If I’m so wrong

12 04 2015

Too many thoughts, not enough words.

No, that’s not right: too many thoughts in too many directions, words scattering after the thoughts.

I didn’t make the argument that pluralism is best protected by the one-law principle (I guess I’d call it), and have been stewing about how to brew up that argument.

David Watkins (aka “djw”) at Lawyers, Guns & Money had a couple of good posts, as did John Holbo at Crooked Timber—the comments are even more provocative than the original post—the latter of which spurred a multi-page effusion of thoughts that. . . led to no greater coherence of those thoughts.

So: more work to do.

One thing did seem worth mentioning now, however, and that is that I was wrong to assert that adherence to a one-law standard would be sufficient to protect and even promote pluralism: it would not.

I think it can protect pluralism, but not on its own. One addition might be a robust defense of one’s off-the-clock expressions against on-the-job discipline or punishments. That is, as long as someone performs her duties at work, what she says or does when not at work can’t be used against her by her employers.

There are issues with this, of course, in terms of salaried employees, or those for whom off-the-clock expressions might be fairly seen as relevant to the job (e.g., a fire fighter who hates Catholics or a teacher who argues that children of single parents are damaged), or for a boss or CEO who is to represent an entire company.

And that more is involved than just employers/employees implies that other principles/standards may be required.

As I said, more work ahead.





For worse or for better

29 03 2015

Lemme have another go at this.

If there are different laws for different groups, then the differences between the groups will grow. People will join Camp A or Camp 5 or Camp Potato, and their actions will depend upon what camp they are, and are not, in. Even those—especially those—who don’t care one whit about camps will be pressured to choose, to pick a side.

Absent a neutral law, neutrality is hard to maintain.

And absent neutrality, pluralism is hard to maintain.





Whatever we deny or embrace

25 03 2015

Sometimes a girl just wants a beer.

I don’t want to have to be bothered with the bodega owner’s religious beliefs, or the beer company’s political donations; I don’t want to have to run through some kind of checklist of acceptable/unacceptable views before I lay down my 10 bucks for a six-pack.

You see, all that time I spent spewing a not-inconsiderable number of words on the concept of “one law for all”, I was really just covering for my own laziness.

Okay, not entirely true, but if we decide to divvy up our laws and protections based on personal beliefs, then those of us who have strong beliefs (of whatever sort) are gonna end up wasting time trying to make sure we’re not paying for someone else’s loathsome agenda.

I don’t mind searching for fair trade coffee, say, and do try (although sometimes fail: Amazon) to buy products and services from companies which don’t mistreat their workers; connecting labor conditions to the purchase of things labored is a pretty direct relationship, and thus makes sense to me.

But beyond that direct economic relationship, I’m a raving pluralist, and thus neither want nor expect that everyone and every company which produces anything I could possible buy, use, or otherwise enjoy would line up with my own beliefs.

More than that, I think it would be bad if we only ever consorted with our own kind on every last thing.

How dull. How constricting. How small.

I do notice the expressed political or religious views of authors and actors and musicians, and yeah, it does affect my view of them—and I don’t like that. (I have yet to write the Play to End All Plays, but if I could get Brian Dennehy or Danny Aiello to star, I would be a fool to turn them down just because they’re conservative.) I don’t know these people, will never know these people, so if I’m watching a movie or listening to a song, why should their personal views have anything to do with my enjoyment of their performance?

Such tribalism is only human, I guess, but I don’t have to feed it; getting past tribalism is human, too.

Which is where one-law-for-all comes into play: it’s good for pluralism. When we enter the public sphere, each of us is by law equal to the other, which means that by law each can go where and do whatever anyone else can do*. It is a basic kind of justice.

(*Yes, there are some exceptions to this—“employees only” and “you must be this tall. . .” and all that—but the general rule stands.)

It is—horribly—clear that not everyone is treated equally and that injustice is a daily part of life. Still, that we are all to be equal under the law promises, if only in the breach, that each of us deserves to be a part of public life, that however different we may be from one another, we belong.

All right, I’m getting tired, my thoughts are wandering, and this argument is falling apart even as I make it, so lemme just jump to the end: having different laws for different groups disrupts that basic equality and obscures the basic standard of justice. Instead of being free to move about the country, one has to worry about getting/determining who to shut out.

And the second end: if we instantiate the lines we draw around ourselves, those lines come to matter more than anything else—more than the beer, the books, or the movies we could enjoy, more than ease of moving through our towns and our cities, more than the experience of being in the world.

