Monday, June 30, 2014

The First Amendment Has Two Religion Clauses

I've now read the Hobby Lobby decision.  I was prepared to hate it.  I now merely find it unpersuasive.  Alito did a much better job of defending his position than I expected him to (and I actually expected Scalia to be the one writing the opinion).  At the end of the day, though, there's a major policy problem that the Court did not address, that needs to be addressed.

The First Amendment contains two religion clauses:  Congress shall make no law respecting an establishment of religion (the Establishment Clause), nor prohibit the free exercise thereof (the Free Exercise Clause).  Neither exists in a vacuum; they have to be read side by side.  Simply put, the first clause means the government can't give religion special favors and the second clause means the government can't give it special burdens.  It may neither treat religion favorably nor unfavorably.  Religion is a private matter, and religious belief should not result in either good treatment or bad treatment from the state.  The state is supposed to stay neutral on the subject.

I have enough libertarian instincts that I'm not entirely opposed, depending on the circumstances, to allowing people to have conscience exemptions from some laws at least some of the time.  But if the government is going to give conscience exemptions, it has to do so in an even-handed manner.  It shouldn't be giving them to religion but not to the non-religious.

Suppose an atheist starts a business.  Neither he nor his business will be entitled to any conscience exemption to any law that he finds morally objectionable.  It does not matter how deeply offensive and repulsive he may find a law to be, or how good a moral argument he can muster against it.  His conscience doesn't get him any favorable treatment.  He has to obey the law or face the consequences.

But let him come along and say that he has an objection based on a conversation he had with a ghost, and suddenly his objection becomes religious and gets all kinds of special treatment.

Now, I hasten to add that there are perfectly sound policy reasons not to give anyone a conscience exemption, because once that starts, anyone who doesn't want to pay taxes, or hire blacks, or refrain from sexually abusing children discovers some religious hook or other on which to hang his objections.  If I can ignore the speed limit just because my religion tells me to, then it won't take much for me to find a religious argument that I'm supposed to drive 90 miles an hour down I-90.

But if the government is going to start giving conscience exemptions, then it needs to play fair. Secular consciences are entitled to as much respect as religious ones.

Elections matter

I periodically hear the argument that the two major political parties are the same and it doesn't matter which one of them wins.  That argument has been around a while, back in 1968, George Wallace said there wasn't a dime's worth of difference between the major parties.

Today, the Supreme Court handed down two major decisions, both on 5-4 votes.  In one of them, they held that closely-held corporations with a religious objection to contraception can't be forced to purchase health insurance for their implies that includes contraception.  In another, they held that quasi-public employees can't be forced to join a union.  In both cases, the 5-4 split had all the Republicans on one side and all the Democrats on the other.

Without getting into the merits of either decision (neither of which I've finished reading yet), let me just say that if the two seats now held by Roberts and Alito (both George W. Bush appointees) had instead been filled by John Kerry, had Kerry won the 2004 election, both of these decisions would have come out differently.

So whether you like these decisions or hate them, elections do matter.

Thursday, June 26, 2014

Just when you think they can't top themselves

One of the most important distinctions in constitutional law is between state actors (people who work for the government) and non-state actors (people who don't).  As a general rule, constitutional rights only apply to things done by the government.  The government cannot lock you up or fine you for exercising your First Amendment right to free speech, but your employer may still be able to fire you for it, assuming your employer isn't the government.  That is also true of many statutory rights; the Freedom of Information Act allows me to get records from the Pentagon but it does not allow me access to records from IBM or General Motors.  Put another way, you've got far more rights against the government than you do against most private parties.

Which explains why several Massachusetts police departments decided to incorporate as a private corporation.  The ACLU filed a lawsuit against various Massachusetts police organizations to obtain records relating to their SWAT teams -- how those people dressed like ninjas and armed like Taliban fighters who kick in people's doors, shoot their pets, throw everyone to the ground, point guns at peoples' heads and threaten to shoot them if they move, are selected, trained, and what rules they operate under.  Given the incredible amount of deadly firepower with which such teams are entrusted, one might think that the citizenry is entitled to know what kind of training they have and what their rules and regulations consist of.

But guess what -- private corporations aren't bound by public records laws, and aren't required to provide any such information to the public.  Hence the strategy of having the police departments become private corporations.

I certainly hope the courts don't allow this shenanigan to stand, though these days my faith in the courts' willingness to rein in police abuses is not high.  Post-9/11, the courts seem increasingly willing to give the police whatever they want.  It's a fairly blatant show of contempt for the citizens in whose name the police operate, breathtaking even by law enforcement standards.

