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.





Free free, set them free

3 03 2014

I’ve banged on and on and on on the necessity of one law for all. Not this time.

In the interest of not repeating myself on purpose (I do enough of it by accident), I’m not going to outline yet again why broad religious exemptions from laws of general applicability are a bad idea, and simply jump to the conclusion: Religious institutions and their affiliates which hire and treat/educate/work with solely their fellow co-religionists? Fine: clear First Amendment exemption. Places of general accommodation? Nuh-uh.

Anyway, these proposed laws based on “sincerely-held religious beliefs” seem like a very bad idea for a very basic reason: who the hell is to determine what is a “sincerely held religious belief” and how is it to be determined?

Courts generally don’t want to have to deal with this, not least because they don’t want to be in the position of having a government body determining what is a religion, much less sincerely held beliefs about them. Yes, there are cases in which this occurs—conscientious objectors from the draft, IRS tax-exempt status, rights of prisoners—but beyond that, not so much.

More to the point, if I sue you for denial of service and you claim a s.h.r.b. defense, then my attorney is going to question you about your beliefs, how consistent you are in their application, your level of knowledge about your religion, and on an on. State legislators might think they’re handing you a get-out-of-court-free card, but if you get that card due solely to the sincerity of your belief, well then, that gives me incentive to challenge both the sincerity and the belief.

If you are in any way inconsistent—which is to say, human—it’s just possible that a jury of your peers will find that you don’t, in fact, believe what you say you believe. And even if you win, you and your beliefs will in the process have come under sustained official scrutiny.

It’s tough to see how that in any way advances the cause of religious liberty.





Don’t want to be a richer man, pt II

29 08 2013

Back to unpacking that hastily stuffed post:

2. Losing status is not an injustice. It’s not fun, and it may feel unfair, but the loss of status in and of itself is not unfair.

Status can be earned or unearned, related to deeds, to relationships, to kinship, something taken or something granted. It almost certainly is culturally dependent—what earns you status in one culture may earn you contempt in another—and, depending upon that culture, may be related to justice or not. In cultures in which people think they deserve their status, they are likely more likely to believe that changes in the culture which lead to changes (loss) in status are unfair.

This could be seen as the aims of the civil rights movement in the US were absorbed into society and instantiated in governmental and corporate policy. As a result, those who had formerly only to compete with one another for position were instead forced to compete with those who had been kept out of the game.

To switch up the metaphor: white men could no longer count on always being first in line for jobs, promotions, college admissions, and sundry other social goods. They lost status.

That they did so, however, was not unjust. American society was formed out of the ungainly mess of egalitarianism, white supremacy, patriarchy, justice, toleration, conformity, segregation, integration, settlement, escapism, hard work, and luck, and as the polity shifted away from over supremacism in terms of both race and sex, the sense of “who was best (for the position, say)” shifted.

The liberationist in me would say Not damned nearly enough, but I do recognize the shift has occurred, and in a direction which has benefitted me and, I would argue, society as a whole: I think it is better to live in a society in which the placement of one’s reproductive organs  does not determine one’s prospects in that society, or where  people”will not be judged by the color of their skin but the content of their character.”

(I know that’s an overused phrase and not even his best one, but on the 50th anniversary of the speech, it seemed apropos.)

Now, I admit that I’m overloading “status” somewhat, leaving “justice” untouched. No, I don’t think justice exists outside of culture, but one of the enduring fictions of American culture is that, supremacism notwithstanding, justice bears some relationship to deeds, and that everyone deserves a fair shot at a decent life. The definition of justice didn’t change so much as did the “everyone” who deserved the fair shot: the pool of who were to be considered in matters of justice got a whole lot more crowded.

With the expansion of “everyone” to include almost every citizen, the status which had accrued to white male citizens simply for being white male citizens was necessarily lessened—not because status was taken away in an absolute sense, but, because it was granted to so many other people, meant relatively less.

To bring in yet another analogy: it’s not that white men got kicked out of the pool but that they had to share it. And yeah, if you’re used to having the joint to yourself, having to share it is a loss.

But it is not unjust.





As they try to change their worlds, pt I

25 08 2013

I may have been a bit brusque in stating “nobody cares about you”.

I did add the qualifier that “nobody” means “those who don’t know you”, but even with that dilution, it was too strong a statement: there are people who do genuinely care about strangers, and that there may exist a widespread (if minimal) sympathy amongst the members of our species suggests that, yes, many of us do care—however minimally—about one another.

