"Do or Do not. There is no try."

“The G.O.P. Opts Out Of Equality”: Conscience Is Never Just Personal When The Occasion Is A Fraught Debate Over Public Morality

On May 28th, North Carolina Governor Pat McCrory vetoed Senate Bill Two, which proposed allowing public officials to temporarily stop performing weddings based on “any sincerely held religious objection.” In other words, if a public official were confronted by a gay couple who wished to marry, he could refuse to perform the ceremony. McCrory’s veto put the Republican governor at odds with a Tea Party legislature, which immediately promised to override it. On June 1st, the state senate voted to override, and, this morning, the house of delegates did, too, making it legal for North Carolina magistrates to turn away gay couples.

The Bartleby-like public official who “would prefer not to” marry same-sex couples would not have been asked to just one year ago. In 2012, North Carolina adopted a constitutional amendment banning same-sex marriage, in line with thirty other states where a majority at one point opposed it. Then, in June, 2013, the Supreme Court struck down the Defense of Marriage Act, and federal courts turned decisively in favor of gay marriage. In October, 2014, a federal judge ruled North Carolina’s marriage amendment unconstitutional, and same-sex ceremonies began. That month alone, court decisions also lifted same-sex-marriage bans in thirteen other states—Alaska, Arizona, Colorado, Idaho, Indiana, Nevada, New Jersey, Oklahoma, Utah, Virginia, West Virginia, Wisconsin, and Wyoming—more than twice the number of states where same-sex marriage was legal in 2010.

Following this rout, conservatives have moved rapidly from enforcing a unified public morality based on traditional marriage to speaking the language of pluralism as they seek exemptions from the rising legal norm of marriage equality. Their model has been the Religious Freedom Restoration Act (R.F.R.A.), of 1993, which exempts believers from federal laws that “substantially burden” their religious exercise, except where the regulation is the least burdensome way to fulfill a “compelling governmental interest.”

The R.F.R.A.—which was intended to protect neglected religious minorities, such as Native American worshippers who had recently lost public-sector jobs in Oregon because of their ritual use of peyote—was the basis of last year’s Supreme Court decision in Burwell v. Hobby Lobby, which held that certain business owners can refuse to offer insurance coverage for contraception based on their religious objections. The Indiana Religious Freedom Restoration Act, which was signed into law this March, is a model for the state-level expansion of religious exemptions, applying its protections to all corporations and making religious belief a defense in private legal actions, such as anti-discrimination suits. A similar bill passed in Arkansas later that month.

Supporters describe the state R.F.R.A.s and other religious accommodation laws as acknowledging the “increasing religious pluralism in American culture,” and protecting “religious liberties and the freedom to live out religious convictions,” as Russell Moore, the president of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, put it in March. These exemptions, for the individuals, public officials, and business owners who wish to say, “I would prefer not to,” have become the new front in the culture war, the redoubt of attitudes that were recently in the majority. Invoking tolerance to defend intolerance is ironic at best, but at a moment when disapproval of gay marriage looks ever more like plain bigotry, it is better to say not, “I disapprove of you,” but rather, “This is who I am.”

The Bartleby strategy has taken center stage in conservative resistance to a wide range of liberal policies. In 2012, the Supreme Court nearly overruled the Affordable Care Act’s requirement that individuals buy insurance. Five justices voted to protect the consumer’s freedom to opt out of a market, such as the health-insurance market, warning that, if Congress could require this purchase, it could also command people to buy health-club memberships, American cars, or broccoli. (The insurance requirement survived through a sleight of hand, as Chief Justice John Roberts, who agreed with the rest of the Bartleby argument, found a hook for the law in Congress’s constitutional power to impose taxes.) In 2014, the Court held that certain members of public-sector unions could opt out of paying their union dues, which fund organizing and advocacy. Writing for the majority, Justice Samuel Alito argued that mandatory dues impinge on the First Amendment’s rights of free expression and voluntary association, and hinted that dues requirements in general might be found unconstitutional in the future.

As conservatives press these claims for personal exemptions, they have also been highly solicitous of states that would prefer not to accept new federal standards. The Supreme Court did real damage to the Affordable Care Act when, as part of its 2012 ruling, it found that states could not be penalized for refusing to expand Medicaid, which was an essential part of the A.C.A.’s path to near-universal coverage. As a result, twenty-one states have not signed on to the Medicaid expansion, and nearly four million low-income Americans have not obtained health insurance that the federal government intended them to have.

Similarly, Senate Majority Leader Mitch McConnell is urging state governments to disobey the Obama Administration’s order to develop climate-change regulations. McConnell has some support for his argument that the Clean Air Act does not stretch far enough to require these regulations, and there is sure to be litigation on the issue. But his call for a coordinated strategy of passive resistance in the meantime is extraordinary. The more opt-outs any climate policy includes, the more likely it is to fall apart in a wave of free-riding, as everyone decides to let someone else make the sacrifice, leaving no one to make the sacrifice at all.

Of course, a state refusing to make law is different from an individual refusing to bake a wedding cake for a gay couple. Medicaid policy and pollution regulation directly affect millions of people and billions of dollars of economic activity. The argument for conscience-based individual exemptions is that they concern the exempted individual most of all. The problem with this argument is that an individual’s conscience is never just a personal matter when, as in the case of the Hobby Lobby decision, it bears on the terms of employment. Then the person denied contraceptive benefits, or who is looking for a new job where she can get those benefits, is also part of the picture. Economic life is deeply interdependent, and involves conflicting interests and unequal power. This is why, from the New Deal until very recently, the Supreme Court did not permit many opt-outs from economic regulation. The new raft of conscience claims is creating unprotected spaces within an already precarious economy.

