ReligiousLeftLaw.com

Are Downton Abbey and the Help Mirrors of Reality?

For doubts, see http://www.alternet.org/story/154201/%27downton_abbey%27_and_%27the_help%27--what_their_nostalgic_portrayals_of_domestic_service_get_wrong

The Idolaters and the Iconoclasts

I am a fan of Susan Stabile’s daily reflections at Creo en Dios. See here. Today, she reviewed a book by Christopher West that I do not plan to read, but she does call attention to an interesting section involving West’s discussion of idolatry and iconoclasm: “West suggests that without a new way of seeing, we tend to lean in the direction of either “worshiping the physical world as idolaters, or rejecting the physical world as iconoclasts.” He explains

“’The full-blown idolater views sensual pleasures as man’s be-all and end-all and dives in headfirst. The full-blown iconoclast views all that is sensual with suspicion and flees into a “safe” dis-incarnate “spirituality.” The idolater seeks his comfort in “mere flesh.” The iconoclast in “mere spirit.”’

“West’s discussion of both the temptations toward, and the dangers of, imbalance in either direction is very good. I also think he is correct that, as between the two, iconoclasm can be more dangerous in the sense that it ‘more readily passes for religious “success,”’ because many people erroneously think that ‘rigorism in bodily matters equals holiness.’”

Is Contraception Always Moral?

The leaders of the Catholic Church take the position that contraception is immoral in all or virtually all circumstances. Famously, this view is not widely shared. Indeed, its position has undermined its authority with most Catholics.

In sharply disagreeing with the Catholic Church, many too easily slide to the conclusion that in a marriage the practice of contraception raises no moral issues. But there is a middle ground between the positions that contraception is always immoral or always moral. In 1930, the Lambeth Conference expressed “its strong condemnation of the use of any methods of conception control from motives of selfishness, luxury, or mere convenience.”

In the same vein, Boston College theologian  Richard Gaillardetz asked in a facebook comment the other day: "’What if’ Paul VI had adopted a more personalist approach to the issue of contraception, one that focused on the need for marital couples to be genuinely open to children in their marital relationships without focusing on each individual marital sex act? People would have understood that the Catholic tradition stands for generous, self-sacrificial love in marriage, a love that would generally include openness to children. They would have recognized that in church teaching it would be wrong to use artificial contraception for the purposes of mere convenience and in furtherance of a selfish lifestyle. * * * This approach would have condemned a ‘contraceptive mentality’ while allowing for the exercise of conscience to determine when a couple could use birth control ‘with right intention’ to exercise their obligations to responsible parenthood.”

In this connection, the 1958 Lambeth Conference expressed the belief that “the responsibility for deciding upon the number and frequency of children has been laid by God upon the consciences of parents everywhere; that this planning, in such ways as are mutually acceptable to husband and wife in Christian conscience, is a right and important factor in Christian family life and should be the result of positive choice before God. Such responsible parenthood, built on obedience to all the duties of marriage, requires a wise stewardship of the resources and abilities of the family as well as a thoughtful consideration of the varying population needs and problems of society and the claims of future generations.”

I suspect that the Catholic Church’s clinging to an unpersuasive natural law argument has played a major role in entirely removing moral reflection from marital decisions whether to use birth control. At this point, most may think this is a good thing. Not me. I think the Lambeth Conferences got it right in 1930 and 1958.

The Bishops' Response to the Obama Revision

In partial response to Bob's question, According to the Bishops, "It [the Obama revision] would allow non-profit, religious employers to declare that they do not offer such coverage. But the employee and insurer may separately agree to add that coverage. The employee would not have to pay any additional amount to obtain this coverage, and the coverage would be provided as a part of the employer's policy, not as a separate rider."
The Bishops apparently are objecting that the contraception insurance is not a separate rider."See http://usccb.org/news/2012/12-026.cfm
Even assuming the Bishops are correct in their characterization, this objection seems excessively precious to me. It seems to exalt form over substance. I do not see how this distinction gives rise to a morally serious objection involving religious freedom.

On the other hand, I do not believe the Obama revision applies to private for profit employers with religious objections. Although I recognize that by subscribing to the Taco Bell example, I will be thought by most people to have walked into outer darkness, I think it appropriate to honor those objections, if, but only if, there is no economic incentive for employers to make the objection. An employer (including religious hospitals and universities) should not economically benefit from a religious exemption. As I have previously argued, see here, the employers should be required to increase employees' wages by the amount the employers save because of a religious exemption. (With the possible exception of a very closely held business corporation, I would not expect that business corporations would have consciences to invoke).

The Bishops are concerned about self-insuring employers with religious objections and religious insurance companies. With respect to the former, I wonder how many of these are individuals who have consciences and how many are business corporations that as artificial entities who do not. If they are individuals with a good faith objection, I would compel them to increase wages by the amount they would save from a First Amendment exemption and have the government provide social insurance. 

As to the latter, I would like to know about religious insurance companies. I have not heard of them. My tendency is to think that business corporations have no free exercise rights, but if there is an unincorporated insurance company run by a private person, I would balance the free exercise interest against the government interest, and the possibility of alternatives. But I think more facts are needed here to analyze the factors.

I conclude by noting again the irony that amidst the internet explosion surrounding Obama's insensitivity to free exercise interests that little attention has been paid to the fact that the award for constitutional insensitivity to religious freedom still belongs not to President Obama, but to the conservative's favorite justice: Antonin Scalia. 

 

 

A Solution to the Contraception Insurance Issue

The administration has signaled that it is looking for a compromise to the contraception insurance issue. How about this? Those employers who conscientiously oppose providing contraception insurance to their employees should not be able to profit from a religious exemption. Accordingly, the employers should be required to increase employees' wages by the amount the employers save because of a religious exemption.

The employer might not want to pay higher wages, but could have no serious religious objection to the requirement. Employees could use the money to purchase insurance for contraception if they wished or for other purposes at their option.

From the perspective of the administration, this proposal has a disadvantage. A major reason for requiring employers to include contraception as a part of their insurance was to encourage greater use of preventative services by employees. One way to mitigate this disadvantage would be to afford a tax deduction for the premiums required to purchase contraception insurance. The fringe benefit of insurance was not taxable in the first place. Indeed, from the perspective of the administration, it would make sense to make all contraception expenses tax deductible or, alternatively, even a tax credit. If the evidence showed that tax policy of this character would increase contraception, we could expect abortions to decline in turn. Of course, the Catholic Church would oppose any such tax policy on moral grounds, but it could not argue that the policy would violate its religious freedom.

 

 

 

 

 

John Boehner, Justice Scalia, and Contraception Insurance

John Boehner is arguing that the government’s policy requiring religious hospitals and universities to include contraception coverage in their insurance violates the First Amendment. This is plainly wrong. The government’s policy covers all hospitals and universities, not just religious hospitals and universities. Accordingly, the policy is part of a generally applicable statute that happens to hit religion. According to the Court, the refusal to create an exemption is not a constitutional violation.

In my view, however, it should be unconstitutional. The chief constitutional culprit is Justice Scalia. He wrote the opinion providing thick constitutional cover for Obama’s contraception policy. Perhaps the Republicans will get together and hang their favorite justice in effigy for failing to respect religious freedom. Don’t hold your breath.

The Law and Presidential Politics of Forced Contraception Insurance

Much of the discussion about forcing some religious institutions to provide insurance for contraception to employees makes little sense to me. It seems to be a clear burden on free exercise. Few apparently think that the Catholic Church itself needs to provide insurance for contraception to its employees. The distinction is purported to be that unlike the Catholic Church, Catholic hospitals hire non-Catholics and those hospitals should not be able to force their moral views on to their employees. Aside from the fact that the Catholic Church probably hires some non-Catholics, this blinks the obvious point that Catholics use contraceptive methods as well. Indeed, the disagreement by Catholics with the Church’s teachings on this subject is so widespread that the rate of contraceptive use by Catholics is quite high. Even more important, it is doubtful that the failure of insurance to include contraception  would put a dent in contraception. In short, hospitals would not be forcing their moral views on their employees.

Nonetheless, this is the ACLU line. See here.  I suspect this line is influenced by the view that the Catholic view on contraception is as crazy as I think it is. But I do not understand how the ACLU can defend odious Nazis and merchants of addiction, death, and suffering (i.e., the tobacco companies), but let their right thinking stance on contraception cloud judgment on free exercise.

