United States v. Sterling & the advocacy groups involved

This case came to my attention by way of a friend who is deeply concerned that our religious liberties are eroding.  This is the view I saw first:

According to First Liberty:

United States Marine Corps Lance Corporal (LCpl) Monifa Sterling was court-martialed after she refused to take down Bible verses she had posted in her workspace and for reposting the verses after her supervisor threw them in the trash. A trial court ruled against Sterling, giving her a bad conduct discharge and reducing her rank.

And if that’s the only story, it seems like a blatant religious liberties issue.  But of course there’s two sides to every story.  According to the Marines, the postings were not identified as religious initially, and Sterling repeatedly disobeyed orders; the court martial had to do with that, not any persecution.

To highlight this rift in the understanding of the facts, look at the news coverage.  Yesterday in my Intro to Sociology class, we played a game of “match the headline to the news source.”  It works as well for opinion pieces as for actual news articles!  My class did a great job of identifying which was Fox News and which was Huffington Post, which left the Washington Post in the middle.

“Marine court-martialed for refusing to remove Bible verse.”

“After court-martial, this Marine cites religious freedom.”

“How to turn a bad Marine into a persecuted Christian.”

The HuffPo blog article has already decided that she’s a bad Marine; Fox News opinion has already decided that the most important element of the court martial was the Bible verse.  Both of these are the type of contentious statements that will reinforce what you already want to believe and do nothing to communicate to those who disagree.  The WaPo headline is closest to accurate; there is some argument regarding when she initially claimed religious persecution.

If you want to actually look at the source texts, it’s all posted at the Court of Appeals for the Armed Forces. The case was argued this week, with superstar attorney Paul Clement making his first appearance in military courts to lead the “religious liberty” charge.  If Clement fails in his challenge, certainly he will appeal to the Supreme Court – whether they’ll hear the challenge or defer to the military courts is in question.

The Religious Freedom Restoration Act states that the government cannot substantially burden the free exercise of religion unless there is a compelling governmental interest and this is the least restrictive means of doing so.  The lower court (the U.S. Navy-Marine Corps Court of Criminal Appeals) did not believe that her behavior was religious exercise – thus, RFRA would not be triggered.  Clement contents it was, and is.   The brief for the appellee states that Sterling did not notify her NCO that the notes in question were religious in nature, nor did she ever request for religious accommodations, nor did she raise a claim of religious discrimination in the earliest days of the suit.  One of the questions this case addresses is if a person needs to make it clear that their behavior is religiously motivated in order to be protected, or if it absolutely protected by its very nature regardless of if others are aware it’s religious.

Eight amicus briefs are listed with the case.

First, a few dozen members of Congress along with the American Center for Law & Justice writing in defense of the appellant attempt to clarify legislative intent and correct the lower court.  They contend that the lower court wrongly decided that the appellant was not actually exercising her religion.

Second is a brief from the Citizens United Foundation! Yes, we are promoting traditional values and restoring the government to big money citizen control in this case! Quite a few other noteworthy organizations signed on to this one, which focuses on the initial order to remove the signs being unlawful.

Third brief comes from Nine Retired General Officers.  The nine retired generals remind us that the purpose of the military is to defend American values – and what is more important than religious freedom?  Further, if we fail to protect religious freedom, then we’ll have significant recruitment issues within the military.  The brief strongly supports religious expression and brushes over Sterling’s choice not to follow procedures for accommodation.  They do write that “Service members do not turn off their religiosity until they are given permission to exercise or express it. ” (p. 12)  How sustainable this is?  I work at a public college; certainly my religious freedom is protected by law.  But if a holy day were coming and I would not be at work that day, I would still have to follow proper procedure to find a substitute teacher and notify my leadership that I wouldn’t be in class that day.  I’m not sure if I buy this argument that a person can demand their religious freedom without proper notice – regardless of the context.  (At this point I’m referring to her refusal to work on a Sunday afternoon – which again, the briefs defending her largely brush over.)   The nine generals preposterously claim that if the ruling from the lower court stands, then service members might worry ” about whether their religious expression, like cries out to divine providence, might result in punishment. ” (p. 12) Are intentionally printed sheets of paper and dogged refusal to show up for duty the same as a spur-of-the-moment prayer in combat?  What is a parallel example, and what is a false equivalency?

