Friday, June 24, 2005

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.

4 comments:

SC&A said...

This is an excellent post- and exchange. I do wonder if there is all that fundamentally different between yourself and boomr, in terms of the 'rules of engagement.' That is to say, neither one of you is even remotely attempting to disenhage the other.

That said, opinions can and do change- as they should, as matters become clearer or more obscure. I wonder how much of that we will see.

I like these exchanges, alot.

This one happens to be a 72 oz'er.

Anonymous said...

boomr needs to understand that -clearly- the mask is off:


"The conflict in American public life today then is not a conflict between morality and secularism. It is a conflict of moralities in which one moral system calls itself secular and insists that the other do likewise as the price of admission to the public arena. That insistence is in fact a demand that the other side capitulate..." -Richard John Neuhaus

@nooil4pacifists said...

boomr:

1) I'm confused. On the one hand, you say "I've never advocated precluding a viewpoint from discussion in the public sphere." Yet you proposed discounting advocacy, or legislative proposals, without some secular purpose. Even apart from the "who gets to judge purposes" question, are you saying ignoring a viewpoint isn't preclusion? What if that viewpoint were the majority, and passed a law. You "merely advocate that the government not base its legislation on" such views. How does that differ from preclusion?

2) How do you know, how do you propose judging, a law's purpose? As I've previously argued, were there no religious references in law or legislative history, would that suffice? And your "only purpose" argument fails if I can reach the same result after applying white-out to Jesus.

3) Same question, re gay teachers. Assume neither mention nor hint of religion in gay teachers legislation and legislative history. Assume a plethora of studies showing a non-zero integer number of gay teacher consequences for students. Assume a finding that "just like global warming, the science isn't certain; but just like the Kyoto treaty, we don't want to take the risk that gay teachers increase homosexuality among students." Obviously, the logic's valid, and the syllogism’s true if the premise is correct. How, do you propose, a court conclude this fails as a "rational basis?" How would you distinguish, say, a mandatory retirement age that plainly would be unfortunate in some cases? (This, by the way, is a partial answer to your "pregnant girlfriend" question, because there's the hypothetical law is based on in-class behavior.) Or adding a local speed bump that, in fact, will worsen congestion. Rational doesn't mean "right." Outside of fundamental rights, the people and their representatives have the right to be wrong.

4) If all depends on your view that "the government shouldn't legislate morality," what do you mean by morality? Would you void the criminal laws? Sunday closing? Adult incest? Polygamy? Whose morals? The Court allows Christian Scientists to refuse medical treatment of minor children. Ok, or not?

5) Today, law increasingly uses one morality to overrule another. California Catholic churches must hire gays; druggists must sell birth control; doctors must perform abortions. Would your approach be different? If not, aren't you, too, legislating morality?

6) You don't support distinguishing the cases I've cited on their assertedly different facts. Sure Mosely involved picketing--and prohibited most content regulation. You're proposing to ignore legislative purposes based on content. The picketing don't matter; the holding does. Callahan and Ballard are similar, specifically prohibiting investigating the truth of any belief. The facts are, of course, different. But you argue: "Yes, I KNOW the parent's wrong, because I've actually read the studies on child abuse/molestation and its connection (or lack thereof) to homosexuality." How is that different? You admit that my hypothetical parent is equally certain. But you insist his viewpoint is irrelevant, compelling a second purpose, science you suggest. How is that not content-based and unlawful discrimination? Who judges whether the science is sufficient? Some say CO2 causes warming, some don't. Is a nose-count enough? Do PhD's count twice as much as one with only a Masters? Courts are the worst place to resolve that question; elections are the best.

7) Finally, don't assume I'm a literal bible advocate. Actually, on this issue, I agree with you. But -- like Justice Thomas in Lawrence -- I don't believe that the Constitution says my view automatically trumps others. If it's not in the Constitution, it's up to the people and democracy. You agree it's not (yet) there. But, you propose stacking the "rational basis" analysis too, via content-specific exclusion of some viewpoints that you know to be wrong--without asking your fellow citizens. Why don't you trust the people? Why don't you trust the process?

@nooil4pacifists said...

Ilona:

Agreed. Prof Stanley Fish -- who disputes some Neuhaus concepts -- may of had boomr in mind when saying this:

If, as Neuhaus says, a secularist liberal and a committed Christian recognize and deploy the same "rules of reason, evidence, and critical judgment," sooner or later they will disagree about whether something is or is not evidence or about what it is evidence of, and such disagreements cannot be resolved by the rules of reason because the rules of reason unfold in relation to a proposition they do not generate. . .

Does this mean, as Neuhaus asks, that the central beliefs of Christianity cannot be falsified? No, it means that the central beliefs of Christianity cannot be falsified (or even strongly challenged) by evidence that would not be seen as evidence by those who hold the beliefs. If you tell a believer that no one can walk on water or rise from the dead or feed five thousand with two fishes and five loaves, he will tell you (in the mode of Tertullian) that the impossibility of those actions for mere men is what makes their performance so powerful a sign of divinity. For one party the reasoning is, "No man can do it and therefore he didn't do it"; for the other the reasoning is, "Since no man could do it, he who did it is more than man." For one party falsification follows from the absence of any rational account of how the purported phenomena could have occurred; for the other the absence of a rational explanation is just the point, one that, far from challenging the faith, confirms it.