Finally, I do not get the politics of this. Last Friday Peggy Noonan argued that while we were all busy discussing the gaffes of Mitt Romney (she thought he should have rescued himself by talking seriously about poverty), Obama had needlessly signed off on this contraception policy and that will cost him the election. It is true that Obama has been widely criticized for this by the hierarchy and by Catholics across the political spectrum.  The Catholic voters, however, are divided. 52% of Catholic voters oppose this decision and 45% support it. See here. But it is not clear that this issue will be decisive for anyone’s thinking come November. Nonetheless, it will not help Obama with the Catholic vote. Perhaps it was thought necessary to shore up a different part of the base. I do not know. It would be interesting to hear an inside account of the political discussion that lay behind this decision. And it is an election year. They did not forget to have a political discussion.

The Media and Presidential Politics

I have a friend who was once the Editor for the New York City desk of the New York Times. As such, he attended the general editors' meetings. He said it was the same thing every election cycle. At the beginning of the cycle the editors said this time we will concentrate on the issues and not the horse race. And, he lamented, every election the Times concentrated on the horse race.

This time I think the reporting has been somewhat better than usual, but only somewhat. The reporting has concentrated on the Republican horse race, on the gaffes, hypocracies, and character flaws of the candidates, and to some extent what they believe (or in the case of the leading candidates purport to believe).

Romney and Gingrich offer excellent examples of why reporters are loathe to concentrate on the issues: experience tells us that candidates tell us what they need to get elected rather than what they will do when they govern. So how are we to know what candidates will do if they win. My advice: follow the money. The media is even doing a better job here. we know that Romney is getting a lot of money from hedge funds and the financial sector including Goldman Sachs because of media reporting. The next step is rarely taken by the media. Why is Goldman Sachs giving money to Romney? What do they want? And why do they fear Gingrich? In this circumstance, part of the financial industries' motivation is obvious. Glass Steagall comes to mind. But what else do they want.

Who is giving money to Obama and what do they want. If we are to know more how a President will try to govern, as I say, we need to follow the money. 

Are Tax Increases Good for the Wealthy?

 Cornell economist Robert Frank has an interesting column in the New York Times here (subscription may be required) in which he argues that tax increases for the rich help the rich. If taxes are increased, the rich drive on better roads, for example, without being worse off in competing to buy luxury goods. As Frank explains, there are “positional” goods that are in short supply like gorgeous waterfront property. Tax increases affect “all participants in the bidding for positional goods. And because it leaves everyone with less to spend, it has essentially no effect on the outcomes of those contests. The same paintings and the same marina slips end up in the same hands as before.”

It would be wonderful if the wealthy read this column and stop its opposition to tax breaks. Frank makes sense, but his counterintuitive message will be hard to absorb. In addition, many of the wealthy want as much money as possible as a symbol of their success and even more important to leave as much as possible for their family. Nonetheless, the overwhelming majority of the public oppose tax breaks for the rich and the revenue is needed even if one focuses on bringing the deficit down. One way or another that popular opinion will prevail even in our broken political system.

The First Amendment Dog

In the Wall Street Journal this morning, David Skeel, a law professor at the University of Pennsylvania, criticizes the Obama administration’s refusal to exempt  many religious organizations from the requirement that employer health-care plans cover all the costs of contraception.  Skeel concedes that the decision by the Obama administration is probably consistent with existing First Amendment law, but he worries that this will lead to years of “unending” legal battles. According to Skeel, courts are “precisely the wrong place to resolve the difficult accommodation issues that are pressing in from every side.”

This is an odd claim. After all, the legislature has left the Obama administration the discretion to make the decision it has made. Indeed, courts do not need to enforce First Amendment rights unless governments violate them. I would think it is precisely the role of the courts to enforce those rights. The real problem is that the Court led by Scalia has slammed the door on the refusal of government to grant exemptions for religious organizations to generally applicable laws. A scholar who would let his theory of the judicial role be the tail that wags the First Amendment dog cannot be heard to criticize the political process when it produces bad results.    

Digital Addictions and the Sabbath

The essays continue to appear on the need to escape, if only for a time, our digital addictions. For another, with citations to three other good ones (one already discussed by Patrick on rll and Taryn on her facebook page), see here.

 But the digital addictions are part of a larger phenomenon that has been addressed by religious traditions from the beginning. In this connection, I am reminded of a comment by Dara Horn referring “to the impossibility of removing oneself from the current of modern life and the equal impossibility of being forever caught in the current.” Horn’s comment was made in connection with praising Judith Schlevitz’s The Sabbath World. Schlevitz writes from a Jewish perspective, but compares the Jewish and Christian traditions in her book. As to the tension described by Horn, Shulevitz puts it nicely: “Americans once the most Sabbatarian people on earth are now the most ambivalent on the subject. On the one hand, we miss the Sabbath. When we pine for escape from the rat race; when we check into spas, yoga centers, encounter weekends, spiritual retreats; when we fret about the disappearance of more old fashioned time, with its former, generally agreed-upon rhythms of labor and repose; when we deplore the increase in time devoted to consumption; when we complain about the commercialization of leisure, which turns fun into work and requires military-scale budgeting and logistics . . . whenever we worry about these things, we are remembering the Sabbath, its power to protect us from the clamor of our own desires. But when, say, we return from a trip to some less developed country and feel a sense of relief that our twenty-four hour economy allows us to work, shop, dine, and be entertained when we want to, not according to some imposed schedule, at that point, too, we are remembering the Sabbath. We are remembering how claustrophobic its rigid boundaries used to make us feel.”

I was raised as a Catholic and Sunday was a day to go to Mass. I was told it was the Sabbath, but I did not hear a sermon about the Sabbath’s meaning until Taryn Mattice gave a sermon on it more than ten years ago in the Sage Chapel at Cornell. The Christian Sabbath has not been marked by rigid boundaries and rules. But that has led to its decline. That leads me to offer two cheers for claustrophobia.

Why Romney's Religion Matters Politically

Protestants move freely from one denomination to another depending on the preacher, the programs of the congregation, and the politics of the group. Religious doctrine seems not to matter. We no longer live in the seventeenth century.

But religious doctrine matters in the Republican primaries. Many Republicans believe that Mitt Romney is not a real Christian and prefer other candidates for those reasons. Thus evangelicals met in Texas to rally around a single candidate to stop Romney. To be sure, those evangelicals doubt Romney’s dedication to conservative principles as well, but the religion of the candidate was explicitly an issue for the evangelicals.

Why? As I understand it contemporary Mormons accept Jesus Christ as their Lord and Savior, and they believe that Jesus is God, but they do not believe that Jesus is co-equal with the Father. For them, the traditional conception of the Trinity is a fourth century invention.

There is much in scripture supporting the view that Jesus did not think he was co-equal with the Father. Consider the prayers of Jesus in the garden of Gethsemane. The noted scripture scholar Father Raymond Brown deals with this by arguing that Jesus did not realize he was God until after the resurrection. I do not know how evangelicals deal with the troublesome passages, but they clearly adhere to the Nicene Creed.

But what difference does it make? If Romney and the Mormons accept Jesus Christ as their Lord and Savior, aren’t they certifiably Christian? From the evangelical perspective, the answer is no. As I understand it, evangelicals believe that justification is by faith alone; Christians are required to bring others to Jesus; and the faith that is required is belief in the divinity of Christ, a divinity that is co-equal with the Father.  As Mark Silk discussed yesterday (here), from the perspective of evangelicals, Romney becoming President would help legitimize a false religion in perhaps more powerful ways than Tim Tebow helps to promote evangelical Christianity.

Of course, Romney’s views are alien to Catholics as well, but I would guess (I have not seen the numbers) that Romney does far better among Catholic Republicans than Republican evangelicals. If so, I would think that the influence of the doctrine of justification by works leads to less concern over differences in religious doctrine.