The real problem with that statement, however, was that it bundled together too many dynamics, not all of which go together. So, to haul out that nifty word-tool of my grad school years, let’s unpack those bundled dynamics, shall we?

1. Changes are not conspiracies. I’d guessed that “the fear of incipient repression could be found among any group which sees its superior status threatened”—that is, that changes in society which are meant to benefit an out-group can be seen by some in the in-group as primarily an attack on the in-group. Thus, those in favor of queer rights and same-sex marriage are seen as less interested in preserving themselves than in destroying others.

I read the blogs at The American Conservative (Rod Dreher regularly and others semi-regularly) and pop over to Christianity Today a couple of times a week, and it is common for some bloggers and commenters alike to see legal and cultural changes as either harbingers of complete societal collapse and/or portents of a future in which all “true” Christians are targeted for oppression; some see the extension of anti-discrimination laws (e.g., no business may refuse to serve a same-sex couple simply because they are gay) or the enforcement of laws of general applicability (e.g., secular businesses run by religious people are not exempt from the contraception provisions of the Affordable Care Act) as evidence of anti-Christian oppression today.

Someone like me sees changes in the structure of the law and shifts in cultural perceptions of minorities (of whatever sort) as part of a by-no-means-straightforward amalgam of overt and organized political action, artistic presentations, elite intellectual debates, media representations, everyday experiences, and, of course, material conditions and economic forces. As such, while changes can have intensely personal meanings, they are not personal per se, but are instead changes in the rules which affect everyone.

Consider the 1965 Supreme Court ruling, Griswold v. Connecticut, which overturned a state law prohibiting contraceptive use for married couple. State attacks on contraception went back decades, although by the time the pill was developed (in the 1950s), contraception was not only legal but embraced in many states. Griswold (and later, Eisenstadt v. Baird), simply toppled an opposition which had long since dwindled. Contraceptive use became the norm.

Were Griswold and Eisenstadt an attack on Catholicism? Anti-Catholic sentiment, however much it had dwindled since the 19th century, was still prevalent in this country, and that the Catholic Church was officially against contraception was known; to strike down bans on contraception could be seen as evidence of contempt for Catholicism—as, indeed some have seen and continue to see it today.

The Court rulings, however, depended upon a (still-contested) finding of a right to privacy in the Constitution. There was nothing which required the Church to change its own doctrine; these cases simply took away a series of state-sponsored supports* for that doctrine. The Church would be free to inveigh against barrier and chemical  methods of birth control, but they could no longer rely on state law to help them to enforce their opposition.

(*That a state happened to have anti-contraception laws didn’t mean that they passed them to support Catholicism; regardless of intent, however, they had the effect of doing so.)

Due to these rulings as well as to other cultural changes, the Church clearly lost, not only authority but also status. Catholics were not prevented from believing that artificial birth control was bad nor were they required to use it, but their anti-contraceptive position was taken to apply only to Catholics themselves (and not all of them accepted the official position) and was otherwise accorded no greater weight than any other position on the matter. The ground shifted, and in a way which put Catholics authorities on the same level as any other authority: they no longer had special status.

To those who lose such status, the loss is almost certainly personally felt, but that one feels it personally does not mean it was meant personally. The ground underneath everyone’s feet shifted, not just those officials and members of the Catholic Church. and that the Church was unhappy with the quake does not mean the quake was directed at them.

~~~

There’s more than this, of course, but let’s take it slow: haste did me in, last time.





Nothing to hide, believe what I say

8 08 2013

What a shocker: “protester” is an undercover cop.

This should surprise exactly no one.

Police forces-have a long and dishonorable history of infiltration of and provocation among organized protest groups—never mind the First Amendment rights to freedom of speech and assembly. Those tasked to “protect and serve” forget that protesters, too, deserve protection and service.

Anyway, given that long history of surveillance and disruption, the best course for any protest organization is to be open and public as possible: hide nothing, publicize everything.

There may be bits that it makes sense to keep under wraps for tactical reasons—the location of a pop-up protest, for example, might be texted to members at the last minute—and those involved in present-day sanctuary movements of whatever sort have good reason for discretion, but on the whole, if the purpose is to raise public consciousness, change public opinion, or call for new/different laws, then the best bet is to embrace one’s status as a public entity and throw everything into the open.

Will this prevent police surveillance? Almost certainly not. But it will both eliminate the need to waste any time worrying about who among the crowd might be a cop and inoculate the group against claims of criminality.

(Of course, there are protesters who embrace criminality as the best/only way to undermine/overthrow the whole shebang, so, yeah, secrecy might be the best bet for them. It will also, in combination with the criminality which requires it, curb their effectiveness in under-/over- mining/throwing.)

This, for example, is the wrong attitude to take:

[United Students Against Sweatshop protester] Shishido Strain says his run-ins with Rizzi have already made him wary of strangers who want to get involved in fights for workers’ rights.

“I have personally become much more cautious with people who express support for us at actions and others who express an interest in joining our actions, if I do not know them already,” he says.

I  get why Strain is concerned, but if your group has any sway whatsoever, it’d be so much easier simply to assume cops are present, and move on. Don’t let ‘em distract you, don’t let ‘em limit your efforts to reach out.

Open subversion: it’s the better way.

