How radical right Christian nationalism sees civil liberties in legal battles

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.” -- former US Attorney General, Edward Levy, An Introduction to Legal Reasoning, 1949 (the legal view expressed here, American legal realism, is now locked in a bitter fight against Christian nationalist legal theory that holds the Constitution and law to be frozen in time and Christian fundamentalists are the ones who know what the Constitution means, not the legal realists -- at present, the CN's fundamentalist biblical worldview dominates the US Supreme Court)

An amicus brief in support of a draconian Mississippi anti-abortion law was filed in a lawsuit now before the Supreme Court. The brief exemplifies some of the thinking behind radical right Christian nationalist (CN) ideology and intent. These people are dead serious about gutting abortion rights and other civil liberties. This brief reveals the intensity of the legal war that bigoted fundamentalist Christianity is now waging against, e.g., democracy, secularism, pluralism, mainstream social norms and civil liberties in America.

This case is important because it could be the one the radical CN judges decide to use to overturn Roe v. Wade (1973) and either (i) leave abortion rights up to the states, or (ii) mostly or completely eliminate the legality of abortions nationwide. This might be the moment that fundamentalist Christians have been fighting for beginning some time after the Roe decision. We will find out on or before June 30, 2022, the last day of the current Supreme Court term. Oral arguments in this case are scheduled for Dec. 1.

Attacking reliance interests

When the Supreme Court considers overturning a precedent, it can choose to consider if getting rid of the precedent, Roe in this case, would harm people by pulling the legal rug from under them as they acted in reliance on the precedent. Specifically, does a woman who gets unintentionally pregnant after consensual sex have any reliance interest in her right to an abortion if she chooses to abort the fetus? The CN legal argument is that Roe and a related case, Planned Parenthood v. Casey, (1992) show that there are no reliance interests at stake and thus the court can overturn Roe without harming anyone. The Casey case was decided in part on a court majority that argued there is a reliance interest. The amicus brief attacks the reliance interest argument like this:

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 874 (1992), a plurality of justices doubled down on this court-invented right, while announcing a new and amorphous “undue burden” standard to judge the constitutionality of pre-viability restrictions on abortion. This fabrication atop a fabrication has proven to be non-falsifiable, as there is no way to determine when a “burden” crosses the line from “due” to “undue,” apart from a judge’s personal desire to see an abortion regulation enforced or thwarted.

In its attack on Casey, the CN brief addresses the issue that Casey court raised about abortion being needed for women to control their reproductive lives. The brief attacks this idea and coldly rejects it as nonsense: 

The third problem is with the Casey plurality’s false assertion that women would no longer “control their reproductive lives” if Roe were to be overruled. See Casey, 505 U.S. at 856 (plurality opinion). Women can “control their reproductive lives” without access to abortion; they can do so by refraining from sexual intercourse. The only time abortion is needed to ensure women’s ability to “control their reproductive lives” is when a pregnancy results from non-consensual behavior as in cases of rape, or when a pregnancy is endangering her life.  

So there you have it, a woman who gets pregnant after consensual sex and becomes pregnant with an unwanted fetus bears the responsibility for her choice. In CN legal thinking and religious morality, forcing a woman by law to carry a pregnancy to term and bear an unwanted child has no impact on her control of her reproductive life. There is not one shred of fundamentalist Christian understanding or empathy for the fact that a pregnancy might be unwanted or arise despite the proper or improper use of contraception by one or both parties. 

As Christian fundamentalists see this, it is the woman's choice to have sex and bear the life-changing consequences of an unwanted pregnancy. She assumed the risk. God demands the law to be this way.

Court credibility

In what is circular reasoning, the brief also rejects the idea that if the court overturns Roe, the public will see that as a political decision, not a legal one:

Pro-abortion commentators have become fond of saying that the Court’s “institutional credibility” will be harmed if the Court overrules its lawless and unconstitutional ruling in Roe. But they never explain what, exactly, they mean by this. If their point is that overruling the court-invented right to abortion will engender criticism and opposition, they are surely correct. The editorial pages of the nation’s newspapers will be very unhappy if the Court overrules Roe. Pro-abortion politicians will denounce the Court. And pro-abortion law professors will circulate and sign letters bemoaning the Court’s decision. 

