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This is a diary that's been brewing for a while, that I wasn't sure I was going to publish. I thought I'd try putting it out there.

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Apparently there's a new book out, by someone called Kristen Powers who is apparently a Fox News personality, called THE SILENCING: How the Left is Killing Free Speech. From what I gather, it's pretty standard concern-troll / proxy-martyr fare, viz., "The Left" doesn't like some of the things that people not of "the Left" occasionally say, and "the Left" then says things about that, therefore "the Left is Killing Free Speech."

There's no need to explain the difference between disliking and/or publicly objecting to things other people say, and "killing free speech." Or, at least, there shouldn't be. In any event that's not why I'm here today. I think I'm going to start writing my own book. I think I'll call it THE DUMBENING: How the Right Deliberately Confuses the Loss of Power with the Loss of "Liberty."

We've been hearing a lot lately -- if by "lately" we mean "since 20 January 2009" -- about the "loss" of "freedom" and "liberty," and the imposition of "tyranny," in the U.S., by the President and his ideological cohort (i.e., "the Left").  As Jon Stewart famously pointed out in 2009 and numerous times since then, there's a difference between "tyranny" and the mere fact that there are people serving in high public office for whom one did not vote in the most recent election (or, for that matter, the mere existence of civil laws during such time). We've heard a lot about how "regulation" and other "government"-type things like taxes and the minimum wage -- which apparently didn't exist before 2009 -- deprive Job Creators™ of their economic "freedom." Most recently, the rallying cry from the Right has been that the emergence of same-sex marriage as a civil right, and the imminent decision by the Supreme Court that the states must recognize and protect that right, constitutes a grave threat to "religious liberty," as well as free speech, free association, and a host of other "freedoms" that Americans will no longer enjoy once Adam and Steve get to tie the proverbial knot.

All these complaints have one thing in common: They have nothing to do with, and do not reflect any actual loss of, "liberty" or "freedom." They are, rather, complaints about the loss of POWER. Whether it's speech, religion or economics, the GOP's cultural color-war team is losing power, not "freedom," and either can't tell the difference or is deliberately conflating the two in order to maintain and/or restore the former.

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Something else I've been pondering about the slow, inexorable, highly entertaining death of marriage exclusivity in America.

The most coherent -- which is to say, the least incoherent -- argument for exclusivity is that this institution/concept/"definition" of marriage has been the same, static, unchanged, unvaried, unmodified, unmoved, firm, constant, immutable, steadfast, like the Rock of Gibraltar, throughout all time and across all cultures in all corners of the world, since the very beginnings of civilization many thousands of years ago. Accordingly we need to be very, very cautious about "changing" it, and wait until enough people are ready for it that it will just naturally come about on its own, by popular demand. Or not.

Now, of course, everyone knows that the Rock-of-Gibraltar argument is bunk, even Justice Antonin Scalia who pressed hard on it during oral arguments earlier this week. Yet Scalia, and Justices Kennedy and Roberts, nonetheless characterized same-sex marriage as something so new, so untested, so different from everything that everyone has ever known, thought or believed about the institution of marriage until very, very recently, that it couldn't possibly be something that America should even be considering, let alone doing, right now.

But it got me thinking: What about American exceptionalism?

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I just got done listening to the oral arguments in Obergefell v. Hodges, the Supreme Court case that is expected to decide the issue of whether same-sex couples have a constitutional right to marry (transcript here, audio here; note that it will autoplay). A couple of quick takeaways:

Justice Scalia, in questioning petitioners' counsel Mary Bonauto, played his usual role of the dumb, ordinary guy who just can't see this or understand that or figure out how you can possibly get from this to that, to the point where one had to wonder whether he's (a.) not a real jurist, or (b.) just a really great actor playing the role of the dumb, ordinary guy who never went to law school. I realize that appellate judges often do that, play dumb in order to get the attorneys to fill in the blanks for them, but this was ridiculous. Scalia and Alito both were deliberately obtuse about the history and, ahem, "definition" of marriage, and I thought Ms. Bonauto did a fair -- albeit not particularly good -- job pointing out what a crock their questions represented.

