Archive for July 1st, 2014


By now, many folks who have paid attention to the current onslaught of Supreme Court rulings are enraged that the SCOTUS chose to uphold corporate “rights” against things like mandating certain forms of birth control. Of course, most liberal and moderate indignation over the Court’s decision doesn’t seem to include the origins of RFRA, the law that the decision is based on.

As reported in the local news rag:

In a 5-4 decision authored by Justice Samuel Alito, the high court ruled that family-owned for-profit corporations are protected by the Religious Freedom Restoration Act, and as such, do not have to abide by an Affordable Care Act provision that conflicts with business owners’ religious beliefs: “The contraceptive mandate, as applied to closely held corporations, violates RFRA.”

So sure, we discover that the Religious Freedom Restoration Act is the bedrock of the Court’s decision. Well, where did the RFRA come from? Seems that liberals and democrats have nobody to blame but themselves. Via the Volokh’s Conspiracy’s Sasha Volokh:

It’s true that RFRA passed unanimously in the House and nearly unanimously in the Senate — in 1993, when Congress was controlled by Democrats — and was signed by Bill Clinton, and everyone now on the Court seems to accept the constitutionality of RFRA… Justice Stevens is the only one who ever showed any sympathy for the argument that RFRA violates the Establishment Clause, in his concurrence in City of Boerne v. Flores. Nonetheless, Justice Stevens may have been right as a philosophical matter…

In their zeal to prostrate themselves in front of the growing evangelical movements, and to not be seen as anti-religious, democrats saw fit to plant their seeds in a law that now will be used to justify many further religious exemptions. Back to the Missoulian article:

Rep. David “Doc” Moore said it’s hard to understand all the ramifications of a ruling on the first day it’s issued. However… Moore said the Affordable Care Act was poorly written, and the Supreme Court’s ruling illustrates the weakness of the legislation. The decision raises many questions about the overall effectiveness of the law, as well as questions about other exclusions companies can receive.

“If they can exclude birth control, or contraception, what else would a company try to exclude? Chemotherapy? Is their plan going to be so gutted because they can find some objection to it spiritually that life-saving treatment will not be covered?” Moore said.

And of course, other republican politicians are lauding this ruling:

In a statement, Montana Attorney General Tim Fox said he and 19 other state attorneys general filed a “friend of the court” brief in the case, and he lauded the decision “that President Obama’s Patient Protection and Affordable Care Act (Obamacare) violates the religious freedoms of America’s family owned businesses.”

“Today’s ruling by the U.S. Supreme Court in the Hobby Lobby case upholds Americans’ religious liberties,” Fox said. “Two years ago, the U.S. Supreme Court struck down the mandatory Medicaid-expansion provisions of Obamacare, and today, the Supreme Court struck down those offensive provisions of Obamacare that violate the First Amendment religious freedoms of America’s family business owners.”

So, given that the SCOTUS has upheld the First Amendment religious freedoms of corporations, what will be the next shoe to drop? Now that the SCOTUS has ruled that federal regulations are at odds with many religious “freedoms,” it is just a matter of time till the courts are overrun with corporate attempts to use religion to justify an exemption from regulation. It is a sweeping decision that encompasses far more that just contraception, as Jonathan Turley nicely describes:

The [Hobby Lobby] decision has sweeping application – well beyond these companies or the 49 for-profit corporations that have claimed such exemptions. The ruling addresses the very essence of a religious claim and the very essence of a corporate entity.

Closely-held corporations are not as limited as it might seem. I agree with [Justice] Ginsberg that the implications are sweeping. The closely-held corporations represent a huge number of businesses. As I mentioned on CNN, the large corporations are the least likely to demand such exemptions. There are millions of family businesses that may not object not just to the ACA but renew objections to discrimination laws that force such businesses to serve same-sex weddings or engage in other activities that violate their religious beliefs. This is much like Heller and the recognition of individual gun rights. We are still working out the details on how far that goes years after the decision.

Thanks Democrats, for bring us RFRA, the “Original Sin.” And stay tuned. This case will reverberate for decades.

If you want to read about the nature of The Original Sin, Volokh brother Eugene does a good job of describing it:

Some people have argued that the Religious Freedom Restoration Act shouldn’t have applied in Hobby Lobby because the employer mandate doesn’t require employers to actually do anything they see as sinful. The employers aren’t required to use the implantation-preventing contraceptives that they see as immoral. They aren’t required to administer or even handle them. They are just required to provide insurance policies that their employees may then choose to use to buy those contraceptives. Is that a real burden on belief?

