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The Party of Ideas (TM)

[ 19 ] July 4, 2014 |

Many smart people are, for obvious reasons, making fun of the latest round of Young Reactionaries With Exciting New Ideas. (You will be thrilled to learn that their plans for poverty involve letting them eat states’ rights.) A commenter had an idea, which I later originated, of a link that would serve as an all-purpose description of this genre of articles:

With great fanfare Monday, Taco Bell unveiled the Grandito, an exciting new permutation of refried beans, ground beef, cheddar cheese, lettuce, and a corn tortilla. “You’ve never tasted Taco Bell’s five ingredients combined quite like this,” Taco Bell CEO Walter Berenyi said. “The revolutionary new Grandito, with its ground beef on top of the cheese but under the beans, is configured unlike anything you’ve ever eaten here at Taco Bell.” The fast-food chain made waves earlier this year with its introduction of the Zestito, in which the beans are on top of the lettuce, and the Mexiwrap, in which the tortilla is slightly more oblong.

“Substantial”: A Word That Means Something

[ 207 ] July 3, 2014 |

The Supreme Court has granted an injunction to Wheaton College, which argued that even having to fill out a form to exempt itself from the contraceptive coverage requirement violates its RFRA rights.  The dissent, by Sotomayor and joined by Ginsburg and Kagan, notes what should be obvious:

RFRA requires Wheaton to show that the accommodation process “substantially burden[s] [its] exercise of religion.” “Congress no doubt meant the modifier ‘substantially’ to carry weight…”


Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.

An analogy used by the Seventh Circuit may help to explain why Wheaton’s complicity theory cannot be legally sound:

“Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who’s been called up tells the selective service system that he’s a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he’s told: ‘you know this means we’ll have to draft someone in place of you’—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to ‘trigger’ the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non‐Quaker replacement?”

Here, similarly, the filing of the self-certification form merely indicates to the third-party administrator that a religious nonprofit has chosen to invoke the religious accommodation. If a religious nonprofit chooses not to pay for contraceptive services, it is true that someone else may have a legal obligation to pay for them, just as someone may have to go to war in place of the conscientious objector. But the obligation to provide contraceptive services, like the obligation to serve in the Armed Forces, arises not from the filing of the form but from the underlying law and regulations.It may be that what troubles Wheaton is that it must participate in any process the end result of which might be the provision of contraceptives to its employees. But that is far from a substantial burden on its free exercise of religion.

The idea that what constitutes a “substantial burden” has to be determined by the party alleging the burden is absurd. Unfortunately, that seems to be the standard that Hobby Lobby established, and as a result the opinion is both very broad and will prove to be completely unworkable.

…I note as well that Kim Scheppele’s analysis of Bush v. Gore seems applicable to an increasingly wide array of conservative jurisprudence. “The Knights Who Say Ni” seem to be the Federalist Society’s most influential role models.

Should Liberals Be Applauding Hobby Lobby? (SPOILER: No.)

[ 398 ] July 3, 2014 |

You will be highly unsurprised that Damon Linker has once again done his “liberalism, properly understood, compels agreeing with conservatives” routine:

The Supreme Court’s 5–4 decision in the Hobby Lobby case — giving certain corporations an exemption under the Religious Freedom Restoration Act to the Affordable Care Act’s contraception mandate — is a travesty, an outrage, a monumental setback for the rights and reproductive health of women.

At least that’s what many liberals are saying.

Which is unfortunate. Because liberals should be cheering the decision on.

Um, why?

Yes, liberals should uphold individual rights, but they should also uphold the freedom of private entities like churches and businesses to maintain their religiously based identities, even when part of that identity clashes with the rights of individuals.

But wait! Isn’t that contradictory?

Of course it is. Just like life itself.

As everyone except children and ideologues understand, goods sometimes conflict with one another. Liberalism’s greatest virtue and strength as a political philosophy is its effort to adjudicate those conflicts, to allow people on various sides of moral and theological clashes to reach peaceful settlements that, on the whole, maximize human freedom.

This mode of argument — “this case presents a clash between potentially legitimate interests, so in conclusion, I win” — is, to put it mildly, unsatisfying. So there’s a clash of interests — why should we favor the company’s position when the logic applies equally the other way? Since Linker doesn’t actually use any discernible criteria to reach his conclusion, I thought it would be useful to try to actually think through this problem. It seems to me that there are three major things liberals should be thinking about when presented with this kind of problem:

Would this alleviate or reinforce domination? Democratic values should seek to increase individual liberty by attenuating power relations, private as well as public. In this case (since state power is implicated either way) this would compel siding with the workers, not the employers who wish to deny them something they have a right to based on religious values they don’t share. Linker, conversely, seems to side with Alito’s illiberal “kiss up, kick down” assumption.

