For several years now, two groups of religious-liberty
scholars have been urging state legislatures considering recognizing same-sex
marriage to address religious liberty issues explicitly and give meaningful
"marriage conscience protection" to religious objectors. (See
archive of our letters/memos. One group of us is made up
entirely of supporters of same-sex marriage; the other group includes
some supporters, some opposed or skeptical, and some undecideds; but we all support meaningful religious-liberty protection.) Now
our arguments and proposal have been criticized by another group of five
constitutional scholars who wrote last week to Illinois legislators. Dale Carpenter, one of the five, has posted
their letter and summarized its arguments at the Volokh Conspiracy. We’ll do a full response to the letter, but
that requires more length and detail than a blog post permits. So here we respond to Professor Carpenter’s
post and the general arguments of the letter that it reflects.
1. Carpenter’s
first assertion, summarizing his group’s letter, is that “recognizing same-sex
marriage creates no distinct legal conflict justifying resolution in a same-sex
marriage bill,” because the “cases in which such conflicts are said to exist
arise entirely from pre-existing antidiscrimination law” and should be handled
through that pre-existing law. Let’s
begin by making one point clear: our proposal does not aim to deal with
conflicts between antidiscrimination law and religious objectors in
general. Under our proposal, antidiscrimination
law can still require religious individuals and groups in many contexts to serve or employ gays and lesbians who
are in same-sex marriages. We protect
objectors when they would be forced to facilitate the conduct directly or affirmatively
“recognize the marriage”: religious marriage counselors counseling same-sex
couples, religious colleges opening married-student housing to same-sex couples,
etc. We protect a refusal to facilitate
or recognize the union itself, not a refusal to deal with an individual simply
because he or she is in such a union.
Carpenter’s group makes a fair point that objections to
facilitating same-sex unions predate the recognition of same-sex
marriage. But the statement that
recognizing same-sex marriage “creates no need to adjust the degree of
protection" ignores reality: same-sex marriage does change the picture. Most obviously, it increases the number of
potential conflicts. The number of same-sex marriages is accelerating rapidly as more states (especially larger states) are recognizing it. There will be a lot more
wedding ceremonies than there were commitment ceremonies.
Beyond that, for many religious objectors marriage is a different matter
than a non-marital union: marriage for them is a sacrament, and state
recognition of same-sex marriage makes antidiscrimination law apply to a matter
of profound religious significance. That
view should not of course determine how the state defines civil marriage, but
neither should the state ignore it in determining the fair scope of protection
for conscientious objectors.
Moreover, recognition of same-sex marriage without
explicit exemptions will likely weaken the legal strength of religious conscience
claims beyond the situation of marriage.
This is because of, among other things, what might be called the
"Bob Jones effect," named for the fundamentalist college whose
federal tax exemption was stripped in the 1970s because it forbade interracial
dating by students. The Supreme Court
upheld that penalty because it found that "myriad" laws against race
discrimination in education, which had few if any exemptions, showed a
"firm national policy" that would permit no exception even for a
small college that attracted no one but like-minded students. Marriage traditionalists can reasonably fear
similar consequences for their beliefs if same-sex marriage—the latest of many
steps toward gay/lesbian legal equality—is repeatedly enacted with few or no exemptions. If prohibitions on sexual-orientation
discrimination, like those on race discrimination, must have few or no
exceptions, then state or federal tax exemptions may eventually be at risk for virtually every
evangelical, traditional Catholic, Orthodox Jewish, or Muslim school and social
service. Passing same-sex
marriage without explicit exemptions can easily send a message that the
traditionalist views on sexual morality must be marginalized in every context, not just
marriage.