Solicitor General Verilli did a much better job, focusing on exclusion rather than irrelevant philosophical tripe about ancient traditions and definitions of words that supposedly go back "millennia" (more on that presently). Verilli even framed the inequality correctly:

[T]he law allows ... heterosexual people to enter into a marriage that's consistent with their sexual orientation, and in these states, it forbids ... gay and lesbian people from entering into a marriage that's consistent with their sexual orientation[.]
(Tr. at 33:23 - 34:3.)

...which I was pleasantly surprised and impressed by. However, neither of the advocates for the petitioners directly or explicitly framed the issue correctly, as one of equality vs. exclusivity.

Of course, the states' argument was far more entertaining. Counsel John J. Bursch, representing the respondent States, basically lost me in the first 30 seconds:

This case isn't about how to define marriage. It's about who gets to decide that question. Is it the people acting through the democratic process, or is it the Federal courts? And we're asking you to affirm every individual's fundamental liberty interest in deciding the meaning of marriage.
(Tr. at 41:10-15 (emphasis added)).

Oh, boy.

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Allright, now I'm pissed.

h/t Dartagnan: Bobby Jindal Vows To Remain A Bigoted, Hateful Jackass, Louisiana Be Damned

Referenced Jindal op-ed is here.

Full disclosure: As I've admitted before, I have a terrible blind spot on this issue, in that I have absolutely no respect, reverence or regard whatsoever for anyone's "religious" "beliefs." I could not possibly care less what anyone's "religious" "beliefs" are, and I always assume for the sake of argument that public declarations of "religious" "beliefs" are phony, cynical, self-serving and self-congratulatory. Jindal's odious op-ed is a prime example of why.

It was disappointing to see conservative leaders so hastily retreat on legislation that would simply allow for an individual or business to claim a right to free exercise of religion in a court of law.
Ugh. Here we go. Isn't this the same guy who said the GOP needs to "stop being the stupid party"?

Get this straight, shitbird: The "free exercise of religion" can NEVER and will NEVER be a standalone defense to any cause of action in any court of law in any jurisdiction in any civil case under any circumstances. Never, ever, ever.

Got that?

N
E
V
E
R
.

Not in this country. Not on my watch. No way, no how. The courts and the American people will never allow a civil defendant to walk into a court of law and essentially say to the judge, "Yes, I violated the plaintiff's legal rights. Yes, my actions caused the plaintiff to suffer economic harm. But, since I believe in [insert ancient myth/superstition here], I should be excused from liability; I should not have to compensate the plaintiff for the harm I caused."

Not. Gonna. Happen.

"Religious" "beliefs" are naught but thoughts, qua thoughts. They are neither verifiable nor falsifiable. Non-verifiable, self-reported thoughts by themselves cannot be the basis for civil liability, and cannot be the basis for an excuse from civil liability. Period. Full stop. Non-negotiable.

Personally, I don't give a rat's what you "believe." And here's a little tip for you and all the other poor, persecuted "Christians" out there whose "beliefs" are not being "tolerated," one which I'm sure will come as a great shock: "The government" doesn't care what you "believe" either. I, and "the government" (viz., the law), only care what you DO. You can go right on thinking and believing whatever you want, or whatever your imaginary friend or your favorite book of Bronze Age fairy tales tells you to believe. NO ONE CARES. If anything, you're the ones giving the rest of us a reason to care, because you're the only people in America who want to put your thoughts and "beliefs" into action to punish your fellow citizens for being who they are, and get away with it.

If you get sued, be it for discrimination or anything else, you should not need "religion" to get you out of it. If you did not violate the plaintiff's rights, and/or did not cause him any legally-cognizable harm, you can win a dismissal without invoking your precious purported so-called "beliefs." If you did, and the plaintiff can prove it, then you must compensate him for the harm you caused. It's that simple. That's the basis of civil law, and civil liability. Deal with it.

