Secular Discrimination

The Bob, Carol, Ted and Alice of the blogosphere (left, right, secular, tolerant) launched by Kevin, continuing at True Grit, here at NOfP, and MaxedOutMama, generated interesting comments. He's a reply to a few.

• Dan goes further, arguing secular liberals discarded all morality. While I agree that the invention of the pill was the Fort Sumter of a Second Civil War against Judeo-Christian ethics, augmented by abortion and pants suits" liberals aren't against all constraints--they're just swapping in new absolutes. Ilona, SC&A and M_O_M agree, M_O_M calling the left's morality a soupcon of pessimism blended with the isolationismand the refusal to seek, or identify, evil. I agree with them--and with SC&A and Dan that Radical Islam's cranked the moral machine knob up to "11." As previously mentioned, so long as a sizable percentage of the faithful retain the Koran's cradle-to-grave, head-to-toe dictates and blend worship with government, the feared "clash of civilization" is a race against time:

  Where the West started dis-entangling worship from statecraft as far back as 1648, the Koran recognizes no distinction between Islam the religion and Muslim nation state governance. The West no longer struggles against the Islamic world, yet many Muslims still "divide[] the world into two spheres, known as the Dar al-Islam--the "house of Islam" or "house of submission" to God--and the Dar al-Harb, or "house of war"--those who are at war with God. . .
  
  [P]eace between the West and followers of radical Islam can come only after Islam undergoes something like the Protestant reformation, a "Martin al-Luther" who can distinguish between state and mosque.

• boomr took issue with my tone and disputed my previous points:
  
  
  1. boomr's approach: His doctrine deprecates the intelligence and sincerity of opponents, by equating religion with irrationality and forcing the faithful -- but only the faithful -- to supply additional justification independent of and without reference to religion. And if Judge boomr can't spot a "non-religious purpose," he'd exclude or hinder that viewpoint from the public and political spheres. Put differently, boomr suggests a content-dependant censor to silence the sacred.
  
  
  
  2. Neutrality: I say secularism is neither private/personal nor value neutral. boomr's defense only argues it's more neutral than religion. I disagree; and his use of "opposition" suggests he secretly agrees. If neutrality has opposition, it can't qualify for the center square. Is boomr conceding? Are we playing out the old joke?--agreeing on what you are; arguing only about price.
  
  
  
  3. Quo Warranto?: I don't understand how boomr denies advocating "supression." His argument treats opponents as cretins whose dim reasoning ensures every "vague" "extrapolat[ion]" will be "unsubstantiated." Can he point to any provision authorizing citizens, backed by police powers, to discount another's belief? Someone, anyone, dig up the authority to condition the liberty of believers on evidence of divinity without transgressing religious freedom.
     
     Don't bother--the cases virtually outlaw the content-based restrictions boomr prefers:

     "Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 670 (1943). It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. . . [even though the] religious views espoused by respondents might seem incredible, if not preposterous, to most people." United States v. Ballard, 322 U.S. 78, 86-87 (1944).

     "If judicial inquiry into the truth of one's religious beliefs would violate the free exercise clause, an inquiry into one's reasons for adopting those beliefs is similarly intrusive. So long as one's faith is religiously based at the time it is asserted, it should not matter, for constitutional purposes, whether that faith derived from revelation, study, upbringing, gradual evolution, or some source that appears entirely incomprehensible." Callahan v. Woods, 658 F.2d 679, 687 (9th Cir. 1981) (citation omitted), quoted in Hobbie v. Unemployment Appeals Comm'n Of Fla., 480 U.S. 136, 144 n.9 (1987).

     "[U]nder the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an "equality of status in the field of ideas," and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone." Police Department Of Chicago v. Mosley, 408 U.S. 92, 96 (1972).

