Narrow ruling gets wider

Well, that was quick. The Hobby Lobby ruling was supposed to be narrow, but the next day the Supreme Court clarified that the decision was wider than they implied:

The Supreme Court on Tuesday confirmed that its decision a day earlier extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling.

The justices did not comment in leaving in place lower court rulings in favor of businesses that object to covering all 20 methods of government-approved contraception.

Oklahoma-based Hobby Lobby Inc. and a Pennsylvania furniture maker won their court challenges Monday in which they refused to pay for two emergency contraceptive pills and two intrauterine devices.

Tuesday’s orders apply to companies owned by Catholics who oppose all contraception. Cases involving Colorado-based Hercules Industries Inc., Illinois-based Korte & Luitjohan Contractors Inc. and Indiana-based Grote Industries Inc. were awaiting action pending resolution of the Hobby Lobby case.

And then yesterday, we learn (via here) that a group of faith leaders thinks it should have an even wider reach:

“We are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need,” the letter states.

The Hobby Lobby decision has been welcomed by religious-right groups who accuse Obama of waging a war on religion. But Tuesday’s letter is different: It comes from a group of faith leaders who are generally friendly to the administration, many of whom have closely advised the White House on issues like immigration reform. The letter was organized by Michael Wear, who worked in the Obama White House and directed faith outreach for the president’s 2012 campaign. Signers include two members of Catholics for Obama and three former members of the President’s Advisory Council on Faith-Based and Neighborhood Partnerships.

“This is not an antagonistic letter by any means,” Wear told me. But in the wake of Hobby Lobby, he said, “the administration does have a decision to make whether they want to recalibrate their approach to some of these issues.”

Here’s more from the letter:

As religious and civic leaders who seek to advance the common good, we write to urge you to include a religious exemption in your planned executive order addressing federal contractors and LGBT employment policies.

We have great appreciation for your commitment to human dignity and justice, and we share those values with you. With respect to the proposed executive order, we agree that  banning discrimination is a good thing. We believe that all persons are created in the divine image of the creator, and are worthy of respect and love, without exception. Even so, it still may not be possible for all sides to reach a consensus on every issue. That is why we are asking that an extension of protection for one group not come at the expense of faith communities whose religious identity and beliefs motivate them to serve those in need.

Americans have always disagreed on important issues, but our ability to live with our diversity is part of what makes this country great, and it continues to be essential even in this 21st-century. This ability is essential in light of our national conversation on political and cultural issues related to sexuality. We have and will continue to communicate on these broader issues to our congregations, our policymakers and our nation, but we focus here on the importance of a religious exemption in your planned executive order disqualifying organizations that do not hire LGBT Americans from receiving federal contracts. This religious exemption would be comparable to what was included in the Senate version of the Employment Non-Discrimination Act, which passed the Senate with a strong, bipartisan vote.

Without a robust religious exemption, like the provisions in the Senate-passed ENDA, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom.

I see, the common good dictates that certain groups need to be able to discriminate. Oh, and guys, if you liked the language in ENDA perhaps you should have pushed harder to pass it or at least not opposed it:

In a letter sent to legislators, the United States Conference of Catholic Bishops (USCCB) argued that while workplace discrimination is wrong, ENDA goes beyond mere anti-discrimination.

“ENDA’s definition of ‘gender identity’ lends force of law to a tendency to view ‘gender’ as nothing more than a social construct or psychosocial reality, which a person may choose at variance from his or her biological sex. This provision also fails to account for the privacy interests of others,” wrote the USCCB.

Update: And look at that, the ruling gets even wider.

When will corporations be allowed to vote?

So, it seems the Supreme Court now believes that at least some corporations can exercise religion using this clause in a bill passed by Congress:

In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The five justices that ruled for Hobby Lobby and the others assume that person here includes corporations–in other words, they assume corporations can practice religion.

They also rule that we should have single-payer:

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.

I agree. Now if we can only get Congress to pass such an act, –I’m sure it will be passed any time now.

Also, the court says this doesn’t apply to much else but with a wink:

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Notice that little may: “Other coverage requirements, such as immunizations, may be supported …”. Thus, this court is saying that it’s possible that a corporation may be able to drop an immunization requirement if they can make a good argument (an argument that these five justices agree with really). I wonder what other things we’ll later find do not have to be supplied.

