Wow, that didn’t take long!

Although it was pretty clear that the caveats in Monday’s Hobby Lobby decision – along the  lines of “we are only deciding the specific case before us, our decision says nothing about other possible cases” – wouldn’t hold much water in the long run, I was expecting the Court would manage to maintain the pretence for at least a term or two, until other cases had a chance to percolate up through the system. No way. The very next day they issued orders extending the effect of the decision to the whole range of contraceptives covered by the ACA, not just the four which Hobby Lobby claimed to “believe” were abortificants.  Then two days after that, they granted an injunction to Wheaton College effectively invalidating the “less restrictive alternative” whose presence they’d cited to justify the original decision. Even having to fill out the paperwork to trigger alternate means of coverage, it seems, can be claimed as an “excessive burden.” If the Wheaton case ends up being decided in favor of the College, doesn’t that invalidate the logic of Hobby Lobby?

The Supreme Court has done dumb things before, it has done malicious things, it has done cynical things. This is the first time I am aware of that the majority on the Court has revealed its cynicism so openly, so quickly.  The next step of course is to start ruling for “religious freedom” in cases not involving contraceptives. Like people claiming a religious objection to hiring gay people? Or members of racial minorities? Or will they draw a line and try to claim that contraceptives are different? Why? Because sex is a matter of uniquely religious concern?

And if we ever do get that stupid Religious Freedom Restoration Act repealed, will the Court turn around and say no, Hobby Lobby really follows from the First Amendment itself?

Can we trust anything they say?

Alas, the only way to deal with a bad Court is to get a better one appointed. If the Democratic Party can just hold on to the Presidency and the Senate for a decade or so…

 

Culture Wars, Polarization and SCOTUS

Are we in Dred Scott territory yet?

Not quite.

Chief Justice Taney back in 1857 was determined to settle the slavery question once and for all; he could have just dismissed the case for lack of jurisdiction, the plaintiff not being a “citizen of any state,” but instead he went on to discuss the merits at great length, so there would be no doubt. The effect of course was to enrage the North and help bring on the Civil War.

The Roberts Court in contrast is issuing opinions so closely tailored, so moderate and judicious, that Justice Scalia has taken to issuing very angry concurrences arguing that the official reasoning doesn’t go far enough. Last week the Court invalidated the Massachusetts 35-foot buffer zone around abortion clinics, but left plenty of space (so to speak) for the State to adopt less drastic measures focused on actual harassment. Women’s groups are understandably outraged at losing their 35-foot safety zone, but Scalia seemed just as outraged that Roberts didn’t strike down the very idea of protecting abortion clinics. The same day, the majority ruled against the President’s power to make “recess appointments” in the three-day gaps in “pro forma” Senate sessions; but it didn’t insist (as Scalia would have) that the only valid “recess” was the adjournment at the end of the year. A ten-day gap along the way, the majority indicated, might pass muster.

OK, the Court is trying to be reasonable, nothing wrong with that. But it’s getting harder and harder to pull off. This week, on the last day of their term, they had a chance to overrule a precedent allowing certain union fees to be imposed on public service employees who are not members of the union. They avoided going that far, by pulling out of its collective hat a new category of “partial public employees” to cover the home-care workers involved in the case at hand.

And of course there’s Hobby Lobby – totally outrageous to everyone on my side of the political spectrum, and still “not as bad as it might have been” thanks to some clever legal footwork. For one thing, the Court did not decide the case under the First Amendment, but rather the Religious Freedom Restoration Act, one of those dumb things (like DOMA) that the Clinton-era Democratic Congress passed to show that they weren’t “crazy leftists” out of touch with “middle American values.” This means once we get a really progressive majority elected to Congress, the thing can just be repealed and Hobby Lobby will be out in the cold.

