It’s all Bill Clinton’s fault, but many things are. There was the 1999 Financial Services Modernization Act that Clinton signed into law, which rid us of that Glass-Steagall thing from the thirties that kept investment and commercial banking separate. The Great Depression was long gone, so that didn’t matter any longer, and that led to the creation of Citigroup, the first too-big-to-fail bank made legal by this act, and Citigroup immediately hired Robert Rubin, Clinton’s treasury secretary who had led the fight for the law that legalized the creation of Citigroup in the first place. Cool – and Citigroup was led by Sanford Weill. Clinton gave him one of the souvenir pens he used to sign the thing, and the rest is history. It took fifty billion dollars to bail out Citigroup.
Oops. Robert Scheer has the full rundown – odd stuff, but that’s not all. Clinton also signed the Commodity Futures Modernization Act of 2000 into law – so “over-the-counter (OTC) derivatives transactions between ‘sophisticated parties’ would not be regulated as ‘futures’ under the Commodity Exchange Act of 1936 (CEA) or as ‘securities’ under the federal securities laws.” In short, derivatives and all the rest would not be regulated at all.
Hello, Enron! And that led something else completely new, the ultimate derivative, the wholly unregulated credit default swap – and to the collapse of the entire credit market. Bill Clinton handed George Bush a framework for disaster. Bush, not understanding that there was any problem with any of this, made sure that disaster happened, through indifference. He didn’t like details – but Clinton had handed him a ticking time bomb.
Now another one just exploded, the 1993 Religious Freedom Restoration Act – and yes, Clinton signed that, but don’t blame him. Many on the left and the right was all for it at the time and Slate’s David Weigel explains why:
Cast your mind back to 1990… It’s April 17, and a 6–3 Supreme Court majority is ruling against Native Americans who ingested peyote as part of a religious service, then lost their jobs for doing drugs.
One justice added this:
“Precisely because ‘we are a cosmopolitan nation made up of people of almost every conceivable religious preference,'” wrote Antonin Scalia, quoting from Braunfeld v. Brown, “and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule that respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”
We can’t have everyone claiming certain pesky laws don’t apply to them, because of their particular and unique religious beliefs, and thus the legislation saying that yes, we certainly can:
Three years later, after Bill Clinton becomes president, the Democratic Congress quickly passes the Religious Freedom Restoration Act. According to the new law, “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” It is generally understood that this will prevent religious minorities from being unfairly fired, like those poor peyote-takers were.
Take that, Justice Scalia! Native Americans who ingest peyote harm no one – let them be. If the government is going to restrict religious practices, and forbid some, they’d now have to come up with a compelling reason to do so – public safety or something or other. Rules may apply to all, general applicability as the statute says, but not really. Religious freedom matters more than the law, unless the government can prove, conclusively, that in any particular case that it doesn’t. The burden of proof is on the government, and that was a change – and life went on. No one thought about this much ever again.
That was a time bomb too, and that one just exploded:
A sharply divided Supreme Court ruled Monday that some companies with religious objections can avoid the contraceptives requirement in President Barack Obama’s health care overhaul, the first time the high court has declared that businesses can hold religious views under federal law.
The justices’ 5-4 decision, splitting conservatives and liberals, means the Obama administration must search for a different way of providing free contraception to women who are covered under the health insurance plans of objecting companies.
Justice Samuel Alito wrote in his majority opinion, over a dissent from the four liberal justices, that forcing companies to pay for methods of women’s contraception to which they object violates the 1993 Religious Freedom Restoration Act.
That framework was set down in the Clinton administration, but no one saw this coming. Still, Justice Alito offered this in the majority opinion:
Alito held that this provision of the health care law, as applied to Hobby Lobby, ran afoul of the terms of the Religious Freedom Restoration Act (RFRA), a 1993 law signed by President Bill Clinton which says the government may not “substantially burden a person’s exercise of religion,” unless it has a “compelling” justification and has used “the least restrictive means” available.
“Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained,” Alito continued, “it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test.”
