Skip to content

An Increasingly Divided Country

July 9, 2014

I’VE MENTIONED BEFORE IN THIS SPACE that I have been worried about the long-term prospects for the survival of the United States as a unified and cohesive political entity. I still am.

Before I get to the specific reasons for my concern, it is worth pointing out that countries and empires have been breaking up, merging with one another, annexing territories, granting those territories independence and so on since the first farmer planted the very first crop 10 or 12 millennia ago and the whole project of human civilization began. Recent world history suggests that the breakup of the United States into a sort of commonwealth of independent countries need not be violent or otherwise ruinous, at least in principle. The breakup of the old Soviet Union was accomplished with relatively little bloodshed.

Go back a few decades, and we have examples in our own history — the Philippines, the Panama Canal Zone and various scattered atolls and islands in the Pacific were all once U.S. territory or colonies, and all gained (or regained) sovereignty through peaceful negotiation and treaties.

There are, of course, counter-examples of breakups that went much more badly.

The primary example from our American history was, of course, the  U.S. Civil War, which answered two burning questions of the day: Do states have the right to secede from federal jurisdiction because of policy differences with the federal government (the answer was a resounding “no”); and should states be allowed to deny basic human rights to some of their residents based on “peculiar” local customs and traditions? (The answer, again, was “no,” though it took another century to make significant progress in overturning Jim Crow and other forms of de facto and de jure discrimination, and that work is still unfinished.)

The Civil War resulted in a million Americans on both sides killed and wounded, and the conversion of much of the armature of civilization in the southern U.S. into smoldering ruins, which was all the more horrifying when you consider that this was in the days before bomber and fighter aircraft and the mass production of armaments. Richmond, Virginia in 1865 looked very much like Berlin 80 years later at the end of the Second World War.

This is what we risk when contemplating the breakup of the United States — actually, much worse than that. Remember that entire cities in the South were razed without recourse to the extremely efficient machinery of death that is now available to all factions in any armed rebellion.

Let me be blunt here: Contemplating a second Civil War in the era of nuclear weapons is deeply irresponsible. It is a prospect that might well end human civilization worldwide. In other words, it is utterly unthinkable.

So why am I even talking about something as seemingly outlandish as the United States breaking up amid a second civil war?

There is a widening gulf in the U.S. between two different factions: on the one hand, rural culture united by cultural traditionalism (there are, roughly speaking, to sub-groups within this faction:  the Old South and the rural West), and on the other hand more cosmopolitan urban America, particularly on the coasts but also in major urban centers in the interior of the country.

The political and cultural gulf between urban and rural America reflects, of course, the different priorities of urban and rural people, and to some extent has been a persistent feature of our country since its founding. That said, I think the present size of the gulf is a symptom of a people who are forgetting how to talk to one another.

Speaking as someone with a good fraction of rural folk on my mother’s side of the family, it bothers me a great deal when I hear some of my urban friends dismiss rural people as a bunch of ignorant, benighted rednecks.

My uncle Leonard is a rancher in central California, and he is one of the most principled and honorable men I’ve ever known.

He owns a liquor store in a small town near his farm, and for years you could not buy a Time, Newsweek or Motor Trend magazine in his store because the magazine distributors in whose territory Leonard lived said that if Leonard wanted to have magazines in his store, it would be a package deal — meaning he would need to sell Playboy and Penthouse magazines along with more respectable fare. Leonard, a deeply religious Catholic, stood on principle and said if that was the deal, he would refuse to carry magazines at all. Eventually the distributors relented and agreed to allow him to skip the skin magazines.

Leonard and I certainly have our differences politically. He’s not a big fan of unions, for example, and I consider unions to be an indispensable institution to ensure economic fairness and get workers a fair deal.

That said, he and I get along just fine. When I go visit we keep the conversation on topics that will serve to keep the peace (we both like the EF Mass, and both of us hunt, for example), and we just agree to disagree on some issues.

Some of the responsibility for depth of the urban/rural divisions in the country rest with the Democratic Party, which has become a far more exclusively urban-constituent party than it used to be. It is worth remembering that FDR was a great friend to farmers and rural people in the United States — New Deal initiatives like federal agricultural price supports, the Tennessee Valley Authority, and rural electrification more generally were responsible for drastically lessening the besetting poverty that had characterized millions of square miles of rural America before the 1930s. There were people in the mountains of Appalachia and the Ozarks who kept photos of FDR in honored places in their houses long after he was gone from the scene.

I think the Democratic Party needs to re-learn how to talk to rural Americans. In part this is in their political best interests: Many of the folks who keep pulling the lever for Republicans might be doing that because, as Ohio Sen. Sherrod Brown has said, “the Democrats stopped talking to them.”

But it is also essential to lessening the gulf that threatens our national unity.

“Talking to them,” by the way, means, mostly, listening. Ask, “What are the top 5 issues that affect your quality of life?” and then listen to the answers. Then come up with policies whose purpose is to address those issues directly — and then explicitly campaign on those issues. This is what Democrats can do to help the nation heal its great and still-growing divide.

About these ads
144 Comments
  1. Agellius permalink
    July 9, 2014 3:34 pm

    “This is what Democrats can do to help the nation heal its great and still-growing divide.”

    And what can the Republicans do? : )

    Do you think it’s really just a matter of urban vs. rural? You said yourself that “rural culture” is “united by cultural traditionalism”. Can Democrats address the rift merely by addressing rural quality of life issues?

    • July 9, 2014 3:39 pm

      My preference would be for the Democrats to get away from being the Party of the Professoriat and becoming once moe more the “Party of the Common Man [and Woman]” Rhapsodized about by Harry Truman, Will Rogers and others.

      The American political left has become the representatives of the more bohemian slice of the rich rather than a defender of the weak.

  2. Agellius permalink
    July 9, 2014 4:02 pm

    Of course I agree that it’s become the representative of the bohemian rich. But it’s also become the party of rescuing and protecting people from the homophobia and racism intractably embedded in white American culture. So naturally, it has placed itself in an adversarial attitude towards traditional white American culture. Which adversarial attitude is constantly reinforced in the media.

    If the Democratic party really wants to re-connect with middle America, what it needs first of all is to call off the dogs in the media and academia. You’re not going to reconnect with them by offering help with quality of life issues with one hand, while continuing to bash them with the other.

    • July 9, 2014 6:13 pm

      “If the Democratic party really wants to re-connect with middle America, what it needs first of all is to call off the dogs in the media and academia.”

      I’m assuming that when you speak of “middle America,” you’re referring specifically to “white America,” which begs the question of why the two are synonymous.The problem with “traditional white culture” (assuming that such a thing ever existed) is that it is based on the foundational belief that blacks have no rights that whites ought to respect. In the past, whites could rest assured that no matter how poor they might be that they would never be in as low a position as blacks. If you’re suggesting that we go back to the days when black adults couldn’t be called Mr./Mrs./Ms. or when blacks had to get off the sidewalks to make room for whites or when the schools taught that blacks enjoyed being slaves, I’m must inform you that I and millions of others will resist you at every turn. If this is what you base your culture/identity on, then you’ve living in an illusion, one that deserves to be shattered.

      • July 10, 2014 12:38 am

        An interesting microcosm in the comment section as a rurale, I find the comments from another planet

    • David Cruz-Uribe, SFO permalink*
      July 10, 2014 5:24 am

      Who exactly are the bohemian rich? George Soros, a hedge fund manager? Warren Buffet? Yes, young, urban, upper and upper middle class voters (particularly on the coasts) tend to vote democratic, but to say that this is the only bloc represented by the democrats is as narrow a stereotype as calling republicans the party of rednecks.

  3. July 9, 2014 5:07 pm

    An interesting post, but you leave out the racial dimension. Even in 2014, a majority of blacks still live in the states of the Old Confederacy and vote Democratic. Although blacks are the most religious demographic in the United States (which I don’t think is a good thing, but that’s another conversation), they don’t put “God, Gays, and Guns” at the forefront of their voting patterns. Unlike white conservative Christians, I think that blacks don’t expect society to conform to their particular set of morality and are content to police the boundaries of their own communities and let others sort out theirs. When people speak of “Red state America,” they aren’t talking about Democrat-voting blacks, even though many of them obviously live in such states and probably have roots going back before America even existed.

    Immigration is also changing the demographics of many rural areas, especially in the South. Until about the 1970s, the South operated as a closed, agrarian society, which is probably why race relations in these areas traditionally had the dynamics of a dysfunctional family or abusive cult. Today, however, people from all over the world are moving to the South for a variety of reasons, causing the once static character of the region to change in ways that would have been inconceivable during the Jim Crow era. Some of these deep red states may very well turn purple or even blue by 2016.

  4. Thales permalink
    July 9, 2014 10:42 pm

    My suggestion for the Democratic Party to heal the divide and connect more with rural Americans? Pull back on the assault on religious freedom and show more tolerance to those with traditional moral or religious views.

  5. David Cruz-Uribe, SFO permalink*
    July 10, 2014 5:18 am

    I think we need to be careful in ascribing a monolithic identity to the democrats. Were we organized like many of the western European democracies, the democrats (as well as the republicans) would be split into several parties: a labor party, a centrist party representing slices of the urban middle class (dare I say bourgeoisie?), and probably a western/midwest regional party which had the support of rural voters. So which of these parties do we want to reconnect with red state voters, however defined, and how should they do it?

  6. July 10, 2014 6:08 am

    Reblogged this on Intersections and commented:
    Vox Nova addresses a growing concern. We are perceiving a widening gap between urban and rural America. Politically defined America appears to grow more regionally concentrated, such as in Missouri where I live: City of St Louis, West County, St Charles County.

    But the effects of 21st century urbanization overlay even the smallest of places. Example: urban culture in SE Kansas where in our frequent visits we observe urban music and social inroads. The life of cities extends more widely than ever via media, commerce, especially through the internet. Urban life informs and shapes our world-view.

    Our increasingly connected urbanized America is more densely populated, diversified, and prominently income disparate. We may be seeing rural and urban socio-political differences more regionally defined. But can they pull America apart?

    The overlay of urbanization – it’s density, diversity, disparity – may be more definitive of America’s future.

  7. Melody permalink
    July 10, 2014 6:40 am

    One really can’t talk about the divisions in this country, and in political parties, without talking about the life issues. This includes all of them; the unborn, war, social safety net, etc. But if you really want to connect the red state voters with some others; find a way to decouple the Democratic party from abortion. There are a lot of people who would find common cause in a heartbeat; but they can’t in conscience ignore that issue.

  8. dismasdolben permalink
    July 10, 2014 8:17 am

    Do states have the right to secede from federal jurisdiction because of policy differences with the federal government (the answer was a resounding “no”)

    Thomas Jefferson and at least half of the Founding Fathers would have rancorously parted company with Lincoln and the early Republicans on this. In order to “unify” the country, Lincoln behaved like a tyrant, dragooned Irish Catholic immigrants into his civil war, imprisoned the Chief Justice of the United States and broke the Constitutional limitations on the Executive Branch, helping to lay the groundwork for the “imperial Presidency.”

    As a former long-time resident of the American South with absolutely no respect for or esteem of its “peculiar institution,” I still think that the outcome of the American Civil War was a tragedy for BOTH of the dominant cultures of America, and I believe that the American South should have been permitted to sink into the orbit of the British world empire and economic system. After a few decades of being leeched of her cotton and other natural resources, she would have come crawling back on her knees, much chastened and purged of her feudalistic and militarist values—and, perhaps, of her racism, after the British had forced her, through economic pressure alone (as they did their own colonies) to abandon slavery.

    The greatest tragedy for America in the 19th century was that the virtuous and self-disciplined republicanism of the Founders was abandoned, in favour of Socially Darwinian and monopolistic capitalism, and “Manifest Destiny.” It was all about money, and hardly about “slavery” at all; as a matter of fact, after Reconstruction was over, the lot of African Americans in the South got WORSE.

    t is worth remembering that FDR was a great friend to farmers and rural people in the United States —

    FDR maintained that “friendship” with “rural people” by scrupulously avoiding confrontation with Southerners over their “Jim Crow” laws.

    What are the top 5 issues that affect your quality of life?” and then listen to the answers.

    And what if one of those “issues” is “the maintenance of the ‘traditional family’”—which, by the way, in terms of Western Christian culture is not “traditional” at all, but is, instead, atomistic, and the product of too-rapid industrialization? We all know that those are code-words for being anti-feminist and anti-“gay,” and so, for plenty of us is just absolutely ethically unacceptable.

    And what if one of those “issues” is “the right to bear arms”—no matter what harm those “rights” do to children?

    I’m sorry, but the United States of America are deeply divided on fundamental principles of equal rights, justice and basic morality, and, for those reasons of thoroughly antagonistic cultures, really ought to be broken up.

    • July 11, 2014 12:52 pm

      It’s hard to argue that the Civil War wasn’t about slavery when Alexander H. Stevens, Vice President of the Confederacy said that slavery was the immediate cause of secession and that:

      “The new Constitution [unlike the United States Constitution] has put at rest forever all the agitating questions relating to our peculiar institutions—African slavery as it exists among us—the proper status of the negro in our form of civilization. This was the immediate cause of the late rupture and present revolution. Jefferson, in his forecast, had anticipated this, as the “rock upon which the old Union would split.” He was right. What was conjecture with him, is now a realized fact. But whether he fully comprehended the great truth upon which that rock stood and stands, may be doubted. The prevailing ideas entertained by him and most of the leading statesmen at the time of the formation of the old Constitution were, that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally and politically. It was an evil they knew not well how to deal with; but the general opinion of the men of that day was, that, somehow or other, in the order of Providence, the institution would be evanescent and pass away… Those ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of races. This was an error. It was a sandy foundation, and the idea of a Government built upon it—when the “storm came and the wind blew, it fell. Our new Government is founded upon exactly the opposite ideas; its foundations are laid, its cornerstone rests, upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race, is his natural and moral condition.”

      This excerpt came from Stevens’ “Cornerstone Speech” in which he explained the basis for the founding of the Confederate States of America. Straight from the horses’ mouth, you might say. With an attitude like this as the foundation of the Confederacy, I find it hard to believe that this country would have ended slavery of its own accord or been willing to see blacks as equals to whites. How could it when the Confederate constitution had slavery and racism built right into it, especially given how much the South’s arm had to be twisted to end Jim Crow laws? I’m not big on capitalism myself, but if given the choice between being a chattel slave and a wage laborer, I would definitely choose the latter to the former. If the Confederacy had succeeded in becoming its own country, I suspect that it would have ended up like Guatemala, another failed state obsessed with racial stratification and plantation economics.

      The white Union troops may have been confused about what they were fighting for, but among the black troops their reasons were crystal clear:

      http://www.learner.org/courses/amerhistory/resource_archive/zoom.php?unitChoice=9&ThemeNum=3&resourceID=10012

      In case you can’t tell, that’s a Confederate soldier with his stars and bars flag about to be bayoneted by a black Union soldier. Seriously, I love this picture. If I was into body art, I would get a sleeve tattoo of this image.

      • dismasdolben permalink
        July 11, 2014 5:27 pm

        Frankly, after having lived most of my youth in the American South, I’m not particularly interested in what would have happened there, because I have never been able to believe that the indigenous culture of the American South is compatible with the principles or the values of whatever can be called “American civilization,” as embodied in the Constitution and the Declaration of Independence. And please don’t quote to me the reasons the CONFEDERATES gave for abandoning the Union. I am far more interested in the reasons that Lincoln and the Northern Industrialists gave for forcing them back into the Union; those reasons had NOTHING to do Abolitionism or principles of racial equality or even Whitmanesque “brotherhood of man” opinions, and they had EVERYTHING to do with economics. Lincoln was almost as big a racist as Stephens and frequently harped on the “bestiality” of blacks and wanted to ship them all to Liberia after the war. Hofstader says, in The American Political Tradition that Lincoln demagogued among the coal miners of Pennsylvania, in his Presidential campaign, that, if they didn’t vote for him, and thereby allowed slavery to spread further in the country, their employers would be enabled to reduce them to chattels by employing Negroes running away from the slave states. How’s THAT for virtuous “brotherhood of man” ethics?

        • July 12, 2014 5:28 pm

          If you’re looking for sympathy towards the Confederacy from me, you aren’t going to find it. To me, one of the primary problems with the aftermath of the Civil War was that Southern whites weren’t punished enough, since the Southern narrative ruled the day until the Civil Rights Movement. If it was up to me, Jefferson Davis, Robert E. Lee, and the rest of the Confederate leadership would have been hanged as traitors and their properties divided up between the people they enslaved, not lionized for fighting for a “Lost Cause.” I consider the rest of the country to be enablers of the South, whether in the de facto segregation of the North or supporting the “Lost Cause” industry by continuing to watch propaganda pieces like “Gone With the Wind.” In the end, I have to agree with this Malcolm X quote:

          “I am not a Republican nor a Democrat, nor an American, and got sense enough to know it. I am one of the 22 million Black victims of the Democrats, and one of the 22 million Black victims of the Republicans, and one of the 22 million Black victims of Americanism…. You and I have never seen Democracy, all we’ve seen is hypocracy…. If you go to jail, so what. If you are Black, you were born in jail. If you are Black, you were born in jail, in the North as well as the South. Stop talking about the South. As long as you are South of the Canadian border, you are South.”

        • Templar permalink
          July 14, 2014 7:54 am

          It should be noted that some of the Slave Power oligarchs had made rumblings about how the white lower classes should also be considered as candidates for ownership. This was part of the early Republicans’ “free labor” platform.

        • July 14, 2014 1:32 pm

          LM, I really don’t think you understand what I’ve been trying to relate here: I don’t believe anybody writing here despises the Southern political tradition or the cultural and religious influences that engendered it. In fact, like my Copperhead Democrat ancestors, I despise it so much that I think they should have been ENCOURAGED to leave the Union, no matter what the financial cost.

  9. Agellius permalink
    July 10, 2014 11:57 am

    LM:

    You write, ‘I’m assuming that when you speak of “middle America,” you’re referring specifically to “white America,” which begs the question of why the two are synonymous.’

    No, I don’t consider “middle America” and “white” to be synonymous. I was making basically the point that Democratic rhetoric alienates “cultural traditionalists” (Matt’s term) by constantly accusing them of racism and homophobia. It simply follows that the particular cultural traditionalists who would be alienated by charges of racism would be white ones. That doesn’t mean that cultural traditionalists are exclusively white — that’s so obvious it hardly seems worth mentioning — although I’m sure we would agree that the majority of them are white. But those who are not white, presumably also do not equate cultural traditionalism with racism, or they would not be cultural traditionalists in the first place.

    You write, ‘The problem with “traditional white culture” (assuming that such a thing ever existed) is that it is based on the foundational belief that blacks have no rights that whites ought to respect. … If you’re suggesting that we go back to the days when black adults couldn’t be called Mr./Mrs./Ms. or when blacks had to get off the sidewalks to make room for whites or when the schools taught that blacks enjoyed being slaves, I’m must inform you that I and millions of others will resist you at every turn. If this is what you base your culture/identity on, then you’ve living in an illusion, one that deserves to be shattered.’

    This is exactly the kind of alienating rhetoric I was talking about: In today’s political climate you can’t be conservative and white without also being presumed racist. (Of course, being conservative and black is no picnic either.)

