A Back-and-Forth on the Contraceptive Mandate

by James J Heaney Posted on 13 February 2012

From a conversation (names and identifying information removed):

If the Catholic Church wants to contemplate something that is far more relevant, perhaps they should consider the irony of their outrage against the Obama administration for originally requiring them to provide contraceptive coverage in their employee health insurance plans. While the Church is claiming that Obama is forcing his beliefs on THEM, isn’t that exactly what they are doing to every female employee — even the non-Catholic ones — who work for them? Now that is outrageous.

To which I replied:

If Catholic employers were somehow preventing female employees from spending their salaries on birth control, there would be some irony to their call for religious freedom. It would also be a violation of the free exercise clause — just like the President’s mandate.

And back:

There are religions who don’t believe in voting. If that church employed people who weren’t members of their religion and refused to give employees time off from work to vote (which is required by law), do you think that would stand up to Constitutional muster? What about churches that own housing? What if they want to ignore fair housing laws and refuse to rent to single mothers or gay couples? I think there is a fine line between having the freedom to practice your own religion and denying non-member employees access to contraceptives covered by their healthcare insurance when public policy requires all other employers to provide that benefit.

Here is my final response:

You carelessly use the word “denying,” as you carelessly used the word “forced” in your OP. I have seen this carelessness consistently in all anti-exception arguments, and I come to wonder: is there now a widespread belief in this country that refusal by Entity X to specifically *pay* for Good Y on behalf of Entity Z is “denial” of Product Y to Entity Z by Entity X?

By this standard, it seems to me that handgun purchases must be fully subsidized by the government, because gun ownership is a constitutional right — but this is absurd. A refusal to pay is not “denial.” It is a *refusal to participate*, and implies no curtailment whatsoever on Entity Z’s constitutional liberty to purchase Product Y with his or her own resources. This feels to me like I’m splitting hairs, but I’ve seen the mistake made so often now that I feel like it must be important for reasons that escape me.

Anyway, of your two examples, both would (generally) pass Constitutional muster. Separation of church and state is a two-way street. Indeed, your housing example is specifically contemplated by and exempted in the Fair Housing Act of 1968 (even though the exemption manages to circuitously limit discrimination on the basis of race anyway, assuming religions requiring it are not bona fide religions). The Religious Freedom Restoration Act goes even further in protecting the special sphere of religious practice in this country. However distasteful — and even evil — I find the practice of some heartless and happily hypothetical religious charity denying housing to an otherwise blameless single mom, the First Amendment demands that I defend to the death that charity’s right to do so. Employees have even less ground to stand on, since they were under no compulsion to sign a contract with a religious employer anyway, knowing that that employer could not in good conscience act the way other employers typically act.

It is a little surprising to see so many people who understood this principle (and even took it rather further than the Constitution demands) in the case of Fred Phelps so ready to ignore it in the case of the Roman Catholic Church.

Until now, there has never been a serious possibility of a major, bona fide religion coming into intractable, dogmatic conflict with federal antidiscrimination/entitlement laws, so case law on this point is fairly thin. Nevertheless, the courts have a strong record of upholding the rights of religious organizations to carry out their bona fide missions without undue burden by the state. They have no choice, given the text and history of the Constitution and federal statutes affirming religious liberty in these and similar matters. In light of Hosanna-Tabor’s unanimous opinion, I am frankly astonished the President believes this mandate could possibly survive judicial scrutiny.

That last point is why I am not worried, though I am very much annoyed by the President’s illegal infringement on my former employer’s rights of conscience. The only practical effect of this kerfuffle will be to make President Santorum ten times more likely.

***

The response I received?  “Zzzzzz.”  My interlocutor was and is a friend, but I find it nevertheless amusing to observe that the progressive response to a patent attack on the Constitution and the Church — and this is a progressive who defended Fred Phelps, so it’s not like he can’t see the problem here — is boredom.  Progressivism is not happy with religion, and is happy to turn a blind eye to an attack on its fundamental freedoms as a result.  What happened to the ACLU that once defended the free expression rights of Nazis?

Also, to be fair, my reading of the Fair Housing Act of 1968 is, in retrospect, strained, since the exemption in question seems only to protect religious discrimination on the basis of religion.  The Religious Freedom Restoration Act, however, serves as robust statutory protection for such cases, so long as they pertain to bona fide religious guidelines.

Update 20 Feb 2012: I must have struck a nerve; my friend has unfriended me.  He had always promised to do so to anyone who spoke uncivilly of our President.  I don’t believe I crossed that line.  It’s a shame, but, in this day and age, when politics are raised to the level of religion (and frequently beyond), and the country’s diverse political communities crash daily on the internet, it takes a Herculean capacity to indulge contrary political beliefs enough to allow even a small friendship space to grow.  I’ve never been on the breakup side of a relationship over politics, but I’ve been on the broken-up side often enough that I’ve nearly learned not to take it personally.