Carpenter’s group says that conflicts should
be resolved under pre-existing exemptions from antidiscrimination law, but we
are not as sanguine about the adequacy of those exemptions. The state provisions vary greatly, as Carpenter’s
post acknowledges; many are unclear and open to interpretation, and some gay-rights
proponents will push for the narrowest readings (especially after same-sex
marriage is enacted and the religious objectors lose any bargaining
power). To take just one example, during
Minnesota's same-sex-marriage debate last May, Professor Carpenter wrote in an
op-ed that the exemption in the state antidiscrimination law was "among
the most expansive in the country," protecting "religious nonprofit
associations and schools"; but within a couple of weeks, Minnesota's
Department of Human Rights, which enforces the law, issued guidelines asserting
that the provision "does not exempt [among other entities] nonprofits ...
based on religious beliefs regarding same-sex marriage."
The members of Carpenter’s group say that they support
religious liberty but that the remedy for any threats to it is to amend pre-existing
laws. We would welcome their support for
making pre-existing exemptions more secure. However, their letter to Illinois legislators shows
little sympathy to such exemptions for religious organizations outside the
immediate context of the wedding: for example, for nonprofit
marriage-counseling services or adoption services, even when those services are
not publicly funded. The letter objects that our proposal would allow
discrimination “in situations far
removed from the marriage celebration” (p. 8), which describes situations like
marriage counseling, adoption placements, or a religious college’s
married-student housing. The letter also states that existing Illinois
provisions strike “a careful balance between equality and religious liberty”
and have “reasonably adjudicated the very few conflicts that had arisen and
that might continue to arise” (pp. 4, 6). But Illinois’ specific statutory protections are narrow and uncertain: for example, as our initial Illinois letter (at 16) describes,
one exemption protects a religious organization’s employment of members of its own faith;
the other does protect certain preferences by religious organizations in housing, but
only preferences for “persons of the same religion,” which does not clearly
protect a religious college’s decision to limit married-student housing to
opposite-sex married couples.*
Moreover, we know, from
first-hand experience, that any proposal to strengthen pre-existing exemptions brings
the protest that it would go beyond addressing new problems and would "undo
existing law." Carpenter's group
says that with respect to religious liberty, traditionalist objectors can do
nothing to stop water rushing through a hole in their boat; they have to get a
broader agreement to plug every crack.
2. Carpenter's
second point from his group’s letter is that even if new provisions are needed,
our proposal is too broad. This is
certainly fair ground for debate, and we welcome discussion about the proper
scope of exemptions, as opposed to the unrealistic claim that same-sex marriage
doesn't change anything. Carpenter focuses
attention on the most controversial cases, small personal-service businesses
and government officials. But we should
not lose sight of the cases that ought to be non-controversial: must a
nonprofit evangelical marriage-counseling ministry counsel same-sex couples? Must a traditionalist Catholic college open
its married-student housing to same-sex couples? Far more often than Carpenter’s group admits,
these matters are unclear under the existing state laws that the group says
must be the sole vehicle for protection.
With respect to the controversial cases, Carpenter’s statement
of our proposal is misleading (and false in saying that we extend
exemption to "non-religious objectors"; we do not). Far from exempting "inns, restaurants,
and other businesses" broadly, as he suggests, we limit exceptions in the
business world to sole proprietors and very small businesses (five or fewer employees) that provide services directly facilitating the wedding or the
marriage—wedding photography, marriage counseling—that would violate their
religious beliefs. We also deny
exemption in cases where the couple would have difficulty finding another
service provider; in other words, in the case when a religious objection truly
conflicts with a couple’s access to services, our proposal says the couple
should prevail. When even a limited exemption
like that is rejected, individuals will be driven from their professions, not
to ensure that couples have access to services—what couple would seek out a
counselor who disapproved of the marriage?—but primarily so the state can
express the view that the refusal of service is wrong. In any event, to return to the main point: concerns
about exemptions for commercial objectors do not warrant leaving thousands of
non-profit religious organizations subject to the uncertain coverage of
existing state exemptions.