    • July 10, 2014 4:33 pm

      There are many blacks, Hispanics, Asians, Jews, etc. who believe in “traditional morality” and are personally conservative. However, they don’t align themselves with what I call movement conservatism because it doesn’t consider the problems they face as minorities to be legitimate. For example, American Muslims were overwhelmingly Republican before 9/11, because they thought the GOP reflected Islamic values better than the Democrats. The anti-Muslim hysteria that arose in the post-9/11 world caused them to switch to the Democratic Party. Or consider the topic of police profiling, where conservatives tell minorities that we just look suspicious and deserve to be treated like criminals. Or the completely non-existant issue of voter fraud. Race has been interwoven in our political discourse from the beginning and this will be the case for some time to come. I don’t think that you’re racist so much as you choose not to think about the history and real-world consequences of some of your beliefs.

      The Republican Party is on the fast track to being a regional party that only represents conservative white Christians in the South. There are already no non-Christian Republicans in Congress, and I expect the party to become more homogenous as time goes by. Social conservatives have already lost the conversation on same-sex marriage among millenials, except among those who have been raised specifically as culture warriors and have had no contact with LGBT people. For all of the talk of taking up a “Benedict option” among conservatives, they don’t like the idea of losing their cultural hegemony. Contrast these among traditionally minded blacks or Jews, who are content to police their own communities but as minorities who have been subjected to varying forms of discrimination, don’t expect the wider society to reflect their particular values.

      • Agellius permalink
        July 10, 2014 6:10 pm

        All very interesting, but I’m not sure what it has to do with Democrats re-connecting with cultural traditionalists.

        • July 11, 2014 12:13 pm

          The point I was trying to make is that Democrats do connect with cultural traditionalists. Just not white conservative Christians who are upset with the prospect of losing their cultural and political power.

        • Agellius permalink
          July 11, 2014 2:17 pm

          LM:

          You write, “The point I was trying to make is that Democrats do connect with cultural traditionalists. Just not white conservative Christians who are upset with the prospect of losing their cultural and political power.”

          Part of the problem, I suspect, is that we haven’t defined “cultural traditionalist”. You seem to be using it differently from how I would, since I can’t imagine a cultural traditionalist of any color feeling “connected” with today’s Democratic Party, except in the sense in which an old cathedral might feel connected with a wrecking ball.

        • Templar permalink
          July 11, 2014 6:11 pm

          Agellius, what your missing is that LM has pointed out that cultural traditionalists within American minority groups tend not to be authoritarian, or at least lack the opportunity to act on that impulse. White movement conservatives have a long and well-documented history of authoritarianism. They are perfectly happy to use the power of government to require others to act in accordance with traditional cultural mores (of course they are the ones who decide what is “traditional”). This is why Republican culture war appeals resonate with them, but not with minority traditionalists. Further, the minority traditionalists understand that they don’t need to lord over gays and unmarried mothers as means to buttress their feelings of self-worth. They need economic fairness and to be protected by the white traditionalists who fight to prevent the loss of their cultural hegemony. I say this all as a white Southerner raised in a bastion of small-town cultural traditionalism.

        • July 11, 2014 7:19 pm

          There are several ways I’m using the term “cultural traditionalist.” The first way is probably the way you’re thinking of, which means that one believes that homosexuality, abortion, divorce, and pre-marital sex are wrong, that traditional gender roles are best, and that religion should play an important role in the life of the community. If this is the definition one uses for “cultural traditionalist,” then you’re going to find a lot of people in a variety of ethnic groups who believe this. The problem for the Republican Party comes with the second way in which I use the term “cultural traditionalist” which is to signify that a belief that American culture is fundamentally a Christian nation founded by and for white Christians, which is something many if not most paleo-conservatives would agree with. No matter how conservative a black Christian is on issues like abortion or homosexuality, they’re not going to back a party that is actively working to disenfranchise them or one where the members think that blacks were better off under slavery. The quote I posted from Lee Atwater elsewhere should demonstrate why conservative talking points like “states’ rights” and “lower taxes” tend to fall on deaf ears in the black community. Similarly, many Tea Partiers say that they want to “take the nation back.” When non-whites hear that, they interpret that to mean “go back to the days of segregation.”

          With regard to Jews (or any other minority religion), I think that the heavy conservative Christian flavor of the GOP, especially in the South, would have to be off-putting. Judaism has been having its own internal battles about homosexuality and the role of women (but not abortion; the fetus is considered to be part of the mother according to Jewish law, so while generally abortion is frowned upon in Orthodox circles, it is permitted in some cases), but the Jewish community isn’t interested in engaging in a culture war, especially one that is coming from an explicitly Christian perspective.

        • Cojuanco permalink
          July 13, 2014 12:12 pm

          Jordan, infra on the bishops and Republicans:

          It’s a simple case of the Movement Republicans saying: “Look the other way, or the baby gets it.” It’s hostage politics. Which is nothing new in American politics – Republicans in the 19th century were notorious for “waving the bloody shirt” to cover up its more seamy policies.

    • Jordan permalink
      July 10, 2014 9:27 pm

      LM [July 10, 2014 4:33 pm]: The Republican Party is on the fast track to being a regional party that only represents conservative white Christians in the South.

      I fully agree LM. Don’t forget that the Republican Party is also the party of the corporate Roman Church, as well as a constellation of Evangelical groups (again, mostly Southern). At least in the Northeast, Church subtle propaganda to vote Republican does not stop many Catholics from pulling the D levers anyway.

      The Southernization of the GOP, which is certainly most similar historically to stronghold of the DIxiecrats, has plenty to do in my opinion with the social tenor of the South as compared to the North. I have a set of relatives from Arkansas. The mother of the family, my cousin, relates everything, including political affiliation, within the consensus of her friends. It is as if the social hive dictates even who to vote for. By contrast, my immediate family is politically divided. We each have separate and sharp positions cultivated through discussion of the newspapers, social media, and similar.

      My cousin is an intelligent and independent woman. Still, the notion that one’s friends could greatly influence or even dictate one’s political affiliation and voting is entirely strange to me. My friends and I debate politics eagerly. What is the source of this Stepford-ish lock with the GOP? I still don’t get it. Do people not debate in the rural South?

      It could just be that many parts of the South vote in blocks simply because people decide on political positions through social consensus. Friendship requires political as well as social harmony, which is certainly not true in the North. This is strange for Northerners, mostly because they maintain the veneer that their political choices are individual and uninfluenced. Still, I think that these divergent phenomena require more investigation.

      • July 11, 2014 12:20 pm

        I’ll let Lee Atwater, the architect of the Republican Party’s Southern Strategy explain it for you Jordan:

        “You start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968 you can’t say “nigger”—that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites.… “We want to cut this,” is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than “Nigger, nigger.””

        • Templar permalink
          July 11, 2014 6:16 pm

          +1. Plus, you convince them in the 1880s-1940s that unionization is Communist-inspired race-mixing. Don’t forget that the racism at the bottom is a product of the long-term dominance of the Southern economic elite who had to institute it after Bacon’s Rebellion to keep black slaves and white indentured servants from overthrowing the system. It continued from there and has well served the Southern oligarchs whether they owned plantations, lumber mills, or automotive factories as means of keeping the workforce divided.

        • Jordan permalink
          July 12, 2014 2:40 am

          LM +1, Templar +1. LM, I’m familiar with your quotation of Lee Atwater. What is so galling about the Southern Strategy is not even Atwater’s bald and cynical racism. It’s the fact that Tricky Dick and accomplices were willing to use every dog whistle they could get their hands on to win. Why haven’t these whistles lost their sound?

          When Newt Gingrich called Pres. Obama the “food stamp president”, I just couldn’t believe that anyone would fall for such barely veiled racism. I don’t care what stats Newt used to try to back up his statement with. Starting out with a phrase like that either rallies the base or induces fear in people of all colors who are on EBT (for whatever reason), and especially African-Americans. Certainly, such a tactic paints any politician who attempts to use it as a moron.

          No Catholic bishop or influential conservative preacher has stood up to challenge the dog whistles. High time one of them did. Catholic bishops once put their positions and lives on the line to support the civil rights movement. Where’s that leadership now that a significant number of American Catholic bishops are cozy with the R?

  10. Agellius permalink
    July 12, 2014 9:27 pm

    LM:

    I don’t want to go down a lot of side tracks.

    I will just say that being a cultural traditionalist (as I see it) is not logically incompatible with rejecting what was bad in the past, and desiring to carry on what was good. Same with being a Catholic traditionalist: Granted, masses before V2 were not always terribly reverent and beautiful. Being a Catholic traditionalist means I would like to carry on what was good about pre-V2 masses; it does not necessarily imply that I would like to carry one what was bad, merely because they occurred before V2. The same with being a cultural traditionalist.

    I would also point out what David said previously: “I think we need to be careful in ascribing a monolithic identity to the democrats”. Does not the same go for conservatives?

    Again my comments were addressing the question of how the Democratic party can re-connect with cultural traditionalists. My answer is that they can do it by evaluating traditionalist concerns on their own terms, rather than continually insisting that traditionalists either don’t know their own motives, or are too dishonest to admit them. Taking gay marriage as an example: Opposing gay marriage (many or most Democrats would say) must have hatred as its motive. People who say they oppose it on any other grounds either don’t know their own minds or are lying. This shows a complete lack of respect for those you disagree with. You will never, ever re-connect with people who oppose gay marriage while treating their views in that manner.

    Obviously this kind of treatment goes both ways: Plenty of conservatives fail to give liberals the benefit of the doubt as to the good faith of their opinions. Having been raised in a liberal Democratic household, and having many liberal family members whom I love and respect, I find this very frustrating as well.

  11. Agellius permalink
    July 12, 2014 9:31 pm

    Templar:

    You write, “what your missing is that LM has pointed out that cultural traditionalists within American minority groups tend not to be authoritarian, or at least lack the opportunity to act on that impulse. White movement conservatives have a long and well-documented history of authoritarianism.”

    I’m not missing it, I just don’t see how it’s relevant. The topic I raised in my initial comments, and have been trying to stick with, was how Democrats can re-connect with cultural traditionalists. The topic you and LM seem to be addressing is “why cultural traditionalists are evil, hateful jerks.”

    • Templar permalink
      July 14, 2014 8:16 am

      I was not making the claim that all cultural traditionalists are evil, but that white cultural traditionalists that self-identify within the Conservative Movement are fine with using state power to enforce their orthodoxy and orthopraxis on those outside of their community while pretending that their desired world is divinely-mandated. Minority cultural traditionalists are not willing to make common causes with the white CTs because they have been in the position that gays and other culture war targets now occupy and know that they could go back to that position again. I think Chris Rock did a routine about how blacks after 9/11 breathed a little easier knowing that Muslims, Sikhs, and Hindus were about to take some of the pressure.

      Regarding how Democrats can reconnect to white CTs, a economically populist platform would be the best political route so long as the same social platform that appeals to young women is retained. People have mentioned it above, and I agree, that abortion is the major sticking point. The Democrats could advocate policies that reduce abortion such as sex education, access to contraception, and ensuring that women have better access to education generally and good jobs. Lowering poverty seems to be the best way of reducing the incidence of abortion by recognizing the agency of women and providing them the tools to avoid pregnancy and support any children they could have. The problem is that this requires taxes and greater government intervention in the economy. I once had a 30 minute discussion with an anti-abortion protester with a fetus sign. When we got to this point, he threw up his hands and asked, “Who’s going to pay for that, me?” I promptly and loudly denounced him as a greedy fraud. Not the most charitable response, but Christ did overthrow the money-changers’ tables. This is a real problem for people concerned with abortion – the use of legitimate moral concerns to cover and advance the agenda of the rich and is the major theme of the “Southern Strategy.” As I explained in my earlier response on white supremacy as a means of supporting the power of the Southern elites, this is a problem as old as time and I don’t know that there is an answer to the issue. Sorry for the rambling response.

      • Jordan permalink
        July 14, 2014 10:21 am

        I once had a 30 minute discussion with an anti-abortion protester with a fetus sign. When we got to this point, he threw up his hands and asked, “Who’s going to pay for that, me?” I promptly and loudly denounced him as a greedy fraud.

        Templar, I understand your frustration. The man’s response is ostensibly hypocritical. However, when some bishops has made participations in anti-abortion/pro-life protests something akin to a precept of the Church, then people who do not want to or cannot consider the cost ramifications of an end to legalized abortion will still attend protests because they consider their participation to be an activity of “devout/good/holy Catholics”. Denouncing the man, though tempting, will do little to help him bridge the disjunct between a present action and a contemplation of the potential effects of this present action.

        Few of these rallies outside abortion clinics are mere protests. Rather, most exhibit some form of harassment aimed at the woman just about to have an abortion or those accompanying her. If a woman has made it to the point of five meters before the door of an abortion clinic, she is likely to abort. At that point, prayer, and not shoving pamphlets in her face, is the only possible antidote. What is more galling is that many of the harrassers might not know why they engage in harrassment other than a vague feeling that doing so is a perhaps a last-minute work of mercy.

        Anti-abortion/pro-life efforts should, as you note, center around prevention of situations which lead to abortion. However, it takes only milliseconds to activate one’s vocal cords.

        • Thales permalink
          July 14, 2014 4:32 pm

          Jordan,
          I can’t comment on your experience, but in my experience the vast majority of the time, the “rallies” are respectful and prayerful counseling attempts, harassment.

        • Jordan permalink
          July 14, 2014 8:48 pm

          Thales, I’ve been to both peaceful pro-life protests and pro-life activities on a college campus which nearly turned to physical violence between opposing sides. In the worst abortion protest cases, persons on both sides of the divide can become almost feral in behavior. This disgusts me deeply.

          As for pro-life sidewalk counselors: I wonder about the theological and personal spiritual ramifications of counseling, and not necessarily about the legality or ethics of counseling. Yes, it was wrong for me to paint sidewalk counselors as necessarily aggressive or combative. It should also be said that even if pamphleteering is sometimes the case among pro-life activists, pro-choice activists have also sometimes engaged in pamphleteering at protests. I wonder if the attempts of pro-life sidewalk counselors to dissuade women from having abortions is an act of witness or really just an elaborated pelagianism. Is counseling a movement of the graced soul to share, even in thirty seconds, what we hold to be revealed truth about personhood, or just another way to tinkle one’s thalers in a box? I would think that sidewalk counseling would have to be thankless, or at least given without the desire to be seen, to be Christian.

        • Thales permalink
          July 14, 2014 10:07 pm

          Jordan,
          I recommend you take a look at Abby Johnson’s book Unplanned for a good perspective on these matters.

        • July 14, 2014 10:24 pm

          The term “counseling” implies a two-way street of communication between counselor and counsellee. Before a person can seek counseling, they have to be interested in talking to the counselor. Since very few of the women who go to abortion clinics are interested in receiving sidewalk counseling (otherwise they wouldn’t be there in the first place), I think the term “harassment” is appropriate.

        • Thales permalink
          July 15, 2014 1:38 am

          LM,
          Same suggestion to you to look at Unplanned for a new perspective.

        • Templar permalink
          July 15, 2014 8:15 am

          Jordan, a very good point. Thank you for helping me understand the viewpoint. It still makes me want to spit nails, though.

        • July 15, 2014 5:57 pm

          “LM,
          Same suggestion to you to look at Unplanned for a new perspective.”

          Abby Johnson doesn’t appear to be very credible:

          http://www.texasmonthly.com/story/convert

          “Other questions about Johnson’s credibility arose during our interview. She told me, for example, that there had never been any threats of violence against the Bryan clinic; however, Johnson herself received a series of threatening letters in 2007. “God will punish you for killing the innocent or we will,” read one. “You are not taking us seriously. You were at the clinic alone. Not very smart,” read another. In fact, the threats were taken so seriously that security cameras were installed at Johnson’s house, as she later acknowledged. Johnson also claimed that while most services at Planned Parenthood were provided by a nonprofit corporation, abortions were done by a for-profit corporation. Both she and Carney seemed to sincerely believe this was true, though all services at Planned Parenthood are, in fact, provided by a pair of separate nonprofit corporations.

          As confounding as these inconsistencies are, there may be a much larger problem with Johnson’s story. Johnson has told the story of her journey from pro-choice activist to pro-life celebrity many times in many venues, and the crux of the tale is always the same: her moving description of what she saw on the ultrasound that September day in the Bryan clinic’s operating room … Johnson’s account is so plausible and rich in detail that even Planned Parenthood seems not to have investigated whether this event ever took place. At my request, the staff at the Bryan clinic examined patient records from September 26, the day Johnson claims to have had her conversion experience, and spoke with the physician who performed abortions on that date. According to Planned Parenthood, there is no record of an ultrasound-guided abortion performed on September 26. The physician on duty told the organization that he did not use an ultrasound that day, nor did Johnson assist on any abortion procedure. “Planned Parenthood can assure you that no abortion patients underwent an ultrasound-guided abortion on September 26,” said a spokesperson. It’s difficult to imagine that Johnson simply got the date wrong; September 12 was the only other day that month that the clinic performed surgical abortions.

          Could clinic staff and the physician be mistaken? The Texas Department of State Health Services requires abortion providers to fill out a form documenting basic information about each procedure performed at a clinic. This document is known as the Induced Abortion Report Form. The Bryan clinic reported performing fifteen surgical abortions on September 26. Johnson has consistently said that the patient in question was thirteen weeks pregnant, which is plausible, since thirteen weeks is right at the cusp of when physicians will consider using an ultrasound to assist with the procedure. Yet none of the patients listed on the report for that day were thirteen weeks pregnant; in fact, none were beyond ten weeks.”

        • Thales permalink
          July 16, 2014 4:14 am

          LM,
          That is a bizarre article full of innuendo that appears to be trying to prove something about Johnson, but what? That Johnson didn’t convert or is not sincerely pro-life? That’s absurd considering what Johnson is currently doing nowadays and how that is so different from what she used to be doing at PP. Because the premise of the article is absurd and it only has innuendo, it makes me think that it is an insincere article. I suggest that you be cautious as the Texas Monthly reporter might not be credible. And regardless, it doesn’t change the insights that Johnson has in her book about the thoughtful and loving ways to minister to women considering abortion. So I recommend you read the book.

        • July 16, 2014 5:50 pm

          @Thales

          The article I linked to is not filled with innuendo, because it used the records at Ms. Johnson’s former workplace to show that her pro-life conversion experience could not have happened in the way she has described it. Only she can know for sure what her motives were/are for her change of heart, but at the very least Ms. Johnson is guilty of embellishing her life story for dramatic effect.

          Going back to an earlier point, I don’t really see much difference between what sidewalk counselors do and the aggressive solicitation the Hare Krishnas used to do at airports, since both are acting out of “sincerely held beliefs.” In fact, I would say that the Hare Krishnas had a stronger case for their unwelcome activities, since mendicant begging has existed in the Hindu, Buddhist, and Jainist traditions for thousands of years, and to say they can’t do this indicates a clear bias against non-Western religions. The only difference is that the Hare Krishnas are considered to be strange and unpopular, whereas conservative Christians have a network of lobbyists, think tanks, activists, lawyers, elected officials and other allies to advocate on their behalf.