That question would be answered “no” if a RFRA claim is brought by an employer who thinks the only relevant sin is actually using the implantation-preventing contraceptives. If the employer is called to the stand and asked, “Do you think that it is religiously wrong for you to provide this insurance?” and the employer says, “no, that’s fine, only using the contraceptives is sinful,” then the employer has admitted that the employer mandate does not impose a substantial burden on his beliefs.

But, unsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too. Many secular people believe this. The law takes this view, in all sorts of contexts. Religious people believe it, too.

If it is a sin (or complicit with a sin–however far you want to try and stretch complicity), then no federal regulation can compel your company to do it, under Hobby Lobby. It’s that simple, and what is considered “sin” will be about as creative as the crazy embodied in today’s ultra-religious crusades. Brothers Volokh, while being conservative constitutional lawyers, have a good handle on where this is going. And Jonathan Turley always brings a great libertarian bent to these sorts of constitutional issues, writing to great effect on the nature of the Obama imperial presidency.

Democrats on the other hand, just prefer to demonize 5 men on the Supreme Court, as if they themselves had nothing to do with this outcome (well, Baucus voted for Roberts, but I digress, Roberts already paid Baucus back with his vote in favor of the ACA mandate). And what we will witness from dems and liberals, is nothing more than a huge outpouring of ineffectual, and misplaced indignity. Little do they see how their simple pandering to the religious right in passing RFRA in 1993 will have a long-standing, and monumental fallout on american society.

by lizard

During the Bush era, those hippie dissidents who didn’t worship our warmonger president with praise and fealty were relegated to Free Speech Zones, and if they stepped out of line, they were arrested. This from The American Conservative (Dec, 2003):

The Justice Department is now prosecuting Brett Bursey, who was arrested for holding a “No War for Oil” sign at a Bush visit to Columbia, S.C. Local police, acting under Secret Service orders, established a “free speech zone” half a mile from where Bush would speak. Bursey was standing amid hundreds of people carrying signs praising the president. Police told Bursey to remove himself to the “free speech zone.”

Bursey refused and was arrested. Bursey said that he asked the policeman if “it was the content of my sign, and he said, ‘Yes, sir, it’s the content of your sign that’s the problem.’” Bursey stated that he had already moved 200 yards from where Bush was supposed to speak. Bursey later complained, “The problem was, the restricted area kept moving. It was wherever I happened to be standing.”

Bursey was charged with trespassing. Five months later, the charge was dropped because South Carolina law prohibits arresting people for trespassing on public property. But the Justice Department—in the person of U.S. Attorney Strom Thurmond Jr.—quickly jumped in, charging Bursey with violating a rarely enforced federal law regarding “entering a restricted area around the President of the United States.” If convicted, Bursey faces a six-month trip up the river and a $5000 fine. Federal magistrate Bristow Marchant denied Bursey’s request for a jury trial because his violation is categorized as a “petty offense.” Some observers believe that the feds are seeking to set a precedent in a conservative state such as South Carolina that could then be used against protesters nationwide.

That kind of dissent wasn’t tolerated, and conservatives didn’t seem to have a problem with that.

Now, a different kind of zone is making headlines, the buffer zone for anti-abortion “sidewalk counselors”. The Supreme Court is suddenly concerned that a movement which has utilized terrorist tactics like bombing, out-right assassination, stalking, trespassing and criminal mischief are being denied their free speech. The very real, very legitimate fear from women and staff at the (ever-decreasing) clinics where abortions are performed don’t matter to the conservative justices decreeing their hypocrisy from the bench.

There is a potential implication to today’s ruling regarding buffer zones worth noting, and that’s whether or not the buffer zones imposed by ordinances like Missoula’s aggressive solicitation ordinance are similar enough to withstand Supreme Court scrutiny.

They’re not sure in Worcester, Mass:

Today’s Supreme Court ruling, Wunsch says, is important for Worcester in another way. Just last week, the First Circuit Court upheld a previous court decision denying an injunction against all but one part of Worcester’s two panhandling ordinances, which were passed by the City Council in January 2013. One of the ordinances bans “aggressive panhandling,” which in one way is defined as soliciting donations for any cause within 20 feet of the entrance to a bus stop, theater, ATM machine, or any other “place of public assembly.” This “20-foot buffer zone,” Wunsch says, is “way more of an interference [of freedom of speech] than the reproductive clinic law.”

