July 6, 2014
Lawyers for Guantanamo detainees cite Hobby Lobby ruling in motion for communal prayers

File this one under “turnabout’s fair play:”

Attorneys representing two detainees at the Guantanamo Bay detention facility have filed motions, citing the Supreme Court’s  Hobby Lobby decision, asking a U.S. court to allow their clients to take part in communal prayers during the holy month of Ramadan, according to Al Jazeera English.

According to the attorneys, the detainees’ rights are protected under the Religious Freedom Restoration Act (RFRA) cited by the Supreme Court in its recent decision.

The motions were filed on behalf of Emad Hassan of Yemen and Ahmed Rabbani of Pakistan, stating prison officials “prevent them from praying communally during Ramadan.”

During Ramadan, Muslims fast every day from sunrise to sunset and are expected to perform extra prayers, called tarawih, “in which [Muslims] recite one-thirtieth of the Quran in consecutive segments throughout the month.”

Prison authorities currently ban the practice.

Noting that the courts have previously stated that detainees do not possess “religious free exercise rights” because they are not “persons within the scope of the RFRA,” the attorneys state that the Hobby Lobby ruling compels authorities to adapt their policies in the name of religious freedom.

“Hobby Lobby makes clear that all persons – human and corporate, citizen and foreigner, resident and alien – enjoy the special religious free exercise protections of the RFRA,” the filing states.

“Why are the authorities at Guantanamo Bay seeking to punish detainees for hunger striking by curtailing their right to pray? If, under our law, Hobby Lobby is a ‘person’ with a right to religious freedom, surely Gitmo detainees are people too,” said Cori Crider, an attorney for the detainees.

U.S. Army Lt. Col. Myles B. Caggins III, a spokesman for the Department of Defense, told Al Jazeera the “Defense Department is aware of the filing,” and that the “government will respond through the legal system.”

Caggins added, “We are committed to religious freedoms and practices for the detainees, keeping in mind the overall goal of security and safety for detainees and staff.”

The Hobby Lobby decision, once described as ‘narrow,’ is already being used  by various religious groups seeking changes to laws and religious exemptions from federal laws.

June 30, 2014
Hobby Lobby Decision: Observations

Brief Primer On The RFRA & Strict Scrutiny

The Supreme Court has ruled that Hobby Lobby and similarly-situated employers are not subject to the birth control coverage mandate because that mandate “substantially burdens” the free exercise of their religious beliefs under the Religious Freedom Restoration Act of 1993.  That law provides that any law which “substantially burdens” the practice of religion must serve a “compelling state interest” and also be the “least restrictive means” of achieving that interest.  

This two-tiered test is known as “Strict Scrutiny.”  It is a standard of judicial review long used by federal courts (and state courts reviewing federal constitutional questions) to adjudicate cases involving certain categories of constitutional rights.  Congress imported this standard of judicial review into the RFRA to force federal courts to apply Strict Scrutiny to the Free Exercise Clause of the First Amendment. In doing so, they reinstated the holding of a case called Sherbert v. Verner into federal law.

The case largely turned on two questions: (a) does the birth control mandate actually “substantially burden” the practice of religion for employers like Hobby Lobby, and (b) assuming that public health is a compelling state interest (according to the relevant case law, it is), is the mandate the least restrictive means of achieving that interest?

Alito’s Confusing Analysis Of The ACA’s Self-Certification Exception

Justice Alito wrote the opinion for the court.  According to the opinion, the birth control mandate violated the RFRA because it was not the least restrictive means of achieving the compelling state interest of protecting women’s health.  As evidence of this, the Court cited coverage exceptions in the law:

HHS…has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.  As we explained above, HHS has already established an accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services.  See 45 CFR §§147.131(b)(4), (c)(1);26 CFR §§54.9815–2713A(a)(4), (b).  If the organization makes such a certification, the organization’s insurance issur or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements … on the eligible organization, the group health plan, or plan participants or beneficiaries.”

The problem here is that Alito basically explained here why the law actually meets Strict Scrutiny.  Alito points to the self-certification exception as an example of a less restrictive means the Government could use to achieve the compelling state interest in this case.  That exception is already part of federal law.  If the exception is already part of the existing law, than the least-restrictive means Alito is pointing at already exists. It’s logically absurd to state that the self-certification exception is an example of less restrictive means the Government could use to satisfy the RFRA’s Strict Scrutiny requirement when the exception is already part of existing law.  The Government has already done what Alito is suggesting it should do to satisfy Strict Scrutiny.