Carpenter describes his group as scholars "who
support both protecting religious liberty and recognizing the marriages of
same-sex couples." To reiterate, our
two groups of scholars also include supporters of same-sex marriage (as well as
a variety of views on that issue). We
too are seeking to give room to both equality and liberty, which should
complement rather than be at war with each other. We are seeking a "live and let
live" solution for same-sex couples and religious traditionalists—but "live
and let live" requires more than highly uncertain protection for religious
liberty under pre-existing laws. Just as
same-sex couples seek to live out their identity not only in private but
through the social institution of marriage, religious believers seek to live
out their identity not only in churches but in their faith-based service
activities and their daily lives. Minimizing
the exemptions in a same-sex marriage bill marginalizes those believers and
will result in continuing, unnecessary conflicts that may well harden resistance
to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions
allows both sides to live out their deepest commitments.
Thomas Berg
Carl Esbeck
Edward Gaffney
Richard Garnett
Douglas Laycock
Bruce Ledewitz
Christopher Lund
Michael Perry
Robin Fretwell Wilson
* UPDATE (Nov. 9, 2013): This post has been amended, at the point in text marked by the asterisk, to delete quotes from
previous scholarly articles written by Professors Marshall and Lupu (members of Professor Carpenter's group), and to add
the four sentences immediately preceding the asterisk. We acknowledge that Marshall has allowed that some
legislative accommodations of religion are constitutional, and that Lupu has more
recently expressed openness to some exemptions for religious organizations in a
same-sex marriage bill. See, e.g., Lupu and Tuttle, “Same-Sex Family
Equality and Religious Freedom,” 5 Northwestern J. of Law & Social
Policy 274 (2010). However, as we explain in the added text, the
group letter just submitted in Illinois shows little sympathy for protecting religious
organizations other than in the narrow context of the wedding celebration
itself—where protection is already guaranteed as a minimum requirement of the
Constitution.
Here is a short op-ed by me, at CNN, on the Town of Greece case. A bit:
It is always risky to make predictions about the Supreme Court's decisions based on what is or is not said by lawyers and justices at oral argument. It is also almost impossible to resist the temptation to hunt through the transcripts for clues and tea leaves.
On Wednesday, the justices heard arguments in a case called Town of Greece v. Galloway, which involves a challenge to a small New York town's practice of opening its board meetings with short prayers, delivered by volunteers. A lower federal court ruled last year that the town of Greece's prayers -- but not necessarily all legislative prayers -- violate the First Amendment's rule against "establishments" of religion.
Arguing for those challenging the prayer was one of the most respected legal scholars in America, Douglas Laycock. As his argument time was running down, Justice Elena Kagan -- one of the two justices nominated by President Obama -- shared an interesting and revealing observation. She emphasized how important it is to "maintain a multireligious society in a peaceful and harmonious way" and then added, "every time the court gets involved in things like this, it seems to make the problem worse rather than better."
A clue? Perhaps . . .
And, relatedly, here's a piece by the Becket Fund's Daniel Blomberg, "Does the Constitution Require Least-Common-Denominator Prayer?"
I've been delayed in writing about my next selection from the City of God--this one from early in Book II,
a book devoted to exploring the extent to which the Roman gods did not protect Romans from sundry disasters. But the particular disasters Augustine has in mind are moral disasters--not disasters of the body but disasters of the soul--and he highlights the vice and civic decay not only enabled but positively stimulated by the Roman gods. Here is Book II, Chapter 6, in full:
This is the reason why those divinities [MOD: in the previous chapter Augustine discusses Cybele, the "Earth Mother," in particular] quite neglected the lives and morals of the cities and nations who worshipped them, and threw no dreadful prohibition in their way to hinder them from becoming utterly corrupt, and to preserve them from those terrible and detestable evils which visit not harvests and vintages, not house and possessions, not the body which is subject to the soul, but the soul itself, the spirit that rules the whole man. If there was any such prohibition, let it be produced, let it be proved. They will tell us that purity and probity were inculcated upon those who were initiated in the mysteries of religion, and that secret incitements to virtue were whispered in the ear of the elite; but this is an idle boast. Let them show or name to us the places which were at any time consecrated to assemblages in which, instead of the obscene songs and licentious acting of players, instead of the celebration of those most filthy and shameless Fugalia [MOD: civil feasts] (well called Fugalia, since they banish modesty and right feeling) [MOD: I think that Augustine is relying here on the root, 'fuga,' meaning 'flight'], the people were commanded in the name of the gods to restrain avarice, bridle impurity, and conquer ambition; where, in short, they might learn in that school which Persius vehemently lashes them to, when he says:
Be taught, ye abandoned creatures, and ascertain the causes of things; what we are, and for what end we are born; what is the law of our success in life; and by what art we may turn the goal without making shipwreck; what limit we should put to our wealth, what we may lawfully desire, and what uses filthy lucre serves; how much we should bestow upon our country and our family; learn, in short, what God meant you to be, and what place He has ordered you to fill.