 

Both sides do it

This article starts with a bit about Justice Scalia and then says this:

“While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

but then they get to the actual results:

The largest one, at least among members of the Supreme Court who cast more than 100 votes in free speech cases since 1953, belongs to Justice Scalia. Justice Clarence Thomas is not far behind. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have not cast enough votes for a reliable appraisal, but the preliminary data show a similarly significant preference for conservative speakers.

Justice Anthony M. Kennedy, the current court’s most reliable free speech vote, favored conservative speakers by a smaller but still significant margin.

The Roberts court’s more liberal members “present a more complex story,” the study found. All supported free expression more often when the speaker was liberal, but the results were statistically significant only for Justice John Paul Stevens, who retired in 2010.

In the case of Justice Stephen G. Breyer, the difference was negligible. And it is too soon to say anything empirically meaningful about Justices Sonia Sotomayor and Elena Kagan.

In other words, the conservative justices are all much more likely to vote for free speech if it’s conservative while liberals only lean towards supporting liberal speech. Look at the numbers (they are the percent of time they voted for free speech if the speaker was liberal, if the speaker was conservative, and the total votes counted; an asterisk means the difference is significant):

  • Thomas      23.1*   65.4    104
  • Scalia          20.7*   65.2    161
  • Alito            9.1*      53.9    24
  • Roberts      15.4*    64.3    27
  • Kennedy   43.2*     67.7    143
  • O’Connor  30.6*    50.7    190
  • Breyer       40.0      38.1    87
  • Souter       60.3      51.1     103
  • Ginsburg  53.2      40.0    92
  • Stevens     62.8*    46.9    260

You might notice that all of the conservative judges have a statistically significant difference and only one liberal judge does. You might also notice that the largest difference for a liberal judge is about 16%, while the smallest for a conservative judge is about 20% and that’s if we count O’Connor and Kennedy as conservative. If we count them as moderate, then the smallest difference for a conservative is about 39%–but both sides are the same.

Voting Rights Act

It seems that there might be a bill to strengthen the part of the Voting Rights Act that the Supreme Court got rid of:

It’s rare that you can get Reps. Jim Sensenbrenner (R-Wis.) and John Conyers (D-Mich.) to agree on much of anything. The former, after all, introduced the USA PATRIOT Act to the House, and sponsored H.R. 4437, the House-passed bill that would have made “illegal presence” of immigrants a felony, and which prompted huge protests by immigration activists across the country. Conyers, by contrast, is a liberal stalwart who has championed Medicare-for-all and a public jobs program for the unemployed.

But the two, along with Sen. Patrick Leahy (D-Vt.), are introducing legislation they co-wrote to strengthen the Voting Rights Act. The act’s “pre-clearance” process was substantially weakened by a Supreme Court case this last spring. The new bill doesn’t roll back all of that ruling, but it does expand pre-clearance and add other protections currently lacking in the act.

Ari Berman has a summary of what it does (this is just the intro to the summary, click on the link to see the full summary):

1: The legislation draws a new coverage formula for Section 4, thereby resurrecting Section 5. States with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval.

2: The legislation strengthens Section 3 of the VRA, which has been described as the Act’s “secret weapon.”

3: The legislation mandates that jurisdictions in all fifty states have to provide notice in the local media and online of any election procedures related to redistricting changes within 180 days of a federal election and the moving of a polling place.

4: The legislation makes it easier to seek a preliminary injunction against a potentially discriminatory voting law.

5: The legislation reaffirms that the attorney general can send federal observers to monitor elections in states subject to Section 4 and expands the AG’s authority to send observers to jurisdictions with a history of discriminating against language minority groups, which includes parts of twenty-five states.

Rick Hasen, of course, something to say about the bill: his initial thoughts are here; he puts together links here.

Anything that cracks down on measures to make it harder to vote is a good thing, so I’m pleasantly surprised that Senator Sensenbrenner is co-sponsoring this (perhaps I shouldn’t be, he did help the reauthorization of the VRA pass in 2006). It remains to be seen if this can pass the House (you can see what it might be a problem here).

