Monday, July 27, 2015

Is the Sky Falling in America? Discerning the Difference Between Acorns and Asteroids

Some of us, as children, learned the story of Chicken Little. You may recall it. An acorn falls on Chicken Little. She, misinterpreting events, becomes concerned that the sky is falling. Doom impending, she begins to spread the word and the panic.

"The sky is falling, the sky is falling!" As she panics, and spreads the word, she is joined by a menagerie of other animals. Groupthink demands that the message of DOOM must be brought to the king. As the menagerie proceeds toward the castle, they meet a fox, who, on pretense of helping them make their way to the king, leads them into his den. None of the menagerie ever emerges again.

A ghastly tale, we learn from it, if we are good little groupthinkers, not to give into a panic induced by uninformed, anecdotal conclusions. The trick, of course, is to distinguish between an acorn and an asteroid.

Cultural Asteroids Do Strike From Time to Time: Just Ask the Jews

As a very young man, I discovered the horror of the Holocaust. I learned how a thing that started out as a kind of responsibility-shifting paranoid fear of Jews, grew over the course of a century or so, into a machine that slaughtered Jews, Gypsies, Poles, the mentally handicapped, the physically disabled. If, in the mid-1800s, as Prussian papers and journals carried stories about how the economy of the Nation was endangered by Jews, and a good Jewish "Chicken Little" had stood up and said, in yeshiva or a synagogue, that the current slandering would become the future holocaust, how likely would it have been to be viewed as anything other than "Chicken Little"-ing?

In the 1970s, as abortion spread its ugly self across our Nation, transmogrifying from an ugly, back alley act of depression, despair and self-loathing to a sacred rite of the Democratic Party, certain voices warned that legalized abortion was a gaping maw that would not be sated. Voices warned that disrespecting life in its nascency would culminate in a generalized disrespect for life. That such disrespect would allow a growing acceptance of infanticide, assisted suicide, and euthanasia. Liberal and progressive critics, of course, "Chicken Little"-d those voices, decrying the possible connections and doomed future of which they warned.

In the aftermath of the Supreme Court's same sex marriage decision -- Obergefell v. Hodges -- some are celebrating, others are mourning. Still, others are warning about the potential fallouts of the Court's decision. Because I don't think that Obergefell is that last shoe to drop, I have posted an action sheet on my blog. That list provides a plan of action for Congress. It also portends the kinds of things that may yet grow out of the Supreme Court's mischief with the Constitution.

What kinds of fall-out might come from the decision finding a constitutional right to same-sex marriage?

First, the category of individuals to whom special, elevated levels of protection are provided might expand to include groups identified by their sexual orientation, or their self-identification by gender. The Constitution expressly prohibits certain kinds of discrimination based on race or national origin. Federal laws (and some States' laws) have been drawn to expand those categories of protection beyond race and national origin to include religious identity, gender, and ethnicity.

Second, if the Fourteenth Amendment bars States from denying individuals of the same sex from marrying, it doesn't take "panic" to predict that the Obama administration would
  • restrict faith based organizations that provide government-funded assistance to the public from:
    • requiring that their employees conform their lifestyles and choices in accord with the teachings of their faith
    • communicating those that participate in such programs about sexuality, gender, and sexual orientation
  • require federal contractors to provide benefits to same sex married couples on the same basis as provided to opposite sex married couples regardless of the religious faith of the contractors.
Third, though it may seem a more distant possibility, the course of such things in England, in Canada, and in Northwestern Europe, shows that it will not be sufficient, ultimately, to change behaviors, but eventually, there will be pressure to silence voices that reject the Court's Obergefell decision, that teach that, even without regard to an inborn orientation toward the same gender in the matter of human sexuality, we answer to the Creator, who designed us to join in opposite sex, perpetual marital relationships.

Not An Acorn, Nor an Asteroid: A Meteorite Shower

News in my inbox tells me that the fallout is underway, and no, it isn't an acorn, it's a meteor storm and some of the meteors are actually hitting.

