Be sure to read Linda Greenhouse's powerful column in the New York Times on the Supreme Court's decision to hear arguments in King v. Burwell -- which Jonathan Chait called "a mind-blowing development" -- and how, in terms of politicizing in the court, it's even "worse" than Bush v. Gore. In this case, Greenhouse writes,
There was no urgency. There was no crisis of governance, not even a potential one. There is, rather, a politically manufactured argument over how to interpret several sections of the Affordable Care Act that admittedly fit awkwardly together in defining how the tax credits are supposed to work for people who buy their health insurance on the exchanges set up under the law....
This is a naked power grab by conservative justices who two years ago just missed killing the Affordable Care Act in its cradle, before it fully took effect....
There is simply no way to describe what the court did last Friday as a neutral act.
Given the naked cynicism of the challenge to the ACA, and the lack of a clear need for the SCOTUS to intervene, why would the Court decide to hear this case? [Update: the rest of this paragraph has been revised to correct a silly misreading of Greenhouse in the original.] Greenhouse presumes the willingness of four members of the court known to be hostile to Obamacare to prioritize ideology over jurisprudence (a state of affairs Brian Beutler calls "the only reason left to worry," but it does seem like a good reason). She doubts that Chief Justice John Roberts would have provided a fifth vote - not necessary in any case - given the threat to his legacy the case could represent. But, she wonders, could it be that the four most conservative members of the court voted to hear the case "precisely to put the heat on John Roberts"?
Along with being a clear explainer on what the furor over this decision is all about, and a strong expression of exasperation on the part of a careful observer of the Court, Greenhouse's column is a reminder that John Yoo is still out there offering his opinions on legal matters (from an elite academic perch) -- and doing so in astonishingly moralistic terms, considering the source.
Professor Yoo, formerly of the Justice Department’s Office of Legal Counsel and now at the University of California at Berkeley, wrote [for National Review] that the new case gave the chief justice “the chance to atone for his error in upholding Obamacare” and that “it will be the mission of his chief justiceship to repair the damage.” John Yoo — yes, the Bush administration lawyer whose “torture memos” attempted to justify that administration’s “enhanced interrogation” policies — is a smart man, a former law clerk to Justice Thomas who remains well connected at the court. His choice of the words "atone” and “mission,” with their religious resonance addressed to the devoutly Catholic chief justice, is no accident.
Greenhouse doesn't quote the line where Yoo breaks the irony barrier: "the insincere misreading of the statute will grate especially hard on Roberts’s professionalism." Insincere misreadings of statutes have a way of doing that.
So, how much is Roberts's conscience likely to determine the outcome here? We'll have to hope for the best. After all, to quote Yoo once more: "We shouldn’t discount the possibility that the Justices just want to do the right thing!"
Over the past few election cycles, Colorado has become an important "battleground state" and a bellwether for larger electoral trends. Featuring contested races for both a Senate seat and the Governor's mansion, it is arguably the most important site of the upcoming midterm elections. The gubernatorial contest has Bob Beauprez, an established figure in the Colorado Republican party, attempting to unseat (the previously very popular) Gov. Hickenlooper.
Social issues have entered the two campaigns in some expected ways -- abortion, health care coverage, gun safety laws, and marijuana legalization. But during these gubernatorial debates, the issue of the death penalty has also briefly held the spotlight.
Back in May, Beauprez made a campaign promise that surprised many, since he presents himself as a faithful Roman Catholic. "When I'm governor," he said during a GOP debate, "Nathan Dunlap will be executed." Or, in a headline offered by Mother Jones, "Elect Me, and I'll Kill that Guy."Read more
You’re permitted to cast a ballot in Texas (where early voting began Monday) if you show a concealed-handgun license at the polling place, but not if you present a student, veteran, or federally recognized Indian tribe ID card. Of course, that eligible voters (in Texas and elsewhere) would suddenly need specific types of photo identification or meet any variety of strict new requirements was foreseeable when the Supreme Court last year struck down the preclearance provisions of the Voting Rights Act. As Justice Ruth Bader Ginsburg memorably dissented at the time: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” The umbrella discarded, Texas duly implemented measures making it indisputably harder for many people to vote—precisely the kind of maneuver the preclearance provision had many times since the civil rights era forestalled.
