24 November 2014

Update no.675

Update from the Heartland
17.11.14 – 23.11.14
To all,

President Obama announced and reportedly signed an executive order (as yet unread) to revamp the immigration enforcement policy of the United States.  The cacophony of outrage has verged on deafening.  I would suggest House Speaker John Boehner and all the other nippers should go back to study some more American history.  Presidents have used executive orders for actions just like this throughout our history, some far more substantial than this one.  Why has it been such a faux surprise, when the President has publicly stated his intentions for many months, more like years?  President Obama did exactly what he said he was going to do.  I also believe the President will revoke this executive order should Congress do its job and pass legislation the President can sign.  The intransigence of the Republican-controlled House of Representatives [2010] is progressively less comprehensible.  The thought of enduring at least two more years of this nonsense is simply just depressing.

A friend and frequent contributor to this humble forum sent along a link to a Mother Jones article of interest to me and hopefully to our public debate on contemporary issues.
“Catholic Church Argues It Doesn't Have to Show Up in Court Because Religious Freedom – And you thought Hobby Lobby was extreme.”
Mother Jones
Published: Mon Nov. 17, 2014; 10:00 AM EST
            The subject judicial contest illuminated by Molly Redden is being heard before U.S. District Judge Robert L. Miller, Jr., in the Northern District of Indiana, Fort Wayne Division – Herx v. Diocese of Fort Wayne-South Bend Inc. [USDC IN ND-FWD Cause no. 1:12-CV-122 RLM (2014)] – a wrongful termination employment law case that involves the all-too-common religion versus the State.  Judge Miller dismissed the respective petitions for summary judgment.  While we do not have a result to the debate, the facts of the case are informative in the larger discussion.
            St. Vincent De Paul School of Fort Wayne, Indiana, hired Missus Emily Herx in 2003, to teach non-religious subjects.  By all known measures, her performance was exemplary.  In 2008, Emily learned that she suffered from a medical condition that causes infertility. The couple sought the advice of a specialist and decided upon a course of fertility treatments that included artificial insemination and in vitro fertilization.  Before undergoing any treatments, Emily informed her immediate supervisor, St. Vincent School Principal Sandra Guffey, that she was scheduled to undergo artificial insemination, to which Ms. Guffey responded favorably and supportively.  After initial efforts proved unsuccessful, in March 2010, Emily notified supervisor she would need some time off for in vitro treatments.  Guffey approved and wished Emily success.  At about the same time, the school renewed Emily’s year-to-year teaching contract for the 2010/11 school year.  A year later, in April 2011, when Emily was scheduled to undergo her second in vitro treatment, the school’s Monsignor John Kuzmich informed her that the in vitro fertilization treatments violated Church teachings – a fact Emily was unaware of until that meeting – and her teaching contract would not be renewed.  The Catholic Diocese claims, even defending its actions in court, is a violation of its Free Exercise protection.  What is so striking in this legal wrangling is the Diocese claim that in essence it is above the responsibilities of the State.  The tension between Church and State has been and will undoubtedly remain active and vigorous until We, the People, demand a more reasonable and stable relationship.
            Based on the facts, I know how this case should turn out.  However, the Supreme Court’s Hobby Lobby decision added considerable uncertainty regarding this case.  The Mother Jones article and Judge Miller’s order poked me to un-stuck my half-read review of the Hobby Lobby decision – see below.