  4. Eradicating without Evidence: Who made you God? Even assuming you were -- doubtful on logic alone -- what quantum of evidence would suffice: a million teachers convicted of Stat. Rape? A hundred? A preponderance of the evidence or beyond a reasonable doubt? Does your focus on "actual practice" imply a "one bite" rule? You've no answer, because your plan is noxious and nonexistent in Constitution and statute, as shown above.
     
     boomr knows the parent's wrong. He's certain there's no issue; thus needs no proof; thus can ignore contrary claims. Has he found a way to "look into the heart" of conservatives? But why assume boomr's hierarchy of approved ideas is accurate or shared? Similarly, how could such unreviewable closed-minded authority, backed by state coercion, override representative democracy? His scheme makes his opinion unfalsible and thus irrational. At bottom, boomr's applying to be a nationwide mute button, hiding totalitarianism by insisting involuntary secularism isn't theocracy.
  
  
  
  5. Word Games: boomr asserts, without citation, that my hypothetical parent would transgress a "right" preventing "discriminatory" treatment of gays: "Replace "homosexual" in your hypothet with "black" and we wouldn't even be having this conversation."
     
     But discrimination isn't unlawful. Rather, as the court held in Ferguson v. Skrupa, 372 U.S. 726 (1963), "Statutes create many classifications which do not deny equal protection; it is only 'invidious discrimination' which offends the Constitution." And Washington v. Glucksberg reaffirmed substantive due process isn't infinite:

     [T]he Due Process Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition," id., at 503 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105 (1934) ("so rooted in the traditions and conscience of our people as to be ranked as fundamental"), and "implicit in the concept of ordered liberty," such that "neither liberty nor justice would exist if they were sacrificed," Palko v. Connecticut, 302 U.S. 319, 325, 326 (1937).

     So, governmental discrimination normally isn't illegal unless it's "invidious" or disparate as to a "fundamental" right protected by the 14th Amendment. And some classifications aren't covered--were the Amendment comprehensive, the suffragettes would have been superfluous:

     [T]hough the 14th Amendment guaranteed every "person . . equal protection of the laws" and all "privileges and immunities," that didn't authorize women to vote in Federal elections--because that was beyond the Amendment's scope and intent. So women's suffrage advocates campaigned and won support for the 19th Amendment--via the democratic process. If "equal protection" didn't apply to women, how could it possibly authorize gay marriage?"

     Even after a half-century of Gumby Constitution, much "discrimination" requires only some rational basis, such as:
     
     intelligence;
     
     height
     
     wealth; and
     
     sex, still.
     
     boomr's comparison to racial exclusions would be more convincing if sexual preference were "fundamental" or the relief "invidious." Yet that's not the law:

     [[N]owhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right."

     I concede such an argument could be made--by overruling a library worth of precedent. Still, discrimination against homosexuals is not prohibited now, and nowhere near as simple as boomr assumes.
  
  
  
  6. Tone: boomr faults the rhetoric from my earlier reply, boomr asks, "How is this not 'dismiss[ing] and belittl[ing my] views and conclusions,' something you accuse the liberals of doing? Or is it OK if the person doing it is a conservative, but not if he's liberal?"
     
     No actually, I'm not. I'm not offended by complaints about tone. But I'm innocent; indeed, I think you've turned it upside down.
     
     boomr proposes an authoritarian gag order, and advocates abridging the marketplace of ideas. He must know both are odious and unconstitutional under the First and Fourteenth Amendments. Despite earlier concerns about discrimination, he favors a content based classification to gag the faithful because of their faith. He evades opinions his prejudice fears he might dislike. boomr "belittles" the wisdom of believers and bootstraps that into a dispensation to "dismiss." Scared of voter rejection, boomr sneaks his thumb on the scales by deep-sixes his opponents, gaining a monopoly on perspective and policy.
     
     I'm not burning the First Amendment (somehow) to save it. Sure, I know boomr's nuts. But my approach treats all speakers and voters alike; never questioning their unencumbered access to the press, to Congress and to the megaphone. Unlike boomr, I welcome debate and diversity, unafraid of November's annual unambiguous evaluation. I'll win on the merits -- "one man, one vote" -- without cheating.
     
     As between us, whose tone is more offensive?

The conservative concept of politics, liberty and rights is Constitutional. Not so boomr and his ilk. Increasingly accustomed to judicial and regulatory coercion, the Democrats forgot democracy. Talk about tone deaf.