WyBlog

[Guest post] Religious Liberty and the Constitution

In this space, my friend @Nadz posted an interesting commentary entitled Tax The Churches. The ongoing discussions have been quite lively, and I've been following them with great interest. Since I also have some views on the subject, I thought I'd add my two cents to the collection plate.

Recently, Daniel Jenky, the bishop of Peoria, Illinois, did not hesitate to play the persecution card in the dispute with the Obama administration over required health insurance coverage of birth control. Evoking the history of "terrible persecution" of the Church, he said: "Hitler and Stalin would not tolerate any competition with the state in education, social services and health care. Barack Obama — with his radical, pro-abortion and extreme secularist agenda — now seems intent on following a similar path." In an effort to clarify the statement, a diocese spokesperson said, "We certainly have not reached the same level of persecution. However, history teaches us to be cautious once we start down the path of limiting religious liberty." (She did not explain just what the bishop regarded as the Church’s current "level of persecution" by the administration.)

Jenky’s remarks are only a bit more extreme than standard rhetoric from bishops and other conservative Catholics, who now routinely talk of an "attack" or "war" on religious liberty. Are things really this bad? Or are we seeing a perhaps politically motivated "tempest in a holy water fount? To get some perspective, let's take a look at the main rational arguments — as opposed to rhetorical appeals — that the bishops and their supporters put forward.

The argument is based on the right of conscience. It agrees that all employees of a Catholic organization have a right in conscience to practice birth control, but that the organization also has a right in conscience not to pay for (or otherwise facilitate) the practice. The nub of the argument is that an organization’s not offering birth control as part of its health insurance does not take away an employee’s right to birth control; it would at most make it a bit more difficult to obtain. By contrast, the administration’s requirement that the organization offer birth control coverage does eliminate, in this case, its right not to support the practice.

This argument makes a valid point, but omits the rights of a third party: the government, which has a right (and duty) to set up rules for the common good of the nation. In some cases, this right takes precedence over the rights of conscience. The government has the right, for example, to force people to serve in wars they think are unjust or pay taxes to support activities like birth control that they think are immoral. Organized religions have, in our system, greater rights to conscientious exemption than individuals, but there is no absolute immunity that keeps a religion’s claim of conscience from being trumped by the government’s right to "provide for the general welfare." Once we take account of the government’s right, we see that this argument does nothing to show that Catholic organizations' rights outweigh the rights of the government in this case.

This argument correctly points out that the government — in the sense of the executive branch — should not be the sole judge of what rights of religious freedom a particular religiously affiliated organization may have. But it is equally wrong to claim, as the argument suggests, that the Church itself should be the ultimate arbiter of its own claims. Nor does it make sense to claim that every effort of the government to restrict religious rights should be rejected on the grounds that it is a step toward the total undermining of religion. One could just as well argue that every restriction on individual liberty is a step toward totalitarianism.

This argument expresses the main case made by Catholic bishops and their supporters against the Obama administration’s birth control mandate. They correctly assert two basic truths: that religious people and institutions have rights to act according to the dictates of conscience, and that there are limits on the government’s right to interfere with those rights. But they ignore the complex question of how to balance the right of government to do its job of promoting the general welfare against the right of religious believers to be true to their consciences. They fail to show that, in this case, the government is wrong. At best, the arguments show that there is a need to ask the courts to resolve these complex questions.

There may be a cogent case against the government’s position. But there is no slam-dunk appeal to outrageous violations of the First Amendment, such as genuine instances of persecution or a war on religion would provide. Rather, there are arguments based on complex (and contestable) legal considerations — for example, interpretations of the 1993 Religious Freedom Restoration Act — turning on the question of what sort of burden of proof the government has to show that its requirement is necessary to achieve its legitimate goal. The bishops may have a viable legal case against the Obama administration. But they have no case for a call to the barricades.

Posted at 15:50 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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[Guest post] Voter Fraud

My own state of Pennsylvania passed a law a short time ago which requires people to show government-issued photo IDs to vote. The question is: why?

Before we can answer that question, we need to define exactly what we're talking about. "Voter fraud" is individuals casting ballots knowing they are not elegible to vote, in an attempt to defraud the election system. Note that there are a great many things that tend to get lumped into the term "voter fraud" which are really not the same thing: voting machines sometimes have technical glitches and don't record votes properly; voters and election officials, being human, sometimes make honest mistakes; sometimes outside groups spread disinformation about polling places and hours; incidents of thuggery and intimidation are not unheard of. These are all election administration problems to be sure, but conflating them as "voter fraud" makes it appear that real fraud is much more common than is actually the case.