Posted in In Conversation, Law | 1,537 Comments

Is Marriage the Right Battle? Are We Fighting it Right?

by James J Heaney Posted on 13 February 2012

From a reader:

Okay, question.  No-fault divorce, contraception, and abortion have all been declared constitutional in the U.S. Do we really have a legal leg to stand on then on the marriage amendment?  If marriage is defined (as it really is now) as “two consenting adults who want some legal benefits for living under the same roof” then there is no reason why everybody shouldn’t get in on this deal and would be discriminatory to deprive one group of that.  We have to trace back all the way to defining marriage as, not just as “between one man and one woman,” which, it seems (based on what little information I have of legal matters), that it hasn’t got much leg on which to stand, but to define it as “taking responsibility for the emotional, spiritual, and physical consequences of sex by placing both restrictions and benefits on those who publicly claim their participation on this fundamental unit of society.”  Shouldn’t that be the definition we fight for?  All this “one man and one woman” stuff makes us sound like stuffy religious bigots.

And then we really need to be fighting existing legislation harder than this new stuff.  Because the new stuff is only a natural and expected consequence of the existence of society’s whole-hearted rejection of connecting sex with consequences (by passing no-fault divorce, abortion, etc.)

Well, that wasn’t a particularly well-formed question.  But I was wondering what your thoughts were, because it’s started bothering me recently with all of this marriage amendment stuff cropping up.  I need to know if I’m picking the right battles here.

I follow your meaning well enough, dear reader.  Now please try to follow mine, because it… winds.

First, if you find a single member of the natural-marriage A-team, from Robert P. George to Maggie Gallagher to Stephen Heaney to Rick Santorum, who is not fighting the contraceptive culture, no-fault divorce, and abortion as hard or (especially in the case of abortion) even harder than against redefining marriage, let me know and I’ll have a sit-down with them.  More broadly, the whole right wing is at war with the “sexual right to privacy” the Supreme Court endorsed to justify some of its more absurd constitutional excesses.  Now, side question: is the ultimate endgame on contraception outlawing it?  Probably not.  But the ultimate endgame on same-sex marriage is probably not outlawing sodomy again.  Having given up on having the state enforce moral values on its citizens, we are satisfied if the state does not foist some other, destructive set of moral values on society and call it good.  With marriage, that (probably) means we let people have sex however they like, but isolate one particularly valuable kind of sexual partnership, call it good, and provide certain benefits.  With contraception, that (probably) means we let people run around with whatever sponges and pills they want (except abortifacients), but we stop subsidizing them through government to the tune of billions of dollars every year, don’t encourage their use in schools, and maybe tax them punitively the way we do cigarettes.  (Geeze, I hope my oppo research never reads this.)

You’ll notice that the first of those endgames, the one about (primarily) homosexual marriage, has already been accomplished by ballot amendment in thirty-one states, and the second one sounds like crazy nonsense that could never happen in this country.  That’s because, as a rule, in politics, it is easier, and sometimes more effective (in the long-term) to appeal to people’s common sense in extreme cases of a bad idea, then work backwards until you eventually delegitimize something that was actually quite popular a few years or decades before.  This is basically the strategy the pro-life movement adopted in 1992 after Casey, and it’s helped us build a culture of life.  We banned partial-birth abortion, we defined feticide as homicide under federal law, we passed out free ultrasounds like candy, and we established in the popular consciousness the idea that the unborn are basically just like babies, only smaller.  Planned Parenthood has been on the defensive for most of your life, fending off restriction after steady restriction.  The rising generation is more pro-life than the last by significant margins.  Being young and not inclined to read a lot of stodgy old documents from the 1970s, you may not realize how remarkable this is.  You’ve seen me criticize the plodding caution of some pro-lifers, but the success of the incremental strategy has been amazing.  Forty years of trying to slow down the cultural train taking marriage off a cliff have finally started to work, just as the engine is teetering on the edge and a few cars have already fallen off.  Now we’re pushing back, not just trying to slam on the brakes, and we’re starting with the battle of the moment in which we find ourselves embroiled: the same-sex marriage question.

This is a question of considerable importance, because its effect is permanent.  It’s still possible for us to roll back no-fault divorce.  The ideas exist, the underlying laws exist, the court precedents exist (more on this later); we just have to convince voters to listen to their own best sense of what marriage is, and realize that it is supposed to be a committed, childrearing man-woman couple, for all the reasons we usually give.  And we are trying!  The natural view of marriage as an essentially sexual, child-oriented complimentary union is still there in the lawbooks and in the culture, in a coma but still breathing.  If you redefine marriage, though, that’s it.  Game over.  There’s no obvious way to come back from that, as a culture, ever, short of Ragnorak.  So we’re not just fighting the gay-marriage front because it happens to be where we find ourselves, or because it’s strategically the easiest fight to win.  We’re also fighting it because if we can’t win this one, right now, in this place and this time, we’re done.  Game over, at least for as far as the eye can see.

