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.

Some Help With Analogies

This past weekend I finally saw "12 Years As a Slave," an incredible movie about America's original sin (as Obama likes to call it), and one of those movies that had to win Best Picture (which it did).  If anything, it rammed home the basic premise that slavery was really, really, horrifically, awful. Honestly, anything you could say about slavery wouldn't be enough to fully describe the horror of slavery in the American South. Yes, I'm sure that some slaves were relatively well-treated, but even then, they would be the exceptions to prove the rule.  So with that said, I would like to point out a problem of analogizing anything to either slavery or Nazism.  

First, let's remember what slavery was - it was the condemnation of all Africans (American born and otherwise) to a life of servitude. And all it took was one drop of African blood to become a slave. So, if a person whose parents, grandparents, great-grandparents, and fifteen of their great-great grandparents were all European, and the sixteenth great-great grandparent was African, that person would be a slave unless proven otherwise.  It was institutionalized discrimination.  Moreover, once someone was a slave, they had no legal recourse to protect themselves. Slaves were regularly subject to torture, rape, and even murder and they had no recourse. Remember Solomon Northrup was born a free man, was kidnapped, tortured so horribly he was afraid to say his name, put to work without pay, beaten and tortured on a regular basis. He received not a penny of compensation for 12 years of servitude, beatings, and torture. Zip, zilch, nada.  And he, as a free black man, had legal rights that slaves did not. Oh, and white men who knew he was a free black man were terrified of standing up for his rights because doing so would possibly subject them to extra-legal death and/or dismemberment.

As far as Nazism goes, let's remember that the Nazis were a basic totalitarian regime (i.e. North Korea), but much, much worse. For a blond-haired, blue eyed German who could trace his lineage back to Sigfried, life under the Nazi regime meant that he had to do everything through the Nazi Party. Speaking against the Party could (and generally did) mean arrest, torture, and maybe summary execution. For a Jew (or someone with a Jewish great, great grandparent), a Romani, or gay, life was significantly more difficult.  At best, these individuals would provide slave labor, and unlike slavery in America, the Nazis had no economic incentive to keep Jews, Romani, or gays alive. In fact, the Nazis held middle-management meetings to discuss the most efficient way to slaughter millions solely on the basis of their ethnicity.

So, to help with analogies, let's keep in mind the following:

If the governmental policy you are protesting does not result you getting tortured, dismembered, raped, murdered, or forced to perform manual labor for no compensation because of your ancestry, IT IS NOT LIKE SLAVERY.

If the governmental policy you are protesting does not turn you, or your loved ones into property, and does not allow for someone else to sell your children to the highest bidder, IT IS NOT LIKE SLAVERY.

If the governmental policy you are protesting does not result in the systematic and summary execution of millions of people by the most efficient means possible, IT IS NOT LIKE NAZI GERMANY.  

If the governmental policy you are protesting does not result in your total and complete loss of any and all due process rights in a Court of Law and/or Equity, IT IS NEITHER LIKE SLAVERY NOR LIKE NAZI GERMANY.

Yes, I understand that hyperbole is a common argumentative tactic, but we have to remember that the Holocaust and American Slavery were so awful, that they have psychologically damaged the psyche of the descendants of the victims for (in the case of slavery), over a hundred years.  Anyway, I realize that my words will have little effect on the scope of our political discourse, but I figured I'd try.

 

A Couple of Quick Points About Ukraine and American Policy

For the past couple of weeks, I've watched with great interest the events in Ukraine - part of the benefits of following groups like Anonymous on Twitter.  And as much as I've cheered on the protesters who appear to support democratic change in Ukraine, I'm also dismayed by the Russian response of grabbing Crimea.  With that said, I'm even more dismayed by the foreign policy "experts" who have been blathering on and on since the Russians took Crimea (though I'm not particularly surprised).  So, a couple of quick points here:

1) Putin Didn't Invade Crimea Because of Any Perceived Lack of Weakness by Obama:

The greatest inanity of the foreign policy discussion involving Russia is the conception that Obama's weakness caused by Benghazi and Syria gave Putin the wherewithal to invade Crimea (well, not really invade Crimea, he just had his military personnel leave their bases in Crimea).  Um, no.  Or, in the words of my people, "cool story, bro."

This current crisis has nothing to do with us.  I know, we're the world's policeman and all that, but Putin acted out of pure self-interest.  Crimea is absolutely vital to Russia's self-interest because it gives Russia access to the Black Sea and the Mediterranean Sea, which helps with its view of being a world power.  That's why Russia has a number of military installations in Crimea despite the fact that Russia and Ukraine haven't been one country over 20 years (yeesh. . .I feel old).  Having an unfriendly government in Ukraine (which it totally will be, especially now), would hurt Russia's interests.  Obama's perceived strength or weakness has nothing to do with that basic fact.

2) Going to War Against Russia is Problematic:

While Russia is not the superpower it once was during height of the Soviet Union, it still is a very big country with A LOT of weaponry, A LOT of soldiers, and more importantly: INTERCONTINENTAL BALLISTIC MISSILES.  The presence of ICBM's (nukes) makes any dealing with Russia, especially if Putin is reading too much of his own propaganda (and he apparently is).  Now, that doesn't mean the U.S. doesn't go to war, but if it does, it has to move very carefully or else fight a war that would dwarf the Iraq and Afghanistan wars combined.  You don't jump into that kind of a conflict (unless you are John McCain or Lindsey Graham).

Of course, that's assuming that war would be a straight U.S. v. Russia affair. It won't be. Already this crisis affects Turkey (Crimean Tatars are ethnically Turkish).  And since most of Russian pipelines to Europe go through Ukraine, well. . . Simply put, we don't know where China, Pakistan, or India would line up in this kind of a war, and we don't want to be surprised by that.

3) There May Be Other Options on the Table:

Putin may be a dictator(esque), but in contrast to the Soviet Union, he has to operate within the same global economy as everyone else. In fact, the market economy is probably America's greatest strength. Economic sanctions by the U.S. and the EU will hurt - especially if they target Russian Oligarchs, who keep their money in the West.  Ukraine, as noted above, sits on a number of oil pipelines to the west, and supplies almost all of Crimea's power and water.  In other words, there are pressure points that can be applied against Russia that don't involve military power.  And Obama, thanks to all of his experience in dealing with Iran, knows how to use sanctions effectively.

So, the long and short of this crisis is jumping into action, especially military action is a phenomenally dumb idea, and Obama is right to move deliberately.