MyQuest | my thoughts on life's journey

What is religious? More on the bishops lawsuits

First, E. J. Dionne writes about disagreements within the conference of bishops.  He reminds us that the vast majority of bishops have not entered into these lawsuits and that many feel they are politically motivated, participating in Republican attacks on the president.

Cardinal Wuerl writes an op-ed explaining his position in suing the administration.  The essence of the argument is that the government is definining what is and isn't religious and that that should be left to religious bodies.

This seems like a red herring to me.  Let me explain.

The United States has long (for one hundred years) been debating how to improve health care access.  It was a major part of the discussion and debate in the 2008 presidential election.  This led to the Affordable Care Act, passed by the elected representatives of the American people (even if many of us find the final bill flawed and lacking in the broad scope and radical change we had sought).

As part of that decision, we collectively chose that women had a right to access to contraception.  Since our current (still deeply flawed) system is for health care to be provided by employers rather than a single socially supported system, that meant employer-based health insurance systems would have to provide for this right.

This raises issues for religious-based employers, so it was left to the Department of Health and Human Services to decide where to draw the line in what is clearly a gray area.  And that is what the Department did.  You can disagree with how the line was drawn and advocate for a change, that makes sense, but the cardinal's language is overwrought.

The "government" (he sounds like Grover Norquist when he uses the word) is not deciding what is and is not religious.  The Dept. of HHS was making a policy decision of how to apply the religious exemption.  The department is not saying that schools and hospitals and social service agencies are not "religious," only that they do not qualify for the religious exemption from providing this right to their employees.  Government agencies and courts do make these sorts of decisions all the time, and it is not anything radically new.  There are also clearly established constitutional and legal guidelines for adjudicating these things (for example, if there is a "compelling interest," we can do something that violates religious conscience or practice).

And one more point, which I've made before, all of us end up participating in systems and contributing funds to things that violate our consciences.  I believe in non-violence.  My taxes support wars that I believe are immoral.  I cannot seek to opt out of this, nor should I.  And, interestingly, the Roman Catholic Church holds similar positions on war and violence, but you don't hear them making these objections anywhere nearly as big an issue as being told that they must provide what the larger society feels is a right of women's health.

Contraception and the Constitution

With the filing of all these lawsuits, we will get a definitive ruling on the meaning of constitutionally protected religious liberty.  Here is a good article in the Daily Beast outlining the issues and how Scalia's own precedent should mean a ruling in favour of the Obama administration, but you never know what this SCOTUS will do.

Transgender breakthrough

From the EEOC:

 ''[T]he Commission hereby clarifies that claims of discrimination based on transgender status, also referred to as claims of discrimination based on gender identity, are cognizable under Title VII's sex discrimination prohibition ....''

A huge breakthrough.  A great victory.  

Previously we've had to include the categories of gender identity and expression in order to make sure the law explicitly covered trans persons.  Now it will cover them under the sex category, which already exists in laws across this country!

Fugitive Slave Law and the Trayvon Martin case

A NYTimes column explains the similarity between Chief Lee's reasoning for not arresting Zimmerman (reasoning now disputed by both facts and thorough analyses of Florida law) and the reasoning used in Fugitive Slave Law cases.  The result of Lee's interpretation:

In short, it appears that whites (or other non-blacks) may hunt down blacks with immunity from arrest so long as they leave behind no clue that they were not acting to defend themselves; or, to echo Martin Delany, that Florida’s Stand Your Ground law threatens to render some citizens subject to the arbitrary wills of others.

If it seems a stretch, finally, to paint Zimmerman in the image of the slave catchers of yesteryear, recall that he himself invited the comparison when, while stalking the African-American teenager against the advice of a 911 dispatcher, he complained, using an expletive to refer to Trayvon, that they “always get away.”

 

ACA case is about freedom . . . but in a dark way

Dahlia Lithwick of Slate writes about the questioning over the individual mandate and finally comes to understand why the right has kept talking about this being an issue of freedom.  They want to be free of of covenant, our social contract, our commitment to the common good.  Lithwick writes:

This morning in America’s highest court, freedom seems to be less about the absence of constraint than about the absence of shared responsibility, community, or real concern for those who don’t want anything so much as healthy children, or to be cared for when they are old. Until today, I couldn’t really understand why this case was framed as a discussion of “liberty.” This case isn’t so much about freedom from government-mandated broccoli or gyms. It’s about freedom from our obligations to one another, freedom from the modern world in which we live. It’s about the freedom to ignore the injured, walk away from those in peril, to never pick up the phone or eat food that’s been inspected. It’s about the freedom to be left alone. And now we know the court is worried about freedom: the freedom to live like it’s 1804.

E. J. Dionne criticizes the hearings on the Affordable Care Act

Dionne points out how the justices acted more like legislators discussing the merit of various portions of the law rather than discussing the constitutional points at issue.  He further discusses the individual mandate and its origin in conservative political policy, rooted in our social contract with one another.

I found this paragraph important as well:

Liberals should learn from this display that there is no point in catering to today’s hard-line conservatives. The individual mandate was a conservative idea that President Obama adopted to preserve the private market in health insurance rather than move toward a government-financed, single-payer system. What he got back from conservatives was not gratitude but charges of socialism — for adopting their own proposal.

More on Trayvon Martin

I've read two very good analyses tonight.  