– As to the absurdity of a corporate “person” having religious views, the Court dealt with that by singling out “closely held corporations” which can be regarded as a kind of extension of their owners. Now this kind of “corporate personhood” isn’t quite the same as what Citizens United was about; that followed a more traditional notion of the corporation as an entity distinct from its owners. What will this new argument mean for the “corporate veil”? Who knows? Sufficient unto the day is the evil thereof.

– And the Court insists that its ruling is only about contraception, and doesn’t address other issues like whether the Jehovah’s Witnesses have the right not to pay for employees’ blood transfusions, or whether anyone has the right to discriminate against gay people. At first glance this looks like mere handwaving, but really when you look at the opinion itself it finally comes down where it does by invoking as a “less restrictive alternative” the allowance the administration has already made in the case of churches and religious non-profits, which is supposed to give employees full contraceptive benefits without the employers having to get their hands dirty. So it really is a very narrow opinion, the Court is doing its best not to be outrageous – they just can’t bring it off. They can’t see that in the eyes of a growing majority of Americans, any claimed “right” to discriminate against women is unacceptable, and any right of an employer to “conscientiously” object to paying a mandated benefit is unacceptable.

Also there are voices pointing out that all this fuss would be unnecessary if we had a single payer health care system and employers were out of the loop altogether.

So yes, we’re as polarized as in the 1850’s, and no compromise is possible any longer between the forces of progress and of reaction; the most earnest efforts by Roberts and Alito not to be Taney are doomed to failure. We won’t have another Civil War, because the sides don’t align this time into states capable of raising their own armies. But either the country will be gridlocked forever, or one side will somehow manage to win; and demographics would indicate that it will be the side of progress.

 

 

Virginia is for Lovers – Regardless of Gender!!!!

I keep wanting to use this blog to deal with weighty philosophical, religious and political matters – the arguments of Alvin Plantinga which have just gotten a spate of publicity, the research of T. M. Luhrmann, the re-eruption of Italy’s ongoing political crisis. But the accelerating drive toward Marriage Equality keeps diverting my attention; and on Valentine’s Day, of all days, one can hardly complain.

As I mentioned yesterday, the newly elected Attorney General of Virginia had declared that he wouldn’t defend the state’s same-sex marriage ban in the litigation underway there. Well, the other shoe has dropped, the case has been decided, and the Commonwealth of Virginia can now claim to live up to its motto referenced in the title of this post. (Interestingly, it appears that the motto was adopted not long after the Supreme Court overruled the state’s ban on interracial marriage in the coincidentally named Loving case. I’ve no idea whether this was done deliberately or even consciously.)

The strength of the tide in favor of Equality is evidenced in these figures: over 150 million Americans – close to a majority – now live in states where same-sex marriages are legal or recognized; and adding the states with civil unions that are as marriage-like as possible brings the total to a clear majority. (From Chris Bowers https://twitter.com/ThisBowers?original_referer=https%3A%2F%2Ftwitter.com%2F&tw_i=434177698802307073&tw_p=tweetembed)

This of course assumes that the most recent Federal court decisions survive appeal. And if they do, as they are grounded firmly on the Equal Protection clause of the Federal Constitution, it is hard to see how the result will be other than to compel recognition of same-sex marriage in all states. And in any case the pressure of evolving public opinion upon the political process seems likely to lead to a similar result somewhere down the line. A few years ago Indiana began the process of amending the state constitution to ban same-sex marriages and civil unions as well; the proposal was supposed to go to a referendum this year, but in the meanwhile it became obvious that it wouldn’t pass unless it were amended to allow civil unions; this means another legislative session will have to approve the amended version before the referendum can be held, and by then who knows?

On a more negative note, in part of Georgia Valentine’s day has been postponed due to weather. Can’t win them all.

 

 

 

Oklahoma, Virginia, Kentucky….

Since my last post there have been several developments in the struggle for marriage equailty. First a federal district court in Oklahoma ruled against that state’s ban on same-sex marriage; this decision has been stayed pending appeal. Like the one in Utah, it seems to be based directly on the Equal Protection clause of the Federal Constitution, so that it cannot be upheld without affecting the whole country.

