Are You American?
To the Republican Party, this is apparently the same question as “are you an affluent white suburbanite?”
Harris Aftermath
Mostly, this is a good rundown of reactions to the Harris decision. In particular the piece by Eileen Boris and Jennifer Klein and the Joshua Freeman essay get at one key issue–that the work of women and especially poor women is consistently undervalued in our society.
From Boris and Klein:
So why do the Court’s conservatives advance an argument that is out of step with historical, economic and social reality? Part of the reason certainly lies with the nature of the work: domestic tasks done by women in the location of the home, unrecognized as a place of waged labor. Additionally, the labor has been devalued and dismissed because of the stigmatization attached to the work of poor women of color, the legacy of slavery and discrimination. In this context, Harris v. Quinn becomes a direct assault on the livelihood of some of the nation’s lowest paid workers. It is part of the right’s war on women, its demonization of public employees and battle against the union idea.
And from Freeman:
Instead, Harris is an extension of a different tradition in American labor law, the denial of rights to workers in industries dominated by female and non-white workers. Far from universal, the major New Deal labor laws—the National Labor Relations Act, the Social Security Act and the Fair Labor Standards Act—explicitly excluded particular occupations, including farm work and domestic labor, which had large numbers of female, African-American and Mexican-American workers. While some racially and sexually biased exclusions were later eliminated, Harris effectively extends this history of discrimination.
I do have to take exception to Jane McAlevey’s article because unlike the historians quoted above, it pushes ideology over analysis as to the real problem at hand in the decision. For McAlevey the problem is not enough internal democracy in modern unions. While I don’t dispute this is a weakness of the American labor movement (although aren’t European unions even more bureaucratic and top-down than American unions? European unions are certainly far larger and more integrated into corporate decision-making than in the US), I fail to see what it has to do with the Harris decision or how pushing more internal democracy unions will to do to influence the Supreme Court. Unfortunately this sort of ideologically charged critique is far more common in left-labor circles than it should be, not because those making it are wrong exactly but because it gets in the way of understanding the real reasons labor is in trouble that are far more persuasive than blaming it on Big Labor. But it’s at lot easier to whip your enemies in the labor movement than deal with the major structural problems causing labor’s decline like capital mobility, the organized conservative movement, and the growth of the business lobby after the Powell Memo.
Give Me Your Tired, Your Poor
The whites of Murrieta, California sure know how to celebrate July 4. They kick it old school, through expressions of white supremacy.
MURRIETA, Calif. — Suddenly, this city in the desert has become the place that turned away the immigrants.
When the three busloads of immigrant mothers and children rolled into town for processing at a Border Patrol station this week, they were met by protesters carrying American flags and signs proclaiming “return to sender” as they screamed “go home” and chanted “U.S.A.” Fearing for the safety of the migrants and federal officers, immigration officials decided to reroute the buses to San Diego, an hour south.
And a day after many here celebrated what they saw as a temporary victory, more than a thousand residents packed a high school auditorium on Wednesday night for a town-hall-style meeting that lasted more than four hours, voicing fears about an influx of migrants.
“What happens when they come here with diseases and can overrun our schools? How much is this costing us?” one resident, Jodie Howard, asked the mayor.
“How do you know they are really families and aren’t some kind of gang or drug cartel?” another person asked federal officials.
What about when they violate our white women creating mongrelized children and undermining the white race? Who will protect our young women from committing race suicide with these savages? And what about their foreign ideologies they bring up with them from the jungles? Only a campaign of 100% Americanism will save us from this foreign threat.
The Party of Ideas (TM)
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.
Patriotic Tetanus
This July 4, remember the true cost of freedom:
These wild, towering conflagrations garnered support at the beginning of the twentieth century from an unlikely quarter: the national movement for a Safe and Sane Fourth of July. In 1903, the year that the Journal of the American Medical Association first compiled statistics, celebrations of the Glorious Fourth left more than 400 dead and nearly 4,000 injured. Blank cartridges, fired off by children with toy guns, were the leading cause of injury. “Patriotic tetanus” often ensued; the bacillus claimed most of its annual victims in that first week of July. Parents, one reformer wrote, “each hoped that the Angel of Death might pass by our own child and that it might be only a strange little toddler whose eyesight would be destroyed or whose pretty baby fingers would be torn and mutilated.”
