F*'ing Bullshit

So I go away for a weekend in Connecticut and while traveling across the country, all hell seems to break loose - the Supreme Court comes down with its decision in Hobby Lobby.  And suddenly, I'm getting emails from people saying, "Phat Jim, where's your opinion on the Hobby Lobby case?" Well, here goes. . .

According to Wikipedia, corporations have existed since Roman times (500 AD or so), and in the one thousand and five hundred years of corporate existence, it wasn't until yesterday that a court in any jurisdiction held that a corporation can have sincerely held religious beliefs. Indeed, Henry Ford was sued by his shareholders for giving corporate money for charity.  So to clarify, a hundred years ago, a corporation giving to charity was controversial.  So, to say that this decision was judicial activism is understating things a great deal.

But there is something even worse about allowing a corporation to have religious beliefs - its allowing corporations to VIOLATE FEDERAL LAW BECAUSE IT CONFLICTS WITH THOSE BELIEFS. Now, keep in mind that if an individual does this - say, a Native American takes peyote as part of a religious ceremony, and fails a drug test as a result - its still deemed a violation of federal law, and the feds can come after the people.  By the way, that's not an outrageous example, but a case that the Supreme Court decided in an opinion written by Scalia.  Did Scalia dissent on the basis that this opinion overturns the reasoning of his earlier opinion? Of course not, because fuck people.

Or rather, fuck women. You see, not only does this opinion COMPLETELY change over a 1000 years of Anglo-American jurisprudence, not only does it give corporations rights individuals do not have (to ignore federal laws it opposes), but the Supreme Court tries to limit the opinion to birth control pills, which are used by virtually every woman in America at some point in their lives. If Hobby Lobby had objected to paying for vaccines, or blood transfusions, or insulin (which is produced by pigs), Hobby Lobby would have lost. Why? Because unlike birth control, the Supreme Court agrees with the science of those medicines.  Birth control, meanwhile, is kinda-sort of-not really believed by Hobby Lobby (more about that later), to cause abortions.  This is not the case - birth control prevents conception.  Regardless, Hobby Lobby can ignore federal law and science because it thinks birth control pills are abortion pills.  And because vaginas are icky, I guess.

By the way, Hobby Lobby's claim that it has a deeply held religious belief is complete and total BULLSHIT.  Until 2010 (before Obamacare required employees to pay for health insurance), it not only provided health insurance, but purchased health insurance that covered birth control.  That's right kids, Hobby Lobby voluntarily purchased health insurance that covered birth control pills.  Which makes sense, given that Hobby Lobby regularly invests in birth control pill manufacturers.

And this isn't some random point. The next step in this case is almost certainly the trial stage (the Supreme Court determined whether the First Amendment is a defense, and now they try it), and so, its not unlikely that upon remand, Hobby Lobby gets its ass kicked.  In other words, crisis this creates is completely avoidable.

So, how do I feel about this decision? Its the kind of awfulness I have come to expect from this Supreme Court.  Get out and vote people. IN ALL ELECTIONS.

Early Thoughts on 2016 - Looking at Hillary Rodham Clinton

Okay, okay, I know its early, but unless something major happens, the general outline of the 2016 Presidential campaign are basically set.  If she decides the run, Hillary Clinton could be the Democratic nominee for 2016. . . .yeah, I can't really pretend that she won't run, or that she won't be the nominee. Clinton had most of her bonafides set in 2008 - and that was BEFORE SHE WAS SECRETARY OF STATE. There isn't a crop of candidates out there from the last Presidential go around to contend with, unlike 2008, and if there is a potential Obama out there (there isn't), Clinton will be smart enough to deal with that person early on.

