Saturday, July 5, 2014

Some final (I hope) thoughts on Hobby Lobby

For a "narrow" case decision, Hobby Lobby has generated a huge debate, as well as a bitter division among the nine justices themselves.    Here are some random thoughts.

1.  The majority in this decision about contraceptives used by women are all middle-aged, Roman Catholic males who were appointed by Republican presidents.  

2.  I wrote yesterday about the hypocrisy in Hobby Lobby's refusing contraceptive coverage on a religious freedom claim, objecting to forms they consider abortion-inducing -- yet they do business with China, a government that forces women to have abortions.   Today, I learned that there is an even more cogent hypocrisy:   Hobby Lobby itself reportedly has $70 million invested in companies that make birth control and morning after pills.

3.  The court majority has further enraged the women justices by a subsequent decision that granted the religion-oriented Wheaton College an exemption from even having to fill out the form that allows insurance companies to provide birth control without the college paying for it.  They said even filling out the form made them complicit in the use of contraceptives.

4.  This whole argument has become a mess.    Altio's majority opinion is full of inconsistencies, non sequeters, and shoddy reasoning.   For example:   He writes that this religious freedom exemption does not apply to other medical controversies like vaccines;  but he offers no reasoning for why this is different and deserves unique treatment.  The division in the court itself and in the country is becoming a real problem, and the court's reputation is already suffering.   The public's trust in SCOTUS has dropped.  But I think that is not so much because of the divisiveness but because it is becoming ever-clearer that this court is always going to tilt toward the interests of business over the citizens and because the inconsistencies that appear obvious to others are based on justices personal prejudices -- but they claim not to let personal feelings be involved.     It erodes trust.

5.  And where does this "religious freedom" for corporations end anyway?   What about all the other religions that might want to opt out of requirements based on religious beliefs:   Christian Scientists and Jehovah's Witnesses, opposed to blood transfusions?   What about Quakers and their pacifist beliefs?   Why should they have to pay for war?   And what about Muslims wanting to follow Sharia law?

 In fact, Alito even alluded to this simple remedy in his opinion, when he wrote that the best way to resolve this "would be for the government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health insurance policies due to their employers' religious objections."

Exactly.   This is perhaps the best argument we've had yet that it would be so much simpler, as well as less expensive, to just eliminate employer-provided health insurance and move to  a Medicare for All health care plan paid for through taxes.   Yes, some might call it socialized medicine.    Whatever you call it, Medicare is the most efficiently run, trouble-free, least expensive type of plan we could have.   That would eliminate all these corporations' requests for exemptions based on their religious beliefs, and it would eliminate people not wanting to be forced to buy insurance.   You just provide it and tax for it.  SCOTUS has already said that would be legal.

Just think.  All this Sturm und Drang would vanish if we had single payer insurance funded through taxes.


Friday, July 4, 2014

A July 4th reminder

Amid the celebrations of the Declaration of Independence that the original 13 colonies made to throw off the increasingly oppressive yoke of the English rule, remember that we are caught up in a very divisive conflict among our own people now about immigration reform.

We have angry mobs screaming "Get Out . . .  Go Home" at frightened women and children in California -- one of our later states that was mostly owned by Spanish speaking people who were there before we arrived.

There are no "Native Americans" except those we belatedly choose to call native Americans;  and look how we treated them.   Took the land that they inhabited, cheated them, pushed them out, confined them to reservations under terrible conditions.

So when did it become "our" land and our right to exclude others who want to come here?   I agree there are practical problems.   We can't just open the borders and take in everyone, because we have a collective society with agree-upon rights we give to each other.   It is a participatory democracy.

But could we, at least for today, put aside the hate and the fear of the outsiders?   Remember the words inscribed on the Statue of Liberty from a grateful France . . . "Give me you tired, your poor, your huddled masses yearning to be free."

Let's at least have a little humility and less entitlement and arrogance.   And let's put aside petty political squabbles and agree on some sensible reforms to our immigration system.

This is a nation founded on and by immigrants.  Except for the Native Americans, we all descend from immigrants -- and even their ancestors came here from somewhere, even if it was 10,000 years ago.

