The Dobbs Decision

 

Headline of the Wall St. Journal June 25th, 2022, the day after the decision 

This is an ex post facto post, but it occurred to me I might want to save this for posterity, or at least until Google finds me and shuts me down ;)  A thing I've worked and prayed and hoped and marched and sacrificed for most of my life, and did not expect to see. 

The Dobbs v. Jackson Decision

Update: So many pastors, including our bishops, had a hard time finding anything positive to say about the Dobbs decision, I just wanted, for the record, to show how it should have been done.  Most of this homily is a commentary on the gospel of the day, but the first few moments are about Dobbs. 

Kennedy: My Decisions Are Like Those of the Third Reich

Well, here is a new one for the annals of argument ad Hitlerum: a man compares his own side of an argument to the Third Reich. One begins to suspect Justice Kennedy is not a towering judicial intellect.

And Now for a Close Reading of the Dissent in the Hobby Lobby Case

You might enjoy checking out This Looks like a job for Super Pac's Facebook page for mild bi-partisan mockery.

SCOTUS parceled out a narrow win for religious liberty yesterday -- very narrow. So narrow that it's hard to believe I inhabit the same universe with the ruling's critics.

Here are some useful links on the decision, but for the love of God or whatever it is you believe in, I don't take you seriously if you think this was a ruling about access to birth control.  The Hobby Lobby corporation COVERS birth control and vasectomies and a bunch of other stuff I as a pious Catholic hate.

Here's what the case WAS NOT about (see the link).

For those people like Justice Ginsberg who hear the phrase "birth control" and lose control of their rational faculties, let me give you a parallel case.

Imagine it is 2060 America. A combination of low fertility rates in-country and the influx of immigrants from war-torn Africa & the Middle East have given us a population that accepts female circumcision as standard practice. There are a few hold-outs against it, but they are widely seen as out of touch or wacky. It's just what one does for one's daughter to protect her from men.   You are an atheist lesbian feminist business owner. Do you have to cover clitorectomies in your company insurance plan?

SCOTUS just ruled in a split decision that you do not on the narrow ground that the government could have found a less intrusive way to provide free female circumcisions if that's what it wanted to do.  It kept silent on the question of whether the government has a legitimate interest in providing this service at all.  And -- troubling to my mind-- it seems to hint that a government "accommodation" whereby YOU don't provide the coverage, but the government sets up a kiosk in the middle of your workplace and provides it FOR you is just fine.

Princeton's Robbie George, obviously more qualified than I to weigh in, discounts this latter fear of mine -- but he doesn't bat it out of the park, so I am relieved but not elated.

Still the most troubling thing to me is that no one in the Obama administration understands enough political philosophy to realize it is foolish in the extreme to set people against each other and against their government for no good purpose as the HHS mandate does. They're further destroying the bonds that hold us together. Although maybe the damage was already done, given the fact that people have fallen for it without any recourse to facts or common sense.

I mean, I am just astonished that Hobby Lobby and everyone else has gone out of its way to frame the argument so that we WON'T be talking about birth control, yet every paper in the country calls this the birth control case and everyone speaks as if the question in the case were a matter of denying anyone access to any contraceptive he or she wants.

I Need A Lawyer

Saw this notice of non-discrimination policy at a construction site at Union Station as we returned from the March4Life yesterday. Can anyone tell me what the emphasized text refers to?

The District of Columbia does not discriminate on the basis of actual or perceived: race, color, religion, national origin, sex, age, marital status, personal appearance, familial status, family responsibilities, matriculation, political affiliation, genetic information, disability, source of income, status as a victim of an intrafamily offense, or place of residence or business.  Sexual harassment is a form of sex discrimination which is prohibited by the Act.  In addition, harassment based on any of the above protected categories is prohibited by the Act.

Wha?

Strong Sign You Need to Re-think Your Life

When you refer to these gals, the Little Sisters of the Poor, whose mission is to serve the elderly poor in impoverished neighborhoods, as "threatening." 

As in:

“The administration must now deal with this latest threat to the nation’s health care law: these ladies, the Little Sister of the Poor.” 

Joanne McPortland, (a sensible Liberal & recently-returned-Catholic) rightly calls this kind of thing the "noveau Know-Nothingism." Here (as noted yesterday in my Twitter feed), she smacks down a frankly bigoted piece from US News denouncing Sonia Sotomayor, who is turning out not to be such a wise Latina in the Left's mind after all. And that because she simply wanted to give a fair hearing to the Ladies in the picture before forcing them to pay for abortions and sterilizations. 

Actually the Anchoress does the best smackdown and the piece, but I highlight McPortland's because she does us all the favor of uncovering a highly relevant letter of Thomas Jefferson to Ursuline nuns at the time of the Louisiana Purchase.  The nuns had fled the French Revolution and, knowing Jefferson to be a fan of it, were worried what might happen to their apostolates. He hand-wrote them the following letter (McPortland's post has a link to the .pdf so you can see his handwriting!):

I have received, holy sisters, the letter you have written me wherein you express anxiety for the property vested in your institution by the former governments of Louisiana.
The principles of the constitution and government of the United States are a sure guarantee to you that it will be preserved to you, sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority.
Whatever the diversity of shade may appear in the religious opinions of our fellow citizens, the charitable objects of your institution cannot be indifferent to any; and its furtherance of the wholesome purposes of society, by training up its younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under.
Be assured it will meet all the protection which my office can give it.
I salute you, holy sisters, with friendship and respect.

And that, my friends, is how a genuinely liberal Democrat -- as opposed to a Progressive tyrant-- treats a nun.

