Thursday, December 10, 2015

Kali Worship: Why An Immigration Ban Based On Religious Identity Can Be Constitutional

I love to include supporting links and such with my posts. They provide readers with much needed support for my arguments and claims. So I thought I'd find out just which politicians and pundits had slammed as un-American and un-constitutional Donald Trump's proposed temporary ban on migration into the USA of Muslims.


If the response had been scripted by the Jeb Bush (failing) campaign for president, it could not have more breadth and depth than, in fact, it has:
Each of these pundits and politicians is angling for the spotlight. Some for their own presidential aspirations. Others to secure the ongoing support of their own base. Some, modeled after Charles Schumer, just cannot believe that any voice sounds better on any topic than their own. And to a man and to a woman, they claim Trump's proposal is "un American, unconstitutional."

None of them explain why it was pro American and completely constitutional when Jimmy Carter responded to Islamic Revolutionaries seizing US Embassy in Tehran and taking Americans hostage by barring entry to the US by Iranians and expelling Iranian students in the US on study visas.

Sure, we remember his malaise speech, his employing prepubescent Amy Carter as a nuclear deterrence consultant, his brother Billy and Billy's beer (and his cushy Libyan consultancy fees), and his failed Iranian hostage rescue efforts.

But how short the memory comes when it is time to ask, "How in Sam Heck can Trump think it is a good idea, a decent idea, an American idea, to suspend admission of individuals to the USA based on their religious affiliation."

Well, let's pull that question apart in more ways than one.

First, let's remove the skin of offense by pretending we are talking about some other religion than Islam.

Take Kali worship, for example:

Suppose that you're a Customs officer, at Kennedy International Airport.

"Good afternoon, passport please."

The Indian gentleman passes his passport over to you.

You examine the passport. It shows that Khudu Karmakar has a tourist visa and that his passport does not expire for two years.

"Mr. Karmakar, the purpose of your visit to the USA?"

Mr. Karmakar replies, "I have studied America for years. I have greatly admired the high esteem with which your Nation treasures personal liberties. I am here to study and participate in these liberties, to practice them myself, and then to carry word of them back to my home country, where, unfortunately, religious liberty, in particular, is not nearly so highly prized."

You consider his admiring words and his obvious appreciation of the Nation. Truthfully, it warms the cockles of your heart. Obviously, this admission will be an easy one.

"I think we can make this rather quick, Mr. Karmakar. Do you have anything to declare?"

Mr. Karmakar calmly replies, "no sir, only my personal belongings, including my notebooks, religious books, and sacerdotal objects."

Your perfunctory search concluded, you welcome Mr. Karmakar and send him on his way.

You didn't see the ceremonial knife, the incense, the razor, and the River Ganges holy water.

A week later, as you're enjoying a rare Saturday morning at home, you are surprised, well, really, shocked to read that an Indian national had been arrested for the ritual murder of a young American teen, Sue Doe.

Sue's body had been found in front of what, for all intents and purposes, appeared to be a makeshift shrine to the Indian goddess, Kali. Sue had evidently been drugged with rohypnol. Her body had been shaved of all hair. It showed evidence of being freshly washed, although the water did not appear to be tap drawn. And she had been killed in a manner highly suggestive of a ritual killing.

Now, at this point in the narrative, let's step outside your nightmare. You are fairly certain that what you did, your review of Karmakar's passport, your perfunctory inspection of his person and belongings, may have contributed to his admission to the USA, and the subsequent slaughter of Sue Doe.

You flip on the television. Damn Fox News, always being sensationalists, particularly the morning show, in this case, Fox and Friends Weekend. They are interviewing an Indian Studies professor, Doralee Schmirtz. Professor Schmirtz is way too chatty and catty for your tastes. But she says something that drills down into your brain.

"Although the police are continuing their investigation, the description of the scene reported in the news, along with items seized from Mr. Karmakar, have me convinced that this killing was a religiously inspired, ritual sacrifice to the Indian goddess, Kali."

The morning hosts prefer a much lighter fare, to be truthful. It looks and sounds like they'd like to find a way to discover that there was some joke in all of what Professor Schmirtz has just told them, particularly the uncomfortable looking Tucker Carlson.

He interjects. "Just a second, Professor, you make this sound like something out of Indiana Jones and the Temple of Doom!"

The professor, ready for the comparison replies, "fictional accounts like the Indiana Jones movie do lend a certain theatrical air to such things. The fact remains, however, that Kali worship, which is generally suppressed under Indian law and disapproved broadly among the Indian people, has a long and rich history there. That movie undoubtedly exagerated the basic story. The killing of poor Ms. Doe, however, reflects the much more common reality of how Kali devotees seek to acquire spiritual blessings and powers."

Off camera, Carlson's co-host is signalling to the floor director. She'd clearly like to move on.

The professor is not quite so aware, however, and she makes a further point that shakes you up.

"I have it on authority -- the person spoke to me on condition of anonymity -- that this deranged madman entered the USA just a week or so ago, and that, when he entered the country, he brought with him this knife that he used, incense, and a small container of water from India's most sacred river, the Ganges. Forensic scientists are currently testing materials at the crime scene to determine whether Ms. Doe's body was subjected to a ritual washing after being shaved. If it was, and if they can match the materials to the water of the River Ganges, then it seems an undeniable fact that Mr. Karmakar came to the USA intent on committing this horrible atrocity."

At this point, you're feeling fairly sick to your stomach. You're also contemplating a call to your union steward, and pursuit of legal representation in the investigation of your conduct, an investigation likely to follow, and, frankly, not likely to go well.

Let's step out of the narrative again.