Of course, many of the "keep out" shouters refuse to believe scientific evidence that the earth existed ten thousand years ago, but that's another problem for another day.


SCOTUS Hobby Lobby decision . . . maybe not so bad ?

As I said I would in yesterday's posting about the Hobby Lobby decision, today I am trying to condense and explain a quite different point of view that comes from an interview on WABE (Atlanta's NPR radio station) with Mark Goldfeder, who is a Senior Lecturer at Emory University School of Law and a Senior Fellow at the Center for the Study of Law and Religion at Emory University.

As Professor Goldfeder explains, all the talk about Hobby Lobby (abbreviated hereafter as HL) being a "closely held" corporation really is not the significant thing, because 90% of U. S. companies are considered closely held.   They are, almost by definition, smaller companies -- many of them primarily a family business -- as opposed to a large, publicly traded corporation.  

However, according to a New York University report, 52% of all private employees work for such "closely held" companies.  It's not an insignificant number of people.   So in what sense was it a narrow decision that will not have much effect beyond this case?

The reason we don't need to worry about a slippery slope, according to Goldfeder, is that, in addition to being closely held, the corporation has to meet the further criteria of  "strict scrutiny jurisprudence."   These safeguards have been there for at least 21 years, since the passage of the Religious Freedom Restoration Act (RFRA).

Goldfeder explains that, unlike what most people assume, this was not primarily a constitutional case testing the freedom of religion right.  It was a case brought under the RFRA, which requires that to be granted an exception three criteria must be met.   And this HL case is the first one in those 21 years that has met those criteria.

The corporation must first convince the court that its religious objection is a sincerely and deeply held one and that the requirement would be a substantial burden on their belief system.  HL did this.

If that criterion is met, then the government can deny the exemption only if it shows:   (1) that it has a compelling interest in the requirement (to provide birth control) and (2) that there is no other way to satisfy that requirement.  If the government can convince the court on these two counts, the company loses the case, and no exemption is granted.  In other words, the law does not allow for religion to trump unless all three of these criteria are met.

The court was not convinced that the only way to provide contraceptive care for HL's employees was to require the company to violate its religious beliefs.   After all, the government has already established a way of doing that for catholic churches and hospitals.  Therefore, quite properly according to this reasoning, the court upheld the exemption for HL.

Goldfeder says that almost no corporations can meet that standard of strict scrutiny.  He says, further, that this way of deciding about an exemption has been available, at least since the RFRA became law in 1993.   What this case did was simply affirm that this provision in RFTA is in fact a good test, that the Court knows how to balance interests properly, and that occasionally, once every 50 years or so, a deserving group will get an exemption."

That is Professor Goldfeder's argument.   It makes the court decision seem both less outrageous and less ominous.  Whether he is correct remains to be seen.

Now I feel compelled, however, to question the court's finding that Hobby Lobby has a sincerely held religious objection in view of the fact that HL freely engages in trade in China, a country where government (until recently) compelled women to have abortions if they already had a child and got pregnant.   That makes an IUD and the birth control pill seem like pretty small potatoes.  Yet HL, it seems, is willing to put aside their religious objection to abortion in order to profit from its business in China.

However, what I don't know is whether Hobby Lobby only sells to China or whether they actually operate in that country, have employees there, etc.  That would make a lot of difference.    This argument will undoubtedly go on for some time.


Thursday, July 3, 2014

SCOTUS' decision and its naive slippery slope

The appalling naivite -- or their crass manipulativeness, take your pick -- of several recent landmark Supreme Court decisions is really troubling.    Justice Samuel Alito's majority opinion on the Hobby Lobby case, for example, blithely says it is a narrow decision which only applies to the specific case in question.   That is, it allowed the exception only in the case of four specific methods of birth control that the plaintiffs claim are actually abortions, but which scientific testimony says are not.   It was not a ruling on contraception, in general, or to more general religious objections concerning federal regulations of commerce, like whether a public services company can refuse to serve gays, citing religious objections to their "life style."