But why should anyone think that will hurt the Court’s institutional credibility? The Court’s institutional credibility comes from its demonstrated adherence to the Constitution and the laws—not from whether its decisions find approval from newspaper editorialists or the managerial class. There will always be cynics who view the Court as nothing more than a political institution, and those are the people who are pressuring the Court to retain Roe when they know full well that there is nothing in the Constitution that can possibly support the decision. Trying to preserve the Court’s “institutional credibility” with that audience is a fool’s errand. These are the legal realists who have given up on the idea of law and regard the judiciary as nothing but a tool through which they impose their preferred policies on the nation.

So there you have it, plain as day. People who see politics in a court decision dominated by radical right CN judges who were put on the court by having necessarily passed political litmus tests, specifically including intense CN antipathy to abortion rights and the Roe decision, are just a bunch of implacable cynics. 

As we know, cynics usually act out of ill-will and bad faith. Those cynics include Democratic justices on the Supreme Court who might oppose overturning Roe. Obviously, all Democrats and other people who see politics in overturning or restricting Roe are cynics. Only righteous fundamentalist Christians and people agree with them can act in goodwill and good faith. 

So, are are the legal realists the ones who have given up on the idea of law and regard the judiciary as nothing but a tool through which they impose their preferred policies on the nation, or is that mostly the domain of self-righteous CN radicalism? Notice that that reference to “legal realists” is a direct attack on American legal realism, discussed here in the 1949 book, An Introduction to Legal Reasoning. 

Legal realism sees the law as changing with society and technology, in part because the law is so hard to change and in part because congress is inept in drafting laws[1] and in part because of some other things. In that book, one can see the seeds of conflict between the Constitution as a living document vs the Constitution as a frozen in time document, which modern CN legal reasoning relies heavily on. For the CN political movement, God is the arbiter of the meaning and scope of the frozen document and courts have nothing to do with it except to express God’s will.

In addition to its attack on abortion rights, the brief includes a blast at the 2015 Obergefell v. Hodges Supreme Court decision that held there was a right to marriage for same-sex couples.[2] The CN movement and its ideology are almost as hostile to same-sex marriage and the LGBQT community as it is to abortion, which it sees as murder. Same-sex marriage is merely an abomination in God’s eyes, but not murder.

Questions: Who are the cynics here, frozen in time CN radical fundamentalists or not frozen in time legal realists? Is most of the American public aware of the high stakes in legal battle between legal realism and Christian fundamentalist legal dogma, e.g., an authoritarian fundamentalist Biblical, White race-centric worldview and law vs. secularism, pluralism, civil liberties and democracy? 

Footnotes: 

1. Regarding congressional incompetence, this was by the radical right extremist Ben Sasse (R-NE), during the bitter Senate confirmation hearings for Brett Kavanaugh: 

“. . . . . the people don't have a way to fire the bureaucrats. What we mostly do around this body is not pass laws. What we mostly decide to do is to give permission to the secretary or the administrator of bureaucracy X, Y or Z to make law-like regulations. That’s mostly what we do here. We go home and we pretend we make laws. No we don’t. We write giant pieces of legislation, 1200 pages, 1500 pages long, that people haven’t read, filled with all these terms that are undefined, and say to secretary of such and such that he shall promulgate rules that do the rest of our dang jobs. That’s why there are so many fights about the executive branch and the judiciary, because this body rarely finishes its work. [joking] And, the House is even worse.”

