Update from the
Heartland
No.675
17.11.14 – 23.11.14
Blog version: http://heartlandupdate.blogspot.com/
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.”
by Molly Redden
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.
Cheers,
Cap :-)