I also like McPortland's post for its spunky close for the benefit of US News and its genuinely bigoted author:

please don’t dismiss this as Catholics crying persecution. We’re not stupid. We know the difference between persecution and ignorant, rabble-rousing bigotry. We will pray for those around the world experiencing the former, but by damn we will not stand for the latter.

You Just Know They Think Zimmerman Is Jewish

Iran condemns the Zimmerman acquittal.

Someone Didn't Read the Decision

Sen. Rand Paul is glad DOMA was struck down. Unsurprising -- he would be against DOMA on federalism grounds. But then he went on to praise Anthony Kennedy for his moderation and balance.

Paul, who is widely expected to be a top contender for the 2016 Republican presidential nomination, said that he felt Justice Kennedy's majority opinion “tried to strike a balance” and praised Kennedy as “someone who doesn’t just want to be in front of opinion but wants government to keep up with opinion.”
“As a country, we can agree to disagree,” said Paul.

Whoa. Someone clearly hasn't read the Windsor decision, since it doesn't argue from federalism and is a prolonged rant about how in fact we can't agree to disagree, we must believe that anyone not for ersatz marriage can only have malice and intent to demean as motivations.

I hope that was quick talk and not an indication of Rand Paul's judicial philosophy -- wanting someone who keeps up with the times?

Update: I want to say a word or two about Sen. Paul's assertion that marriage "is not a defining Republican issue."

Actually, the Republican Party came into existence over two issues: slavery and polygamy. The very first Republican platform read in part:

it is both the right and the imperative duty of Congress to prohibit in the Territories those twin relics of barbarism--Polygamy, and Slavery.

 Mr. W. put it rather well recently: 

The 19th century understood what the 21st century refuses to understand--that monogamous heterosexual marriage is the character of civilization itself, whereas other forms of marriage are 'barbaric.'  What that meant was that other forms of marriage are a kind of enslavement, which is why the two [slavery & polygamy] were "twins." This denunciation of polygamy was repeated in platforms into the 1880s.  Justice Kennedy on the other hand talks about gay marriage as an "evolving standard."  Healthier cultures see it as it is, a "twin" to slavery and a return to the age of enslavement to appetites.

This is my main gripe with the Libertarians, even though I make common cause with them often enough. Libertarians are foolish enough to believe that men who have not the character to discipline their own appetites will have the wisdom or will power to limit their government. Laws follow the character of a people and you can't prescind from the questions of abortion and marriage and ever hope to reduce reliance on government. It's not about imposing morality or telling people what to do. It's about forging the character of a people in the broadest sense. 

Mona Charen has a good piece on the Windsor decision. She sees it for the disaster that it is. She compares it to Roe, though I think a more apt analogy would be Dred Scott because the Court in Windsor does not, as it did in Roe, directly find a constitutional right to same-sex marriage. Rather it sets same-sex marriage proponents up for a spike next year, just as Dred Scott was a set-up for the destruction of any limits to slavery and an effort to delegitimize anyone with a different opinion. Justice Kennedy's sanctimonious dismissal of the entire Congress and President Clinton as mere bigots sounds exactly like Justice Taney's condescending and bilious moral lecture in Dred Scott. Each was more interested in giving a pious lecture on correct opinion then in sound judicial reasoning. Those who want to think as Paul does that the Court did something limited ought to re-read Lincoln's House Divided speech. It can serve as stand-in for my response to Rand Paul. Windsor is a piece of legal machinery in the destruction of states' ability to regulate marriage, just as Dred Scott was a piece of legal machinery in the destruction of states' ability to regulate slavery. And Rand Paul has just said, with Stephen Douglas, that he "doesn't care" about the result.

Or try Lincoln's Cooper Union speech, which addresses the political correctness of his day, and his answer to the charge of divisiveness, extremism. 

what will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly - done in acts as well as in words. Silence will not be tolerated - we must place ourselves avowedly with them. Senator Douglas' new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us.

It is one thing to do as Lincoln did and try to let a debate play out without acting precipitously. Maybe that's all Paul was getting at. But there should be no fooling ourselves that the forces of ersatz marriage are going to be content with agreeing to disagree. They cannot possibly win this debate and not crush every right guaranteed by the First Amendment along with it -- we have already seen this in Britain, in Canada, in the Scandinavian countries and in the states that have affirmed gay marriage. Wherever it goes, free exercise and free speech disappear.

Initial Reaction To Gay Day at the Court

Don't know what I think in detail (you know, apart from being outraged yet unsurprised) about today's SCOTUS decisions on marriage. It will take a few days to read and digest them. My impression based on quick skims through them?

Shorter U.S. v Windsor:  "We can't find a Constitutional right to gay marriage, but Phhhhbt!"

Shorter Hollingsworth:  "Citizens have no standing to amend their own state constitutions." 

They're saying we should be glad the Court didn't --yet-- find a Constitutional right to marriage, but Holy Return to Pagan Rome, Batman! What a crackpot judicial system they've given us. As Hadley Arkes says, it's worse than it sounds. 

Scariest statement of the day goes to the President -- who once again circumscribes First Amendment freedoms into a tiny right to profess faith privately-- when the issue is how individual businessmen and businesses will be treated where same sex marriage is law. He pretends to uphold religious liberty while gutting it.

Update: 12 of the Most Cutting Highlights From Justic Scalia's Dissent

So the Court didn't invalidate DOMA, only the section which relates to Federal benefits. This means that marriage, for federal purposes, has nothing to do with consummation of relationship or creation of a family, but is a business contract for the purpose of tax advantages and other bennies. "Love is love!"

