Alito's intellectual dishonesty

Warren Richey in The Christian Science Monitor chronicled a fascinating exchange at the Supreme Court. The subject was whether Oklahoma's particular "cocktail" of drugs to execute people constitutes cruel and unusual punishment, which would violate the Eighth Amendment.

Originally lethal injection employed one of the well-known anesthetics sodium thiopental or pentobarbitol. Opponents of the death penalty campaigned the drugs' manufacturers to stop making them available for executions, driving states to find alternatives.

... Justice [Samuel] Alito said death penalty opponents are free to try to change the laws and they are free to ask the court to overturn capital punishment.

“But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any pain,” he asked.

So let's get this straight. Justice Alito, like a good conservative, is fine with the operation of the invisible hand — except when it interferes with something he cherishes, like the right to execute people.

The "guerrilla war against the death penalty" was not some heinous attack on civilized society. To the contrary, it represented the essence of what it means to live in a free society. If the drug manufacturers had felt they were being illegally extorted in any way, they had more than enough money and influence to fight (and win) in court.

To characterize the effort to dry up the supply of the drugs as a "war" was rhetorically desperate. It was an effort to delegitimize an opinion with which he doesn't agree. If the drugs were unavailable because the companies were wholly owned by religiously devout men who considered the death penalty to violate their religious scruples, would Alito call the drugs' unavailability the result of a "guerrilla war"?

If the state depends on private companies for its supplies, the state is vulnerable to the vagaries of the market. The drugs were made unavailable by perfectly legal means. Trying to smear those legal means by calling them a "guerrilla war" is juvenile and hypocritical.

Do I expect Alito, or Antonin Scalia or Anthony Kennedy, both of whom chimed in in support of Alito's questioning, to recognize their hypocrisy? No.

But the rest of us must. We may not be able to stop them from being logically inconsistent, politically motivated animals, but we need to call out their hypocrisy and unabashed dishonesty whenever we see it. They need to know we see through their political agenda and that we think it stinks — and so do they.

A different take on Ukraine, Russia and Putin

It seems to be the day for me to take stock of my positions and, perhaps, find them wanting. First I revisited my reflexive distrust of religious-freedom laws (not changing my opinion so much as opening up the possibility that I might do so down the line), and now I'm wondering how much of the political elite's Kool-Aid (TM) I've drunk with respect to Ukraine, Russia and Vladimir Putin.

Part one of Patrick Smith's interview in Salon with Professor Stephen F. Cohen had the same effect on me as my brushes with Noam Chomsky: I reflexively reject the total repudiation of some of my most deeply held ideas about how the world works, but at the same time I'm left wondering whether I'm simply (and deeply) misinformed.

After all, at one time, ordinary people like me believed slavery was normal. There's no end to the harmful ideas people throughout history have held simply because nobody challenged those ideas.

Briefly, Cohen argues (as others have argued) that it was the United States that fomented the current crisis in Ukraine. We did it in the 1990s, with Bill Clinton's triumphalist insistence that the West "won" the Cold War. We like to think it was Reagan who used that rhetoric, but Cohen claims it was Clinton's words and deeds that really did the damage. The deeds in question center largely around the expansion of NATO beyond what Russia understood would be the alliance's limits.

Cohen also argues that there's a dangerous unanimity among the United States' major media outlets when it comes to Russia and Vladimir Putin. They all agree that Russia under Putin was the aggressor in Ukraine, that Ukraine is a fledgling democracy being crushed under Russia's hegemonist heel, and that Putin is a budding Hitler. The "demonization" of Putin, as Cohen put it, has had a calamitous effect on analysis and decision-making in Washington:

... the net result was to make rational analysis in Washington on Russian affairs at home and abroad impossible, because it was all filtered through this demonization. If we didn’t stop, I argued, it was only going to get worse to the point where we would become like heroin addicts at fix time, unable to think about anything except our obsession with Putin. We couldn’t think about other issues. This has now happened fully.

That's one of Cohen's key insights, one whose truth I can see for myself, and it makes me open to the rest of his arguments (though I'm suspicious that he is a little too eager to excuse all of Russia's actions).

Part two of the interview is to run next week, but part one contains quite enough food for thought for now.

A more sympathetic take on religious accommodation

As a thoroughly non-religious person — one raised outside any religion — I confess to a great deal of impatience when I try to come to terms with arguments for religion's role in civic life. My feeling is, let it inform your own decisions on how to lead a moral life — but keep it the hell out of my decisions.