The number of cases of outright voter fraud in Pennsylvania is vanishingly small. More people in the state are likely to be killed by lightning this year than would be charged with such a crime.

So why did the Legislature go to all the trouble, and the Governor sign the law? Such laws are only potentially worthwhile if they clearly prevent more problems than they create. These photo-ID laws only prevent individuals from impersonating other voters at the polls. If policymakers distinguished real voter fraud from the more common election irregularities which are wrongly labeled as voter fraud, it would become apparent that the limited benefits of laws like photo ID requirements are simply not worth the cost. They are more likely to disenfranchise a relatively large number of elegible voters than to bar access to the ballot box for the rare few. Just today the Brennan Center released a study showing that nearly 500,000 eligible voters in those states without IDs do not have access to a vehicle and live more than 10 miles from the nearest state ID-issuing office. It's often said that it's better for ten guilty people to go free than for one innocent person to go to jail. Shouldn't the same logic apply here?

Of course, in politics, it's often logic be dammed. Royal Masset, the former political director for the Republican Party of Texas, concisely tied all of these strands together in a 2007 Houston Chronicle article concerning a highly controversial battle over photo identification legislation in Texas. Masset connected the inflated furor over voter fraud to photo identification laws and their expected impact on legitimate voters:

Posted at 14:45 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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[Guest post] Death to Channel Collectivization!

We're now in week two of the blackout of Viacom channels on DirecTV. Thank goodness The Daily Show and The Colbert Report are on hiatus; I'm also relieved that one kid is away at camp for the summer and the other is far too old for Nickelodeon and Dora The Explorer. But a few choice words from the DirecTV folks got me thinking about the cable TV racket.

Whoa, stop the presses!

Broadcast TV content distributors like cable companies such as Comcast or Verizon FIOS, and satellite TV outfits like DirectTV and Dish make their money off of selling bundles of dozens to hundreds of channels to their subscribers. (It would be an interesting bit of research to try to figure out where this "in order to get A you also have to buy B" racket started. Off the cuff, the earliest such instance I can remember is when I was six or so and the family went car shopping: in order to get air conditioning, Dad had to "step up" to the next more luxurious (and expensive) model, with a bunch of other accessories he didn't want.) My current sat TV package has 225 channels, but I remember we likewise had to step up to this package in order to get a dozen or so specific cable channels the family really wanted. Throw in the local broadcast channels and some occasional special programming, and the total number we watch most frequently won't come to more than a couple of dozen channels in all. Yet every month I have to pay $50 or so for things like:

- 21 different sports channels
- 17 different news channels
- 25 "family" channels (including 6 different Disney channels)

I could go on and on. And I'd bet that a good share of my monthly $50 goes towards these things "I don't watch or care about".

That's why I am so delighted to see DirecTV taking the principled position that bundling TV content is "unreasonable". Finally, someone in the entertainment industry is going to get out in front of a trend towards decollectivization, where the content owners and distributors decide what and when you can and can't watch. If the other content distributors don't follow their lead, then a-la-carte and on-demand services like Netflix, Amazon Prime, and Hulu will wind up eating their lunch.

Posted at 13:54 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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[Guest post] Pushed or Fell?

I hadn't realized that Mitt Romney, who wishes to become our next president, is all for what they call judicial extremism. We're all aware that the current Supreme Court, under the leadership of Chief Justice John Roberts, could be the most extremely conservative court ever. So clearly, in Chief Justice Roberts, the candidate had everything he could have wished for. Yet some days after Justice Roberts cast one vote he disapproved of - the vote that saved the Affordable Care Act - Romney declared that Justice Roberts is no longer conservative enough.

"No longer conservative enough" says Mitt about the man who led the court to strike down hard-won clean election laws; made it more difficult for women to sue for equal pay; squashed a number of class action suits, and consistently favored large corporations over the individual citizen.

Now, the polls show that the issue on which President Obama has the clearest lead is the makeup of the Supreme Court. That seems so clear it makes me wonder how smart is Mitt Romney coming out against the Chief Justice? Then again, it could be said that taking this seemingly unpopular position is a measure of how committed Mitt is to his philosophic convictions. Seriously? If there is anything we've learned about this man over the endless months of his candidacy it is that he changes his convictions as often as his shirt. Okay, so we've let him get away with it so far. But, when he is already polling so low on the issue, to change his mind about the man who was for so long his idea of what a Chief Justice should be - I mean, how dumb is that?

