Tag Archives: serious stuff

Off-Topic: The Supreme Court and Hobby Lobby

I had a feeling going through my social media feeds yesterday that I’d need to do a Hobby Lobby case post. I have friends of all political stripes, and whenever I see either my liberal friends or my conservative friends react strongly to a SCOTUS case at the end of the term, it has generally resulted in writing up the decision. We react so quickly to these case outcomes without knowing much about the analysis or the actual terms of the decision. As I usually do, I’m going to cover just the basics of the ruling itself as objectively as possible. (You can also check out my previous posts on DOMA, the Voting Rights Act, and the Affordable Care Act.)

The Basics

One thing that I’ve heard almost nothing about in this discussion is the law central to this ruling. It’s not the ACA, but the Religious Freedom Restoration Act of 1993 (hereafter the RFRA). It is also not about whether women’s access to contraception, it’s about these specific regulations. These cases often involve a kind of balancing test. The questions are: 1) Whether the RFRA applies to this case, and 2) if it does, does the Department of Health and Human Services’ set of regulations impose a substantial burden on the exercise of religious freedom; and 3) if it does impose a substantial burden, is it in service of a compelling government interest; and finally 4) if so, is it the least restrictive means of serving that interest. 

Spoiler alert: the answers are Yes, yes, yes, and no. So fear not, the Court does treat access to contraception as a compelling government interest. It’s simply found that this specific set of regulations aren’t the least restrictive ones available.

Under this decision contraception is all good. Free contraception is all good. It’s simply a question of how to set up a framework of payment to do so without imposing on religious liberty.

One major reason why the answer to #4 is no is that the HHS already has a system in place for religious non-profits to avoid paying for contraception while still making sure it’s provided to women. So it’s hard to argue that the HHS guidelines are the least restrictive.

The RFRA

As is often the case with the Supreme Court, if you’re happy or unhappy with the outcome you should save a good portion of your feelings for Congress. Hobby Lobby has a nice recap of the Court’s religion cases for the last few decades and Congress responded to some of the Court’s decisions by enacting the RFRA and later the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 1993 and 2000, respectively. Basically when the Court sided with the government’s interest Congress came back and codified religious exemptions. 

The RFRA holds that even neutral laws that aren’t aimed at religions can still interfere with religious liberty and thus: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Under the RFRA you can claim an exemption from a law that interferes with your religion unless the Government shows it has 1) a compelling interest and 2) the least restrictive means of fulfilling that interest. Thus the test referenced earlier.

The RLUIPA also has some language that is critical for purposes of this decision. They wanted a stronger religious protection than what was provided in the Constitution and the Court’s previous rulings. So it says that when it talks about exercise of religion it means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” It also orders that it be construed as broadly as possible in favor of religious belief and practice.

This is what this case is really about, these two laws, and you should probably send your anger or happiness in their direction more than the Court’s since they make this ruling possible. There is basic evidence provided showing the religious beliefs of the owners of Hobby Lobby and Conestoga (the other company in this ruling) and as long as those basics are there these laws give them basically a default in their favor without much scrutiny. 

The ACA

Now let’s take a look at what the ACA requires. The major issue is that employers must provide health care plans that comply with the ACA or face a penalty. The size of the penalty is what the Court is most concerned about since it decides whether the burden of the law is “substantial” or not. If an employer doesn’t provide the required insurance, they can be charged $100 per day for each individual affected. If they stop providing health insurance, they can be charged $2,000 per year for each employee. Hobby Lobby could be subject to a fine of $475 million per year.

The ACA only requires that women be able to get preventive care and screenings, but authorized the HHS to decide what that would be. They decided to include contraception as well as exemptions for religious employers (like churches) and nonprofits. These employers have their insurance companies perform a little mumbo jumbo so that contraception is still provided to their employees but doesn’t give that expense to the employers.

The Court also notes that there are several exceptions to these requirements as well and that about 1/3 of people have employer health plans that aren’t covered by the contraception mandate.

What is a Person?

This is the area of the decision that’s most subject to controversy.

The RFRA includes the general term “persons” under its protection. And what is the generally held definition of person? It includes corporations, once again according to an act of Congress. The RFRA has already been found to apply to non-profit corporations.

The majority points out that corporations have more goals than to make money and often have humanitarian goals and support charitable causes. It also acknowledges that the decision to organize as a for-profit instead of a non-profit may have little to do with the goals of the corporation but the advantages available by filing as a corporation that can help achieve worthy goals, including lobbying for legislation and supporting political candidates. 

HHS contends that for-profit companies are different than non-profits because it can be difficult to determine what their beliefs are and cites publicly traded companies. And this is where the Court decides to narrow its decision to only apply to closely-held companies, or those that aren’t public offerings.

It’s quite typical for the Court to limit its decision only to the exact set of circumstances in front of them. This is a line of reasoning I’m familiar with. Like yesterday when my son asked if we would ever buy lollipops. I said, “Not today?” He said, “Never?” And I repeated, “Not today.” Same deal with the Court. It takes the case as it is and rarely makes any statements that go beyond that set of facts. 

This is also the weakest part of the Court’s decision because it finds that it’s “unlikely” that a publicly traded company would ever try to exert this kind of privilege. Not the strongest legal argument. 

As for companies where there is disagreement as to whether it follows a set of religious beliefs, that is governed by state law and isn’t at issue here.

The Dissent

The main thing the majority and the dissenters disagree on is how broad the decision is. The majority insists that it’s limited, the dissenters see potentially broad implications. You’re probably much more familiar with these issues as they constitute a lot of the public discussion about what the decision means and what its effects will be. Just a few notes on the opinion in the dissent.

The dissent does not rely much on the RFRA, but instead relies on previous Court rulings that concern a conflict between religious liberty and the liberty of others. The dissent would end it there and not address the RFRA. It’s also of note that 2 Justices (Breyer and Kagan) don’t actually join the RFRA portion of the dissent because they find it unnecessary.

But Ginsburg continues and basically departs from the majority’s findings at each point. It doesn’t find that the use of “person” in the RFRA should apply to corporations. It emphasizes the fact that no commercial entity has received religious protection prior to this decision. It takes the non-profit vs. profit split in a very different view than the majority. 

The dissent is also unconvinced by the findings of substantial burden and least restrictive means in the majority opinion. 

As For Me

Well, I don’t usually give much of my own opinion in these cases. Here I have a few thoughts but most of them are irrelevant because I’ve never agreed with the Court’s and Congress’s treatment of corporations as persons. So much of the decision is moot to me. 

What concerns me far more than the Court’s approach (neither the majority nor the dissent strike me as doing anything particularly nuts, there’s a lot more that makes sense here than in plenty of other decisions) is the response to it. Enacting the ACA is a bumpy ride. Giving women full access to contraception won’t happen without some obstacles. I’m honestly less concerned with this decision than most other people I’ve heard from. Women will get contraception, women will be able to afford contraception, and this is the direction that we’re moving as a nation. I feel confident that women’s voices will continue to be heard. 

As for the Court’s jurisprudence when it comes to RFRA, that remains to be seen. It’s not unusual for them to zig zag around as they negotiate around the moderate members of the Court. I’m looking at the long game, and it’s impossible to know whether this is the kind of big step the dissent worries it is or whether it’s just a baby step like the majority says. Only time will tell. For now, I’ll just take my birth control, thanks.

It’s Not Easy Opting-In

There is a not-insignificant part of me that is sad I’m not a practicing lawyer anymore. I love my former profession. I hate the way it works in real life.

I was watching one of my favorite shows, The Good Wife, and found myself suddenly weepy.

 Its Not Easy Opting In<— This is Alicia. The whole trigger of the show is that she has to return to practicing law after spending 13 years at home with her kids when her husband is in prison.

This episode, which was many seasons in after Alicia is successful, had flashbacks to the time she spent interviewing for jobs. It didn’t go well. As I watched, I just kept nodding my head.

She’s competent and capable and yet no one will hire her. She steps into an elevator after finding out that the job offer she finally got was to be a paralegal instead of a lawyer. The doors close and she breaks down.

And I broke down, too. 

She lives in television and so her story ended with a job in a good firm. Real life doesn’t work that way. 

I graduated from law school 10 years ago. And nothing since then in my career path has been traditional. I used to look forward to the time when the kids were both in school when our family would be financially stable and I’d be able to go back to law when and where and how I wanted. Work for pennies, work for free, work for a cause I cared about, do something that meant something. But those dreams were dashed.

Getting divorced and suddenly having to support myself and my kids meant I had to dive into the job pool and hope for the best. It involved more than a few breakdowns just like the one I watched on TV. And the chances I’d be able to be a lawyer again? A million to one.

I feel so, so lucky that a few months into this bumpy ride I’ve landed somewhere that’s a good fit for me, where I’m happy to go to work every day. I’m relieved to have a job that will keep me afloat and hopefully send my career on to a completely different path. Again. I feel a little bit like I’m in a tv show. 

The fear is not all the way gone, which is probably why I broke down crying when I was watching The Good Wife. It’s all on me now and that’s the way it’s going to stay. There may be more of those breakdowns some day in my future. I know well enough that being competent and capable won’t seal the deal these days. 

There’s not much point in looking back and wondering if I’d have done things differently. It’s done. I’m here. All I can do now is push forward as hard as I can. 

I don’t feel like I got to opt out. I kept working after I had kids, but found myself as a stay-at-home parent twice when things took an unexpected turn. And opting back in wasn’t a decision I got to make on my own terms either. But if I don’t get to make my own decisions, at least I have the power to respond the best I can.

And after the ups and downs of the last few years I don’t know if I’ll ever feel stable or settled or comfortable for a long time. I can deal with it, and I’m wishing that someday I’ll be able to breathe easy again. But after this year, I’m not positive that will ever happen, no matter how stable I get.

It’s a tightrope walk. And even if I do it long enough that I’m a professional who can walk the thinnest rope, it doesn’t mean you ever get to relax and stop focusing. Maybe it gets easier, maybe it even gets easy, but you’re only one misstep away from losing your balance.

Special Needs, Entitlement and Disney

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Baby Jess at Disney.
Ugh, so entitled.

Over the last month or so a lot of people have asked my opinion about the new Disability Policy at Disney. My answer has been pretty consistent: I never took my kid to Disney. I haven’t used the old system. I don’t know enough about the new system. I’m waiting to hear the verdict from friends who get a chance to try it out and report back.

I also say that I feel really lucky that we will probably never need the Disability system. When we went to Sesame Place a year ago, Graham needed the special needs pass. But if we went now? I wouldn’t get it. He’s not great at waiting, but a lot of 4-year-olds aren’t. And his ability to be redirected and distracted has increased hugely. His understanding of rules and lines and fairness have made amazing strides. He could tolerate it, we’d have to plan accordingly, but he’d be okay. And unless I see signs that he needs real assistance in the future, my plan is to stick with being a typical guest.

But.

One thing that’s bothered me in these conversations is that people have expressed concern that special needs families are entitled or spoiled. That Disney is a luxury and we shouldn’t be so hung up on it.

I’ll be honest, I felt the initial response to Disney’s change in policy was pretty strong, especially when details were very slow to come out. I tend to be a wait-and-see person, an evidence-based person, and press releases make me skeptical. I knew it could be a horrible program it could be a nice program and I wasn’t ready to holler until I knew which. But I also understand that big reaction, the initial fear and worry that this is another thing that’s going to make life harder.

What I don’t understand is the reaction of people who think we are being hysterical or entitled. Special needs parents are my people. I have never met a single one I’d call entitled. (We do kind of excel at hysterical, though.)

Yeah, Disney is a luxury. And the fact that they give any kind of accommodations is something to be celebrated. 

But let’s think of all the places where our kids DON’T get accommodations. The grocery store. The pharmacy. The mall. The playground. The museum. The airport. The places we take them every day. We have to do it all on our own, we have to do our best to prepare our kids for a world that is a constant struggle. They never get a break from it and neither do we.

And the accommodations we do get? We get one sensory-friendly event a month, maybe, if we’re lucky. And you don’t get a lot of choice about it. There’s one movie showing in one theater at one time.

We have to fight to get accommodations for them at school and then fight to get follow through. Fighting is kind of our default position. 

So yeah, Disney is a luxury. And it’s MORE of a luxury for a special needs family than for other people. Because going somewhere that treats us well, that lets us do things the way we need to do them, this isn’t exactly an everyday occurrence for us. It’s also a luxury that requires a lot of money, a lot of time and a lot of preparing our kids for what is by no means guaranteed to be a successful or happy visit. 

If you responded to the news about the Disney disability policy change by thinking it’s just a luxury and we shouldn’t feel entitled to it… maybe consider that we don’t feel entitled. It’s just that every loss, every thing in our lives that’s that much more difficult is one more thing we can’t do. 

For a little more on how things are shaking out now that the policy is in effect and how autistic kids in particular manage parks, take a look at this post.

I Can Do This

It is Sunday. I have about 2 more hours with the kids. I am tired. My fuse is about a centimeter long. Today has been miserable.

On the bright side, I haven’t felt like this in a long time.

Every day used to be like this. And I know why it’s happened again. Tessa has the croup. She stayed home from daycare on Wednesday and Thursday and I had to pick her up early on Friday. She’s been waking up at night, too. So I’ve been home every day. I’ve been tired. And even though I’ve been working, I’ve been home all the time and my life has been far more parenting than working. 

When I used to feel like this, it was before I had a job and even before the split. I managed the kids almost all the time then. I rarely got a chance to leave the house by myself, not even to run errands. It was all mom all the time and I was pretty miserable. It was easy back then to feel like I just wasn’t cut out for parenthood in general. I’ve had that feeling more than once. And there have been plenty of times where I felt like it was true. 

But the fact that I’ve gone through a lot of time where I haven’t felt like this shows me that I was wrong. 

I felt like I couldn’t do it when Graham was little, then came his diagnosis and I realized that I could do it, I just needed help. That’s exactly what it is. I can do it, I can even enjoy it. It just doesn’t happen all the time, it doesn’t happen when things get tough. 

I need a break. Or help. Or a change of scene. And these aren’t unreasonable. They aren’t too much to ask. They don’t make me a bad mother. 

It just makes it a bad day.

And that’s not so bad. 

Now just to survive the next few hours.

What Co-Parents Can Learn From Congress

congress What Co Parents Can Learn From CongressI’m still new at this two-houses co-parenting stuff. But that doesn’t mean there isn’t a lot of bargaining and back and forth. It’s pretty much daily. And there are lots of changes and unexpected requests. 

Dealing with our constant negotiations large and small, contrasted with watching the US Congress muck up negotiations completely has me thinking about how their problems are relevant to parents who are no longer partners. There’s some of the same difficulties as you run into with feuding political parties. So perhaps we can learn from the mistakes are they making what we can avoid, because they certainly aren’t setting a positive example.

Don’t Be A ^#$@!$(&

This should go without saying, but dealing with the opposing party, whether political or just from the divorce, brings out the worst in all of us. Really, this is rule #1. It’s not a time to try and be a diva to get some TV coverage. 

It’s Not About You

Right up there with rule #1. It’s about the kids, right? It’s about keeping people safe, fed, clothed, housed and functional human beings. You have a lot on your plate, but more than the petty grievances and anger is the country (Congress) or children (parents) that you’re here to take care of in the first place.

Let The Past Rest

This isn’t the time to get mad about an argument you had a few years ago in, oh, say 2010. Especially if it’s one you’re still mad about losing. Sure, there’s years worth of slights and anger, pain and sorrow, but at some point you have to just move forward and decide to live for today.

Ultimatums Are Stupid

Negotiation and compromise are crucial. Sure, maybe you found the hill you’re willing to die on, but you having died on it isn’t going to make anything easier for anyone, especially when it means EVERYTHING SHUTS DOWN.

Come to the Table

Be willing to compromise. Even if the other side is being stupid and crazy, going through the motions is important. Be the bigger person. Sit down. Stay calm. Be fair. And if you do all those things it’s okay to set limits and refuse to give in to crazy.

Get Your Priorities In Order

If it’s important for the country/kids, it’s important. Even if you don’t like it. Period. Remember Rule #2? This isn’t about you.

Respect Each Other

You don’t have to love each other. There don’t have to be hugs. But you do have to act like adults and acknowledge that you’re both important to your country/kid and that the country/kid will be better off if you can work together. You have common ground as much as you don’t like to admit it.

No Finger-Pointing

Spending all your time telling everyone how the other side/person has created the entire problem completely and it’s all their fault is stupid. It makes you look bad. Don’t bring your squabbles out in public. Maybe your approval ratings would go up if you could do what adults are expected to do and work things out. 

You Don’t Have to Win All the Time

Sometimes you won’t get your way. Those are the breaks. Don’t be a jerk about it. 

Take One For the Team

One of the keys to negotiation is to give up a little to get what you want. This is compromise. You don’t have to give up everything. But if you show flexibility, you’re more likely to get it in return. If you step up when you’re needed, it’s more likely someone will have your back when you can’t manage on your own.

Make Things Happen

Don’t just sit back and twiddle your thumbs when you don’t want to deal. This is what you do when you’re a public servant/parent. You deal. Because people need you to deal. Sure, it can be thankless, but it’s worth it.

 

Since I’m still something of a newbie I’d love to hear any other tips you have to deal with co-parenting. Or, you know, if you just want to unleash a primal scream at Congress, you can do that, too.

Women, Infants and Children

its complicated Women, Infants and ChildrenI packed the iPad and I knew as I was packing it in the little canvas tote that I would feel like a jerk when I took it out. I packed it anyway. I was also bringing a 4-year-old who’d be sitting around for at least 30 minutes, possibly many more, so it seemed like the best option.

I did feel like a jerk when I pulled the iPad out. There I sat, calmly giving my name and my children’s birthdates, pulling a cable bill out of my bag to show proof of residence, handing over my driver’s license, answering questions. 2 hours later I would be handed a few sheets of paper that looked like checks. They were blue and business-like, but instead of “Pay to the Order of” they said things like “1 pound cheese” and “14 oz. brown rice.”

I wanted to explain that I hadn’t bought the iPad, that it had come from my husband’s work and that I had no real use for it and it was a good way to keep the kids busy at times like this and wasn’t that easier for everyone? But I didn’t say that. Instead I just sat next to my child who created a set of train tracks on a fancy touch screen and made sure all the paperwork was completed so I could receive WIC benefits for my children.

20130811 132827 1024x768 Women, Infants and Children

It wasn’t the easiest process since my situation is far from cut and dry. At the moment I am in a strange limbo. I have been left on my own financially for over a month. I have a little cushion that isn’t enough for next month’s bills. I have one maxed out credit card and one which must be paid off every month. I have virtually no money coming in. I cannot get unemployment because I’ve been home with my kids for nearly 2 years. I am in the process of divorcing but there is no child support order yet and waiting for any income is taking its toll.

I own very little. The car I’m driving isn’t in my name. I rent an apartment that I hope to be able to continue to stay in, since I can’t afford it anymore. I have a couple nice trappings: my laptop, my phone, my camera. But besides that I have a small amount of cheap furniture. I have things for the kids: more toys than I remember buying, clothes that will soon be stained and worn and too-small. I have my own wardrobe, which has more than enough pajamas but surprisingly little that is in season, still fits, and isn’t maternity-wear. The most expensive thing I own by far is my wedding ring, which I’m not sure I technically own, and even if I do I’m not sure what to do with it.

Most days I feel much the same as normal. I am just trying to keep my children busy so I don’t lose my mind. After they go to sleep I get an hour or so to myself before I head to bed as well. The long slog of each day, from mornings in pajamas to constant requests for snacks to buckling and unbuckling of carseat straps, is sometimes a blur. It’s a blur you can get lost in. It’s a blur where you are like everyone else and not the person who is being told that you can get your pound of cheese from any brand but soon the rules will change and it will be store-brand only.

My WIC checks make sure my children get plenty of milk and grain. There is no meat. And there is only $6 a month for fruits and vegetables. We normally spend more than $6 a week on produce. I am told there are places I can go where I can pay $2 in cash to get a bag of fruits and vegetables. I take the brochure, I will need it.

A nutritionist measures and weighs the kids. The baby is still short and I don’t know why, but her weight is good. The preschooler seems so skinny to me, but his height and weight are astonishingly average according to the charts. We talk about their eating habits. I tell her how they would live solely on berries if it were up to them. They are good milk drinkers. They don’t care much for meat. We are working on getting more beans. Cereal is a must since they don’t eat bread. I brag about my son’s love of crunchy vegetables. She assures me that string cheese is covered by the cheese allowance, good news for my crew.

The checks will help with a lot of our staples: milk, cereal, peanut butter, produce. It will help with the foods I’m trying to promote: beans, rice, cheese, eggs. It will be useless for many of the foods that get them through the day: pasta, yogurt, crackers. It gives us more juice than we need and I am already trying to think of how I can dilute it and pack it up for outings.

I make an appointment to come back in a month. I don’t know yet if I will need it, but the odds are I will. Even after I start getting child support payments I doubt there will be enough. The nutritionist, who seems young, unmarried, childless and kind, tells me that when people start with WIC they tend to stay for a while. She reminds me of myself in my mid-20’s, doing good work, helping people, trying to do something worthwhile. I didn’t ever expect to be the person on the other side of the desk. Still, it feels less strange than you’d think. I am a mother. I have two children. They need to eat. I need to make sure they eat. This will help. So I do it.

During the appointment we go from one desk to another to another. The children require constant managing, which also keeps everything feeling normal. The baby is walking now and she climbs up the set of 3 stairs in the waiting area then stands at the top and squawks to be picked up, since she hasn’t yet figured out how to go down them. The preschooler gets bored of the iPad, gets bored of his fire truck, goes through all his snacks, gets bored of everything else I have and won’t leave me alone until we get into the nutritionist’s office where there are new toys that he’s never seen that are infinitely more interesting than the ones he already owns. We could be in any office, in any appointment, trying to get through any day. We just happen to be here.

There is a little gold card on my key chain now. Next week I will go through another set of appointments to find out if we’re eligible for additional benefits. I have sent in many resumes, I will send in many more.

And yet life goes on with many of the trappings of ease and stability that it always had before. It is easy to feel like nothing is different. It often feels like that. And then Friday evening, after I leave the kids with their father and sit down and let myself relax I remember all the things I don’t let myself remember during the busy days of playdates and library visits.

I am intelligent, well-educated, competent, skilled and connected.

I do not know how I will pay my bills.

You work hard because you believe education and work and achievement will protect you, but it is not foolproof. You can make all the right choices and still end up barely able to keep your head above water.

But it’s weird how you can be frantically treading water for so long and not even notice because you can still breathe and all you think is Breathe in, Breathe out, Breathe in, Breathe out. And you carry on.