TEMPO and HUP

A Blog for Civil Debate on Political Philosophy

A Blog for Civil Debate on Political Philosophy

The Religious Right Invents Religious Rights

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Leaders of the religious right misleadingly paraphrase the First Amendment. They claim it assures some unbounded “freedom of religion.” It does not. As we all know, the text reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

For convenience, analysts separate “the establishment clause” from the “free exercise clause.” The clear, self-limiting opposition of the two clauses uses freedom to prevent establishment, but it does not thereby allow just any freedom.

Two examples of the right’s exaggerated claims occur in the Hobby Lobby and the Masterpiece Bakeshop cases. Both of these rely on a 1993 act of Congress, the Religious Freedom Restoration Act (RFRA) which, by its very name, shortened “no infringement of free exercise” to “religious freedom.” RFRA begins with a strong defense of religion. Even laws claiming to be neutral toward religion, it says, may indeed burden free religious exercise. Its exact words are these:

“Laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.”

Therefore, if the federal government or any state claims a “compelling interest” to burden religious exercise, it must create the slightest burden possible. But even the authors of that strong nod to the Free Exercise clause felt obliged to append this concession to opponents.

“Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the First Amendment prohibiting laws respecting the establishment of religion.”

That is: You can’t make religious freedom become religious establishment.

Despite this carefully articulated ideal, that balance does not describe the relationship between church and state today. The Hobby Lobby and Masterpiece Bakeshop cases favor conscience and threaten to establish the scruples they advance. In the Hobby Lobby case, the claimant essentially says, “I will not pay for you to do what I disapprove of.” In the Masterpiece Bakeshop case, the claimant’s position is, “Even though you would pay me for my product, I cannot condone the use to which you would put it.” These claimants would not actually do the forbidden thing, but they do not wish to participate even indirectly. That, they claim, is complicity. In their interpretation, the free exercise clause allows an exemption from a law because it protects one from participating directly or indirectly in actions prohibited on religious grounds. Claiming that the First Amendment protects one from complicity in an action prohibited by one’s religion violates the balance between the establishment and the free exercise clause.

* * *

This question then arises. Why, if the First Amendment is so clear, was there a need as late as 1993 to reaffirm this balance? And what, after all, is the status of complicity in our constitutional law? For answers, we must circle back to the Founders and their deliberations as they framed our Bill of Rights. To do so, let’s recall that when advocates of the Constitution, called Federalists, campaigned for its ratification by the states, they encountered many objections. Anti-Federalists argued that, by granting powers to the new, federal government, the Constitution had crippled the states and ignored the rights of individuals. In order to win the votes of these opponents, the Federalists promised to amend the Constitution and regain their trust. That is why the Bill of Rights uses the phrase “Congress shall make no law . . .” and it is the sense of the Ninth and Tenth Amendments. Thus, when the First U. S. Congress met for its first session in New York from March to September, 1789, amending the Constitution was high on the agenda. On June 8, James Madison introduced measures intended to honor this promise.

The story of what follows is told superbly by Vincent Phillip Muñoz in his article “The Original Meaning of the Free Exercise Clause: the Evidence from the First Congress,” Harvard Journal of Law & Public Policy 31, 3 (Summer, 2008), 1083-1120. Members of the First Congress explored freedom of religion and respect for conscience as they debated what would become the First and Second Amendments. In what follows, I cite the printed edition of the actual proceedings as published in 1834 by Gales and Seaton, vol. 1. If you wish to read these fascinating records, you can find them via the HathiTrust.

As Muñoz observes, the Free Exercise Clause was intended to allow people to choose whatever denomination or religion they wanted. Madison explained

“that Congress should not establish a religion, . . . nor compel men to worship God in any manner contrary to their conscience” (730mid).

It is nonetheless clear that only Protestant denominations were considered. Immediately after Madison’s speech, Benjamin Huntington of Connecticut hoped

“the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize [i.e. secure the rights of] those who professed no religion at all” (730-1).

Although conscience is mentioned in opposition to establishment, it was considered most seriously, not in the context of the First Amendment, but the Second, having to do with the militia. We should remember that among the Anti-Federalists’ greatest hesitations in agreeing to form a federal government was the possibility that it might maintain a standing army capable of overpowering the states. To win over doubters, the Federalists promised to allow each state to form its own militia and to oblige its citizens to serve in it. In addition to guaranteeing the individual states their own militias, Madison’s draft also acknowledged the pacifist convictions of Quakers:

“[N]o person religiously scrupulous of bearing arms shall be compelled to render military service in person” (434bot).

The words “in person” are crucial.

In the debate that addressed this question on August 17, three considerations arose. 1. Granting objectors an exemption from military service might tend to establish religion because it would induce others to become Quaker. 2. Such people would make bad soldiers. 3. Such a provision would deplete the militia’s ranks. James Jackson of Georgia proposed an answer: If “no person religiously scrupulous shall be compelled to bear arms,” he must procure a substitute (750bot).

Having served in the Revolutionary War and opposing conscientious objection, Jackson’s suggestion deliberately introduced a wrinkle to make the Quaker exception more onerous. Certainly, there was the task of finding a substitute, but there was also a moral complication. Even if the conscientious objector did not serve in person, by paying a replacement, he would nonetheless be complicit in war. A few members objected to this callousness. Roger Sherman of Connecticut explained:

“Those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent. Many of them would rather die than do either one or the other” (750bot).

John Vining of Delaware agreed.

“To compel a man to find a substitute [is] the same as if the person himself turned out to fight” (751top).

Elias Boudinot of New Jersey approved Madison’s formulation but omitted the words “in person” (749bot). In total opposition, New York’s Egbert Benson objected to granting any exemption on grounds of conscience:

“No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government” (751mid).

