Indiana tries the “freedom of religion” ruse

The Thinker by Rodin

States are starting to learn that while they have the power to legislate against people they don’t like, it’s generally not a good idea to use it.

The latest case in point, of course, is the State of Indiana. Its governor Mike Pence recently unwisely signed into law a “Religious Freedom Restoration Act”. It essentially gives both individuals and businesses the “freedom” to tell someone they don’t like to piss off in the name of their freedom of religion. Interviewed Sunday, Governor Pence poorly tried to defend the law. He claimed it was misunderstood, and that it was virtually the same as a 1993 federal freedom of religion law with the same name.

The federal law was never intended to allow organizations to discriminate based on freedom of religion. However, the Supreme Court has had some interesting interpretations of the law. In 2006 it ruled that the law did not apply to the states, so it is curious that Pence would use the federal law to defend his state’s law. And in 2014 it ruled in the case of the Affordable Care Act that it allowed “closely held corporations” to not include contraceptive coverage in their employee health insurance plans. Presumably this logic was okay because earlier in its widely reviled Citizens United decision, the court decided that since earlier courts had declared corporations were people then corporations could not be prohibited from giving unlimited sums of money to political campaigns because free speech could not be constrained.

At best, Indiana’s law is distantly related to the federal law. Indiana’s new law is allowing anyone including any corporation, business or institution to declare that its religious freedom gives it the right to deny service to anyone that it finds violate their religious beliefs. This is in effect anything they choose to declare as a religious belief. The primary targets of the law, as documented by the photos of bigots behind the Governor Pence when he signed the law, are anticipated to be gays, lesbians and transgender people. Essentially the law is a license to discriminate collectively by both individuals and non-governmental organizations under the guise of freedom of religion.

The howls of protest were immediate and appear to be unrelenting. Angie’s List is one business threatening to move out of the state. Apple CEO Tim Cook decried the law in a Washington Post editorial today. Connecticut won’t let its employees travel to Indiana because it doesn’t want to even indirectly be associated with their bigotry. The NCAA is wishing it had time to move the Final Four playoffs to a different city. These are just some of the most notable responses to the law. There are plenty of others easy enough to find if you scan the news.

While Indiana is hardly the only red state to pass a law like this (Arkansas recently enacted something similar, and is getting a backlash), the track record for these laws suggests only foolish states would pass laws like these. You may recall that Arizona passed its own version of this law a few years back, to howls of protests and a huge loss of business. Eventually, they saw the light and repealed the law. It’s not hard to predict that within a few weeks Indiana is likely to do the same. No matter how right they think they are in their convictions, the national scorn and more importantly the loss of economic opportunity in the state will force a change of heart. Right now there is talk of an amendment to the law, which probably won’t change its substance or satisfy any of its critics.

In general, red states seem to be continually refighting the Civil War, just via its state legislatures, and this Indiana law is the latest skirmish. It all comes down to one thing: they think certain “better” people have license to make the “worse” people miserable. Their successes are principally a result of the tacit or explicit approval by the Supreme Court when these laws come up for review. One recent success was the court’s overturning of aspects of the Civil Rights Act that required federal approval of voting laws in principally southern states. The rest of America, and actually much of the south itself, has rejected bigotry. The reason many southern states haven’t caught on is because voting districts are so heavily gerrymandered that the citizens cannot speak with sufficient force.

Aside from the obvious bigotry, what drives most of us nuts about Indiana’s law is that these legislatures don’t understand that your freedom of religion does not give you the right to restrict other’s freedoms. Freedom doesn’t work that way. In fact, this is the antithesis of actual freedom. If you can allow a baker to not sell a wedding cake to a gay couple because it is against his religious beliefs as he interprets it, the same baker could refuse to sell one to a mixed race couple using a similar rationalization. A closely held bus corporation could say that their religion requires blacks to sit on the back of the bus, or to not allow any blacks on their buses. God is telling them so! “Freedom of religion” could selectively trump any sort of public law, which would render these laws unenforceable. Yet a law must apply uniformly or it is not a law. Instead it becomes no more than a hope that everyone will play nice.

Certainly freedom gives everyone the right to be a bigot. No one can control what you believe, although law can regulate your actions. Employers cannot discriminate in employment based on lots of criteria including sex and race and that includes closely held corporations with deeply religious CEOs like Hobby Lobby.

What’s clearly going on is that freedom of religion is being used as a proxy to effectively change laws that otherwise could only be changed via a process of law. If we really want to deny blacks their voting rights, it has to be done legally. And our Supreme Court apparently believes onerous voter ID laws are constitutional exercises in the legitimate power of the state because it’s not 1960 anymore. It thus effectively legalized bigotry in that instance.

In reality, no state or jurisdiction has the right to pass any legislation that exempts anyone from uniform application of the law. It’s so important we created a constitutional amendment specifically to require this: the 14th amendment. Legally it is clear: the 14th amendment specifically applies to all the states, which means that if a state grants the freedom to one group to effectively oppress or discriminate against another group, it is not just a violation of the law, it is against our constitution.