Ironically, the best defense of the Christianity of Mormons comes from Father Hans Kung. Kung’s views about the divinity of Christ would be more problematic for evangelicals than those of Romney. Kung affirms that Jesus is the Messiah, that Jesus rose from the dead, and he subscribes to the teachings of Jesus. But he denies the divinity of Christ altogether. He argues that God caused Jesus to rise from the dead, and that belief in the divinity of Christ is not essential to being a Christian. Whatever one thinks of this particular contention of Kung, his bestselling On Being a Christian which develops this position among many others is a great book and ought to be read by anyone with an interest in Christian theology. As I say, I think it offers the best defense of the Christian status of those who follow Christ.

Nonetheless, I do not expect the issue to be aired in a serious way in political campaigns. It is to Romney's interest that the issue not be taken seriously and that those who deny his Christianity or think his religious is a negative are importing bigoted views into politics. Those who question his Christianity risk being labelled as bigots. 

Nonetheless, I must say if I held the religious views of the evangelicals (I do not), I do not see how I could support Romney. The puzzle is how any serious evangelical supports Romney. It seems to me that the politics of the evangelical leaders who met in Texas follow smoothly from their religious beliefs.   

Hosanna-Tabor and Religion Clause Anarchy

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held on Wednesday (here) that a religious school was immune from liability against a claim that it had violated the American Disabilities Act in firing a teacher because the teacher was determined to be a Lutheran minister. Under previous Supreme Court religion law the Court would have found no violation of religious freedom because the American Disabilities Act had no purpose to single out religion only a religious effect. The Court had previously determined in Employment Division v. Smith that in most circumstances, a religious burden imposed by a generally applicable statute unaccompanied by a purpose to single out religion did not even give rise to a freedom of religion issue. So if a law against ingesting peyote burdens the ingestion of peyote as a sacrament as part of a Native American religious ceremony, there was not even a freedom of religion issue.  But the Court determined that there is a ministerial exception to freedom of religion law.

Indeed, the terms of the Court’s decision are sweeping.  Although the Court found that the school had relied on religious reasons in making its determination, the Court insisted that religious organizations had complete autonomy in selecting their ministers. In other words, the school could discriminate on the basis of race or disability in firing or refusing to hire a minister even if that discrimination had nothing to do with its religion.

As Mike Dorf argued yesterday, the Court’s attempt to distinguish the Smith case is entirely unpersuasive. If it is problematic for government to interfere with the autonomy of religious organizations in selecting ministers, surely it is problematic for government to interfere with the administration of sacraments. Perhaps we can hope at least that the Hosanna-Tabor case might pave the way for undoing the Court’s misadventure in Smith.

But the adoption of the ministerial exception was unnecessary. The Court could have argued that the school’s decision was protected by freedom of association. Generally applicable statutes directed at limiting employment decisions are subject to freedom of association limitations. As I argued  last July in a post discussing the case here, ”I think that religious associations should stand on the same footing as other ideological associations They should be able to select their leaders and members in accordance with their ideology. But religion should not confer a license to discriminate for reasons that have nothing to do with the religious doctrine of the Church, yet that is precisely what the ministerial exemption confers.”  Under the law of freedom of association, the Sierra Club can refuse to hire leaders who do not conform to its ideology, but it cannot discriminate on religious grounds. A religious organization should be able to discriminate on the basis of conformity with its religion, but not on the basis of sex, race, or disability unless it is part of its religion to do so.

Why did the Court not employ the freedom of association line? The Court said that that the Religion Clauses would be superfluous if their content was exhausted by freedom of association. But this is plainly wrong. The Free Exercise clause protects some actions that would not be protected in its absence. The Establishment Clause prohibits some government speech that would not be prohibited in its absence. There would be nothing superfluous about these clauses if the Court had decided the case on freedom of association grounds. 

At the end of its opinion, the Court said that the First Amendment had struck the balance between freedom of religion and the state’s opposition to discrimination on the basis of disabilities. This leaves out an important step. The Court struck the balance and then projected its balance onto the First Amendment. For reasons I set out in July, I think it reached the wrong result on the facts. Its result aside, Chief Justice Roberts, who wrote the opinion, added yet another to the many opinions in which he has  distinguished prior opinions on thoroughly unconvincing grounds.

 

The Constitutionality of President Obama's Recess Appointments

Friday the Wall Street Journal and the New York Times published warring op-ed pieces regarding the constitutionality of President Obama’s recent appointments to the Consumer Financial Protection Bureau and the NLRB. Neither agency has been able to function because the Republicans refuse to appoint a Chair for the former or enough members to allow a quorum for the latter.

Ordinarily, when the Senate refuses to appoint someone the President regards to be important tasks, he waits until the Senate recesses and appoints someone then (the appointment is good until the “End of their next Session”). The problem is that the Senate is claiming to be in session for the purpose of preventing Obama from making recess appointments. Typically, the Senate is called to order every three days and adjourns shortly thereafter with an understanding that no business will be conducted.

Two lawyers who served in the Reagan and George H.W. Bush administrations argue in the Wall Street Journal that the Obama appointments are unconstitutional because the Senate is not in recess (they point out that after these pro forma sessions started the Senate came back to adopt the payroll tax holiday). Indeed, the Constitution provides that neither the Senate nor the House can adjourn for more than three days without the permission of the other legislative branch, and no such permission has been granted. Apparently, the Chamber of Commerce plans to take their argument to court.

But Larry Tribe argues in the New York Times that these pro forma sessions are a sham, not a recess.  He concedes that the original constitutional purpose of recess appointments assumed difficulties of transportation for Congress to return to conduct important business. In modern times, Tribe argues that recess appointments are necessary as a part of checks and balances in our Constitution.  From the perspective of an originalist like Justice Thomas or Scalia, of course, the horse and buggy interpretation is correct. From the perspective of those who believe fundamental constitutional principles should control constitutional interpretation, the problem is slightly more complex. It is not clear that the principle of checks and balances lay behind the recess appointment’s clause. Nonetheless, it seems to me that in the absence of a necessary interpretation on the other side, constitutions are best interpreted in ways that make them functional and just. Our Constitution imagined a Senate that would function as a wise and deliberative body. It did not imagine that a minority would filibuster most appointments and bring government to a halt. The Constitution need not be interpreted to protect this bad faith behavior. Recess is not defined in the document, and nothing requires that it be interpreted to ratify a sham. As Justice Clark once said, “There is no war between the Constitution and common sense.”

Opposing President Obama in the Primaries?

Would it be a good thing or a bad thing if President Obama were opposed from the left in the primaries? I am not sure. I do think Romney is not helped by being opposed in the Republican primaries. Michael Lerner has an interesting discussion of the question of opposing Obama as a vehicle to raise issues on the progressive agenda and an excellent discussion of the disturbing ways in which he has fallen short. See here. It is well worth reading.

Which Entitlements?

Mitt Romney argues against an entitlement society and in favor of an opportunity society. In another fine column Robert Reich asks which entitlements he is talking. See here. I wish it were the banks or the defense establishment. Can it be public schools, medicare, social security, parks,highways, support for the unemployed? Reich argues that support for public goods has generally  been declining, not increasing,

By spending most of his time attacking Obama, Romney avoids some of the lunacy of the primaries. Nonetheless, as Romney caters to the far right to win the primaries, he undercuts his appeal to moderate voters. It is  doubtful that Santorum will be forced to drop out in the near future and in response, Romney well provide more material for Democratic attack ads. The Republican field is quite scary, but the polls show that the general electorate is turned off by the field as a whole and that is reassuring.

Communitarian Conservatives and the Communitarian Left

Rod Dreher is honored in David Brook’s column this morning. The column tells the bittersweet story of the death of Dreher’s sister and the outpouring of support her fight against cancer drew from the small  town in which she lived. Dreher and his wife were so touched by the experience that they decided to move to the town, St. Francisville, Louisiana.

In a sense the move fit with Dreher’s philosophy. Dreher is a communitarian conservative in the tradition of Russell Kirk (who, among other things, emphasized the importance of small towns). Dreher believes that the communitarian aspect of conservatism has been underexplored. He writes for the The American Conservative, a magazine devoted to that proposition. I think the differences and similarities among communitarian conservatives and communitarians on the left have been underexplored as well.

One of the main differences is that communitarian conservatives emphasize the importance of respecting tradition; communitarians on the left emphasize the importance of criticizing tradition. Partly because of their respect for tradition, communitarian conservatives have decried the ravages of materialism and capitalism; for different reasons, so, of course, have communitarians of the left.

