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By Tom Cushing

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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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Love in the Time of Culture War, Part 1

Uploaded: Feb 27, 2014
Whatever decision AZ Governor Brewer makes this week (I know, see below. Rats.), it will be just a teaser for the bigger show to come next month. She must decide by Friday (and she did) whether to sign-or-veto legislation that attempts to roll-back fifty years of hard-won, legally-enforced commercial "tolerance." Regardless, similar issues will play-out on a national stage when the Supreme Court hears the Hobby Lobby case.

Love, in its many-splendored forms, figures prominently in both situations. The AZ bill, though broadly worded, has become famous mostly for its evident purpose (redundant, in context) of allowing merchants the freedom to deny service to gay patrons, if such custom would offend the merchants' religious convictions. The Hobby Lobby case is a government appeal from a Denver appellate court ruling upholding that 500-store retailer's right to withhold free contraceptive and morning-after health-care coverage from its employees based on the owners' religious objections, contrary to the requirements of the Affordable Care Act. It's a passionate mix of same-sex love, acts of love and religious love – what could possibly go wrong?

Now, there's also a lot going on here legally, and it is a bit much to tackle, accurately, in a thousand-or-so words; so bear with me -- or else now would be a good time to bail. This column will look at AZ and common legal background; next time we'll duck into the Hobby Lobby. There are strains of the Constitution, various statutes and court precedents afoot hereabouts, but nothing very romantic.

First, please recognize that the requirement that businesses forego discrimination in various forms is a longstanding creature of statute, not Constitution. The Civil Rights Act of 1964 commanded it, and was promptly upheld as Constitutional by the Warren Court -- not because it was the right thing to do (it was), but simply because Congress had the power to make that law, and to apply it to any business that affects interstate commerce (including, as it turned-out, Ollie's Mississippi BBQ joint, and the Heart of Atlanta motel).

Once the Court determined that point of law, its job was finished, since no other part of the Constitution was at-issue, only the reach of federal power. Note, however, that the Civil Rights Act does not extend protection to gay Americans, limiting its coverage to race, color, religion, national origin and sex (including the latter only by indirection, at the time of its passage).

Many states, like California, Oregon (home of the recently martyred fundamentalist bakery), New Mexico (home of the recently martyred fundamentalist wedding photog), have passed similar laws to reach their very local businesses not covered by the Civil Rights Act. Those states also all include gays within the protected characteristics that may not form the basis of discrimination.

AZ has a more limited version, sans coverage outlawing discrimination against the LGBTQ community. In the absence of a state-wide law, several AZ localities, like Phoenix (in 2013) have passed similar ordinances that do include gays. It's a complicated geographical patchwork, because the nation is only now transitioning toward a legal consensus on matters of sexual orientation that it has reached for other status factors, which now also include age and disability, among others.

Thus, in most of Arizona, you can refuse to rent, accommodate, hire, serve or otherwise deal with a whole range of people, including gay people, today. You could refuse my business because I'm blue-eyed, or left-handed, or just because you don't like the cut-of-my-jib, whatever that is. Of course, most folks of good will and profit motivation do not choose to exercise such rights, but they could.

Enter AZ Senate Bill 1062. [AAAAAND exit Senate Bill 1062, dammit. Just as I've written this, Governor Brewer has vetoed the bill passed by her legislative colleagues. We shall soldier-on.

Anyway, as I was about to write, SB 1062 was a second-generation offspring of the Religious Freedom Restoration Act (RFRA), passed on the federal level in 1993 (and deeply enmeshed in the coming late-March cases before the Supremes). The recently deceased state measure dramatically broadened AZ's original version of the federal statute by extending its reach beyond individuals and religious organizations to include just plain businesses.

RFRA is where the Constitution comes into this drama. A clause of the First Amendment guarantees that the government shall not act to abridge the Free Exercise of religion. Together with its companion Establishment clause that forbids favoritism toward any particular religion by the state, it forms the basis for what we call "the separation of church and state."

There is a whole wavy line of Supreme Court precedent that deals with conflicts between laws that apply to everyone, and their specific application to religious institutions and believers who may object to them for faith-based reasons (e.g., in schooling, Sabbath work, taxation, transfusions, polygamy, peyote). Early on, the Court gave short shrift to religious interests – not much was required to justify imposition of duties on everyone, despite religious opposition to them. Starting in the 1940s, however, the Court began to require the government to demonstrate that a 'compelling state interest' justified its failure to exempt religious institutions or practices from laws of general application.