More dissection of Jindal's BS below the Orange Glyph of Liberal Intolerance.

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Ever since Indiana's grotesque so-called "Religious" so-called "Freedom" so-called "Restoration" Act was passed, and then almost immediately backtracked and "fixed" to neuter its most obvious unstated intention, proponents of that intention -- to which many are still unable to admit -- have been parsing and splitting hairs and coming up with false distinctions and unrealistic analogies in order to try to make hypocrites out of its opponents. Rick Santorum and Piyush "Bobby" Jindal are the most high-profile examples.

It basically goes like this: "Christian" merchants don't really want to discriminate against gay people who come into their retail stores to buy stuff. They just don't want to "participate" in gay weddings, or put their business's imprimatur thereon by providing services, products or facilities for them, because they don't want to express approval or celebration of a thing that is against their religion.

So, a "Christian" baker would gladly sell Nathan Lane and RuPaul an off-the-shelf vanilla-frosted orange marzipan cake with Crème de Menthe and lime zest and let them take it to a gay wedding celebration at Elton John's house, but the baker shouldn't be "forced" to put a "pro-gay message" on it (like, I don't know, "Congratulations, Adam and Steve!") because that would "force" him to "express" something he "does not agree with" (i.e., he does not wish to congratulate Adam and/or Steve) and that is "against his religious beliefs."

This is a thing now.  

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The Conference Committee Report from the Indiana legislature is out, and can be read here. It proposes to add a new section to the Indiana RFRA that, in relevant part, reads as follows:

Sec. 0.7. This chapter does not:
...
(b) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States Military Service[.]
There's more, but this is the gist of it. Not sure why "...or criminal prosecution..." is in there, as discrimination lawsuits are civil in nature and refusal-to-serve is typically not a crime, but better to be over- than under-inclusive.

It's notable, however, that the general defense-to-a-private-action language does not appear to have been stricken from Section 9, so hypothetically a person could still cite his/her "religious" "beliefs" as an excuse for violating someone else's legal rights in a context other than refusal-of-service. I still doubt it would ever actually work. Nevertheless, the "fix" to the Indiana RFRA is -- perhaps deliberately -- very narrowly focused on one discrete scenario, viz., the refusal on "religious" grounds to offer or provide goods, services, &c. to persons in protected classes, including sexual orientation and gender identity which are not protected classes under Indiana's state civil rights laws.  True, that's what the uproar has been about, and rightfully so, and this is an appropriate step in the right direction, but it still doesn't go far enough.

It must be remembered that a civil lawsuit is, in its essence, irrespective of who the parties are, what the subject matter is, or what causes of action are alleged, an assertion by the plaintiff that the defendant violated his legal rights. Allowing "religious" "beliefs" to be a defense to any civil suit is absolutely unacceptable. If the defendant did not violate the plaintiff's rights, or the plaintiff suffered no compensable harm as a result, then the defendant can and should be able to win the lawsuit without any reference or recourse to his purported "religious" "beliefs." If he did, then the he must compensate the plaintiff. It's as simple as that. A defendant asserting "religious" "beliefs" as a defense is essentially saying to the court, "Yes, I violated the plaintiff's legal rights; yes, I inflicted economic harm on the plaintiff; however, because of my 'belief' in [insert myth/superstition here], I should not be held accountable."

Never. Not on my watch. Indiana must take the next step and make it clear that its RFRA "does not establish a defense to" ANY private civil action of any kind.

Discuss

Indiana's new Religious Freedom Restoration Act (RFRA), which governor Mike Pence signed into law today, does not create a de jure right or license to discriminate against gay people (or anyone else) on the basis of one's "religious" "beliefs," but it will create a de facto license to discriminate as such by emboldening discriminators and discouraging victims from suing.

(That was the conclusion of my last diary which I wrote the other day, so I didn't want to do another one, but I was commenting on this story and the comment started to run long so I thought I should diary it again instead of hijacking the thread.)