We may still lose, of course, for all the reasons you mention.  The train really is right on the edge of the cliff, and all polling indications agree with the logical assumption: that it’s tipping forward.  I’ve even seen Maggie Gallagher wondering aloud whether she’s fighting a battle she can win, or just laying the groundwork for some future generation to start putting the pieces back together.  But we are not, as you wonder, “without a leg to stand on.”  Not entirely, anyway.

Fortunately, not even our black-robed masters on the SCOTUS can take destroy millennia of marriage law and practice in thirty years.  Not completely, anyway!  It has said that the state can’t stop people from contracepting, which is a long way from saying that married people should contracept, and is an even longer way from saying that marriage is just a convenient word for people shacking up together so the government can give them benefits, not a procreative union of mutual responsibility and permenance.  In fact, the only U.S. Supreme Court precedent on same-sex marriage is a Minnesota supreme court decision called Baker v. Nelson, which says just the opposite: “The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.”  It was upheld unanimously and without further opinion by the U.S. Supreme Court.  (The whole thing is worth reading, because it basically summarizes our case, with links to relevant SCOTUS decisions like Loving and Skinner.) This basic view is enshrined in our law, whether explicitly, implicitly, and/or by the legislative record, in every state and at every level.  We’ve done much to weaken it over the past few decades, but we haven’t actually destroyed it yet.  It is how we are defending marriage law in the courts under so-called “rational basis” review (whereby a state must show a minimum “rational basis” for “discriminating” against a “suspect class,” in this case homosexuals).  We frequently win, and always should.

Now, does the culture view the definition of marriage as “two consenting adults who want legal bonuses for living under the same roof”?  Certainly it does in many places, perhaps most.  This happened for the reasons you describe, and it seems to me that it’s still largely getting worse.  It’s pretty incredible to me that we are still winning marriage definition referenda, actually.  But the law does not say that.  Yet.  The law still remembers what marriage is all about, and we can still build a winning case out of that by kind appeals to voters’ good sense.

Hopefully, that’s a first step toward winning skirmishes on all those other fronts as well.  And hopefully our victories on the other battlefields contribute to a stronger culture of marriage on this one, too.

Not a totally satisfying answer, I know, but that’s because politics is not a totally satisfying sphere of business.  To wit: we shouldn’t just fight for “one man, one woman,” because we should emphasize why one man / one woman marriage is the only right marriage for the civil government to recognize (if any).  Eventually, that is the definition (if any) that we want to put in the lawbooks, though, because statutes don’t give reasons, just definitions, and it’s catchy for the bored supporters.

I am falling asleep at keyboard and have been for fifteen minutes, so I’m calling this a night and sending this unedited.  I hope it’s helpful, and if unclear at any point blame the sleeps and ask for clarification.

Posted in Law, Marriage, Mere Opinion | 216 Comments

Justice Ginsburg Should Resign

by James J Heaney Posted on 7 February 2012

She should resign.  She doesn’t have to.  There’s no legal or moral obligation for her to do so.  But I don’t believe it is appropriate or wise to have someone maintain final interpretive authority over the Constitution when she doesn’t really believe the Constitution is all that great or suited to modern needs or even the best in the world.

Story:

“I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012. I might look at the Constitution of South Africa,” says Ginsburg, whom President Clinton nominated to the court in 1993. “That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. … It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution.”

No one should have the authority to formulate judicially binding interpretations for a document he or she would prefer to radically reshape.  Human nature being what it is, that’s just asking for poor judicial reasoning and legislation from the bench — which is exactly what we’ve seen from Justice Ginsburg, from Stenberg to Ledbetter.  The South Africa Constitution has a vastly more powerful judiciary, a much larger constitutionally-mandated bureaucracy, and one of those Canadian-style declarations of human rights with explicit carve-outs to suppress politically incorrect speech.  (She goes on to praise Canada and Europe over America once again.)

Again, she doesn’t need to resign.  There are no grounds for impeachment here.  This is not “bad behaviour” for constitutional purposes.  But this is going to get lobbed at every decision she ever writes from now on, casting (reasonable) doubt on her legitimacy.  It would be good for the Court, good for the country, and good for her if she did.

And then there’s just a bunch of sloppy thinking.  Any Justice should know better than this:

We are still forming the more perfect union…  The genius of the Constitution, I think, is that it has this notion of who composes ‘We the people’. It has expanded and expanded over the years so now it includes people who were left out in the beginning. Native Americans were left out, certainly people held in human bondage, women, and people that were new comers to our shores. “

[…]

The wisdom of the framers was they wrote in general terms.  So they wrote, “no person shall be denied due process of law”.  What was due process of law in those times? It was some pretty awful punishments, and, today, certainly we would not consider proper.  The provision specifically dealing with punishment is there shall be no cruel or unusual punishment.  Well, way back in the 18th century, twenty lashes was not considered cruel or unusual.  Today it would be unthinkable.  So these grand general ideas that become more effective over the course of two sometimes turbulent centuries.

