What We Don’t Say

For the last several weeks–before Charleston and McKinney and too many more–I’ve been thinking about this post. 

On Monday evenings after work I’ve been sitting in the cafeteria of the elementary school and talking about race.

Our school decided to take part in the Community Dialogue program run by YW Boston. At first I wasn’t sure if I would go. I already do a lot of meetings, my time with the kids is limited, and I wasn’t sure if I needed another thing in my life. But I’ve been unsettled and troubled and sad about so many things over the last year and I thought that maybe this would help me cope. I also thought that it might help me figure out what I could do to help with the racial problems that still exist in our communities. 

Sometimes I struggle to know what my part is in the conversation. I’m a white woman brought up in white suburbs who attended white schools. Sometimes race played a role in my life, like the year we moved to a town in California where half of the school was Japanese, but usually my life was one where I was overwhelmingly surrounded by white people.

But things changed for me as an adult. I spent years working in prisons and as a public defender where I worked with all races. I saw racism playing out in front of me every day. Atlanta is a pretty segregated city, but before I lived there I lived in a town outside the perimeter that was only 8% white. Boston is pretty segregated, too, but for the last few years I’ve lived in a neighborhood that is 50% white. and my specific area is probably more like 30 or 40% white. My kids attend a school where they are the minority, not the majority. Race has played out very differently in my life for the last 10 years than it did in the first 25. 

I know I understand a lot more than I used to. But often my background leaves me feeling like I don’t have the right to say anything. I worry that I’ll offend someone, I’ll decide to wait for someone else to speak up. After all, that’s how race is in many predominantly white neighborhoods. It’s not something you really talk about. I remember being a teenager and thinking how great it was that we all just didn’t care about race and how we were all just the same. A lot of people still think that way, but I don’t anymore.

The Dialogue sessions were made up of a small, racially mixed group. Our school has a minority white population but we tend to have majority white parental involvement and we have a majority white faculty. It’s something the school continues to struggle with and work through and part of the reason we were having these sessions. 

There’s a lot of ways that our hours spent together sharing personal stories and very raw emotions will help our school moving forward. But the biggest benefits was for us, the attendees. The conversations we had were honest and eye-opening and engrossing. I looked forward to going every week and I was sad when someone couldn’t make it. I felt really close to all of them when our sessions ended. All this from sitting on folding chairs and going through guided discussions about a truly difficult topic. I never realized just how much we are all missing by not talking about race. Being “polite” is hurting us. Speaking up opens eyes in ways you can’t imagine until you do it.

I won’t share their stories because they’re not mine to tell. But I can tell you about the themes that came back over and over again. Some of it was what I expected, the struggles that come from a school with a large population living in poverty, the places where race and class get intertwined, the achievement gap, the delicate balance between race and cultural heritage and ethnicity. Much of it was different. There were a lot of personal stories shared to show just what is happening to us on a daily basis and just how different your day-to-day experience can be when your skin looks one way instead of another.

One exercise that was particularly eye opening divided our large group into the whites and the persons of color. Each group was told to list ways they felt like their racial or ethnic heritage was celebrated and ways it made life more difficult. 

The minority group had a lot of celebrations: festivals, parades, community activities built on a shared ethnic or racial background. White participants struggled at first to find ways we were celebrated and our list ended up being a lot of the things that we now call “white privilege.” Seeing white people in media and in positions of power. Being treated politely. Assumptions people make that we are educated and well off.

The other side of the list was drastically different. The white list had a lot to do with the specifics of our school and the neighborhoods we live and work in: trying to reach out to others and sometimes being treated like we don’t understand because we’re white.

The list from the group with people of color, however, was long and troubling. Being watched and monitored in a store. Being stopped by security or law enforcement for no reason. People assuming you didn’t belong or were in the wrong place because you weren’t white. People making blatantly racist comments. Feeling threatened and unsafe. These were not occasional happenings but daily occurrences. 