A second problem with individual opt-outs is just as basic. Conscience is never just personal when the occasion is a fraught debate over public morality. Once public laws banning same-sex marriage are gone, authorizing supposedly private discrimination against same-sex couples continues the cultural fight by other means. In hindsight, no one doubts that allowing business owners to discriminate against black people during the Civil Rights era would have denied them full equality and hampered desegregation. (Arguably, the continued tolerance of discrimination by private clubs also undermines desegregation, though club membership is less essential to daily life than shopping.) Similarly, allowing private discrimination against gay couples is not an exemption from a new rule of full equality; it is a compromise that allows inequality to persist. Proposals to let magistrates withhold marriage licenses have the same problems, with the added insult that the discrimination is effectively coming from the state. If officials can decide not to implement laws they dislike, then equality under the law—for gay couples, at least —is just a slogan.

The Bartleby position appeals to touchstone liberal values: personal conscience, diversity, tolerance, and autonomy. On their face, these values seem to promise there are no hard conflicts: there is room for everyone’s conscience, everyone’s outlook, and tolerance enough for each person’s freedom. The new generation of opt-outs show that this is a misconception: there is conflict over what these values mean, and there is never enough room for all their meanings. The politics of tolerance, diversity, and autonomy are distributive politics, with winners and losers.

From Thoreau’s night in jail protesting slavery and the Mexican-American War to the Greensboro lunch-counter sit-ins, sitting still and not doing as you are told has been among the most potent of political tactics, though its effects are often complex and long delayed. As in much else, initiative in this tradition of creative refusal belongs to the political right today. There is no paradox in conservatives using liberal values and tactics to their ends. By the same token, there should be no liberal embarrassment in resisting. There is no incoherence here, but there is disagreement too sharp for tolerance alone to resolve it.


By: Jedediah Purdy, The New Yorker, June 11, 2015

June 13, 2015 Posted by | GOP, Marriage Equality, North Carolina | , , , , , , , , | Leave a comment

“A Frightening Step Backwards”: What “Conservatives Gone Wild” Looks Like In North Carolina

Guest host Ezra Klein noted on the show last night that some key legislative fights were “down to the wire” in North Carolina, as the state legislative session neared its adjournment. After the show aired, there were some important developments, so let’s take a moment to recap — and explain why this matters in the larger context.

First up are the most sweeping voter-suppression efforts seen anywhere in the United States in generations, which, much to the disappointment of voting-rights advocates, garnered the support of literally every member of the Republican majority in both chambers, who voted to keep more North Carolinians from being able to participate in their own democracy.

As lawmakers rushed to adjourn for the summer, lawmakers gave final approval Thursday to drastic changes in how voting will be conducted in future elections in North Carolina.

After more than two-and-a-half hours of debate, the House voted 73-41 on party lines late Thursday to agree with dozens of changes made by Senate Republicans to a bill that originally simply required voters to show photo identification at the polls. It was approved by the Senate earlier Thursday, 33-14, also on party lines.

As we’ve discussed, the proposal is remarkable in its scope, including a needlessly discriminatory voter-ID provision, new limits on early voting, blocks on voter-registration drive, restrictions on extended voting times to ease long lines, an end to same-day registration, new efforts to discourage youth voting, and expanded opportunities for “vigilante poll-watchers to challenge eligible voters.”

How many North Carolina Republican lawmakers supported these suppression tactics for no apparent reason? Each and every one of them.

State Rep. Mickey Michaux (D-N.C.), who fought for voting rights in the 1960s, told the GOP majority, “I want you to understand what this bill means to people. We have fought for, died for and struggled for our right to vote. You can take these 57 pages of abomination and confine them to the streets of hell for all eternity.”

And then, of course, there are the new limits on reproductive rights.

Late last night, they were approved, too.

The state Senate has given final legislative approval to a bill that imposes new regulations and restrictions on abortion providers.

Senators voted 32-13 Thursday evening, sending the measure to Gov. Pat McCrory, a Republican who has said he will sign the measure as it was passed.

For his part, the Republican governor, just six months into his first term, promised voters as a candidate last year that he would oppose any new restrictions on women’s reproductive rights in the state. Now, however, McCrory is prepared to sign this bill anyway — his public vow apparently came with fine print that voters might have missed

The result is a new regulatory measure, known as a TRAP law, that will likely close 15 of the 16 clinics where abortion services are provided.

Let’s also not lose sight of the context for this radicalism. For the first time since the Reconstruction era, Republicans control the state House, state Senate, and governor’s office, and as we recently talked about, GOP officials had an opportunity to govern modestly and responsibly, making incremental changes with an eye on the political mainstream.

What the state has instead seen is what Rachel described as “conservatives gone wild.” North Carolina Republicans gutted unemployment benefits despite a weak economy; they imposed the most sweeping voting restrictions anywhere in the United States; they cut funding for struggling public schools; they blocked Medicaid expansion despite the toll it will take on the state hospitals and poor families, they repealed the Racial Justice Act; and then they closed nearly every women’s health clinic in the state.

And really, that’s just a partial list.

It’s a microcosm of a national political crisis of sorts — North Carolina, a competitive state perceived as a burgeoning powerhouse with some of the nation’s finest universities, became frustrated with a struggling economy, so it took a chance on Republican rule. The consequences of this gamble are proving to be a frightening step backward for the state.


By: Steve Benen, The Maddow Blog, July 26, 2013

July 27, 2013 Posted by | Civil Rights, Voting Rights | , , , , , , , | Leave a comment


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