One of the principal criticisms of President Obama coming from the left has been that he surrounded himself with Wall Street luminaries. Dreher has a similar criticism coming from the right. It is worth reading. Check it out here.

 

David Brooks Drives Me Crazy

Tuesday David Brooks produced yet another big think train wreck. He argued that the Obama administration was wrong to think that lessons from the great Depression were applicable to the present day because people trusted government during the days of FDR. Now 64% believe government is the biggest threat to the country; only 26%, according to Brooks believe big business is the biggest threat. Brooks also argued that analogies to the progressive era are inappropriate because the market is no longer a jobs machine (how true) and the country currently lives with libertarian values instead of Victorian values. Aside from some wholly unsupported and non-specific calls for stripping “away decaying structures “ and reforming the welfare state, Brooks’ solution is to restore conservative values.   

I am prepared to accept that the balance between libertarian and conservative values is too weighted in favor of the individualist libertarian. But Brooks has no account of how the libertarian culture is to be combatted. Is “untrustworthy” government to play a role? Even more significant, is this Brooks’ solution to the problem of the economy, the subject with which he started the column? Even assuming the libertarian culture can be transformed, will this turn the economy into a jobs machine?

It is precisely because the economy is no longer a jobs machine that government must be looked to as the employer of last resort. To the extent it is not, it is an exercise of moral leprosy not to support those left behind. One of the great failures of the Obama presidency is to play the role of the great compromiser instead of fighting for the political minds and hearts of the American people. The Republicans have been given an almost free ideological ride until very recently. Their cynical idolizing of the “free” market and their support of imaginary “job creators” (as a mask for naked greed) needed to be combatted throughout the Obama administration – not just when elections have drawn near.

Of course, there are grounds to fear Obama’s government. In this election cycle, according to today’s Wall Street Journal, Obama and the Democratic National Committee will raise somewhere between $700 million to $1 billion. As in the campaign against McCain, most of that money will come from large donors. When asked whether we fear government or big business more, it is fair to respond that it is hard to see the difference.

The Democrats and the Republicans support big business in different ways. Obama, contrary to the Republicans, is arguing that the creation of jobs by government support of infrastructure and in generous support of education is necessary to support a thriving economy. What is good for business is not always bad for the country. Even though both parties are captured by big money, there is still more than a dime's worth of difference between the two parties.

A Christmas Poem

Ian Oliver, the pastor for the University Church at Yale has written a marvelous poem called “A Christmas Prayer.” For the whole poem, see here. A part of it reads:

If God can lie down in a cattle-trough,
is any object safe from transformation?
If peasant girls can be mothers to God,
Is any life safe from the invasion of the eternal?

If all this could happen, O God,
What places of darkness on our earth
are pregnant with light waiting to be born this night?

Susan Stabile quotes the same excerpt at Creo en Dios. Her brief reflection is worth reading.

 

Does the Christmas Culture War Have Anything to Do with Christianity?

As Christmas approaches, the conservative war (purportedly on its behalf) seems decidedly unchristian. Sara Palin chides the President for sending out a holiday card that does not wish people a blessed Christmas. Of course, Palin knows that Jews, Buddhists, Muslims, Hindus, atheists, and agnostics would receive these cards. Sending them a Christmas card would be insulting. Palin knows this too. The mystery is what Palin’s point has to do with Christianity. Similarly, conservative Christians demand that people in department stores say “Merry Christmas” instead of “Happy Holidays.” The same objection applies, but with a twist. Department stores are not spiritual beings. They will order their employees to say “Merry Christmas” if, but only if, it is profitable to do so. I am guessing that conservative Christians hope to use economic pressure to bring department stores around. If so, I understand the economic strategy; it’s the connection to Christianity that escapes me.

To put it another way, if the cross means anything, genuine Christianity is far removed from the will to power.

Our Electronic Culture

I am in NYC. It is hard to ignore the pedestrians’ texting and surfing the internet while traversing the crowded streets, not to mention the visual blizzard of advertising including those thrown at us on a mini-screen in the back of a cab. Meanwhile I read the cheery news that new apps permit viewers to get behind the scenes information about the live television they are watching (one screen at a time is not enough). I go to a play (Seminar – it was terrific) and learn from the law student next to me that it is common practice for students to text the person being called on with helpful information (though he said at another school sometimes the students text insults). I knew there were reasons I banned electronic devices in my classrooms. I thought the ban would encourage dialogue (instead of staring at a screen, a student might look at a fellow student), discourage multitasking (the evidence seems clear that students cannot do it); cut down on those who think that taking notes is a thoughtless exercise in stenography; and I do not mind the reduction of clatter. But I had no clue that this texting is going on in classes (fortunately not in mine, at least not “legally”). How naïve of me!

My youngest son Jacob is here with Neesa and me. He does not own a television. His electronic sin is to stream Netflix on his computer and he is thinking of cancelling his subscription.  He thinks that owning a television gets in the way of communicating with people, reading books, and the like. I heard a talk by thriller writer (and Cornell Law grad), Barry Eisler (if you like Japan, the martial arts, want to learn about the art of surveillance with plot twists here and there – you will like his first book) in which he argued that he does not own a television, mainly, as I understood him, so that he could get more writing and reading done.  

I admire these perspectives, but I am an addict. I own a television, computers, and an i-pod touch. (I have drawn the line at smart phones and i-pads). I value the entertainment that television provides and the music and podcasts on my i-pod.  But I probably watch television too much and definitely use a computer for more frivolity than any sensible life would include.

In 1985, Neil Postman wrote a great book called Amusing Ourselves to Death. It was based on a talk he gave in Germany on a panel devoted to Orwell’s 1984. Influenced by the Brave New World by Aldous Huxley, Postman argued that the greatest threat to modern society was the addiction to amusement, not oppression by the state.

Postman’s book changed the life of Jacob. I wonder if Eisler read it as well. If you have not, I recommend it. And while you are it, you might check out the second edition of The Death of Discourse by Ron Collins and David Skover. It is a maddening book in some ways, particularly in its purported failure to take a position. But the book assembles powerful evidence that Huxley and Postman were well ahead of their time.

It was bad before; it has gotten worse.   

 

 

Is Getting in the Way of Helping Main Street an Effective Political Strategy?

It is an open secret that the Republicans have opposed efforts to help the economy in order to improve their chances against President Obama. Indeed, polls show that the American people are well aware of the Republican strategy. Nonetheless, the polls also show that the Republican strategy appears to be working in the Presidential race without apparent cost in to their representation in Congress. How is this possible? In the House, the people have a low opinion of Congress, but a much higher assessment of their own congressional representative. That the typical congressional representative represents a gerrymandered district in part accounts for this phenomenon. On this account, the Senate should be a different story. We will see.

As to the President, he surely has many flaws. His policies are also compromised by moneyed interests and his negotiating skills are not impressive. But the idea that he could have made significantly greater progress in improving an economy when the Republican Party was united in opposing the kind of government spending needed to create jobs is groundless. Fortunately, Obama has begun to attack the Republicans’ devotion to the rich and their intransigence. This might work. If it does not, the learned lesson will be that the party out of power should do everything possible to maintain a poor economy. There are many things you could call this, but good government would not be on the list.

The First Amendment and Crisis Pregnancy Centers

Crisis pregnancy centers across the country offer birth counseling and sometimes services, but not abortion counseling or services. Unfortunately, pregnant women are drawn to these centers on the misleading assumption that abortion counseling is available. Various jurisdictions in the United States have fashioned laws designed to combat the deception perpetrated by these centers.

Baltimore, for example, (see here) requires that such centers put signs in their waiting rooms revealing that they do not offer abortion counseling or services. Incredibly, a federal district court has declared the law to violate free speech. The court thinks that the speech of the clinic is not commercial advertising and that it is more like political speech. To be sure, government cannot dictate the content of political speech. But it has long been the case that government has regulated counseling. Indeed, many counselors are properly subject to the prior restraint of licensing. In the area of health advice, there is no First Amendment right to deceive.  

San Francisco (see here) is taking a different approach from Baltimore. It forbids crisis pregnancy centers from engaging in false advertising, specifically from making the false and misleading claim that they provide abortion counseling when they do not. The First Amendment challenge to this approach is that it is underinclusive. The argument is that crisis pregnancy centers are being singled out for special treatment. Instead, it would be better to outlaw deceptive advertising by anyone. This argument has some appeal, but it is ultimately unavailing. Speaking for a Court majority in RAV v. St. Paul, Justice Scalia said that government may outlaw commercial speech in one context, but not another because the risk of deception in its view is greater there. That seems to be exactly what San Francisco has done.

