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The SCOTUS Majority Wants to End the Separation of Church and State

True freedon in one's personal life and in freedom of religion are under severe threat in America as (i) the Republican Party increasingly embraces white Christian nationalism which seeks to impose a tyranical form of Christianity upon the nation, and (ii) an extremist majority seems hell bent on erasing the separation of church and state so as to impose "conservative" Christianity as the de facto established religion.  Meanwhile a growing majority of Americans want little to do with what the GOP and far right justices are peddling and rightly recognize right wing Christianity for what it is: a source of hatred toward others, division, and and an example of hypocrisy and false piety on steroids. A column in Politico Magazine looks at the efforts of the current majority on SCOTUS to wipe away the separation of church and state and to similarly erase the right to privacy and freedom from far right religious dogma.  Be very afraid of where these fanatics, especially Alito and Thomas want to take the nation.  The Dobbs decision overturning Roe v. Wade is only the beginning. Here are column highlights:

Many legal scholars in the wake of the U.S. Supreme Court’s radical decision to reverse Roe v. Wade have focused on the dangerous implications of the court’s centuries-old worldview on protections for things such as same-sex marriage and contraception. This concern is real, but there is another issue with equally grave constitutional consequences, one that portends the emergence of a foundational alteration of American government itself.

Considered alongside two First Amendment rulings last term, the Dobbs decision marks a serious step in an emerging legal campaign by religious conservatives on the Supreme Court to undermine the bedrock concept of separation of church and state and to promote Christianity as an intrinsic component of democratic government.

The energy behind this idea was apparent in Justice Samuel Alito’s speech last month for Notre Dame Law School’s Religious Liberty Initiative in Rome. . . . Alito spent the bulk of his remarks lamenting “the turn away from religion” in Western society. In his mind, the “significant increase in the percentage of the population that rejects religion” warrants a full-on “fight against secularism” — which Alito likened to staving off totalitarianism itself. Ignoring the vast historical record of human rights abuses in the name of religion (such as the Taliban in Afghanistan and even his own Catholic church’s role in perpetuating slavery in America), Alito identified the communist regimes of China and the Soviet Union as examples of what happens when freedom to worship publicly is curtailed. Protection for private worship, he argued, is not enough.

Alito and his fellow conservatives evidently pine for a return to a more religiously homogenous, Christian society but to achieve it they are deliberately marginalizing one pillar of the First Amendment in favor of another. The dots connecting Alito’s personal mission to inculcate religion in American life and what the conservative majority is doing to the Constitution are easy to see. They begin with Dobbs.

Dobbs is significant not just because it reversed 50 years of precedent under the “due process clause” of the Fourteenth Amendment (under which the Court has recognized certain rights, even if unenumerated in the Constitution, as so bound up with the concept of liberty that the government cannot arbitrarily interfere with them). In Dobbs, Alito subverted that notion and fashioned a brand-new, two-part test for assessing the viability of individual rights: (1) whether the right is expressed in the Constitution’s text, and if not, (2) whether it existed as a matter of “the Nation’s history and tradition.” This second part of the test is the crucial one when it comes to religion — and in particular, its installation in government.

Under Dobbs’ step two, Alito time-traveled back to the Fourteenth Amendment’s ratification in 1868, when women could not even vote and, in his words, “three quarters of the States made abortion a crime at all stages of pregnancy.” Alito then regressed even earlier, to 13th century England (before America’s birth), to shore up his dubious quest to excavate historical authority rejecting abortion rights. Alito gave no guidelines for identifying which chapter of history counts in this calculus. Nor did he grapple with ancient law that actually went the other way. All we know going forward is that, for this majority, text is paramount and, barring that, very old history is determinative.

Except if the text appears in the First Amendment’s “establishment clause.” In a pair of other decisions, the same conservative majority pooh-poohed explicit constitutional language mandating that “Congress shall make no laws respecting an establishment of religion,” holding that a competing part of the First Amendment — which bars the federal government from “prohibiting the free exercise” of religion — is the more important and controlling.

Up until this term, the answer was that government employees can worship freely like the rest of us, just not necessarily in their official capacities. In Employment Division, Department of Human Resources v. Smith, Justice Antonin Scalia wrote for the Court in 1990 that so long as a generally applicable law is not written in a way that targets specific religious practices, it is constitutional under the free exercise clause even if it affects religious practices. And under Lemon v. Kurtzman, the Court held in 1971 that for establishment clause purposes, the government can touch upon religion only for secular reasons, such as busing children to parochial schools, and not to promote religion, inhibit religion or foster excessive entanglement with religion.