Upperdate:

• Deacon Greg Kandra on what Obama really said about Churches & this decision. Yes, exactly. 
• Interestingly Eldest Weed's friends on Facebook, who are on both sides of the issue, immediately took to mocking the Windsor decision, saying they were going to petition to marry each other in order to get benefits. One young man said he's going to marry himself because Love is Love after all. If they can see right through it, so can anyone. Or scratch that. I find the teenagers are much better than the adults at seeing through obvious cant in an Emperor's Naked kind of way. They're also at better at having respectful debates without assuming ill will on anyone's part.  

"We Love You And We Want You To Be Happy": Scenes from the March for Marriage

Before Triduum silence begins I wanted to post an eyewitness account of Tuesday's March for Marriage -- an effort to follow the French lead (I never thought we'd be taking moral lessons from the French -- at least not positive ones! ) and demonstrate support for traditional marriage. The timing coincided with oral argument at the Supreme Court over the constitutionality of California's Prop 8. The following day, Wednesday, the Court heard oral argument in a second marriage-related case -- this time about the constitutionality of the Defense of Marriage Act.

Marchers gathered on the Mall in front of the National History Museum, marched up to the Court and past it, then came down the other side of the mall back to the original spot for a rally.

Marchers on the way to SCOTUS, shamelessly pinched from here.

I wasn't able to be there early enough to march. I arrived at the rally spot before the crowd returned from the Court, but friends I met up with told the same tale as described here: that marriage supporters vastly outnumbered the marriage re-definers.

Both sides of the debate were out in force, with Christian opponents easily outnumbering advocates for gay marriage.

The Daily Mail story focuses on one particularly strident gay marcher so as to make the demonstration seem violent and more colorful than it was, but folks on both sides were well-behaved -- though weirdos love a demonstration, don't they? I had this sickening thought Monday evening when trying to decide whether it was worthwhile to attend the March that Westboro Baptist (an anti-gay hate group for you non-Americans) would show up and the press would make it seem as if all the marriage defenders were of a piece with them. Well, they did show up, but fortunately the gay marriage protestors surrounded and isolated them from the rest, so their impact was minimal.

Tell you what? If you agree that Westboro Baptist is an outlier not representing the typical marriage defender, I'll agree that this guy doesn't speak for everyone on the other side. 

 AFP/Getty images, shamelessly pinched from here.

I had mixed feelings about the March for Marriage. It's important not to be cowed into silence on an issue of such importance for plain old civilization, and there's a place for public manifestations to stand for principles.

What left me uncomfortable was marching on the day of oral arguments. The premise of our constitutional order is that the Court is supposed to be relatively untouched by outside pressures -- so deliberately attempting to bring outside pressures to bear (even if there's not much pressure involved -- the justices are in court, not looking out their windows) strikes me as wrong-headed. Everyone now does it, but is participating just contributing to the further demise of constitutional order?  Plus, by the time a question like this gets to the Court we're all in God's hands and there's nothing more anyone can do. The time for demonstrating and arguing was during the election cycle, not now, when nothing anyone says or does is going to change the minds of any of the justices. A good argument can be made that everyone on both sides was just making noise. (And the fact that this is Holy Week definitely contributed to my impression that all of the energy of the past two days has been just that: the unruly mob crying "Crucify Him, Crucify Him" and Christ looking with pity on us all and uttering, "Father, forgive them, they know not what they do.")

On the third hand, when people try to do a good thing and they're doing it against the zeitgeist, you stand with them, you don't nitpick all the things you would have done differently and better. The third hand argument won out in the end.

As I said, I arrived for the rally before the rally-ers returned. There was a Christian rock group playing and I snapped a few shots of people beginning to gather:

Then the marchers started to return, led by a TFP marching band:

And they started to fill in the rally space:

Note the little French group. When the French rallied a week or two ago in Paris, French citizens all over the world were invited to gather and send pictures of themselves in virtual support of marriage. That's what this was about -- a few Frenchies joining us and virtually joining their confreres. (I want to think more about why it is the French, for all their corruption, turn out to be better defenders of marriage than the anglos, whether Brit or American. Suspect it has something to do with Anglo puritanism and fear of the body -- we have a hang-up about the Incarnation. "Vive la difference" turns out to be a powerful cultural anchor. But that's too much for this post.)

There were between 10,000 & 15,000 pro-marriage demonstrators in the end.

Mixed feelings about the rally. I am glad it took place -- I participated for heaven's sake!-- and I am grateful to the organizers for putting it on. There's a risk at the start of a movement, when it is fragile, of being so critical you crush a tender plant and I don't want to be Negative Nellie. I liked the peaceful, prayerful, friendly spirit of the crowd. The rally was well-organized, nicely paced and they kept the tone positive.

On the other hand, this is a debate over CIVIL marriage -- and many of the speakers did not seem to understand that. They talk about biblical marriage and God's plan -- things I affirm, but which are not directly relevant to the civil law. It's quite difficult to make the case to our non-believing fellow citizens that we are not simply shoving our religion down their throats when most of the speakers at the rally had only religious arguments to offer.

While the crowd was welcoming, I'm not certain passers-by would have thought so. At one point, Bishop Harry Jackson, an important leader among the black churches, a man I admire and who is terrific in insisting that a marriage culture is the key to relieving most of the problems of the inner city -- the poverty, the crime, etc.-- He had us chant three times from a Psalm: "Let God arise and may his enemies be scattered!"  The crowd knew from context that it was a prayer for the wisdom of the justices. But any gay person or persuadable person walking by would surely have thought we were calling on God to smite the homosexuals. Was that helpful when the Obama administration is arguing that the ONLY reason for not granting gay marriage is anti-gay animus: that traditional philosophical, rational humanist, Christian, Jewish, Muslim, Hindu and Buddhist thought is all out to get the gays and nothing more?