Noah Feldman sees it this way:
The core of the court’s opinion held that the Obama administration had failed to satisfy its burden under the law to show that it had adopted the least-restrictive means to respect religious liberty rights. To get there, the court first had to decide that closely held corporations are entitled to protection under the law. The court broke this into two questions.
The first was whether corporations are persons under RFRA. The court answered this with a resounding yes that extended to all corporations … This analogy between nonprofit and for-profit, however, had already been adopted by the Supreme Court in the Citizens United decision with respect to free-speech, so it’s not terribly surprising that it was adopted in the context of religious liberty.
The second question, however, was whether corporations could be said to hold religious beliefs. Here the court restricted itself to holding that closely held corporations can be said to possess the religious beliefs of their owners. This is not the same thing as holding that all corporations – and certainly not publicly traded corporations – would necessarily have the capacity to possess religious beliefs under federal law or under the U.S. Constitution.
Okay then – corporations are people, but only some of them are religious people – and Doug Mataconis is fine with that:
In the end, a closely held corporation is really nothing more than a partnership with tax advantages. Whatever you might call it, it is still a business that is owned by a small amount of people. If Hobby Lobby were a partnership or sole proprietorship, there would be no question that the Greens [the Hobby Lobby owners] would be within their rights to assert a religious objection under the RFRA. Given that, it doesn’t strike me as being all that radical to say that they retain those rights when they enter into a different kind of business form that, ultimately, was chosen so that they could expand the company to the national operation employing thousands of people that it is today. We are still talking ultimately about the individuals who own the company and their rights, which is why this decision would not make any sense if you applied it to a publicly traded corporation owned by tens of thousands of individuals and institutions like Apple, or Exxon-Mobil.
Yeah, but Sally Kohn isn’t buying it:
In her dissent, Justice Ginsburg bristles at the majority’s “decision of startling breadth.” Justice Kennedy tries to argue otherwise in his concurring opinion, arguing that the majority opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” And yet majority opinion held that corporations are “persons” under the Religious Freedom Restoration Act! That’s huge! While the court limits part of its ruling around the contraception mandate to closely held corporations (defined by the IRS here), the essence of the decision is a profound and radical shift in corporate rights.
Further, the ruling in part eroded the distinction between religious non-profits (which were already exempted from parts of Obamacare) and private corporations. If you think going to the mall is like going to church, that makes sense. To everyone else, that’s nuts.
Justice Ginsburg was not happy at all:
Ginsburg read a portion of her decision from the bench on Monday. Addressing the majority of her colleagues – including all but one of the six men sitting on the Supreme Court – Ginsburg wrote:
“In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith – in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”
The justice goes on to criticize the opinion’s interpretation of the religious freedom law, writing that “until today, religious exemptions had never been extended to any entity operating in ‘the commercial, profit-making world.'”
“The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations… The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
“In sum,” Ginsburg adds about the free exercise claims at the heart of this case, “your right to swing your arms ends just where the other man’s nose begins.”
And then there’s Andrew Sullivan who is comforted by this from Alito:
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
In short, this is just women-stuff, not any serious matter – the government can figure out other ways to get women contraceptive and family planning coverage – but Sullivan has other concerns:
If anything, the real precedent is the Religious Freedom Restoration Act, and that remains at the Congress’s discretion, not the Court’s. But none of this is to say I find this development a positive one for religion.
A Christianity that seeks to rid itself of interacting with sinners or infidels is not a Christianity I recognize. A Christianity that can ascribe the core religious nature of a human being to a corporation is theologically perverse. Corporations have no souls. They do not have a relationship with God…. And a Christianity that seeks to jealously guard its own defenses rather than embrace the world joyfully and indiscriminately is not one that appeals to me.
This is not what Sullivan wants:
The worry, it seems to me, is that it further restricts the area of neutral public life. It turns the world of business into something much more like a world of theology. It chips away at the notion of a naked public marketplace, where we can leave our faiths behind and simply buy and sell goods and not worry about anyone else’s religion or lack of it. And that’s a loss.