According to Liberty Counsel,  the Commonwealth of Kentucky Justice Cabinet's Department of Juvenile Justice  has decided to exclude a pastor from a volunteer counseling program, based on the pastor's refusal to ascribe to a set of principles adopted by the Department of Juvenile Justice regarding sexuality. That decision came in a letter to the pastor and his family from the Commonwealth. It stated:
Please be advised that your participation as one of our Religious Services volunteers must conclude. We sincerely appreciate your years of servioe and dedication to the youth served by this facility. 
However, due to your decision, based on your religious convictions, that you cannot comply with the requirements outlined in DJJ Policy 912, Section IV, Paragraph H, regarding the treatment of LGBTQI youth, I must terminate your involvement as a religious volunteer serving the youth in this facility per DJJ Policy 112, Section IV, Paragraph H, (8).
All volunteers must agree to comply with the policies and procedures of the Department of Juvenile Justice and Warren Regional Juvenile Detention Center in order to become volunteers per DJJ Policy 112, Section IV, Paragraph E, (2).
You can read a letter from the attorneys representing the pastor, as well as the letter from the Commonwealth of Kentucky to the pastor here.

The dismissal carries into effect a policy adopted by the Department of Juvenile Justice in 2014. In pertinent part, that policy says:
DJJ staff, volunteers, interns, and contractors, in the course of their work, shall not refer to juveniles by using derogatory language in a manner that conveys bias towards or hatred of the LGBTQI community. DJJ staff, volunteers, interns, and contractors shall not imply or tell LGBTQI juveniles that they are abnormal, deviant, sinful, or that they can or should change their sexual orientation or gender identity. 

If We Can Plan to Protect the Earth from Asteroids, Can We Protect Religious Liberties from the Impact of Obergefell?

Two movies from 1998, Deep Impact and Armageddon, portray efforts to protect the world and its occupants from the extinction level threat of asteroids and comets. Though fictional, they reflect a reality that NASA and other agencies around the globe are tracking space objects for their potential for harmful impact on the Earth.

If we can plan for, and, we hope, avert such a disaster, is there some reason why we cannot avert the harms of incoming missiles like the discriminatory policy of the Commonwealth of Kentucky's Department of Juvenile Justice?

Yes, we can.

Liberty Counsel's letter shows one of the ways to begin that process of asserting and defending these constitutional rights as a shield against federal, State and local interference. The constitutional problems with Kentucky's policy are manifold.

Liberty Counsel correctly notes in their letter three sources of federal constitutional harm:
  • First, the Department of Juvenile Justice is now enforcing its new orthodoxy, by which the Department has concluded that points of view that vary from that of the Department regarding homosexuality, gender identity, and sexuality are heretical and warrant banishment. 
  • Second, the Department's decision embodies the preference for one viewpoint regarding questions related to homosexuality, gender identity, and sexuality, and takes the position that viewpoints different from its own may be suppressed. 
  • Third, inquiry into the content of expression is, itself, a constitutional problem in the absence of compelling government interests and the crafting of narrowly drawn regulations.  
[These considerations seem technical and certainly require more words to communicate than the simple prohibition: "Congress shall make no law ...." I apologize for the seeming complexity. These standards are derived from long-standing decisions of the Supreme Court showing how it interprets and applies the First Amendment to various circumstances.]

Liberty Counsel also correctly notes that the policy enforced by the Commonwealth violates the Kentucky Constitution, which, like the federal one, protects the right to freedom of religion and freedom of speech.

Liberty Counsel has given the Commonwealth of Kentucky to the end of the month to retract its decision. It remains to be seen whether the Commonwealth will do so. If they do not do so, I imagine that litigation will follow shortly after that. The role of the Commonwealth in guiding spiritual content of communications between pastors and those they counsel is extremely limited. If the Commonwealth refuses to comport itself with the requirements of the federal and Commonwealth Constitutions, and does so in the name of isolating youths from any idea or message contrary to their current, perceived, or actual sexual orientation, it does so at its constitutional peril.

The dispute that Liberty Counsel has brought to light is just one such controversy.

Every August, I look forward to the start of the Perseid Meteor shower, when the earth passes through the debris trail of Comet Swift-Tuttle. We know that the Perseids will be back because prior experience tells us how to calculate the point in time when we will pass through the debris field again.

In the same way, we can look out over the cultural plain and predict that Kentucky's actions will not stand alone. Three States and the District of Columbia have passed laws prohibiting so-called "conversion therapy," and an additional 15 or so States have considered (or are considering) such bans this year in State legislatures. As the cultural struggle continues, it is the nature of such things that additional attacks on those who espouse traditional, faith-born views regarding sexuality will take place. So, it is a meteor storm that is coming.