Hard Men and Hard Women: Step Back From the Brink

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Sir Sly – Gold (betablock3r remix)

https://m.soundcloud.com/betablock3r/sir-sly-gold-betablock3r-remix

Each of us has our dream. Peoples have their dreams.

In every period among each people there are the hard men and hard women. The hard people see their path to their dream through exercise of violence. Whether with regret or with the joy of a gamer playing a videogame, they are fascinated by the use of violence to get to their dream. They feel impelled to use violence and portray those who are less enamored of that use of violence as cowards.

Violence raises its head like a Leviathan. It is not repulsed by the deaths, it revels in them when they are on the “other” side and rationalizes them when they are on “their” side or when innocents on neither side get in the way.

Their idea of their dream divides the world into those who share that dream and the others. Reality is reinvented as is history.

The spectacular violence catches our attention. But the countenanced public and private social violence within a society is the daily role of that Leviathan.

Violence feeds on our tears for the dead and injured. It feeds on the burned fields of wheat or the deadman on a street, a blown up building, a rockets scream and its crash into something. It feeds on the horror, on the abyss in the human soul that allows itself to call to that violence – to worship that violence.

Then there are those who try to speak across that violence. Whose only contradiction is to love across that violence. Even when the people they love hate each other.

Those acts of love can be as simple as a parent burying their dead child, the tears of a mother or father for their dead child, or insisting to the hard men and hard women that one recover one’s loved one from the cattle car on a nondescript train so that they can be buried at home with dignity. Of a doctor treating the injured whatever the way they received their injury.

The hard men and women revel in the instruments of violence and their exercise. Legal wordplay like religion are used as rationalization. Nationalism or other isms are deployed to rationalize the violence.

We have seen this before and we will see this again – the paeans to violence. And we will see rise in this space the interpreters and those who try to bring light on the contradictions in the manipulations done to our consciousness and conscience.

At some point, the peacemakers in the form of people and not missiles speak to the hard men and women and help them to step back from the abyss in which they are on the brink of plunging the world. We have little sense of how awful and horrible that violence can be across the world, but the peacemakers do have a deep sense of that darkness and try to walk their hard men and hard women back from the brink.

Acknowledgement, apology and compensation. Dialogue. Words that the hard men and women associate with weakness. Liberating words.

Send in the hippies. As a bumper sticker once said, hippies never started a war.


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(Part 4) Confronting Hobby Lobby Heebie Jeebies

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

A friend of mine’s daughter characterized the Hobby Lobby decision as

“Corporations are people, women are not.”

Out of the mouth of babes and a decision that so offends my sincere religious beliefs.


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The Education Apocalypse–20 Years of Ongoing Fall Out

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By SpearIt

This year marks the twenty-year anniversary of the 1994 Omnibus Crime Bill, the legislative bombshell that effectively eliminated higher education in prison. This massive crime bill contained a provision that barred prisoners from receiving Pell grant funding; in a flash, hundreds of programs closed down. Although the plight of prisoners has received almost no attention from apathetic public officials and private citizens, ongoing fall out from the blast continues in the present.

Why did the government cut education aid to prisoners? At the time, the entire prison education infrastructure was supported on less than one-tenth of one percent of the federal Pell budget. Hence the amount doled out to prisoners was hardly worth the legislative efforts. So what was the reason for killing higher education in prison and leaving millions of incarcerated men and women with drastically reduced educational opportunity?

No question, the bill was passed in the harshest era of punishment the country has ever known. With politicians building political careers on “tough on crime” platforms and fears about appearing “soft on crime,” prisoners became social scapegoats. The punitive nature of the political landscape was a major contributor to the demise of higher education in prison.

Although the effect of the bill was devastating, men and women in correctional systems are typically disadvantaged and undereducated prior to entering. Some 40 percent of prisoners have not completed high school, and according to a study conducted by the Begin to Read Project, over 70 percent of all inmates in U.S. prisons and jails cannot read above the fourth-grade level.

The Pell Grant funds allowed for hundreds of college programs to flourish inside prisons across the country between 1965 and 1994. As described by researchers, by 1982, a network of college programs was available in forty-five states and hundreds of prisons. In the early 1980s, there were 350 programs with more than 27,000 inmate-students; five years later, forty-six states offered some form of postsecondary education with 772 prison college programs enrolling more than 35,000 inmate-students; at the zenith in 1990, according to the Department of Justice, there were 782 programs across the country in state and federal facilities enrolling more than 77,300 inmate-students.

Within weeks of the bill’s passing, the infrastructure supporting almost all college programming began to crumble. New York offers a dramatic example. College in prison programs thrived there in the 1970s and 1980s, with nearly every state prison in New York hosting programs. By the end of 1994 only four remained.