That said, here are a couple of points that concern me about Clinton's candidacy:

Campaigning: One of the things I heard a lot about Romney was that in person, he was a likable, personable guy who loved his family and all that.  Then we saw the 47% video, and we all learned that Romney is actually a dick.  With Clinton, I hear a lot of the same.  People who meet Clinton like her personally. At this point, she's kind of a tough grandma who'll do shots with you (or send texts while looking totally badass). In fact, I remember when Clinton teared up during a campaign stop in 2008 and talked about wanting what's best for America. Going into that moment, Clinton was pretty well going to lose, and in large part based on that moment, she made it close.

However, once you get Clinton on stage, she's meh. Now, I know its tough to compare Clinton to her husband (who oozes charisma in the way no one else possibly can), but Clinton actually gets worse as a campaigner as time goes on because she's so afraid to make a mistake.  It comes off as fake. Throw in the totally insane amount of misogyny and conservative hate that will be thrown her way, and it's concerning.  She is going to have to go completely against her instincts and get out of her comfort zone. If she can let herself be herself, Clinton will roll over everyone - she's fucking Godzilla. If not. . .

BenghaziWhitewaterMonicaBullshitGate: Here's a fun fact, Maureen Down HATES Hillary Clinton. And a fair number of other media types feel the same way. After Monica, the mainstream media went crazy looking for the woman who would bring down Bill Clinton. It seemed like every week or so the media would pull out some sort of bullshit to hit the Clintons with. And now we have Benghazi. An affair where most of the questions have been asked, and answered, and asked, and answered, and asked, and answered, and asked again. Two years from now, there will still be people who insist that there are still questions about Benghazi (though, what they mean is they don't like the answers). But, I do like Clinton's testimony on the matter:



Flanking: Clinton, like her husband, started her career on the conservative side of the Democratic Party. Like her husband, she supported DOMA, and other anti-gay legislation, as part of the triangulation strategy favored in 1996. Now, while she could and should argue that a lot of the anti-gay legislation was designed short-circuit even worse legislation (DOMA was used to kill an anti-gay marriage amendment), she still has some bonafides with the LGBTQ community to work on.

What's more, Clinton is much more of a hawk than Obama on foreign policy.  She voted to go into Iraq, she supports Israeli settlements, etc.  And that could be a problem depending on who the Republican nominee is.  If Rand Paul is the nominee, I could see him running to Clinton's right on social and economic issues, and then running to her left on foreign policy and maybe drug policy.  He certainly seems to be positioning himself that way. Clinton has to shore up her support on the left. That said, I don't see any other Republican outflanking Clinton.

So, all in all, Clinton is going to face virulent opposition, quite a bit of it will be completely unfair. If she can move past the bullshit, and be herself, Clinton will roll.  If not, she's not going to have a good time.

Rest In Peace Mr. Gwynn

This morning came word that Tony Gwynn, who played for the San Diego Padres for 20 years, passed away.  Right now, the internet is full of accolades of Mr. Gwynn, who was not just one of the best hitters ever, but the face of San Diego sports for two decades. As a Padres fan, I had to give my two cents.

The thing about San Diego is that for an older city (founded 1776), it is a relatively young city.  The Native Americans in our fair city were far too hostile for much more than token Spanish presence (they burned Mission San Diego de Alcala, and the Spanish never really rebuilt it; also, good for the Native Americans), the land was too arid for agriculture, and the hills of Julian never held that much gold. Until the 70's, the biggest industry in town was tuna fishing. Then it was the defense industry.  As a result, San Diego really didn't grow into a city until the 1970's and 1980's.  Even then, most of the people living here had come from someplace else.

So, to break through sports-wise in a town where virtually every adult grew up rooting for a non-San Diego team is tough.  Heck, San Diego teams still have problems with that.  But Tony Gwynn did not. He was the face of San Diego sports for two decades. Growing up in the 1980's, virtually every kid had their holy trinity of sports - Tony Gwynn, Dan Fouts, and Magic Johnson. As time went on, some of the trinity members changed - Dan Fouts' popularity got eclipsed by Junior Seau, and Kobe Bryant took over Magic Johnson's spot - but Tony Gwynn remained beloved. 