The headlines and titles of articles and stories about this law and its enactment that I'm seeing so far are labeling it a "right to discriminate" law, and calling Indiana a "right to discriminate" state. There is no question that this law and others like it have been proposed and passed in response to two things: (1) The Supreme Court's risible Hobby Lobby decision which was based on the federal RFRA, and (2) a series of lawsuits in various states wherein the "religious" "beliefs" of merchants could not overcome state or local laws proscribing commercial discrimination on the basis of sexual orientation. The thinking behind these state RFRAs is that (1) provided an avenue to combat and reverse (2).

There's no question that this RFRA was passed, and that RFRAs are being considered in other states, to make Christian bakers and florists and photographers who don't want to bake cakes, arrange flowers or take pictures at gay weddings because God might get mad at them if they do, feel like it's OK to refuse, feel like they have a right to refuse and that the government backs that right.

And it will have that effect. Even though it shouldn't.

It's important to remember that this particular type of discrimination is only redressable by a private civil lawsuit. Anti-discrimination statutes that establish which classes are protected, typically have the effect of creating a legal right of action for discrimination and a rebuttable presumption that the discriminatory treatment (a.) was motivated by the customer's membership in a protected class [and thus unreasonable as a matter of law], and (b.) inflicted economic harm on the customer. The customer loses the lawsuit if the merchant can overcome these presumptions. If there's no anti-discrimination statute or the customer is not in a protected class, the customer can still sue, but he bears the burden of establishing unreasonable treatment, breach of a legal duty, and economic harm, which is practically impossible, which in turn is why we have anti-discrimination laws.

Indiana's RFRA doesn't really change any of this. It's only meant to feel like it does. The effect it will have is to embolden and encourage discriminators to use their "religious" "beliefs" as a proverbial sword against whomever their imaginary friend and/or their favorite book of Bronze Age fairy tales orders them to hate -- and discourage and dissuade the victims of these modern-day Crusaders from haling them into court and hoisting them on their own righteous petard.

It shouldn't. More below the fold.

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Plenty of us are rightly concerned about these "religious freedom" laws being passed in state after state, modeled after the federal Religious Freedom Restoration Act (RFRA) that was the basis for the Supreme Court's ... ahem, controversial Hobby Lobby decision. By all appearances, these laws are an attempt by legislatures to create a right to discriminate, on "religious freedom" grounds, against anyone who it might otherwise be illegal to discriminate against. And we all know who they're looking at, and why.

It's important to remember that Hobby Lobby, whatever you think of the ruling, was based on RFRA, not grounded in the Free Exercise clause of the First Amendment, which has never been held to be an excuse or justification for unlawful behavior, viz., for violating the rights of and/or inflicting legal injury on others. What's even more important, for the purposes of this diary, is that the underlying statute at issue there -- the Affordable Care Act -- was not an anti-discrimination statute.

At issue here is whether an anti-discrimination statute, i.e., one that forbids retail merchants from discriminating against customers on the basis of (inter alia) sexual orientation, would be trumped by a RFRA-type law in the same jurisdiction. Bearing in mind that we're talking about retail, i.e., goods and services that are openly, freely, universally and unconditionally offered for sale to the general public, that anyone and everyone has a right to come in and accept on the same terms as everyone else; would a RFRA-type law provide an excuse or justification for withdrawing that offer from certain customers post-acceptance, on "religious" grounds? In other words, would it provide a complete statutory defense to a discrimination lawsuit?

[Please look here for a primer on how anti-discrimination laws work and are enforced. Then proceed below the fold for discussion of how RFRA might impact the enforcement of such laws.]

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The George W. Bush presidency was basically over by the end of 2005.

Not that there weren't more disasters and indignities to come for America before the Halliburton Cabal mercifully relinquished the reins of power, but before the first year of its second term was up the country had had enough. Already it was clear that the Democrats would take back Congress in 2006, and most likely, the White House in 2008.