In June, a 6-3 majority in Carson v. Makin buried the establishment clause under the free exercise clause. . . . As Justice Sonia Sotomayor pointed out in dissent, “this Court has long recognized” that “the establishment clause requires that public education be secular and neutral as to religion.” By “assuming away an establishment clause violation,” she argued, the majority decision forces Maine taxpayers to fund religious education — in that case, schools that embrace an affirmatively Christian and anti-LGBTQ+ ideology. “[T]he consequences of the Court’s rapid transformation of the religion clauses must not be understated,” she warned, because it risks “swallowing the space between the religion clauses.”

But there’s more. In an opinion authored by Justice Neil Gorsuch, the same majority in Kennedy v. Bremerton School District championed a public high school football coach’s insistence on publicly praying on the field after a game, effectively overruling Lemon as an “ahistorical approach to the establishment clause.” “Here,” Gorsuch wrote, “a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance . . . . The problem again, as Sotomayor complained in another dissent, is the pesky establishment clause: “This Court continues to dismantle the wall of separation between church and state that the framers fought to build.”

After Dobbs, history and tradition at the time of the framing of the Constitution are now the linchpin of constitutional interpretation. And Thomas has explicitly connected the founding period — and national identity — with Christianity. . . . In his recent speech, Alito recounted a personal experience in a Berlin museum when he encountered a “well-dressed woman and a young boy” looking at a rustic (presumably Christian) wooden cross. The boy asked, “Who is that man?” Alito perceived the child’s question as “a harbinger of what’s in store for our culture” — “hostility to religion or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors.”

Although less publicly explicit than Alito and Thomas about his views on religion in government, Gorsuch privately spoke in 2018 to the Thomistic Institute, a group that “exists to promote Catholic truth in our contemporary world by strengthening the intellectual formation of Christians . . . in the wider public square.” Justice Amy Coney Barrett has written that “[Catholic judges] are obliged . . . . to adhere to their church’s teaching on moral matters,” and gave a commencement address to Notre Dame law graduates advising that a “legal career is but a means to an end, and . . . . that end is building the kingdom of God.”

Historical accounts at the time of the 1787 Constitutional Convention indicate that the Framers and political leaders largely believed that governmental endorsements of religion would result in tyranny and persecution. There was a “concerted campaign” from the Anti-Federalists to “discredit the Constitution as irreligious, which for many of its opponents was its principal flaw,” along with repeated attempts to add Christian verbiage to the Constitution. The ultimate rejection of religious language demonstrates that the Founders intended constitutional secularity.

Keep in mind, too, that as Elizabeth Dias recently chronicled for the New York Times, the push for a Christian government is sweeping GOP politics, as well. At Cornerstone Christian Center, a church near Aspen, Rep. Lauren Boebert (R-Colo.) received a standing ovation after urging that “[t]he church is supposed to direct the government.” Republican nominee for Pennsylvania governor, Doug Mastriano, likewise called the separation of church and state a “myth.” “In November we are going to take our state back,” he said. “My God will make it so.”

Although polls show that declaring the United States a conservative Christian nation is a minority view, the same was said about the reversal of Roe. This Supreme Court clearly doesn’t care.

Thursday Morning Male Beauty

 

More Wednesday Male Beauty - Pt 2

 

Youngkin: Teachers Should Out LGBT Kids To Parents

According to numerous studies, LGBT youth make up in the neighborhood of 40% of the homeless youth nationwide.  Many are homeless because they were driven out or discarded by their parents, especially far right evangelical parents.  Virginia governor Glen Youngkin seemingly wants to exacerbate the problem here in Virginia by requiring teachers to out LGBT students to their parents - something not currently done but likely to change as Youngkin puts right wingers on the Virginia Board of Education.   Never mind the potential negative consequences be it youth thrown out of their homes or driven to suicide.  With Youngkin, it is all about pandering to the Christofascists and extremists with the Republican Party of Virginia base and positioning himself for a possible White House run.  Sadly, to Youngkin, homeless or dead LGBT youth is not on his radar as revealed by an interview with WJLA News.  Here are story excerpts:  

In several school districts in Virginia, teachers are strictly prohibited from informing parents of their kids’ sexual orientation and gender identity without the student’s permission.

For instance, if a Fairfax County or Loudoun County student identifies as transgender at school, teachers aren’t allowed to tell the student’s parents unless the student says it’s OK.

