The Widdershins

Archive for the ‘SCOTUS’ Category

Top of the Tuesday to you Widdershin friends. I hope your 4th was a good one. Since it seems my fingers have retaken residence over the computer home keys, I’m pleased to report my 4th was “digitally” unremarkable.

Last Friday’s post on the effects of the Hobby Lobby case by Caterwaulin’ Sam Alito and the Four Supremes was The Supreme Court as the Supremesfinished and posted about 5:00 p.m. on Thursday. As you will recall, Alito went out of his way to assuage any trepidation about the effects of the ruling and even Justice Kennedy harmonized this refrain, “the majority opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” We Widdershinville “why-askers” knew better.

Thursday evening, just as the Supremes left for summer vacay, was where the “rubbers” met the road on the whole religious liberty and contraceptive issue. A mere three days after issuing the decision in Burwell v. Hobby Lobby, with all its cooing and sweet nothings about it just being the outer most tip of religious liberty, the five conservative justices stuck it in with reckless abandon.

The down and dirty is this: In an unsigned emergency order granted Thursday evening, the court said the religious exemption “work around” it had just praised in the Hobby Lobby decision most likely would also be struck down. Accordingly, the ballyhooed “work around” would also be found an impermissible burden on the freedom of religious employers.

Whilst we slept, Monday’s permissible cure for “burdening” employers suddenly became the disease. In short, having explicitly promised that the Hobby Lobby decision would go no further than closely held corporations, the court went back on its word, then promptly skipped town for the summer.

Uterus CaucusThe sneak attack of Thursday night last was the first skirmish in the great Womb Wars of 2014-15. On the one side you have five Catholic testosterone units with their “berobed” dangling junk versus the Uterus Caucus, the three female Justices. Here’s how it played out.

The five conservative Justices, constituting a majority, issued an emergency temporary injunction to Wheaton College. Wheaton is a small Illinois Christian college that has never had to comply with the contraceptive mandate of the ACA since there has always been an exemption and a “work around” for religious organizations.

To get the exemption they just have to file a short form, known as Form 700, that says, “We have a religious objection to providing contraception.” No one checks. No one is questioned. No one really cares because the cost of the contraceptives is borne through a government “work around” with the insurance companies.

That is, no one cares except Wheaton and several similarly situated plaintiffs. These religious organizations have filed appeals and are awaiting their day before the Supremes next term. Their beef: Someone signing the two page Form 700 triggers some third-party to provide the contraception, which in turn triggers women to have access to IUDs or morning-after pills, which according to their admittedly unscientific 16th Century principles, is akin to abortions, and thus violates their collective religious conscience.

Wheaton College

Wheaton College

Wheaton College and the other plaintiffs won’t abide being branded with the scarlet ACA even though their “religious burden” is merely signing a form. Their argument is the butterfly effect of contraception: Any time Wheaton flaps its religious-conscience wings, some woman somewhere gets an IUD and Wheaton’s religious liberties are violated.

This emergency injunction is in addition to the cases the court kicked back to various lower courts immediately after last Monday’s decision. In one case, the employer had objections to not just IUDs and the morning-after pill, but twenty other different types of contraception guaranteed by the ACA.

Another of these cases started out as a religious objection by the business owner, but morphed into a, “What gives anyone the right to tell me what I have to do? That’s my issue, that’s what I object to, and that’s the beginning and end of the story,” case. That libertarian screed is the stuff the Brothers Koch take Viagra and dream about at night.

Now back to Wheaton, and this is why I felt it necessary to update last Friday’s post: It is truly an extraordinary act for the Supreme Court to issue an emergency temporary injunction. It’s not unheard of, but it is about as rare as a civil pleasantry being uttered by Antonin Scalia.

SotomayorWhat’s even more rare, even unheard of, is a seventeen page dissent to a four-paragraph order granting the injunction. The dissent, penned by Justice Sotomayor and joined by Justices Ginsberg and Kagan, was blistering. It centered on what we discussed last Friday, never before has the court allowed a party to determine, for itself, what constitutes a “substantial religious burden”. It is the equivalent of never questioning a three-year old who is allowed to only eat at McDonald’s and taking great pleasure when he smiles through his swollen scurvy-ridden gums.