Then the new Attorney General of Virginia declared that he wouldn’t defend the state’s ban in the litigation underway there. This not only seems likely to add another state to the Equal Marriage column, it also indicates growing public acceptance of the concept, being the voice of an elected official rather than a politically unaccountable judge.

And now Kentucky. The case there didn’t directly address the state’s right to refuse to perform same-sex marriage, merely demanded recognition of such marriages legally performed elsewhere. The judge properly limited himself to this issue, but dealt with it in terms which strongly imply that if called upon, he would invalidate the ban altogether: no religious, traditional or personal moral belief can without some further showing trump the Equal Protection Clause, and no such further showing has been found to be valid. If this manages to stand, even without there being a broader ruling at a higher level, it at least invalidates that part of the federal DOMA which was left in place by SCOTUS, the part exempting the states from the usual comity requirement.

It looks more and more like endgame…

Endgame?

I was going to post some seasonal reflections yesterday or today, with just a passing note of congratulation to New Mexico for becoming (as I had anticipated) the 17th state with marriage equality. Then I saw the news that Utah of all places suddenly leapt into place as 18th.

http://news.yahoo.com/gay-couples-wed-utah-judge-overturns-ban-001651193.html

Much of the coverage of this surprising development centers on the fact that Utah is the home state (and is mostly populated by members) of the Church of Jesus Christ of Latter-Day Saints, aka Mormons, whose opposition to same-sex marriage led them to spend prodigious amounts of money to support Proposition 8 in California a few years back. In addition, the state had adopted its own constitutional amendment to the same effect. (New Mexico on the other hand was the only state where the marriage law simply said nothing about gender, because until a couple of decades or so no one thought it necessary…)

But to me the striking thing is that for the first time to my knowledge a federal district court stated explicitly, and made it the basic legal grounds for a decision (the “law of the case” as they say), that equal marriage is itself absolutely required by the federal constitution. Previous court rulings had been based on equal protection clauses in the constitutions of the various states, which is why they were in some cases overturned by state constitutional amendments such as Proposition 8. The only way to reverse such an amendment, short of a ruling like the one in Utah, is for the state to enact a new counter-amendment, as I think  was done recently in one or two states. But invocation of the federal constitution trumps anything a state can do. No court had quite taken this step to date, because of the ramifications: if the federal constitution mandates marriage equality, it mandates it everywhere, in all states. End of all DOMAs at any level, once and for all. So such a decision will certainly be appealed and almost certainly be heard by the Supreme Court.

The district court that overruled Proposition 8 delicately stopped short of this, settling for a rather tenuous argument based on the fact that California had already recognized marriage equality, and the act of taking it back once it had been granted was what triggered special scrutiny. It is unclear whether this would have survived a proper appeal; what destroyed Prop 8 was the decision by Governor Brown and the Attorney General of the state not to back the appeal, leaving only a question of standing for higher courts to deal with summarily and with no precedential value.

Now, that cat is out of the bag. The State of Utah will appeal, and if it loses, that’s the end. Equal Marriage for all.

If it wins, the struggle continues…

 

 

Religion, Sex, Money, Obamacare

– 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!

Some thoughts on how to think about marriage

The struggle for marriage equality has been very much in the news this week, with the Supreme Court hearing oral arguments in two major cases, one challenging the constitutionality of California’s Proposition 8, the other that of the section of the Defense of Marriage Act which denies marital status at the federal level to same-sex couples married by the laws of their own state.

Now this is clearly not the Warren or Burger Court, but it doesn’t seem to be the Taney Court either; the course of the arguments (and especially the questions and comments of likely swing vote Justice Kennedy) makes it seem unlikely that we’ll get a sweeping statement either for or against same-sex marriage on its own merits. More likely a narrow decision which will affect as few people as possible, maybe even a dismissal of one or both cases for lack of standing – a real possibility because both President Obama and Governor Brown have declined to defend their respective laws on appeal, leaving rather irregular bodies standing before the Court in their place.