That's why I'm conflicted about Warren Richey's piece "Gay rights and religious liberty: Can Americans have both?" in the Christian Science Monitor.

It points out that the federal Religious Freedom Restoration Act was passed in the wake of a group of Native Americans being denied the right to use peyote. The Supreme Court held that federal laws of general applicability, such as anti-drug laws, could be applied to religious groups in spite of the First Amendment's generally perceived broad protection of religious exercise. Since the Court later decided that the federal RFRA only applied to federal statutes, we've arrived at the current landscape in which many states are looking to enact, or have enacted, their own versions.

To the extent that minority religious practices are being protected by state-level RFRAs, it's hard to argue with those laws.

On the other hand, religious groups have been the bane of progressive causes near and dear to my heart for decades. I support the right of women to have safe and legal abortions. I support the right of non-heterosexuals to ... well, live. However, bigoted ministers and pastors and other so-called religious leaders have railed against abortion and homosexuality in terms that demonize people like me. The opposition I could respect at an intellectual level; it's the demeaning of their opponents as subhuman that sticks in my craw.

Richey's piece goes on to portray Utah as a model for accommodation of both sides, if by both sides you mean "gay rights" and "religious liberty". My concerns over so-called "religious liberty", however, go beyond the most zealous believers' opposition to gay rights. Organized religion has often been the strongest supporter of the status quo, and loves to find minorities to exclude and to disfavor. Christians like to point out that it was religious denominations who led the opposition to slavery in the U.S., but neglect to acknowledge that other denominations provided the moral underpinnings that allowed many to conceive of slavery as the natural order. Similar arguments can be made for civil rights generally.

In fact, what I find most troubling about religion isn't the specifics of any one so much as the habit of mind religion often inculcates. The monotheistic religions in particular encourage unthinking acceptance of a set of rules for living, coupled with a long history of excusing intolerance of and violence against those who aren't part of the group.

Not all denominations of any religion are guilty of such intolerance and violence, but the most tribal and divisive denominations and sects are the loudest voices in our civil discourse. It's those denominations and sects — Christian ones, primarily — that are at the forefront of the pro-RFRA movement. It's those denominations and sects that have grabbed headlines for wanting to demonstrate their hostility to non-heterosexuals.

Hence my antagonism toward laws that give them a legal license to indulge their basest impulses in the name of their religion.

As I've said before, we wouldn't tolerate a so-called religious right to conduct human sacrifice. We recognize limits on the rights of the faithful to pursue their faith in the public square. We do so reluctantly, and only to ensure that the public square remains open to all. But we do so.

The idea that we need to accommodate religious liberty is one I can respect in the abstract. However, I think that the state-level RFRAs that have been and are being enacted are legal redoubts behind which people can indulge their prejudices in the name of religion. And tomorrow those prejudices will be directed against someone else, someone other than non-heterosexuals. Will Louisiana's RFRA, for instance, permit a Muslim business owner to deny service to a believer in Santeria on the basis that the business owner considers Santeria blasphemous? (Given one Louisiana legislator's overweening concern for protecting the business rights of those opposed to same-sex marriage, mine might not be an idle concern. On the other hand, it's impossible to imagine the Christian majority in Louisiana getting involved in such a fight as I postulated.)

I hate unnecessary alarmism: it's a hallmark of the religious right and, indeed, of every formerly dominant group now threatened with having to share power in this country (whites, men, Protestants, etc.). Yet given the overwhelming religiosity of this country throughout its history, I don't think my concerns about so-called "religious freedom" laws is misplaced.

Richey's piece is considerably more sympathetic to the concerns of religious-freedom advocates than I am, and it did make me consider those concerns in a more positive, less threatening light. It didn't eliminate my worries, but then, after decades of regressive statements and actions, no one article could. It will take decades of non-aggression for me to be less suspicious of religious groups and more welcoming of their presence in the body politic.

Stop legitimizing the Bible

Chris Sosa makes an excellent point:

... there's an incredibly good reason LGBT folks and their allies should agree with anti-gay Christians that the Bible condemns them: if we bother arguing that the Bible supports us, we're conceding its validity as a moral text. And once we free ourselves from its shackles, fundamentalists can just use it to abuse the next minority group unfortunate enough to stumble across their path.