The Republican debate is the scene. This debate features all the leading candidates, including Trump, Rubio, Cruz, Carson, Christie, and Bush.

Based on polling, the debate host, MSSYNBC has invited the second tier Republican candidates each to pose one question to a candidate of their choice.

Lindsey Graham: "My question is for Donald Trump. Mr. Trump, you've already shown how un-American you are by saying that we should reconsider the admission of Muslim immigrants to the USA. I have been told that, based on the insane acts of a madman in New York City, you are now calling for a hold on the admission of Kali worshipers to the USA. Have you ever even read the Bill of Rights? Do you have any respect at all for freedom of religion?"

Trump: "Senator Graham, I want to start by saying I appreciated each of the lovely thank you cards you've sent for my donations to your senatorial campaigns over the years. Obviously, I don't expect I'll get any more in the future, because I doubt I could find a good reason to support your continuation in the Senate."

"What you find impossible to believe, difficult to understand, and unmanageable to accomplish has been done by this nation before, to protect its people and its territorial integrity. Even Jimmy Carter excluded Iranians after the radical Muslims overthrew the government there and took Americans hostage. He even threw Iranian students out of the country!"

"The tragic case of Sue Doe should never have happened. It isn't hard to figure out what religions are the source of actual, real, threats of danger to the lives of others. And all I'm calling for here is to take others at their word when they say they mean us harm, and to use their own words and intentions as the basis of excluding them from something they DO NOT HAVE THE RIGHT TO IN ANY EVENT:  entry to our nation!"

The crowd rises to its feet, stomping, shouting, cheering. The noise forces MSSYNBC to cut away to a commercial. In pubs, bars, living rooms, and other locations around the country, Americans join in, "Yes, damn it, yes!"

The start of the Fourth Reich?

Only if it is Nazism to seek to preserve and protect your life, your family, your neighbor, your community from the murderous intentions of others.

With any luck, Mr. Customs Officer, the video loop recording of your station will have recorded over your haphazard disregard for the safety of Americans, and no one will be the wiser to your small part in the death of Sue Doe.

The question remains, why media elites, government officials, and the generally uninformed illiterati make folks who like Trump's call for a pause on immigration the 21st century equivalent of Hitler's Holocaust, rather than of Jimmy Carter's apparently sensible ban on travel to America by Iranians.

In case you do not recognize Mr. Karmakar, his story was told in a 2002 issue of Time Magazine, which related his grisly murder-sacrifice of a young girl as a form of ritual offering to Kali. You can read the story here.

Now, let's consider a second point, namely the supposed unconstitutionality of such a temporary suspension of admissions to the United States by individuals identified by their religious affiliation.

To fully grasp why it is patently wrong to charge that such a policy would be unconstitutional, you need to slip on your gayest apparel and simply think back to matters domestic and judicial over the summer, here in America.

As a result of the ongoing press for the legalization of marriage between persons of the same sex, we have all had some exposure -- at the most general level -- to something called the Religious Freedom Restoration Act. That statute created a right to sue the federal government for restricting religious freedoms -- as exemplified by religiously motivated actions.

RFRA, as the law is called, does not prohibit every action of the government that interferes with religious freedom. Government actions impacting religious freedom regularly survive scrutiny under the act. Some actions, courts find, are not substantially interfered with. Some prohibitions, courts find, are animated by a compelling government interest and accomplished by the most narrowly drawn practical policies.

As a general rule, most actions not specifically targeted by a religious characterizations can be subjected to the government's reasonable regulation. This reality has led to bakers of cakes being told that their religion does not justify discriminating against a same sex couple that requested that they bake a wedding cake for their gay wedding. This reality has led to similar impositions on the religious preferences and beliefs of florists, wedding planners, renters of reception facilities, etc.

The power of the State in all those cases has been directly dropped on religious liberty in the name of some larger (or perceived to be larger) principle. Many who today are condemning Trump, whose use of the Muslim identity as a screen has raised such consternation, oddly lacked a voice when bakers, florists, and owners of banquet halls got shat on by various government agencies.

Here's your "tough to swallow" truth of the day:

Protection of life, liberty, and property counts among the highest orders of government duty. It can, without doubt, be expressed as an interest that is compelling in nature. At that point, we are one third of the way to the ability of the government to successfully fend off a religious liberties challenge to such a policy.

Assuming that Trump's proposal took an appropriately narrow form, such as a ban on travel for a limited period, or subject to a level of screening not currently being used, or only for travelers from stated nations, I have no doubt that such a policy could be described as having been drawn to accomplish its objectives by the least restrictive means. Now we are two thirds of the way to a successful defense of such a policy.

The fact is, though, that the last third of the trip comes first, and it is that third of the trip that would DOOM a CHALLENGE by an excluded immigrant. For a government policy or practice to be successfully challenged, the claimant would have to show that the injury was to a religiously compelled or motivated practice.

The category of folks that can assert that their religion compels them to migrate into America, as a foreigner, is, I harbor the suspicion, quite small. America is not Mecca, nor Rome, nor is it split by the sacred River Ganges, I suppose the adherents of the Church of Jesus Christ of Latter Day Saints -- travelling to Salt Lake City for a celestial marriage ceremony -- might be among the very few that could successfully mount such a challenge.

And, truth is, even asserting such a religiously motivated action has been impacted by such a policy, that is when the two other questions -- compelling government interest and least restrictive means -- come into play.

No, such a temporary policy is not so easily relegated to the ash heaps of unconstitutionality, and that is a thankful thing -- whether we are talking about the real dangers of radicalized Islamic extremists infiltrating among refugees, or the imagined danger of a Kali worshiper coming to America to perform a human sacrifice.