Religious Freedom vs. Secular Law

LGBT-friendly business notice

A source of disagreement that continues to polarize American society is allegations by religious believers that religious and speech freedoms are being crushed underfoot by secular laws and court decisions. If one tries to look coldly and objectively at the reality, the situation is not nearly as serious as religious believers routinely assert. The one area of exception is impacts of laws on religious practices in commerce. Impacts on private religious practice mostly range from zero to low and impacts on religious beliefs are zero in all contexts.

In June 2015, the Supreme Court held in Obergefell v. Hodges that a fundamental right to marry existed for same-sex couples under the equal protection and due process clauses of the 14th Amendment. The decision was 5-4 along the liberal vs. conservative divide. It is reasonable to expect that within the next 3-6 years the Supreme Court will reverse that decision and the right will revert to the states.

In the years leading up to the Obergefell decision, conservatives argued, among others things, that same sex marriage was an intense attack on religious freedom and associated freedom of speech. In hindsight, Obergefell probably was a modest to significant factor in Donald Trump's election. Many or most religious conservatives saw American society as launching an all-out war on religion and associated religious freedoms.

Things that can obscure the view - the fog of unconscious bias

Where's the beef?: In the years leading up to Obergefell, there was a lot of debate. As usual, the two sides mostly talked past each other. Also as usual, the combatants tossed out endless arguments based on undefined concepts, e.g., attack on exactly what religious freedom, and unquantified effects, e.g., exactly what are the benefits and burdens in clear, real-world terms.

Making one's own beef: Although someone somewhere probably did an analysis and published it somewhere, there was essentially no acknowledgement by either side of a brutally honest cost-benefit assessment. Essentially no one in the partisan wars was even asking about exactly what freedoms were benefited or burdened by how much and for whom did these costs or benefits apply? Being ignorant of an analysis and tired of the usual empty left vs. right blither, trying to do a home-grown cost-benefit assessment seemed worthwhile. So, that was attempted.

In essence, weighing costs and benefits to freedoms is a matter of generating one or more algorithms that can provide at least a rough burden and benefit estimate. Although the task seemed simple at first, it wasn't. It quickly became obvious that at least two separate algorithms would be needed because impacts on affected groups varied depending on the freedom context. One algorithm focused on cost-benefit in the context of freedom of religion. The second was for cost-benefit in the context of freedom of commerce or economic activity. Once that became clear, the task was fairly straightforward, but still a bit more complicated than one might expect.

Obviously, not all impacts could be assessed, e.g., people's psychological comfort or discomfort with the thought of a wrong-sex person using a public bathroom, even if that might be a rare event or one that a correct-sex person in the bathroom wouldn't always be aware of. Nonetheless, the algorithms were designed to look directly and objectively at the core arguments the two sides were blindly arguing against each other with little objective data for either side being used.

Impacts on freedom of religion and religious speech: Different groups and their sizes that were obvious to consider included number of adult Americans, number of LGBT Americans, number of religious adults, number of religious adults who supported or opposed same-sex marriage, etc. The data was based on poll numbers. The detailed analysis is here.

The logic behind the algorithm was simple. For example, religious freedom burdens for religious opponents of same-sex marriage would obviously be greater than for (i) non-religious opponents, or (ii) all, including religious, people who supported same-sex marriage (most Americans at the time the analysis was done). The trick was to quantify (estimate) burdens and benefits. Obviously same-sex couples who could now marry got all sorts of benefits, e.g., rights of inheritance and other family and spousal benefits that marriage confers. Burdens on religious opponents were more complicated but still estimable to a reasonable degree.

The bottom line was that impacts on religious freedoms weren't severe. Instead, some religious people reacted vehemently and emotionally, but the actual burden on their real-world freedom to practice their religion any way they wanted was low to non-existent. By contrast, the benefits to same-sex people, a small group (about 9 million) who could now marry were very high. The table below outlines the underlying assumptions, logic and rights-impacts for supporters of same-sex marriage.

Impacts on opponents of same-sex marriage are shown below.