That aside, this raises a number of interesting questions.  Because while it is true that government actors have to respect individual rights that private actors don't, it is also true that government actors get to do things that private actors don't.  For example:

If a group of heavily armed employees of a private corporation are coming through my front door, I have the right to shoot them in self defense, assuming I have enough firepower of my own.  Does this mean that police executing search warrants are now fair game for homeowners with guns?

If an employee of a private corporation locked me in a cell overnight, telling me I am not free to leave, I would have an excellent lawsuit for false imprisonment and possibly even kidnapping.  Does this mean that a police officer making an arrest can now be sued for false imprisonment?

When someone files a lawsuit claiming that a government employee -- often a police officer -- has violated that someone's legal rights, state actors are entitled to something called "qualified immunity", which means that making a lawsuit against the police stick is really, really hard and only rarely succeeds.  Have Massachusetts police officers now lost qualified immunity if they get sued?

Assuming the Massachusetts courts don't nip this private corporation nonsense in the bud, I sense a series of very interesting lawsuits about to be filed.

Saturday, June 21, 2014

Maybe this one really means it

One of the charges often levied against religion by its detractors is that much of organized religion is a scam, designed to make money, wield political power, and hop in bed with power rather than speak truth to it.  And there are certainly enough bad actors in the religion business to make it a plausible charge.  I hasten to add that even if true, the charge tells us nothing about the truth of any particular religion; bad actors can and sometimes do promote causes that are themselves legitimate causes.

One of the worst actors in this respect has traditionally been the Catholic church.  There is a long, unseemly, and well-documented history of Vatican involvement with organized crime, corrupt bankers, and others who seemingly have little in common with the teachings of Jesus.  In 1982, Roberto Calvi, who had been dubbed "God's banker" because of the close ties between his bank and the Holy See, either committed suicide or was murdered just as prosecutors were closing in on the money laundering Calvi had long been doing for the Italian Mafia.  The Catholic official who headed the Vatican Bank at the time, Archbishop Paul Marcinkus, reportedly shrugged and said, "Oh, well, you can't run the church on Hail Marys."

Meanwhile, on this side of the Atlantic, a now deceased archbishop of New York, Francis Cardinal Spellman, was known in the Vatican as "Cardinal Moneybags" because of his habit of showing up in Rome twice a year with millions of dollars in cash, much of which came from the New York mob.  Cardinal Spellman was also known to enjoy the company of underage male prostitutes; his Boston colleague Richard Cardinal Cushing once had to get him out of a spot when he picked up a teenage male hooker on a trip to Beantown.  (And speaking of memorable quotations, Cardinal Cushing was fond of saying, "My dear departed mother, may she rest in peace, could neither read nor write, but she could certainly handle a dollar, and so, thank God, can I.")

Enter Pope Francis.  Pope Francis got his white cap when his predecessor, Pope Benedict XVI, decided to retire early, in part because of scandals leaking out of the Vatican that he was unable to control.  I was a bit surprised at the choice; Francis was then 76 years old and, in light of the many challenges the Holy See was facing, I expected someone young and vigorous.

He may not be young, but he has certainly shown himself to be vigorous, at least where looking after the church's ethics is concerned.  In a little more than a year, he has fired virtually the entire hierarchy of the Vatican Bank and replaced them with reformers.  He has fired at least two bishops for leading too lavish a lifestyle on the church's dime.  He himself gave up the sumptuous papal apartments in favor of more monastic living.  And today, he publicly excommunicated the entire Italian Mafia, despite the huge financial contributions the Mafia has given the church over the years.  Just for good measure, he told the bishops to stop harping on social issues and start feeding the poor.  And his first appointments to the College of Cardinals, the body that will ultimately choose his successor, mostly appear to be reformers as well.

I don't agree with Pope Francis on everything, but this first 16 months has certainly been promising.  Maybe Rome is finally under the stewardship of a shepherd who actually understands not only that it is easier for a camel to go through the eye of a needle than for a rich person to enter the kingdom of God, but also understands why.  Maybe St. Peter finally has a successor willing to tell the rich young ruler that he lacks but one thing, and that he should give what he has to the poor and then follow Jesus.  Maybe the Servant of the Servants of God actually gets that power was meant to be used in the service of others.

If so, I wish him a long and successful papacy.

Monday, June 16, 2014

What if they gave a coup and no one cared?

I'm reading a very interesting book right now on why the United States has managed to survive going on 250 years without having a military coup.  For those of us who live in a place where the rule of law has been followed more or less for nearly two and one-half centuries, it's easy to forget that there are places in the world where the military routinely deposes elected leaders, or where the leaders come to power in the first instance at the point of a gun.  Bolivia once had six presidents in seven days.

The author offers a number of possible reasons for why we have enjoyed a relatively stable period of democratic rule, and his thoughts on the subject are all very interesting, but I have a different question:  Suppose the United States did have a military coup.  How many people would actually care?