Just how hard was made clear by Ginsburg (who else?) in her quickly-becoming-famous, wee-hours dissent in the Court’s weekend decision allowing Texas’s voter identification law to stand—this despite an earlier federal ruling striking it down explicitly for its discriminatory intent. Ginsburg noted that more than 400,000 eligible voters face round-trip travel times of three hours or more to the nearest government office issuing the allowable forms of ID, where they will likely have to present a certified birth certificate. Those normally cost $22; though the state offers certificates for election purposes at $2 or $3, this information isn’t available on relevant websites or forms. Taken together, Ginsburg logically concluded, it amounts to a poll tax, and those were outlawed with ratification of the Twenty-Fourth Amendment.
Texas has justified its strict new requirements as a safeguard against voter fraud. Two instances of voter impersonation were confirmed in all of the elections held in Texas between 2001 and 2011, so clearly there is a problem—though fraud isn’t it.Read more
During oral arguments in Hobby Lobby v. Sibelius and subsequent written opinions, the Supreme Court debated the case's unintended consequences.
Would laws requiring vaccinations or prohibiting child labor, for example, now be affected by the new interpretation of RFRA? Or would the "parade of horribles" never come to pass?
A new case from Utah provides a surprising early glimpse: a member of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) has successfully refused a federal subpoena based on his religious belief in secrecy.Read more
Among those who celebrated the Supreme Court's decision in favor of Hobby Lobby (which Grant Gallicho covered here) was the USCCB. "We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business," the bishops conference said in a statement June 30. "Now is the time to redouble our efforts to build a culture that fully respects religious freedom."
How much will the Hobby Lobby decision help to advance that goal? After all, as Cathleen Kaveny writes in her analysis for Commonweal, Supreme Court decisions "are not only or primarily about the named plaintiffs. Their purpose is to set the normative framework" that will decide similar disputes. And Kaveny sees reason for concern: "what the Court has done in the Hobby Lobby case is transform the Religious Freedom Restoration Act—a statute enacted by Congress to counteract a bad Supreme Court decision that harmed powerless religious minorities—into a tool for powerful minorities to resist what they believe to be dangerous social and political change."
The ruling is, on its face, a victory for religious-liberty claims. But not an unambiguous one:
While the ruling recognizes that corporations have free exercise rights, it identifies those rights solely with the owners of the corporation. The legitimate interests of other corporate stakeholders, particularly the employees, who may not share their employer’s religious views, evidently have no standing. In this instance, it seems that more money buys you more religious freedom—and more freedom to infringe on the choices of others.
Second, the opinion provides virtually no way to evaluate the strength of a plaintiff’s religious-liberty claim. Although RFRA’s text speaks of “substantial” burdens on a claimant’s exercise of religious liberty, the ruling pulls the teeth of this requirement. According to Alito and the majority, a burden is “substantial” as long as a claimant sincerely says it is. But as Ginsburg noted, this is an invitation to run through a minefield, not a way out of one.
Read the whole thing here. And don't miss E. J. Dionne's column "After Hobby Lobby," in which he notes Justice Alito's positive assessment of the HHS contraceptive-coverage accomodation (what the USCCB refers to as the "so-called 'accomodation'") in his finding in favor of Hobby Lobby and wonders, "Will he and the other conservatives remember these friendly remarks when they rule in future litigation against the Obama contraception compromise?"
Building a culture that "fully respects religious freedom," as the bishops have called for, is a good goal (and they might just as easily have declared the moment right for redoubled efforts if the Court had decided against Hobby Lobby). The question will be whether the Hobby Lobby decision is a solid foundation for those building efforts. Kaveny and others make a strong case that the answer may be no.
Five years ago I wrote two articles for Commonweal about religion at Guantanamo. The shorter follow-up dealt with Rasul v. Rumsfeld (and Rasul v. Myers), in which the plaintiffs appealed in part to the Religious Freedom Restoration Act (RFRA).