I don’t want society to be a mush; I want us to be able to differ. And the best way to do that is to make sure that, whatever our differences, we are, by law, treated the same.





Let the rain fall on your skin

11 12 2014

The USA Patriot Act issued by the US Senate on October 26, 2001, already allowed the attorney general to “take into custody” any alien suspected of activities that endangered “the national security of the United States,” but within seven days the alien had to be either released or charged with the violation of immigration laws or some other criminal offense. What is new about President Bush’s order is that it radically erases any legal status of the individual, thus producing a legally unnameable and unclassifiable being. Not only do the Taliban captured in Afghanistan not enjoy the status of POWs as defined by the Geneva Convention, they do not even have the status of persons charged with a crime according to American laws. Neither prisoners nor persons accused, but simply “detainees,” they are the object of pure de facto rule of a detention that is indefinite not only in the temporal sense but in its very nature as well, since it is entirely removed from the law and from judicial oversight. The only thing to which it could possibly be compared is the legal situation of the Jews in the Nazi Lager [camps], who, along with their citizenship, had lost every legal identity, but at least retained their identity as Jews.

Giorgio Agamben, State of Exception

The torture-cheerleaders are clear to state that the Bush Administration’s legal counsel cleared the techniques of torture—mainly by stating that these techs were not-torture—so it could be argued that the “detainees” were in fact covered by law, as “detainees”.

The torture regime of a decade ago was indeed a legal regime: by using the law to remove the protections of the law from those assigned “detainee” status, it covered those who would torture.

Hannah Arendt noted there is no particular dignity in the naked human being (although “naked” in this sense meant shorn of one’s membership in a state), which leaves that shorn human vulnerable to imprisonment, displacement, death.

The point, then, is the same: lacking status as a citizen, a prisoner, a person—as someone recognized by us—allows us to do anything to that non-person.

And so we did.





Bless the beasts and the children

18 11 2014

Why one law for all?

Yes, I have and will continue to bang on about principle and theory, but sometimes concrete examples work best.

Such as dead children.

Jeez louise, you might be thinking, do you really have to get all extreme about this? I mean, aren’t you exaggerating just a wee?

Nope.

Despite the deaths of least 12 children from “faith healing” Christian families in their state, lawmakers and public officials in Idaho have refused to challenge a state law providing a religious exemption from manslaughter and murder charges, Vocativ reported.

There is little push to change the laws.

“This is about religious beliefs, the belief God is in charge of whether they live, and God is in charge of whether they die,” state Rep. Christy Perry (R) said. “This is about where they go for eternity.”

The move from doctor-centered to patient-centered decision-making has, on the whole, been good for patients, and one of the most important powers which has migrated to patients has been the right to refuse treatment.

I am foursquare in favor of such a right—for an adult, for herself, for any reason.

When making decisions on another’s behalf, however—especially a child whose care the state has charged one with providing—the exercise of such power ought to be scrutinized.

Or, to put it less abstractly, parents ought not be able to refuse life-saving care for their kids, especially when such care is routine and effective, because God said so.

Parental custody is conditional, not absolute.

This shouldn’t be a controversial statement: parents who starve or beat or neglect—including medically neglect—their children may be charged with crimes and have the kids taken away from them.

But throw a veneer of religiosity over such neglect, and well, whatcha gonna do?

Jackson Scott Porter, a newborn girl. . . lived for just 20 minutes before dying in her grandfather’s home. The girl’s mother did not receive any pre-natal care. Her cause of death was listed as untreated pneumonia.

“That’s the way we believe,” the grandfather, Mark Jerome, told KATU at the time. “We believe in God and the way God handles the situation, the way we do things.”

KATU also reported that local officials believe that another minor, 14-year-old Rockwell Sevy, had undiagnosed Down’s syndrome before he also died from pneumonia, in 2011.

Sevy’s father, Dan Sevy, refused to discuss his son’s death with KATU last year, citing his right to freedom of religion.

“I would like to say, I picture freedom as a full object. It’s not like you take ‘a’ freedom away,” Dan Sevy said. “It’s that you chip at the entire thing. Freedom is freedom. Whenever you try to restrict any one person, then you’re chipping away at freedom. Yours and mine.”

This is the dumbest goddamned argument about freedom this side of Galt’s Gulch, which dumbness would make it pathetic were it not pernicious—which is to say, had it not resulted in a boy’s death.

This religious exemption necessarily removes the children in these homes from protections of the law, specifically, of the equal protection clause of the 14th Amendment: in allowing parents to neglect their children for religious reasons, the children in these religious households are given fewer protections of the law than children in other households.

