Tuesday, November 5, 2013
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!)
This recent op-ed by Ross Douthat is well worth reading. Like Charles Murray (see, for example, his Coming Apart) Douthat is sensitive to the fact that the live-and-let-live nonjudgmentalism/libertarianism of many in America's cognitive and other elites might "work" fine for those elites but is very costly to the vulnerable at the bottom -- and, increasingly, in the middle -- of America's socio-economic ladder. Elites, as Murray noted, often make good choices in life (e.g., they don't abuse drugs, they don't overdo it at casinos, they get and stay married) but they are -- because of their politically-correct nonjudgmentalism -- don't "preach what they practice." Rather, they preach something very different, and something that can, again, be damaging to the vulnerable. As he concludes:
[L]iberals especially, given their anxieties about inequality, should be attuned to the way that some liberties can grease the skids for exploitation, with a revenue-hungry state partnering with the private sector to profiteer off human weakness.
This is one reason previous societies made distinctions between liberty and license that we have become loath to draw — because what seems like a harmless pleasure to the comfortable can devastate the poor and weak.
Commonweal has posted my review of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner. The piece is behind a paywall, I'm afraid. The review reflects on the nature and value of the canons of textual interpretation--the book's primary focus. Indeed, it might have been better if the canons had been the book's exclusive focus. The sections devoted to constitutional theory are not the best parts of the book. The review also discusses the sense in which--notwithstanding the skeptical criticism that has been leveled at them throughout the realist period and thereafter--the canons create something like a linguistic tradition for lawyers. Here is a fragment:
Some of the most interesting studies of law approach it as a distinctive tradition. And like many traditions, law has its own language which informs and suffuses the thought of those who think and speak through it. If the language of the law is not preserved—if it decays through lack of use, disregard, or skeptical dismissal as just so much transcendental nonsense—then the tradition of law dies as well . . . .The core aim of the book is to retrieve and systematize one of the law’s most important and enduring linguistic traditions—the canons of textual interpretation. The canons are not rules as much as rules-of-thumb, presumptions about the meaning of legal texts. Skill in legal interpretation involves the capacity to discern when a canon should, and should not, yield to countervailing considerations . . . .
Reading Law is, as the authors put it, a normative treatise that introduces the language of law to an audience for whom it is largely alien while offering a refresher course for attorneys and judges who have forgotten (or who never really learned) their canons. Like all treatises, the point is not to read through from front to back and I cannot recommend marching through the book’s 414 pages (that’s before the appendices). No one who isn’t looking for it will much miss the “Scope-of-Subparts Canon” explaining the relationship of subparts to parts, or the “Punctuation Canon,” which warns against “hostility to punctuation” and whose examples include various obscure nineteenth-century precedents involving the use of semicolons. But lawyers faced with interpretive problems will find in Reading Law a pathway to a set of linguistic precepts that structure and enrich the tradition of American law. That is a worthy contribution.
Monday, November 4, 2013
A split panel of the D.C. Circuit held last week in Gilardi v. HHS that the HHS contraceptives mandate violates the Religious Freedom Restoration Act. This post is not about the merits of that holding (with which I agree), but about the court's determination that "secular corporations" may not assert a RFRA claim. I think that the court's analysis was flawed and that it reached a wrong decision on this issue. The basic flaw was a failure to examine what constitutes an exercise of religion under RFRA. As I have previously argued, once one recognizes that "a religiously based refusal to do something otherwise required by law is an 'exercise of religion'" within the meaning of RFRA, it is not too difficult to see that corporations can engage in the exercise of religion because they can decide for religious reasons not to do something otherwise required by law.
First, some background:
Gilardi v. HHS was brought by two brothers and their two closely held corporations. These corporations collectively employ approximately 400 employees and sponsor a self-insured health plan that has historically excluded contraceptives, sterilization, and abortion. En route to holding that enforcement of the contraceptives mandate against the corporations violates the RFRA, the court held that the corporations themselves could not assert a claim under RFRA but that the brothers who controlled the corporations could. Judge Brown wrote the principal opinion, joined by Judge Edwards with respect to the issue of who may assert a RFRA claim and joined by Judge Randolph with respect to the merits. Judge Edwards dissented on the merits while Judge Randolph thought it unnecessary to decide whether the corporations themselves could assert a RFRA claim.