But what I really want to write about here is the complaint that the Court is being asked to “redefine marriage.” Justice Roberts used the expression in his questions; most social conservatives use it. The way I see it, the Court is simply being asked to interpret the Constitution. The Constitution doesn’t define “marriage;” it doesn’t even use the word. Or “marry.” I did a word search; I can’t find “man” or “woman” either, only “person.” What it does mention is “equal protection of the laws.” That is what the Court is being asked to “define.” Now this isn’t necessarily a simple matter. After all, just about every law differentiates between groups of people in one way or another; what makes a differentiation “unequal” and therefore unconstitutional? There’s a whole body of jurisdiction on this, I don’t want to get into the details right now, but if the Court finds that there is no adequate justification for the government to differentiate between same-sex and opposite-sex couples, as I believe there is not, the government will simply  have to stop differentiating. Whether it decides to continue to call this expanded class of relationships “marriage,” or “civil union” (so long as it’s done consistently, not “civil union” for gays only), or take a libertarian position and stop recognizing any particular kind of relationship but just enforce whatever kind of domestic contract people freely enter into, is a different question. If the upshot is that “marriage” is redefined, it’s only because public sentiment opposes the option of dropping the word from the laws altogether.

Aaaargh. I’ve got a whole lot to say about how “religion” fits in, and the role of antibiotics and modern sanitation in the recent changes to sexual morality, and if I try to do it all now I’ll start missing meals and sleep and get cranky. So I’ll let the above stand, post it, and try to get back to the keyboard next week.

The Constitution we have… (continued)

3) But how did it come about that a lame-duck Congress – the one with a Federalist majority, which had just been resoundingly overturned – came to be responsible for not only counting and certifying the electoral vote, but also stepping in and picking the winners if no one had the necessary majority? I used to think it was a simple straightforward matter of timing; whereas now, under the 20th Amendment, the Congressional term starts on January 3 and the Presidential term on the 20th, in those days all terms started on March 4. Well, that’s true as far as it goes, but why? I assumed that the Constitution had originally specified the March date, but no, it seems that was introduced more or less by accident; all the Constitution said was that Congress was to meet on the first Monday in December every year unless it voted to change the date. The original intent seems to have been that the states would arrange elections in the fall of every even-numbered year, and the new Congress would convene that December. (It occurs to me that this meshes well with the provision later adopted by the second Congress, that the Electors would cast their ballots on the first Wednesday in December. If things had gone as originally intended, the new Congress would have been in place by then, to receive and inspect the ballots, hold its own election if no one had the necessary majority, and have a new President in office by maybe sometime early January.)

But by the time there were enough ratifications to put the Constitution into effect, it was already September of 1788, and when the old Continental Congress met for the last time to certify the result and arrange the transition, they considered it too late to get the new Congress elected to meet that year. At the same time, no one wanted to wait till the following December, so they split the difference and came up with the March date for the first Government under the Constitution to take office. As it happened the new Congress wasn’t able to assemble a quorum till April 6, when they counted the electoral votes which, to no one’s surprise, unanimously elected George Washington.

Well, a month wasn’t a long time in those days, so no one saw a problem in Congress pre-dating the start of its own term and Washington’s to March 4, the date originally intended; but then, because the President’s term was specified as 4 years, and their own as 2 for Representatives and 6 for Senators, subsequent Presidents and Congresses could not take office before that date (in the odd-numbered, non-election year), and the country was stuck with a lame-duck period unlike anything else in the modern world; worse yet, they never saw fit to provide (except sometimes on an ad hoc basis) an alternative to the December date for Congress to actually convene, so we were stuck with a really absurd rhythm in which a Congress would be elected in the fall of an even-numbered year, but not be able to meet (unless the old Congress specifically summoned them, which happened occasionally) until the  December of the next year; it would then have a “long session” which would last as long into the year after that as needed, i.e. the next election year, and then re-convene for a “short session” in December after the election, to take care of business through March 3; then there would be no Congress in session until the next December.

