Ready To Govern?

Ready To Govern?

There is an interesting article by Peter Schroeder and Cristina Marcos in The Hill “The GOP Wants to Show it Can Govern” which might seem somewhat like a parody, but is deadly serious.  With less than 100 days to go before the midterms, elections that virtually every analyst is sure will result in substantial gains, the GOP (now) feels the need to show it can govern.

Why?  Well, we know that Barack Obama can’t govern (that’s a topic for another day) but even if the GOP takes the Senate, there’s still the Constitutionally messy fact that he remains in the White House through the end of 2016.  And, while impeachment is a favorite word among the faithful (a recent poll showed that 57% of Republicans think that Obama should be impeached and removed from office) there is also the other Constitutionally messy fact-- good old Joe Biden is still vice-president.   Biden may be mocked, but they have nothing on him.  Removing Mr. Obama might be a bracing hot towel to the face before a good Republican shave.  Removing Biden would be a coup d’état, and the country would know it.  Imagine the knife-fight for Speaker. Probably not the best thing for the Republican brand.

So, why the concern about governing, especially when not governing is working out so well for them?  It’s a real risk to go on record as doing something.  If you actually pass legislation, real legislation, not showpiece repeals of the ACA or bills you know have no chance of making it to the public, then the electorate can examine what’s in those bills.  That might be quite bad—if they saw what you wanted to do when governing, they might not want you to govern.

But that’s the gamble. The GOP leadership knows that after six years of opposing Mr. Obama on absolutely everything, and after wresting control of the House in 2010, they haven’t show even the desire to do anything constructive. They push the line that the House has passed some bills (which then go to die at the hands of the evil Harry Reid) but in their more self-reflective moments (and they are having one of those now) they fully understand that their accomplishments are meager.  And, they are about to go on recess, with their crowning (and only) achievement being authorizing a lawsuit against Obama for his use of executive action to delay ACA’s employer mandate (which they oppose anyway and were happy to see.)

This is, in fact, the same playbook they have been using since 2011.  The only reason why it’s had some success is that Mr. Obama hasn't been the second coming of George Washington.  It is great for fundraising, appeasing some of their more vituperative media supporters, and driving turnout of the base, but sooner or later people will say, “OK, Obama is terrible.  Now tell me how you would be better?”

Some in the GOP think that question is being asked right now.  Schroeder and Marcos single out two big-ticket items that need prompt legislative attention and are tremendously volatile: the VA system and the under-the-age-but-over-the-border-crisis. 

The VA is a horrible problem. It has been terribly mismanaged for decades, and is the very definition of a bipartisan failure.  And it gets people where they live. You don’t have to be political to understand it’s fundamentally wrong that a soldier could be injured in service, and then mistreated at home. More cynically, if you are political, supporting the vet is a proxy for patriotism.  Or, to put it more crassly, it’s the buzz without the bar-tab.

Answering this imperative, both sides actually tried to do something.  But the gap between the Senate bill and the House bill was huge—they contain vastly different amounts of funding and a different approach to paying for it.  The Senate bill, spearheaded by Vermont Senator (and real Socialist) Bernie Sanders, was proposed as “emergency bill” that was exempt from deficit caps.  The House bill was far smaller and required offsets from other domestic (not military) spending.  This afternoon, a compromise was worked out between Sanders and GOP Congressman Jeff Miller of Florida that makes the Senate bill about half the size ($17B) proposed by the senate, but required only $5B in offsets. And it permits vets who aren’t getting timely care, under certain circumstances, to seek treatment from the private market. It’s not what either side wants (and no one seriously believes that this is going to fix the VA) but hopefully it will be seen as a credible step.  That’s if it passes.  I think it will pass the House, because a previous Democratic resolution to simply adopt the Senate bill picked up 13 Republican votes.  That will lead to one of the most fascinating spectacles of the year—the signing ceremony at the White House. It’s a pretty safe guess that the GOP won't be clamoring for invites or photo-ops.