~~~

None of this is to say that cops shouldn’t be sued each and every time they infringe upon the Constitutional rights of protesters. You can be open without being a sap.





This isn’t a court of justice, son, this is a court of law

14 07 2013

So in the eyes of the law George Zimmerman is not a murderer.

This grown-ass man who followed a teenager, got out of his truck to confront him after explicitly being told not to by the police dispatcher, ended up in fight with him, then shot him, is not a murderer in the eyes of the law.

George Zimmerman followed, shot, and killed Trayvon Martin, but in the eyes of the law, he is not a murderer.

The law, as the saying goes, is an ass.

George Zimmerman may not be a murderer, but he is a killer. He killed a young man, he killed Trayvon Martin, and while the jury may acquit him of murder, it cannot take away the deed itself.

George Zimmerman may not be murderer, but he is killer. He will always be a killer.

(Updated to include link.)





Get back to where you once belonged

13 03 2013

One law to rule them all.

It ought come as no surprise that I give a Hard Look* to claims for religious exemptions to laws of general applicability: for all to be equal before the law, we must all be equally under the law.  To exempt someone from the obligations of law while simultaneously granting her the protection of  that same law is a form of favoritism which must be defended, not merely assumed.

Two points. One, this does not mean exemptions may never be granted. Exemptions are granted to religious institutions, for example, based on the freedom guaranteed in the First Amendment  (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”). There are political and juridical tussles over the interpretation of these two clauses, but in the main there is a general sense that it is right and proper that the government not tell people how to practice their religion in terms of their religious ceremonies and their relationship to their fellow congregants.

Thus, churches, synagogues, mosques, temples, and sundry other religious institutions are exempted from laws regarding discrimination in hiring and firing of clergy and, for the most part, on working conditions. I may roll my eyes at arguments regarding the necessity of all-male clergy, for example, but I nonetheless agree that allowing the exemption to religious institutions is of no great concern to those outside of those institutions.

This, of course, is the case only insofar as the obligations of the religion apply only to the adherents of that religion. The free-exercise clause applies not only to congregants, but also to non-congregants, that is, you may voluntarily choose to align your behavior with your favored religious strictures, but you cannot force me to align my behavior to your religious strictures.

Point two: Certain religious institutions in the US are fighting for exemptions based on non-reciprocal understandings of religious freedom. What is new(ish) is not the non-reciprocal understanding—it wasn’t until the 20th century that the courts began to extend the protections of the First Amendment to (numerically) marginal religions, a process which continues, bumpily, today—but the fact that these institutions do, in fact, have to fight.

They can no longer wave the cross or the crucifix over every last act and expect dissidents, challengers, and the state to stop transfixed before them. There cannot presume exemption; they must defend it.

Rod Dreher, among others, bemoans the loss of status-entitlement of what he calls orthodox Christianity, a loss he sees as an erosion of religious freedom. That most Americans favor the use of contraception and increasingly favor same-sex marriage and equality for queer folk means that they are less willing to grant authority to those orthodox religious leaders—which means that they are less willing to grant legal leeway to those same leaders.

In this sense, I agree with Dreher that these churches and traditions are losing, but while he sees a loss of freedom, I see a loss of entitlement. John Holbo notes, correctly, that those who argue that religion deserves its entitlement rely on a notion of “an extra epistemic concession”, that is, that an argument ought to be granted respect or extra points because: Religion. It is in no way clear why this should be so.

And that’s the nub: in the past it rarely had to be made clear why this should be so; it just was. But now, for any number of reasons, that extra epistemic concession is no longer granted, with the result that the authority of those relying upon that concession has been degraded. “Because (God) says so” is no longer enough.