The differences between these lists struck me in a way I haven’t been able to shake and it’s helped me to understand a lot about why our discussions about race over the last year or so are playing out the way they are.

When you’re a minority, you have to work harder to celebrate who you are. You have to be visible and vocal and work for respect. 

When you’re the majority, you just don’t realize how good you have it. Almost every privilege you get as a white person is silent. It happens every day, all around you, and no one says anything and you don’t notice it happening. But it happens constantly. I wonder what would happen if a little bell dinged every time you enjoyed a white privilege. Would it make people see things differently? 

The celebrations of the minority? Sure, they exist, but they happen only a very small amount of the time. No one is coming together to celebrate whiteness or help build the white community, and that can lead to some white people who feel like they don’t get a fair shake. 

This is, of course, ridiculous and shortsighted. It’s the same kind of thinking that took #BlackLivesMatter and turned it into #AllLivesMatter. It denies the hurt and fear of being treated as an other even if it’s under the guise of equality. Of course all lives matter. But black lives are under attack in a way that’s different from other lives. If we value all lives equally we have to pay attention when one set of those lives is being targeted and taken cruelly and horrifically. (You can and should read Claudia Rankine’s stunning essay expounding on this.)

As a white person going through life, when you’re treated respectfully you don’t assume it’s because of the color of your skin. But the honest truth is that your skin color has a lot to do with it a lot of the time. Just because you don’t hear a bell ringing doesn’t mean you aren’t coasting on privilege.

No one has ever told me I was in the wrong place because of my skin. (On the contrary, they tend to be kind and solicitous because I’m a white girl and that makes people want to treat me sweetly and take care of me.) No one ever assumed I was the maid or the janitor. When I tell people I went to law school, they aren’t surprised. 

I have friends from other races, but we don’t talk about these things beyond sharing articles and comments on social media. Every single person of color in our meetings had stories of rejection, displacement, fear, and danger. And even more stories they’d heard from their friends and family members. As I heard them over and over again, I realized that we’ve all been doing each other a disservice. We don’t tend to share these stories across racial lines.

And among groups of white people, we don’t call out racism when we see it.

We need to tell our stories, not just share whatever makes national news. We need to tell our friends when we experience racism or when we see it happening to those around us. We need to call out people who enable racism whether through ignorance or willful action. 

I had one of these moments recently. It wasn’t anything big. It was just one of those times when I was in a group of people, most of them were white, and someone said something casually racist. For the last year or so I’ve become much more aware of these occasions. With a few weeks of Dialogues under my belt I decided to open my mouth and try to stop it. I was gentle at first, trying to shut it down with indirect disapproval. But that didn’t work. So I said something I don’t think I’ve ever said anymore, “That’s kind of racist.” 

I look at that “kind of” and wish I’d left it out. It was my manners trying to come in and smooth things over and counteract the pointedness of my comment. But I should’ve just said, “That’s racist. You need to stop,” and left it at that.

Regardless, it stopped the line of conversation and we moved on. No one got upset. I actually felt much more awkward and uncomfortable before I said anything. After saying it I felt relieved. 

This is a duty we all share. You may feel like a conversation doesn’t matter much. But it does, And there’s more you can do.

You can look at life around you and ask if there’s racial discrimination. If there’s something around you where people of color are underrepresented, you need to examine it and ask what may be behind it. Sometimes it’s systemic racism, sometimes it’s the ignorance of the majority, but either way it should be changed. You can look at systems in place at work, at school, and in government that put a burden on people of color. It doesn’t have to be the serious stuff on the news. It can be something you’re involved in, somewhere you have influence, something you care about.

At Book Riot, for example, we make a conscious effort to read books by authors of color because the publishing industry still dramatically favors white authors, it publishes books mostly about white characters, it pigeonholes authors of color as being incapable of creating universal stories, reviewers pay more attention to white authors, and publishers push their marketing dollars behind a very white list of authors. (I saw this in person recently at BEA, the publishing industry’s largest trade show.) We use our platform to draw attention to the problem and to celebrate books by authors of color.

