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
While still waiting to find out what provision of the Constitution section four of the Voting Rights Act violated (Justice Roberts' majority decision doesn't appear to ever get around to providing that little detail), it occurs to me that Shelby County v. Holder reflects, among other things, the ongoing failure of white American Catholicism to fully come to grips with the depths of the sin of racism in this country.
Daniel O'Connell, the great Liberator of 19th century Ireland, couldn't understand why Irish-Americans weren't at the forefront of the abolitionist movement. Both O'Connell and his friend and ally, Frederick Douglass saw the two struggles as linked.
But Irish immigrants to the US ended up seeing it differently. They saw a society much like the old one they'd left behind---where general prosperity and political freedom relied on the maintenance of a segregated and oppressed "other". In the Old World the "other" was Irish Catholics. In the New World, it was Blacks---and the newly American Irish fought bitterly to avoid getting caught on the wrong side of that dividing line. Thomas Nast's racist, nativist and wildly popular political cartoons (example above) give a hint of how fluid and up for grabs the "race" line was in mid-19th century America.Read more
Three new stories on the homepage today, including a piece by the editors on the actions of Eric Snowden and their implications for privacy and national security:
It is axiomatic that fighting clandestine terrorist groups requires clandestine methods. Sources and allies must be protected; in preemptive actions the element of surprise must be preserved. Secrets about ongoing investigations cannot be compromised without jeopardizing counterterrorism efforts. It is harder to justify keeping such details secret after the fact. Judgments about the trade-offs between privacy and safety cannot be made unless the American people know what the government has done in our name. Even if everything the government does to combat terrorism is technically legal, not everything legal is prudent, wise, or morally justified.
As a nation, we rely on a system of checks and balances to prevent an excessive concentration of state power. Those checks and balances are strained to the breaking point during times of war, and especially during a war as ill-defined and open-ended as the fight against terrorism. Congress is notoriously pusillanimous when it comes to national-security issues. The courts, meanwhile, are loath to intervene, preferring to leave the conduct of “war” to the other two branches. The executive rarely passes up an opportunity to expand its war-making powers. The result is the steady accumulation of influence by the nation’s security agencies. As political philosopher and former Clinton administration official William A. Galston recently observed, “It may be true that as currently staffed and administered, the new institutions of surveillance do not threaten our liberties. It is also true that in the wrong hands, they would make it much easier to do so.”
Also, E. J. Dionne Jr. comments on the political activism of the Supreme Court’s conservative wing in light of this week’s ruling on the Voting Rights Act:
Whenever conservatives on the court have had the opportunity to tilt the playing field toward their own side, they have done so. And in other recent cases, the court has weakened the capacity of Americans to take on corporate power. The conservative majority seems determined to bring us back to the Gilded Age of the 1890s.
The voting rights decision should be seen as following a pattern set by the rulings in Bush v. Gore in 2000 and Citizens United in 2010.
Bush v. Gore had the effect of installing the conservatives’ choice in the White House and allowed him to influence the court’s subsequent direction with his appointments of Roberts and Justice Samuel Alito.
Citizens United swept aside a tradition going back to the Progressive Era -- and to the Founders’ deep concern over political corruption -- by vastly increasing the power of corporate and monied interests in the electoral sphere.
Tuesday’s Shelby County v. Holder ruling will make it far more difficult for African-Americans to challenge unfair electoral and districting practices. For many states, it will be a Magna Carta to make voting more difficult if they wish to.
The Constitution, through the 14th and 15th Amendments, gives Congress a strong mandate to offer federal redress against discriminatory and regressive actions by state and local governments. As Justice Ruth Bader Ginsburg noted in her scalding but very precise dissent, “a governing political coalition has an incentive to prevent changes in the existing balance of voting power.”
Finally, Eve Tushnet writes on the Metropolitan Opera’s recent production of Frances Poulenc’s Dialogues of the Carmelites:
This is an opera of questions. The questions are spiritual and psychological rather than historical. Dialogues isn’t especially interested in the French Revolution as such…. [F]or the most part you could set Dialogues in the Roman Empire under Diocletian and its central concerns would be the same. What does it mean to die well? Are there bad ways to be a martyr for Christ? If you die for God, does that cancel out all your prior weakness and irresolution? And conversely, if you die in fear and anguish, is that the final verdict on your life despite all the courage you showed in better days?
Antonin Scalia, just a few days ago:
In a speech to lawyers gathered June 21 in Asheville, U.S. Supreme Court Justice Antonin Scalia decried judicial activism.
That was to the North Carolina Bar Association on Friday. But today, Scalia and his colleagues struck down a law enacted by a 98-0 vote in the usually fractious Senate. Commonweal's editors predicted this "clear judicial activism" in their March 5 editorial. Now perhaps Commonweal's own legal experts can weigh in: Is Shelby County v. Holder the most "activist" Supreme Court decision of all time?
Let's see what the Senate's leader was saying about the Voting Rights Act all the way back in 2006:
Senate Majority Leader Bill Frist (R-Tenn.) called the vote a major success. "The Voting Rights Act has worked," he said. "We need to build upon that progress by extending expiring provisions."
Indeed, the Voting Rights Act has, on the whole, worked -- a fact demonstrated clearly by the ruling itself. Has it worked so well that it is no longer needed? This is unthinkable, as demonstrated by the long litany of abuses in Ginsburg's dissent, many of them from the 2000's. This is not even to mention more recent attempts to suppress voter turnout, as discussed in this 2012 Commonweal editorial.
Recall that during oral arguments, Scalia referred to the Voting Rights Act as the "perpetuation of racial entitlement." That inaccurate and offensive remark was likely to be forgotten over time, but with today's ruling, it will probably become the most memorable and quoted line of Scalia's career.