Furthermore, even if this were not the case, the existence of an exception doesn’t actually prove anything in terms of whether the mandate is the least restrictive means of achieving the compelling state interest at issue here.  If the Government has the constitutional power to regulate something, it isn’t obligated to exercise that power to its fullest extent.  If Congress has the power to do something, it is free to exercise that power to a lesser degree if it wants to.  This could potentially create an Equal Protection problem, but that would introduce a much different legal analysis of the issues presented here.

The Single Payer Sleeper

Secular opponents of the contraception mandate who opposed it on “limited government” grounds may wind up eating this case in the long run.  Here is a quote from Part V(B) of Alito’s opinion:

The least-restrictive-means standard is exceptionally
demanding, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases…

The most straightforward way of [covering birth control] would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.

In other words, Alito’s opinion basically states that putting the Government in charge of paying the cost of services that employers refuse to cover is the easiest way to avoid First Amendment problems posed by the mandate.  According to Alito’s reasoning, the best way for the Government to meet the RFRA’s Strict Scrutiny requirement is for the Government to pay the cost of providing health insurance coverage, rather than forcing employers to cover their employees.

Single Payer advocates have been screaming about this for years.  Removing the myriad burdens of providing health insurance from employers (which includes the compliance costs as employers navigate state and federal insurance regulations) has always been one of the arguments in favor of switching to a publicly-financed health insurance system.  Alito’s opinion provides another argument in favor of that position.  The fact that many folks are touting this case as a win for limited government without any mention of this part of the opinion is evidence of the fact that nobody except lawyers and law students read judicial opinions.  It’s also an example of why  journalists and news sites really need to start linking to the judicial opinions they report on, so that maybe more of the citizenry will start doing so.

June 29, 2014

"I’ve been a deep believer my whole life. 18 years as a Southern Baptist. More than 40 years as a mainline Protestant. I’m an ordained pastor. But it’s just stopped making sense to me. You see people doing terrible things in the name of religion, and you think: ‘Those people believe just as strongly as I do. They’re just as convinced as I am.’ And it just doesn’t make sense anymore. It doesn’t make sense to believe in a God that dabbles in people’s lives. If a plane crashes, and one person survives, everyone thanks God. They say: ‘God had a purpose for that person. God saved her for a reason!’ Do we not realize how cruel that is? Do we not realize how cruel it is to say that if God had a purpose for that person, he also had a purpose in killing everyone else on that plane? And a purpose in starving millions of children? A purpose in slavery and genocide? For every time you say that there’s a purpose behind one person’s success, you invalidate billions of people. You say there is a purpose to their suffering. And that’s just cruel."

LTMC: The problem of evil takes down another true believer.


"I’ve been a deep believer my whole life. 18 years as a Southern Baptist. More than 40 years as a mainline Protestant. I’m an ordained pastor. But it’s just stopped making sense to me. You see people doing terrible things in the name of religion, and you think: ‘Those people believe just as strongly as I do. They’re just as convinced as I am.’ And it just doesn’t make sense anymore. It doesn’t make sense to believe in a God that dabbles in people’s lives. If a plane crashes, and one person survives, everyone thanks God. They say: ‘God had a purpose for that person. God saved her for a reason!’ Do we not realize how cruel that is? Do we not realize how cruel it is to say that if God had a purpose for that person, he also had a purpose in killing everyone else on that plane? And a purpose in starving millions of children? A purpose in slavery and genocide? For every time you say that there’s a purpose behind one person’s success, you invalidate billions of people. You say there is a purpose to their suffering. And that’s just cruel."

LTMC: The problem of evil takes down another true believer.

2:37pm  |   URL: http://tmblr.co/ZMMjnx1K4c-so
Filed under: religion 
May 18, 2014
Jesus On The Poor




[snipped from original]

Where’s the part when he says “And all must be threatened with violence to give to a bureaucracy that inefficiently serves the poor in a way that fosters complacency (and is part of an entity that actively hurts the poor), lest some not give voluntarily.”

LTMC: The question of whether the State is the legitimate provider of charitable relief to the poor is really a detour from the point I was trying to make.  We face an additional obstacle in the fact that all religious texts are inherently flexible.  People tend to see what they want to see in them, and I imagine we could argue for hours over what the proper interpretation of those passages are.  