In her dissent Sotomayor said, “Wheaton is mistaken — not as a matter of religious faith, in which it is undoubtedly sincere, but as a matter of law: Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are substantial.” She adopted an analogy from the Seventh Circuit:

Say a Quaker is called up for the draft and requests an exemption from service because of his religious beliefs. That’s fine, and RFRA may well dictate he can be exempted from service as a conscientious objector. But what if he then realizes some other person will be drafted to take his place? Can he object to his own exemption because that requires somebody else to take up arms?

If signing a short form is now a substantial religious burden as Wheaton College and others claim, there is little that Opinions Aheadisn’t a substantial burden under the Hobby Lobby decision. If that is the case, Sotomayor etched a nice little epitaph in her dissent, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Translated into the vernacular: No matter how sincere the sweet-nothings sound before you are right and royally violated, those sweet assurances never turn into calls the next day, but just the same, you remain right and royally screwed.

This is your intrepid contraceptive correspondent signing off with, “Have a nice day and this is an open thread.”

 

Happy 4th of July Widdershins. I hope your day and weekend is filled with egg tossing, sack races, cookouts, and oohing and aahing over fireworks commemorating the uniqueness of the American experiment. Here in the “valley of the Widdershins,” today I can offer nothing more patriotic than laying bare the most recent blemish upon an American ideal — the Hobby Lobby decision.

Amish Art

It’s funny how the mind works. When new information is introduced, there is no way to tell where that information will take your mind. That was the situation Monday morning last when I sat awaiting the Supreme Court opinion in the Hobby Lobby case.

When the decision was announced my mind didn’t focus on what the decision held. My thoughts didn’t focus on the constitutional insult of bestowing religious protection upon for-profit corporations nor did they focus on the raw ugliness of favoring the powerful over the powerless. It didn‘t even occur to me to focus on how we got to the point of relitigating contraception — an issue thought to be settled since the 1960s.

No, what occurred to me when I heard that Justice Alito had authored the Hobby Lobby decision was the art he had selected to decorate his chambers while he was on the Third Circuit Court of Appeals. His personal chambers were festooned with all matter of Amish folk art. The thing that struck me about that art was its flatness, its one-dimensionalism, and its utter lack of depth. When the findings of the Hobby Lobby opinion began to set in, my mind’s wandering to his decorating choices was strangely appropriate since art always seems to mirror the admirer.

Admittedly I am no art connoisseur and since there is only so much you can say about painted umbrella stands that began their lives as butter churns, I will leave the art review to others. What I would like to talk about today are those things upon which I didn’t immediately focus last Monday.

Alito and BushThe holding in the Hobby Lobby case was fairly forthcoming. It was couched as a statutory interpretation case focusing on the Religious Freedom Restoration Act. RFRA was championed by Ted Kennedy and passed the Senate 97-0 as a remedy to the 1990 Supreme Court case of Employment Division of Oregon v. Smith, where two Native Americans were fired from their jobs due to testing positive after ingesting peyote as part of a traditional religious service.

The main thrust of RFRA was, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” In applying RFRA to the Hobby Lobby set of facts, the Court held:

  1. RFRA was written to protect individuals’ religious freedoms and under RFRA, corporations count as people thereby their religious freedoms also get protection.
  2. The ACA requirement to cover contraception violated RFRA because the ACA mandated that businesses “engage in conduct that seriously violates their sincere religious belief that life begins at conception.”
  3. If the federal government wanted to increase access to birth control, the Court thinks government could do it in ways that didn’t violate religious freedom, like directly distributing contraceptives.

The Court also attempted to limit those who might benefit from this finding, saying that only “closely held” corporations can be protected under RFRA. Since about 90 percent of companies are closely-held and they employ about 52% of the workforce, this is a distinction without a real difference.

That is what the decision held, now let’s turn to the intellectual folly of bestowing religious freedom protection on for-profit corporations and the ethical revulsion associated with favoring the powerful few over the powerless many.