2. The brief includes this blast at same-sex marriage:

The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage. See Lawrence, 539 U.S. 558; Obergefell, 576 U.S. 644. These “rights,” like the right to abortion from Roe, are judicial concoctions, and there is no other source of law that can be invoked to salvage their existence. Mississippi suggests that Obergefell could be defended by invoking the “fundamental right to marry” which is “ ‘fundamental as a matter of history and tradition.’ ” But a “fundamental right” must be defined with specificity before assessing whether that right is “deeply rooted in this Nation’s history and tradition.” See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (requiring federal courts to employ a “careful description” of conduct or behavior that a litigant alleges to be protected by the Constitution, and forbidding resort to generalizations and abstractions). Otherwise long-prohibited conduct can be made into a “fundamental right” that is “deeply rooted in this Nation’s history and tradition,” so long as a litigant is creative enough to define the “right” at a high enough level of abstraction. The right to marry an opposite-sex spouse is “deeply rooted in this Nation’s history and tradition”; the right to marry a same-sex spouse obviously is not.

This is not to say that the Court should announce the overruling of Lawrence and Obergefell if it decides to overrule Roe and Casey in this case. But neither should the Court hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are as lawless as Roe. (emphasis added)

Leave lawless same-sex marriage rights hanging by a thread. The CN legal strategy, just like its sacred ideology, is deeply anti-civil liberties, except for White Christians, especially males. That is just how God wants it. “Hanging by a thread” same-sex marriage rights is what the CN Supreme Court just might deliver sometime next June, along with its decision about Roe.

Trump sues niece, NY Times over records behind ’18 tax story

 NEW YORK (AP) — Former President Donald Trump on Tuesday sued his estranged niece and The New York Times over a 2018 story about his family’s wealth and tax practices that was partly based on confidential documents she provided to the newspaper’s reporters.

Trump’s lawsuit, filed in state court in New York, accuses Mary Trump of breaching a settlement agreement by disclosing tax records she received in a dispute over family patriarch Fred Trump’s estate.

The lawsuit accuses the Times and three of its investigative reporters, Susanne Craig, David Barstow and Russell Buettner, of relentlessly seeking out Mary Trump as a source of information and convincing her to turn over documents. The suit claims the reporters were aware the settlement agreement barred her from disclosing the documents.

The Times’ story challenged Trump’s claims of self-made wealth by documenting how his father, Fred, had given him at least $413 million over the decades, including through tax avoidance schemes.

more on this story:

https://apnews.com/article/donald-trump-courts-lawsuits-business-newspapers-da4689bcce1e58c15fc909377fa3a450

A political war story: Fascist Republican demagoguery fights against truth in court

A 1951 description of post-truth hell

“Everyone is entitled to his own opinion, but not his own facts.” -- attributed to James R. Schlesinger; this is no longer always true, at least some liars are entitled to use their own lies and are sometimes richly rewarded for doing so 

The stolen election legal war

A successful new legal strategy against defamation lawsuits has spread from a lawsuit against Tucker Carlson by Karen McDougal to other cases. In that case, Carlson argued through his Fox attorneys that he could not be liable for defamation because no reasonable person would believe he was serious. The court accepted that he was an bloviating entertainer who dispenses “non-literal commentary” for a living. Despite the fact that in court and under oath Carlson claimed that he is a liar and blowhard, millions of people still take him seriously.

That strategy has spread to defamation lawsuits by Dominion Voting Systems against attorneys such as Sidney Powell and Rudy Giuliani for falsely claiming that Dominion somehow helped steal the 2020 election from the ex-president. Powell and others are trying Tucker’s Liar Defense and are claiming they should not have been taken seriously and are thus not liable for defamation. That is despite the fact that tens of millions of people took them seriously and still believe the election was stolen. Powell still claims that although no one should have believed her, she knows the election was stolen. Maybe that reflects the brilliant post-truth, pro-ex-president election rhetorical tactic, “don’t take ’em literally, but take ’em seriously.” That was true propaganda brilliance, leaving people free to believe whatever they want regardless of what someone says. That is true post-truth.[1]

The New York Times now reports that even before Powell and Rudy started spreading stolen election lies, the ex-president's campaign had investigated  the allegations and found them to be false. The NYT writes about documents released in a court filing:

The documents also suggest that the [ex-president’s] campaign sat on its findings about Dominion even as Sidney Powell and other lawyers attacked the company in the conservative media and ultimately filed four federal lawsuits accusing it of a vast conspiracy to rig the election against Mr. Trump.