Fourth brief comes from 10 states, mainly from the south and west. They don’t explicitly support either party but do want to make it known that they don’t believe that RFRA was applied accurately.   This is similar to what the first brief says, but in that brief they are explicitly defending Sterling.  The states here don’t want to weigh in on the compelling government burden/least restrictive means elements, but at least want to make it known that she was exercising her religion.

Up fifth is a brief from the Alliance Defending Freedom and Chaplain Alliance for Religious Liberty, defending Sterling’s actions.  They argue that the request to take down the notes had no valid military purpose – the Marines contend otherwise.  (For more on the valid military purpose, compare Clement’s argument in appellant brief pp. 32-36 with the military’s argument in appellee brief pp. 64-69 )

The sixth brief is from the Aleph Institute & the Becket Fund for Religious Liberty & systematically dismantles everything the appellee is standing for.  I mean, how many more ways can I write that they’re defending Sterling?  Again creating an equivalency between inspirational/ potentially vaguely threatening quotations with family photos, again saying that it’s religious expression regardless of it she called it such – we should be familiar with all this by now.

The seventh comes from a rabbi & the Thomas More Society.   This one reinforces the belief that we are a nation built on Judeo-Christian values, and as such, these need to be protected at all stages.

Finally, the eighth brief comes from Americans United for the Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way, all opposing Sterling’s case.   This brief argues that Sterling was not substantially burdened, there was a compelling government interest, and they did follow the least restrictive means.  She should have requested an accommodation if it were legitimately a religious expression.

Prior to this case I had not listened through oral arguments in a military court.  What stood out to me as I listened was just how much the judged focused on the procedural element – unsurprising, but still striking in contrast to how the Supreme Court cases I listen to talk more about substantive rights.  Clement seemed a bit out of his element, not directly answering the questions but rather reframing the issue to be more on the territory he’s used to.   The attorney on behalf the Marines claimed that religion was not invoked in the early confrontations, and that if it were a religious issue, proper procedure would have been to file a form requesting an accommodation.  The discussion goes in circles, questioning if a right as critical as free exercise of religion needs to have an accommodation, or if proper deference to authority is more important.

If the CAAF affirms the lower court’s rulings, I have no doubt that it will be quickly appealed to the Supreme Court.  But will the SCOTUS defer to the military on the whole, or choose to hear it?

More links to briefs and audio available at CAAFLOG.


Side note: who voted against RFRA?

I’m in the midst of working through a long post on a current court case that is far over my head – the act of writing posts on here helps me understand the cases well enough to discuss with others – and got a little sidetracked looking at the history of the Religious Freedom Restoration Act.  This is the 1993 federal act that came in response to the Supreme Court allegedly eroding our religious freedoms.  Three senators voted against the bill – Jesse Helms (R-NC), Robert Byrd (D-WV), and Harlan Mathews (D-TN).  Why would southern senators vote against a religious freedom bill in the early 90’s? I was six at the time of the vote, so I wasn’t particularly paying attention to politics at the time.

Jesse Helms:

The News & Observer from Raleigh, North Carolina has an article about why Jesse Helms opposed the bill. He suggested that this bill would open the floodgates for litigation demanding protection for hallucinogens and animal sacrifice.  This blogger, who has quite a few fascinating posts, describes Helms as a segregationist.  Oh, and a former Democrat – to clarify, when the Democrats started supporting civil rights, quite a few party members switched to being Republican.  Check out the Jesse Helms Center for an interesting perspective that attempts to defend him – though using his own words will ultimately condemn him.

So Jesse Helms was a Dixiecrat-turned-Republican who opposed Civil Rights and ultimately RFRA as well, apparently out of fear that non-Christian religions could use it to defend their own rights.

Robert Byrd: 

Formerly a recruiter for the KKK, Byrd subsequently distanced himself from the Klan.  The NAACP ratings for Byrd were pretty good by the turn of the millenium, though.  In 2000, his voting record was 93%; 2003-2004, 100%.

Harlan Mathews:

Apparently a career politician who mainly stayed behind the scenes, he was briefly a senator when Al Gore vacated the seat to become vice president.   All of the references I have found (in an entire 10 minutes of googling) refer to him serving “quietly” – though the vote against RFRA is hardly quiet.  I’ll have to come back to this!

Why couldn’t I find more quotes from the Democrats who opposed RFRA than from the Republican in a hasty search?