I have started to talk about it on Facebook because most people don’t know about the problem and just how bad it is. Awareness is the first step to changing a system. I get comments sometimes wondering why I bother or what’s the point. These people say they just want good books and they don’t care about race. They love books by authors of all races.

This is the same way I used to think as a teenager. It’s responding to an accusation of prejudice supported by data and evidence by ignoring it. So saying they “don’t care about race” may actually be true. It’s less that they don’t care about the race of the author but don’t care about whether racial injustice is occurring in an industry. 

If a system is racist, you not caring only allows the system to stay just as it is. 

Sure, my steps to change publishing are small. But I do what I can with my influence. I talk about it. I educate myself. I make an effort to expand my reading to include more authors of color. I bring needed attention to deserving books and authors. I provide my readers with information about books that they may not get from other places. And that is the beginning of change. Even if it’s just one industry in a big, giant system.

If you are in the Boston area, I’d encourage you to consider bringing the Community Dialogues to a part of your community that could use it, whether it’s your neighborhood, school, or business. If you’re not in Boston, do a little research to see if one is near you. (I’d just google “community dialogues on race (insert city name)”) Listen to the people around you, really hear their stories, and look at the world around you to see what you can do.

Moving On Without Meds

It’s been over 3 months since I went off my antidepressant. It’s a tricky thing to do, trying to tell why you feel the way you do, trying to figure out readjusting brain chemistry. You have to look for the bigger pattern and it can take time for it to become clear.

Now that I’m 3 months out I can definitely see some of the pattern. You may have noticed, too. The last few months, especially October, my blog was a huge downer because my LIFE was a huge downer. I know weaning off my meds would be tricky no matter when I did it, but unfortunately I did it at the same time that things got very stressful financially. (And, you know, there’s the whole life thing involving working 3 jobs, mothering 2 special-needs kids, navigating life as a single parent, and all that jazz.)

Honestly, I felt a lot of things over the last few months, I definitely didn’t lack in emotion, but mostly I felt downtrodden. I felt oppressed. I felt burdened. I felt like I really did walk around with a gray cloud over my head. That was the hardest part. It wasn’t depression, I’ve felt that. It was just being down in the dumps every day. It was a bad mood that just wouldn’t shake.

Lately, especially in the last month, I’ve noticed that I don’t feel that so much. I think things are leveling off in my brain, because my circumstances haven’t gotten any better. I feel more hopeful, more calm, more even. 

I realized shortly after going off my meds just how much my meds did for me. I went off because I didn’t think they did too much, but I was definitely wrong about that.

I have always cried easily, but wow it’s a lot harder without my meds. I’d forgotten. I was on a much steadier keel with them. I was never unflappable, but I was… less flappable. 

It’s easier to get me angry, frustrated, upset, sad, etc. now. Oh hi, feelings, nice to see you again. They were never gone. I was just able to cope with them better. 

I’m re-learning a lot, practicing compartmentalization so I don’t obsess about work stuff at home and home stuff at work. 

But mostly I’m just glad that things are feeling easier. Because the hard was just so hard. I’ve got enough on my plate without feeling like the world is falling down around me. If it had stayed like that I would’ve considered going back on meds, even though it would’ve meant paying for meds and paying for doctor’s visits and paying for things is not exactly something I’m really happy to do right now. Even though I would’ve been going back on meds just because things suck.

I am guessing I’m probably not the only person who felt like they didn’t have a good enough reason to go on medication. I never got an official diagnosis of PPD, maybe that would’ve helped me feel more justified, maybe not. I just saw it as depression that came from circumstance, which made me feel like I was just using the meds as a short-term crutch. I wasn’t planning to be on them for over 5 years. But circumstances CAN really suck. I should have cut myself more slack. Still, I was scared of the possibility of being on meds for an indefinite period. I worried that I’d still need them without all the circumstances, that I’d lost something along the way. 