Benson presumably meant that, since refusal to serve in the militia on the basis of conscientious objection was not a natural right, it did not inhere in the individual, and therefore the government had the power to compel citizens to fight in the militia against their conscience.

In fact, neither our present First or Second Amendment mentions conscience. Except for a tiny minority, our Founders did not see an issue in the idea of complicity. During the Civil War, once the Confederacy and the Union introduced conscription, both sides allowed a person to pay a replacement. We now understand how paying substitutes exacerbates inequities of wealth. It does not protect conscience. The idea of complicity is, however, crucial and it recurs in our twenty-first-century debates about the Free Exercise clause.

* * *

The problem I have in dealing with claims of conscience that I don’t agree with is that I strongly sympathize with conscientious claims to exemption from military service. The question then becomes: How can you defend some claims of conscience and deny others? In my opinion, religious freedom does not give some the right to prohibit in others what they deny themselves. Our country has already rejected this tendency. Civil law no longer forbids conducting business on the sabbath. Prohibition has come and gone. You deny yourself alcohol. By what right do you deny it to me? The same logic applies to same-sex marriage, abortion, and many other things. Congress cannot allow some to say, “You should not do what offends my conscience.” Congress is obligated to “insure domestic tranquility” not uniformity of belief and certainly not conformity in religion. The founders sought “to promote the general welfare,” and preserve “the public peace.” Only tolerance of differing conscientious convictions will bring about this goal.

What our review of the First Congress shows is that the religious right invents religious rights by devising a novel prominence for complicity that it did not have for the Founders. One might legitimately ask, however: If the First Amendment guarantees “the free exercise of religion” why not rely on complicity to expand religious freedom? Help with this question comes from an article by Mark Storslee, Executive Director of the Constitutional Law Center at Stanford University. “Religious Accommodation, the Establishment Clause, and Third-Party Harm,” The University of Chicago Law Review 86, 4 (June, 2019), 871-944. To illustrate the issue, Storslee examines the debate within the First Congress over conscientious objection to military service — precisely the issue that most interests me. The dilemma is this. A military force requires a number of combatants, and every conscientious objector reduces that number by one. So, on the one hand, there is the harm done to others when one person asserts conscience for an exemption from the law. On the other hand, there is the risk that recognizing the conscientious objection might have great appeal and thereby establish the religious precepts behind the exemption.

Turning to the Founders, Storslee quotes Georgia’s Revolutionary War veteran James Jackson reiterating in the second session of Congress what he had already asserted the year before.

“[T]he operation of this privilege would be to make the whole community turn Quakers; and in this way it would establish the religion of that denomination more effectually than any positive law could [or] any persuasion whatever” (2 Annals of Congress p. 1869 bot, Dec 22, 1790, cited by Storslee, p. 912).

Fife and Drum

Storslee therefore contrasts harm and establishment. The same opposition structures Burwell v. Hobby Lobby. The case arose in reaction to Barack Obama’s Affordable Care Act (ACA) which defined the type of insurance employers must offer their employees and imposed a penalty on those who refused. Therefore, the Green family, owners of Hobby Lobby Stores, a closely held corporation, risked significant monetary penalties when they claimed that their Christian faith prevented them from offering the required insurance whose coverage included abortifacients and abortions. The Greens refused to become complicit (as they saw it) in those medical interventions. Justice Samuel Alito, who wrote for the Court’s majority, prioritized the financial harm to the firm. In her dissent, Justice Ruth Bader Ginsburg stressed harm to the firm’s female employees who might be denied this medical care.

Following Storslee’s lead, we can propose two tests of any proposed exemption: harm versus establishment.

(1.) The harm test. Does forcing employers to pay for medications (contraceptives) or medical procedures (abortions) they find morally objectionable harm the enterprise or the economy as a whole? If so, how much? Then, compare that harm to what would be suffered by the employees denied medications or medical procedures if the employers were to be accommodated. Instead of focusing on the employer’s conscience, this approach considers the enterprise, employer and employees, as a whole. Accommodating the employers’ conscience disadvantages their employees by denying them important services and by providing less protection than what is given to workers at comparable businesses where no exception is granted.

(2.) The establishment test. Exempting employers from insuring certain medical needs would encourage religions that prohibit that practice and violate the establishment clause.

* * *

Many claim that denial of exemptions like those allowed in Hobby Lobby privileges all beliefs except the religion of the employer and effectively establishes secularism. The answer to that argument lies in the the Supreme Court Decisions Owen (1969), Welsh (1970), and Gillette (1971) that grew out of the widespread resistance to the war in Vietnam. The turning point occurs in Welsh. In 1966, Elliott Welsh II sought conscientious objector status under the draft laws of that time. Dating from 1948, The Universal Military Training and Service Act’s section 6(j) states:

Nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Religious training and belief in this connection means an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code (as quoted in Welsh).

The broken rifle symbol of War Resisters International

When Welsh refused to say that his objection to war was based on any “relationship to a Supreme Being” or on his “religious training and belief,” his draft board denied his application and sentenced him to three years in prison. His appeal reached the Supreme Court, and the majority decided for him. The concurring Justice John Marshall Harlan II quoted section (6)j and repudiated its distinction between religious and philosophical reasons for conscientious objection.

[This language] not only accords a preference to the ‘religious’ but also disadvantages adherents of religions that do not worship a Supreme Being. . . . This in my view offends the Establishment Clause.

Further:

If the exemption [i.e. Conscientious Objector status] is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source.

He concludes:

Since this [refusal of CO status] created a religious benefit not accorded to petitioner [Welsh], it is clear to me that this conviction must be reversed under the Establishment Clause of the First Amendment.