In my opinion, there are only two Padres that ever came close to taking Tony's place in the trinity - Ken Caminetti and Trevor Hoffman.  Of course, Caminetti's rise was fueled by steroids, something which could never be attributed to Gwynn.  Hoffman came close, but never could eclipse what Tony meant to the Padres. Of the players on the current Padres' roster, sadly, none come close.  

So what does it mean to be in the Trinity? Those were three players who's brilliance was unquestioned. For two solid decades, every kid wanted to be like Tony Gwynn. When Jack Clark badmouthed Tony Gwynn, we all wanted to run him out of town on a rail (and that's why he was traded away). If you wanted to start a fight in San Diego, the best way would be to say "Tony Gwynn sucks!"  Heck, I want to punch myself in the face for even writing that.  Add to his playing greatness that Mr. Gwynn was one of the most humble, honest, and decent human beings in baseball, and well, you can see how he was loved even after his retirement.  He was one of the few people who earned the right to use the f-word as a middle name - as in, "Do you know who I am, I'm Tony Fucking Gwynn!!!" and sound completely justified.* 

All in all, Mr. Gwynn's passing has hit me harder than Jerry Coleman's.  Jerry was an old guy even when I was a young, but Tony. . .he went too soon.  To his family, my condolences.  

*Greg Maddux, one of the best pitchers in his generation, who got everyone out but Tony Gwynn (who owned him completely), referred to Mr. Gwynn as "that fucking Tony Gwynn."  As in, "I did x, and it works on every batter in the game. . .except for the fucking Tony Gwynn."  Don't know where that fits in this post, but its an awesome story.

Random Thoughts: Sports Blogging Edition

Its been a some time since I blogged about anything - sort of a combination of laziness and having other things to do.  Per usual, whenever there are a few stories I want to discuss, throw them together in a longer post. This time, I'm going to stick to sports - more from the law/policy angle than the sports fan angle.  Although, to get that out of the way - Raiders suck!  Anyway, here are my thoughts on a few sports stories:

Donald Sterling Is Selling the Clippers?

The recent reports - and I mean the reports as of this morning - indicate that Sterling has agreed to sell the Clippers, and that is wife is the one who be in charge of the sale. And yes, Sterling is married despite having several public relationships with other, younger, women.  Per Bill Simmons' twitter feed, the estimates for sale price is somewhere around $2 BILLION.  Given that Sterling bought the Clippers for $13 million, that's a hefty chunk of change for someone to get for any investment. 

Now here's where I'm somewhat surprised. Sterling is over 80 years old, not strapped for cash (already is a multibillionaire), and loves owning the Clippers. Like a lot of owners of sports teams, this is his toy. He gets to be one of 30 guys in the WORLD who own an NBA team. Indeed, the whole reason Sterling might $2 billion for the Clippers is precisely because an NBA ownership is so rare.  And its for that reason that to Sterling owning the Clippers was priceless. So, I thought that financial considerations would mean nothing to him. At the same time, the utility of owning the Clippers has probably been damaged by Sterling's pariah status. Still, I assumed that Sterling would believe that he could simply ride out the damage while suing the NBA.  I'm glad I was wrong.

College Athletics

Last night I had the opportunity to attend a fantastic panel discussion on the NCAA and college athletics, sponsored by the Enright Inn of Court - a lawyer's group here in San Diego.  On the panel was Ramogi Huma, President of the College Athletes Player Association (the guys who were behind the unionization at Northwestern), DJ Gay (point guard for some of SDSU's best basketball teams), Jason Carter - former player at Texas A&M and former NFLer, now head coach of La Jolla High, Jim Sterk - current Athletics Director of San Diego State University, and John Brockington - who played for Ohio State in the NFL for the Packers.  The question was, does the NCAA exploit collegiate athletes.