At that time, courts ruled that Guantanamo detainees are not "persons" under RFRA:
Congress legislated against the background of precedent establishing that nonresident aliens were not among the 'person[s]' protected by the Fifth Amendment ... and were not among 'the people' protected by the Fourth Amendment.
In a concurring opinion, Justice Janice Rodgers Brown admitted she was troubled by the finding.
Accepting plaintiffs' argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate. Yet, the majority's approach is not much better. It leaves us with the unfortunate and quite dubious distinction of being the only court to declare those held at Guantanamo are not "person[s]." This is a most regrettable holding in a case where plaintiffs have alleged high-level U.S. government officials treated them as less than human. (italics added)
She further argued that Congress did not foresee a situation like Guantanamo: "prolonged military detentions of alleged enemy combatants were not part of our consciousness." She wrote that "Congress should revisit RFRA with these circumstances in mind."
It is also true that Congress did not foresee large for-profit corporations as persons protected by RFRA. With the new, expanded definition of 'person' post-Hobby Lobby, lawyers representing Guantanamo detainees have thus filed a Temporary Restraining Order in the D.C. District Court.Read more
...from Ross Douthat about religious freedom.
"The entire conflict between religious liberty and cultural liberalism has created an interesting situation in our politics: The political left is expending a remarkable amount of energy trying to fine, vilify and bring to heel organizations — charities, hospitals, schools and mission-infused businesses — whose commitments they might under other circumstances extol.
"So the recent Supreme Court ruling offers a chance, after the hysteria cools and the Taliban hypotheticals grow stale, for liberals to pause and consider the long-term implications of this culture-war campaign." NYTimes Sunday OP-ED
When reading Justice Alito's majority opinion in Hobby Lobby alongside Justice Kennedy's concurring opinion, the unifying thread is clear. And the results don't bode well for the pending cases of religious non-profits against the HHS mandate.
A for-profit corproration has been granted its claim under the Religious Freedom Restoration Act (RFRA) only because Kennedy maintains that the government did not use the least restrictive means of providing its compelling interest. From Kennedy (p. 3):
The means the Government chose is the imposition of a direct mandate on the employers in these cases. ... But in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities. ... The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.
HHS shouldn't distinguish between different religious believers, "when it may treat both equally by offering both of them the same accommodation." Later he repeats that "the mechanism for doing so is already in place." Thus the accommodation of religious non-profits currently on offer is precisely the legal model available for the for-profits (such as Hobby Lobby).Read more
Today Molly Redden at Mother Jones reports that Hobby Lobby holds mutual funds that invest in the manufacturers of the same pharmaceuticals and devices to which the company claims religious objection.
Documents filed with the Department of Labor and dated December 2012—three months after the company's owners filed their lawsuit—show that the Hobby Lobby 401(k) employee retirement plan held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions. Hobby Lobby makes large matching contributions to this company-sponsored 401(k).
Several of the mutual funds in Hobby Lobby's retirement plan have holdings in companies that manufacture the specific drugs and devices that the Green family, which owns Hobby Lobby, is fighting to keep out of Hobby Lobby's health care policies: the emergency contraceptive pills Plan B and Ella, and copper and hormonal intrauterine devices.
There would have been many ways to avoid this, since "faith-based investing" in funds that avoid "vice" industries or other objectionable companies is a well-known phenomenon with competitive rates of return.
All nine funds—which have assets of $73 million, or three-quarters of the Hobby Lobby retirement plan's total assets—contained holdings that clashed with the Greens' stated religious principles.
Hobby Lobby and the Becket Fund for Religious Liberty, the conservative group that provided Hobby Lobby with legal representation, did not respond to questions about these investments or whether Hobby Lobby has changed its retirement plan.
I would have assumed a company taking the issue of corporate free exercise all the way to the Supreme Court would have looked into this. I doubt it would have affected the case's outcome, but it certainly could have affected the oral arguments by forcing the plaintiff to distinguish degrees of cooperation between providing health insurance options and providing retirement plan options. If these drugs and devices aren't too objectionable to invest in for your employees' retirement plans, a justice might have asked, why are they too objectionable to include as options in your employees' health insurance plans?