They’re irrational and stupid fears. If you need the meds, take the meds. That is how I feel when I talk about anyone who is not myself. I can see it clearly and rationally when it’s not me. But as soon as it’s me I get weird. 

It’s still kind of weird, because life was easier on meds. My emotions were more manageable on meds. I admit, I thought sometimes that maybe that was enough of a reason to take them even if I wasn’t depressed. But I’m happy to see the side-effects go, that’s one of my major incentives for letting myself readjust and re-learn and get comfortable and make an effort to go without them. 

The biggest transition, I think, was realizing that my ability to not worry and just take things as they come was something that was a lot easier on meds. That was a tough shift, because it had become so entrenched in my approach to life and everything in it. This new ability became one of my defining traits, one of my grown-up abilities that made my life work. I felt so much more comfortable in the world that way. Before, I spent so many years wound up and worrying, always worrying, and it was so nice not to worry but to just deal with it. I’d attributed this to my time spent raising Graham and didn’t think about the fact that I started on antidepressants when Graham was still an infant and oh hey, maybe that’s the reason. BUT I feel like I’ve reclaimed it. I’ve been able to fall back into the habit so I’m not freaking out about things. I’m taking each day. And then the next day. And then the next.

My entire life shifted after Graham was born. Not only was I now a mother to a high-needs child, but my career and my marriage and everything else got jolted and none of it ever went back the way it was. I feel so disconnected sometimes from the person I was before that and weaning off my meds felt like it could maybe get me back to that person a little.

And it has, but not just in the easy ways. In the hard ways, too. I thought about it for a long time, I waited for a long time, and for me it was kind of like having a kid: there’s no perfect time, but at some point I needed to go for it.

I am thinking a bit about my word of the year for next year. Last year it was hard to think about and I put it off for a while because I felt so overwhelmed by how much I didn’t know that I couldn’t think of any guiding principle that could cover my options.

For next year I’ve been pondering the possibility of one very small word: UP. 

As in: Look up. Brighten up. Step up. Finish up.

And, you know, the direction. Move up.

I feel capable of facing life looking up next year and that’s what’s important to me right now.

The Good Fight

When you go on a lot of first dates, you tell your story a lot. A significant chunk of my story that comes out over coffee or a beer is that I used to be a Public Defender. Depending on how well the date is going, the conversation veers in one of two ways. If it’s just okay, then I usually say I went on to a small firm as if it was a natural transition. If it’s somebody I’m getting along with, I’ll usually be honest and say that I couldn’t do it anymore.

I have a script, almost. You do that when you have these conversations a lot. I say the same things over and over. I say:

  • I took over all the juvenile cases. And it broke me.
  • That stereotype about the tough, hard-drinking criminal defense attorney is there for a reason.
  • I thought it would be better because the juvenile system is more focused on help. But it actually made it harder.
  • I appeared in front of one judge who found every single client I ever brought in front of him guilty regardless of the circumstances.
  • I had trials in Juvenile Court every single week.
  • I also started handling all the drug cases in my county.
  • When I left my office I had over 700 open cases, over 100 of them juveniles.

This stuff is okay for a first date. It shows a glimpse of the reality, makes it clear I took my job seriously but doesn’t reveal too much.

When I get closer to someone I may reveal that I was having panic attacks before I left my job. That just driving to the courthouse where I knew that Judge wouldn’t listen to a word I said would bring a physical tightness over my whole body. Then there was the time I cried in court. It only happened once. It was on a small case, a stupid case, a fight in school, the kind of thing that should never have come to court at all. And it was the ridiculousness of the charges with the hopelessness of my case that got me to break down. I have no idea what my client thought about that, a 13-year-old girl seeing her grown up attorney so angry she has tears streaming down her face.

I don’t tell that story often to anyone because I still can’t talk about it without crying. It was that raw. 

