Shenanigans from the DOJ

Everyone right now should know that the Supreme Court recently heard oral arguments on the constitutionality of Section 3 in the Defense of Marriage Act (DOMA).

What most people probably know is that the Department of Justice (DOJ) has refused to defend the law in court, and that the Bipartisan Legal Advisory Group (BLAG), from the House of Representatives, has stepped in to defend the law.

What fewer people probably know is that after the District Court ruled that the law was unconstitutional, and that the executive government had to pay the tax refund (some $363,000) to the plaintiff, the DOJ decided to file as an aggrieved party to the Supreme Court.  In other words, the DOJ will not obey the stay order, and is filing as an appellant... for a decision they agree with.  As the lawyer for BLAG put so nicely:

"You will see the most anomalous motion to dismiss in the history of litigation: A motion to dismiss, filed by the United States, asking the court not to dismiss."

What everybody is dying to know: why the hell did the DOJ file at all?

There were several statements made in the oral arguments (transcript here) that try to shed light onto the DOJ's line of reasoning.  The first was part of an explanation proffered by Justice Alito:

"JUSTICE ALITO: Well, the Solicitor General's standing argument is very abstract. But here is one possible way of understanding it, perhaps the Solicitor General will disavow it, but it would go like this: The President's position in this case is that he is going to continue to enforce DOMA, engage in conduct that he believes is unconstitutional, until this Court tells him to stop. 

The judgment of the Second Circuit told the Executive Branch to comply with the Equal Protection Clause immediately. The President disagrees with the temporal aspect of that, so the Executive is aggrieved in the sense that the Executive is ordered to do something prior to the point when the Executive believes it should do that thing. 

Now, wouldn't that be sufficient to make -­ to create injury in the Executive and render the Executive an aggrieved party?"

The first thing we might notice from this statement is a confirmation that the DOJ will continue to enforce Section 3 of DOMA. Again, they agree with the decision to make them stop. So, why in the world has the executive branch decided to continue to enforce? Apparently it's because of 'respect' for the lawmakers that passed it:

MR. SRINIVASAN: Well, there are — there are a number of considerations that could factor into it, Justice Ginsburg. You're right that either of those scenarios is possible. The reason that the Government appealed in this case is because the President made the determination that this statute would continue to be enforced, and that was out of respect for the Congress that enacted the law and the President who signed it, and out of respect for the role of the judiciary in saying what the law is.

WHAT?!?  But no, this is true, we see the same thing from the summary of the DOJ's appeal from the Second Circuit Court of Appeals:

While the government concurs substantively with the district court’s conclusion that Section 3 is unconstitutional, the President has directed federal agencies to continue to enforce DOMA “unless and until . . . the judicial branch renders a definitive verdict against the law’s constitutionality.” Holder Letter at 5. As the Attorney General has explained, “this course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” Ibid.

This seems a bit too stupid.  A bit too ridiculous of a reason why they will continue to enforce when they actually agree they should not be enforcing.  And apparently the DOJ thinks that it has the right to file based on an aggrieved status predicated by this order to follow the constitution when it "wishes" to do otherwise (enforce the law).

There is one possible ulterior motive.  The District Court ruled the law unconstitutional, but there are two ways to do that: "facially," an "as–applied."  The difference between the two is that if a law is unconstitutional facially, it is unconstitutional all of the time and thus struck down.  If it is unconstitutional as applied, then the decision only fixes the situation for the immediate plaintiff.

The District Court ruled the law unconstitutional as applied to the plaintiff, as stated in the decision.  This means that there was no federal imperative for enforcement of the law to cease.  BLAG would have, and of course did, appealed the decision to a higher court.

The implications of the scope of the lower court's decision really help to shed light on a particularly ominous possibility: BLAG's standing in the case was in question.  At higher court levels, their standing is less clear, and indeed even in the Supreme Court, there were arguments over their own standing to defend the law.  If BLAG had failed to demonstrate standing in either the Second Circuit or in the Supreme Court, this case would end without a ruling of facial unconstitutionality.

This is why the federal government is stepping in with this completely bullshit argument about wanting to enforce the law, out of respect of the passing Congress and signing President, until Congress passed a law to override DOMA or a court ruled it unconstitutional in all cases.  They may yet have a case of grievance from the requirement to pay the tax refund anyway (which they are actually quite happy to pay, since again they agree with the ruling).  This petition was filed before the case made it to the Second Circuit, and it is not quite clear from the Second Circuit's decision that the law was determined unconstitutional facially.  The court may very well have decided as if to uphold the determination made at the District Court level.

If BLAG's standing is rejected in the Supreme Court, this decision of as–applied unconstitutionality will very likely stand, and DOMA will remain.  It will remain until Congress passes a law overriding it, or until a federal court rules it unconstitutional facially.  But, if the DOJ can maintain standing, then there will be a defendant in the case still, and the Supreme Court can rule on the merits of DOMA and very likely rule it unconstitutional facially.

So yes, this is complete shenanigans from the DOJ, to find a loophole to actually end this law outright.  But it just might be ridiculous enough to work.

The conscientious approach

On November 2nd, 2011, the Michigan Senate passed a bill they called 'Matt's Safe School Law,' which outlined general procedures that schools had to undertake to implement anti-bullying procedures, and which included a gem of a caveat that made the entire bill not only moot toward the goal of decreasing bullying, but expressly complicit in its propagation:

(8) This section does not abridge the rights under the First Amendment of the constitution of the United States or under article I of the state constitution of 1963 of a school employee, school volunteer, pupil, or a pupil's parent or guardian. This section does not prohibit a statement of a sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil's parent or guardian.