Those asking for help on public streets and sidewalks, Wunsch says, should have the same rights as those protesting or counseling in front of health clinics, like Planned Parenthood. But now, Worcester will allow speech immediately outside of the Pleasant Street clinic, while panhandlers will be required to stay outside of 20-foot buffer zones.

“It’s almost impossible to see how that can stand in light of the McCullen ruling,” says Wunsch.

And they’re not sure in Lowell, Mass (this article is from April, 2014):

Lowell officials have told U.S. District Court Judge Douglas Woodlock they will voluntarily suspend enforcement of the city’s panhandling ordinance if Woodlock agrees to postpone a decision on an injunction against the city and wait for the U.S. Supreme Court’s ruling on abortion-clinic buffer zones.

A week before the Supreme Court decision, a first circuit judgement upheld Worcester’s panhandling law:

The First Circuit Court of Appeals upheld a previous decision supporting Worcester’s ordinances prohibiting aggressive panhandling.

“The First Circuit upheld the district court decision not to enjoin the city from enforcing the ordinances,” said City Manager Edward Augustus in a statement. “The court agreed that the ordinances regulate behavior, not speech, and are motivated by legitimate and substantial public safety concerns.”

So if the fear women experience going to a clinic that performs abortions doesn’t warrant buffer zones due to legitimate and substantial public safety concerns, why should there be buffer zones imposed on panhandling?

A twitter conversation I had with Mayor Krauss offers a condensed back and forth that I found illuminating. After failing to format a screen shot, I’ll just reproduce the text:

Mayor Krauss: “aggressive panhandling” & “gauntlets” at abortion clinics. Of course you’re all consistently pro free speech? Or for controls? #mtpol

William Skink: .@MayorKrauss is there a history of panhandlers firebombing private property?

Mayor Krauss: “@madpoet19: is there a history of panhandlers firebombing…?”or stabbing businessmen to death? “Free speech” is the subject, not violence

William Skink: @MayorKrauss I think both confuse speech with physical acts of violence. to justify ban on sitting, example of woman chased by transient.

Mayor Krauss: “@madpoet19: “Intimidation”, “perceived threat” vs speech seems to be the issue with both. You protect speech w/o equivocation?

There was a little more, but that’s the gist.

To add a little more context to the juxtaposition of violence represented in the above tweets, my example of firebombing, which I mentioned earlier is just one of many terrorist tactics used by the anti-abortion extremists, was countered with the example of a random act of violence that left a prominent Billings photographer dead. And why did this man get stabbed? If you follow the logic of this Billings Gazette article, it’s because he gave money to panhandlers:

People who work near the Fargo Hotel Building, 14 N. 24th St., say the generosity of Michael S. Sample, 66, attracted a steady stream of panhandlers to the area and may have contributed to his death.

Sample died Thursday after being stabbed three times, allegedly by Zachariah James Wiseman, 23, who has been charged with deliberate homicide.

People were frequently seen knocking on the door of the building asking for money.

“Usually there’s about 10 to 15 people that come by,” said Tyler Myers, an alignment technician at Whalen Tire, 2318 First Ave. N., which is across the street from the Fargo Building. “Everybody knows he goes and gives out money for free.”

And here is how the Billings Gazette article rounds out its victim-blaming hit-piece on Michael Sample:

It is unclear whether Wiseman was homeless. Police records have an address for Wiseman in Billings, said Lt. Kevin Iffland. He is not listed as a transient.

There is no information on Wiseman’s occupation, Iffland said.

From across the street, Myers said he had seen Sample give people he believed to be transients cash on many occasions, cracking the door to his business or passing money directly through the mail slot. When he didn’t come to the door right away, people would wait or badger business people for long periods of time.

“Those guys were very persistent,” Myers said. “They would be knocking on his door for half an hour, an hour.”

Myers said his manager told him about an incident where Sample had been attacked by panhandlers in the past. But no reports had been made to the Billings Police Department, Iffland said.

Gene Burgad, owner of The Rex, which shares an alley with the Fargo Building, had made similar observations.

“He would give them money right out of his wallet,” Burgad said.

Burgad said employees occasionally have to ask panhandlers to leave their property when they stop at The Rex to ask for money.

“There’s people that sometimes bug my customers,” Burgad said. “I will just walk to my car, and people will ask me for money, occasionally.”

It’s really sad this tragedy was immediately turned into a homeless/panhandling story when, as admitted in the article, it’s “unclear whether Wiseman was homeless.

The fear generated by stories like this ensure support for the constitutionally dubious buffer zones for panhandlers. But after yesterday’s Supreme Court ruling, supporters of these zones may want to rethink their approach.

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