“Indiana And Federal Statutes Not Wholly Identical”: Three Factors That Make Indiana’s Religion Law Different From Other States’
The Indiana statute is the culmination of a long, murky legal history that reaches back to the 1990 Supreme Court case Employment Division v. Smith, which significantly changed the standard interpretation of the First Amendment’s free exercise clause. At issue was whether a Native American group could use peyote in religious rituals in violation of an Oregon law. The court ruled that it could not — because the state law was “neutral,” in that it was not motivated by a desire to curtail religious rights, and because it applied to everyone in the state.
Legal precedent prior to 1990 dictated that the government could substantially burden a person’s practice of his or her religion only if its action was necessary to achieve a compelling government purpose. But in Smith, the court established that the free exercise clause could not be used to challenge a neutral law of general applicability no matter how much the law burdened religion.
So, before Smith, a priest in a dry county who wanted to use wine in communion surely would have prevailed in court. After Smith, he would have lost because the law prohibiting consumption of alcohol was a neutral law of general applicability.
In 1993, Congress, with strong bipartisan support, passed and President Clinton signed the federal Religious Freedom Restoration Act. Its stated goal was to restore religious freedom by statute to what it previously had been under the Constitution. The law provides that whenever the government substantially burdens religion, even with a neutral law of general applicability, its action is illegal unless proven to be necessary to achieve a compelling government interest.
The next development came in 1997, when the Supreme Court declared the act unconstitutional as applied to state and local governments because it exceeded the scope of Congress’ power. But the law remained constitutional as applied to the federal government, and was the basis for the court’s decision last June in Burwell v. Hobby Lobby. In that case, the court held, 5 to 4, that it violated the Religious Freedom Restoration Act to require a closely held corporation to provide contraceptive coverage if that contradicted its owners’ religious beliefs.
The new Indiana law has the same title and contains the same language as the federal statute. Like the federal law, the Indiana version provides: “A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”
But the Indiana and federal statutes are not wholly identical. The Indiana law, unlike the federal RFRA, builds on Hobby Lobby by expressly providing protection to corporations and other business entities. That’s one reason to worry that the purpose of the Indiana law is to allow discrimination against same-sex couples based on business owners’ religious beliefs.
Another reason for concern is timing. Why is Indiana adopting the law now, 25 years after Employment Division v. Smith and 22 years after the enactment of the federal statute? There is a widespread consensus across the political spectrum that the Supreme Court is about to recognize a right to marriage equality for gays and lesbians and hold that state laws prohibiting same-sex marriage violate the Constitution. This law appears to be a reaction to that development.
The rhetoric surrounding the Indiana law is also troubling. In fact, over and over in his interviews, Pence has refused to deny that the law would permit discrimination. He also was emphatic that there would be no expansion of rights for gays and lesbians on his “watch.”
This is why there are loud protests against the Indiana law and calls for boycotts of the state. But Indiana could easily solve this controversy by amending the law to provide that no one can discriminate against others based on sexual orientation, sex or race under the statute or on the grounds of religious beliefs.
By: Erwin Chemerinsky, Dean of the University of California, Irvine School of Law, The Los Angeles Times; The National Memo, April 1, 2015
“Governors As Mini-Presidents”: Being A Governor Is Not The Same As Being The Commander In Chief
In a Sunday Show appearance mainly given notice as indicating his apparent eagerness to challenge Hillary Clinton for the Democratic presidential nomination, Martin O’Malley did something that is sadly common but ought to be mocked out of existence: pretending that being a governor is not only an adequate but a complete preparation for the presidency. Get this (from JP Updates‘ Jacob Kornbluh):
O’Malley, who came as close as he can to announcing a 2016 presidential run, cited Maryland’s state sanctions on Iran’s economy under his tenure as one example of how he had already slowed Iran’s rush towards acquiring a nuclear bomb. Maryland had “passed some of the earliest and strongest sanctions against Iranian nuclear development of any state in the nation,” he asserted.
