Publius Speaks

Publius Speaks
Become A Follower

Thursday, July 3, 2014

The RULE of LAW vs. The RULE of MEN

The Radical Right has been trying for some time now to convince us that Islamic law is a threat to our country. In fact, 13 states have legislation either passed or pending that rejects the introduction of Sharia law into those states. Talk about a miscalculation: the Sharia "threat" is not real, is not valid, is not even applicable to our political life.

According to Wikipedia, "The term means "way" or "path"; it is the legal framework within which the public and some private aspects of life are regulated for those living in a legal system based on Islam. Sharia deals with all aspects of day-to-day life, including politics, economics, banking, business law, contract law, sexuality, and social issues.

There is not a strictly codified uniform set of laws that can be called Sharia. It is more like a system of several laws, based on the Qur'an, Hadith and centuries of debate, interpretation and precedent."

 There are those countries like Iran and Saudi Arabia where Sharia Law has a great influence on political governance because the civil law is informed in certain respects by Sharia Law, and that involves, especially in Iran, the elevation of Islamic clerics to a high office of interpreters so that civil legislation can be guided properly in the understanding of how Sharia law affects civil law. Thus, the clerics - Ayatollahs mainly - along with Muslim legal scholars, are attempting to relate the will of Allah to the 21st century, having reopened the door to interpreting Sharia in relation to politics and government.

Our own Supreme Court just announced a decision that is likely to be a greater threat to our government than any Sharia code could ever be. The Supreme Court just put a hole in the wall of separation of church and state that can bring down the entire structure of our democracy. You see, the Hobby Lobby and Conestoga litigation was not just about contraception and abortion, or about freedom of religion, or about freedom of speech. It is primarily about the basis of our constitution and our government. We are a nation dedicated to the rule of Law, not the rule of individuals, or corporations or dissidents. The Rule of Law just took a "hit" that cannot be ignored.

The law of the land, the Affordable Care Act, declared constitutional by the Supreme Court in a June 28, 2012 decision, requires certain businesses to offer contraception counseling and free contraceptive coverage in its health plans. The Hobby Lobby/Conestoga decision, although called "narrow" in scope, has allowed a "religious exemption" to those businesses. If they object to this section of the law on the basis of a religious belief, they can decide without penalty to refuse to provide contraceptive coverage for their employees.

It's important to say that religious exemptions do exist because of other laws, other actions by various administrations, and other rulings by the courts. However, this is the first time that an exemption has been granted on religious grounds to corporation owners or to corporations seen as "individuals." So says Justice Ruth Bader Ginsburg in her unrelenting and powerful dissent statement. It is important to pay attention to her arguments, in order to have a fuller understanding of this decision. So, following is a synopsis of terse and applicable statements that I have pulled together by reviewing the entire dissent.

The Court holds that Congress, in the Religious Freedom Restoration Act (RFRA) "demands accommodation of for-profit corporation's religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners' religious faith." Ginsburg is persuaded that RFRA served a far less radical purpose. She cites specific legislative intent and previous Court rulings to show that the exemptions for Hobby Lobby and Conestoga are not required.

She says that the Court's reading (of RFRA) as a bold initiative departing from previous jurisprudence is not plausible because even an amendment to that law "does not suggest that Congress meant to expand the class of entities qualified to mount religious accommodation claims."

As concerns RFRA's application to the current lawsuits, she raises several questions which she describes as "dispositive" of Hobby Lobby and Conestoga's claims: "Do for-profit corporations rank among persons who exercise religion? Assuming that they do, does the contraceptive coverage requirement substantially burden their religious exercise? If so, is the requirement "in furtherance of a compelling government interest?" And last, does the requirement represent the least restrictive means for furthering that interest? Ginsberg concludes that the Court fails at each step of its analysis of these crucial questions that are in keeping with the requirements of the RFRA.

Her analysis brings forth some notable quotes (emphases added are all mine):

"Until this litigation, no decision of this Court recognized a for-profit corporation's qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect for the exercise of religion is characteristic of natural persons, not artificial legal entities."

"Indeed, until today, religious exemptions had never been extended to any entity operating in the commercial, profit-making world. The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so for-profit corporations."

"The Court's determination that RFRA extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely-held corporations, its logic extends to corporations of any size, public or private."

"The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Undertaking the inquiry that the Court foregoes, I would conclude that the connection between the families' religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial."

"What the Court must decide is not the "plausibility of a religious claim, but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States."

"Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Conestoga but by the covered employees and dependents, in consultation with their health care providers. An employee of Hobby Lobby or Conestoga is of course under no compulsion to use the contraceptives in question. But no individual decision by an employee and her physician -- be it to use contraception, treat an infection or have a hip replaced -- is in any meaningful sense their employer's decision or action." It is not compelled by the government either, but is "the woman's autonomous choice, informed by the physician she consults."

"Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage, for which the ACA provides, furthers compelling interests in public health and women's well-being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life-threatening."

"The Court ultimately acknowledges a critical point: RFRA's application 'must take adequate account of the burdens a requested accommodation may impose on non-beneficiaries'. No tradition, and no prior decision under RFRA allows a religious-based exemption when the accommodation would be harmful to others -- here, the very persons the contraceptive coverage requirement was designed to protect."

The government argues that the least restrictive means has been used; the Court suggests the government pick up the tab for those not covered under the exemption.  Ginsburg says: "A 'least restrictive means' cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets." Furthermore, "impeding women's receipt of benefits by 'requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefits was scarcely what Congress contemplated." "And where is the stopping point to the 'let government pay' alternative?"

" The Lee Court made two key points one cannot confine to tax cases. 'When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity. Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would 'operate to impose the employer's religious faith on the employees'."

"How does the Court divine which religious beliefs are worthy of accommodation and which are not? Would the exemption ...extend to employers with religiously grounded objections to blood transfusions, antidepressants, medications derived from pigs, and vaccinations?" While she says the Court sees nothing to worry about, concluding that the ruling is concerned solely with the contraceptive mandate, Ginsburg counters:

"There is an underlying interest, I believe, in keeping the courts 'out of the business of evaluating the relative merits of differing religious claims.' Indeed, approving some religious claims while deeming others unworthy of accommodation could be 'perceived as favoring one religion over another,' the very 'risk the Establishment Clause was designed to preclude.' The Court, I fear, has ventured into a minefield'."

The court’s four liberal justices called it a decision of “startling breadth” and said that it allows companies to “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

And therein lies the kernel of truth that is being overlooked by most commentators and news media. This decision makes the rule of Law secondary to religious belief. And that, dear reader, is the basis of Sharia law, and of any system that puts religion or religious belief above the rule of civil law. The very officials who are supposed to be protecting the primacy of the rule of law have managed to attack it in such a way that individuals or corporations may now be able to question compliance with any law that does not conform to their individual religious beliefs.

Does it logically follow upon this decision that polluting industries can object to pollution laws on the basis of the bible giving dominion over the earth to human beings in Genesis? Can corporations now object to, and exempt themselves from, laws that require equal opportunity hiring based on scripture that denounces homosexuality; or that says that women are not equal to men? Can they now cite the religious belief that the earth was created in seven days by Yahweh/Jehovah/God and thus exempt their children from public school attendance because the school does not teach "creationism"?

Not only that. The five conservative Justices have now threatened your religious liberty because they have allowed the belief about the use of contraception as equivalent to abortion, to be the law of the land. They have sided with a particular religious belief, and thus established the doctrine of certain faith communities as the basis for this exemption. Those who do not hold this belief, and who believe in the right to free choice on the matter of abortion and contraception, are thus discriminated against and will be caught up in this favored treatment of certain religious groups over others when they are denied contraception coverage by their exempt employer; or eventually by their local pharmacy if it objects to selling contraception on religious grounds!

Moreover, this is a 1% decision. It was made in favor of rich corporation owners. It allows them to assert rights that enable them to wiggle out of responsibility to their employees. (Don't forget - the writer of this decision for the Court, Justice Alito, is known for his anti-Labor decisions and views). So are the Conservative Justices conspiring together to support the 1% as Congress has been wont to do?

Well, look again-- Hobby Lobby is not the only decision about capitalism handed down this term. There is also the little noticed Harris v. Quinn decision in which collective bargaining is weakened. According to a posting on SCOTUSBLOG, sponsored by Bloomberg News, the Harris decision makes it "unconstitutional to require personal assistants (to people with disabilities) to defray the costs of collective bargaining by paying a fee to the employee's union. Collective bargaining is substantially impaired when unions cannot require the workers who benefit from it to pay their share of the cost, and that is one result of this decision. Another likely result will be erosion of the collective-bargaining regime that has helped to stabilize the personal-assistance workforce." Down the road, many see the emergence of a case that will cement the primacy of right-to-work laws in the states.

The SCOTUS is aiding those plutocrats who believe that everyone has the responsibility for achieving success on their own; that "entitlements" produce laziness and dependency. You're now pretty much on your own for contraception, pension, health care, and college loans, and perhaps soon enough -- Social Security. This is another nail in the coffin of everyone who can be denied something by their employer. This is a capitalistic decision, not just a religious one.