Moreover, most of the speakers talked about marriage as if most Americans are married and never divorced. Nothing hateful was said, but I didn't hear a lot of reaching out to persuade. Maybe that's not really the point of a rally, which is to strengthen troops, but it would be good to give people better arguments.

I have been shocked over the past year to see that no one understands civil marriage any longer -- which is why the past few days many, many of my Catholic and Christian friends on facebook have "come out" for gay marriage. They haven't necessarily changed their moral opinion of homosexuality (tho' many have); but they see it as a private religious opinion. What they've adopted is the libertarian view that marriage is an exclusively religious act and the law should stay out of it altogether. There is ZERO understanding of the legal chaos and the harm to children that will be done by the redefinition of marriage, or that marriage is a civil institution that pre-dates the Church. And there is ZERO understanding of the threat to religious liberty and federalism by the courts stepping into this matter -- libertarians should be horrified, not going along. (It felt like everyone on FB changed his avatar to those pink equals signs on a red field; then the marriage defenders started putting up crosses in the same colors...which I think actually makes the gay marriage case for them: this is not a civic issue, this is you imposing your religious belief on me. So I was just disheartened by EVERYONE yesterday. If we lose the cultural battle, it will be because of the stupidity of the marriage defenders, and the inability of anyone on either side to examine honestly the legal implications of the cases here. How many of the people who changed their avatars to equals signs or crosses yesterday could articulate the legal questions involved in either of the two marriage cases? Doubtful anyone could. Everyone was just enjoying the feeling of righteousness, whatever that happened to be for them.)

Some of the speakers did understand this -- the "professional" marriage defenders like Jennifer Roback Morse of the Ruth Institute, for example. But I felt their message was drowned by the religious speakers. There were more state and local political leaders than clergy addressing the crowd, but their arguments were religious, not secular or legal -- and therefore not accessible to people who disagree.

The only speaker whose message and tone I thought was pitch-perfect was the very first one: Archbishop Cordileone, the RC bishops' point man for defense of marriage. Here's the text of his address. 
He was the only one to my mind who:

1. made a civil case for marriage, showing that it is a public good that serves the unmarried and homosexuals as well 
2. was loving to homosexuals
3. spoke within the real context of marriage in America -- where heterosexuals have already made mincemeat of the institution

A fine example, in other words, of how one begins to re-build a marriage culture in the midst of a people who have no idea what that is even in the cases where they support it!  His opener:

I want begin with a word to those who disagree with us on this issue and may be watching us right now: we love you, we are your neighbors, and we want to be your friends, and we want you to be happy.
Please understand that we don’t hate you, and that we are not motivated by animus or bigotry; it is not our intention to offend anyone, and if we have, I apologize; please try to listen to us fairly, and calmly, and try to understand us and our position, as we will try to do the same for you.

And:

Why, really, are we here? One simple reason: marriage matters to kids. It’s the simple principle that children deserve a mother and a father, and that society needs an institution that connects children to their parents. What could be more beautiful, or even more sacred, than a man and a woman coming together to create new life? Marriage is the only institution that does this, that connects children to their parents and parents to their children and to each other.

Sometimes that isn’t possible, sometimes due to circumstances beyond people’s control the ideal doesn’t happen. Those parents, too, need and deserve our love and support. This isn’t about parenting skills, though; we know that sometimes kids can do well in less-than-ideal circumstances. Rather, it’s about rebuilding a marriage culture, which begins – certainly doesn’t end! – with preserving in the law the principle that children deserve a mother and a father, and that society should do everything it can, and offer all necessary support, to help insure that children get what they deserve. Only a man can be a father and only a woman can be a mother, and children need both, and no matter how happy their childhood may be, to grow up without one or the other is always a deprivation. This is not discrimination; on the contrary, marriage benefits everyone, including those of us who are not married and those who disagree with us.

That's how we have to talk, seems to me. And forgive me for saying so, but our Protestant brothers and sisters are not much help where rhetoric is concerned. Not trying to write anyone out of the movement - all hands on deck! And certainly Christians and other believers need to look inward and ask themselves some hard questions about how they themselves are living out their creed. It's appropriate for Christians to motivate Christians to give a better testimony. (See Msgr. Pope for a stern jeremiad, for example -- but he's talking to Christians about their Christianity, not making a public argument.) But you simply can't defend the civil institution of marriage by preaching about Christian matrimony. They are separate phenomena -- and conflating them actually hastens acceptance of gay marriage, because it further undermines understanding of the importance and value of civil marriage. 

Then there was this footage of the 11-year-old girl testifying before the MN legislature, which played for the rally too. It's been making the rounds on social media and people seem to think it proves something. She asked the legislators: which don't I need -- my mom or my dad? It's a good question, but I can't decide whether this is an instance of being wise as serpents (fighting emotionalism w/ emotionalism) or our side stooping to be as manipulative as the other side. She's 11. Will she still be pro-marriage after college? What would we think if the other side used an 11-year old child of a same-sex marriage couple to complain that if her bio-parent died, the law would take her from her "other mommy"?


There were some young people in the crowd. Maybe 20%? And the organizers are young --it's their intiative. But the crowd skewed much older than, say, the March for Life and we are fooling ourselves if we think otherwise. It's heartening that the heads of all the pro-marriage groups are young (even the Gray Lady has noticed!), but there was a lot of gray hair and middle-aged spread in the crowd.

Not saying that to be a downer. Considering this was thrown together in about 6 weeks, it was an excellent first effort. I'm just saying we have to build, and we mustn't fool ourselves with pieties about the youth really being with us but the press won't cover it.

