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Yeshiva University v. The LGBT Club, Victory for the 1A
The Supreme Court is poised to grant a victory to religious conservatives via the First Amendment in blocking recognition of an LGBT club at Yeshiva University. Yeshiva is a Jewish law school which objects to the club on religious grounds. This is important news for other religious schools across America facing similar legal challenges.
Though the Court as an intermittent step referred the case back to the lower courts as Yeshiva University v. YU Pride Alliance, Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett made no bones in their dissent that they would stand with the 1A when the full case comes before the Supreme Court, as it is expected the lower courts will demand Yeshiva recognize and fund the club. The Court refused to hear the case on an expedited basis, ordering instead that it first exhaust options in other, lower courts. Alito, et al, objected to that 5-4 procedural decision and telegraphed their ultimate response via dissent once they get the full case.
The issue is simple: Yeshiva University wants to deny recognition of an LGBT club (YU Pride Alliance), claiming their foundational values as written in the Torah do not support that. The club claims it is being discriminated against, as other non-religious groups can form clubs. At issue is the 1A versus Title IX and other “human rights” laws.
Alito argues the courts have no right to use the power of the state to compel Yeshiva to host the club. “Does the First Amendment permit a State to force a Jewish school to instruct its students in accordance with an interpretation of the Torah that the school has concluded is incorrect? Surely ‘no.’” He rejects the idea religion is being used to support bigotry, and sticks with a conservative view of the 1A saying government should not impose itself on religion in this case. The court’s duty, wrote Alito, “is to stand up for the Constitution even when doing so is controversial.” Alito went further, stating “At least four of us are likely to vote to grant” review if the university loses on its First Amendment arguments on appeal, and Yeshiva will likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.” One progressive outlet called what many conservatives would consider a promise of future justice an “implicit threat.”
The balance between the 1A and Title IX (i.e., human rights, in this case New York law) has always been tricky. To protect religious freedom, the federal Department of Education has granted exemptions to 120 religious colleges and universities to practice their religious tenets, even when they conflict with protected LGBT and other “human rights.” The New York courts have held for schools like Yeshiva (a law school, not purely a religious training school or seminary) the 1A should cover only those parts of the school’s business which directly constitute religious acts, and allow secular law to cover the secular part of the school. Specifically, New York said Yeshiva violated New York City’s human rights law. That law prohibits “public accommodations” – places that are open to the public – from discriminating based on sexual orientation and gender identity. Despite its Jewish orientation, Yeshiva admits students of any religion, the “public” part. Yeshiva came to the Supreme Court, calling the ruling an “unprecedented intrusion into church autonomy.”
In siding with Yeshiva, Alito is also going after bigger fish, looking to weaken or overturn Employment Division v. Smith. In that case the Supreme Court held that religious objectors typically must follow all “neutral laws of general applicability” (though racial discrimination is still prohibited.) Alito claims that New York’s human rights law is not neutral or generally applicable because it does not apply to “benevolent orders,” i.e., “any club which proves that it is in its nature distinctly private.”
Carveouts from civil rights laws for private clubs are common. The federal law banning businesses that offer their services to the public from engaging in many forms of discrimination (bakers who refuse to make cakes for gay couples, for example) exempts “a private club or other establishment not in fact open to the public.” It is likely the First Amendment, which grants rights of free association to membership organizations that do not apply to public businesses, forbids states from enacting anti-discrimination laws that require genuinely private clubs to accept members they do not want to accept.