In one particularly interesting case, the Supremes denied tax-exempt status to Bob Jones University under that test. Bob Jones argued that its racially discriminatory practices were deeply held religious precepts. Even based on the high hurdle faced by the government, the Justices had little problem concluding that the government's compelling interest in racial civil rights and equal opportunity overrode BJU's doctrinal preferences.

By 1990, however, the Court switched course again. Led by its conservatives, in a case (Employment Division v. Smith) involving the consequences of using peyote in religious ceremonies, it held that most religious practices are not exempt from the effects of laws that apply to everyone. In effect, Justice Scalia's majority opinion limited Free Exercise clause concerns in most instances to matters where religion is directly targeted by a law. If religion was struck incidentally by a general requirement, there would be no exemption.

RFRA was Congress' unhappy rejoinder to the Court. It re-imposes the earlier, higher standard of review of government actions, (now stay with me, here) not usurping the Court's authority to define the limits of the First Amendment, but expressing the intent of Congress that government actions not go that far. It places the burden on government to demonstrate that its interests overbalance the complaining individual's religious interest, and does so to the minimum extent that still accomplishes the government's purpose.

RFRA was later partially invalidated by the Supremes as regards its applicability to the states, but upheld unanimously as a limitation on federal power – a selfie, if you will. Thus, in yet another peyote ceremony case, the DEA failed to demonstrate a compelling state interest in prosecuting the celebrants. States like AZ and others were prompted to pass their own mini-RFRAs, to fill the void left by the partial strike-down.

SB 1062 would have further broadened AZ's mini-RFRA to extend its coverage beyond religious institutions, to businesses. It was ridiculous overkill, in the context of gay-bashing, because AZ businesses are already free so to do in most-places-not-Phoenix. And now it won't.

BUT – if you've come this far, do not despair (at least not about wasting your time or synapses). This situation has a lot in common with the Hobby Lobby setting, and Nobody's backing-down there.

More next time.

Comments

Posted by Tom Cushing, a resident of Alamo,
on Feb 27, 2014 at 9:16 am

Even the New Yorker liked the cut of Governor Jan Brewer's veto message: Web Link


Posted by Cholo, a resident of Livermore,
on Feb 27, 2014 at 10:40 am

When I saw her face I said to myself that she has room for improvement...clearly in need of beauty aids. The dry heat has taken a toll on her leathery appearance...poor thing!

Not trying to be mean spirited but in my private opinion Brewer strongly resembles Ma Kettle of "Ma and Pa Kettle on the Farm" fame.

The implication of the defeated proposal was to deny fellow Americans their rights. There is no way to argue the case reasonably. Even Americans who have bravely served our country in wars were being denied their full American rights.

Hopefully her presidential dreams are alive! If she's laughed at during the next presidential debates she can always apply for a job in Phoenix. Sombody will remember her for her devoted service and help her find work. Good Luck Ma.







Posted by Pololo Mololo, a resident of Livermore,
on Feb 27, 2014 at 10:46 am

nota bene: Come July 4th the citizens of Arizona can light fireworks under the GUV and watch her skip like a Jackalope!

i rest my case...


Posted by Tom Cushing, a resident of Alamo,
on Feb 27, 2014 at 10:54 am

Well, okay -- not EVerybody at the New Yorker: Web Link


Posted by Cholo, a resident of Livermore,
on Feb 27, 2014 at 1:26 pm

Governor Brewer has a long history of anti-gay discrimination:

Web Link

My advice is that she hire consultants on her staff who are NOT HOMOPHOBIC and who obviously dislike Latinos and other people of color.

I have no intention of singing a BIGOT'S praises.


Posted by Axel Honneth, a resident of Another Pleasanton neighborhood,
on Feb 28, 2014 at 6:09 pm

Cushing can wrap this issue in his legalistic toilet paper all he wants. But SB 1062, contrary to what Cushing suggests, was not about and never has been about its legality or possible constitutionality as potentially reviewed by the courts.

SB 1062 was an attempt to pass bigoted, hate-based legislation with the intent not of protecting religious freedom -- nothing but a ruse, that -- but rather to deny the rights of gays to purchase products, to marry, to have children, to receive medical care, and more. This Bill was about Arizonans being given permission to deny in very concrete ways humanity to a certain group of people.

The importance of 1062 was not, and really never was, about its constitutionality, as the conservative, legalistic ideologue Cushing would have us believe. It was whether right-wing groups in Arizona, financed by Koch bros and other wealthy right-wing bigots, had mustered enough power and influence to overcome those who value gays as equal human beings.