However, the day after the Hobby Lobby decision was announced, the court confirmed that the ruling, by not commenting on them, actually left in place lower court rulings that favored businesses that object on religious grounds to all 20 methods of government-approved contraception.   Thus the slippery slope of the ruling that was ostensibly about "abortion" (even though they were wrong about the facts)  Did Alito and his four concurees not understand -- when he issued his majority opinion -- that it actually was broader and left in place objections, mainly from Roman Catholics, about contraception in general?   If they all did understand it, why did they sign off on language that called it a narrow decision applying only to this case?

It seems at least we have a slippery slope in terms of the understanding what the decision actually does. even by the justices who concurred in the majority opinion.  Some critics have even called the opinion incoherent and inconsistent.  They're all lawyers, and they have smart law clerks.   Doesn't anybody really vet these things?   

It's certainly not reassuring when what comes from the court is not just a position you strongly disagree with, but seems so poorly thought out and so sloppily written.


PS:  I had already written this post to put up later when I read a different perspective from a Senior Fellow of the Emory University Center for Study of Law and Religion.  I decided to go ahead and post this one above as written -- because it is consistent with the main argument from the left -- and then write another blog about the other point of view for tomorrow.

Wednesday, July 2, 2014

Target says "No targets in our stores, please"

Target, the nation's third largest retailer, has banned guns from its stores, asking customers even in the states whose laws allow it, not to bring their guns into Target stores. 
"Bringing firearms to Target creates an environment that is at odds with the family-friendly shopping and work experience we strive to create," the announcement said.  
Target is by far the largest chain to do this so far.    A couple of restaurant chains, Chipotle and Chili's, and Starbucks coffee shops have also requested no guns.   Starbucks' CEO released an open letter "respectfully asking our patrons not to bring guns into our inside or outside facilities."

According to a Target press release, appeals from the group, Moms Demand Action for Gun Sense in America, influenced Target's decision.  More power to the moms.


Under-funding the IRS, then complaining about its failures

Thanks to Ralph Nader for an article on his blog highlighting this problem for the IRS.   At the same time that Darrell Issa is making life hell for IRS Commissioner John Koskinen -- insulting him  in hearings and allowing committee member Paul Ryan to accuse him of lying, without submitting evidence to back it up --the Republicans in the House are refusing to give the IRS a budget that allows them to properly do their job.

The annual budget for the whole IRS operation has been cut to $11.3 billion.   For such a large agency with such an important job, that is a paltry sum.   They have to process every tax return, both individual and corporate, which is somewhere over 100,000,000 returns.  They also have to conduct time-consuming audits of some of them;  and some of those wind up being taken to court for very expensive trials.  

In addition to those routine costs, you can probably subtract that .3 billion -- at least -- as the amount Issa has cost the IRS in time lost by IRS employees in order to produce all the documents (hundreds of thousands) his committee has demanded.

Not only that, but Commissioner Koskinen has tried to present evidence that, for every $1 its budget is increased, the IRS can recover $6 in taxes that are being evaded, many through questionable loopholes used by corporations and wealthy people with smart tax lawyers.  In other words, increasing the IRS budget would pay for itself 6 times over in unpaid taxes they are able to recover.

Koskinen says:  "I say that and everybody shrugs and goes on about their business.  I have not figured out either philosophically or psychologically why nobody seems to care whether we collect the revenue or not."

Of course, if the IRS does anything that can be twisted into a political football, Issa and his ilk milk it for all it's worth.   Like "Obamacare" and "amnesty for illegal immigrants" and "death panels," Republicans have succeeded in turning "IRS" into a viciously hated term.   The fact is, with its reduced budget, you are less likely to be audited by the IRS than at any time in recent history.

But why do I persist in trying to find the logic where there is none?


Tuesday, July 1, 2014

And now Kentucky . . .

23 t0 0 !!!

That's right.   The string of court decisions favorable to gay rights and marriage equality is now 23 in just over a year -- and NO decisions against.

Kentucky's ban on gay marriage has just been struck down by a federal judge.