This hardly stops folks from trying to protect their entitlement. Since Americans do tend to respond to appeals to individual rights, the ground has shifted from authority to freedom. That a private business run by religious people might  be required to provide benefits (read: contraception) to their employees which they, the employers, find religiously offensive, is seen as an infringement upon their (the employers’) freedom.

Call it the Taco Bell defense.

Some nations do, in fact, have different laws for different religions. In India, for example, Muslim men may take multiple wives, but Hindu men may not. Martha Nussbaum offered a limited defense of such variation in Women and Human Development, but even this was more a practical concession to the historical and political realities of India than a ringing defense of the idea of This law for thee and That law for thou.

In the US, however, we had the opposite: throughout the 19th and into the 20th century, there was a default Protestantism, and it was only through decades of court fights that recourse to that default was diminished. The Catholic Church, often victimized by this default, was nonetheless able to take advantage of the authority offered to Christianity in general in order to assume its share of privileges in spaces beyond the church steps. Unsurprisingly, they seek to maintain that authority-based privilege.

Dreher, in recognizing the loss of authority, has argued that orthodox Christians make their stand on the ground of religious freedom instead, but absent the status granted by that extra epistemic concession, it is difficult to see why one individual ought to prevail over another in competing claims of the exercise of that freedom.

As so many have already pointed, why should the religious beliefs of the employers ought to matter more than that of the employee, the doctor over the patient, the pharmacist over the customer, or the taxi driver over the passenger?

Those who seek to protect themselves from offense have every right to do so: they get to make the argument in the political and cultural realms and in the courts.

They just don’t get to presume a win.

*h/t Robyn Anderson, who uses this term to great effect on Love & Hisses





Voices carry

23 08 2012

It’s a joke, but it’s not really a joke.

The whole Abortion Rights Militantthing, I mean. Yes, the capitalization and the ™  are completely unsubtle winks at my sardonic (re)appropriation of what is meant as a slur, but I ain’t jokin’ in my damn-near-absolutism on matters of law.

This absolutism, however, extends only as far as the law; the morality, the sentiment regarding abortion is another matter. I might recognize the decision to terminate a pregnancy as morally licit, but that doesn’t make it easy.

(In fact, the complications of the decision are precisely why legally it is best left to the woman—but I don’t want to sidetrack myself like I did last night, so I’ll just leave it there. Nor will I stray into a discourse on the evolving status of the blastocyst-embryo-fetus. . . .)

Nope, let me give this one over to sympathy for the beliefs of those who think abortion is always or almost always morally wrong, that the termination of a pregnancy means the killing of a child.

I don’t share that view, but it’s not wholly alien to me, either. No, I can’t get too worked up about embryos, but a fetus, the fetus is something else, and the further along the fetus, the more baby-like the fetus appears.

By the second trimester it’s not yet a human being, but it’s so clearly on the way to becoming one that I understand—I feel—a certain sympathy toward this small creature. It’s not one of us, not yet, but it could be, it could be.

If given a chance, she could become a human being; how could I not be moved by that possibility?

In teaching my bioethics course on assisted reproductive technologies, I cover selective reduction of multi-fetal pregnancies. These aren’t technically abortions—the idea is to kill some of the fetuses in order to save the rest, as opposed to ending the pregnancy entirely—but this procedure, generally performed at the end of the first trimester, seems to me essentially tragic. The woman (and her partner) want children, but their best chance of preserving the possibility of having some of those children is to destroy the possibility of some of those children. Again, how could I not be moved by the intertwined possibilities of beginning and end?

And I guess that’s where I both sympathize and part ways with those who are pro-life. I look at a fetus and see possibility; they look at a fetus and see a child, already here. I wonder at what could be; they wonder at what is.

Sometimes I can glimpse what they see right in front of them, sometimes I can imagine that the fetus is a child reacting in terror and pain to the ending of her life, and I can understand why those who are pro-life see abortion as murder, and its legality as a kind of sanctioned genocide. How horrible to think that we in the US allow over a million babies to be murdered every year.

But then I blink and what I see is not a child but the possibility of a child—and the actuality of the woman. And I think how horrible for the state to take away the control of her life, how horrible for the state to treat women as if they don’t exist.

Thus the final sympathy with those on the other side of the issue: we are each genuinely horrified by the state-sanctioned disappearance of human beings. We just don’t agree on which human beings.





Courtesy. Professionalism. Respect.

15 11 2011

Don Emmert/AFP/Getty Images








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