Who would bear the greatest burden of the accommodation? This is both possibly the most important question and where the case for Hobby Lobby really collapses. I agree that liberals should in some cases accommodate religious belief where doing so doesn’t burden third parties. If there are two people working in pharmacy and one opposes Plan B on religious grounds, having the employee who doesn’t object fill the prescription makes sense. If this creates a de minimis burden on a third party — say, waiting an extra five minutes — that’s fine. If this means a substantial burden for the customer — say, waiting until tomorrow — then the employee should fulfill the prescription irrespective of her religious conscience.

In the case of the contraceptive requirement, the burden on third parties is clear, direct, and material. Employees will be denied a something they worked for and are entitled to under federal law without being compensated for the denial. The burden on employers, conversely, is so abstract and attenuated it’s hard to even explain what it is. The Greens are not required to use contraception or advocate the use of contraception. They are not making the decision about what insurance should cover, and they are not making any employee’s decision to use contraceptives (which, as Ginsburg’s dissent observed, is an autonomous choice of a woman and her doctor.)

When a clash of interests presents a substantial burden against a trivial one, it seems obvious that all things being equal the claims of the former should prevail. Combining points 1 and 2, Linker’s resolution of the problem produces a net diminution of religious freedom, rather strongly suggesting that he’s reached the wrong answer.

Is the Standard Workable? This this involves legal decisions that will apply to future cases, we also have to ask whether the standard created will lead to perverse consequences going forward. Alito’s Bush v. Gore-style attempt to make Hobby Lobby good for this day and train only notwithstanding, the decision logically gives employers who want to engage in various forms of discrimination a strong argument. Linker attempts to respond:

Which leads, inevitably, to another objection: Couldn’t racist business owners use the reasoning in the Hobby Lobby case to claim religious exemption from statutes that ban discrimination against African-Americans?

Answer: They can try, but they will fail.

Beyond the meticulous narrowness of Justice Samuel Alito’s majority opinion, there’s the fact that racism is much less deeply woven into the fabric of Judeo-Christian scripture, doctrine, and theology than are traditionalist teachings on sex and gender. For that reason it is far more difficult to craft a religiously grounded case for racial discrimination.

This distinction — between what is truly fundamental to a faith and what isn’t — is one that the courts absolutely cannot make. They might be able to inquire into whether a belief is sincere, and they can certainly inquire into whether a burden is substantial, but it would not merely be wrong but would also violate the Establishment Clause for judges to make inquiries into what “really” counts as a religious tenet and what doesn’t. I also note that the claim that opposition to contraceptives is “deeply woven” into the Greens’ Protestant faith is…highly questionable, a point Linker neatly elides by raising the question to the higher level of abstraction of “traditionalist teachings on sex and gender.” At any rate, if this is Linker’s limiting principle, the answer is that there is no limiting principle; the conflicts will be resolved by judges determining which litigants they take seriously and which they don’t.

There are cases where religious freedom might pose a difficult problem for liberalism. Hobby Lobby isn’t one of those; its claims plainly should have been rejected.

Subtext Becomes Text

[ 97 ] July 3, 2014 |

Hobby Lobby edition.

Sam Alito: The Most Consistently Reactionary Supreme Court Justice Since James McReynolds

[ 139 ] July 2, 2014 |

This has been a long-standing hobbyhorse of mine. But (much of the ludicrously incompetent journalism surrounding his nomination notwithstanding) if you’re a progressive between Alito and Scalia you’d much prefer the latter. Ian Millhiser brings more data:

What makes Alito a partisan is that there is no similar case where his judicial philosophy drove him to a result that put him at odds with his fellow conservatives. Shortly after Hobby Lobby was handed down, ThinkProgress contacted several legal scholars and Supreme Court advocates asking if they could identify a single closely divided case where Alito broke with his fellow conservatives to join the liberals. Most replied that they could not think of any. One, Boston College Law Professor Kent Greenfield, added that “Scalia is a Roosevelt liberal in comparison” to Alito. Another, a progressive attorney who frequently practices in Alito’s Court, wrote back with just four words — “Nope. He’s the worst.”

Read the whole etc.