Scalia and ‘free speech’

The Supreme Court is deciding if Massachusetts’ buffer zone rule for clinics that perform abortions is constitutional. There is an argument to be made there, but today I only want to  look at one of Scalia’s statements:

Second, should the court reverse that 2000 decision entirely? The vote in that case was 6-to-3, with the majority ruling that in situations like those at abortion clinics, unwilling listeners have some right to be let alone.

The dissenters, however, were furious. Justice Antonin Scalia delivered a rare and blistering oral dissent when the opinion was announced. “Does the deck seem stacked?” he thundered. “You bet.”

He went on to say that “our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets.”

That’s certainly a defensible argument, but let’s look at another case that Scalia talks about:

One of the evolutionary provisions that I abhor is New York Times v. Sullivan. It made a very good system that you can libel public figures at will so long as somebody told you something — some reliable person — told you the lie that you then publicized to the whole world. That’s what New York Times v. Sullivan says. That may well be a good system and the people of New York state could have adopted that by law, but for the Supreme Court to say that the Constitution requires that — that’s not what the people understood when they ratified the First Amendment.

Now look at part of the argument given in that case:

Thus, we consider this case against the background of a profound national  commitment to the principle that debate on public issues should be uninhibited,  robust, and wide-open, and that it may well include vehement, caustic, and  sometimes unpleasantly sharp attacks on government and public officials.

The New York Times case was about people trying to stop desegregation. If a newspaper wrote about civil rights in a way they didn’t like and made even the smallest error, they would sue–obviously this was a tactic to stop speech hence the argument upholding saying that free speech should be uninhibited. The fact that Scalia used the exact same words, makes me think he is mocking the earlier case that he so abhors.

Win one for abortion

This is semi-good news:

The Supreme Court on Monday declined to hear an appeal from Arizona officials seeking to revive a state law that barred most abortions after 20 weeks of pregnancy. The justices offered no reasons for turning down the appeal, as is their custom.

The case concerned an Arizona law, enacted in 2012, that prohibits abortions, except in medical emergencies, when the fetus reaches 20 weeks gestation, dated from the woman’s last menstrual period. The law’s definition of medical emergency is narrow, encompassing conditions requiring immediate abortion to avert a pregnant woman’s death or a “serious risk of substantial and irreversible impairment of a major bodily function.”

The law’s sponsors claimed that fetuses can feel pain at 20 weeks, a contention that has been disputed by major medical groups.

In May, a three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled that the Arizona law was unconstitutional “under a long line of invariant Supreme Court precedents” starting with Roe v. Wade in 1973.

It means that the Arizona law is unconstitutional, but it does not automatically make a lot of similar laws unconstitutional (of course, if the Supreme Court had decided to hear the appeal then they might have decided that this law is constitutional so I’m ok with the non-ruling).

This part of the argument is a bit weird:

But they argued that the law did not amount to an outright ban, only to a permissible regulation, one they said was justified by the state’s interest in preventing fetal pain and the increased risk to women as their pregnancies progress. The appeals court rejected both arguments.

“As for Arizona’s claimed interest in the mother’s health,” he continued, “people are free to do many things risky to their health, such as surgery to improve their quality of life but unnecessary to preserve life.”

As far as I know, an abortion is always safer than carrying the fetus to full-term so the argument that limiting abortions is for the woman’s health is just silly.

And then there were none

This is disheartening if expected:

A sharply divided Supreme Court decided Tuesday to allow Texas to continue enforcing abortion restrictions that opponents say have led more than a third of the state’s clinics to stop providing abortions.

The justices voted 5-4 to leave in effect a provision requiring doctors who perform abortions in clinics to have admitting privileges at a nearby hospital.

But a three-judge appellate panel moved quickly to overrule the judge. The appeals court said the law was in line with Supreme Court rulings that have allowed for abortion restrictions so long as they do not impose an ‘‘undue burden’’ on a woman’s ability to obtain an abortion. Writing for the appeals court, Judge Priscilla Owen noted that the Texas law would not end the procedure, only force women to drive a greater distance to obtain one.

What’s great about this if you want to outlaw all abortions is that it’s a stepping stone. If this is ok since it only makes you drive a bit more, then another law that shuts down more clinics will also be ok by the same logic–it will only be a few steps until there will be no real clinics in the state (after all it’s not that much further to drive to another state).

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