Even before the lies started flying in lawsuits, the campaign knew that (i) Dominion did not use voting technology it was falsely claimed to be using in the 2020 election, (ii) Dominion had no direct ties to Venezuela or to Mr. Soros as falsely claimed, and (iii) there was no evidence that Dominion had any connections to left-wing Antifa activists as falsely claimed. That is some of what the stolen election liars were claiming in public and in their lawsuits against the stolen election whopper.

The open question is whether such facts will make any difference or not. They may not. If the defense claim is that the liars are not liable for defamation because everyone knows that they are liars, what the liars knew was false should not make any difference. If that legal strategy works, it appears to provide a fun and easy but foolproof defense against defamation liability. The liar just has to assert some lies in public to establish their liar credentials. Then they are shielded and can go on to defame anyone they want, claiming that no one should take them seriously because they are liars and have the evidence to prove it. 

If that legal analysis turns out to be right, and I hope it cannot for legal reasons I am unaware of, the American system of law will have degenerated into stupidity and corruption in political speech related cases. The last small vestige of restraint on lies in politics will have fallen to anti-democratic demagoguery, fascist demagoguery in this case. Even if this defamation defense tactic fails, the fact that it has to be beat down in court exemplifies just how morally degenerate that radical right demagogic political rhetoric has become. Demagogic liars gain public trust by showing tribe or cult loyalty by lying in public. 

We were warned in 1951 about this. Well, here its is again, straight back from the political hell of the ~1930s-1940s.

Questions: 

1. Since demagogues, dictators, kleptocrats and the like always resort to divisive, polarizing  propaganda, what defenses does society have against this kind of anti-democratic attack and moral rot? 

2. Is dark free speech[2] inherently anti-democratic?

Footnotes: 

1. In a 2019 paper, a researcher described post-truth like this: 

“.... in its purest form, post-truth is when one thinks that the crowd’s reaction actually does change the facts about the lie .... what seems to be new in the post-truth era is a challenge not just to the idea of knowing reality but to the existence of reality itself. .... [the] post-truth relationship to facts occurs only when we are seeking to assert something that is more important to us than truth itself. Thus, post-truth amounts to a form of ideological supremacy, whereby its practitioners are trying to compel someone to believe in something whether there is good evidence for it or not. .... [post-truth is] a world in which politicians can challenge the facts and pay no political price whatsoever.”

2. Dark free speech: Divisive, polarizing lies, deceit, irrational emotional manipulation, partisan motivated reasoning, defamation, etc. intended and crafted to create, among other things, needless confusion, distractions, and unwarranted distrust, fear, anger, hate, bigotry, etc.

The role of morals and morality in modern American religious politics

“Mark my word, if and when these preachers get control of the [Republican] party, and they're sure trying to do so, it's going to be a terrible damn problem. Frankly, these people frighten me. Politics and governing demand compromise. But these Christians believe they are acting in the name of God, so they can't and won't compromise. I know, I've tried to deal with them.” -- ascribed to traditional conservative Republican, Barry Goldwater, probably sometime in the 1960s

A commenter here recently made these comments regarding Catholic church dogma and teaching:

But [the fact that many Catholics who have abortions, affairs, lie, cheat, or steal defy church indoctrination] does not alter what the Church claims: that no one has the moral agency of conscience and every civil authority, including that of elected governments, is --in all matters concerning morals-- subservient to its claimed spiritual authority.

And that means that, in the Church's view, its word constitutes a higher law. And, because of this, it claims also that people have no right to make laws affecting morals without the Church being in agreement ... which means that everyone is ultimately subject to them rather than the civil authority conferred by self-government in a free and democratic society.

