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Gorsuch Cites Anti-Gay Masterpiece Cakeshop Ruling in Dissent Over Vaccine Mandate Religious Exemption Request

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The U.S. Supreme Court Monday afternoon rejected a request for a religious exemption for health care workers refusing to comply with New York State’s vaccine mandate. The state is requiring all health care workers to be vaccinated against the deadly coronavirus. Justice Sonia Sotomayor denied the request, but three conservative jurists, Clarence Thomas, Samuel Alito, and Neil Gorsuch, would have granted it.

The latter, Justice Gorsuch, cited an extremely narrow ruling in the Supreme Court case of an anti-gay Colorado baker, the Masterpiece Cakeshop case, in his dissent. The baker “won” his case because the court ruled local officials had displayed animus against the baker’s religion. Justice Gorsuch appeared to suggest New York’s requirement for all health care workers to be vaccinated was equally problematic.

“The legal challenge was filed by a group of 20 doctors and nurses who argued that the state’s vaccine mandate violates the First Amendment to the Constitution because it fails to include a religious exemption,” CNBC reports.

In what some may seem as a dangerous opinion and foreshadowing of similar ones to come, Justice Gorsuch says that those requesting the emergency exemption will suffer “irreparable injury” over their refusal to be vaccinated against the deadly coronavirus that to date has killed more than 800,000 people in the U.S. He made no mention of irreparable injury to the health care workers, to their families, co-workers, friends, or of course their patients should they contract and/or transmit the virus.

Justice Gorsuch writes: “no one seriously disputes that, absent relief, the applicants will suffer an irreparable injury. Not only does New York threaten to have them fired and strip them of unemployment benefits. This Court has held that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’”

Here’s where Gorsuch appears to be paving the road for more faith-based decisions:

“The Free Exercise Clause protects not only the right to hold unpopular religious beliefs inwardly and secretly. It protects the right to live out those beliefs publicly in ‘the performance of (or abstention from) physical acts,’” he writes, citing case law.

“Under this Court’s precedents, laws targeting acts for disfavor only when they are religious in nature or because of their religious character are ‘doubtless . . . unconstitutional.’”

“As a result, where ‘official expressions of hostility to religion’ accompany laws or policies burdening free exercise, we have simply ‘set aside’ such policies without further inquiry. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S. , (2018) (slip op., at 18).”

“But even where such overt animus is lacking, laws that impose burdens on religious exercises must still be both neutral toward religion and generally applicable or survive strict scrutiny. … To meet its burden under strict scrutiny, the government must demonstrate that its law is narrowly tailored to serve a compelling state interest. Applying these principles to this case, New York’s mandate falters at each step.”

Gorsuch is stating that protecting the population from a quickly mutating and highly deadly virus in a two-year long pandemic is not “a compelling state interest.”

Harvard Law assistant professor Ben Eidelson weighs in on Gorsuch’s tactics:

Written by David Badash, The New Civil Rights Movement. Image via NCRM.

A Magnificent Monument to Satan Unveiled Outside the Capitol Building in Arkansas

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An image made in the likeness of the dark lord himself, aka, Lucifer: The Fallen, The Morning Star, The Great Deceiver,  Old Nick, Mayor of Hell, Apollyon, briefly appeared outside the Capitol building in Little Rock, Arkansas, yesterday, and it was magnificent.

The “Satan Went Down to Arkansas” rally, held by the Temple of Satan (bless them), showcased a giant statue of Baphomet – a deity linked to the Knights Templar in the early 14th Century – which they hope to install permanently to live side by side with a controversial statue of the Ten Commandments that currently adorns the grounds of the state Capitol.

The Great Unveiling. Photo by Nick Fish

The statue of Baphomet proposed by the Satanists has been in response to Arkansas State Senator Jason Rapert’s successful campaign to place a sculpture of the Ten Commandments on the grounds of the Arkansas State Capitol. In justifying his decision to support the placement of religious iconography on public property, he said in a Facebook post, “Due process was followed to the letter of the law when the Secretary of State and the Capitol Arts and Grounds Commission held a series of open and public meetings to gather input on the placing of the Ten Commandments monument.”

In the same post made yesterday, he also refers to the groups of Satanists and their magnificent statue of Baphomet as “extremists” and called them “profane.” For their part, the Satanists have framed it as a matter of free speech, not one that places any specific value on “satanic” theologies. The co-founder of Satanic Arkansas, who was at the rally yesterday, told US News and World Report that, “if you’re going to have one religious monument up then it should be open to others, and if you don’t agree with that then let’s just not have any at all.” In his opening remarks, Temple of Satan spokesman and co-founder Lucien Greaves thanked Rapert, claiming that without his push for the Christian monument there would be no legal precedent for them to place their own statue. Addressing the crowd, Greaves said, “Baphomet is not an attack on the Ten Commandments. It is an insistence on equality under the law.”

Anti-Satan Protestors. Photo by Lucien Greaves

The issue will now be decided in the courts in what is likely to be a First Amendment case that will have serious ramifications on how the separation of church and state is decided. Earlier this year the Satanist tried to join a case the ACLU already brought against the state of Arkansas, but for reasons unclear the ACLU asked the courts to “bar the intervention.”