It's the idolizing of the Bible as holy text that allows authoritarians like Roy Moore to demean the job of Chief Justice of the Alabama Supreme Court by bending civil law to suit the Bible. Whether he and his ilk are right or wrong in their interpretation of the text is irrelevant. He's not supposed to be letting it guide his work. Nor is Sen. James Inhofe. Nor is a host of other elected officials.

Stop playing their game. Stop pretending the Bible is so important to our civic life.

The creeping expansion of religious exceptionalism

Dahlia Lithwick wrote a great overview of what academics have called "complicity-based conscience claims", arguments made by religious-rights advocates to exempt themselves from a wider and wider array of rules laid down in the civil sphere. The justificaiton for these exemptions is the supposed right for the devout not to be complicit in acts that violate the tenets of their religion.

You don't have to be an ardent member of an organized religion to appreciate that such exemptions are sometimes genuinely needed. The federal Religious Freedom Restoration Act in 1993 was a well-intentioned effort to make such exemptions easier to obtain, and even I, highly skeptical about such exemptions, will admit they sometimes have merit.

The trouble is that the original rationale for such laws has been lost in the clamor for greater and greater protections for a putatively oppressed religious minority. They're not oppressed and they likely aren't a minority, either, not in this almost embarrassingly devout nation, but that hasn't stopped the political leadership of this movement from playing the victim card every chance it gets. And as Lithwick points out, this bunch is no longer content with merely demanding the government not compel it to do things: this bunch is now insisting on the right to act on their religious convictions even if the consequences are borne by third parties.

In drafting the federal RFRA, Congress chose not to protect claims of religious freedom that placed a burden on third-party disfavored minorities. Responding to a federal appellate court case, Thomas v. Anchorage Equal Rights Commission, involving a landlord who didn’t want to rent to unmarried couples for fear of facilitating sin, Congress expressly opted not to enact a statute that would protect these types of claims.

This, of course, is where the recent Indiana, Arkansas, and now Louisiana state-level RFRA laws come in, with their explicit protections of private businesses that deny services if providing the services would violate the business owners' religious beliefs. In other words, the laws allow the business owners' religious convictions to trump their employees' and their customers'.

Lithwick points out that the impact of the complicity-based conscience claims, though, is most heavily felt in the realm of health care. The impact most notoriously falls on abortion and contraception, but the tactic can in principle be expanded as far as anyone wants. This is the reason I've argued that we need to stop relying on the Catholic Church to run hospitals. The troubling behavior, though, is hardly unique to the RCC: individual doctors, nurses and pharmacists have all asserted a right of conscience to refuse to provide certain drugs or services.

These claims of religious conscience are excessively burdensome to the rest of us, particularly to minority groups whom the majority culture (often with supposedly religious justification) has disfavored. Let the pushback against these claims begin.

Carly Fiorina: just another Republican

I believe, as do others, that our government might work better if more women comprised it. Granting that not all male members of Congress are as thoroughly useless as Ted Cruz, James Inhofe, or that supreme jackass (and the competition is stiff for that title) Louis Gohmert, the "willingness to play well with others" quotient, not to mention the intelligence, of the average member of Congress still might increase if there were more female legislators. A female President would be fascinating and perhaps good for the nation as well.

Carly Fiorina ran for the Senate in 2010 but was defeated (the Senate got a California woman anyway in the form of Barbara Boxer). Now Fiorina is making noises about seeking the Republican presidential nomination in 2016.

So, huzzahs all 'round? Well, maybe not.

Fiorina bashed Apple CEO Tim Cook for his Washington Post opinion piece opposing Indiana's RFRA bill. Nothing wrong with disagreeing with Cook — unless your rhetoric is as dishonest as Fiorina's.

"When Tim Cook is upset about all the places that he does business because of the way they treat gays and women, he needs to withdraw from 90% of the markets that he's in, including China and Saudi Arabia," she said. "But I don't hear him being upset about that."

So because Apple does business with China and Saudi Arabia, it's okay for Indiana to adopt policies that open the door for discrimination against non-heterosexuals. Um, yeah. And Cook didn't threaten to "withdraw" Apple from Indiana anyway. Nice way to distort his actual position.

Then there's her take on the criticism of the Indiana RFRA legislation generally:

"I think this is a ginned-up controversy by people who play identity politics that has divided the nation in a way that is really unhelpful," Fiorina said.

Fiorina disingenuously ignores the stated rationale for the law (and for others like it pending in other states). Strongly devout believers, mostly Christians, are seeking legal sanction for their discrimination under the theory that their religion demands it. The ones playing "identity politics" are those who want to elevate their right to "express" their religious belief above the right of others to be treated as ... human beings. An identity as religious believers is treated as more important than the dignity of non-heterosexuals, even though the context isn't houses of worship but places of business.