In comparison, the deadliest single battle of the American Revolution was the Battle of Oriskany, during the Saratoga campaign, where about 400-450 died.
And before meaningless rhetoric about how this nation is the greatest in history, perhaps reading Frederick Douglass’ 1852 July 4 address is in order. In part:
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.
Go where you may, search where you will, roam through all the monarchies and despotisms of the old world, travel through South America, search out every abuse, and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me, that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.
…..Also, if you feel like making your own fireworks, here’s some instructions from the 1920s on how to do it.
Cruise Missiles!
My latest at the Diplomat thinks through some of the implications of cruise missile diffusion in Southeast Asia:
Vietnam already has multiple platforms available for the deployment of cruise missiles. Su-30MKs can launch a variety of cruise missiles, as can the Kilo-class submarines recently acquired from Russia. Vietnam could also employ land based cruise missiles, and launch cruise missiles from its Russian-built frigates. Moreover, Vietnam could potentially acquire an arsenal of sophisticated cruise missiles from India, Russia, Europe, or the United States. The Philippines has fewer resources to draw upon, but could embark on a similar buildup.
Sincerely-Held Beliefs for Everybody!
The discussion about the Hobby Lobby ruling has me wondering if the court has all but come out and said that the beliefs of believers carry more weight more than non-believers. How does the sincerely-held belief nonsense not quickly becomes a slippery slope? It almost has to in order for the ruling to be fair. It is my sincerely-held belief that people like the Greens are humongous assholes. If they were, say, working for me, it is my sincerely-held belief that I should be able to fire them simply because they are enormous assholes and because they support–in their private time–causes I don’t support. (I don’t really believe this because, unlikes the Greens, I am not an enormous asshole.) Now, I am not a person of faith. What informs this opinion is just my sincerely-held belief. But exactly how are my sincerely-held beliefs any less important than the sincerely-held beliefs that are informed by mythology? The way I see it, if religious people get to skirt the laws, everybody gets to skirt the laws. I’m looking forward to that!
The following is a encore presentation of a post I wrote awhile back on this very subject:
“Let the beleaguered nose sneeze unfettered as its suffering is a tribute to our lord-dragon, Geoffrey.”–Geoffrey
You may not believe this, but I am a job creator. I pay–no kidding–a Canadian art student to cut things out of digital photos for me. Now this Canadian art student is not like the ubiquitous Canadian girlfriend you may have heard about–no. She is a real person whom I pay to do a service for me because I have back issues. Unfortunately we will be parting ways because I don’t want to pay for her allergy medication.
The way I see it, if my employee doesn’t want to suffer from allergies she should stuff a couple aspirin up her nose. At the very least she should keep her damn nostrils shut. Because I’m not going to pay for her slutty nose to remain histamine-free. It’s against my religion to do so.
See, I have deeply-held religious beliefs that prevent me from covering allergy medications for my
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employee. Sure, I just started my religion 15 minutes ago, and I worship a plump, stuffed, green dragon named “Geoffrey” that I may or may not have pulled from my son’s toy cubby. But this is my religion and it means something to me; it’s been the guiding force in my life for minutes now. And I’m not going to go against the word of Geoffrey because just because Obummer has gotten it in his head that employees deserve comprehensive preventative care. Canadian student’s rights to healthcare end where the stuffed dragon’s arbitrary rules begin.
Listen, it’s no fun for me, either. I can no longer eat dragonfly sandwiches on Friday. And insect-less Fridays are no fun for anybody. But my job is not to question; my job is to obey the word of Geoffrey. The stuffed dragon.
OK, I could continue this for quite some time–I have lots of Geoffrey material. But I kinda want to wrap this up and get to my point. And my point is this: predicating things as important as healthcare coverage on the fickle and arbitrarily-enforced rules of an imaginary character is a recipe for disaster.