While I expected Mr. Huma to attack the NCAA (he did), and I expected Mr. Sterk to advocate for the NCAA (he also did), what surprised me was the depth of the disenchantment that DJ Gay and Jason Carter (both of whom were more recent athletes in college) had with the current system.  As Mr. Huma laid into the NCAA time and time again, Mr. Carter and Mr. Gay mostly agreed with him.  Meanwhile, Jim Sterk looked increasingly uncomfortable on the panel.  

It was also interesting to see that the experiences of John Brockington were completely different from the experiences of Mr. Huma, Mr. Carter, and Mr. Gay.  In his era, practices were limited, and guys would work over summers to earn pocket money for the upcoming year (like everyone else does).  But recently, of course, college athletes aren't allowed to have side jobs, and spend more and more time working out or practicing.  As a result, they can't take the majors they may want, and they can't be part of the campus life that makes college so special.

Of more interest was the demands of Mr. Huma - not direct cash payments, per se, but basic guarantees like injury coverage (post-collegiate career), that scholarships continue after the playing days are over (so athletes can finish their degrees after their eligibility is over), and allow players to reap benefits with their schools over the sale of their likenesses (right now, the NCAA maintains that it owns the rights to athletes' likenesses in perpetuity). 

Now again, Huma is supposed to be an advocate and push for reforms - that's his job - but what surprised me was again, how much guys like Gay and Carter agreed with what Huma said. If I had to guess, the resentment towards the NCAA runs deep.  

And, let's face it, the NCAA has done a lot to ensure resentment exists. NCAA athletes are paid in scholarships, but have schedules that limit their ability to get an education. Their room and board is taxed by the government, and doesn't cover all their food costs. All the while, collegiate athletics is a multiBILLION DOLLAR industry. If they get hurt, there's no guarantee that the school will honor the scholarship.  Even if it does, insurance only covers the athlete so long as he/she is in school.

The more I think on it, the more I think that there was no way Sterk had a chance yesterday.  The system is utterly broken.

Examining the First Amendment

Recently, there has been quite a bit of consternation about the First Amendment and the consequences of espousing unpopular views.  Simply put, a lot of what is said is nonsense, and the webcomic XKCD put it best in the following cartoon:

In other words, while the First Amendment preserves your right to be an asshole as far as the government is concerned, it does not prevent other people from putting up with your shit.  If you decide to openly flaunt a loaded firearm around some kids in Little League to show how much of a big man you are, you are an asshole.  If you tell your assistant (allegedly mistress) that she can't bring black men with her to you basketball games, you are an asshole.  If you insist on grazing your cattle on federal lands without ever paying (at great expense to taxpayers), or insist, at threat of gunpoint, that you can ride your ATV over sensitive Native American burial sites, you are an asshole.  And, if you espouse anti-gay remarks, don't be surprised if you are suddenly shunned because, after all, you are an asshole.

You might think, "hey, what about my free speech rights?" Well, let's look at the text of the First Amendment, m'kay?

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Notably, the First Amendment prohibits Congressional action, which, by extension, prohibits action by the Executive Branch and the Judicial Branch (the other branches of government). Notice it doesn't affect State or Local governments - that's covered by the 14th Amendment.  Also notice that freedom of speech is listed after the freedom of religion.  Why is that?  Because we, as Americans, have the freedom of association.  We can choose to associate with whomever we want.  That right applies to people and corporations like HGTV and the NBA.

And by the way, a quick aside on Donald Sterling - a lot of people seem to be upset about the fact the Sterling was bounced out of the NBA for a private conversation where Mr. Sterling espoused racist views. While I can somewhat appreciate that concern, we need to remember the following: 1) Donald Sterling has acted on his racist views in his real estate business; and 2) the players were going to boycott the playoffs until Sterling was banned for life.  And guess what, NBA players have the right to do so because just as the Government can't attack Mr. Sterling for espousing racist views, it also can't force the NBA players to associate with him.  But don't cry for Sterling too much - he will litigate this forced sale of his franchise to the bitter end, and even if he loses, he is currently estimated to make over a BILLION dollars from the sale.