Let them name to us the places where such instructions were wont to be communicated from the gods, and where the people who worshiped them were accustomed to resort to hear them, as we can point to our churches built for this purpose in every land where the Christian religion is received.
One of the interesting features of the this chapter and, indeed, the entire book is the extent to which Augustine believes it to be religion's role to inculcate virtue--including civic virtue--in its adherents. The morality that Augustine is discussing is not a private or interior morality, at least not solely. In the previous chapter, he castigates the Romans for bestowing their finest citizens with the honor of a statue of "that demon Cybele." Robert Dodaro writes: "[E]ven Rome's best citizens are deceived by Cybele, the 'Mother of the Gods.'" Dodaro, Christ and the Just Society in the Thought of Augustine 45. And here, Augustine specifically mentions the morality not of individuals, or even of families, but of "cities and nations." The context in which he condemns Roman vice is not personal, but public--the feast of Fugalia, which so far as I can tell is a civic feast celebrating the expulsion of the Roman kings. And the fragment he quotes from the stoic Roman satirist Persius concerns both private and public virtue ("how much we should bestow upon our country and our family").
Augustine clearly believes that it is an important function of religion to inculcate civic or public virtue and honor. Religion is not a privatized or purely personal phenomenon, and any religion worth its salt must do more than "whisper" "secret incitements to virtue" "to the elite" (notice that by highlighting the "elite," Augustine is emphasizing the importance of religion's influence on the powerful, including the politically powerful). It must inform their private and public lives. It must provide a public forum--a place of assembly--for the discussion of virtue to occur (not just a private "whispering"). And it must "vehemently lash" public men. Christianity, Augustine believes, performs these functions, while the Roman gods failed to do so.
A final aside: I was struck by the fragment of Persius, because it sounds so much like the words that Dante puts into the mouth of Ulysses in Canto XXVI of Inferno as he sails to the ends of the earth (118-20):
Considerate la vostra semenza:
Fatti non foste a viver come bruti,
Ma per seguir virtute e canoscenza.
"Consider your origins: You were not made to live like beasts, but to pursue virtue and knowledge." Unfortunately for wandering Ulysses (at least in Dante's telling), he was not in the end able to discover "by what art we may turn the goal without making shipwreck."
Over the past couple of years, I've had the privilege of getting to know Fr. Michael Sweeney, OP, President of the Dominican School of Philosophy and Theology (Berkeley). As I spent time in Fr. Michael's presence and company, I soon discovered that what he has to say -- whether in his writings, homilies, or extended conversations -- is always worthy of careful attention. He is a wise, inspiring, and provocative intellect, not to mention a wonderfully true vir Ecclesiae.
I'd venture to say that it's sometimes easy to get lost a little about what our point here at MOJ -- developing "Catholic legal theory" -- amounts to. I commend, therefore, Fr. Michael's essay "The Vocation of a Catholic Scholar" (here), as a challenging yet comforting beacon and guide. What Fr. Michael has to say is rich with implications for law and legal theory. The role of the Catholic scholar is, Fr. Michael contends, "redemptive." And, one might go on to ask, if it's not, what's the point of it?
Fr. Michael's insights are, in part, a reflection on the important book by Fr. Sertillanges, OP, The Intellectual Life: Its Spririt, Conditions, and Method, which every Catholic scholar should study.