I bring this up because in one of Scott’s previous threads beloved commenter, David M. Nieporent, said that in order for an employee to, say, arbitrarily make up rules according to a new religion, one would have to perjure herself. And that got me wondering: How would one go about proving perjury in such cases? What, exactly, could stop me from starting my own religion right this second? All religions had a beginning. Mormonism–aside from being batcrap crazy–is incredibly new so far as religions go. Scientology–in addition to being a creepy cult–is newer still. All religions have a beginning. And, yeah, they’re all weird. And they seem especially weird when they’re new. So I fail to see how Geoffreyism is any less meaningful or real than any other religion. But I look forward to people attempting to prove that it is.
Praise Geoffrey!
“Substantial”: A Word That Means Something
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.)
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.
Hardware Wars
I mostly hate the whole Star Wars series and am generally disinterested in science fiction. But as a man of a certain generation, I have of course seen all the original Star Wars movies, for better and worse. So Hardware Wars, which I don’t doubt many of you have seen, was of moderate interest. I can’t exactly say this is good or even near the level of Spaceballs, which is a bad movie. But it might be the first Star Wars parody, which is something. Right?
Attention, Interest, Decision, Action
Over the last few years, the Thomas Cooley School of Law has become something of a byword for what’s wrong with American legal education, so it’s fitting that it has become the first school to downsize by actually closing an entire campus:
As with most law schools across the country, Cooley’s enrollment and revenue have continued to decline. Despite our ongoing cost control efforts, it has become apparent that we must now reassess our costs, including our faculty and staff levels, in light of current enrollment. Thus, Cooley’s board of directors and administration are instituting a financial management plan designed to right size and reinvent the school. Unfortunately, and as has occurred at a number of other law schools, the plan will include faculty and staff layoffs. As part of the plan, Cooley will also hold off enrolling incoming first-term students at the Ann Arbor campus for fall 2014, though all currently enrolled Ann Arbor students will continue to be able to pursue the school’s full curriculum.
The plan includes the following features of particular interest to students:
• We will work to keep tuition increases as low as possible. Details will be available in the coming weeks.
• We will continue to reward students through our already generous scholarship program.
• The 2014/15 academic calendar will not change.
• Student services will not change.We are confident that this plan will help us remain at the forefront of innovative approaches to legal education and continue to deliver the broad, high-quality access to legal instruction students have come to expect from Cooley.
Between 2010 and 2013, the school’s first year class contacted from 1,583 students to 582, and with the continuing slide in applicants to law schools in general it’s not surprising that TCSL is enduring major financial strain. This is now apparently the case even though as little as two years ago the school was still practically printing money, as it extracted more than $90 million per year in net tuition revenue from its federal educational loan conduits students. Cooley’s most recent publicly available financial disclosure forms are from FY2012, and they reveal a healthy 14% profit margin in regard to revenues over expenses. Of course technically Cooley doesn’t generate any profits, since it’s a non-profit organization organized for charitable purposes, and therefore exempt from paying federal income taxes.
At the time the main beneficiaries of this charitable endeavor included President & Dean Don LeDuc, who pulled in $575,562 in reportable compensation, and $45,905 in other compensation, and ranting old man distinguished emeritus professor (and former chief justice of the Michigan supreme court) Thomas Brennan, who received $329,198 in reportable and $43,865 in unreportable compensation, for what the school itself characterized in its financial disclosures as an average weekly work load of five hours. (This works out to an hourly wage of $1,492.25 for those of you scoring at home).
. . . And keeping it all in the family:
Laura LeDuc has been promoted from assistant dean to the newly created position of Associate Dean for Planning, Assessment, and Accreditation. In her new role, LeDuc supervises the school’s institutional planning and assessment activities and oversees Cooley’s relationships with its two accrediting bodies, the ABA and the HLC. She is based at the school’s Lansing campus.
If there’s one thing we’ve learned about higher ed in America in the 21st century is that you can never have enough associate deans for planning, assessment etc. etc. (Laura LeDuc is Don LeDuc’s daughter. She was paid $108,385 in 2011-12 when she was a mere Director of Planning, so no doubt a generous raise is in order).
Note that Cooley’s attempts to “keep tuition increases as low as possible” have resulted in the school raising tuition from $28,625 in 2008 to $43,500 in 2013.
Expect a lot more developments along these lines over the course of the next 24 months or so.
Update: Law School Truth Center counts the human cost:
Now, because of the lies spread by selfish malcontents, a city of 110,000 is left with only one law school.