IVN published a summary of the analysis that I wrote for them. The public response was nil. In line personal expectations, people weren't much interested in hearing about freedom-rights costs and benefits on an issue that was tearing American society apart. By then, October 2015, it was clear that facts, logic and reason on divisive political issues weren't of much interest to more than a tiny sliver of the American public, maybe about 0.1% based on personal experience.

Impacts of same-sex marriage on freedom of commerce and economic activity: This analysis gave vastly different results. That is because about 142 million people lived in the 22 states and D.C. that had laws banning discrimination in commerce based on sexual orientation (not based on discrimination against same-sex marriage per se). Data: 44% of all U.S. residents reside in states with an anti-discrimination law.; 56% of all people reside in states with no anti-discrimination law.

The detailed analysis is here and the article that IVN published is here.

The upshot was that impacts in commerce for same-sex marriage opponents could be severe enough to put some business owners out of business and their employees out of jobs. Again, public response to the analysis was nil.

The point of this discussion: A reasonable response to the foregoing might be something like "So what?" Good question. So what, indeed. Arguably, looking at freedom burden and benefits would help partially rationalize debates about many issues where the usual left vs. right debate is based on undefined, unquantified concepts, e.g., exercise of religious freedom, burden on freedom of speech, burden on business operations, benefit to society. Based on human cognitive biology, that approach to political issues is a non-starter.

Politics is mostly intuitive, moralistic and intolerant because that's how the human mind processes inputs. Personal beliefs are mostly driven by things other than unbiased facts and logic. Freedom of speech that protects dark free speech as much as honest speech is a major factor that fosters and amplifies unconscious, moralistic thinking. The human species has to survive or die off based on its evolutionary cognitive heritage. Time will tell if that's for better or worse.

B&B orig: 1/28/18

Koch Industries Plans New Propaganda Campaign

The New York Times reports that the Department of Justice is dismissing all charges against Senator Robert Menendez (D-NJ). This case illustrates the extreme difficulty, near impossibility, of prosecuting white collar criminals. Menendez was accused of taking bribes from a doctor in return for lobbying for the doctor's interests.

The NYT writes: “The Department of Justice on Wednesday dismissed all the remaining charges against Senator Robert Menendez, a decision that underscores how a 2016 Supreme Court ruling has significantly raised the bar for prosecutors who try to pursue corruption cases against elected officials.”

“The unraveling of the case against Mr. Menendez is the latest example of how difficult it has become to win public corruption cases after the Supreme Court’s landmark decision to overturn the conviction of the former Republican governor of Virginia, Bob McDonnell, who had been accused of accepting luxury items, loans and vacations in exchange for helping a businessman, Jonnie R. Williams Sr.” “That decision drastically limited the kinds of “official acts” performed by lawmakers that can constitute bribery or corruption, with the court ruling that only specific actions could be deemed to cross a legal line.”

The Supreme Court's 2016 ruling in the McDonnell v United States case was expected to make it harder for prosecutors to prove corruption cases against politicians in cases where there is no proof of an explicit agreement linking a campaign donation or gift to a contract, grant or vote. Those predictions are coming true. Obviously, any sane politician with any awareness will make sure there is no written agreement in bribery or illegal conflict of interest situations.

The implication for president Trump appears to be that prosecutors will have a hard time proving bribery. Whether this more difficult legal burden on prosecutors affects allegations of money laundering or illegal conspiracy isn't clear. In McDonnell's corruption case, the court held that an “official act” does not include simply setting up a meeting, calling another public official, or hosting an event. There has to be something more to show bribery or illegal corruption. Presumably, the same standard applies to Trump.

The NYT reported that Menendez plans to run for re-election to the US Senate for a third term. He has the backing of democratic New Jersey state politicians. Republicans plan to attack Menendez as a corrupt politician.

It seems that the rule of law is under attack from both outside and inside the federal judiciary.

B&B orig: 2/1/18

History: Partisan Defense of Accused President Nixon

“There is nothing which I dread so much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other. This, in my humble apprehension, is to be dreaded as the greatest political evil under our Constitution. . . . . Liberty, once lost, is lost forever.” John Adams, 1775

“By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community. There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. . . . . Liberty is to faction what air is to fire, an aliment without which it instantly expires. . . . . The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.” James Madison, Federalist Papers #10, 1787

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. George Washington, Farewell address to the American People, 1796

Writing an opinion essay for the New York Times, Michael Conway and Jon Marshall argue that the current republican defense of president Trump is not much different than republican defense of president Nixon.