Read the details here.
Everyone knows the power granted by Justice Kennedy’s middle position on the Supreme Court. Indeed Paul Clement, the advocate for the plaintiffs in Sebelius v. Hobby Lobby, seemed to direct most of his arguments toward the concerns he imagines Kennedy to have about the case.
But even in Clement's most hopeful fantasies, he could not have imagined the gift that Kennedy would present him during questioning of the Solicitor General. Kennedy introduced the idea that, by the logic of the government’s case -- in some future scenario, at the calamitous bottom of a slippery slope -- for-profit corporations could be forced to “pay for abortions.”Read more
And here we are. After years of debate, protest, and litigation about the "HHS mandate" and its levels of exemption, accommodation, or non-accommodation under the Affordable Care Act, Hobby Lobby v. Sebelius and the related Conestoga Wood v. Sebelius are having their day in the Supreme Court.Read more
Since the controversy about (and subsequent veto of) Arizona's SB 1062, a pointed debate in newspapers and blogs has ensued about civil rights vs. religious liberty. Ross Douthat's New York Times column expressed frustration that religious dissenters are not being permitted to "negotiate terms of surrender" in a culture "war."
What makes this response particularly instructive is that such bills have been seen, in the past, as a way for religious conservatives to negotiate surrender — to accept same-sex marriage’s inevitability while carving out protections for dissent. But now, apparently, the official line is that you bigots don’t get to negotiate anymore.
But is this best construed as a war, or does a less threatening metaphor suffice? Perhaps we're not fighting an apocalyptic war of religion vs. secularism, but instead tinkering with our delicate balance of Constitutional rights.Read more
In a year that saw a papal resignation (and consequent conclave) and the public embrace of the new pope, it's not surprising that among our most-read articles and blog posts of 2013 are items on these stories, such as our exclusive interview with Francis. But readers also responded to stories on same-sex marriage, public-education reform, and the relationship among work, material necessities, and "the good life." Below are the top ten stories from Commonweal and blog posts from dotCommonweal this year. As this is simply a data-generated tally, are there other stories and posts from 2013 not represented here that are nonetheless worth a mention? Any particular favorites - or further thoughts?
“The Things We Share,” Joseph Bottum
“Less Please: Capitalism & the Good Life,” Gary Gutting
“Beyond the Stalemate: Forty Years after Roe,” Peter Steinfels
“Reform of the Reform,” Jackson Lears
“Regime Change: Benedict & His Successor,” William L. Portier
“Historical Amnesia: When Catholic Leaders Misread the Past,” Nicholas Clifford
Top blog posts
“NYT’s ironic fact-check error,” Michael Peppard
“Archdiocese of Wobegon,” Grant Gallicho
“Washing feet,” Rita Ferrone
“Apostolic Nuncio to USCCB: Be pastoral, not ideological,” Grant Gallicho
“Interregnum report, March 6,” Dominic Preziosi
“The conclave bird: a distinctively Roman omen,” Michael Peppard
“When ‘allegedly prolife’ groups attack,” Grant Gallicho
“Pontifex legibus solutus?” Joseph A. Komonchak
George McKenna, then a political scientist at the City College of New York, wrote a terrific piece for the Atlantic in 1995, “On Abortion: A Lincolnian Position.” I recommended it to friends, both defenders and opponents of Roe, and quoted from it on occasion in talks. McKenna argued that Lincoln, although firmly opposed to slavery as a great moral evil, knew that it was politically impossible to abolish the practice where it already existed. The only tenable political position for those seeking to end slavery was to oppose its establishment in new territories and states. Once cabined in that fashion, slavery would eventually collapse on its own. McKenna drew a strong parallel between Lincoln’s position on slavery and the prolife cause. It was a long essay and a subtle argument, but McKenna summarized his proposed prolife strategy in the following phrase: “permit, restrict, discourage.” That position made a lot of sense to me, especially McKenna’s observation that “we must remember that [Lincoln] intended to conduct his argument before the American people. Lincoln knew that in the final analysis durable judicial rulings on major issues must be rooted in the soil of American opinion. ‘Public sentiment,’ he said, ‘is everything’ in this country.’”