C’mon, give me a break. This is the foreign policy equivalent of the exceedingly annoying tendency of governors to take personal credit for national economic booms, like a child in a car seat pretending to drive his parent’s automobile. I say this as someone that worked for three governors and have had opportunities to closely watch many others–including O’Malley. I like and admire these people, as a group, far more than Members of Congress. But in trying to counter Washingtonian prejudice against politicians who aren’t performing in the Big Top, they sometimes go too far.
O’Malley isn’t remotely as egregious on this score as Scott Walker, who is rhetorically trying to reshape the world in the image of the view from his window in Madison. But he still ought to cut it out. He’s been a two-term big city mayor and a two-term governor. He’s qualified to run for president by any reasonable standard. But the idea that if elected he can smoothly move into the Oval Office and assume the responsibilities of Commander-in-Chief without some culture shock is simply not credible. That’s true of Very Senior U.S. Senators, for that matter. Truth is, there is only one putative candidate for president who is entirely acclimated to the foreign policy challenges of the presidency, and in my opinion, that should offset a lot of the carping we hear about her lack of specific “accomplishments.”
In any event, governors should stop trying to project themselves as mini-presidents. Being a governor is a big job, and an important job, and a job that tells you a lot about its occupant’s qualities. But it’s really not the same thing.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, March 30, 2015
“Give Me Lipitor Or Give Me Death”: Last Call; Ted Cruz Signs Up For Obamacare
A day after announcing his White House bid – which included beating on the Affordable Care Act, his favorite punching bag – Sen. Ted Cruz, R-Texas, says he’s signing up for Obamacare.
Yes, you read that correctly: The man whose signature applause line is a promise to “repeal each and every word of Obamacare,” went on Healthcare.gov and got himself some benefits. Hypocrisy? Sure, but not in the way you might think.
Cruz had been covered through his wife’s employer, Goldman Sachs. If some insurance plans are Cadillacs, hers was a chauffeured, solid-gold Fleetwood, reportedly worth some $20,000 a year — around half of Texas’ median income. Heidi Cruz is taking a year or so of unpaid leave to help him on his campaign, though, so her health care coverage evaporates along with her likely very substantial paycheck.
Now, the senator – or maybe an aide, or an intern or campaign volunteer or someone – will schlep to the computer, log on to Healthcare.gov and hunch down over the keyboard to do the Obamacare two-step to get coverage for the upcoming year.
Cruz says he had to get health coverage Obamacare, and he’s right: Sen. Chuck Grassley, R-Iowa, inserted an ACA amendment that requires all members of Congress to sign up through the federal exchange. That means Cruz has to if he wants health insurance, although, unlike a lot of Obamacare enrollees, his $174,000 annual Senate salary covers the premiums.
“Well, it is written in the law that members will be on the exchanges without subsidies just like millions of Americans so that’s – I think the same rules should apply to all of us,” Cruz told the Des Moines Register. “Members of Congress should not be exempt.”
Cruz has come up with his own Obamacare alternative, a plan which shifts a lot of control to the states — including ones like Texas, that opted out of Obamacare and all that federal money that went with it. If it were available, he probably would have signed up for Cruzcare instead.
Cruz: 2, Hypocrisy: Undecided. Still, let’s take a closer look.
If Cruz wanted to stand on no-Obamacare, no-way principle, however, perhaps he could opt out of government-sponsored health care entirely, just like the 6.3 million Texans who don’t have health insurance — in part because his state, and his party, decided to block it. That includes 1.2 million children just like Cruz’s two little girls who can’t get health care if they get sick.
That’s made Texas the state with the highest number of uninsured people, nearly twice the national average.
Further, if you squint, the changes the Cruz family are undergoing — loss of a job or a dramatic life change that reduces income — are the top reasons people lose health insurance, and among the reasons Obamacare exists in the first place. And if a parent or spouse gets sick without insurance, it can lead to some serious financial hardship.
It’s perhaps safe to say Cruz understands that intuitively, even if he probably would never say so explicitly. Which is probably why he signed up, and where the hypocrisy comes in.
Even though it exposes him to a modicum of ridicule, allegations of hypocrisy and getting the stink-eye from some of his die-hard supporters, Ted’s Excellent Obamacare Adventure speaks more loudly than his “repeal every word of Obamacare” applause line. When it came down to brass tacks and he lost his wife’s coverage, he opted-in.