Nonetheless, religion remains highly influential in many peoples’ lives, so it’s still a conversation worth having.  With that being said, I believe the answer to your question lies in Matthew 22:15-22 and Romans 13:1:

Matthew 22:15-22

"Then the Pharisees went out and laid plans to trap him in his words. 16 They sent their disciples to him along with the Herodians. “Teacher,” they said, we know you are a man of integrity and that you teach the way of God in accordance with the truth. You aren’t swayed by men, because you pay no attention to who they are. 17 Tell us then, what is your opinion? Is it right to pay taxes to Caesar or not?” 18 But Jesus, knowing their evil intent, said, “You hypocrites, why are you trying to trap me? 19 Show me the coin used for paying the tax.” They brought him a denarius, 20 and he asked them, “Whose portrait is this? And whose inscription?” 21 “Caesar’s,” they replied. Then he said to them, “Give to Caesar what is Caesar’s, and to God what is God’s.” 22 When they heard this, they were amazed. So they left him and went away.”

Romans 13:1

Let every person be in subjection to the governing authorities. For there is no authority except from God and those which exist are established by God.”:

Right off the bat ,I’m sure that there are devout Christian Libertarians and/or Conservatives who already have an explanation for what these passages “really” mean.  I imagine it would include the idea that the first passage takes place in the context of a tax revolt in Judea against Rome, or that Jesus was accused at his trial before Pontius Pilate of tax resistance against Caesar (a claim Pilate found to be false).  Tolstoy had his own doubts about the first passage.  American Quakers believed that the first passage was an exhortation to pay “general” taxes, but that any portion of taxes which went to war activities must be opposed.  Like I said, religion is flexible, and everybody sees what they want to see when reading the Good Book of their chosen faith.

In my view, the photo and adjoining Bible verses represent a rejoinder to the Randian vision of self-dependence that deems charity to be a moral evil because it per se breeds a culture of dependency regardless of whether it is done through voluntary contributions or state-run programs.  This logic applies to a private citizen who is vacillating over whether to give a homeless man a dollar, as well as to the recipient of state-sponsored charitable relief.  The question of whether that recipient deserves help remains an issue in both cases, though perhaps for different reasons.

We can obviously have a conversation about whether Government programs are the most effective way to provide for the poor (I happen to think that Government programs do not foster complacency any more than theoretical private charities in a stateless society would—but that, again, is another conversation).  But in both cases, the thrust of the conversation would still be how, and not whether.  I want the answer to the second question to be settled ground.

Put simply: do you think that giving systemic charitable relief to the poor  necessarily breeds a culture of dependency?  If your answer is “no,” then we don’t really have a fundamental disagreement on the meaning of the original passages (perhaps we disagree on the means, but not the ends).  If your answer is “yes,” then we disagree on both the means and the ends.  

At the end of the day, regardless of what political system we live in, I want people who walk by a homeless person to give them the benefit of the doubt rather than assuming they don’t deserve charitable relief—private or otherwise.  If a smattering of quotes from the Bible accomplish that, so much the better.  The conversation about whether the State can legitimately provide that charitable relief is a different conversation.  Related, but different.

May 18, 2014
Jesus On The Poor

Deuteronomy 15:11

"For there will never cease to be poor in the land. Therefore I command you, ‘You shall open wide your hand to your brother, to the needy and to the poor, in your land.’"

Luke 14:13

"But when you give a feast, invite the poor, the crippled, the lame, the blind,"

Proverbs 19:17

"Whoever is generous to the poor lends to the Lord, and he will repay him for his deed."

Matthew 25:40

"And the King will answer them, ‘Truly, I say to you, as you did it to one of the least of these my brothers, you did it to me.’"

Mark 10:21

"And Jesus, looking at him, loved him, and said to him, “You lack one thing: go, sell all that you have and give to the poor, and you will have treasure in heaven; and come, follow me.”"

Matthew 25:34-36 

Then the king will say to those at his right hand, “Come, you that are blessed by my Father, inherit the kingdom prepared for you from the foundation of the world; for I was hungry and you gave me food, I was thirsty and you gave me something to drink, I was a stranger and you welcomed me, I was naked and you gave me clothing, I was sick and you took care of me, I was in prison and you visited me.”

And so on.

12:25pm  |   URL: http://tmblr.co/ZMMjnx1GD3d-y
Filed under: religion jesus 
April 28, 2014
"We baptized the world into this new creation of unending and indefinite war, where our military violence has near-unfettered permission to strike with missiles and drones.