Still, the VA fix is the politically easier thing, because in the end, it only requires money.  The border situation is far more complex—and it’s particularly complex for Republicans, who have to thread the needle.  Democrats have a fairly coherent (if not entirely popular) policy—we should be welcoming to legal immigration and find a rational way to deal with illegals.  It’s naïve, but it has the virtue of being simple.  Republicans have too many (often angry) stakeholders with different ideas.  There are the secure the border people, and the deport-en-masse people, and the business-Chamber of Commerce wing (who very much want more immigration) and the party professionals who worry about an alienating message being sent.  They can’t all be satisfied. 

That has to have the GOP establishment losing sleep.  Immigration has been on a medium-boil for the last couple of years, but the kids raise the temperature enormously.  There has to be action.  The party leadership knows it.  They just can’t take off five weeks without doing something.  Obama has proposed a $3.7 Billion bill that would provide funding for border security, faster deportations, care, etc. but it has absolutely no chance whatsoever. But it’s something.  Right now, the GOP has nothing except a lot of tough talk.

That is the problem with governing.  It isn’t like a party platform where you can dollop out the red meat to the true believers.  You have to lay it out to everyone and take responsibility for it.  As Barack Obama has learned a thousand times over with Obamacare, you own it, for better or worse.

Is the GOP ready to govern?  Are they ready to own something?

Or, are they just going to call the limo, head for the airport, and ask Putin to lend them some Cossacks?

July 28, 2014

Michael Liss (Moderate Moderator)

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Grabbing The God-mike

Grabbing The God-mike

There is a wonderful theatre-tech term, the God-mike—the microphone that the sound engineer (or, occasionally, the director) uses to talk back to the performers.  The God-mike isn’t some marvel of fidelity—it is in no way like those tiny miracles that they tape to the star's faces to allow them to soar over chorus and orchestra with perfect pitch.  It's purpose is to communicate. The God-mike doesn't mess around-it booms over every other sound in hall, cuts through the chaos, and commands attention, and obedience.   

We could use a little attention and obedience right now.  A group of lunatic amateur murderers, apparently armed by a cold-blooded professional murderer, blew nearly 300 innocent people out of the sky.  The Arabs and the Israelis are at it again, for the 871^st time.  There are thousands of kids barely qualified for middle school pouring over our borders.  Congress is about to go on a restful and relaxing vacation, having punted on every single piece of legislation imaginable, including even a highway bill that pretty much everyone agrees we need (but won't vote for.)

And the world is supine, stunned by the ferocity of events, unable to come up with a thoughtful response other than ritual denunciations.  The horrified Europeans (who are, let’s admit, a lot closer to the Bear than we are) are acutely aware... of the economic damage that being beastly to the Russians might cause back home.  So, while its positively dreadful to see, a few (ok, a few hundred) corpses are one thing, but profits are entirely another.  Hence the struggle.  Some choice, but diplomatic words should do the trick. Back here, the only person who is being criticized more than Putin is Mr. Obama, who seems to have been personally responsible for pushing the button on the anti-aircraft weapon.  Except, of course, that he’s too weak and unmanly to do anything like that so he invited the separatists to do it.  

Down at the border, Mr. Obama isn’t a very popular figure either.  The GOP has been floating a “blood is on his hands” trope.  The story goes that he took time out from a fundraiser (or golf, or lawlessness) to create a holographic image of himself, translated into Spanish, inviting all those children to come to a party with piñatas, ice-cream and free cell-phones.  Various luminaries, some packing heat, have visited the border to see for themselves (sounds bold, doesn't it?) and Rick Perry (not out of any Presidential ambition, mind you, but just because he cares) has strapped on his own sidearm and called out the Texas National Guard. 