But, it comes down to the same thing: putting the rule of (rich) men and their corporations before the rights and benefits of ordinary citizens; placing the beliefs, policies and opinions of the rich before the law of the land; allowing the law of the land to be accommodated to fit the perceived needs of the employer no matter what effect it may have on other parties. The SCOTUS conservatives are taking us down a “path” (note the Sharia reference) that offers little in the way of solace in terms of securing our rights.

Can we fail to ask then: are the conservatives on the Court involved in conspiratorial pursuits in favor of Christian practices and beliefs, or the ability of corporations to claim the right to free speech and religious accommodation, or the pursuit of enhanced power of employers over employees? I personally would not put it past them, even if it is a simple sharing of viewpoints in preparation for certain cases. At the very least, the conservative members of the Court have been laying groundwork for this flawed decision for some time. Citizens United declared corporations equivalent to individuals with free speech rights in the form of money donated to third party PACs. Then came McCutcheon telling government it cannot prevent citizens from giving campaign contributions to as many different candidates and political parties as they want. Of course, we can't forget Town of Greece and the approval of Christian prayer to open public meetings.

The Hobby Lobby decision has opened a can of worms, whether the Court recognizes it or not. The consequences for our society, our politics and our civil practices can be devastating simply because this Court has no regard for the primacy of "no establishment of religion" as stated in the first amendment. There is no firm basis for individual religious freedom if the establishment clause that walls off church and state is continually battered. Once particular doctrines, practices and beliefs of particular religions get encoded, favored, or allowed to be used to exempt an individual or corporation from a law of the land, we are in serious trouble as a democratic nation dedicated to the rule of Law and not of men.

Yes, we are being bamboozled; but, it’s worse than that. We are being saddled with the tenets of a minority who do not believe in the basic principles of democracy, and thus it’s very foundational principles are crumbling: “free speech” defined in terms of money; public safety given short shrift around abortion clinics (even though the Justices insist on their own safety as primary over protests at their offices); voting rights truncated and invalidated; establishment of one type of religious belief over another; denial of equality for all while favoring the rights and privileges of the rich; denial of the basic necessity of collective bargaining and the need for entities that can protest injustices in terms of pay and hours, benefits and safety measures; allowing open bribery in terms of elections; allowing employers to claim exemption from laws because of their religious beliefs.

This is not simply the misleading trickery involved in the art of bamboozling; this is destruction of the Rule of Law pure and simple!

 

 


 

Sunday, June 29, 2014



Is the Inconsistency of the SCOTUS Showing?
According to Rachel Maddow of MSNBC, there are some glaring inconsistencies in the recent Supreme Court ruling in the case of McCullen v. Coakley. As you know by now, the SCOTUS ruled unanimously that a Massachusetts law that set up a protest “buffer” zone 35 feet from abortion clinic entrances, is unconstitutional because it overrides petitioners’ right to free speech up close and personal. In his decision for the (unanimous) majority, Chief Justice Roberts actually wrote that petitioners (who said they wanted close up quiet conversations with women entering clinics to tell them about alternatives) were not protesters. The law blocked too much speech, he said, “sweeping in innocent individuals.” He also said that the state’s concerns about harassment, intimidation and obstruction could be addressed in other ways, including through creation of legislation on these matters.

The first inconsistency goes back to a 2000 decision that upheld a similar Colorado law in Hill v. Colorado. That “floating bubble” law established 100-foot buffer zones outside all health care facilities, not just abortion clinics. Inside those larger zones, the law banned approaching others within eight feet for protest, education or counseling without their consent. Only Justices Scalia, Kennedy and Thomas wrote that they would have overruled the Hill decision.

The second inconsistency has to do with the fact that such “buffer” zones, based on a need to control a surrounding environment are already in effect and unchallenged in the case of electoral polling stations. Most states and some municipalities have laws that prevent partisans from “lobbying” or “influencing votes” in or around a voting place. There is usually a “buffer” zone that extends about 50 feet from poll entrances in which “electioneering” cannot take place.
In the special case of military funerals, while the Court was consistent about putting free speech before the right of privacy in upholding the right of Westboro Baptist to protest America’s "approval" of homosexuality, the fact Justice Roberts said that the protesters from Westboro were far enough away not to be terribly hurtful to the family is a kind of unwitting approval of a buffer zone. Roberts in his opinion noted the Snyder family was not a “captive audience” to the protests that were conducted several hundred yards away. “Westboro stayed well away from the memorial service,” wrote Roberts. “Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing itself in any way interfered with the funeral itself.”
There are all manner of municipal laws that govern public protests, and many of them deal with conduct, space given, and length away from traffic, etc. However, I brought up Rachel Maddow at the beginning of this post because she rightly pointed out a much larger inconsistency: the fact that protests are barred from the white marble plaza of the U.S. Supreme Court building itself thus having a buffer in front of its own entrance! It appears that free speech is moot if you want to be up close to the Justices for a very personal and quiet counseling or conversation!!! Here is an interesting picture of police on the plaza guarding the Court building. 