The Supreme Court heard arguments today in
the case of Town of Greece v. Galloway and considered whether opening a Town
Board meeting with a short prayer violates the First Amendment’s ban on
establishments of religion. The transcript of the oral argument is here. If I were the lawyers, I'd probably be a bit frustrated by the fact that the justices made it so difficult -- and not because their questions were so insightful or to-the-chase-cutting -- to develop their lines of argument. But, that's what oral arguments have become. (Maybe, if more justices followed Justice Thomas's example . . . but I digress.)
As I see it, the lawyers’ arguments and the justices’ questions strongly
suggest that the Court will continue to allow legislative prayers, without requiring close judicial scrutiny of particular prayers' content, and will also avoid any dramatic changes to its rules and doctrines. I don't think the possibility of jettisoning the "endorsement test" even came up.
The Court held 30 years ago that
legislative prayer is constitutionally permissible, and today’s arguments provide no reasons to think the justices are about to
change their minds. As I read it, a majority of the justices seemed to agree that, given the longstanding and
widespread tradition of opening legislative sessions with prayer, it would be
both inappropriate and strange to announce, at this late date, that this
practice is unconstitutionally coercive. And, the justices clearly had serious
reservations about getting into the business of closely examining particular
prayers to make sure they are sufficiently "non-sectarian", or to draw a
constitutional line between prayers that invoke "the Almighty" or "Heavenly
Father" and ones that invoke "Jesus Christ" or "Allah.” (It seems to me, as a moral matter, and as a matter of basic decency, those who deliver prayers in public or official settings should keep things fairly "non-sectarian," but I don't think the Constitution requires that every legislative prayer that's delivered be "non-sectarian.")
Justice Kagan’s said, near the end of the argument session, that “every time the
Court gets involved in things like this, it seems to make the problem worse
rather than better.” This observation, I thought, probably reflects a concern that is probably shared by a
majority of the justices, who will almost certainly want to avoid making its Establishment
Clause doctrine more confusing and the job of trial court judges more
difficult. And, there are two ways to avoid
doing this: First, ban all legislative
prayer, and second, re-affirm the Court’s earlier decision that broadly upholds
the practice as deeply rooted in our traditions and practices. It seems more likely that they'll take the second route.
Mirror of Justice friend Harry Hutchison, professor at George Mason Law School, offers this response and supplement to my post yesterday (here):
Well said
but it is important to remember the lead role played by American citizens in
the potential crackup of Obamacare. In what follows, I must confess that my
analysis is far from original. In any case I think two things are worth noting
given the problems emerging with respect to the Affordable Health Care Act.
First, Americans were only too willing to
avoid the warnings offered by many analysts which suggested that the Affordable
Health Care Act, representing the promise of Progressivism, would promise more
than it could possibly deliver. Second, it is important to remember what
Patrick J. Deneen has said about Tocqueville and the individualist roots of
Progressivism which may explain why Americans were only too willing to believe,
the often unbelievable promises of the law itself.
Deneen
suggests that although the major figures of Progressivism would directly attack
classical liberalism, a lucid understanding of Tocqueville’s analysis supports
the conclusion that Progressivism arose not in spite of classical liberalism
but because of its inherent and supreme emphasis upon, and cultivation of
individualism. Whereas the idea of the individual
is at least as old as Christianity, individualism
within the context of Progressivism represents a new experience of self that
arises with the diminution of a strong connection to a familial, social,
religious, generational and cultural setting wherein change occurs relatively
slowly consistent with a hierarchical (aristocratic?) society. With the onset
of notions of highly individuated equality, Americans have (perhaps)
experienced a new conception of the self—a self that emerges, unfettered by
historical ties, as individuals are now defined by their membership in
something larger—humanity itself. Liberated from embedded ties that ground us
in quotidian reality, individuals crave unity—unity that is found within the
pursuit of the ideal.