Ms. Fiorina, you fell back on tired, superficial, and worst of all, simply inadequate GOP talking points. One of the things I look for from female candidates is a fresh perspective and a certain amount of thoughtfulness that many male candidates don't display. You failed to bring those qualities to the table in your disdainful criticism of Tim Cook. Your answer, in short, was no more worth hearing than the answers given by the declared or likely male Republican presidential candidates.

Government might work better with more women, but you, Carly Fiorina, haven't showed that you'd be an improvement.

Education as a leap of faith

[I've been sitting on this for over a month. Just as I was going to post it I got sidetracked by grotesque political idiocies. It's curiously relevant to those idiocies, inasmuch as it touches on what I believe is one of the drivers of the far right's sometimes irrational outlook.]

I liked Edwin Lyngar's tale centered on his struggle to overcome poverty for himself and his family. He credits higher education not only for giving him a chance at a new career, but also for helping to change some of his fundamental conservative beliefs.

This is obviously a tale that will warm the heart of any liberal. Indeed, it's so satisfying to liberals that a couple of reminders seem in order: conservatives can point to their own stories of repentant former liberals, and media outlets on all sides have every interest in hyping "conversion" stories. So even though I like his thinking, I'm mindful that it could be a little too good to be true.

I'm not a Tea Partier but this sounds (or, as Stephen Colbert the character would have said, "feels") about right to me:

The Tea Party thrives on blue-collar “common sense” that is composed of a combination of ignorance, superstition and fear. A literate and educated populace is an existential threat to the kind of thoughtless rage that has consumed the right over the past few years.

This has certainly proven to be the case elsewhere in the world. For instance, Islamic fundamentalists consider people like Malala Yousafzai, the teenaged Pakistani advocate for girls' education, a mortal enemy. Given the barren and savage worldview promulgated by fundamentalist Islam, it's easy to see that it can only thrive where life is hard and people don't see alternatives. Education gives people alternatives.

Lyngar makes a more contentious assertion:

... there is inherent value to education even if someone isn’t paying you for it. I know my life would be less satisfying without it.

(By the way, Lyngar mixes and matches "education" with "higher education" or "college". I've tried to distinguish between them when necessary. It's also worth noting that some of these same arguments have percolated down to the K-12 level: witness the heightened profile of fundamentalist Christians home-schooling their children.)

It's one thing to say your own life has benefited from education. It's another thing to say that education has an inherent value for everyone. The value of education generally can only be gauged by your own experience with it. That is, you need to get an education to know what it's worth.

You know what else can't be judged without embracing it first? Religious faith. All the testimonials in the world, even from your nearest and dearest, really can't make the case. You have to experience it for yourself. Or, as I think of it, you have to want to embrace it.

I think that's why education at all levels has such a high hurdle to overcome in this country. As someone raised outside of any faith, I've resisted anything that smacks of religious indoctrination with a surprising fervor. Religion may be a source of comfort for billions (I'm well aware of how much of an outlier I am, lacking even a nominal upbringing in any faith), but all I can see is that it would be a colossal waste of my time and energy. I've never needed it.

Or so I believe. I've experienced bouts of depression and I've learned not to ask myself the question, "Why am I here?" For a lot of people, that would be reason enough to look for something larger in which to believe. A lot of people would say it's borderline insane not to seek spiritual comfort to alleviate what sounds like an intolerable emptiness. But for me, the drawbacks outweigh any imaginable benefits. And honestly, embracing a religious faith at this point would feel like a defeat. I'm on a quest to prove that one can live not only a moral life, but a satisfying one as well, without resorting to religion.

I might feel the same way about higher education if I had managed to build a life without it. An educated person might see unnecessary hardships in that life, hardships that could have been avoided if I had embraced higher ed, but all I might see is that it would have been a colossal waste of my time and energy.

Lyngar illustrates how higher education was viewed by those around him as he was growing up:

I came from a rural mining town in Nevada where I knew mostly blue-collar men who neither needed nor wanted a college education. Listening to adults talk they always had a favorite villain: the person who jumped ahead in line and got a job or promotion, only because he or she had a college degree.

You'd think that the tangible economic benefits would have convinced the community that college was worth something. After all, economic benefit is the measure against which the value of nearly everything is judged these days. However, that clearly wasn't the case in Lyngar's hometown. This suggests that there's a moral component to their conviction.