Actually, much of Romney's problem is caused by the GOP leadership. On a couple levels, the weird rift between Romney and the rest of the party makes sense. Congressional leaders have different imperatives. They want to trip up Democrats, they want to win majorities, and they're under enormous pressure to build a legislative record that shows bipartisan opposition to key pieces of "Obamacare". From that arguably myopic perspective running with the tax attack makes some sense. But, of course, attacking the mandate as a tax is exactly what movement conservatives have done. It would've made sense to defer to the Romney camp's original view that the mandate is a penalty - not a tax - that the Court should have struck down.

Unfortunately for Romney, the GOP cheerleaders like the Wall Street Journal editorial board aren't in the business of making sense, and they hammered their candidate-presumptive for not getting with the GOP program. Predictably, Mr Romney tucked in his tail and has awkwardly acquiesced. And, predictably, Mr Romney is now getting grief for having claimed he didn't hike taxes in Massachusetts. On the campaign trail, predictably, Obama is sticking it to Mr Romney for spineless flip-floppery.

And when they examine the corpse of the Romney campaign in November, the first question that will be asked is, "Was he pushed or did he fall?"

Posted at 12:11 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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[Guest post] Asymmetrical Polarization

It isn't your imagination: Political polarization has risen sharply in recent years. The Pew Research Center confirmed it in a recent poll.

Interestingly, Pew's survey shows no similar rise in polarization along racial gender, or religious lines — only political affiliation. What seems to have happened is not a change in value systems but a sorting of those value systems into more ideologically cohesive political parties. Conservatives have become Republicans; liberals have become Democrats. It's not just self-identified partisans. Poll Watch notes that it's happening to Independents as well: "Independents who say they lean — but are not committed to — either party have grown further apart from each other, particularly in their views on the role and effectiveness of government."

This process — not any decline in "civility" or whatever — explains the passing of the supposed Golden Age of Bipartisanship. Cooperation across party lines used to be more possible because there were regional idiosyncrasies in the U.S., conservative Democrats in the South and liberal Republicans in the Northeast. Those idiosyncrasies are being ironed out and the parties are becoming more internally homogenous. What's more, the process appears to be inexorable and irreversible. Polarization is the new normal.

This is well-understood by political types and even, I think, by the Average Joe and Jane. There's just a lot more fighting now, a lot more heated tempers, petty sniping and point-scoring, hacks on TV yelling at each other. Americans are also sorting geographically, so personal exposure to other points of view is declining. Politics is becoming one of those things that you don't mention in mixed company lest feelings get bruised.

What is much, much less well-understood is that the process of polarization is not symmetrical. The parties have not become equally ideologically homogenous or moved equally far toward their extremes. They do not behave in the same way or share the same attitude toward established social and political norms. Republicans have moved farther right than Democrats have left. More than 70 percent of Republicans in the electorate identify themselves as conservative or very conservative, while only 40 percent of rank-and-file Democrats call themselves liberal or very liberal. It is far easier for congressional Republicans to forge and maintain a united front than it is for Democrats.

In April, longtime scholar of American governance Norman Ornstein, about the farthest thing from a leftie firebrand one can imagine, wrote an op-ed stating flatly, "Republicans are the problem."

The U.S. cannot address its political challenges — and they are many — until its pundits, public, and politicians understand the shape of the situation we're in. Asymmetrical polarization is the defining feature of American political life. As George Will might say, "deal with it." The sides are drifting farther and farther apart, one far out into the choppy waters of reactionary lunacy. Those attempting to find a place between them are increasingly, well, at sea.

Posted at 20:50 by Rich Stelt   [/guest/rich]   Comments | Perm Link |   |   Tweet

[Guest post] It's Free Slurpee Day!

On an otherwise slow news day, here's just the thing to beat the heat we've been experiencing lately on the East Coast: from 11 AM to 7 PM today, you can stop by any 7-Eleven store and get a free 7.11 ounce Slurpee! All flavors are included, and there are quite a few to choose from, including standbys like Cherry Coca Cola and Blue Raspberry, to newer concoctions like Dragon Fruit and something called "KZ3 Battle Fuel" (which I am hoping does not taste like slushy kerosene).