Liberated
from membership in mediating groups, individuals seek forms of protection from
the uncertainty that arises from the vagaries of human life. Thus understood
the acclaimed conflict between individualism and the collective represents a
false dichotomy because in reality unmediated individualism reinforces the
state. The State grows on what it gives the individual (presumably affordable
health care on demand at low costs) while diminishing the role of competing
local institutions such as the church or family. The individual is seen as
desperately alone and her only source of support is the State. If we are all,
as individuals profoundly weak, alone and isolated, the State is obligated to
support us in our autonomy and isolation as a fundamental requirement that is the
fulfillment of a democratic commitment to individuality and equality. The
Affordable Health Care Act was sold to individuals who were only too willing to
believe the promise that this law would ultimately free them and us from the
need to depend on our communities, churches, employers and other mediating
institutions. Instead, it would free us to pursue our fulfillment (whatever
that means) knowing that the existence of a “right” to healthcare would help us
achieve the unachievable, the illusion of autonomy. Other casualties emerge include a
pre-commitment to truth.
Yesterday was "Guy Fawkes Day" (or, more precisely, for our friends across the Pond, last night was Bonfire Night).
When I was in first grade, my public school celebrated Guy Fawkes Day. It did not strike me as strange at the time, though it certainly does now. (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.) Should it? Would a public school's celebration of Guy Fawkes Day communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community? Certainly, that was long the celebration's purpose. General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:
As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.
In any event, instead of burning Fawkes, or waxing rhapsodic about how liberty, individualism, and all that is good were saved when the Plot was thwarted, maybe we should read a little Eamon Duffy, and think about what England once was.
Brian Leiter comments, here, on a piece that ran in the New York Times a while back about Stanford's new religious-liberty clinic. While I disagree with Brian regarding his characterization of the Becket Fund for Religious Liberty's and the Templeton Foundation's support for the clinic as "dubious" or "right wing," and also disagree with him that our practice of (sometimes) accommodating religious believers through exemptions from otherwise generally applicable laws is immoral, I think he is quite right to push back hard on the idea that clinic is justified as some kind of special favor to conservatives, or Republicans, or whatever. Brian writes:
Most surprising of all is how Lawrence Marshall, director of clinical legal education at Stanford, describes it:
"The 47 percent of the people who voted for Mitt Romney deserve a curriculum as well,” said Lawrence C. Marshall, the associate dean for clinical legal education at Stanford Law School. “My mission has been to make clinical education as central to legal education as it is to medical education. Just as we are concerned about diversity in gender, race and ethnicity, we ought to be committed to ideological diversity.”
So the academic rationale for this clinic is that Romney voters need a law school clinic, on the bizarre assumption, I guess, that the only people seeking religiously based exemptions from laws are Republicans.
Yes, Prof. Marshall is right to remind those who profess commitments to diversity that ideological diversity matters too. But, it is wrong -- it is not fair to the clinic's faculty, students, supporters, and clients -- to frame and defend it as a consolation prize to the "47 percent who voted for Mitt Romney." Many (I hope!) among that 47 percent are happily to engage in experiential learning that involves service to the poor and to immigrants, say, just as (I hope!) many among those who voted for President Obama see the importance of (sometimes) accommodation religious minorities who are burdened by duly enacted generally applicable laws.
You knew that at some point that someone here on the Mirror of
Justice just had to say something
about what HHS Secretary Sebelius has now acknowledged to be the Obamacare “debacle.”
There will be ample time in the coming months to explore
in more detail the underlying issues about affordable health care, health
insurance options, access to physicians, controlling costs of health care (or
not), whether Obamacare expands the availability of affordable health insurance
as much as it contracts that availability, etc.
And it’s always possible that, after an initially disastrous
unveiling, the new health care regime will evolve into a model of government-managed
efficiency that strengthens the social safety net and enhances the health care
system to the popular applause of the American people.
But as the shoes continue to drop, and the focus shifts from
bad website tech to bad policy collateral effects, such a happy
outcome seems increasingly unlikely.