That same day, the bill was received by the House, was referred to the Committee on Education, and quickly proceeded to go die in a hole in that committee.

The bill stirred up quite a bit of controversy in its passage, and for good reason of course: permitting bullying on religious grounds is dangerous to students and antithetical to anti-bullying measurers.  This disgusting appeal to 'moral conviction' - a conviction of the type any such actions would certainly not be - was 'smoothed over' as part of a 'compromise' between Republicans and Democrats in the House version of the bill, HB 4163 (which eventually became law).  In actuality what happened was the text was completely excised, and any suggestion that this could ever have been a point of compromise implicitly allows the possibility that such text is OK in our law, and that will. not. do.

In what can only be described as ineffable belligerence to the public's outrage in late 2011 over that bill's close allowance for a cop-out for bullies by religious 'freedom,' the Senate is prepared to pass yet again a bill that would permit any health care provider or health care payer (see the bill for a working definition) to assert a matter of 'conscience' or religious objection to any health care service that they very well please, excluding in some cases:

for any health care payer:  

- health care services that have already been administered

for any health care provider:

- health care services deemed 'regular' or a 'substantial portion' of normal course of duties for their position

- health care services for which they are expressly contracted to perform (so, you can't just get a job at an abortion clinic and obstruct its operations by claiming an objection - you got the job for that purpose)

- health care services deemed necessary by an attending physician to avoid permanent physical harm

- health care services required to respond to a public health emergency

- health care services for which there are no other health care providers available to perform, but only in the first instance if the request for accommodation was made at the same time a patient needed the service

- situations where the request is made in the presence of a patient that needs the care (which is an extraordinary statement toward the apathy this bill has for patients, who have not a vested interest in being convenienced by the knowledge that their attendees are hunky-dory with their treatments, but rather in not being inconvenienced to receive that treatment in the first place).

This is just vague enough to work.  There is no specification in the bill as to what qualifies as 'regular' practice for a job position - is it once a week?  Twice a week?  Once a day?  Who determines that, the employer or the government?

There is virtually no limit on health care services that a health care payer may object to - this, above all else, most obviously flies in the face of the birth control requirement from the ACA, which only has lenience for expressly religious employers.  The challenges this law will face in court if it is passed could very well end up costing our state a great deal of money, just to have these sections struck down as subordinate to federal law.

Perhaps even more dangerously, an employer may refuse to contract a health payment plan that pays for blood transfusions (Jehovah's Witnesses will sure love this), or stemcell treatments, or perhaps organ transplants or skin grafts or hormonal treatments or vaccines or various forms of abortions, and so on so long as they can find a religious justification for their desires.  I of course have to allow the complaint that there aren't any insurance plans that would expressly disallow these types of procedures - maybe except for minimal coverage cases intended to be used by those not inclined or able to spend a lot of money, I would indeed sure hope that such exclusive plans are not offered to be contracted, because like with the bullying example it's antithetical to the very goal of health care.

Astoundingly enough too, the supposedly pro-business backers of this bill (I only base this off of their party affiliations) included clauses that disallowed employers from screening prospective employees on whether they would claim objection of conscience in situations, and also from 'discriminating' against employees that claimed objection of conscience.  Excuse me, but I'm still a student and have not been a worker for very long periods of time; have I had this idea all wrong?  Maybe I have been lied to all of this time, that for every other single occupation on the face of the planet (barring perhaps politics, which is unsurprisingly the landfill from which this trash legislation originated), if you do not perform the duties of your job, you are fired.  Yes, the story has been told to me in so few words.

The echoes of the senate of 2011 ring very strongly in this bill.  The old 'Matt's Safe School Law' draft pushed first in the Senate had the common courtesy to see itself out the door.  If there is a modicom of sanity in the Michigan House (perhaps even in the Senate, since the bill has not technically been voted out of it yet!), this one will quickly follow suit.  Our state cannot afford such another disgrace as this bill, and it surely will not be disgraced under the banner of moral - and ack, religious - 'conscience.'

Anti-Discrimination Policy: Update

In a post about a month ago I explained the situation regarding the registered status of a religious student organization on campus, the Asian InterVarsity Christian Fellowship (AIVCF).  The group had written into its student organization constitution a requirement that officers in their organization submit a statement of faith, effectively excluding a number of people from being able to lead their student organization (but which would also give them the ability to guarantee that their group functions toward their stated goals).  The University saw such a requirement as a breach of the Anti-Discrimination Policy, particularly (again, I think, though don't know the specifics) this section:

"The University is committed to compliance with all applicable laws regarding non-discrimination.  Furthermore, it shall strive to build a diverse community in which opportunity is equal for all persons regardless of race, sex, color, religion, creed, national origin or ancestry, age, marital status, handicap, or Vietnam-era veteran status.  It shall exert its leadership for the achievement of this goal by all parties which it recognizes or with which students or employees of the University are involved."

Quite belatedly I have now revisited their Facebook page to see if there has been an update on the issue; the University and AIVCF had met on February 4th to discuss the matter, and according to AIVCF a ruling has been put forth (my emphasis):

Coming out of those meetings, the University ultimately decided to make an exception to their policy and offer us fully restored student organization status.

Ah, 'exception.'  That's a fun word to hear from groups whose national leaders were earlier throwing around cries of discrimination.  This will surely leave a bitter taste in the mouths of at least several of our own members, who also recognize the malarkey around such accusations.