I’ve long been a fan of H.L. Mencken, the iconoclastic journalist and critic of the early 20th Century. Just last summer I read A Religious Orgy in Tennessee, a collection of his coverage of the “Scopes Monkey Trial” for the Baltimore Evening Sun. That’s why I was surprised this week to discover I was unaware that in 1921 Mencken “translated” our founding document into “The Declaration of Independence in American.”
Mencken was adept at using humor, often quite biting, to make serious points. Writing in the wake of the Palmer Raids and the country’s first “Red Scare,” Mencken suggested that Declaration had become “unintelligible to the average American,” i.e., the government and those who supported the raids. He suggested that putting the Declaration into vernacular might “serve to prevent, or, at all events, to diminish that sort of terrorism.”
I think he astutely translated what is to me the heart and soul of the Declaration, its “self-evident” truths: “[F]irst, you and me is as good as anybody else, and maybe a damn sight better; second, nobody ain’t got no right to take away none of our rights; third, every man has got a right to live, to come and go as he pleases, and to have a good time however he likes, so long as he don’t interfere with nobody else. That any government that don’t give a man these rights ain’t worth a damn[.]”
Given the way things have been going this century, it looks like we need to start widely circulating Mencken’s translation.
But when things get so bad that a man ain’t hardly got no rights at all no more … then everybody ought to get together and throw the grafters out, and put in new ones who won’t carry on so high and steal so much[.]
H.L. Mencken, “The Declaration of Independence in American“
I have a number of problems with the Supreme Court’s Hobby Lobby decision on health insurance coverage of contraceptives and religious freedom. But the concept that corporations can freely exercise religion isn’t the main one. I’m more concerned about what I perceive to be far broader and more problematic issues.
The decision is framed in terms of the corporate owners’ “sincerely held religious beliefs.” But Justice Alito’s majority opinion also points out that “it is not for us to say that their religious beliefs are mistaken or insubstantial.” Either way, this concept seems to raise some difficult issues. (As an aside, might not an atheist have a sincerely held, albeit not “religious” belief directly stemming from exercising their right to freedom of religion?)
What if a “belief” is wrong? Let’s say someone has a sincerely held religious belief that vaccines cause autism. Less hypothetically, many sincerely believe in young earth creationism. Science has repeatedly shown that these ideas are demonstrably incorrect. Yet being objectively erroneous apparently is irrelevant to whether the belief can be a basis to seek exemption from federal law.
Without regard to whether a belief can be objectively evaluated, the ramifications are significant. As Justice Ginsburg asks in her dissent, does the decision “extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?” And it isn’t limited to health care.
What if someone claims that complying with minimum wage or equal pay laws or hiring people who accept evolution violates a sincerely held religious belief? Can someone who sincerely believes the Bible is the inerrant word of God use slaves in their business instead of paying employees? Granted, the government’s interests in the context of my hypotheticals may be compelling (which the Hobby Lobby majority said wasn’t the case for the contraceptive regulations) or it’s used the least restrictive way of achieving them (another area where the regulations fell short). That doesn’t mean there isn’t a potential problem for individuals.
Moreover, given that courts aren’t supposed to decide whether religious beliefs are “mistaken or insubstantial,” how do they determine what beliefs are worthy of accommodation and which aren’t? Isn’t that not only a value judgment but one where courts may be favoring one religion’s tenets over those of another? Regardless of corporate “personhood,” this decision could more deeply enmesh the government in assessing our individual beliefs.
Accommodations to religious beliefs or observances … must not significantly impinge on the interests of third parties.
Burwell v. Hobby Lobby (June 30, 2014), (Ginsburg, J. dissenting)
Interesting Reading in the Interweb Tubes
- Prey (“Unbeknownst to me, I wasn’t preparing to survive another attack, but rather to execute one.”)
- Why I’m so happy to be Foyled again (“Imagine getting to the end of your days with a lifetime of reading behind you and there being nothing to show for all those experiences save a slab of plastic, the contents of which are only licensed to you and could be cut off on a whim at any moment.”)
Blog Headline of the Week
Best Medical Advice of the Year
I woke up thinking a very pleasant thought. There is lots left in the world to read.
Nicholson Baker, The Anthologist
Among the big items in Thursday’s news cycle was the U.S. Supreme Court striking down a Massachusetts law creating a buffer zone around abortion clinics. It didn’t take long for a number of observers to pick up on an unusual perspective on the decision. Federal law makes it illegal to “parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display … a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” Right now, that’s a 252 by 98 foot buffer zone, compared to a 35-foot radius in the Massachusetts law
Almost any sensible person sees this as ironic. But who says the law has to be sensible? It actually can distinguish the two.
The Massachusetts statute said no one could “enter or remain” on a “public way or sidewalk” within 35 feet of any portion of an entrance, exit or driveway of an abortion clinic. (It excluded people entering and leaving the clinic, employees, and anyone using the sidewalk or street solely to go someplace other than the clinic.) Among the things that bothered the Supreme Court was that the statute restricted activity on public sidewalks, long recognized as ideal areas for First Amendment activities. Moreover, it didn’t matter what a person in the buffer zone was doing. If, for whatever reason, someone wanted to eat lunch or read a book within the 35 feet, they were breaking the law.
The federal law, 40 U.S.C. § 6135, seems to raise similar questions. In fact, in 1983 the Supreme Court held the statute unconstitutional — when it came to public sidewalks. As a result, subsequent court decisions allowed the statute to apply to the plaza and steps of the Supreme Court building. They reasoned that, unlike public sidewalks, the plaza hasn’t historically been a place for public expression. Thus, the public sidewalk issue key to the Massachusetts decision disappears.
The federal law also can be distinguished because, for example, it doesn’t preclude simply entering and strolling around in the plaza. But that doesn’t necessarily mean it’s constitutional. In fact, last June a federal judge said that even as applied to the plaza the statute violated the Constitution because absolutely bans the activities it covers. In other words, it doesn’t matter why someone might be gathering in the plaza or why a group of people may be parading in it. Just two days later, the Supreme Court adopted a regulation barring “demonstrations” on its grounds that are “reasonably likely to draw a crowd or onlookers.”
That regulation doesn’t change the law itself. The decision invalidating the law is now pending in a federal appeals court. It will be interesting to see if the Supreme Court ultimately ends up hearing the case and, if so, whether it will sense any irony in upholding one law and striking the other.
This clause [precluding assembling or parading on Supreme Court grounds] could apply to, and provide criminal penalties for … even, for example, the familiar line of preschool students from federal agency daycare centers, holding hands with chaperones, parading on the plaza on their first field trip to the Supreme Court.
U.S. District Judge Beryl A. Howell,
Hodge v. Talkin (June 11, 2013)