It is interesting that, in reaching his decision, Harlan also cited cases that go in the opposite direction, which

all sustained legislation on the premise that it was neutral in its application and thus did not constitute an establishment, notwithstanding the fact that it may have assisted religious groups by giving them the same benefits accorded to nonreligious groups.

For Harlan, the standard for such decisions had to be equal treatment for religious and nonreligious groups.

The Peace Symbol designed by Gerald Holtom, London, 1958

The official summary of the Court’s decision (called “the syllabus”) highlights Harlan’s reasoning and states:

Section 6(j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief, while not exempting those whose claims are based on a secular belief. To comport with that clause, an exemption must be ‘neutral’ and include those whose belief emanates from a purely moral, ethical, or philosophical source.

“Neutral,” therefore, is the key word in this debate, and I believe it is at the core of the RFRA’s quotation marks around the word and its intimation that neutrality in legislation about religion is often feigned. In fact, RFRA reverses the trend so dramatically emphasized in Welsh. The Vietnam War-era Supreme Court’s decisions acknowledge that conscience can exist independently of religion. In order to avoid undue establishment, secularism, a mindset and code of conduct composed of “purely moral, ethical or philosophical” convictions, must be granted legal parity with religion.

* * *

In order to reduce the tension between these competing claims the first requirement is to increase good will throughout our community, the United States of America. The Free Exercise Clause allows you to deny yourself actions your religion prohibits, but the Establishment Clause prevents you from imposing that on me. For example, if you claim that paying taxes (or insurance premiums) to fund my abortion makes you complicit in abortion, I answer that the tax exemption granted to your place of worship and its associated school makes me complicit in your propagating doctrines I consider false and behavioral restrictions that inhibit freedom. Seen from the angle of either clause, the violation of another person’s rights perpetrates harm. Abridging the legally exercised liberty of your neighbor is always wrong.

Yin-Yang symbol. The complementarity of all things.

This principle was soundly established from the very beginning of our country. In a 2016 article, the same Vincent Muñoz cited above quotes from the constitutions of the individual states before the ratification of the U. S. Constitution. (“The Inalienable Rights of Religious Liberty,” Notre Dame Law Review 91:4 [2016], 1387-1417.) He finds many passages guaranteeing these kinds of protection against harm to others. He quotes a Delaware provision of 1776 to the effect that

“[N]o Man ought or of Right can be compelled to attend any religious Worship [i.e. religious service] . . . contrary to or against his own free Will and consent (1406). 

Some state constitutions asserted a universal duty to worship God. Benjamin Huntington opposed “those who professed no religion at all.” But, generally, the founders considered variety in belief and style of worship less important than community coherence. As Massachusetts put it, each man is allowed to worship according to his own conscience “provided . . . he doth not disturb the public peace, or obstruct others in their religious worship” (1394, 1414). New Hampshire used similar language (1405). Muñoz concludes, “the Founders held religious freedom to protect both believers and non-believers” (1408). Or again, “The Founders understood natural rights [such as freedom of conscience] to have natural limits. An individual’s exercise of his natural rights does not extend to interference with other individuals’ natural rights” (1416).

This lack of interference in another’s rights (called freedom) was therefore a driving premise of the Founders and those who drafted the Bill of Rights. In modern times, as we have seen, the Selective Service decisions such as Welsh gave “moral, ethical, or philosophical” beliefs equal force with religion. If these secular reasonings can be used on a par with Quakers’ status in seeking conscientious objection to military service, the parity of moral philosophy with religion is firm. To deny that parity is to establish religion. Although the First Congress sought primarily to avoid imposing any one Protestant denomination on the whole country, the Vietnam War-era decisions are entirely consistent with the statement by Madison I quoted above:

“Congress should not establish a religion, . . . nor compel men to worship God in any manner contrary to their conscience.”

Reason and faith, secularism and religion are now legally equal. The free exercise of religion inheres in all moral scruples, and the Establishment clause prevents any one person’s scruples from harming another.

IN CONCLUSION: The Founders considered but then excluded all mention of conscience and complicity from the Bill of Rights. Therefore the religious right invents religious rights when it exaggerates religious precepts and understates the danger of establishment and harm to third parties. Rights claimed to protect the conscience as understood in RFRA without equal regard to Welsh violate the First Amendment’s constitutional parity between religious and philosophical convictions. RFRA itself and cases like Hobby Lobby ignore the neutrality (without quotation marks) between religious and secular reasoning stipulated in the First Amendment and reaffirmed through attention to conscience during the war in Vietnam. We must defend those advances.

Dove of Peace

Many thanks to JoAnne Bernstein, Jonathan Beck, and Marcella Calabi for helping me think my way through this essay. For the peace symbols, see https://www.thehistorypress.co.uk/articles/peace-symbols-through-history/ and https://spiritualray.com/signs-symbols-of-peace.

Not Too Nice

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[Information learned after posting has been added at end.]

During the run-up to the First Gulf War, when the U. S. led an international coalition to force Iraqi troops out of Kuwait in 1990, James Baker advised George H. W. Bush that he could ignore the disfavor his rescue of Kuwait might arouse among America’s Jews, because “they don’t vote for us anyway.” Although the Secretary of State’s cynical attitude addressed only Jewish Americans at that time, now, under Donald Trump, the Republican category of despised others has expanded to marginalize all minorities, especially when they tend to be Democrats.

It is interesting that Trump never or rarely refers to people of color as such, which is hardly remarkable for someone who made his reputation ridiculing political correctness. “People of color” (a term of art, it would seem, used only by academics, journalists, and other elites Trump scorns) belong to the groups Trump wants to send back to what he calls “the shithole countries.” They are brown and black, Muslim, and female. And opponents — those he terms “low IQ,” “horrible,” “weak,” “nasty.” They are “animals.”

