The Highest Rated Show Of 2014

Twenty-five years after the first Bud Bowl genuine innovation rather than tiresome iteration has come at last to “Super Bowl Sunday.” Those who say otherwise don’t know, but those who do know say that it was nothing personal, just a ratings and numbers issue. Great as Richard Sherman or Peyton Manning may be, no way would they have gotten much more than 100 million viewers at any given moment. But I guarantee NSA Drone Bowl I will have an “audience” in excess of seven billion.


Pope Sans Parrot On Cover Of The Rolling Stone

The Pope’s new bird, Amore, called him Papa today.  If the Pope had announced in this week’s Rolling Stone that he was in love with Amore, a green parrot, who would I be to judge him or his new partner?  I would miss the peace doves, but as animal rights people said, releasing doves in St. Peter’s Square is probably not a safety first idea–domesticated doves can’t survive the vicious infighting of Vatican City or of greater Rome.  So green parrot love is OK with me.

P.S. 1/31/14 According to the parrot belongs to a porn star named Lombardi.

Angry Birds Controlled By NSA Drones Brutalize Peace Doves In Horrific Vatican City Attack

You don’t think the NSA had the capacity to intercept and eat Pope Francis’s peace doves?  Maybe not, but they may have taken their surveillance mania so far gamers will get themselves organized in a non-virtual way.  The NSA is scooping up all kinds of personal information from “leaky apps” such as Angry Birds.  I personally could care less, since any and all of my avatars have impeccable manners, excellent diction, and total unconditional loyalty to the legitimate overlords.  Moreover, the Fourth Amendment guarantees the security of my home, papers, and person, but not my second and third lives.

In related news, “more than 50 cryptography experts” published an open letter (at imploring the U.S. government to stop engaging in “deliberate and covert weakening of Internet security standards.”  President Obama has said repeatedly that there is potential for abuse but that there have not yet been significant encroachments on Americans’ privacy.  The open letter points out that, contrary to Obama’s protestations, “indiscriminate collection, storage, and processing” of personal information “chill[s] free speech and invite[s] many types of abuse, ranging form mission creep to identity theft.  these are not hypothetical problems….Inserting backdoors, sabotaging standards, and tapping commercial data-center links provide bad actors, foreign and domestic, opportunities to exploit the resulting vulnerabilities….The value of society-wide surveillance in preventing terrorism is unclear, but the threat that such surveillance poses to privacy, democracy, and the US technology sector is readily apparent….The choice is not whether to allow the NSA to spy.  The choice is between a communications infrastructure that is vulnerable to attack at its core and one that, by default, is intrinsically secure for its users.”  The cryptographers are not, I think, begging President Obama for favors so much as letting him know the implications of policies that, thoughtful as he appears to be, he may not have considered enough.

If The Pope Really Said The Internet Is A “Gift From God,” How Come He Still Hasn’t Followed Justin Bieber’s Twitter Feed

In his message for the Catholic Church’s World Communications Day (the 48th iteration of an observance created by the Second Vatican Council in the 1960s), Pope Francis elaborated on the theme of “Communication at the Service of an Authentic Culture of Encounter.”  The Pope began by observing that despite our ever-“smaller” world, in which “it would seem to be easier for all of us to be neighbours,” we still see “a scandalous gap between the opulence of the wealthy and the utter destitution of the poor” [he was invited to send his message to “Davos man” this year, but perhaps not next].  Francis then put in a hopeful word for social media and internet communication: “media can help us to feel closer to one another, creating a sense of the unity of the human family which can in turn inspire solidarity and serious efforts to ensure a more dignified life for all….A culture of encounter demands that we be ready not only to give, but also to receive….The internet, in particular, offers immense possibilities for encounter and solidarity.  This is something truly good, a gift from God.”