More Birth Control Derp

[ 157 ] July 2, 2014 |

Defending his silly post, Sean Davis comes prepared with talking points:

He’s joined by Volokh’s Jonathan Adler:

I guess we have to work through this again:

  • The FDA warning labels are an anachronism. As the Irin Carmon post I linked to yesterday explains, “the amicus brief filed by the American College of Obstetricians and Gynecologists and several other medical associations, ‘there is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy.’  Instead, they prevent ovulation, so there is no egg to fertilize. That includes the longer-acting Ella: “There is no evidence that [Ella] affects implantation.’” (I know that was all in yesterday’s post too, but apparently Davis doesn’t read very carefully.)  The FDA warning label does not reflect the current understanding of scientific experts.
  • Even if we were to assume arguendo that Ella prevents implantation, it doesn’t end a pregnancy and hence doesn’t cause abortions.
  • The fact that most people who want abortion banned don’t want birth control pills banned makes it clear that they don’t think this either, or at least shows that they understand that their views are so widely unshared that they can’t be candid about the implications of their views.
  • I also note that the scientific inaccuracy of the belief that emergency contraception is an abortifacient is not, in my view, relevant to the merits of the litigation.  I agree with all nine justices in Hobby Lobby that the courts should be extremely deferential to claims of sincere religious belief.  It’s tempting in this particular case to question the sincerity of the expressed view, but it would be unwise.  Rather, the claims of Hobby Lobby and the other litigants should have failed because 1)the requirement that insurance plans cover contraception does not substantially burden the religious beliefs of employers, and 2)accommodating the employers leads to unacceptable burdens on third parties who do not share their religious views. 

That Word “Science,” I Do Not Think…

[ 94 ] July 1, 2014 |

Sean Davis’s unfortunately titled essay at the Daily Domenech represents the usual combination of strawmen and failures to understand basic points, such as the fact that employer-provided health insurance is something you earn and it’s required to cover things for obvious reasons. But he also tries to defend the claim that the Hobby Lobby litigation was actually about abortion:

The truth of the matter is that the case was about abortion, specifically four types of contraception that can result in the destruction of a fertilized egg. Hobby Lobby paid for 16 different types of non-abortive contraceptive coverage for its employees. The anti-science Left, however, argues that a fertilized egg doesn’t count as human life, and therefore there’s nothing wrong with killing one. After all, nothing says “pro-Science” like comparing a human embryo to a fingernail.

On the idea that most of these forms of contraception can “result in the destruction of a fertilized egg,” sadly, no:

The baseline question here is whether potentially and intentionally preventing the implantation of a fertilized egg constitutes abortion. That’s not the medical definition of abortion, which is ending a pregnancy. But let’s say your sincerely held belief is that interfering with the implantation of a fertilized egg is tantamount to abortion, as it is for the Hobby Lobby and Conestoga Wood owners. There is very little evidence showing that the objected-to methods – two forms of intrauterine devices and two forms of emergency contraception – even work that way, with the exception of the copper IUD.

There are two kinds of emergency contraception on the market: an over-the-counter one generally known as Plan B and a prescription-only one known as Ella. According to the amicus brief filed by the American College of Obstetricians and Gynecologists and several other medical associations, “there is no scientific evidence that emergency contraceptives available in the United States and approved by the FDA affect an existing pregnancy.” Instead, they prevent ovulation, so there is no egg to fertilize. That includes the longer-acting Ella: “There is no evidence that [Ella] affects implantation.”

One form of the IUD, known on the market at the Mirena, includes hormones that prevent ovulation. The other, preferred by women who experience side effects from artificial hormones, doesn’t. “When used as emergency contraception” – i.e., after unprotected sexual activity – “the [non-hormonal IUD] could also act to prevent implantation,” according to the amicus.

If you’re keeping count, that’s one out of four that maybe does what the plaintiffs say it does, in the rare instances it’s inserted after unprotected sex – and that’s still not the medical definition of abortion.

But let’s assume that Davis actually knew what he was talking about, and that some forms of birth control that destroys a fertilized egg is killing a human life. If he actually believes this, then the exemption won by Hobby Lobby from its friends at the Supreme Court is almost comically inadequate. “You can murder — but do it on your own dime!” Davis’s boss (correctly) believes that birth control, including birth control the scientifically illiterate believe to cause abortions, should be available over-the-counter. Does Davis think that Dommenech is a supporter of legalized murder? If he believes his own rhetoric, he must.

But of course he doesn’t. There’s not much point investing significant time in rebutting this kind of “pro-life” argument, since it’s plain that almost none of the people making the arguments believe them either.