Some excellent links on this topic:

George Weigel at his best: on Reality and National Policy. He says better what I was getting at here.
Rich Lowry on how the court may create another Roe by circumventing the political process.
The Red Herring of Marriage Equality
Transcript of oral argument in U.S. v. Windsor (DOMA case)
Transcript of oral argument in Hollingsworth v Perry (Prop 8 case)
What is Marriage?

Update: See also Pushing Catholics Out the Door. Don't agree with it in every respect (the gay man's complaint that his mentors let him down is true and poignant, but it also says too much. It is asking too much of anyone that he never have a low moment, a thoughtless moment, a blind spot -- and his conclusion, that you can't rely on anyone but God is, properly understood, not a cause for disillusionment, but a purification of faith and an opportunity to be more loving and understanding of everyone -- rigid people are wounded and need love and understanding as much as homosexuals! ), but I completely agree with this:

The media has loved framing this as a Gays vs. Christians debate. I just don’t understand why Christians are so eager to frame it the same way.

Nothing To Do With Lesbians

I'm seeing this story about a sperm donor forced to pay child support to two lesbians all over the place. People seem to be taking the line that the man in question is being unjustly used and it's all the crazy lesbians' fault. I completely disagree with that take; I think the homosexuality of the couple has nothing to do with the case (except in the general sense that the couple was in search of an experience for themselves more than concerned about a duty to the child they brought into being), which would be completely unaltered if an infertile heterosexual couple were involved instead. The question is: what are the moral duties of sperm donors?

A sperm donor has been ordered to pay child support for the biological daughter he fathered to a lesbian couple who found him via Craigslist.
Angela Bauer, 40, and partner Jennifer Schreiner, 34, placed an ad on the site three years ago for a donor which was answered by William Marotta.
'We are foster and adoptive parents and now we desire to share a pregnancy and birth together,' Bauer wrote in the online posting.
Mr Marotta provided sperm which was used for artificial insemination by Ms Schreiner. In return, he gave up parental rights including financial duties for the child. The three signed a legal document which stated Mr Marotta, a married mechanic who fosters children with his wife, would have no rights to the child.

Please note the lesbian couple didn't go after the guy. They're on his side. All they did was split up, and the mother, who has custody of the child, recently filed for welfare benefits because she has some health problems that have made it hard for her to work.

It's the state, specifically Child Protective Services, that went after the father as a way to get health care benefits for the child.

So this is not a case of mean old lesbians doing what they want until they change their minds and want something else. This is a case of two people hiring a sperm donor and the three of them making a life cavalierly and then expecting the state to take care of the consequences when they don't keep their commitments to each other. This is a case of the state stepping in to say that it will tolerate the libertarian approach to family life only so far --but when a child's welfare becomes enough endangered, you are going to be held responsible for lives you bring into being. Without having read the ruling -- judging solely by the outcome-- I'm inclined to think it's a sound ruling, actually: you don't get to engender life lightly. I hope it sets a precedent and reverberates across the sperm donor/ surrogate mother industry.

Hours Away From The Religious Liberty Cliff

I'm far less worried about the fiscal cliff than the First Amendment cliff we'll go over tomorrow when the HHS abortion mandate goes into effect. Here's a little update on developments on that front.

If you need a refresher, here's a good summary of Why Catholics Are Still Whining About the HHS Mandate.

I am a Catholic. I belong to a Church that claims to contain within its teachings the revealed truth about how best to love. One of its teachings is that the use of contraception represents a failure of love, in that it treats sex as an act with no purpose, marriage as a covenant separate from the total self-gift of creation, woman as an object to be altered, man as an animal who cannot master his actions (and thus needs the eradication of responsibility), and the child as an unintended consequence. I ask none to believe it. I merely ask one to consider the positively medieval possibility that there are people who do believe the act of contraception is a sin, and thus want no part in it.
It is a failure on the Catholic’s part to willingly practice contraception, knowing it wrong. But far worse than personal sin is for a man to lead others to sin. Jesus Christ is a fountain of mercy, but when he speaks of a man leading little ones astray he says, and I quote, “it would be better for him to be thrown into the sea with a millstone tied around his neck.”

And:

The federal government is demanding that Catholic institutions pay for their employees’ contraception. They thus demand that we lead others astray. There is simply no way to put money in a person’s hands labeled “for the specific purpose of your upcoming tubal ligation” without it being a sin to do so. It doesn’t matter if we are giving the money to insurance companies who then give the money to employees, any more than hiring a hitman would make us innocent of murder.

This is a strike against the free exercise of religion perhaps worse than simply burning down our churches or jailing us, because it's forbidding us to love persons in the only way we know how.

Though, for the record, the first company and family to take a hit over the HHS mandate is not Catholic, but Protestant-owned Hobby Lobby and the Green family.


Craft chain Hobby Lobby has announced it will defy the mandate, having been denied injunctive relief by Justice Sotomayor. A statement from the Becket Fund, which is representing Hobby Lobby, and links to anything you need to know about the case are here. Brave them! I assumed they'd just drop health care, but they are taking the civil disobedience route. (You can send a note of support to the Green family here and the internet hath decreed January 5th to be Shop at Hobby Lobby day to support them --you can shop online if there's no store near you. Closest local stores are in Laurel or Columbia.) It risks fines of $1.3 million per day for refusing to pay for abortifacients as part of its health care coverage. Think about that. A family starts a business and the government is going to fine it out of business for not paying for employee morning after pills.

That's not only a violation of the first amendment, it's a violation of the supposed right to "choice." Moreover, as Paul Rahe points out in his rambling but excellent The Deepest Source of Our Troubles, it means lack of self control (abortion) now trumps all rights in this country.