If and when the internet serves as a means toward that end, it is indeed a blessing.  I think the blunt headline that “the internet is a gift from God” might have made some think the pope is a naive nitwit, but Francis is well aware that “communication is ultimately a human rather than [simply] technological achievement.”  If it is true that the pope has over 11 million Twitter followers but himself follows no one, he may well, however,  be missing out on authentic encounters, perhaps not with Justin Bieber but with many older, wiser heads who have lately taken to tweeting.  I would add that another recent papal address, given today to the Centro Italiano Femminile, founded in 1944 “to promote the involvement of women in Italy’s post-World War II reconstruction” (hat tip to John Allen of National Catholic Reporter–though soon heading to the Boston Globe), makes me wonder about the limits of what Francis is ready to “receive” in the way of encounter and solidarity with women.  The Pope took note of recent “notable mutations” in the “identity and role of the woman, in the family, in society and in the church.”  In general, he said “the participation and responsibility of women has grown.”  Francis asserted with no apparent sense of irony that “in this process, the discernment of the Magisterium of the popes has been, and is, important.”   No comment on that at this time from Simone de Beauvoir, the editors of Ms. magazine, Edith Windsor, Angela Merkel, or any female Episcopal bishops–perhaps because they are women, and women, the pope said, are responsible for “the irradiation of a clime of serenity and harmony.”  On a good day, he could be right.

Reasonable And Unreasonable Warrants

The Privacy and Civil Liberties Oversight Board ( released a 200+ page report today “on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court.”  Before I venture an opinion on what the report says or doesn’t say, I need to take some time to actually read it, so as to understand the chain of reasons, that is the warrants, the Board used.

I can say, though, that Congressman Mike Rogers, head of the House Intelligence Committee, whom I disparaged in a blog post yesterday, criticized the majority report (the 2 Republican members issued separate analyses) for overstepping themselves by weighing in with “unwarranted legal analysis.”  A curious charge, given the Board’s explicit statutory mandate to consider relevant laws, not to mention that one of the PCLOB’s five members is Patricia Wald, a retired federal appeals court judge.  Mike Rogers may have law enforcement experience, but if he knows the difference between a particular warrant and a general warrant, or the reasons the American colonists hated writs of assistance, I would be so shocked I would take off my hat and bow to him, even on a zero-degree day in January.  What Rogers and Feinstein (and Obama, though with more panache, of course) seem to be presuming is that we cannot afford no stinking Fourth Amendment anymore, because requiring any reasons or preconditions for surveillance is such an inconvenient bore.

I would just note for the moment that the PCLOB issued the report this week on their schedule, and President Obama last Friday gave what the White House billed as a “pretty definitive statement” on the NSA programs on his own timetable.  The Board should thus not be criticized for stepping on President Obama’s message.  And Edward Snowden is free, for now, to do video links with EU commissions or online live chats with the freesnowden website (as he did today).  He is pretty clearly speaking for himself, not for Putin or the Russian spy services, as some reckless and frankly goofy pro-NSA propagandists have claimed.  He is certainly a fascinating interpreter and witness, though not now (or ever) an interpreter with any special privilege or prerogative.  I am inclined to agree with Virginia Eubanks’ point in her recent piece in The American Prospect, “Want to Predict the Future of Surveillance? Ask Poor Communities,” where she asserts that Snowden’s Christmas message “trotted out the hoary old cliches about George Orwell, Big Brother, and the end of privacy.  But for most people, privacy is a pipedream.”  For Eubanks, there are four “lessons” about surveillance we can learn from the experiences of marginalized groups as governments’ “test subjects”: surveillance is a civil rights issue; to a hammer everything looks like a nail; everyone resists surveillance, not just the bad guys; and privacy is not the problem (in brief, more important is connecting the world of digital communications with the worlds of active citizenship, democratic governance, free expression, and civic participation).


Is The Deep State Using The Dimwitted Twin Brother Of Sam Gamgee To Discredit Edward Snowden?

I do not actually have any specific evidence that House Intelligence Committee Chairman Mike Rogers (R-MIch.) is being manipulated by minions of the deep state to impugn Edward Snowden’s integrity by claiming that he may be taking orders from the Russian spy services.  I just feel like Congressman Rogers couldn’t possibly have shown up in the green room of that Sunday talk show the other day with a “go bag” on his own initiative, because he seems so much less intelligent than his twin brother, Sam Gamgee, companion of ringbearer Frodo Baggins.  (Oops, I think I just leaked a state secret.)