It is this bedrock principle that the vast majority of Americans are recoiling against in this case, and justly so. “Freedom of religion” here is simply a ruse. Indiana is in the process of getting its butt collectively slapped by fair-minded Americans. I for one won’t visit Indiana or spend one dime there until their disgusting law is repealed.

Free speech has limits

The Thinker by Rodin

If freedom is not free then last week’s terrorist incidents in Paris by Islamic terrorists proves that free speech is not free either.

In the unlikely event you were away from the news the last week, sixteen people including four French Jews and one Muslim policeman were murdered by Islamic terrorists in two incidents in and around Paris. The resulting shock and outcry has predictably led to more security in France. It also caused an impressive rally yesterday that brought about one and a half million protesters into the streets of Paris. The protesters shouted that they would not be intimidated by these incidents.

The primary attack occurred at the offices of the satire magazine Charlie Hebdo. Three terrorists with automatic weapons quickly killed twelve people and wounded many others. Many of those killed were cartoonists that drew what most reasonable people would call patently offensive cartoons, far beyond what is depicted even in edgy publications here in the United States. In fact their offices had been attacked years ago for publishing cartoons that depicted the prophet Mohammad. Four Jews were also killed in a subsequent attack at a kosher market near Paris on Friday.

Free speech is only possible in a culture where its underlying population is civilized enough to not take violent action when the hear or read what they perceive as grossly offensive and/or blasphemous speech. No such society actually exists, which means that incidents like these are bound to happen from time to time. They are more likely when terrorist organizations and states proliferate and their ideology gains traction within free societies. French citizens were of course outraged but no one was particularly surprised. The only real question was why something of this magnitude had not happened earlier in France.

Perhaps you have heard of this saying: if you are playing with fire, expect to get burned now and then. Charlie Hebdo had already played with fire and had gotten burned and it continued to pay with fire. It indiscriminately and most would say offensively satirizes people and groups from all sides of the political spectrum. Creating outrage was how it makes money. It is a profitable niche. It was also what they felt called to do.

Unsurprisingly I don’t get the violent reaction by Islamic extremists to what they perceive as the blasphemy of making cartoon depictions of Mohammed. In reality, even free speech is not entirely free of consequence, certainly not here the United States and in particular not France, which has very un-free and discriminatory laws that target Muslims in particular, such as requiring Muslim women not to wear their head scarves. The cartoon of a Muslim (it was not clear to me that it was supposed to be Mohammad) that seems to have triggered this attack was offensive to me (and I am not a Muslim) because it belittled and stereotyped a religion by depicting it as wildly different than what it actually is, in general. It would be like a cartoon that portrayed the pope as a child molester or the president as a cannibal. At best it was in very bad taste. It really spoke much more about the Charlie Hebdo than it did about Islam. While Charlie Hebdo tends to be nondiscriminatory in its satire, most of its work tends to be stuff that the vast majority of people at least here in the United States would consider beyond the pale. If it had an equivalent in the United States, most people would not want it on their coffee table. They would not want to be known as someone who read Charlie Hebdo. For the same reason most people would not leave out books of hardcore pornography on their coffee table either.

So freedom of the press is not in practice entirely free of consequence. Those who dare to go too far outside the mainstream are likely to find they will pay a price from time to time. And no government can guarantee that this freedom can be expressed without injury. Risk and freedom go hand in hand. You cannot have one without the other. Unsurprisingly most publishers are somewhere in the middle, and seem to understand that it’s okay to express their opinions but that there are practical limits that if you transgress them then you could pay a price. So we mostly stick to moderation. The New York Times, for example, decided not to publish the offending Charlie Hebdo cartoon. While it had the right to do so, it made a sensible decision that the cost of this right was not worth the possible results of doing so. In some sense then the terrorists won, but the New York Times really made a judgment that was as sound from a business perspective as it was sound as an exercise in common sense. People with common sense will exercise reasonable self-censorship for the sake of overall societal harmony.

Of course there are places, like the Islamic State or areas of Pakistan and Afghanistan ruled by the Taliban where freedom does not exist. Those who live there live in tyrannies. And this is evil because it is also not our nature to spend our life wholly muzzled from honest expression. It’s clear to me that those who perpetrated these crimes would have all of us live in such a state, where only behavior they believe to be sanctioned by God and the Quran would be allowed.

They are hardly alone. Here in the United States there are Dominionists that would turn us into a Christian state. If they had their way the United States would look a lot like the Islamic State, just with a cross as its symbol. There would be a state religion, divorce would not be allowed and homosexuality would be criminalized again. Many of us are pulled toward ideologies that will brook no dissent, perhaps for the feeling of comfort that such certainty brings. For these people, pluralism itself is an enemy and feels threatening. They find comfort and safety only when all people, either willingly or by force, do as they believe is required. Occasionally, as in Paris last week, an irresistible force will meet an immovable object. When this happens it proves to me that absolute free speech is an illusion. In reality, self-censorship is a practical way we maintain a broad general freedom of speech. We should not chase the illusion that all speech should be tolerated or permitted without consequence. It never has been and never will be.