The first dissects the Florida law and shows that the stand your ground law doesn't apply and even if it did that there was still probable cause to arrest Mr. Zimmerman.  It makes more carefully and thoroughly some of the points regarding self-defense, being the aggressor, and justifiable use of deadly force I made in my previous post on the subject.

This second article is an opinion column (which directed me to the first analysis) which criticizes the social flaws that led to this situation, including the lobbying efforts of the NRA, which were pormulgated by the "law and order crowd" but have led to more violence.  Here is the conclusion:

And that's really what this case is all about - and what the NRA and ALEC's rewriting of gun laws is all about as well. On one side, there is the long-standing common law requirement of acting in a reasonable manner, and standing in judgment before one's peers. On the other side - by reshaping the letter, the spirit, and the interpretation of the law - lies vigilante "justice" - the individual or mob as judge, jury and executioner, all in one and all at once. Whatever they think, want, feel or do in the moment is by definition "reasonable". Questioning them in the slightest is not. It could get you killed.

As previous privileges drain away over time, and the letter of the law actually comes to protect those who formerly had few, if any, rights that were actually protected, those whose privileges have been eroded want the old order back, and vigilantism is one way to get it.

 

My thoughts on the Trayvon Martin case

I was very disturbed from the first time I heard of this story and continue to be, the more facts that are reported.  Setting aside my visceral reaction, there is a reasoned, philosophical problem with not arresting and charging the killer.

At the root of our understanding of the role of force, and particularly deadly force, in civilized society is Lockean social contract theory.  In the state of nature we possess the right to use force, including deadly force.  When we enter into the social contract, we surrender that right to the state.  Only in situations of self-defense do we maintain that right.  As I see it, there are two major areas of problem with the Martin-Zimmerman case.

First, Mr. Zimmerman was not justified in his use of deadly force against Mr. Martin.  One maintains the right to self-defense within the social contract, but one is only justified in using the level of force necessary to respond to the force used against you.  You cannot shoot someone for yelling at youor simply throwing something at you.  You can only use deadly force when deadly force is being threatened against you.  That means even in a fist fight where all the parties are doing is beating the crap out of each other, deadly force is not justified if deadly force is not used or threatened.

To this end, there is absolutely no grounds to justify Mr. Zimmerman's using deadly force against Mr. Martin.  If Florida law actually does allow Mr. Zimmerman to use deadly force in this situation, then the law itself is unjustified and morally wrong and must be condemned.  

If Mr. Martin yelled at Mr. Zimmerman, charged at him, threw his skittles at him, kicked him, or even punched him -- none of these would justify Mr. Zimmeran using deadly force in response.  And there is no evidence as yet that Mr. Martin even acted in these ways, but even if he did, it would not justify deadly force.  Mr. Zimmerman, philosophically and ethically, should be investigated and, if the facts bear out, charged with murder.

The second issue is that Mr. Zimmerman was the aggressor.  Zimmerman disobeyed law enforcement and followed Mr. Martin.  It appears that Mr. Zimmerman then confronted Mr. Martin.  Mr. Martin's reponse, whatever it was, was in response to an escalation by Mr. Zimmerman.  If self-defense is at issue in this situation, it would be for Mr. Martin to claim.  Mr. Zimmerman was the one who escalated the situation and, it appears, was the aggressor.  It seems clear to me that he cannot, then, justify his use of deadly force because he was the one who escalated the situation to that level, not the victim.

So, even without race getting involved in the analysis of the situation, and I firmly believe that race was at issue, one should conclude, given the facts we currently have, that Mr. Zimmeran should be arrested for the unjustified homocide of Mr. Martin.

Is there a fundamental right to marry?

Ezra Waldman does a fine, brief analysis of recent court rulings, and how ultimately the decisions will likely go in favour of full marriage equality for LGBT persons if the courts follow existing precedents.

Assault on the First Amendment

The NYTimes rightly criticizes the Catholic bishops for their assault on the first amendment in their criticism of the contraceptive rule and other recent moves.  Some excerpts:

But the real departure from the Constitution is their specious claim to a right to impose their religious views on millions of Americans who do not share them. Virtually all American women, including Catholic women, use contraceptives sometime in their lives. In essence, the bishops and their allies are arguing that they are above the law and their beliefs should be elevated over pressing societal interests.

The political ruckus over the issue has tended to obscure a central fact: the legal case against the policy is remarkably weak. The contraception benefit is plainly constitutional and a proper exercise of government power under Supreme Court precedent and a federal law dealing with exercise of religion.

Next in the colsumn comes a good analysis of existing court precendent and federal law, including Justice Scalia's Smith decision "The justices said the First Amendment’s protections do not mean individuals are free to violate valid laws simply by claiming a sincere religious objection. To 'make the professed doctrines of religious belief superior to the law of the land” would have the anarchic effect of permitting “every citizen to become a law unto himself,' Justice Scalia wrote."

Maybe the gist of the entire issue is here, "The rule does not interfere with church governance, prevent anyone from voicing opposition, or force anyone to use contraceptives in violation of religious beliefs."

Conclusion:

Opponents of the contraception rule claim the fight isn’t about birth control, but religious liberty. It’s about both, though they are right that the battle for religious exemptions goes well beyond birth control coverage — to employment discrimination, zoning, mandated reporting of child abuse, a pharmacist’s duty to fill valid prescriptions and that of hospitals to give life-saving emergency care. And now, the bishops and conservative religious groups are lobbying to get Congress to pass a law that would let any private employer opt out of covering any medical treatment as a matter of faith. That is an outrageous assault on the First Amendment.