Telling any of these stories require that I hold back. Because I can go on. And on. About my very first month in Juvenile and my first three trials which were all Child Molestation cases with flimsy evidence and I lost all three and felt like I’d failed those kids who were most likely innocent. I didn’t realize yet that I’d lose most cases, even plenty I deserved to win. That no matter how well I did, that was how the system worked.

I think sometimes it was because they saw a troubled kid and they figured it made sense to bring them into the system. That’s my guess, anyway. I don’t know how much of it was race or class. 

I liked the kids because they wouldn’t plead guilty. I kind of admired their stubbornness, even when the evidence was stacked against them. I had more trials than pleas most of the time.

Adults are different. With adults, you’ll have them come in and you’ll hear their story and you’ll be ready to fight and then when the plea offer comes in they take it. Because they’re scared and tired. 

I failed people all the time. Everything I had was generally not enough. And then when you’d have a win, and kid went home and got my You’re-turning-17-that’s-adult-court lecture, and then got himself Accessory to Murder charges a few months later. There was a lot of failure.

I thought of this last night while watching my Twitter feed. This feeling of frustration in my stomach, of knowing this outcome was going to happen, but hoping it wouldn’t like I’ve hoped plenty of times before. This is a feeling I know. 

It’s a feeling I had every day when I was a Public Defender.

And it’s why I can’t go back.

Recently I was on a date with a lawyer and he tried to sell me on the idea of putting out my own shingle and taking on court appointed cases. And during our conversation I entertained the idea.

But no, honestly, I don’t think I can do it. My outrage gets too big. I know Ferguson stirs up strong feelings in people. Today a lot of us are angry on behalf of a family we’ve never met in a community we’ve never visited. It’s a shadow of a feeling I know well, one I don’t miss. But it’s hard to describe how it is when you’ve talked to a person, looked into their eyes, heard their story, been their appointed counselor, been the only person on earth who will stand up with them in judgment and fight all the way down. There is something so powerful in that. I loved it. I loved knowing that no matter what you did or didn’t do, you had me and I had your back. Because you were a person and you deserved that much.

And the worst of it? Is knowing that even though I’ve left that job, there are still people every day who still need that help. That there are still all the people who are pleading guilty to crimes they didn’t commit, agreeing to take on fines they can’t pay, needing rehab or health services they can’t get. It happens every day in every community and I feel so guilty that I’m not there standing up beside them. 

It was perhaps the most noble thing I’ve ever done. Definitely the most important thing I’ve ever done. And you can’t really understand how much is happening all around you, how much loss and turmoil and injustice there is in your city, until you’ve been in it every day. Yes, your city. This happens all around you all the time.

I wondered last night if I was cynical because I didn’t expect an indictment in the death of Michael Brown. But then I realized, no. I’m not cynical. I’ve just been here before. Different names, different times, different places, but there. And to survive there you learn to expect the worst. That’s one thing I haven’t forgotten.

For now I don’t know how to work for something better the way I once did. There should probably be more to it than a blog and a Twitter account. It’s a journey I’ve been on for a long while, to try and figure out how to find something that vital and important that will also let me live my life fully. 

I’m still looking.

What This White Girl Is Afraid Of

There are fears I have as a woman that men often have trouble understanding. And I have no doubt it’s the same way being Black or Latino or anything else that isn’t White in America. 

It’s hard for me to feel like I have something to say about those things because, after all, I am White in America. But I still look at what’s going on and I feel afraid.

Right now I live in what is often referred to as a majority-minority neighborhood. In short, when I walk down the street I see more Blacks than Whites. On my street in particular we’re pretty outnumbered.

I love it.

My son goes to a school with  the kind of racial hodge podge that looks like it was carefully cultivated for an ad campaign. Tessa goes to daycare in a neighborhood I go through on my way to work that many people in the city avoid or rarely visit. It’s a lovely old area and Tessa’s friends at daycare, like Graham’s at school, are all shades of white and brown and everything in between. 