        • Thales permalink
          July 16, 2014 11:43 pm

          LM,
          First, not sure why we should consider her former workplace to be trustworthy, considering that it has every reason in the world to discredit Johnson and it doesn’t really have a past record of sterling trustworthiness. Also, not sure why the fact of embellishment, if true, is relevant. Johnson has some really interesting insights on how abortion – minded women can be counseled in a loving manner, which I recommend you look into. Finally, regarding the Hare Krishna, I’m not sure I’m opposed to their proselytizing – I value free speech and evangelizing over discomfort. Also, Johnson is suggesting a different method of counseling women going to an abortion instead of the Hare Krishna method you are thinking of.

        • July 17, 2014 3:52 pm

          @Thales

          As you can probably guess from the tenor of my posts, I’ve lost faith in the pro-life movement. My evolution in this regard is somewhat similar to what happened to this blogger, although I was never raised in the Christian homeschooling bubble:

          http://www.patheos.com/blogs/lovejoyfeminism/2012/10/how-i-lost-faith-in-the-pro-life-movement.html

          Like Libby Anne, I discovered that the information I had been fed about abortion and contraception was objectively wrong: the pill doesn’t cause abortion, fewer zygotes “die” when a sexually active woman is on birth control than without, abortion doesn’t cause breast cancer, and the states and countries with the lowest rates of abortion, STDs, and teen pregnancy are the ones that have free and/or accessible birth control. If a supporting a certain position requires magical thinking and the use of outright lies, it’s probably weak.

          From what I can tell, Texas Monthly is hardly a publication of the left. The reporter for the story I linked to asked some hard questions and Johnson answered evasively. That’s certainly her right to do so, but she shouldn’t expect softball questions from the media that she herself sought out in the first place.

          As I believe I mentioned earlier, there is not a consensus among “cultural traditionalists” of the various world religions that abortion is murder. I mentioned Judaism earlier, but it’s worth mentioning that even Islamic jurists don’t take the absolutist position that conservative Catholics and Protestants have:

          http://en.wikipedia.org/wiki/Islam_and_abortion

          Hinduism and Buddhism view abortion as being not good, but not the worst thing imaginable, and certainly not the equivilent of murdering a fully formed baby able to live independently of its mother. The point I’m trying to make is that pro-lifers tend to assume that their position is and was the norm throughout history, when it’s actually of recent vintage and not shared by conservatives even within the Abrahamic tradition.

        • Thales permalink
          July 19, 2014 1:29 am

          LM,
          I’m sorry to learn that you apparently don’t have a problem with abortion. My comments on this topic then won’t really be applicable to you. My point here is that for those of us who do think that abortion is the intentional killing of a human being and that abortion truly harms women physically, emotionally, psychologically, and spiritually, Johnson has some good insights for how the pro-life movement can better minister to abortion-minded women.

        • July 19, 2014 5:04 pm

          @Thales

          The point I was actually trying to make is that most “cultural traditionalists” in other religious traditions don’t share the Catholic view about the personhood of embryos, zygotes, and fetuses. This isn’t a problem per se for you, but it does provide another explanation as to why the pro-life movement isn’t full of conservative Jews, Muslims, Hindus, and Buddhists; their religious traditions simply don’t see abortion in the same way that conservative Catholics do. One problem the pro-life movement has is that it assumes conservative Christianity as a jumping off point, and has difficulty stating its claims using non-religious, medically accurate information, not just about abortion but about contraception. If you can’t make your case with unbiased, secular reasoning, then your position is weak.

          One reason why the debate over abortion, contraception, and sex education is such a stalemate is because one side views it as a matter of sin and the other as a matter of public health policy. As I mentioned earlier, increased contraception use drastically cuts the abortion rate. But if you don’t believe in contraception, then there’s no middle ground and nothing to talk about. From a public health standpoint, abstinence only sex education and virginity pledges don’t work, unless you happen to be a teen in an extremely religious household where the parents practice extreme sheltering:

          http://nymag.com/scienceofus/2014/07/virginity-pledges-still-dont-work-usually.html

          Mississippi, for example, is by most metrics, the most religious state in the union and has abstinence only sex education in its public schools. It also has the second highest rate of teen pregnancy and STD infection in the union, as well as the seventh highest rate of HIV infection. Not only that, but Mississippi teens are actually having sex at an earlier rate and more often than their peers in states who have access to medically accurate sex education. So not only is Mississippi’s faith-based approach to public health not working, it’s doing the exact opposite of what they want it to do.

          http://thinkprogress.org/health/2014/02/20/3310751/abstinence-failures-charts/

        • Thales permalink
          July 21, 2014 1:04 am

          LM,
          I think we’re at an impasse on this particular issue. I think unbiased secular reasoning favors the pro-life side that a human being exists from conception onward, and you appear to disagree. The fact that other “cultural traditionalists” have a different opinion according to you doesn’t really bother me. From our perspective, we’re concerned with Truth and the defense of an innocent human being, not a popularity contest.

  12. Thales permalink
    July 13, 2014 1:34 am

    Where’s that leadership now that a significant number of American Catholic bishops are cozy with the R?
    Again, I think the “coziness” is related to what I and Agellius are saying. They probably don’t think that the Democratic party is open to them or is interested in reaching out to them considering its current attitude to traditional morality and religious freedom, and that the Gop at least allows them a place to exist even with the Gop’s flaws. The demagoguery on the Hobby Lobby case is Exhibit A of this.

    • Cojuanco permalink
      July 14, 2014 1:33 am

      Also, as I point out, the GOP leadership seems to say, “vote for us, look the other way – or the baby gets it.”

    • Kurt permalink
      July 15, 2014 10:20 am

      The bishops’ demagoguery on Hobby Lobby?

      • Thales permalink
        July 16, 2014 4:20 am

        Kurt,
        Nope. The Democratic leadership’s demagoguery. You’re not bothered by their position that amounts to churches can be forced to pay for, and hospitals can be forced to perform, late term abortions?

        • Kurt permalink
          July 16, 2014 2:24 pm

          I’m bothered by the dishonesty that claims the Democratic leadership has said that.

        • Thales permalink
          July 16, 2014 11:49 pm

          Kurt,
          I recommend you read the Hobby Lobby case and the many comments and actions from the Democratic leadership taking the position that Hobby Lobby was wrongly decided, and that no one should be able to claim a religious freedom exemption from having to pay for “women’s health care.”

        • Kurt permalink
          July 18, 2014 1:59 pm

          I’ve read it. It is without a doubt false that the Hobby Lobby was about giving no one a religious objection to late term abortions. Rather than no one, it addressed only for profit corporations and rather than late term abortions, it addressed contraception.

        • July 19, 2014 6:40 pm

          @Thales

          Since you put the phrase women’s health in scare quotes, I think I should mention that birth control really does make a positive difference for a woman’s health. The pill, for example, can cut a woman’s risk for ovarian and endometrial cancer. It also clears the skin, reduces PMS, makes lighter periods, and helps soothe the pains associated with endometriosis and Polycystic Ovarian Syndrome. Similarly, IUDs can also help with painful periods and are better for women’s whose hormone levels are relatively balanced.

          I should also mention that pregnancy can be a very dangerous thing for a woman. It can led to anemia, depression, ectopic pregnancy, gestational diabetes, hyperemesis gravidarum (i.e., non-stop nausea which can cause dehydration), preeclampsia, and placental rupture. This doesn’t even include the risks associated with the act of childbirth itself, which was the number one cause of death for young women in the pre-modern era, and even into the 20th century. Women in childbirth can suffer from puerperal pyrexiai (i.e, infection of the female reproductive organs due to childbirth or miscarriage), various types of hemorrhages, and toxaemia. Women who did survive the act of childbirth could suffer from obstetric fistulas, something that continues to be a major problem in the developing world.

          The medical advances of the past one hundred years or so have greatly curbed maternal death in the West to the point where most people take for granted that a pregnancy will led to the birth of a healthy baby and a mother who can be up and about in a few days, no worse for the wear. Part of the reason for the decrease in maternal deaths is due to contraception and the practices of having fewer children with considerable gaps between births. I feel that Catholic conservatives have a tendency to romanticize childbirth and pregnancy in a way that naively ignores the very real dangers that a poses to a woman’s health, a fact that is obscured by the wonders of modern medicine but is very real. Countless women throughout history, living without modern medicine, sanitation, or painkillers, and billions living today would agree with Euripides’ Medea who famously said, “I would rather stand three times with a shield in battle than give birth once.”

        • Thales permalink
          July 20, 2014 2:13 am

          Kurt,
          To be exact, Hobby Lobby addressed abortifacient drugs, not contraception.

        • Kurt permalink
          July 20, 2014 4:37 pm

          First, abortifacient drugs are not used in late term abortions, so you are simply distracting from your false and dishonest claim that the Democratic leadership as calling for churches to be forced to pay for late term abortions.

          Second, the Democratic bill to counter the HL decision address contraception, not abortion. But it is your first false assertion that is more harmful to decency and civility in policy discussion.

        • Thales permalink
          July 20, 2014 9:30 pm

          LM,
          I put “women’s health” in scare quotes not as a reference to contraception, but as a reference to abortion. “Women’s health” is routinely used as euphemism for abortion. I’m not interested in getting into a discussion about contraception right now — I’m more interested in exploring the abortifacient angle and potential abortion angle of the Hobby Lobby decision. I’ll explain more in new post below, so that we don’t have the conversation going in more than 1 place.

        • Thales permalink
          July 20, 2014 9:35 pm

          Kurt,
          You’re misstating my comments and misunderstanding my point, while you’re the one who stated that the Hobby Lobby decision addressed contraception — which isn’t quite true, since the case is actually about post-conception anti-implantation pills and devices. I’m going to start over in a new post below, and explain my thoughts about how the Hobby Lobby dissent/Dem.bill would logically mean that entities like Hobby Lobby would have to pay for abortion against their religious beliefs.

  13. Thales permalink
    July 14, 2014 4:34 pm

    And as I said, the Democratic leadership too often says “we have no room for you and we don’t want you and we’d rather suppress you.”

    • Cojuanco permalink
      July 15, 2014 8:29 am

      Well, they think they have a permanent winning coalition, anyway, so why reach put to those dirty bigoted, possibly even Papist, proletarians? It’s hubris, of course, as much as the GOP was a decade ago, and still is today.

    • Kurt permalink
      July 15, 2014 6:33 pm

      Actually they never said that and I (as a party officer) am evidence against it. My experience has been that being pro-life puts one in the minority within but not outside the Democratic Party. Being a trade unionist, however, shuts the door of the Republican Party on you.

      • Thales permalink
        July 16, 2014 4:29 am

        Kurt,
        I can’t comment on your experience. All I have is the current Hobby Lobby comments from Clinton, Reid, Pelosi, the other Democratic senators and their Hobby Lobby bill, and others in the Democratic leadership essentially saying that institutions including churches shouldn’t have the religious freedom to object to such things as having to pay for late term abortions, for example. That’s why many people (including myself) don’t feel welcome in today’s Democratic party.

        • Kurt permalink
          July 16, 2014 2:26 pm

          You seem to not have these comments, because your claim does not have an ounce of accuracy.

        • Thales permalink
          July 16, 2014 11:52 pm

          Kurt,
          See my comment above. I recommend you read the Hobby Lobby decision, and the comments of the Democratic leadership in response saying that no one should have a religious exemption from having to pay for “women’s health care.”

        • July 17, 2014 4:11 pm

          @Thales

          I don’t know what Kurt thinks about this matter, but I have no problem saying that I don’t believe in religious exemptions. Religious exemptions tend to just be fronts for discrimination, whether its the segregation academies of the 1960s cloaked as “Christian schools” or the current push to not serve LGBT people. To me, there is no reason why religious beliefs should be priviledged over other types of beliefs, especially when said beliefs make claims that are objectively false (e.g., the Green family’s belief that IUDs cause abortions when the medical literature on the topic says otherwise). Given the wide range of religious beliefs present in the United States, Jehovah’s Witnesses could choose not to cover blood transfusions, Scientologists could choose not to cover psychiatric drugs, and the Christian Scientists could just not offer insurance at all. If that’s not a dictatorship of relativism, I don’t know what is.

        • Kurt permalink
          July 18, 2014 2:01 pm

          And see my comment above.

          I’ve read it. It is without a doubt false that the Hobby Lobby was about giving no one a religious objection to late term abortions. Rather than no one, it addressed only for profit corporations and rather than late term abortions, it addressed contraception.

          Those pushing false assertions like you have is one of the reasons I (like LM) have left the pro-life movement.

        • Thales permalink
          July 19, 2014 1:03 am

          LM,
          I respectfully suggest that you need to be better informed on this topic because you’re repeating liberal canards. Read up on our current legal structure for religious exemptions. It’s not a free for all, where a religion can just assert a claim, and they win automatically. Instead, it’s a balancing between the government interest and the religion- and the religion loses when there is a compelling government interest and the government is imposing a burden on religion and it is the least restrictive way in order to achieve this interest.

          This current system of balancing between religion and a law imposed by the government is a very good thing and I’m frightened to see your position against all religious exemptions. Not only is your position against the first amendment which guarantees the free exercise of religion, but it’s frankly a mark of an uncivilized society. A civilized society is one that recognizes and accommodates, as much as possible, people and institutions practicing religion because 1. it is humane to respect the religion and consciences of a human being and because 2. religion and religious practice has a positive effect on the common good and the rest of society. Sometimes an accommodation of religion is not possible or is truly against the common good, and yes, in those cases, a denial of religious exemption is appropriate. But to simply deny any possibility of a religious objection to a law, as you’re suggesting, is terrifying to me. Your position means that everyone can be forced by law to act against their religious beliefs and no one could object to it. In others words, you presumably would have no problem with doctors and hospitals being forced to perform late term abortions or all business members of society being forced to support the Act of Supremacy.

        • July 19, 2014 4:30 pm

          @Thales

          The system I had in mind regarding not allowing religious exemptions is the French concept of laicitie:

          http://en.wikipedia.org/wiki/La%C3%AFcit%C3%A9

          http://www.telegraph.co.uk/news/worldnews/europe/france/10296500/France-unveils-controversial-secularism-charter.html

          I know this has no change of being implemented in the USA, but I find laicite to be more in line with my own thinking.

          Bringing up late-term abortion is a red herring, since there are only four doctors in the entire country who even perform them (see the documentary “After Tiller” for more details). The number of doctors who do late-term abortion won’t be affected by conscience clauses or the lack thereof. Abortion after 14-20 weeks is actually illegal in many Western European countries. They are able to have a lower overall abortion rate than the US because contraception is free and readily availible.

        • Thales permalink
          July 20, 2014 2:20 am

          Kurt,
          It’s ironic that you accuse me of false assertions (you misunderstand the point I’m trying to make), while saying that Hobby Lobby was about contraception – – – as this is not so, since the case was about abortifacient drugs.

        • Kurt permalink
          July 20, 2014 4:40 pm

          As I said above, first, abortifacient drugs are not used in late term abortions, so you are simply distracting from your false and dishonest claim that the Democratic leadership as calling for churches to be forced to pay for late term abortions.

          Second, the Democratic bill to counter the HL decision address contraception, not abortion. But it is your first false assertion that is more harmful to decency and civility in policy discussion.

          Third, rather than misunderstanding your point, I’m objecting to the false and defamatory accusations that you use to make your point.

        • Thales permalink
          July 20, 2014 9:41 pm

          Kurt,
          As I said above, you’re misstating my comments — I never said that the Dem. leadership is calling for churches to be forced to pay for late-term abortions; I said that Dem. leadership is saying that no one should have a religious exemption from having to pay for “women’s health care.” Maybe I’m being too oblique. I’ll explain more in a new post below so that we’re not talking in more than 1 place.

  14. Thales permalink
    July 19, 2014 1:11 am

    Kurt,
    You do realize, don’t you, that if the Hobby Lobby decision went the way you wanted it to go, it would have established the legal rule that if a law required hospitals and doctors to perform late term abortions, or a if a law required institutions to pay for late term abortions, there would be no basis to make a religious objection?

    • Kurt permalink
      July 19, 2014 3:36 pm

      It would not. The Administration’s request was for a narrow ruling strictly on the matter before the Court. Rather than no one having an exemption as you falsely claim, there was no request to upset the exemption religious non-profit have. You can claim a speculative legal theory that x would lead to y, but it is simply dishonest to say that the Democratic leadership said that no one should have a religious from performing late term abortions.

      • Thales permalink
        July 20, 2014 9:41 pm

        Kurt, see my new post below.

  15. Kurt permalink
    July 19, 2014 3:55 pm

    Separate from my correction of Thales dishonest claim above, if I can address the more general issue — it has become far too common for people of all political, social and religious viewpoints including some of my friends to claim “my opponent wants to [insert horrible thing]” or “my opponent believes [horrible thing]” when they have said no such thing but the speaker simply believe that some position of his opponent will lead to some horrible thing. In certain situations, there might be a solid reason to think that it will lead in that direction. But it is false, defamatory and sinful to use a theory one holds as to where something will lead and claim that one’s opponents are actually calling for the end assumption when they (reasonably or unreasonably) don’t hold that theory.

    All sides need to stop this and good people need to call out those who persist in doing this.

  16. Thales permalink
    July 21, 2014 12:26 am

    Kurt and LM,

    I’m starting a new comment to discuss the Hobby Lobby case and why the dissent’s opposition to majority decision (and the Dem. bill essentially overturning the Hobby Lobby decision) are problematic.

    First, we need to have the same definitions, because I’m afraid that we’ll be talking past each other if we don’t do that. Kurt has said earlier that the HL case involved “contraceptives” and that term can be confusing. As you know, the HL case involved 4 out of 20 contraceptive methods set out by the HHS in the federal regulations. HL didn’t object to the 16 pre-conception contraceptives. For the 4 that HL objected to, HL said that these were potentially post-conception “contraceptives” that worked, at least in part, by preventing implantation. Now I realize that some liberals are arguing that HL’s belief on this point is mistaken and against science. That position is irrelevant to the HL case. Early in the HL case, the government conceded that some of the 4 might work by preventing implantation post-conception. If you think the government was wrong to concede that point and that the government should have argued against HL by saying that HL’s belief about the 4 preventing implantation was crazy and unscientific, then your beef is with the government and its legal strategy. But it’s irrelevant to the HL case. The point is that in the HL case, the Court was operating on the presumption that the 4 work by sometimes preventing implantation post-conception—regardless of whether this is actually so or not. So, in short, the HL case presents the question whether a for-profit corporation (HL) can be forced to cover post-conception, implantation-preventing drugs and devices in its employee health plan.

    The majority decided this question in HL’s favor, finding that (1) HL could bring a RFRA claim and (2) HL was substantially burdened, and (3) the government wasn’t using a least restrictive means (as required by RFRA if there was a substantial burden to religious exercise).

    The dissent would have ruled against HL. I see 3 different reasons why the dissent thinks HL should lose: (1) for-profit corporations like HL cannot engage in religious exercise, and thus cannot experience a violation of its religious liberty that would potentially be protected by RFRA; and (2) even if HL was protected by RFRA, there was no substantial burden on HL; and (3) even if there was a substantial burden, there is a compelling government interest and it is the least restrictive means. It’s the first reason that I’ll explore a little below.