Meanwhile, I wonder why a reputable news source such as Reuters would diminish its credibility by putting out this headline about Rogers’s insinuation: “U.S. lawmaker investigates whether Russia behind Snowden’s leaks.” The story itself gives no indication that Rogers has investigated diddly squat, merely repeating speculations Rogers made on Meet the Press, with Senator Dianne Feinstein as echoing chorus.  As Snowden himself put it in an interview with The New Yorker’s Jane Mayer posted yesterday, why then did he go to Hong Kong first?  And, he said, “spies get treated better than” getting “stuck in the airport forever.”  Snowden remarked that “it’s not the smears that mystify me, it’s that outlets report statements that the speakers themselves admit are sheer speculation.”  According to Mayer, he “went on to poke fun at the range of allegations that have been made against him in the media without intelligence officials providing some kind of factual basis: ‘We don’t know if he had help from aliens.'”

P.S. President Obama’s speech on the NSA surveillance programs last week was, as usual, nuanced and serious-sounding (and he largely got the headlines I guess he wanted, e.g. “Obama Proposes NSA Reforms”).  And David Remnick’s New Yorker profile of Obama reveals, again, our president’s analytical capacities and scrupulous evenhandedness, for example, in the passage where he cautions progressives not to assume that all criticism of him (or of President Clinton) is the product of nullification fever, but also cautions conservatives against the convenient fantasy that he is out to crush states’ rights.

P.P.S. Blogger Marcy Wheeler at Empty Wheel has posted an annotated version of President Obama’s NSA speech, and follow-up posts detailing blind spots and self-serving assumptions in Obama’s remarks.  I do not know whether Obama or any surveillance state spokesperson will try to answer her (and how they have any answer for Jon Stewart’s spot-on ridicule is beyond me), but her critique goes into nitty gritty far beyond obvious criticisms such as Obama’s punt to Congress.  Conor Friedersdorf’s analysis in The Atlantic was also pungent: “Obama Accepts the Logic of Staying Terrorized.”  (I apologize but I do not seem to be able to give direct links.)

“Corporate Me” Generation Makes Idol Of Itself

It seems so long ago that Mitt Romney was ridiculed for claiming that “corporations are people, my friend.”  Now not only are corporations people, they are claiming to possess the perseverance of the saints.  The Hobby Lobby and Conestoga Wood cases, in which for-profit corporations are asserting First Amendment free exercise of religion protection, seem beyond absurd to me, but here we are with the Supreme Court taking them seriously enough to schedule oral arguments for Tuesday, March 25.

According to the Conestoga Wood company’s legal brief, the “question presented” is whether “the religious owners of a family business, or their closely-held business corporation, have free exercise rights that are violated” by the contraceptive mandate of the Affordable Care Act.  Well, if you put it that way, who would be so rude to the good country people of Conestoga Wood as to lay a burden on their religious beliefs?  But I would say that is a misleading view of the question presented.  As God-fearing people, to take them at their word, the individuals who own Conestoga Wood, or Hobby Lobby, can suffer, can do good and/or evil, and in general have free will as well as unlimited liability.  There is, we could stipulate, no limit on the good or bad karma they can accumulate.  But when a state charters a corporation, its liability is limited.  That is usually much if not most of the point of the act of incorporation.  Frankly, I could give a damn, as far as these lawsuits go, about the personal good or bad karma of Dick and Jane Conestoga, or Buffy and Muffy Hobby Lobby.   The lawsuits asserting that free exercise of religion pertains to limited liability companies are frivolous.

Does Robert Gates Speak For The Deep State?

In the old days, the deep state remained silent.  The deep state did not stoop to “me generation” blabbering.  But a former head of the NSA, Michael Hayden, was recently caught chit-chatting on his cell phone on an Amtrak train with a friendly reporter about NSA policies. And now Robert Gates has written another memoir (From the Shadows was published in 1996; this week we have Duty).  Gates, who has worked for the national security apparatus since the Nixon administration, has every right to feel the way he apparently does about Joe Biden or Rahm Emanuel.  But would discretion not have been the more valorous route?  Gates protested the other day that he was not trash-talking President Obama himself–sorry, but that is what you did.  Would Yoda (if that’s what they called you around the cabinet table) have stooped to rat out other people?  If you were really shocked, shocked, at the politicized motives of Obama operatives, and offended that they made you feel invisible while they, you felt, naively criticized what they saw as the foolishness of the W. Bush years–begging your pardon, but what the heck were you really expecting when you signed up for another tour, this time with Barack Obama?  C’mon, Gates, get a grip on yourself.  If you really speak for the deep state, the deep state has become pretty petulant, and that worries me almost as much as some of the NSA revelations.

