Fake News - About Religious Freedom

The picture at the top is from a Christmas Party in 1946 in an auto dealership in Paterson NJ where my father was the general manager.  I am showing it for a reason that will be clear by the end.  

Conservatives make frequent reference to the founders but if you look closely, you will learn that they do so only when it suits them.  They pretend that the founders were a united group of men who had a single idea about how the US should be governed and about what our constitution meant, but the founders were far from being a single group with shared beliefs.  For example, the Massachusetts founders believed that government was an instrument for promoting progress.  The Virginia founders on the other hand were well to do planters, also slaveholders and who wanted rights for themselves (the ruling planter class) but who had not the least concern for the “servants” who worked for them, nor for the poor whites who lived in squalor in the hills and woods.  When Jefferson wrote that all men were created equal, he was spouting a feel good phrase that had little practical effect on his life.  He may even have believed he meant it.  But when it counted, he did not. 

Despite the bullshit spouted by conservatives, the founders did not have a single set of notions or purposes, other than to unite and prevent chaos; yet, conservatives have somehow managed to convince the rest of us otherwise.  Instead of challenging conservatives on this important matter, the left has ceded this ground to conservatives, and has proposed an alternative, which is that that the meaning of the constitution evolves over time.  While this is entirely reasonable, and is the way we read literature, it is terrible to let conservative get away with their ownership of the true meaning of the constitution.  There was never an original meaning.  

An early example of conservatives twisting the constitution to their uses was in the Dred Scott decision by Roger Taney.  Writing for the majority, he determined that African Americans had no claim to freedom or citizenship. Since they were not citizens, they did not possess the legal standing to bring suit in a federal court. As slaves were private property, Congress did not have the power to regulate slavery in the territories and could not revoke a slave owner's rights based on where he lived.

Of course the constitution does not say anything about citizenship.  And since free blacks existed all through the north (and even in the upper south) before the revolution, it is absurd to say that they had no rights.  Where does Taney get this?  But as a southerner who grew up on a tobacco plantation, his played his lawyerly word games to suit his needs. 

Even when the constitution has been amended, conservatives seem quite able to ignore what seems the obvious meaning. 

As the Civil War was ending and over the next several years, there were three amendments passed to end slavery, make blacks citizens and give them the vote.  

Let’s look at the 14th amendment, the first paragraph says: 

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The fifth paragraph says that:  

Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Yet when, after the Civil War, the Congress passed a civil rights law the protect blacks whose rights were routinely disregarded, the Supreme Court overruled parts of the law, saying that Congress was not afforded control over private persons or corporations.

How could that possibly be, given the Congress was given the right to pass legislation to protect the rights of freed slaves (and other black Americans).  

And yes, I agree that the amendment did not give Congress power to pass laws about people, but the southern states withheld state protection as blacks were threatened and even killed.  If some implied power is not seen to exist to correct what was a terrible injustice, then words have no meaning.  

The fourteenth amendment is a curious tool too.  In the Citizens United decision, the Supreme Court granted to artificial persons rights to use their money without limit to launch ad campaigns in elections based upon the bizarre idea the artificial persons (corporations and trusts) have the full political rights of real persons, who can be beaten, jailed and shunned.  speak during political campaigns that 

The Citizens United decision for me is every bit as bad as the Dred Scott decision.  

Curiously, as the Atlantic has pointed out, the notion that the 14th amendment protected artificial persons was based on a lie told by a lawyer (by Roscoe Conkling).  A lawyer lying.  Typical. 

The Supreme Court under Earl Warren finally defended the rights of individuals (blacks and otherwise) in a series of decisions from Brown v Board of Ed, to the Miranda decision.  Conservatives hated it.  They may talk freedom but the reality is that Conservatives primarily defend power and the status quo.  

Over the past two decades, Conservatives have begun to find usefulness in the First Amendment as a cudgel to thwart social change.  Thus it was that Conservatives have crafted legal arguments to use “Freedom of Religion” as a means to stop aspects of the ACA or to hold back gay rights.  

Recently Jeff Sessions gave this speech about what he sees as a threat to religious freedom. In these remarks (excerpted and edited) Sessions sees, “ A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom.  This is no little matter. It must be confronted and defeated.

We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs.

This President and this Department of Justice are determined to protect and even advance this magnificent heritage.