    An important thing to note is that the actual ACA doesn’t list what type of health care has to be covered in HL’s employee health plan. The ACA only says “preventive health services” and it gives the HHS the authority to determine what that term means. So far, the HHS has decided that preventive health services included among other things, the 20 “contraceptives” and sterilizations. But there is nothing preventing the HHS to add other types of “health care” to this list of preventive services. And that is also part of what I want to explore right now.

    Suppose the HHS added to the list of required services a drug that indisputably only acted by preventing implantation post-conception. If that were the case, then we would have basically what the Court considered in the HL case, because it is similar to the presumption the Court was working under in the HL case: The dissent would have ruled that HL was required to cover this drug for the reasons I mentioned above. And the current bill being presented by the Democratic senators would also require HL to cover that type of drug.

    http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/S.-2578-Hobby-Lobby-fix-bill.pdf

    If you read the bill, you’ll see that what the bill does is require all employers like HL to cover any service required by federal law or federal regulation, and it specifies that there can be no violation of RFRA.

    Now, here’s the interesting question: suppose that HHS added the abortion pill (used to terminate very early pregnancies) to the list of services that had to be covered by a for-profit corporation’s health plan, like that of HL. Many medical experts and others believe that the abortion pill is a “preventive health service.” If that was done, could HL object to having to cover the abortion pill in its health plan? Under the dissent’s theory, HL cannot engage in religious exercise and thus cannot make any religious freedom objection — so HL would have to cover the abortion pill. Under the Democratic bill, the result would be the same — HL would have to cover the abortion pill too, and couldn’t object to it. Kurt and LM, do you think that HL could object to having to cover the abortion pill?

    • Kurt permalink
      July 21, 2014 12:37 pm

      Thales.

      Without directly apologizing, you seemed to have moved off your previous false assertion that the “Democratic leadership taking the position that Hobby Lobby was wrongly decided, and that no one should be able to claim a religious freedom exemption” and that the Democratic Leadership has a position that “churches can be forced to pay for, and hospitals can be forced to perform, late term abortions.” The HL decision, as was as Senator Murray’s corrective legislation, did not make any changes regarding churches or religious non-profits. It was strictly limited to for profit corporations.

      I appreciate your revised claim that the critics of the HL are only saying that “(1) for-profit corporations like HL cannot engage in religious exercise, and thus cannot experience a violation of its religious liberty that would potentially be protected by RFRA.” So yes, your former assertion was untrue that “no one” would have a religious freedom claim including churches and your revised claim that HL’s critics are speaking to for-profit corporations is correct.

      Now on your next inaccurate claim, you write; “But there is nothing preventing the HHS to add other types of “health care” to this list of preventive services…. Suppose the HHS added to the list of required services a drug that indisputably only acted by preventing implantation post-conception.”

      It is not true that there is nothing preventing HHS to adding abortion to the list of preventive services. There is both federal legislation prohibiting the use of any federal funds for abortion and there is an Executive Order further prohibiting HHS from authorizing any abortion services in any part of the ACA. Further, the ACA allows states to exclude even 100% customer financed abortions from ACA plans (of which many have so acted). So it is not within the authority of HHS to include either surgical or chemical abortion in any ACA plans. So while you are correct that what “the [Murray] bill does is require all employers like HL to cover any service required by federal law or federal regulation”, federal law and regulation specifically exclude abortion. It doesn’t matter how many “medical experts and others believe that the abortion pill is a ‘preventive health service,’” as HHS has no authority to include abortion even if every last medical experts thinks they should.

      Lastly, you have a point that HL was not about contraception or abortion. HL could have sued that it was in compliance of the Obama Administration HHS rule that contraception be included but that it was not offering 4 medicines that the Bush Administration FDA said were contraceptives because they FDA had erred in fact. A Court victory here would have not only given HL relief but also taken abortion out of millions of other health plans.

      Instead, they sued solely on the RFRA. The scientific validity of the Bush Administration FDA’s conclusion had no bearing to the case. HL did not argue they should have relief because of a scientific or medical position, but that they had a speculative but sincere metaphysical religious belief. The science really didn’t matter and HL had no obligation to present any evidence other than their sincerity of their religious beliefs, in the same way a Hindu need not prove a cow is sacred, just that he believes it is sacred.

      • Thales permalink
        July 21, 2014 10:54 pm

        Kurt,

        I haven’t apologized because I haven’t made any false assertions and I stand by what I’ve said. But I now see that I’ll have to walk to my assertions through some preliminary steps, because their applicability is not immediately apparent to you. (By the way, I see you haven’t apologized for your false accusations about my comment, but let’s not play that game. Instead, let’s together have a thoughtful discussion, and explore the HL decision.)

        I’d like to explore the HL decision. Liberals (and the Dem. leadership) have been decrying the HL majority decision, and lauding the HL dissent. I think that the HL majority decision is more in line with a civilized society, one that seeks to balance between the interests of government and the religious and conscience rights of citizens, making accommodations where possible and not making accommodations where necessary. And I think the HL dissent is extremely problematic, because based on its own internal logic, it would lead to the conclusion that no corporation (including non-profit corporations) should have the ability to object to oppressive government laws and regulations that violate their religious freedom.

        I asked you what if the HHS added the abortion pill to the health services that for-profit corporations would have to cover in their employee health plans. You cleverly answered that the HHS can’t do that because of current federal law and current executive orders. But that’s not really an answer — that is just a statement of the current political state of matters. Laws and executive orders can be changed. And future laws can be passed in the future. What happens when there is a new law passed that burdens a for-profit corporation in some new way? What legal standard should we as a civilized society use in weighing this burden? The HL majority’s rule or the dissent’s rule?

        So, let’s engage in a hypothetical: suppose that the Hyde amendment wasn’t renewed and Pres. Obama changed his executive order, and the HHS had the authority to, and did, add the abortion pill to the list. Does Hobby Lobby have a legitimate objection to having to cover the abortion pill?

        The HL dissent states that for-profit corporations like HL cannot engage in religious exercise, and thus cannot experience a violation of its religious liberty. That means that the HL dissent would conclude that HL could not object to having to cover the abortion pill. In other words, the HL dissenters (and liberals supporting the dissent’s position) are currently holding the position that they would have no problem with HL being forced to cover the abortion pill. My question is: what do you think? Would you have a problem with HL being forced to cover the abortion pill in its employee health plan? (I honestly am curious about this question, because maybe you wouldn’t have a problem with such a law.)

  17. Kurt permalink
    July 22, 2014 12:30 pm

    Thales,

    Seeming it is a minor matter if at all to you but it is a matter of serious objection for me that you breeze from saying “Democratic leadership taking the position…” and “Democratic leadership in response saying that…” to your more recent statement that “I think the HL dissent is extremely problematic, because based on its own internal logic, it would lead to the conclusion…”

    You may think that. You may see an internal logic that leads you to see a certain conclusion. You may even be on extremely solid ground in your perception of logic and your foresight of where actions will lead. However, that does not allow you with integrity to say that others haven taken the position or made a statement in support of the conclusion that you believe the first action leads to by your logic and foresight. Oh, and “but my logic is right and any contrary claims are illogical” is not a defense. You can accuse the Democratic leadership of a lack of logic. You can accuse them of not understanding where their positions logically lead to. But you cannot (if being honest) project on to them positions that they did not take or things they did not say because they are conclusions you believe are logical from their stated positions.

    Your more recent post has moved towards a legitimate topic of discussion. If you would simply withdraw your previous accusatory and inaccurate assertions, I would be happy to respond to your more recent and temperate post.

    • July 22, 2014 3:29 pm

      @Thales

      Late-term abortion isn’t like a secret menu item at McDonalds, where you can get one if you know the right codewords to use. I mentioned before that only four doctors in the entire United States perform late-term abortions.The ACA isn’t going to create a sudden supply of doctors willing to perform this procedure nor is it going to create a stream of women marching up to Catholic hospitals and demanding late-term abortions. An inability or unwillingness to get the facts right is one reason why I soured on the pro-life movement.

      • Thales permalink
        July 22, 2014 10:00 pm

        LM,

        I don’t know why you keep talking about the number of late-term abortion doctors. That’s irrelevant to the discussion we’re trying to have. I was using “late-term abortion” in a technique used by people engaged in logic and argumentation. The technique is used when someone takes a position X that happens to be fundamentally flawed, even though it doesn’t appear to be so at first glance. In the technique, one points out that position X logically leads to offensive and problematic situation Y, which illustrates that position X must be flawed in some way. What’s funny is that you yourself used the technique earlier when you talked about “Scientologist choosing not to cover psychiatric drugs” and it’s a technique used prominently by the Hobby Lobby dissent. So put aside the baseless accusations of disingenuousness — it’s one reason why I’m soured on the pro-choice movement, ;) — and join me in a conversation.

        • July 23, 2014 12:16 am

          @Thales

          The number of doctors performing late-term abortions is completely relevant to the conversation, because we are discussing what is and is not likely to happen as a result of the Hobby Lobby case. I was being perfectly serious about a Scientology-owned firm not covering psychiatric drugs. There are quite a few of them, including many in the technology field, and they are run according to Scientology principles. I don’t see why these businesses would not take the opportunity not to cover medicines they deemed offensive if they’re bold enough to offer Scientology “tech” classes disguised as staff meetings. Like Hobby Lobby, these Scientology businesses appear “neutral” from the outside, so a non-Scientologist might not even know that he or she is working for such a company until they see L. Ron Hubbard literature piled up in the break room.

        • Thales permalink
          July 23, 2014 8:18 pm

          LM,
          The number is irrelevant to my point inquiring about whether there is a violation of religious freedom or not. If there is 1 employer unjustly imposing a health care decision on his employees or 1000 employers doing so, it is still an injustice; or if there is 1 person making an unjust imposition on a religious employer or 1000 people doing so, it is still an unjust burden on religious belief… and we can still discuss whether such actions are an injustice or a burden, regardless of their number in actuality.

          (Besides the fact that number is irrelevant, you’re getting the numbers wrong. It’s not the number of late-term abortionists, it’s the number of possible women who would demand payment for their late-term abortions from their employers, which probably numbers more than 1000 per year, since there are at least that many late-term abortions a year. As for the number of Scientologist employers who would unjust deny certain health coverage for their employees, I would guess that number approaches 0, since there has never been such an example in the 20 years since RFRA was passed, or before.)

    • Thales permalink
      July 22, 2014 10:53 pm

      Kurt,

      I find it strange that you don’t want to have a conversation with me. What are you so offended by? I said this: “the Democratic leadership taking the position that Hobby Lobby was wrongly decided, and that no one should be able to claim a religious freedom exemption from having to pay for “women’s health care.” ”

      Here is what Senator Murray said (at my link above): “Today’s decision by the Supreme Court sets a dangerous precedent and takes us closer to a time in history when women had no choice and no voice. When 99 percent of women report having used birth control at one point in their life, allowing their boss to call the shots about their access to this critical health service should be inconceivable in this day and age. Your health care decisions are not your boss’s business – period. Since the Supreme Court decided it will not protect women’s access to health care, I will. In the coming days I will work with my colleagues and the Administration to protect this access, regardless of who signs your paycheck.”

      Seems to me that my comment is a pretty fair summary of Sen. Murray’s position — in fact, it’s less troubling than Sen. Murray’s, who is accusing the Supreme Court of partially rolling back history to the time when women had no say in society and that the Supreme Court is somehow restricting access to ” women’s health care.” (It isn’t.)

      I mean, isn’t it true that, based on her statement, Sen. Murray appears to hold the opinion that no employer should be able to assert a religious freedom exemption with regard to its employees’ health plan? I don’t know why that restatement of her position is offensive to you.

      Let’s get back to our conversation, because I’m truly interested in learning where you stand on these issues. Maybe you don’t like the late-term abortion reference. How about this? Doesn’t the HL dissent’s position–that for-profit corporations cannot engage in religion — amount to saying that a for-profit Jewish deli cannot engage in religion, and thus has no ability to assert a religious freedom objection to a law requiring it to sell non-kosher food?

      • Kurt permalink
        July 23, 2014 7:05 am

        Thales,

        Re-read your own post above. You breeze from putting the words “no one” in Senator Murray’s remarks to then saying “no employer.” For profit employers are not everyone (well, maybe to some in the GOP they are everyone who counts in society). But Senator Murray and I both know that natural persons (citizens and non-citizens), as well as churches and other non-profit associations are some one. To paraphrase Jesse Jackson, “I am Somebody…even though I am not a for-profit corporation.”

        • Thales permalink
          July 23, 2014 8:22 pm

          Kurt,

          So your complaint is that Sen. Murray was only talking about for-profit corporations, and I said that she was talking about “everyone”? I fail to see how that’s offensive, but setting that aside, your position is flawed on a couple of levels.

          1. First, how do you know that Sen. Murray is only talking about for-profit corporations? Nowhere does she discuss only for-profit corporations; instead, she says “bosses.” Reading her statement, it sounds to me that Sen. Murray would have a problem with ANY employer “call[ing] the shots about their [employees’] access to this critical health service,” whether that employer was a corporation or not a corporation. Say Hobby Lobby wasn’t a corporation but a sole proprietorship – that is, it was owned by one single “natural person” boss. Don’t you think that Sen. Murray would be just as bothered by John Smith, owner of sole-proprietorship-Hobby-Lobby, making the decision to not cover the 4 objectionable “contraceptives” for his employees?

          Related to this point is the reasoning of the dissent in Hobby Lobby. Yes, the Hobby Lobby case is about a for-profit corporation. But you have to remember that the dissent has a couple of different arguments for why Hobby Lobby should lose. The first one is limited to the issue of for-profit corporations – namely, that Hobby Lobby should lose because it is for-profit corporation and not a “person” and it thus isn’t protected by RFRA. But the dissent goes on to argue that even assuming that Hobby Lobby is a “person” protected by RFRA, it should still lose because the mandate is not a substantial burden on religious liberty. That second argument by the dissent is not limited to for-profit corporations; this reasoning would apply to any employer, including sole proprietorships, and even non-profit religious corporations.

          2. Your position that a non-profit corporation is a “someone” but a for-profit corporation is not “someone” is incoherent. Both are corporations. Neither is a living, breathing “natural person.” The distinction between them, in large part, comes down to a matter of tax categories. In your opinion, why can the non-profit corporation assert a right to religious freedom and the for-profit cannot?

          3. Let me repeat the question from my last post. Do you agree with the HL dissent that for-profit corporations do not have the ability to assert a religious freedom objection to a law? (It appears that you do, based on your latest comment that a for-profit corporation is not a “Somebody.”) If that is so, it appears to me that the necessary implication of your position is that a for-profit Jewish deli would be unable to object to a law requiring it to sell non-kosher food. Do you disagree?

        • Kurt permalink
          July 24, 2014 9:09 pm

          So your complaint is that Sen. Murray was only talking about for-profit corporations, and I said that she was talking about “everyone”?

          Yes. You falsely declared that the Democratic leadership says that “no one” should have a religious liberty claims while the Democratic leadership spoke narrowly to a finite element, namely for profit corporations. It is a clever trick, to make it seem that the Democrats want every individual to be denied the protections of the RFRA while in fact they only spoke to corporations.

          1. First, how do you know that Sen. Murray is only talking about for-profit corporations?

          Because I have read the bill she introduced and I know how to read legislation as that is what I do for a living.

        • Thales permalink
          July 25, 2014 5:06 pm

          Kurt,

          1. You read legislation for a living? I think you’re doing it wrong, because I don’t see it. Read the bill again. There is a link to it on this page.

          http://www.murray.senate.gov/public/index.cfm/newsreleases?ContentRecord_id=25277c4f-00ee-45af-aded-3d03b5fec6a9

          By my reading, the bill doesn’t cover only for-profit corporations. It covers all “employers.” “Employer” is the operative term (follow the rabbit-hole of the different statute references, and you’ll see it is “employer” as defined by the ACA, which is as defined by ERISA.) I’m not an expert, but it appears to me that the bill would cover for-profit corporation, non-profit corporations, partnerships, sole proprietorships, and any other type of ERISA employer you can think of. The bill then has an exemption for “houses of worship” and an “accommodation” for “religiously-affiliated nonprofit organizations with objections to contraceptive coverage.” Doesn’t that language suggest that the bill imposes a mandate on, say, non-religious nonprofit organizations?

          2. Do you understand that the accommodation for “religiously-affiliated nonprofit organizations” in the bill is a political courtesy? In other words, do you understand that in the minds of Dem. leadership and of the Hobby Lobby dissent the mandate itself is not an unjust violation of anyone’s religious freedom and therefore the accommodation is not necessary or important to protect religious freedom (because, in their minds, there is no violation of religious freedom in the first place or the violation of religious freedom is entirely justified because of the “women’s health” interest)—- and that the accommodation is simply a gratuitous favor being extended to the objectors?

        • Kurt permalink
          July 28, 2014 9:04 am

          By my reading, the bill doesn’t cover only for-profit corporations. It covers all “employers.” …The bill then has an exemption for “houses of worship” and an “accommodation” for “religiously-affiliated nonprofit organizations with objections to contraceptive coverage.” Doesn’t that language suggest that the bill imposes a mandate on, say, non-religious nonprofit organizations?

          You know, Thales, you are right. I appreciate it at long last you are revising your previous inaccurate statements that the Democratic leadership seeks to strip RFRA protections from the hundreds of millions of individuals, churches and religious non-profits in our society. Now, since the distinction in law between a religious non-profit and a secular non-profit is self-declaratory, I was too quick to assume that any non-profit that was claiming religious principles would define itself as a religious organization. While my advice to a non-profit that wanted relief for religious principles would be simply to declare itself a religious non-profit, it is not my place to tell them what to do. The Murray bill does not give RFRA protection for a self-declared secular/non-religious non-profit that has religious objections to contraception. See, Thales, one can correct oneself on the first instance where an omission or error is reported.

          In other words, do you understand that in the minds of Dem. leadership and of the Hobby Lobby dissent the mandate itself is not an unjust violation of anyone’s religious freedom

          I see. Now that your past statements of what the Democratic leadership SAID have been proven false, you are moving into mind-reading. The contraception mandate pertains to covered employers who sponsor health care plans, therefore contrary to your mind reading, in my mind and every Democrat I know, we believe that the RFRA covers all 300 million individual American citizens. Most of us don’t believe the RFRA protects corporations. The author of the bill (then Representative) Chuck Schumer agrees. The Senate sponsor was Ted Kennedy, so we are not in a position to ask him if he believes his legislation was meant to offer protections to secular corporations. Of course, the RFRA was opposed by many right-to-lifers, who feared if Roe was overturned, it would establish a religious freedom right to abortion.

        • Thales permalink
          July 28, 2014 9:27 pm

          Kurt,

          No mind-reading here. Just reading the actual statements of Dem. leadership and the actual language of the Hobby Lobby dissent. When the dissent tells me that the contraception mandate is not a religious burden on anyone, regardless of what type of corporation it is, I take them at their word.

          Most of us don’t believe the RFRA protects corporations.

          I wish we could have had a thoughtful discussion on this point, because it deserves greater exploration. It seems to me that holding this position leads to absurd results (e.g., the Jewish sole-proprietorship deli having RFRA protection, but losing protection the moment the owner decides to set up a corporation), and is internally illogical (e.g., churches are non-human-being-persons and non-profit corporations, but obviously they practice religion and have religious freedoms even though they are not individual citizens). Perhaps another time.