The courts deciding these cases have focused on the free speech clause, but the plaintiffs have put forward a freedom of religion argument that I think is embarrassing. In some of the cases where clinics are forced by law to reveal the true content of their services, the plaintiffs complain that the compulsion violates their freedom of religion. I understand that the plaintiffs are opposed to providing abortion services on religious grounds, and I believe they have a First Amendment right not to do so. I find it hard to believe that they are really religiously opposed to publicly announcing their religious views about abortion in their waiting rooms, let alone being religiously opposed to revealing what their services are. Perhaps, however, their claim is that they have a religious right to deceive women (could they kidnap them, if necessary?), so that they not have abortions. I think this is dubious theology, but I know it is a preposterous legal claim. I doubt we will hear much about the religious argument in these cases, but the free speech arguments will be wrestled with in many of the appellate courts.

Have They No Shame?

It does not take a rocket scientist to recognize that the Republicans have walked into outer darkness in arguing that extending tax cuts for those who are not wealthy needs to be matched by cuts while arguing that tax cuts for the wealthy need no such compensating cuts. Their cover story for this is that the wealthy are “job creators” – despite the absence of significant evidence that tax cuts for the wealthy have created jobs except in overseas markets. Tax cuts for those who are not wealthy according to the Republicans do not create jobs. I would have thought that increased demand for products might increase jobs or so the Republicans have argued for many years. Indeed, they have argued that tax cuts pay for themselves. Now, however, they are loathe to do anything to help the economy so that they can blame Obama. I do not think that this is technically treason as a legal matter, but, as a political matter, I think it is a betrayal of a public trust – a form of political treason.

Meanwhile the blogosphere is alive with indictments of the Republican chicanery. Two of the best are here and here.

Our Perverse First Amendment

In recent years the Supreme Court has ruled that depictions of animal cruelty packaged to entertain sadists, violent video games sold to children, the intentional infliction of emotional distress of mourners at military funerals, and unlimited spending by corporations in election campaigns are protected freedom of speech. But the Court has also ruled that sleeping in a park across from the White House as a part of a demonstration against the housing policies of the Federal Government is not protected under the First Amendment.

I do not believe demonstrators should have carte blanche to violate laws. I, for example, believe that the enforcement of anti-noise ordinances (for nighttime violations) in residential neighborhoods can appropriately be applied against demonstrators. (I doubt by the way that nightly drum beating in residential neighborhoods by demonstrators has helped their cause). But the enforcement of curfew ordinances or anti-sleeping measures against demonstrators seems to me to strike at the heart of the First Amendment. The First Amendment is run into the ground when it is called to serve the makers of violent video games, but the First Amendment is best interpreted to protect those who dissent against existing customs, habits, traditions, institutions, and authorities. Squelching these demonstrations is an exercise of naked power. It is undemocratic. It should be regarded as unconstitutional.

The Court imagines that the failure to protect demonstrators is justifiable because government is entitled to make reasonable time, place, and manner regulations. Leaving aside the preposterous deference that is paid to government officials when they invoke this doctrine, it is time to remember Justice Thurgood Marshall’s observation that, “The consistent imposition of silence [using time, place, and manner regulations] upon all may fulfill the dictates of an evenhanded content neutrality. But it offends our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’”

Herman Cain, Religion, and Money

The Wall Street Journal carried a front page story about Herman Cain last Friday. The Journal reported that Cain steered clear of the strife surrounding the civil rights movement including the killing of four black girls in a church bombing during his first semester in college. Cain remarked, “I wasn’t determined to make social change. I wanted to earn some change. I wanted to make some money.” The Journal refers to this as part of Cain’s “plain-spoken charm,” and continues to report that always going to church was a mainstay of Cain’s value system.  Perhaps we can be forgiven if we fail to see the charm in this or if we wonder just what church preached that people should go out and earn money rather than helping others. (In fairness, the prestige associated with making money and the all-consuming desire for it is not the exclusive province of Herman Cain).

I would have thought that a focus on money or the material was the antithesis of religion. Of course, we all focus on the material and are more self-absorbed than we should be. But this is a vice. It is not a virtue, let alone charming. I am reminded of an ideal explained by Yale theologian David Kelsey. He compares the astronomy of Ptolemy with the astronomy of Copernicus. Ptolemy thought earth was the center of the universe and all other entities revolved around it for its benefit. Copernicus showed that earth was one of many entities interrelated in a dynamic system that orbits around the sun. Kelsey argues that the ethical challenge is to move from a Ptolemaic vision of the self to a Copernican view. Easy, it is not. I doubt that many people fully get there. But, if the goal of life is money and power, Copernicus is out of sight.

We Have Lost Our Democracy and Getting It Back Will Require More than Brave Young People Sleeping in Tents

I reported the other day here that even Gandhi came to the conclusion that mass strikes and boycotts were necessary in some circumstances to effect social change. Surely, in our country this is one of those times. One in three Americans are poor and unemployment exceeds 9%, but a party of traitors would rather sabotage the economy than do something to help them. Meanwhile, the Republicans spew out propaganda denying global warming (let alone presenting proposals to solve the problem), maintain that government should not spend any money except, of course, to build a moat or a wall along the Mexican border, pass laws designed to disenfranchise those who are unlikely to vote for them, protect the incomes of millionaires and billionaires, fight regulations designed to protect the health and safety of those Americans fortunate enough to have a job, and otherwise dance to the whims of business corporations in response to our system of legalized bribery. At the same time, the Democrats have given billions to banks without requiring that they loan money in ways that would help the economy. And they, with the Republicans, are responsible for the deregulation of the banks that led to the mess we are now in.

In this context, to complain that the Occupy movement needs specific proposals is laughable. We have a non-responsive government. Is there anyone who thinks that if the Occupy movement produced a five point proposal that our corporate lackeys in government would rush to adopt it?  Of course, there are obvious moves to be made (a constitutional amendment depriving corporations of their power would be at the top of the list), but what is needed is an even larger movement  demanding democracy .

Free Speech for the Rich and Pepper Spray for the Poor

John Kenneth Galbreath famously remarked that the United States has socialism for the rich and capitalism for the poor. Now comes Robert Reich (robertreich.org) to argue that we have free speech for the rich and intimidation of the poor. After detailing the disproportionate power of the rich, Reich says, "Yet when real people without money assemble to express their dissatisfaction with all this, they’re told the First Amendment doesn’t apply. Instead, they’re treated as public nuisances – clubbed, pepper-sprayed, thrown out of public parks and evicted from public spaces.

"Across America, public officials are saying Occupiers have to go. Even in universities – where free speech is supposed to be sacrosanct – peaceful assembly is being met with clubs and pepper spray.  

"The First Amendment is being stood on its head. Money speaks, and an unlimited amount of it can now be spent bribing and cajoling politicians. Yet peaceful assembly is viewed as a public nuisance and removed by force."

Gandhi and the Ethics and Politics of Social Movements

I just finished Gandhi’s Political Philosophy by Bhiku Parekh, a book that appears in Patrick O’Donnell’s marvelous recommended reading list on Gandhi. See here. I picked this book because I am interested in the ethics and politics of social change, and I have read other good work by Parekh. The book is well worth reading (though it is out of print, so try your library). The book admirably traces Gandhi’s remarkable and inspiring religious and political views and the relationship between the two. Although Parekh is an admirer of Gandhi, he is critical as well.  Gandhi’s faith in the ultimate morality of human beings did not fully take into account the hard heartedness and sadistic character of all too many in power. He sometimes overestimated the role that moral suasion (as opposed to power) played in accomplishing the social change for which he pressed. And most disturbing to me, his account of the relationship between love and detachment wrongly criticized emotional attachments with other human beings.