Back in Congress, absolutely nothing anyone proposes is getting any traction.  Mr. Obama’s $3.7 Billion plan to shore up border security is being slammed because it spends money (um, yes, that’s what it will do, so Speaker Boehner calls it a “blank check”.) It also doesn’t include a giant transporter from Star Trek to beam up all the undesirables, and doesn't repeal a Bush-era statute designed to protect children from trafficking by gangs and other criminals. That law, passed in 2008, set up a system to help provide humanitarian relief and possible asylum for children who can demonstrate they are victims of trafficking and who would face continuing threats if they returned home.  Interestingly enough, even then Congress feared Mexican children above others, and made an exception for them (allowing Border Patrol agents to just turn them around.)  But kids from Central America were given more of an opportunity.  Therein, says Republican Senator John Cornyn, lies the problem, and he wants to eliminate the distinction, treating Central American children the same kindly way Mexican children are treated.  Frisk them and shoo them. The good Senator (and he has a Democratic co-sponsor in the House, Texas Democrat Henry Cuellar) calls his legislation the “Humane Act.” 

Moving our attention briefly to the Middle East, Hamas and the Israelis are trading shots, missiles, kidnappings, and casualties.  If anything demonstrates the absolute vapidity of absolutely everyone’s approach, it’s the Israeli-Palestinian situation.  Hamas specializes in provocation without care for the value of human life (anyone’s life.) The Israelis excel at over-reaction. The Europeans see an occupation and want the Israelis to follow their fine example when they were occupying powers, with courtesy, and culture, and a genteel empathy. The French are particularly insistent,  having demonstrated such kindness in Algeria. That’s why they are behind an international boycott and divesture movement.  We Americans are better intended, we try for more balance, but just equally inept.  We can't help ourselves stop the persistent but futile efforts at restarting the peace process when the parties just aren't ready to make peace.  Let’s face it; if the sepulchral demeanor of John Kerry doesn’t frighten the parties into it,  this is a fire that has to burn itself out.

Depressing, isn’t it?  Right now, you just want to grab the God-mike and yell:  Hamas and Bibi—knock it off, you are only making your collective lives more dangerous and less tolerable.  Wouldn’t some imperfect peace be better than this? Vladimir—stop playing dress-up in Czar’s clothing and call off your murderers (um, dogs.)  Barack—get out of your pity party, forget the showcase oratory without substantive action, and start being a President again.  Republicans—remember you have a loyalty greater than to your own ambitions and the next election cycle.  Try something, anything, beyond ritual criticism. Ideas actually matter.

And yet, ideas, particularly fresh ones, are valued least.  We have the greatest leadership deficit since the 1920’s, and I don’t see anyone stepping up to the plate. It’s just easier blaming others. 

Which leads me to one more theatre-tech phrase: “Luchtklampen”, or, in English, air clamps.  Air clamps are what you use to rig a truss to any structure where there’s nothing to grab on to.   In case you don’t have any at home, try your neighborhood hardware store.  They might direct you to Congress.

Luchtklampen.  Can you think of a better metaphor?  I’d get them in several sizes.  You never know when you will need one.

June 22, 2014

Michael Liss (Moderate Moderator)

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Eminently Awful

Eminently Awful

Consider the following.  You are sitting on the screened in porch of your home, enjoying the gentle warmth and the scents of springtime.  Your garden is in bloom, the gracious elms shade the back lawn, and your kids are planning a tree house as their summer project.

Suddenly, your reverie is broken by the sound of a pickup coming up the gravel driveway at high speed and going directly on to your property.  Earth (and your rosebushes) go flying.  A very large, bearded man in bib overalls jumps out of the truck, shouts a few incoherent things about you being on his land, goes to the rear, pulls back the tarp, where lie a variety of earth-moving tools, and a gun-rack.  He appears to have a holstered pistol as well. 

Quickly, you call the kids into the house, and lock the doors.  The man ignores you, looks for a likely spot, and plunges a boring tool into the soil.  Within a few minutes, your yard looks like it's been infested by gophers. You swiftly call the local police, two patrol cars are dispatched, and short time later, order is restored, the scary man led away, and the only evidence of your trauma are a lot of tire-tracks.

Life begins to return to normal.  But, a month later, another pick-up truck arrives, this time with a logo on the side.  Once again a very large man emerges, this time clean-shaven and wearing a pressed button down oxford and khakis.  On the pocket of his shirt is the same logo, and this time, what he’s got on his belt is a laser-measuring tool. He very calm, very polite, and hands you a sheath of papers.  You can either let him survey for the oil pipeline company he represents, or he will be back another day with a court-order, and a lower offer for the right of way they need. 