At that time, so it seemed, we would be given two options in 2008: Another Bush, or another Clinton. Meaning, another Republican who would carry on warring and torturing and terror-alerting and Jesusing while accomplishing nothing domestically for another four years; or, Hillary Clinton.

Well, we all know how that worked out.

I felt at the time, and have always felt, that the nomination and eventual election of Barack Obama in 2008 was America's way of ordering off the menu. We didn't like the choices we were given -- another Bush, or another Clinton -- or perhaps we simply didn't like the fact that we were only given these two choices and expected to accept them, so we went and made our own choice. For better or for worse. Obama was still, for many, an unknown commodity, but still far more appealing than the retreads we felt we were being offered.

Another Bush? Another Clinton? Umm, we'll take what's behind Door Number Three.

I'm really not here to discuss whether we would have been better off over the last 6 years with another Bush or another Clinton instead of the man we elected. I'll leave that to the reader and the comment thread, if so inclined. But it seems now, with less than a year to go until the Iowa caucuses, we're being given the same choices again for 2016.

Another Clinton, or another Bush.

Are we OK with this? Or will we order off the menu again?

Discuss

Star Trek was always prescient. Re-watching the fourth season of Deep Space Nine I couldn't help but notice how uncannily the writers and producers had predicted what the War On Terror™ would be like a decade later. And the Ferengi-centered episodes of that show, particularly in the later seasons, gave viewers a pretty good idea of what the Republican economic platform would resemble in the second decade of the 21st century.

But today I want to talk about one of the Original Series movies, the last one, in relation to the #47Traitors letter that everyone is talking about.

Star Trek VI: The Undiscovered Country is part Tom Clancy, part Agatha Christie; part political thriller, part whodunit. It involves a conspiracy among warmongers at the highest levels of Starfleet and the Klingon and Romulan hierarchies to sabotage peace talks between the Federation and the Klingon Empire.

[For the four people who haven't seen this movie yet, spoilers below the fold.]


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Thu Mar 05, 2015 at 11:12 AM PST

Help Me Out Here, Liberals

by GrafZeppelin127

I've been writing and saying for years that the Conservative Entertainment Complex™ in all its many forms and forums is nothing more than an improv act, an elaborate ongoing production of improvisational theatre that is essentially The Truman Show in reverse. At least among "liberals," this idea has been largely non-controversial. Until now.

Yesterday I posted a few times in a comment thread on another blog that Dr. Ben Carson's galactically idiotic statements about prison sex turning straight men gay were part of that improv act; that Dr. Carson the neurosurgeon is not really that stupid, ignorant, vicious and offensive, but Dr. Carson the right-wingnut -- i.e., the character he plays on TV -- is. I stated a few times, with emphasis, and without qualification, that "this is an act."

Well, apparently "liberals" are now taking exception to this, because I stated "as fact" something for which I have no "concrete proof," therefore "liberals" are "call[ing] bullshit" on it and concern-trolling my purported, and apparently unjustified, certainty that Dr. Carson and others like him are completely and entirely full of shit, so much so that they're cynically performing an improv act at the behest of their paymasters for their own, and their paymasters', personal gain.

I certainly didn't handle the conversation well, because I was more than a bit blindsided by the aggressive pushback from these "liberals" who are so appalled and offended by what Dr. Carson has been saying on TV, but are apparently more appalled and offended by my stating with absolute certainty, without qualification -- and without "concrete proof" -- that he's a fraud.

Of course I can't read the man's mind. But I've been watching, reading, listening and paying attention to the Conservative Entertainment Complex™ and its galaxy of stars (so to speak) for over 20 years now. No, I don't have "definitive" "concrete proof" that Carson is a fraud; what such "proof" could exist? Everything I've seen, heard, read, written, analyzed and discussed for the last two decades tells me that he's a fraud, that this is an act. I've done improv myself; masquerading as a right-wingnut in conversation or online is not hard. No one, and certainly no one with an actual medical degree, is this stupid, ignorant, offensive and suffers from this much cognitive dissonance by accident. It's infinitely more believable that this man is, as my father used to say, full of banana mulch.