Today, all that remains is a small network of institutions of higher education, which offer programs at their own cost or through private charities.

The fall out from the education apocalypse is sobering. Although determining outcomes among inmates participating in prison college programs is no easy task, there are strong correlations between education and prevention of recidivism. According to one study conducted in 1997 by the Correctional Education Association, simply attending school behind bars reduces the likelihood of reincarceration by 29 percent. In 2000, the Texas Department of Education conducted a longitudinal study of 883 men and women who earned college degrees while incarcerated, finding recidivism rates at 27.2 percent for completion of an AA degree and 7.8 percent for completion of a BA degree, compared to a system-wide recidivism rate between 40-43 percent.

The after-effects are more sobering still when considering the Department of Justice, which reports that approximately 650,000 men and women are released from incarceration each year at roughly 10,000 a week. From this perspective, education in prison remains underutilized as a form of risk management for prison administrators.

Even the U.S. Department of Education resisted the change in Pell Grant
policy as detrimental to efforts to prevent reincarceration. In 1995, the department
issued a publication in direct response to the Omnibus Crime Bill entitled Pell Grants for Prisoners, which argued for the benefit of higher education in preventing recidivism. The report states that Pell Grants help inmates obtain the skills and education needed to acquire and keep a job following their eventual release.

Yet, focusing on recidivism as the sole metric for prison higher education programs misses the more substantial arguments about the need for higher education opportunities in prison. As the typical offender is undereducated, unemployed and living in poverty before incarceration, access to higher education in prison is a second chance to gain the needed social and vocational skills not just to prevent return to prison, but to be a citizen fully willing and able to participate in a community.

Higher education, whether administered within a prison or on a traditional college campus is a matter of self-discovery, the development of critical thinking skills, and acquisition of the social and intellectual competencies necessary to navigate the world beyond the campus or prison.

Lack of higher educational opportunities for the incarcerated widens the gulf between
the inside and outside and stifles efforts to allow individuals on both sides of the divide to see the other as fully human. Moreover, it allows prisoners to see humanity among themselves. With high tensions in prison, including racially and gang motivated violence, education stands as an antidote to the ignorance that fuels inmate conflict.

This article was published on 4/17/14 on Huffington Post.  Read it here.


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Israel Inflicts Illegal Collective Punishment on Gaza

By Marjorie Cohn

Israel has commenced full-scale warfare on the people of Gaza. The recent tensions began about six weeks ago when Israeli forces abducted 17 Palestinian teenage boys in the occupied West Bank. Then, on June 12, three Israeli teenagers were abducted in the southern West Bank; Israel blamed Hamas. After the three youths were found dead, a group of Israelis tortured and killed a Palestinian teenager in Jerusalem. Finally, on July 7, Israel launched a large military operation dubbed “Operation Protective Edge” in the Gaza Strip.

During the past week, Israel has killed 162 Palestinian civilians and counting, including 34 children. In addition to more than 1,200 Israeli airstrikes, Israel has threatened to launch a ground invasion of Gaza. Israel attacked a center for the mentally and physically disabled in Beit Zahiya, killing three patients and a nurse. In addition, Israel has stepped up demolitions of Palestinian homes, and administrative detentions of Palestinians without charge or trial.

The UN Office for the Coordination of Humanitarian Affairs(OCHA) reported that 77 percent of the people Israel has killed in Gaza were civilians. Although Hamas has launched about 1,000 rockets into Israel in the past week, no Israelis have been killed.

UN High Commissioner for Human Rights Navi Pillay expressed alarm at the Israeli military operations as well as the indiscriminate firing of rockets from Gaza into Israel. “For its part, the Government of Israel must take all possible measures to ensure full respect for the principles of distinction, proportionality and precautions in attack, during the conduct of hostilities, as required by international humanitarian law. In all circumstances, they must avoid targeting civilians,” she said. In light of “deeply disturbing reports that many of the civilian casualties, including of children, occurred as a result of strikes on homes,” Pillay continued, “serious doubt [has been raised] about whether the Israeli strikes have been in accordance with international humanitarian law and international human rights law.”

The principle of distinction forbids deliberate attacks on civilians or civilian objects. The proportionality principle forbids disproportionate and excessive civilian casualties compared to the claimed military advantage gained in the attack. Precaution requires that measures be taken in advance to ensure compliance with the principles of distinction and proportionality, to minimize incidental loss of civilian life, injury to civilians and damage to civilian objects, and requires taking all feasible precautions in the choice of means and methods of warfare.

Collective Punishment by Israel

Headlines in the mainstream media falsely portray an equivalence of firepower between Israelis and Palestinians in Gaza. But Israel’s use of force greatly exceeds that of the Palestinians, and the asymmetric warfare continues to escalate. The Obama administration and Congress have condemned the rocket fire into Israel by Hamas and the “deliberate targeting of civilians.” But Washington says Israel has a right to defend itself, justifying Israel’s bombing campaign in Gaza and blaming Hamas, while minimizing Israel’s role in creating and escalating the violence.

