November 27, 2013
- and Corporate Personhood! All wrapped up in one tidy case which the Supreme Court has agreed to hear. It’s gotten a fair amount of publicity by now – the famous Hobby Lobby case, in which a corporation with religious owners demands that its (their?) freedom of conscience should allow them to defy the ACA’s mandate to include contraceptive coverage in its (their?) employees’ insurance package.
I’d like to write about it at length but there are other things I have to get out of the way before the holiday, so just a few words: In my view, even if it can be argued that under Citizens United a corporation, being a person, can be said to have a conscience – for let us grant that the logical consequences of an absurd premise are likely to be equally absurd – I don’t accept that any employer’s religious freedom should allow them to infringe on the personal freedom of their employees. If you are required by law or contract to pay someone something, it is their conscience and not yours that should dictate how they spend it. You can’t object to your landlord’s spending the rent money you pay on a lifestyle you consider immoral; the health coverage you owe your workers should be treated the same way.
One of the reasons the Court agreed to hear this, by the way, seems to be a conflict of circuits; a companion case involving a Mennonite furnitare company has been taken up also, and in the two cases the Court of Appeals reached opposite decisions. Which reminds me of a thought I had the other day – if the employers win in this case, does that mean that if we ever return to compulsory military service, the Mennonites will be able to demand conscientious objector status for all their workers (whether they want it or not)???
Another recent court case, which my clergy friends are naturally concerned about, involves the constitutionality of the tax exemption allowed for their housing allowances. When I have time I will write something wrapping up all of these issues into an overall discussion of how to understand the religion clauses of the First Amendment. Stay tuned!
November 20, 2013
I have mentioned a couple of times that a marriage equality case has been percolating through the courts of New Mexico. This state is said to be the only one left to have no law of any kind either allowing same-sex marriage or prohibiting it – no legislation,no constitutional provision, no judicial decree; so a number of county clerks have taken matters into their own hands and issued licenses to same-sex couples, and have been upheld by local courts. An appeal against these decisions has been argued before the state Supreme Court, which is expected to rule on it sometime in the near future.
Meanwhile, as I learned from this article in yesterday’s New York Times, for 10 years New Mexico has had a law prohibiting discrimination on the basis of orientation, and a few months ago the above-mentioned Court upheld that law in the case of a wedding photographer who claimed her religion would not let her accept the job of photographing a same-sex commitment ceremony (one with all the trappings of a wedding). Her argument was based not only on the state’s religious freedom act, which the Court held inapplicable because the State was not a party to the action, but on freedom of speech – photography being an art form, therefore involving an expressive element such that she felt that applying the law to her would in effect compel her to make a statement she did not agree with. Rather like the people who object to New Hampshire’s “Live Free or Die” license plates. The Court held, sensibly in my opinion, that no one would construe a commercially produced wedding album (or commitment ceremony album) as expressing the personal opinion of the photographer. She was asked to document the event, not to approve it. Still, the question was worth raising and considering seriously; it is not impossible that someday a line may be crossed in the direction of “compulsory speech,” though I don’t think it was crossed in this case. (Another set of cases involving similar free-speech arguments is that involving the increasingly gory warning labels cigarette makers and the like are being required to put on their products…)
There’s a fine discussion of the case here. It commends the opinion of Judge Bosson, also cited in the Times article, which concurs in the result but expresses some sympathy for the appellant’s position.
The fact that this decision was unanimous bodes well, I think, for the equal marriage case in the pipeline, though the law is a subtle thing and it would be rash to venture a firm prediction…
November 15, 2013
As you may have noticed, my passion for liberal causes such as Equal Marriage is matched, even sometimes maybe eclipsed, by my fascination with political and religious history, legal reasoning, and the like. I support Equal Marriage however it comes about, but I also love going into the precise details of how it comes about in each jurisdiction.