President Trump and his supporters seek to diminish these people they despise. Exploiting the well worn dog whistles of populism, he charms his base using his and their racism to assure them that, being white, they are superior to these “others,” the people Trump calls “losers.” By this strategy, he seeks to boost the ego and consolidate the in-group bonding of stereotypical white Americans – especially those left unemployed by globalization (exporting jobs), affirmative action (they think), and every other current in the present culture they don’t like: women’s reproductive rights, same-sex marriage, religions other than their own (all religions but one being evil), and recipients of public funding, like everyone who receives food stamps or Medicaid or any other “handouts” to “parasites.” This is the classic strategy of the ruling class: divide and conquer. They flatter underpaid, under-educated whites, who also lack adequate medical insurance, with the illusion that they are superior to equally persecuted people of color to prevent an alliance that would be irresistible. It must be a thrill to hear them complain, as Arlie Hochschild reports (Strangers in Their Own Land, 221), “There are fewer and fewer white Christians like us.”

Because that strategy has worked so well, now the ruling class has only to prevent people of color and their liberal allies from voting. Trump made this goal explicit on March 30, when he said on Fox news that high levels of voting (not just mail in, but all voting) would mean “you’d never have a Republican elected in this country again.” This strategy builds on long-standing gimmicks dating back to the Jim Crow South that have now spread wherever Republicans control the statehouse: have fewer polling places in strategically chosen areas (inner-city zip codes), limit the hours polls are open, restrict early voting, enforce voter ID laws with abusive strictness. If citizens wish to vote from home, cripple the postal service to prevent voting by mail — or try to.

These measures are shocking enough because they so clearly attack democracy, but the appearance of the coronavirus gave this unscrupulous, vindictive, authoritarian bully of a president a new opportunity. He chose to downplay the virus and allowed it to hit those already exploited, vulnerable populations. As early as April 12, 2020, Governor Gretchen Whitmer announced that in Michigan, “Some 14 percent of Michiganders are African-American, yet more than 40 percent of COVID-19 related deaths in Michigan are African Americans.” It was not only Democratic governors who made this analysis. A story in the Wall Street Journal of April 8, 2020, had already observed the problem as big-city mayors began to take action. In another Journal article of April 22, 2020, Dr. Lauren Weber of Meharry Medical College analyzes the causes of this situation: those people disproportionately dying from the virus live in multi-generational households, hold essential jobs that put them in close contact with many others. They are more prone than whites to have underlying conditions that derive from the environments in which their poverty forces them to live (in crowded, urban areas, near polluted, industrial zones, or, even in the country, near the open air lagoons of factory farms). The same holds for whites who live in similar circumstances, but Blacks live there in disproportionate numbers. If essential workers were paid a living wage, this situation would change. Given the erratic, state-by-state implementation of Medicaid, the availability of health insurance falls unevenly on people of color. The Kaiser Family Foundation has published a graph detailing the “Percent of Nonelderly Adults who are Uninsured, by Race/Ethnicity, 2014.” Of the nonelderly adults with no medical insurance, 11% are white, 16% are Black, and 27% are Hispanic. So, even if these patients recover from a bout of Covid-19, they will not be able to handle the resultant medical bills. The inequity that these figures make predictable continued for at least four months. As of August 8, 2020, adjusting for age difference in race groups, 3.6 times more Blacks and 3.2 times more Hispanics have died, nationwide, than whites. Moreover, the absolute numbers (as opposed to ratios) are astonishing. Between April 15 and August 15, 2020, Covid-19 infected 4,726,003 and killed 141,386 Americans. The chronology here is vital. By mid-April at the latest, the disproportionate impact of the pandemic was clear. If outsize harm, especially for the most vulnerable, was to be averted, immediate action was needed.

WHAT ACTION? TESTS!

The dangers deriving from the novelty of this unknown virus were apparent early on. Some early tests used in China were inaccurate up to 47% of the time, but even in this country, even now, the tests are inadequate in number, in reply time, and in accuracy. Supplies such as swabs for collecting samples have been in short supply. Chemical ingredients have been impure. Given the resulting disorder, only patients with symptoms could get tested. Tragically, though, infected people do not manifest symptoms until about the fourth day, so they could still transmit their disease before their illness manifested itself. In crowded conditions, these circumstances were a recipe for great suffering and, indeed, death. In July the CDC circulated a paper by Le Chang, et al., based in Beijing with this advice: “As more asymptomatic cases occur, screening donors for viral RNA with high-sensitivity assays, as we are doing in Hubei Province, will be critical to ensure blood safety.” That means testing even people with no symptoms. In China, they began that policy by January 25, according to these authors. Drawing on information from Johns Hopkins University, as early as March 9, the Wall Street Journal explained the problem of asymptomatic incubation periods and the need for quarantines. These facts make extensive testing imperative. The need was clear by mid-March at the latest. In this country it was not done.

WHY NOT?

The disadvantages people of color endure make them likely to vote Democratic. 83% of Blacks, 63% of Hispanic voters are or lean Democratic, whereas, among whites, 53% are or lean Republican and 42% Democratic. That is one reason President Trump has ordered the U. S. Census takers to end their data collection a month early. If there are “fewer” of them, they will have less representation. It would also follow that, as Reuters put it on August 13, Trump used (or tried to use) the new coronavirus relief bill to block “Democrats’ effort to include funds for the U.S. Postal Service and election infrastructure” and so “to block more Americans from voting by mail during the pandemic.” The two policies reinforce one another:

REDUCE THEIR VOTE, REDUCE THEIR NUMBER.

