Wednesday, April 01, 2015

Cruising the Web

Mollie Hemingway refutes the idea that state RFRA laws are all aimed at discriminating against gays by looking at cases in which RFRA laws have protected people's religious practices.
Apple CEO Tim Cook has come out against RFRAs in the Washington Post. “This isn’t a political issue. It isn’t a religious issue. This is about how we treat each other as human beings,” he says. Tell that to the religious minorities listed above who won their state RFRA cases.

Does Apple CEO Tim Cook really think that the kindergartener punished by his elementary school for his religious practice shouldn’t have any recourse at all? Is he not a human being who deserves good treatment? Does he think Orthodox Jews in Dallas shouldn’t have the right to worship in their synagogue? Do they really not have a religious issue?

It’s somewhat disconcerting when one of the wealthiest and most powerful men on the planet tells a group of religious minorities that he doesn’t think they have legitimate religious issues and that they shouldn’t have won their cases.

Cook writes that “Opposing discrimination takes courage.” He’s right. When powerful elites take aim at religious freedom, it takes a heck of a lot of courage to fight against anti-religious discrimination. That, of course, is precisely what RFRAs are designed to do.
This used to be accepted by everyone. RFRAs only became necessary after a Supreme Court case in 1990 reduced the level of scrutiny to be used in free exercise courses from the highest level that had been established to be used in 1963. As Michael Brendan Dougherty points out, RFRAs have never been used successfully to protect a business owner from discriminating against gays. And if Indiana passes the law that Governor Mike Pence asked for yesterday to bar such discrimination, this whole brouhaha should die down. Jonathan Adler writes at the Washington Post about why people should stop freaking out about feared discrimination.
Courts have routinely upheld the application of nondiscrimination laws against RFRA-based challenges on the grounds that preventing discrimination is a compelling state interest. Of course it’s possible that a court in the future would reach a different conclusion, but there’s no reason to think such a result is likely, and there is nothing about the Indiana law that makes it a particular threat in this regard. That is, such a court decision is just as possible in one of the other dozen-plus states that has had its own RFRA on the books for years or in one of the many other states that have equivalent protections for religious belief under their state constitutions.

The Indiana RFRA is not identical to every other RFRA, but the textual differences are not particularly material. Here, for instance, is a useful comparison of the Indiana law and the federal RFRA, as applied in the courts.

Do some RFRA supporters hope that such laws will allow individuals or companies to discriminate against homosexuals? Sure. But that is not what the text of the Indiana RFRA actually does. That’s important because courts generally apply the text of the law as written over the unenacted intentions of some subset of a bill’s supporters. Indeed, this debate is just one more example of why the textualist approach to statutory interpretation is a good idea. In any event, this debate is somewhat moot in Indiana because it doesn’t have a state law barring sexual orientation discrimination on the books.

Are there any scenarios in which a state-level RFRA might result in an individual business owner denying service to a same-sex couple? Perhaps. The most likely scenario would be something like a religious wedding planner refusing to help plan a wedding that violates his or her religious beliefs. But even if such laws eventually allow this sort of thing, it is a far cry from, in Tim Cook’s formulation, a general license to discriminate against one’s neighbors.

To be clear, my point here is not to defend the enactment of state-level RFRAs. I am ambivalent about such laws and generally prefer the authorization of religious exemptions from generally applicable laws on a case-by-case basis. Whatever the wisdom of these RFRAs, it is important for the debate over such laws be based upon what these laws actually do.
Oh, wouldn't that be nice? Perhaps Apple's Tim Cook can ponder the fact that he's more upset about Indiana's law than he is about doing business in Saudi Arabia and other countries that sentence homosexuals to death such as Saudi Arabia and Iran.
Thanks to Mary Katharine Ham for the link. After reading Mollie Hemingway's piece, Ham writes,
Tolerance is giving these people a chance to defend themselves when the government is requiring them to violate their sincerely held beliefs. These cases do not represent some horrible, regressive country giving in to its darkest desires for discrimination. Quite the opposite. They represent the very best of the American experiment, which allows all kinds of people to coexist and do business together without running roughshod over the varied and beautiful customs and religions we practice. But let’s stop with all that. Because tolerance.
Noah Rothman summarizes the hypocritical outrage being whipped up around the country, particularly the governor of Connecticut who wants to prohibit state-sponsored travel to Indiana when his own state has a very similar law. Sean Davis exposes the ignorance of the Connecticut governor.
I don’t know how many staffers, lawyers, and advisers currently work for Malloy, but it’s a real shame that not a single one of them told the governor that Connecticut has had an expansive RFRA on the books for over two decades. That’s right: Connecticut passed its own RFRA law on June 29, 1993. You can read the law for yourself here. The inanity of Malloy’s move doesn’t stop there, though. What makes his grandstanding particularly absurd is the fact that Connecticut’s RFRA provides far greater religious liberty protections than Indiana’s or even the federal government’s.

If you dislike Indiana’s RFRA, then you should loathe Connecticut’s. The difference comes down to a single phrase: “substantially burden.”