Alito, in other words, is saying in his dissent if a state enacts an anti-discrimination law that exempts private clubs, then it must also exempt religious objectors from that law. In practice, that means Alito would give all religious objectors fairly sweeping exemptions from huge swaths of anti-discrimination law, including those at Yeshiva University who object to an LGBT club on campus. Weakening Employment Division v. Smith would open the door wider for private religious schools to decide which organizations they wished to recognize without having to apply to the federal Department of Education for an exemption. It would be a victory for the First Amendment, and a victory for religious rights over “human rights.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Deterrence Works, Propaganda Fails in Ukraine (So Far)
Deterrence works. Russia’s nukes are the only thing keeping the US from full-out war in Ukraine only six months after retreating from Afghanistan. So far, the unprecedented propaganda effort by the Ukraine and its helpers in the American mass media to drag the US and NATO directly into the fight has failed. But this struggle — for your mind space — is not over.To understand what follows, you have to wipe away a lot of bullshit being slung your way. Putin is not insane, not a madman. He is carrying out a rational political-military strategy in Ukraine, seizing Russian-speaking territory such as Donbas, demilitarizing by force the eastern Ukraine, and most of all creating a physical buffer zone between himself and NATO. That zone may end at the Dnieper River with a loop around Odessa, or it may end at the Polish border, depending on how smoothly things go on the ground and on what level of “stay away” message Putin wishes to send to NATO. Putin is not making the first moves toward some greater conquest. All the bad takes saying “if we don’t stop Putin now, he’ll invade Moldova/Estonia/Poland/all Europe just like Hitler” ignores the part about the German military in WWII having some 18 million men under arms. The Russian army today has 1.3 million, the best of which are going to be in Ukraine for awhile.Every war has its “is the juice worth the squeeze” question. In other words, is what you can realistically hope to achieve worth the cost of getting it? For Putin, that means solving his border problem at the cost of maybe a few thousand men killed and wounded and another dollop of weak sanctions. He understood the needs of Europe meant sanctions would never harm sales of the fossil fuels which make up most Russian exports. But no Paypal for you, comrade! Putin could also look to history and see how decades of sanctions have not changed much in Cuba, Venezuela, Iraq, Iran, and North Korea.Putin most importantly also knew US/NATO would not fight him on the ground for fear of starting a nuclear war. That is exactly what nukes are for, and is the history of the Cold War in a sentence. I have nukes and that allows me to do certain things any way I want because they stay below the threshold of risking atomic war. This is why the US could destroy Quaddafi and Saddam (no nukes to deter) and why the US will never attack North Korea (nukes.) Being a nuclear superpower makes things easier; the US can fight all over Central America and the Middle East, and Russia in the ‘Stans, and none of that is important enough to consider using nukes to stop.Putin knows that. Biden knows that, as does NATO. Ukraine, however, is still thinking it can change the game.Ukraine knew on Day One no one was coming to its rescue, and its leaders know they don’t have enough men or weapons to defeat the Russians on their own. Their only hope to remain a unified nation (it is easy to imagine a divided Ukraine, Western Zone and Eastern (Russian) Zone as the end game) is outside help. A no-fly zone, some air strikes to blunt Russian advances. Something, anything.That’s why every knucklehead in America right now is being blitzed with Ukrainian propaganda, and your brother-in-law is ready to head to Europe with his never-cleaned hunting rifle. The goal is to change public opinion such that a weak guy like Joe Biden starts to doubt himself. Ukrainian lobbyists from K Street take influential Senators to lunch, knowing they’ll return to their offices to find thousands of constituent emails demanding the US “do something.” The goal of Ukrainian propaganda is get Biden to take that Pentagon meeting laying out options for some limited bombing, or to listen to those analysts saying the US could set up a small no-fly zone on Ukraine’s western edge to show the Russians we mean business. Drop in some Special Forces. Something, anything. The goal of the propaganda is to get Biden to sign off on something (hopefully) small enough that it falls below the threshold of provoking a nuclear response. Is it necessary to say that is a very risky and delicate tasking?The bad news is Ukrainian propaganda is working. A non-partisan 74 percent of Americans say NATO should impose a no-fly zone in Ukraine. And we are just getting started. We’ve had the hero phase with the non-existent Ghost of Kiev and the not surrendering but they surrendered brave Ukrainians, alongside the grandmas and supermodels with guns. We’ve had the Russians are going to kill us all phase, with the faux threat of invasion to the west and the faux scare the Russians were going to create a Chernobyl-like nuclear accident by shelling a power plant. We are currently moving into the not verifiable atrocities phase, where “reports” will claim the Russians are killing children, or using rape as a weapon, or targeting hospitals. Alongside it all is beef cake talk about Zelensky, the likes we haven’t seen since before the cancelations of Andrew Cuomo and Michael Avenatti. The fact-checking mania of Covid is history as America media removes all the filters on pro-Ukrainian content.The quality of the propaganda is not important (any pile of scrap metal on snowy ground is breaking news of another Russian helo shot down, even if the metal has “Acme Junk Pile” written on it.) The quantity is important, the attempt to overwhelm American mindspace to the point where logic is shoved into the back corner. There is a growing cottage industry of “experts” explaining how to can go to war without going to THAT kind of war. Dissenting voices are few, and are often labeled as “Putin lovers,” with progressives and Late Night hurling homophobic slurs at them like high school kids.It is not like America does not know how to step away from a fight which isn’t ours when we want to. Crimea, Chechnya, Rwanda, Hungary ’56, Czechoslovakia ’68, Afghanistan ’79, even to a certain extent in Syria 2016.There are two battles now playing out over Ukraine. The one on the ground, and the one on your social media seeking to drag America into the mud. Only six months after the sad ending in Afghanistan, it is stunning to watch America again contemplate going to war for some abstract purpose far removed from our own core interests. And this time, with the risk of a nuclear exchange to remind us of our mistake, not just an inglorious departure from Kabul.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Enough Gossip. Where are the Trump Whistleblowers?
As a federal whistleblower who lost his career to tell the truth about the Iraq war publicly, I am burdened by how the interviewees in Bob Woodward’s new book, Fear, and Anonymous, that New York Times “resistance” Op-Ed author, have been hailed in heroic terms.