It is, but Sullivan can be practical:
When you consider this a “narrow” ruling because it is restricted to “closely-held” companies (i.e. those with “more than 50 percent of the value of its outstanding stock owned directly or indirectly by five or fewer individuals at any time during the last half of the tax year” and “not a personal service corporation”), you find that over 90 percent of companies in this country fit the bill. That’s not-so-narrow in the broad scheme of things.
He then cites Alison Griswold with this:
According to a 2009 research paper from NYU Stern School of Business, these corporations account for 52 percent of private employment and 51 percent of private-sector output in the country.
Will they all decide they cannot furnish certain medications, based on religion? Of course not – but they could. And when the potential scope of this sinks in, and especially if more than a few companies start curtailing their female employees’ health coverage for religious reasons, I’d say you’re going to have a very divisive reaction.
Which raises the politics of this – I’d say it’s terrible for the right in everything but the short term. It may fortify the base, but the fact that this decision focuses exclusively on medications for women, and not for men, will surely fortify the other base even more. Even if you worry about religious liberty, why does religion in 21st Century America always seem to be about policing the sex lives of everyone but straight men? That may not be the intent of the ruling, but it is somehow always the effect. It’s not good PR.
One thing does lead to another:
I have a feeling that the lack of any female votes in the majority will also sink in. If the Republicans want to add fuel to the Democrats’ charge of a “War on Women”, they just got a tank of gasoline. And this could even be a real fault-line in upcoming national politics. Bobby Jindal is now running as the religious freedom candidate; Hillary Clinton will be the first woman candidate for president with bells on. She has already declared the ruling “deeply disturbing.”
I’d say the gender gap just widened a bit more; and the Democrats – especially young and single women – have just been given a reason to turn out this November and in 2016. As often with culture war battles, the winners can easily become losers. And I don’t need to remind the right that those who have no problem with contraception are a growing, big majority demographic and those opposed to contraception are a tiny and declining one. If you’re going to take a stand on religious conscience, why does it have to be restricting women’s choices in their insurance coverage?
Steve Benen sees that:
Keep in mind that Republicans haven’t simply sat on the sidelines of this fight, hoping the court’s Republican-appointed justices would rule in their favor. On the contrary, they’ve been active participants in the debate, filing briefs with the Supreme Court urging this outcome, proposing legislation to undo the ACA policy, and in some cases, even threatening to push a constitutional amendment if the Hobby Lobby ruling had gone the other way. As a result, GOP lawmakers and their allies are clearly delighted today, basking in the glow of victory.
What they may not fully appreciate, at least not yet, is what happens next: the political fallout.
They weren’t thinking:
Republican opposition to contraception access has been largely reflexive in recent years: “Obamacare” makes birth control available to Americans without a copay – “Obamacare” is evil – ergo the right must fight against contraception access.
The trouble is that the American mainstream and GOP policymakers really aren’t on the same page. The latest national polling reinforces the fact that most of the country wanted today’s ruling to go the other way.
Benen reviews that polling and adds this:
Do Republicans believe it’s a winning election-year message to tell many American women their access to contraception must be based in part on their bosses’ religious beliefs? Because that’s the line the party is taking right now. They wouldn’t put in those terms, exactly, but as a practical matter, that’s effectively the real-world consequence of the Republican position.
This came up quite a bit in 2012, when congressional Republicans championed a measure from Sen. Roy Blunt (R-Mo.) that would have empowered private-sector employers to deny health services that business owners find morally objectionable.
In one of the presidential candidate debates, President Obama hammered Mitt Romney over his support for the Blunt Amendment. The GOP candidate, the president said, argued “employers should be able to make the decision as to whether or not a woman gets contraception through her insurance coverage. That’s not the kind of advocacy that women need.”
Romney balked, saying, “I don’t believe employers should tell someone whether they could have contraceptive care or not. Every woman in America should have access to contraceptives.”
The trouble seemed to be that Romney heard Obama’s description of Romney’s own position and was repulsed. But in reality, both Romney and his running mate endorsed a policy that would leave contraception decisions for millions of workers in the hands of employers.