          I hate to break it to you, but I suppose someone must: If you think the Dem. leadership believes that citizen-employers have RFRA protection and that the contraceptive mandate would be a burden on their religious freedom, you’re being duped.

        • Kurt permalink
          July 29, 2014 10:27 am

          When the dissent tells me that the contraception mandate is not a religious burden on anyone, regardless of what type of corporation it is

          Well, your first error is that “everyone” is a corporation. The Murray legislation does not take away any RFRA from the 300 million American citizens who benefit from it. Further it does not take away any of the protections or accommodations offered to religious organizations under the ACA, including the total exemption for churches and houses of worship.

          I wish we could have had a thoughtful discussion on this point, because it deserves greater exploration.

          I would be the first to agree. It has been trying a difficult to get past the unnecessary false assertions obstructing a thoughtful discussion such as putting words in the mouths of your adversaries and dishonest claims that before the Barack Obama administration no one even dreamed of such a requirement while in fact most states not only dreamed of it, but enacted legislation.

          If you think the Dem. leadership believes that citizen-employers have RFRA protection…

          The Democratic leadership certainly does believe that all some 300 million American citizens have RFRA protections. A corporation is not a citizen. If you are speaking of citizens hiring a personal service employee (i.e. a baby sitter or housekeeper), I think we very much could have a thoughtful discussion about that.

          It seems to me that holding this position leads to absurd results (e.g., the Jewish sole-proprietorship deli having RFRA protection, but losing protection the moment the owner decides to set up a corporation), and is internally illogical (e.g., churches are non-human-being-persons and non-profit corporations, but obviously they practice religion and have religious freedoms even though they are not individual citizens).

          Well, Thales, while I fear a relapse on your part, you’ve finally stumbled on to a thoughtful point. I congraduate you that finally you’ve moved from telling others what they think to starting a paragraph with “It seems to me…”.

          You ask why it is logical that “churches [that are] are non-human-being-persons and non-profit corporations, but obviously they practice religion and have religious freedoms even though they are not individual citizens.” My response it that they don’t have protection under the RFRA. They have protection under the First Amendment. Whatever your feelings about this, I don’t think it is much in dispute among those in the legal profession. I have every confidence that if you made an inquiry with the general counsel of any diocese, they would say that if there was a move to apply the contraceptive mandate to them, they would argue they had First Amendment rights to be exempt.

          Now, on the deli question. You have that fear. Now my fear is that you accept Hobby Lobby’s claim, what of another corporation that objection to some medical procedure covered by Medicare. Should they be allowed out of paying the Hospital Insurance Contributions (FICA) they are required by law to pay? What happens if an employee then does not have enough quarters to qualify for Medicare?

          The Murray bill does nothing but amend the RFRA, statutory legislation our country somehow went without until 1993 and in the years after 1993, no corporation ever successfully claimed coverage until HL. Unlike the Right to Life Committee, which did not support it, I think it is a good piece of legislation. But I don’t hold that it is the only hope our society has for religious freedom. I would simply disagree that without extension of the RFRA to corporations (contrary to what the sponsor of the bill says he intended when he wrote it) there are no other avenues to religious freedom.

        • Thales permalink
          July 29, 2014 10:15 pm

          Kurt,
          1. In the first part of my last comment, I was talking about the HL dissent, whose reasoning applies to everyone.
          2. But the Murray legislation does take RFRA protection from sole proprietorships and anyone else acting as an employer (while retaining the one exception.)
          3. You’re simply wrong and confused when you say churches don’t have protection under RFRA, but do under the First Amendment. See the O Centro case for church protection under RFRA. And RFRA and the First Amendment are different things, with different standards/rules for determining whether there is religious protection. You’re confused if you think that First Amendment applies to churches (and not RFRA) and RFRA applies to everyone else (and not First Amendment).
          4. Re: the deli question. So your fear is that a corporation objects to some legitimate procedure under Medicare. My fear is that abortions are added to the health procedures that must be covered by corporations. Here’s the solution: the balancing of government interest and common good versus the burden on the individual — in other words, the balancing of interests that RFRA already requires. Your fear is addressed by a RFRA balancing: because of the compelling government interest in your legitimate health procedure, the least restrictive means of achieving it, etc., etc., arguably a corporation wouldn’t win a RFRA case. So the solution is to do RFRA balancing, and not to throw out all RFRA protections.

        • Kurt permalink
          July 30, 2014 9:17 am

          In the first part of my last comment, I was talking about the HL dissent, whose reasoning applies to everyone.
          Well, you are back to applying your reasoning to other people’s statements. You can find their reasoning flawed, but it is not your place to tell others what their reasoning is. No one in the Democratic leadership has said they believe the protections given to natural persons under RFRA should be restricted. You may think that flows from their position, but that is your reasoning, not the Leadership’s. You seem incredibly dense as to how offensive and uncivil you are being.

          But the Murray legislation does take RFRA protection from sole proprietorships and anyone else acting as an employer (while retaining the one exception.

          It keeps the provisions under the ACA for houses of worship and religious organizations. I don’t you need to worry about personal service employers or unincorporated employers as the ACA only applies to group plans. Yes, it would apply to incorporated sole proprietorships. I would be willing to explore the wisdom of that.

          RFRA and the First Amendment are different things, with different standards/rules for determining whether there is religious protection.
          Agreed. While all of that is true, it cannot be said that without RFRA there is no protection of religious liberty in this country. We have the First Amendment. We have the religious freedom protections in the ACA and many other pieces of legislation, etc.

          . Re: the deli question. So your fear is that a corporation objects to some legitimate procedure under Medicare. My fear is that abortions are added to the health procedures that must be covered by corporations.
          Yes. And there you have a fair discussion. Each of us have sincere fears as to what future steps this could lead to. There is no need for me to say that you intend to take away people’s Medicare or for you to say that I intend to force corporations to pay for abortions. My fear is my fear and not yours; your fear is yours and not mine. No need to make false accusations towards the other party.

          Here’s the solution: the balancing of government interest and common good versus the burden on the individual — in other words, the balancing of interests that RFRA already requires. Your fear is addressed by a RFRA balancing: because of the compelling government interest in your legitimate health procedure, the least restrictive means of achieving it, etc., etc., arguably a corporation wouldn’t win a RFRA case. So the solution is to do RFRA balancing, and not to throw out all RFRA protections.

          I agree. That is why I believe the Murray legislation is wise not to repeal the RFRA but to leave all of it protections in place pertaining to non-employers; leave all of the protections in place for bosses relating to matters other than heath care (i.e peyote, religious dress, observance of religious holidays, kosher delis); and leave in place for people and bosses the current legal prohibition of requiring abortion in any health care plan. And it leaves in place the right of a boss to elect to not offer a group health care plan but at a net savings allow its employees to directly enroll in the exchanges. Now, balancing is always a matter of judgment and I imagine you don’t find this an adequate balance. I understand that. But that doesn’t mean that those who differ with you are not in good faith trying to balance.

          Lastly, I note that in the wake of the HL decision there has already been a lawsuit filed by a pro-abortion religious organization to seek religious freedom protection to provide abortion services. I wonder if this might cause the pro-life movement to return to their original position of opposition to the RFRA. You might know better than I.

      • July 23, 2014 12:07 pm

        @Thales

        Your example of a kosher restaurant is a poor analogy. You don’t have to be Jewish to get kosher certification. Many, if not most, vegetarian restaurants are kosher certified, even though the owners themselves may be Hindu, Buddhist, Christian, or no religion at all. However, being kosher certified attracts observant Jewish customers who may have difficulty eating out at other places because of their dietary constraints. Even if you meant to use the example of a business that was owned by observant Jews, the analogy to Hobby Lobby still doesn’t work, because Jewish law is binding only on Jews. If the non-Jewish workers at a kosher deli that is run by observant Jews choose to eat cheeseburgers for lunch, the owners aren’t going to care, although they will probably request that the offending food items stay out of the shop itself so the restaurant stays ritually pure. Because Judaism isn’t a missionary religion (at least not anymore), I don’t think that Orthodox Jewish business owners would attempt to micromanage their employees lives in the same way that you see in Christian owned businesses like Chik-Fil-A or Hobby Lobby.

        • Thales permalink
          July 23, 2014 8:09 pm

          LM,
          You’re misunderstanding my hypothetical. I’m not talking about Orthodox Jewish business micromanaging what their employees can or cannot do. I’m talking about the government imposing a law saying that all delis/restaurants are required to provide non-kosher food. Is that an imposition on the deli’s religious freedom?

        • July 24, 2014 10:10 pm

          @Thales

          Once again, you’re comparing apples to oranges. Other than to ensure some minimum level of quality control in the food supply, the government has no interest in whether a deli sells kosher food or not (and ironically, most “Jewish delis” sell non-kosher food items). What is going on with regard to the ACA is that for some bizarre reason, healthcare and insurance plans are usually tied to one’s employer, which gives business owners an undue influence in what benefits are or are not available to workers. Personally, I think that it’s ridiculous that our healthcare should be related to our place of employment at all; a single payer system would make much more sense, but that’s another story. Going back to the late-term abortion issue, what business is it of an employer to interfere in the health concerns of its workers at all? What about the freedom of religion for all of the people who work for Hobby Lobby? If a Muslim owned company tried to assert the same claims over a mostly Christian workforce, we’d never hear the end of it. If the Greens and others like them are so concerned about their employees doing things they don’t like, why don’t they just offer scrip instead of money that can only be used on pre-approved items?

          As I mentioned upthread, I don’t bring up the case of Scientologists to be facetious. Scientologists sincerely believe that psychiatric drugs are evil and that no one should take them. Just yesterday, I saw a true crime program about a Scientologist who tried to treat her son’s schizophrenia with vitamins and sweat baths, and the son ended up killing her during a psychotic episode. Similarly, Jehovah’s Witnesses believe that blood transfusions are an abomination and refuse them for themselves and their children, even when they get in car accidents. In fact, I would say that Scientologists and Jehovah’s Witness are more sincere about their beliefs than the Green family, since they have shown a willingness to die for them and are at least consistent in what they believe. It’s hard to take the Green family’s claim that the ACA was oppressing their freedom of religion when 1. their plans offered the offending BC methods until the ACA was supposed to take effect 2. their retirement plans are still tied up in companies that make the very devices they now claim to oppose.

          http://www.motherjones.com/politics/2014/04/hobby-lobby-retirement-plan-invested-emergency-contraception-and-abortion-drug-makers

          Scientology owned companies have repeatedly tried to force non-Scientology employees to engage in Scientology practices:

          http://www.huffingtonpost.com/2013/05/14/employees-practice-scientology-dynamic-medical_n_3273431.html

          http://www.forum.exscn.net/showthread.php?23419-working-for-a-Scientology-run-business

          There have even been charter schools established as front organizations to get children into Scientology:

          http://www.tampabay.com/news/education/controversy-over-scientology-influence-clouds-future-of-pinellas-charter/1217239

          http://www.slate.com/blogs/the_slatest/2013/03/27/scientology_in_schools_phoenix_charter_district_used_applied_scholastics.html

          If these companies haven’t tried to eliminate psychiatric drugs from their plans, it could be because they didn’t know they could. Hobby Lobby has opened the door for them to do so. I don’t know why refusing to cover contraception is seen as a logical stance to take, while the claims of more unpopular but equally sincere groups are considered to be too fringe to take seriously. The Quakers, for example, have been trying to request an exemption from having their taxes go towards the army and warfare since the colonial days and have never gotten it, although their peace testimony has been a crucial part of their belief system since the group started. I’ll believe that advocates of “religious freedom” really believe it when they let the Quakers and the other members of the peace churches get their exemptions.

  18. Thales permalink
    July 25, 2014 5:13 pm

    LM,

    1. I respectfully suggest that you supplement your reading of liberal blogs with alternative perspectives. You’ve got a number of canards in your post that I don’t have time or space to respond to. But here’s an article (and by a person not generally considered a conservative) that responds to some of them.

    http://www.bloombergview.com/articles/2014-07-02/answers-to-all-your-hobby-lobby-questions

    2. Why are you confident that a government would not regulate delis? Who can know what interest a government can think up? The government is regulating the size of sugar drinks and the content of school menus; it’s not implausible that it might want to regulate the content of food being offered in a deli some time in the future. Up until a couple of years ago, no one dreamed that the government had an interest in covering no-pay contraceptives in employer health care plans, yet here we are. And again, the fact that a government is not trying to regulate delis right now is irrelevant to the conversation. I’m proposing hypotheticals for the purpose of making an argument, just like you’re doing with the Scientologists, even though there are zero cases of a Scientologist employer actually denying psychiatric drug coverage. (I don’t have a problem with you using the Scientologist hypothetical to make an argument — please go ahead! It’s helpful to think up hypothetical scenarios in order to puzzle through the implications of a particular law or policy! I’m just pointing out that I’m doing the same thing as you’re doing, and that what we’re doing is a normal method of engaging in thoughtful contemplation about an issue.)

    3. Re: Quakers and exemptions from paying taxes. That’s a good example, but you need to read up on this topic of religious exemptions. Google the Supreme Court case of US v. Lee, 455 U.S. 252, from 1982, and read it. The Supreme Court has already figured out the “religious objection to taxes” example you’re bringing up. Let me try to explain briefly: we live in a civilized society, where there are conflicts between personal/conscience/religious beliefs and government interests. Our legal system see this, and tries to balance between the two sides, by making accommodations when possible and denying accommodations when they are unreasonable. Some considerations in weighing the two sides include how large the burden is on the religious person; how important the government interest is; and if there are less burdensome ways to achieve the same government interest without burdening the religious person as much as he or she is currently being burdened.

    So, in your Quaker and taxes example, yes, they are being burdened by having to pay taxes that go to wars. But our legal system has already decided (see the US v. Lee case) that it is unreasonable to give Quakers an accommodation, considering that the burden on the Quakers is relatively light and their connection to the evil of war is remote, considering that the government has an important interest in collecting taxes for defense, and considering that there really isn’t a less burdensome and still feasible way of collecting taxes as it would be chaotic if every person could object to their tax money being used in ways they didn’t like.

    On the other side of the spectrum is a military draft requiring everyone to fight in a war. The draft forcing a Quaker to fight a war would be another burden on his religion, just like the tax example above. But in contrast to the tax example, our society has decided that it is reasonable to give the Quaker an accommodation from being drafted for war: being forced to fight a war is a much bigger burden on a Quaker’s religious belief than taxes; and though the government has an interest in maintaining an army, this interest is not undermined too much if conscientious objectors are permitted an accommodation to not fight in the war.

    The same spectrum exists for abortion. I have a religious objection to paying taxes that go to cover abortions. But my religious objection about my taxes being used for abortions should not be accommodated (for the same reason as the Quaker’s tax objection is not accommodated, as described above). I also have a religious objection to being forced to participate in an abortion by being, say, the assistant handing over the scalpel. Fortunately, our society recognizes that my religious objection to being forced to participate in an abortion should be accommodated (at least for the time being), just like the Quaker’s objection to being forced to fight a war should be accommodated.

    But what about a situation in the middle? A rule that forces me to pay for someone else’s abortion? I’m still burdened — I’m not burdened as much as if I was forced to participate in an abortion, but I’m more burdened than if the government used my tax money for abortions. Should my religious objection be accommodated? Is the burden on my religious beliefs significant or not? Is the government’s interest in having the abortion-seeker be paid by me an important interest or not? Can the government’s interest in having the abortion-seeker be paid, be achieved through some other method that doesn’t burden me as much? I’m not asking you to answer these questions — I’m just illustrating that that is the current debate we’re now having (albeit, a little simplified).

    4. Since I’ve now explained in very general and inexact terms how religious accommodations work in our current society, let me pose a question, and let me put aside late-term abortion, since you have a problem with that. Let’s take the “least offensive” kind of abortion– first-term chemical abortion. If the government said that employers had to cover chemical abortions in their health plans, and a Catholic employer objected to it, do you think this objection would be justified? Or do you think the Catholic employer should be compelled to provide that coverage, just like the Quaker or the Catholic should be compelled to pay their income tax even though they object to how tax money is being used, or just like how Hobby Lobby should be compelled to cover contraception?

    • July 25, 2014 9:30 pm

      @Thales

      I read blogs and newspapers from all over the political spectrum and from different religious and philosophical positions. In fact, I don’t read that any liberal blogs precisely because I like to read up on opinions that I don’t agree with so I can try to learn something new. Plus, I live in a red state (not by choice, though), so I’m bombarded with the conservative position simply by virtue of my geographical location. Lastly, in a previous iteration of myself, I considered myself to be somewhat of a Catholic traditionalist, so I think I know what I’m talking about. I don’t think much has changed in that world since I left it, other than an increase in anti-Obama hysteria.

      I think that some regulation of the food supply is nessesary. Otherwise we would end up in a situation like this:

      http://www.foodquality.com/details/article/1352075/Eye_on_China.html?tzcheck=1

      I’m amazed that the same people who consider caloric information about fast food to be an unacceptable abridgment of their freedom have no problem with subjecting a woman to a vaginal ultrasound that she neither wants no asked for (I don’t know if you’re one of those people, but the point still stands). The current fracas over the ACA stems from Americans’ unreasonable fear of anything deemed “socialism,” so we have to come up with a needlessly complicated system that retains the employer as insurance-gatekeeper. There’s a reason that no other country in the world has this model for healthcare, because it makes no sense. Like I said before, if we had a single payer system, this entire conversation would be moot, because the employer wouldn’t have any input in their employees’ healthcare at all. I wonder why the bishops in Europe, where various forms of government healthcare are the norm, don’t raise up a stink about “religious freedom” like they do here. I assume it must be because many European countries still don’t have separation of church and state, so the churches still have a exalted position in society even if no one pays attention to them. With regard to religious employers I would say that if providing health care insurance is this much of an ethical problem for them, maybe they need to get out of the world of business altogether.

      Also, we won’t have this conversation about late-term abortions if we provided better access to contraception. Abortion is largely illegal in Western Europe after 14-20 weeks, precisely because contraception and first trimester abortion are freely available. The lack of such services in the US, especially among the poor is precisely what drives the demand for late-term abortions in the first place. The best way to prevent abortion is to increase access to contraception, as well as improve medical care in general. The experiences of Romania under Ceaușescu indicate that making contraception illegal makes abortion, whether legal or illegal, more likely to happen. This is also what happened in Japan (where oddly enough abortion has traditionally more acceptable than taking the pill), as well as in many modern-day Latin American countries (where abortion is criminalized but occurs on the DL).

      Another reason why I’m not fond of religious exemptions is because they were used during the 1950-70s as a way to fight against the Civil Rights Movement:

      http://www.politico.com/magazine/story/2014/05/religious-right-real-origins-107133.html#.U9MQ5ShAvfE

      To me, the exact same thing is happening today, but this time with different groups in the crosshairs; just wrap up your bigotry in religion and it’s beyond criticism. As I’ve said before, I don’t see why religious beliefs should receive preferential treatment when compared to other types of beliefs, especially when they make claims that are empirically false, as Hobby Lobby did when it claimed that the contraception methods in question were abortifacients. A good, non-Hobby Lobby example would be faith healing. If you withhold medical treatment from your child because you’re a drunk or because you decided to spend all day playing World of Warcraft rather than go to the emergency room, you go to jail, but withhold it because your sincerely held beliefs don’t include doctors and you can get off in many states. The child is dead either way, but mention god and that makes it okay, or at least not a crime meriting jail time. I believe that children have rights that are independent of their parents and should not be subjected to the whims of their parents beliefs, especially when said beliefs will have a deleterious effect on their health and well-being.