Given my familiarity with McKenna’s Atlantic article, you can imagine my surprise when I read his criticism in the current issue of the Human Life Review of Peter Steinfels’s Commonweal essay on abortion, “Beyond the Stalemate.” Peter hardly needs me or anyone else to defend him, and he may respond to McKenna’s “A Bad Bargain” essay here at dotCommonweal or elsewhere at some point in the near future. But I will comment on what McKenna has to say about Commonweal and what he presumes motivates the “liberal or progressive” Catholic audience for which Peter is writing.Read more
A deserter from the culture wars and no big fan of Justice Antonin Scalia, I nevertheless was struck by the derision he was able (and, doubtless, delighted) to provoke a few days ago by asserting, in a much ballyhooed New York Magazine interview, his belief that the Devil is real. No less provocatively, another famous interviewee, Pope Francis, in his homily for today's Mass, warns his hearers not to be naïve about this, and to be on guard.
Some things are true, even if Justice Scalia says them.
Here we are: Government Shutdown Week, a new biannual tradition. If you're just tuning in, the House Republicans are holding the global economy hostage unless President Obama repudiates the Affordable Care Act, his administration's signature domestic policy achievement.
That law was passed by Congress, signed by the president, and upheld by the Supreme Court. Its passage was not a surprise to anyone paying attention, having been preceded by very open debate going back decades. Its basic principles were developed by a conservative think tank, a similar plan was tried at the state level by a Republican governor of a large state, and its details were debated repeatedly in the Democratic primaries of 2008. It was debated so much during those debates that most viewers were bored. Everyone watching knew that a Democratic president would seek health care reform. Most people thought it would be more left-wing than the final product. Far from being "pushed through" or "rammed through" or whatever other tyrannical metaphor one might choose, the road to the Affordable Care Act was in reality a model of procedural governance in a modern democracy.
A small band of Republicans now will shutdown the government because they are mad that they lost. But they are pitching it as a prophetic action to call attention to the federal government's spending problem. The problem with that analysis of the spending problem is that deficits have been going down under Obama (handy charts here). A further problem is that not raising the debt ceiling will have no effect on any of the issues that they want to address. It won't change the prior commitments Congress has made, in terms of expenses or revenues.Read more
Just posted to the homepage, Joseph Bottum’s essay “The Things We Share: A Catholic’s Case for Same-Sex Marriage.”
Bottum, former chief editor of First Things, writes: “We are now at the point where, I believe, American Catholics should accept state recognition of same-sex marriage simply because they are Americans.” He goes on:
For that matter, plenty of practical concerns suggest that the bishops should cease to fight the passage of such laws. Campaigns against same-sex marriage are hurting the church, offering the opportunity to make Catholicism a byword for repression in a generation that, even among young Catholics, just doesn’t think that same-sex activity is worth fighting about. There’s a reasonable case to be made that the struggle against abortion is slowly winning, but the fight against public acceptance of same-sex behavior has been utterly lost.
I find these practical considerations compelling, just as I think most ordinary Catholics do.
Read the whole essay here. And after that, see Mark Oppenheimer’s latest Beliefs column in the New York Times. An excerpt:
In the past couple of years, conservative opposition to same-sex marriage has clearly started to erode. Prominent Republicans like Senators Rob Portman and Lisa Murkowski and former Secretary of State Colin L. Powell have come out in support of gay marriage. Even David Blankenhorn, the expert witness in the Proposition 8 trial in California and a Democrat, announced that he had changed his mind.
They are, for the most part, moderate conservatives using secular, democratic arguments. None come from the Christian right. Among religious conservatives, opposition to same-sex marriage has remained essentially unquestioned.
Which is why “The Things We Share: A Catholic’s Case for Same-Sex Marriage,” an essay by Joseph Bottum, published Friday on the Web site of Commonweal magazine, is something new in this debate.
Now on our website, Commonweal's editors on same-sex marriage after recent rulings from the Supreme Court.