But these criticisms are dwarfed by the power of Gandhi’s vision of Indian culture which he thought of in what we would now call multicultural terms, his emphasis on and discussion of the importance of spirituality and his criticism of the material, his penetrating criticism of the corrosive effect of unbridled capitalism on culture (particularly industrialization – though Parekh argues he goes too far with the latter), his perceptive (but exaggerated) analysis of the extent to which the dominators need the cooperation of the oppressed to succeed, his interesting analysis of the Divine  particularly the extent to which humans participate in the Divine, his fresh perspective on the importance of drawing from the best in each of the world religions while expressing support for the idea  persons do so from within their own traditions, and his amazing courage and commitment.

Gandhi came to believe that in some of his struggles that mass strikes and boycotts (but not violence) were needed to force oppressors to come to a moral reconsideration of their actions. Reinhold Niebuhr would have argued that to combat power abuse a countervailing source of power is needed and that Gandhi’s rallying of power accounted for his success.

I attended a panel this weekend at the American Academy of Religion that compared the gospel of love in the work of Walter Rauschenbusch, a key figure in the Social Gospel Movement in the United States, and arguments for the limits of love in the work of Reinhold Niebuhr. Although Gandhi was not mentioned, I was struck by the similarities between Rauschenbusch and Gandhi and the extent to which the criticisms Niebuhr leveled at Rauschenbusch apply to Gandhi as well.  I was also struck by the relevance of the work of all three as applied to the ethics and politics of contemporary social movements.

The Distortion of Free Speech

In recent years the Supreme Court has protected depictions of animal cruelty, violent video games, and tobacco advertising all in the name of freedom of speech. It has protected unlimited corporate political spending on the same ground despite its undermining of America democracy.

Meanwhile lower courts are maintaining that the enforcement of curfew laws is more important than protecting protests aimed at criticizing our loss of democracy. Perhaps this is what our Constitution requires. If so, we need a new one.

Is Occupy Wall Street a New Kind of Social Movement?

Is Occupy Wall Street a completely new kind of movement? Yes it is, according to my colleague Sidney Tarrow in an essay in Foreign Affairs. Tarrow argues that is not a movement designed to serve specific constituencies with specific policy proposals like the Civil Rights Movement or the Tea Party Movement. Nor is it just an “emotional outcry” as Andrew Young claims. Rather Tarrow suggests Occupy Wall Street is an identity movement, a “We Are Here” movement. In that respect, he says the movement is like the early days of the feminist movement.

Tarrow is a long time expert on social movements, and I am not. But I do not think the “We Are here’ characterization captures the essence of the Occupy Wall Street movement. I may be projecting, but I believe that Occupy Wall Street stands for the proposition that the U.S. has become such a corpocracy that it is no longer a democracy. It is not that the demonstrators are there; it is that the public is no longer represented. From that perspective, Occupy Wall Street is of a piece with democracy movements around the world. (Hardt and Negri take this position in the first half of their essay in Foreign Affairs before meandering off into utopian discussion, see http://www.foreignaffairs.com/articles/136399/michael-hardt-and-antonio-negri/the-fight-for-real-democracy-at-the-heart-of-occupy-wall-street) One major difference is that many of those movements have used violence to bring about change. The dilemma facing Occupy Wall Street is that violence will not be effective in the U.S. and specific proposals addressed to the federal government have little chance of being adopted and will not solve a structural problem.

One thing that all the demonstrators surely agree upon is that our system of campaign finance must be changed. There is public support for a constitutional amendment, but corporate power will mightily resist. Interestingly, a single conservative resignation from the Supreme Court could make a significant difference in this area. But it would be far better to have a constitutional amendment emerge from a bitter struggle. I do not see violence as a pragmatic option, but I do not see significant change taking place with the sweet voice of reason unaccompanied by unpleasant confrontation. The history of labor rights and civil rights shows the necessity for such confrontation. Tarrow suggests we may have reached the kind of constituent moment of strikes and demonstrations of the 1930’s that propelled us forward into the New Deal, but he observes that the economic conditions of the 1930’s were worse than they are now. Occupy Wall Street may fade away in the depths of winter.

But it will be back. It’s  greatest ally is the venality, greed, and stupidity of corporate America and its paid supporters in Congress. The clock is ticking.

 

Occupy Wall Street in Historical Perspective: Demanding Democracy

I just read a quite interesting book by Marc Stears called Demanding Democracy: American Radicals in Search of a New Politics. It is not an unflawed book. Indeed, in one chapter it treats Arthur Schlesinger and other consensus liberals as if they were radicals. The book has some irritating exclusions (feminism gets short shrift ; ditto for the democratic socialists – communists are not treated, presumably because they are not demanding democracy).  For an excellent review that also recommends the book, but finds much to criticize, see Peter Dorman.

What I like about the book is its combination of history, political theory, and persistent themes in activist radical politics. It compares progressives, the C.I.O., the civil rights movement, and the SDS in an interesting way and ties the intellectual contributions of Niebuhr, Lippman, and Dewey to this history in an interesting way.

A central theme of the book is to explore the question of what tactics are ethical and practical to employ in a non-democratic society in an effort to get to a democratic society where such tactics would be out of bounds. Stears also usefully contrasts deliberative democrats, agonistic realists like William Connolly, (who believe conflict is ineradicable and there is no harmonized utopia at the end of the rainbow) and his democratic radicals.  Dorman criticizes the American focus of the book suggesting that it forfeits the richness of European comparisons. I am not bothered by this, but I am moved by Dorman to order up Atlantic Crossings: Social Politics in a Progressive Age by Dan Rodgers which apparently traces the influences of European thought .

Dorman liked the book because it put ‘60’s radicals in historical perspective. I like that as well, but I like the fact that the book offers a well written historical and theoretical perspective on the questions that confront the Occupy Wall Street movement.

Compelling Tobacco Companies to Carry Graphic Warnings on Cigarette Packages

Yesterday, US District Court Judge Richard Leon ruled that an FDA regulation requiring that cigarette companies carry graphic images dramatizing the health risks on cigarette packages is probably unconstitutional. Renowned first amendment attorney Floyd Abrams, who argued the case for one of the major tobacco companies, hailed the decision on the free speech ground that government should not be able to compel companies to carry advocacy against their lawful products. Appearing on a Los Angeles public radio station with him, I argued that when 400,000 people die every year because of tobacco, adding more than seventy billion dollars of costs to our health system, government has a compelling interest in minimizing those costs, an interest that outweighs the free speech interest particularly since corporations deserve little protection, if any, and that commercial speech is low in the hierarchy of valued speech.  For an edited podcast of the broadcast, see http://www.scpr.org/programs/airtalk/2011/11/08/21315/graphics-cigarette-packages/

Polling Regarding Deliberate Republican Sabotage of the Economy

About  half of the country including a slight majority of independents believe that the Republicans have deliberately sabotaged the economy for partisan political gain. Talking Points Memo discusses various polls here. If the Republicans continue to block the President's employment proposals, I would expect those numbers to go up.

Feminism and What's the Program?

Asking what's the program of the occupy Wall Street demonstrators reminds me of similar questions asked of feminists. Catharine MacKinnon responded to that complaint in the Afterward of Feminism Unmodifed in an illuminating way: "Audiences want to hear of the design of life after male supremacy. or, after all this negative, what do I have to say positive. This requests a construction of a future in which the present does not exist, under existing conditions. It dreams that the mind were free and could, like Milton, make a heaven of hell or a hell of heaven. The procedure is: imagine the future you want, construct actions or legal rules or social practices as if we were already there, and that will get us from here to there. This magical approach to social change, which is methodologically liberal, lives entirely in the head . . . .

"Not to mention that to consider 'no more rape' as only a negative, no more than an absence, shows a real failure of imagination. Why does "out now' contain a sufficiently positive vision of the future for Vietnam and Nicaragua but not for women?"

The Hungarian Crown, Occupy Wall Street, and the Politics of the Left

Kim Scheppele gave a wonderful talk at Cornell Monday on Hungarian law and politics. As she described it, the Crown of Saint Stephen is central to Hungarian politics and the interpretation of its meaning is fraught with toxicity from a progressive perspective.  Hungarian liberals and socialists reject the Crown as a relic of a monarchial past. But Scheppele argues that the Crown is too deeply embedded in the hearts of Hungarians to let conservative interpretations of it go unanswered. Her project is to argue that the Crown is imbedded in a far more progressive tradition than is traditionally understood.