Israel’s overwhelming use of military force constitutes collective punishment, which is a war crime. The laws of war, also known as international humanitarian law, are primarily found in the Geneva Conventions. Article 33 of the Fourth Geneva Convention, to which Israel is a party, specifically forbids collective punishment. It says, “No protected person [civilian] may be punished for an offense he or she has not personally committed . . . Reprisals against protected persons and their property are prohibited.”

Israel’s collective punishment of Palestinians in Operation Protective Edge constitutes a deliberate policy to punish the entire population of Gaza. Since the Palestinians concluded a unity agreement between Fatah in the West Bank and Hamas in Gaza in June, Israel has stepped up the construction of illegal Israeli settlements in the West Bank and Jerusalem. Richard Falk, former UN Special Rapporteur on the situation of human rights in the Palestinian territories occupied by Israel since 1967, noted that Israel broke off the peace talks with the Palestinians before the formation of the Palestinian unity agreement.

Israeli Prime Minister Benjamin Netanyahu has blamed Hamas for the kidnapping and killing of the three Israeli teens in order to discredit the new Palestinian unity agreement. In what amounts to a catch-22, Netanyahu has cynically stymied the peace negotiations because, he said, there was no unified voice to speak for the Palestinians. But now that the Palestinians have a unity agreement, Netanyahu is driving a wedge between Fatah and Hamas in an effort to justify and maintain Israel’s occupation of Palestinian territory.

The 140 square-mile Gaza Strip, home to 1.7 million people (half of whom are children), is one of the most densely populated areas in the world. It is often described as the world’s largest “open air prison,” as Israel maintains a tight blockade, restricting all ingress and egress. Since mid-2013, unemployment has dramatically increased and delivery of basic services has decreased. More than 90 percent of the water in Gaza is unsuitable for drinking. The health system is close to collapse, according to the World Health Organization. Last year, the UN Committee on the Rights of the Child reported, “Palestinian children arrested by [Israeli] military and police are systematically subject to degrading treatment, and often to acts of torture.” The committee also concluded that Israel’s “illegal long-standing occupation” of Palestinian land, continued expansion of “unlawful” Jewish settlements, construction of the barrier wall into the West Bank [found by the International Court of Justice 10 years ago to violate international law], and the confiscation of land and demolition of homes and livelihoods “constitute severe and continuous violations of the rights of Palestinian children and their families.”

After Israel’s 2008 to 2009 Operation Cast Lead, in which nearly 1,400 Palestinians (82 percent of whom were civilians) and 13 Israelis were killed, a UN Human Rights Council report by a commission headed by Justice Richard Goldstone concluded, “Disproportionate destruction and violence against civilians were part of a deliberate policy [by Israel].”

In its 2009 report, the Public Committee Against Torture in Israel (PCATI) found, “During Operation Cast Lead no type of property was left untouched: residences, hospitals, schools, mosques, factories and agricultural fields were demolished by the IDF.”

Israel, according to PCATI, employed “a coherent strategy that incorporated two major elements into the planning of Operation Cast Lead: 1) The implementation of the ‘Dahiye Doctrine,’ the principal tenet of which was to cause intentional suffering to civilians so that they would bring pressure to bear on those who were fighting against the IDF [Israel Defense Forces], and 2) The ‘No Risk’ policy, which placed absolute priority on preventing harm to IDF soldiers, even at the cost of greater danger to Palestinian civilians.” Israel is apparently pursuing the same policy in Operation Protective Edge.

In 2013, Falk said, “the people of Gaza have endured the unendurable and suffered what is insufferable for six years. Israel’s collective punishment of the civilian population in Gaza must end today.” He added, “Israel has the responsibility as the Occupying Power to protect the civilian population.”

“In circumstances of prolonged occupation and state terrorism,” Falk observed, “Hamas is entitled to claim rights of resistance, although their precise contours are not clearly established by international law. Hamas is certainly entitled to act in self-defense within the constraints of international humanitarian law.”

International Reaction

On July 12, 2014, the UN Security Council issued a unanimous statement calling for an immediate ceasefire and “de-escalation of the situation, restoration of calm, and reinstitution of the November 2012 ceasefire.” That ceasefire ended eight days of bombings of Gaza by Israel that killed 140 Palestinians, and rocket attacks by Hamas along the border that killed five Israelis. In its July 12 statement, the Council expressed “serious concern regarding the crisis related to Gaza and the protection and welfare of civilians on both sides” and called for respect for international humanitarian law, including the protection of civilians.