Regardless of legal outcomes, the Satanists seem to be winning in the court of public decision. As one commentator on Rapert’s Facebook page put it, “The profane is pretty awesome though. Hail Satan.”

Hail Satan.

Opinion: Virginia Must Fight For Net Neutrality

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2017 will undoubtedly go down in history as one of the worst years in collective American memory. Our politics have become malignant; the fabric of our citizenry might be frayed to the point of disrepair. One party is content to openly side with Nazis and pedophiles, so long as they provide a tax break for the rich. The other party is content to represent the lavish corporate interests of the coastal elite. Neither seems to have the public trust in mind, only the will to stay in power.

Now, to make matters worse, they’re about to take the internet away from us.

For those who have an understandably hard time following the rapid pace of current events, one of the most drastic policy shifts in our technological era is currently being enacted. That is, the repeal of net neutrality. What is net neutrality? Net neutrality is the set of regulatory guidelines implemented by the Obama administration to ensure that all websites are treated equally for anyone who has an internet connection. In short, it treats the internet like a public utility, not a product. Which is exactly what the internet has become. Is there any scenario whereby a person can succeed in any aspect of their daily lives without open access to the internet and information? Of course not.

Yet the FCC’s chairman, Ajit Pai, sees the internet as a product to be purchased, not an inherent right in our digital age, going so far as to claim net neutrality rules are “heavy-handed, utility-style.” This should come as little surprise to anyone following the Trump administration. The administration is, after all, dismantling and deregulating just about every conceivable industry throughout the US, including oil and gas, banking, and telecommunications. As far back as January, Trump said he hoped to dismantle 75 percent of all Obama era regulations. He is even gutting the Consumer Financial Protection Bureau, which protects citizens from the worst excesses of corporate America.

Nonetheless, in Trump’s America, crony capitalism and corporate interests will always outweigh those of the average citizen. Would anyone be thunderstruck to learn that Paj used to be the general counsel for Verizon, one of the companies that would benefit most heavily from a repeal of net neutrality?

So what is at stake when net neutrality gets repealed?

For starters, it will make the internet a pay-for-play type product. This means internet service providers (ISPs) will have total discretion over what sites and services receive premium speeds vs those that will be relegated to slower speeds. People with higher incomes can pay for faster internet service to their preferred sites, while lower and middle-income people will have to content themselves with whatever else remains available and not monetized by their ISPs. This not only becomes an access issue, but a class and income inequality issue. By further marginalizing low and middle income people from the information they need to make informed decisions, the FCC is reducing civic participation in a way that favors one class of people over the other. And in an age where people’s political interests are elevated based on their financial status, an open and free internet has at least ensured some degree of information egalitarianism to understand what decisions are being made for them.

What a repeal of net neutrality also means is that small to medium-sized publications like RVA Magazine – who might not be able to afford higher fees for faster delivery service – will have their service slowed down for consumers of our media. In an age of competitive and ruthless digital media, this all but ensures local, independent, and alternative media cannot survive. This leaves the sum total of all information and news dissemination in the hands of companies who can afford the digital fast lane, once again, reducing civic participation to the monied class of media and corporate elites, along with their political allies. As if I need to make my example further, the Koch Brothers just bought Time Magazine.

Obviously, the ISPs do not feel the same way. In a white paper filed with the FCC in October, Verizon claimed as their title argument, “State Laws Pose A Direct Threat To The Commission And Congress’s Recent Progress In Restoring A Light-Touch Regulatory Framework For Broadband Internet.” Basically, companies like Verizon are arguing against net neutrality based on the disparate laws governing internet regulation at a state level. Which is funny, nay outright hypocritical, since the Republican led FCC should be all about states’ rights – except when it comes to corporate profits at the expense of the American people.

The FCC has also leaked information that under this model, internet service providers will be able to block or choke certain web-based content so long as they disclose that they do so. But with consumer rights being undermined with the dismantling of things like the Consumer Financial Protection Bureau, what recourse will everyday citizens and small to medium sized business have? This also leaves us at the mercy of our ISP’s moral or political prerogatives, potentially strangling our first amendment freedoms in the process – think Hobby Lobby, but over the vast cyberspace which is the internet.

So what can be done?

The courts must save us. The FCC has some authority to rewrite existing rules, but they still have to survive the inevitable court challenges that are going to follow from some heavyweight tech companies who are openly opposed to the regulatory change: Facebook, Google, Amazon, and Netflix. While the issue is clearly framed in Republican economic theories of deregulation, the majority of Americans could care less about such things. In a recent poll, 76 percent of all Americans polled still support net neutrality – highlighting a consensus between the rank and file across the political divide. Making this policy solely about the interests of the ISP telecom giants and not those of the American people.

Unfortunately, for Congress to get involved, they would have to enact a new statute that would then have to be approved by both Republican chambers, and signed into law by Trump – a near impossibility.