Given the evident inequity that afflicts our most vulnerable populations, Trump’s despised losers and Democrats, it is hardly surprising that he offered no comprehensive initiative to combat the infection’s spread. Neither Donald Trump nor Howard Baker is the first Republican strategist to aim at a given minority group. In 1981, when describing Richard Nixon’s famed “Southern Strategy,” Lee Atwater, an advisor to Ronald Reagan and chair of the RNC under George H. W. Bush, approved abandoning explicit use of the N-word in shaping policy and instead recommended more neutral-seeming measures such as cutting taxes: “economic things, and a byproduct of them is blacks get hurt worse than whites.”

Trump also had his own priorities. In order to allow business to continue as usual and avert the economic costs of sheltering in place, and because he thought its predictions were too negative and its scientific judgments contradicted his own intuitions, Trump purged scientists he considered disloyal to him and effectively crippled the CDC. In this weakened state, the CDC now proposes measures not as mandates but only as “recommendations” because they are contrary to Trump’s dream of a smoothly functioning economy not distracted by the health needs of the population. Besides, the racial minorities or ethnic groups disproportionately affected by the virus generally vote for his opponents. So Trump continued to ignore the virus or deliberately underestimate its impact. “It’s just like the flu.” “It will just disappear.” He offered no centralized, federal plan to distribute needed equipment (testing supplies, respirators, PPE). He allowed the pandemic to spread knowing it would disproportionately impact people of color, his target. This calculated policy of inaction during the first 6 months of the virus’s presence in the U. S. was achieving the desired result:

REDUCE THEIR VOTE, REDUCE THEIR NUMBER.

Here are the measures the Trump administration took or deliberately did not take with devastating disregard to the injury that would follow. He withdrew from international organizations, thus reducing the extent of global scientific cooperation. He left the American seat on the World Health Organization’s executive board vacant until May, 2020, when that “lapse” became too embarrassing. He removed “disloyal” staff from CDC. He dismantled “The Global Health Security and Biodefense Unit” in charge of national pandemic preparedness set up under Obama by Susan Rice as part of the National Security Council. And, as the keystone of his efforts to expose the very poor and unemployed to whatever illness might strike them, Trump dismantled Obamacare, as far as he was able. He has encouraged or pressured Republican governors (Abbot, DeSantis, Doucey, Edwards, Kemp, for example) not to order their states to wear masks, practice social distancing, and close businesses like bars and restaurants that involve close personal contact. He has actively opposed the expansion of diagnostic tests because he thinks tests embarrass him by revealing cases. Consistent with his xenophobia, Trump’s bans on immigration have deprived us of health caregivers. “The Trump administration’s policies have exacerbated the problem by reducing the influx of immigrants, who make up a quarter of long-term caregivers.” This goes with a neglect of public health administration because, as Ed Yong puts it, Americans view “health as a matter of personal responsibility rather than a collective good.” Indeed the Republican scorn for the word “public” feeds into this prejudice, as does the belief that the government should be as small as possible. These attitudes call for budget cuts and the reduction of staff responsible for public health. The reasons for these disparities follow from other policies favored by Trump and the Republicans. Don’t just scorn them, let them die. “They don’t vote for us anyway.”

         How can people like those in Trump’s base, who object fiercely, on grounds of conscience, to being forced into complicity (through government payments for medical care that funds birth control and abortion) force us into complicity, against our conscience, with a policy that causes disease, suffering, unknown long-term consequences, and death for their living fellow citizens? Trump and his faithful accuse us of “cancel culture” for removing statues while he himself tries to cancel segments of our population. Our military proudly displays its promise to “leave no one behind” and heroically rescues those in trouble. We might expect this ethical system to spread and benefit all Americans, but rather than “leave no one behind,” we get efforts to “push them behind,” with the weight of the administration, like the knee of Derek Chauvin on the neck of George Floyd, to hold down persons of color, women, liberals, Democrats, and all those despised “others.” Some ascribe this indifference to Trump’s callousness, his lack of empathy. These results, they say, are indirect, collateral damage resulting from his obsession with the economy to the neglect, as the Constitution puts it, of “the general welfare.” That analysis is inadequate. We all navigate between the pursuit of health and wealth, but Trump places the wealth of a few over the health of the many. This is not just negligence. Remember how Trump advised police not to be “too nice” to suspects as they arrest them; not to bother shielding their heads as they put them into squad cars? In our country, arrestees, suspects, are innocent until proven guilty. No harm should come to them until sentenced by a jury of their peers. Given the racial makeup of police arrests in this country, winking at rough treatment encourages it. There is a word for this de facto, systematic mistreatment of large populations. I hate to pronounce or even write it, because it is happening in my own country. Before the coronavirus, it was “merely” persecution. Now, with widespread death in the picture, it is more than criminal neglect. It is genocide. OK, maybe only murder.

NEW INFORMATION.

Update 1. August 23, 2020. As many as 215,000 more people than usual died in the U.S. during the first seven months of 2020, suggesting that the number of lives lost to the coronavirus is significantly higher than the official toll. And half the dead were people of color—Blacks, Hispanics, Native Americans and, to a marked degree unrecognized until now, Asian Americans. . . . People of color make up just under 40 percent of the U.S. population but accounted for approximately 52 percent of all the “excess deaths” above normal through July, according to an analysis by The Marshall Project and The Associated Press.