Instead, we should work to create and maintain societies that promote general tolerance and moderation. Those that step too far out of this natural comfort zone don’t necessarily deserve what they get, but reality is likely to provide it anyhow, as happened in Paris last week. There is a natural Darwinism at work among these people. Transgressions outside this natural zone of reasonable taste should be rare, if they occur at all.

What goes around comes around, and unfortunately it came to Charlie Hebdo and Paris last week. My comments certainly are not meant to justify the terrorism that occurred but simply to point out that it can be anticipated in cases like these because the speech is so extreme.

We had best learn to live with it because we cannot really change it.

When did conservatism become so radical?

The Thinker by Rodin

Halloween should be rescheduled for the last week of June. This is the last week of the Supreme Court’s annual session and they tend to leave their juiciest and most controversial decisions to the very end. The Supremes did not disappoint this year with two decisions yesterday that should leave sensible people reeling.

I’ll concentrate on the first, Hobby Lobby v. Sebelius and leave the public unions decision Harris v. Quinn perhaps for a future post. In the Hobby Lobby ruling, we got a decision that grants “closely held corporations” religious rights. Previous Supreme Court decisions had already granted corporations personhood status, a preposterous assertion given that corporations do not breathe, have children, die, get checkups, walk, talk or vote. On the latter, given the court’s breathtaking decision in this case, it’s probably only a matter of time before corporations get the right to vote as well. (Given the way the Supreme Court sees these things, they will probably get a number of votes proportional to their status, maybe based on the number of employees.) Justice Alito went so far in his decision as distinguish between corporations as people and actual human beings, “natural persons” as he calls us. You have to ask yourself: WTF? Was he sober when he wrote this?

All this, you see, is to protect the precious rights of the people that own these companies, as if in their role as “natural persons” they don’t already have the right to vote, or to spend their own money on campaigns, or speak out at rallies or take out ads in the newspaper. This means, of course, if you are an executive of a corporation you effectively get twice the rights, but effectively a lot more as you can wield the assets of your company to the extent you have money or can borrow money to speak out as much as you want. The Koch Brothers epitomize the ability of the very moneyed to drown out much of the rest of us. And now because your corporate personhood is so precious, you can also take away the rights of others. Unsurprisingly, certain companies like Hobby Lobby feel the need to screw it to women, which thanks to this decision means that they can prohibit contraceptive coverage from being covered in their health insurance plan. Why? Because it’s against their religion. Like corporations can go to church!

You would think this decision could not possibly make the pigs any “more equal” than the other farm animals (that’s an Animal Farm reference, in case you missed the allusion), but you are forgetting one of last year’s stunner decisions. Almost a year ago, on June 25, 2013 the Supreme Court struck down the heart of the Voting Rights Act of 1965. This law required certain states like Mississippi with a long history of racial discrimination in the voting booth to get preclearance for their voting methods. Mississippi was one of many mostly Southern states to set up more onerous criteria for voting: you had to show an approved photo ID, something that is difficult, expensive and inconvenient if you are poor. The Justice Department didn’t like it, of course, so it nixed the idea, but the state appealed to the Supreme Court. Of course, keeping blacks and minorities from voting was the whole intent of the law in Mississippi. By this decision, the Supreme Court effectively gutted the Voting Rights Act, which was written specifically to get rid of decades of Jim Crow laws that made it hard or impossible for minorities to vote.

So the Supreme Court, which claims to be so concerned about maximizing freedom of speech, gives virtually unlimited speech to corporations which aren’t even human beings while allowing states to make it harder for certain actual human beings, minorities and the poor naturally, to exercise what limited speech they have due to their financial state. In other words, it’s more freedom for those who can afford it, including entities (corporations) that are legal fictions, something Justice Alito in his decision candidly acknowledged. And due in part to last year’s decision, it’s less freedom for those that can’t. This is not surprising from a court that was very plainly equated money with speech. Last I checked, a dollar bill did not have lungs, a tongue and lips.

This is conservatism? This is not radically changing what has worked in the past? I don’t know what word it is, but it is not conservatism. It’s crazy and radical stuff. Rather it was the Supreme Court that inferred that corporations must be treated as people. These latest shocking decisions take this to a further absurd and quite frightening level.

Given that these radicals will be on the court for some time a harder and more permanent solution is needed. It’s already underway but as a practical matter to actually make it happen will require Democrats to have large majorities in both the House and Senate. It is simply this: we need a constitutional amendment that unambiguously states that corporations are not people and only have such temporal rights as Congress deigns to give them. If I were in charge, corporations would be forbidden from giving a dime to any political candidate, any PAC or any group that works to influence public policy on any level whatsoever.

What kind of glue are these conservative justices sniffing? Have they read the preamble of our constitution lately? It simply starts, “We the people”. There is no “We the people and corporations”. That is original intent. The so-called constitutional conservatives on the Supreme Court who voted for these unwise and radical decisions have simply proven the opposite. Instead, they are part of a cancer that is killing our democracy.