Again, that’s enough for one day. It will take me a while longer to digest the next major section of Ackerman’s book, devoted to issues relating to the Federal judiciary in the wake of the 1800 transfer of power: the “midnight judges,” the Jeffersonians’ attempts to get rid of as many of them as possible, and the resulting court cases, including of course Marbury v. Madison.

Maybe I’ll write of other things in the meanwhile. Bear with me!

The Constitution we have…

The other day I noticed the cover of the current edition of American Prospect – not the 9/11 one but the following month’s, not online yet (or I’d post a link, of course) but on the stands and in libraries already. It shows a standard portrait of George Washington with a mouth balloon saying “Oops!” – illustrating an article by Harold Meyerson entitled “Did the Founders Screw Up? – Why presidential democracy no longer works for America.”

I don’t wish to get into the details of the article right now, but rather report what came to my mind first when I saw the cover: first, I thought the title was perhaps inaccurate in its provocative tone, in that there is considerable middle ground between (1) not quite anticipating developments two centuries in advance, and (2) screwing up; but then I was reminded of how the Constitution as originally written caused a near-disaster just 12 years later, in the election of 1800; though there have been several books on that subject recently, the one I immediately thought of  was Bruce Ackerman’s similarly titled The Failure of the Founding Fathers. So I went back to it to remind myself of some of its contents.

What is well known, or at least what I’ve known about the 1800 election since I was a kid, is that the Constitution origially had the Presidential Electors each cast  two ballots for the Presidency, at least one of which had to be for a candidate from outside the Elector’s own state; to be elected, one had to have the votes of a majority of the Electors; and the runner-up became Vice President. This failed to anticipate the formation of national parties putting forward candidates for both offices as a single “ticket;” thus Jefferson and Burr, the winners in 1800, ended up with an exact tie in the electoral vote, with nothing to indicate which should be Pres and which VP (though it seems clear that everyone intended Jefferson to be the head of the ticket). This threw the election into the House of Representatives, where the defeated Federalist party was still in charge and came close to electing Burr over Jefferson out of sheer mischief, until wiser heads prevailed. Promptly thereafter the 12th Amendment was adopted, giving us more or less the system we have now.

Things I hadn’t known, or hadn’t paid sufficient attention to, before I read them in Ackerman:

1) Only under the original system could there have been both an exact tie and an absolute majority of the Electors. There were 138 Electors that year; thus 276 votes were cast, but the necessary majority was a majority of the 138 only, that is 70. As it happened, Jefferson and Burr each got 73. This is why the run-off in the House was just between the two of them; if neither had gotten to 70, a more familiar provision would have taken effect allowing the House to choose between the top 5 candidates (changed by the 12th Amendment to top 3). This is why the Federalists weren’t able to simply elect their own candidate, presumably Adams though Ackerman suggests they might have preferred C. C. Pinckney as marginally more acceptable to at least some Jeffersonians.

2) In fact it could have turned out that way;  the ballot submitted by the four Georgia electors was technically deficient, and the Congress could have voted to dismiss them, leaving Jefferson and Burr tied at 69. Now, in accordance with the Constitution, the presiding officer of the joint session where the votes were counted was the President of the Senate, i.e. the sitting VP, Jefferson himself… but he could have been overruled on this if anyone had really wanted to make trouble, or if anyone really suspected hanky-panky in Georgia (which everyone knew intended to vote for Jefferson-Burr).

The plot thickens; but this is already long enough for a post, so I’ll end here for now and put up more tomorrow (a good bit is already written, so you can be pretty sure something will appear).