For a man and a woman who are married to rear offspring is a chore. It may be fulfilling, but it is demanding and hard. It requires sacrifice and discipline. For a single person to do so and to do it well requires a species of heroism. For a single person to do so at all requires help -- and that is where we are. For we now take it for granted that we are to pay for the mistakes that the single mother (and her sexual partner) made. We now, in fact, presume that she is entitled to our help -- and we now have a political party in power built on that premise.We are to pay for her groceries through WIC (Women, Infants, Children), for her medical care through Medicaid, for the contraceptives that she does not have the discipline to use properly and for the morning-after pill should she slip up and need an abortion. Her right to be promiscuous trumps our right to the fruits of our own labor.

Facing similar troubles are Jane & Cyril Korte, contractors in Illinois (Just in! an appeals court ruled for them after all), and Autocam, a Michigan company. These companies have, like Hobby Lobby, been denied injunctive relief while their cases wend through the courts.

On the bright side, in six of eight cases, companies have been granted reprieves, and here's a seventh it looks like.

The most heartening development comes out of a DC Court, which re-instated Evangelical Wheaton College and Catholic Belmont Abbey College's suit against the mandate. Heartening because the Administration ceded ground in court. The administration has been promising an amended rule, but so far this is just talk. There's no proposed change and the intrusive and abusive rule stands as "final." Finally they're not able to get away with that. As Judge Brian Cogan put it:

There is no, “Trust us, changes are coming” clause in the Constitution. 

Here's a good summary of the importance of that case, during which the Administration promised to re-write the rule in a way that protects religious freedom.

The federal appeals court also ordered the Obama Administration to report back every 60 days—starting in mid-February—until the Administration makes good on its promise to issue a new rule that protects their religious freedom. The Obama administration was ordered to rewrite the mandate by March 2013.
“The D.C. Circuit has now made it clear that government promises and press conferences are not enough to protect religious freedom,” said Kyle Duncan, General Counsel of the Becket Fund for Religious Liberty, who argued the case.  “The court is not going to let the government slide by on non-binding promises to fix the problem down the road.”

So that's something, though the proposed re-write in no way solves the problem.

Once More Into the Breech

Having reserved the right to revise and extend my remarks once I'd had more time to read and ponder National Federation of Independent Business v. Sebelius, I do somewhat revise my opinion expressed below.

I now think the Scalia/Alito/Kennedy dissent makes mincemeat of the Chief's fig leaf for Obamacare and his effort to bend over backwards not to overturn the law fails -- and may well create great mischief, as Hadley Arkes here argues.

However, I maintain my view that it's not the apocalypse, for reasons George Weigel elucidates in on The Roberts Opinion, which concludes thus:

My constitutional and legal betters convince me that the chief justice may well have gotten it wrong on the constitutionality of the individual mandate. But he seems to have gotten many of the larger questions right. In doing so, he has made it unmistakably clear that if the American people think that Obamacare — its vast expansion of governmental power, its threat to the integrity of the healing professions, the manifest dangers it poses to religious freedom, liberty, and the right to life — is bad public policy, they have it in their power to do something about it, as mature citizens of a mature democracy.

And behind the power to do so lies the responsibility to do so.

RTWT.

Don't Believe Everything You Read in the Papers

Perhaps it's because I've been away a'prayin' for a week but I don't feel very shaken by SCOTUS' upholding Obamacare. I'm too tired and have too much practical re-entry to take care of to actually read the opinion, but I'm cautiously hopeful that Chief Roberts did something prudent and somewhat good by upholding Obamacare as a tax.

Michael James Barton writes:

Had Obamacare been upheld under the Commerce Clause, then our Constitution would have been a dead letter without limits on congressional power. We still have our Constitution.
The Court reiterates that Congress has the power to regulate commerce, not compel it. This is also good news. The Court’s explicit rejection of using the Commerce Clause and the Necessary and Proper Clause to justify the individual mandate makes any future congressional desire to accomplish similar aims more difficult. In short, pushing a tax through Congress while claiming its not a tax is appears to be a one-time occurrence since this decision sets a precedent for allowing laws to survive as a tax that could not have been passed as a tax.

That has good potential as a precedent, and I find it rather tricksy of him (the Chief) to get the libs on the court to go along with him.

He's right about not being able to predict the actual outcome of a decision:

I will leave the political fallout of all of this to more capable folks, but I want to add one final thought about disappointing Supreme Court decisions. When the Supreme Court ruled in Kelo v. City of New London that eminent domain could be used in just about any situation the government wished, it felt like a devastating blow to liberty. However, since that decision, nearly every state in the union passed laws aimed at curbing eminent-domain abuse, a result I certainly did not anticipate the day the ruling came down. As my former Texas senator Phil Gramm used to say, no single event is as good or as bad as it may first appear.

So...it seems the Constitution is not dead yet, which is something.

Even though I was certainly hoping for an overturn and expected one (so much for "court watchers" and what reporters say, eh?), I think in the long run we might be grateful that Obamacare wasn't simply overturned by the Court, in that it would have been bad for the public to perceive a question so fundamental to be decided by the Court. The most profound corruption of our political system to my mind is our increasing reliance on Our Robed Masters to make all the decisions for us. Politicians routinely evade tough questions by citing court rulings, and legislators don't even bother to write or pass good laws or to think very hard about their implications because we figure the courts will sort it out later (Obamacare is a poster child for this very thing).

That sort of passivity is death to liberty, and it utterly undermines the respect for the law that is required if we want to maintain peace and order. I'm quite sure Chief Roberts doesn't like Obamacare, but as he says in his decision

It is not our job to protect the people from the consequences of their political choices.

Amen to that, and may the lower courts learn from it. Whatever the limits of the specific decision, I'm not sure it's bad if the take-home message is: "Congress, do your damn job and People, be citizens."