But I'm not here to defend my assessment of Dr. Carson and the CEC™ as the longest-running and most lucrative production of improvisational theatre in world history. If you don't agree or don't want to believe that these people are that cynical, that's fine.

"Call[ing] bullshit" and demanding "proof" has always been a childish, lazy, simplistic and obvious knee-jerk reaction to an idea one hasn't heard before, doesn't understand, doesn't like, doesn't want to believe, and/or doesn't agree with, especially one that is expressed without subjective qualifiers. It's concern trolling, basically; trying to make it about me instead of about what I'm saying or the subject matter thereof, and moving the goalposts each time by raising the standard of proof to an ultimately unsatisfiable level where, ultimately, nothing is acceptable "proof." But this threw me for a loop. Right-wingers (and children under the age of 10) yell "Prove it!" all the time; I didn't expect it from "liberals," and certainly not in defense of someone like Dr. Carson.

Why would "liberals" who are so appalled by Dr. Carson's grotesque and indefensible statements need, want, or demand "proof" that he's performing an improv act? Why would they reflexively "call bullshit" on that?

One person made it clear that he didn't really care whether Carson was acting or not; the only issue for him was my apparent certainty and lack of "proof." Concern trolls are a dime a dozen, so that's neither here nor there. But still, why would my stating that Ben Carson's performance on Fox News is an improv act -- and a cynical and manipulative one at that -- trigger that reflexive, knee-jerk, "Prove it!!" response -- from "liberals" of all people? Why would one "liberal" "call bullshit" on another's statement that Ben Carson is cynically performing an improv act on behalf of his paymasters?

Maybe the better question is, Why does this particular proposition about this particular person have to be "definitively determined" via "concrete proof" before it can be proposed or discussed? ...with "liberals"?  Why would "liberals" be unwilling to consider that Ben Carson's schtick is an act unless and until it's "definitively determined" that it is, in fact, an act? I can understand the concern that we should generally be cautious about making unqualified statements that reflect opinions or deductive conclusions as opposed to concrete, verifiable, indisputable "facts." But why this standard of "proof" for this particular idea?

It seems to me that calling Dr. Carson's performance an act, viz., a cynical attempt to validate the prejudices and manipulate the emotions and voting/monetary-donation behavior of his audience, is a more trenchant criticism than simply pointing out how wrong, stupid, ignorant or offensive his statements are. I think cynicism is worse than mere stupidity. Being wrong is one thing; saying things you know are wrong in order to manipulate people for your own benefit is something else. People who don't realize this is an act will take him seriously, believe that he knows what he's talking about (he is, after all, a neurosurgeon), see him as an authority, thus allow themselves to be influenced by him, and satisfy themselves that they're right and that their prejudices are valid -- and vote and donate accordingly -- because this apparent authority figure said what he said.

And he (not to mention his paymasters) knows that will happen; that's the whole point. I think that influence would be better attenuated by recognizing that it's an act and treating it as such, than by addressing the substance of this rhetoric head-on. Meaning, I think people might be less influenced by it, or less inclined to accept it at face value and accept his authority, if they knew and could be convinced that the rhetoric is phony, not merely wrong.

But, apparently, "liberals" want, need, require and demand "concrete proof" and a "definitive determination" that this is, in fact, an act, before they will even consider doing that.

Why?

Liberals, please help me understand what I did wrong. I'm not asking whether you think Ben Carson's performance is real or whether it's an act; I set up a poll for that. What I'm asking is, Why would any "liberal" reflexively "call bullshit" and demand "definitive" "concrete proof" in response to a statement that it's an act? Thanks.

Poll

Neurosurgeon Dr. Ben Carson most likely

32%11 votes
67%23 votes

| 34 votes | Vote | Results

Discuss
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