My colleague Aziz Rana challenged her approach suggesting that the left was better off trashing the Crown as a basis for politics rather than fighting to reinterpret a symbol so heavily associated with authoritarian nationalism. My view is that there is political room for both internal interpretations of the Crown and external criticism of the Crown. Even though their political stances about  the Crown are different, liberal reformers and radical critics generally benefit from the presence of the other.

I think this is connected with a post by Mike Dorf on the Occupy Wall Street movement. He suggests that the criticism that the movement has no specific program assumes that the movement is a reform movement within the democratic system. But, he suggests, more plausibly that the movement denies we have a democracy and is a movement for democracy. So understood, Dorf maintains that the call for blueprints is as out of place as it would have been in discussing the protests in Tiananmen Square.

He continues to discuss where the movement might go and that is an interesting discussion. My point, however, is that the Occupy Wall Street movement need not develop specific proposals. Occupy Wall Street works hand in hand with liberal reformers. Without movement specifics, it is not difficult for others to imagine proposals that fit with its concerns including campaign finance reform, green policies and policies that help the poor and the middle class instead of the wealthy and the large corporations. Whether in Hungary or the United States, liberals benefit from a movement that outflanks them on the left.

 

Our Cowboy, Casino Economy

Capitalism comes in many forms. U.S. capitalism has best been described as cowboy capitalism or casino capitalism as opposed to the social capitalism that has marked European societies. (I think it is hard to blame the banking crisis of Europe on the governments' commitment to social services for all). Those who benefit from our cowboy, casino economy are the first in line to criticize the demonstrations that final have emerged against our system of unresponsive politics. For a interesting discussion of the reaction to the demonstrations, see Rob Johnson in Alternet.

Children and the Financing of Elections

No doubt you already think that our system of financing elections is something less than a model for the rest of the world. But only those with a vivid imagination could guess how truly crazy our system is. Read this.

Computer Addiction (and Television too)

Friday night Neesa and I saw the Ides of March, perhaps one of the hundred best movies of 2011, but perhaps not. Seated in front of us were a group of 20 year olds. During the movie two of them at different times pulled out their smart phones (to check their e-mail? to text?). Neesa and I intervened to get them to turn them off. They complied. We thought though that they were walking exemplars of computer addiction.

I don’t have a smart phone precisely because I know I would become an addict. I am already addicted to computers. I don’t know how many times a day I check e-mail, but it has been far too many. So, I have an idea that comes from Jana Reiss, the author of Flunked Sainthood: A Year of Breaking the Sabbath, Forgetting to Pray, and Still Loving My Neighbor which sounds like an interesting book. Reiss is interviewed about the book at Religion Dispatches. In discussing some things she takes away from her year of trying to act like a saint, she suggests that taking a digital Sabbath would be a good idea.

In the case of computers, I think that should ordinarily be workable. I must say, however, that taking a Sunday Sabbath this Sunday from television and missing the World Series, NFL football – not to mention the Good Wife (which shows at 9 on Sunday) sounded unappetizing. (Maybe April would be a better time) But it is hard not to admire those Orthodox Jews who give up television, computers, automobiles and more during their Sabbath period. (Note to compare Christian and Jewish conceptions of the Sabbath in the future).

But I can restrict e-mail to twice a day – every day and abandon the computer on the Sabbath day. That sounds like a moderate start to curing an addiction.

The Politics of Mainline Protestants

A common characterization of mainline Protestants is that they are more liberal theologically than evangelical Protestants and more likely to emphasize the social gospel. See Putnam and Campbell, American Grace 14 (2010). The impression is that mainline Protestants are by and large a liberal group. But this impression is apparently mistaken. 62% of highly religious mainline Protestants are Republicans. Id. at 371. ((Only 35% of highly religious Catholics are Republicans (id.) – I am quite sure the figures would be markedly different among the bishops)).

Even more surprising, at least to me, are the relative views of mainline and evangelical Protestants toward the role of government in helping the poor. My impression has been that evangelical Protestant have been better at providing to charitable causes than non-religious liberals (though not more generous than religious liberals), but that they, unlike mainline Protestants, are hostile to a government role in providing for the poor.  It turn out that even when black evangelicals are excluded, some 60% of evangelicals believe that government rather than private charity should primarily care for the poor and that mainline Protestants are somewhat less likely to favor such a government role. “Anglo” Catholics run virtually neck and neck with evangelicals on this issue. On the other hand, non-Christians (Jews, other faiths, no faith) exhibit greater support for government support of the poor than evangelicals, “Anglo” Catholics, or mainline Protestants, and Latino Catholics and Black Protestants show vastly greater support.  Id. at 257.

I conclude from this that the characterization of mainline Protestants as liberals is mistaken and am tempted to conclude that the category of mainline Protestants is too heterogeneous to be useful in political analysis.   

Gay Weddings: A Note on Town Clerks, Florists, and Photographers in Response to Dorf

May a Town Clerk with religious objections to gay marriage assign the task of recording the marriage to a Deputy Clerk? Mike Dorf says no, in part because the act of recording is so remote from the marriage itself. There is a sense that the Clerk is excessively fastidious.  Similar arguments underpin the idea that the state may tell florists and photographers that they may not discriminate on the basis of sexual orientation and that they may be required to participate in gay marriages even if their religion forbids them to do. But the question should not be what society regards as too remote, too principled, too fastidious, too crazy, or too offensive. The free exercise clause protects those with extreme ideas of what counts as participation and it protects religions that from the perspective of society are too principled, too fastidious, too crazy, and too offensive.

The key question is whether the religious claimant sincerely objects on the ground that he or she is morally obligated to perform or not to perform a particular act. Just as the free speech clause protects the speech we hate, the free exercise clause protects extremists. Of course, sincere religious claimants will not always be protected. As Dorf observes, a postal employee has to deliver mail that facilitates conduct she believes to be immoral. Quakers are required to pay taxes for wars they (rightly) believe to be immoral. Contrary to Dorf, there is an important difference between these cases and the Town Clerk case, and the cases he cites do not turn on the remoteness principle. The difference is that it is unreasonable to expect the post office to accommodate the postal worker’s religious objections by hiring additional employees. And the risk of free riders is too great to permit religious objectors to opt out in large part because many with no religious objections to paying taxes would suddenly find “religion.” In the Town Clerk case a reasonable alternative is readily available.

Free Exercise and Same Sex Marriage: A Response to Mike Dorf

Mike Dorf  has a characteristically elegant column (here) arguing in favor of two conclusions with which I disagree: first, religious objections to same sex marriage  are so tainted with prejudice that they should not be entertained, or, at least,  are substantively less worthy than those presented by other religions in most cases; second, even if those conclusions are false, a Town Clerk with religious objections to recording a marriage may not constitutionally delegate the job of recording the marriage to a deputy clerk even if the deputy clerk is willing to do so and the recording meets legal requirements. In Dorf’s view, a recording of the marriage by a town clerk is too remote from participation in the marriage to justify conscientious objection. Dorf’s discussion is based on an actual incident involving the actions of Rose Belforti, the Town Clerk in Ledyard, New York who delegated the task of recording a same sex marriage to a deputy clerk. Apparently, the married couple involved is contemplating a law suit.

Dorf argues that religious objections to same sex marriage are offensive. They are rooted in prejudice and they stigmatize vulnerable minorities. No doubt the religious conclusions of millions opposed to same sex marriage are fueled by prejudice.  But passages in the Bible particularly from St. Paul I think would compel fundamentalist readers to the view that same sex relations are condemned. Those Christians who reject the conclusion suggested by these passages either engage in a strained reading of Paul, or they reject fundamentalism and argue that Paul’s condemnation was a reflection of his culture and not the message of God, or they deny the claim that the Bible is divinely inspired, but treat it as an important reflection of what important  Jewish writers have believed.

Dorf suggests that because different religious believers reach different conclusions reaching the same text, they have made a choice to reach that conclusion and from that perspective those who take the literal reading of Paul do so out of prejudice. Of course, results-oriented hermeneutics is not uncommon, but it seems to me that the commitment to fundamentalism is based on an impoverished conception of interpretation – not in prejudice. Even if the source of a religious belief is prejudice, it is still a religious belief within the meaning of the Constitution and, in my view, it should be. I think Dorf would agree (though he could be read the other way); his apparent argument is that the existence of prejudice diminishes the force of the constitutional claim. I do not think government should be making such assessments. There are Establishment Clause concerns implicated in officially deciding that some religions are better than others.

