The Expanding Power of the Free Exercise Clause: An Uncomfortable Example

A couple of discussions here focused on why the radical right has weaponized the legal interpretation of the free exercise clause. It has gone from a shield that defended religious practice to a sword that is now aggressively cutting through secular society and government to gain more political power and secular wealth for Christianity.

My discussion yesterday listed a few rule changes that the president is rushing to finalize before Jan. 20. Some of the rule changes hinge on the new weaponized free exercise clause. A good example is a proposed federal rule change that will allow religious groups to do work under a federal contract, paid for by tax dollars, and at the same time discriminate on the basis of religion against any potential employee working on the federal contract.

Thus, if a Catholic group or company gets a federal contract and people need be hired to do the work, the group or company can choose to hire and employ only Catholics and refuse to hire atheists, non-Catholics and even Catholics who they deem to be insufficiently Catholic. If a hired person is found to be unacceptable on the basis of the chosen religion, they can be fired for it. 

Before this, religious groups could not discriminate against employees on the basis of religion. If this rule goes into effect, that kind of discrimination becomes legal.

Again, it is time to revoke all tax privileges for at least all American religious groups and companies that play politics. Maybe it is time to do that regardless of political involvement or not. 

The rule change is referred to as Implementing Legal Requirements Regarding the Equal Opportunity Clause's Religious Exemption. A detailed description of it is at this link. The proposed rule change, Allowing Religious Exemptions for Federal Contractors, is summarized by ProPublica as shown below. 

The federal description uses incredibly complex and needlessly verbose language. That is done to try to hide from the public what the rule change is intended to do. The ProPublica summary above states what the the rule change will do.

The federal description is at this link, which is a massive tome that almost no one will read. That is what the drafters intended. The people who are familiar with this beast are certain religious organizations who want federal contracts and the ability to discriminate against employees on the basis of their religious beliefs, or lack thereof. Religious groups want to sink their claws into federal contracts and discriminate. That is a win-win for the religious folk and a lose-lose for taxpayers who oppose the use of their tax dollars to blatantly support religion. 

Simply put, some religious groups do not want to hire or retain any stinking atheists or any nasty people of other religions. The paragraph quoted below below is one of many at the link to the federal rule change page. I think this paragraph actually says what the rule change will do. The core intent in the two core sentences are emphasized for clarity:

Some religious organizations have previously provided feedback to OFCCP that they were reluctant to participate as federal contractors because of uncertainty regarding the scope of the religious exemption contained in section 204(c) of Executive Order 11246 and codified in OFCCP's regulations. This proposal is intended to provide clarity regarding the scope and application of the religious exemption consistent with the legal developments discussed above by proposing definitions of key terms in 41 CFR 60-1.3 and a rule of construction in 41 CFR 60-1.5. Among other changes, this proposal is intended to make clear that the Executive Order 11246 religious exemption covers not just churches but employers that are organized for a religious purpose, hold themselves out to the public as carrying out a religious purpose, and engage in exercise of religion consistent with, and in furtherance of, a religious purpose. It is also intended to make clear that religious employers can condition employment on acceptance of or adherence to religious tenets without sanction by the federal government, provided that they do not discriminate based on other protected bases. In addition, consistent with the administration policy to enforce federal law's robust protections for religious freedom, the proposed rule states that it should be construed to provide the broadest protection of religious exercise permitted by the Constitution and other laws. While only a subset of contractors and would-be contractors may wish to seek this exemption, the Supreme Court, Congress, and the President have each affirmed the importance of protecting religious liberty for those organizations who wish to exercise it.

Based on that language, it seems that a religious group or company can win a bid for a government contract and engage in exercise of religion consistent with, and in furtherance of, a religious purpose. That sounds a church can use like tax dollars in furtherance of, a religious purpose, which seems to mean that the free exercise clause has obliterated the constitutional establishment clause. The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” 

How can one distinguish mere free exercise of religious practice and belief from things, like profits from government contracts, that help establish and maintain religious activities? It really does look like free exercise has obliterated the establishment clause. That legal change would seem to be a key goal of American Christian nationalist ideology.