Once again, you call the cops.  This time, however, just the deputy shows up.  Apologetically, since he used to deliver the Sunday paper to you, and you always gave him a cold drink and a piece of pie, he tells you that, like it or not, the large-but-polite man with the laser-measuring tools will soon be back with earth-moving equipment, and your backyard, and the kids’ tree-house, will have to make way for an underground pipeline.  The young man with the earnest face will add, also apologetically, that when that time comes, you will get compensation, but the law is behind pipeline guy.  And he may also murmur, out of earshot, that his parents are pretty upset as well.

That’s the “beauty” of Eminent Domain.  Private land may be “taken” for a public purpose, with compensation, but without consent.  Property may be seized for something important, something that obviously advances the public’s interest, like roads, or schools, or a hospital. Eminent domain was used to build the railroads, massive public utilities, giant public works, and things like the interstate highway system.  Or, as in the highly controversial Supreme Court decision Kelo vs. The City of New London, it may be taken from private citizens, and handed to a developer who proposed an area of urban revitalization.  Or, as with pipeline guy’s employers, private industry may appropriate to itself massive swathes of private landholding, without the consent of the owners, and dig, pipe, frack and extract to their heart’s consent.

If this (all of it) seems unfair and “big government” that’s because it is.  It is inherently unfair to the people who didn’t want to sell (or give access) to their land.  The Kelo case was a cause célèbre for conservatives and many moderates when it was decided (5-4, with the conservatives in the minority) and several states rushed out legislation to limit its use, but if you want to look deeper, abolishing eminent domain isn’t really a concept that lends itself to any mainstream ideological framework.  If you read the Court’s decision you can see the inconsistencies. The majority opinion strains to justify what amounts to a taking that benefits private interests, and finds a public purpose in a (dubious) plan for urban renewal.  The dissent (written by Justice O’Connor) clearly sees this particular taking largely for what it is.  But the more conservative Justices can’t merely fall back on the “judicial activism” or “not what the Founders intended” arguments, because eminent domain predates the Constitution and is, in fact, acknowledged in the Bill of Rights.  Justice Thomas’ “Originalist” dissent lacks any credibility and was a solo work—even Rehnquist and Scalia didn't join it.

Not only is it difficult to come up with an intellectually consistent view towards eminent domain, it is also very difficult to come up with a scope of use that is, in any way, politically consistent.  Read Ann Neumann’s article in Sunday’s New York Times “A Pipeline Threatens Our Family’s Land”  and you wonder how anyone could defend the despoiling of such natural beauty.  But how do you slam the extraction industries for using eminent domain for private profit when New London took other people’s land to benefit a small number of private parties, with whatever “public good” there might have been speculative at best?  How can either thing be right?

What we have is a real-world situation that is growing in importance, is unpopular, but has Constitutional backing, and lacks both certainty from an intellectual basis and consistency from a political one.  That is what I would call an opportunity.

Wouldn’t it be marvelous to have an open discussion and find a truly fair and viable limit to “public use.”  Because who really wants to have their property taken against their will, “just compensation” or not? Could you possibly find a less partisan issue?  And, wouldn’t it be absolutely incredible if politicians were able to acknowledge that this is a problem that just doesn’t fit the playbook, and they determined to put aside their conflicts and put the needs of individual citizens first? If they could do this, maybe they could do other things as well.

So, whether the person outside your door is a man in bib overalls and a shotgun, or a lawyer in a suit with a briefcase, you could just offer him a cold drink and a piece of pie, and send him on his way.

You have to admit, it might be eminently naïve, but it’s an eminently wonderful idea.