Statutory Rights Are Not A Luxury Good

[ 384 ] July 1, 2014 |

Megan McArdle believes she has a gotcha with respect to yesterday’s egregious Hobby Lobby decision:

Logically, this is incoherent, unless you actually believe that it is impossible to buy birth control without a side payment from your employer. (If you are under this tragic misimpression, then be of good cheer! Generic birth control pills are available from the drugstore for about $25 a month.)

Otherwise, according to the reasoning of that tweet, I am being denied something every time my employer refuses to buy it for me: cars, homes, Hummel collectible figurines. And don’t I have a First Amendment right to express my love of round-faced Bavarian children doing adorable things?

The answer is that yes, of course, I have a right to buy Hummel figurines, or automobiles, or a slightly-falling-apart row house within convenient walking distance of the Capitol. But that does not mean that the government should compel my employer to purchase them for me, particularly if my employer is a rabid environmentalist who thinks that everyone should bike to work. Why is birth control different?

Let’s leave aside McArdle’s assumptions that 1)if $25 a month is no big deal for her it’s no big deal for anyone and 2)that birth control bills are equally as effective as more expensive IUDs and get to the real howler. Oddly, McArdle seems to think that she’s posing a rhetorical question in her last sentence. But there’s a perfectly obvious response. Your employer does not receive any tax benefits for compensating you with Hummel figurines or automobiles instead of wages. It does, however, get tax benefits for compensating you with health insurance instead of wages. (It would be nice if health insurance were decoupled from employment entirely, but needless to say this isn’t the alternative preferred by conservatives like McArdle.) Because of this, the insurance provided in lieu of wages actually has to cover things. After the ACA was enacted, contraception for women became one of those things. Women compensated by employers, in other words, have a statutory right to have contraception covered if they choose to use it. This is not, as McArdle suggests, a “side payment.” It’s part of an employee’s compensation package. What Hobby Lobby wants is to pocket the tax benefits for compensating their employees in health insurance but not to provide the full benefits to their female employees. (Mr. Plow remains very influential among contemporary Republicans.)

So, in other words, critics of the decision are correct to note that yesterday’s opinion denies employees something they’re entitled to. Does McArdle have any defense for the Court’s proposition that Congress intended any bare assertion of religious conflict to trigger strict scrutiny for every federal regulation? Of course not; the decision reaches a pro-employer, anti-employee outcome that feels right to her, and that’s good enough. (She actually seems to think that this was a 1st Amendment rather than a statutory case, although this isn’t entirely clear.) And, in fairness, since that was also good enough for the Court I’m not sure why she should bother actually mounting a defense of the opinion.

Hobby Lobby and the War on Women

[ 237 ] June 30, 2014 |

Shorter Sam Alito: When Congress said that the executive cannot impose a “substantial burden” on the religious beliefs of “persons,” it meant that it cannot impose “any burden, no matter how trivial and no matter what the burden to third parties” on “closely held corporations.” However, our consideration is limited to the present circumstances, for the problem of women and their strange parts generally presents many complexities.

“Both Decisions By Justice Alito”

[ 318 ] June 30, 2014 |

Well, this is going to be horrible.

I would like to take this opportunity to note that journalism rarely gets worse than Stuart Taylor’s paeans to the reasonable, moderate Sam Alito.

MisogynistFest 14: I Link, You Decide

[ 97 ] June 30, 2014 |

Unreliable narrator.

Reliable narrator. Sample:

Barbara Kay, a columnist for Canada’s National Post, argued that Santa Barbara shooter Elliott Rodger couldn’t have been driven by hatred of women because “he hated women because they rejected him sexually, but he also hated men because they had access to women.”

Rape on college campuses, she added, was a myth perpetrated by man-haters, and the concept of rape culture, how society can tacitly approve of or rationalize sexual assault, was “baseless moral panic.”

“The vast majority of female students allegedly raped on campus are actually voicing buyer’s remorse from alcohol-fueled promiscuous behavior involving murky lines of consent on both sides,” she said, drawing chuckles from the audience. “It’s true. It’s their get-out-of-guilt-free card, you know like Monopoly.” The chuckles turned to guffaws.

Even the hashtag #bringbackourgirls, which emerged in the aftermath of the kidnapping of more than 200 girls in Nigeria, allegedly by the Islamist terror group Boko Haram, was an example of misandry, Kay explained, because there was not a similar response to the slaughter of a smaller number of boys earlier in the year.

To conclude:

As We Await Hobby Lobby

[ 38 ] June 30, 2014 |

A good rundown of the various scenarios.

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