“Refusing To Comply With Laws”: The Strange New Meaning Of “Religious Freedom”
Whatever ultimately happens in various ongoing collisions between conservative clergy and laws to which they object, it is clear the former have already won a significant victory in convincing millions of Americans that “religious freedom” means the right to have one’s particular religious views explicitly reflected in public policy. That is definitely the position of the nation’s Catholic bishops, who contend they should be able to operate a wide range of quasi-public services and also enjoy the use of public subsidies, while refusing to comply with laws and regulations that contradict their religious or moral teachings.
I’ve argued in the past that what the bishops are actually seeking is not “freedom” but a sort of unwritten concordat—a broad zone of immunity from laws they choose to regard as offensive. Now there is nothing terribly unusual or inherently outrageous about this desire; Vatican diplomacy for centuries has focused on the establishment of such arrangements—though typically written rather than plenary—with a wide array of governments. It’s the idea that this sort of arrangement involves “freedom” rather than frankly acknowledged special privileges that’s novel. And it leads to some rather strange conclusions, viz. this conservative post celebrating an anti-Obama protest in San Francisco and identifying special concessions to religious groups as an example of “American exceptionalism:”
Friday, one thousand Bay Area Catholics gathered outside the Federal Building in San Francisco to celebrate America’s exceptional guarantee of freedom of religion, and defend against an unprecedented assault by the Obama Administration.
The rally was among the largest of over 100 protests by Catholics around the nation on the second (ahem) birthday of Obamacare.
From the podium, Northern California Catholic religious and secular leaders openly urged citizens to register to vote and cast ballots against President Obama in the general election, in what they called an end to “quiet conformity” by religious Americans….
The City Square, a Bay Area blog, described this religious backlash as nothing less than the opening of a second front in the “war for freedom”, alongside the Tea Party movement’s economic freedom agenda.
That is indeed an apt comparison, since the Tea Party, too, has a very special definition of “freedom.”
Still, it’s odd to hear people describe the kind of concessions to broad rights of religious self-regulation that are exceedingly common in countries without a constitutional history of church-state separation as peculiarly American.
And it’s not a view that’s been smiled upon very often by the official arbitors of the Constitution, the federal courts, as Sarah Posner recently explained at Religion Dispatches:
Conservative claims of infringement of religious freedom…are on shaky constitutional footing. Although Catholic Charities lost challenges to similar policies in state courts in California and New York, several Catholic and evangelical universities have sued HHS in federal courts around the country, charging that the contraception coverage requirement violates their religious freedom. While a federal court has yet to rule on the mandate, a ruling issued late Friday night demonstrates how the claim of infringement of religious freedom undermines the First Amendment’s prohibition on government establishment of religion.
In that case, the American Civil Liberties Union had challenged an HHS policy allowing the USCCB, which received funding under the Trafficking Victims Protection Act, to refuse to refer victims of rape and sexual assault for contraceptive and abortion services. Although the Bishops and their Republican allies argue that requiring them to refer women and girls for reproductive health services amounted to a government interference with their religious freedom, Judge Richard Stearns held that allowing them to refuse to make these referrals amounted to an impermissible government endorsement of religion.
While that case would not require courts outside of Massachusetts to reach the same conclusion, or to reach the same conclusion in the lawsuits against the insurance coverage requirement, it does provide a roadmap for how a court would weigh a Free Exercise claim against an Establishment Clause claim.
Now some conservative Catholics, and many of their conservative evangelical allies (who have fully internalized David Barton’s revisionist “Christian Nation” theory that the Founders had no intention of fostering church-state separation) would view Judge Stearns’ decision as an exercise in “judicial activism” on the behalf of an aggressively “secularist” agenda. But like the Right’s redefinition of religious freedom itself, this point of view is decidedly recent in origin, and better described as “radical” than as “conservative” in spirit.
But that’s true as well of much of the American Right’s current ideological tendencies. Somehow or other, public programs as well as constitutional doctrines that the country has lived with peacefully since at least the New Deal are being denounced as involving aggressive, sinister, and even Satanic attacks on traditional liberties. That’s the connection between the protesters in San Francisco bearing “Obama the Judas of America” signs and their comrades carrying images of Andrew Breitbart outside the Supreme Court.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 27, 2012
“An Alternative Legislature”: Judicial Activists In The Supreme Court
Three days of Supreme Court arguments over the health-care law demonstrated for all to see that conservative justices are prepared to act as an alternative legislature, diving deeply into policy details as if they were members of the Senate Health, Education, Labor and Pensions Committee.