Hanna Amira, a member of the executive committee of the Palestine Liberation Organization in the West Bank, said of the Council’s statement, “This announcement deals with the oppressor and the victim in the same way; it is a general call to end the fighting, without setting any mechanism to end the fighting. What is needed is an end to the aggression against the Palestinian people in Gaza.”

The Palestinian Boycott, Divestment and Sanctions (BDS) National Committee has called on “international governments to impose a two-way arms embargo immediately and to suspend bilateral agreements until Israel fully complies with international law.” Indeed, US military aid to Israel also violates US law. The Human Rights and Security Assistance Act requires that the United States halt all military aid to Israel because the latter has engaged in a consistent pattern of gross violation of internationally recognized human rights.

“Because collective punishment is a war crime under the Geneva Conventions, [the Palestinian BDS National Committee] urge[s] the international community to pressure Israel to end its all-out military assault aimed against the total population of Gaza, open the Rafah crossing [between Egypt and Gaza] permanently and heed our call for boycotts, divestment and sanctions.” Organizations such as the Bill Gates Foundation, the Presbyterian Church USA and the United Methodist Church are divesting from companies that profit from Israel’s occupation, including Hewlett Packard, Motorola Solutions and Caterpillar.

“Israel is able to act with utter impunity because of the military, economic and political support it receives from governments around the world,” according to Zaid Shuaibi, a spokesperson for the Palestinian BDS National Committee. Indeed, Israel would be unable to carry out its policies of aggression in Gaza without the support of the United States, which gives Israel more than $3 billion per year.

The United States should demand an immediate ceasefire from both Israel and Hamas. The US government should condemn Israel’s escalation, bombing and collective punishment of civilians just as forcefully as it has condemned Hamas’ firing of rockets. The Gaza blockade and limitations on freedom of travel of Gazans should be lifted and Israel’s occupation of the Palestinian territories should be ended.

Marjorie Cohn is a professor at Thomas Jefferson School of Law, a former president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Her books include Cowboy Republic: Six Ways the Bush Gang Has Defied the Law. Her next bookDrones and Targeted Killing: Legal, Moral and Geopolitical Issueswill be published next month.

 

Copyright, Truthout.org. Reprinted with permission.

 


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(Update) Detroit: The Humanitarian Crisis is not Just on the Southern Border

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” – Article 25 of the Universal Declaration of Human Rights of 1948

“Hill is one of thousands of residents in Detroit who have had their water and sewer services turned off as part of a crackdown on customers who are behind on their bills. In April, the city set a target of cutting service to 3,000 customers a week who were more than $150 behind on their bills. In May, the water department sent out 46,000 warnings and cut off service to 4,531. The city says that cutting off water is the only way to get people to pay their bills as Detroit tries to emerge from bankruptcy — the utility is currently owed $90 million from customers, and nearly half the city’s 300,000 or so accounts are past due.” – “Thousands go without water as Detroit cuts service for nonpayment”  http://www.latimes.com/nation/la-na-detroit-water-20140629-story.html#page=2

(Best protest sign: Where do you expect us to sh**?)

One of the most celebrated cases in Ohio is the case of Kennedy v. City of Zanesville (2008) in which:

“a federal court jury returned verdicts totaling nearly $11 million against the City of Zanesville, Ohio, Muskingum County, Ohio, and the East Muskingum Water Authority for illegally denying water service to a predominately(sic) African-American community on the basis of race.  The sixty-seven plaintiffs in the case had alleged that the City of Zanesville, Muskingum County, and the East Muskingum Water Authority refused to provide them public water service for over fifty years because they live in Coal Run, the one predominately African-American neighborhood in a virtually all-white county.”  - See more at: http://www.relmanlaw.com/civil-rights-litigation/cases/zanesville.php#sthash.xTjY3Vlg.dpuf

Detroit is a predominantly African-American city, but finding intentional racial animus to get relief should be irrelevant.  Under international human rights law, it is of no moment whether the basic human right of water is being denied on the basis of animus or lack of animus.  The right stands on its own.

I think of those children in Detroit who are suffering, of those parents and families who are worrying each day as to how to have enough water.  It just appalls me that the structures that are to provide the protection of the rights of the people through the double security of federalism and separation of powers are not up to giving them relief.

Rather than forced migration from despair, it seems to me that if providing water to someone of modest means is prohibitively expensive in a part of the city, that the powers that be (at the local, regional, state and federal levels) should find those persons accommodations that are reasonable in a part of the city where these basic services can be provided – with compassion and income assistance.  That is the least one should expect in a developed democracy in the 21st century.