Silliest Argument For “Gender Diversity” Ever

The state of Utah, trying one legal argument after another in its “emergency” effort to halt gay marriages, has outdone itself.  The state of Utah claims with what one can only hope is not a straight face that gay marriages must be stopped so as to promote gender diversity!  Talk about putting lipstick on a pig.  “The State does not contend that the individual parents in same-sex couples are somehow ‘inferior’ as parents to the individual parents who are involved in married, mother-father parenting.  The point, rather, is that the combination of male and female parents is likely to draw from the strengths of both genders in ways that cannot occur with any combination of two men or two women, and that this gendered, mother-father parenting model provides important benefits to children.  That this would be so is hardly surprising.  Society has long recognized that diversity in education brings a host of benefits to students.  If that is true in education, why not in parenting?  At a minimum, the State and its people could rationally conclude that gender diversity–i.e., complementarity–in parenting is likely to be beneficial to children.”

At a minimum, I must admit that diversity of “states,” i.e. sovereignty-jurisdiction diversity, such as between [state name redacted] and [state name redacted], is beneficial to such an extent that the seeds of karma have ceased to grow in [state name most definitely Utah].

P.S. Meanwhile, a federal judge has ruled Oklahoma’s ban on gay marriage unconstitutional (but stayed the ruling pending Supreme Court review).

Can Any Good Thing Come Out Of Perugia? We Have A Pope To Judge!

Pope Francis announced the other day the names of 19 men he has appointed to become cardinals.  The news coverage properly focused on Francis’s focus on the global south, where most Catholics live.  And in a sentimental mode, he also made a cardinal of 98-year-old Monsignor Loris Capovilla, who served as Pope John XXIII’s personal secretary over 50 years ago!  Also he elevated the archbishop of Perugia, Gualtiero Bassetti.  Perugia has not been the home base of a cardinal since the days of the papal states.  Quite a shot across the bow of careerists who presumed that Venice and Turin, for example, were sure pathways to wearing the red hat.  In this inside game, Francis is most definitely saying “Who am I to judge? I am pope to judge!”

PNAFU Of The Day

That would be President Normal AFU, not our vulgar and banal American SNAFUs.  M. Le President Francois Hollande apparently caused his official mistress Valerie Trierweiler such malheureuse-ness that she went to the hospital for nervous exhaustion after the public revelation that her consort the president of France was consorting with a more youthful actress.  This seems to me to break new ground–if the official mistress has a right to be shocked, shocked, how can we Puritanical Americans not be allowed to exercise our bourgeois right to be scandalized?  But wait, now we learn that the apartment for the assignations is connected with “Corsican mafia,” according to the Guardian.  If only we had a politician so daring that he, or she, could…oh, right, there is that fellow on the cover of this week’s New Yorker–why is he bouncing that ball?  Does he not notice all the cars backed up on that big bridge?

The Secret Dwarf Passageway To The George Washington Bridge

Don’t tell anybody, especially the trolls lurking on the lower level in the middle of the span, but there is a secret dwarf passageway from the southerly marshlands onto the GW.  Just take the eastern spur but instead of 80 bear right onto 46.  Stop into a gas station to collect yourself and gather cheap fuel for the next stage of the journey.  Head straight uphill and exit at the “last exit before bridge.”  The evil rulers of New Jersey are trying to fool you.  This is actually the best way to get onto the bridge.  Go straight through a light or two and then dip back down to the left just before you drive past the toll booths underneath you.  Don’t forget to cut the gas engine and go all-electric so as not to wake the toll monsters.  And remember to keep breathing.  Welcome to the high ground of Manhattan!

Live From Drumthwacket: The First Annual Chris Christie Institute Of Executive Prerogative Lecture, Featuring Governor Chris Christie

The new mayor of New York City, Bill de Blasio, has asserted that New Jersey Governor Chris Christie’s 107- or 108-minute news conference yesterday “obviously raises bigger questions.”  Ordinarily I would ignore such a comment as typically provincial New Yorkish chauvinistic snobbery, as in “we New Yorkers are ipso facto more cosmopolitan than you toxic waste-addled Jerseyites.”  Yet de Blasio is onto something, much more than he probably recognizes.