Now, some analysis:
RFRA provides that "[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c). As the Tenth Circuit explained in Hobby Lobby v. Sebelius, and as appellants argued, "person" generally encompasses corporations pursuant to 1 U.S.C. § 1 (the Dictionary Act). Judge Brown observes, however, that "the focus on personhood [alone] is too narrow; instead, we must construe the term 'person' together with the phrase 'exercise of religion.'"
Until this point, the analysis is correct. The right question to ask is whether a corporation is a "person" that can engage in an "exercise of religion" under RFRA. And to answer this question we need to know what counts as an exercise of religion. The analysis goes off track, however, when Judge Brown surveys Free Exercise Clause caselaw. Nowhere in Judge Brown's analysis does she examine what constitutes an "exercise of religion" under Free Exercise Clause caselaw even though that is the avowed object of her inquiry. Although Judge Brown asserts that "RFRA provides us with no helpful definition of 'exercise of religion,'" Congress declared that the purpose of RFRA was "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." Presumably, then, Sherbert and Yoder are good cases to look to for an understanding of what constitutes a proteted "exercise of religion" under RFRA. In each of those cases, the exercise of religion was a religiously based refusal to do something otherwise required by law. Judge Brown's analysis, however, mistakenly proceeds under the (unargued for) notion that the exercise of religion is limited to worship. She writes that "[w]hen it comes to the free exercise of religion . . . the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent." The issue is not whether corporations can worship; the issue, instead, is whether a corporation can refuse for religious reasons to do something otherwise required by law. And a corporation can do this. (See after the jump for relevant excerpts from prior blog posts on this topic.)
Continue
reading
Call for Proposals
Conversations
and Workshops on Emerging Scholarship in Feminism, Law, and Religion
March
20-21, 2014
Woulfe
Auditorium, Anderson Student Center
University
of St. Thomas, St. Paul Campus
On March 20-21, 2013, the University of St. Thomas in
Minnesota will be hosting a two-day program continuing a conversation begun by
feminist legal scholars and theologians in the recently published collection of
essays by feminists of a wide variety of religious perspectives, Feminism,
Law, and Religion (Ashgate Press 2013, Failinger, Schiltz and Stabile
eds). The book’s authors and others will be
exploring the role that theology and religious law from various religious
traditions can play in construing and critiquing just law throughout the world. The complete list of panel topics and
speakers and conference registration information can be found on the
university’s website here.
To enrich and continue this conversation beyond these two
days, one segment of the conference will be devoted to supporting emerging
scholarship on these issues. We are
currently accepting proposals for two different types of opportunities for
emerging scholars:
1) presenting a work-in-progress on feminism, law, and
religion in a supportive workshop environment;
2) hosting an
informal conversation on some particular
aspect of this conference with other conference participants.
Scholars interested in either presenting a work-in-progress
or hosting a conversation should send a brief (no longer than one page)
description of their work or conversation topic to Seanne M. Harris, [email protected] by Nov.
30, 2013. Applicants will be notified of
acceptance by December 15, 2013.
Sponsored by:
The University of St. Thomas College of Arts and Sciences, Jay Philips Center
for Interfaith Learning, Luann Dummer Center for Women, Muslim-Christian
Dialogue Center, Siena Symposiumfor Women, Family, and Culture, and the
Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy at
the University of St. Thomas.
Friday, November 1, 2013
Check out this piece, at First Things, by James Rogers, called "Ecclesiastical Exceptionalism." Among other things, the paper wrestles with the problems that attend to treating churches -- or the Church -- as one of those "voluntary associations" that we Tocqueville (etc.) fans talk about a lot. (I talk about this matter, too, in this paper: "Are Churches (Just) Like the Boy Scouts?"). Here's a bit from Rogers' piece:
. . . [W]e can ask whether the tendency to rank the Church as just one of many “voluntary associations” has an impact on the way that Christians think about the Church. If the Church is no more than a spiritual version of the Rotary Club, then it is no more than another avenue for our self-expression and self-interest. This way of understanding the Church, to draw on sociologist Ferdinand Tönnies’ phrasing, is to turn the Church from an organ of gemeinschaft(roughly translated as “organic community”) into an expression of gesellschaf(roughly translated as ”civil society). This self-understanding implicitly limits Christians’ aspiration for the Church and for their experience of it.