This comes just days after the first Appeals Court decision upheld the lower court ruling on the Utah ban, and one day more since a federal judge overturned the Indiana ban.  

I think the momentum has now passed the point where SCOTUS could reasonably say it's not yet time for it to intervene and make a sweeping decision in the appeals that will be coming to it.   Expect a SCOTUS decision by the end of the term June 2015.


Some headline reactions to yesterday's SCOTUS decisions

As analysis of yesterday's Supreme Court decision proceeds, we're getting both a sense of alarm and an awareness of how broad these decisions may actually be.   It depends on what further court decisions use these narrow decisions as precedent -- either to extend the sweep or to keep it narrow.

But, for now, the left is expressing itself in some dramatic -- and possible quite true -- headlines:

1.  From a law professor at UCLA:   "Corporations are people, and they have more rights than you."

2.  Ryan Grimm, Huffington Post political writer:  "8 other laws that could be ignored now that Christians get to pick and choose."

3.  MSNBC's Rachel Maddow:  "Maddow Issues Dark Warning About Supreme Court."

4.  U.S. News:  "After Hobby Lobby, These 82 Corporations Could Drop Birth Control Coverage."

5.  Cecile Richards, CEO of Planned Parenthood:   "Corporations have more rights than women."

6.  Huffington Post:  "Chamber of Commerce Emerges as Big Supreme Court Winner."

Let's hope that there is more than a little hype in these reactions.   But we cannot afford to rely on that.   There is at least a 50/50 chance Republicans will take control of the Senate.   Then any nominees President Obama makes to the court will have a hard time getting confirmation.

It is vital not only to elect a Democratic president in 2016 but to keep control of the Senate in 2014.


One slightly right decision in the Georgia gun laws

Some Georgia school districts are turning down the option granted under a new Georgia law that allows schools to train and arm teachers and school administrators.    Their argument is that it will not make the schools safer but rather would create more problems.

Steve Smith, superintendent of the Bibb County School District (Macon) said:  "We could give (teachers) all the training in the world as to how to a shoot a gun, but knowing when to shoot poses a major problem."

The fact that the Georgia lawmakers left the decision up to each school district is the one slightly positive thing in an otherwise terrible law, which has been referred to as the "carry everywhere" law.


Monday, June 30, 2014

SCOTUS last two decisions: How bad are they?

As some were predicting, the Supreme Court saved their two "worst" decisions for the last day of the court's year.    Today, they announced that they (1) found in favor of the Hobby Lobby in granting an exception to the Affordable Care Act's requirement that "closely held," for-profit corporations can opt out of coverage for contraceptives for their employees if it goes against the owners' religious beliefs;  and (2) said that part-time, public service employees cannot be required to pay dues to the union.

Both of these decisions were 5 to 4, with the usual split and Kennedy siding with the conservatives on this one.   Both opinions were written by Justice Alito, who seems to be becoming the go-to guy for corporate interests on the court, along with Chief Justice Roberts.

Justice Ginsburg wrote a strongly worded dissent, joined by the other liberal justices, in the Hobby Lobby case.

Reaction so far is ranging from the rejoicing in conservative circles to despair in liberal circles.   We can take some solace in the fact the both decisions were not sweeping but rather narrow.   On the other hand both decisions seem likely to be the "foot in the door" that likely will lead to more sweeping changes later.

For example, once you've allowed for-profit corporations -- not just religious organizations -- to opt out of requirements because of religious beliefs of the owners, where do you stop in allowing religious objections?    And is the exemption from required union dues for part-time employees just the first step in dismantling unions altogether?

We'll hear a lot of discussion about all this in the coming days.   For now what seems certain:   this is the most business-friendly and corporation-friendly court in the last century.

Despair may be too strong a word;   but I am deeply concerned about the direction this court is taking us.   Now, not only do corporations have the right to "free speech" (Citizens United) but corporations also have now been given the right to have religious beliefs that put limits on what is required of that corporation.

This is not good.   This is perhaps the one single most important reason that we must elect a democrat as the next president.


