Tuesday, December 27, 2022

Eroding the Constitution

This former federal prosecutor and Republican, now a Democrat, so strongly disagrees with Lauren Boebert that he believes an explanation is unnecessary:He's a smart guy because if I held this view, I, too, would avoid all attempts at rationalization.   

On January 4, 2019, The Washington Post reported

A newly diverse House of Representatives has passed a rule that, for the first time in 181 years, allows head coverings to be worn on the House floor for religious reasons.

The rules package passed Thursday, 234 to 197, includes a number of provisions, among them several seeking to “restore inclusion and diversity.” It passed the same day the country’s first female Muslim members of Congress took office — Rashida Tlaib of Michigan and Ilhan Omar of Minnesota, who wears a head covering. Both women are Democrats.

The ban on head coverings has been in place since 1837, the Washington Post history blog Retropolis reported Friday.

Lifting of the ban

was proposed last month by Rep. Nancy Pelosi (D-Calif.), then the House minority leader; Rep. Jim McGovern (Mass.), the House Rules Committee’s ranking Democrat; and Omar, of Minnesota. It was proposed to accommodate Omar. The rule change reads:

“During the session of the House, a Member, Delegate, or Resident Commissioner may not wear nonreligious headdress or a hat or remain by the Clerk’s desk during the call of the roll or the counting of ballots. A person on the floor of the House may not smoke or use a mobile electronic device that impairs decorum.”

Nathan Diament, executive director of the Orthodox Union Advocacy Center, which represents the interests of Orthodox Jews, said when the rule change was recently proposed that no Jewish House member had made the ban an issue in the past. However, he said there have been special House sessions when Jewish men wore head coverings — including when Israeli Prime Minister Benjamin Netanyahu addressed Congress, and Israeli officials wore yarmulkes — called “kippot” in Hebrew.

“The Orthodox Union has long supported laws and policies that foster the accommodation of religious practices in the workplace. Religious practices — such as wearing religious garb, whether a kippot or a hijab, should be accommodated in all workplaces — including in the halls of Congress,” he said.

They should- but only if the rules apply to everyone. In the US House, they do not because head covering still is prohibited if it is "nonreligious." If it is religious, it is acceptable, prompted by the election of a religious Muslim (Omar), whom Nancy Pelosi, the Toughest Congressional Leader Ever&nbsp™; chose to accommodate.

Of course, we have no way of knowing with any confidence whether if a Christian or Jewish member, accompanied by profession of religious faith, had wanted to wear religious "headdress or a hat," he or she would be afforded the privilege. My guess is: previously, no; currently, yes, but that is mere speculation.

Admittedly, that is off-topic because Christians are not being discriminated against nor, at least in the short clip Filipkowski offered, was Representative Boebert claiming they are.  Instead, she maintained that Democrats were being hypocritical in changing House rules to favor an individual wanting to don a religious garment while boasting that they support "separation of church and state." 

Well, of course, they are. McGovern did not boldly propose a rule change which would have eroded the stuffiness (nay I say "elitism?") of House rules by permitting someone on the House floor to wear a "headdress or a hat." It was only to favor religion, which not only seems to be violative of Amendment 1A, but is.  The Constitution does not demand that Congress make no law respecting establishment of a (specific) religion; it reads "Congress shall make no law respecting an establishment of religion." Whether the House of Representatives would permit a non-Muslim to wear head covering for religious (or alleged) religious reasons is not determinative. Allowing anyone to do, Absent allowing an individual to do so for non-religious reasons, allowing the garb is respecting establishment of religion.

Alas, when it is convenient, there is no such thing as a "strict constructionist."  Conservatives for many years now have pushed policies which allow carve-outs for an individual who says proclaims a religious faith exemption in the name of the God of the Old and New Testaments.

These have come in the manner of performing abortions or providing reproductive health services. They have been applied to impose discrimination upon gay persons, such as in foster care, or to "fire employees who have used abortion care, contraceptives or assisted reproductive technology, or who have had sex or become pregnant outside of marriage; or even to ignore federal law preventing discrimination on the basis of disability."  

The most famous example may be the case with plaintiffs The Little Sisters of the Poor Saints Peter and Paul House, in which the US Supreme Court decided that religious objectors are to be exempted from the regulatory requirement to provide health pans that include contraceptive coverage. If even the High Court doesn't believe in wall of separation inherent in the First Amendment, it's tough to get politicians of either party to risk offending people on behalf of the Constitution.

Boebert's 2019 complaint is way less significant than efforts by Republican officials and their fellow travelers to satisfy demands of conservatives, in the street or donors, for a society in which individuals may claim a prerogative to discriminate because of  "faith." Yet, where theocracy is absent, claiming a privilege in the name of either Jesus or Allah represents a dangerous trend. If a stopped clock can be right twice a day, surely even Lauren Boebert can be right every four years.

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