In Virginia, the issue seems to be split perfectly along partisan lines, with Democratic Senators like Tim Kaine and Mark Warner opposing the plan; along with Richmond Congressman Donald McEachin, who said in a recent press release, “Limiting access to certain websites and content will change the internet forever – at the expense of the many, for the benefit of the few. I am deeply disappointed by tonight’s news, and I will strongly oppose this plan.” Whereas Richmond area Republican Congressman Dave Brat views net neutrality as a threat to innovation and free speech.

Net neutrality might sound dull and boring, but it is the kind of technical policy that has the ability to rewrite the fundamentals of how we consume, share, and access information across the graph. In the end, selling out net neutrality loses us much more than just internet speeds or our preferred streaming service. It destroys one of our most basic and fundamental rights: access. And in an age where information access is one of the only vehicles that can ensure any measure of equality, an open and free internet has become essential to our political survival.

Opinion: Debating Free Speech in Virginia

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The violent clashes in Charlottesville on August 12 turned the spotlight on freedom of speech across the nation, with many asking just how much hate speech is covered under the first amendment. And just over a week ago, Richmond experienced a neo-Confederate rally on Monument Avenue, once again helping to push the idea of free speech and its limits to the forefront of the national conversation.

Several hot takes, think pieces, and editorials have thus come out recently on this very topic. One in particular, from the Washington Post, caught my attention here in Richmond. Catherine Rampell laid out her findings from what she called a “disturbing new survey of students” conducted by John Villasenor, a Brookings Institution senior fellow and University of California at Los Angeles lecturer.

As a young person, I had some problems with her analysis, especially when applied to the context of the Commonwealth.

Several of these questions apparently “were designed to gauge students’ understanding of the First Amendment.” Rampell noted one question in particular, pointing out that four in ten students said no when asked whether the First Amendment protects “hate speech.” She continued, explaining that speech based in hatred — or at least, speech perceived as such — is constitutionally protected, despite its ugliness.

Okay… but that’s not the whole story. Not in the age of Charlottesville, and not when white nationalists occupy senior positions in the White House.

First, many of the tactics that critics (like Rampell) complain about are themselves speech. When activists denounce alt-right provocateurs like Milo Yiannopoulos as a racist or Richard Spencer as a white nationalist, they are exercising their own right to free expression. Just the same, when students put on protests or marches, launch social media campaigns, circulate petitions, boycott lectures, apply pressure for the resignation of professors and administrators, or object to the invitation of controversial speakers; all of this is a form of expression, something Rampell would do well to understand.

It should also be noted that this study has now been refuted by some experts in the field of statistical science. Cliff Zukin, a former president of the American Association of Public Opinion Polling, called this particular study “junk science.” And it was also reported by The Guardian that the study did not include a peer review process, and was the first study ever conducted by its author. Still, with influential publications like the Washington Post and the Wall Street Journal citing its findings, the sentiment in the article is worth exploring.

Rampell goes full melodrama in the heart of her piece, describing the “chilling findings” that students think repugnant speech should be dealt with, referencing incidents between students and faculty in universities like California State University at Los Angeles, Middlebury College, Claremont McKenna College, and “other institutions.”

However, let’s pose a hypothetical and, as Rampell posits, imagine a public university hosting a “very controversial speaker” or one “known for making offensive and hurtful statements.” She pontificates, “Would it be acceptable for a student group to disrupt the speech by loudly and repeatedly shouting so that the audience can’t hear the speaker?”

Rampell is then seemingly shocked to learn that half of students surveyed said that “snuffing out upsetting speech — rather than rebutting or even ignoring it — would be appropriate.” Democrats were more likely than Republicans to agree with this response – 62 percent to 39 percent – and men more than women  – 57 percent to 47 percent. Even so, she said, “sizable shares of all groups agreed.”

Again, Rampell fails to understand that counter-speech can be produced in many fashions, as it has been here in the Commonwealth. It can be a point of fact aimed at debunking a speaker’s claim. It can be an opinion that the speaker’s view is misleading, ignorant, offensive, or hateful. It can even be accusatory, claiming that the speaker is racist or sexist, or that the speaker’s words amounts to an act of harassment, discrimination, or aggression (looking at you, Milo and Richard).

Rampell or others may argue that these communications tactics aren’t attacking “the merits” of the speech, but she’s once again misguided in that assumption.

Arguing that a speaker’s stance is racist or sexist is to say something about the merits of their position, given that the majority agree that racism and sexism are bad. Even arguing that the speaker themselves is racist does indeed go to the merits, since it gives the public context for judging the motives and implications of the speaker’s viewpoint.

Besides, what principle of free speech limits discussion to the merits? Political discourse quite often deviates from the merits of “the issues” to personal or divergent matters.

Rampell views this as “liberal intolerance,” but once more, that’s disingenuous. Insults, shaming, demonizing, and even social ostracism are not unreasonable consequences for speakers to expect and bear. Sure, the Constitution allows Westboro Baptist Church and Richard Spencer to hold forth, but it does not protect them from the consequences of their words.