Both the Indiana law and the federal law declare that the respective governments may not “substantially burden a person’s exercise of religion[.]” In other words, the laws require the courts to analyze cases brought under these laws using the strict scrutiny standard. Under the Indiana and federal religious liberty laws, government can burden religious exercise, but it cannot substantially burden it. That’s a key distinction.

Connecticut’s law, however, is far more restrictive of government action and far more protective of religious freedoms. How? Because the Connecticut RFRA law states that government shall not “burden a person’s exercise of religion[.]” Note that the word “substantially” is not included in Connecticut’s law.

The effect of the absence of that single word is enormous. It states that Connecticut government may not burden the free exercise of religion in any way. That makes it far more protective of religious liberty than the Indiana law that has so outraged Connecticut’s governor.

If Connecticut Gov. Dan Malloy wants to blatantly discriminate against states with religious liberty laws on the books, that’s his prerogative. But if he doesn’t want to look like a completely ignorant hypocrite who has no idea what he’s talking about, he should probably examine his own state’s laws first.

UPDATE: A number of commentators have suggested that none of this matters because Connecticut has laws banning discrimination based on sexual preference, while Indiana doesn’t. Unfortunately, these commentators do not have the mental wherewithal to grasp that that argument doesn’t undermine my point. It actually strengthens it.

For the sake of argument, let’s assume that the “Indiana doesn’t ban discrimination” claim is true and that this distinction is what makes Indiana’s RFRA terrible and Connecticut’s RFRA perfectly acceptable. If that’s the case, then it’s literally impossible for Indiana’s new RFRA law to legalize discrimination based on sexual preference. Why? Because it’s allegedly already legal in Indiana. Furthermore, if anti-gay discrimination is what is truly animating those voicing opposition to RFRA, why on earth are they focusing on Indiana’s RFRA and not on enacting the anti-discrimination bans that are in force in states like Connecticut?

If I didn’t know better, I’d be left to assume that the voices agitating to repeal a 20-year-old legal framework that was not even remotely controversial until last week were more interested in outlawing religious liberty than they were in preventing discrimination.
And now that Governor Prence has asked that Indiana pass such a law, will people calm down? I doubt it. As James Taranto points out, the New York Times spilled the beans about why people are demagoguing this issue.
But again, legal hairsplitting is at most a pretext for the fury directed against Indiana. Here we will take the unusual step of praising the New York Times editorial board for forthrightness. In a single sentence, if a lengthy one, the paper sums up what changed: “Religious-freedom laws, which were originally intended to protect religious minorities from burdensome laws or regulations, have become increasingly invoked by conservative Christian groups as gay rights in general—and marriage equality in particular—found greater acceptance nationally.”

....What makes that Times editorial surprising is the frank admission that the editors are unwilling to apply their principles to the religious group they disfavor, namely “conservative Christian groups.” That’s not to say their candor is untarnished by bad faith. They set up a dichotomy between “religious minorities” and “conservative Christian groups.” But unless the old Moral Majority was—and still is—worthy of the latter half of its name, the dichotomy is self-evidently a false one.

It is also an invidious one, since it singles out one religious minority (or, to be precise, one category thereof, since there are many kinds of conservative Christians) and deems it unworthy of the first freedom. And that supposed unworthiness is not limited to the matter of same-sex marriage, or gay rights more generally. The Times once again rebukes the Supreme Court for having “helped the cause of Christian conservatives with its 2014 Hobby Lobby decision,” which held that RFRA limited the government’s coercive authority vis-à-vis the provision of contraceptives through employee medical benefits.

You might sum up the Times’s position as follows: Legal rights are all well and good, but they shouldn’t be extended to an enemy in wartime—at least not if it’s a culture war.
I'm with Ross Kaminsky who plaintively asks: "Can't I support gays and religious freedom?"
I'm a not particularly religious Jewish libertarian, which means — if you wouldn’t have guessed — that I don’t have a moral objection to, nor a public policy framework for, homosexuality.

But the reaction by many others who aren’t social issues conservatives to Indiana’s new Religious Freedom Restoration Act — modeled on a federal law sponsored by liberal Democrat Chuck Schumer (NY), passed 97-3 in the Senate in 1993, and then signed by President Bill Clinton (while Democrats still had majorities in both houses of Congress) — borders on the insane.
That's about my reaction, but I think that there is a lot more about what we've witnessed this week.

As we observe all this manufactured outrage, get used to it. This is just a skirmish before the real battle - the efforts to persuade the public that whoever is the 2016 GOP candidate is eager to conduct a war on gays and women and whichever other group the Democrats want to motivate to vote against Republicans. I noticed that my students who are mostly 10th graders and not all that politically aware about the day-to-day stories on current events all knew about Indiana's law and the ensuing outrage. Young people are more likely to vote on cultural issues rather than economic or foreign policy issues. This skirmish is preparing the ground for 2016. The Republicans should figure out how they're going to defend against such attacks or, what happened to Romney, will happen again.