Senator, excuse me, Justice Samuel Alito quoted Congressional Budget Office figures on Tuesday to talk about the insurance costs of the young. On Wednesday, Chief Justice John Roberts sounded like the House whip in discussing whether parts of the law could stand if other parts fell. He noted that without various provisions, Congress “wouldn’t have been able to put together, cobble together, the votes to get it through.” Tell me again, was this a courtroom or a lobbyist’s office?
It fell to the court’s liberals — the so-called “judicial activists,” remember? — to remind their conservative brethren that legislative power is supposed to rest in our government’s elected branches.
Justice Stephen Breyer noted that some of the issues raised by opponents of the law were about “the merits of the bill,” a proper concern of Congress, not the courts. And in arguing for restraint, Justice Sonia Sotomayor asked what was wrong with leaving as much discretion as possible “in the hands of the people who should be fixing this, not us.” It was nice to be reminded that we’re a democracy, not a judicial dictatorship.
The conservative justices were obsessed with weird hypotheticals. If the federal government could make you buy health insurance, might it require you to buy broccoli, health club memberships, cellphones, burial services and cars? All of which have nothing to do with an uninsured person getting expensive treatment that others — often taxpayers — have to pay for.
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.
The irony is that if the court’s conservatives overthrow the mandate, they will hasten the arrival of a more government-heavy system. Justice Anthony Kennedy even hinted that it might be more “honest” if government simply used “the tax power to raise revenue and to just have a national health service, single-payer.” Remember those words.
One of the most astonishing arguments came from Roberts, who spoke with alarm that people would be required to purchase coverage for issues they might never confront. He specifically cited “pediatric services” and “maternity services.”
Well, yes, men pay to cover maternity services while women pay for treating prostate problems. It’s called health insurance. Would it be better to segregate the insurance market along gender lines?
The court’s right-wing justices seemed to forget that the best argument for the individual mandate was made in 1989 by a respected conservative, the Heritage Foundation’s Stuart Butler.
“If a man is struck down by a heart attack in the street,” Butler said, “Americans will care for him whether or not he has insurance. If we find that he has spent his money on other things rather than insurance, we may be angry but we will not deny him services — even if that means more prudent citizens end up paying the tab. A mandate on individuals recognizes this implicit contract.”
Justice Antonin Scalia seemed to reject the sense of solidarity that Butler embraced. When Solicitor General Donald Verrilli explained that “we’ve obligated ourselves so that people get health care,” Scalia replied coolly: “Well, don’t obligate yourself to that.” Does this mean letting Butler’s uninsured guy die?
Slate’s Dahlia Lithwick called attention to this exchange and was eloquent in describing its meaning. “This case isn’t so much about freedom from government-mandated broccoli or gyms,” Lithwick wrote. “It’s about freedom from our obligations to one another . . . the freedom to ignore the injured” and to “walk away from those in peril.”
This is what conservative justices will do if they strike down or cripple the health-care law. And a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. A Supreme Court that is supposed to give us justice will instead deliver ideology.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 28, 2012
“Mitt’s Q-Tip”: Appeal Helps Obama No Matter What The Supreme Court Decides
Irony alert — President Obama gets a boost no matter what the Supreme Court decides on his politically toxic healthcare reform law.
The high court either upholds Obama’s signature domestic accomplishment, imprinting it for history, or it overturns the law, thereby breaking a big stick with which the GOP planned to beat Obama this fall. Should front-runner Mitt Romney become the GOP nominee, what’s left of the stick would more likely resemble a Q-Tip.
Although a final ruling is nearly four months away, oral arguments at the Supreme Court on Tuesday called into question the constitutionality of a mandate to purchase insurance. But recall that four years ago, then-Sen. Barack Obama opposed a mandate for the purchase of healthcare insurance when he was running against Hillary Clinton in the Democratic primary. Four years ago, Romney, on the other hand, admitted his support for mandates.
