Some quick thoughts on Burwell v. Hobby Lobby, having only read about half the majority opinion and skimmed the rest of it

>> Monday, June 30, 2014

I have to be honest: it's hard to care.  Is a 5-4 opinion saying that Hobby Lobby, Mardel, Conestoga Wood Specialties, and others can claim a religious exemption to the Affordable Care Act (PDF link) really surprising?  Not at all.  Not in the least.  I mean, c'mon.  I'll bet there are more surprises in the new Transformers movie.  In fact,

(1)  This wasn't the first thought I was going to lead off with, but what the Hell.  Isn't this opinion just another confirmation for the natural-born cynics and those of us who have lost our civic religion that the Supreme Court of the United States is just another political body recapitulating the political divide in this country between the 49-51% of the country that believes in one cluster of things incoherently defined by convention as "Republican" and the 49-51% of the country that believes in basically the opposite of whatever and is incoherently defined as "Democratic", regardless of actual (if any) political affiliation and with little regard, conventional wisdom be damned, to actual ideology (hence all the "moderate" Democrats who would have been loyal Republicans in Eisenhower's day, and quite a few "libertarian" Republicans who would have been draft-card burning hippie radicals in RFK's day (yeah, I'm looking at you, Reason crowd), not to be confused with the "libertarian" Republicans who would have been pro-German apologists in Heinz Spanknobel's day (and I have no idea how that's supposed to work, except some people are apparently immune to cognitive dissonance).)
You know, right, that that entire windy parenthetical is why I'm so exhausted these days.  If you want to blame the paucity of blog posts on anybody, there's one place you can start.  I'm finally all but exhausted by politics, exhausted with excuses for liberals who are really conservatives, conservatives who are really idiots, idiots who are really trolls, trolls who are really unreconstructed cryptofascists... probably it loops around back to itself Ouroboros-style and eats itself, but I'm too tired to follow the snakescales back around and down our collective throat.
But.  Anyway.  Yeah, so is this the most American Supreme Court ever, or what?  None of the reactionary old men from the waning days of the Gilded Age, holding back the New Deal for our time, nope.  None of the harrowed veterans of the Second World War, moderate conservatives turned crypto-progressives having spent the years 1936-1945 staring into the abyss until the abyss not only stared back, but blew them a fetid kiss reeking of dead bodies and Zyklon B, knocking them back headlong and reeling clasping hands with the New Frontier on one side and the Great Society on the other, neither, no sir, no ma'am.  A Supreme Court that looks neither forward nor back but always down at the feet, and sometimes the footsie shuffles left and sometimes the footsie shuffles right, and sometimes the footsies just shuffle round in a widdle circle.

Oughta just add another Supreme Court Justice to the bench so they can all be tie votes forevermore from now on.

(2)  But I wasn't going to lead with despair for the Republic, aw, Hell no.  I was just going to go ahead and blame religion, because isn't that the elephant in the room?  As in we have it?  No, I'm not saying all religion is evil or all religions believe the same thing; why, shucks, if they all believed the same thing, that would simplify it, wouldn't it, and we wouldn't have any problems in the first place.

You know why we have this Hobby Lobby issue, right?  No, it's not because of women and their complicated plumbing.  No, it's not because men just can't be bothered to be responsible for their johnsons.  It's not because of misogyny or patriarchy or whatever.
We have this decision because the Supreme Court used to say that the government couldn't do anything that violated somebody's exercise of religion unless it served a compelling interest.  Which I guess was kinda okay in that it mostly let people be people, which I guess is basically a good thing.  Only, see, then what happened is some Native Americans wanted to use peyote in their traditional rituals and have jobs and collect unemployment if they got fired for using peyote in their traditional rituals--and, well, see, the Great White Lord in Heaven knows we can't have Native Americans doing Native American things, because, what next, maybe they'll want all that land back or something.  So, you know, what the Supreme Court did was say that it was tough shit that these Injuns wanted to do their hokum teepee rain dance bullshit, because Federal Drug Laws.
(2a)  Which, you know, reminds me, another reason we have this Hobby Lobby issue is because of the War on Drugs.  Thanks again, irrational policy of criminalizing the behavior of consenting adults and/or treating addiction issues as a legal problem instead of a public health issue!
(2a(1))  Oh, which also reminds me, yet another another reason we have all this bullshit going on is because of Richard Nixon, who declared war on drugs in 1971, and was probably disappointed when Henry Kissinger informed him that secretly bombing "drugs" on Christmas was, like, super impractical.  Especially considering all the drugs in the White House, although, honestly, those were, like, pills, booze, and Elvis Presley's urine, you know, stuff white people get dopey on, and what Nixon was really hoping they could schedule a B-52 flyover on was the kind of stuff Mexicans, black people and hippies use, like, you know, weed and heroin and shit like that.