Commonweal has expressed skepticism and urged caution regarding the legalization of same-sex marriage, while at the same time defending the rights and dignity of homosexual persons both in society and in the church. In the aftermath of the chaos and destruction, both personal and social, wrought by the so-called sexual revolution, the rush to change the fundamental heterosexual basis of marriage seemed imprudent. With the institution of marriage already in crisis, such an unprecedented social experiment appeared to pose risks—especially to the already precarious place of children within modern marriage—that were all but impossible to measure. ... Advocates cast same-sex marriage as the extension of basic rights to a once excluded group, but it is likely also a reflection of—and a further step toward—an essentially privatized and libertarian moral culture. ...
[I]t is no secret that the United States Conference of Catholic Bishops has been among the most outspoken opponents of same-sex marriage. The conference’s advocacy, which has often cast the debate in hyperbolic terms, has persuaded few and offended many. With typical alarm, the bishops’ Subcommittee for the Promotion and Defense of Marriage issued a statement calling the Court’s decisions “a tragic day for marriage and our nation,” and a “profound injustice to the American people.” The statement went on to use variations on the phrase “the truth of marriage” seven times in two brief paragraphs, as though mere incantation were a substitute for persuasion. ... Surely, whatever its legitimate reservations about the legalization of same-sex marriage, it is time for the church to begin to come to terms with this challenging new cultural and pastoral reality, a reality that calls for far more than overwrought predictions of moral decline and social calamity.
Just posted on the homepage, Michael J. Perry examines the reasoning of the Supreme Court's majority opinion holding the Defense of Marriage Act unconstitutional:
In my judgment, the Court made the right decision in Windsor, but the majority was much less clear than it should have been about why DOMA’s exclusion of same-sex marriages was unconstitutional. Kennedy’s opinion for the majority should not have put any weight on the alleged “animus” of those opposed to same-sex marriage. “Hate your neighbor or come along with us,” was how Justice Antonin Scalia characterized Kennedy’s reasoning. Scalia’s indignation was understandable. Kennedy’s suggestion that DOMA was based on the view that gays and lesbians are inferior human beings is tendentious in the extreme, and demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution. ...
I accept the bishops’ argument regarding the nonreligious nature of their opposition to same-sex marriage. The burden for the bishops, however, is the high bar set by the Constitution’s protection of religious and moral freedom—often called freedom of conscience. ...
Admittedly, it is not always obvious when a particular nonreligious moral belief is a minority moral belief. In answering that question, it is helpful to keep in mind what the celebrated American Jesuit John Courtney Murray wrote to Boston’s Cardinal Richard Cushing in the mid-1960s about laws decriminalizing access to contraception. “T]he practice [contraception], undertaken in the interests of ‘responsible parenthood,’ has received official sanction by many religious groups within the community,” Murray noted. “It is difficult to see how the state can forbid, as contrary to public morality, a practice that numerous religious leaders approve as morally right. The stand taken by these religious groups may be lamentable from the Catholic moral point of view. But it is decisive from the point of view of law and jurisprudence.”
Read the whole thing here.
Somewhat overshadowed by events was the release of a statement from the USCCB on the Supreme Court decision overturning Section 4 of the Voting Rights Act. Bishop Stephen Blaire of Stockton, California, chairman of the bishops’ Committee on Domestic Justice and Human Development, and Bishop Daniel Flores of Brownsville, Texas, chairman of the bishops’ Committee on Cultural Diversity, said:
The recent Supreme Court decision necessitates that Congress act swiftly to assure that the right to vote be protected and afforded to all eligible citizens. We urge policymakers to quickly come together to reaffirm the bipartisan consensus that has long supported the Voting Rights Act and to move forward new legislation that assures modern and effective protections for all voters so that they may exercise their right and moral obligation to participate in political life.
Meanwhile, the Catholic Health Association says today that the current combination of exemptions and accommodations within the HHS’s contraception mandate are sufficient.
Campaign-ish notes: Rick Perry, the longest-serving governor of Texas (I didn’t know either), won’t run for that office again, but is reflecting and, yes, praying, about his plans for the future.Read more
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