I had thought such exemptions were narrow (confined to vaccinations, say), but they are, dismayingly, widespread.

The right of the parent to inflict her religious beliefs on the child, even if it kills him, apparently matters more than the child himself.





Are we not men

2 07 2014

I freaked out about Hobby Lobby a few months ago, so while I was pissed at the ruling, by the time it arrived I was all freaked-out.

There’s a shit-ton of good (and lousy) commentary out there about the ruling—which means I’ma gonna pass on Fisking Alito’s decision (which, by the way, Supreme Bad-Ass Ruth Bader-Ginsburg does just fine in her opinion, beg. on p. 60) and tick off a few hits:

1. This decision is terrible for equal protection of the law, offering an out from laws of general applicability, based on the sincerely? insincerely? held beliefs of those seeking the out.

Yes, Alito & Kennedy say, No, no, that’s not what we really mean, but whether or not they are sincere in their meanings, that will be the practical effect.

2. It is difficult to see how the courts and the Court can avoid favoritism in choosing to exempt contraception-banners but not transfusion- or psychiatry-banners. [see point 3, pp. 5-6]

Which means they either engage in favoritism, allow Congress to engage in favoritism, or allow the exemptions.

3. It is not at all difficult to see why contraception was singled out as exempt-worthy but transfusions and psychiatry might not be.

Guess! Guess!

4. Given how weird and not-wonderful our politics has become, this ruling may actually work against religious conservatives, and will be used (likely to some effect) in campaigns against Republicans.

Religious conservatives have done a pretty good job of complaining how wee and woebegone they all are, under assault from the gay agenda and atheist meanies and a hostile Obama administration—which complaints, however ginned up, did form out of a juniper seed of fact: a majority of the country now accepts gay marriage, some atheists are mean, and Obama has pushed hard on protections for LGBT folk.

So, religious folks on sexual matters: on the defensive.

Now, however, those same religious folks may lose their “underdog” status and may—may—be seen less as bullied than bullies, or at least as above the law.

Which, y’know, they are.

5. This decision really is bad for women, not just because it makes it easier for employers to deny contraceptive coverage to them, but because it further segregates “sexual health” from “health”.

And no, I’m not even going to begin to link to all of the idiots who think sex is dirty or nasty or not somehow an integral part of human being.

6. This decision, combined with the Harris v. Quinn decision chipping away at public sector unions, is bad for everyone.

As Sarah Jaffe noted,

Attacks on all workers’ rights often come first through attacks on those deemed less important workers. When we decide that birth control isn’t a pivotal issue because it only affects some workers, or that homecare workers’ loss is not a loss for us all, we leave the door open for the next attack.

7. From another angle, it is difficult to see how an expansion of the rights of the corporate person is good for corporeal persons.

This last point deserves more thought, thought which I don’t have right now. Let’s just say that it seems that as the rights of one expands, the other contracts.

~~~

h/t Erik Loomis at Lawyers, Guns & Money for the Jaffe link





Hear me roar

25 03 2014

I cannot fucking believe that the Supreme Court might rule in favor of Hobby Lobby.

It just. . . it’s. . . it makes no fucking sense what.so.ever.

One law. One fucking law for all. Is that so hard to understand?

You’d think Scalia would get this, he of the Smith decision who wrote that

We have never held that an individual’s religious beliefs [494 U.S. 872, 879]   excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594 -595 (1940): “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted).” We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws,” we said, “are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Id., at 166-167.

[. . .]

[re US v. Lee] . . . There would be no way, we observed, to distinguish the Amish believer’s objection to Social Security taxes from the religious objections that others might have to the collection or use of other taxes. “If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief.”

[ . . .]

Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” Braunfeld v. Brown, 366 U.S., at 606 , and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind. . .

[. . .]

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. [emph added]

Now, yes, the Religious Freedom Restoration Act was passed to counter the Smith decision, but when individuals tried to use RFRA to argue against paying taxes, the Court say, in effect, “nuh-uh”, that the requirement of tax payment met the “compelling government interest” test.

Ensuring that women have access to a full range of medical care, including that of counseling and advice regarding our birth control options, may not, however, be sufficiently “compelling”.

Taxes: yes! Control over one’s body and health? Nah.

As Dahlia Lithwick observes,

The rights of millions of women to preventive health care and workplace equality elicit almost no sign of sympathy or solicitude from the right wing of the bench today. Nor does the possibility that religious conscience objections may soon swallow up the civil rights laws protecting gay workers, women, and other minorities. Religious freedom trumps because we’re “only” talking about birth control.








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