJ falls under the Executive branch. The SC is selected by it. The GAO has no teeth. 

There needs to be an independent office whose sole function is to check the use of power by any elected official. 

This office will rotate leadership regularly, preventing any established “deep state” from forming. 

It will consist of investigatory officials as well as representatives from all political parties, to provide a check on one another. The latter will be elected by the people of the USA.

This Accountability Office will have the power to pursue legal investigations into and make charges against elected officials only. The charges made by them will need to be reviewed in a civilian court for any criminal proceedings; however any charge serious enough to warrant removal can trigger impeachment proceedings in the corresponding government office. 

Emoluments Guarantees:

Any President of the United States must set all financial interests into a blind trust controlled by an independent party.

Furthermore, all POTUS candidates must pass a national security clearance test. If they fail, they must work with DHS to meet the criteria before being allowed on any national ticket. No government funds or government institutions may help or include these candidates. It is theoretically possible to bypass this condition with a popular election candidate not belonging to any political party or structure. 

Foreign Influence Measures:

Any candidate caught soliciting help from or materials from foreign nations or accepting the help of a foreign nation in their bid for election will be immediately removed from consideration for public office. 

Congressional Pay tied to Key Performance Indicators (KPIs):

Congress will no longer be able to decide on their own pay raises. Instead, pay raises will correspond to specific performance indicators, including state of the economy, bills passed and public approval. 

Failure to meet these criteria will not result in immediate removal but no additional recompense will be given. Downturn of the US economy and jobs will result in lowering of Congressional pay.