Evenwel v. Abbott & the Project on Fair Representation

Yesterday the Supreme Court handed down a unanimous decision affirming that “one person, one vote” means that districts based on total population is acceptable.  This came due to a challenge from a group called the Project on Fair Representation, the group that is also leading the Fisher v. University of Texas case.  (Part 1 kicked it back to a lower court; Part 2 to be decided this year.)

The Project on Fair Representation is the brain child of Edward Blum.  In 1992, he ran for Congress in Houston in a district that was 50% African-American.  Racially gerrymandered districts had been created as a way of ensuring equal representation at the state level; Blum objected to this because “neighbors that have common concerns were split apart simply because they were a certain color.”

Unfortunately, in a state that is only 12% black, you probably won’t have many black representatives unless you specifically shape a district that encompasses historically black areas such as the 3rd ward.

But Blum objected to the racial classifications there and has apparently spent considerable time and resources since seeking legal challenges to civil rights legislation.  The NBC news article linked above does a good job describing how special interest groups operate – what it takes to find people to be the test cases for some legal crusade.

Many noteworthy Supreme Court cases do not come about due to a single aggrieved person seeking protection from the courts.  These are pointed, targeted cases identified by special interest groups with deep pockets for legal fees – whether we’re talking Plyler v. Doe, Obergefell v. Hodges, or Citizens United – people seeking to make political change in the country actively look for cases they can pursue.

In this case, the issue is not inequality of district sizes relative to voting-eligible population.  If that were true, you’d attack the root causes: why are so many immigrants here without a path to citizenship?  Either enforce the immigration laws effectively or provide legal paths.  And why are felons still disenfranchised across so many states?  Texas is in the middle on this issue – stricter than many, requiring that probation be finished, but not as harsh as the ones who permanently lose voting rights. No, this case isn’t about fair representation in voting.

The most telling statement about Blum: “The goal in all of this is to restore the original colorblind principles to our nation’s civil rights laws.”

Are we talking about the color-blind principles that obscured black slavery under the term “other persons“?

Or the color-blind principles of our first naturalization laws, such as the Naturalization Act of 1790 which restricted naturalization to “free white persons”?

It’s easy to be color-blind when you’re part of the majority group that benefits from the long history of racist laws.

Read Evenwel v. Abbott here.

Their real purpose?

“To believe them, they have no motive but to establish ‘free institutions, civil and religious,’ yet in defiance of human freedom, just laws, and true religion, they proceed to consummate their real purpose, which is to people the country with slaves in order to cover it with cotton crops.” – George Featherstonhaugh

A British geologist/geographer traveled through North America in the early part of the 19th century and wrote a book describing the terrain and inhabitants of the land.  The quote comes from pg 124-125.  Here he’s describing what it was like to pass through Texas and delivering this scathing criticism of their politics.  And almost two centuries later, we still have the same issue in Texas history.  The relationship between Texan independence from Mexico has more to do with slavery than we’re really comfortable with admitting today.  Or than we’re willing to see.  Featherstonhaugh commented that the Texians focused on free civil and religious institutions – and the pernicious thing here is that perhaps that’s sincerely what they thought.  As you read through the Texas Declaration of Independence, that’s all you see.  But the blindness (often willful blindness) of dominant groups as they relate to minority groups seemingly knows no boundaries.  To the British observer, it seemed obvious that if you support human freedom, you must oppose slavery.  To the Texans – it was all tied up together.  A couple decades later, the declaration of secession from the Union made this explicit.

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon the unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of the equality of all men, irrespective of race or color–a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of the Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and the negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

There’s Texas history for you.  Continue reading the declaration of secession and you’ll continue to see a blind denial of the full humanity of the “African race.”  As a 21st century Texan, I’m left wondering how to best represent Texas history in the future – how to balance the “great man” narrative of the Texians fighting for independence from an oppressive government with the real ways it was intertwined with slavery.  The British description of the day helps.  What I’d really like to find is a history text from the Mexican perspective.  Suggestions welcome!

The Yelp open letter: who is talia jane?

The internet is a source of many wonders. Most recently, the uproar over the Yelper who wrote about how hard it was to make ends meet on the salary considering how outlandish the costs of rent are in the area.  The original letter went viral, and the author, talia jane, was fired shortly thereafter.  Besides the firing, she received significant backlash, including this response from Stefanie Williams which contends that millennials act entitled or some such. Vox has subsequently done more to point out the structural issues at hand, so I won’t go into that.