Freedom of religious is indeed our “first freedom”—being the first listed right of our First Amendment.

This has been a core American principle from the beginning.

It is one of the reasons that this country was settled in the first place.

The promise of freedom of conscience brought the Pilgrims to Plymouth, the Catholics to Maryland, the Quakers to Pennsylvania, the Scot-Presbyterians to the middle colonies, and Roger Williams to Rhode Island.

Each one of these groups and others knew what it was like to be hated, persecuted, outnumbered, and discriminated against.

Each one knew what it was like to have a majority try to force them to deny their natural right to practice the faith they held dear.

Our Founders gave religious expression a double protection in the First Amendment.  Not only do we possess freedom to exercise our beliefs but we also enjoy the freedom of speech.

Our Founders’ understanding of and commitment to religious freedom was truly brilliant as well as historic.

Editor’s note: Sessions took off his Klan robes to deliver this speech. 

…

President Trump heard this concern. 

I believe this unease is one reason that he was elected.  In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith.  He declared we would say “Merry Christmas” again.

The Department of Justice has settled 24 civil cases with 90 plaintiffs regarding the previous administration’s wrong application of the contraception mandate to objecting religious employers. 

Last month, a district court in Colorado issued a permanent injunction in the case involving the Little Sisters of the Poor, a group of nuns who serve the elderly poor.

This is a permanent injunction and a major victory for the Little Sisters of the Poor and religious freedom. 

The government has no business telling the Little Sisters that they must provide an insurance policy that violates their sincere religious beliefs.

…

Of course it is nonsense.  But it is especially galling to see a man of the deep south claim any concern for Catholics, since the deep south has been for all its history a place with deep suspicions of Catholics.  It also remains deeply suspicious of social change in general, and of the cosmopolitan nature of cities.  

So when Sessions writes of the Little Sisters of the Poor, he is using them - and sadly they seem happy to be used.  Of course there never was any law that demanded that the sisters purchase birth control.  What the ACA demanded was that employer sponsored health plans cover birth control as a basic part of paying for health care.  The Catholic Church is itself an institution that places eunuchs and celibates on a higher plane of morality than those who marry and have children. Ruled by unmarried men, many of them closeted homosexuals*, the church still refuses to admit that is has a perverted approach to sex.  Sessions support of the Catholic Church and their working with him is a true devil’s bargain.

The concern about saying Merry Christmas is another bogus matter.  Those in rural America, and especially in the deep South (and mountain west) are still new to the multi-cultural America that the rest of us experienced as long ago as the 1910s.  To that end, please review the picture of a Christmas Party from 1946 hosted in Paterson - the business was owned by 2 Irish Catholics.   Even then, long before Fox News and long before political correctness, it was the norm among civilized folks to say Season’s Greetings in situations where people from many different backgrounds might gather.  The dealership had Catholics and Jews, even Protestants too.  And it hurt no one to say Season’s Greetings, or Merry Christmas as the situation demanded.  

Nor have the courts EVER said that morality cannot be the basis for law.  But what is morality?  And sorry to those who imagine immutable laws of God, but morality - as it effects life, does change.  In 1950, a divorced politician might lose an election.  In 1950, a couple before marriage would never have lived together publicly.  And birth control was limited to condoms and luck. 

Oh, and what was considered pornography then are pictures that would barely get a PG rating now.  

PS: a few years back when a public official refused to issue a marriage license to a gay couple, conservatives should have denounced her.  We cannot have public servants making individual decisions about who gets a license to marry or drive, or which businesses can open (unless they are illegal).  Officials having private discretion is how corrupt societies operate.  With private discretion, you get bribery, or massive injustice (as with the administration of voter registration in the south before the civil rights era.  

Nor can we allow pharmacists to make their own determination about who can get this or that drug.  

Or bakers deciding for whom they will sell cakes.  

*re noting that the Catholic Church is led by closeted homosexuals.  This can be a touchy subject, but the recent story of yet another cardinal caught with his hand in the cookie jar is just too much to ignore.  There has been much effort to define sex abuse by clergy as the molesting of children, but the subjects are typically not children before puberty, but youths - sexually capable even if immature and even scared.  The Church has long been ruled by men who are suspicious of women and who have had little normal contact with them.