Update 2. August 29, 2020. In testimony first before the Senate and then the House, on August 21 and 24th respectively, Donald Trump’s new Postmaster General Louis DeJoy, promised that changes he wishes to effectuate in running the USPS would not be implemented until after the election. Today, however, the San Francisco Chronicle’s Lauren Hernandez reports that 6 mailboxes have been removed from their accustomed places in downtown Oakland. The Philadelphia Inquirer reports even more systematically distributed issues in its metropolitan area.

Update 3. Sept. 5, 2020. Paul Weyrich, key political advisor to Republicans, founder of the Heritage Foundation, the American Legislative Exchange Council (ALEC), and, with Jerry Falwell, the Moral Majority, clearly understood the need for voter suppression. He had this to say: “I don’t want everybody to vote. Elections are not won by a majority of people. They never have been from the beginning of our country, and they are not now. As a matter of fact our leverage in the elections quite candidly goes up as the voting populace goes down. ”  Not “voters,” but “voting populace.”

Update 4. Sept. 9, 2020. Donald Trump’s taped interviews with Bob Woodward, revealed an hour ago, establish that, by February 4, the President was fully cognizant of the danger the virus posed. Already then he understood the implication of its being airborne. This shift in chronology is crucial. The longer he knew and the clearer his knowledge, the more deliberate his inaction and the more certainly he is guilty of murder by omission.

Update 5. Oct. 3, 2020.  Two days ago, Thursday, Oct 1, at about 1:00 AM East Coast time, the White House announced that President Trump had tested positive for Covid-19. But today, Saturday, Oct. 3,  Dr. Sean Conley announced at Walter Reed Hospital that the President had first tested positive “72 hours ago.” That would put the date of the positive test on September 30, about 36 hours before Mr. Trump’s condition was publicized. No statement by the White House on this situation is accurate. The Trump people have concealed when he last tested negative, whether he gets tested daily, as they have repeatedly said, or how serious a case he has. Because a person can be contagious before symptoms appear, it is possible that the President was infected at the time of his debate with Joe Biden in Cleveland on September 29th. Then, because he and his entourage refused to wear masks, he and they could have spread the disease to the Biden party, who did wear masks. Most important: on Thursday, Oct. 1, even knowing that he had already tested positive for Covid-19, Trump went to  a fund-raiser for wealthy donors at his golf course in Bedminster, NJ and mingled with influential, wealthy people from around the country. This is not negligence; this is reckless endangerment. Whatever the crime (homicide, manslaughter), it is wrong for an infected person to knowingly expose others, especially others who had gathered to offer him their support. Matt Friedmann of Politico quotes Peg Schaffer, a local Democratic leader, who calls Trump’s behavior “unfathomably selfish.”  Note that some accounts, such as in the Wall Street Journal and the Washington Post go with a slightly different chronology. In this schema, it was only Hope Hicks who had already tested positive before Bedminster, and the President would have tested positive only on Thursday evening, possibly after Bedminster, with the announcement coming at about 1:00 AM on Friday morning.

Update 6. October 5, 2020. Peter Baker and Maggie Haberman of the NYTimes report today that President Trump’s first got a positive reading on a “rapid” test in the evening of Thursday, Oct. 3, after Bedminster. Later that night, a more sophisticated PCR (polymerase chain reaction) test was done that was also positive. Soon thereafter, the President tweeted out the result. It seems, then, he did not test positive prior to his fund raiser at Bedminster, but he did go there knowing that his close associate Hope Hicks was already showing symptoms and had isolated herself on the plane ride back from Cleveland. Kayleigh McEnany (not known for her honesty) asserted that the President did not learn of Hicks’s positive test until Thursday, just as he was about to board the helicopter to go to New Jersey. As for the President, “the first positive test he received (i.e. the rapid one) was after he returned from Bedminster.” A chronology published today by Christina Morales and Allyson Waller of the NYTimes also states that although Hope Hicks had been obviously ill on Wednesday, her positive test results were known only on Thursday “as Mr. Trump left the White House by helicopter around 1 p. m.” to go to Bedminster. This implies that it would have been too late to call off the trip. However, Hicks had clearly been ailing for much of the previous day while traveling in close connection with the President, who was therefore  exposed in close quarters over an extended period to a symptomatic person.

Shortchanged !

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Those who voted for Donald Trump in 2016 have not got what they wanted. Between their hopes and his performance, there is a great disconnect. The coalition that backed 2016 candidate Trump falls into five sometimes overlapping categories. Let’s consider them one-by-one.

            Business conservatives measure the country’s strength by its economy and its openness to entrepreneurial creativity. They seek to provide goods and services, to employ others, to gain profit, accumulate wealth and pass it on to their children. Many favored Trump as a fellow business owner and assumed he would think as they do. Yet Trump is a negative example. He ridicules expertise, rejects information contrary to his intuitions, and lies. Who would hire such a man?

            Trump poses as a friend to business, but he is not. He opposes open competition, promotes his own family’s interests, those of his donors, and some industries over others. He manipulates markets with arbitrarily imposed tariffs (a hidden tax) and mistakenly identifies the country’s well-being with the stock market thereby favoring short-term over long-term thinking. His myopia incurs tremendous costs. The country will benefit most from industries geared to succeed in markets that are open, not manipulated to reward a select few. Investors avoid uncertainty, but he governs arbitrarily.

            Trump’s tax policies are counter-productive. Yes, his 2017 reform simplified tax filing (almost doubling the standard deduction), temporarily lowered tax rates for each bracket, and increased the child tax credit until 2025, but permanently reduced the corporate tax rate from 35% to 21%, increased the allowance for tax-free inheritance from $11 to $22 million, and continued a 20% “pass through” or “carried interest” deduction that favors larger businesses. These regressive policies deny opportunity, squelch creativity, and reduce competition. What’s more, since the tax cut and before the coronavirus arrived, the GDP and corporate tax receipts surged momentarily and have since declined. Fiscal conservatives should be concerned. 