 


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(Part 3) Confronting Hobby Lobby Heebie-Jeebies: a proposal after church today

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

“We have only this moment, sparkling like a star in our hand, and melting like a snowflake.” – Francis Bacon quoted as part of the Sermon today at Trinity Episcopal Church, Toledo, Ohio

” The servant said to Laban, “I am Abraham’s servant. The LORD has greatly blessed my master, and he has become wealthy; he has given him flocks and herds, silver and gold, male and female slaves, camels and donkeys.” Part of the First Reading today at Trinity Episcopal Church, Toledo, Ohio, Genesis: 24:34-38, 42-49, 58-67

“So I find it to be a law that when I want to do what is good, evil lies close at hand. For I delight in the law of God in my inmost self, but I see in my members another law at war with the law of my mind, making me captive to the law of sin that dwells in my members. Wretched man that I am! Who will rescue me from this body of death? Thanks be to God through Jesus Christ our Lord!” Part of the Second Reading today at Trinity Episcopal Church, Toledo, Ohio, Romans 7:15-25a

“Come to me, all you that are weary and are carrying heavy burdens, and I will give you rest. Take my yoke upon you, and learn fro me; for I am gentle and humble in heart, and you will find rest for your sous. For my yoke is easy, and my burden is light.” Part of the Gospel Reading today at Trinity Episcopal Church, Toledo, Ohio in Matthew 11:16-19, 25-30

I prayed on Hobby Lobby and subsequent events such as this Boston Globe article (http://www.bostonglobe.com/metro/2014/07/03/gordon-college-president-signs-letter-asking-for-religious-exemption-from-order-banning-anti-gay-discrimination/79cgrbFOuUg7lxH2rKXOgO/story.html?p1=Article_InThisSection_Bottom) entitled
“Gordon College leader joins request for exemption to hiring rule: Bias on sexual orientation at issue”). I was up to do the First Reading today. I was moved by it to remember how the Bible was used by those with their sincere religious beliefs (whatever the oppression it caused for slaves) to countenance slavery in its sections such as the one I quote above in the First Reading. I remember the sincere religious beliefs that animated the father of human rights Bartolome de las Casas the Spanish secular priest who worried aloud about the destruction of the Indians back in the 15th century. I thought about how he is cited as the source of the decision to import Africans to be slaves in replacement of the Indians (as then called) – a true perversion at the soul of the human rights movement. I think of the religious bases for international law and the 17th century vision of humans as being subjects of international law and not just objects of the actions of sovereigns.

I look at the second reading and the war in each person so described. I think of a person who is afflicted with physical trouble in their body of death asking for rescue. I look at the Gospel reading in which Jesus calls out to the weary and those carrying a heavy burden and says he will give each of us rest.

I look at these parts of my sincere Episcopalian religious beliefs and continue to find profound offense in the Supreme Court’s Hobby Lobby decisions and the actions of those who in the name of their sincere religious beliefs are trying to limit the possibility of being hired for LGBT people, of trying to keep their workers from being able to get all forms of health care that are permitted under the affordable care act, and on and on.

Render unto Caesar that which is Caesar’s and unto God that which is God’s.  No one, whomever they are, should be forced by public or private power in the United States of America to a Hobbesian choice between where they seek to work or work and their faith.

I lived in France for 17 years where – as long as you worked anywhere (religious institutions included) – you were in the health care system, even if you became unemployed at some point in that career. You and your family were covered for your health care. It was a terribly important relief for me. The Catholic Church in France is also called the eldest daughter of the Catholic church – a high honor that was clearly not incompatible with all forms of health care being provided to those who had a job or had had a job.

I know of people who have gotten on their feet by working at a religious institution – maybe not making much money but enough to keep kith and kin together – as they come back from horrendous things in their life. I have known LGBT persons who have come to my church because of the hostility they experienced in their sincere religious beliefs at other churches because of who they are. I have had a lesbian priest and lesbian and gay leaders in my church whose faith far exceed my own modest faith.

And so I say that it is fundamentally abhorrent to my sincere religious beliefs for us to countenance organizations of any stripe being able to extract themselves from the health care law obligations that the secular government places on them through some type of exemption that said secular government provides those places of work.

If you work somewhere, that place’s religious beliefs should be respected but that place (or whoever owns it or runs it or works with you in it) does not get the extended right to discriminate against you in hiring, keep you from getting all health benefits that would normally be available but for a governmental exemption, or retaliate against you for having sincerely religious beliefs that do not concord with those of that place.

Health care is too much of a moral and legal right well recognized in the Universal Declaration of Human Rights to be left to the sincere religious beliefs of those who would discriminate in a manner that offends my sincere religious beliefs.

Article 25.
•(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
•(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

So, I have a solution to the abomination that is Hobby Lobby and the subsequent events. It is a simple regulatory fix for now.

In whatever language that says that an exemption based on sincere religious beliefs can be granted, to take into account Hobby Lobby and my sincere worries about Establishment Clause violations of the implications of Hobby Lobby, I suggest that the Obama Administration or any future Administration at this following language to the regulations.