“One tool has now been taken away,” said Martha M. Walz, the chief executive of Planned Parenthood League of Massachusetts and a former state legislator who was a lead sponsor of An Act Relative to Public Safety, the law struck down by the court. “We will now use the other tools at our disposal,” including laws prohibiting entrances of clinics from being blocked and injunctions against protesters who go too far.

“By striking down the buffer zone today, the Supreme Court has taken away an essential measure to protect public safety and health care access in our state,” she said. “The opinion raises the question of whether the buffer zone at the Supreme Court is in fact constitutional.” (emphasis mine!). Unconstitutionality is one thing; hypocrisy is another! (source: NY Times)

There are two more things about the decision that concern me. One is the fact that the Court naively believes that this is a case about quiet conversation and personal counseling, and free speech rights that attach. It is not just about free speech. It is very much about personal safety, and about zealots who have no regard for the safety or welfare of the women seeking health care or abortion from Planned Parenthood centers, and about assassins who kill doctors who have performed abortions. It is therefore about rights in conflict: free speech and personal safety.  

The Court has chosen free speech in this case, but it’s protected plaza is telling us that when it comes down to what the Justices really feel when they think of their own safety – free speech in the form of protest is not allowed near their building! My problem with the Justices is not their protection of free speech. My problem with them is that they did not pay attention to the right of personal safety. Instead, they passed it off to the legislature to come up with other laws. They ignored the safety of women who have to endure the hurt, the harm and the hell of having to seek this kind of help in the first place. It would seem from their decision that women are expendable; protesters of abortion (and apparently the Justices themselves) are not.

Finally, there is one more entirely ignored concern that lies at the foundation of these protests, and that is the imposition of a religious belief on others who do not chose to believe as the protesters believe. In protecting the free speech rights of the protesters, the Court has endorsed the concept that a religious belief can be imposed on others under the guise of free speech. As a branch of the federal government, the Court has thus allowed the establishment of a particular religious belief as a state-imposed norm.

In my estimation, free speech stops where my freedom to practice my religion or non-religion begins or when it is being trampled as it is here. The Justices have completely ignored this issue because they do not want to deal with the larger question of separation of church and state, which has been violated in so many ways, many of which have been allowed by the SCOTUS. One example: their latest ruling in Town of Greece vs. Galloway that allows a public entity to begin its public meetings with a Christian prayer in spite of objections of those who feel they are being imposed upon.

The liberal Justices have let us down in not recognizing the broader issues, but being willing to “go along” because the Chief left open the possibility of corrective legislative measures. Wrong; wrong; wrong! Going along with the religious tenets and acts of the right-wing is a dangerous precedent. For it is the sworn intention of right-wing evangelicals and conservative elements of other denominations, to make this a "Christian" society and government. They have no compunctions about forcing their beliefs on others because they have no room in their closed belief systems for any other legitimate beliefs; and certainly have no room -- or tolerance -- for those who profess no religious beliefs.

This is one more "crack in the wall" of separation of church and state. The wall cannot tolerate many more because it is already crumbling. The Supreme Court will be addressing opportunities to shore up that wall, but my guess is that they will fail to do so given the rulings that have recently been made. The decision in the Hobby-Lobby case will be crucial. It may come down at term's end tomorrow, but it may not. Whenever it comes down, ThinkProgress.org expresses it's significance well:
"Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius present the question of whether a business owner who objects to birth control on religious grounds can refuse to comply with federal rules requiring most employer-provided health plans to cover contraceptive care. Yet it is also the first wave of a much broader effort by religious conservatives to immunize themselves from legislative and judicial decisions that they expect to lose. For decades, the guide star of American religious liberty law has been a simple principle — one person’s religious liberty ends when it is used to strip away the rights of another. Hobby Lobby and Conestoga Wood seek to tear down this principle and replace it with a new rule that would subject every attempt to enforce a law against someone who objects to it on religious grounds to the 'most demanding test known to constitutional law'.”

A finding in these cases that supports a right to object to enforcement of a law on religious grounds would be equivalent to wielding a battering ram against an already crumbling wall of separation because what this comes down to is the same regime that pervades some Islamic governments of the middle East. The laws of the state would be subject to the rulings of the clerics. We could no longer claim to be a nation where law is supreme, because individual religious beliefs would determine which laws are viable and enforceable, and which are not. The fundamental issue, then, is not abortion or the right to life. The major issue, in my opinion, is the establishment of religious belief and practice as more important than the rule of law. 

We are headed in a direction that will have dire consequences for this nation as a free society, all under the guise of protecting the right of free speech.