Many see them as patriots “resisting Trump” from the inside, holding back his worst impulses through fibs and bureaucratic tricks, being the clandestine adults in the room. Having faced similar choices, I know their approach is neither honorable, nor effective. In the past the more common word applied to such officials would have been insubordinate.
No one should join government to do only things they think are personally right; one serves the United States, and takes an oath to a Constitution which spells out a system of government and a chain of command running from the president. There is no addendum saying “but if you really disagree with the president it’s OK to do what you want.” In many military offices, the chain, from president to the lowest officer present, is literally displayed on the wall via pyramided portraits of those specific men and women; the blank space at the end is “you.”
This is not to support robotic bureaucrats. But ideas, no matter how vigorously debated or opposed, at some point change from being Trump’s or Obama’s policies to those of the United States. Implementing them on a global scale, whether on a battlefield or across a negotiating table, is a team sport. Any other way is to bring on the chaos Anonymous claims to be pushing back against.
I served 24 years in such a system, joining the State Department under Ronald Reagan and leaving during the Obama era. That splay of political ideologies had plenty of things in it to disagree with or even believe dangerous. Same for people in the military and the intelligence agencies, who, for example, were sent to train Afghan mujaheddin under one president and then kill them under another, more significant than wonky disagreement over a trade deal. An amoral president, in Anonymous’ words? How about one who set Americans to torturing prisoners to death?
In the run-up to the invasion of Iraq in 2003, some inside government were privy to information about the non-presence of weapons of mass destruction, and understood the president was exaggerating the case for war if not lying about it. Three senior officials resigned from the State Department and left a clear marker in the history books the policy was wrong. Another State Department official, a former Marine, resigned in protest over the war in Afghanistan. He stated in the New York Times (a signed letter, not an anonymous Op-Ed) “[I] tried and failed to reconcile my conscience with my ability to represent the current administration. I have confidence that our democratic process is ultimately self-correcting, and hope that in a small way I can contribute from outside.” More than a decade earlier, four State Department officials quit over the Bosnian conflict, also via public letters of resignation.
Others who believed a president’s decisions were harmful to the United States blew the whistle, making public information at the cost of their jobs and/or freedom to build an evidence-based case. Chelsea Manning spent years in prison to expose war crimes, Ed Snowden ended up with a lifetime in exile to inform the public of NSA policies threatening Constitutional freedoms. For me, I chose to write a whistleblowing book exposing the failed reconstruction efforts in Iraq I once helped lead, and lost my career in return.
The consistent threads are important: disagreements over policy, many involving millions of lives, are not new or unique to the Trump administration. Nor are questions of competence: Reagan was thought to be senile, Bush a dolt. Challenges to conscience were answered by good people who believed enough in the United States that they placed their lives, fortunes, and honor as collateral toward being listened to. Challenges to conscience were not thwarted by working from deep inside government to surreptitiously ruin policy.
Until now, at least according to Anonymous’ Op-Ed and Woodward’s book, Fear. Anonymous claims they disrupted things without giving any details; we’re to assume whatever they are doing, accountable to no one, must be better than anyhing Trump wants. Woodward claims Jim Mattis put a Resistance-like stop to Trump’s demand to assassinate Syrian President Bashar Assad, though Mattis denies it. Of course the order to kill, if it occurred at all, would have been illegal and thus require anyone in government to refuse it. No resistance there, simply someone following the law.
About the only actual act of “resistance” to examine comes from Woodward’s book. Gary Cohn, Trump’s former economic adviser, supposedly walked into the Oval Office and snatched a letter off Trump’s desk saying the United States was pulling out of a trade agreement with South Korea. Cohn thus stopped Trump from signing the document after he never noticed it missing.
The story is almost certainly untrue; “decision paper” for signature going in and out of the Oval Office is tracked assiduously by White House staffers. Stuff doesn’t just go missing, and if it does, someone looks for it; I know, I held just such a job working for the American Ambassador in London. It’s like tearing up a credit card bill thinking the debt will go away. And that’s before getting into how few people the Secret Service lets drop by the Oval Office and grab stuff off the Resolute desk.
But even accepting Cohn pulled off his heist, is protecting a trade agreement the act of resistance America demands? Reading the actual letter, Trump’s intent was to make a threat of withdrawal, taking advantage of an 180 day delay in implementation to force new negotiations. Trump campaigned on just such promises. There was no madman with his finger on a button. Cohn didn’t agree with his boss (or the results of an election.) That’s not patriotic, it’s a disgruntled employee.