And it is a new creation that lives on.

We baptized ourselves, too.

And we died to the old self — the one that at least appeared to value due process, international justice, and respect for human dignity. And in the process, we became new creations that valued security at all costs, even our own humanity."

David Henson on how — in one, sad sense — Sarah Palin is actually right. (via priceofliberty)

We are still baptizing the world with American violence.”

(via priceofliberty)

March 26, 2014
"In his book Broken Words: The Abuse of Science and Faith in American Politics, Jonathan Dudley notes that most evangelicals held far more liberal views [on abortion in the 1960’s]. “God does not regard the fetus as a soul no matter how far gestation has progressed,” wrote professor Bruce Waltke of Dallas Theological Seminary in a 1968 issue of Christianity Today on contraception and abortion, edited by Harold Lindsell, a then-famous champion of biblical “inerrancy.” His argument rested on the Hebrew Bible, “[A]ccording to Exodus 21:22–24, the destruction of the fetus is not a capital offense. … Clearly, then, in contrast to the mother, the fetus is not reckoned as a soul.”"

Jamelle Bouie

See Also: Shmuley Boteach - Is Abortion In Christianity Based On A Mistranslation Of The Bible?

February 8, 2014
Camel Bones and Jerusalem: Archeology Shows Bible Written Late, Full of Errors: Juan Cole

Apropos of the Nye v. Ham Creationism debate, we have more bad news for Biblical Literalism:

A new paper by Israeli archeologists Lidar Sapir-Hen and Erez Ben-Yosef, [pdf] posted at the University of Tel Aviv web site, is bad news for biblical literalists and far right wing Israeli nationalists who use the Bible for support.

The Hebrew Bible’s oldest chapters– Genesis, Exodus, and even Judges purport to discuss events thousands of years ago. The custom in Western biblical scholarship is to date Abraham to e.g. 2000 B.C. This dating is based on nothing more than counting generations (“begats”) backward and assigning an arbitrary number of years to each generation. In fact, Genesis is replete with myths and assertions of people living hundreds of years, and was only historicized in this way by 19th century positivists.

But here is proof that the Bible was written late and projects later developments into the distant past: it alleges that people had domesticated camels four millennia ago in what is now Israel. And that assertion, folks, is simply not true. That is the finding of Sapir-Hen and Ben-Yosef.

E.g. Genesis 24: 64 says, “Rebekah lifted up her eyes, and when she saw Isaac she dismounted from the camel.” If this encounter happened circa 2026 BC, it was happening a thousand years before anyone was riding camels.

The archeologists’ digs near the Jordanian border find evidence of domesticated camels sort of 930-900 BC. But they don’t find that evidence in any settlements older than 930 BC. There is a pretty clear dividing line between the pre-domestic camel and post- domestic camel settlements.

Although it was likely based on previous oral tales, the Bible probably wasn’t written down in something like its present form until the Babylonian exile, 586-539 B.C. When those scribes reworked the folk tales of the Canaanites, they projected sixth-century BC realities back into the past. Thus, they had characters riding camels before they were domesticated. Riding a camel was taken for granted in 580 BC.

You might think this point is a minor one. But it demonstrates how the scribes worked. They projected recent things into the distant past.

Basically, the authors of the Bible assumed a lot of things that weren’t actually true.  They were projecting their present-day realities into the distant past (like domesticated camels), because they had little working knowledge of the period they were writing about.

Disproving the Bible-as-written doesn’t disprove the existence of God, of course.  But for my own part, it’s hard to take a book seriously as a source of moral authority when it’s riddled with these kinds of errors.  I’m sure your mileage will vary, as the old saying goes.

10:42am  |   URL: http://tmblr.co/ZMMjnx16oDhCY
Filed under: religion bible 
February 2, 2014
On Faith in a Fucked Up World


When surrounded by intellectuals, it’s hard to get too far into a discussion of faith without somebody bringing up the theodicy question. Specifically, if God is all powerful and all loving, why does he put up with all the crap in the world? (The question is usually phrased differenty, depending on the formality of the situation and the smugness of the asker.)

Over the past couple millenia, a variety of answers has been posed. (My answer in high school involved the possibility of suffering being a necessary condition for free will.) More recently, I’m finding the most accurate and most satisfying answer to be, “I don’t know.” Perhaps I could use some fast-talking lawyer-skills to persuade you I knew a thing or three. But it’s a sham. I like snooze buttons and frozen pizza. Guys like me aren’t privy to the grand secrets of the cosmos. I don’t know why things are the way they are.