I won’t weary you by an enumeration of errors; they are no doubt obvious. She seems like a very nice, soft-spoken elderly lady, but she is not a judge of the caliber the Constitution requires if we are to survive the coming years.  She should step down.

Of course, it would be best for her to wait until President Ron Paul is in the White House, so he can nominate her successor.

Posted in Law, Mere Opinion | 218 Comments

Romney: Still a Second-Rate Candidate

by James J Heaney Posted on 6 February 2012

Gov. Romney’s entire campaign pitch is, “Sure, I’m boring, vacuous, and not particularly conservative, but I have business experience that will appeal to independents, and I’m electable, so I can win in November.”

News flash: Now that independent voters have gotten to know him, Gov. Romney is now losing to Pres. Obama by six points in polling (51% to 45%).  His favorability ratings have tanked since New Hampshire, and he is now running with a net favorability rating of minus-18.  This number is getting worse, which is incredible, and it is getting worse the fastest among the independent voters he is supposed to be able to carry.  Only Gingrich’s electability numbers are worse.

Compare this to Sen. Santorum’s favorability, since he is famously supposed to be the guy whom social conservatives love but can’t possibly get elected president.  Santorum’s favorability sits at minus-6, about the same as President Obama’s.  Santorum’s number is slowly but steadily improving as he becomes better known, especially among working-class independents — that is, the guys Romney needs to pick off from the Democrats to win November, who happen the guys who hate Romney the most.  Romney’s strength is in the coastal states, which Republicans are not going to carry in the fall anyway.  Santorum is strong in the Midwest, where Republicans must win in order to reach 270 electoral votes, and there is good reason to believe he can deliver the critical, high-EV states of Ohio and Pennsylvania.

(In fairness, Romney may be able to bring home Michigan and Nevada, and just proved he can perform in Florida.)

The “hold your nose and caucus for the electable one” conventional wisdom was wrong on Bob Dole, wrong on John Kerry, wrong on McCain, and it is looking particularly wrong on Romney.  Right now, Santorum seems most electable, but even Ron  Paul is doing better on the basic favorability ratings than Gov. Romney.

Vote the guy you’d actually want to see running the nation.  Trust the American people to come around to your point of view.

Posted in Analysis, Horse Race, Pith | 2,052 Comments

REACTION: Personally Opposed, but Sleeping with the Enemy

by James J Heaney Posted on 6 February 2012

I am rather a fan of Dr. Heaney, who has a new piece in The Public Discourse today.  Money quote:

Those in favor of such an expansive version of liberty, and thus an expansive version of marriage and sexuality, seem to recognize this fact and use it to their advantage over those who think that civil law and ordered liberty are grounded in some truth about human beings and moral law. This latter group continues to believe that there are such things as human rights that preexist the civil law, including rights to freedom of conscience and worship. Thus, they tend to respect these rights in those with whom they disagree—that is, they tend to a certain level of tolerance.

The former group, while ostensibly extolling tolerance, cannot tolerate that which threatens their own practices of liberty, including points of view that oppose their own. Such thoughts become the crime of hate speech. Many across the globe, and an increasing number in this country, are facing the wrath of these lovers of pure liberty (for themselves).

Remainder here.

I wonder, though, whether Dr. Heaney is not a little too hard on the personally-opposed-buts (henceforth “POBs”).  I’ll give the full context, but the emphasized section is the bit to which I take minor exception—a quibble, really:

…an accusation [of insincerity] rankles the fervent “personally opposed” devotee, because he sincerely believes that his is the proper course of action. His argument about marriage, for example, tends to look something like this: Civil marriage is completely different from religious marriage. If a religion thinks it is proper to keep marriage between one man and one woman, that is no concern of civil authorities. Similarly, religion has no authority to say what civil marriage is. Since it is a purely civil affair, it must be ruled by purely civil laws, especially the Constitution’s Equal Protection clause. The push for same-sex unions and polygamy, then, is just a case of providing equal rights.

Let us leave aside the question of whether these statements accurately reflect the faith tradition in which our “personally opposed” friend claims membership. (Catholic teaching, for example, holds quite the opposite: that as a natural institution, marriage is the union of one man and one woman.) If you are truly opposed, yet you truly believe that the Constitution will not permit your position to be enshrined in law, then your task is to change the law—including, if necessary, the Constitution—to reflect what you believe to be the truth for human beings and the best for society. At the very least, your duty is to not exacerbate the situation.