Not having read the entire decision or the dissent, I reserve the right to change my mind after doing so and think the world has ended. But for now the Apocalypse seems forestalled. The job of overturning Obamacare was never the Court's, it was and is the citizens'.

Update: VA's next Gov, Ken Cuccinelli, agrees w/ my first impression -- on his second impression.
Update 2: Hmm. This is a more sober view, but seems like where I might end up upon further consideration.Ultimate conclusion is the same.
Update 3:
From a former Roberts clerk:

read it as constitutional politics and things get more interesting.
Not politics in the way the Washington punditry means, of course. Roberts’ opinion has nothing to do with helping or hurting President Obama’s re-election chances this fall. The truth is, Supreme Court justices are rarely interested in that sort of thing. They see themselves as above partisan allegiances and the grand questions of law they decide as more important than run-of-the-mill partisan disputes.
No, I mean politics in the constitutional sense, concerning the Supreme Court’s role in the Constitution’s structure. The danger this case held for the court from the beginning was the possibility — indeed, high likelihood — that it would draw the institution into an acute confrontation with the executive branch in the middle of an election year, and at the same time force the justices into the thick of a policy debate where they have no genuine expertise. The chief justice’s opinion can be fruitfully read as a sort of maneuver, an effort to avoid these evils while simultaneously blocking the federal government’s attempted power grab.

And from Paul Rahe, An Act of Great Cunning:

Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. He compared the decision to Marbury v. Madison, where Chief Justice John Marshall surrendered in the case before the court while firmly and eloquently reasserting the Court’s right and responsibility to engage in judicial review; and Reynolds pointed to one crucial fact: Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes.

Read both those whole things. 

Notre Dame & Other Un-Persons

Now, finally, can we all agree the media abdication of duty and lapdoggery is undeniable? How is it possible that 43 organizations (including the Obama-awarding U. of Notre Dame, with many more expected to follow) file suit simultaneously in 12 jurisdictions and ABC World News and NBC Nightly News literally (and I mean that literally, Mr. Biden) don't mention it? (CBS gave it a thorough-going 19-seconds.)

Folks is hoppin' mad, but don't they get it? Catholics and their institutions already don't exist. The history books have already been updated, and all the double-plus-ungood people were never there.

The chancellor of the Archdiocese of Washington explains the suit here:

 

Update: EJ Dionne explains why the press isn't covering the 43 lawsuits. It's because the REAL story is that many bishops AREN'T suing.
Yes, Dear.

Just as on 9/11 the REAL story was the number of Muslims who weren't attacking us.

Dionne rests his case on the word of one bishop, actually: Stephen Blaire of Stockton. He's the guy who says Paul Ryan's budget is a moral failure. I haven't gotten around to fisking him yet but he's way overdue. An interview he gave in the NC Register recently shows beyond doubt he hasn't even read the dang budget. He thinks the Church should not defend itself because it gives the GOP a talking point. And we all know the Church exists for the purpose of denying talking points to the GOP, and political neutrality means never telling politicians they are wrong. Except Paul Ryan, apparently.

Dionne is angry that the Church hasn't been mollified by the "compromise" on the HHS mandate, in which the government allows an accounting trick so Christians can pretend on paper they aren't funding abortifacient drugs and sterilizations. E.J., Baby: THERE IS NO COMPROMISE. The HHS rule was finalized as written on the same day the Administration floated it as some kind of maybe possibility down the road. It was a trick and a lie from the beginning, and only you and Sr. Carol fell for it.

What Is This Constitution of Which You Speak?

How strong is the case against the HHS mandate? Take five minutes to judge for yourself from this Q&A between Congressman Gowdy and Sec. Sebelius. I know I say these folks are sophomores, but I'm nonetheless perpetually astonished at the level of amateurism. They don't do their homework and they don't seem even to be able to anticipate objections.

Maryland's AG: "Don't Worry, No One's Votes Will Count!"

I spent eight hours at my parish over the weekend helping gather signatures to put marriage on the ballot in Maryland this fall (I am a trained "petition circulator" and trainer thereof). The process is interesting on a number of levels and once I got over my fear and distaste for being the official face of homophobic bigotry in my parish and neighborhood, kind of fun in that you get to meet and talk to a lot of different kinds of people.

A couple of quick observations.

First. I always say (and am not alone in saying) that support for traditional marriage is stronger than polls reflect because of the "spiral of silence" effect. That's sociology talk for people who think their position is unpopular keeping mum and people who think they're winning talking more and more so that neither side has an accurate sense of where people actually are. My parish is pretty much "Maryland" writ small: middle and working class, mixed races, warm family and community ties, deep residual Catholicism, equally deep Democratic Party and union ties. There's a recent influx of young families who are better catechized and more theologically Conservative and a sizable Nigerian immigrant community, but still the bulk of the community is Boomer and Boomer-educated Catholics. I expected more hostility to the petition drive than there was -- and was pleasantly surprised by who and how many folks signed.

The GOP sucks. While witnessing signatures after the Nigerian community Mass in our parish, I had a number of conversations with naturalized citizens who are highly committed to the defense of life and marriage and quite savvy about the likelihood activist judges will inhibit the referendum process. When I made an announcement at each Mass about how the process would work, most people listened politely or looked down so as not to reveal their thoughts. The Nigerians applauded me and asked God to bless their sister -- I guess they're not used to white people being for traditional marriage. Yet they are all registered Democrats (part of the signing process involves looking people up on voter rolls -- that's how I know). No excuse for that except incompetence; there is nothing about these people's culture and attitudes that fits with the Democratic Party.

