Tom Robinson exhorted his audience members to ask one question when they heard a politician on TV, ‘Why is this bastard lying to me?’[1] This question came to mind when I read the response of Governor Bobby Jindal (R-Louisiana) to the US Supreme Court’s decision that recognized same-sex marriage without reservation. Jindal had this to say on Fox News, ‘My Christian faith teaches me marriage is between a man and a woman…Already Christian businesses are facing discrimination if they don’t want to participate in wedding ceremonies that violate their sincerely held beliefs’[2]
In the last few years, this phrase has crept into US legal discourse and made a pernicious mockery of the original constitutional distinctions between faith and civic responsibility.
My first response was,’ If I never hear the disingenuous phrase ‘sincerely held religious belief’ in a legal context again, it will be too bloody soon. The way it has weaseled its way into our discourse makes my skin crawl.’
But why? Why does this phrase make me so uncomfortable? Part of it is that I’m not religious, but was raised to appreciate the dictum of Article VI of the Constitution, that ‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’.
Jindal continued. ‘We need to stand up for our First Amendment[3] rights. The court trumped our 10th Amendment[4] rights by overturning states’ decisions.’
In his treatise On Bullshit. Harry G. Frankfurt argues that the person who lies and the person who tells the truth both have an interest in the truth, whereas the one who bullshits is interested only in furthering his or her own interest, without regard to facts:
Since bullshit need not be false, it differs from lies in its misrepresentational intent. The bullshitter may not deceive us, or even intend to do so, either about the facts or about what he takes the facts to be. What he does necessarily attempt to deceive us about is his enterprise. His only indispensably distinctive characteristic is that in a certain way he misrepresents what he is up to.[5]
Jindal wasn’t lying, but he was bullshitting. This is the main issue I have with much of today’s political discourse, not to mention the religious demagoguery with which it often skips hand in hand. When politicians start saying that a decision should be scrapped because it goes against ‘sincerely held religious beliefs’, they’re engaging in BS. The truth or falsehood or pertinence of the matter is not at issue. What is at issue is the speaker is saying what is necessary to advance his own agenda, whatever that might be. In this case, that agenda seems to be Jindal’s presidential aspiration.
At what point does the invocation of an SHRB sink to the level of BS? To me, it’s a matter of whether the expression seeks to expand or contract the rights of others. In social media, I first expressed my disgust with Jindal’s position rather obliquely. A friend replied with reference to Sikhs and the right to incorporate traditional garb into school uniforms. From my perspective this is not a matter of sincere religious belief impinging on my right to do anything, and I support the student’s choice of attire.
When the Supreme Court rules, for example, that an employer can deny employees medical insurance coverage of any kind based on SHRB, this to me is BS on two levels. First, it’s a willful misinterpretation of the legislation in question (the Affordable Care Act) and it contracts the rights of the employee. My feeling is that an employer should never have had the ability to override the private decisions of those in his employ, and there’s probably legal precedent for expanding the right of the employee to keep his or her life outside of work a separate entity. (On my part this might be a misreading of various aspects of the Civil Rights Act. Title VII covers discrimination of various kinds.)
But the case I’m working from here, the decision in Burwell v. Hobby Lobby involves an employer pushing back against a law for whatever reason, and convincing a majority of the nine justices of the SC to give his position legal status. The decision itself might stink of bull if the justice’s opinion doesn’t reflect an honest reading of the law as it relates to legal and constitutional precedent.
Why does this decision stink? The ruling states that ‘the mandate was not the least restrictive way to ensure access to contraceptive care, noting that a less restrictive alternative was being provided for religious non-profits.’[6] Which of the court’s six male justices knew of the unsigned injunction they would hand down three days later, vacating this alternative? Of those six, five voted with the majority in Burwell.
While the justices told the truth as it stood in the moment: the religious non-profit method was in effect and could be used. It stinks because the honesty of the statement was only a means for the court’s majority to vacate part of the ACA without taking responsibility for it.
Does it matter that they didn’t sign the decision, that they didn’t defend their work? Had there been no signed dissent, I think it might. But I’m not writing about cowardice here. In her Wheaton College v. Burwell dissent, Justice Sotomayor recognised the BS of the Hobby Lobby ruling, ‘Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened … does not make it so.’[7]
Precisely.
Finally, I want to offer the truly cynical option that honesty and dishonesty are always side effects of discourse. Playwright David Mamet once offered, ‘[N]o one ever speaks except to obtain an objective. That’s the only reason anyone ever opens their mouth, onstage or offstage. They may use a language that seems revealing, but if so, it’s just coincidence, because what they’re trying to do is accomplish an objective.’[8]
I admit under duress that I’m only sensitive to BS when it serves those who argue against my sincerely held political positions, and am less sensitive to it when it serves my positions.
1. New Year’s eve, 1989-90, London, though I have a feeling it was his intro to one song or another, possibly Up Against the Wall, at most shows.
2. http://insider.foxnews.com/2015/06/29/bobby-jindal-gay-marriage-ruling-left-wants-our-first-amendment-rights (retrieved 5 July 2015)
3. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
4. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
5. Frankfurt, Harry G. On Bullshit. Princeton, NJ: Princeton University Press, 2005.
6. https://en.wikipedia.org/wiki/Burwell_v._Hobby_Lobby_Stores,_Inc. (retrieved 5 July 2015)
7. Quoted in “Female Justices Issue Scathing Dissent In The First Post-Hobby Lobby Birth Control Exemption”, http://www.businessinsider.com/sotomayor-ginsburg-kagan-dissent-wheaton-college-decision-supreme-court-2014-7#ixzz3f25DaMex (retrieved 5 July 2015)
8. David Mamet, The Art of Theater No. 11, interviewed by John Lahr, http://www.theparisreview.org/interviews/1280/the-art-of-theater-no-11-david-mame (retrieved 5 July 2015)
Joe Jots 