I will stay as close to his original language as possible.  It appears that Dr. Heaney is imposing a positive moral duty on all citizens to change the law to reflect what each believes to be the truth for human beings and the best for society.

I’m sure all of us will agree with him—to a point. Heaney goes on to remind us all of the essentially moral nature of the crusade against slavery, despite the fact that Negroes had no legal claim whatsoever to equal protection under the law, and the further fact that slaveholders’ property rights were clearly protected by law and precedent, including the Constitution. This led William Lloyd Garrison, my favorite abolitionist, to publicly burn the Constitution in 1844. The nation ultimately recognized the natural rights of man which pre-existed, informed, and superseded even the Constitution, and established a legal order that reflected the natural order in that regard. Huzzah. There is much legitimate argument over the morality of the Civil War and its incidentals, including even the particular manner of abolition, but anyone who questions the abolition of slavery in itself has about the same moral legitimacy as a neo-Nazi.

But Heaney’s claim seems to be much broader than that. We are obliged, on his account, to create a society that encourages and reflects the truth for human beings. This would seem to embrace not only the truths of natural law, but the truths of religion. Here is where I see some difficulty. While Dr. Heaney’s Catholic Church embraces the universal right to freedom of religion and liberty of conscience, the Church has no problem with the civil establishment of religion. Indeed, the Church, largely pre-existing the modern European nation-state, has been either sole sovereign or formally established religion for much longer than it has been a merely spiritual power. It remains the established religion in a number of jurisdictions.  The Catechism’s teaching on religious liberty fits neatly into this schema.  If we are quite serious about the law reflecting the truth of the human condition, then should Catholics not aim to establish Catholicism as the taxpayer-supported, state religion from which conclusions about human nature in light of Revelation might be drawn?  Should not Protestants aim to establish Protestantism, and Muslims to establish sharia?

Dr. Heaney’s position, if extended without limitation, as his language implies, would seem to justify his friend’s complaint that his position is incompatible with multi-faith democracy and the Establishment Clause of the First Amendment.  It suggests, moreover, that religious believers ought to seek to bind all citizens to all their beliefs, including those grounded in unanswerable revelatory claims, not just those ultimately rooted in natural law reasoning.  This would make reasonable a law supported by Jehovah’s Witness voters outlawing blood transfusions, or a Jewish neighborhood prohibiting local grocers from selling pork products.  Such laws may be entirely Constitutional, but they are antithetical to the sort of pluralistic society America has carefully constructed.  To coin a phrase, revelatory claims end at the other guy’s nose.

Now, Dr. Heaney friend’s complaint is nonsense with respect to marriage law.  The argument against same-sex marriage finds good grounding on the same natural law tradition that abolished slavery and gave women the vote.  Nevertheless, in the marriage debate, where same-sex marriage opponents are frequently and loudly accused of imposing theocracy and undermining the Constitution, it is critically important that we avoid giving any appearance of doing precisely that.

My other quibble with this piece is that it did not include a single reference to Captain Louis Renault, the POB’s POB.

Posted in Reads & Reactions | 215 Comments

The Real Lesson of the Komen Kerfuffle

by James J Heaney Posted on 3 February 2012

As I argued in my last post, abortionists and their supporters have never faced the reality pro-lifers have lived for forty years: there has never been a serious attack on their legitimacy.  What we learned today is that the dedicated supporters of legal abortion, while less numerous than the dedicated supporters of the right to life, are, in fact, just as passionate about their cause as we are.  As pro-lifers have made incremental gains against Planned Parenthood over the past twenty years without serious public backlash, this had fallen into some doubt.  The Komen debacle made it clear: when they’re up against the wall, it isn’t just Cecile Richards who’d sooner die than lose legal abortion; it’s the people you’re Facebook friends with, too — and their hyperbole is as sincere as ours.  They hate the pro-life cause, just as we hate abortion.  They believe with all their heart and soul that we are “anti-choice”, and that abortion, while unfortunate, is a necessary evil.  They believe, above all, that they are under attack, that even the very modest political gains of pro-lifers to date gravely threaten the Constitution and the sovereignty of the Southern sta — er, of women.

I had hoped that the pro-abortion rights crowd was, for the most part, basically indifferent, when you got right down to it.  This was false.  They were confident, not indifferent.  Now we are encroaching on their most sacred principles, inch by blessed inch.  They will not–and cannot–stand for this. 

How do you imagine the abortion fight is ultimately going to end?  Roe gets overturned, the 14th Amendment is clarified, and Cecile Richards shrugs, calls it a day, and agrees to respect the law while fighting to overturn it?  While there are pregnant women out there who need abortions right now?  Not likely. If I had a Civil War Doomsday Clock, it would be about five minutes closer to midnight right now.  My note about fighting battles to win wars at the end of last post will prove, I fear, not entirely metaphorical.