The Slurpee is, like many great innovations, the product of happenstance. The invention of slushy drinks is credited to Omar Knedlik, a Dairy Queen owner with a broken soda fountain. According to legend, Mr. Knedlik was forced for a time to sell bottled sodas out of his freezer, where the sodas became cold and slushy. Customers loved the consistency, and Knedlik developed the machine that became the ICEE machine. 7-Eleven bought special licensing rights from ICEE in the 1960's, and as a result today we have free Slurpees.

In an era of man-made climate change, this humble yet cool and satisfying drink may be all that stands between us and heatstrokes still to come.

Posted at 11:59 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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[Guest post] Love, It's A Republican Thing

According to a report by Roll Call, Speaker of the House (and Ray Bolger understudy) John Boehner recently offered this spirited endorsement of the presumptive Republican nominee for President, when a woman in West Virginia asked Boehner if he could "make me love Mitt Romney":

"Solid guy." You know your party hasn't exactly chosen wisely when the most compelling case its leader can make for its candidate is that he's "solid". Sorry, Republicans, you've cast your lot with a humor-challenged guy whose religion probably weirds you out. But he does have lots of money and a great head of hair.

Posted at 19:08 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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[Guest post] How Many Jobs Let You Die For A Living For $7.25 An Hour?

It would seem that times are hard all over, as NPR reported today:

There were thirteen Chapter 9 municipal bankruptcy filings in 2011, and six so far this year. Noteworthy among this year's indigents are Stockton, California (which would be the largest such filing to date), and Harrisburg, Pennsylvania (our state capital). Other cities have gone bankrupt before, largely due to cost overruns on public works projects, or bad investments. But unlike these, Scranton is one of a new breed of failing cities, swamped by routine costs, pension payments, payroll for city employees, a years-long economic slide, and depressed housing tax receipts. For years these problems have been swept under the rug: no one will raise taxes, fixed costs are rising, urban tax bases are shrinking, and state and federal aid have been cut back sharply.

The much-discussed budget apocalypse on the horizon in Washington can only hurt the situation, as local governments depend heavily on trickle-down funds from the Feds and the States. The right wing says it's those darned greedy municipal unions that have gotten us in these messes; the left wing blames hard-line austerity budgets imposed by the right. I say a curse on both your houses, and fiscal finger-pointing doesn't do anything to solve the immediate problems. I don't have a comprehensive solution to the economic woes of government these days, but I do know that cities can't do without police, fire departments, and teachers. Washington's deficit problems are real and growing fast, but are not immediately threatening. Municipal debt may be smaller, but sometimes immediacy counts more than size.

Posted at 21:45 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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[Guest post] The Real Battle Behind the ACA

The Supreme Court's decision last week upholding the constitutionality of the Affordable Care Act was only the latest landmark moment in a long debate that goes back to the very founding of our nation. I'm not talking about trivia like the scope of the Commerce Clause, or strict constructionists versus more liberal interpreters of the Constitution. The real debate was and is one between Constitutionalists and Confederates.

Well, perhaps a better term for the latter would be Confederationists, just to avoid unnecessary confusion with those unruly Civil War era states down South. But those who favor state's rights, state nullification, and a generally weak federal government appear to favor a system more like the Articles of Conferation than that of the U.S. Constitution.

George Washington once wrote that the weakness of the Articles, which lacked the Constitution's power to tax and spend for the general welfare, almost cost us the Revolutionary War. The founders addressed this by writing a Constitution that empowered Congress to "legislate in all cases for the general interests of the Union." Since then, American leaders have had the power necessary to solve large national problems, including the Great Depression, legal segregation in the 1960s, or inadequate access to health care in the 2010s. Under the Confederation, programs like Social Security, the Civil Rights Act, or the ACA likely would have never stood a chance. When Congress banned whites-only lunch counters, segregationists claimed the ban exceeded the federal government's authority; likewise, that states could simply ignore decisions like Brown vs. Board of Education. Fortunately, they lost, unanimously, in the Supreme Court (another innovation in the Constitution which was missing from the Articles). Even today, secessionists want to take their marbles and go home because the ACA decision didn't go their way.

The ACA decision was not just a victory for President Obama, but for the much-extolled wisdom of the Founding Fathers in scrapping the unworkable Articles of Confederation with the the enduring Constitution.

Posted at 17:11 by Rich Stelt   [/guest/rich]   Comments | Perm Link |
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