But I'm mostly pointing this out because the least-true thing that ever came out the side of Dick Nixon's mouth wasn't, "I am not a crook," it was, "You won't have Nixon to kick around anymore," because we'll always have Richard Nixon to kick around.  Look, the man was bent, like a boomerang, and the harder you try to throw him away the faster he spins back around to hit you in the head again.

Burwell v. Hobby Lobby is Richard Nixon's fault.  That's the kind of cutting-edge, one-of-a-kind probing analysis you occasionally come back to Standing On The Shoulders Of Giant Midgets for.  You heard it here.  Feel free to drop that wisdom on anyone you see at a cocktail party next weekend.  "You know, this is ultimately because of Richard Nixon.  Fucking Nixon," you'll say, and then you can toss down your martini and shamble off to see if they have any more of those pigs in a blanket out.

(back to 2)  So after these Native Americans were told their religion wasn't enough to trump the laws because it wasn't, like, you know, one of those real religions like Baptists and Presbyterians and even Catholics and some Jews have, Congress decided that was bullshit because this was the 1990s and everybody loved Dances With Wolves (especially if they'd never actually seen it, in which case they would have noticed it's really plodding and irritating, like its director).  So Congress passed the Religious Freedom Restoration Act and then, a few years later, the Religious Land Use and Institutionalized Persons Act, which basically said "Nuh-uh!" to Employ­ment Division, Department of Human Resources of Oregon v. Smith (the Supreme Court decision that said fake religions don't count) and gave the Native Americans their faith back (having signed these bills into law, Bill Clinton was much less forthcoming with giving back all the millions of dollars in overdue and promised payments the Bureau of Indian Affairs owed Indigenous Americans, which, you, know, arguably might have been more useful than giving back their 'shrooms; but hey, baby steps! Right?).

And dumb libs like me rejoiced, saying, hey, what a victory for autonomy and freedom of conscience and Native People's rights and stuff, scarcely realizing that the United States Supreme Court, much like the shark in Jaws 4: The Revenge, would swim a very long way and wait a very long time to bite the wife of the guy who blew it or another shark just like it up.  Which is what happened this term of Court, in case you couldn't figure out where I was going with that stupid analogy to a dumb movie you're not going to admit you caught in the middle on basic cable one night and actually watched through to the end because insomnia and can you believe that's Michael Caine.  It's okay if you don't get the analogy, really, it seriously isn't you, it's all me, it's a lousy comparison.  And yes, that was Michael Caine and he's admitted he just needed the money.  No idea what Lorraine Gary's excuse was.  Gambling debts, probably.  Or something like.

But that's what this is, anyway: Jaws - The Revenge, with the SCOTUS gleefully--I mean, seriously, if you read half of Justice Alito's opinion like I did, the glee just wafts off the monitor and cloys like some hippie's exercise of religious freedom--just gleefully saying (in so many words, Alito doesn't actually, you know, come right out and say this): "Hey, remember when we said Indians couldn't take 'shrooms for church and you Congresspeople said hey yes they can because we're restoring their religious 'freedom', but you wouldn't just fix or cancel the drug laws, you just wanted to make us look like douchebags?  Well, here's what we're doing with your restoration act, you jackholes, we're going to use it to castrate your healthcare law.  Restore this, Dr. Wankenstein."