      Going back to the Hobby Lobby decision itself, I can’t say whether Scientologists will try to not offer psychiatric meds on their insurance plan, nor do I know if such drugs were ever part of their plans. Given that this is a high control group, it wouldn’t surprise me, but there’s no way of knowing for sure unless you’re an employee at a Scientology owned business. All I’m saying is that I don’t see why Hobby Lobby’s specious complaints about birth control are seen as reasonable and worthy of accomodation, while claims put forth by other groups are written off as too absurd to be contemplated. Much of the commentary I’ve read about this says, “Well of course the Scientologists and the Jehovah’s Witnesses won’t be telling people what to do.” but why should we assume that? Is it just because these groups are relatively small, unpopular, and without political representation? The door has been opened, and there’s no saying who will walk through it at this point.

      • Thales permalink
        July 25, 2014 10:34 pm

        LM,

        It’s as if you didn’t read my comment, or if you did, you didn’t understand it, because it was non-responsive.

        Religious belief and society’s policy or law always presents the potential for tensions. But I submit that a civilized society is one that permits religious accommodations if it is possible and reasonable under the circumstances, and it doesn’t grant an accommodation if it isn’t reasonable. So your parade of horribles — the situations where a person only has to mention God and he gets a free pass to do something outrageous — is simply not the current state of our law, as I’ve tried to explain to you earlier. But you apparently are convinced that this parade of horribles will happen if people can claim religious exemptions and thus you seem to be against all exemptions for religious beliefs — I submit to you that that is path to a barbaric society where people are forced to act against their consciences and religious beliefs, such as Quakers being forced to fight in wars and doctors being forced to perform abortions. In my opinion, that is not a world that is respectful of human dignity.

        • July 26, 2014 10:23 pm

          @Thales

          I think we have reached the limit of what we can reasonably hope to accomplish in this thread, since both of us feel like we are talking past each other. This is probably because we simply have two diametrically opposed world-views and have difficulty seeing things in any other manner. To bring this back around to the original point of this post, perhaps this is indicative that this country is developing fault lines that simply can’t be resolved. Or maybe the fault lines were always there, but it was assumed that they could be ignored or absorbed by the political process. As I mentioned before, even the South is changing in ways that would have been unthinkable even thirty years ago, and it’s quite possible that many key states could turn blue or at least purple. The gradual “browning” of the United States could be the key to resolving these opposing viewpoints.

        • Thales permalink
          July 27, 2014 4:27 pm

          LM,
          I suppose you’re right — we don’t have a common premise, so we can’t have a productive conversation. But I’m still astonished that we can’t agree that a civilized society is one where individual consciences are accommodated from time to time if it is possible and reasonable under the circumstances (like pacifist conscientious objectors.)

    • Kurt permalink
      July 28, 2014 2:58 pm

      Once again, there would be a topic of legitimate discussion if you would just given up on the bogus and dishonest assertions.

      The government is regulating the size of sugar drinks

      No, it is not. There was an initiative by one mayor of one city to do so and he failed in that attempt and is now out of office. Noting your use of the present tense, the government is not regulating the size of sugar drinks. Another diversion from civil and legitimate discussion.

      Up until a couple of years ago, no one dreamed that the government had an interest in covering no-pay contraceptives in employer health care plans,

      Actually prior to two years ago, 28 states passed laws covering no-pay contraceptives in employer health care plans. Another example of the rhetorical drivel that distracts from a civil discussion.

      The fact that 28 states did so doesn’t make impossible a sincere objection to this mandate. But once again junking up a discussion with blow hard false assertions just hurts any hope for respectable discussion.

      Thales, here is some advice. Rather than making false accusations as to what your adversaries believe, simply make you point as a statement of fears or suspicions that you have. For example, I fear that the reason some people feel a need to make false assertions that until a couple of years ago, no one dreamed that the government had an interest in covering no-pay contraceptives in employer health care plans is because they are less interest in defending human life than they are in attacking one particular human life currently residing in the White House. I don’t know that and am not saying it is a fact. I just personally have that fear and suspicion.

      • Thales permalink
        July 28, 2014 9:45 pm

        Kurt,

        LM was making the argument that the government has no interest in what food a deli sells. I responded by saying that my deli hypothetical is not far-fetched, by pointing out an example of a government entity taking an interest in what food a food-provider sells. The actual state of the law is irrelevant to my point — it’s still an example of the government making a regulation on food. Wikipedia tells me that the regulation was only nullified by the courts, and… I see that Mayor DeBlasio is still trying to enforce the regulation somehow

        http://nypost.com/2014/06/28/de-blasio-still-fighting-for-bloombergs-soda-ban/

        So your comment was a diversion from civil and legitimate discussion that I was trying to have with LM.

        Your final point is always so puzzling to me when I hear it from liberals. If Hillary Clinton or Kathleen Sebelius was President and passed the contraception mandate, you don’t think the Catholic Church would oppose it? Nonsense.

        • Kurt permalink
          July 29, 2014 9:52 am

          What’s puzzling is your own words that “Up until a couple of years ago, no one dreamed that the government had an interest in covering no-pay contraceptives in employer health care plans” when in fact 28 states did exactly that.

          Maybe as an example to you, that rather than put words they did not say into the mouths of one’s adversaries, I will try to show that one can make a point by instead expressing it as a fear, suspicion or theory of one’s own, I’ll advance the following, which is my theory, suspicion and fear:

          Why in the face of hard, undisputable, verifiable, documented fact would someone claim that “Up until a couple of years ago, no one dreamed that the government had an interest in covering no-pay contraceptives in employer health care plans” even though in more states than not, it was not only dreamed of but proposed, debated and enacted into law?

          My theory is that it is part of a effort that cares not of unborn life, religious liberty or a belief that couple using contraception can never do so in a morally responsible way. My theory is that those concerns take a back seat to a desire to attack one man – the President of the United States.

          One could have with honesty and integrity spoke of long standing efforts to oppose these laws where they have been proposed. One could have spoke of early prophetic voices against such initiatives. But instead it was felt necessary to fabricate a claim that no one could even “dream” of such a thing, yet alone propose a bill and win the support needed to enact it into law before the current Administration. No one — not Democrat or Republican, liberal or conservative, Catholic or secular, male or female.

          What’s going on here (I suspect) is a desire to falsely assert that one man – President Obama — is the source of a vast array of evils that before his coming to power, no one even dreamed of doing.

          So history needs to be re-written to pretend that what we are seeing is not misguided or even highly objectionable proposals that liberals or Democrats or women have long proposed but new evils previously unimaginable that have been invented by Barack Obama.

          My theory is that while the President’s critics may not be racists, they seem to be evidencing a hate that is just as sinful.

        • Thales permalink
          July 29, 2014 10:22 pm

          Kurt,

          1. when in fact 28 states did exactly that I was referring to the federal government and its HHS mandate. No one dreamed that the federal government had that interest.

          2. Might I suggest it’s time to take a deep breath, and to go out and meet a real-life living-person conservative – perhaps even a Tea Partier? You’ll find that they are actually very kind and warm-hearted people.

  19. Kurt permalink
    July 30, 2014 9:38 am

    I was referring to the federal government and its HHS mandate. No one dreamed that the federal government had that interest.

    Well, you did say “government” not “federal government.” I accept your clarification of your own views but I find it silly that you can think that there was a massive movement successful in 28 states and present in most, if not all, others yet it was unimaginable that the federal government would also consider such legislation. In fact far from being undreamed prior to the Obama presidency, there were various efforts on the federal level, some unsuccessful and some with limited success. (i.e federal law requiring mandatory contraceptive coverage in all FEHBP plans, the advisory opinion of the EEOC, federal litigation). I have found bills requiring all group health plans to include contraception introduced in both the House and the Senate (with Republicans sponsors) in every year of the G.W. Bush Administration.

    You have not settled my fears that this is all about demonizing Obama.

    • Thales permalink
      July 30, 2014 9:52 pm

      You have not settled my fears that this is all about demonizing Obama.

      Do you think Cardinal Dolan is someone demonizing Obama?

      • Kurt permalink
        July 31, 2014 8:38 am

        The state of New York has a contraceptive mandate in law since 2002. In Wisconsin, the state legislature debated it while Dolan was Archbishop of Milwaukee and passed it the same year he left for NYC. He has been a member of important committees of the USCCB who members should be aware of the Collins (R-ME) legislation that was before Congress in the Bush Administration. If Cardinal Dolan were to assert that “no one dreamed” of a contraceptive mandate before the Obama Administration, then yes, I would say unless he is woefully ignorant of matter he should know of if he is competent for his office, I suspect he is deliberately trying to demonize the President.

        Do you have a citation where the Cardinal said no one ever dreamed of a contraceptive mandate prior to Obama?

        • Thales permalink
          August 1, 2014 10:30 am

          Kurt,

          http://usatoday30.usatoday.com/news/opinion/forum/story/2012-01-25/dolan-hhs-health-contraceptive-mandate/52788780/1

          You know, the contraceptive mandate is a regulation, not an enacted bill or law, right? (You’re sometimes unclear in your comments, and sometimes seem to be saying that it is legislation or it was enacted into law.)
          I’m referring to the fact that many people, including Cdl. Dolan, believe that the contraceptive mandate is “unprecendented,” and the fact that even people who voted for the ACA didn’t foresee the mandate (see Bart Stupak).

        • Kurt permalink
          August 2, 2014 3:51 pm

          The law gives ACA the authority to develop a list of basic benefits. In the congressional debate Senator Mikulski certainly spoke against attempts to amend this provision to exclude contraception. Bart Stupak has been a supporter of access to contraception, but I’ve not heard him comment either way to as if he forsaw contraceptive inclusion in the basic benefits package.

          There is precedent for contraceptive mandates in state legislation. If you want to speak narrowly to precedent in the ACA, it seems rather silly as of course since this is the first development of the basic benefits package, there is no precedent for anything in it (cancer, etc.).

          I was at the Senate Committee markup that debated the basic benefits package and I certainly expected contraception to be included. I like to think I am somebody. To say “no one dreamed” a contraceptive mandate is just baseless. The Cardinal did not say that and I don’t think any informed, honest person can say that. I think even the opponents of ACA at that Senate committee markup such as Senator Hatch expected contraception to be included. No, it can’t be said “no one even dreamed…”

        • Thales permalink
          August 4, 2014 10:14 pm

          Kurt,
          I’m also referring to pre-ACA times. And I was using the phrase rhetorically with a different commentator to make the point that the general legal/political environment of the recent past was one where most mainstream people didn’t think that the federal government had the power or interest to regulate health care the way it did, much less impose the mandates that it did, but that legal/political views changed over time. I don’t mean the phrase literally: I’m sure that there have existed some liberal extremists who actually dreamed of the mandate many, many years ago, and who have also dreamed of instituting a tyranny that would force businesses to cover late-term abortions, force doctors to do late-term abortions, and would suppress all public professions of religious beliefs.

        • Kurt permalink
          August 8, 2014 10:23 am

          While your words were “a couple of years ago”, it was between 1996 and 2007 that 27 states passed mandates. One more did in 2009. The current year is 2014.

          And it was a Republican senator generally considered a moderate and not a liberal extremist who introduced the federal legislation (the House in in some years also had a moderate Republican as its principal sponsor).

          Rather than the dream of some liberal extremists, it was an idea that (however ill-advised) won enactment in a majority of the states and was a matter that was formally introduced for consideration in Congress by legislators backed in their elections by President Bush and the RNC, not known for supporting the election of liberal extremists.

        • Thales permalink
          August 9, 2014 3:26 pm

          Kurt,
          Okay, you got me. It wasn’t a “couple of years ago.” I should have said “a few years ago.” The point I was making was that not-a-very-long-time-ago-and-within-recent-memory, most people did not think the government had the power or interest to regulate as they are doing. Let’s move on to the real discussion below.

        • Kurt permalink
          August 11, 2014 10:58 am

          Given the fact that in the last two decades since these laws began to be passed, in none of the 28 states that passed these laws, not one private corporation came forward to sue based on their religious freedom including Hobby Lobby itself who complied fully with this mandate until it was approached by litigation teams opposed to the entire Affordable Health Care Act, one would be on stronger ground to say no one ever dreamed that a private corporation would ever sue over a contraceptive mandate. (I don’t like speculating about other people’s dreams or fantasies, so maybe for me the preferred wording would be “No public objection was ever heard…” ).

          I would hope that even if you don’t agree, you can see how your original wording makes some people wonder if this is all really about something else.

  20. Thales permalink
    July 30, 2014 9:58 pm

    Yes, it would apply to incorporated sole proprietorships. I would be willing to explore the wisdom of that.

    Kurt, then let’s do that. I’m interested in learning what your opinion is on these: whether they can exercise religious freedom, whether the mandate is a burden on their religious freedom; whether the burden is justified by government interest or not; etc.

  21. Kurt permalink
    July 31, 2014 9:31 am

    OK. We have some goalposts. Let’s look at what is in between these goalposts.

    The Democratic leadership is not trying to deny application of RFRA to individuals. On the other side, the majority in the Court decision only found RFRA protection for closely held corporations, rather than to all businesses. Further, even HL didn’t argue that First Amendment religious freedom protections applied to corporations, just statutory protections.

    So, should some for profit corporations have statutory protections under the RFRA? As you know, I’m dubious about granting it to any stock corporations, even so-called closely held stock corporations like Hobby Lobby. When stocks are sold, does a corporation change its religion? Can a public corporation restrict stock sales to Christians only to preserve its relgigion?

    But what about sole proprietorships?

    On the one hand, in these situations you have people who have gone through some trouble to set up a sole proprietorship for the purpose of being able to do things without being personally responsible for those actions. To be able to say ‘the company is “me” when I want it to be me but it is not “me” when I don’t want it to be me’ is an argument against extending coverage. But on the other hand, there is a certain intimacy with a corporation wholly owned by a single person. I think it is understandable the owner would feel mandates on the corporation are mandates on him.

    Given the gray area there, I think the response would be best to look at what types of mandates are being proposed — how much of a public interest there is in the mandate, what other ways to find relief the owner has, etc. and that maybe on certain matters there be RFRA protections and on other matters there not be.

    I know this doesn’t fully resolve this issue, but my hope it is that, as I said, it narrows the goalposts in the discussion.

    • Thales permalink
      August 1, 2014 10:15 am

      Kurt,
      Re: statutory protections under the RFRA for public corporations. Yes, you’re right, RFRA probably doesn’t extend. See the discussion by the majority in the Hobby Lobby case. RFRA probably only extends to closely held corporations, each owned and controlled by members of a single family, where there is no disputed about the sincerity of the religious beliefs of the ones owning and controlling the company. So I agree with you. Let’s move on from that point.

      So, let’s talk about sole proprietorships. The HL majority points out that previously, the Supreme Court has recognized that sole proprietorships can exercise religious beliefs (the Braunfeld case). You seem to be recognizing that it’s possible too.

      So let’s go with that. And now we come to the actual topic which you’ve been dancing around, but not addressed. Do you agree with that there could a burden on the sole proprietorship’s religious exercise that would be so significant, or so easily avoided, or so inappropriate, as to make it unjustified? (I think forcing an Orthodox deli to serve non-kosher food is an example. If you don’t agree, that’s fine. Just trying to illustrate one side of the spectrum.) On other hand, do you agree that there are burdens on the sole proprietorship’s religious exercise that are not so significant, or not inappropriate, or very necessary, and that are fully justified? (I think health regulations on hand-washing and cleanliness at the deli, if someone had an objection to it on the basis of religion, is an example of a justified burden.) Do you see the spectrum I’m describing?

      And then, here is the million-dollar question. In your opinion, where does the current contraceptive mandate fall?

      Finally, did you see the Ginsburg interview? She explicitly says what I was saying earlier: that her HL opinion doesn’t turn on the difference between corporations vs. non-corporations. Instead, her opinion is that no employer has a justified objection to the contraception mandate.

      https://news.yahoo.com/katie-couric-interviews-ruth-bader-ginsburg-185027624.html

  22. Kurt permalink
    August 2, 2014 4:26 pm

    I think we have a lot of common ground. I appreciate your statement that public corporations probably don’t have RFRA protections. I would re-affirm that personal service employers (i.e. employers of babysitters, housecleaners, etc.) should be covered (probably a non-issue in this particular case as they are almost certain not to be offering group health plans — and hence why I think Ginsberg was not referencing unincorporated employers in her comments).

    You have a very good point on the deli. The state should not just go around making laws for no public purpose that restrict religious practice. But a valid public purpose might legitimate restrict a corporation but not a church. I remember some years ago there was an unfortunate incident in Maryland, where there is a delicacy know as “stuffed ham” that seems to only be sold at small town church picnics. There was a bad “stuffed ham” and everyone got sick, but for First Amendment reasons, the state does not do health inspections for church suppers.

    I would say in a case with no dispute of fact that a business was selling to the public a product according to its sincere religious dietary rules but that was unsanitary, yes, it would be legitimate for state regulation.

    Lastly, I support the inclusion of contraception in the basic benefits package. I feel the public health case for it outweighs objections such as HL which, while maybe sincere, don’t seem to be on a solid basis.

    I would have more respect for HL and its litigation team if they had instead said “the ACA mandate is that we provide contraception as a basic benefit, which we have long done and will continue to do. The Presidential Executive Order says abortion is not included. We assert we are in compliance. If a person with standing sues us, we will defend in court our belief that certain drugs were by the previous Administration wrongly labeled as contraceptives and therefore we are under no obligation to provide them as they are not in fact contracptives.”

    • Thales permalink
      August 4, 2014 9:38 pm

      Kurt,

      Very good. Let’s explore your position a little bit, because there are two very curious implications about your position that you might not realize.

      1. You say that “I would say in a case with no dispute of fact that a business was selling to the public a product according to its sincere religious dietary rules but that was unsanitary, yes, it would be legitimate for state regulation.” I agree. Do you see that if the business argued that the sanitary regulation was an unjust burden on its religious practice, we would both find that the business’s objection should be overruled, because there was an important government interest (in sanitation) that can’t really be achieved in any less burdensome way? Just trying to see if you’re following what I think should be the proper analysis.

      Now, you also say “The state should not just go around making laws for no public purpose that restrict religious practice.” So, let’s explore that a little. Do you agree that if the state made a law that restricted religious practice of a business and that had no legitimate public purpose — say, an Orthodox Jewish deli by requiring them to sell non-kosher and there was no important government interest behind that law — that the business would have a legitimate objection to the law? Do you think the deli should be able to argue that its religious practice is being unjustly burdened?

      I’m honestly interested in your answers. I’ll explain the curious implication that I think exists in my next comment.