Breaking news update out of Drumthwacket, the official governor’s mansion in Princeton:  Governor Christie, in apparent retaliation for the NYT opinion column yesterday, “Look to Locke,” by Melissa Lane, Princeton University politics professor and director of the Program in Values and Public Life (would this not, in a town six miles or so from Trenton, be a null set?) there, has seized the Princeton academic building that had housed the political science department by eminent domain, renamed it the Chris Christie Institute of Executive Prerogative, and threatened to feed any quibbling professors to a pack of malnourished dogs.  The topic of tonight’s inaugural lecture, to be given by Governor Chris Christie, will be “Crossing the Ford: Karma, Rebirth, and Liminality, With Constant Reference to the Great River Pilgrimage Sites of New Jersey.”  Governor Christie will compare and contrast the Great Falls of the Passaic, the Delaware and Raritan Canal, the Kill van Kull, and of course the mighty Hudson, in an effort to deconstruct conventional understandings of the places called tirthas, or in the English tongue “fords” or “crossings.”  As Harvard religion professor Diana Eck might have written (if her recent India: A Sacred Geography had instead been about New Jersey) “on the banks and at the confluence of its great rivers…the tirtha is a place of spiritual crossing, where the gods are close and the benefits of worship generous.  At a spiritual crossing place, one’s prayers are amplified, one’s rites are more efficacious, one’s vows more readily fulfilled.”  The schedule of upcoming events at the new Institute includes a lecture by Governor Christie on John Locke’s seventeenth-century theory of prerogative, and an invitation-only seminar on the late Michel Foucault’s text on public life in Greco-Roman antiquity, The Government of Self and Others.

All this raises the even larger issue: do we have a duty to forgive Governor Christie, now or in the future?  If he immersed himself completely in the Delaware River at Washington’s Crossing, would he not emerge as a purified and even more terrifying version of himself?  Would it be too late to forgive him then, or would the kali yuga be already upon us at that point?

Which raises the altogether bigger question: can Governor Christie in fact govern himself?  If not, who could possibly step in to govern the governor?  If he was “blindsided,” as he quite implausibly claimed yesterday, who could lead and guide him now? Pope Francis? Or an even higher power?  Jon Stewart is an eminent interpreter of all things New Jersey, but I fear that even he is not yet spiritually prepared for this task.  Bruce, please, save us now!  And be careful if you meet the Governor on the lower level.

Finding A Trout In The Milk While The Elephant Takes Over The Room

On November 11, 1850, Henry David Thoreau wrote in his journal, “some circumstantial evidence is very strong, as when you find a trout in the milk.”  On January 7, 2014, Dan Goodin reported at the Ars Technica website that “NSA employee will continue to co-chair influential crypto standards group. Standards boss rejects claims that the appointment opens standards up to NSA sabotage.”  The Crypto Forum Research Group “provides cryptographic guidance to…working groups that develop standards for a variety of crucial technologies that run and help secure the Internet,” according to a December 20 post by Goodin.  It is easy to imagine why tech companies were not amused by this news, given that their sales pitches for security and privacy products are being pretty well messed up by all the revelations about back doors and weakening of encryption systems.  This latest story seemed to me to be too over the top for the NSA co-chair to keep his position, but apparently not.

Exercise Freely All You Like, But Bearing False Witness Does Not Count As Free Exercise Of Religion

Re-reading my January 2 post on “Free Exercise,” I wondered if I should adjust my spectacles more toward the fine details or the bigger picture.

First, into the weeds: on Friday, January 3, Solicitor General Donald Verrilli presented the U.S. government’s response to Justice Sotomayor’s temporary injunction against enforcement of the contraceptive mandate portion of the Affordable Care Act in the case brought by Little Sisters of the Poor in Denver (by their legal team at the Becket Fund for Religious Liberty).  When you get down to details, as Verrilli pointed out, accepting the nuns’ objection to filling out form EBSA 700 leads to absurd results (hat tip once again to Marty Lederman of Balkinization.)  Signing the form in their particular case would ensure that their female employees do not receive contraceptive coverage, in part because their health insurer, Christian Brothers Employee Benefit Trust, prefers not to provide it and is not subject to any government regulation under provisions of the ERISA law of 1974 exempting churches.  Obamacare regulations also give the Little Sisters a simple way out of any possible taint, again because the Christian Brothers entity is considered a church group, not merely a religious nonprofit.  (I can see an objection to the clericalist bias of the federal regulations, but that is a separate issue.)  So the Little Sisters and their lawyers are refusing to take yes for an answer.  Moreover, as Verrilli notes, they “draw flawed analogies when they say that under the court of appeals’ reasoning [which went against the Little Sisters’ position] ‘Quaker conscientious objectors would suffer no penalties if they would just join the military; Jewish prisoners would suffer no burden if they would just eat the pork…’  To mirror the situation here, the question in all of these cases would be whether the religious objector could be required to sign a certification form in order to secure the religion-based exemption he sought…. [the Little Sisters/Becket Fund position] would seemingly mean that the…Jewish prisoner could not be required to fill out a form saying he had a religious objection to the consumption of pork before he was provided an alternative meal… When extending religious accommodations, the government must be allowed to provide for regularized, orderly means of permitting eligible individuals or entities to declare that they intend to take advantage of them.”