And then he does a little jig.  I mean, I'm pretty sure that's really going to be in the bound version of the opinion, a little self-rendered series of Justice Alito in the margins, dancing a little jig on a grave labeled "Congress Dummies".  I hope he can draw better than Scalia.  Those semipornographic doodles in his margins are just embarrassing.  No one knows what those are supposed to be.  I'm not even sure they're semi-pornographic, it's just that that one looks suspiciously like a flaccid penis.  It's possibly supposed to be a circus elephant.  But who knows?

(2, again, because I probably fell off the beam three 'graphs ago)  So if you're not blaming Nixon, blame religion, because if the SCOTUS hadn't taken a piss on Native Americans twenty years ago, and if Congress hadn't "fixed" it with these goofy vague remedies, and if we just treated all religions with equal respect or contempt or just had one religion like all those countries we usually hold in contempt or if we had no religion at all, this would all be a non issue.  But since we have differences of religion that we're supposed to respect even though at some level nobody really does (okay, now I'm just being a grouch, don't take that part too seriously), well--there you are, right?

(3)  But this also wouldn't be an issue if the Affordable Care Act wasn't stupid and America wasn't stupid.  You know what would have kept this whole thing about employers providing insurance that covers birth control to their employees from being a stink?  Single payer healthcare.  You know what will never happen in this country because we're a bunch of goddamn morons?  Single payer healthcare.

We're fucking stupid.  This is your fault.  Not you specifically.  That's the editorial "you" by which I mean people who aren't actually reading this blog post but who could be if they were sufficiently literate.  So by "you" I mean somebody else, not you.  Sorry if that wasn't clear.  Anyway, with that out of the way, you're an idiot.  Still not talking about "you" you, I'm writing about "you".  "You" who isn't reading this.  We hate that guy.  That's the editorial "we", meaning "me".  Not "we" me and you.

Here's how lowdown and dumb this great nation of ours is: because we have this dog-eat-dog, every man for himself, hands off I got mine Jack mentality, nobody has healthcare.  So some employers, over the years, decided they could offer healthcare as a "benefit", which for various tax reasons and so on ends up being cheaper than actually giving those employees a raise.  And then, somehow, that "benefit" went from being a "bonus" to simply being what people expect from a job, and now we have this fucked-up system where where you work determines whether you can avoid dying without declaring bankruptcy to do it.

I mean, to heck with deciding whether or not to declare healthcare some kind of basic human right or anything: it's just a stupid way to manage things, or "manage" them in scare quotes because it's hard to imagine how anything could be more screwed up than employer-provided healthcare.  Hell's bells, no insurance at all and everyone out-of-pocket for themselves would be a more equitable system of providing healthcare, albeit a system of questionable merits and dubious justice.

But this is what we've got, and this is what the Affordable Care Act effectively ratifies by using the stupid system we have instead of one that was less broken (or, heavens forbid, one that actually worked).  And I know, politics and the "This is a Big Fucking Deal" and don't let the perfect be the enemy of the good; I not only grok all that, I've said it myself.  I've said myself that the ACA is better than nothing; of course, now that I think about it, I'm not actually sure that's true.  I think I've contradicted myself by saying, in the past, it's better than nothing, and then saying, in the wake of Hobby Lobby, that it's worse than broken; it's possible it's both.

At any rate, it pretty much puts every patient in the country at the mercy of their bosses' ideas about WWJD.

(4)  And speaking of that, here's one more thing you can blame: corporate personhood.  Because if corporations are people, why couldn't they exercise religions?  And you can scoff the way Health and Human Services apparently did in their brief, and wonder where DuPont goes to church and what does Viacom pray for, and will Disney ever go away on Mission?  But you know what?  Fuck HHS if they thought that this SCOTUS wouldn't extend religious freedom to corporations the way they extended freedom of speech.