[such sincere religious belief based exemption may be granted] unless a person or persons assert(s) sincere religious beliefs or other forms of conscientious objection about the effect of the sought exemption on that person or persons which run counter in any manner to the sincere religious beliefs based on which the exemption from the normally applicable health care provisions is or has been sought. In such case, no exemption will be provided or any previous exemption may be suspended pending the resolution of any disputes by the persons in a court of competent jurisdiction. During the pendency of said litigation before a court of competent jurisdiction including any appeals, no person asserting said sincere religious beliefs or conscientious objection(s) may be subject to adverse action or detriment in the organization seeking the exemption.”

That would put the issue back into the courts to try to sort out and would protect the sincere religious beliefs of everyone.

If someone reading this knows somebody in the Obama Administration who is working on this stuff – send them this message.

If you are a person like me whose sincere religious beliefs are offended by Hobby Lobby and subsequent events, then tell your religious leaders and get your religious organization to come out to the powers that be at the local, state, and federal level to support this limited regulatory change.

I am a member of the Committee for Racial Understanding in my Episcopal Diocese and I told my congregation this morning during announcements that I had prayed on this and that I felt I should do what I am doing here and also bring this to the attention of the Committee for Racial Understanding. I felt strong support from my congregation and leadership for taking this path. I pray it is the one that the Lord wants. Because I hate to do it, I am hopeful that the Scripture of the Second Reading and the fact that unbeknownst to me I was on the list to do the First Reading (got to church just in time) are the kinds of signs old hippies and old Testament types are given by the Creator to help show to them the path of righteousness.


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(Part 2) Confronting Hobby Lobby Heebie Jeebies

By Benjamin G Davis. Associate Professor of Law, University of Toledo College of Law

So assuming the current Executive actually worries about the sincere religious beliefs of shareholders, managers, and employees of any entity with corporate form who have sincere religious objections to their employer having a health plan that only due to a government exemption for THEIR sincere religious beliefs would include contraception, here is an idea for regulations implementing Hobby Lobby.

Include in the exemption process a section that says something like “exemption will be granted, unless there are persons who assert sincere religious beliefs which counter the sincere religious beliefs for which the exemption has been sought. In such case, no exemption will be provided pending the resolution of those disputes by a court of competent jurisdiction.”

Here the Executive avoids establishment clause concerns and the religious fight is in the courts who had the wisdom to start this up.

Some would say that the exemption should be granted and the battle be about removing it. But, by treating both under the general rule without the exemption the government respects all compelling interests and takes an even-handed approach that is the same for everyone, pending what the court announces.

Just a thought.


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Confronting the Hobby Lobby Heebie-Jeebies

Benjamin G. Davis, Associate Professor of Law, University if Toledo College of Law

Read this:

http://www.theatlantic.com/politics/archive/2014/07/post-hobby-lobby-a-plea-for-religious-accommodation/373853/

Given the kinds of sincere religious based efforts (whatever the detriment to oppressed people comes from these sincere beliefs) going forward, those people of faith who have experienced the religious belief based oppression of disfavored groups in their places of worship need to respond. We can only do that if we take our inspiration from Richard Allen and Absalom Jones who refused to be relegated to a back seat in their church and faith.

It seems to me that each time a religious belief based effort is used to oppress people, there should be a religious belief based effort to hold back the tide and push back.

For example, at my church we have for a long time had an inclusive vision and more broadly had the view that God loves you, whatever. This view is sincerely held by us. Thus, government exemptions on religious grounds that would lead to oppressed people not being able to live their complete lives infringes on my sincere religious beliefs. Government blocking of Medicaid benefits in numerous states to the least of us, offends my religious beliefs. Blocking same sex marriage offends my religious belief.

Sincerely held religious beliefs were used to rationalize slavery. If sincerely held religious beliefs are going to lead to oppressive spaces for people then those people and one’s whose sincerely held religious beliefs compel them to think differently need to speak up.

I sincerely believe that abortion is a question between a woman and God and I am not to stand in judgment as my Bible tells me – for I am not without sin. So it offends my sincere religious beliefs that contraception decisions are being taken out of the hands of those women instead of making it a matter of their faith.

It offends my religious beliefs that entities can seek to argue religious bases to do things that in my faith are retrograde to human rights.

This is how we need to confront the oppression unleashed by this Supreme Court. By asserting the sincere religious bases for our progressive vision as well as the bases in law.

I was told that in polite company one does not talk about politics or religion. The Supreme Court constrains even us Episcopalians not to be polite on both fronts.


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Harris v. Quinn: The Supreme Court Further Marginalizes Public Employees

By Ruben J. Garcia

Burwell v Hobby Lobby justifiably received much attention on Monday here and throughout the Internet. The attention given to Hobby Lobby might have led some to overlook “the other 5-4 decision” yesterday that also had great implications for the rights and protections of low-wage workers, especially for women and people of color.