That is what Christian Nationalists want by establishing their theocracy over democracy, and that is why the majority SCOTUS has sided with these Christian Nationalists, for they learned as children that God's law (as interpreted by the Church) was above all human laws, including those which protect and preserve the liberty of all in civil society.

That raised an important but obscure to most (~95% ?) point that puzzled me for years until I figured it out ~10 years ago. By injecting morality into an expanded range of political issues, the Christian nationalist (CN) movement was effectively expanding the scope of issues it could demand in the name of God to have veto power over. By doing that, the CN movement was expanding its claim to sacred power over secular government.[1]

Radical right and CN politicians, religious leaders and elites have worked for decades to inject morals into as many political issues as possible. They have done this knowingly and persistently, but at the same time as quietly and opaquely as they could. 

To be clear, consciously injecting morals into political issues is an intentional and knowing effort to expand the scope of religious power in the CN's relentless quest to bury secular government and society and replace them with an aggressive, non-compromising, intolerant, bigoted fundamentalist Christian government and society.

That is what Barry Goldwater was worried about long ago. He directly experienced the attack of religion on secularism and natural social change. He saw its non-compromising aggression and attacks against secular society, civil liberties and government. The CN movement is hell-bent on literally reversing social change and the expanded civil liberties that have come with it and replacing that with a biblical worldview nation where God has the ultimate power in government, commerce and society.

In my opinion, the CN political power movement is fairly close to getting what it wants. Maybe stopping the movement is already impossible or nearly so. The outcomes of the next two elections should shed enough light to draw conclusions about just how close we are to losing our democracy, the rule of law and civil liberties to the rule of God and greedy CN religious elites and groups. 

Questions: 

1. Has Goldwater's fear that the preachers could control the Republican Party come to pass? 

2. What about some Democrats in congress who have to kiss the Pope's ring, e.g., some American Catholic Bishops want to block Biden from receiving communion, which would amount to ex communicating him? 

3. Based on a (true) belief that money equals power in our pay-to-play two-party system, is it time to revoke all tax privileges for all religious groups, or is it too late because the CN movement already has access to so much tax money that it cannot be stopped, in other words, are we already hosed? 

Footnote:

1. One of the triggers that led to my epiphany that injecting morality into politics was a big part of why politics had IMO become so polarized, divisive, socially damaging and incoherent came from the end stages of the fight over Obamacare. My recollection is that in order to pass Obamacare, some Democratic Catholics in congress demanded buy-in by Catholic Bishops. Without the Bishops' consent, Obamacare could not have been passed. What the Bishops demanded and got was guarantees that limited access to abortions and birth control. 

I recall being outraged and bewildered. In the months after that, it slowly dawned that religion was much more powerful and influential in secular government than I understood, and that I believed was legal without loss of tax breaks for the participating religious groups. As far as I know, no church lost its precious tax break privileges, although they should have. Apparently, federal laws that give the generous tax break privileges do not prohibit a demand of consent by Catholic Bishops to pass federal health care laws or probably any other kind of federal, state, county, city or local law. CN uses those tax dollar subsidies help finance relentless attacks on secular society, secular government, civil liberties, truth and democracy itself  In the eyes of the CN movement, as long as morals can be injected, the law is subordinate to God, not the US Constitution or the will of the majority. CN is a tyranny of the minority political movement.

To be clear, tax breaks for direct participation in politics by any bigoted, mendacious religious organization is a privilege, not any constitutional right. Through its control of the Supreme Court, the CN movement is trying to lay a legal foundation to change that and elevate its fat place at the tax trough to a constitutional right by any sleight of hand that will suffice to create a needed fig leaf. 

Government is about more than just abortion, gay marriage

and birth control, but they are a great place to start!!

That's confined just to the Medieval Church?

Didn't know the Church had pay-to-play and campaign contributions back then

Questionable morals, illegitimate children?? Nah, not possible, fake news!

The next Texas Governor?

Allen West?

Matthew McConaughey?

Greg Abbott?

Beto O’Rourke?