After reading the Supreme Court’s Burwell v. Hobby Lobby Stores [573 U.S. ___ (2014); no. 13–356] [655] ruling, I must say the majority opinion struck me as much worse than I expected.  Associate Justice Alito wrote for a very narrow 5-4 majority; perhaps, more like 4.6 – 4.4, as Associate Justice Kennedy wrote a concurring opinion that was barely concurring.  Where do I begin?  The case involves three corporations: Hobby Lobby Stores and Mardel owned and operated by David & Barbara Green and their three children, who are professed Christians; and Conestoga Wood Specialties owned and operated by Norman & Elizabeth Hahn and their three sons, who are devout members of the Mennonite Church.  All three companies claimed the regulatory interpreted contraceptive mandate derivative of the Patient Protection and Affordable Care Act (PPACA) [PL 111-148; 124 Stat. 119] [432] violated the Free Exercise Clause of the First Amendment, under the Religious Freedom Restoration Act of 1993 (RFRA) [PL 103-141; 107 Stat. 1488; 16.November.1993].  What is most striking about the majority’s reasoning in the Hobby Lobby case is the extension of personhood to “closely held,” for-profit corporations like Hobby Lobby and Conestoga.  By that extension, those corporations had protection under the Free Exercise Clause of the First Amendment.  As Justice Alito observed, “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.”  The Food and Drug Administration (FDA) approved contraceptive methods include:
Barrier Methods [6] 
Hormonal Methods [6]
Emergency Contraception [2]           
Implanted Devices [3]
Permanent Methods [3]
The companies objected to 4 of 20 FDA-approved contraceptive methods; specifically, they objected to the Emergency Methods and two of the three Implanted Devices Methods.  The Supremes sustained the religious-based objections raised in this case.  Associate Justice Ruth Bader Ginsburg wrote for the dissent, “No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question.  But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door, at least in the absence of directions from the Legislature or Administration to do so.”
            To be candid, I have struggled with the central questions in the Hobby Lobby case and other of a similar nature.  How far does religious freedom extend?  What about the religious freedom of the employees?  As you read this Hobby Lobby decision, you cannot avoid the similarities to Citizens United v. Federal Election Commission [558 U.S. 310 (2010); 21.January.2010] [424].  The Hobby Lobby ruling reminds me of a saying my father used all the time: “He who’s gots the gold makes the rules.”  So, this is about the power of money.  Generally, employers do not pay the bill for health care coverage; they make a contribution.  All coverage outside the military requires some degree of co-pay, and the employee’s contribution to health care coverage is deducted from his paycheck.  The health insurance benefits utilized by most corporations are group policies where costs are distributed across the included group and fees are calculated annually for both the companies and employees.  What the Court has done in this decision has further placed companies in the very private medical decision-making process of employees.  Like Citizens United, the Hobby Lobby case further strengthens the personhood of corporations and the power of those corporations over their employees and all citizens in general, which in turn gives owners and leaders of corporations far broader and more profound impact on the liberty of individual citizens.

Three days after the Hobby Lobby decision, the Supreme Court issued an unusual emergency injunction using the All Writs Act {Judiciary Act of 1789 [PL 1-I-020; 1 Stat. 73) [289]; § 14 [1 Stat. 81]} in the case of Wheaton College v. Burwell [573 U.S. ___ (2014); no. 13A1284].  Wheaton College objected to the contraceptive mandate of PPACA, just as Hobby Lobby et al.  What distinguishes this case from the Hobby Lobby cases is Wheaton’s objection to the simple submittal of the application form required under PPACA for documentation of the college’s religious-base certification for exemption from the contraceptive mandate [EBSA Form 700 – Certification (Employee Benefit Security Administration, Department of Labor)].  The Wheaton College order goes beyond the Court’s preliminary injunction order in Little Sisters of the Poor v. Sebelius [571 U.S. ___ (2014)] [629-632] {24.January.2014}.  Of particular note in the Court’s Wheaton College action is Associate Justice Sotomayor’s dissenting opinion.  She observed, “Wheaton nonetheless asserts that the exemption itself impermissibly burdens Wheaton’s free exercise of its religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488.”  She continued, “The sincerity of Wheaton’s deeply held religious beliefs is beyond refute. But as a legal matter, Wheaton’s application comes nowhere near the high bar necessary to warrant an emergency injunction from this Court. For that reason, I respectfully dissent.”  Sotomayor added, “[Wheaton] sought a preliminary injunction, claiming that the law and regulations at issue violate RFRA, which provides that the Government may not ‘substantially burden a person’s exercise of religion’ unless the application of that burden ‘is the least restrictive means of furthering [a] compelling governmental interest.’”  She concluded, “Our jurisprudence has over the years drawn a careful boundary between majoritarian democracy and the right of every American to practice his or her religion freely. We should not use the extraordinary vehicle of an injunction under the All Writs Act to work so fundamental a shift in that boundary. Because Wheaton cannot justify the relief it seeks, I would deny its application for an injunction, and I respectfully dissent from the Court’s refusal to do so.”   It seems to me, Justice Sotomayor nailed the essence of these judicial reviews.  Yet, what is missing here is the rights of the individual citizen.  All of these efforts are about the religious rights of organizations, corporations, colleges, non-profits, and even for-profit, “closely held” companies.