By the same token, SB 1062 was vetoed not because Brewer was unconvinced by the constitutionality of the bill (as if she were at all capable of judging anything on the basis of its legal merits!). Rather, the bill was vetoed because of the successful politicization of this issue by gay rights groups, their supporters, and then the Johnny-come-lately corporations and politicos who shook in their boots after being made to see the likely tragic political fallout if the bill were to be passed: reduced tourism, possible economic boycotts of Arizona and Arizona-based companies, the take-back of future Super Bowl, not to mention once again being derided as the laughingstock of the nation.

Latent conservatives like Cushing urge their readers to view matters such as SB 1062 through legalistic lenses. You can find similar but more extensive write-ups in law journals, written and edited by lawyers, rarely cited outside the confines of the narrow ideology that they promote among themselves.

Brewer buckled under the pressure of civil and human rights groups -- the rightwing mainstream media is calling them "militants" -- not because of any legal argument. This was a political victory for progressive peoples everywhere. Legal ideologues like Cushing write thousand-word screeds about this issue without ever mentioning the issue's political guts. This represents the rather sad ideological state of legal reasoning in our society: The Law, extrapolated from the real-life actions of politically motivated groups, and discussed as if it has a life of its own, unaffected by political contestation.

Cholo's comments, as per usual, cut to the heart of the matter. Here we have Cushing asking us to view Brewer and the rest of the bigots in Arizona's Senate as something other than what they are, bigots through and through. Such is the nature of Cushman's ideologically blinded thinking and writing.


Posted by Tom Cushing, a resident of Alamo,
on Mar 1, 2014 at 6:27 am

Hello there, Comrade. Another day, another handle, same old uh, story.

There's a line that I like, toward the end of the great, old Spencer Tracy movie "Inherit the Wind," when he says: "I'm getting tired of you, Hornbeck. You never push a noun against a verb without trying to blow something up."

I look forward to the day, Comrade Hornbeck, when you'll contribute a perspective without trying to pick a fight. I'm just an optimist that way, and can't help it -- in spite of ample evidence to the contrary. Until then, thanks for sharing.


Posted by Axel Honneth, a resident of Another Pleasanton neighborhood,
on Mar 1, 2014 at 11:13 am

Well, what a lovely retort from the lawyer, so wrapped up in his legal ideology that he's unable to grasp the real importance of people's struggles and what motivates them. You see, he's an optimist, he tells us. And, as previous blogs offer in vivid detail, his definition of optimism is to pretend social class relations don't exist; racism is something that happens elsewhere -- not in his town, not at his newspaper -- because, see, Barack Obama is our president; sexism is soooo yesteryear because, hey, there are women in the US Senate; and now this doozy, SB 1062 and Jan Brewer as examples of religion v. state overreach, while bigotry-- huh? -- is nowhere to be found. Yeah, the liberal.

And now, with his lame response, we see that all he can muster is a petulant belch after his weak little ideological bubble is popped once again. Well, back to the TV set; I hear an old Spencer Tracey movie is on.


Posted by Tom Cushing, a resident of Alamo,
on Mar 1, 2014 at 12:18 pm

Comrade, in case you require a legalistic reference for what I'm about to do, call it 'contempt of blog' if you wish. Actually, however, I am in parental mode, for obvious reasons.

Participation here is a privilege, not a right, and yours is in peril. Forthwith, unless your contributions relate Exclusively to the content of the material, they will disappear. Let me be plain: extraneous statements about me, or about my authority to remove your writings, or anything else, other than that which relates only to the content of the blog, will result in your comment's entire removal.

I have every intention of Not allowing this space to devolve into your circus, a la your "Noam" persona. Once gone, you will remain "grounded" unless and until you can conform your behavior to the above.

You've worn out your welcome and your warnings, Hornbeck.


Posted by Arbitrator, a resident of San Ramon,
on Mar 1, 2014 at 12:54 pm

Hi Tom,

Is your response an example of the raucus in the caucus? Or are you doing something else here? Maybe time to re-name your blog?


Posted by Tom Cushing, a resident of Alamo,
on Mar 1, 2014 at 1:46 pm

Hi Arb: Thanks for the suggestion, but I don't think a name change would help. Comrade H has wrought havoc on more civilly-named blogs -- cf. Gina's most recent "Pressing Issues" edition ('Noam,' there). That blog's hers to manage; here, I'm happy to entertain passionate differences of opinion on the merits, but I'm not much for patterns of needling nonsense and attention-hounding.

