Justice Ginsburg Shoots Down a Dumb Conservative Argument

Our era’s radical Republicans are willing to take a conservative position when it suits them. Thus, during the recent Supreme Court argument regarding same-sex marriage, the right-wingers on the Court pointed out that marriage has involved a man and a woman for thousands of years. From ThinkProgress:

The Court’s conservatives [sic] fixated upon their belief that same-sex marriages are a very new institution. “Every definition [of marriage] I looked up prior to about a dozen years ago,” Chief Justice John Roberts claimed, limited marriages to opposite-sex couples. Advocates for equality, Roberts continued, are “seeking to change what the institution is.” Meanwhile, Justice Samuel Alito argued that even “ancient Greece,” a society he perceived as welcoming to same-sex relationships, did not permit same-sex marriage. Justice Antonin Scalia insisted that “for millennia, not a single society” supported marriage equality.

A natural response would have been: “Of course, and now we’re changing that. Sometimes we make progress”. Justice Ginsburg, however, pointed out that for thousands of years marriage was legally defined as a relationship between a dominant man and a subordinate woman. A further ThinkProgress article on the subject quotes the 18th century legal authority Sir William Blackstone:

…the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything.

Traditionally, wives were subservient to their husbands. Being married wasn’t a relationship that two men or two women would ordinarily enter into. Today, however, the law considers marriage to be a relationship between equals. Since marriage is now egalitarian from a legal perspective, it makes sense for anyone who wants an equal partner, whether that partner is of the opposite or same sex, to want to be married. Since there are benefits to being married, and since being able to procreate isn’t a requirement, justice dictates that any two adults who want to get married should be allowed to.

Five Bad Men Screw Us Again, Part 2

(1) As further evidence that the all-male, all-Roman Catholic, all-Republican majority on the Supreme Court is willing to sacrifice legal principles to ideology, consider this statement from Justice Alito’s opinion: “A corporation is simply a form of organization used by human beings to achieve desired ends”.

Among those ends, however, is limiting the liability of the corporation’s owners, as discussed in this article from Mother Jones. The author explains how ascribing the owners’ religious beliefs to a corporation undermines the idea of a corporation:

[Quoting from an earlier Supreme Court decision:] “Linguistically speaking, the employee and the corporation are different ‘persons’, even where the employee is the corporation’s sole owner. After all, incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.” 

That separation is what legal and business scholars call the “corporate veil,” and it’s fundamental to the entire operation. Now, thanks to the Hobby Lobby case, it’s in question. By letting Hobby Lobby’s owners assert their personal religious rights over an entire corporation, the Supreme Court has poked a major hole in the veil. In other words, if a company is not truly separate from its owners, the owners could be made responsible for its debts and other burdens.

(2) The Hobby Lobby ruling was supposedly a limited one. But anytime the Supreme Court rules, lower courts invariably extend the Supreme Court’s “logic” to other cases. Believe it or not, the Supreme Court itself has already ordered lower courts to do just that, as Mother Jones reports:

Less than a day after the United States Supreme Court issued its divisive ruling on Burwell v. Hobby Lobby, it has already begun to toss aside the supposedly narrow interpretation of the decision. On Tuesday, the [Court] ordered lower courts to rehear any cases where companies had sought to deny coverage for any type of contraception, not just the specific types Hobby Lobby was opposed to.

In related news, religious leaders have written to the White House asking that proposed regulations regarding the hiring of lesbian, gay, bisexual and transgender people by federal contractors include a religious exemption.When this issue comes to the Supreme Court, we can expect the Republican majority to agree that discriminating against people based on their sexual orientation and even their gender is one more religious belief the government should not burden.

(3) In maybe he most bizarre development of all, the Court yesterday granted a request from Wheaton College to be temporarily exempted from filling out and distributing copies of a particular government form. The form in question allows a non-profit religious organization to declare its opposition to insurance coverage for contraceptives. From the Supreme Court’s ruling:

The applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.

Instead, the Court said it would be sufficient to send a letter to the Department of Health and Human Services stating the organization’s opposition to contraception without identifying its health insurance issuer or third-party administrator. Apparently, the majority agreed that the prescribed use of Form 700 would constitute a serious burden on Wheaton College’s religious beliefs, while sending a letter to the government wouldn’t or didn’t.

The three women on the Supreme Court pointed out the absurdity of this latest ruling in a dissent called “unusually fierce” by the New York Times. Justice Sotomayor stated that this latest ruling “undermines confidence” in the Court. She also pointed out what should be obvious to everybody:

Thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.

(5) Remember to vote, even in mid-term elections like the one four months from now, and, most importantly, never vote for a Republican.

Five Bad Men Screw Us Again

I didn’t want to write about the Supreme Court decision in Burwell vs. Hobby Lobby Stores. That’s the recent case in which the Republican majority ruled that a corporation can refuse to provide health insurance for certain kinds of contraception on religious grounds. However, one way to stop thinking about something is to write about it, and this is not a subject that’s fun to think about:

1) It’s no coincidence that the five Republicans on the Supreme Court are prone to rule against and ignore the rights of women to end or prevent pregnancies. Those five Republicans are all Roman Catholics.

2) Having previously declared that corporations should be allowed to spend on political campaigns because they have the same right to free speech that people do, the Republican majority has ruled again that corporations are no different from people. The law at issue in Burwell vs. Hobby states that the government should not “substantially burden a person’s religious beliefs”. Although corporations are treated as persons in some legal contexts, and it’s proper for the government to respect people’s religion up to a point, it makes no sense to ascribe religious beliefs to a corporation.