July 14, 2014

Michael Liss (Moderate Moderator)

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Losing Your Audience

Losing Your Audience

A few weeks ago, I was at Avery Fisher Hall to attend the high school graduation of my daughter.  The keynote speaker was Jed Bernstein, the President of Lincoln Center.  After a few of the usual pleasantries and congratulations, he aimed a challenge directly at the 600-odd graduating students.  The arts are under siege. In just two generations, the average age of the audience has gone from about thirty to about fifty.  These 600-plus eighteen year olds who were graduating from one of the country’s premier schools had an affirmative duty.  If they cared about the arts, they needed to be more than just performers, or even patrons.  They had to be missionaries.  And that missionary aspect meant something beyond just earning a decent living, or even going on to be a star. They had to make relevant the old and advance the new, to put their craft and passion on stronger legs for those who followed them.  In effect, it was their responsibility to be preservationists, conservationists, and builders. 

I am not sure how much of that message sank in (especially when tossing caps in the air and parties were soon to follow) but I think more than a few of them heard him, and will act on it.   They have to.  Regional theatre struggles and Broadway often gets by on stupendous blockbusters that are subsidized by the over 50 million tourists that come to New York City each year.  Governments, both strapped for tax dollars and hampered by ideologically motivated opposition, have cut back or eliminated their support for local cultural institutions.  Two important art collections, the renowned Corcoran in Washington D.C., and the Barnes in Pennsylvania, struggled mightily and had to seek stronger hands.   Classical music is in crisis.  The New York City Opera was forced to close after some catastrophically bad management decisions and some worse luck.  The Minnesota Orchestra just ended a 15-month lockout to force lower labor costs, and even the mighty Metropolitan Opera is looking for major givebacks in its latest contract negotiations.

You can blame local factors or poor choices, or even lush labor contracts, but the real problem is that fewer people are taking notice. For at least a generation we have cut back on education in the arts.  We have not found enough other ways to draw younger people in, nor to inspire an imperative to support art, or to make it appear relevant to the community.  It isn’t that Da Vinci or Beethoven have suddenly lost their genius, but even the most beautiful objects or sounds need to be seen and heard.  An empty house, or an empty gallery, eventually extinguishes the light. 

One could make the same point about government.  We live in the greatest nation on Earth.  We have done incredible things, and done it within the context of a high-functioning democracy that values individual decision-making.  Government has worked because we have made it work—we have squabbled, and threatened, and pontificated, and horse-traded, and sometimes earmarked and otherwise greased our way to solving big problems, but we have done it together.  And yet, the very idea of good government, effective government, collaborative government, is losing its audience as well.  It’s not the same benign neglect one sees with the arts; people argue vociferously, but they don’t seem to really care about making it work, and they walk away. And sooner or later, their withdrawal extinguishes the light as well.   

How do you turn these artistic and political cultures around and build their audiences? My daughter, who loves fiercely all music, but particularly classical, says you have to get them early.  She’s absolutely right, but I would go further than that.  You gain audience not merely by making new opera-lovers, but opera-moderates.  Look at the crowds in a museum, or in a concert hall, and you will see plenty of people who occasionally check their watches. They are there for the community, because someone asked them to go.

The same is true in civic culture.  To thrive, you can’t just depend on the unending loyalty of the passionate.  You have to bring in the moderates.  Of course, it’s always nice to have an ideologically moderate middle to find commonalities.  But with polarization increasing, what’s even more important are the “Temperamental Moderates.”  A Temperamental Moderate is someone able to listen to different (political) music without having a physical reaction or stomping out of the concert hall.  The Temperamental Moderate will be willing to go to your son’s middle school recital to hear some-not-entirely-pleasing-to-the-ear French Horn and tell you afterwards how great it all sounds.  Temperamental Moderates do this because a) their emotional makeup does not require continuous confrontation, and b) their parents brought them up to value community and social relationships and c) their daughter plays a mean bass guitar and her band has a gig next month.

What is interesting is that both ideological poles intuitively understand this, although they both reject the obvious solution.  The Pew Study displays some fascinating data about who identifies as a Democrat or Republican.  Included amongst all of the evidence of polarization and ideological silos, there was a startling tidbit that just jumped out at me. 70% of "Solid Liberals" said that America’s best days are ahead of it.  76% of "Steadfast Conservatives" says our past is better than our future.