As to the claims Trump is uniquely too stupid to be president, John Kelly, like Mattis, denies he said anything of that to Woodward (in kindergarten did to, did not style, Woodward called Mattis a liar for calling Woodward a liar.) As with Michael Wolff’s nearly-forgotten book which spurred the last round of calls for the 25th Amendment to oust Trump eight months ago, there is no evidence of actionable insanity or stupidity. It’s all circular reinforcement, unnamed voices repeating things heard before, backed by psychiatrists who never met the president claiming he is insane, and enhanced by shock jock pundits reading tweets like a fortune teller reads goat entrails. Almost two years now of the world and democracy not ending have diluted claims this president is a unique danger.
Until now the people working for presidents as different as Reagan was from Obama understood, as I did, the only way for America to function credibly was for us on the inside to work on her behalf until we couldn’t, and that meant following the system created by the Constitution, remembering we weren’t the ones elected, that we ultimately worked for those who did the electing, that there is no “But Reagan/Bush/Clinton/Bush/Obama/Trump is different…” clause in the Constitution. We understood acting as a wrench inside the gears of government to disaffect policy (the Washington Post warned with some apparent glee “sleeper cells have awoken”) is what foreign intelligence officers recruit American officials to do. Instead, we argued inside our offices, we dissented via internal channels, and for some, we resigned or blew the whistle to credibly and effectively force the issue into the public eye.
So let one of the people inside government who believes America is at mortal risk do something more than gossip to their favorite journalist to keep detrimental memes alive for another painful news cycle– resign, testify, and bring out the documents as proof to separate yourself from the partisan operatives. That person of conscience need not be a Cabinet secretary; Chelsea Manning was a private. Snowden a contractor, not even an NSA employee. “We never should have heard of them,” said a 1993 story in the Washington Post about those State Department Bosnia dissenters. “They were mid-level bureaucrats, dots in the State Department matrix. But they’ve gone and done something extraordinary in Washington: They quit their jobs on moral grounds.”
Until any of that happens, we shouldn’t waste another moment on anonymous resisters and unnamed/uncredible sources, whether they write in the Times or show up in books by Woodward or Wolff. America, if she truly is at grave risk, is more important than a job in the West Wing. Stand up if the threat is real, shut up if it’s not.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Eating Those Words?
In Gordon & Trainor’s bookabout Iraq, as well as Rajiv Chandrasekaran’s book
about Afghanistan, a common complaint by America’s diplomats is how their Regional Security Officers were too risk averse. The FSOs whined that Diplomatic Security held them back, that efforts to protect the dips kept them from fully engaging and thus it was Security’s fault that diplomacy failed.
My own book about the State Department in Iraq did not include any such crap, because it is not true. FSOs like to toss out that macho language to journalists, knowing they will never be called to act on it. You guys got fooled again, sorry.
State does like to hold on to that myth, that its officers are really rough and ready cowboys, always biting the bit to be allowed to engage freely if only those bad boys in Security did not place so many restrictions on them.
Indeed, the State Department’s own employees association gave away its “dissent” award this year to a Foreign Service Officer who argued just that point. Dissent award winner Joshua Polacheck stated that “In an attempt at perfect security, we made a series of choices with grave policy implications. These choices send a message of distrust to the people of our host nations… the siege mentality and isolation play into the goals of many terrorist organizations, including al-Qaida and Hezbollah.” He went to propose a policy where “Foreign Service personnel should be allowed to take personal responsibility for their own actions.”
One wonders in the aftermath of Benghazi how that award looks now in the halls of Foggy Bottom? One hopes that young Joshua is given a chance at a Libyan assignment to try out his theories on the ground.
Assessing risk is tricky business, and typically involves access to a wider range of information (imagery, intel, electronic intercepts, etc.) than can be widely shared with each and every young gun, even if said gunners had the ability to understand, synthesize and interpret it while doing their regular jobs. Without such knowledge, one is not assuming a risk, one is just acting dumb thinking it is brave, like driving a car blindfolded, or asking a taxi driver to drop you in the most dangerous neighborhood of an unfamiliar city to see what happens.
Even when an individual may be informed enough to make an intelligent risk assessment for him/herself, that ignores the wider political ramifications. The headline will not be “Dip Killed After Careful Personal Decision” but “Another U.S. Diplomat Slain in War of Terror.” It’s not just about you baby doll. Diplomats abroad are symbols, and a death has international implications.
It is easy to talk the talk, but takes a lot more than that to really walk the walk. Check with Chris Stevens.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What’s Wrong with This Picture?
In America, we are proud of our long and distinctive record of championing freedom of speech… we have worked to share our best practices.
–Secretary of State Hillary Clinton
We hope that others will join us in advancing a basic freedom for the Iranian people: the freedom to connect with one another and with their fellow human beings.
–President Barack Obama
On March 9, 2012, the Department of State issued a 16 page list of offenses I allegedly committed, for which they seek to fire me. Chief among those offenses is writing this blog, on my own time and on my own computer, an exercise of the very same rights to communicate and free speech Obama and Hillary demand for others:
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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