Now that Youngkin has a majority on the Virginia Board of Education, 7News asked the governor if he thinks the board will pass new guidance for school districts.

"With regards to informing parents with most important decisions about their children, I think everybody knows where I stand, parents matter," said Youngkin. "Parents should be at the forefront of all of these discussions. And I firmly believe that teachers and schools have an obligation to make sure that parents are well informed about what's happening in their kids' lives. And one of the things we learned last year during the campaign is that parents were tired of being pushed to the background in their child's education."

LGBTQIA+ advocate Robert Rigby said Fairfax County Public School's policy protects and preserves the communication and relationship between students and their parents and guardians. . . . No one [including school staff] should take this crucial discussion of 'coming out' away from the students and parents by 'outing' someone. It feels and is really intrusive and can be damaging to the parent/child relationship, sometimes permanently."

A Loudoun County Public Schools spokesperson said Regulation 8040 states this:

"Student Privacy and Confidentiality. Staff shall follow and adhere to legal standards of confidentiality relating to information about a student’s gender identity, transgender status, legal name or sex assigned at birth. Staff must support student privacy and safety and not disclose a student’s gender identity or transgender status to other students or other parents. A student’s gender identity or transgender status should not be shared without the student’s consent, even internally among school personnel except to those with a legitimate educational interest or need to know.

Youngkin’s state Department of Education is developing a policy that will require schools to notify parents of sexually explicit materials in schools.  . . . "We're so pleased this year, to be able to sign legislation on a bipartisan basis to give parents the ability to decide where their children wear a mask, to give parents the ability to whether materials are appropriate for their children in their instruction," said Youngkin. . . . I firmly believe that parents should be informed on all aspects of their children's lives. And it's an obligation of our school system and teachers in order to do that."

More Wednesday Male Beauty

 

Trump, Fox and The GOP Spin Lies Following the FBI Search Warrant

Many in the mainstream media - typically the same ones who for years have engaged in false equivalency and a pretense that the GOP has not perversely changed - are breathless in the wake of the FBI execution of a search warrant against Doanld Trup at Mar-A-Lago, seemingly searching for stolen federal documents (some thought to be top secret) removed from the White House in violation of federal statutes.  Yes, the action was unprecedented but so to has been Trump's corruption and lawlessness so comparisons to other former presidents is a comparison of apples and organges.   Meanwhile, Trump is doing what Trump always does: LYING.  Sadly, the political whore that now fill almost all of the ranks of today's GOP are acting as an echo chamber, fearful of both Trump's wrath and the wratth of the vever more hideous GOP party base.  The facts and the process needed tom secure such a warrant are ignored both by those in the GOP rushing to give Trump his demanded politico fellatio and the faint hearted in the media who would not recognize responsible and courageous journalism if it beat them about the head.  These cowards also ignore the reality that if the rule of law is to survive, it must be demonstrated that no one is above the law.  No one, not even Trump.  Pieces at The Atlantic and CNN look at the truth behind the FBI search and that this is anything but a weaponization of the Justice Department or politically motivated.   First this from the CNN piece authored by former prosecutors:

The search warrant executed on former President Donald Trump's premises at Mar-a-Lago represents a seismic shift in the overall landscape of the investigations against him. We have long forecast his deepening legal peril, but this puts an exclamation point on his exposure. As a nation, we are now rapidly headed into barely charted waters.

Trump reacted with predictable outrage, claiming that his home was "under siege, raided, and occupied" and that "Nothing like this has ever happened to a President of the United States before."

He's correct on that last point. But we have never seen evidence of this kind of behavior by a president before either. CNN is reporting that the focus of the search warrant is on documents that Trump removed from the White House, including some 15 boxes of materials that have now been recovered. These materials reportedly included classified documents. 

As former prosecutors and defense attorneys, we know that, to conduct this court-ordered search, the government would have had to go through a demanding process of establishing probable cause that an offense had occurred. The search warrant materials would have had to be approved at multiple senior levels of the FBI and DOJ. Given the profile of the target, we have little doubt that Deputy Attorney General Lisa Monaco and likely Attorney General Merrick Garland would have been briefed. 

But that is not the end of the process. A district court judge or federal magistrate had to independently review the supporting affidavit and make a finding of probable cause to believe that evidence, fruits or instrumentalities of a crime would be found on Trump's premises. 