In writing the opinion, the first obstacle Justice Alito had to overcome were the words of former Justice John Paul Stevens, who had written, ”corporations have no consciences, no beliefs, no feelings, no thoughts, no desires.“ In fact, RFRA referred only to a “person’s” exercise of religion — there was no mention of corporations. Admitting this, Alito opined “artificial persons” are often excluded from the definition of personhood so he went outside the RFRA and reverted to the generalized “Dictionary Act” definition of “person” which included corporations (more on the significance of this later).

After this leaky logical hole was plugged, there were myriad others with which to contend. What about the religious beliefs forbidding blood transfusions, vaccines or psychiatric care? Without any legal test, justification or precedent, Alito summarily declared, “they don’t qualify for this exception.” Why? Because he says so.

Presently, there are over seventy cases with ACA issues rolling toward the Supreme Court. Of those seventy, fifty-one have to do with religion-based challenges to contraception issues. Alito’s cursory edict of “because I say so” is not likely to hold under the onslaught of fifty-plus factual situations.

Alito is the one on the right...

Alito is the one on the right…

Another leaky hole just slightly smaller than the state of Montana: What is “sincere religious belief”? Again, not a hint of a clue in this decision — no legal test, no legal precedent. The reason is pretty simple. How do you objectively measure a religious belief premised on a patently false understanding of medicine and science? That is what is at issue here, the belief held by the Green family is untrue according to medical science, but undoubtedly they are “serious” about their baseless belief.

I would submit this is one of the largest hidden pitfalls of the Hobby Lobby case from the standpoint of organized religion and their believers. This case was sold by groups of “prophets of profit” as an abortion case. Why? Because it is easy to tap into the emotions associated with the issue and most importantly, it is easy to turn on the fundraising taps.

Without a legal test or any guidance, the Hobby Lobby decision allows the barometer for one’s sincerity of religious belief to be at the whim and circumstance of those sitting on the Supreme Court. This is a dangerous precedent. For the first time in our history, a person’s religious belief is to be measured by the fiat of the subjective judgment of those then sitting on the Court. Simply put, by a majority vote, the Supreme Court can decide a person’s or denomination’s sincerity in the depth of their religious conviction and whether or not it deserves some special dispensation.

In this particular case, the lack of inquiry as to the depth of the Green’s conviction was extraordinarily convenient. Prior to being telephoned by the Becket Fund for Religious Liberty, Hobby Lobby’s insurance offered the exact same contraception coverage they came to find so religiously objectionable. To paraphrase: The Green family’s religious conversion was not on the road to Damascus, but over Verizon wireless and conveyed via a sermon by the corporation’s general counsel.

Another point causing general agita is that this decision protects the rights of the powerful at the expense of the rights of the powerless. Hobby Lobby’s revenue is over $3.0 Billion a year and it is closely-held corporation (another point unaddressed and undefined in the opinion). The annual cost of these types of contraceptives equates to a month’s salary for their minimum wage workers. The inequity here is staggering — creating a previously unrecognized religious right for five members of the Green family at the expense of over thirteen-thousand Hobby Lobby employees and untold millions more.

This case will open the floodgates of every manner of religious exemption. Companies will ask for exemptions from employment law because they will want to discriminate. Companies will want to alter their health insurance to eliminate vaccinations or transfusions. Companies will want to again raise the payment of taxes for such things as wars, drones, and cruise missiles. The floodgates have been thrown open, the Court should expect to be inundated.

Those are just some of the highlights of the problems with creating a right of religious freedom in a for-profit corporation, but let’s turn to “how can this happen?” How can we be at the point of relitigating an issue that was settled over fifty years ago? This is the particularly insidious part. This is the anger-making part. This is the pitchfork and torch part. This is also the most difficult part to simplify, but I’ll try.

Read the rest of this entry »

Good Thursday, Widdershins.  Not that there has been much good news of late.  The Supremes have had a banner week serving their corporate masters, other than for their mystifying vote to uphold the bulk of the EPA regulations. Some of their decisions may prove to be the undoing of the Republican agenda, although at this point it appears that the Supreme-Industrial-Religious Complex has had a mighty good week.