In addition, people’s right to practice their religion as they wish does not give them the right to harm other people. According to the majority opinion, however, a corporation can not only have religious beliefs, those beliefs should be honored even though acting on those beliefs negatively affects the corporation’s employees, their families and the rest of society (one of the majority’s suggestions is that taxpayers pay for contraception if corporations won’t – as if the Republicans in Congress would agree to that). 

3) Religion can be a wonderfully flexible way to justify all kinds of behavior. In this case, the corporations claimed that dropping all health insurance coverage for their employees, so that their employees could instead get insurance through the government-run exchanges, would also infringe on their (the corporations’) religious beliefs, even though allowing their employees to use the government exchanges would save the corporations money and benefit their employees. “It is our firmly-held, specific religious belief that you should get your health insurance through our company instead of a government website, but it shouldn’t cover certain kinds of care.” Right.

4) Allowing employers to dictate which health insurance their employees have, on religious or any other grounds, is yet another reason the United States should join the rest of the industrialized world and adopt taxpayer-supported, government-regulated, single-payer health insurance.

5) The idea that the owners of a business shouldn’t be forced to spend money for something they don’t like assumes that the money in question is theirs, just like the money in your checking account is yours. However, economists have found that the money a company spends on health insurance would otherwise generally be paid to employees as wages. After all, health insurance is a form of compensation and businesses tend to offer as little compensation as possible (except for senior management, of course). As Uwe Reinhardt writes:

Evidently the majority of Supreme Court justices … believe that the owners of “closely held” business firms buy health insurance for their employees out of the kindness of their hearts and with the owners’ money. On that belief, they accord these owners the right to impose some of their personal preferences – in this case their religious beliefs — on their employee’s health insurance…. [But research shows that] the premiums ostensibly paid by employers to buy health insurance coverage for their employees are actually part of the employee’s total pay package — the price of labor, in economic parlance – and that the cost of that fringe benefit is recovered from employees through commensurate reductions in take-home pay.

6) This is a case in which religion is being allowed to trump science. These corporations object to particular kinds of contraception on the grounds that they are equivalent to having an abortion. But medical researchers have shown that the methods in question (certain intrauterine devices and the “morning after” pill) don’t actually work that way, as discussed here:

The owners of Hobby Lobby told the Court that they were willing to cover some forms of contraception but believed that the so-called morning-after pills and two kinds of IUDs can cause what they believe to be a type of abortion, by preventing a fertilized egg from implanting in the uterine wall or causing an already implanted egg to fail to thrive… The scientific consensus is against this idea…Most scientists believe that [these methods] interfere with the ability of sperm to get to an egg in time to fertilize it before they die….Research does not support the idea that they prevent fertilized eggs to implant.

If a religious belief is based on faulty science, that belief should be given less respect by the rest of us. It’s safe to assume, for example, that even this Supreme Court would have ruled differently if the religious belief in question had been that certain kinds of contraception cause droughts.

7) There have been a lot of dumb arguments in favor of this decision or suggesting that it’s not a big deal. The truth is that this decision could set a very bad precedent, opening the door to other claims for special treatment, especially given the Republican majority on the Court. In addition, trying to find a job with another company isn’t a great option for many people; getting pregnant is a very big deal; IUD’s are among the most effective form of birth control; it can cost some women a month’s pay to get one; the morning after pill is an important option for women; and choosing to have sex shouldn’t disqualify people from getting appropriate medical care (people also choose to smoke, spend a lot of time on their couches and eat at McDonald’s). As the saying goes, if men could get pregnant, abortion would be a sacrament.

8) It’s been clear since their decision in Bush vs. Gore, when the Republican justices decided that we didn’t need an accurate vote count in a Presidential election, that lacking proper legal justification for their decisions won’t stop them from advancing their political agenda. All Supreme Court justices issue rulings consistent with their political perspectives, but these particular justices are extremists. They may have some shame, but it’s hardly worth mentioning.

Do You Know What a Photocopying Machine Is?

In the spirit of the History Channel, which interprets “history” as “anything that happened, might have happened, could possibly happen or is complete baloney”, the New York Times has begun a new feature called “Verbatim”:

This marks the debut of a new series, presented by Op-Docs, that transforms verbatim (word for word) legal transcripts into dramatic, and often comedic, performances. Here you will find re-creations of actual events from the halls of law and government. You, our readers, can help us find material for future episodes. Have you come across court trials, depositions or government hearings that you think are surprising, bizarre or baffling — and lend themselves to performance? We especially seek original, publicly available transcripts, along with details about the source.

In this week’s episode, actors perform a scene from a lawsuit that went to the Ohio Supreme Court a few years ago. A lawyer tries to get someone from the Cuyahoga County Recorder’s Office to answer the question: “Do you know what a photocopying machine is?”.

Watching the video, which is 7 minutes long and actually pretty entertaining, you’ll probably form some opinions. Maybe that justifies including this brief play in the “Opinion” section of the Times. I’m not a journalism purist, but it’s definitely a sign of the times when the New York Times starts sharing videos like this.

Moving ahead, it may not be long before the Times and other newspaper sites present dramatizations of more recent, more newsworthy events, whether or not a “verbatim” transcript exists. It will all be a modern version of the old You Are There program, in which CBS News correspondents pretended to interview historical figures like Thomas Jefferson (“Just a quick question, Mr. Jefferson! When will you be finished with the Declaration?”).

Even better, the “Opinion” section will be the perfect place to present videos in which actors portray “what probably happened” yesterday in the Oval Office or at an Exxon board meeting. A left-wing columnist can present a video that shows the Koch brothers conniving with Republican politicians to destroy democracy (which actually happens all the time). A right-wing columnist can offer President Hillary Clinton plotting to implement sharia law (probably during her second term).

The future is coming and it’s going to be (fill in your own adjective)!