Conway was counsel for the House Judiciary Committee during the Nixon impeachment inquiry. Marshall is an assistant journalism professor. They write: “Reporters and political commentators often express frustrated surprise at the steadfast support of President Trump from most Republicans in the House and Senate. But they shouldn’t — it has happened before.

In fact, when these critics refer back to the Watergate era as a time of bipartisan commitment to the rule of law over politics, they get it exactly wrong. Defending the president at all costs, blaming investigators and demonizing journalists was all part of the Republican playbook during the political crisis leading up to the resignation of President Richard Nixon.

. . . . . In late 1972, when a Democratic congressman, Wright Patman of Texas, began to investigate connections between Mr. Nixon’s aides and the Watergate burglary, the House Republican leader, Gerald Ford of Michigan (who later succeeded Mr. Nixon as president), called it a ‘political witch hunt,’ according to the historian Stanley I. Kutler in his book ‘The Wars of Watergate.’

. . . . . the ranking Republican on the Senate Watergate Committee, Howard Baker of Tennessee — a man often lauded for putting principle over party — met with Mr. Nixon to discuss strategy. To ‘maintain his purity in the Senate,’ Mr. Baker didn’t want anyone to know about meeting Mr. Nixon, wrote the White House counsel, John Dean, in a memo before a meeting with Mr. Nixon. Once the hearings started in late spring of 1973, Mr. Baker’s staff leaked information about the committee’s witnesses and plans to Mr. Nixon.

When Mr. Baker famously asked, ‘What did the president know, and when did he know it?’ during the Watergate hearings, he meant to protect Mr. Nixon in the mistaken belief that the president didn’t know about the Watergate cover-up until many months after it occurred. The question backfired once evidence mounted that Mr. Nixon was involved in the cover-up from the start, and Mr. Baker eventually became a critic of the president.”

Thus, it seems that there is not much new in partisan party politics. That makes sense since the impulse is innate to human biology. President Ford called the investigation into Nixon a political witch hunt. That sounds exactly like Trump and his supporters attacking the Mueller investigation. Democrats defended president Clinton, while republicans tried to impeach him. Given history, one can argue that partisan self-defense ranks above country and the rule of law. Apparently, that is what tribal politics looks like.

President Trump’s admiration for tyranny or autocracy, and his disrespect for the rule of law is publicly professed and well-known. So is his contempt for restraining political norms such as avoiding conflicts of interest. For example, Trump falsely asserted “the law’s totally on my side, meaning, the president can’t have a conflict of interest”.

Clearly, Trump and some or most of his supporters cannot see the warning signs the Founders spoke of. Under the circumstances, including republican control of the House and Senate, Washington’s warning about frightful despotism is something that some Americans alive today just might come to see in their lifetimes.

B&B orig: 8/14/18

Russian Oligarch Warns Trump to Shape Up or Lose next Election

Artem Klyushin -- he warned Trump to shape up or he will be shipped out

If this story is true, it is bizarre. And scary. Independent confirmation of this has not yet come from any reputable mainstream news source as of 9:50 am PST.

The liberal site Raw Story (fact accuracy rating: MIXED) reports a Tweet by Russian oligarch Artem Klyushin that explicitly threatens president Trump to quash American Russophobia or lose the 2020 election. The Tweet is shown below. He posted it here on Twitter on August 15.

Демократы и республиканцы в сша соревнуюются в том, кто больше не любит Россию и кто придумает санкции пожесче. Они набитают на этом политические очки, а страдает народ России. Если @realDonaldTrump не погасит огонь FAKE NEWS разжигающих русофобию - это будет его последний срок.

— АРТЕМ КЛЮШИН  (@ARTEM_KLYUSHIN) August 16, 2018

Google translate:
Democrats and Republicans in the United States compete in the one who no longer loves Russia and who will come up with sanctions posesche [crueler sanctions?]. They stuff [make?] political points on [about?] this, and the people of Russia suffer. If @realDonaldTrump does not extinguish the fire of FAKE NEWS inciting Russophobia - this will be his last term.