Are the Christian thought police coming? Seems so.

Also, one can reasonably ask, does this proposed rule represent the first regulation in modern times that can legally punish thoughts? For example, if a religious contractor finds out that an otherwise outstanding employee does not believe that any God exists and then fires that employee for that belief, does that firing amount to punishment for merely having that belief or thought? 

It sure looks that way to me. If that isn't what this amounts to, then exactly what is it? Merely relying on the free exercise clause to practice Christianity as the Christian in charge sees fit? What would Jesus have to say about this? Did Jesus (or God) advocate discriminatory hiring and employment practices with or without the Pharaoh's tax dollars?

GENIUSES ONLY

 

Who The President And GOP Are Really Working For

ProPublica has a list of executive orders and rules that the president has been putting into place for at least the last few months. Now that Biden has won, there seems to be greater urgency in smashing as many of these poison pills as possible into force before Jan. 20. Because inquiring minds want to know, here are some of them to exemplify the quiet toxicity the president is unleashing on the American people. To people with an open mind, these clearly show that the president works mostly for special interests and wealthy people, including himself personally (see the pending showerhead efficiency standards rule change), often to the detriment of regular Americans, the environment and/or consumers. There are more of these nasty gems at the ProPublica link. 

Half the public are willing to get vaccinated against COVID-19, the highest level yet

For the first time since the Economist/YouGov Poll began asking in the summer whether or not they will get vaccinated against COVID-19 once a vaccine became available, half of Americans say they will. This is twice as many as those who reject vaccination, and includes a plurality of Republicans, who on occasion have been particularly resistant to vaccination.

Half of registered voters say they will get vaccinated when a coronavirus vaccine becomes available

46

The most accepting group are those who may need the vaccine most – people 65 and older.  By nearly four to one they say they will get the vaccine, their highest acceptance ever.  But no age group this week rejects the vaccine.  However, another group that has been severely impacted by the pandemic – African-Americans – aren’t so sure about the vaccine.  As many say they won’t be vaccinated as say they will, but even more say they just don’t know what they would do.

The positive news about effectiveness and safety – now for three different vaccines – clearly matters to Americans.  Three in four are now convinced that the vaccine will be available to the general public by next summer.  There are still worries about a fast-tracked vaccine’s safety: just over half of those who say they will be vaccinated are somewhat concerned about its safety. Those who say they won’t be vaccinated are particularly worried: nearly two-thirds of them describe themselves as very concerned about the safety of potential vaccines. 

Two in three registered voters are concerned about the safety of the coronavirus vaccines

Vaccines have not always provoked this sort of skepticism.  In the first question asked about the Salk polio vaccine (by Gallup in 1954), 57% said they wanted their children to be vaccinated against polio. In 2009, 93% of the public in a Harvard School of Public Health survey believed childhood vaccinations against diseases like polio and measles, among others, were safe (59% described them as very safe).

As they did in 2009, most Americans accept vaccination in general.

Republicans are more likely to believe COVID-19/vaccine conspiracy theories

The survey put several vaccine theories to Americans. The idea that vaccines cause autism isn’t bought by 81% of Americans. Likewise, 87% say COVID-19 is not a hoax. However, fewer – 59% – reject the idea that the threat of coronavirus has been exaggerated for political reasons. These are much the same results as in March, at the start of the pandemic.

Belief in coronavirus conspiracy theories is higher among Republicans than Democrats

Belief in all three of conspiracy theories is higher among Republicans than Democrats, though the link to autism shows the smallest partisan difference.  Believing any of these statements makes one less likely to be willing to get vaccinated. Only a third of those who believe the threat of coronavirus has been exaggerated say they will get vaccinated, just over one in five who say the coronavirus is a hoax will get vaccinated, and even fewer of those who believe vaccines cause autism would.