      2. The second implication I want to explore is your position that HL shouldn’t have a valid objection to the contraception mandate — that the public health case (in other words, there is an important government interest) outweighs HL’s objection. (I’m trying to accurately capture your position, so if I’m incorrect, please let me know.) In other words, if I’m understanding you correctly, it appears that you think that the government interest is important and that the mandate is a good way to further the interest, and the imposition on HL is either not very substantial or perhaps is justified because there is no better way to further the important government interest. Is that a fair description of your position? If so, here is the implication I want to explore: suppose a law or regulation was passed adding first-term chemical abortions to the mandate. If HL objected, what would be your position on their objection? Would it be a justified objection unlike (in your opinion) the contraception objection? Or would you classify this abortion objection in the same category as the contraception objection?

      Again, I’m honestly interested in your answer.

  23. Kurt permalink
    August 8, 2014 11:02 am

    Do you agree that if the state made a law that restricted religious practice of a business and that had no legitimate public purpose — say, an Orthodox Jewish deli by requiring them to sell non-kosher and there was no important government interest behind that law — that the business would have a legitimate objection to the law? Do you think the deli should be able to argue that its religious practice is being unjustly burdened?

    Good question. If there was a religious dietary practice that was objectively unhealthy and unsanitary, I still see the right of a church or house of worship to serve such dinners but I believe the state has the right to restrict a commercial enterprise from doing so.

    But what if there isn’t even a claimed public purpose? I think the path I would take that in this situation that there is a violation not of the religious freedom a corporation enjoys but the religious freedom of the religious community. Extreme example would be that Jews can’t sell to Christians. It is wrong and unconstitutional not because of the religious freedom of the enterprise but because it is a broadly anti-Semitic proposal. I would argue that any law regulating a religious matter with no public purpose shows animus towards the religious community and there has First Amendment problems.

    Less extreme (and I try to be cautious about illusions to the right wing German regime in the 1930s), during prohibition, business were still allowed to sell wine for sacramental purposes not because of the religious liberty of the wine merchant but because of the religious liberty of the religious community. So, I’m hoping you might welcome that while I may have a more restrictive view of the FRFA than you do, I am affirming a very expansive view of the First Amendment religious freedom protections.

    To your other question:

    suppose a law or regulation was passed adding first-term chemical abortions to the mandate. If HL objected, what would be your position on their objection?

    If it were a regulation, I would argue that it conflicts with the President’s E.O. and therefore is not valid.

    As to such a law, I would strongly oppose such a law and I would oppose it even if it had a religious exemption which I would guess <5% of businesses would use.

    • Thales permalink
      August 9, 2014 3:06 pm

      Kurt,

      1. Sorry, I don’t follow your position at all. Businesses should still be able still operate but only because individuals practicing their religion need wine, and you shouldn’t restrict the religious practice (ie, using wine) of the individuals/community? But what if the government just said “get your wine from government store X; no private religious business is allowed to operate to sell this wine”? Also, I don’t understand when you say you have an expansive First Amendment protection but not of RFRA. What do you mean? The current legal rule here in the United States is that there is no expansive First Amendment protection when a law burdens religious practice (read the Employment Division v Smith case) which is why RFRA was created in the first place. And you say “I still see the right of a church or house of worship to serve such dinners but I believe the state has the right to restrict a commercial enterprise from doing so.” Okay, the restriction on commercial enterprises makes sense if the state has an important reason (ie, it’s objectively unhealthy and unsanitary), but what if the state imposes the law because it hates Jews? Does the commercial enterprise have a legitimate objection, and if so, on what grounds?

      Sorry for all the questions, but the first half of comment just made me more confused as to what your position is/

      2. As for my second point, thank you for your answer but it was non-responsive. You’re dodging the question. So you would oppose a law that requires first-term chemical abortions added to the employer mandate. That’s fine, but I’m not interested in your personal views of that law. My question is, do you think that an employer like HL would have or should have a legitimate religious objection to that law? (I’m not trying to trap you. If you honestly don’t think that HL would have a legitimate religious objection to such a law, but that the law is horrible and should be changed through the legislatures instead, just say so.)

      • Kurt permalink
        August 11, 2014 10:49 am

        But what if the government just said “get your wine from government store X; no private religious business is allowed to operate to sell this wine”?
        Yes, I think that is acceptable. If during Prohibition the government had done this, I think religious freedom would have been respected. I’m assuming the government stores would exist in a way that presented no serious practical impediments to procurement by religious bodies. So as long as the government did this, a merchant during prohibition would have no claim that the business had a religious freedom claim to sell Manischewitz® or Guasti Sacramental Wines.

        Okay, the restriction on commercial enterprises makes sense if the state has an important reason (ie, it’s objectively unhealthy and unsanitary), but what if the state imposes the law because it hates Jews? Does the commercial enterprise have a legitimate objection, and if so, on what grounds?

        Thank you. We may still have differences of opinion but I appreciate your efforts to see a honest understanding of my views. Were the government to pass a law on businesses simply because it hates Jews, I think in such a case any member of the Jewish religion has suffered a violation of his or her First Amendment rights and would have standing to litigate.

        If you honestly don’t think that HL would have a legitimate religious objection to such a law, but that the law is horrible and should be changed through the legislatures instead, just say so.

        Yes. I would not be pleased if there was federal legislation mandating abortion coverage in all group health care plans, save a narrow religious opt-out that clearly less and 1% of employers would elect. I am most grateful that abortion is not included in any federally subsidized health care plans (ACA Exchange plans, FEHBP, Medicare/Medicaid, etc.). As ACA exchange plans are opened up to small businesses, I don’t believe an employer who has a religious belief in abortion rights should be able to include abortion because of a religious freedom claim. I also don’t like ghettoizing abortion as a singularly religious issue.

  24. Thales permalink
    August 11, 2014 10:10 pm

    Kurt,

    Now your position is growing increasingly incoherent. It’s more bizarre than I first thought.

    1. Yes, I think that is acceptable.

    Curious. It appears that you have no problem with the government closing down any private business for any reason that it can articulate (as long as the reason given is not based on religion, apparently, from your point 2 below), and as long as no person’s religious freedom is impeded by the government. The problem with your position is that you’ve got the presumptions upside down, in my opinion. For you, the government is first and has the plenary authority to set the rules for life, and as long as it determines that there is “no serious practical impediment” to one’s practice of religion, the government’s rule is okay. The presumption should be the other way around: that individual/family/community and their freedom is first, and the government’s rule infringing freedom comes second and is only okay if it is necessary, important, least restrictive, etc. We don’t have to discuss this position of yours, because it’ll most likely go off on a tangent (and I’m more interested in your responses to the points in 2 and 3 below), but the first thought that occurs to me is who determines whether there is a serious practical impediment or not? Wouldn’t you have to say “the government.” And thus your position quickly leads as a matter of logic to the permissibility of the government forcing Jews to live in a ghetto with a curfew because some government official says “hey, there is no serious practical impediment to the Jews – they can still practice their religion in this ghetto.”

    2. Were the government to pass a law on businesses simply because it hates Jews, I think in such a case any member of the Jewish religion has suffered a violation of his or her First Amendment rights and would have standing to litigate.

    This comment is incoherent with what you say in point 1. You don’t have a problem with the government closing all religious businesses, for example, as long as individuals could still practice their religion individually by getting what they need for their religion elsewhere. But you seem to have a problem with the government closing all religious businesses if the reason for was “we hate religion X.” These two positions are incoherent with one another. If there is no violation of the First Amendment violation or burden on religious practice by preventing a business to operate in some way in scenario A because there is no burden on the business owner (who doesn’t have a religious freedom interest in the first place) and there is no burden on the individual people who can still practice their religion, why is there a First Amendment violation or burden on religious practice in scenario B? For example, Jews can still “practice” their religion even if they are prohibited from operating a business.

    3. Heh. You’re dodging the question again. You like dancing! You still didn’t answer whether a business like HL would have a religious freedom objection to a law that mandated abortion coverage. I’m gathering from all you’ve said already, and from your refusal to answer the question, that you don’t think HL would have a legitimate religious objection to such a law. But why not come out and say so? Why be so secretive in your position?

    And then you said “I don’t believe an employer who has a religious belief in abortion rights should be able to include abortion because of a religious freedom claim,” which is even more bizarre. Do you realize what you’re saying? You’re essentially saying that a private individual or organization can’t have the freedom to offer abortion coverage or to support abortion in some way if it wants to do. I don’t hold that view, and no religious conservative I know of holds that view.

    • Kurt permalink
      August 12, 2014 11:03 am

      It appears that you have no problem with the government closing down any private business for any reason that it can articulate (as long as the reason given is not based on religion, apparently, from your point 2 below),

      No, I’m not a supporter of Prohibition. You are introducing new territory here beyond issue of religious freedom. I used Prohibition because it was an actually existing example from American history, not because it was a state action I support. My point was if you accept Prohibition, what are the accommodations to be made in respect to religious freedom. Would Peyote be a better example?

      the first thought that occurs to me is who determines whether there is a serious practical impediment or not? Wouldn’t you have to say “the government.” And thus your position quickly leads as a matter of logic to the permissibility of the government forcing Jews to live in a ghetto with a curfew

      You’ve hit a key point I expected we would get to. In all of history, no democracy has ever done this to the Jewish people. It has only been done by non-democratic regimes. Without denying Churchill’s admonishment, I believe nothing has proven to be better at protecting human rights and liberties than democratic government. I understand there are others for whom the debate is “how much government” rather than “what type of government.” I think the second question is far more important.

      You don’t have a problem with the government closing all religious businesses... I do have a problem with government closing down businesses because of the religion of the business owner. It is discrimination against the members of that religion. That is different than saying a business can claim an exemption from any law by asserting a religious claim.

      Do you realize what you’re saying? Yes.

      You’re essentially saying that a private individual or organization can’t have the freedom to offer abortion coverage or to support abortion in some way if it wants to do. I don’t hold that view, and no religious conservative I know of holds that view.

      Then you are less pro-life than I am. A number of states (I wish more would) have prohibited employer sponsored group health care plans from including abortion services. I support those laws because I think the state has such regulatory authority AND because I believe it is a good use of that authority. I don’t believe a corporation has a legal right to be exempt from these laws based on a religious liberty claim.

      HL would have a religious freedom objection to a law that mandated abortion coverage.

      It would not. It should have significant other objections, but not a RFRA objection. Gratefully I am confident this is a situation we will not be faced with.

  25. Thales permalink
    August 12, 2014 10:19 pm

    Kurt,

    1. Sorry, not quite following on the Prohibition reference. You ask what accommodations are to be made in respect to religious freedom. Again, I go back to my comments throughout this post: it’s a balancing between the government interest and the religion (with such considerations such as whether the government interest, whether the burden on religion is substantial, whether there is a least restrictive way in order to achieve this interest). A balancing of interests between the individual/family/community and the government is the mark of a civilized society; a denial of such balancing in complete deference to the government interest is a mark of a tyranny.

    2. You’ve hit a key point I expected we would get to. In all of history, no democracy has ever done this to the Jewish people. It has only been done by non-democratic regimes. Nope, incorrect. The first anti-Jewish laws in Germany were democratically-passed. So were Jim Crow laws here in the U.S.

    I believe nothing has proven to be better at protecting human rights and liberties than democratic government. Time to re-read the Federalist Papers and basic American political history. Pure democracy is actually pretty horrible at protecting human rights and liberties — which is why the United States was not set up as a democracy, why we have the Bill of Rights, etc. You can certainly think that simple democracy is the best way of protecting human rights — which necessarily means, under your view, that no individual should have the ability to make a conscientious objection to the draft law, or to object to a law abridging freedom of speech or religion — but that’s not the current set-up we have in the U.S.

    3. It should have significant other objections [to a mandated abortion coverage law], but not a RFRA objection. I still think you’re misunderstanding what RFRA does — there is no independent RFRA objection; it’s a religious freedom objection, and RFRA gives guidelines for how to evaluate whether it should be honored or not. More importantly: what “other objections” could you be referring to? I honestly don’t know what you’re referring to. You’re saying that HL could object to a mandated abortion coverage law? How? And do you realize that I brought up a mandated abortion coverage law, because for HL and other religious businesses, it is in essence legally and morally equivalent to the current mandate? And don’t you see that if you say HL can’t have a valid objection to the current mandate, logic dictates that it can’t have a valid objection to a mandated abortion coverage law?

  26. Kurt permalink
    August 14, 2014 9:15 am

    A balancing of interests between the individual/family/community and the government is the mark of a civilized society; a denial of such balancing in complete deference to the government interest is a mark of a tyranny.

    Yes. I fully agree with you above statement.

    Nope, incorrect. The first anti-Jewish laws in Germany were democratically-passed.

    January 30, 1933 – the Conservative President of Germany, von Hindenburg, appoints Hitler to be Chancellor, heading a minority government. Presidential appointment of a minority is not inherently anti-Constitutional or democratic but is evidence the Nazi-Conservative coalition does not represent popular opinion. February 28, 1933, Chancellor Hitler issues decree suspending the Constitution and civil liberties. March 23, 1933, the Enabling Act is adopted, giving Hitler all legislative as well as executive powers, firmly establishing the dictatorship. April 7, 1933, the first of the anti-Jewish edicts is adopted, banning Jews from the civil service.

    And don’t you see that if you say HL can’t have a valid objection to the current mandate, logic dictates that it can’t have a valid objection to a mandated abortion coverage law?

    You can’t seem to take “yes” for an answer. I don’t believe corporations have a religious freedom claim to object to mandatory benefits in group health care plans. That doesn’t mean I want to see abortion as a mandated benefit. I don’t. I’m grateful that we currently have laws and polices preventing this. In fact, I would go a step further and have the State prohibit abortion coverage in all group health care plans regardless of whatever pro-abortion religious views the corporation has.

    Now, you may have a fear that mandated abortion benefits are right around the corner and therefore my position enables abortion. I don’t have that fear. My fear is that based on the HL decision, why can’t an employer refuse to participate in Medicare because they have a claimed religious objection to some benefit in Medicare (houses of worship can decline participation in Medicare on religious freedom grounds)?

  27. Thales permalink
    August 15, 2014 6:15 pm

    Kurt,

    Okay, we’re getting somewhere. Let’s keep going, if you’re up for it.

    First, let’s set aside the history/political discussion about democracy. I’m interested in thinking about laws that impose some burden on someone or something (whether individual, business, corporation). How that law came about, whether by democracy or a dictator, is irrelevant to the discussion. (Although, I note with irony that the contraception mandate is not actually a law passed by a democracy; it’s a regulation that is passed by the executive, and can get changed by the next President, and probably does not have sufficient support to actually be enacted as a law through our democratic/legislative process.)

    Okay, enough with my random thoughts. Here’s my real point. I’m going to try to summarize where we’re at: So I’ve got a fear that laws might be passed that burden an employer unjustly, and you’ve got a fear that an employer might pass a company rule or policy that burdens an employee unjustly. Is that a fair statement?

    I understand your fear. It’s legitimate. But I think my position better addresses the problem than your position does. Let me explain.

    My position recognizes that *both* the employer and the employee have interests, that *both* might face situations where they are burdened by a law or rule or policy, and that sometimes the burdens experienced by each might be truly unjust burdens. So, take your example. How does my position address it? Well, with my position, if faced with an employer who has your Medicare objection, you recognize that there are religious/conscience/health interests for *both* parties, and you do the balancing of interests I’ve described throughout this post. Doing this balancing of interests, in my opinion, leads to the conclusion that the employer’s Medicare objection shouldn’t be acknowledged (ie, because of considerations like there is an important government interest, the burden on the employer’s religion is not substantial, there is not a less restrictive way in order to achieve this interest, etc.)

    Your position, if I understand you correctly, is that it is *impossible* for an employer like HL to have a religious interest in the first place (I suppose because it is corporation)…and because the employer has *no* interest, it is impossible for the employer to object to any law that imposes some burden on it. Under that position, the employer has no basis for objecting to any law whatsoever. In other words, HL has no basis for saying that an abortion-benefits mandate is a burden; the incorporated Jewish deli has no basis for saying that a non-kosher mandate is a burden; the Catholic hospital has no basis for saying that the law requiring abortions to be performed in the hospital is a burden — all because these are corporate entities who (based on your position) cannot have a religious interest and thus cannot be burdened. We never reach the balancing of interests between the employer and the government interest and/or the employee interest.

    And, if I understand your position correctly, the only way to avoid a law like an abortion mandate is to rely on “democracy” not to pass such a law. Now we all know that democracies pass unjust laws all the time. But more importantly, for some reason, you see a distinction between the contraception mandate and the abortion mandate. (For example, you say,That doesn’t mean I want to see abortion as a mandated benefit. I don’t. I’m grateful that we currently have laws and polices preventing this.) But what is your logical reason for distinguishing between the HL contraception mandate and an abortion mandate? In your view, if HL shouldn’t be able to object to the contraceptive mandate, why would you oppose an abortion mandate for HL (besides saying “I’m not in favor”)?

  28. Kurt permalink
    August 16, 2014 9:04 am

    But what is your logical reason for distinguishing between the HL contraception mandate and an abortion mandate? In your view, if HL shouldn’t be able to object to the contraceptive mandate, why would you oppose an abortion mandate for HL (besides saying “I’m not in favor”)?

    Just to be clear, I’m not suggesting HL or its owners may voice an objection and petition their legislators for redress of their grievances. I believe abortion should not be a basic benefit in group health care plans because abortion is the taking of a human life. I believe contraception is not the taking of a human life but a widely used pharmaceutical in which not every couple using it is acting immorally.

    Also, in your side reference to a Catholic hospital, I believe you previously accepted an understanding I was not saying religious organizations be included.

    First, let’s set aside the history/political discussion about democracy

    Again, I just want to be clear, democracy is absolutely central to my social philosophy. To me, it would be like saying, let’s set aside your Catholicism as we talk about morality.

    Lastly, I would be interested in hearing from you why you think (if you do), post-HL, a business should not be allowed a religious exemption from Medicare as houses of worship currently enjoy?

    • Thales permalink
      August 16, 2014 10:51 pm

      Kurt,

      1. I’ll start with your Medicare question and get it out of the way first. I’m not knowledgeable about Medicare, how it operates, how employers are involved, why houses or worship are exempted and the reasoning behind that, etc. But my gut feeling is that it would pass the balancing of interests that I’ve described above: that there is a compelling government interest and there is no less restrictive way to achieve the interest, and therefore, if an employer tried to claim an exemption because of religion, the exemption shouldn’t be recognized.

      2. Now onwards. We’re getting close to the point I’m trying to make. Just a little further.

      Sometimes you misunderstand my comments. Maybe it’s a function of not speaking face-to-face. When I said “let’s aside the history/political discussion about democracy”, I was referring to the fact that I didn’t want to get into a side discussion about the nature of democracy, the political history of Germany or the US, and the nature of our current political system. I wanted to focus on the concept of a law (regardless of whether that law is passed by a democracy or a dictator or a regulatory body or whatever) that happens to be a burden on someone or something.

      I’m sure that you understand this basic point, but I have to emphasize it, because it is at the center of the discussion I’m trying to have. You agree, don’t you, that it’s possible for a law to be unfair or unjust, right? The Nazi-anti-Jew laws were unfair and unjust, just as were Jim Crows laws. Agreed? And these laws were unfair and unjust because they are imposing some unfair or unjust burden on the people affected by these laws, right? That they were affecting certain people in an unfair or unjust way? Again, I have to emphasize this point, because it’s so central — but if we can’t agree on this point, our discussion is going to stall.