Americans give lip service to valuing freedom, but have traditionally been willing to give it up at more or less the drop of a hat.  A society that actually valued freedom would have ejected the TSA from its airports a long time ago.  A society that actually valued freedom would not allow that organized armed robbery racket known as civil forfeiture to continue, and probably would have shut down the war on drugs too.  It seems that whenever some politician can make even a quasi-plausible claim that there's a threat looming on the horizon, people line up to exchange freedom for security, and that's even before someone chimes in with "will no one think of the children".  Shame on us.

So, if whomever staged such a coup promised security and kept food on people's dinner tables, how many people would actually care?  Sadly, I suspect not that many.  Though I hope to never find out if I'm right.

Saturday, June 14, 2014

More Unintended Consequences

Saddam Hussein was a bad dude, and the world is a better place for his no longer being here.  He used chemical weapons against his own people.  Even by the standards of the Middle East his brutality was astounding.  He had megalomaniac aspirations of empire.  Few mourn his passing.

He was also good at suppressing groups like the Taliban and Al-Quaeda within his borders.  He understood that radical Islam was a huge threat to his own power, so he was willing to use whatever means were necessary to prevent radical Islam from gaining a foothold.  And he succeeded.

This week, we are seeing the military forces of ISIS, the Islamic State of Iraq and Syria, sweep toward Baghdad.  If they are successful, Iraq will join Pakistan and Afghanistan as being governed by religious extremists.  The suffering of every day Iraqis will be horrendous, and yet another country will be a launching point for Islamist terror.  Unless you want to watch the world on fire, this is not a happy development.

Which brings us back to Hussein.  As bad as he was, his one positive was seeing to it that groups like ISIS did not come to power.  If he were still alive and running Iraq, the ISIS sweep across the nation would not be happening.  If ISIS succeeds in turning Iraq into another Islamist hell, no small thanks will be due to President Bush for having removed Hussein from power.  Removing Hussein from power also had the unintended consequence of fairly horrific persecution of Iraqi Christians and Jews, who had lived there in relative peace and safety under Hussein but who have all now been killed or driven out of the country.

None of which is to suggest that Hussein was a good guy.  He wasn't.  Just better than what Bush's war left in his place.

Two hundred years ago, George Washington wisely warned us to avoid foreign entanglements.  Failing to heed his words has brought us, and often much of the rest of the world, misery upon misery.  Sometimes leaving bad enough alone really is the best choice.

Tuesday, June 10, 2014

A bishop who can't keep doves and serpents straight

Jesus said that his followers should be "as wise as serpents, and as harmless as doves."  Today, we have an example of the followers of Jesus instead being as wise as doves and as harmless as serpents.

The Roman Catholic Archbishop of St. Louis just testified in a deposition that he did not know that it was illegal for priests to have sex with children.  You can see it here:

Now, let us assume that he is telling the truth and that he really didn't know that it's illegal for adults -- priests or not -- to have sex with children.  Let us assume this even though it defies all common sense to believe that a college-educated church official wouldn't know what should be obvious to anyone smarter than a houseplant.  What then?

Legal or not, does anyone seriously think that a decent human being would have sex with children?  At that point, the archbishop's argument becomes that the behavior was despicable but it wasn't illegal.  Is that really the standard to which an institution like the Catholic Church should be held?  Despicable but not illegal?

We expect better than that from children, never mind the adults charged with their care.

Saturday, June 7, 2014

Do you, now?

Fay Vincent was a promising athlete who did something monumentally stupid when he was a college freshman.  Some of his dorm mates decided to play a joke on him by locking him in his room.  Vincent opened the window, climbed out on the ledge, and attempted to follow the ledge to the window of the next room.  He slipped, fell four stories, and suffered severe injuries that ended his athletic career.

Vincent went on to become a successful lawyer, and a commissioner of baseball.  Whenever the subject of his injuries comes up, he has always carefully placed the blame only on himself.  He once told a class he was teaching that "there's a certain ruthless sense of honesty about life.  And that is that when you make a mistake, you pay."  

In one sense, Vincent is right. When I look back over my own successes and failures -- and I've had plenty of both -- an awful lot of the failures were caused by bad choices, no doubt about it.  If I want to put a spin on it, I can usually find someone to blame for things that have gone wrong, but then when I stop spinning and honestly face facts, only rarely has someone else been more culpable for my shortcomings than I have.  And as a matter of public policy, you don't want to give people easy outs to blame others for stuff that they could have prevented themselves, because you want people to prevent what they can, even if it's somebody else's fault or somebody else could have prevented it too.