The role of politics in responses about vaccinations, as well as general coronavirus skepticism, have been important in how people view the pandemic. Three in ten Republicans (30%) but just 1% of Democrats believe it is safe to stop social distancing now.  While eight in ten Democrats always wear a mask when they go out of their home, just half of Republicans do.  While nearly half of Republicans worry about contracting COVID-19, that percentage is dwarfed by the 82% of Democrats who say that. 

https://today.yougov.com/topics/politics/articles-reports/2020/11/30/half-public-are-willing-get-vaccinated-against-cov

Compromise vs. Common Ground

Context

The federal government is gridlocked in terms of legislating and it will very likely stay that way for a long time. One reason, probably the main reason, is that the radical right refuses to compromise. Of course, the radical right rejects that and blames the left. Politicians on the right sometimes used to refer to finding common ground as the way to get things done in the federal government. That raises the question of exactly what finding common ground means and how it works. It turns out that ground will not end gridlock.  

Biden is hosed: It is very likely that Biden will not get any period of goodwill with cooperation from the GOP in congress. The days of a legislative honeymoon with congress after a new president is sworn in are dead, gone and not coming back any time soon, if ever. Those honeymoons used to reflect a now-extinct belief in the GOP that elections have consequences if a democratic president is elected to office. That was clear after Obama’s election in 2008. What is happening now with vicious GOP attacks on the 2020 election is a matter of pounding more nails in the already sealed coffin that holds the long-dead corpse of the legislative GOP honeymoon.

Compromise vs. common ground

In a well-known 2011 interview, former House speaker John Boehner attacked and rejected compromise as a governance tool:

BOEHNER: We have to govern. That's what we were elected to do.
STAHL: But governing means compromising.

BOEHNER: It means working together.

STAHL: It also means compromising.
[ . . . ]
BOEHNER: I made clear I am not going to compromise on my principles, nor am I going to compromise . . . the will of the American people.
STAHL: And you’re saying, “I want common ground, but I’m not going to compromise.” I don’t understand that. I really don’t.
BOEHNER: When you say the word “compromise”. . . a lot of Americans look up and go, “Uh-oh, they’re going to sell me out.”
[ . . . ]
STAHL: . . . you did compromise [to get all the Bush tax cuts made permanent]?
BOEHNER: . . . we found common ground.
STAHL: Why won’t you say–you’re afraid of the word.
BOEHNER: I reject the word.

 

In October of 2011, the Washington Post wrote: “‘My message to you today is simple: faith in government has never been high, but it doesn’t have to be this low,’ Boehner said, according to his prepared remarks. ‘The American people need to see that despite our differences, we can get things done. We can start by recognizing that ‘common ground’ and ‘compromise’ are not the same thing.’” 

It was clear that by 2011, if not earlier,[1] the radical right had rejected compromise as a legitimate tool of democratic governance. The radical right sleight of hand called finding common ground meant no compromising, which was the real goal. And, now in 2020, the radical right usually does not even pretend to worry about compromise, finding common ground or whatever other euphemism it might come up with to deflect from its central role as being the core source of partisan obstructionism.[2]

Arguably, the GOP no longer governs mostly in the name of the public interest, the will of the people or the rule of law. It rules mostly in the name of party and the special interests who financially support it. 

What else is there?

Given the seriousness of the compromise and gridlock problems, and they are gravely serious, what else has been said about compromise and common ground in politics? 

One source, the Common Ground Committee, discussed the merits of finding common ground at length (transcript, podcast). One useful suggestion was to look for smaller issues or nuance where there is bipartisan agreement in bigger divisive issues such as healthcare or immigration. That constitutes common ground, but it offers no insight into how to reach compromise on bigger issues. 

Another source argues that finding common ground is sometimes useful, but more often it’s an impediment to compromise. It can get in the way of facing the difficulty and cognitive dissonance of actual compromise. 