So what caught my attention in the news about the recent win in Hawaii was this: it was reported all along that the state already had a court decision mandating equal marriage 10 years before Massachusetts, but this was overturned by a state constitutional amendment before it could go into effect. Now how could the mere statute which was just enacted overturn the amendment? Well, what I found out today is that unlike many states which have amended their constitution to directly define marriage as between a man and a woman, the Hawaii amendment – approved by a 70% majority in a 1998 referendum – was much more modest; it only permitted the legislature to define marriage in such a way. Which the legislature promptly did. In effect, the 1998 amendment merely carved out an exception to the state’s equal protection clause, preventing the court from reaffirming its previous ruling.
Why did the Traditional Marriage camp not go farther, as in so many other states? One possibility is that they felt that the more modest amendment was the most they could get away with, given the state’s generally liberal climate. But it may just be that they didn’t think that more was needed. In those days, so long ago, it seemed that the only way Equal Marriage could come about was by a court ruling. An elected legislature would never do such a thing. The Trads presented themselves as populists - let the people vote, they said, let their representatives vote, Equal Marriage was just a symptom of judicial dictatorship, the product of unaccountable ivory-tower judges losing touch with real American values. Our side said “we don’t vote on rights,” a slogan I confess I never liked much, as if there were some a priori way to determine without voting on them just what our rights are.
That was 15 years ago.
Since then several legislatures have enacted Equal Marriage; voters in several states have approved it in referenda. Here in Massachusetts, the Trads were unable to get even 25% of the legislature to vote put an anti-equality amendment on the referendum ballot. Most of us on the Equal Marriage side would still rather not have to go through expensive and divisive political campaigns on the issue, but at least, when we have to, we can feel we have a good and growing chance of victory.
October 21, 2013
I support Marriage Equality and would be happy no matter how it came about – in New Mexico it seems to be percolating up from the county level – but I find the legal reasoning involved in the New Jersey decision especially interesting. As I suspected, the overruling of the Federal sections of DOMA has totally undercut the position of those Americans who’ve been on the fence, hoping to give same sex couples “equal rights” without the word “marriage.” New Jersey had civil unions which were required, by a 2006 decision of the state Supreme Court, to convey the same benefits as marriages. Now the courts might have chosen to apply this in a conservative manner, meaning only something like “benefits within the power of the State to give,” but instead they took a more pragmatic view: Federal benefits are an important part of what it means to be married in today’s world, and with a whole batch of them now being offered to same-sex couples as long as they have the “married” label, there is no way civil unions can be considered equal.
We’ll see how other “civil union” states react. Meanwhile there’s apparently going to be a statewide decision soon in New Mexico… And eventually there are going to be cases where same-sex couples from equal-marriage states move to other places and exercise Federal rights alongside of neighbors who don’t have them… Legal complications never end, which I guess is why there’s always a market for lawyers…
September 13, 2013
OK, I was too optimistic. The military government quickly began acting like a typical military government, demonizing its bête noire the Ikhwan (Muslim Brotherhood), throwing MB leaders in jail and threatening to put them on trial, using force against any public show of opposition. They defend their actions by invoking the threat of conspiratorial Islamism, and by their actions they give further encouragement to the very thing they oppose. As usual, opposite extremes feed on each other.
There are still signs however that Egypt may be ready to transcend the army/mosque dichotomy. After a brief honeymoon dominated by relief at being rid of Morsi, at least some secular elements of civil society have remembered why they opposed the Mubarak dictatorship in the first place. Some secular liberals have been demonstrating along with the Ikhwan; the latter in turn have stopped putting restoration of Morsi front and center of their demands. The military has for its part broadened its repression to include secular liberals, which can only increase the likelyhood of a rapprochement between the latter and the more moderate of the Ikhwan. If they can just learn to trust each other, and to earn each other’s trust; if they can just learn that the only way forward is as an Islamic but not Islamist society, one where headscarves are neither compulsory nor prohibited, where the laws are claimed to be rooted in “Islamic values” but do not seek to enact Shariah in any specific way, they just may be able to build a movement that can put an end to junta rule once and for all.
If not this year, then another… the possibility is still there for them to grab onto.
Of course reports of actual armed Islamist rebellion Sinai aren’t going to help…
July 5, 2013
Great. A coup in the largest Arab country.
I have to say something about this. T. M. Luhrmann will have to wait till next week.