Consider how quickly political fortunes are shifting. Just a couple of weeks ago, House Republicans were pilloried
by the media and chastised by the public for shutting down the government and
risking a default on the national debt service for the solitary and dominating purpose
of undoing or at least revamping Obamacare.
But now and in the light of recent events, people are recalling
that President Obama and the Senate Democrats were equally willing to shut down
the government and risk a default rather than allow even the most modest
adjustment to Obamacare. When House Republicans sought to save face by asking only for a delay in the individual
mandate—which would have been parallel to the delay granted by President Obama to big
business in providing more comprehensive health insurance benefits to employees—President Obama and the Democrats would have none of it. (Ironically, now President Obama is thinking of doing exactly that because of the web site failure, which I guess makes his hard-line against House Republicans and the consequential government shutdown all for naught.) When moderate Republican senators proposed at
least abolishing the new tax on medical devices, which had been criticized by senators
of both parties as undermining American innovation and increasing the cost of
health care, President Obama and Senate Democratic Leader Harry Reid were
immovable.
In sum, the public is coming around to the realization that
President Obama and the Democrats are just as ideologically committed to
Obamacare as the Republicans are ideologically opposed to it. To be sure, the Obamacare crack-up has not
meant that Republicans are ticking up in popular approval. But President Obama and the Democrats are
definitely ticking down.
Three-and-a-half years ago—right after it had been enacted on a
straight Democratic-party-line vote—I predicted that Obamacare was unlikely to
succeed and that the just cause of greater access to health care might be
set-back rather than advanced by this irresponsible legislation. I argued
that we should keep our attention on the matter of health care and diligently
continue the search for genuine reform, because Obamacare was not prudent, was
not economically viable, and was not politically sustainable. (That
March, 2010 five-part series can be found here, here, here, here, and here). The points I made then remain salient today
(mostly). But, again, there will be
ample time in the coming months to return to these issues.
For today, one lesson emerges most clearly for anyone
advocating social justice initiatives:
Be scrupulously honest. If there
will be winners and losers under a proposal, admit as much. If enactment of a government program or regulation
will restrict freedom of choice by citizens to a certain menu of options
approved by the government, be willing to say so. If intervention by the government will have economic effects, such as increasing the costs of products, don't pretend otherwise. If advancing the common good will require
sacrifices by the many in order to provide better for the few, be forthright in
defending that result.
If instead, you mislead the people about what will come,
even for what you believe to be a higher cause, then the public cynicism and
popular backlash may do more than damage your cause in a political sense. It may set back the cause of social justice
altogether and dissolve the common good into a battle of special interests
seeking advantage in the aftermath of failure.
By overreaching—and by being disingenuous as you overreach—the most vulnerable in our
society may suffer the most when the house of cards collapses and public faith
in civil society is weakened.
Peggy Noonan’s column today on the prevarications that
accompanied the adoption of Obamacare makes this general point more specific in
this context:
They said if you liked your insurance you could keep your
insurance—but that’s not true. It was never true! They said if you liked your
doctor you could keep your doctor—but that’s not true. It was never true! They
said they would cover everyone who needed it, and instead people who had
coverage are losing it—millions of them! They said they would make insurance
less expensive—but it’s more expensive! Premium shock, deductible shock. They
said don’t worry, your health information will be secure, but instead the whole
setup looks like a hacker’s holiday. Bad guys are apparently already going for
your private information.
Earlier this year I posted about the recent lawsuit brought by a group of people with developmental disabilities against a state facility in Cambridge, Minnesota, for illegal use of restraints and seclusion. Though the plaintiffs won that lawsuit, they don't seem to have won the fight to end these practices. The court-appointed monitor in that case just filed a report with the court finding that these practices persist, even in a progressive state like Minnesota, in the enlighted year of 2013, under the public glare of this litigation. That's the one step back.
But then, in New York City, Jimmy Jensen just successfully completed the NY Marathon -- the first person with Down Syndrome to do so! If you want to be really impressed by something you see on the internet, watch this story about him (HT: Rick -- thanks!)