Why?  Why would Liberals, watching a Democratic President falter under his own weight, and that of the tar and feathers that the opposition smears him with on a daily basis, be optimistic about the future?  And why would Conservatives, who pride themselves on their patriotism, and who very likely will control all three branches of government in January 2017, be so incredibly morose? 

The answer lies in their perception of community.  Liberals see the inevitability of a pluralistic society—more diverse, more multi-cultural, more tolerant, and more polychromatic, and are encouraged.  Conservatives see exactly the same thing, and it frightens and repulses them: our best days are behind us because we are moving away from the homogeneous communities that made us great.  We are going to have to bridge that gap, and face our fears and our hopes rationally.

 

That is the real challenge we face, analogous to the challenge Jed Bernstein laid out. We can hunker down with our friends, play the same tunes over and over, watch the river rise and hope it doesn’t flood.  Or we can use every ounce of effort and creativity we have to build our audience. To quote my daughter again, new staging is wonderful, but you can’t just only do the Met’s Rigoletto in Las Vegas. Be a preservationist, a conservationist, and a builder.  At the end of the day, staging is great, but it’s the Verdi that counts. Be open to change, but don’t disrespect the master, and don’t disrespect the dowager who has spent the last fifty years supporting the arts, and adores him as he is.

If you do that, you might find the crowd just got a little bigger, and the applause a little louder.

June 9, 2014

Michael Liss (Moderate Moderator)

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The Supremes Put Their Fist on the Scales

The Supremes Put Their Fist On The Scales

This past Monday was the last day of the term for the Supreme Court.  They now pack up their robes and gavels and head back to whatever places they cherish to clear their minds before the First Monday in October. 

As is their wont, they saved some of the choicest and most controversial opinions for the end.  Last week they did the nation a favor by insisting, in a unanimous decision, that the police do need a warrant to listen to cell-phone conversations.  SCOTUS decisively spoke on behalf of all citizens to uphold and vindicate among the most personal of liberties—the right to have a private conversation.

This week, however, in two highly controversial cases, Burwell vs. Hobby Lobby and Harris vs. Quinn, they reminded us that they are more than just defenders of the ordinary person or deciders of arcane Constitutional points.  They also pick winners and losers, and 5-4 has the same force of law as 9-0.  And those five remind us that, in the era of a highly conservative court majority, more often than not, it will be corporations that are accorded more respect than people in general and labor in specific, and the exercise of religion, both in the public and private sphere, will be given special status, even at the cost of other liberties. 

Harris vs. Quinn was seen by both business and labor as a potential “kill shot” on public sector unions, and, perhaps the gateway to taking down the entire organized labor workforce, both public and private.  The core issue was whether a public union could collect dues from workers that did not want to join or pay dues (often for political reasons) but nevertheless enjoyed the benefits of the collective bargaining agreements that the union had negotiated. The goal of business groups was two-fold.  First, if you could keep the union from collecting dues, more and more workers would simply refuse to pay them, hence eventually draining the union of resources.  In a comparatively short period, the union would then become financially moribund, and eventually they could be pushed aside.  This would (naturally) lead to lower wages and benefits, and more dangerous work conditions.  The second was purely political.  Labor has been a backbone of the Democratic Party for generations.  Cut off their funding, and you elect more Republicans who can, in turn, press for even more favorable legislation and preferences for their contributors. 

I don’t think it’s fair to call SCOTUS partisan, although there is no question that their facially non-discriminatory rulings may often disproportionately help one group over another.  Citizens United is an excellent example of this, in allowing corporations to spend enormous amounts of money to openly purchase candidates.  McCutcheon et al. v. Federal Election Commission extended Citizens United to people (an unintentional irony, I’m sure) and removed the cap individuals may spend in a given election.  The Court didn’t say “only Republicans can spend” they simply removed the barriers to spending.  The Koch brothers can spend, and George Soros can spend.  The fact that Republicans had more rich people and control of more money one could look at as purely coincidental.