Other major media sources are not yet mentioning this, so this Tweet could be a hoax or sick joke of some sort. It is hard to imagine a hoax or joke, since the Twitter post seems to be real.

If this is real, it is a blatant, and undeniable public attack on American democracy and freedom of speech. If this is fake news from a Russian enemy or anyone else, this OP will be deleted. There is no upside in adding garbage to an internet already awash in garbage.

B&B orig: 8/17/18

A Trip in the Russian Countryside

“Eight miles west of the M10 lies the village of Pochinok, one of hundreds of disappearing settlements. The wilderness is closing in around Nina and Vladimir Kolesnikova and their children.”

In 2013, the New York Times published a memorable article about a 430-mile trip from the port city of St. Petersberg to Moscow on Russia’s M10 road. The article, The Russia Left Behind: A journey through a heartland on the slow road to ruin, describes the amazing decay of the Russian countryside and the decline of a Russian rural way of life.

The NYT wrote: “As the state’s hand recedes from the hinterlands, people are struggling with choices that belong to past centuries: to heat their homes with a wood stove, which must be fed by hand every three hours, or burn diesel fuel, which costs half a month’s salary? When the road has so deteriorated that ambulances cannot reach their home, is it safe to stay? When their home can’t be sold, can they leave?

‘The people on the top do not know what is happening down here,’ he [a Russian resident along the way] said. ‘They have their own world. They eat differently, they sleep on different sheets, they drive different cars. They don’t know what is going on here. If I needed one word to describe it, I would say it is a swamp, a stagnant swamp. As it was, so it is. Nothing is changing.’”

Along the way, the NYT reporter stopped along the road to see what a ‘furor’ in a village was about. It was a wedding between a 14-year old bride and the 13-year old groom: “Her eyes and skin had the same honey-gold cast, and she was a head taller than most of the men in the village. At some point in the last year it had become clear that she was on the verge of becoming an unusual, startling beauty, and this, a guest whispered, was the reason her family had sped up the wedding. So that, as he put it, ‘she would not start messing around.’ She looked like a neighborhood teenager hired to baby-sit the groom, Ryoma, who was 13. . . . . The tiny groom sat in a chair in the corner, playing video games on his phone.

The past was tugging on all of them. Before the Soviet Union collapsed, the Education Ministry insisted that all children attend school, but not now. Forty percent of the children here do not study at all, said Stephania Kulayeva of St. Petersburg’s Memorial Anti-Discrimination Center. The vacuum has allowed the tradition of child marriage to come roaring back.”

Toward the end of the wedding festivities, one guest commented to another, “We have no gas, we have no water,” she said. “We have nothing.”

Regarding the M10 road, the NYT wrote: “The M10 highway looks normal enough at the southern limits of St. Petersburg, but then, with a jolt, it begins to atrophy. For the next 430 miles the surface of the highway, while paved, varies from corduroy to jaw-rattling patchwork. Sometimes it has four lanes, sometimes two, with few medians and frequently no lane markings at all.

After a snowstorm in November, about 10,000 vehicles got stuck in a traffic jam that extended more than 70 miles, trapping some drivers for three days in subzero temperatures. Valery Voitko, who heads a trade union of long-haul truck drivers, described his drivers that week as ‘not even angry any more, but in a state of dumb despair, that year in and year out the same thing happens.’

Between the great cities are hundreds of disappearing settlements: towns becoming villages, villages becoming forest. The Soviets cut off support for them during efficiency drives in the 1960s and ’70s, which categorized villages as “promising” or “unpromising.”

But the death of a village is a slow process. A geographer, Tatiana Nefyodova, calls them “black holes,” and estimates that they make up 70 to 80 percent of Russia’s northwest, where Moscow and St. Petersburg act as giant vacuum cleaners, sucking people and capital from the rest of the country.