“Where common ground agreements can be found, they can in fact serve the common good. But they are not the only – or even the most productive–way to pursue that goal. The classic compromise – where all sides gain on balance but also sacrifice something valuable to their opponents – is a more promising route to the common good. ..... To begin to make compromise more feasible and the common good more attainable, we need to appreciate the distinctive value of compromise and recognize the misconceptions that stand in its way. A common mistake is to assume that compromise requires finding the common ground on which all can agree. That undermines more realistic efforts to seek classic compromises, in which each party gains by sacrificing something valuable to the other, and together they serve the common good by improving upon the status quo. ..... Common ground agreements are morally and politically attractive because they have a principled coherence from all perspectives. ..... Consensus on common ground is desirable if it can be found. But the common ground is more barren, its potential for yielding meaningful legislation more limited, than the inspiring rhetoric in its favor might suggest. ..... Another problem with common ground agreements is that trying to find the usually small points of policy convergence is likely to prove less effective in addressing major issues than combining big ideas from the partisans. 

The most serious problem with the preoccupation with the common ground is that it undermines the pursuit of the more challenging but more promising form of agreement: the classic compromise. In a classic compromise, all sides sacrifice something in order to improve on the status quo from their perspective. The sacrifices accepted in a classic compromise are at least partly determined by the opposing side’s will, and they therefore require parties not merely to get less than they want, but also, due to their opponents, to get less than they think they deserve. ..... Classic compromises serve the common good not only by improving on the status quo from the agreeing parties’ particular perspectives, but also by contributing to a robust democratic process. ..... So if compromise is to be achieved on these major issues, we must value agreements that are less morally coherent and less politically appealing than those that rest on common ground or an overlapping consensus.” (emphasis added)

That argues that finding common ground is usually not as good as compromise. Instead, it  can be a means to avoid actual compromise and maybe for at least some people, creating a false appearance of getting something significant done. That source argues that governance by common ground is a utopian mirage. Unfortunately, real compromise generally creates moral dissonance, leaving compromises open to criticisms of confusion, political treason and surrender. Moralization and attendant weaponization of politics and political issues (discussed here), e.g., the pandemic, helps make compromise more difficult. 

Morally weaponized politics is what the radical right intends. That works to its advantage because it is easier to stop government by fomenting the moral dissonance that compromise creates than it is to get something done by government. The radical right hates government. It hates a functioning government. It tries to break government so it won’t compromise and thus won’t work .

Again, Biden is hosed.

Footnotes: 

1. It was clear that by early in 2009, prompted by the election of Obama, radical right elites decided they were done with compromise. They decided that all-out opposition, no cooperation and no compromise with any democrat, including Obama, was the best strategy for the GOP going forward. That remains true today. When bills passes congress today, it is because the subject matter does not trigger intense radical right resistance or because failure to pass the bill would probably hurt the radical right too much. In 2011 Boehner was still blithering and deceiving about finding common ground, because the radical right (i) believed its rank and file still had some feeling that compromise was at least occasionally necessary, and (ii) did not want to appear obstructionist. With the exception of bills to avoid shutting the government down or defaulting on the mostly GOP federal debt, such qualms are now generally gone. 

2. The trend goes back even farther than 2009. At one time, compromise was considered a virtuous outcome. Today, the radical right and its endless dark free speech regard it as treason. Politico wrote this in 2011 about how the Senate had become dysfunctional by the late 1990s:

Today we have an increasing tendency to approach every task — and each other — in an ever more adversarial spirit. Nowhere is this more evident, or more destructive, than in the Senate.

Though the two-party system is oppositional by nature, there is plenty of evidence that a certain (yes) comity has been replaced by growing enmity. We don’t have to look as far back as [Henry] Clay for evidence. In 1996, for example, an unprecedented 14 incumbent senators announced that they would not seek reelection. And many, in farewell essays, described an increase in vituperation and partisanship that made it impossible to do the work of the Senate.

“The bipartisanship that is so crucial to the operation of Congress,” Howell Heflin of Alabama wrote, “especially the Senate, has been abandoned.” J. James Exon of Nebraska described an “ever-increasing vicious polarization of the electorate” that had “all but swept aside the former preponderance of reasonable discussion.”