Obama ultimately changed his mind, and followed the example then-Gov. Romney had set when he signed healthcare reform into law in Massachusetts in 2006. Both men concluded that conservative think tank Heritage Foundation was correct decades ago in deciding there was no way, without a mandate to buy coverage, to control prices or to protect the taxpayer from uninsured free riders who leech off the government every time they go to the emergency room.
While Romney could control the choice to build elevators for his cars at the beach house he is building in California, he could not control the fact that Obama changed his mind on the mandate, that his law evoked a visceral reaction from the GOP base or that Newt Gingrich and every other conservative who had supported the mandate earlier would flip from the concept and run. Romney, who started running for president in 2006 or earlier as the conservative alternative to John McCain, chose to run after them. Romney tried pivoting by claiming he never intended it to become a national model, yet a Google search proves that effectively false.
Fortunately for Romney, it hasn’t been that tough to keep his stride. Republicans seeking to defeat him in the primary campaign failed miserably to use the best weapon against him — he was given a pass on RomneyCare. But no more. Romney can be sure the Obama campaign will possess the discipline Rick Santorum did not and won’t be distracted from healthcare by messages that send female voters running for the hills. Obama the candidate surely won’t display any weakness or kindness to his rival, or whatever it was that caused former Minnesota GOP Gov. Tim Pawlenty to retreat from his planned attack on “ObamneyCare” and basically kill off his own candidacy for good.
Democratic strategist James Carville said on CNN that the prospect of the healthcare law being overturned might be the best political outcome for Democrats and Obama.
“I honestly believe — this is not spin — I think that this will be the best thing to ever happen to the Democratic Party, because healthcare costs will escalate unbelievably … the Republican Party will own the healthcare system for the foreseeable future.”
Unbelievably cynical. But Senate Majority Leader Harry Reid (D-Nev.) made the same point almost immediately.
Should ObamaCare be stricken, congressional Republicans will be free to paint the president and his party as socialists who passed a partisan, unpopular, unprecedented intrusion of government into the private sector and ultimately had to be stopped by the Supreme Court from destroying liberty in the United States for all time.
Romney might not want to, as it will only invite attacks on his ambiguous record of supporting insurance mandates. He will probably want to stick to the economy instead, and to hunt for some other sticks.
By: A. B. Stoddard, Associate Editor, The Hill, March 28, 2012
“At The Heart Of An Ideology”: Republicans Are Causing A Moral Crisis In America
There is moral crisis afoot! So say the Republican candidates for president, their pals in Congress and in state houses. Abortion, gay marriage, contraception— contraception, for Pete’s sake — things that so shock the conscience that it’s a wonder The Washington Post can even print the words!
Here’s something I bet you wouldn’t think I’d say: They’re right. There is a moral crisis in the United States. The only thing is — they’re wrong about what it is and who is causing it.
The real crisis of public morality in the United States doesn’t lie in the private decisions Americans make in their lives or their bedrooms; it lies at the heart of an ideology — and a set of policies — that the right-wing has used to batter and browbeat their fellow Americans.
They dress these policies up sometimes, give them catchy titles like Rep. Paul Ryan’s “Path to Prosperity.” But they never cease to imbue them with the kind of moral decisions that ought to make anyone furious. Ryan’s latest budget really is case in point. It’s a plan that says that increases in defense spending are so essential, that massive tax cuts for the wealthy are so necessary, that we must pay for them by ripping a hole in the social safety net. The poor need Medicaid to pay for medicine and treatment for their families? We care, we really do, but the wealthy need tax cuts more. Food stamps the only thing standing between your children and starvation? Listen, we feel your pain. We get it. But we’ve got more important things to spend money on. Like a new yacht for that guy who only has one yacht.
It’s hard to point to a single priority of the Republican Party these days that isn’t steeped in moral failing while being dressed up in moral righteousness. This week, for example, they are hoping the Supreme Court will be persuaded by radical (and ridiculous) constitutional arguments to throw out some or all of the Affordable Care Act. Sure, you could argue that it’s really nice to make sure 31 million people who didn’t have health care can get it. Sure you could make the case that lifetime limits are a bad thing, that women shouldn’t have to pay more for health insurance just because they’re women, that the United States shouldn’t be a country where you die because you lost your coverage when you lost your job. But then again, liberty. Let’s not forget liberty. Also, freedom.