If once animals living in this forest learned to avoid humans, something now tells them not to be afraid. The other day, Ms. Kolesnikova, 42, emerged from her house and found that her dog’s throat had been torn out. She could make out the tracks of three large wolves across the kitchen garden. ‘They have come to where the people are,’ she said. ‘They are not afraid of the dogs. Why should they be afraid of us?’”

A new road, the M11, is scheduled to open in 2018 mostly along the same route as the existing M10 road, so the situation may improve for people along its path once the new road is open. The M11 has been under construction since 2008. A question is what are conditions like for less important roads? St. Petersburg handles most of the shipping traffic of the two main sea ports in eastern Russia. Roads to less commercially important towns, and economic conditions along them, are likely to be similar to the M10.

There are some parallels between what is happening in Russia and the US, but the degree of collapse appears to be more pronounced. Russia seems to be undergoing a rural population shift to urban areas with more economic activity. Rural-urban tensions are a significant factor in the rise of US populism. whether that will translate into civil unrest in Russia is unknowable. Russian law is generally intolerant toward freedom of speech compared to the US.

Given Russia’s politically restrictive legal situation, rural discontent in Russia may not translate into significant political change. In that case, the observations the NYT wrote about in 2013 may still be ongoing, with small town and villages giving way to slowly encroaching forests and nature.

B&B orig: 8/20/18

Astroturfing

“There is no front because there is total transparency.” --- Prominent public relations operator, Richard Berman publicly stating that he does not set up organizations that are fronts for unnamed special interests posing as real people or groups to advance their own hidden political or economic agendas based on lies, deceit or fake public support

“People always ask me one question all the time: How do I know that I won't be found out as a supporter of what you are doing? We run all our stuff through nonprofit organizations that are insulated from having to disclose donors. There is total anonymity.” --- Prominent public relations operator, Richard Berman privately promising oil industry executives, potential paying clients of his PR firm, that their identities and agendas are never made public

“Astroturfing is the practice of masking the sponsors of a message or organization (e.g., political, advertising, religious or public relations) to make it appear as though it originates from and is supported by grassroots participants. It is a practice intended to give the statements or organizations credibility by withholding information about the source's financial connection.”

On his Last Week Tonight show a couple weeks ago, John Oliver aired a segment on astroturfing. The practice is everywhere in public life. All kinds of special interests pay to generate lies, deceit and fake public support for various causes, all of which is intended to deceive the public and governments about the real agenda and its financial backers. In some cases, experts are hired to just make things up in testimony before legislatures so that proposed legislation can be supported or opposed by economic or political interests who want to remain anonymous.



In addition to Berman’s wonderfully opaque comments above, Oliver commented that companies hire people, often for roughly $50-$200, to show up at public meetings, demonstrations and so forth to express their support or opposition for whatever they are paid to support or oppose. In one case, the paid shills received the following instructions:
1. Tell nobody you are being paid
2. Tell nobody you are being paid
3. Media will be present, do not talk to them
4. Tell nobody you are being paid
5. If someone approaches you, don't tell them you are being paid

The CEO of one company, Crowds on Demand, stated the shills his company hires do not trick people, but instead ‘engages’ them. In response to that, Oliver commented that Crowds on Demand engages people by tricking them.

Oliver’s point was to argue that this kind of activity is toxic and fosters cynicism, but it cannot be stopped. Oliver’s segment raised a couple of points. First, companies that engage in astroturfing do not care about truth or anything other than their own economic or political interests. Second, the businesses that cater to astroturfers do not care about truth or anything other than their own economic interests. Third, the people who participate as astroturfers do not care about truth or anything other than their own economic interests.

Is astroturfing and/or the people and businesses involved moral, immoral or amoral, or is astroturfing irrelevant to morality? It certainly isn't illegal because astroturfing is a legal commercial activity and the speech (lies, deceit, fake public support, opacity) involved is protected free speech.

One final observation: It is odd that one can often find out more about exactly how politics works by watching comedians skewer it than by listening to traditional information sources. There is no obvious reason to distrust any of the factual content that Oliver used. At least for this topic, he arguably is more trustworthy than most politicians and far more trustworthy than anyone or any business involved in astroturfing.

B&B orig: 8/21/18