And is that the Supreme Court's fault?  No, it's not.  This one is your fault, and mine, and I do mean ours and not the editorial versions of pronouns, I mean actual you and actual me, because corporate personhood is something that our states established and our Congress endorses and ratified.  Delaware will never tell all the companies that have incorporated there to take advantage of the tax structure and incorporation laws that they aren't "people" anymore, something the legislature could do there with a few penstrokes put to a vote.  And your state won't, either, because your state wishes all the corporations incorporated in Delaware would move their corporate HQ and relevant paperwork to your state.  And Congress won't change the Dictionary Act to clarify that corporations may be peoplelike for certain purposes but aren't people at all for anything else, so that won't happen, neither.

(5)  All of which is a long way of saying there's no point in complaining about this bullshit, because what you're smelling is the fecund stench of inevitability piling up around your shoes.  Corporations are people and Congress passed a specific law protecting the religious liberties of people because that's something we're all supposed to care about?  That makes the politically-driven result of Burwell v. Hobby Lobby math, not judicial activism or what you'd like to call it.  Heck, it makes the dissenting opinion basically wrong.  And that "religious act" can be not paying for the insurance you need?  Sure, why not?  A better question is why the Hell is your boss paying for your insurance in the first place?

Why isn't it something administered by the government, using the taxes you pay?  Why is this even a thing in the first place?


The penitence of sons for the sins of their fathers

>> Tuesday, June 10, 2014

At Durban in 2001, [Sir Hillary McDonald] Beckles remembered the "surreal theater" of the black British Baroness Valerie Amos leading a phalanx of historians and legal scholars into the conference, and making three major arguments: first, that since the slave trade was not "illegal" under British law until 1807, it was not technically a crime, and could not be subject to legal restitution; second, that the slave trade was a "joint venture" between Europeans and African leaders, limiting British culpability; and third, that even if the slave trade could be termed a crime, it was a crime whose reparation was "too large be imagined." (Here Beckles shared his own 2001 reply to Baroness Amos: "I have a very large imagination.")
The Junto, A Group Blog on Early American History, June 5th, 2014.

Read the whole post, and also (if you haven't already), read Ta-Nehisi Coates' "The Case for Reparations", which is possibly the most important thing anybody will write this year.  Karp provides a useful context for Coates' piece and the larger conversation we ought to be having--the Transatlantic Slave Trade wasn't just an American atrocity--so long as the general doesn't eclipse the specific; that is, we have an obligation in the United States to address our own Original Sin regardless of what, if anything, the international community does about their own assorted historical roles.

My jaw did drop when I got to the Baroness Amos quote, though, and I felt obliged to add my own two cents: if that's an accurate reflection of the Baroness' views, it's mind-boggling.

Karp follows with Sir Hillary's rebuttals:

Beckles laughingly rejected these arguments—any argument against reparations that rested on the letter of eighteenth century law, he said, could be safely dismissed; and the role of Africians [sic] the slave trade was undeniable but did virtually nothing to diminish British guilt. Could the presence of "local collaborators" in any other historical context be used to exculpate the chief instigators and beneficiaries of such horrific crimes?

--but it seems like Sir Hillary may have missed a specific, historically recent, example of just how shallow the Baroness' argument is: by her lights, the Nuremberg Trials should never have happened. 

After all, genocide was not "illegal" under German law until after the War ended and was not technically a crime, it was a joint venture between Germans and various collaborators in occupied lands, and you could certainly argue that the Holocaust was "a crime whose reparation was 'too large to be imagined'" (indeed, when West Germany and Israel entered into a reparations agreement in 1952,  the primary opposition within Israel to the agreement was that reparations were inconceivable).

The fact is that the ex post facto nature of the Nuremberg proceedings was such an obvious and primary objection to the legitimacy of the tribunal that the Nazis on trial had to be denied recourse to it as a defense.  Nor were the defendants allowed to argue the prior bad acts of their own prosecutors, e.g. the Americans' Indian Removal, or the Soviet Great Purge.  The unfortunate fact, pre-Nuremberg, is that genocide was a novel concept--the word didn't even exist until 1944--and that international law of the immediately preceding years was that there was no international law applicable to wholly internal events, no crimes of universal jurisdiction, what happened in Germany (or occupied Poland) stayed in Germany.  And if the Allied victors wanted to change these rules after the fact, what gave them any moral right to do so?  Certainly not the Anglo-American legal tradition, at the very least.