While the reported basis of the search warrant related to the removal or misdhandling of official documents, that does not mean that those potential offenses are the only ones that prosecutors are looking at. . . . . even before Monday's seizure of the documents, Trump's lawyers were in communication with DOJ officials, according to CNN sources, to discuss assertions of executive privilege. That seems unlikely to relate only (if at all) to Trump's mishandling or removal of official documents. Instead, it signals a sharp interest in issues like the false electoral slates that give rise to the likely crimes of conspiracy to defraud and obstruction of congress. 

If some thought he [AG Garland] was moving slower than they would have liked, he's now clearly moving faster than we all expected. If you believe that no one is above the law, and that the powerful and the powerless should be treated the same in the face of probable cause of crime, the new pace of Garland's investigation is profoundly reassuring.

Of course, today's Republican Party no longer believes in the rule of law or, sadly in democracy, if it threatens GOP control.  The party likelise no longer belives that the views and desires of the majority of Americans matters be it on matters of abortion, voting rights and a host of other issues.   Hence, it is little surprise that Republicans quickly begans shouting out lies and threats merely to stay in the good graces of the ugly party base.  This from The Atlantic:

The merits of a potential government case against Donald Trump, and of the basis for the FBI’s raid on Mar-a-Lago, cannot yet be evaluated, despite the assertions of many of Trump’s supporters and critics. A federal search warrant can be obtained only with probable cause and with the approval of a federal magistrate . . . . . the reflexive Republican insistence that the investigation is politically motivated is itself unmoored from the available evidence.

On Fox News, pundits warned of a “preemptive coup,” proclaimed a “dark day for the republic,” and compared the FBI to “the gestapo.” Other conservative-media figures grimly suggested that political violence was imminent, while a few right-wing intellectuals tweeted menacingly in the same tone that a mid-level functionary on the Death Star uses right before he gets choked out by Darth Vader. House Minority Leader Kevin McCarthy announced that the FBI was in a “an intolerable state of weaponized politicization” and threatened to investigate if Republicans take back Congress in the midterms.

[T]he certainty that Trump is being politically persecuted cannot be supported by evidence. It is instead based on ideology: There are people against whom law-enforcement action or abuse is always justified, and there are people against whom it can never be justified. That is, if law-enforcement officials want to murder an unarmed Black man in the street, brutalize protesters against police misconduct, or investigate a Democratic presidential candidate, conservatives will insist that such officers are infallible and that any criticism of their conduct is outrageous. But when the law is used to investigate or restrict the conduct of people deemed by conservatives to be above its prohibitions, that is axiomatically an abuse of power.

This is why, for example, it was perfectly permissible for Trump to order his attorney general to prosecute his political opponents, to even campaign on that basis, but it is intolerable politicization for him to be investigated, regardless of the basis. . . . . Law enforcement is legitimate and deserving of unconditional support only as long as it enforces the law against groups conservatives want it to target and exempts those they do not.

Ironically, Trump has continually received favorable treatment from the FBI. . . . conservatives believe that the law does not apply to Trump. (The centrist version of this argument is that any politician with sufficient political support becomes an unaccountable caudillo who possesses legal immunity, a position that mocks the bedrock democratic principle of political equality.)

Trump himself publicly encouraged cops to physically assault those in their custody, while his administration abandoned any pretense of federal oversight of police misconduct. Ultimately, conservatives believe this unfairness in the justice system to be a virtue, as long as they are never on its losing end.

The Trump supporters outraged about the Mar-a-Lago raid are not lamenting that those protections have been curtailed. They simply believe that Trump should not be subject to the law at all. Political systems with such exemptions exist, but democracy is not one of them.

Wednesday Morning Male Beauty

 

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Liz Cheney is the Obi-Wan to Trump’s Darth Vader

If anyone had told me 15 or more years ago that I would be applauding the actions of Liz Cheney much less her father, Dick Cheney who I frequently compared to Emperor Palpatine of Star Wars on this blog, I would have insisted that such a thing could and would never happen. Yet, fast forward to today and one see's Dick Cheney in a scathing political ad excoriating Donald Trump and Liz Cheney continues to display a political courage  and strength worthy of Princess Leia as she seeks to hold those responsible for the first coup attempt in America's history responsible. It's as if the universe has shifted in a way unimaginable just a few years ago.  A column in the Washington Post looks at Dick Cheney's full on attack on Trump:

It is not often that you see Democrats tear up over a message from former vice president Dick Cheney. However, his campaign ad for his eldest daughter, Rep. Liz Cheney (R-Wyo.) — part swan song, part defiance, part nostalgia — tells us more about the decrepit state of the GOP than any Democrat’s ad has this cycle:

“In our nation’s 246-year history, there has never been an individual who is a greater threat to our republic than Donald Trump,” he declares. Coming from a former vice president and defense secretary responsible for defending America against hostile nations and foreign terrorists, that’s quite a statement.