It is a very strange thing that the people who lecture most fervently about morality are those who are most willing to fight for policies that are so immoral. They watch Wall Street turn itself into the Las Vegas strip, take the economy down and destroy people’s lives and livelihoods. To that they say, “By God we need less regulation. Get me the hose, I have things to water down!” They see a CEO of a bank or a corporation, someone who passed off all of the risk and took on all of the reward, and they say, “Get that man a bigger bonus! In fact, get him two!”
They see corporate interests flood the political system with unfathomably large sums of money, they see lobbyists defining the terms of debate, and they say, “Now this . . . this is what democracy should look like.”
They see an environmental crisis spinning out of control, the effects of climate change being felt already, the possibility of the biggest natural disaster in modern human history. To which they ask, “Anyone know if we can drill this hole any deeper?”
So yes, Rick Santorum. Yes, Mitt Romney. Yes, Paul Ryan and Republican politicians all over this nation. You are right, as right as you’ve ever been. There is a moral crisis in this country. A horrifyingly, back-breaking, bankrupt-the-core-of-this-nation style crisis. But it isn’t women or the poor or the middle class or the gay community or health-care advocates or environmentalists that are causing it.
It’s you.
By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, March 27, 2012
“Hello Public Option”: The Public’s Inch-Deep Hate Affair With The Individual Mandate
Maybe the individual mandate is doomed, as an agitated-slash-celebratory Twitterverse seemed convinced after conservative Supreme Court justices posed challenging questions about it (shocking!) on the second day of arguments on the Affordable Care Act. If the justices vote later this year to kill it, with the possibility that the whole law will collapse as a result, Republicans would be vindicated in their fight against “big government.” But in practical terms, would the country really know what it has lost?
From a political standpoint, the mandate invented by the GOP of yore (“yore” being a dozen years ago) has been manna for today’s GOP. Polling shows the requirement to buy insurance or pay a fine — meant to discourage freeloaders — has become highly unpopular. Strangely, the dreaded mandate is not particularly unpopular in Massachusetts, the only state that charges penalties for not buying coverage.
Disapproval of the individual mandate nationally, meanwhile, seems to be a mile wide but not all that deep. There’s evidence that many people don’t understand what it is, why it is, and how it would affect them, and that their answers change depending on word choice and word sequence.
They like it better – about even with disapprovers in a Pew poll — if the last thing they hear is about subsidies to help lower-income people buy insurance. They like it somewhat when it’s explained that without it, people would just buy insurance when they got sick (driving up costs for everyone) or alternatively, insurance companies could not be required to cover people with existing medical problems (because without a mandate, there wouldn’t be enough healthy people in the pool). They like it best – 61 percent approval in a Kaiser Family Foundation poll — when they’re told it won’t apply to most people because they have insurance through work.
That spike to 61 percent, nearly twice as high as the 33 percent who support the mandate when asked a simple up-or-down question, is telling. It suggests many Americans aren’t comrades-in-arms with conservatives waging an ideological battle – they’re just people nervous about change and relieved to hear it won’t affect them.
Attitudes toward the overall health law are just as complicated as those toward the mandate. A new CNN/ORC International poll, like most polls, finds that the law is unpopular – favored by 43 percent, opposed by 50 percent. Breaking down the numbers further, CNN found 43 percent favor it, 37 percent oppose the law because it’s too liberal, and 10 percent oppose it because it’s not liberal enough. Hello public option!
You have to wonder if that 10 percent – which has gone as high as 14 percent in earlier CNN polls – keeps doggedly voicing opposition to the law in hopes the Supreme Court will strike it down and force Congress to regroup. At some point, as 50 million uninsured rises to 60 million and 70 million and higher, as more states approach the astonishing Texas rate of 26 percent uninsured, Congress may decide it has to do something. And, barred from effectively regulating the private market, there will be no options except the public option – Medicare for all.
That should be a safe course. After all, the policy already exists. But in the current climate it’s not hard to envision a conservative challenge to Medicare, and who knows what the Supreme Court might do?
By: Jill Lawrence, The National Journal, March 27, 2012
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