Senate Intelligence CIA Torture Report: Why Pre-release to Ordinary Citizen Torturers but Not to the Rest of US?

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

Why do the “flies on the eyes” guys (nickname of Cofer Black in the Bush Administration) who are no longer public servants and are ordinary citizens get to see the unredacted full Senate Intelligence Committee CIA torture report before the rest of us ordinary citizens? There is no legal obligation I am aware of for such solicitude to torturers. So, why did the Obama Administration with the acquiescence of Senator Feinstein permit it?

I await the explanation for this highly irregular procedure. My gut feel is that the current DNI Brennan and McDonough are looking beyond their current work to what they will do after they leave their positions. I suspect the current office holders fear the former torturers have the power to blacklist “uncooperative” current officials to the tune of “you will never work again in this town if you do not play ball.”

Stories also reveal that the CIA has again bugged the Senate Intelligence Committee. This sure looks like people who fear they will be shown up for what many of us have been saying they are since at least 2005 – they committed torture and have to face criminal prosecution.

Recently the European Court of Human Rights found Poland guilty of violating the rights of detainees in the CIA black sites there. One of those detainees, Al-Nashiri, is facing a military commission at Guantanamo and the judge there has ordered the government to provide details of his treatment as part of that trial. If an ally can be made to face the music, then these torturers should be made to face the music in American Courts.

We find that last week, the torturers starting with Tenet were quietly organizing a public relations campaign to counter the release of the report. Instead of playing fair and balanced with all ordinary citizens, the Obama Administration has played favorites – trying to make us believe that some ordinary Americans are more equal than others.

That approach is the sick approach of Animal Farm of Orwell, not of those sworn to uphold the law.

Let me make this crystal clear for this and any future administration. These persons committed torture and people died. As such no statute of limitations applies and they can be prosecuted any time in the future. “No action” letters by DOJ can be reversed at any time. Any reliance on those is without a doubt not reasonable because of the lies said to the DOJ.

It seems to me that now that these torturers have been given unredacted access to this report, that the full 6300 report should be provided to the American people in an unredacted form too. Who is to say what these ordinary citizens with no current legal role might use this irregular privileged access for on behalf of their private clients and maybe even foreign governments?

So many are afraid of providing the truth because they will be shown to have lied so consistently to the American people in a game of perception management. While ordinary soldiers were court-martialed and served years of time doing their bidding, these people then and now use all the levers of power and influence to deflect attention from their crimes.

Some of us have focused on them with laser like attention because we know that what they did was a horrendous betrayal of our troops and of American traditions of both Democrats and Republicans. They were and are crimes. The torturers should not be allowed to besmirch our American flag – that flag is far more than a lapel pin.

So stop the pussyfooting around and release the full 6300 pages unredacted report to the American people and let the chips fall where they may. It will be salutary for America and the world to see how torturers dressing themselves in American flags are just penny ante criminals.

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(Updated 7/30) (Parts 5 and 6) Confronting the Hobby Lobby Heebie Jeebies: What of the sincere religious belief in Mammon?

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

Over at the Toledo Blade on July 27, 2014 they published my op-ed entitled “Workers Consciences Deserve Protection Too” (  In the comments sections we have had some interesting exchanges there.

One thought was triggered by one comment.  The length of the sincere religious beliefs of the corporation under the Hobby Lobby decision would seem immaterial.  Under the logic a corporation could be a “Born Again” corporate entity with sincere religious beliefs.  Under the logic, such an entity could have various conversion experiences going from one religion to another.

Under Hobby Lobby this could get really interesting.  For example, a corporation could declare its sincere religious belief is to worship Mammon.  For those not up on their biblical references, Mammon is described at Wikipedia ( as “in the New Testament of the Bible, is material wealth or greed, most often personified as a deity, and sometimes included in the seven princes of Hell.”  Thus, Gordon Gecko of Wall Street fame turns out to be a religious man or at least a disciple – maybe we might call him the equivalent of a Saint – in the Mammon religion for his famous phrase “Greed is good.”

( Update 7/30 – I kid you not – Satanists want to use Hobby Lobby decision to exempt women from anti-abortion laws

(via The Raw Story))

So as a corporate entity RFRA’ed everything as it outsourced and fought every regulation on pollution, civil rights, worker safety, and on and on as they sought to make Earth a living hell, the corporation could invoke its sincere religious beliefs in Mammon as a counter that the Supreme Court seems to be saying should be given some respect.

What an absurd world we live in!  Truly the law of unintended consequences that is usually used by the right to criticize regulations.

(P.S. I started to begin to try to imagine same corporate entity marriages as being a new form of marriage – allowing for religious and secular merger at the same time!  Then subsidiaries become children in this vision and not just fleas on a dog – in Gordon Gecko’s language.)

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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)

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


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, 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”

(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:

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 ( 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:

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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