EDIT: More.

Posted in Pith | 826 Comments

Komen vs. Planned Parenthood: A Win-Win-Win

by James J Heaney Posted on 3 February 2012

Both sides are declaring victory in the landmark case Susan G. Komen for the Cure vs. Planned Parenthood of America.  Well and good.  Both sides won. 

Pro-lifers hold the battlefield: Komen is never going to give money to Planned Parenthood again (although local affiliates may).  We can participate in their 5K runs and so forth with a clean conscience now.

Planned Parenthood, for its part, won the war of perception: the news sphere is reporting that Komen “reversed” or “backed down” from its “controversial” decision, partly because that’s what the press wants to believe, but mostly because that’s what the press and Planned Parenthood want everyone else to believe.  James Taranto nailed it yesterday:

Planned Parenthood’s bitter campaign against Komen–aided by left-liberal activists and media–is analogous to a protection racket: Nice charity you’ve got there. It’d be a shame if anything happened to it. The message to other Planned Parenthood donors is that if they don’t play nice and keep coughing up the cash, they’ll get the Komen treatment.

Obviously, the mob doesn’t like it when somebody stops paying their monthly dues.  They threaten, harrass, do violence, and generally make life miserable (or death, as the case may be) for their erstwhile business partner.  But they don’t need the money.  If the partner gets out successfully, that’s that.  What the mob absolutely cannot afford is for there to be a public perception that it is possible to get out.  The mob most maintain the appearance that, if you cross them, you won’t last five minutes before you have to back down — or you’ll end up dead.

Planned Parenthood is a billion-dollar organization.  This $700,000 is a drop in the bucket; they get 360 times that much in government dollars every year.  But Planned Parenthood is not popular these days.  The pro-life boycott of its supporters are making themselves a nuisance.  Organizations are uneasy with PP as its nasty underbelly is increasingly exposed, and now it’s under Congressional investigation.  It’s politically motivated, but it’s still a big deal.  There’s unrest in its big public donors’ ranks.  And then Komen breaks off!  The most popular and widely-recognized women’s health group in America!  If Komen were allowed to leave, or was even perceived to have broken off ties relatively painlessly, the strategic damage to PP would have been incalcuable.  So they bided their time, marshalled their forces, and hit back, in a surprise attack, with everything they had.  Komen was unprepared, incompetent, and completely inexperienced in fighting this kind of political PR war, and was routed utterly.  Popular perception is that PP has both beaten Komen to a pulp and forced it back into the happy abortion family like a battered wife.

Oh, and women win, too, since the money will now be used for more effective anti-cancer measures.  But that’s a bit of a “duh,” so I won’t dwell on it.

Can we get mad with Planned Parenthood for this?  Only a little. 

The officially advertised sense of entitlement over in abortionland is breathtaking, but nobody in abortionland really feels that Planned Parenthood is entitled to Komen funds, any more than Komen cut funding just because of Congress.  I mean, PP doesn’t even do mammograms, much less breast cancer research.  All the grant did was provide funding so that nurses could do free breast exams.  There are not fancy-pants technological breast scans.  They’re the “self-exams” you learned in 9th grade health where you feel around for a lump for a few minutes.   (They also cost no money, take very little time, and PP nurses already know how to do this, so I’m a little confused as to what PP is spending a million dollars on.  Overtime pay?)  If something came up, they’d give you a referral to a clinic where, unlike Planned Parenthood, actual medicine is practiced.  If Komen had taken the $700,000 out of its joint accounts with Planned Parenthood, piled it up out in the bank parking lot, and burned it all, this decision would not have had any obvious effect on women’s health.  As it stands, Komen is not burning it, but redirecting the funds to other sources that actually diagnose and treat women with breast cancer.  They’re using it more efficiently.  This is good for women.  PP and its supporters know that.  The backlash wasn’t about Komen killing women or whatever.  It was because it is terrifying to pro-choicers that their very legitimacy as a public interest group is being questioned, and they felt they had no choice but to hit back against that idea with everything they had.

This may be difficult for pro-lifers to understand, because pro-life organizations have never been considered part of the public interest no matter how much non-profit good they do for unwed mothers and the like.  We’ve borne the brunt of a forty-year media assault.  We’ve never had “legitimacy” to lose — just love, prayer, and donations.  Planned Parenthood, on the other hand, has taken government money in the hundreds of millions of dollars for 42 years, and is generally acclaimed by a fawning media as a critical contributor to women’s health in the United States.  An analogy pro-lifers might understand: suppose the government threatened to pull all funding from successful, decades-old Catholic adoption agencies unless they agreed to place children with gay couples on a non-discriminatory basis.

Oh, wait.