Maybe I’m an entitled millennial, but I thoroughly do not understand the response from Stefanie Williams.  I’m impressed by the lady who worked hard, but she seems blind to the advantages that she was given.  From jobs basically falling into her lap to being able to find good roommates – these are not universal experiences.  What sane person would live alone and accept that salary, she asks.  Interestingly, about 28% of all households are a single person.  This is the direction of American society as a whole – not a single selfish choice.  Or do we say that a quarter of American households are making irresponsible selfish choices?  And is it better to be unemployed than to have a low wage?

Elle Armageddon wrote a response to the response and worked out some remarkable math regarding minimum wage and hours worked as it related to the costs of living at the time.  Most notably, she pointed out that the author of the response letter talked about living with her mother – something that apparently talia jane could not depend on. This too explains why she might prefer to live alone rather than trust roommates.

And here the plot thickens.  That’s right, the same talia jane co-wrote a Cracked article in which she recounts the story in which her mother, Debra the “good witch”, helped cover up a murder.  Talia apparently then went into the federal witness protection program for a while, which makes this whole social media spectacle even odder.  The cynic in me wonders if some aspiring clickbait-writer just latched on to a story for sake of internet attention – which now can become real ad revenue and income from writing.   (You really think someone would do that?  Just go on the internet and tell lies? )   Since then she’s co-written various other personal stories with ‘anonymous’ people for Cracked.  Her tumblr also includes a prominent “HIRE ME!” plea on it.

All put together, this social media firestorm is a series of strange events.  I’m personally suspicious of talia, wondering if she is who she says she is, or if it’s another writing exercise.  Authenticity of identity aside, this points out a lot of real questions in our country – should people be more willing to live in closer quarters and with strangers again?  Would a willingness to do so solve our apparently housing problems?  Should jobs pay enough to allow people to live alone, or is a reasonable wage one that forces you to bunk with strangers?  (If it works for Chinese factories, why not?)  Should there be wage regulations, or can we go back to a 19th century thought that the market itself will sort it out?

I can’t stop watching Ted Cruz’s “Defend the Right to Life” video

A recent video that is seemingly filmed in a RV on his way somewhere.  Ted Cruz starts off with a reference to Matthew 25:31:46 – whatever you did for one of the least of these brothers and sisters of mine, you did for me.  

In the passage he’s referencing, Jesus explicitly is distinguishing between those people – the sheep – who are doing what’s right on this planet, and those who aren’t – the goats.  The sheep are described as the ones who did the following:

‘ For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in,  I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.’

He takes that to mean that “no issue reveals the true character of a candidate for public office more than the life issue.”  Which boggles my mind, because at no point in the rest of the video does he show any concern for the people Jesus was directly referencing – the hungry, the aliens, the poor, the sick, the prisoners – but rather elevates the question of abortion to the top.   Other issues can be compromised, he said, but the right to life is supreme.  What I don’t understand – if that’s the case, why did Jesus not explicitly speak out against abortions?  Abortifacient herbs were known at the time and arguably referenced in Numbers 5. But Jesus had different fish to fry.  Ted Cruz’s interpretation is somewhere between “innocently off base” and “scary invocation of religion to prove personal agendas”.

And then… Cruz says…. “If a politician will rob a person of their right to life, rest assured, they’ll rob you of your private property rights, religious liberty, and look for new taxes and regulations to rob you of your hard-earned money as well.”

What do these have to do with each other?! And how many of these are Christian?  Please tell me where your religion told you that you have private property rights – no, that’s your country that did it.  And taxes?  Jesus told you to pay your taxes.  Just in case you were swept away by Cruz’s powers of persuasion… no, he’s not talking about religion anymore.  But he’s framed it beautifully within a religious example, making an in group (those who “respect life”) and demonizing every member of the out group.  He’s bringing up unrelated issues and trying to hitch them together so that you throw out the baby with the bathwater.

He continues on his discussion about the sanctity of life – though he won’t go so far as to say that felons convicted of capital crimes also deserve the right to life – and says he will instruct the DoJ “to investigate Planned Parenthood and prosecute any and all criminal conduct which those videos that we saw from the Center for Medical Progress so powerfully evidenced.”

Did we watch the same Planned Parenthood videos?!