My hunch is that the economic benefits of higher education are tainted by the sins that are perceived to accompany it: elitism, indifference to "family values", anti-Americanism, etc. In their eyes, the price of higher education is nothing less than one's soul.

This sentiment is visceral, beyond the reach of objective analysis. That being the case, merely preaching the virtues and value of education, particularly higher education, is a dead-end strategy for its advocates. While there will always be Lyngars who are susceptible to believing in it (and who probably would have felt the urge no matter what), they're the exception, not the rule. Just as you can't reach people's hearts if you coerce them into adopting a faith (as ISIS is trying to do right now), you can't reach people's hearts if you shove education down their throats.

I'd never thought of education as requiring a leap of faith. That's what it might take, though.

Tangential thoughts on Indiana's RFRA

While it's a good thing that so many people want to punish Indiana (via economic boycott) for passing this unnecessary and stupid law (fix or no fix), the hurt is also landing on the communities within the state that have spoken out against it. That's unfortunate.

Different thought: does it bother anyone else that it seems to have been big corporations that have exerted the most negative pressure? Not just in Indiana, either: Arkansas governor Asa Hutchinson's refusal to sign his state's RFRA bill (before "fixes" were made) is widely believed to have been due in large part to the opposition of Walmart, and Arizona governor Jan Brewer is believed to have vetoed Arizona's "religious rights" bill last year in no small part because big businesses, including the NFL, threatened to pull out of their business dealings with the state.

If big business doesn't weigh in, do the concerns of the citizenry matter?

The Indiana backlash

Indiana Governor Mike Pence has taken his lumps this week over the state's new Religious Freedom Restoration Act (RFRA), an Orwellian name for a law that, as far as I can tell, tries to stretch the First Amendment's protection of religious freedom to the breaking point.

Part of Pence's, and Indiana's, problem is that the negative reaction to the law isn't just hurting their images, it's costing real money in lost dollars from would-be visitors who instead are or will be boycotting. The specter of similar negative fallout seems to have pushed Arkansas' governor, Asa Hutchinson, to refuse to sign a similar bill into law. Pence and Hutchinson each has called on his state's legislature to "fix" or to "clarify" the legislation so it won't permit discrimination against non-heterosexuals.

I'm skeptical, to put it kindly, that either state can produce fixes that will satisfy critics. Those agitating for these laws have already admitted that their point is to allow private citizens (as business owners and possibly even as employees) to express their disapproval of ... well, just about anything their religion (putatively) deems objectionable. If your religion deems same-sex marriage immoral, for instance, you, the religiously observant business owner, shouldn't have to "participate" in the ceremony. The laws' supporters aren't going to be satisfied unless they're allowed to express their "faith" freely. (Incidentally, they haven't explained how providing the flowers or wedding cake constitutes "participating" in the wedding ceremony.)

But you know, even if these state-level RFRAs (inspired by the misbegotten federal law of the same name enacted during Bill Clinton's administration) were deemed unconstitutional by some mythically impartial Supreme Court (one that doesn't exist right now), it wouldn't stop the zealots. They've told themselves a myth of victimhood and moral probity that is too satisfying to give up.

The truth is that religious belief already is offered a host of protections in our legal system, and always has been. Calling for even greater deference to religion seems like a suspiciously convenient way to excuse facially discriminatory behavior — behavior you couldn't get away with if you claimed it merely as personal belief. You must prove your organized religion actually holds the views you claim, but that's not difficult: federal prisoners have been gaming the religious-belief exemptions in the penal code for years to get special meals, for instance, and they don't have expensive attorneys on call as the pro-RFRA forces do. The Justice Department and the courts would rather err on the side of lenience and permissiveness when deciding whether (putatively) religiously-motivated behavior is the product of genuine belief. (Nobody even wants to think about the impossibility of gauging the sincerity of such belief.)

The "religious freedom" debate stands the cultural and political reality of the United States on its head. No nation in the developed world is more publicly and privately solicitous of organized religion, yet here we are, contemplating giving even more license for religious expression in previously off-limits (or at least conventionally avoided) areas of our civic lives. The unavoidable suspicion is that these laws have a different purpose than the avowed one of defending supposedly embattled religiosity. What they aim at is nothing less than the state's complete surrender of its right and duty to hold religious believers to the same standard under the law as the rest of us.

None of this is why the Indiana law is causing such an uproar. But it should be.