In the previous words of Commonweal's editors:
Scalia’s offhand reference to the “perpetuation of racial entitlement” was another startling reminder of why the VRA is necessary. The federal government goes to great lengths to ensure equal representation not as a generous gift to racial minorities, but because the right of all to vote and be counted is fundamental to our political system.
A right, not a gift.
It looks like we’ll hear from SCOTUS on Thursday regarding two important gay rights cases, one concerning DOMA and the other regarding California’s Prop. 8, which bars same-sex marriage in the state. Possible and likely decisions have been amply covered.
As we wait, let’s take a minute to look backward and forward.
Today is the anniversary of the UpStairs Lounge fire in New Orleans, the biggest mass killing of LGBT people in US history. TIME magazine’s Elisabeth Dias and Jim Downs tell the story. This wasn’t (exactly) a hate crime--the likely culprit was a sometime patron of the bar. What’s sad is the community’s response.Read more
[Cross-posted at PrawfsBlawg] A few days ago, AP had a story about a gay couple in Colorado who, in the course of shopping for a wedding cake, had been turned away by a baker who did not approve of the use of his products in a gay marriage ceremony. The ACLU has filed a complaint against the baker on the couple's behalf. The baker is, of course, claiming that, as a matter of religious freedom, he is entitled to discriminate against gay couples. Colorado law prohibits places of public accommodation from discriminating on the basis of, among other things, sexual orientation. So the question, legally, is whether the state's antidiscrimination law violates the First Amendment's Free Exercise Clause. The argument that it does will run into Employment Division v. Smith, which says that the Free Exercise Clause does not require exemptions from laws of general applicability. The baker is going to have a hard time making that case.
We can expect to see more of these sorts of disputes as gay marriage proliferates across the country. In fact, the Colorado case resembles a case that has been rising through the New Mexico state courts and is currently pending before the New Mexico Supreme Court. The New Mexico case involves a wedding photographer who refused to provide her services at a gay comitment ceremony because, in her words, she only handled "traditional weddings." In that case, lower state courts found the photographer's actions to have violated the New Mexico laws prohibiting discrimination in places of public accommodation and rejected First Amendment challenges to the application of those laws to the photographer. The wrinkle in the New Mexico case is that the photographer is arguing that the law burdens freedom of expression, rather than simply the exercise of religion.
The two cases raise an interesting question about the degree to which restrictions on the right to pick and choose among customers inappropriately burden a business owner's legitimate autonomy, whether conceived as religious or expressive freedom. Implicit in both the baker and the photographer's argument is that requiring a business owner to provide a good or service to someone of whom he disapproves (either because of that person's conduct or identity) improperly forces him to identify with or endorse the customer in question. In assessing that argument, I think it is helpful to consider how the law has traditionally defined the rights of owners to select among their customers. As it turns out, for most of the history of the common law, owners of businesses who have held themselves out as open to the public have had quite limited rights to arbitrarily refuse service to customers who have presented themselves as willing patrons. This is a valuable and important principle to affirm. I'll explain why below the jump.Read more
Now featured on the home page, stories from our new issue.
In “Beyond the Stalemate” (subscription), Peter Steinfels looks at where we are forty years after Roe:
That Americans and American Catholics remain divided over abortion is, in important ways, to our credit. But some divisions are more necessary, compelling, or expedient than others. Some are well considered and executed, others are not. Some are paralyzing and self-destructive, others point toward fruitful resolution. Forty years after Roe, it is incumbent on Catholics to reexamine their stance toward abortion and its legalization.
There is natural resistance to any such reexamination. This is a topic associated with too much pain—and often hidden pain—along with too much hypocrisy, illusion, and male betrayal. Many Catholics who are angry at church leaders or prolife activists for their harsh rhetoric, political absolutism, moral righteousness, or general attitudes toward women and sexuality simply refuse to think about the topic further. Prolife leaders, on the other hand, boost morale by seizing on any uptick in public opinion, any success in a state legislature, and every fresh summons from religious authorities as confirmation that their present course, no matter how inadequate or counterproductive, is unassailable. …
My own reexamination of the Catholic stance on abortion begins with two simple statements and then attempts to determine what conclusions and practical proposals might flow from them.
First statement: From the very earliest stages of its life, the unborn offspring of human beings constitutes an individual member of the human species deserving the same protections from harm and destruction owed to born humans.
Second statement: This conviction, taught by the Catholic Church and shared by many people, religious and non-religious, is nowhere near as obvious as many of us who hold it suppose.
David Rieff sees trouble in the calls for “humanitarian war” in Syria:
If the conditions on the ground in Syria today, after two years of unbridled civil war, were more akin to those in Libya at the time French president Nicolas Sarkozy persuaded his NATO partners to act, or to those in Mali at the time of the recent French military intervention than they are to the conditions in Iraq or Afghanistan, then the ardor of the liberal hawks and the neoconservatives for intervention there would not seem so reckless. After all, the interventions in Libya and Mali both seemed to recapitulate the so-called humanitarian interventions of the 1990s, where the core of the debate was never whether a U.S. or NATO intervention would be successful—this, probably rightly, was taken for granted—but only whether there was really a will in Washington, Brussels, London, or Paris to intervene in a Bosnia, Rwanda, or Kosovo. But even most of those who think the United States must act in Syria concede that not only is an effective military intervention there likely to prove far more difficult than in Iraq, let alone in Mali or Kosovo; it is also by no means sure that any political result that is now imaginable will be much of an improvement over a continuation of the Assad dictatorship.