And the left will be quite happy to demonize Republican politicians. Harry Reid set the model in 2012 as he admitted this week when asked by CNN if he had any regrets about his demonization of the Koch brothers and his baseless insinuations that Romney hadn't paid taxes.
The Senate minority leader dismissed claims that he is the problem with Washington and said he his proud of taking on the Koch brothers when no one else would.

Reid appeared to take some joy of being a part of the Democrat machine that took down Romney in 2012.

“Let him prove that he has paid taxes, because he hasn’t,” Reid said on the Senate floor without any evidence to back his accusations.

When asked about his comments by CNN’s Dana Bash, Reid never rejected the notion his words were “McCarthyite” in nature. He admitted no wrongdoing.

“Well, they can call it whatever they want,” Reid said. “Romney didn’t win, did he?”
All that matters is that Romney lost. Reid doesn't care that he had to lie and mislead the public in order to accomplish that end. Ed Morrissey links to the Washington Post's Chris Cillizza's reaction to Reid's admission that all that mattered was victory at all costs.
Where to begin?

How about with the fact that this all-means-justify-the-ends logic — assuming the end is your desired one — is absolutely toxic for politics and, more importantly, democracy. (Worth noting: Reid is far from the only one who practices this sort of thinking; it's the rule rather than the exception in political Washington, where winning — no matter the cost — is the only goal that matters.) If you can lie — or, at a minimum, mislead based on scant information or rumor — then anything is justified in pursuit of winning. This sort of "the winners make the rules" approach is part of the broader partisan problem facing Washington and the polarization afflicting the nation more broadly. There is no trust between the two parties because they believe — and have some real justification for believing — that the other side will say and do literally anything to win.

Think about Reid's statement in another context. I have two little kids. What if I told my son, who has just started playing soccer, that his only aim was to win the game — no matter how he accomplished that goal. After all, it's not cheating unless someone can prove it, right?

Would anyone think that was either (a) good parenting or (b) broadly beneficial for society? No. That is the same logic Reid is applying here, but because we are all inured to the horribleness that is modern political strategy, people barely bat an eye. No, politics ain't beanbag. I get that. But allowing elected officials to say anything they want about people running for office — and requiring zero proof in order to report those claims — seems to be a bridge too far. And to defend that behavior by saying, "Well, we won, didn't we?" feels like the junior high school logic that shouldn't be employed by the men and women trusted with representing us in Washington — or anywhere else.

Ayaan Hirsi Ali writes today about how U.S. officials are looking the other way as American inmates are getting radicalized in prison.
Europeans have known for some time that prisons can be breeding grounds for Islamists. The British “shoe bomber,” Richard Reid, is thought to have been radicalized while in prison for smaller crimes. Two of the gunmen in the Paris terror attacks in January—Chérif Kouachi and Amedy Coulibaly—came under the religious influence of Djamel Beghal, a convicted terrorist and charismatic Islamist, when serving prison sentences. Mohamed Merah, who killed three soldiers, three small children and a rabbi at a Jewish school near Toulouse, France, in 2012, apparently became a jihadist while in jail. The list is depressingly long.

The problem is that experts tend to be concerned about prison radicalization only to the extent that it ultimately results in some type of violent attack. Yet there are good reasons to be concerned about the inmates who come to cherish a radical interpretation of Islam while refraining—for the time being—from the use of violence. The boundary between nonviolent and violent extremism is much more porous than conventional wisdom allows.

What can be done to stop prisons from becoming academies of jihad? Here are four suggestions:

1) Choose better partners than the Islamic Society of North America and the Islamic Leadership Council to screen prison chaplains. The American Islamic Forum for Democracy, founded and led by M. Zuhdi Jasser, a medical doctor and former lieutenant commander in the U.S. Navy, would be a good choice.

2) Prevent radical clerics from coming into prisons to spread their message to susceptible inmates.

3) Ban radical Islamist literature from being disseminated in U.S. prisons.

4) Stop placing inmates in proximity to radicalized mentors.

The fact that Fouad El Bayly, an imam who publicly called for my death, was chosen to provide “religious services, leadership and guidance” at a federal prison shows that U.S. authorities haven’t learned the right lessons from a growing list of prison-convert terrorists. Bringing in radical imams to mentor vulnerable inmates will not do anyone any good—least of all prisoners looking for a better path in life.

Thomas Sowell laments what has become of the liberal arts.
Diversity of political ideas is not to be found on most college campuses, where the range of ideas is usually from the moderate left to the extreme left, and conservatives are rare as hen’s teeth among the faculty — especially in English departments. Academics who go ballistic about an “under-representation” of ethnic minorities in various other institutions are blissfully blind to the under-representation of conservatives among the professors they hire. On many campuses, students can go through all four years of college without ever hearing a conservative vision of the world, even from a visiting speaker.

The problem is not political, but educational. As John Stuart Mill pointed out, back in the 19th century, students must hear opposing views from people who actually believe them, not as presented by people who oppose them. In the 18th century, Edmund Burke warned against those who “teach the humours of the professor, rather than the principles of the science.”