      Next step. So, you say that you would be against the abortion mandate and that “HL or its owners may voice an objection and petition their legislators for redress of their grievances.” Okay, so people might not like the abortion mandate and can petition their legislators. But I’m getting at something more —- namely, this important question: Do you think that the abortion mandate law is unfair or unjust to HL or its owners? That the law affects HL in an unfair or unjust way? In other words, do you think that the law puts an unfair or unjust burden on HL or its owners?

      Consider the distinction I’m making: suppose I live in California, and the state of New York forces all hospitals to provide abortions. I would be against the law, and I could petition legislators to change it. But the law wouldn’t affect *me*, it wouldn’t be unfair or unjust to me, it wouldn’t be an unfair or unjust burden to me. It would be an unjust or unfair burden to the New York hospital that was being forced to comply with the law. (I’m using the hospital-abortion example, because I’m trying to think of situations where we would both agree that a law is being unjust to an institution.) Apply that distinction to HL: do you think it is possible for there to be a law which imposes an unfair or unjust burden on HL?

      • Kurt permalink
        August 17, 2014 2:48 pm

        Do you think that the abortion mandate law is unfair or unjust to HL or its owners?

        I very strongly feel such a law is unjust to unborn babies. It is rather difficult for me to ignore that and see it just as matter of injustice to the corporation and stockholders.

        Maybe we could get more clarity if you offered a case where a corporation was unjustly being made to participate in a morally neutral act. My limited mind isn’t coming up with an immediate example, but if you could propose one, I would he happy to respond.

        But my gut feeling is that it would pass the balancing of interests that I’ve described above: that there is a compelling government interest and there is no less restrictive way to achieve the interest, and therefore, if an employer tried to claim an exemption because of religion, the exemption shouldn’t be recognized.

        I appreciate that. This would be a case where the law clearly recognizes a religious exemption for religious organizations but whatever distinctions you and I have on the issue of religious exemptions for corporations, I think we agree that it is not the same as the exemption owed to churches and religious organizations.

        Also, I don’t think we disagree on the proposition that there should be a balancing of interests on claims of religious freedom. While we’ve been very focused on one particular case, maybe our real difference is not the degree but the forum. I think that balancing of interests is achieved better than anyplace else in the legislative process in a parliamentary democracy. It seems you think that is best done in the Courts. I don’t have a perfectly convincing response to that. My view is mostly based on my experience and observation. Certainly the behavior of the current Congress doesn’t help much in convincing people of my view that Congress rather than the Courts is where this balancing should take place.

  29. Thales permalink
    August 17, 2014 9:02 pm

    Kurt,

    I very strongly feel such a law is unjust to unborn babies. It is rather difficult for me to ignore that and see it just as matter of injustice to the corporation and stockholders.

    Well, I haven’t been talking about corporations with stockholders. I’ve been talking about closely-held corporations, small businesses, and sole proprietorships. I’ve been talking about a person or a small group of people who are controlling and running a business in a certain way, and are now being required to operate their business in another way.

    Maybe we could get more clarity if you offered a case where a corporation was unjustly being made to participate in a morally neutral act.

    I don’t understand what you’re getting at by asking about morally neutral acts. Usually, if you’re asked to participate in a morally neutral act, it’s not a violation of your conscience, and therefore, it’s not an unjust burden. The injustice most often comes from being made to participate in an immoral act against one’s conscience. Being made to violate one’s conscience, which often is the result of being forced to participate in a morally suspect act — that’s where there comes to be an unjust burden. But if you’re interested in “morally neutral acts”, I guess I’d point to those things which most consider morally neutral, but which might still be a violation of the business owner’s conscience. So: suppose a Seventh Day Adventist owns a store and there is a law requiring him to keep his store open all seven days. Or suppose a pacifist owner of a metal-working shop is required by law during war time to change his production to armaments. Or take the Orthodox Jewish deli owner who is required by law to serve non-kosher food. These are arguably requests to participate in “morally neutral acts” but which remain conscience violations.

    I think “morally non-neutral acts” better illustrate the point I’m trying to make, because the burden on the one being asked to participate in it is more obviously unjust. Take my abortion-hospital example: Don’t you agree that it would be an unjust or unfair burden to the Catholic hospital that was required by law to start providing abortions?

    While we’ve been very focused on one particular case, maybe our real difference is not the degree but the forum.

    No, that’s not our disagreement. I’m not thinking about the forum whatsoever — the forum is irrelevant to me. Maybe I’m wrong, but it’s been my impression that your position all along is that closely-held corporations, small businesses, sole proprietorships, etc. *cannot* hold claims of religious freedom in the first place (and therefore we never get to a balancing of interests.) My whole project here has been to show the incoherence of that view.

  30. Kurt permalink
    August 18, 2014 10:43 am

    Well, I haven’t been talking about corporations with stockholders. I’ve been talking about closely-held corporations, small businesses, and sole proprietorships.

    ….

    Maybe I’m wrong, but it’s been my impression that your position all along is that closely-held corporations, small businesses, sole proprietorships, etc. *cannot* hold claims of religious freedom in the first place (and therefore we never get to a balancing of interests.) My whole project here has been to show the incoherence of that view.

    Well, this may show the benefit of dialogue. That is not my position. I’m actually somewhat agnostic about that. Maybe you can help me. I think we have some general agreement about widely held stock corporations. And I am certain we are in total agreement about unincorporated businesses.

    I also understand the balancing of interests that takes place in the legislative process hence, for example, the small business exemptions in the Affordable Care Act and other legislation.

    But here is the reason for my agnosticism on the narrow range of businesses you mention. On the one hand, I understand the business owners may feel a more direct connection to the actions of their business than do stockholders in a widely held corporation. On the other hand, they have taken a deliberate and significant effort to form a corporation for the specific purpose so they cannot be held responsible for company actions. So that is the reason for my indecision. The business owners seem to be picking and choosing what action’s of the business are actions of themselves.

    On the practical level, I’m opposed to any law or regulation that has no public purpose. And in many situations, the public purpose of laws on employers is served so long as the “commanding heights” of the economy are covered, leaving small business or some other narrow range exempt. So sure, exempt those business whose owners have some feelings against a particular law or regulation. But on the philosophical level, I have less sympathy because unlike an unincorporated business, these owners have created a legal entity to separate themselves from the company. If you have advice on clarifying this, it is welcome.

    • Thales permalink
      August 26, 2014 10:31 pm

      Kurt,
      Sorry I haven’t responded lately. I got busy with work, and I lost energy after reading your comment, because it made me think that we just made a big circle, going right back to my attempt to start a new discussion on July 30th.

      I think we have some general agreement about widely held stock corporations. And I am certain we are in total agreement about unincorporated businesses.

      What do you mean, that “we are in agreement”? Are you saying that you agree with me that an owner/employer of an unincorporated business might have his religious freedom burdened by a law that forces him to run his business in a way contrary to his conscience? Whew. If you agree with me on that one, I’ll be satisfied for the time being, because I had spent a lot of my energy trying to establish that very fact, since for a while I thought you were denying it. (The obvious follow-up question is why a Jewish deli owner has religious liberty to run his deli the way he wants to if he doesn’t incorporate it, and why he automatically loses this liberty the moment he creates a corporation. You see a reason for the difference between the two; I don’t see such a reason. But we can leave this point for now.)

      Two last thoughts. You don’t have to respond; we can have another discussion another day, but I have two last thoughts.

      1. It appears to me that the position of the HL dissenters/Justice Ginsburg is contrary to the point that we agree on above. That is, it appears to me that HL dissenters/Ginsburg would say that no employer–not even an unincorporated business–can or should be able to exercise religious liberty or assert a claim of violation of religious liberty in the face of a law that imposes some requirement on the business.

      2. It appears to me that the logic of the HL dissenters/Ginsburg would mean that even assuming the unincorporated business could exercise religious liberty, an abortion mandate would not be an unreasonable burden on the business — in other words, an unincorporated business would have no legitimate objection to an abortion mandate, based on the reasoning of the HL dissent.

      • Kurt permalink
        August 29, 2014 3:02 pm

        Kurt, Sorry I haven’t responded lately. I got busy with work

        nothing to be sorry about. Totally understandable.

        Are you saying that you agree with me that an owner/employer of an unincorporated business might have his religious freedom burdened by a law that forces him to run his business in a way contrary to his conscience?

        Yes.

        (The obvious follow-up question is why a Jewish deli owner has religious liberty to run his deli the way he wants to if he doesn’t incorporate it, and why he automatically loses this liberty the moment he creates a corporation

        “He” doesn’t lose his religious liberty. He has taken an action to make it a point of law that the deli is not “him”.

        It appears to me that the position of the HL dissenters/Justice Ginsburg is contrary to the point that we agree on above. That is, it appears to me that HL dissenters/Ginsburg would say that no employer–not even an unincorporated business–can or should be able to exercise religious liberty or assert a claim of violation of religious liberty in the face of a law that imposes some requirement on the business.

        You might see that in some passing comments; I don’t. Given the case under discussion exempts small employers, I don’t think too many other commentators were deeply focused on this theoretical point. If they were to clarify that they did mean to include unincorporated businesses, I would respectfully disagree with them.

        It appears to me that the logic of the HL dissenters/Ginsburg would mean that even assuming the unincorporated business could exercise religious liberty, an abortion mandate would not be an unreasonable burden on the business — in other words, an unincorporated business would have no legitimate objection to an abortion mandate, based on the reasoning of the HL dissent.

        Abortion should be prohibited in all insurance plans even if that is contrary to the religious principles of a pro-abortion boss.

        • Thales permalink
          September 1, 2014 11:12 pm

          Kurt,
          Re: the unincorporated deli v. incorporated deli
          As I said, we’ll have to disagree about this point. I don’t see any difference the owner running his deli under either scenario — you do. One more wrinkle to add: what about the fact that there are such things as non-profit corporations, and that churches are sometimes incorporated. Does that mean, under your view, that a non-profit incorporated church can’t exercise religious liberty (or have its religious liberty burdened) because the church is not “them” (ie, the members of the church) but a separate corporate entity incapable of exercising religion? Odd.

          Abortion should be prohibited in all insurance plans even if that is contrary to the religious principles of a pro-abortion boss.

          Again, I get that that’s your personal belief. But I’m not worried about you — I’m worried about all the people who think that abortion *should* be included in all insurance plans. And if those people get their way, I’m bothered by the fact that your anti-Hobby Lobby position says that business owners wouldn’t be burdened by this abortion mandate.

  31. Kurt permalink
    September 3, 2014 8:55 am

    Thales,

    I was hoping you would develop your thinking as to why a widely held corporation is different from a closely held corporation on this question. But in many ways, I don’t think our differences are that profound. I’ve explained previously why churches and self-declared religious non-profits should be exempt. So there we have no disagreements and my reasoning is somewhere above on this thread.

    On the abortion issue, yes, I’m not where you are. I’m not ready to throw in the towel on abortion coverage in 99% of plans, hoping to get a religious exemption for the 1% of private employers who might seek it. Further troubling to me, your position also would have me give up my support for laws against race and gender discrimination by private employers who have a sincere religious view to the contrary. I’m not ready to go there. A Baptist congregation is free to hire based on their religious principle that the husband is the headship of the family. Even accepting totally sincerity on the bosses part, I’m not ready to allow a private corporation to discriminate against women.

    You and I are in common cause against abortion. I just think you’ve picked the wrong battlefield here.

    To your major point, the New York Times today had an interesting article by Steven Solomon. He note the HL decision (particularly Justice Alito statements) held that in some cases the interests of the corporation and the owners are one and the same. Solomon raises a legal theory of, given that principle, the Courts should find that the owners also have liability for actions of the corporation. I’m open to exploring this thinking and it would help me come to accept the HL decision. Should closely held corporations have the broad liability protection widely held corporations have?

    • Thales permalink
      September 3, 2014 9:47 pm

      Kurt,

      I was hoping you would develop your thinking as to why a widely held corporation is different from a closely held corporation on this question.

      I hadn’t realized you wanted to know this. I thought I’ve already told you that I see a distinction between the two. The reason for the distinction is particularly well explained, in my opinion, in the majority decision of the Hobby Lobby case. The whole discussion about how certain types of corporations (or other business owners) can exercise religion vs. widely held corporations is quite good. Check it out. It’s section III.

      http://www2.bloomberglaw.com/public/desktop/document/Burwell_v_Hobby_Lobby_Stores_Inc_No_13354_and_13356_US_June_30_20

      I’ve explained previously why churches and self-declared religious non-profits should be exempt.

      Have you? I might have missed that. Not trying to be snarky at all; I’m genuinely curious to see why you think a religious non-profit corporation is different from a for-profit closely-held corporation. Is it because sometimes the law says there is a difference? I get that the law says that sometimes, but that is not actually a real answer to why a for-profit corporation can’t exercise religion but a not-for profit corporation can. (Again, check out the Section III discussion in HL for some interesting thoughts on this.)

      Further troubling to me, your position also would have me give up my support for laws against race and gender discrimination by private employers who have a sincere religious view to the contrary.

      Heh. Now, I feel like I’m repeating myself. My answer to you is “no, you don’t have to give up support for laws against that kind of discrimination.” My position is that you recognize that there is a government interest and that there is a religious interest of the private employer — and you do the balancing of government interest v. religious interest of private employer, and the government WINS in that particular case (because the strong government interest, no least restrictive means, etc., etc.).

      And I think my position is in contrast with the HL dissent’s position (and maybe your position if you’re siding with the HL dissent?) which says either (1) there is no balancing that happens at all, because the private employer can’t ever exercise religion in the first place, and thus the government always wins, or (2) even assuming the private employer can exercise religion, when we do a balancing of interests, the government always wins even if it’s forcing employers to provide abortions.

      That, in a nutshell, is why I think the HL dissent is wrong and misguided.

      To your last point: I’m open to the possibility that closely-held corporations would have different standards and protections than widely-held corporations. I’m not an expert, but it seems to me that differences are already present naturally, due to such thing as the presence (or absence) of shareholders vs. owners, the differing ways the corporation is structured, etc., and it would make sense to me that things like fault and liability would attach differently to the different corporate structures.

  32. Kurt permalink
    September 4, 2014 9:52 am

    I understand your position that the government has a legitimate interest in taking away a private employers’ claims of religious liberties in matters of gender discrimination but not in health insurance. But it is sort of like my position on abortion. You can’t guarantee others share your opinion as to what is a legitimate government interest and what is not.

    If I and others feel that the legitimate interests of the government (or, as I would say, the public through their democratically elected representatives) are the same in this case and in gender discrimination, then where do we go from there?

    Now, I appreciate your concern for a balancing of interests. I don’t disagree with you. In fact I go further. Through the legislative process, there should be a balancing of interests. As I said, not strictly on religious liberty but with a general view that government should not impose mandates without a legitimate public purpose — small government is good government. Through congressional hearings, committee deliberations and House and Senate floor debate, various concerns should be considered. An atheist who opposes contraception because he thinks it is unhealthy has the right to be heard just like a religious opponent of contraception. Certainly corporations, who employ more lobbyists than any other social element, are not incapable of participating in this balancing of interests even if they don’t always get their way. I would point to the exemption of all small businesses from the contraceptive mandate. To me, that is an indication that there was a balancing of interests. I believe you previously said that you could accept that this balancing take place in the legislative process and need not be exclusively in the Courts.

    Lastly, we may have different understandings of how HL is structured. I believe it is a stock corporation, although the stock shares are held only by five people. Legally that is different from a partnership with five partners. Again, I think a weak point in the HL defense is that the corporation is “us” when they want it to be and is “not us” when they don’t. I would have more sympathy for their position with a consistent sense of responsibility for the corporation.

    Still, I think our difference are relatively minor.

    • Thales permalink
      September 4, 2014 11:06 pm

      Kurt,

      Okay, maybe we’ve come to a tentative agreement, as there is not much I disagree with here in your last comment.

      Yes, there should definitely be a balancing of interests at the legislative process. Yes, yes, definitely yes. That’s the first and most important time when different interests are balanced. (Again, I’ll note as an aside that the contraceptive mandate was not imposed through a legislative balancing of interests — and that it most likely would fail if it were proposed to be passed through legislation.) Now the whole idea behind RFRA is that Congress said to the Courts, “Courts, in addition to the balancing of interests that we do when we create legislation, because we think religious liberty is important we want you to scrutinize our laws *a second time*, and to do a balancing of interests *a second time*, using this particular standard — namely, see if there is a compelling government interest achieved by a least restrictive means.”

      If I and others feel that the legitimate interests of the government (or, as I would say, the public through their democratically elected representatives) are the same in this case and in gender discrimination, then where do we go from there?

      Simple. Ideally, you pass the law through the legislative process where there can be a healthy debate and consideration of the legitimate interests of the government vs. whatever other competing interests there might exist. (I.e., imposing the law by means of an administrative rule is not ideal.) The law is passed. Maybe the law is challenged under RFRA and the Courts are asked to take a second look at it. At that point, you then argue that there is a compelling government interest that cannot be achieved by a less restrictive means. And that’s exactly what happened here. And the Supreme Court found that this case failed the “compelling government interest that cannot be achieved by a less restrictive means” test.

      We haven’t really gotten into a discussion about this RFRA test. Do you think the Supreme Court got it wrong on that test? Do you really think that the HL mandate is the least restrictive means to achieve the government interest? Don’t you see that the HL mandate fails the “least restrictive means” step? The government interest is for people to get contraception — and the HL mandate is obviously not the least restrictive means for the government to further that interest because the government is achieving that same interest under the “accommodation” method that is being offered to religious institutions. This is in contrast with, say, the government interest in preventing racial discrimination in public accommodations — there is no “less restrictive” way to prevent racial discrimination in public accommodations besides actually prohibiting racial discrimination in public accommodations.

      • Thales permalink
        September 4, 2014 11:29 pm

        I forgot to mention the other option available to you when you are passing a law: you pass it with a provision saying that you don’t want the Courts to do a second RFRA review of it. Simple.

  33. Kurt permalink
    September 5, 2014 10:10 am

    Thales,

    Actually I don’t have a problem with most everything you have posted. Just a few quibbles — this wasn’t an administrative action that came out of the blue. Congress deliberately gave HHS the authority to come up with a list of basic benefits and the exchange in Committee between Senators Mikulski and Hatch (I was present for this) clearly indicated that on the issue of contraception, both sides expected it would be included. Opinion polls show majority support for contraceptive benefits, so I think the public is with me on this. I do notice that the GOP candidates seems to be running away from the contraceptive issue on the campaign trail while the Democrats regularly seek to talk about it.

    Our difference is that while according all of the rights you mention on religious liberty to individuals, I simply agree with the authors of the RFRA that the second opportunity for a balancing of interests was not intended to apply to for-profit corporations. But that is a point I am more concerned with for future cases. The HL decision, for good or bad, has resulted in what you’ve sought — a new accommodation for objecting businesses. I can live with that as it seems to sufficiently guarantee contraceptive access. It doesn’t resolve my broader position that with rights comes responsibilities and stock corporations like HL seem to be picking and choosing when it suits them. But one can’t have everything so I’ll accept the victory on birth control access even with the loss of corporate responsibility.

    Our dialogue has produced at least some agreement, hasn’t it?

Comments are closed.

Follow

Get every new post delivered to your Inbox.

Join 867 other followers

%d bloggers like this: