Thursday, February 27, 2014
Cops and Muslims
The Law is the true embodiment
Of everything that’s excellent.
It has no kind of fault or flaw,
And I, my Lords, embody the Law.
—Sir William Schwenck Gilbert, Iolanthe
One of the first questions law students are taught to ask is: what does the case stand for? The case of Hassan v. City of New York stands for the proposition that what you don’t know can’t hurt you. Therefore, we learn, you cannot collect damages from a bad actor of whose bad acts you were unaware even though they affected you. But if someone else discloses what a bad actor is doing that affects your rights, the person who let the cat out of the bag may be responsible to you for any injury that bad actor caused you. Since we now live in a time where we are learning on a daily basis of the unwarranted intrusion of the government in our private lives, it is useful to keep relevant court decisions in mind and to understand this legal precept. The other thing the Hassan case teaches is that some judges reason in peculiar ways.
The Hassan case was brought by assorted Muslims and Muslim groups who learned, through a story published by the Associated Press, that ever since 9/11 they have been the subject of surveillance by the New York City police department because of their religious affiliation. Following 9/11 the police department thought Muslims might be planning to do more bad things even though only a very few were involved in the events of 9/11. People who were targeted by the department and became plaintiffs in the lawsuit included a decorated Iraqi war veteran, the owners of a grade school for Muslim girls and a coalition of Muslim mosques. Because they were Muslims and those involved in the 9/11 attack were Muslims the police department thought it made sense to keep an eye on them.
In the complaint that was filed by the plaintiffs, several examples were given of the harm that the plaintiffs had sustained once news of the tactics of the New York City police department’s surveillance operations became public. Among the losses were diminution in property value of the property that was identified as a Muslim school for girls, loss of revenue by businesses that were identified as having been targeted and diminished employment opportunities for individuals who were identified as being monitored by the police.
New York City asked Judge William J. Martini to dismiss the complaint and on February 20, 2014 he did so. The only part of his decision that is of interest to us is his conclusion that the harm, if any (and he declined to say whether or not the plaintiffs had suffered any harm) was not the actions of the police department in conducting what many would say was the clearly illegal surveillance of the Muslims, but rather the disclosure of the surveillance by the Associated Press. It is a brilliant piece of sophistry.
Judge Martini observed, quite correctly, that so long as no one knew of the police department’s illegal activities no harm was suffered by the objects of its surveillance. That is the sort of logic that would immediately appeal to the NSA but had little appeal, as we now know, to people like Dilma Rousseff, the president of Brazil and Angela Merkel, the Chancellor of Germany. At the UN General Assembly, President Rousseff accused the NSA of violating international law by collecting personal information on Brazilian citizens and the Brazilian diplomatic missions. Chancellor Merkel was equally upset. She told President Obama that the tapping of her cell hone was “like the Stasi,” the East German secret police. Neither woman expressed any anger at Mr. Snowden although as Judge Martini would have told them had they asked, it was he and not the NSA at whom they should be angry. But for Mr. Snowden’s disclosures they’d have been unaware of the fact that they were being spied on and, therefore, would have had no reason to be upset.
In dismissing the Muslims’ claims Judge Martini said: “None of the Plaintiffs’ injuries arose until after the Associated Press released unredacted, confidential documents. Nowhere in the Complaint do Plaintiffs allege that they suffered harm prior to the unauthorized release of the documents by the Associated Press.” When they didn’t know they were being illegally targeted, the Muslims suffered no harm he concluded. Applying his logic to the facts of the case, he apparently thinks the Muslims could sue the Associated Press and allege that its disclosure of the illegal acts of the government rather than the acts themselves were the evil for which the plaintiffs should be compensated. President Yousseff and Chancellor Merkel should be mollified by the judge’s reasoning and should join those in Congress who vilify Mr. Snowden and call him a traitor for having disclosed what many would consider felonious activity by a government agency. Like the Muslims, however, a few of us will still be puzzled by the reasoning of those in Congress and the reasoning of Judge Martini.
Thursday, February 20, 2014
Gays and Rights
It is never too late to give up our prejudices.
—Henry David Thoreau, Walden
There are things to be grateful for. Our bigotry is much more civilized than bigotry found in other countries. Just compare.
In Abuja, Nigeria in early February, a mob attacked young gay men, dragging some of them from their homes, beating them with clubs and whips and shouting that it was “cleansing the community.” When the victims were turned over to the police, they were given further beatings. The mob was inspired to attack by a new law that was signed by President Jonathan Goodluck, The law provides for a 14-year prison sentence if a person is convicted of being gay.
In Uganda, President Yoweri Museveni has promised to sign a new piece of legislation that prescribes life sentences in prison for acts of “aggravated homosexuality.” Among the acts proscribed are repeated sexual acts among consenting adults of the same sex. The also law applies to Ugandans living abroad who may be extradited if they violate its terms.
Russia, too, has recently taken steps to protect itself from the scourge of what its gay (as in cheerful and of unfailing good humor) president, Vladimir Putin, objects to. In 2012 in Moscow, city and district courts upheld a Moscow ban on gay pride parades. The ban is to remain in place for 100 years. The ban seems harsh until one realizes that it was imposed as a courtesy to the gay community. It takes a long time to organize a gay pride parade and by letting the community know that the ban will be in effect for 100 years the gay community will not waste its time planning such an event. On June 30, 2013 President Putin signed a bill banning “propaganda of nontraditional sexual relations to minors” subjecting violators to arrest and fines. Another permits police to arrest and hold for up to 14 days, tourists suspected of being gay or pro-gay. All of which brings us back to the United States which, as I said, is much more civilized in discriminating against gays.
Consider Kansas. It just decided, at least for now, to tone down its anti-gay legislation. On February 12, 2014 the Kansas House of Representatives overwhelmingly passed House Bill 2453
known as the Religious Liberty Bill. Drafted by bigots whose intelligence is defined by their beliefs, it was a bit hard to understand. The bill provides that “if it would be contrary to the sincerely held religious beliefs of [an] individual or religious entity regarding sex or gender” such a person or religious entity shall not be required by any governmental entity to, among other things: “provide any services, accommodations, advantages, facilities, goods, or privileges. . . related to (sic) or related to the celebration of, any marriage, domestic partnership, civil union or similar arrangement.” The bill passed the Kansas House on February 12, 2013 by a 72 to 49 vote. It looked like it was headed to similar success in the Kansas Senate until the president of the Senate raised concerns as to how it might impact public safety if firemen with religious beliefs went to a burning house occupied by a gay couple. Although it is unclear how putting out a fire is “related to the celebration of, any marriage, etc” she felt that language could in fact impact public safety and firemen unwilling to provide services to married gay couples might decline to extinguish the blaze. As she explained: “I believe that when you hire police officers or a fireman that they have no choice in who (sic) they serve.” . A close reading of the bill suggests that its impact on public safety is the least of its problems. Kansas is not, of course, alone. Bills in Ohio, Mississippi, Arizona, Idaho and Oklahoma permit people to assert religious freedom defenses if sued by gays whom they refused to serve.
Bigotry is not restricted to legislatures. U.S. News and World Report had a picture of E.W. Jackson, a former candidate for lieutenant governor of Virginia, addressing a group of demonstrators in front of the federal courthouse in Norfolk, Virginia. He was lamenting the fact that a federal judge had struck down Virginia’s law banning same sex marriage. Mr. Jackson is black and an enthusiastic supporter of laws that discriminate against gays. He probably is too young to remember when Virginia said it would have been a felony for Mr. Jackson to marry a white woman. Had he done so he and his wife could have been sentenced to prison for up to five years.
Ted Cruz, the United States’ answer to Russia’s Vladimir Putin and Uganda’s Yoweri Museveni has introduced a bill in the United States Senate to permit states to define marriage any way they see fit. As Mr. Cruz explained, the bill “respects the definition of marriage held by the people of each state and protects states from the federal government’s efforts to force any other definition upon them.” Mr. Cruz does not think the U.S. Constitution should keep people from discriminating against their citizens if that’s what a majority of their citizens want. Kind of the way Virginia did it before the U.S. Supreme Court said blacks could marry anyone they wanted to marry. Mr. Cruz would probably have opposed ending the ban. He’s for what he believes even if it tramples on a minority-kind of like presidents Goodluck, Museveni, and Putin.
Thursday, February 13, 2014
God and The Affordable Care Act
Nuns fret not at their convent’s narrow room.
—William Wordsworth, Nuns Fret Not
Many readers have asked me to explain matters legal and, in this case, ecclesiastical. I respond to their requests with humility and an awareness that when it comes to matters ecclesiastical I am more of a critic than a teacher. Nonetheless, I am grateful for the confidence readers show in my good judgment in asking me to explain the legalities involving the “Little Sisters of the Poor Home for the Aged.”
When Congress was considering enacting the Affordable Care Act, many groups of nuns were enthusiastic supporters. Indeed, prior to the act’s adoption, fifty-four nuns who identified themselves as heads of major Catholic women’s religious orders in the United States sent a letter to Congress urging adoption of the Affordable Care Health Act. They said, “We have witnessed firsthand the impact of our national health care crisis, particularly its impact on women, children and people who are poor. . . .Congress must act.” The leader of the Little Sisters of the Poor was not among the signers of the letter.
The Little Sisters is a Denver based religiously affiliated, nonprofit charitable organization that operates nursing homes across the United States. In addition to its charitable work it has been engaging in litigating with the United States government over a matter that has no substance but has given it a high profile. Many nuns can say they’re in more or less constant contact with God, but few can say, as the Little Sisters can, that they’ve also been in contact with the U.S. Supreme Court and that that body granted their petition in a more tangible way than God usually does.
The litigation in which the formerly petulant Little Sisters are involved pertains to requirements to which they are subject under the Affordable Care Act (ACA.) Under the ACA, religious organizations that object to providing contraceptive coverage to employees must sign an EBSA Form 700-Certification. The representative of an organization who signs that form certifies that “on account of religious objections, the organization opposes providing coverage for some or all of any contraceptive services that would otherwise be required to be covered; and the organization is organized and operates as a nonprofit entity; and the organization holds itself out as a religious organization.” The insurance company or administrator receiving the form then arranges for contraceptive coverage to be made available to female employees of the entity.
The nuns began the lawsuit because of instructions that the nuns’ lawyer, Mark Rienzi,said that the nuns had received from God. God, who is unfamiliar with legal niceties, instructed the nuns that they could not sign EBSA Form 700-Certification. That was because God thought if they signed, the company administering the nuns’ employee benefit plan would be required to furnish contraceptive coverage to the nuns’ employees. God did not realize that the Employee Retirement Income Security Act of 1974 (ERISA) says that no government regulation of an employee benefit plan run by a religious organization is permitted. The nuns’ plan is administered by the Christian Brothers. Under ERISA the Christian Brothers are not required to provide contraceptive coverage to employees who work for the nuns who, having taken vows of chastity, have no need of contraceptives anyway, and little sympathy for those who do. That exception did not, however, satisfy the petulant Little Sisters whose petulance was not overcome simply because they could get the result they claimed to want by signing the form. They went to the Supreme Court to obtain a waiver from the need to sign the form to avoid penalties that would otherwise be assessed against them for refusing to provide coverage to their employees. The Supreme Court temporarily blocked the enforcement of any penalties on the Petulant Little Sisters pending the outcome of a trial on the merits.
The no-longer petulant Little Sisters were thrilled. There were pictures of the contraceptive free Little Sisters cheering and raising their hands in gestures of gratitude to God (and the U.S. Supreme Court) for having heard their prayers and relieving them of the need to sign ESBA Form 700, Instead of signing that form and stating that they are a religious organization and object to “providing coverage for some or all of any contraceptive services” they must now, in a letter addressed to the secretary of health and human services, inform the secretary that “they are nonprofit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.” The non-lawyer will have difficulty understanding how what the Little Sisters tell the secretary differs from what the form says.
The injunction means that the nuns will not be forced to sign and deliver ESBA Form 700 to the Christian Brothers and the Christian Brothers will not have to ignore it. The nuns’ lawyer probably overlooked the fact that the clumsily worded instructions on the form have no applicability to the Christian Brothers because of ERISA. If God had been aware of ERISA, he might well have told the nuns to get on with His work and stay out of court. One can hardly fault Him for not fully understanding the language on ESBA Form 700. It is poorly thought out. So is the Supreme Court’s decision supporting the Little Sisters.