            Libertarians see taxes as a “taking” by the government, whose size must be minimized. Individual rights are their core value. Obligations cannot be imposed, rights not removed. Guns may be owned, consciences protected, expert recommendations for health (such as in the current Covid-19 pandemic) ignored, because each citizen is autonomous—free from the nanny state. Yet this individualism weakens the ties between neighbors, between employers and employees, vendors and their clients, citizens and their representatives. Moreover, freedom is not absolute. Free speech is limited as Justice Oliver Wendell Holmes illustrated with the example of crying “Fire!” in a crowded theater. The law prohibits deceptive advertising and requires accurate labeling. Appeal to conscience cannot promote discrimination because discrimination violates the rights of others.

            There’s a point where individual rights collide. Wearing face masks in the present pandemic is an excellent example. If you exercise your freedom not to wear a mask, you may infect me; but I have a right to my health. There are times when everyone should hunker down in cooperation with everyone else. By ostentatiously refusing to wear a face mask, the President promotes not libertarian, individual rights, but infection. His action undermines libertarian thought by reducing it to the absurd.

            Respect for the individual rights might be Trump’s strongest suit were it not for his idiosyncratic abuse of the principle. In a president whose function our constitution delimited very carefully, his rejection of norms is destructive. His demands of personal loyalty, vindictive treatment of critics, repeated lying, and self-contradiction weaken the ideal. He said so himself at Mount Rushmore last night as he falsely projected his own crimes onto his opponents: “driving people from their jobs, shaming dissenters, and demanding total submission . . . [are] the very definition of totalitarianism.” Libertarian principles require critical thinking, not obedience. Trump’s use of the bullying tactics he pretends to deplore, exposes in him the very tyranny against which libertarians consider themselves the most stalwart defenders.

            Patriotism connects citizens as individuals to the country as a community. Yet Trump debases those bonds. We should take pride in our achievements without putting others down. Disparaging countries with lower standards of living as “shitholes,” characterizing Latin American immigrants as “drug dealers, criminals, and rapists,” using the crimes of a few to smear all Muslims as terrorists, while —at home— praising violent bigots as “very good people” undercuts our reputation. Certainly, we must, as a people, define our own identity. “You can’t have a country without borders,” a conservative told me. Right. But if we are the country that the most outspoken, self-declared patriots claim it to be, we will bond among ourselves according to exemplary principles.

            Those principles are already enshrined in the constitution, specifically in the 13th, 14th, and 15th amendments, that abolish slavery, provide due process, equal protection, and voting rights. The constitution is a complex web of provisions —not just the Second Amendment, as the President seems to think. It is also an agenda. We still need to correct some of its initial compromises on women’s rights, the horrible legacy of slavery, and our oppression of native Americans. With these wrongs corrected, our patriotism will be more easily exportable and our pride will shine brighter.

            Our advancement of science, innovations in medicine, technology, the arts and education, are areas where, especially in the post-war period, we have stood out among nations and even in world history. Sadly, the President disparages these achievements. He encourages a mindless anti-elitism that lowers our goals and saps our national ambition. Even if libertarians and business conservatives wish to reduce the federal government, its personnel should still be an all-star cast, an Olympic team. Yet Trump and his cabinet members (often temporary and therefore not vetted by the Senate) have silenced or expelled from agencies that formerly provided leadership for this country and for the world experts and scientists who question erroneous beliefs cherished in the White House or pushed by top interest groups. OSHA is one example. They have made its coronavirus guidelines for workers in close quarters mere recommendations that can be ignored with impunity. They have weakened the once prestigious Center for Disease Control to the point that, as of today, leading medical schools can no longer rely on its reports. Consequently, our efforts against the coronavirus dramatically lag behind those of other countries. Under Trump, our national reputation suffers.

            National defense is perhaps the principal job of the Commander in Chief. Patriotic fervor marches in step with military success and national security. Coming of age in the ‘fifties, with relatives and teachers and cherished older friends who were Word War II veterans, I once knew this feeling. In the meantime, many presidents have erred, but perhaps none so egregiously as Donald Trump. He has undermined resistance to Russia, made a secret and therefore unenforceable deal with Kim Jong-un, and delivered our friends the Kurds to Recep Tayyip Erdoǧan. Like these despots who share his own authoritarian personality, he discounts the advice of his defense and intelligence institutions. America is no longer first among nations.

            Religious conservatives are vital to Donald Trump’s support. They respect moral purity in the sense of correct sexual behavior and therefore resisted divorce and premarital sex. Now they oppose same-sex marriage and abortion. To implement these prohibitions, they invoke the First Amendment and stress the freedom clause over the establishment clause. But how can they deny the symmetry the Founders instituted between those two tendencies? “Congress shall make no law respecting an establishment of religion, or infringing the free exercise thereof.” The two —designedly— oppose each other like the constitution’s other checks and balances. Their insistence ignores the threat the Founders feared most: imposition of a single, official religion on their new nation. If that’s what they wanted, they had a king. Yet Donald Trump courts the support of dogmatic backers whose sole interpretation of what is right should be, they say, the law of the land. Libertarians and others who appeal to conscience should reject such an infringement of our liberties.

            Although religious conservatives don’t stress it much, religious teachings also encompass correct behavior towards one another. “Love your neighbor as yourself.” Of the Good Samaritan, Jesus commanded: “Go and do likewise.” The New Testament enjoins generous behavior towards “the least” among us. Judaism and Islam similarly elevate care for others as a moral obligation. The rabbinic sages as well declared that “the righteous of all nations have a portion in the world to come,” thereby sensitizing the community to outsiders of good will. These injunctions impose on all of us an obligation to care for others. But, in courting opponents of abortion rights, Donald Trump backs those with the most limited view of religion, sexual purity. That’s actually very funny.