Let’s start with the flipping “buffer zone” decision.  Past history of bombings a la Eric Rudolph have been clean forgotten by the Fab Five, and apparently Dr. Tiller’s murder was just happenstance.  What really, really matters above all is the First Amendment right of individuals to speaking “lovingly” to women who go to a clinic to obtain a perfectly legal procedure.  The state of Massachusetts has a few other laws in place that may help somewhat in reducing the onslaught of “affectionate” diatribe that these women will endure, and some clinics are hiring escorts to walk patients into the facility. Therefore we can assume that it will be fine and dandy for protesters to gently touch bankers, brokers, and captains of industry on the arm, and lovingly speak to them of Jesus and the moneylenders?   Can we affectionately share the teachings of Christ with regard to caring for the elderly, the young, the ill and less fortunate?   Or perhaps softly remind them that it will be easier for a camel to pass through the eye of a needle than for a rich man to enter the Kingdom of Heaven?   I’m certain that they will be ever so grateful, and may amend their evil habits under such a withering attack of love incarnate.   The Supremes left their own buffer zone solidly in place, but the rest of the US is now a wide-open  free speech zone , so our First Amendment rights should apply as readily to financial  centers as they do to an abortion clinic.  How about gun stores?  Shall I bounce down to my local firearms emporium and sweetly advise the customers that the Lord wishes for them to beat their weapons into plowshares?  That He wants them to turn the cheek rather than stand their ground?  I can make posters of dead children, and whisper in dulcet tones that the Lord does not need any more angels blown to bits by gunfire?  I would clearly be exercising my First Amendment right to express my (and the Bible’s) unhappiness with the freewheeling use of their Second Amendment rights, would I not?   I’m only trying to be helpful,  to let them know how much I care and that I can assure the customers that Jesus loves them, despite their misguided, though legal, activities.  I now know that this is my absolute right, written in law and confirmed by SCOTUS.  The Supremes have spoken, and  the right to privacy of a pregnant woman isn’t worth a puddle of warm spit when measured against a protester’s right to free speech, so maybe we should just join them and exercise ours, ad libertarium.

Do not annoy me with Tenth Amendment drivel about business’ rights to free enterprise, because protesters are infringing the clinic gynecologist’s right as well, and apparently that does not measure up to free speech and religion.  Therefore, it is our constitutional right to share our loving opinions with perceived miscreants of all stripes, even when they are going about their perfectly legal everyday lives.  I believe that they require religious redirection, and by God, it’s my constitutional right to share my opinion, free of buffer zones.

I’m not even going to start on Hobby Lobby.  All I know is that industry has once again found a way to get the government to pay for things so corporations don;t have to, as evidenced by the decision to give parity to a “Closely held” religious corporation with a true not-for-profit group.  Do we need to make book on the number of corporate boards that will suddenly undergo a mass epiphany?  Praise the Lord, and pass the federal funding. There is plenty of excellent precedent set by Wal-Mart, McDonald’s, and more companies too numerous to mention that already have the taxpayers footing the bill for Medicaid and SNAP for their employees who are too poorly compensated to afford such luxuries  as food and health care for their children.  What do they care?  They’re already paying lower tax rates than the average person. The only good thing that may come of this will be the ability to get more Democrats voted into office.  Not that they are all that great, but they are better than this.

This is an open thread.

Afternoon Widdershins.

Do you remember Sunday drives? For those of us of a certain age, before a gallon of gas became the better part of $4.00, Sunday drives were a mainstay of the weekend routine. We would pile in the car and just drive — no real destination, no real timetable, no real itinerary. We might see something of interest along the way, but if we didn’t it wasn’t cataclysmic. Consider this post a Sunday drive on a Tuesday afternoon.

The first thing I’ll point out for your consideration is the result of the Mississippi Republican primary runoff betweenMagnolia Thad Cochran and Chris McDaniel. Cochran, a Mississippi Senate fixture, was being challenged by McDaniel, a radio shock-jock Tea Partier. The chattering class had all but written off Sen. Cochran before Tuesday last, but the reports of his demise were premature.