Harris v. Quinn

Predictably, the United States Supreme Court’s decision yesterday in Harris v. Quinn was never going to be only about the First Amendment.  Certainly, the Court decided that the First Amendment prevents States from requiring workers in home health care who are not “full” public employees to pay dues for the cost of grievance administration and collective bargaining.   In his opinion for the Court, Justice Alito wrote: “The First Amendment prohibits the collection of an agency fee from personal assistants in the Rehabilitation Program who do not want to join or support the Union.”   The case was about more than free speech doctrine though; it also exemplified the particularantipathy of a majority of the Court toward unions that represent government employees.

Harris v. Quinn involved in-home care workers who did not want to pay any dues to the union that represented them and all home care workers in bargaining with the State of Illinois, the Service Employees International Union (SEIU).  All labor law involving state government employees is legislated by the individual states.  Some states, like Virginia and North Carolina, ban public sector employee bargaining completely.  While others, such as Illinois and California, allow unions to represent employees in a particular workplace or bargaining unit and charge dues to all employees in that unit for the agency function of bargaining and administering contracts.  The Court has long held that workers can only be required to subsidize the representation they receive, not the union’s political or social goals.

Precedent with a Long Pedigree: The Constitutionality of Agency Fees

For nearly 60 years, the process for workers in a bargaining unit who did not want to be full members of the union at their workplace was to opt out of full dues and pay only the cost of grievance administration and collective bargaining, to prevent nonmembers from getting higher compensation and contractual protections without paying for them, what economists call the “free rider problem.”  While no state is required to have an agency fee arrangement, since Abood v. Detroit Teachers in 1977 the constitutionality of such a law was not in issue.

In Harris, the health care workers sued the State of Illinois claiming that the agency shop arrangement that had been legislated violated their First Amendment rights of free speech and association by requiring them to pay the agency fee.  The Seventh Circuit Court of Appeals rejected their constitutional claims, largely on the basis that the claims were not ripe for review and the home care workers were indisputably employees of the state. In October 2013, though, the Supreme Court agreed to hear the plaintiffs’ petition for review, which was a broader attack on whether a State may “compel personal care providers to accept and financially support a private organization as their exclusive representative . . . .”  Plaintiffs’ Petition for Cert., Harris v. Quinn, (i).

Justice Alito’s Writing on the Wall

The Court’s decision came down along predictable ideological lines, with Justice Samuel Alito writing the Court’s opinion on behalf of Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas.   In a case two years earlier,Knox v SEIU Local 1000, Justice Alito had questioned whether agency fee arrangements, which were not in issue in that case, were constitutional at all.   In Harris, Justice Alito continued his assault in dicta on nearly 60 years of precedent that upheld agency fee arrangements as constitutionally permissible, but apparently did not have five votes to overrule in this case.  Justice Alito focused on the fact that the home health care workers in this case were not truly public employees as the workers in the earlier cases had been, and thus the agency fee precedents were inapplicable to their constitutional claims. In sum, they did not have to pay any dues to the union that has a duty to represent them without hostility or discrimination because of their nonmember status.

The dissenting opinion, written by Justice Kagan on behalf of Justices Ginsburg, Breyer and Sotomayor, focused on the Court’s misapplication of the test of “employee” status and its ignorance of the “joint employer” test that would allow for the “customers” of the home health care workers and the State both to be the employers of the workers. Justice Kagan heavily critiqued Justice Alito’s “gratuitous” criticism of prior precedents that he apparently would like to overrule, but could not muster a majority to do so in this case.  Nevertheless, there will likely be many more opportunities to do so, with both private and public sector labor relations remaining one of the most polarizing issues in society today.

The Fallout

As predicted, the decision will send shock waves in every state legislature that allows a bargaining arrangement for home health care workers (19 including Illinois).  In states that are so called “right to work” states, that is, where protection for free riders is enshrined in state law, there will be no change, because there is no agency fee relationship. Further, in a few states (such as Virginia and North Carolina) government employees are not even allowed to bargain with public entities.   Much in the same way that the Supreme Court in the early 20th Century upset legislative judgments with Lochnerian philosophy about “freedom of contract,” the Court has paved the way to make the entire country “right to work,” in derogation of any pretense of the states as sovereigns or as laboratories of innovation, which historically have had little purchase when states have experimented with affirmative legislation or other progressive experimentation.

“Big” Labor?

Harris v. Quinn is also another in a long line of losses for public employee unions at the Supreme Court, which I have written about recently.  Despite the popular belief that public employee unions are inordinately powerful politically, the fact remains that almost half of state legislatures limit or prohibit collective bargaining by government employees, recently even in historic strongholds like Wisconsin, Michigan and Indiana.  Even when able to obtain legislation like that at issue in Harris v. Quinn, public employee unions have suffered a string of losses at the Supreme Court over the last decade.