            Here religious and business perspectives go in the same direction. Just as religion prescribes care for the stranger, so business rewards the objective evaluation of every individual’s talents. But Trump’s anti-immigration policy discourages precisely the kind of people business conservatives should welcome: daring, enterprising people willing to endure hardship and tackle the unknown. Acceptance of these immigrants would elevate both entrepreneurial and religious values. But, erecting barriers of ethnicity, race, religion, and class, Trump says “no.”

            Constitutionalists. Many of the 2016 Trump backers hoped to limit government to increase their own freedom of action: to conduct business, to bear arms, to exclude undesirables, to prohibit immorality. They were tired of “legislation from the Bench.” The appointment of conservative judges and Supreme Court justices would support these goals, they thought. Although he invoked “the law of society and nature” at Mount Rushmore yesterday, he has consistently violated the rule of law. Ignoring the 10th Amendment, he declared “When someone is president of the United States the authority is total,” hoping to combat the coronavirus pandemic by dictating to the states’ governors. In opposition to long established procedures of inquiry, his obstruction of justice in the Russia investigation was so consistent that Robert Mueller could only conclude that he could not be exonerated. The president’s authoritarian personality directly opposes the Supreme Court’s motto: “equal justice under law.” The president is a citizen, not a king. In choosing Trump, constitutionalists got shortchanged.

            Conclusion. Trump has therefore betrayed all these voters. Millions have donated, invested even, in this no-holds-barred, tell-it-like-it-is, non-conformist, often-bankrupt billionaire. They expected reinforcement of their worldview and possibly an improved economic outlook. But no hoped-for personal, financial, or ideological benefit should outweigh the duty to protect our constitution and our country. Patriotism, constitutionalism, faith, and allegiance to country should mean more than loyalty to one party’s leader. Fortunately, our constitution allows us to dismiss this self-serving, vindictive, autocratic, incompetent president. Given his authoritarianism, if we do not replace him now, we may never have another chance. Therefore, on this Fourth of July before the 2020 election, I urge Trump’s 2016 voters to repudiate him and begin as soon as possible to work for his defeat in November.

Conscience and Citizenship

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Some Supreme Court cases in recent years have asserted a constitutional right to religious freedom using the First Amendment’s protection of “the free exercise of religion.” In the case involving the Masterpiece Cakeshop, the owner claimed a religious right to deny service to certain customers. That argument has entered the realm of medicine. In 2019, Donald Trump’s White House asserts that “conscience protections” give medical professionals the right, on religious grounds, to refuse to perform, or inform about, or refer patients to practitioners willing to carry out procedures such as abortion, sterilization, or assisted suicide.

The free exercise of religion is the right to hold whatever religious beliefs one accepts, to worship with co-religionists, to adhere to the same moral precepts as they do . . . or not (because religious freedom also includes freedom from religion). Except in the mentally ill, all adults have an innate ability to distinguish right from wrong, that is, a conscience. Conscience is not the monopoly of religious persons; it is characteristic of humanity.

What, then, is special about religion? In addition to creedal statements about the nature of ultimate reality and narratives about inspired leaders, religions enjoin some behaviors (prayer, charity, pilgrimage) and forbid others (idolatry, blasphemy, murder, stealing, lying, adultery, banned food or drink). Some religions actively seek to expand through missionary work, conquest, or by physically eliminating adherents to other faiths. Religions often exclude from their own community people who modify or challenge their teachings, ignore their practices, or perform prohibited acts. Non-conformists are to be shunned. They are denounced as apostates, backsliders, or heretics, and stigmatized as damnable. Often, they are persecuted and sometimes executed.

In the U. S., legal enforcement of these disciplinary provisions would deprive individuals of rights guaranteed by the Constitution. The free exercise of religion promised in the First Amendment does not confer the right to deprive citizens of the equal protection under the law promised in the Fourteenth. These denials would impede equal access to life, liberty and the pursuit of happiness, other promised freedoms (voting, education, welfare), and equal economic opportunity. Could the followers of only one religion, claiming the absolute truth of their faith, discriminate on this basis? The danger here is immense! Some religious people fear a turning of the tables by which secular people or “Nones,” those who adhere to none of the religions, could persecute the faithful. But the First and Fourteenth Amendments also protect religious practitioners. The guarantees work both ways. And so they must!

If Congress can do nothing to establish religion or prohibit its free exercise, it would appear that no government, whether federal or local, can forbid what one’s religion enjoins. Yet the law does interdict practices considered religious by some: polygamy, genital mutilation, ritual drug use. If Congress cannot (generally) prohibit religious practices, is the converse true? Just because religions can ban lawful practices their faith forbids, can they also require adherents to prevent lawful practices of non-adherents?

Here is the conflict between conscience and citizenship. If conscience demands departure from law, then suffer the consequences specified in law and protect your conscience. This happens when you rank conscience over citizenship. But if opposing parties each assert a basis in conscience for their conflicting positions, then conscience cannot rule, only law. If citizenship makes us equal, as it must, then citizenship is prior to conscience because only citizenship will protect our various appeals to conscience on an equal basis. Therefore, to prioritize one citizen’s conscience over another’s is to deny the latter person’s right to equal treatment as guaranteed by the Fourteenth Amendment. Since it is wrong to assume that only religious people have a conscience and since the First Amendment states “congress shall make no law respecting an establishment of religion,” then no one person’s conscience can override another’s. Law must outweigh conscience in the guarantee of equal rights.