But I do know that things are wrong with the world. Or, rather, I’m constitutionally incapable of believing that the way things are is the way things are supposed to be. If I could believe that there was nothing to the universe beyond an arrangement of atoms, I could probably accept that one arrangement is as good as the next. But I can’t. Maybe faith arises, in part, from the belief that the world is a broken thing and that something greater is possible.

LTMC: You’re talking about the Problem of Evil, which is, of course, an ancient question that theologists and philosophers have debated for centuries.  

I used to buy in to the “Greater Goods” argument.  But my evolution on this question occurred after I read St. Augustine’s Confessions (which everyone should read regardless of their belief in God).  Augustine notes that Time and Logic are rules of the universe, and that the Creator of the universe, if he/she/it exists, must necessarily have existed prior to Time and Logic.  A Creator that exists under these circumstances is not bound by any “rules,” because they can literally make them up as they go.  God in this state is literally nothing short of raw, limitless potential.  

It becomes trivial under these circumstances to conceive of a world in which a Timeless, Pre-Logic, Limitless God could create a universe in which suffering was not necessary to achieve greater goods.  If human beings can conceive of ways to make the world a better place under the limits of Time and Logic, surely a Timeless, Pre-Logic God of limitless potential knew how to make it so before the problem even arose.

Furthermore, assuming a benevolent God does exist, that God would be both motivated and empowered to design a world where it was not necessary to experience suffering to achieve those greater goods.  Even the question of Free Will suffers from this flaw: we can all think of forms of suffering in the world which don’t seem necessary to achieve free will, e.g. children born with a latent genetic defect that causes a formerly healthy person to suddenly succumb to a terrifying mental illness.  I’m not sure how thousands of Schizophrenia sufferers are a necessary pre-condition for me to be a free agent in the universe.

The Problem of Evil is, for me, an unsolvable problem for anyone who believes in a Tri-omni God in the classical sense (Omnipotent, Omniscient, Omnibenevolent).  Either one needs to deny one of the attributes, or deny the existence of God altogether.  The former is possible, because the Problem of Evil is not a proof against a Prime Mover or a Deist Clock-maker.  It’s entirely possible that a Celestial Being created the universe without really caring whether human beings did well in it, or whether they even existed at all.  Indeed, given the impossibly vast stretches of the cosmos, and the fact that we know that the earth is doomed and that humanity will probably not even outlast it, that seems far more likely.

1:58pm  |   URL: http://tmblr.co/ZMMjnx16Df2xG
Filed under: religion god philosophy 
January 21, 2014
The Bible and Capital Punishment


SDS asked a while ago whether I agreed the Bible laid a groundwork for capital punishment—in principle if not in practice. I do not.

Pretty much every example of capital punishment in the New Testament is negative. Jesus is crucified. John the Baptist is beheaded. “Let he who is without sin cast the first stone.”1

Then there’s the Old Testament—where things are a bit more … violent. In most of the specific cases, capital punishment is still viewed in a negative light. Cain kills Abel but is not killed himself. The books of Daniel and Ester include threats of capital punishment—but the protagonists avoid it. (David’s killing of Uriah is more about murder than punishment, so I’m not sure that counts.) Capital punishment is described as the punishment for a variety of offenses—but it’s unclear whether this is proscriptive or descriptive. There’s also the “thou shalt not kill” thing.

It’s even less clear whether those verses would be applicable in the same manner today. Did the New Testament announce new rules? Or should we apply the same rules differently when we have things like a functioning prison system. If you’re quasi-nomadic, maybe sentencing somebody to 20 years in prison isn’t really a possibility.

Without going through things verse by verse, I think it’s safe to say the following:

  1. The totality of the New Testament should make us extremely uneasy with capital punishment.
  2. Although capital punishment is described in the Old Testament, we should be mindful that there are significant distinctions betweeen ancient Israel and the contemporary United States.
  3. One of the important distinctions is that the contemporary United States is not a theocracy and claims no divine mandate.
  4. When in doubt, it’s appropriate to err on the side of not killing people.

I don’t think the argument that the Bible categorically forbids capital punishment is water tight. But I think it’s far stronger than the inverse.

  1. Except, of course, this story may be interpolation

LTMC: Then there’s that whole Matthew 7:1 nonsense…and that Exodus 23:7 business about not killing the innocent or righteous…

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