It’s amazing. It’s a lovely, hand-holding, let-sing-kumbaya liberal dream.

So what am I afraid of?

I am afraid of the day when we move.

Sometimes I think of how nice it would be to move closer to the train so my commute is easier. But then I think of my ride home on the train, how the train is full of all kinds of people, but then, in the couple of stops before mine, nearly every white person on the train exits. It’s a quirky, Bohemian neighborhood that they live in, full of character, blue hair, bicycles, and beards. But there’s practically a dividing line between the white part of the neighborhood and the black part. 

Sometimes I think of how nice it would be to find something cheaper, something outside the city, a quieter way of life. But then I think of how it feels when I walk around those neighborhoods and see only white faces.

I am afraid of that. I know it sounds silly. After all, I grew up in suburbs. White suburbs. Sure, I grew up living a “colorblind” life where I didn’t really think much about who was black and who was white and people are just people and all of that. But there’s a danger in that kind of thinking, a kind of blindness that I don’t want my kids to have.

It wasn’t until I was an adult, until I left all that behind, until I took the unusual step for a suburban white girl of working in prisons and representing indigent people, that I saw beyond myself. I got a chance to see up close what race and class mean for all kinds of people, men and women, black and white, old and young. I saw plenty of times on videotape the difference between what happened when I got pulled over in a traffic stop, and when my clients got pulled over in a traffic stop. I learned those lessons when I was 25. Which isn’t too bad, really, when I think that I could’ve gone my whole life without learning them if I’d gone a different way.

But what if my kids never learn those lessons?

You may have figured out that it’s not moving I’m really scared of.

It’s the short-term focus of a much more long-term fear: that my children will not see injustice for what it is, will not care when they are confronted with it, will not be outraged, will not feel like they must do something to make the world better. I am afraid they will be condescending or complacent.

You can’t force people to learn those lessons. And it’s hard to pull children and teenagers out of the strong orbit of self-interest to see them. They’re little now. I can’t explain yet just why we have things like racism in the world. So I take comfort in my belief that if my kids grow up with people of all colors that when they are old enough, they will see race and the difficulties it creates in our country in a way that they take personally. I believe that even though they may be a couple of white kids, they can see people of other races as a crucial and caring part of their community. 

As their mother, I want them to know that people can be vulnerable through no fault of their own, that they can struggle simply because of their color, their gender, their birthplace, even their way of speaking. When they are old enough for us to talk about things like Ferguson and Trayvon, when they can start to process the fact that much of the world doesn’t see people as equal, I will have a lot of work to do as a parent. 

If we do end up in the suburbs or just a different neighborhood, I know it’s nothing to be afraid of. These days, I go where life takes me, where I can make sure things are best for our family. But what’s best for us is more than just financial stability, educational opportunities, career potential, and the things you normally put on that list. Ultimately what I want is for us to be better, kinder, stronger people. I want us to see where there is need and do what we can to help. 

If I’m gutsy enough to admit it, I’m also afraid for myself.

I’m afraid of the way I’m getting worn down. Pushing us to be better, kinder, stronger is a thing I have to make myself want. The grind of this single parent, high-cost-of-living, crazy life often makes me want to find a little hole to crawl into where I don’t have to worry about making ends meet or juggling it all. This desire that comes on is not just about finding calm in my life, it’s about making all the rest of the world go away, all the trouble and the toil and the tears that can make you feel overwhelmed when you’re already walking a tightrope. It’s a yearning for a little bubble of happiness where I can not only leave behind my own struggles, but never have to think about the fact that other people still have struggles of their own. Wanting to curl up in a ball and leave the world behind isn’t what I want for my kids, and in my heart of hearts it isn’t what I want for me.

I have to fight against that complacency. I have to make sure I don’t give in to it. It’s a scary thing. It’s a hard thing. 

I’m glad my kids give me a reason to fight.

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.