Cochran’s electoral reprieve was due to his courting predominately Democratic African Americans to “crossover” and vote in the Republican runoff. Unusual — yes. So unusual, it isn’t possible in the 49 other states. The ability to crossover in a Mississippi primary election is a vestige of Reconstruction that just so happens to remain on the books of the state with the highest percentage of African Americans in the country. Coincidence?

That tells you the how, but not the why of this miraculous Cochran resurrection. It isn’t because Sen. Cochran is a closeted liberal or even a moderately progressive centrist. It had more to do with Mr. McDaniel. It could have been his flirting fascination with the Klan or the Confederacy. It could have been his campaign breaking into a nursing home and snapping pictures of Sen. Cochran’s dementia-afflicted wife. It could have been Sen. Cochran is a “bacon-bringer-homer” for Mississippi — a state depending upon 45 cents of every dollar coming from a benevolent uncle — Uncle Sam.

Cochran McDanielNone of those reasons though are why the Mississippi runoff results were of such interest. The lesson from Cochran’s upset — this tactic had been tried before in Mississippi, but was never successful — was this: The more people who vote, the better and more representative the outcome. Not quite earth-shattering, but it is the dirty little secret lost in the asterisks of virtually all accounts of Tea Party victories where voter turnout was abysmal.

Increasing voter turnout in Republican primaries is essential for good government in a policy sense, therefore, important to even us libruls. Otherwise we have Tea Partiers being elected to an institution they want to destroy by an undiluted small minority who want to stand by and watch them destroy it.

It took Democratic African American voters of the Mississippi Delta to provide an example of a workable solution to Republican voters everywhere. In and of itself, that fact is deliciously rich irony. If Republicans are serious about governing and not just obstructing, this Mississippi lesson is one that should be emulated.

The next point of interest is really a twofer.

If you are really quiet and listen closely, that whining you hear in the distance is some coal state politician lamenting State by State CO2 Emissionsthe “war on coal” and how it is killing jobs. The real killer of coal jobs is none other than free market capitalism in the form of cheaper, cleaner natural gas, but of course it is much more politically palatable to associate a black man’s face with that of a killer, ergo, it’s “Obama’s War on Coal“.

The EPA rules announced earlier this month touted a 30 percent reduction in emissions by the year 2030. That made some major headlines, but as with most things the devil is in the details. The EPA used 2005 as the base year for CO2 levels. So by turning back the clock nine years, the EPA and Obama Administration can claim reductions that look about twice as large as they actually are. Back in 2005, CO2 emissions were far higher than now. From 2005 to 2012, the power industry cut CO2 emissions by 15 percent, due in large part to switching over to cleaner-burning natural gas.

In addition to this clever math trick, the EPA rules also give the various states targets based on the state’s ability to reduce emissions. These targets take into account natural gas capacity, efficiency of coal plants, wind generation and other renewable sources of power. When you overlay these targets, you get a hodgepodge of state goals where some states have to cut pollution a lot; others not nearly as much.

Three Smokestacks and SunThe second part of this twofer is the recent Supreme Court decision reviewing the EPA’s early 2011 batch of Clean Air Act regulations. If you read the press releases of the industry groups and the whiny red-state politicians, you would think the decision eviscerated the EPA’s regulations. It didn’t.

Remarkably, Scalia, Roberts and Kennedy joined the four progressive justices in a majority ruling leaving a major portion of the regulations in place. The ruling enables regulation of sources that “account for roughly 83 percent of American stationary-source greenhouse-gas emissions,” compared with just 86 percent had all the regulations been allowed to stand.

True to form though, Scalia larded up his opinion with pages of right-wing spin to assuage the ever hungry red-meat craving conservative faithful. Scalia evidently didn’t want these conservative carnivores to believe he and his two conservative colleagues had forsaken their duty to drown any fledgling regulation in the nearest bathtub. Playing to the peanut gallery is a part of the pas de trois even if you are wearing a full-length black robe.