Someone else?

https://www.austin360.com/story/news/2021/04/19/matthew-mcconaughey-leads-governor-greg-abbott-new-texas-poll/7277367002/

https://www.texasstandard.org/stories/beto-versus-abbott-in-2022-what-are-the-chances/

https://www.nbcnews.com/politics/politics-news/allen-west-will-challenge-texas-gov-abbott-gop-primary-n1273079

Why Republicans have such a major advantage over Democrats

In full compliance with ethics and financial disclosure rules

There are multiple reasons for fascist Republican Party advantage over the Democrats. One is decades of ruthless, divisive radical right propaganda intended to foment irrational fear, anger, bigotry, distrust and belief in crackpot lies and conspiracies. Another is the electoral college. Another is the moral and ethical rot that has settled into the federal government, especially in the last 5 years or so. Conflicts of interest are now normalized and accepted. Senators and representatives can always fall back on lies and illusions such as defense of their voters’ interests as justification to screw the rest of the country and planet as long as it serves their personal interests, mostly wealth, power and re-election.  

The New York Times writes on a key weakness within the Democratic Party that will most likely neuter Democratic Party efforts to pass meaningful legislation on climate change and probably most anything else. The NYT writes:

Joe Manchin, the powerful West Virginia Democrat who chairs the Senate energy panel and earned half a million dollars last year from coal production, is preparing to remake President Biden’s climate legislation in a way that tosses a lifeline to the fossil fuel industry — despite urgent calls from scientists that countries need to quickly pivot away from coal, gas and oil to avoid a climate catastrophe.

Mr. Manchin has already emerged as the crucial up-or-down vote in a sharply divided Senate when it comes to Mr. Biden’s push to pass a $3.5 trillion budget bill that could reshape the nation’s social welfare network. But Mr. Biden also wants the bill to include an aggressive climate policy that would compel utilities to stop burning fossil fuels and switch to wind, solar or nuclear energy, sources that do not emit the greenhouse gases that are heating the planet.

As chairman of the Senate Committee on Energy and Natural Resources, Mr. Manchin holds the pen and the gavel of the congressional panel, with the authority to shape Mr. Biden’s ambitions.

But Mr. Manchin is also closely associated with the fossil fuel industry. His beloved West Virginia is second in coal and seventh in natural gas production among the 50 states. In the current election cycle, Mr. Manchin has received more campaign donations from the oil, coal and gas industries than any other senator, according to data compiled by OpenSecrets, a research organization that tracks political spending.

The NYT points out that Manchin directly profits from polluting industries. He owns stock worth $1-5 million in Enersystems Inc., a coal brokerage firm he founded in 1988. Last year, Manchin made $491,949 in dividends from his Enersystems stock. His son, Joseph, took the company over in 2000 after Manchin was elected West Virginia secretary of state. Maybe that was part of why our corrupt ex-president felt comfortable with not divesting himself from his companies. There were precedents out there for him to point to and no meaningful federal laws to eliminate conflicts of interest. What this boils down to is having an ethically compromised fossil fuel corporate owner writing fossil fuels emissions policy. That's a fox in the hen house. 

Manchin's spokesman defends the situation, asserting that “is in full compliance with Senate ethics and financial disclosure rules.”

Yeah, Manchin might be in full compliance with Senate ethics and financial disclosure rules, but if so, so what?

Questions: 

1. On balance, who is more corrupt and morally compromised congressional fascist Republicans or congressional Democrats? 

2. Will Manchin let the Democrats pass climate change laws commensurate with what experts are desperately telling us is needed, or will Manchin’s personal agenda triumph over climate change? 

3. For the most part, what is Manchin’s personal agenda, (a) wealth, power and maybe re-election, (b) protecting jobs in West Virginia, or (c) a roughly equal mix of the two? 

4. Are federal ethics and financial disclosure rules adequate to protect the public interest, or are they mostly a smoke screen that corrupt politicians and bureaucrats can point to as evidence of their honesty and service to the public interest?