Nothing has changed since then:
More than two-thirds of U.S. women oppose allowing corporations to drop contraception from their health plans due to spiritual objections, but GOP leaders are nevertheless saying the exact opposite. To be sure, what matters most this morning is the ruling itself and its impact on the public. But as we come to terms with the decision and legal experts sort out its scope, it’s only natural to consider the electoral impact. And with this in mind, Republicans are taking a gamble, whether they realize it or not.
Democratic campaign operatives’ single biggest concern this year is getting left-of-center voters to show up and cast a ballot this fall. Last week, some Dem strategists said they were particularly concerned about whether unmarried women would get engaged this cycle.
They may not have to worry now:
Congratulations, Republicans, you’ve won your big case at the Supreme Court, and positioned yourself, this election, as the 21st century political party that supports restrictions on contraception access. The party saw a political landmine and decided to do a victory dance on it. We’ll see how this turns out for them.
The question couldn’t be more straightforward: Dear GOP candidates, do you agree with the Supreme Court on contraception access or not?
It’s a trap. They walked right into it. In fact, they came running, but why did it come to this? Jonathan Cohn offers this:
The fundamental problem here is the way the U.S. has decided to provide its new entitlement to health insurance. In many other countries, the government takes on this responsibility directly, by creating its own insurance program or regulating insurers as if they were public utilities. We do the same here in the U.S., for the elderly, through Medicare. But for the non-elderly, we’ve decided that most working-aged people should get coverage through their employers, with the employers retaining lots of latitude over how to do it.
There are practical and defensible reasons for doing this. This is how the majority of working-age Americans got coverage before the Affordable Care Act became law; forcing everybody to go onto a new, government-run program would have caused a great deal more disruption. But this arrangement also creates complications. What happens when employers aren’t enthusiastic about providing that coverage – or, as in the Hobby Lobby case, about providing one particular part of it?
Health care is full of decisions that raise complicated ethical questions on which, inevitably, religious beliefs can dictate certain views. It’s not just whether to use certain forms of contraception. It’s also whether to use stem cell therapy, how to treat the end of life, and whether to take blood transfusions. The question is not whether the owners of closely owned corporation have a right to their religious views. Of course they do. The question is whether those views should affect the provision of a public program, enacted in part to promote public health as defined by public health professionals.
It’s worth remembering that – strictly speaking – the Obamacare mandate doesn’t “force” employers to pay directly for coverage of contraception or any other medical service. The law simply requires that employers bear the burden of medical expenses, broadly defined. They can do so by paying a fee to the government or, if they choose, they can decide to provide insurance on their own. The only caveat is that, if they decide they want to provide insurance, the policies must conform to certain regulations—among them, coverage of so-called essential benefits. And the federal government, relying on the (very sound) judgment of public health professionals, has decided that contraception belongs on the list.
Who gets to be the benevolent daddy in this situation, the one who sometimes withholds things from his silly little girl, because those things are just evil – your boss, or the federal government, relying on the judgment of public health professionals? You may have no choice in the matter now, but it doesn’t have to be that way:
The obvious solution to this dilemma is to take health insurance away from employers, altogether. In a very, very limited way, the Obama administration has already done that by arranging for separate contraception coverage, via third party insurers, for churches and other truly religious organizations that object to such coverage. In principle, it could do the same here. And, over the long run, it’s easy enough to imagine a world in which employers were truly out of the health insurance business altogether – a world in which all people got health insurance directly from the government or tightly regulated insurers.
That’s not likely to happen. We have a party that says the boss is always right, never the government of the so-called people, and the boss, like a stern father who has to rein in his willful and nasty children, sometimes has to lay down the law, his law. As Erick Erickson, the conservative blogger put it today – “My religion trumps your ‘right’ to employer-subsidized consequence-free sex.”
Nothing could be clearer. If you want to live in this house, young lady, you follow your father’s rules, damn it. No sex – period. That’s what actually may be at the core of all this. Others may be having sex. They might even enjoy it. That’s just not right. That’s just not fair. That must be stopped. And we’re all the children here.
Hey, that’s why they impeached Bill Clinton – he was having too much damned fun – and this may be more of the same. But his adventures with young Monica weren’t the real problem. The man kept signing stupid bills that caused no end of problems.