Amen.  Anybody who has a problem with that is just itching for a lost cause to fight.  The Notre Dame case and other similar cases are different in detail, but not in kind, in my opinion, as I discussed the other day.  And when Kyle Duncan of the Becket Fund argued on EWTN’s “The World Over” TV show the other day that the Little Sisters were being coerced to sign a “permission slip” for their insurer or administrator to provide birth control coverage, Michael Sean Winters of National Catholic Reporter rightly called him out for bearing false witness against the truth.

And what about the bigger picture?  I still do not wish to seem rude to the Little Sisters of the Poor or Notre Dame, but a distinction should be made between the official position of the Roman Catholic Church and the lives of an overwhelming majority of American Catholic women–98% or so of whom have used contraceptives, obviously not continuously, but at some point.  That number tracks comparably with the general population of American women.  Morality and righteousness may not always lie in numbers, but it is relevant that many if not most American Catholics, including theologians and even clerics, are dubious about the rationale of the papal encyclical from the 1960s against contraception.  Government policy on abortion is obviously strongly contested, but the Supreme Court’s Griswold decision legitimizing birth control is pretty unlikely to be overturned.  Public health policy is, or ought to be, nonsectarian and detached from particular creeds and confessions.  The health law is a neutral law of general applicability, which was the test the Supreme Court used in a 1990 free exercise case involving peyote rituals, the upshot of which was that states may but do not have to accommodate claims of religiously-based exemption from such neutral laws.  Nobody is force-feeding birth control pills to anybody, least of all the Little Sisters of the Poor. The cases against the contraceptive mandate, as revised by the Obama administration, are essentially aimed, seems to me, at reasserting control over (especially poorer) women’s access to birth control, with the usually unstated aim (depending on the audience) of restricting female autonomy more generally.  Does the free exercise of religious belief really depend on that?  Any lawyer, or woman religious for that matter, who has thought it through and still says “yes” should have their knuckles rapped.

Free Exercise In This New Year

Justice Sonia Sotomayor did double duty on New Year’s Eve 2013, ringing in the New Year in Times Square while joining a kick dance on TV, and also, acting as Circuit Justice for the Tenth Circuit (yes, each Supreme Court Justice is a “circuit rider” too, without having to travel outside their chambers in D.C.), “temporarily blocked the enforcement of the Affordable Care Act’s birth control mandate against some Catholic groups challenging the mandate, including the Little Sisters of the Poor in Denver” (SCOTUSblog).  Notre Dame tried and failed to get a similar injunction against the mandate from a federal appeals panel, and has not appealed to their “circuit justice,” Elena Kagan.  Justice Sotomayor surprised some people, but the issue was headed to the full Supreme Court anyway, I expect, so she is simply not impeding that, rather than judging the merits.

It would be very rude of me to say anything bad about the Little Sisters of the Poor.  I have no strong feeling either pro-  or anti-  Notre Dame (and I have no skin in any football game they play).  Still I would be most unhappy if they won their cases.  How come?  Simply because I do not believe that any of the mandates or regulations (after they were amended) of the Affordable Care Act impose much of a burden on the Little Sisters, Notre Dame, or any Quaker, Muslim, Conservative Jew, Buddhist, or Greek Orthodox person or entity.