Thus, while every American has a God-given right to be an asshole without criminal repercussions, it is also the God-given right of every American to choose not to associate with assholes.  So, to those of you who would like to avoid becoming a pariah, I would offer the following advice: STOP BEING AN ASSHOLE.  

Donald Sterling and Racism

So many stories to comment on, so little time.  Normally, this would be time for a random thoughts blogging post, but one story stuck out at me - the recent comments by Clippers owner Donald Sterling. Apparently, Mr. Sterling has no qualms about employing African Americans, but does not want African Americans to be seen with his mistress at Clippers games.

This sort of view is hardly surprising for Mr. Sterling who, for a number of years, was notoriously cheap with his players and their training equipment, and who was sued by the United States Department of Justice for housing discrimination.  Oh, and this wasn't the DOJ under Obama, it was the DOJ under George W. Bush.  And it was hardly his only discrimination lawsuit.   In each lawsuit, it was alleged that Sterling systematically discriminated against African Americans as tenants.

Ultimately, this aspect of discrimination caught my eye and lead me to comment. For a good portion of my law school career, my after law school plan was to be employed by the Fair Housing Council of San Diego - a nonprofit which fought housing discrimination in the San Diego area.  And for a while, until financial realities caught up with me, I did work for the Fair Housing Council as an enforcement specialist and a staff attorney.

That experience lead me to say this - of all the areas where discrimination may occur, housing discrimination is often the worst because we are often shaped by where we live.  This is especially true of children, who go to schools as determined by their neighborhood. But it is also true of adults, who are affected by the stress of long commutes, by fear of neighborhood crime, and by lack of appreciation of their homes. Housing discrimination affects people over the long term.

Yet Donald Sterling, an alleged serial discriminator in housing, is allowed to continue to own an NBA franchise. These actions are far worse than anything Mr. Sterling has said, but given the context, it's not at all surprising that Mr. Sterling would finally espouse the beliefs he lived by for over twenty years.

So, what is the NBA to do? Well, they finally have to do something.  And I would guess that the NBA "investigation" is not about whether Donald Sterling is a racist, but what the NBA can do.  If I were Adam Silver (the NBA commissioner), I would expel the Clippers from the National Basketball Association, render all of the player contracts null and void, and remove all the privileges of being in the NBA to the Clippers.  Heck, David Stern should have done that YEARS AGO.

Will it happen? I don't know, but something significant must happen.

About the Hobby Lobby Case: A Lawyer's Rant

While I don't hide the fact that I am a lawyer in this blog, I tend to shy away from making legal arguments here because this blog is for fun, and work is. . .well. . .work.  That said, the recent Hobby Lobby case in front of the Supreme Court is the perfect mix of politics, law and hypocrisy to piss me off.  It is also a classic example of why the study of Constitutional law is completely and utterly ludicrous (something any law student can tell you within the first 2 weeks of taking Con Law).

For those of you who don't know, the Hobby Lobby case is this - Hobby Lobby is a closely held corporation owned by deeply "religious" people.  As part of their "deeply held religious beliefs" the owners of Hobby Lobby believe that oral contraceptives (the birth control pill) abort fetuses. ***NOTE*** Birth control pills work by preventing ovulation, thus preventing fertilization. They do abort anything.***

Because of this "deeply held" but mistaken belief, Hobby Lobby does not want its health insurer to pay for birth control pills for its employees. This is a problem because under the Affordable Care Act, insurers are required to pay for birth control pills.  This policy isn't a "let's abort every baby" policy, but rather reflects the fact that VIRTUALLY EVERY WOMAN IN AMERICA (99%) TAKES BIRTH CONTROL PILLS DURING SOME POINT IN THEIR LIVES.  But Hobby Lobby has a "deeply held" belief, and argues that forcing it to pay for birth control pills for its employees violates its constitutional right of religious choice.  So the issue in front of the Supreme Court is whether or not a corporation has the freedom of religion.