After reading these three judicial pronouncements, for reasons I cannot explain at the moment, the reasoning exhibited in these three cases struck me in a rather profound manner.  I must confess to a sensation quite like depression or perhaps grave disappointment.
            My paternal ancestors were Huguenot Protestants living in the Atlantic coastal village of La Tremblade, France, when King Louis XIV issued his Edict of Fontainebleau [18.October.1685], which revoked his grandfather’s Edict of Nantes [13.April.1598] and essentially declared open season on all Protestants, including the Huguenots.  The brutal butchering of innocent citizens in the name of God and the Catholic Church spread rapidly throughout France.  Marie Perlier née Arnaud, widow of Jean Perlier, asked her ship merchant father to smuggle her and their two sons – Jean and Andre – out of France to the British colonies of America.  They landed in New York City in 1686, and settled in Staten Island, New York.  My family has served this Grand Republic for generations.  During my teenage years, in my miniscule way, I eagerly campaigned for Barry Goldwater in the 1964 election season.  I served proudly in the Corps of Marines for several decades and was fully prepared to give my last full measure of devotion to this Grand Republic, should the need present. Two of our three sons continued this tradition of service.  Perhaps naively so, I believe my patriotism and commitment to this country and the more expansive principles of freedom and liberty should be beyond question.  For the first time in my life, after reading the Supreme Court decisions in the Hobby Lobby and Wheaton College cases, I must confess to an overwhelming sense of diminishment, of marginalization, and of irrelevance.  It is not a healthy feeling.  While I cannot and will not claim to have felt religious persecution first hand as Marie Perlier did, the reality seems to be ever so much closer, and I do not take kindly to the imposition.

Comments and contributions from Update no.674:
Comment to the Blog:
“I rest easier knowing you suffered no damage in the recent earthquake. Any earthquake in Kansas or here in Ohio interests me due to the small known risk in our areas http://www.huffingtonpost.com/2010/01/22/us-fault-lines-graphic-ea_n_432948.html
(graphic courtesy of U.S. Geological Survey).
“I agree that the landing on the comet has been given less attention than it deserves. The news outlets are only selling what advertisers believe the public will buy into, and short-sighted people have always failed to see value in ‘true’ science.
“Rather than re-analyze the entire decision affecting same-sex marriage in four states (including mine), I'll simply state that I agree with you down the line and add my disgust and surprise at Federal-level courts using Biblical references. If they must use that inappropriate source, then as many others have already pointed out, people like that need to study the actual marriages discussed in the Bible. Few indeed of those included one man, one woman, and monogamy. Abraham, Solomon, and Noah stand out as examples.
“The EU continues to experience the failure of free market economics. The high unemployment explains the low investment to a large degree. If people cannot buy cars, appliances, or expensive clothes there is no reason to make more of those things, hence low investment. We need not look down on the EU from our perch in the U.S.  Our improvement in the employment rate is accompanied by a steep decline in wages. Same issue; people cannot buy products at the same level they once did.”
My response to the Blog:
            Re: earthquakes.  Thx mate.  I had not seen that hazard map before, so thank you for that.  Earthquakes have been a big topic for my “TWA 800” co-author Kevin E. Ready, who wrote a fascinating book, weaving a compelling story around the hypothesized big one earthquake along the San Andreas fault complex in Southern California; the title of his book is appropriately “The Big One” – definitely a good read.
            Re: news agencies.  Interesting take, I must say.
            Re: religion in the law.  Our laws were the progeny of English Common Law, which in turn was heavily influenced by Christian religious principles, as they existed in the 17th & 18th Centuries.  The immigrants that populated this Grand Republic until the 20th Century were predominately Christian in faith, and thus laws passed by legislators reflected that thinking until we had to see a wider inclusiveness to sustain the principles that founded this Grand Republic.  It will take time to unravel the religious parochialism and dicta that deeply infiltrates our laws – generations, I suspect.
            Re: marriage.  The hypocrisy in this whole marriage debate is mind-boggling to the extreme.  Overarching this debate is my disappointment that We, the People, feel we must deny equal protection under the law to a small segment of our society who injure no one, who cause no harm, and who are productive, contributory citizens in good standing.  This is a product of the influence noted above.
            Re: EU economics.  Interesting perspective.  I think the forces at play, especially in the southern tier of EU countries, are far more complex than supply & demand.  If we ever do find out what happened, I think we will see the inordinate influence of investment bankers and the pervasive corruption of local politicians in the causal factors.

My very best wishes to all.  Take care of yourselves and each other.
Cap                        :-)