We fiercely defend the Church’s legitimacy in the public space just as Planned Parenthood did.  As we should!  As evil as Planned Parenthood is, as much as this resembles a mob-style shakedown, I don’t believe we have grounds to criticize them for their response.  It was tactically sound, brilliantly executed, and only a little disingenuous.  Indeed, we should take lessons from the abortionists on their incredibly effective mobilization (and motivation) of their entire base in well under twenty-four hours.  Right-to-life organizations, which are invariably impoverished, poorly organized, technologically behind the curve, and operating largely independently of one another, could never dream of this kind of response as presently constituted.  Despite the fact that we crushed the abortionists in actual volume of response, it took us days to reach that point, as our message had to go out slowly through, basically, Facebook.  Our messaging was completely uncoordinated, and most of the “news” updates our supporters received was from the virulently anti-life mainstream media and the Huffington Post.  Once again, where was the NRLC on this?  Where, for that matter, was my favorite group of recent days, Personhood USA?  Only AUL kept up steady messaging about this from start to finish.  Jill Stanek cannot fight the entire billion-dollar abortion megaphone on her own here, people.  The mere fact that we have a just cause does not win us the war: we also have to fight the battles!

Posted in Mere Opinion | 131 Comments

Re: Were Early Republicans “Conservative”?

by James J Heaney Posted on 1 February 2012

From a Facebook discussion I’m having:

How are you defining “conservative,” James? I’ve done a lot of reading on the 19th Century, and the early Republican Party has always seemed mighty liberal to me. You know, “Radical” Republicans, valuing civil rights over property rights, redistributing wealth–40 acres and a mule and all that.

I should probably start by linking back to my first post, which sketches out my basic understanding of what conservatism is all about.  (And I should probably apologize to Brian for not yet replying to his comment.)  Now we can go from there.

I, too, have done much reading on 19th century politics, especially surrounding the War.  The only Republican president I ever saw who was more conservative than Mr. Reagan was Mr. Lincoln — fine though the line that he was forced to walk.  His fealty to the rule of law, and especially the text of the Constitution; his sturdy resistance to the Democratic doctrine (championed by Steven Douglas and the Dred Scott Court, which is now nearly ubiquitous and protected by Cooper v. Aaron) that Supreme Court rulings are binding on all constitutional actors in every respect; his steady prosecution of a bloody and wearisome war despite quagmire, incompetence, and peace riots in the streets of New York, simply because it was his necessary duty; and, above all, his reluctant determination to grant equal protection of the laws to *all* persons, even when inconvenient… all these signify a president who is living out conservative principles under the most trying circumstances imaginable. Lincoln might easily have used the war to subvert or undermine the Constitution, assail federalist principles, and establish federal police powers, as Wilson would do during World War I — but he didn’t, because, even when he feared that he might have no choice, Lincoln loved that document and all the principles it stood for.  It sings through all his writings, from the debates with Douglas to the Cooper Union address on to the First Inaugural.  Package that loyalty to the Law up in a man with a cool head, a sharp, quiet wit, and a deep humility and reverence toward the Almighty (seen best in his Second Inaugural), and you’ve got a man I’d love to see atop the GOP ticket today.

Ah, well.  So much for that.

I must admit myself considerably sympathetic to the radicals in Congress, though.  As you say, they campaigned quite ruthlessly so that all men might be treated equally under the law — the basis for the age-old Republican belief in maximizing equality of opportunity before (and, when necessary, against) equality of outcome.  They enforced this through a military occupation won by right of war — a right I don’t think political liberals have recognized since at least Armistice Day.  (It was under the auspices of military conquest that General Sherman instituted his short-lived policy of “40 Acres and a Mule.”  Though never enacted by any Congress, it would have been no sin against property to seize that owned by the vanquished and yield it to their slaves.  Still, Lincoln thought it unjust and imprudent, and I must pay him some deference.)

In short, early Republicans were social conservatives, obsessed with affirming the equal right of every human being to rise or fall on his own two feet, equally protected under the law.  They were foreign policy conservatives, willing to prosecute a war that was extraordinary in its extravagant expense, bloodletting, and the national agony it engendered, despite the fierce opposition of more short-sighted protesters — and they were willing to prosecute the occupation for as long as necessary. They were obsessed with the Constitution and its particular text, obeying that text despite the less studied broad assertions of the secessionists (and the Northern Democrats), even when that meant ignoring the unconstitutional orders of the Supreme Court when directed against the co-equal executive and legislative branches.  And it so happens that they were economic conservatives, too, defending property rights in the territories and opposed to large deficits and any but the most basic spending on national improvements like roads and the Transcontinental Railroad.  (Although, back then, EVERYONE was an economic conservative compared to everyone today save Ron Paul.)

About the only place a modern Republican would part ways with the GOP platforms of 1856, 1860, or 1864 would be on legal immigration, and then only because there is a great deal more *il*legal immigration now than there was immigration of any sort at the time.