Marty Lederman (at the Balkinization blog) explains why the law does not burden religious nonprofit groups.  First, churches and auxiliary groups are “exempt altogether from the requirement that they include contraceptive coverage if they offer a health-insurance plan to their employees.  The women who work for such churches thus…will not be afforded this new national benefit….Under…the ‘secondary accommodation,’ other religious nonprofits who object to contraceptive coverage also can exclude it from their employee (and student) health-insurance plans.  These…organizations need only certify that they have religious objections to providing coverage for contraceptive services, in which case they will not be required ‘to contract, arrange, pay, or refer for contraceptive coverage.'”  But for most of these nonprofits the insurance company or third-party administrator for self-insured group plans assumes responsibility for providing contraceptive coverage and is prohibited from imposing any extra fees or penalties for that coverage.

Lederman notes that the secondary accommodation’s whole purpose is to relieve religious nonprofit groups of any obligation to “contract, arrange, pay, or refer.”  Notre Dame, moreover, is not forced to “choose between violating its religious obligations and ‘paying enormous penalties,” since they have the “perfectly lawful option of not offering a health insurance plan at all.”  If that seems harsh or unreasonable, Lederman asks us to back up and recall that the health care law lets Notre Dame or the Little Sisters file a certification to insurers that “it is eligible for and exercising the available religious accommodation because it objects to providing contraceptive coverage.  By certifying, Notre Dame would not ‘authorize’ anything: Federal law does that work.  As the district court explained, ‘if Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception’….If that is enough to establish a substantial burden on Notre Dame’s religious exercise, then…’opt outs’ for dissenters [to public laws] would themselves often create the very conflict with religion that they are designed to alleviate–and would thus threaten to prevent the state from both accommodating religion and satisfying its state interests through an alternative means, such as the use of a non-objecting party.”

To put Lederman’s point another way, if Notre Dame or the Little Sisters want to preserve such a degree of purity that they not only decline to provide birth control to employees themselves, which is generally agreed to be part of their right of conscience, but also seek to gum up the works of a law passed by democratically elected representatives of the people who chose to supply birth control as part of the overall project of improving national health and well-being, how can they complain that they might have to pay some sort of penalty? Lederman asks us to consider an analogous situation: there is a federal law permitting a district court judge to recuse him- or herself from a case where he or she likely has a bias or prejudice.  “In a 1998 article, former Notre Dame professor (now President of Catholic University) John Garvey argued that a judge who adheres to Catholic doctrine [against] the death penalty would have to invoke this law to recuse himself (meaning “sit out”) from the sentencing hearing in a capital case.  In such a case, the federal law provides that ‘any other judge’ can step in and conduct the hearing.”  But according to Notre Dame’s theory in this 2013-14 case, the Catholic judge “would be able to object to the sentencing hearing altogether–not only to his own participation in it–on the theory that his recusal would ‘trigger’ or ‘authorize’ the replacement judge to act immorally.”

The Little Sisters, and Notre Dame, and Sikhs, adherents of no religious faith, Methodists, etc. all have a right to express their “voice” in the public square.  They can also exercise the options (as Albert Hirschman put it) of exit, or loyalty, or some mixture thereof.  But the objections to the Affordable Care Act in these cases seem both strained and mixed-up.

Will “Iterative” (In A Good Way) Become The Watchword In 2014?

Prominent persons of the year just past may have seemed revolutionary, but Edward Snowden and Pope Francis, as well as the late Nelson Mandela, and Edith Windsor, and even Miley Cyrus, might well be seen as iterators, in a good way.  Snowden claimed in an interview with Barton Gellman published a week ago in the Washington Post that “even if your analysis (meaning his analysis of “to leak or not to leak”) proves to be wrong, the marketplace of ideas will bear that out.  If you look at it from an engineering perspective, an iterative perspective, it’s clear that you have to try something rather than do nothing.”  For his part, Pope Francis has emphasized that he is a son of the Roman Catholic Church, and is not proposing radical changes to doctrine, rather a new tone (or better, an approach so old it seems new) that invites–and his worldwide questionnaire on family issues seems to promise an iterative reform of current practices.  Nelson Mandela, the last of the great 20th-century liberators, as President Obama noted, was an iterative radical par excellence.  And we all have Edith Windsor’s persistence to thank–welcome aboard Utahans!  Finally, Miley Cyrus’s performance was just a refinement (or perhaps a devolution, i.e. iterative in a bad way) of a twenty-year-old New Orleans thing, so I hear.

Happy iterating in the new year! And merry recursion too, why not?