He may be a fierce Obamacare critic, and he may agree with the decision to deny affordable health insurance to more than 6 million Texans who, one imagines, he assumes would rather have liberty than Lipitor. But when it becomes a personal matter involving his own family, his conservative ideals don’t necessarily apply.
By: Joseph P. Williams, Washington Whispers, U. S. News and World Report, march 24, 2015
“Jeb Bush’s Minimum Wage Radicalism”: The Abolition Of A Federal Minimum Wage Of Any Sort Is Now A Mainstream Republican Position
Every so often I feel the need to write the column that says: The one thing our political system needs more than any other single feature is a strengthened moderate wing of the Republican Party. I say this of course as a liberal, whose party registration is Democratic, which means you might think I’d say we need more liberals; and while I think that, I believe without question that having a strong moderate faction within the GOP would do far more to change our politics for the better than—yes—even having more Americans who think exactly as I do!
Having more liberals would if anything merely deepen the intensity of our civil war and produce more stalemate. The presence of a more muscular moderate Republican wing, however, would change everything. Then, there would be pressure on Republicans to adopt some sensible moderate positions, instead of what we have today, which is unceasing pressure to play this game of one-upmanship to see who can take the most reactionary, ignorant, and borderline racist position imaginable. Then, you’d have some Republicans from blue districts and states who would find it to be in their electoral self-interest to compromise with Democrats and vote for a Democratic president’s bill once in a while. Then, our political culture really would change.
And, then, people like Jeb Bush, the alleged moderate in the GOP presidential field, wouldn’t say jaw-dropping things like this, about the minimum wage, which he said Tuesday in (where else, somehow) South Carolina:
“We need to leave it to the private sector. I think state minimum wages are fine. The federal government shouldn’t be doing this. This is one of those poll-driven deals. It polls well, I’m sure—I haven’t looked at the polling, but I’m sure on the surface without any conversation, without any digging into it, people say, ‘Yeah, everybody’s wages should be up.’ And in the case of Wal-Mart, they have raised wages because of supply and demand and that’s good.
“But the federal government doing this will make it harder and harder for the first rung of the ladder to be reached, particularly for young people, particularly for people that have less education.”
Now it’s great that Wal-Mart and McDonald’s and Target and the others are voluntarily raising their minimum wages. One might argue that we’ve come to a particularly sad pass when the Walton family is doing more for its beleaguered workers than Congress can rouse itself to, but however you want to spin it, good for Wal-Mart.
But to take this little boomlet from what is still a small number of employers (although of course they do employ millions of people) and say that’s it, we should now have no federal minimum wage, is logical sleight of hand, and it’s a very radical position. A little background.
We first got a minimum wage in 1935. Then the Supreme Court declared it unconstitutional (which could happen again, with this lot). Then it was passed again in 1938. We’ve had it ever since, although, as you probably know, it hasn’t gone up since 2009. That rise was the third and final phase of a 2007 law that raised the wage in increments. We haven’t had a new law to that effect in those eight years since.
It is true that in the 1980s, economists debated whether a federal minimum wage was desirable. Even The New York Times once editorialized against it, in 1987. At the time, economists thought it had deleterious effects on low-wage employment. Then, in the mid-1990s, the economists David Card and Alan Krueger studied this question in New Jersey and Pennsylvania (the former had increase its minimum wage, while the latter had not), and they found no employment impact.
That changed the academic consensus. An increase was passed in 1996. Some conservative economists continued to spoon out the “job-killer” Kool-Aid, as indeed they still do, but evidence continues to support the idea that there is no serious job-killing effect.
The parties disagreed strongly about how much the wage should be increased, but at least they agreed on increasing it—the 2007 increase, for example, passed the Senate 94-3, and the House by 233-82. John McCain, the GOP’s 2008 standard bearer, voted for the 2007 increase. And Mitt Romney, the 2012 nominee, ran on supporting a modest increase and even indexing the minimum wage to inflation, which Barack Obama also supported and which would prevent Congress from having to pass legislation on the question ever again—a pretty progressive position, really.