I know much less of the GOP during the Gilded Age and the Progressive Age.  I can say that I am certainly disappointed with President T. Roosevelt, who ultimately broke away from the party anyway, but I am generally fond of President Coolidge.  I am uncertain whether I think better of modern free-trading conservative doctrine or old high-tariff conservative doctrine, but, either way, there’s clearly been a change in tarriff policy over time.

Our great sin as a party was allowing that scumbag Nixon to adopt his “Southern strategy” to win votes along purely racial lines. It was a disgusting betrayal of ancient conservative principles — but, then, betraying conservative principles, from wage controls to Watergate, was more or less Nixon’s metier.  (Not that Watergate was a “liberal” thing to do.  No, it was just a scummy thing to do.)  It has cost us far, far more than the exactly nothing we gained through the fifteen years between the Civil Rights Act of 1964 and the election of Ronald Reagan, and lost us (quite rightly!) the loyalty of a demographic group conservatism has otherwise done nothing but champion from its rebirth in 1856 down to today.  One day — perhaps as progressives continue to use the courts to deprive the unborn of human rights, endeavor to nationalize everything from Boeing plant locations to lightbulbs, and usurp the institutions of religion by mandates and broad redefinitions of institutions in which the State has no prior right to interfere — we may hope to win those voters back.  Until then, we have penance to do.

Posted in Mere Opinion, Reads & Reactions | 88 Comments

READS: The Definitive Secular Gay Marriage Discussion

by James J Heaney Posted on 30 January 2012

I am sick to the teeth of reposting this every few weeks, so I am going to put it here now that I have a blog and just link to it.

In early 2011, Robert P. George, a prominent social conservative from Princeton, plus some colleagues of his, published “What Is Marriage?”, which is generally considered the definitive case against same-sex marriage from a non-religious perspective.  (Note that “definitive” is not the same as “conclusive.”  Many conservatives I know would quibble with George on a number of points both minor and major.)

Here is “What Is Marriage“: https://www.harvard-jlpp.com/wp-content/uploads/2011/08/GeorgeFinal.pdf

That paper kicked off an EPIC marriage debate among online intellectuals.  It is ALL worth reading — both sides make serious arguments.  If you want to actually have a conversation about gay marriage, rather than just resorting to your Bible or to calling all your opponents hateful bigots, this is a great place to start.  Although I have sorted them, I have tried to keep the conversation in chronological order, since the various critiques build on each other at times:

Kenji Yoshino’s critique (I): https://www.slate.com/id/2277781/
Robert George’s reply: https://www.thepublicdiscourse.com/2010/12/2217

Andrew Koppelman’s critique (I): https://balkin.blogspot.com/2010/12/what-marriage-isnt.html
Robert George’s reply: https://www.thepublicdiscourse.com/2010/12/2263

Barry Deutch’s critique: https://familyscholars.org/2010/12/21/what-is-bodily-union-a-response-to-what-is-marriage/
Robert George’s reply: https://www.thepublicdiscourse.com/2010/12/2277

Kenji Yoshino’s critique (II): https://www.slate.com/id/2278794/
Robert George’s reply: https://www.thepublicdiscourse.com/2011/01/2295

Andrew Koppelman’s critique [of Yoshino]: https://balkin.blogspot.com/2010/12/that-elusive-timeless-essence-of.html
Robert George’s additional comments: https://www.thepublicdiscourse.com/2011/01/2350

That’s the basic discussion that took place at the time.  I also recently found an earlier, tangentially-connected exchange from about a year earlier:

Andrew Koppelman’s paper: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1544478
Robert George’s critique: https://mirrorofjustice.blogs.com/mirrorofjustice/2010/02/more-on-koppelmans-paper.htm
Andrew Koppelman’s defense: https://balkin.blogspot.com/2010/02/koppelman-vs-george-on-same-sex.html

George later posted two further articles on the subject of marriage at Public Discourse:

“Marriage and Procreation: Avoiding Bad Arguments“: https://www.thepublicdiscourse.com/2011/03/2637
“Marriage and Procreation: The Intrinsic Connection“: https://www.thepublicdiscourse.com/2011/03/2638

It’ll take a smart person the best part of a day to do all this reading, but it’s crucial to do this or something like it if you’re on *either* side of the debate and want to have a serious conversation.

I should note that I don’t think George is 100% right.  His defense of marriage for knowingly infertile couples doesn’t really add up from a civil standpoint, in my opinion.  But, like I said at the outset, this is a starting point for intelligent discourse, not a conclusion.

And, yeah, this is kinda the Robert P. George show.  If you want an introduction to the issue from a secular pro-natural marriage perspective, that’s where you go.  You want more complexity, or to deal with specific objections within the two broad camps, you dig deeper.  But this is an overview.

Enjoy!

Posted in Reads & Reactions | 1 Comment