Cheney focuses solely on Trump’s danger to democracy. “He tried to steal the last election using lies and violence to keep himself in power after the voters had rejected him. He is a coward,” Cheney says. “A real man wouldn’t lie to his supporters.

By contrast, Cheney says, his daughter Liz “is fearless.” And in a rebuke to the cringing careerists and Trump toadies, he declares, “There is nothing more important she will ever do than lead the effort to make sure Donald Trump is never again near the Oval Office, and she will succeed.”

A second Washington Post column uses the Star Wars analogy and looks further at Liz Cheney's efforts which have made her an outcast in today's Republican Party where giving Trump the political equivalent of fellatio is sadly the norm.  Here are excerpts:

Star Wars fans, remember that scene in “Episode IV: A New Hope” when Jedi master Obi-Wan Kenobi and Sith lord Darth Vader are light-sabering it out on the Death Star? Kenobi and Vader are monologuing over the crackle of their clashing weapons when Kenobi declares, “If you strike me down, I shall become more powerful than you can possibly imagine.” Then, in an act of self-sacrifice he hopes will hasten the destruction of the evil Empire, Kenobi allows Vader to do just that.

A version of this battle is playing out in real life with Rep. Liz Cheney (R-Wyo.) as Kenobi and former president Donald Trump as Vader. Now, I realize that Cheney’s father, former vice president Dick Cheney, has traditionally been known as Darth Vader, what with the Iraq War and “enhanced interrogation” techniques and all that. But work with me, people.

Ever since Trump summoned a mob to the Capitol on Jan. 6, 2021, in a failed effort to overturn the 2020 presidential election, Liz Cheney has made it her mission to destroy him. Well, by “destroy,” I mean hold him accountable for his violation of the Constitution and his oath to protect it — and ensure he never holds the high office ever again.

As the vice chair of the Jan. 6 committee, Cheney has been merciless in that endeavor. Her remarks at the beginning and the end of each of the eight public hearings were a warning to the nation and a clarion call to her fellow Republicans about the danger to the republic that Trump remains.

And like any power-mad wannabe despot, Trump has targeted Cheney for political elimination. Not satisfied by her removal from Republican House leadership, Trump endorsed her GOP primary challenger, who leads her by a whopping 22 points. There you have Trump’s Vader-like striking down; that the official vanquishing won’t occur until Wyoming’s Aug. 16 primary doesn’t much matter.

But follow the analogy a little further: Cheney’s presumptive defeat won’t be the end of the story. As with Obi-Wan, it will make her more powerful than Trump and his enablers can possibly imagine. Thanks to her fearlessness against Trump in defense of the Constitution, the congresswoman from Wyoming’s lone district now has a national stature independent of her famous last name. And that has led to the inevitable and growing chatter that Cheney should run for president, which will only intensify once she is in all likelihood politically martyred.

[W]hen asked about the possibility of Trump capturing the Republican nomination again, Cheney sounded like someone lacing up for the next fight. “He cannot be our nominee, and he certainly cannot ever be elected president again,” Cheney said. “I intend to be a big part of making sure that we protect the nation from the threat that he poses.”

Right now, I can’t think of another Republican with the guts and ferocity to do a better job of challenging Trump (or the dime-store substitutes putting a smiley face on Trumpism). You hear names such as Maryland Gov. Larry Hogan or former New Jersey governor Chris Christie as possible entrants, but the former pales in comparison to Cheney and the latter is compromised by his work for Trump.

I never thought I’d say this, but I long for the days of the Republican Party that Cheney represents. The old-school GOP that championed limited government, fiscal restraint, and the defense of the ideals of democracy at home and abroad was far from perfect; the party’s social conservatism excluded millions of Americans who didn’t fit its cramped views of society. But even though the Cheney Republicans flirted with the fringe, they kept it at bay. Trump ushered the fringe into the mainstream.

“If defending the Constitution against the threat that he poses means losing a House seat,” Cheney said in that CNN interview, “then that’s a sacrifice that I’m willing to make.” The Force is strong with this one.