Now, we could go into the obvious questions such as how a corporation, by definition a non-person, can have a conscience and make religious decisions.  We could also ask how a corporation can prove that it has such beliefs.  The priests and ministers I know don't have the power to baptize corporate documents.  But those are easy questions to ask.

Instead, let me put forth a hypothesis based on the facts of this case - let's say there was a corporation that was closely held, like Hobby Lobby, but instead of "Christians," let's say the owners of this corporation were Rastafarians. Now, Rastafarianism believes that marijuana use is really important.  Healthy even.  So this company, founded on Rastafarian principles, decides to grow marijuana and sell marijuana to practitioners of Rastafarianism.  Does the fact that this company believes that marijuana is good for you prevent it from prosecution under federal law?

Ah. Hell. No. 

And do you know why? Because marijuana is deemed by Congress to be illegal and is scheduled as an dangerous drug. Now, say what you will about that decision (and I believe marijuana should be legalized), but the legal principle is key here - the Feds would wait about 10 seconds before crushing my hypothetical company.  Every judge, from the District Court, to the Circuit Courts, to the Supreme Court would laugh their asses off at the argument that Congress' laws about marijuana violate the company's freedom of religion because Congress made a factual determination that marijuana is bad for you and should be illegal. Case closed.

But in the Hobby Lobby case, there is a factual finding that birth control pills, which again, ARE TAKEN BY 99% OF ALL WOMEN IN THE UNITED STATES AT SOME POINT IN THEIR LIVES, are important to the health and welfare of women, and should be covered by their health insurance, which was also made by Congress, is being challenged. And whereas the ban on marijuana is based on questionable science, the decision to force health insurance companies to cover birth control is based, again, on the undeniable fact that BIRTH CONTROL PILLS ARE AN IMPORTANT TOOL IN WOMEN'S HEALTH. 

Naturally, the conservatives on the Supreme Court are almost certainly going to vote in favor of Hobby Lobby, despite the fact that Hobby Lobby is a) a corporation; b) its views on the effects of birth control pills on a woman's body are completely wrong; c) its views directly contravene Congressional and/or administrative findings of fact (which are supposed to get deference by the Court); and d) individuals who brought cases to the Supreme Court to kill civil rights legislation, drug testing policies, and other neutral laws all uniformly lost. 

And here is where my rant really begins. The whole "balls and strikes" analogy made by John Roberts in his nomination testimony was bullshit. Not kinda bullshit, not sort of bullshit, but total and complete bullshit. The whole study of Constitutional Law is total and complete bullshit.  And that's because if the study of the Constitutional Law goes any way other than "its whatever the Nine Justices decide," it makes no sense. A decision to uphold Hobby Lobby's "freedom of religion" contravenes Scalia's originalism, contravenes stare decisis (where the Court is supposed to follow its older rulings), is based upon A FALLACIOUS FINDING OF FACT and creates an entirely new right of supposedly nonreligious organizations to have religion. Why? Because they get to. As I said, total and complete bullshit.

Now, I could be wrong. I might be surprised by the Supreme Court Justices, and they might actually do the right thing here.  But I doubt it. And as someone who is supposed to be an officer of the Court, it pisses me off.  Case law is supposed to be more that whatever the hell the Supreme Court says it is. It's supposed to be logical, reasoned, and cautious.  It's supposed to fit together in some kind of homogenized mesh.  But even when it can't be, when the Court has to do something out of the ordinary, the Court is supposed to protect the rights of individuals.  Not individual corporations, but actual living and breathing people, like the women who are going to have to pay for birth control because Hobby Lobby opposes the idea of them. Oh, and because Hobby Lobby opposes birth control, can it now fire employees for using birth control? Or, how about firing all women of child-bearable age who are not currently pregnant because they might be taking birth control? Or can Augusta National now go back to discriminating against women and African Americans because of its "sincerely held beliefs?"

The whole thing is ridiculous, wrong-headed, and bullshit. Total bullshit.