What makes this Sunday-drive-worthy is this: In effect, three of the five conservative justices recognized inaction on Hobby Lobbyclimate change is no longer an option. Implicitly, they recognized the inaction of Congress is unacceptable and therefore, exceptions must be read into the 1970’s era Clean Air Act to make regulation possible. Given the opinion of 97 percent of all climate scientists for once it seems conservative judicial activism coincides with the greater good.

This post was written before Monday’s decision in the Hobby Lobby case or as I prefer to call it, the “Sharia-lite corporate conversion” case.  Sharia-lite because it is adorning state theocratic recognition on the legal fiction of a corporation and corporate conversion because it is the first of many transitions of closely held corporations to new-found religiosity.  Hallelujah!

If you would like to steer our Tuesday’s Sunday drive in new directions, please feel free since this is an open thread.

 

 

Good Thursday, Widdershins.  By the time that this is published, Wednesday will be over and that is a good thing.  So many things occurred yesterday that I changed the topic of this post at least three times.   Let’s just say that Lemony Snicket had better days than we did Wednesday.

Wednesday began bright and early with the Supremes’ latest version of “Money for Nothin'” playing loud and clear.   We will no longer tolerate the assaults on the First Amendment which were masquerading as an attempt to keep the rights and needs of non-millionaires at least on the fringes of the political process.  Nope – all gone.  Seems that the usual suspects whipped out their magnifying glasses and could find no hint of the potential for corruption in any facet of the suit save for the cap on donations to an individual candidate.   The old Quid pro Quo still bothers all of the justices except for Clarence Thomas, who couldn’t remember that his wife had an income, either.  Therefore, any and all self-respecting Republican (and the odd Democratic, to be sure) donor may now sleep peacefully in their bed knowing that they may safely donate to each and every member of Congress so that they might drive their agenda forward.  As for the rest of us, well, we can use our First Amendment right to mumble and complain.  That should even it all out.

I had just about settled on this topic when the GM hearings began.  Once again, someone appears to have decided that it would be cheaper to pay off the odd victim or hundred rather than recall vehicles and replace a ten-dollar part – this one being  in the ignition.  This problem had been known since roughly 2001, and any of us who were GM owners (such as yours truly) can only be thankful that we are still here.  In 2007, the National Transportation Highway Traffic Safety Administration recommended an investigation, but it was quashed by the ever-helpful Bush administration, which doubtless wanted to keep those “job-crushing regulations” down to a dull roar.  Fortunately, Mary Barra CEO stepped forward and Congressional hearings are now underway.  Yeah – I know.  Even better, they are conducting an “internal investigation” as well.  {{{Sigh.}}}

The news of the latest Fort Hood shooting came Wednesday evening.  Initial reports suggested that a dispute broke out in the motor pool, and there are four dead (including the shooter) and sixteen others with varying degrees of injuries.  Fort Hood is home to the First Cavalry, which will soon be remembered much like the  Seventh Cavalry (from Custer to Khe Sahn to Fallujah) as The Unit to Which You Do Not Wish to Be Assigned.   An uncomfortable Lt. General has advised that the soldier in question was being evaluated for PTSD, and complained of anxiety and depression.  He was married, possible a father, and was being treated with “medication”.  He used a Smith and Wesson .45 semi-automatic that was not a military-authorized weapon.  I believe the general said that he thought that the gun had been purchased locally. Turns out that the weapon was purchased at the very same store that sold the previous Ft. Hood shooter his firearm. (Great job there, Guns Galore!  Y’all are now famous – “the preferred emporium of military mass murderers.”)   All of the casualties were soldiers, and the involved areas were the medical and transportation administration areas.   The man in question had only arrived on base a few months ago, having transferred from another Texas facility.  He had served a four-month tour in the Middle East in 2011, and there is some question of Traumatic Brain Injury, although the General was unclear that any such injury was service related.   As they always say in Army bases, “and that is all.”

I see another lost generation ahead of us, and this one may make the Vietnam Vets look like child’s play.  I am at a loss for words here.  Hopefully, Thursday will be better a better day.

This is an open thread.


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