In general I am opposed to the overthrow of elected governments by armed force. I do not make exceptions for governments that happen to adhere to belief systems that I dislike, religious or secular. I never liked it when the U. S. tolerated or (more probably, in some cases at least) instigated the overthrow of governments to save this or that country from Communism (Arbenz Guzman, Mossadegh, Allende). And I don’t want us tolerating (much less instigating) the overthrow of governments to save this or that country from whatever happens to be the religion of the majority of the people there, even if it’s our current bugbear Islam.
I will make an exception if there is a credible showing that the government in question, however lawfully elected, has begun behaving in a way that threatens to subvert the political process and indicates an unwillingness to be voted out of office in turn if the people so choose.
I am not at all sure that Morsi had crossed that line. It is clear though that large numbers of Egyptians had come to believe that he had or would. And in a nascent democracy, a country where the idea (a fortiori the actual habit) of government by consent and consultation has had only a year or so to take root, I am sympathetic to the idea that the people are entitled to decide a wrong turn has been taken, and demand a reboot.
What is not clear is whether this sentiment represents the majority, and the only way to tell is to have a new round of honest elections in which the party that was overthrown is allowed to compete fairly.
If the new regime keeps its word, arranges for transparent elections in the very near future, lets civilians run the country in the interim and is prepared to accept the outcome of the elections even if the Brotherhood gets back in, then all may be well. Reported arrests of Brotherhood leaders however are a bad sign. The danger is that the country will slip back into the dynamic that has plagued the region for decades, in which military dictatorship and religious fundamentalism are seen as the only alternatives, and well-meaning reasonable people feel compelled to support the atrocities of one side or the other.
As of now, I am cautiously optimistic. At least the number of people willing to go out into the streets and demand a third way, a liberal democratic alternative, is heartening. If the military is willing to trust this new movement, and the more moderate (or at least realistic) of the Islamists are willing to continue trying to develop a way of participating honestly in such a system, all may be well.
(Then there’s the question of how whatever happens in Egypt will impact Turkey, where competitive elections have been around for a while but the military has often shown a hair-trigger response to the threat of Islamic reaction…)
July 1, 2013
I’ve been planning to turn this week to my other favorite topic, religion, and specifically to some recent articles by T. M. Luhrmann, whom I’ve referred to before. But meanwhile this caught my eye in today’s news:
The supporters of Proposition 8 tried to get Justice Kennedy to order a halt to same-sex marriages in California on the grounds that last week’s decree (dismissing their appeal for lack of standing) isn’t supposed to go into effect for 25 days.
The 25 day rule is meant to allow for the off-chance of a rehearing. Which is very very rare.
So these guys who have already been ruled out of court, and have no realistic hope of winning in the end, are still struggling to put off the inevitable (which has never been shown to do them any real harm in the first place) for 25 days.
Like, all these couples who have been waiting for years for the right to marry, who have had the hope dangled in front of them and taken away more than once already, should have had the common decency to respect the feelings of the idiots who have been in their way and waited another 25 days.
All over California, America, the world, people are celebrating these marriages; even if we don’t know any of the people involved we are happy for them; and the idiots want us all to put it off for 25 days for no practical reason at all.
It is one thing to have deeply held beliefs that are alien to my own; it is one thing to have an honest opinion which happens to disagree with mine. There are a lot of conservatives I respect, and there are times when they make points that I regard as worth considering, or even valid. But this is not one of those times. This is just petty, small-minded, mean-spirited. This is just wanting to rain on someone else’s parade. A lot of religious and political conservatism in this country – by no means all of it, but a lot – just boils down to pure bile.
Another example: the recent flap over contraceptive coverage for employees of religious institutions. It was supposed to be about “freedom of conscience,” but now it turns out it isn’t enough for some people not to have to pay for procedures their faith disapproves of, they just don’t want their employees to have these procedures no matter who pays for them. As I knew all along, it isn’t their own freedom they’re concerned about, but their ability to restrict the freedom of people (specifically women) who work for them.
I do not by any means share Richard Dawkins’ disdain for all religion, but this kind of religion I want to see relegated to the ash heap of history ASAP. Let it die. Good riddance to it.