On the other hand, some people are better at avoiding the consequences of their bad choices than others.  And it's not always clear in advance that a choice is a bad choice.  What made climbing onto the ledge a bad choice for Vincent is that he didn't make it to the next window; had he made it to the next window, it would have been a mildly amusing dorm story rather than a life-changing disaster.  If it were predictable in advance where a particular choice would lead, there would be no bad marriages, no drug addicts, and no one in prison.

So Mr. Vincent, cut yourself some slack.  My guess is you've probably already punished yourself far too much for what your youthful lapse in judgment actually deserved.  And sometimes, it's only by cutting ourselves some slack that we can cut other people slack.

An Open Letter to Commissioner Selig

Dear Commissioner Selig:

When Pete Rose was banned from baseball for life back in 1989, I agreed with the decision.  The potential harm he could have done to the game by gambling on his own team was enormous. Baseball, like law, depends to a certain extent on the integrity of the players, and those who have demonstrated they can't play by the rules should make a living doing something else.

The problem that baseball now has is that people whose bad conduct actually did -- as opposed to potentially -- hurt the game through their steroid use were not given lifetime bans.  I don't have the documents in front of me, but my recollection is that the harshest suspension handed down to the substance abusers whose drug use really and truly did impact on the scores, the stats, and the game's reputation, was for fifty games.

I cannot for the life of me understand how it is fair to keep in place a lifetime ban on someone whose conduct merely could potentially have harmed the game, while giving term suspensions to players whose conduct actually did harm the game.

Please pardon Pete on your way out.

Monday, June 2, 2014

The feds are not as needed as they think

Today, the United States Supreme Court decided United States v. Boone.  Ms. Boone was a wronged wife; her husband fathered a child with another women.  Some women would have filed for divorce; others would have stayed and tried to make the best of it.  Ms. Boone, a biologist, decided to expose her husband's paramour to toxic chemicals.

She stole some chemicals from the Philadelphia laboratory where she worked and left them where she thought Mistress Babymama would touch them and injure herself:  On Babymama's doorknob, inside her mailbox, and in her car.  Only she wasn't very good at it; the chemical she chose is bright orange, and Babymama figured out something was wrong before injuring herself.  The worst she suffered was a minor rash on one of her thumbs.

All right, jilted spouses have been doing nasty things to the other woman (and the other man) for centuries, and so far the only thing that even makes this an interesting story is that the wife had the technical knowledge to try chemicals, even though her implementation skills apparently left something to be desired.  Charge her with stalking, or battery; get a restraining order; give her probation; and be done with it, right?

Wrong. The feds literally decided to turn it into a federal case and charged her with the terroristic use of chemical weapons.

Today, the United States Supreme Court held that this was an abuse of the statute, and vacated her conviction (but not until she had already spent six years in prison).  Six justices interpreted the statute in such a way so as not to cover her conduct.  Three justices thought the statute, as written, did cover her conduct but would have found the statute unconstitutional.  No justice thought she belonged in a federal prison, even while acknowledging that what she did was not acceptable behavior.

And this brings us to the point of today's piece:  Congress has done entirely too much federalizing of criminal behavior the states are perfectly capable of handling themselves.  Does Pennsylvania not have laws against this sort of thing?  Of course it does; the Supreme Court cited three different Pennsylvania criminal statutes that might apply.  But federal law, like Topsy, just grows.  And grows.  And grows some more.  Today, the federal criminal code has exploded with things that used to be considered state and local matters, if they were crimes at all.

What does this mean in practice?  By one study, the average mostly-law-abiding American commits three federal crimes a week.  There are literally so many federal criminal statutes and regulations that it is impossible to keep up with, never mind comply with, all of them.  The old adage about ignorance of the law is no excuse may have made sense when there weren't many laws and the average citizen could be expected to know what was and was not illegal, but when a tax lawyer has to read an arcane section of the tax code multiple times -- and then research if there are any cases about it -- before being able to answer a client's simple question about whether his conduct is illegal, something is wrong.

In 1954, a Coloradan named John Gilbert Graham decided to murder his mother for insurance money.  She was flying from Denver to Seattle, so he put a bomb in her luggage that exploded mid-flight, causing the plane to crash, killing all 44 people aboard.

If that happened today, the feds would land before the airplane had crashed and would spend a million federal tax dollars -- and months if not years if not decades -- investigating and prosecuting.  In 1954, the State of Colorado had Graham tried, convicted and executed in a little more than a year, with no help from the feds whatsoever.  Local authorities know how to handle mass murder, even if the murder weapon happens to be an airplane.

So let me offer a modest proposal:  Alternating sessions of Congress should be repeal sessions, in which no new laws are passed; only repealed.  It would probably take about ten years to get the federal code down to a manageable size, even at that.  But it would be a start.

Feds, I hate to break it to you, but you're not nearly as needed as you think you are.