And really, we're well into three-figures on these epistles -- of all the people in this valley who have managed to find and read this blog, only two have made themselves unwelcome. More miss-behavers than that get thrown out of many a raucous restaurant and watering hole in a typical evening. So, we're good.


Posted by Arbitrator, a resident of San Ramon,
on Mar 1, 2014 at 2:18 pm

Thanks, Tom. I wasn't suggesting that the name Raucous Caucus was egging on contributors like Axel. I was suggesting maybe you're not living up to the name you've assigned it. But other than that no worries!!


Posted by Arbitrator, a resident of San Ramon,
on Mar 1, 2014 at 3:28 pm

Hey Tom, I just read Gina's blog and responses. Interesting reading! And thanks for the recommendation! Lots of readers and contributors! Obviously there are people out there who care deeply about some of the issues you and other bloggers raise. Perhaps for them such issues are life issues, beyond the bounds of mere bloggery?

I'm curious, though. How do you know Axel is Noam? And did you participate on Gina's blog? If so, what name or names did you write under?


Posted by Cholo, a resident of San Ramon,
on Mar 1, 2014 at 5:24 pm

Introducing my HERO Axel Honneth: Web Link How come so many Plutonians don't know Axel? He's been around a long time and is a well known scholar!

How come it matters that so many posters are curious re: Noam? Noam is highly intelligent and loves to discuss controversial issues. Just because Noam enjoys landing a punch in the nose doesn't mean you have to burn an innocent person at the stake or throw stones! Good heavens!!!

There are lots of snotty nose goons on this blog who luv to refer to people of color LGBTQ Americans and poor people with derogatory names. There are so many Henny Penny's in Plutonia and dozens seem to have a wild hair all up in there dark and furry furry. In a way it's kinda cute! i mean it...

I strongly recommend that more than just a few of you take a deep breath and give it a nice cool flush. tee hee...


Posted by Tom Cushing, a resident of Alamo,
on Mar 1, 2014 at 5:41 pm

How do I know "Noam" is "Comrade," and at least a dozen serial other identities? Stylistic similarity leads to comparisons of IP addresses. He also never denied it when previously confronted. Good enough for me. As to any other identities under which I may post elsewhere occasionally (not here in the RC, except once by mistake), that's my privilege, as it is yours.

I'm also aware, "Arbitrator," that you are he as well, based on the other IP address you/he uses. Did you recently get a tablet? A new phone? Besides, you are also the ONLY person who could possibly have found Gina's recent comment section edifying, as you were the center of attention. How nice for you. I will answer your questions, and then you can go away, too.

As to standard-issue off-topic stuff, I think we all have a pretty high tolerance for that, from time-to-time. And one good thing can lead to another. I believe we "moderate" these blogs with a pretty slow hand. If it's way off-topic, there's a Town Square for that, where you can maintain your anonymity, or do you want to become a blogger? It's a significant commitment, but if you enjoy this stuff, see the invitation in the general blogroll screen.

But a sustained pattern of attempted intellectual bullying, based on an inability to make your point without disparaging somebody else, is another matter -- it need not be tolerated, in my view, and won't be in the blog I create and manage -- big waste of time.

It's like this – in law school, a group had a house that was a Saturday evening blowing-off-steam gathering place/open-house. It could get blessedly raucous, "Arb." One regular made it his practice to belittle and needle others, hoping to dominate the proceedings, attract attention, and try to demonstrate his presumed intellectual prowess (actually a profound personal insecurity, in retrospect). This went-on-and-on, until one Saturday, one guy had had enough. He grabbed him by the shirt with both hands and walked him out of the house.

Much better parties after that, by acclamation. What took us so long? The lesson was that it's possible to be a jerk, and if you're a jerk for long enough, you may get asked to leave the party. Sooner the better. Once the pattern is established, that's long enough to wait before fixing the problem. There are other parties who might welcome your jerkitude.

Now, some folks just like to watch flame wars. That's fine, but you won't find that kind of unnecessary heat here. I'm happy to spend time developing information folks may find useful or interesting, but I have no time to waste on bullies and trolls. Including/especially you.


Posted by Cholo, a resident of Livermore,
on Mar 2, 2014 at 4:07 pm

What I appreciate about LGBTQ youth AND ALL YOUTH is that many are very resilient. Unfortunately many are also extremely vulnerable.

Please view the faces of LGBTQ youth and demonstrate to all youth how much you appreciate their being:

Web Link

It doesn't take a great deal to tell younger Americans that you appreciate who they are.

VIVA YOUNG AMERICANS! VIVA! GORA!


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