Legally speaking, the strongest charges against the Nazi regime concerned their treatment of prisoners of war  Morally speaking, the Allies were aghast at what they found in the concentration camps they liberated.  But horror isn't a legal principle; indeed, quite the opposite, the reason a people of laws write the rules down in advance and put them where everyone can see them is so that we don't capriciously punish because of our gut reactions (and fail to punish because of our hypocrisy).  Where the slaughter of POWs was concerned, the Nazis had agreed before the outbreak of War to be bound by the 1929 Geneva Convention.  The rules were written and posted and everyone had agreed anyone could enforce them.  Where the massacre of six million civilian nationals of Germany and occupied territories were concerned, however... a different situation.

And yet this isn't a defense of poor, railroaded Nazis; quite the opposite, in fact: it's almost self-evidently clear that the Allies were under a moral obligation to say and do something about the horrors the Nazis introduced to the world, and to take the Holocaust as an awakening and a point from which to say that the rules would be changed, must be changed, could never again be what they had been and that this was such an important threshold for human civilization to step across that if the future repercussions must extend into the past, so be it.  It was wholly insufficient to say, "Well, you've committed crimes against humanity itself, but I guess you didn't know anyone would be mad about it so, just don't do it again."  It is right to worry about ends being used to justify means, and about the dangers of rationalizing one's actions based on one's good intentions, yes, and to be self-aware of the issues and problems involved in depriving horrible people of basic legal rights for the sake of establishing a more fundamental moral principle; but that doesn't mean it was wrong to do so at Nuremberg, nor does it mean that it would be wrong to do so again for the sake of similarly profound principles connected to similar historic atrocities.

I don't know that there's much to be said about Baroness Amos' remaining arguments against British (and/or American) culpability in the slave trade except more of the same.  The Nazi regime wasn't allowed to shift blame to their Polish proxies at Treblinka, Sobibor, Auschwitz et al., and apologists for the Nazis who have tried to do so in subsequent decades have largely been unsuccessful.  One doesn't even need to spend much time pointing out that whatever atrocities may have been committed by Poles were orchestrated by Germans: it ought to be enough to say that there is plenty of guilt to go around and nothing novel in the idea that ringleaders, co-conspirators, accessories, and accomplices are all culpable alongside their agents, underlings and associates.

Then there is the fact that West Germany indeed did enter a restitution agreement with Israel after WWII.  In "The Case for Reparations", Coates wrote:

Reparations could not make up for the murder perpetrated by the Nazis. But they did launch Germany’s reckoning with itself, and perhaps provided a road map for how a great civilization might make itself worthy of the name.

I think that nails the crucial takeaway.  There's no dollar value that can be rationally assigned to all the suffering of the Holocaust, six million dead and millions more tortured, starved, enslaved, and abused.  Nor has the state of Israel ever had a monopoly on the victims of all that suffering; not all who emigrated to the state of Israel after WWII were victims of the Holocaust, nor did all the survivors of the Holocaust choose to emigrate there.  But the fact that West Germany acknowledged guilt, that the acknowledgement was accepted by Israel on behalf of the Jewish victims of the Holocaust, and that there was something more than mere words proffered (though words are important): these are important things.

It might not be enough for those countries who participated in and benefited from slavery to apologize for it and try, in however crude a way, to make some kind of amends to somebody for it.  But if that proved to be the case, the fact that it wasn't enough wouldn't be a very good reason for not doing anything at all.

It wasn't really enough to hang a bunch of Nazis, not really--it didn't bring anyone back from the dead, it didn't return lost years of suffering endured to any survivor.  But it did acknowledge something had to be done.  It wasn't really enough for West Germany to pay out around 3.5 billion marks--no resurrections, no returns of time and health and joy.  But it did acknowledge something terrible had been done by one group of people to another.  These things do matter.


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