CSotD: Objection overlooked
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Ann Telnaes on the unanimous non-decision-decision by the Supreme Court in Zubik vs Burwell, in which religious employers who oppose contraception objected to having to cooperate with the accommodation provided by the Affordable Care Act. Here's the basic Scotusblog summary, and an interesting analysis to which they linked.
She's right that it does seem a bit, well, gutless. But, given the presence of that empty ninth podium, I'm not sure it was the worst possible outcome.
For a guy who can't get pregnant, I feel like I have more than a few dogs in this fight, starting with my own troubled non-relationship with my estranged alma mater, Notre Dame, which got decidedly shot down in the lower courts over this issue.
I'm not a lawyer, but, if I'm reading this correctly, the court ruled in part that, once you've announced a position based on your religious convictions, you are estopped from changing your mind because a bunch of contributing alumni raise hell over it. Though I suppose you could explain that you have a deep religious belief in keeping that money coming.
However, it's not fair to judge the entire thing by the inept theological gymnastics of one supplicant, even if I do get a bit of schadenfreude over the resulting face-plant.
Still, there is a fascinating philosophical kernel in this that takes me back to the Hesburgh days, before Notre Dame swung to the far right.
Hesburgh began his tenure as president of the university by refusing to pose in clerical garb hiking a football, and, considerably later, resigned from the Civil Rights Commission when it was time to do that, while, as leader of the university, he concelebrated mass at antiwar demonstrations and put Bayard Rustin on the board of trustees.
It was a long time ago.
What I find compelling in the objections of the religious groups is something that has been on my mind lately.
When Daniel Berrigan died last month, it brought to mind a group of pacifist Christians at Notre Dame who worked with him, and, specifically, a soft-spoken friend among them who did time for draft resistance. They weren't screamers, they didn't raise hell, they weren't there to be seen.
The only time I recall them stepping forward in a public way was when they announced that, in order to demonstrate the effects of napalm, they would incinerate a lamb with the stuff on the steps of the Administration Building.
There followed a great revulsion against this act of animal cruelty and many threats to intervene and save the poor animal, but, when they appeared on the day announced before the furious crowd, they simply unfurled a poster of dead Vietnamese and said, "These are the lambs."
I'm not sure it got through to everyone, but, then, I'm not sure what does. And I suspect it planted some timebombs in the consciences of those who saw it, which can be more effective than moments of knock-down conversion.
We admired them. They weren't showboats.
The connection to Zubik v Burwell is this: The religious groups in that, and in its allied cases, make the claim that, by filling out the forms declaring their objections to providing contraception, they are consenting to having it provided, making them complicit in the act.
Similarly, the most compelling draft resistors I knew declined to apply for concientious objector status, because it simply shifted the burden. It's the moral equivalent of "I won't shoot the puppy; have someone else shoot the puppy."
The difference to the puppy is immaterial.
Applying for conscientious objector status acknowledged the validity of the system. Either it is immoral or it is not. Either you are part of it, or you are not.
I can respect this position, and I do respect it with regard to providing contraception, even though I don't respect the objection itself.
But they are still, by taking their cause to the courts, asking for special treatment, which does acknowledge the law. They don't want to fill out the form, they don't want to pay the fine for refusing to fill out the form.
They are thereby operating under the legal principle of pullum stercore.
My pacifist friends didn't appeal their convictions. They served their time.
And I'm quite confident they worked to support political candidates who, if elected, would change the laws in accordance with their beliefs, but perhaps this isn't the time to get into Trump and Clinton and Sanders and all the current "Take Your Eyes Off The Prize" business.
Meanwhile, women get contraception coverage under the ACA and religious groups who object are going to have to find a way to deal with it.
Today’s opinion does only what it says it does: “afford[s] an opportunity” for the parties and Courts of Appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the Government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice. — Sotomayor, concurring opinion (joined by Ginsburg)
The court's decision to not decide is being called a punt, and it is, but I think they are right to let it simmer for a time. And it is not a victory for the anti-contraceptive people, because six of the seven cases involved went against them and, unless the liberals decide, in a fit of pique, to abandon the Supreme Court to Trump and his crew, there's no reason to expect a different outcome in the future.
And, if they do, we're all screwed anyway. Without protection from the likely results.
Oh, you knew this was coming:
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