 

Regarding Republican Motivated Reasoning: A Moral Question

Did Jane get it right? 

Or is she talking more about hypocrisy than morality, or about both ~equally?

When a citizen gives his suffrage to a man of known immorality he abuses his trust; he sacrifices not only his own interest, but that of his neighbor; he betrays the interest of his country. -- Noah Webster

Motivated reasoning: Emotionally-biased reasoning that produces desired justifications or decisions, but not necessarily ones that accurately reflect the evidence or sound reasoning; motivated reasoning is conscious and leads to reduced cognitive dissonance, which is discomforting for most people; it reflects the tendency to find facts or arguments in favor of conclusions we want to believe; in politics this often happens even when the facts or arguments are false or flawed, i.e., when truths are inconvenient

Context

Multiple sources are reporting that ongoing efforts to overturn the 2020 election is nonsense. The reporting is getting more pointed and critical. For example, the New york Times writes:

“The telephone call would have been laugh-out-loud ridiculous if it had not been so serious. When Tina Barton picked up, she found someone from President Trump’s campaign asking her to sign a letter raising doubts about the results of the election.

The election that Ms. Barton as the Republican clerk of the small Michigan city of Rochester Hills had helped oversee. The election that she knew to be fair and accurate because she had helped make it so. The election that she had publicly defended amid threats that made her upgrade her home security system.

“Do you know who you’re talking to right now?” she asked the campaign official.

Evidently not.

If the president hoped Republicans across the country would fall in line behind his false and farcical claims that the election was somehow rigged on a mammoth scale by a nefarious multinational conspiracy, he was in for a surprise. Republicans in Washington may have indulged Mr. Trump’s fantastical assertions, but at the state and local level, Republicans played a critical role in resisting the mounting pressure from their own party to overturn the vote after Mr. Trump fell behind on Nov. 3.”

CNN interviewed Senator Roy Blunt (R-MO) this morning about the president’s and GOP ongoing attacks on the election. In response, Blunt offered the standard radical right motivated reasoning to deflect and weasel out of giving direct answers. The interviewer (Dana Bash) tried hard to pin him down, but he was unpinnable and weaseled out. What little substance Blunt did offer was a combination of deflection and motivated reasoning. One source commented on the interview: 

“‘The President wants to see this process play out,’ Mr Blunt said. ‘The president-elect technically has to be elected president by the electors. That happens in the middle of December,’ the senator said, referring to the electoral college that is chosen to represent each state based on the results of its popular vote.”

Other major republican politicians have repeatedly defended the numerous verbal and court case attacks on the 2020 election in the name of massive voter fraud. That is a lie the republicans and president falsely claim to undermine the election and generate unwarranted but intense distrust amone rank and file republicans in both the election result and Biden’s legitimacy.

The moral question

The president and republican leadership have the right to continue to (i) lie about the election being seriously fraudulent or flawed, and (ii) undermine its and thus Biden’s legitimacy. Among other bad things, these tactics damage democracy, polarizes the republican rank and file and generates unwarranted distrust in elections and fellow citizens. Doing this is legal. But is it moral?

For people who believe that the ends justify means, including deceitful, divisive means like this, what the GOP leadership and president are doing is justified and thus morally acceptable. But that reasoning appears to be persuasive with only about 35-40% of adult Americans. Republicans do this dirty work in the name of party, tribe or some other ideal or political goal and that is good enough. 

For people who believe it is not justified to use deceit or to foment social division to create false beliefs, these tactics can reasonably be seen as immoral. 

Is there a different or better way to analyze this moral question? For example, does it matter that decades of relentless radical right propaganda smearing liberalism, democrats and the democratic party has created a false image of evil and corruption among some or most republicans and significant numbers of independents? Or is the rhetoric from the right basically accurate and thus deceit and social polarization, distrust and discord are acceptable collateral damage in politics?  Or, is morality not even a relevant concern, e.g., because morals are personal and subjective?