PS:   As has been noted more than once:  SCOTUS has ruled that Hobby Lobby does not have to provide insurance coverage for contraceptives because it is against the owners' religion.   However, the same Hobby Lobby boss and his male employees can still get insurance coverage for their Viagra and their vasectomies.

Supreme irony

There is a supreme irony in the Supreme Court's decision that says no buffer zone is needed to protect the entrances and access to clinics where abortions are done.   The case being heard was presented as a group of very concerned anti-abortion people who simply want to have a quiet conversation to let those entering know there are alternatives and encourage them to consider them.

And, if some protesters get a bit rowdy, the clinic should just ask the police to get the people to calm down.    Well, we've all seen the evidence on tv that "quiet conversations" is not the problem.   It's the actual physical obstruction of the entrance, the huge signs thrust in the faces showing fetuses and horrible mangling, the viciously angry crowds screaming insult and threats, the violence and, yes, the murders.   That is the reality on the ground.

If it were simply a matter of different interpretations of the constitution, that would not be so hard to take.   What I see as a pattern is that they seem oblivious to the real world consequences -- just as in this case.   Quiet conversations is so far what what is actually the problem, it seems as though they are not really listening.  It leaves us feeling that we have not been heard.

But I have argued previously about the justices lack of considering the real consequences of their decisions.   This is about the irony of them denying a buffer zone, while at the same time their prior decisions have:

1.  Allowed buffer zones to be established at funerals of returning soldiers killed in our wars.

2.  Allowed buffer zones and restricted protest areas around political conventions.

3.  Approved laws that protect schools and churches from having bars within a certain distance.

4.  And the greatest irony of all:

The Supreme Court justices issued this ruling from behind their own buffer zone.   There are very strict regulations concerning the plaza in front of the entrance to the court building itself.  These regulations are justified to allow “unimpeded ingress and egress of visitors to the court” and to preserve “the appearance of the court as a body not swayed by external influence.”

If the court gave the same privilege to abortion clinics that it gives itself, that would be quite sufficient to take care of the situation.

But it did not do that.


Sunday, June 29, 2014

A tale of small town decency in the South

This is a tale of the decency of small southern towns -- a warmth and concern for people they know;  it transcends homophobia.   

The place:   Latta, South Carolina, population 1,410.
The characters:    Police Chief Crystal Moore, Mayor Earl Bullard;
     the City Council, and the people of Latta.

Crystal Moore had been with the Latta police force for 23 years.   She neither tried to hide, nor flaunted, the fact the she is lesbian.   She kept her personal life private, and she had a respected place in the community and was considered an effective police chief.

Last December Earl Bullard won an uncontested race for mayor.  He was known to have negative feelings about gays and lesbians, and that was proven when an audio recording surfaced of him going on a homophobic tirade.   As a precautionary measure before he took office, the City Council passed a vote of confidence in their police chief.

Less than four months in office, Bullard fired Moore after giving her seven trumped up  reprimands.   Hundreds of residents came to her defense, holding protests and prayer vigils, demanding that her job be restored.   They even raised money to help with her living expenses and legal fees.  A friend of Moore's told Huffington Post, "I never thought I'd have been at four protests for gay rights in Latta, SC."

Last week, the town held a referendum in which an overwhelming majority voted to change the government of Latta from "mayor-strong" to "council-strong."   In effect, it stripped Bullard of his power and gave the council the power to rehire Moore.

Bullard hadn't been idle, while this was going on.   Before Moore could be reinstalled, he surprised everyone by announcing that he had already hired a replacement.    The Council wasn't done though.  On Friday, they met and determined that Bullard had acted illegally by hiring a police chief without their consent.    They then invalidated the offer and reinstated Moore.

Crystal Moore has been sworn back in as police chief of Latta, S.C.

That is the heart-warming tale of decency.   But . . .  

Actually, Crystal Moore did not have a legal defense because in South Carolina and 28 other states, it is perfectly legal to fire someone just for being gay or lesbian.   It's wonderful to have people like those good folks in Latta.   But we also need to change those laws.    This is another thing Congress is dithering on -- passing ENDA (Employment Non-Discrimination Act).