But Harris was fundamentally different, in that it went further, and aimed to use the power of the courts to punish one party’s supporters.

Just to be clear, as I have a number of conservative friends and readers, I am not defending labor as pure and good.  They aren’t.  But collective bargaining unquestionably helps the working person, both in the public and private sector, and unions give them a voice in the legislative process.  If they didn’t, Republican Governors and State Legislators wouldn’t spend so much time trying to bust them on behalf of their business contributors and personal political ambitions.

That’s why Harris is so important, and why Justice Alito’s ultimate, fairly narrow, ruling, that the part-time workers who were not regular government employees were exempt from involuntary paying of dues, could be seen as (temporarily) dodging the bullet.  Rest assured, business will be back, but for now, the ruling only hamstrings and does not entirely eviscerate Labor.

Of course, few people were really paying attention to Harris, even though an “all in” ruling could have had immense political consequences. Hobby Lobby was the glamour girl of the day.  In Hobby Lobby, the deeply religious and conservative family that ran the company refused to pay for four separate types of contraception, in contravention of the ACA. 

What SCOTUS had to consider was whether a private for-profit company (not a church or religious order, which was already exempt upon request) could impose its moral and religious values on its employees through the selective withholding of benefits.  As in Harris, the fear was that SCOTUS would go beyond the question presented.  Would they take such an expansive view of private religious exercise in the business sector as to legalize all types of discriminatory behavior?

Whether the 5-4 decision did exactly that is open to interpretation.  Justice Ginsburg, in a closely reasoned dissent, said the barn door was wide open.  The actual opinion of the majority (Justice Alito, joined by Scalia, Thomas, Roberts, and Kennedy) is a little more circumspect.  Justice Alito relied heavily on the 1993 Religious Freedom Restoration Act (RFRA) and said that the challenged HHS (ACA) regulations substantially burden the exercise of religion.  He went on to say that ‘Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.”

So, for Justice Alito, the regulatory scheme fails, and Hobby Lobby stores are free to express their owner’s religious opinions by restricting benefits to specific people (Hobby Lobby apparently has no problem with Viagra.)  Alito was sensitive to Ginsburg’s concerns.  He says it concerns only the contraception mandate. He goes on to add, “our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

But, Alito’s disclaimers notwithstanding, there is considerable acumen in Ginsburg’s dissent, because Alito also makes clear that there is very little “free exercise” save racial discrimination that would unquestionably not survive a challenge.  He plays around with things like bans on immunizations, but merely says that different arguments (like public health) would have to be made by HHS.  And, by focusing on race only, he reminds us of what he’s not saying—discrimination against age, gender, gender identity, religion, etc. may be upheld.  If Hobby Lobby can refuse contraception coverage based on a “sincerely held belief” can it also make a policy of not hiring women of childbearing age, or requiring them to resign if they get pregnant?  Or, can it express a religious belief that a woman must be subservient to a man, and so therefor is ineligible for a managerial job?  The fact is that Justice Alito did not close the door on those things, and that is part of the reason why so many conservative and religious groups are exultant today.

For those who think I’m overstating, keep in mind two things.  The first is the bigger one: Justice Alito handed conservative and religious groups a huge shield to hide behind.  All they have to do is claim a sincerely held belief and it’s the employee who has to show otherwise, perhaps at the cost of her job.  The second is subtler, and can be seen in Justice Kennedy’s separate concurring opinion. He says,  “At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.”  I don't think I have ever seen that before.  It tells me that Kennedy felt he had to join the main opinion, but also the need to reassure his colleague, Justice Ginsburg, who’s intellectual arguments he acknowledges. He may be saying to her "that's not what I mean."

Justice Kennedy’s uncommon grace, however, has no precedential value.  It’s Justice Alito’s opinion that is the Opinion of the Court. 

And it’s Alito’s fist that is on the scales of justice tonight.  Good for business, good for those who profit politically and economically from weakening labor, and good for the faithful who wish to impose their beliefs on others.

Let freedom ring? Not exactly the cell phone case.

July 1, 2014

Michael Liss

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