I guess I can’t fault him for a factual disagreement here.  People watch those videos and come out with different conclusions, and I’ll give him a good-faith credit for viewing it differently.  I don’t know how – but then the video continues. After a predictable diss against Donald Trump, Ted Cruz adds –

“Donald Trump claimed that Planned Parenthood does a lot of good, besides all the babies they abort and then sell their dismembered body parts for profit – which is like Hillary Clinton saying she was a great secretary of state, except for the four Americans she left behind to die at Benghazi.”

Fact-check time again.  There was no sale of body parts for profit.  Costs of transportation are not the same as profit.  If your issue is with the abortion itself, be honest and focus on that – don’t hide behind a well-debunked statement.  But again, that’s my essential problem with most of the anti-abortion laws: they’re a back-door approach to overturn Roe v. Wade  under duplicitous statements about caring about the mother’s health.  Requirements to see a sonogram or have a full surgical suite are meant to dissuade abortion, but rarely do conservative politicians have the decency and honesty to say that they are creating additional laws and regulations legislatively in an attempt to circumvent the judiciary.

The way that Ted Cruz picks pieces of Christian scripture for political gain is expertly done, and part of me wants to applaud his powers of persuasion.  I’m left wondering if he truly believes what he says, or if it’s all part of an intentional propaganda campaign.

The controversial grave of Nathan Bedford Forrest

Trip to Memphis this weekend – went to the grave of Nathan Bedford Forrest.    Roadside America is my go-to spot for ideas of where to visit – though usually their suggestions are along the lines of a see-through public restroom or a meteorite that’s not a meteorite.  The grave was in the center of what used to be called Forrest Park, now called Health Sciences Park, and has been a focal point of the Black Lives Matter movement in the area.

20160206_131448Nathan Bedford Forrest was a Confederate general who was praised for his brilliance and bravery throughout the war.  He was also noted for his disdain for the black population and is responsible for the massacre of African American Union troops who were attempting to surrender at the Battle of Fort Pillow.  (See CivilWar.org ; History.com ;  the book “Lies about America: What our Historic Sites Get Wrong” by James Loewen also has a good segment about him.)  After the war, he was the first Grand Wizard of the KKK, which itself is quite damning.  He left the organization and subsequently opposed it, wanting the organization to be destroyed.  Even when putting him in his historical context, his legacy is complex.

His grave has become the target of spray paint protesting and even people bringing shovels, saying he doesn’t deserve a place of honor in the city.  The local news covered it , though if you read it from the right-wing Breitbart, or the far right-wing/neo-nazi Daily Stormer you’ll get a pretty different picture.   Snopes has it as well.  The city council has voted to remove it, but the state historical committee says it must stay – for now.  Another local/state power struggle.

us not knowing what to think at the statueThinking about these war memorials for historical figures raises several questions.  Is it possible to honor the man for his bravery (29 horses shot out from underneath him – how’d he still get back in the saddle?!) while still acknowledging the complexity of the time? And by complexity I mean “racism that’s so casually accepted that people don’t think twice about it.”   How would we view a statue to a Nazi soldier, for example?  Does the amount of bravery or brilliance ever outweigh the cause that they were fighting for?

One article had a quote from a family member, asking how you’d feel if someone was trying to dig up your ancestors.  And historical legacy aside, that’s a hard question.  Would I want a family member’s grave to be dug up so a business could be planted there? No!  But it’s not a matter of “these graves are in the way” – it’s a matter of “these graves have a place of honor, and we don’t think they should be honored.”

When you look at the Daily Stormer article, it’s clear that he’s being honored because of his racist actions, not in spite of – these are the fringe attitudes, but most of the supporters are painted with this brush.  That doesn’t help the discourse much.  But I would hope that moderates would look at that attitude and say that they don’t ever want to be associated with that, and go as far away from that as possible.  The fact that so many whites don’t strongly denounce those attitudes is a tacit acceptance.

If I could have my way (and some funding), I would leave the statue.  I’d put up historical markers and displays describing the horrors of chattel slavery.  Remind us what he was fighting for.  Remind us that a fight for state’s rights is about thinking that you have a right to own other people.  Remind us that protecting your way of life meant denying freedom to others.  And let’s honor the legacy of Forrest by building a memorial to those murdered at Fort Pillow.  Let Forrest’s own words be read, from the numerous quotes of him during and immediately after the war where his disdain for the black population was apparent, to his later campaigning against the organization he was a leader in.  Removing the marker won’t remove the scars of history.