Dorf also argues that actions based on religious objections to same sex marriage are offensive because they stigmatize a vulnerable minority. I agree. But this does not make the religious view any less religious. (Even if prejudice were the source of a Minister’s views and recognizing that the views stigmatize a vulnerable minority, surely Dorf would not say that a minister could be forced to marry a same sex couple). What Dorf’s point calls for is the weighing of the burden on free exercise against the harm to those who want a same sex marriage recorded by the Town Clerk. Although I would hold for the same sex couple against a Town Clerk if the Clerk were the sole person authorized to record the marriage, in my view, forcing someone to engage in an act that is religiously forbidden to her (when an alternative to doing so is available) is a more serious intrusion than the insult delivered to the same sex couple. I understand that there is an accompanying equality concern. If New York State adopted a two tier system for recording marriages (the Town Clerk for heterosexual marriages; the Deputy Clerk for same sex marriages), serious constitutional questions should arise. But the system in place in the Belforti incident is not one in which government endorses a distinction between marriages based on sexual orientation. The government is accommodating a religious view, not endorsing it. This sharply mitigates the equality concern. Although our society is divided about same sex marriage, we may already have arrived at the day in which the extremist Town Clerk in Ledyard is part of a sizeable, but diminishing minority. And, if we are not there yet, we are on our way.

Comments regarding Dorf’s participation arguments later

 

Interview of Robert Bellah

Immanent Frame has an intriguing interview with Robert Bellah. Here's a sample:

"NS: I wonder if you have an opinion of journalist Robert Wright’s The Evolution of God, which offers, in some ways, a comparable story about the development of religion in evolutionary perspective.

"RB: I think Wright is a very bright guy, and he has some interesting things to say. But he’s very hung up on the notion of gods and, particularly, God. His book overwhelmingly focuses on Judaism, Christianity, and Islam. You would hardly know that half the world is not there. Hinduism, Confucianism, and Buddhism are huge traditions of enormous importance, and they aren’t monotheistic. Again, this reflects the fact that our preconceptions about what religion is are so influenced by Protestantism—either real Protestantism or the secularized Protestantism that dominates our culture—and its assumption that beliefs are the most important thing. But it’s clear all the way through history that practices are primary and beliefs are secondary."

For more particularly about his forthcoming book on religion and evolution, see here.

The Politics of "Hallowed Be Thy Name"

It never occurred to me that the phrase "hallowed be thy name" in the Our Father has something to do with global capitalism, American nationhood, and military spending. But I was missing something important. See the excellent column by Martin L. Smith at the Daily Episcopalian

Francis Fox Piven

Treat yourself to this four minute interview of Francis Fox Piven at Occupy Wall Street:  Here

My Response to Joe Biden

I, and millions of others received an e-mail for Joe Biden late last week. It said in part: "Steven -- I need to ask you one last thing before tonight's midnight deadline:
"If you know you're going to donate to this campaign eventually, what's stopping you from doing it right now?
"If you're going to be a part of history in 2012, it's time to get off the sidelines."

My response: "The Obama administration surrounded itself with Goldman Sachs financial advisors, escalated the Afghanistan war, gave proposals to Congress that were fashioned to appeal to 'liberal' Republicans, appealed to centrists, mocked the left, and stood above the Democratic Party rather than with it. The person who was supposed to be the head of the Democratic Party allowed the Republican Party to shape the national dialogue without a leader willing to give the lie to their preposterous fantasies about how jobs are created. And you dare to wonder what is stopping me? Go get money from Goldman Sachs and the centrists. Meanwhile, I'll give money to those in the legislature who tried to get your administration to join the Democratic Party."

I have not ruled out giving Obama money later (while holding my nose). But I guess I missed out on being a "part of history" by not meeting the midnight deadline.

Our Partisan Constitution and the Role of Judges

Recently, I argued that the Constitution favors Republicans. My point was that the system of checks and balances helps those who do not want to spend money on government programs. Many features of the current system over the years have allowed minorities to block legislation including the overrepresentation of smaller conservative states in the United States Senate. Politically popular measures are routinely blocked in the Congress because of the power of moneyed interests who constitutionally are empowered to spend unlimited sums to entrench their power. Consider, for example, the continuation of the Bush tax cuts for those earning more than $1 million dollars despite majorities of Democrats, Republicans, and Independents in opposition to their continuation. If justice and the public interest are major goals of our system, our system is broken.

This leads me to wonder about the role of judges in our system. If the system is broken elsewhere, it strikes me that it is the responsibility of judges to assure so far as possible that justice is done and the public interest is met. This would entail many things, but it would include limiting the role of money in politics. It would also include assuring – so far as possible that citizens have adequate food, clothing, housing, and medical care. Members of the Warren Court interpreted statutes in ways that were designed to take us closer to economic justice. They were right to do so. Our times call for activist progressive judges. Regrettably we do not have enough of them. Meanwhile, it seems reasonable to say that we are living in an unjust society.

Irvine California and the Rights of Muslim Hecklers

Ten Muslim student were convicted in Irvine California yesterday for conspiring to disrupt and disrupting the speech of the Israeli Ambassador on the Irvine campus. One by one the students stood in a large ballroom and yelled at the Ambassador. Despite the interruptions the Ambassador was able to complete his speech.

The discussion of the case has emphasized that the First Amendment is not an absolute and that the students have no First Amendment right to disrupt a speech. But the First Amendment is more complicated. Free speech does not imagine a dominant speaker with a polite audience. The history of free speech involves speech-audience interaction and considerable heckling is a vital part of the First Amendment tradition. Indeed, the California Supreme Court itself many year ago in In re Kay invalidated the convictions of hecklers who chanted "What About the Grape Boycott?" to the speaker Congressman John Tunney who was trying to speak about the space program in the San Joaquin Valley.

Even if the hecklers should not have been protected under the First Amendment, as Erwin Chemerinsky, Dean of the Irvine Law School and an eminent constitutional scholar, observed, it was surely overreaching by the prosecutor to bring this case in the first place. The students had already been subject to school sanctions. Bringing on a show trial smacks of politics and ugly politics at that. Irvine is situated in Orange County the home of the John Wayne Airport and a resting place for the most conservative of the California citizenry. It was not hard to predict that a group of Muslim students would be convicted for daring to disrupt the speech of an Israeli Ambassador. The prosecution opens wounds. It probably was good politics, but it is hard to believe that the reason for its being good politics is not in part fueled by anti-Muslim sentiment. Fortunately the judge did not sentence the students to jail time, but the student now have convictions on their record and a Muslim community that feels victimized.

The First Amendment is about many things, but it is partially about power. The First Amendment should sponsor the marginalized and the outcasts. It should favor those who speak out against existing customs, habits, traditions, authorities, and institutions. Of course, hecklers can cross a line and the line may be difficult to draw. But the First Amendment should be interpreted in ways that accomodate hecklers so far as possible. 

Taxing Millionaires: Obama Did Not Move to the Left

The Wall Street Journal reports this morning that President Obama has moved to the "left" in his tax proposals instead of appealing to "centrist and independent" voters as he has in the past. More precisely, in trying to get things through Congress, Obama has appealed to the left wing of the Republican Party (which is itself quite conservative) at the same time he has tried unsuccessfully to appeal to centrist and independent voters. To have a Democrat President behave like a wishy-washy "liberal" Republican has not appealed to independents and has not inspired the Democratic base.

The notion that the idea of taxing millionaires moves to the left away from centrist voter is pure fiction. A majority of Democrats, of independents, and, for that matter, of Republicans favor increased taxation of millionaires. For the left, I would think that the key idea is not that the rich should pay their fair share (though, of course, they should), but that significant income inequality is bad for the economy and for the culture. For an excellent book that develops this theme and many others, see Europe's Promise by Steven Hill.

Deer and Conservative Politics

Many communities including mine have a large number of deer and they divide over what to do about it. Some like me are in the Do Nothing Bambi Party. Others are in the Kill Them All and Call It Culling Party. Still others opt for forms of birth control. But, looked at from the perspective of conservative politics, most do not see the rampant immorality of deer and have not focussed on the appropriate way to deal with this serious moral problem. Go here. Don't miss out.