So the last two mainstream, establishment GOP candidates—the last three, counting George W. Bush—supported an increase. But now, the mainstream, establishment candidate is against it. And if the mainstream, establishment candidate is against it, where are the others going to line up?
And so, one more hard-right pirouette by a party that keeps finding new ways to radicalize itself. But this one is particularly shocking coming from Bush, because it means that the abolition of a federal minimum wage of any sort is now a mainstream Republican position. And remember: The minimum wage, if it had kept pace with inflation, would be around $13 today, so it’s already insanely low at $7.25.
Which brings me back to how I opened this column. If there were a moderate wing of the GOP, this is most certainly an issue on which we’d have bipartisan agreement. The position Bush has just embraced would be seen across party lines for exactly the radical pandering that it is. Indeed he would not have taken it. That would be a nice world, but the world we have is the one we have. And if Bush can take this position, completely out of step with his party’s conservative mainstream in recent history, then what else will he prove himself capable of?
By: Michael Tomasky, The Daily Beast, March 20, 2015
“Oh, The Irony!”: Holder Suddenly Enjoys The GOP’s ‘Love’ And ‘Affection’
It was six months ago that Attorney General Eric Holder announced his retirement, though he said he would stay on until President Obama nominated, and the Senate confirmed, his successor at the Justice Department. Given the scope of Republican opposition to Holder – the phrase “unbridled disgust” comes to mind – it seemed likely GOP lawmakers would rush Holder out the door.
Little did we know at the time that Republican senators would prepare to keep the A.G. around indefinitely.
Holder spoke this morning at the Center for American Progress, where he heard a few intentional laughs about his unique professional circumstances.
“There is no place I’d rather be in my closing days as Attorney General than here with you all. Well, at least these should be my closing days.
“Given the Senate’s scheduling and delays in considering Loretta Lynch’s nomination for a vote, it’s almost as if the Republicans in Congress have discovered a new fondness for me! I’m feeling love there that I haven’t felt for some time. Where was all this affection over the last six years?”
To borrow a Homer Simpson line, it’s funny because it’s true.
Six weeks after Holder announced his departure, Obama introduced U.S. Attorney Loretta Lynch as his nominee as the nation’s next Attorney General. Republicans, eager to rid themselves of Holder and impressed with Lynch’s sterling credentials and qualifications, seemed to embrace the president’s choice.
It was easy to imagine at the time that the new year would begin with a new Republican-led Congress and a new Attorney General. Instead, for reasons that even they can’t fully explain, GOP lawmakers have found a way to keep Holder in the same position they ostensibly want him to leave.
Remember, Senate Democrats could have tried to rush Lynch through the confirmation process during the lame-duck session late last year – before Dems lost their majority status – but Republicans implored Democrats not to. The power should rest with the incoming majority, GOP senators said.
The outgoing Democratic majority obliged, expecting Republicans to be at least somewhat responsible. After all, there were no substantive objections to Lynch and the GOP was desperate to see Holder go. Republicans had a built-in incentive to act reasonably.
And yet, here we are. Senate Majority Leader Mitch McConnell (R-Ky.) and his team have subjected Lynch to the longest delay of any A.G. nominee in history – for reasons they haven’t even tried to explain – and this week, McConnell even broke his word about bringing Lynch’s nomination to the floor for a vote this week.
The irony is under-appreciated: Republicans wanted Holder to step down, and he did. Republicans wanted Obama to nominate an uncontroversial successor, and he did. Republicans wanted Democrats not to vote on Lynch in the lame-duck session, and they obliged.
Months later, the Senate’s GOP majority can’t quite bring itself to do what Republicans say they want to do. In fact, as far as McConnell & Co. are concerned, they hope to defeat Lynch – again, for reasons they’ve struggled to articulate – raising the prospect of Republicans keeping Holder at his current post until January 2017.
Can you really blame the Attorney General for asking facetiously, “Where was all this affection over the last six years?”
By: Steve Benen, The Maddow Blog, March 18, 2015
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