A political path remains after Harris v. Quinn that States can follow to ensure home healthcare worker bargaining arrangements pass constitutional muster.  Nonetheless, as many of these workers are among the most politically vulnerable in society – low-wage earners, women, people of color and noncitizens – they will lack the political power to easily change legislation for their benefit and the benefit of their clients or customers, who are alone, disabled, elderly and ill.   In Harris v. Quinn, the Supreme Court has once again marginalized these employees, and the people for whom they work.

This Article was published in Hamilton and Griffin on Rights on 7/1/14.  Read it here.


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Will Supremes Apply Cell Phone Privacy to Metadata Collection?

By Marjorie Cohn

In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee. This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.

Warrants Needed to Search Cell Phone Data

There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest. The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence. Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.

In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestee’s cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects – protecting officers and preventing destruction of evidence – do not apply to the digital content on cell phones: “There are no comparable risks when the search is of digital data.”

Moreover, “[m]odern cell phones, as a category,” Roberts noted, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” Responding to the government’s assertion that a search of cell phone data is “materially indistinguishable” from searches of physical items, Roberts quipped, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Indeed, Roberts observed, the search of a cell phone would typically provide the government with even more personal information than the search of a home, an area that has traditionally been given the strongest privacy protection. Modern cell phones, Roberts wrote, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Roberts was referring to the ubiquitous presence of cell phones appended to our ears as we walk down the street.

But the Court held that while a warrant is usually required to search data on an arrestee’s cell phone, officers could rely on the exigent circumstances exception in appropriate cases. For example, when a suspect is texting an accomplice who is preparing to detonate a bomb, or a child abductor may have information about the child’s location on his cell phone, or circumstances suggest the phone will be the target of an imminent attempt to erase the data on it, police may dispense with a search warrant.

Metadata Collection Implicates Similar Privacy Concerns

The Riley/Wurie opinion provides insights into how the Court will decide other digital-era privacy issues. Roberts was concerned that “[a]n Internet search and  browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns – perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.” The Chief Justice could have been describing the NSA metadata collection program, which requires telecommunications companies to produce all of our telephone communications every day. Although the government claims it does not read the content of those communications, it does monitor the identities of the sender and recipient, and the date, time, duration, place, and unique identifiers of the communication. As Roberts pointed out in the cell phone case, much can be learned from this data. Calls to a clinic that performs abortions or visits to a gay website can reveal intimate details about a person’s private life. A URL, such as www.webMD.com/depression, can contain significant information, even without examining the content. Whether we access the Internet with our cell phones, or with our computers, the same privacy considerations are implicated.

Roberts quoted Justice Sonia Sotomayor’s concurrence in United States v. Jones, the case in which the Court held that a warrant is generally required before police install and monitor a GPS tracking device on a car. Sotomayor wrote, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” U.S. District Court Judge Richard J. Leon also cited that concurrence by Sotomayor in his 2013 decision that the metadata collection probably violates the Fourth Amendment (Klayman v. Obama).

And both Roberts and Leon distinguished the cell phone search and metadata collection, respectively, from the 1979 case of Smith v. Maryland, in which the Court held that no warrant is required for a telephone company to use a pen register to identify numbers dialed by a particular caller. The Smith Court concluded that a pen register was not a Fourth Amendment “search,” and therefore the police did not need to use a warrant or an exception to the warrant requirement. In order to constitute a “search,” a person must have a reasonable expectation of privacy that is violated. The Court said in Smith that a person does not have a reasonable expectation of privacy in numbers dialed from a phone since he voluntarily transmits them to a third party – the phone company.

Roberts stated in the Riley/Wurie decision: “There is no dispute here that the officers engaged in a search of Wurie’s cell phone.” Likewise, Leon wrote that the issue of “whether a pen register constitutes a ‘search’ is a far cry from the issue in the [metadata collection] case.” Leon added, “When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and the telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.”

If the Court is consistent in its analysis, it will determine that the collection by the government of all of our electronic records implicates the same privacy concerns as the inspection of the data on our cell phones. It remains to be seen if and when the metadata collection issue comes before the Court. But the fact that the cell phone decision was 9-0 is a strong indication that all of the justices, regardless of ideology, are deeply concerned about protecting the privacy of our electronic communications.

Marjorie Cohn is a professor at Thomas Jefferson School of law, deputy secretary general of the International Association of Democratic Lawyers, and a former president of the National Lawyers Guild. Her next book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, will be published in September.

This piece first appeared on Jurist: http://jurist.org/forum/2014/06/marjorie-cohn-metadata-privacy.php


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