Speaking of bought judges, I beg you to watch and publicize the final three minutes of our State Attorney General's comments to Equality Maryland last year. Starting at about minute 5, he gives his prediction of how the referendum process will go. Notice that he expects the referendum to get on the ballot and he expects traditional marriage to win "because the machines don't work." (I don't know if I am more offended by his assumption that the only way marriage would triumph is because of the machines not working or by how cavalier he is about the machines not working -- it is not his #1 priority to ensure a clean election?)  He assures his audience that they need not worry about the will of the people, because Gov. O'Malley has appointed judges who will overturn the referendum.

And finally, you might think about sending some $$ in the direction of Maryland Marriage Alliance to fend off this kind of stuff. And if you're a Maryland voter whose church or civic group isn't sponsoring a signature drive for the referendum follow that MMA link to have the petition sent directly to you home. Act by May 19th.

Laws Should Be Short

Mark Steyn, as often, gets it exactly right. I don't care what you think about healthcare or the size of government, this is bad law, period. Speaking w/ Hugh Hewitt about John Conyers saying he wouldn't read Obamacare because it would take six days with lawyers to understand it, and now Justice Scalia saying in oral argument none of the Supremes or their clerks is going to read it either:

when a law is 2,700 pages long, it’s not a law. It’s a hierarchy of privilege. It’s about determining where you come in the particular rankings of privilege that the massive 2,700 pages of regulations are going to bury you under. And that’s why no sane…the minute a law is 2,700 pages, you should vote it down automatically. And by the way, if this Supreme Court had its marbles about it, they would take that view, because all the stuff that got the revolutionaries all riled up, say what you like about the Tea Act, but it was a couple of pages long, and it was about tea, and that’s all. And that’s the way real laws are.

Justice Kennedy said during oral argument that the individual mandate would change the relationship of citizens to the state. But it's not just the individual mandate that does that, it's the sheer size of the bill and the number of times it designates "the Secretary" shall, may, provides for....

The secretary shall determine this, the secretary may determine that, the secretary may, shall and determine anything she wants off the top of her pretty little head. Where do you go to vote out the kommissar of health and human services? The fact of the matter is this is not a law in the sense of a clearly defined law being passed by elected citizen representatives in a legislature. And that is the great problem with the hyper-regulatory state, by the way, that the old line about ignorance of the law being no excuse no longer applies, because you and I, and everybody else that’s walking around, in breach of a bazillion little regulations that some guy cooked up in the back office that we’re not even aware of [my emphasis].

This is a "law" that makes it impossible to know what the law is.

EPA Smackdown Time

The story of what EPA is doing to the Sacketts is outrageous, as you can see here. But they just won the right to sue the EPA at SCOTUS.

We Win One, For Once

A unanimous decision in Hosanna-Tabor Church v. EEOC. This was the case in which the Obama administration argued that it was more qualified than a Lutheran school to determine whether a Church minister was teaching in accordance with Church teaching.

This case matters for many reasons, but especially because it reminds us all that the separation of church and state — when it is properly understood — is an important mechanism for protecting the religious liberty of all — believers and nonbelievers alike. Church-state separation is often misunderstood and seen as an anti-religious program, or as requiring that “religion” stay out of politics or public life. But this is not the point of church-state separation at all. The idea is to constrain government regulation, not religious expression and practice. Separation is an arrangement that protects religious authorities, institutions, and communities from unjustified interference by governments.

On the significance of the unanimous decision:

This last point is worth emphasizing: The administration’s lawyers had pressed an extreme view — one that no other court, and few scholars and experts, had embraced — and they convinced no one.

John Banzhaf's Personal War on Catholic University

Some months ago, Catholic University President John Garvey announced the school would return to a single-sex dorm policy. Parents rejoiced, except for those parents who were surprised there were co-ed dorms on the CUA campus in the first place. Catholics behaving like Catholics again: whoopee!

American University law professor John Banzhaf is challenging the move in court, claiming it's a human rights violation. Because we all know that human rights include life, liberty, property, free speech, free exercise of religion and the super-duper solemnest right to have strangers of the opposite sex in your dorm. (And if your casual hook-up doesn't live in the room right next to yours, how ever could you find him or her?) CUA's alumni magazine has an update on that suit.

Now Banzhaf's opened another front against CUA, this time taking up the cause of Muslim students at the school who say that crosses in the classrooms and other spaces at the University make them uncomfortable. Banzhaf says they're a display of "malice."

Banzhaf said some Muslim students were particularly offended because they had to meditate in the school’s chapels “and at the cathedral that looms over the entire campus – the Basilica of the National Shrine of the Immaculate Conception.”

So the true purpose of this suit is to tear down the cathedral, I take it?

Please to note that CUA has released a statement saying NO Muslim students have complained. That's important, because the national press behaves as if there are a bunch of Muslim agitators involved, which there aren't. This is a manufacture on Banzhaf's part. President Garvey says Banzhaf is using Muslims.

I regret very much that our Muslim students have been used as pawns in a manufactured controversy,” said John Garvey, president of Catholic University

These are not serious charges, and in a simpler time would have been dismissed out of town and Banzhaf, who's made a career out of harassment suits to advance his Progressive agenda, would be laughed out of town and snubbed at dinner parties rather than lionized in press coverage across the country.

But we are in the new America, where free speech and free exercise do not exist, or at least some are more equal than others in that respect. Bullies are permitted to harass with nuisance lawsuits people and institutions who disagree with them, and Banzhaf's personal two-minute hate is treated with the respect he shows no one.

Banzhaf, by the way, is the guy behind the concept of "passive smoking" --or at least its legal recognition, and is anti-soda and other such things. He was once dubbed, "The man who wants to sue America."